Thank you for that lengthy question.
I have neither the hair nor the beard to stand in the stead of Dave Moxham, but I will do my best to answer on his behalf.
Perhaps we can deal with some of the simpler questions quickly. Section 10 should not apply to trade unions. It is perfectly clear from Sheriff Principal Taylor’s recommendations and from the Scottish Government’s response that it is intended to apply only to litigation venture capitalists—I guess that that would be the term—and not to trade unions.
I return to the point about the clarity of drafting. There is an argument that, as currently drafted, section 10 does not apply to trade unions, because of the words:
“but has a financial interest in”.
There is an argument that trade unions do not have such a financial interest. Let us not, however, invite satellite litigation. Let us have a clear black-and-white interpretation section.
Here is an even easier answer. Trade unions would never take court fees from their members. Trade union members always receive 100 per cent of their damages. Trade unions would also never refer their members to a claims company. The forefathers of the trade union movement would turn in their graves at that prospect. The answer is an unequivocal no.
We have to find a system that recognises that it is not Goliath versus Goliath. Trade unions are under more and more financial pressure these days because of the sweeping and aggressive changes in law south of the border, many of which are specifically aimed at trade union finances. It is becoming more and more difficult to operate.
Court fees place an additional financial burden on trade unions—it is that plain and simple. The current model of court fees is described in the submissions from Thompsons and the STUC as a pay-as-you-go model. As soon as a person wants to go to court, they have to get their cheque book out and pay for different stages of the process. If and when a trade union client is successful, that money comes back, but the model represents a significant—I use that word deliberately—cash-flow strain on trade unions when they can least do with that problem.
With regard to the recent decision by the Supreme Court that relates to employment tribunal fees, it is interesting that those fees were roundly accepted as inappropriate and an absolute barrier to access to justice, and so they were. Court fees have been an overlooked barrier, but that barrier is absolute and real and is becoming more so as trade union finances become more strained. Thompsons and the STUC propose a simple remodelling—no more, no less—with no reduction in the overall income to the Scottish Government or the civil justice fund. Our model is simply a different way to pay court fees. A move from a pay-as-you-go model to a model of deferred payment at the end would treat court fees in exactly the same way as defenders’ costs are treated in the bill. Because the bill deals with access to justice, and especially because of the Supreme Court judgment, the bill is a perfect opportunity to make that change.