Walking through the bar of a club of which I am a member I passed a table occupied by two women and two men of a certain age. One of the women said to her companions, in a very shocked tone of voice, “did you see it was announced yesterday that people can make claims against their employers without having to pay court fees?”. One of the delightfully crusty men responded thus (with no hint of humour in his voice): “Ah, yes, menopause claims.” I yearned to linger, to hear more of this wonderfully surreal conversation, but politeness won the day. I walked on.
I knew, of course, what it was of which the woman was complaining. Yesterday the Supreme Court ruled that the fees which the government was demanding from those who wished to bring claims in Employment Tribunals were unlawful. They amounted to an unjustified restraint on access to justice.
I risk the fury of my many friends who, like me, are not desperately keen on every aspect of modern employment and discrimination laws when I say I was delighted by the court’s decision. When the fees were introduced my instinct was that they were an abomination. It was plain to anyone with half a brain that they were pitched at a level which would be bound to lead to people of modest means being unable to seek the aid of the law. And so it has proved. The number of claims brought in Employment Tribunals since the introduction of the fees has dropped by 70%. But there has not been anything like that decrease in hopeless cases being brought. The reduction has been almost entirely in cases which would have been successful. I won’t go on with the statistics. You can find them in the Supreme Court’s judgments.
Why should someone who is not an enormous fan of many modern employment laws have welcomed the Supreme Court’s decision to abolish the fees which were preventing people from demanding the rights granted to them by those laws? The answer is simple: the law has given people those rights (whatever I think of them) and, so long as the law remains as it is, it should ensure that the rights can be exercised. By all means campaign to change the substantive law, but never, for a moment, think it can be permissible to nullify laws enshrined in statute by using administrative means to prevent those laws from being enforced.
But that’s not the main point of this piece. What I found fascinating, on reading the main judgment, delivered by Lord Reed, was the discovery that all the incredibly brainy lawyers acting for Unison and the Equality and Human Rights Commission had run their case, until the Supreme Court suggested they might like to think again, by relying almost solely on European law. It simply had not occurred to them that the Common Law of England had quite a bit to say on access to justice.
I loved the gentle way in which Lord Reed explained things to those frightfully modern lawyers. How about this, having just explained that the argument before the divisional court and the court of appeal had all been about European law: “Before this court, it has been recognised that the right of access to justice is not an idea recently imported from the continent of Europe, but has long been deeply embedded in our constitutional law”? And then he embarked on a consideration of that constitutional law. Naturally enough, he started with Magna Carta, “Nulli vendemus, nulli negabimus aut differemus rectum aut justiciam” (“We will sell to no man, we will not deny or defer to any man either Justice or Right”) a provision which, as he pointed out, remains on the statute book. He then took us to Coke’s Institutes, to Blackstone’s Commentaries and to a succession of important decisions of the courts from the early to late twentieth century, all turning on the Common Law of England. And all insisting that the Queen’s subjects must have unfettered access to justice.
The Supreme Court concluded that the government’s appalling fees were contrary to the Common Law of England. I concede that, in what was almost an aside, Lord Reed said they also fell foul of European law, but the case was decided on boring old, straight forward old English law.
Has something awful happened to legal education in this country in the last few decades? I suspect it has. Those lawyers who turned their back on the Common Law and embraced European law really are very brainy. But I suspect their massive brains have undergone an equally massive wash. They have endlessly been told that European and Human Rights laws are vastly superior to the Common Law. It has reached the stage, I suspect, where many of them would be embarrassed to be caught citing the Common Law when Europe might also have something to contribute. I wonder how they will cope when Brexit extricates us from the European Court of Justice?