The Lord Chancellor had no power under existing legislation to prescribe court fees in such a way as to deprive a citizen of his constitutional right of access to the courts.
The Queen's Bench Divisional Court granted an application by John Witham for judicial review against the Lord Chancellor, Lord Mackay of Clashfern, and declared article 3 of the Supreme Court Fees (Amendment) Order 1996 (SI 3191), which came into force on 15 January 1997, to be ultra vires and unlawful in so far as its effect was to deny the applicant his constitutional right of access to the court.
The applicant, who was on income support, wished to bring proceedings in person for defamation, for which legal aid is not available. The 1996 Order increased to pounds 120 the fee for issuing a writ for claims less than pounds 10,000 and to pounds 500 for claims without a monetary limit. There was no exemption for litigants, such as the applicant, who could not afford the fees.
Article 3 of the 1996 Order repealed provisions in article 5(1) and (3) of the Supreme Court Fees Order 1980 (SI 821) which had relieved litigants in person who were in receipt of income support from the obligation to pay fees and had permitted the Lord Chancellor to reduce or remit the fee in exceptional circumstances on the ground of undue financial hardship.
Peter Duffy (Bindman & Partners) for the applicant; Stephen Richards (Treasury Solicitor) for the Lord Chancellor.
Mr Justice Laws said it was clear that, as a result of the new regime, there was a wide variety of situations in which persons on very low incomes were in practice denied access to the courts to prosecute claims or, in some cases, to resist the effects of claims against them.
The actual or purported vires for the 1996 Order was in section 130 of the Supreme Court Act 1981. But, it was argued, that did not permit the Lord Chancellor to exercise his power to prescribe court fees in such a way as to deprive the citizen of his constitutional right of access to the courts. Such a constitutional right was said to derive from the common law and article 6 of the European Convention on Human Rights.
The common law did not generally speak in the language of constitutional rights. In the unwritten legal order of the British state, at a time when common law continued to accord a legislative supremacy to Parliament, a constitutional right could, in his Lordship's judgment, only inhere in the following proposition: that the right in question could not be abrogated by the state save by specific provision in an Act of Parliament, or by regulations whose vires in main legislation specifically conferred the power to abrogate.
General words would not suffice and any such rights would be creatures of the common law, since their existence would not be the consequence of the democratic political process but would be logically prior to it.
The common law provided no lesser protection of the right of access to the courts than might be vindicated by the European Court of Human Rights in Strasbourg. The House of Lords had held the same to be true in relation to the right of freedom of expression, and the right of access to justice could not be thought a lesser right than that. Indeed, the right to a fair trial, which of necessity imported the right of access to the court, was as near to an absolute right as any which could be envisaged.
To abrogate that right Parliament had to make it plain beyond doubt to the reader of a statute that the provision in question prevented him from going to court, for that was what would be required. Section 130 contained nothing to alert the reader to such a possibility.
In his Lordship's judgment, the effect of the 1996 Order was to bar absolutely many persons from seeking justice from the courts. Access to the courts was a constitutional right: it could only be denied by the government if it persuaded Parliament to pass legislation which specifically, in effect by express provision, permitted the executive to turn people away from the court door.
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