I will summarise the petition and link it to the submissions that have been received since my previous appearance at the committee, in November. I will also make a recommendation for next steps, if that would be helpful to the committee.
The key underlying principle of the petition is a simple one: it is the question of how ordinary families on a modest income seek redress and justice. The simple answer is that families should seek redress through the legal system. We all know and understand that. It is the right answer, but what if people cannot get to first base? The Mundells have been in touch—in person or by phone—with more than 50 law firms, but the vast majority will not deal with human rights cases. That is problem number 1.
Problem number 2 is that many legal firms restrict their involvement in human rights cases to those that are to do with prisoners or immigration issues.
The third problem is that, even when those hurdles are overcome, many firms deal with human rights cases only when there is a substantial up-front payment. For example, one lawyer whom the Mundells contacted wanted an up-front payment of £25,000 before proceeding, which, at the time, represented double the family’s annual disposable income.
When I was in front of the committee in November, I quoted Judith Robertson of the Scottish Human Rights Commission, who is well known to you all. She spoke to the Joint Committee on Human Rights at Westminster about access to human rights, saying:
“It is difficult for anybody to take a case in Scotland. As I said, we have no power to support anybody to do that; in fact, we are expressly disallowed.”
As for next steps, I suggest that the petition be kept open until the Scottish Government issues its response to the consultation on legal aid reform in Scotland.
I have carefully read all the submissions. Human Rights Consortium Scotland points out, as I mentioned, that the SHRC has
“no powers ... to take test cases”.
It argues that the SHRC needs the power
“to give legal advice to individuals”,
which
“would be a significant step towards improving access to justice on human rights”.
The committee will know that the Scottish Human Rights Commission is a parliamentary commission. Interestingly, it is responsible to the Scottish Parliamentary Corporate Body purely for pay and rations. Its strategy is its own and Parliament’s, but any change to its remit would require legislation to change its terms of reference. The committee might wish to pursue that.
I suggest that the committee consider inviting the Scottish Human Rights Commission and the United Kingdom body, the Equality and Human Rights Commission, to a further meeting of the committee. As the committee well knows—this is identified in the committee’s background papers—the EHRC has the power to take human rights cases on reserved issues and, with the agreement of the SHRC, can take court action on devolved issues. It is a clunky way of organising things in Scotland, but I am sure that the parliamentarians who thought up the legislation at the time did not consider that it was a problem.
Finally, I thank the Faculty of Advocates for its agreement with
“the tenor of the petition that there is a significant lack of availability of legal services in relation to public law matters.”
I think that the faculty put it extremely well in its submission, which summed up the problems that are outlined in the petition. I am happy to answer specific points, as I did at the meeting in November.
Although, on the surface, this seems complicated, it is not. It is about access to justice. To use an Americanism, if you cannot get to first base, you will not complete the whole circuit. It is important that we look at this carefully. I am happy to answer any questions, if I can.