Unison, R (On the Application Of) v The Lord Chancellor [2015] EWCA Civ 935

“A fee specified in this Order may be remitted where the Lord Chancellor is satisfied that there are exceptional circumstances which justify doing so.”

“If your fee remission application is refused, you may not have to pay a court or tribunal fee if you have suffered an unexpected event, that has seriously affected your ability to pay a court or tribunal fee. If you can prove this circumstance is exceptional, for example, letter or notices threatening legal action due to non payment of bills, the Delivery Manager has the power to grant a full or part remission. The Delivery Manager is the only person who can make this decision and it is based on the information given to the court or tribunal at the time that the court or tribunal fee is due. The Delivery Manager’s decision is final and cannot be appealed. Examples of exceptional circumstances may be when: • payment of a fee would mean non-payment of an essential service or utility bill (for example, electricity or gas) that is likely to lead to the service being cut off; • payment of a fee would mean non-payment of rent or mortgage amounts that are overdue, which could lead to you being made homeless; • you have personal responsibility for caring for a dependent adult and that care can only be paid for from your own resources; • you have suffered unexpected and sudden personal and financial loss or expense due to the death of a close family member or dependent relative; or you cannot pay the fee due to uninsured loss or damage to personal belongings as a result of fire, flood, theft or criminal damage.”

“... The Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective ... This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial ... It must therefore be ascertained whether Mrs. Airey's appearance before the High Court without the assistance of a lawyer would be effective, in the sense of whether she would be able to present her case properly and satisfactorily.”

“61. Article 6.1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way, that provision embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before a court in civil matters, constitutes one aspect only; however, it is an aspect that makes it in fact possible to benefit from the further guarantees laid down in paragraph 1 of Article 6 (see, among many other authorities, Golder v. United Kingdom, judgment of 21 January 1975, Series A no. 18, pp. 16-18, paras. 34 in fine and 35-36, and Kreuz (no. 1) ... (paras. 52 et seq.) 62. The “right to a court” is not absolute. It may be subject to limitations permitted by implication because the right of access by its very nature calls for regulation by the State. Guaranteeing to litigants an effective right of access to courts for the determination of their “civil rights and obligations”, Article 6 § 1 leaves to the State a free choice of the means to be used towards this end but, while the Contracting States enjoy a certain margin of appreciation in that respect, the ultimate decision as to the observance of the Convention’s requirements rests with the Court. ... 63. The Court has accepted that in some cases, especially where the limitations in question related to the conditions of admissibility of an appeal, or where the interests of justice required that the applicant, in connection with his appeal, provide security for costs to be incurred by the other party to the proceedings, various limitations, including financial ones, may be placed on his or her access to a “court” or “tribunal”

“In the circumstances and having regard to the prominent place held by the right to a court in a democratic society, the Court considers that the judicial authorities failed to secure a proper balance between, on the one hand, the interest of the State in collecting court fees for dealing with claims and, on the other hand, the interest of the applicant in vindicating his claim through the courts.”

“The Court therefore concludes that the imposition of the court fees on the applicant constituted a disproportionate restriction on his right of access to a court. There has accordingly been a violation of Article 6.1 of the Convention.”

“The fee required from the applicant for proceeding with his action was excessive. It resulted in his desisting from his claim and in his case never being heard by a court. That, in the Court’s opinion, impaired the very essence of his right of access.”

“The question many potential claimants have to ask themselves is how to prioritise their spending: what priority should they give to paying the fees in a possible legal claim as against many competing and pressing demands on their finances? And at what point can the court say that there is in substance no choice at all? Although Ms Monaghan would not accept that this is the task facing the court, it seems to me that in essence that is precisely what the court has to do. In that context, as Moses LJ said in the first Unison challenge, it is not enough that the fees place a burden on those with limited means. The question is not whether it is difficult for someone to be able to pay - there must be many claimants in that position - it is whether it is virtually impossible or excessively difficult for them to do so. Moreover, the other factors which I have identified as potentially inhibiting a worker from pursuing a claim may reinforce the conclusion that the risks inherent in litigation are not worth taking. These factors engender a cautious approach to litigation but do not compel the inference that it would be impossible in practice for some of these claimants to litigate. ”

“... to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself. In other words it will not necessarily be an answer, where a system is inherently unfair, that judicial review can be sought to correct its effects.”

“I approach [the issue of irrationality] on the basis that the Fees Orders are unlawful if there is a real (as opposed to fanciful) risk that the increase in fees will result in local authorities not performing their statutory obligations in relation to children who are at risk.”

