By Alison L Young 
Sir David Williams Professor of Public Law, University of Cambridge

In this case, the Supreme Court was asked to interpret legislation granting the Lord Chancellor a broad power to enact regulations setting fees for tribunals. The Court concluded that Parliament would not have wanted a general power to be used to undermine fundamental principles of the common law.

One of those principles is the right of individuals to go to court to protect their rights. The fees were set at such a level that it made it practically impossible for many to get to an Employment Appeal Tribunal to protect their employment rights. This was particularly the case given how little you would have to earn to not pay the fees and the small amounts of money often awarded to those who won their case in the Employment Appeal Tribunal. 

The case is criticised by some as the courts used common law principles to interpret legislation in a way that was not intended by Parliament. They argue that Parliament clearly gave a general power to the Lord Chancellor. So this meant there were no limits on the power to set fees. Yet the court set a limit – the fees could not undermine the right of access to the courts. They also argue that this makes the law unclear. How do we know what the law is if the courts can re-interpret it in this way? 

Those in favour of the case argue that courts should protect fundamental rights in this way. They also argue that interpreting legislation in this way does not contradict the will of Parliament. Surely Parliament would not want to undermine fundamental rights accidentally? Parliament can enact legislation to remove rights, but it must do so using clear and specific words. Then we can be sure that this is what Parliament really did intend – not that it is removing rights accidentally.

Whilst this may create some uncertainty, this is a small price to pay to ensure that long-standing fundamental rights are not accidentally eroded by Parliament. Parliament may not be aware of these rights or realise that their legislation challenges these rights. Courts are more able to recognise these rights and see when they have been eroded.

We should let courts perform this checking function if we are to have the right balance between parliamentary sovereignty and the rule of law. This does not prevent Parliament from changing rights, or removing them, provided that they do so clearly and specifically so that they can be accountable to the electorate for this decision.