Second-guessing policy choices? The rule of law in and after the Supreme Court’s UNISON judgment

In their decision last year on UNISON’s challenge to the Lord Chancellor, the Supreme Court ruled that the Government had acted unlawfully in setting employment tribunal fees.

The judgment was widely hailed as a victory for the rule of law in the face of an attack on access to justice. In a new paper for Policy Exchange’s Judicial Power Project, Sir Stephen Laws (former First Parliamentary Counsel) challenges this narrative. Sir Stephen argues that the judgment adopts a problematic conception of the rule of law – which wrongly encourages courts to wade into policy matters that are properly for Government and Parliament to decide.

Lord Faulks QC, former Minister of State for Justice; and Professor Anne Davies, Professor of Law and Public Policy, University of Oxford, joined Sir Stephen to discuss the Supreme Court’s judgment and his critique.