“… the sample claimants chosen in scenarios 5 and 8 will not have the resources to pay the fees that they would be required to pay, even taking account of the remission scheme, and that the claimant chosen in scenario 7 is very unlikely to do so.”

“… The defendant rejected the applicability of [the Joseph Rowntree] study. Eventually the matter was resolved by accepting the Lord Chancellor's approach, which calculated all essential expenditure and considered the relationship between the remaining income, described as disposable monthly income, and the fees payable after remission.”

“… the combined effect of the remissions in the periods before and between the dates when fees must be paid, is that there is a sufficient opportunity even for families on very modest means, as illustrated in the three notional claimants, to accumulate funds to pay the fees. Proceedings will be expensive but not to the extent that bringing claims will be virtually impossible or excessively difficult.”

“It is clear that any regime must be flexible, and have regard to the means of prospective litigants. The real difficulty lies in deciding when the level of fees imposed can properly be condemned as "excessive". The mere fact that fees impose a burden on families with limited means and that they may have to use hard-earned savings is not enough. But it is not possible to identify any test for judging when a fee regime is excessive. It will be easier to judge actual examples of those who assert they have been or will be deterred by the level of fees imposed.”

“… that the cost of issuing proceedings in the ETs and EAT and the cost of pursuing such claims to a hearing will simply be prohibitive in many, many cases and the position has worsened by reason of the amendments made to the scheme by [the Remissions Order].”

“Far better, we suggest, to wait and see whether the fears of Unison prove to be well-founded. The hotly disputed evidence as to the dramatic fall in claims may turn out to be powerful evidence to show that the principle of effectiveness, in the fundamentally important realm of discrimination, is being breached by the present regime. If so, we would expect that to be clearly revealed, and the Lord Chancellor to change the system without any need for further litigation.”

“58. Ms Chan's basic submission, however, is that whatever the statistics say they cannot of themselves demonstrate that the principle of effectiveness has been infringed. It is not legitimate to infer that some litigants cannot pay from the fact that a significant number do not pay. Ms Chan accepts that the imposition of a fee will necessarily deter some litigants from taking their cases but contends that there are likely to be a variety of reasons for this. Some workers who in the past may have pursued a weak case, if only in the hope of securing a small settlement in their favour, will now be reluctant to do so because of the risk of having to pay fees if the case goes to the tribunal. Others will quite properly choose to spend their limited resources in other ways rather than gamble on litigation. Ms Chan also points out that the most seriously disadvantaged are covered by the remission scheme; and that in general a successful litigant can recover the fees against the unsuccessful party. So a party with a good case can pursue it with some confidence. 59. The claimant and the intervener challenge this analysis. They do not accept that the payment of fees is likely to encourage settlement. Indeed, they submit that this is less likely if the employer considers that the employee will not choose to litigate because of the fee burden: there will then be no incentive for the employer to compromise. They submit that even if one allows for the fact that there may have been some reduction because of the introduction of compulsory conciliation – which they submit on any view would be very small - that does not begin to explain the very significant reduction. It must be the case that some litigants who actively wish to take proceedings simply cannot afford to do so because they are not entitled to remission of the fee and earn too little; no other sensible inference is possible on these figures. The income level at which relief from paying fees is lost is set too low; the effect is that for many low earners the right of access to the tribunal is indeed illusory. 60. I see the force of this submission and I suspect that there may well be cases where genuinely pressing claims on a worker's income will leave too little available to fund litigation. But the difficulty with the way the argument has been advanced is that the court has no evidence at all that any individual has even asserted that he or she has been unable to bring a claim because of cost. The figures demonstrate incontrovertibly that the fees have had a marked effect on the willingness of workers to bring a claim but they do not prove that any of them are unable, as opposed to unwilling, to do so. I have quoted the next paragraph at para. 43 above. Elias LJ then continued: 62. In my view, the court can only properly test the argument if there are actual cases which will enable the court to review the income and expenditure of a particular individual or individuals and apply the effectiveness principle in that concrete situation, as Moses LJ emphasised in the earlier proceedings.”

