The Price of a Right
Article by Ayman Fouad Abdelgawad
R (UNISON) v Lord Chancellor
A right can disappear without anyone formally repealing it. The words remain in legislation, the institution remains open, and the person entitled to protection discovers that using it costs more than they can reasonably bear. That quiet form of exclusion is the problem at the heart of UNISON.
The dispute
UNISON challenged the fees introduced for employment tribunal proceedings in 2013. The evidence showed a sharp fall in claims. The dispute concerned whether the Lord Chancellor's statutory power to charge fees authorised a scheme that obstructed enforcement of the employment rights Parliament had created.
The court’s reasoning
Lord Reed explained that access to courts serves the whole community: enforceable law shapes conduct even when no claim is brought. Affordability had to be assessed in real life, including the possibility that a modest claim would become economically pointless. The Supreme Court quashed the Fees Order as unlawful from the outset. This was a decision about that scheme's effects, not a ruling that every court fee is necessarily unlawful.
Personal reflection
I find the judgment remarkable because it challenges a familiar accounting habit. An institution can make its own balance sheet look healthier by moving costs onto people who are least able to carry them. The saving then appears as administrative success, while the abandoned claim disappears from view. Counting transactions alone tells us very little about whether justice has been served.
There is also a limit to celebrating the removal of a fee. Time, confidence, advice, and the prospect of enforcing an award can remain formidable barriers. My reading is that the case offers a demanding way to assess institutions beyond its immediate result: ask what a person must actually be able to do before the promised protection becomes usable.
The uncomfortable question is whether we judge a system by its published commitments or by the experience of someone trying to invoke them. A right deserves more than a place in a document. It needs a practicable route from recognition to remedy.
Reading the decision
These are historical readings of the named judgments, with separate personal commentary. They do not survey every later decision or legislative change and are not advice for an individual case.
The cited sources distinguish the judgment from any official press summary; the judgment is the authoritative account.