Taking access to justice seriously

The UK Supreme Court is not a constitutional court as exists in some jurisdictions, but it is developing some valuable practical applications of constitutional principles.

“Access to justice” has been a watchword of our Society for some time, but has met with limited success as a lever to influence Government policy. Following the Supreme Court ruling in the employment tribunal fees case, the “constitutional right of access to the courts”, as the judgment terms it, is one to which serious attention must be paid.

The most quoted passage in the judgment is that concerning “the heart of the concept of the rule of law”. After stating that the courts exist to apply and enforce the laws made by the democratically elected and accountable Parliament, it continues: “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... That is why the courts do not merely provide a public service like any other.”

Fees, the court makes clear, may certainly be charged, but on the authorities a Fees Order will be ultra vires if there is a real risk that persons will effectively be prevented from having access to justice.

Further, even where primary legislation authorises an intrusion on the right of access to justice, it is presumed that the degree of intrusion must not be greater than is justified by the objectives the measure is intended to serve.

It was the evidence of the deterrent effect of the fees in question, including their disproportionality to the value of many claims, that proved crucial, and any future challenges founded on this decision will have to be similarly evidence-backed to have a prospect of success.

Nevertheless, the Scottish Government, too, should be sitting up and taking notice. The most recent fee increases in the Scottish courts were designed to accelerate the achievement of the policy of full cost recovery. While ministers insisted that their objective remained an “accessible, affordable” civil justice system, the fees now charged must make some people think twice about litigating.

Where the line should be drawn is not an easy question. But the Supreme Court’s quoting of Lord Chancellor Gardiner, who wrote in 1965: “The courts are for the benefit of all, whether the individual resorts to them or not”, does not sit easily with the statement in last summer’s fees consultation that “those who make use of the services of the courts should meet, or contribute towards, the associated cost to the public purse where they can afford to do so”.