“96. As Elias LJ has recorded (at paragraphs 55-56), the effect of the introduction of the new regime has been dramatic. Indeed it has been so dramatic that the intuitive response is that many workers with legitimate matters to raise before an Employment Tribunal must now be deterred from doing so because of the fees that will be demanded of them before any such claim can be advanced. For my part, I would anticipate that if the statistics upon which reliance is placed in support of this application were drilled down to some individual cases, situations would be revealed that showed an inability on the part of some people to proceed before an Employment Tribunal through lack of funds which would not have been the case before the new regime was set in place. However, that assessment has to be seen as speculative until convincing evidence to that effect is uncovered. If it is, of course, the Lord Chancellor would doubtless feel obliged to address it. 97. Elias LJ has referred to the way in which the statistics have been deployed in this application and has identified the fact that no evidence from any individual who has been affected adversely by the new regime (in the sense that it is now virtually impossible or extremely difficult to proceed through lack of funds) has been given: see paragraph 61 above. Whilst the analogy is not exact, it seems to me to be akin to trying to prove the causation of damage in an individual case by reference to statistical evidence: see the discussion at paragraph 2-28 in Clerk & Lindsell on Torts, 21st ed. There can be little doubt that the statistics relied upon in this case raise a legitimate question about the operation of the new regime, but they do not provide the answer to that question. 98. As it seems to me, before the court could begin to act it would need to be satisfied that a more than minimal number of people with arguably legitimate claims would find it virtually impossible or excessively difficult to bring such matters before an Employment Tribunal because of the fees that would require to be paid.”

“A related problem is that the relief sought is to quash the relevant regulations. But in my view the Lord Chancellor would be entitled to know in what circumstances the scheme is considered to be defective in order to remedy it. I appreciate of course that it is not for the court to draft a lawful scheme; that is for the Lord Chancellor. But here the court would be saying no more than that the inevitable inference from the statistics is that the scheme leaves an indefinable and undefined number of people with no effective way to redress wrongs. The difficulty is compounded by the fact that the Lord Chancellor has a discretion to relieve a claimant from the obligation to pay fees in exceptional circumstances. It is true that we have heard little about this discretion or when it may be exercised. But if the evidence were to suggest that the number of claimants for whom the right of access is illusory is likely to be very small, invoking the discretion might be a way of dealing with the problem whilst leaving the scheme itself intact. Quashing the scheme would then be inappropriate. … .”

“17. The Court has consistently held that the equal treatment rule laid down in Article 48 of the Treaty and in Article 7 of Regulation No 1612/68 prohibits not only overt discrimination by reason of nationality but also all covert forms of discrimination which, by the application of other distinguishing criteria, lead in fact to the same result (see inter alia Case 152/73 Sotgiu v Deutsche Bundespost [1974] ECR 153, paragraph 11; Case C-27/91 URSSAF v Le Manoir [1991] ECR I-5531, paragraph 10; Case C-111/91 Commission v Luxembourg [1993] ECR I-817, paragraph 9; and Case C-419/92 Scholz v Opera Universitaria di Cagliari [1994] ECR I-505, paragraph 7). 18. Accordingly, conditions imposed by national law must be regarded as indirectly discriminatory where, although applicable irrespective of nationality, they affect essentially migrant workers (see Case 41/84 Pinna vCaisse d'Allocations Familiales de la Savoie [1986] ECR 1, paragraph 24; Case 33/88 Allué and Another v Università degli Studi di Venezia [1989] ECR 1591, paragraph 12; and Le Manoir, paragraph 11) or the great majority of those affected are migrant workers (see Case C-279/89 Commission v United Kingdom [1992] ECR I-5785, paragraph 42, and Case C-272/92 Spotti v Freistaat Bayern [1993] ECR I-5185, paragraph 18), where they are indistinctly applicable but can more easily be satisfied by national workers than by migrant workers (see Commission vLuxembourg, paragraph 10, and Case C-349/87 Paraschi v Landesversicherungsanstalt Württemberg [1991] ECR I-4501, paragraph 23) or where there is a risk that they may operate to the particular detriment of migrant workers (see Case C-175/88 Biehl v Administration des Contributions [1990] ECR I-1779, paragraph 14, and Case C-204/90 Bachmann v Belgium [1992] ECR I-249, paragraph 9).”

“It is clear from that body of case-law that, unless it is objectively justified and proportionate to its aim, a provision of national law must be regarded as indirectly discriminatory if it is intrinsically liable to affect the nationals of other Member States more than the nationals of the State whose legislation is in point and if there is a consequent risk that it will place the former at a particular disadvantage (see, to that effect, Case C-57/96 Meints v Minister van Landbouw, Natuurbeheer en Visserij [1997] ECR I-6689, paragraph 45).”

