Lüth (BVerfG, 1958): The turning point that established Germany’s fundamental-rights “objective order” doctrine

“Do fundamental rights bind only the state, or do they permeate society as a whole?” — Lüth is the case that delivered a historic answer.

Hello everyone! Today we’re looking at the historic decision often called the “basics of the basics” in German public law, the Lüth decision (1958). This case began when a citizen called for a boycott of a film by director Veit Harlan, who had participated in Nazi propaganda, sparking controversy over defamation and interference with economic freedom. Although it looked like a simple civil dispute, the Federal Constitutional Court (BVerfG) used it to articulate an innovative principle: fundamental rights are not merely defensive rights against the state but an objective value order that exerts effect across society. When I first read this case, I wondered how a boycott dispute could reshape the framework of fundamental rights. But a deeper reading makes it clear why today’s German interpretation of rights is constructed the way it is. In STEP 1, I’ll start with a table of contents to preview the overall structure we’ll cover.

Table of Contents

Case Overview: The boycott call and the start of the dispute Core Issues: Conflict between freedom of expression and private autonomy The Constitutional Court’s Judgment: Declaring the objective value order of fundamental rights Significance: Establishing indirect third-party effect (Drittwirkung) Lüth — Evaluation & critique table Implications for constitutional, civil, and freedom-of-expression practice

Case Overview: The boycott call and the start of the dispute

The Lüth case began when Hamburg’s director of public information (Lüth) urged citizens to boycott screenings of a new film by Veit Harlan, director of the Nazi propaganda film Jud Süß. Because Harlan had created anti-Jewish propaganda during the Nazi era, Lüth regarded his reappearance on the public stage as socially and morally inappropriate. Harlan’s production company argued that the boycott call unlawfully interfered with economic freedom and amounted to improper interference, bringing a civil action; the lower courts accepted this and prohibited Lüth’s conduct. This seemingly simple private dispute became the occasion for the Federal Constitutional Court (BVerfG) to confront the question, “Do fundamental rights structurally influence private-law relations?”—a turning point that completely reoriented German fundamental-rights doctrine.

Core Issues: Conflict between freedom of expression and private autonomy

At the center lay freedom of expression (Basic Law art. 5), but the protection of private autonomy and freedom to conduct a business (Basic Law arts. 12, 2) was also at stake. The lower courts viewed the parties as standing in a “horizontal” private relationship and issued an ordinary civil-law judgment, while the Constitutional Court held that even in this relationship, fundamental rights must operate as an objective value order. The table below structures the key legal conflicts addressed in Lüth.

Issue	Explanation
Scope of freedom of expression	Whether a boycott call is political expression and how the public interest is assessed
Private autonomy and economic freedom	Whether the director/producer’s business activity was unjustifiably impaired
Third-party effect of fundamental rights	How courts should reflect constitutional rights in private-law disputes

The Constitutional Court’s Judgment: Declaring the objective value order of fundamental rights

The Federal Constitutional Court strongly protected freedom of expression and ruled for Lüth. Above all, it clarified that fundamental rights are not merely defensive rights but an objective value order that shapes the entire legal order. This means civil courts must incorporate constitutional values and balancing in their reasoning; while fundamental rights may not apply directly between private parties, they have an indirect, mediating effect (Drittwirkung). Key points emphasized by the Court:

• Freedom of expression is foundational to the democratic public sphere and enjoys a preferential position.
• Fundamental rights function as a value order permeating all areas of law, not only state action.
• Civil adjudication must reflect constitutional balancing and proportionality.

Significance: Establishing indirect third-party effect (Drittwirkung)

The most revolutionary aspect of Lüth is that it reframed fundamental rights not as mere “defensive shields against state power” but as an objective value order guiding society as a whole. The Court held that constitutional values must be reflected even in private disputes, and that courts must not treat conflicts between private autonomy and freedom of expression as a simple clash between equals; instead, they must recalibrate them within the Basic Law’s constitutional value framework. This decision became the foundation of all subsequent German rights interpretation and is widely credited with consolidating the concept of indirect third-party effect (Drittwirkung). Today’s practice across labor, media, and general private law of applying constitutional balancing stems from Lüth.

