Dangerous decisions

Once more on Moohan and Unison (no 2).

In my post on the Moohan ruling last year, I criticised the Supreme Court’s application (or rather refusal to apply) a putative common law principle of universal suffrage. My comment was critical of three opinions which dismissed the possibility of applying any such principle, pointing out that they did so for different and unsatisfactory reasons.

The roadblock in the way of asserting common law rights is not political but statutory, even constitutional: the idea of statute law as bedrock runs through all three comments, and its effects are, if possible, even more conservative than outright deference to the executive would have been. The trouble is, common law rights would mean nothing unless they could be asserted against statute. Lord Hodge, to his credit, recognises that there may be situations in which common law rights must be asserted against constitutionally legal decisions, but he defers any such activist role for common law lawyers to a distant and catastrophic future – just as Lady Hale relocates the common law to a distant and almost pre-legal past. From this decision there seems little hope of the common law playing any sort of safeguarding role in the present tense, as ECHR jurisprudence currently does.

As for Unison (no 2), this concerned the justifiability of the imposition of employment tribunal fees, on grounds other than cost saving (after all, if the government stops funding anything it will be able to show a cost saving, at least in the short term). (Strictly speaking, the issue was whether the benefits of the change could outweigh the potentially discriminatory effects of the imposition of fees, given that women are more likely than men to find the fees unaffordable. Half a cheer for sexism: a universal detriment wouldn’t be actionable in this way – or, perhaps, at all.)

The court accepted the Ministry of Justice’s argument that the new fees regime could be justified on the grounds of promoting appropriate behaviour change. I wasn’t convinced:

The argument is that the fees will change some groups of clients’ behaviour: those claimants with conciliable claims will be encouraged to have them conciliated, while those with unmeritorious claims will be deterred from proceeding and will sling their hook. … But the fee regime is, of its nature, imposed on claimants in general. … Perhaps we could justify treating all claimants as no-hope chancers, on the basis that the good claims would stay in the system; perhaps we could justify treating all claimants as mediation clients gone astray, on the grounds that unmediable claims would find their way back to court. We certainly can’t justify treating all claimants as both these things – and, even assuming that both these groups exist in significant numbers, it’s hard to imagine any possible package of incentives which would address these two groups and nobody else.

In fact these aren’t two distinct objectives but one objective with two benefits. Given the lack of any possible mechanism to single out weak or inappropriate claims, and the lack of any evidence as to the prevalence of such claims in the system before the introduction of fees, the Lord Chancellor’s aim must have been – at best – to reduce the number of weak and inappropriate claims by means of an overall reduction in claims. The objective, then, is to divert people out of the system; the benefits are that these two groups, to the extent that they exist, will be dealt with more appropriately.

In short:

By introducing a fee where none existed before, the government has restructured the terms on which people decide whether or not to go to a tribunal, with the express intention of discouraging them from doing so.

In other words, the court allowed itself to be distracted by incidental benefits of the change – and I don’t deny the possibility that it will discourage some unmeritorious claims and some claims which would fare better in mediation – from the overall reality of a straightforward, and fairly overt, attack on citizens’ access to justice.

Why were these decisions unfortunate? (And why do I say ‘unfortunate’ rather than ‘wrong’?) Essentially, I would argue that they both evince a cramped and timid conception of the relationship between the law, the courts and the government of the day. This timidity – in terms of both deference and lack of imagination – would be regrettable at any time. At a time when the government is openly attacking key elements of the rule of law, and doing so with both imagination and boldness, it is dangerous.

Has the election changed matters? Has the replacement of the appalling Grayling by the emollient Mr Gove improved matters? We shall see. But I don’t believe that Gove cares any more than Grayling for the kind of people whose rights tend to be vindicated by European Convention rulings, i.e. those who don’t have the power, wealth or connections to vindicate them any other way; and I certainly don’t believe that Gove is a secret enthusiast for higher public expenditure. The tone is different, but the battle is going to continue. Better – more assertive, more empowering – decisions than these are going to be needed if the rule of law is to retain any meaning at all.

NB According to Charon QC (no less) the Unison case has its second hearing this month (June 2015); I can’t find any more information about it online, so I assume it hasn’t happened yet. I shall hope for the best and fear the worst; at least that way I’ll be covered.

Play us out, Phil:

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