Last year’s widely hailed Supreme Court judgment in Unison abolishing employment tribunal fees in the name of access to justice ’turns the rule of law on its head’ a former senior legal adviser to the government says today.
In a paper for a thinktank, Sir Stephen Laws QC, first parliamentary counsel from 2006-12, attacks the Supreme Court for straying into elected politicians' territory. 'The Unison judgment turns the rule of law on its head, transforming it into a test that allows the courts, with the benefit of hindsight, to quash government decisions on the basis not of how they were made but of how they turn out in practice,' Laws writes.
Laws' paper, Second-Guessing Policy Choices, is the latest in a series published by free-market thinktank Policy Exchange's Judicial Power Project, critically scrutinising what it describes as 'judicial overreach'. The paper calls attention to Lord Justice Reed's conclusion in Unison that the illegality of the Ministry of Justice order imposing tribunal fees arose because 'it has the effect of preventing access to justice'.
By ruling on this basis 'the court applied a retrospective test to the fees order which, it was impossible, in practical terms, for the person making the order to have been sure of satisfying when doing so,' Laws states.
Noting that parliament has not provided in primary legislation, as it has in the NHS, for any part of the justice system to be free at the point of use, Laws asks: 'Is it right that a rule for which legislation is required in the case of the National Health Service should be created for employment tribunals by judge-made law alone?'
He concludes: 'The Unison judgment turns the rule of law on its head, transforming it into a test that allows the courts, with the benefit of hindsight, to quash government decisions on the basis not of how they were made but of how they turn out in practice. This is not a sound legal principle for judicial review.'