Lüth — Evaluation & Critique Table

Lüth has overwhelming support for shifting the paradigm of basic-rights interpretation, but there is also a critique that judicial value-balancing can excessively limit private autonomy. The table below summarizes major evaluations and critiques.

Point of praise/critique	Details
Objective value order of fundamental rights	An innovative shift placing all areas of law under constitutional values
Strengthening the preferential status of expression	A broad protective principle for political and social expression
Debate over constraining private autonomy	Concern that constitutional value-balancing intrudes too far into private relations

Implications for constitutional, civil, and freedom-of-expression practice

Lüth is still covered at the beginning of German legal education because of its foundational significance. In all areas managing conflicts between private parties, it requires the “indirect operation” of constitutional values, giving it enormous practical impact. Below are key takeaways practitioners and learners should remember.

• Even in private disputes, courts must interpret and apply the law in light of the constitutional value order.
• Political and social expression is protected especially strongly within the constitutional order.
• Fundamental rights permeate judicial decision-making through indirect (mediated) effect rather than direct horizontal application.

Frequently Asked Questions (FAQ)

Why is the Lüth decision called the starting point of Germany’s fundamental-rights theory?

Because it made the first full-throated declaration that fundamental rights are not just defensive rights but an “objective value order” permeating the whole legal system.

Is the core of Lüth about “direct” third-party effect?

No. The Federal Constitutional Court emphasized indirect third-party effect (Drittwirkung): courts weave constitutional values into private-law reasoning.

Why was the boycott call recognized as protected expression?

Because it addressed matters of public concern and contributed to political and social discourse, rather than being merely commercial speech.

Did this case influence civil law as well?

Yes. It established that courts must consider constitutional balancing when interpreting and applying civil-law norms, shaping German private law broadly.

On what basis did Lüth elevate freedom of expression to a “preferential” status?

Democratic opinion-formation, political debate, and social oversight depend on free expression; the Court highlighted its centrality to the constitutional order.

Is Lüth still cited in contemporary case law?

Very often. The objective value order doctrine remains the starting point for the Federal Constitutional Court and the Federal Court of Justice.

Conclusion: The major footprint Lüth left on modern rights interpretation

Lüth is a decision that elicits admiration each time you read it. Though it looked like a simple boycott dispute, the Court seized the chance to declare that fundamental rights are principles permeating society. I too didn’t grasp its importance at first, but once I learned that civil, administrative, labor, and media law all pivot around this case, its weight became clear. Lüth still serves as a guidepost for interpreting fundamental rights in Germany. When studying conflicts of rights or freedom-of-expression cases, use this case as your anchor—your overall understanding will become much clearer. If you’d like related materials such as Dürig’s value-order theory or the Mephisto case, let me know and I’ll prepare a deeper dive!

HRA: Belmarsh (UKHL, 2004) — Summary of a Landmark Case Where Human Rights Law and National Security Collided

When post-9/11 national security measures directly clashed with the Human Rights Act 1998, on what basis did the House of Lords decide? The Belmarsh case is the key precedent that shows the answer.

Hello! I’m studying the tension points between UK public law—especially the HRA—and national security. Belmarsh (UKHL, 2004) is a case that, every time I read it, makes me seriously reconsider “how far courts will accept national security and how far they will defend human rights.” At first, this case felt complicated because it pits counter-terrorism policy against human rights law, but following the judgment step by step makes the importance of the “limits of rational proportionality” and the “principle of non-discriminatory detention” very clear. Today, per your request to summarize Belmarsh, I’ll keep the essentials crisp while structuring it so the full picture is easy to grasp.

Contents

Background: Post-9/11 Security Policy and Belmarsh Detention Core Legal Issues: Article 5/Article 14 and the HRA House of Lords’ Reasoning: Proportionality Review and Discrimination Assessing the Lawfulness of the UK’s HRA Section 15 Derogation Aftermath: Overhaul of Terror Legislation and Changes in HRA Operation Practice & Study Points: Lessons from Belmarsh

Background: Post-9/11 Security Policy and Belmarsh Detention

The starting point of Belmarsh lies in the UK government’s Anti-terrorism, Crime and Security Act 2001 (ATCSA), introduced after 9/11. This law allowed the indefinite detention of non-UK national terror suspects on the basis of a “specific risk,” and they were held at Belmarsh prison in London. The problem was that this detention did not rest on criminal trial procedures. In other words, people were detained “without charge” and “without trial,” based solely on a risk assessment. Detainess therefore brought proceedings under the Human Rights Act 1998, arguing that “this detention violates Article 5 (liberty) and Article 14 (non-discrimination).”

