Subordinate Legislation
Members will have received copies of comments from the Law Society of Scotland and the Federation of Small Businesses on this item.
We have two motions to discuss: S1M-1398, in the name of Jim Wallace, and S1M-1422, in the name of Phil Gallie. Although they have to be moved and disposed of separately, I intend to debate them together, as they both relate to the same subject.
I call the minister to speak to and move his motion.
In introducing the motion, I would like to set the context by clearing up a misconception that seems to exist about legal aid and tribunals generally.
Legal aid in the specific form of advice and assistance from a solicitor is already available for employment tribunals, as it is for any matter of Scots law, provided that the applicant meets the relevant financial criteria. Such advice is granted by a solicitor independently without reference to the Scottish Legal Aid Board. For some people, a contribution may be due. That contribution ranges from £7 to £104, depending on the person's disposable income and capital. Advice from a solicitor at public expense is already available to help someone formulate his or her case before an employment tribunal and to advise him or her about how to proceed, both before and after a hearing. However, that does not cover representation at the tribunal itself. Rather, it provides help right up to the doors of the tribunal.
I am aware of recent challenges under the Scotland Act 1998 in relation to the provision of legal aid for proceedings in employment tribunals and I am obviously well aware of the Executive's commitments under the European convention on human rights. In those circumstances, we have thought carefully about the way ahead. Although the European convention on human rights does not require the provision of legal aid for civil matters, there has been at least one judgment in ECHR case law that suggests that, in certain circumstances, legal aid may be appropriate.
I have therefore come to the conclusion that it would be right in certain circumstances to allow representation before employment tribunals at the taxpayer's expense—hence these regulations. The change is not just a response to recent developments; I believe that it is justified on its own merits. The cost is expected to be modest, at about £200,000 each year. The regulations before the committee today are intended to achieve that aim.
The regulations will allow people on low incomes to get full legal representation at employment tribunals when the case in question is too complicated for the individual concerned to present his or her case effectively. That might be because difficult legal issues are involved, or because the person concerned has a poor knowledge of English or suffers from a physical or mental handicap. Representation will be provided in the form called assistance by way of representation—usually known in the trade as ABWOR.
There are two sets of regulations. One set—the Advice and Assistance (Scotland) Amendment (No 2) Regulations 2000 (SSI 2000/399), which I recently signed—comprises negative regulations. They will allow a solicitor to ignore any employment tribunal award in assessing whether to apply clawback of legal expenses. That matches the same provisions from the employment appeal tribunal. Unless negatived, those regulations should come into effect on 15 January 2001.
I was somewhat puzzled and disappointed to see Phil Gallie's proposal that the committee might vote to annul the regulations. Taken with the affirmative regulations, they mark a step forward, at a very modest cost to the taxpayer, on access to justice in Scotland. I do not believe that they would lead to frivolous claims, as some have suggested, because the final decision on whether to allow representation lies with the Scottish Legal Aid Board. The committee should therefore reject Phil Gallie's motion as being against the interests of those who have to raise tribunal cases.
The other set of regulations are affirmative regulations. If approved, they too will come into force on 15 January. Taken together, the regulations will improve access to justice for people whose cases are complex and who would otherwise find difficulty in presenting them to an employment tribunal. The only financial test to apply will be the same one that applies when a solicitor first grants advice and assistance.
I shall describe how the system will work in practice. First, the solicitor will grant advice to the client, provided that the client meets the financial test and the issue is a matter of Scots law. Then he or she may enter into negotiations with the client's employer. If a settlement is not possible and the case needs to go before an employment tribunal, the solicitor will then have to consider whether representation is needed. If the solicitor concludes that it is needed, he or she will apply to the Scottish Legal Aid Board to approve a grant of ABWOR.
The board will consider the application on the basis of the criteria set out in regulations 13.2 and 13.3 of the ABWOR regulations. First, the case must be arguable. I do not think that anyone can reasonably question that, and it is clear that the taxpayer should not be expected to fund spurious or frivolous cases. Secondly, the board must judge whether it would be reasonable to make ABWOR available. That mirrors the existing tests in the regulations for assistance by way of representation. Thirdly, the case must be too complex for the applicant to present it to a minimum standard of effectiveness in person.
