Equalities and Human Rights Committee
Meeting date: Thursday, November 14, 2019
Official Report 549KB pdf
Contents
Petitions
Access to Justice (Environment) (PE1372)
Good morning, everyone, and welcome to the 27th meeting in 2019 of the Equalities and Human Rights Committee. I ask everyone to switch off and put away their mobile devices.
Agenda item 1 is consideration of two public petitions. I refer members to paragraph 2 of paper 1, which sets out the actions that are available to us.
Petition PE1372, by Duncan McLaren, on behalf of Friends of the Earth Scotland, is on access to justice on environmental matters. It calls on the Scottish Government to clearly demonstrate how access to the Scottish courts is compliant with the Aarhus convention. I invite members’ comments.
I am keen to keep the petition open, because I am not satisfied that we have got as far as we can get with it. We should at least wait until the Scottish Government publishes its response to its consultation on the matter. I am also keen that we take further action, perhaps by writing to the Scottish Civil Justice Council, to seek clarification on how courts plan to reform and how that will impact access to justice on environmental matters.
I remember considering the petition when I was a member of the Equal Opportunities Committee in the previous session. It raises a long-standing issue, and we need to keep it open; we need to find a resolution. I agree with Oliver Mundell’s suggestions.
As there are no further comments, is everyone content to take those actions?
Members indicated agreement.
Access to Justice (PE1695)
Petition PE1695, by Ben and Evelyn Mundell, is on access to justice in Scotland. The petition calls on the Scottish Parliament
“to urge the Scottish Government to take action to ensure that access to justice, including access to legal advice from appropriately trained lawyers and financial support through legal aid, is available to enable people in Scotland to pursue cases where they consider a human rights breach has occurred.”
I welcome Dave Stewart MSP, who is a member for the petitioners’ region, and invite him to speak.
Thank you, convener. I welcome Evelyn and Ben Mundell, who are in the public seats.
Members will know from the committee papers that I have spoken on the petition at the Public Petitions Committee about three times. I will give some basic background information. As I said to the PPC, the case looks highly complicated—and elements of it are complicated. On the surface, the issue is the ring fencing of dairy farmers’ milk quotas in the southern isles ring-fenced area. However, for me, the issue is much more fundamental: it is about how ordinary families on a modest income can seek redress and justice. I think that this committee accepts that that is important; I noticed that, in your annual report last year, the convener made the point that human rights are vital.
The simple answer is that families should seek redress through the legal system. That, of course, is right. However, members will know from my presentations to the PPC that the Mundells have been in touch—in person or by phone—with more than 50 law firms, but they have found that the vast majority of them will not deal with human rights cases. That is the first problem.
The second problem is that many firms that deal with such cases restrict their involvement to issues to do with prisoners or immigration. That is a big restriction. One lawyer agreed to take up the case but wanted an up-front payment of £25,000 before proceeding; at the time, that amount was double the family’s yearly disposable income.
The Mundells have told me that many farmers in the ring-fenced area were placed in an impossible situation, given that the milk price was below the cost of production, which led, in effect, to the forfeit of their property. At the time, the quota was worth about £450,000, which is a massive sum relative to the family’s income. As I said to the PPC, my view is that the situation is a potential breach of article 1 of protocol 1 of the European convention on human rights.
Let me give you some context. At the time of the ring fencing, in the United Kingdom as a whole, 36,000 dairy farmers had the asset of the milk quota and were perfectly free to realise the full value of the quota, to assist their businesses. Fewer than 200 people, who were in the ring-fenced area, were denied the right to trade, swap or sell on their milk quota, for complicated reasons to do with the ring fencing. I consider that to be a breach of their rights.
I am conscious of time, convener, so I will finish with a couple of quotations. I was pleased that the First Minister set up the advisory group on human rights leadership. In its report, the group said:
“Progress then has evidently been made on Scotland’s journey. However, it is critical to acknowledge that there are gaps and shortcomings too ... too many people are not enjoying their rights in everyday life.”
The advisory group went on to say:
“All of this leads to a denial of access to justice ... It is a matter of political choice and priorities. What is needed is the political will to implement the solutions.”