Key Legal Issues: Article 5 (Liberty), Article 14 (Non-Discrimination), and HRA Section 15 Derogation

Aware that ATCSA detention could violate Article 5 of the European Convention on Human Rights (ECHR),
the UK government invoked HRA Section 15 (derogation) to justify restrictions on liberty during an emergency. Belmarsh boils down to three core issues:

Issue	Explanation
Article 5 (liberty) violation	Indefinite detention without charge or trial → clear restriction of liberty
Article 14 (non-discrimination) violation	Applied to non-nationals only, not UK nationals → discrimination issue
HRA Section 15 derogation	Declaration of public emergency and the requirements of “necessity & proportionality”

House of Lords’ Reasoning: Proportionality Review Coupled with Discrimination Analysis

The Lords accepted that “national security is a compelling public interest,” but found that ATCSA’s detention regime did not meet the proportionality standard. To detain the “truly dangerous,” the UK should have regulated UK nationals in the same way; there was insufficient rational basis to detain only non-nationals indefinitely.

• Proportionality: Were there less intrusive means to achieve the same objective?
• Discrimination: Was there a reasonable basis to detain only non-nationals?
• Necessity of liberty restriction: Mismatch between the declared “public emergency” and the actual measures

Ultimately, the House of Lords held that the ATCSA measures were discriminatory and failed proportionality, and issued a declaration of incompatibility for parts of the legislation.

Assessing the Lawfulness of the UK’s HRA Section 15 Derogation

In Belmarsh, the UK defended ATCSA’s constitutionality by invoking an ECHR Article 5 derogation on grounds of “public emergency.” But the Lords concluded the derogation failed key requirements. The central question was whether the measures were truly proportionate to the emergency.

Review Criterion	House of Lords’ View
Existence of an emergency	National security threat acknowledged
Necessity of the measures	Detaining only non-nationals could not be justified as necessary
Proportionality	Excessive relative to the aim → less intrusive alternatives existed

In short, the Lords found that the derogation itself was unlawful and parts of ATCSA were incompatible with human rights law.

Aftermath: Overhaul of Terror Legislation and Changes in HRA Operation

Following Belmarsh, the UK government reassessed the legal framework. Once it became clear that “indefinite detention without charge” could not satisfy human-rights standards, Parliament enacted the Prevention of Terrorism Act 2005, introducing a system of control orders. These replaced detention with relatively less intrusive restrictions on movement, communication, and so on.

Area Affected	Change
Terror legislation	Indefinite detention → shift to control orders
HRA interpretation	Stricter review under Articles 5 & 14; tighter approach to derogation
Policy design	Weakening of the justification for measures that target “non-nationals only”

Practice & Study Points: Lessons from Belmarsh

Belmarsh is indispensable for anyone studying the HRA. It’s central to understanding how courts proceed when the structure “national security vs human rights” arises.

• Proportionality review applies even in the national-security domain.
• Measures that target only non-nationals carry a very high risk of Article 14 violation.
• Derogation is not automatically accepted even where there is an emergency.
• When restricting rights, exploring “less intrusive alternatives” is essential.

Frequently Asked Questions (FAQ)

Q Why is Belmarsh so important under the HRA?

Because it is a rare case where a liberty restriction (Article 5) justified by national security and discrimination against non-nationals (Article 14) were both at issue. It is assessed as a leading authority reaffirming the reach of human rights law.

Q What made ATCSA problematic?

It allowed non-national terror suspects to be detained indefinitely without charge or trial. This raised a serious liberty issue and a strong possibility of discrimination against non-nationals.

Q Why did the House of Lords find the UK’s derogation unlawful?

While the emergency itself was acknowledged, detaining only non-nationals could not be justified as necessary, and less intrusive alternatives existed. In short, proportionality failed.

Q What message does Belmarsh send for national-security policy?

That “national security” does not automatically justify restrictions on rights. Courts still review measures through the lenses of proportionality and equality.