The regulations set out factors that the board should take into account in deciding complexity: where the case involves a procedural difficulty, a substantial question of law, or complex or difficult evidence; or where the applicant is unable to understand the proceedings because of his age, inadequate knowledge of English, mental illness, or mental or physical disability. Where those conditions are satisfied, assistance by way of representation will be approved and the taxpayer will fund legal representation at the tribunal.
Those tests should ensure that representation will be made available for the cases in which it is needed. It is important to involve the board in those cases. When he or she grants advice and assistance, the solicitor does not know whether the client has a reasonable case to pursue or whether the employer might come to a settlement. The board will take account of those factors. If it did not, cases without merit might proceed at public expense. Providing for the board to assess applications will also ensure that cases are treated consistently across Scotland.
I should add that tests before granting ABWOR are not unique to employment tribunals. There are already additional tests in the regulations, such as those covering summary criminal proceedings, which are set out in regulations 6 and 7 of the 1997 ABWOR regulations. Clients on working families tax credit who are granted advice without a contribution will also receive ABWOR without any further financial tests.
I believe that these regulations mark a step forward in improving access to justice in Scotland. I understand that the Law Society of Scotland has raised two points with the committee. The first is whether ABWOR covers travelling time and expenses by solicitors; the second is whether representation is available if a Scottish case is heard outside Scotland. Neither of these sets of regulations affects the basic rules that already govern the payment of fees and outlays to solicitors who provide advice and assistance or ABWOR. Strictly speaking, the interpretation of those regulations is for the Scottish Legal Aid Board and should be raised with it. I cannot fetter—or, indeed, instruct—how the board interprets the regulations.
Advice and assistance can be provided by a solicitor only on matters of Scots law. ABWOR can therefore be provided only on a matter of Scots law. It would be for the solicitor to apply to the board for increases in authorised expenditure to cover work that he or she wishes to undertake. If that involves travelling, it is envisaged that the solicitor would want to tell the board about the anticipated travelling time and outlays. Where a cross-border issue arises, I can envisage that the board would have to satisfy itself that the matter in issue is a matter of Scots law.
The assessment of the reasonableness of such requests remains a matter wholly within the discretion of the board. Ultimately, the board will be asked to consider an account of fees and outlays submitted by the solicitor. The assessment of what can be paid out of the fund in any specific case lies within the board's discretion. No new fees have been created. The board will assess the reasonableness of detailed fees claimed by a solicitor according to existing fees for ABWOR. The solicitor will also be entitled to charge outlays. The board will have to consider whether a fee for travelling time and an outlay for travel—a train ticket or car mileage, for example—has been actually, necessarily and reasonably incurred, due regard being had to economy.
I believe that the regulations are good news for those who are unfortunate enough to have to raise a complex matter before an employment tribunal. I believe that they make a worthwhile addition to our legal aid system and I commend them to the committee.
I move,
That the Justice and Home Affairs Committee recommends that the draft Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2001 be approved.
First, I say to the minister that if he reviews some of his comments, he will find that I constantly disappoint him. I must say that I boast about that frequently.
I want to give as my main reason for voting against the affirmative instrument and moving against the negative instrument the fact that the proposal is premature. There is a need for a full review of the tribunal system as it is not working properly. Its procedures, practices and effects have to be examined. The legal aid arguments should be addressed at that point. I will move against the negative instrument in the hope that there will be no need for it if the committee takes on board my comments.
One major reason why I feel that we should not bring the lawyers in to the employment tribunal situation is that I do not believe that the procedures of the employment tribunals are regulated to an extent that lends itself to legal involvement. If we were to involve the lawyers to a further extent than they are already involved, we would have to change employment tribunal procedures to ensure that—at the very least—records of what is said and decided are kept in full. At the moment, a tribunal sits with a chairman and two supporters—usually one from the trade union side and one from the business side. They do not take detailed notes of the proceedings. It is the practice of Scotland's legal fraternity to ensure that anything that is said in court is properly recorded. On that basis alone there is a problem.
I find the existing level of legal involvement to be appropriately balanced. I think that around 21.7 per cent of employers use legal support and just marginally fewer of those who are appealing do so—I think that the figure is 20.9 per cent. There is another element: one of the reasons for being a member of a trade union is to ensure that one's situation as an employee is protected when there is conflict with the employer. To a degree, the proposal would weaken the trade union position. Trade unions have the right to appoint solicitors on behalf of the people whom they represent. They have undertaken to do that and I think that it is valuable. I used to be an engineer and was a member of the Electrical Power Engineers Association. One of the main reasons for my being a member of the union was that I recognised the fact that, under some circumstances, there might be a need for me to justify some actions that I had taken in the course of my employment. Happily, I never needed that support, but I always knew that it existed. I knew that the union would look after my interests if I needed it to.
