The Ministry of Justice has begun refunding Employment Tribunal (ET) fees. As most will know, the Supreme Court ruled in July that their introduction was unlawful – and that the constitutional right of access to the courts, essential to the rule of law and guaranteed by Magna Carta, was breached by the fees order.
The government doubtless regrets having to part with £32m following the undertaking it gave to the High Court on 29 July 2013 – the day ET fees were introduced – to refund fees if they were found to be unlawful.
Ministers have also promised to reinstate 7,000 claims that were struck out in cases where claimants could not afford the fee, and, presumably, were not eligible for the Ministry of Justice’s ‘help with fees’ scheme. That scheme provided partial or full support to 18% of claimants and not the 53% of claimants promised at the outset.
With statistics for the third quarter due this month, we know anecdotally that claims have increased. But we also know that: claims are being listed a year from now in some cases; only 35% of successful claimants get their compensation paid; and tribunals are creaking under the strain of resource cuts.
Administrative staff numbers have been slashed, retired judges have not been replaced and part-time judges have been allocated to the First-Tier Tribunals. The government knows access to justice will continue to be affected unless it commits to a programme of recruitment and enforcement of claims.
We believe Unison’s fees decision will survive Brexit and any future proposals to repeal the Human Rights Act, because it was framed in common law terms. But what employment rights will we lose or keep when the UK exits the EU?
The secretary of state for exiting the EU, David Davis, pledged in July 2016 that employment legislation would not be repealed post-Brexit. But that was an easy promise to give when the practical impact of the legal rights guaranteed to workers by EU law (as well as by domestic law) had diminished following the introduction of fees.
Once the European Communities Act 1972 is repealed, how will direct EU legislation and EU-derived domestic legislation survive? The enforceability of almost all the EU rights in question depends expressly on the UK being a member of the EU – on having common EU institutions or procedures, or regimes of mutual cooperation or mutual recognition.
What also of the interpretative obligation (the Marleasing principle, following the 1990 ECJ case) which requires UK courts to interpret national laws ‘in the light of the wording and purpose of a directive’?
UK courts can currently read words into legislation where it is presumed that parliament intended compliance with the relevant directive. For example, the Court of Appeal was explicit that domestic techniques alone could not have achieved the result in Lock v British Gas, where the ECJ reinterpreted the Working Time Regulations 1998 to ensure commission was included in holiday pay in accordance with the parent directive.
While not bound by any principle or decision made by the ECJ after Brexit, clause 6 of the European Union (Withdrawal) Bill requires that UK judges continue to interpret domestic law so far as is possible in line with ECJ jurisprudence. Former Supreme Court president Neuberger LJ has warned this will mean that judges rather than parliament will end up examining a range of policy issues, which are traditionally parliament’s domain.
We are told that where there are deficiencies post-Brexit, ‘Henry VIII’ powers in clause 7 will allow domestic legislation to be amended by way of secondary legislation to ‘prevent, remedy or mitigate’ any failure or other deficiency of retained EU law post-Brexit.
Nevertheless, Unison’s court fees decision made clear that statutory rights established by parliament cannot be undermined by secondary legislation with minimal parliamentary scrutiny.
Shantha David is an in-house lawyer with Unison Legal Services