Q What legal changes followed Belmarsh?

The indefinite detention regime was scrapped and replaced by less intrusive control orders. Since then, terror legislation has been drafted with proportionality constraints in mind.

Q How is this case used for exam prep?

It’s a near-mandatory example for questions on Articles 5 & 14 and derogation. It’s especially useful for explaining “proportionality in national security” and the risks of measures targeting only non-nationals.

Wrap-Up and Summary

Belmarsh (UKHL, 2004) shows most clearly the principles courts seek to uphold when national security collides with human rights. The finding that indefinite detention targeting only non-nationals was neither proportionate nor consistent with equality prompted a complete redesign of the UK’s approach at the time. When I first studied this case, I expected courts to step back in the face of the sweeping rationale of “national security,” but I was struck by how closely they examined necessity and discriminatory effects. Belmarsh set the baseline for subsequent terror legislation and HRA practice, cementing the principle of “less intrusive alternatives.”

If you’d like to dig deeper into Articles 5/14 or the HRA’s scope during public emergencies, say the word. I can also map the follow-on trajectory from control orders to the TPIM framework.

R (Evans) v. Attorney General (UKSC, 2015): The Clash Between Royal Confidentiality and the Principle of Openness

“Right to know vs. royal confidentiality” — the Evans case sat at the center when two traditions of the UK constitution collided head-on.

Hello, everyone! Today we’re looking at one of the most intriguing cases in UK public law, R (Evans) v. Attorney General (2015). This dispute began when Guardian journalist Rob Evans requested disclosure of the then-Prince of Wales’s (now Charles III) letters to government departments — the so-called “black spider memos.” Under the Freedom of Information Act (FOIA) and the Environmental Information Regulations (EIR), disclosure was ordered, but the Attorney General exercised a special veto to overturn that order. Whether that exercise of power was lawful became the core issue. When I first read this case, I wondered, “Can the executive really overturn a court’s decision like that?” The Supreme Court’s conclusion makes very clear where the UK constitution stands on the rule of law and transparency. In STEP 1, here’s the table of contents so you can see the big picture at a glance!

Table of Contents

Case Overview: The start of the dispute over disclosure of the “spider memos” Key Issues: Scope of FOIA’s special veto and the force of court judgments The Supreme Court’s Judgment: Limiting abuse of the executive veto Significance: Re-articulating royal neutrality, transparency, and the rule of law Evans — Evaluation and critique table Practical Implications for public records, royal papers, and administrative review

Case Overview: The start of the dispute over disclosure of the “spider memos”

The Evans case began when Guardian journalist Rob Evans sought disclosure of letters the Prince of Wales sent around 2004–2005 to various government ministers — personal and policy views known as the “black spider memos.” Relying on FOIA and the EIR, the Information Commissioner decided that most of the documents should be disclosed, and the Court of Appeal agreed. However, the Attorney General then exercised FOIA’s “special veto” (the certification power) to overturn the courts’ disclosure order. Whether the executive can effectively neutralise a judicial decision triggered a constitutional debate that reached the Supreme Court.

Key Issues: Scope of FOIA’s special veto and the force of court judgments

The central question was whether the executive could rely on section 53 of FOIA to nullify a judicial decision already ordering disclosure. The Supreme Court acknowledged that the provision exists but examined closely how far it extends and what standards prevent its abuse. The table below structures the core issues addressed in Evans.

Issue	Explanation
Legal limits of the special veto	Can the executive overturn a court’s decision? If so, to what extent?
Rule of law and separation of powers	Is executive nullification of judicial judgments compatible with constitutional principles?
Scope of protecting royal neutrality	How far can the tradition of shielding royal papers prevail over the principle of disclosure?

The Supreme Court’s Judgment: Limiting abuse of the executive veto

By a 5–2 majority, the Supreme Court held that the special veto cannot be used in a way that effectively overturns a court’s determination, ruling in Evans’s favor. The majority stated that to nullify a judicial disclosure order, the executive would need exceptionally compelling, rational, and objective grounds. Key points emphasized by the Court:

• A mere disagreement by the executive with a judicial decision is not a lawful basis to overturn it.
• FOIA’s special veto must be exercised only in truly exceptional circumstances and very narrowly.
• Royal neutrality is a relevant factor, but it cannot override the core principles of the rule of law.