We tend to consider this issue with big business in mind. I have to concede that it appears unfair that big business can afford senior legal figures to represent its case against an employee. However, at the other end of the spectrum is the small business sector, which could be seriously disadvantaged if the proposal were adopted. I draw the minister's attention to the letter from the Federation of Small Businesses, which complains that it has not been consulted on this issue. That is a shame. It is important that consultation should take place. We have heard many words from ministers about businesses getting tied up in red tape. The proposal could be seen as being a further measure along red-tape lines. The letter from the Federation of Small Businesses should be taken into account.
There are other priorities in relation to legal aid that we should be addressing. I am particularly concerned about civil legal aid but I do not want to pre-empt discussions on legal aid in this committee. There is an issue of cost as well. I recognise that the cost would be limited and I recognise that the proposal is limited. At the same time, I must confess that my priorities lie outside the employment tribunal situation.
I ask the minister to consider seriously the matter that I raise. I realise that there might be a cross-border requirement and that the Department of Trade and Industry might have to conduct an overall review of employment tribunals. I suggest to the minister that, before he goes ahead with the proposal, he should consider its wider implications.
Will Phil Gallie clarify which of the statutory instruments he is moving against?
I will be moving against the negative instrument and voting against the affirmative instrument.
I do not agree with much of what Phil Gallie said about employment tribunals. Employment law has become extremely complex and the procedures have become less relaxed than they were when they started out. I am pleased to see a move towards the provision of legal representation for applicants. I do not think that the move goes far enough, however, and I have concerns about the tests, which go beyond the usual tests for applications for advice and assistance for legal aid, ABWOR or whatever.
Regulation 5 of the Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2001 suggests the insertion of a new paragraph (2) in regulation 13 of the 1997 regulations. Proposed new paragraph (2)(c) provides:
"The Board shall only approve the provision of assistance by way of representation in relation to the proceedings described in regulation 3(1) where it is satisfied that . . .
(c) the case is too complex to allow the applicant to present it to a minimum standard of effectiveness in person."
I do not like the sound of "minimum standard", which suggests a poor test indeed. "Reasonable standard" might have been better.
New paragraph (3)(a) provides that:
"the determination of the issue may involve procedural difficulty or consideration of a substantial question of law, or of evidence of a complex or difficult nature".
New paragraph (3)(b) lists other relevant factors to do with the nature of the applicant. Those are stringent tests. From my experience and recent correspondence in The Scotsman, I am aware that many employers are represented on employment tribunals. They are not represented only by specialists, although one or two firms in each of our cities are specialists in this complex area. However, the applicant is not always represented and does not always have the benefit of a trade union—
May I intervene?
I want to finish my question to the minister first.
I suspect that one of the questions on the application form will be to do with whether the applicant has any other means of representation. That will mean that, if an applicant has a trade union that can represent them, they will not get advice and assistance in the first place. We are talking about people who have no one to speak for them. Some people end up going to the tribunal with someone from a citizens advice bureau or another civic organisation.
In a letter to The Scotsman, Peter Hunter, the director of the Scottish Low Pay Unit, says that where neither party is represented in tribunal proceedings, the employee succeeds in 58.9 per cent of cases but when the employer engages a solicitor against an unrepresented applicant, the employee succeeds in only 33 per cent of cases. That does not surprise me. Another letter to The Scotsman, from Des Loughney, the secretary of the Edinburgh Trade Union Council, says that
"Employers have an unfair advantage in a tribunal application. They can afford a solicitor and most applicants cannot. As a result, most applications (65 per cent) are unsuccessful when an unrepresented applicant is confronted by an employer represented by a solicitor."
Will you take an intervention?
I do not think that we do interventions in committees.
There is a debate going on, so members can take an intervention.
If this is a first, I am delighted.
Around 21.7 per cent of employers and 20.8 per cent of employees use legal support. There is not an imbalance.
I would think that it depends on the nature of the case. I do not know about the figures.
They come from the Employment Tribunal Service.
My point is that applicants and employers without money should be entitled to apply for representation. There has to be a balance on representation and I do not think that the regulations provide it. With regard to the test in the regulations, I believe that there are European convention on human rights issues for the Executive.
