R v Lord Chancellor (ex Parte Witham)

Heard at the Royal Court of Justice, Queens Bench Division.

On the 19th February 1997 John Witham with permission of Lightman J. applied for a judicial review on a decision of the Lord Chancellor to introduce the Supreme Court Fees (Amendment) Order 1996, on the grounds that Article 3 of the Order, which repealed provisions excusing litigants receiving income support from paying court fees and allowed the Lord Chancellor to reduce or waive the fee in exceptional cases of undue financial hardship, was ultra vires as it violated his right to access to a court to those with low income.

John Witham was in receipt of income support, wished to bring proceedings in person for defamation, for which no legal aid. He maintained he could not afford the fees which the amendment required him to pay.

The case was heard by Justice Law and Lord Justice Rose on 5 March 1997 and judgment delivered on 7 March 1997. The issue before the judiciary was that article 3 of the Supreme Court Fees (Amendment) Order 1996, SI 1996/3191 is ultra vires s130 of the Supreme Court Act 1981?

The court found the Lord Chancellor went beyond his powers (ultra vires) in removing the provision that those on income support/low incomes to whom it could cause unnecessary financial hardship would be exempt from fees to access the courts which therefore denies their right to a fair trial. This application for judicial review was held.

The Lord Chancellors power to set fees under s130 of the Supreme Court Act 1981 was “impliedly limited by the common law right to access to the courts” – and by abolishing the fee exemptions he had exceed this limitation.

In judgment of the case it was necessary to identify whether access to the courts was a constitutional right. The UK does not have a codified constitution and within the legal hierarchy there is identification primacy of certain rights over others. It therefore necessary to apply the doctrine of precedent formed on the principal of stare decisis that if the Ratio decidendi “[t]he point in a case which determines the judgment” is the same as a previous case that decision will bind the action of any future courts.

As there was a recent change in law enacted on 15 January 1997, when the case of Lord Chancellor v Witham came before Rose LJ and Laws J this was a matter of first impression, as the ratio decidendi was distinct from all previous cases. This allowed the justices to create a law and set a precedent.

Although this case was of first impression looked to previous cases to identify obiter facts. As stated above it was necessary to identify if within the common law system the right of access to the court, which the case proposed was being violated, was a constitutional right. Identification of this issue was key as it held the foundations of the interpretation of the legislation which was held by the judges.

It was necessary to identify if the power given to the chancellor could use implied repeal of the provision in the legislation or whether an express repeal would be necessary to abrogate the right, as in the case of a fundemental right.

The cases identified on the premise of precedent by Mr Duffy of Bremer Vulkan Schiffbau und Maschinenfabrik v South Indian Shipping Corporation Ltd. [1981] A.C. 909 were Lord Diplock said at p977. “Courts of justice [to] which every citizen has a constitutional right to access…{in order)to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights.”

The court also referred to the judgment of Lord Justice Steyn in the case of ex parte Leech [1994] QB 198;

“It is a principal of our law; that every citizen has a right of unimpeded access to a court”

as the common law “afforded special protection to a person’s right of access to a court as a constitutional right” and therefore it was only by express repeal that this right could be denied to a citizen. As noted in Raymond v Honey to remove the right from a citizen would require a specific act of parliament. “it can only be denied by the government if it persuades Parliament to pass legislation which specifically – in effect – by express provision – permits the executive to turn people away from the court door.

As stated by Laws J in his judgment

“…the notion of a constitutional right can in my judgment inhere only in this proposition, that the right in question cannot be abrogated by the state save by specific provision in an Act of Parliament, or by regulations whose views in main legislation specifically confers the power to abrogate. General words will not suffice.”

In this case there were no clear words in the primary legislation that identified the abrogation of the right of access to the courts which has been identified as fundamental.

“it can only be denied by the government if it persuades Parliament to pass legislation which specifically – in effect – by express provision – permits the executive to turn people away from the court door. This has not been done in this case.

The constitutional basis of judicial review lies in the concept of “checks and balances” whereby the actions of the Executive will be “checked” by the Judiciary to see whether they have gone beyond their “power” to prevent the arbitrary abuse of such power. To do this in the constitution of the United Kingdom which operates under the pillars Dicey identified as parliamentary sovereignty and the rule of law.

The legal reasoning and judgment in the case of R v Witham calls into account both of these doctrines. The doctrine of Parliamentary Sovereignty is taken into account. The Lord Chancellor had gone beyond the power entrusted to him by parliament, the amendment of the provision of exclusion of those with low incomes having to pay fees will be declared void. The decision of ultra vires was the direct application of the rule of law, to ensure that no one was above the law. This case focused on substantive view and looked at the procedure to identify if the amendment was enacted lawfully within the permission given by primary legislation.

The judiciary performed its role of interpreting the statutes against the backdrop of the pre-existing common law and custom. The application of these doctrines was then applied to the facts as outlined provided a clear and concise judgment based on the key doctrines of the legal system in the United Kingdom.

The case of Lord Chancellor v Witham was heard before the enactment of the Human Rights Act, 1998 which makes it unlawful for a public authority to act in a way which is incompatible with a Convention right (Section 6(2)). This development in the law clarifies constitutional rights and therefore a decision would today not be required as to whether access to the courts is a fundamental right.