Significance: Re-articulating royal neutrality, transparency, and the rule of law

R (Evans) is not merely a disclosure case; it clarified key constitutional principles — the rule of law, the authority of the judiciary, royal neutrality, and transparency in government records. The Supreme Court criticized the Attorney General’s use of the veto because it effectively nullified a judicial order, reaffirming that “the executive cannot stand above judicial determinations.” It also emphasized that protecting royal neutrality is not an unlimited exception and that the public’s right to know about matters of public interest reflects FOIA’s fundamental spirit. This judgment has significantly influenced policy-making and day-to-day practice surrounding disclosure in the UK.

Evans — Evaluation and Critique Table

Although widely welcomed by scholars and the media, some argue that the judgment unduly narrowed the intended purpose of the veto and the executive’s discretion. The table below summarizes major points of praise and criticism.

Praise/Critique	Details
Strengthening judicial authority	Clarifies that the executive cannot overturn court rulings, protecting separation of powers
Preventing abuse of the veto	Sets strict thresholds for invoking FOIA section 53
Debate over narrowed executive discretion	Some criticize the Court for intruding too far into policy judgments

Practical Implications for public records, royal papers, and administrative review

Evans significantly shifted the long-standing practice of treating royal papers as confidential by default. To protect royal-related documents or other sensitive public records in the future, the executive must show legal grounds and objective necessity — not mere political preference. In FOIA and EIR practice, using a veto to “overturn a court order” has become virtually impossible, and refusals must be justified within a much narrower scope. Here are key practitioner takeaways:

• The government’s special veto should be used only in truly exceptional circumstances.
• Even royal papers can be disclosed where transparency and the rule of law demand it.
• In information-rights reviews and judicial review, Evans remains a leading authority.

Frequently Asked Questions (FAQ)

Why is the Evans case considered so important?

Because it addressed a fundamental constitutional question: can the executive overturn a court’s decision? The Supreme Court safeguarded the rule of law by tightly limiting the veto.

Was FOIA’s special veto (section 53) abolished?

No. But after Evans, it is interpreted so narrowly that, in practice, it is almost never usable.

Are royal papers non-disclosable by default?

Historically they were often withheld, but after Evans, transparency and public interest carry greater weight, and disclosure can follow judicial scrutiny.

How did Evans affect FOIA practice?

The executive’s discretion under section 53 was drastically curtailed, and public authorities must now provide much more rigorous reasons to justify refusal.

Is the case connected to separation of powers?

Very much so. Executive efforts to neutralise judicial decisions undermine separation of powers; the Supreme Court firmly checked that.

Were the “black spider memos” actually disclosed after the ruling?

Yes. Following the Supreme Court’s decision, most of the memos were released, prompting significant public discussion and media coverage.

Conclusion: Evans’s message for a “transparent constitutional order”

R (Evans) v. Attorney General gets more interesting the more you study it. It was never just about whether to disclose royal papers; it asked the foundational question: “Can the executive stand above judicial judgment?” In the end, the Supreme Court sided with transparency and the rule of law, re-affirming the direction of UK public law. Keep this case in mind — it helps you navigate complex themes like information rights, separation of powers, and royal practice. If you’d like related cases to read together (e.g., Privacy International, Miller, Cherry), tell me and I’ll connect the dots!

AXA General Insurance v. HM Advocate (UKSC, 2011) — Limits of the Scottish Parliament’s Legislative Power and the Standard of Judicial Review

If insurers sue the Scottish Parliament itself saying “this is virtually unconstitutional,” how far can the UK Supreme Court put on the brakes?

Hello! I’ve been redrawing my mental map by organizing UK–Scottish public law cases one by one. Among them, AXA General Insurance v. HM Advocate (UKSC, 2011) keeps drawing me back because it squarely tackles a near-constitutional question: “How far can courts tinker with legislation itself by judicial review?” Asbestos damages, the insurance industry, the Scottish Parliament’s legislation, and Human Rights Act/devolution issues all collide at once—so at first glance you might wonder, “Where do I even start?” Rather than studying this like an exam outline, I’ll walk through the points that confused me and step-by-step explain why this case matters.

