The Supreme Court’s judgment in R (UNISON) v Lord Chancellor [2017] UKSC 51 (’the UNISON case’) has been widely hailed as a victory for access to justice and the rule of law. In a new paper for Policy Exchange’s Judicial Power Project, I argue that on the contrary the judgment undercuts the rule of law and wrongly takes over a policy question that was not for the court to decide.

The case involved a challenge to the imposition of fees for bringing proceedings in employment tribunals, or for advancing them to a hearing. The fees were fixed by an order made by under an act of parliament by statutory instrument given the affirmative approval of both houses.

The Supreme Court decided that the fees order was unlawful and void. Lord Reed’s judgment, with which all the other judges agreed, reasoned that the practical effect of the fees was to obstruct access to justice for claimants. The rule of law required it to be inferred that parliament could not have intended that.

The test that applied for deciding whether the order diverged from parliament’s intentions was a retrospective, strict liability, test. It was based on evidence of the effect of the order since it had been made. Evidence showed that the introduction of the fees had produced a larger than expected reduction in tribunal applications. It was inferred that persons who found the fees unaffordable had been, or would be, deterred from bringing or continuing proceedings to enforce their rights.

This, quite expressly, is not a decision about a defect in the process of making the order. It is a case asserting the right of the courts to second guess the policy, after its implementation, with the benefit of hindsight.

The practical effect of the court’s decision was that the fees held to have been unlawfully levied had to be repaid. In practice, a sum running to tens of millions of pounds is set to be disbursed in windfall repayments to people who had not, in the Supreme Court’s terms, been denied any access to justice. Anyone who had been deterred from bringing a claim has no entitlement to a repayment. Instead, the principal beneficiaries of the repayment scheme are unsuccessful claimants, their trade unions and unsuccessful defendants. 

The Supreme Court’s reasoning failed to appreciate the fundamental nature of policy-making and its legislative implementation. There is always an inherent element of unpredictability about whether legislation will achieve its intended effects without creating unacceptable adverse consequences. It makes no practical sense for it to be unlawful to risk unexpected consequences when implementing policy with legislation.

The rule of law requires that those to whom the law applies should not be subjected to obligations which make it impossible to predict what conduct of theirs will be lawful. Nor should the law impose requirements with which it is impossible to comply. Those principles should apply also to rules created by the courts for the making of legislation.

The UNISON case contravenes the first of these principles because it fails to provide any clarity or predictability for the legislator about how the power conferred by parliament could lawfully have been exercised to accommodate the risk of unexpected adverse effects. And parliament must have intended the power to be exercisable somehow.

The judgment also fails the second test – in theory as well as in practice. The Supreme Court accepted that the power to fix fees could legitimately be used to incentivise the earlier settlement of disputes. That was within the intention of parliament. Nevertheless, achieving that purpose is made logically impossible. You cannot incentivise an earlier settlement without disincentivising either the bringing or the continuation of proceedings in the same case. They are different sides of the same coin.

Underlying the Supreme Court’s judgment is a common, but serious, misconception about parliament’s role in our constitution. Parliament has a very important role in relation to legislation, but so too does government, which has the initiative – as well as a veto power equivalent to that exercisable by the Houses of Parliament.

Parliament’s role in relation to primary legislation and its influence over it is significant and dominant. But the discharge of that role is only one aspect of its wider role of scrutinising government policy proposals, and of calling the government to account for the effects of implementing them. In the case of the fees order, that is something parliament was doing via the Justice Select Committee. That process, however, was rendered futile by the Supreme Court judgment.

When parliament legislates, it is typically doing so to give constitutional validity to specific proposals from government, rather than, as Lord Reed suggests, to set up, in a relatively abstract way, the broad parameters of the overall system within which all future activity by a separate executive should be carried out. Legislation needs to be construed accordingly.

One important aspect of this is that it is a mistake to draw an artificial distinction between parliament’s role in relation to primary legislation and its role in relation to secondary legislation (such as the fees order). Parliament has both formal and informal supervisory powers over secondary legislation, and in practice as much influence as it chooses. And it is not for the courts to question how its choices are exercised.

Sir Stephen Laws KCB, QC (Hon) was first parliamentary counsel from 2006-2012; this article is based on his remarks at a panel discussion of the UNISON case held at Policy Exchange this week.