Phil Gallie raised concerns about how employment tribunals have evolved. I would like clarification of the rule about expenses. I think that it is only in exceptional circumstances that an award of expenses can be made. That has a knock-on effect on the second statutory instrument that we are discussing, which relates to the recovery of costs to the board. I have no problem with costs being recovered from the principal sum when there is no provision for expenses. Perhaps, however, we should think about there being a more discretionary award of expenses in employment tribunals. That would also work in settlements, as anyone who is involved in that area is aware that there is a duty to the board for costs. That would assist employers because if they are successful, there is no award of expenses in their favour—it is my understanding that there is no provision for even a percentage of costs to be awarded.
Employment law has become much more legalistic and less informal and the small claims procedure is going the same way, but that is another issue.
I have no problems with the matter of frivolous claims. There is a sifting process in employment tribunal systems that goes through preliminary hearings. Perhaps the minister could clarify that matter and assure me that that has not changed. I want the minister to address the test of whether the matter is too complex to ensure a minimum standard of effectiveness if the applicant were to appear in person. That is not a test that anyone else has to pass when applying for advice, assistance or legal aid. I would also like the minister to say something about the expenses rules on employment tribunals and applications by respondents to the board for advice and assistance—I am thinking of the small plumbers and so on who do not have large assets and will have to represent themselves.
There is an issue—albeit a reserved one—about the process of tribunals and about how complex they have become. That is what I did for a living, more or less, in my career. I constantly had to remind the chair of the tribunal that the procedure was supposed to be simple enough for people to understand, but lawyers quote case law and refer to cases in Europe and so on. An ordinary person with no legal background is at a disadvantage when they apply to an industrial tribunal. I welcome the regulations as they go some way towards addressing that problem, although we have obligations arising from the ECHR.
I will address some of Phil Gallie's points. A large number of employees are not represented by a trade union. Furthermore, trade unions do not always offer solicitors to their members. We should bear that in mind.
It is for other people to argue if they feel that there is an imbalance in relation to small businesses. That point has already been made. However, to take account of the differences in resources, the law says that small businesses do not necessarily have to settle in the same way as big businesses have to.
I want the minister to address the issue that Christine Grahame has drawn to his attention. New paragraph (3)(a), which regulation 5 suggests should be inserted in principal regulation 13, says that
"the determination of the issue may involve procedural difficulty".
The test is therefore not absolute. I would be concerned if the test were applied only when the board felt that there was a substantially complex issue. That might mean that only a tiny number of cases were being assisted. How does the minister envision the test being applied?
Before I call the minister to reply—no other members have indicated that they wish to speak at this point—I will make one or two points of my own. First, in the documentation that you have supplied, minister, I believe that you refer to the estimated annual cost as £200,000. Could you clarify how that figure has been arrived at? Has it been calculated on the basis of analysis of previous cases over a recent year—of whether people may have been eligible for assistance?
My second point was raised with me by the Federation of Small Businesses: that of consultation. The FSB is saying that there has been no consultation with it on the statutory instruments. While we might accept that we feel a legal obligation under the European convention on human rights to introduce the regulations, I do not believe that there is any necessity for them to be introduced on 15 January. Some later date that allowed for consultation with the FSB and other interested bodies might have made the situation more acceptable. In fact, I was told by the FSB that it did not necessarily have any objections to the instruments; it simply wishes that its members had had a chance to talk over their implications with the Executive.
Was there no consultation? If not, why not? Who exactly was consulted on the draft regulations? I understand that there was no open consultation and that even the closet consultation was not very wide ranging. I am not even sure whether the Employment Tribunal Service was consulted.
I will start with the points that you have raised, convener, first as to why our cost estimate is £200,000. That estimate is based—this can only be a best guesstimate—on having 300 cases a year that qualify at about £600 per case. Time will tell whether that is correct, but it is the best estimate that could be made. Even if the budget was double the present amount, the financial implications could still certainly be met from the justice department's budget and from the resources that we make available to the Scottish Legal Aid Board.
As for consultation, I can confirm that the Federation of Small Businesses was not consulted. Perhaps that was an oversight, but I do not think that there has previously been any consultation on legal aid changes: there is no history of the FSB being consulted with regard to such changes. That is probably because legal aid is available to natural persons, but has never been available to businesses or partnerships. Therefore, it did not feature on the radar screen.
