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
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)
Because the Supreme Court framed access to the courts as inherent to the rule of law and declared it to have constitutional status.
Not simply “having a fee.” The regime was unlawful because the amounts were so high that they effectively blocked access in practice.
The UK constitutional tradition, the rule of law, and the courts’ constitutional function require a practical avenue for people to vindicate rights.
Not at all. It provides a standard for assessing whether “economic barriers” in any administrative fees or licensing regimes restrict fundamental rights.
Yes. Some argue UNISON extends judicial review into the policy sphere and could chill executive discretion.
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.).
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