tribunal fees: what’s happening?
This paper is intended to accompany my talk to the Scottish Discrimination Law Association annual conference on 23 October 2014 "A Level Playing Field: Discrimination Law in 2014".
This first part deals with the three judicial review petitions attacking the new fees regime, and is intended to give background to the nature of the legal challenges made. It has four sections: (1) the background to judicial review in Scotland and England; (2) a chronology of the two applications; (3) the grounds of challenge in law to the introduction of fees; (4) some possible futures. I also make available links (may not work from pdf distributed) to a number of documents in both litigations, not all in the public domain, such as my written note of argument for the petitioner in the Fox judicial review. This paper (with working links) will be published online at http://www.jonathanmitchell.info/uploads/SDLA-EHRCtribunalfees231014.htm .
The second part, also to be published online at http://www.jonathanmitchell.info/uploads/SDLA-EHRCtribunalfeespart2-231014.htm, will consider what is happening on the ground: the drop in applications brought and other possible factors such as early conciliation; the possible move of cases into the sheriff court; changes in how cases are conducted.
the background to judicial review in Scotland and England
The introduction of fees in the employment tribunals and the EAT was a Britain-wide measure, made by the UK government by statutory instrument. The UK is a state made up of three legal jurisdictions: England and Wales; Scotland; and Northern Ireland. The acts of its government can be challenged by judicial review in any one of those three jurisdictions; none has superiority over the others. Thus, in general, any act of the United Kingdom government may be challenged as unlawful in the supreme courts of any one of these three countries. There is provision, in exceptional cases, for the courts of any one of the three to decline to hear such a challenge on the view that the case should be heard in another, usually because it is only concerned with that country; this is the principle of forum conveniens.
In this case, the introduction of fees affected only Great Britain, so had nothing to do with Northern Ireland; it could be challenged in the Court of Session in Scotland or the High Court in England. A challenge in either, if successful, would have the identical result: a striking down of the fees regulations in whole or in part throughout Britain. If the challenge succeeded in one country but not the other, the regulations would still be struck down Britain-wide; if the Edinburgh and London courts differed in this way, no doubt the matter would end up in the United Kingdom Supreme Court.
The substantive law of judicial review is generally identical in the two countries; but it may bite differently so that the challenge is better in one than the other. In the current case, in two challenges (‘equivalence’ and ‘effectiveness’, see below) the evidence was far stronger in Scotland than in England. Practice, procedure and style of the courts is different (for example, as these cases may suggest, it is generally slower and more expensive to go to court in England than in Scotland).
With this background, a well-informed claimant should consider which court offers better prospects and bring their claim in that court. Claimants in practice, of course, often have lack of knowledge of the choice, and an instinctive preference for courts of their own nationality; but the choice exists and should be made. In this case, the better choice appeared to be Scotland; that is why Fox & Partners, the employment law firm which brought this judicial review, was advised to do so in Scotland (notwithstanding a hopeless claim by HMG that it had no right to do so). It is understood that Unison did not give consideration to this question.
CHRONOLOGY OF THE THREE APPLICATIONS FOR JUDICIAL REVIEW
6 April 2012 Consultation on introduction of fees ends
24 April 2013 Draft regulations laid before Parliament (Westminster)
June 2013 Unison send warning of proceedings (necessary in England, not in Scotland)
28 June 2013 Unison present application to English High Court; Statement of Facts and Grounds here.
1 July 2013 Fox present petition to Court of Session
4 July 2013 First hearing of Fox petition, set down for full hearing in the following week
9-11 July 2013 Substantive hearing of Fox petition, resulting in HMG seeking more time to answer; hearing on interim interdict; court holds that Fox have prima facie case, but refuses interim interdict on balance of convenience after undertaking given by HMG; awards expenses punitively against HMG for time-wasting. The decision is here. I have also uploaded the petition; HMG Answers and note of argument; and the EHRC note of argument.
23 July 2013 English High Court (apparently unaware of Fox petition) refuse Unison permission to bring case as says no prima facie case
29 July 2013 The Regulations come into force. On the same day, English High Court (now aware of Fox petition) allow Unison permission to bring case, hearing to be arranged for October. The decision is here.
26 September 2013 Procedural hearing in Fox petition; court decides that as Unison hearing now imminent, should not proceed meantime; sisted to January. Press release here .
22-23 October 2013 Hearing of Unison petition (with EHRC as interveners)
10 January 2014 Fox case sisted to 10 April to await decision in Unison
7 February 2014 Unison lose case; no reference to Scottish proceedings (?). The decision is here.
11 March 2014 Amending regulations to come into force 5 April; these increase fees in equal pay cases to Type B
24 March 2014 Unison refused permission to appeal in English court; told they should bring fresh application instead
8 April 2014 Fox case sisted further to await what happens in Unison
1 May 2014 Unison granted permission to appeal after all (grounds of appeal here) and to lead fresh evidence
2 June 2014 Lord Chancellor applies to reverse permission to lead fresh evidence
18 September 2014 Unison appeal heard in Court of Appeal; Unison agrees to have appeal stayed and bringing a fresh application (Unison comment)
21-22 October 2014 Hearing set for Unison second application for judicial review. The EHRC is also intervening.
the grounds of challenge in law to the introduction of fees
The grounds of judicial review are in general the same in England and Scotland. In both cases, the attacks were, put shortly, these (see my petition and Note of Argument, and the Unison Statement, for fuller accounts):
On ‘equivalence’, Unison made the comparison with English court fees which are far higher than Scottish court fees, and compared the remission scheme with that in the English courts which is far less generous than that in Scottish courts, as is the availability of civil legal aid.
On ‘effectiveness’, Unison in its first petition based its argument primarily on a statistical analysis of the fall in ET applications to September 2013, while its second petition apparently uses statistics to June 2014; Fox however based it primarily on quasi-expert predictive evidence, particularly the impressive (and unanimous) analysis from the Scottish Employment Tribunal judiciary, but also the entire body of judicial responses to the consultation which I had obtained by an FOI request.
SOME POSSIBLE FUTURES
JONATHAN MITCHELL QC
10 October 2014