The regulations were brought in quite quickly because there was an assessment that, as things stood, there was vulnerability to challenge under the European convention on human rights. Indeed, there have been a number of cases. When I met the committee earlier in the session, I said that a number of cases have now been brought on that point. On further consideration of the issues raised by those cases, we believed it important to make provision. That is why we have taken these measures with some urgency.
Phil Gallie said that the measures are premature and that a full review of the tribunal system is needed. I think that Pauline McNeill agreed that there is such a need, but she said, quite properly, that it is a reserved matter and that it is not possible for Scottish ministers to overhaul the tribunal system. That answer applies, too, to a point that Christine Grahame made.
Is it the case that the proceedings of employment tribunals south of the border are recorded, although north of the border they are not?
I cannot answer that question now, but I will find out the answer.
The fact that the tribunal system is reserved also explains why it is not possible to introduce discretionary expenses. I will say more about expenses at employment tribunals in a moment. We are faced with the circumstances that exist in Scotland and are trying to address a shortcoming in relation to legal assistance for applicants before a tribunal.
I do not think that we are arguing about whether the ECHR requires change to the current system. Surely the question is what that change should be. The FSB is saying that it would like to be consulted on the precise nature of the changes that are being introduced but is not necessarily arguing that there should be no changes.
I will outline the nature of the changes that we have made. I said in my opening remarks that although, generally, the European convention on human rights does not require the availability of civil legal aid, in the case of Airey v Ireland, the European Court of Human Rights found that, in a particular set of circumstances, civil legal aid should have been made available and set out tests. The judgment in that case gives indicators as to the circumstances in which some form of legal assistance should be made available in civil cases.
The manner in which we have drafted the regulations reflects the nature of the tests that were set out in the Airey case. That explains why the regulations refer to cases that are arguable or too complex or in which it is reasonable that assistance by way of representation be made available, and to features that may relate to the person rather than to the case.
I will address a point that was made and on which Pauline McNeill may want to come back. New paragraph (2) gives the circumstances in which the board "shall" only approve the provision of assistance and new paragraph (3) states what the factors that should be taken into account by the board in determining whether new paragraph (2)(c) applies "shall" include. I think that Pauline McNeill said that the word "may" was used. In fact it is a requirement that the board should be satisfied about those circumstances and factors.
I have not read the case to which you referred. Is the expression
"the case is too complex to allow the applicant to present it to a minimum standard of effectiveness in person"
in new paragraph (2)(c) lifted straight from that case?
It is not a direct lift. It is an interpretation of the circumstances in which civil legal assistance should be given that were outlined in the Airey case.
I would also like clarification of the term "minimum standard". Usually, the word "reasonable" is used.
I do not think that the word "minimum" appears in the Airey judgment. At the end of the day, these will be matters for the board to interpret, and its decision would be subject to judicial review if it were felt that the interpretation was not proper. This measure reflects the point that both Christine Grahame and Pauline McNeill made about the increasing complexity of cases. The complexity of a particular procedure, of evidence or of important legal points, and the increasing use of case law may well lead to circumstances in which the applicant would be able to make a good case under these regulations for legal assistance by way of representation. As I indicated, we expect that there will be some complexity in at least 300 cases a year, which is no small number.
On that point, minister, £600 a case seems a terribly low figure. I take it that that will include fees, outlays, witness costs, the lot. Is that correct and is the fund finite? If one applies halfway through the year and the £200,000 is no longer available, will that be that?
No. As I indicated, our figures may be out; the total may be double that amount.
What if the total is 10 times that amount?
The resources will be available. As Christine Grahame knows, civil legal aid is demand-led. If there is a huge increase in the demands on the legal aid budget, we will have to consider other competing pressures. As things stand, we do not anticipate any difficulty in being able to fund the claims that will be made as a result of these provisions.
Do you agree that £600 is an extremely modest figure? Gordon Jackson would not appear for that amount of money.
It bears comparison with other ABWOR cases. I agree with Phil Gallie's comment that it is important to remember that we are talking principally about those tribunals where the original concept was that they should involve a degree of informality, that they should not become unduly formalised and that their procedures should be comparatively straightforward.
We may have drifted away from that concept but, as a general rule, it should not be necessary for persons who appear before those tribunals to have legal representation. That principle would benefit the vast majority of applicants who appear before those tribunals. However, we must try to strike a balance, as cases exist where the issues are too complex. Even in those cases, we have applied roughly the costs of other ABWOR cases—I hate the word ABWOR, but it is shorter than saying assistance by way of representation.