“The issue here is whether the difference in the fee is justified rather than whether any fee is justified. The rationale for the distinction between category A and B cases is that those subject to level A fees are in general likely to take less time than claims falling within category B and therefore use fewer resources. Ms Monaghan submitted that there is no direct evidence of this and that the court should not simply accept counsel's assertion to that effect. I do not accept that. In a document produced by HM Courts and Tribunals Service giving information about the fees it is expressly stated that "Type A claims tend to be more straightforward for the Tribunal to deal with, and so have lower fees." Moreover, there is clearly some rationale for the different funding arrangements for groups A and B, and in my view the explanation given is consistent both with the reason for imposing the fees in the first place and with the nature of the claims falling within the two groups. In my judgment, it is legitimate to fix the fees by reference to the service - in the sense of court resources - provided. It is true that the scheme adopts bright line rules; some level A claims will take longer than some level B claims and vice versa. But it is legitimate in circumstances like this to regulate by reference to the cost of the service in standard cases. I would therefore reject this ground.”

“I have no doubt that each of the objectives relied upon in this case is a legitimate one and that the scheme taken overall, particularly having regard to the arrangements designed to relieve the poorest from the obligation to pay, is justified and proportionate to any discriminatory effect.”

“The Ministry accept that cost alone cannot justify discriminating against part-time workers. But they argue that "cost plus" other factors may do so. This is a subtle point which is not without difficulty.”

“69. Hence the European cases clearly establish that a Member State may decide for itself how much it will spend upon its benefits system, or presumably upon its justice system, or indeed upon any other area of social policy. But within that system, the choices it makes must be consistent with the principles of equal treatment and non-discrimination. A discriminatory rule or practice can only be justified by reference to a legitimate aim other than the simple saving of cost. No doubt it was because the CJEU foresaw that the Ministry would seek to rely upon considerations of cost when the case returned to the national courts that it took care to reiterate that "budgetary considerations cannot justify discrimination" (para 66). 70. Our attention was drawn to some domestic authorities, and in particular Woodcock v Cumbria Primary Care Trust [2012] EWCA Civ 330, [2012] ICR 1126. This was an age discrimination case, in which the claimant complained that the trust had deliberately failed to comply with a requirement to consult before declaring him to be redundant, so that his employment would cease before he reached the age which would trigger a higher severance payment. The Court of Appeal held that the dismissal notice was not served with the simple aim of dismissing him before his 49th birthday but in order to give effect to a genuine decision that his position was redundant. It was justifiable to implement that decision in a way which saved money. This court must, however, take its guidance from the jurisprudence of the CJEU, and in particular the guidance which we have been given in this very case. In the circumstances it is unnecessary for us to express a view upon whether the case of Woodcock was rightly decided.”

“But I would not in fact describe the first objective as costs saving. This is not a case of government refusing to correct discrimination because it would be too expensive. Rather it is more accurately characterised as requiring a contribution towards the cost of running the Tribunal Service, charging equal amounts from all who bring claims within class B.”

“It is accepted that bright lines of this sort, even if they produce what appear to be arbitrary distinctions between one case and another, are often necessary and can be justified: see, e g, the age rules in (R (Reynolds) v Secretary of State for Work and Pensions sub nom R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173).”

“Mere generalisations concerning the capacity of a specific measure to encourage recruitment are not enough to show that the aim of the disputed provisions is unrelated to any discrimination on grounds of sex or to provide evidence on the basis of which it could reasonably be considered that the means chosen are or could be suitable for achieving that aim … .”

“… I do not think that to select a sub-group of cases within category B is a legitimate way to seek to establish indirect discrimination. It is necessary to test any potentially adverse effect of the provision, criterion or practice (PCP) by focusing on all those who are subject to it, the overall pool to whom the PCP is applied. It is not legitimate to take a self-selected group. That simply distorts the true effect of the PCP. Moreover, it yields bizarre results. If there is an adverse impact on women for discrimination claims, there must be a corresponding adverse impact on men for all non-discrimination claims (and apparently there is for unfair dismissal cases, for example). Ms Monaghan's riposte is to say that there may well be indirect discrimination against men in those cases, and that this would need to be justified too. But on that analysis, even if the PCP operated to advantage one sex overall, by a judicious selection of a particular subgroup where the claimants were predominantly of the other sex, it could be shown that the rule indirectly disadvantaged the group predominantly advantaged by the PCP as a whole. By choosing a subgroup which is in practice predominantly of one sex - say nurses or building workers - or by selecting claims typically made by one sex rather than the other, as has been done here, it would be possible to show that there was in fact indirect discrimination being practised in a whole variety of ways and each distinct type would have to be justified. I do not accept that the concept of indirect discrimination has such unacceptable and arbitrary consequences.”

