Justice and Security Bill [HL]

Baroness Turner of Camden Excerpts

Monday 23rd July 2012 Lords Chamber

[Lord Hodgson of Astley Abbotts]

My Lords, I have tabled Amendment 70 in this group. The noble Lord, Lord Beecham, has covered the points and I do not wish to weary the Committee with repetition. Amendment 70 would remove subsections (3) and (4), as well as subsection (2), and is therefore more brutal in its application. One of the briefings I received on this part of the Bill said that this was a potentially,

“unwarranted extension of an unsatisfactory procedure”.

I therefore support what the noble Lord was saying about the dangers of mission creep, which we have discussed before. As we keep hearing it stressed that this is going to be a very rare procedure, it seems strange that we should allow courts to be added in what is essentially a pretty cavalier manner. I am all for statutory instruments and their positive nature, but they are unamendable and inherently too weak to tackle something that is as dangerous and difficult as this area that we have been discussing these past few days.

Subsection (4)(a) refers to “explaining the meaning” of “rules of court”. Do they really need to be explained? Are we not, as the noble and learned Lord, Lord Woolf, has explained to us, able to rely on judicial discretion and ability to interpret? I am concerned that explaining the meaning of the rules of court carries with it, in some more sinister way, an instruction as to what they mean and what judges should do. Similar wording in subsection (4)(b),

“enabling provision of a particular description to be made by such rules of court”,

seems to me, as a non-lawyer, to carry with it a degree of direction and fixed purpose that does not fit well with the sensitivity of the nexus that we have been discussing between civil liberties and the need to protect national security.

[Baroness Turner of Camden]

My Lords, I am not a lawyer but I am a former trade union official and tend to look at the proposed legislation before us from the standpoint of people who are working in industry and are members of unions. I am most concerned about the possible impact of this law on employment legislation.

We know that the Government are currently considering employment law and have been considering employment tribunals now for a very long time. Every time I have asked about employment tribunals I have been told that they are under consideration and that the Government are looking at them, and so on and so forth. Every time that employment tribunals, or tribunals of any kind, make an appearance in legislation, I ask what the Government are up to and what it means. Can we be told whether there is an impact on employment in subsections (2) and (4)? It is these two subsections, referred to in Amendment 70, that first attracted my attention. Can we be told precisely what these subsections are intended to involve regarding reference to tribunals, with all that that could mean for employment law?

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Turner of Camden Excerpts

Tuesday 24th January 2012 Lords Chamber

[Lord Alton of Liverpool]

My Lords, I, too, want to add my voice briefly in support of the amendments moved by the noble Lord, Lord Avebury. Perhaps it would have been surprising if anyone other than the noble Lord had moved these amendments. I was at school when the noble Lord, as Eric Lubbock, Member for Orpington in the House of Commons, moved his Gypsies and caravan sites legislation in, I think, 1967. Many of us admired the courageous way in which he has continued over the following years to raise the plight of Travellers and Gypsies in the discrimination and racism that other noble Lords have referred to in the debate.

As a young city councillor in the 1970s, I served in Liverpool on the committee which was charged with the duty of creating a caravan sites Act. The noble Lord, Lord Storey, who is in his place, will recall the controversy that that aroused at the time. But we fulfilled our statutory duties and took on the prejudice that inevitably was raised. The not-in-my-back-yard syndrome is one with which we are all familiar. Indeed, it has to be said that the presence of Travellers or Gypsies in a community can raise a number of issues, not the least of which are questions of educational provision. In the 1970s, that provision was made, and I agree with what my noble friend Lord Listowel said about the importance of providing stability of education for the children of Travellers as they progress through life.

A few months ago we saw what happens when there is an unregulated approach to these matters. At Dale Farm there was a terrible culmination in violence that involved the use of Tasers. We saw the police having to be pitted against members of the Traveller community as they were evicted from their homes. That is not a sight that most of us want to see repeated on a regular basis. But I fear that unless amendments of this sort are incorporated, and if we deny people access to justice, which was the point made by the noble Lord in his speech, all these other things will follow. They will be the corollary. If we do not provide opportunities for resolution on planning disputes and access to amenities, as well as on questions of discrimination and the others that have been raised during this brief debate, we will see more incidents like Dale Farm. For that reason, I hope that when the noble and learned Lord comes to reply, he will tell us just how many unauthorised sites there are in the country, what is the estimated shortfall of places—that will give us a barometer of how many disputes will have to be resolved in the years to come—and the cost to the public purse through legal aid of cases which have been brought before the courts over the past decade? Without knowing what the sums of money involved are, surely it would be irresponsible of us to dismiss lightly the amendments to maintain the status quo which the noble Lord, Lord Avebury, has put before us today.

