Access to justice rules Supreme

8th August 2017

Access to justice rules Supreme

Much has been written in the media about the decision of the Supreme Court last week to axe employment tribunal fees. Commentators have pointed to the importance of the judgement in allowing employees once more to exercise their employment rights. That right had effectively been denied by the imposition of tribunal fees which the employee was required to pay before starting proceedings in the employment tribunal.

There has, though, been less comment about some crucially important paragraphs of the judgement of Lord Reed (with which the other five Supreme Court judges all agreed). The judge used the opportunity given by this case to restate the importance of the rule of law and every citizen’s fundamental right of access to the courts and to justice.

Here are some extracts from Lord Reed’s judgement, which sends the clearest of messages to the government that, if it denies citizens the right of citizens to have ready access to the courts to resolve disputes, it damages the very basis on which our society is constructed.

On the importance of the Rule of Law

The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the “users” who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings.

On the importance of law to a democratic system of government

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 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.

On the importance of maintaining easy access to the courts

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, 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.

On the importance of the body of case law to our system of common law

Every day in the courts and tribunals of this country, the names of people who brought cases in the past live on as shorthand for the legal rules and principles which their cases established. Their cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless.

On the importance of the knowledge that rights can be enforced to both business and society at large

People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations.

As rare as it is for these pages to quote chunks of dry court judgments, just occasionally a case comes along which is of such extraordinary importance that the words, which would otherwise be confined to a dusty tome, deserve to be shouted out to a wider audience. This is one such case. For more than a decade, the government has advocated that the courts only have a value to those who use them (and that the user must pay). Lord Reed, in words a foot high, makes it clear that the courts (and specifically the citizen’s right of access to the courts) are an essential building block in the fabric of society. We tinker with that fabric at our peril.

How can Gotelee help?

Hugh Rowland is a partner at Gotelee Solicitors. He is a member of the national committee of the Criminal Law Solicitors’ Association which strives to ensure that the rights of citizens can continue to be exercised in the magistrates’ courts and in the crown courts up and down the country.

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