I can only say that, by extending legal aid in this way, we are taking a completely novel route and therefore our figures must be estimates. However, they are honest estimates and we have made them as best we can. While we will monitor the situation, as I said, our estimates could be out by some distance. Despite that, we will still have the resources to fund the extension.
I appreciate that this is a reserved matter, but now that we are talking about European legislation as well as UK legislation, do you think that representations should be made on changes to the award of expenses in employment tribunals? The complexities are enormous—employment law may be as complex as commercial law. Do you think that we should move in the direction of awarding expenses in employment tribunals?
Just before I come on to that particular point, I will take the opportunity of making some general comments about expenses in employment tribunals.
As Christine Grahame pointed out, employment tribunals have no power to award expenses, unlike sheriff courts, for example. Expenses do not follow success in tribunal cases and, accordingly, parties must meet their own costs. In the case of someone who is legally aided, the solicitor is required to recover his costs in the first instance from any winnings and only then can the balance be claimed from the legal aid fund. That means that anyone who receives legal aid and is successful in a tribunal would have their award reduced by the cost of legal aid, which might wipe out their entire award. We have brought in the regulations that are subject to negative procedure so that the successful, legally aided tribunal applicant is able to keep the award and will not have to pay expenses. I hope that the committee thinks that that is a fair way of proceeding.
I would not want to make an immediate judgment because, as I said earlier, if we are trying to retain some degree of informality and make tribunals generally accessible, the ability to make discretionary awards of expenses—particularly if there was a presumption that expenses would follow success—might deter people from pursuing employment claims to a tribunal. Many factors would have to be taken into account before we went down that road. It may well be that the time is right for a general examination of the tribunal system. However, as I have indicated, that is not a matter for Scottish ministers, although it is a matter that Westminster may wish to consider.
Can we debate the issue of the three tests—whether the case is arguable, reasonable and too complex—and the factors to be taken into account. You talk about the test that is set out in new paragraph (2)(c):
"the case is too complex to allow the applicant to present it to a minimum standard of effectiveness"
and the factors to be taken into account when determining whether the case is too complex, as set out in new paragraph (3), including that
"the determination of the issue may involve procedural difficulty or consideration of a substantial question of law".
I would not want it to be the case that the determination of whether a case is too complex for the applicant to present would rest on whether it is a substantial question of law. Consider a sex discrimination case that would be heard by an employment tribunal, which would be extremely complex for most people to understand. However, it might not turn on a substantial question of law, but might turn on the evidence. I would like your assurance that you accept that the reason for the wording of the regulation—
"the determination of the issue may involve procedural difficulty"—
is that assistance would not be decided simply on a substantial question of law. Do you appreciate my concern?
Yes. Ultimately, it is for the Legal Aid Board to interpret the criteria, subject to judicial review. The regulations set out the kind of considerations that the Legal Aid Board should take into account. It could be that the matter under consideration is a substantial question of law, but it could also be one of procedural difficulty. It is not cumulative—any one of the criteria could apply in a particular case. There is a fair scope for assistance for representation to be granted. Pauline McNeill might be more concerned if the regulations attempted to narrow that definition, for example, if there had to be a combination of all three criteria.
I understand that it does not have to be all three. I would be happier if the paragraph said a "question of law" rather than a "substantial question of law".
I could accept that, because almost any case involves the consideration of a question of law. The question might be a simple point. I would not accept that that in itself merited assistance by way of representation. There has to be a step up before someone would qualify for ABWOR. The vast majority of cases involve a question of law.
Every case has a question of law. Every case that goes before a tribunal must include a question of law.
Yes, the question is whether the law applies in any given case.
The question is whether the evidence that is led justifies granting the remedy that is sought. Every case includes a question of law, albeit the question of law is so obvious that no one wants to talk about it.
I was stopping just short of that, in case there were circumstances in which the argument did not rest on a point of law, but I think that Mr Jackson is probably right. The general point that I made still applies: almost every case would qualify, but that is certainly not the intention.
Would it be relevant to state on a legal aid application that the respondent should be legally represented?
That would not be relevant to the specific criteria that are laid down, but, as Christine Grahame will see, new paragraph (2)(b) of the regulations states that the provision of assistance will be approved if
"it is reasonable in the particular circumstances of the case that assistance by way of representation be made available".