Contents

Case Background: Asbestos Damages and the Scottish Damages Act Understanding the Scottish Parliament’s Powers and Legislative Context Standard of Judicial Review: “Irrationality” and the Limits on Controlling Legislation Property Rights and Human Rights Act Issues Impact on the Insurance Industry and Shifts in Cost Structures Practice & Study Points: What to Take from AXA

Case Background: Asbestos Damages and the Scottish Damages Act

The starting point of AXA is whether “asbestos-related conditions” are legally compensable. In particular, **pleural plaques** leave physical changes but were long considered to cause little to no symptoms, so UK courts had treated them as “negligible damage” and denied recovery. The Scottish Parliament, however, reached a completely different conclusion. It enacted the **Damages (Asbestos-related Conditions) (Scotland) Act 2009**, declaring that certain asbestos-related conditions, including pleural plaques, constitute compensable “damage.” For insurers, this was a true game-changer, prompting a highly unusual situation where AXA and other major insurers sued the Scottish Parliament directly.

Understanding the Scottish Parliament’s Powers and Legislative Context

To understand AXA, you first need to place the Scottish Parliament in context. Scotland has a devolved legislature with broad powers, but they are strictly constrained by the Scotland Act 1998. The insurers argued that the 2009 Act was legislation that had “overstepped” rational bounds and was “arbitrary legislation” exceeding legitimate intervention.

Issue	Details
Scope of parliamentary powers	Exercised within limits set by the Scotland Act 1998
Purpose of the Damages Act	Protect asbestos victims and widen the legal recognition of “damage”
Insurers’ argument	An “arbitrary” expansion of the concept of legal damage → breaches proportionality/rationality

Standard of Judicial Review: “Irrationality” and the Limits on Controlling Legislation

The most interesting question here was, “How far can courts review Acts of the Scottish Parliament?” AXA argued the law was “irrational,” “arbitrary,” and “disproportionate,” but the Supreme Court set a very high threshold. It emphasized that legislative acts, unlike administrative acts, enjoy an extremely wide margin.

• A legislature possesses democratic legitimacy.
• Courts therefore intervene only where a law is “manifestly unreasonable.”
• Mere policy misjudgment is not justiciable by judicial review.

Property Rights and Human Rights Act Issues

AXA was not just about administrative/legislative control—it also raised whether insurers’ **property rights (Article 1 of Protocol 1, A1P1)** were infringed. Insurers claimed that the Damages Act forced them to pay substantial compensation for losses they previously had no liability for, amounting to a de facto “deprivation of property.” The Supreme Court, however, viewed the Scottish Parliament’s objective as a legitimate public-interest intervention and found the increased burden on insurers **within the bounds of proportionality**.

Issue	Holding
A1P1 property rights violation?	Economic burden alone does not amount to a violation
Legitimate public interest?	Clear public interest in restoring asbestos victims’ rights
Proportionality	Measures not excessive in the circumstances

Accordingly, the Court also rejected the Human Rights Act claims. This decision is often cited to refute a simplistic equation of “higher economic burden = property rights violation.”

Impact on the Insurance Industry and Shifts in Cost Structures

AXA left substantial ripples across the insurance market—especially “unexpected changes in cost structure,” a key practical issue. While the 2009 Act broadened compensable asbestos harms to better protect victims, insurers faced new categories of liability.

Impact Factor	Explanation
Expanded scope of damages	Pleural plaques recognized as legal damage → new liabilities
Premium repricing	Need to reflect long-term risk → upward pressure on premiums
Increase in mass claims	Growth in asbestos-related group actions and claims

Ultimately, AXA is a textbook example of how legislative change can upend insurance risk structures.

Practice & Study Points: What to Take from AXA

AXA addresses the core theme of “judicial review of legislation” and spans public law, insurance law, and human rights law—a rare combination. It’s essential when examining how to evaluate the Scottish Parliament’s powers within the devolution framework.

• Judicial review over legislation is extremely limited.
• An insurer’s increased economic burden is not, by itself, a property rights violation.
• The Scotland Act 1998 framework and the interpretation of devolved legislative competence are central.
• The public-interest aim of protecting asbestos victims underpins the law’s legitimacy.

Frequently Asked Questions (FAQ)

Q Why did insurers sue the “Parliament” directly?