When Judith Robertson from the Scottish Human Rights Commission—she is well known to the committee—appeared before the House of Commons and House of Lords Joint Committee on Human Rights in 2018, she said:
“The cheapest way to ensure that rights are delivered is to ensure that they are not breached.”
She went on to say:
“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.”
In a sense, we are at a disadvantage in Scotland. The UK body has different powers.
I have read the committee’s paper 1 and urge the committee to consider the recommendations in paragraph 43. It is suggested that the committee write to the Human Rights Consortium Scotland and JustRight Scotland, that it considers the consultation on legal aid and that it writes to the Faculty of Advocates, in particular about legal advice.
Those are sensible suggestions. There is a huge gap that is unfinished business for Scottish human rights. That is well illustrated by the Mundells’ case, but I stress that they are just an example of the families who have been affected. I do not have a complete track of them all, but many have gone out of business because of this disastrous position. They were not trading illegally or with a subsidy; they had great assets. The irony is that, in many parts, we are now short of dairy farmers and short of milk.
It was a very poor decision. The only way that people can address the matter is through the court system and, ultimately, the European Court of Justice. However, if they cannot get to first base, they cannot do that.
I am happy to answer questions, if I can, convener.
Thank you. Do committee members have any comments?
I fully support the points that we have just heard, which were set out well. I am content for us to take the actions that are suggested in paragraph 43 of paper 1. I am also keen for us to ask the Scottish Government for its views on the more general issues that the case raises and to ask when it expects the analysis of the legal aid consultation to be published. I am keen that we keep the petition open.
I am grateful to Mr Stewart for his helpful remarks. I am keen that we keep the petition open and that we write to the Human Rights Consortium Scotland and JustRight Scotland. Given that this is a human rights issue and that the Mundells are one of many families who have been affected, will Mr Stewart detail some of the personal impact that the case has had on the Mundells? I think that it would be helpful for the committee to hear about that.
I am happy to do that. I have dealt with the family for about seven years, and the case is one of the most tragic cases that I have dealt with in my 12 years in Parliament. The Mundells have a great history in farming in the area. Ben Mundell told me yesterday that he has been a farmer for 50 years. If I remember rightly, he said that he is 74. Farming is in his blood, as his father farmed; I think that his grandfather has a farming history, too.
The quota issue has, in effect, ruined the farm. Yesterday, the Mundells told me—I am sure that they will not mind me telling you this—that they have great assets in the farm, including houses and farming facilities, yet they are in a position whereby they cannot afford to maintain their home. It is going to wrack and ruin, which is a real tragedy, considering its history. They are keeping the farm going, in effect, for their son, who also has medical issues. It is a tragedy that a good business has, in effect, been ruined by a bureaucratic decision with unintended consequences.
It would be interesting if we could track the 200 families. I suggest that, probably, very few of them are now in farming.
I agree with what has been said and with the recommendation that we keep the petition open. I wonder whether, as well as writing to the organisations that have been mentioned, we should write to the Law Society of Scotland and ask for its views on the matter.
I am told that the Law Society of Scotland has provided its views to the Public Petitions Committee. We can reference them.
Okay. Thank you.
I welcome the Mundells to the gallery. I had not fully anticipated from reading the committee papers the human cost of the mistake, and I have been quite shocked by what David Stewart has told us about the history of the case.
I think that, in addition to writing to the Government, and based on what it comes back with, we should give representatives of the Government an opportunity to come in for further questioning on the subject. We should not only keep the petition open; as it is a live and pressing human issue, we should ask questions about it in open committee.
May I add something?
Yes. Please be brief, Mr Stewart.
It is on an issue that I perhaps did not highlight sufficiently. The committee might well have addressed previously the role of the Scottish Human Rights Commission. It is an excellent organisation, but my quote from Judith Robertson was, in effect, about the fact that its hands are tied in relation to dealing with cases directly. Has the committee addressed that issue? If not, it might be useful for it to do so. A change to the regulations could allow direct representation, which happens in the UK body, if my memory serves me correctly. It would certainly be worth while to look at why there is an impediment, because that is the problem that we have. People cannot access the law.
I think that all those issues are live to the committee.
We seem to have consensus on the actions that we will take. Is everyone in agreement?
Members indicated agreement.
Thank you. I suspend the meeting briefly, to allow a change of witnesses.
09:29 Meeting suspended.09:30 On resuming—
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