“The claimant and the Commission take issue with the reliability of these new statistics. They say that they are based on a limited sample and the methodology is far from clear. I do not accept that. The Lord Chancellor has explained how the statistics were obtained. They were the result of a survey commissioned by the Department of Business, Innovation and Skill where almost two thousand claimants, selected randomly, were interviewed. The gender figures were based on the gender as reported by the claimants. The survey was completed before the introduction of the fees, but it was possible to identify what fee would now be payable from the information given. The results are subject to sampling error, but it seems to me that they are as reliable as any of the statistics available.”

“80. It seems to me that all the figures which have been canvassed in these proceedings are to a greater or lesser extent unreliable. They are all derived from historical data, namely the periodic Surveys of Employment Tribunal Applications (SETA surveys). 81. Since the onus is on the claimant to show that there has been discrimination, I am not satisfied that the burden has been discharged here. Even if it has, the extent of any adverse impact is very small. That is relevant to the issue of justification.”

“(1) A public authority must, in the exercise of its functions, have due regard to the need to– (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. (2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1). (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to - (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. (4)-(6) …”

“To comply with his duty under s.149, the Lord Chancellor has taken the following steps. First, there was a pre-consultation equality impact assessment dated 14 December 2011. Second, between 14 December 2011 and 6 March 2012 the Ministry of Justice undertook a public consultation on different fee-charging structures. The consultation paper was issued with 32 general questions and 12 equality impact questions. The consultation, at this stage, did not invite consideration of whether any fees should be introduced. Third, an impact assessment was issued dated 30 May 2012. Fourth, seven events were held at which 90 people from 60 organisations attended, and had the opportunity to put forward their views. Fifth, 140 written responses were received from different groups including employees, legal groups, business groups, advisory and equality groups, and from other interested parties. A detailed analysis and response to the consultation was published by the Ministry of Justice on 13 July 2012. This included consideration of potential discriminatory impacts and proposed adjustments to be made. Sixth, an equality impact assessment on charging fees in Employment and Employment Appeal Tribunals was prepared, dated 13 July 2012. Seventh, there was consultation on the new Civil Fee Remission Scheme undertaken between 18 April 2013 and 15 May 2013. The Ministry of Justice's consultation response was dated 9 September 2013, with an impact assessment. This included an equality statement containing an assessment of the new remission scheme upon different groups.”

“[1]This EIA considers the introduction of fees in employment tribunals (ET) and Employment Appeal Tribunal (EAT). [2] In accordance with our duty under section 149 of the Equality Act 2010, we have considered the equality impacts of the proposed fees structure. The following is a summary of our overall assessment. Further detail of the impacts is given in the analysis sections below. A. Prohibited Conduct Direct discrimination [3] The introduction of the proposed fee structure would not directly discriminate against people with a protected characteristic, because the fee changes would apply to all people irrespective of any protected characteristic; i.e. there is no less favourable treatment because of a protected characteristic. Indirect discrimination [4] Many of those who responded were concerned that our proposals would put certain groups of people with a relevant protected characteristic at a particular disadvantage. We have carefully considered the evidence base for these assertions. All claimants, including those with protected characteristics, will have to pay a fee to use the ET and the EAT. We cannot rule out that this may have a greater impact on some people with particular protected characteristics than those who do not share that characteristic. [5] Our analysis suggests that BME groups, women, younger people and disabled people are more likely to fall into the lower income brackets and therefore these groups would be more likely to qualify for partial or full fee remissions. For these groups it is unlikely that they will experience any particular disadvantage as the fee remission mitigation is considered likely to lessen the impact. [6] Our analysis also suggests that mid to higher earners may experience the greatest negative impacts of the new fees and these people are more likely those aged 25 and over without children and people from a White ethnic group. These people are unlikely to qualify for full or partial remissions so the fee remission mitigation will not lessen the impacts. Other mitigations such as the free ACAS conciliation, not introducing a 3rd tier of fees and the ability to seek an order for the respondent to pay their fees should they win, are also considered to lessen the impacts. If people with these protected characteristics are unable to settle their ET issues via ACAS, they will have to pay fees up front and we are currently unclear whether or not this will deter claimants. Overall we do not consider that the introduction of the proposed fee structures is likely to amount to indirect discrimination under the Equality Act 2010. Discrimination arising from disability and duty to make reasonable adjustments [7]-[8] … Harassment and victimisation [9] …. B. Advancing equality of opportunity [11] We consider that it is possible that the fee structure could impact on the duty to advance equality of opportunity if potential claimants with protected characteristics are put off from taking forward discrimination cases due to the introduction of fees. However, we think the mitigations we have proposed will protect access to justice for those with protected characteristics. C. Fostering good relations [12] We consider that to the extent that this obligation to the fee proposal is relevant it is reasonable to assume that the impact of fees on fostering good relations is neutral. Conclusion [13] In light of the responses, we have considered the impact of the fee proposals against the statutory obligations imposed by section 149 of the Equality Act 2010. These considerations have influenced our decision to recommend two fee levels instead of the original proposal to have three as mitigation against any potential indirect discrimination. [14] Our assessment is that, based on the limited information available on the protected characteristics of individuals and their level of income, the introduction of fees will impact differently depending on the varying income profiles. We believe that the measures we have put in place would mitigate any equality impacts. [15] For those who can afford to pay fees, the further mitigations are the power for the tribunal to order reimbursement if they are successful and the setting of fees below full cost recovery For those who cannot afford to pay fees, including those who can only make a contribution to the fee, the further mitigation is the availability of the remissions scheme to protect their access to the tribunal. The availability of Acas conciliation lessons the impacts for all irrespective of their financial position because if offers an alternative to making a claim. [16] We therefore believe that with the existing mitigations and the additional measure of introducing two fee levels instead of three we can ensure that the proposals to introduce fees will mitigate the equality impacts. [17] As part of the implementation process we consider how to ensure the fee payment system and forms are accessible by those who seek to use them and that information about the availability of remissions is widely accessible.”