Because the 2009 Act imposed liabilities insurers previously did not bear. Recognizing pleural plaques as damage opened the door to historical claims and massive costs, so insurers challenged the legislation itself via judicial review.

Q Why can courts conduct only “very limited” review of legislation?

Because legislatures derive authority from democratic legitimacy. Unlike administrative bodies, parliaments are directly accountable through elections, so courts intervene only when a law is clearly unreasonable or ultra vires.

Q Why was the A1P1 property rights claim rejected in AXA?

Because increased costs for insurers do not automatically equal “deprivation of property.” The Court found a strong public interest in protecting asbestos victims and deemed the legislative measures not disproportionate.

Q How does AXA describe the constitutional status of the Scottish Parliament?

It recognizes the Scottish Parliament not as a mere local authority but as a democratic institution within the constitutional order—entitled to a broad legislative discretion. This became an important principle in subsequent devolution cases.

Q Why was the 2009 Damages Act criticized as “arbitrary legislation”?

Because it overturned prior case law (notably Rothwell) and treated medically “mostly asymptomatic” pleural plaques as compensable damage. The Supreme Court, however, held that Parliament can reflect new social standards through legislation.

Q How is this case used in UK public law practice going forward?

It’s frequently cited as severely limiting the possibility of judicial review against legislation itself. It underscores that “democratically sanctioned legislative decisions are for the legislator to judge,” setting a key boundary line.

Wrap-Up and Summary

AXA General Insurance v. HM Advocate is one of the clearest UK public law authorities on the judicial review of legislation. It confirms that even laws enacted by a democratically constituted Scottish Parliament can be subjected to judicial review—but on a far narrower and stricter basis than administrative decisions. Studying this case made me reflect on how broadly “legislative rationality” is recognized and how restrained courts must be in intervening. In the end, AXA reaffirmed Scotland’s constitutional status while recalibrating the separation of powers between legislation and adjudication.

If you’re curious about linked devolution cases (e.g., Imperial Tobacco, Salvesen v. Riddell), let me know. Seeing the follow-on line of authority makes the structure even clearer!

R (UNISON) v. Lord Chancellor (UK, 2017): The Landmark Judgment that Safeguarded Access to Justice

“Can access to the courts be limited by money?” The UK Supreme Court left a firm answer to this question.

Hello! Today I’m introducing an essential case for anyone studying administrative or constitutional law: R (UNISON) v. Lord Chancellor (2017). The issue was whether the UK Government’s high fees for using the Employment Tribunal and the Employment Appeal Tribunal were lawful. The trade union UNISON argued that the scheme effectively infringed workers’ access to justice and brought judicial review. When I first read this case, I wondered, “How does a fee policy amount to a fundamental rights violation?” But the Supreme Court’s judgment makes clear that this is a basic question about whether the executive can use economic barriers to block people from exercising their rights. In STEP 1, here’s a table of contents so you can see the entire structure at a glance!

Table of Contents

Case Overview: Introduction of Employment Tribunal fees and background Core Legal Issues: Access to justice and separation of powers The Supreme Court’s Judgment: Declaration of the fees’ unlawfulness Meaning of the Decision: Strengthening the constitutional order and rights protection UNISON: Evaluation and critique table Implications for administrative, labour, and constitutional practice

Case Overview: Introduction of Employment Tribunal fees and background

In 2013, the UK Government introduced a fees regime for the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT), claiming it would reduce abusive litigation and help meet court operating costs. The problem was that the fees were far from modest. Although tiered, some claims exceeded several hundred pounds, effectively blocking access for low-paid workers and those bringing discrimination claims. Statistics showed that claims in the Employment Tribunal fell to less than half of previous levels. UNISON argued that this fee structure “erects economic barriers that prevent the effective exercise of legal rights,” breaching constitutional principles, and the issue ultimately reached the UK Supreme Court.

Core Legal Issues: Access to justice and separation of powers

The key question was whether executive-imposed fees can restrict access to justice. While parliamentary sovereignty is central to the UK constitution, courts must remain open for people to vindicate their rights. UNISON argued that fees were so high that workers with meritorious claims were deterred from bringing them, thereby weakening the courts’ function and disturbing the separation of powers. The table below structures the core issues in this case.