I end by returning to his point about the importance of ensuring that people have access to justice. That runs all the way through the proceedings of this Bill in your Lordships’ House, and it will continue to be the question. You cannot get justice on the cheap, and groups like these should not be left on the margins, unable to access the courts.

[Baroness Turner of Camden]

My Lords, I support the case that has been made so well by the noble Lord, Lord Avebury, and my noble friend Lady Whitaker. It is well known that the Gypsy and Traveller communities are among the most vulnerable and disadvantaged communities in England and Wales in terms of health, education and discrimination. It is almost universally accepted that these disadvantages and problems would be addressed if there was adequate site provision. Of course, that does not really happen, because it looks to me as though local authorities fail to follow government guidance on encampments, to take into account human rights considerations and to follow a proper and reasonable process in relation to sites for Travellers. If Gypsies and Travellers get involved in county court and High Court planning cases without the assistance of legal aid, they will eventually end up homeless. That is surely to be avoided and a distinct worsening of the situation. It is something that we should not be prepared to countenance. I therefore hope that the Government will give due consideration to the excellent case which has been made by my noble friends with a view to accepting it. These people deserve our support and consideration.

[Lord Elystan-Morgan]

My Lords, I find myself in total agreement with everything that has been said so far by all noble Lords who have spoken to this amendment. The arguments have been put fully, lucidly and with great force, and certainly do not need me to underline them. However, I would say two things. Many years ago, I felt that there was an equitable balance between the interests of Travellers and those of the community at large, a balance which had been brought about by the legislation for which the noble Lord, Lord Avebury, fought so valiantly over the years. It was necessary under that legislation for local authorities to provide certain basic facilities for Travellers. That balance was maintained by a flagship judgment by the late Mr Justice Peter Pain, a most humane and pioneering judge, who said to a county council in Wales: “You are seeking injunction to remove these Travellers from a lay-by whose freehold is vested in your good selves. On the other hand, you have, I think in a cavalier way, done nothing at all to implement the obligations which were placed upon you to provide for Travellers. An injunction is an equitable remedy. I exercise my judicial discretion not to grant it until I am convinced that you, too, will carry out your statutory obligation”. Unfortunately, the law has now been changed and that balance no longer remains, which makes this group of amendments all the more relevant.

The other thing that I would say, as one who exercised a family jurisdiction for some years, is how obvious it was to me that insecurity ate like acid into the lives of children of Traveller families, particularly in the context of education.

Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Turner of Camden Excerpts

Tuesday 24th January 2012 Lords Chamber

[Baroness Turner of Camden]

My Lords, I, too, support my noble friend’s amendment. The Government have not got their act together on this. We are told that these rights are being taken out of scope because there are other means of dealing with them. Well, the other means of dealing with them, of course, are via the arbitration system, but it is not very long ago since we debated in this House a set of proposals emanating from another wing of government, the Business Secretary, which were designed to weaken employment law on arbitration.

It was proposed that in future a dismissed employee should have to pay a fee before getting a case to an arbitration tribunal. And then, when the employee came before an arbitration tribunal, he would not face the kind of arbitration tribunal that we are used to for dismissal cases, with lay members from both sides of industry sitting on it—oh, no. In future, there would be no relatively friendly environment in which an individual could make a submission, perhaps without being legally represented, but a judge sitting on his own. In other words, it would be a much more legal system, and this legislation makes provision for no legal aid to be provided. That is totally unsatisfactory.

On the one hand, you have a Government saying, “Well, there are other means of dealing with the situation through a non-legal system”; on the other, they are doing everything possible to make it difficult for someone who has been dismissed unfairly, as they feel, to take their case to an arbitration tribunal instead of the law. This is absolutely unsatisfactory and I really do think that the Government have to re-examine their policies in this regard. It is totally unfair to individuals who believe that they are doing a good job of work, who become dismissed and who feel that they have a case, and there is nowhere for them to take it.

[Lord Howarth of Newport]

My Lords, I, too, support the amendment. It must make practical sense to put employment cases back into the scope of legal aid. Worryingly, we face the prospect of rising unemployment. We could see significantly rising unemployment if there were to be a disorderly collapse of the euro. Let us hope that that does not take place, but the interaction of global economic circumstances with the Government’s deliberate policies to reduce employee protection in the interests of liberalising the labour market could result in significant numbers of people becoming casualties. While the Government might argue that the overall economic process will be benign in the interests of this country, it is unquestionable that these circumstances may be malign in the interests of individuals.