“The essential challenge now advanced relates to the Lord Chancellor's comment in the equality impact assessment that neither the Lord Chancellor, nor the Ministry of Justice, nor any of the respondents "can predict with any certainty what the impact of the introduction of fees will be". Of course, that does not justify a failure to consider the likely impact. But that impact was fully considered, even though its conclusion displeased the objectors. Again, as in relation to the first ground, we underline that the duty continues and the Lord Chancellor is under an obligation to assess the impact of the fee regime on the basis of evidence revealed in practice. If it turns out, as the objectors feared, that the introduction of fees has a damaging effect on the fundamental obligation of the Lord Chancellor and government to eliminate, so far as humanly possible, discrimination against those with relevant protected characteristics and advance equality of opportunity, then the Lord Chancellor will have to take such steps as are necessary by adjusting the regime. We acknowledge the genuine fear that the introduction of the fee regime will impede the vital goal of eliminating discrimination and advancing equality of opportunity. Whether that fear is well-founded may well depend on evidence yet to be obtained, as to how the regime has worked in practice. For the reasons we have given, we dismiss this ground of complaint.”

“The Commission advanced … [an] argument to the effect that there is no hard evidence to support the Lord Chancellor's assessment but as the EAT pointed out in Constable of West Yorkshire Police and another v Homer [2009] ICR 223 para. 48, concrete evidence is not always required. A reasonable and rational view about what effects a particular policy is likely to have will in principle suffice to justify its adoption, although the impact of the policy will have to be kept under consideration to ensure that the ends justify the means. Were it otherwise, government would be stifled in its ability to introduce new and untried measures because of the uncertainty of their impact.”

“89. This brings us to a fundamental difficulty with the whole of this case. Brought as it was in the belief that the lawfulness of the regime had to be challenged as a matter of urgency, and in any event within three months, the court has been faced with judging the regime without sufficient evidence, and based only on the predictions of the rival parties throughout and after the hearing. Parliament decided, by affirmative resolution, to introduce the regime, authorised by statute, and debated and positively affirmed by both Houses of Parliament. Quite apart from the continuing obligation to fulfil the duties identified in the 2010 Act, the defendant has himself undertaken to keep the issue of the impact of this regime under review. If it turns out that over the ensuing months the fees regime as introduced is having a disparate effect on those falling within a protected class, the defendant would be under a duty to take remedial measures to remove that disparate effect and cannot deny that obligation on the basis that challenges come too late. It seems to us more satisfactory to wait and see and hold the defendant to account should his optimism as to the fairness of this regime prove unfounded. We believe both the claimant and the intervener will be, and certainly should be, astute to ensure that accurate figures and evidence are obtained as to the effect of this regime. 90. No doubt the defendant will also be doing the same, if he is successfully to resist a future challenge. In the meantime, we think that the fundamental flaw in these proceedings is that they are premature and that the evidence at this stage lacks that robustness necessary to overturn the regime. …”