Court 72 in the Royal Courts of Justice – where earlier this week three Court of Appeal judges spent two days hearing Unison’s appeal against the High Court’s dismissal of its two applications for judicial review of ET fees – is one of the more modern courtrooms to be found in the laughably camp, Gothic Revival edifice that sits on the Strand. Not quite a 21st century courtroom, perhaps, but certainly more 1960s than 1860s. And, to this lay observer, the appeal judges’ scrutiny of the appellant and respondent’s by now well-rehearsed arguments was a tad more modern than that offered by the reputedly clever but oh-so-out-of-touch-with-2015-reality Elias LJ in the High Court last October.
On Tuesday, when Karon Monaghan QC of Matrix Chambers presented Unison’s five grounds of appeal, all three judges had asked challenging questions that, to my mind, indicated a genuine desire to understand the real nature and impact of the fees regime. But things got a little more interesting on Wednesday, when David Barr QC of Temple Garden Chambers rose to present his defence of The Devil [Shurely ‘the Lord Chancellor’? Ed].
I think it’s fair to say that Mr Barr is not one of the Bar’s most flamboyant QCs, but it often sounded to me as if even he wasn’t convinced by the arguments that he frequently struggled to locate in the voluminous bundle. In the High Court, Susan Chan had at least sounded as if she believed the garbage spewing from her mouth. The three judges – Moore-Bick LJ, Davis LJ and Underhill LJ – certainly didn’t look terribly impressed, and the tone of their questioning became ever more mocking and disbelieving. Indeed, if these things were decided on the body language and facial expressions of the judges, then I’d say Unison have their appeal in the bag.
During a lengthy and turgid section on the Public Sector Equality Duty, Mr Barr seemed to be trying to bore the judges into submission, prompting Underhill LJ to swivel maniacally in his chair with the look of someone who’s just got a whiff of the dog poo on their shoe. But it was Mr Barr’s attempted defence of the appeal ground of ‘effectiveness’ that elicited the most mocking responses from the bench.
At one point, a clearly bemused Moore-Bick LJ asked Mr Barr what the ‘problem’ was that the fees were “trying to address”. And – seemingly forgetting the official Ministry line and, indeed, his own assertion that the aim of the fees was “not to deter claimants” – Mr Barr blurted out:
The problem was that there were increasing numbers of [ET] claims and the existing model was unsustainable.
As previously explained on this blog, this is claptrap and bunkum. Leaving aside the (admittedly many) claimants in a relatively small number of multiple claimant cases – as both Ms Chan and Mr Barr asserted we (and the judges) should do when analysing the massive drop in claims since July 2013 – the number of claims/cases was in fact falling towards a record low by 2011, long before the fees came into force. But it’s also at variance with the publicly stated objectives for the fees regime of ministers, as confirmed by the recent announcement of the long-promised review.
According to that announcement, the original objectives were:
- to transfer some of the cost from the taxpayer to those who use the service, where they can afford to do so;
- to encourage the use of alternative dispute resolution services, for example, Acas conciliation; and
- to improve the efficiency and effectiveness of the tribunal.
Nothing about dealing with an “unsustainable” increase in claim numbers there. Indeed, the second and third objectives are just flannel, as would-be ET claimants need no encouragement from fees to use the mandatory early conciliation services of Acas, and there is simply no way fees could by themselves “improve the efficiency and effectiveness” of the tribunal system – other than by deterring two-thirds of the annual caseload (which, as already noted above, Mr Barr assured the judges was not the aim of the fees). As for transferring some of the cost to the taxpayer, in 2014-15 the Ministry’s net income from fees (after allowing for remission and administration costs) was a mere £4.3 million.
However, the evidently confused Mr Barr isn’t the first to let the cat out of the bag. For it was none less than the then Lord Chancellor, Chris Grayling – reputedly not the sharpest pencil in the box either – who revealed to the Yorkshire Post in November last year that, by introducing fees, the Coalition government was “trying to deal with a situation where it was too easy to go to a tribunal and where employers, often good employers, were easy prey for questionable claims”.
In short, despite Mr Barr’s polished assurance to the contrary, the aim was to deter claimants. In the High Court, Moses LJ, Elias LJ, Irwin J and Foskett J all failed to see this, even as unrepentant Tory ministers such as Matt Hancock were claiming ‘success’ for the fees on this very basis. And, indisputably, the officially unstated aim has been achieved, with knobs on. But as to whether any of this means the fantabulous Unison legal team will be downing celebratory drinks a month or two from now, I have learnt to my cost to reserve judgment.