Issue	Explanation
Whether access to justice was infringed	Whether excessive costs made court use practically impossible
Maintenance of separation of powers	Whether executive policy encroached upon the courts’ constitutional function
Equality/non-discrimination	Whether vulnerable groups bore a disproportionate burden

The Supreme Court’s Judgment: Declaration of the fees’ unlawfulness

The Supreme Court found for UNISON, holding that the Employment Tribunal fees regime “restricted access to justice in a way that cuts to the very essence of a constitutional right,” and was therefore unlawful. The Court particularly emphasised:

• Access to the courts is a core element of the rule of law and cannot be curtailed at will by the state.
• The fee increases caused an absolute reduction in users of the courts and were disproportionate to the policy aims.
• A structure that disproportionately harms vulnerable groups cannot be justified.

Meaning of the Decision: Strengthening the constitutional order and rights protection

UNISON is a landmark decision that reaffirmed foundational principles of the UK’s constitutional order, not merely an administrative regulation case. The Supreme Court held that “access to justice is central to democracy and the rule of law, and is itself a constitutional value.” Importantly, even where Parliament has delegated powers to the executive, the courts can control their exercise if they infringe access to the courts, a right of constitutional character. The Court also underlined that blocking workers and vulnerable people from realistically reaching the courts is not a mere fees policy issue but one of substantive equality, thereby tightening the standards for assessing the legitimacy of public policy. Consequently, UNISON stands as the Supreme Court’s formal declaration that access to justice in the UK constitution is not a “formal” right but a “practical and effective” one.

UNISON: Evaluation and critique table

While widely welcomed, UNISON has not ended all debate. Questions remain about the extent of judicial intervention in policymaking. The table below summarises representative points of praise and critique.

Praise/Critique	Details
Strengthened access to justice	Clearly protects access to justice as a constitutional value
Expansion of judicial review over policy discretion	Critique that the judiciary intervened too deeply in executive policy
Protection of vulnerable groups	Highlights the real impact of economic barriers on the exercise of fundamental rights

Implications for administrative, labour, and constitutional practice

UNISON extends well beyond labour cases, affecting all administrative fee regimes, licensing schemes, and gatekeeping mechanisms. In designing public policy, it is now essential to check whether a measure risks restricting “access to justice” or imposes a disproportionate burden on socio-economically disadvantaged groups. Here are key practice takeaways:

• Administrative fees and licensing schemes must be designed not to infringe access to justice.
• Regimes that disproportionately disadvantage socio-economically vulnerable groups may be constitutionally suspect.
• The judiciary can, from a separation-of-powers perspective, check excessive executive limitations on court access.

Frequently Asked Questions (FAQ)

Why is UNISON called a “constitutional” case?

Because the Supreme Court framed access to the courts as inherent to the rule of law and declared it to have constitutional status.

Was the mere existence of fees unconstitutional?

Not simply “having a fee.” The regime was unlawful because the amounts were so high that they effectively blocked access in practice.

On what basis did the Supreme Court recognise access to justice?

The UK constitutional tradition, the rule of law, and the courts’ constitutional function require a practical avenue for people to vindicate rights.

Does this case affect only labour claims?

Not at all. It provides a standard for assessing whether “economic barriers” in any administrative fees or licensing regimes restrict fundamental rights.

Is there criticism that the judiciary interfered too much in policy?

Yes. Some argue UNISON extends judicial review into the policy sphere and could chill executive discretion.

What happened to the fees regime after the judgment?

Immediately after the decision, the Employment Tribunal fees regime was quashed, and fees already paid were set to be refunded.

Conclusion: UNISON’s final message on access to justice

R (UNISON) v. Lord Chancellor was more than the abolition of a policy; it forcefully confirmed that the rule of law exists only if people can use the courts. Every time I revisit this case, the Supreme Court’s clear message resonates: the state cannot control the exercise of rights through litigation costs. In particular, UNISON emphasised that access to justice is not a mere abstract principle or declaratory norm but a right that must be real and effective—leaving crucial implications for today’s administrative, labour, and constitutional practice. I hope this post helped you grasp why this case is so central to the modern UK constitutional framework. If you’d like, I can expand to connected authorities on access to justice (judicial review principles, Leech, Witham, etc.).