In a process of economic adaptation, it is extremely important that, as a society, we take decent and proper care of those who may be the casualties of it. It must be a basic right that people should have legal aid to ensure that they are well advised and that, where necessary, they are represented and their cases can be well made in employment tribunals. What they are personally suffering is a product partly of events and partly of policy, and all of us have a responsibility to ensure that, in times of great economic difficulty, no more people suffer in these processes of change than is truly necessary.

If someone has a genuine right to bring a case against unfair dismissal or some other aspect of their employer’s treatment of them, and they are not supported to make that case, it leads to a sense of injustice. A sense of injustice pervading society in a context of economic stress and social strain cannot be something that the Government want.

If we look at the implications for individuals, again, surely Ministers do not want people to suffer unduly or to incur the costs to the public purse that one can foresee occurring. If someone loses their job, as my noble friend Lord Bach has pointed out, they are liable to become reliant on benefits and could be on the start of a slippery slope that leads to debt, homelessness, the destabilisation of family life, and physical and mental ill health, all of which carry costs to society and to the public purse which surely the Government would wish to avert.

I do not know whether it is the case—it has been suggested to me that it is—that the Government have received advice from those responsible for the conduct of the employment tribunals that it is a mistake to take employment cases out of the scope of legal aid. It would be helpful if the Minister could advise the House whether the Government’s policies have been endorsed or criticised by employment tribunals and whether they have been advised that it would be wiser not to take this course.

For all the reasons that noble Lords have put forward and those that I have suggested, I hope that the Government will accept the amendment. If they are unable to accept it today, I hope they will look carefully again at this area of reduction in legal aid before we come to Report.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, the lesson of this is to get an answer quickly so that you do not get other questions accumulating. I know that my noble friend has considerable experience from his time in dealing with tribunals. I cannot remember what his exact role was, but I know that he was very much involved and I remember meeting him when he had that role and I was in another Parliament. As I indicated, over the years it has perhaps become much more formalised but we should not lose sight of the fact that the intent of the tribunals system generally, no matter what they might want to call it, is to have a forum in which people can much more readily come and put their case forward than one with all the formality of the court. Indeed, as I indicated, that was part of the thinking as to why we are dealing with the tribunal system. Perhaps the necessity of it is, let us say, that there was a less compelling argument as to why these cases should therefore be brought within scope than would otherwise be the case.

[Baroness Turner of Camden]

My Lords, one of the points that I made was that the Government were intending to change the nature of the tribunals, by removing the lay people who sit on unfair dismissal cases and replacing them by a judge sitting alone. In other words, they are giving a much more legal feeling to the person who appears before them than when there were laypeople on tribunals. I am not a lawyer, but I have a lot of experience of tribunals. I sat for many years as a member of the arbitration commission, and so on, so I know quite a lot about the way in which laypeople operate on tribunals. It is certainly a much more friendly arrangement for an individual appearing before such a tribunal than if he or she appears before a judge sitting alone. That changes the nature of the tribunal and of the apparatus. I wanted to raise that with the Minister.

[Lord Wallace of Tankerness]

I accept that there is obviously a distinction between a tribunal and a more formal court setting. It was in the context of those proposals, which are not before us in legislation, that I indicated I would respond in more detail. Likewise, I will respond to the noble Lord, Lord Howarth. He asked a perfectly straightforward and fair question and I very much regret that I cannot give him an answer, but I will certainly do so and ensure that that response is circulated to other Members who have participated.

Justice: Personal Injury Cases

Baroness Turner of Camden Excerpts

Tuesday 20th December 2011 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I perfectly recognise that the issue of clinical negligence is one that many Members of your Lordships’ House raised during Second Reading, and I am sure that it will be fully debated when we reach the relevant stage in Committee. We say that “after the event” insurance premiums should be allowable in cases of clinical negligence. Indeed, we are seeking through the NHS and those who represent claimants to try to ensure that, where there can be joint reports and better agreements between the two sides, that should be done. I hope that we can make progress on that but no doubt it will be fully debated in the weeks to come.

[Baroness Turner of Camden]

Does not the Minister think it very unfair that somebody who has been injured through somebody else’s fault, and is suing on the basis that someone else is at fault, should lose some of their compensation even though it is not their fault?

[Lord Wallace of Tankerness]

My Lords, success fees are intended to cover the risk of not winning and the lawyers not being paid. In many cases where there is personal injury there is a very low risk of that happening. Indeed, it begs the question whether it is necessary for solicitors to charge success fees at all in these situations. However, as my noble friend Lord Gold pointed out at Second Reading, claimants who fund themselves often do not receive the full amount of their compensation. It seems rather odd, to put it mildly, that those who are funded by the taxpayer should get the full amount back but those who fund themselves do not recover the full amount of their compensation.