In particular circumstances—not in all circumstances—the Legal Aid Board may take that factor into account, but that is a matter for the Legal Aid Board. When the circumstances of a case become apparent, it may be obvious whether that would be relevant. However, it does not automatically follow that, in every case in which the employer's side has legal representation, the applicant would qualify for assistance by way of representation.
You do not think that the applicant would be disadvantaged if the employer had legal representation and they had not?
I know from experience that, in the case of a party litigant, the disadvantage is on the side of those who are legally represented. Such tribunals proceed more often by an inquisitorial rather than an adversarial route. They are intended to maintain some degree of informality, so that, in the vast majority of cases, the applicant can present a case in their own way.
I commend both sets of regulations to the committee, which helpfully advance the provision of legal assistance in Scotland, and not only as a requirement of the European convention on human rights. In the context of the second set of regulations, which are subject to a negative procedure, if the applicant has been successful and legal assistance has been made available, the proceeds of that success should not be taken away from them in circumstances in which the tribunal cannot award expenses against the unsuccessful party.
I am disappointed to hear the minister say that he will press ahead, especially having heard the convener's and Christine Grahame's comments. Christine made a good case concerning the poor employer—she referred to someone who runs a small business—who does not have much cash and is not in the position to provide legal support. The minister said that legal aid has never been available to business, but it has never before been available in the employer tribunal situation either. Nevertheless, if there were the political will, those things could be achieved.
Alasdair Morgan made a point about the time element. Although many will regard the minister's motivation as being sound and well intentioned for the future, Alasdair's comment about taking more time to consider the issues is relevant. We should certainly examine the wider implications and the minister would be well advised to do so.
The minister gave his estimate of the case costs—£600 a case—but Gordon Jackson suggested that that figure is considerably lower than the cost that he would anticipate. Many complicated cases go to industrial tribunals, which do not involve appearances for one or two days, or even for a week. The investigations sometimes continue for many months and require a number of hearings, and the costs that are involved can be substantial.
I think that the minister himself referred to the fact that employment issues are becoming more legalistic. That is unfortunate given the comments that he made about the inquisitorial nature of the industrial tribunals and the philosophy from which they come. The fact that the chairman is there with a neutral view and an informed legal mind and is partnered on either side by people from both sides of the dispute is supposed to give a balanced view, one that is not necessarily based on the law but is based on opinion and the facts of the individual case. My fear is that if we involve the lawyers to a greater extent, that will be lost.
I can well recognise the Law Society's interest in the matter, as there is obviously good business here for lawyers. However, it is more important to consider what is good business practice rather than what will provide more business for the legal profession. I am obliged to move against the minister's motion. I would pull back from doing so if he were simply to change the time scale to allow other issues to be considered. He could still achieve his objectives by doing so, but he could also take account of the valid points that have been raised.
The question is, that S1M-1398, in the name of Jim Wallace, be agreed to. Are we agreed?
No.
There will be a division.
For
Barrie, Scott (Dunfermline West) (Lab)
Jackson, Gordon (Glasgow Govan) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
Against
Gallie, Phil (South of Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
Abstentions
Grahame, Christine (South of Scotland) (SNP)
The result of the division is: For 5, Against 2, Abstentions 1.
Motion agreed to.
That the Justice and Home Affairs Committee recommends that the draft Advice and Assistance (Assistance by Way of Representation) (Scotland) Amendment Regulations 2001 be approved.
We now move to motion S1M-1422.
I move,
That the Justice and Home Affairs Committee recommends that nothing further be done under the Advice and Assistance (Scotland) Amendment (No 2) Regulations 2000 (SSI 2000/399).
Lyndsay McIntosh has just pointed out to me a useful piece of information. We should draw to the attention of the committee the fact—
We are now debating the motion against the negative instrument. Is that what you want to talk about?
It relates to expense, which was raised by the minister. I was unaware that Stephen Byers is considering changes to employment tribunals and that a consultation process on that is under way. My point is relevant to the instrument. As the minister did not refer to that point and I was not aware of it, we should make him aware of it.
He knows now.
The question is, that motion S1M-1422, in the name of Phil Gallie, be agreed to. Are we agreed?
No.
This is your motion, Phil.
Sorry. Thank you, Gordon. I meant to say yes.
Concentrate, man.
I suspect that not everyone is agreed. Are we all agreed?
No.
There will be a division.
