The Supreme Court and the Rule of Law

‘Have you read the Supreme Court judgment on employment tribunal fees?’ asked Tim over dinner.  ‘It’s great – it talks about the rule of law and why people must bring cases.’  Of course, being a leading QC, he may be biased, but it is jolly good reading.  I shall quote at length from it; .

A few years ago, in a storm of measures to cut the costs of justice, the Minister of Injustice imposed fees on employment tribunals.  That meant that if you wanted to sue your employer, you would have to cough up huge legal fees, whereas before you could get legal aid.  The number of employment cases plummeted, such that employment barristers feared for their jobs.  But in July the Supreme Court ruled that this went against the ECHR:  access to justice is a fundamental civil right; fees restricted access to justice.  So now the government has backed down and will charge fees no longer.

The SC said:  “The constitutional right of access to the courts is inherent in the rule of law. The importance of the rule of law is not always understood…

“At  the  heart  of  the  concept  of  the  rule  of  law  is  the  idea  that  society  is governed by law. Parliament exists primarily in order to make laws for society in this  country.  Democratic procedures  exist  primarily  in  order  to  ensure  that  the Parliament  which  makes  those  laws  includes Members  of  Parliament  who  are chosen by the people  of this country and are accountable  to them.  Courts exist in order to ensure that to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access  to  them.  Without  such  access,  laws  are  liable  to  become  a  dead  letter,  the work done by Parliament may be rendered nugatory [worthless], and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.”

Wow!  Stick that in your exam.

The SC said that a) the results of employment tribunals would not necessarily just affect the people directly involved in the case, but could have an impact on wider society; b) people needed to know that they could seek remedy in courts, because that is fundamental to how our society functions.

Lord Reed continues:

“A Lord Chancellor of a previous generation put the point in a nutshell, in a letter to the Treasury:

‘(i) Justice  in  this  country  is  something  in  which  all  the Queen’s subjects have an interest, whether  it  be  criminal  or civil.
(ii) The  courts  are  for  the  benefit  of  all,  whether  the individual resorts to them or not.
(iii) In the case of the civil courts the citizen benefits from the  interpretation  of  the  law  by  the  Judges  and  from  the resolution  of disputes,  whether  between  the  state  and  the individual or between individuals.’
(a letter written by Lord Gardiner in 1965)

“In English law, the right of access to the courts has long been recognised. The central idea is expressed in chapter 40 of the Magna Carta of 1215 (“Nulli vendemus, nulli negabimus aut differemus rectum aut justiciam”), which remains on the statute book in the closing words of chapter 29 of the version issued by Edward I in 1297: ‘We will sell to no man, we will not deny or defer to any man either Justice or Right.'”

And he then quotes Sir Edward Coke (Institutes of the Laws of England, 1642) –

“‘Hereby it appeareth, that Justice must have  three  qualities,  it  must  be Libera, quia  nihil  iniquius venali  Justitia;  Plena,  quia  Justitia  non  debet  claudicare;  & Celeris,  quia  dilatio  est  quaedam  negatio [Free,  because nothing is  more iniquitous than saleable justice; full, because justice ought not to limp; and speedy, because delay is in effect a denial]; and then it is both Justice and Right.’

“More than a century later, Blackstone cited Coke in his Commentaries on the Laws of England (1765-1769), and stated:  “A… right of every [man] is that of applying to the courts of justice for redress of injuries. Since the law is in England the supreme  arbiter  of  every  man’s  life,  liberty,  and  property, courts of justice  must  at all times be open to the subject, and the law be duly administered therein.'”

Fees, if imposed, must be affordable to all:  these were not, and therefore they were unlawful.

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