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JUDICIAL REVIEW OF THE INTRODUCTION OF EMPLOYMENT TRIBUNAL FEES This paper is intended to accompany my short talk to the Strathclyde University seminar ‘Employment Tribunal Fees: Evidencing the Impact’ on 9 May 2014 entitled ‘The Fox & Partners Judicial Review’. 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 present the text of the written note of argument for the petitioner in the Fox judicial review; this, with other documents, I am making available electronically. This paper (with links) is at http://www.jonathanmitchell.info/uploads/FoxJRpetitiontalk090514.htm . THE BACKGROUND TO JUDICIAL REVIEW IN SCOTLAND AND ENGLAND The introduction of fees in the employment tribunals and 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.

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The substantive law of judicial review is 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). CHRONOLOGY OF THE TWO 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 1 July 2013 Fox present petition to Court of Session 4 July 2013 First hearing of Fox petition, set down for full hearing 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.

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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. 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 8 April 2014 Fox case sisted to 8 July to await what happens in Unison 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 Note of Argument, below, and the Unison decision, for fuller descriptions):

• ‘equivalence’; fees disproportionate to fees for comparable claims in the Sheriff Court (petition, para. 11 and note of argument, para. 9)

• ‘effectiveness’; fees charged made equal pay and discrimination claims excessively difficult (petition, para. 12 and note of argument, para. 9);

• indirect discrimination without adequate justification (petition, para. 13 and note of argument, para. 27); and

• breach of the public sector equality duty (petition, para. 14 and note of argument, para. 32).

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.

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On ‘effectiveness’, Unison based its argument primarily on a statistical analysis of the fall in ET applications; Fox however based it primarily on quasi-expert predictive evidence, not only 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 The litigations:

• Unison are understood to be making a fresh application to the English Court of Appeal to be allowed to appeal against the decision of 7 February; (according to the English High Court, this is likely to be a year on)

• They are also understood to be making a parallel application to the English High Court on the basis of up to date statistical evidence, as suggested in that decision;

• The Fox petition is stayed, but could be speedily reactivated at any time, most obviously if Unison (which has the right to join the petition) or the EHRC (which is already in the process) decided to use it as a better vehicle for challenge than the English applications;

• There might be fresh applications, most obviously by individuals who were financially unable to bring an equal pay or discrimination claim which is now time-barred.

The politics:

• If there is a Yes vote, the ETS in Scotland will be absorbed into the Scottish Courts and tribunal service and is likely to follow its fees policy;

• If there is a No vote but Labour wins the next Westminster election, its commitment is also to devolve the ETS in Scotland, thus again presumably a Scottish fees policy;

• If otherwise… JONATHAN MITCHELL QC http://amadvocates.co.uk/advocate/jonathan-mitchell/ 2 May 2014