R (UNISON) v Lord Chancellor [2017] UKSC 51

The Lord Chancellor made the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 under section 42 of the Tribunals, Courts and Enforcement Act 2007. It required claimants to pay issue and hearing fees totalling £390 for Type A claims and £1,200 for Type B claims, with a separate fee structure for appeals. A remission scheme offered limited relief. After the Order took effect, tribunal claims fell by about 66 to 70 per cent. The trade union UNISON challenged the scheme, arguing that fees made enforcement of statutory employment rights unaffordable or economically irrational, frustrated the legislation creating those rights, and discriminated against groups bringing Type B claims.

Were the fees ultra vires because their level effectively denied access to tribunals and frustrated the statutory rights Parliament had created?

The Supreme Court unanimously allowed UNISON's appeal and quashed the Fees Order. Access to courts and tribunals is a constitutional right inherent in the rule of law because statutory rights are ineffective unless people can enforce them. Fees are lawful in principle, but delegated legislation is ultra vires if there is a real risk that people will effectively be prevented from obtaining justice, or if the intrusion is greater than reasonably justified. The evidence showed that the fees were unaffordable for some households and made many low-value or non-monetary claims irrational to pursue. The Lord Chancellor had not demonstrated that the scheme's objectives justified these effects. The Order was unlawful from the outset under domestic law and, for EU-derived rights, EU law.

Legislation conferring a power to set court or tribunal fees is presumed not to authorise measures which effectively prevent access to justice. Any interference must be reasonably justified and must preserve practical access, not merely theoretical affordability. Delegated legislation inconsistent with that constitutional requirement is ultra vires and void.

The decision is a leading modern affirmation that access to justice is fundamental to the rule of law and benefits society, not only individual litigants. It demonstrates how common-law constitutional principles control broadly worded delegated powers and require attention to practical evidence. The judgment also rejects affordability as the sole measure: a fee can obstruct access where pursuing a small claim becomes economically irrational. Its reasoning has broad relevance to tribunal design, executive fee-setting and judicial review of measures that impede enforcement of statutory rights.