For
Gallie, Phil (South of Scotland) (Con)
McIntosh, Mrs Lyndsay (Central Scotland) (Con)
Against
Barrie, Scott (Dunfermline West) (Lab
Grahame, Christine (South of Scotland) (SNP)
Jackson, Gordon (Glasgow Govan) (Lab)
MacLean, Kate (Dundee West) (Lab)
Macmillan, Maureen (Highlands and Islands) (Lab)
McNeill, Pauline (Glasgow Kelvin) (Lab)
The result of the division is: For 2, Against 6, Abstentions 0.
Motion disagreed to.
We have to report to the Parliament on the affirmative resolution that we have just passed. Normally, this report would be formulaic—we agreed by e-mail a formula that was suggested at a recent meeting. In this case, however, we might want to add something about the nature of the consultation and the fact that some people were concerned that there had not been a period in which various organisations could be consulted on the instrument. We could insert words to the effect that we hope that, when instruments of this sort are introduced in future, due consideration will be given to consulting interested parties. Would members favour inserting something of that nature into the report?
I would not mind. I do not accept that the Federation of Small Businesses should have been consulted. I do not think that that point is relevant. I am not opposed to saying that in future interested bodies should be consulted. However, it is not our responsibility to consult the federation on matters relating to applicants to tribunals. If we did that, we would have to consult a host of other people.
I did not intend to mention a specific organisation—its name will appear in the Official Report of this meeting. I intended simply to make a general point.
I am happy to criticise the Executive when I feel that it has not consulted, but on this occasion I do not want to do that. A limited extension—for some people, perhaps, too limited—was the minimum that could have been done to ensure compliance with the ECHR. When the Executive has to meet a minimum requirement, I do not think that it can be criticised for not consulting on that. If the Executive had decided to grant legal aid much more widely, it could have been criticised for not consulting on that. However, in this situation it would be a wee bit hard on the Executive to criticise it. I never thought that I would say those words.
I quote from Stephen Byers's press release, which states:
"Draft amendments to employment tribunal rules of procedure are due to be published in the New Year and are due to come into force in early Spring 2001 depending on statutory consultation and Parliamentary approval. Regulations to implement the ACAS arbitration scheme are expected to be introduced shortly. The Small Business Service and other organisations were consulted".
I am concerned about the different approach that is being taken north and south of the border. Here similar organisations were not consulted.
I apologise to Gordon Jackson. I understand that he did not make a statement about costs. I am happy to lay claim to that statement—I still think that the proposal was under-costed.
I return to the point about consultation. I have some sympathy for the point that Pauline McNeill made. It is recorded in the Official Report of the debate on these statutory instruments that there was disquiet about the level of consultation. That, in itself, may or may not be seen as indictment of the Executive. That is one reason for debating statutory instruments and keeping a report of everything that is said, unlike in industrial tribunals, where no report of proceedings is kept.
Are you arguing in favour of a formulaic report in this instance?
Yes.
Is it appropriate to refer to a minority concern about the severity of the test set out in new paragraph (2)(c) for persons applying for legal advice and assistance in these cases, as compared with that in other cases? The test is usually that granting legal aid would be reasonable in all the circumstances and would be in the public interest, and that the applicant has an arguable case. This instrument includes a further test under which the board must be satisfied that
"the case is too complex to allow the applicant to present it to a minimum standard of effectiveness in person."
I am concerned about that.
It would be fair for us to note that concern. On this committee we have always had a policy of allowing members to express a minority view. That has meant that in our reports we have given people an honest picture of debates. If Phil Gallie or another member has had a disagreement with the rest of the committee, people reading the report have been able to see what the disagreement is. That is appropriate.
We can obviously just refer to the Official Report in our report. There is nothing to stop the committee inserting other concerns in the report, but I would like us reach a consensus on what we insert.
We were concerned about it.
Yes, I think that we agree that there were concerns. We can say in the report that there were concerns about the minimum conditions in which assistance would be granted. It would be equally valid to say that there were concerns about the degree of consultation that was undertaken.
As long as we make it clear—I am sorry if I am repeating myself—that those were minority concerns and were the concerns not of the committee but of some members, I do not have any problem with what you suggest.
I am happy with a statement that some members of the committee expressed concern.
As we will not meet again before the instrument comes into force, I will e-mail a draft report to members as soon as possible. People will be expected to reply, but, in the best legal tradition, failure to reply will be taken to signify consent.