Lord Reed is my Hero

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?



6 thoughts on “Lord Reed is my Hero

  1. Now then Charles, I confess that I have been greatly reassured both by your blog, and by a comment I heard on the radio which pointed out that as a way of keeping out vexatious claims the use of expense as a barrier had been an utter failure. So I rest happy in Lord Reed’s decision

    But a question has occurred to me and I suspect you’ll be able to answer it. If it is true that access to justice must not be denied by the high cost, does this set any sort of precedent? After all we have seen accusations in the past that the wealthy (and governments) have resorted to the law because they know they can outspend their opponents who cannot afford to fight them through the courts.
    Is it possible that this judgement could support an increase in legal aid, or even a reduction of court fees generally?
    I’m not being at all rhetorical or mischievous, merely genuinely interested.


    • I think it unlikely that general court fees will be reduced or legal aid increased. The emphasis these days, with not much result yet, is on cutting legal costs by making them more difficult to recover.


      Liked by 1 person

      • I understand that, I wondered whether this might have any impact on direction of travel?
        Just musing aloud, don’t make the mistake of assuming I have any knowledge in this field 🙂


        • I am sure the judgment will be cited in many cases to come. And I am also sure the government will bear it in mind before bringing in more of these fees (or increasing those already in existence).


          Liked by 1 person

  2. Charles, I’m acting for a widow who lost her husband in a terrible accident. She has lost her husband, his future wage – and their little girl has lost her father.

    The widow has to remain at work, and received a fairly modest wage, but not modest enough to apply for an exemption.

    The fact this poor lady has to find a reprehensible £10,000 court fee is frankly despicable, inappropriate and completely outrageous. If the fee isn’t paid, she cannot bring her claim for dependency. I’d suggest that’s more important than someone’s employment’s rights being curtailed.

    Edited by administrator

    I welcome Lord Reed’s judgment, but feel it is high time now that the MOJ reverse the court fees. I was astonished to read that the MOJ have made a £102 million profit – what price to bar rights like my client though? I’ve had previous clients who have not pursued perfectly valid claims as they have been unable to raise funds.


    • Paul Nicholls.

      Apologies for the delay in releasing your comment.

      I’ve also removed the sentences which were erroneously included in your comment, as per your follow up apology to Charles.


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