Legal Aid

Debate between Lord Faulks and Baroness Turner of Camden

Thursday 4th December 2014 Lords Chamber

[Lord Faulks]

It used to be a convention that judges did not criticise politicians and politicians did not criticise judges. I do not propose to depart from that convention. What I can say is that both those litigants have in fact been able to get legal aid. There remain the exceptional funding provisions under Section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act, which apply to cases in which there is said to be a violation of the convention or an EU provision. In fact there is a difference, and one should not conflate this, between scope and eligibility. Usually there is scope for these things, but the individual applicants nevertheless have to satisfy the tests of eligibility.

[Baroness Turner of Camden (Lab)]

My Lords, is the Minister aware that the Bar Council has recently reported, after a review of LASPO, that the Act means that poor people generally speaking cannot get their cases heard in courts at all? Many of them try to represent themselves, though not very effectively. It is not a very good way to celebrate Magna Carta, as we shall be asked to next year, when we have a situation in which poor people simply cannot get their cases heard at all. This is particularly true as far as employment issues are concerned.

[Lord Faulks]

Litigants in person have always been a feature of the legal system. Clearly, any judge—I speak as someone who has sat as a judge—would much rather have a case in which both parties were represented by highly competent lawyers. Unfortunately, we have had to make certain cuts. The cuts, when fully implemented, will reduce the amount that we spend from £2 billion per year to £1 billion. This still makes us one of the most generous countries in the world. We are of course listening carefully to any anxieties that people have about there being injustices. We have committed to review LASPO on a period of three to five years.

Enterprise and Regulatory Reform Bill

Debate between Lord Faulks and Baroness Turner of Camden

Monday 22nd April 2013 Lords Chamber

[Baroness Turner of Camden]

My Lords, the Government introduced at a late stage in the Commons proceedings, and with very little consultation, a clause to remove civil liability from health and safety offences. This would mean, as has already been explained, that a worker who is injured because their employer broke the law by failing to carry out a statutory obligation would find it much more difficult to claim compensation for the injury. It would also make the law much more complex. As a result, many workers or their dependants will lose out on compensation, causing further injustice.

The Government have claimed that they introduced this amendment to implement a recommendation from the recent Löfstedt report into health and safety regulations. However, Professor Löfstedt has since made it clear that this is not what he proposed and the government amendment went well beyond what he recommended.

We voted to remove the clause in a move that was welcomed by victims’ groups, the legal profession and health and safety professionals. The Commons, however, has voted to disagree with our amendment. I do not know why. We should maintain the position that we took up before; it is reasonable and fair. We have to remember that there are many industries anyway where there are inherent dangers to workers. Where there are statutory regulations, those should be applied and the workers should be able to claim if those statutory regulations are not complied with, which is what the present law provides for. We have been advised by lawyers concerned with these employment issues that if the amendment we are proposing is not carried and the Government’s position is maintained, we would be taking the law and the employment right consequent upon it way back beyond the beginning of the previous century. That really is quite unacceptable, and I hope therefore that your Lordships will agree to maintain the position that we took before as far as this clause is concerned.

[Lord Faulks]

My Lords, I was unable to attend previous debates on this clause but I have had an opportunity of reading what was said in your Lordships’ House and in the most recent debate on the amendment in the other place last week. I declare an interest as a practising barrister with experience in this area of the law and as a former special adviser to the last Government on an inquiry into the compensation culture.

Noble Lords, and particularly the noble Lord, Lord McKenzie, in a number of thoughtful contributions to the debate, suggested that to legislate on the mere perception of a compensation culture was to do so based on a “flimsy structure”. He accepted that there had been a problem of overcompliance with health and safety but he said that there was now a problem with undercompliance. I am unsure of the basis for this last assertion and it is not reflected by the report of Professor Löfstedt or by the report two years ago by my noble friend Lord Young of Graffham. Both identified a perception of a compensation culture, as did the report produced by Parliament when I was a special adviser. This cannot be dismissed on the basis that to respond to it is simply to pander to myths. There is a strongly negative effect on employers and indeed on schools and local authorities which feel the need to set up elaborate systems to combat largely hypothetical risks. Overcompliance costs time and money and makes it more expensive and less attractive to employ anyone, particularly for small and medium-sized enterprises.

The aim should surely be to ensure that all reasonable steps are taken to protect the health and safety of employees, but at the same time employers should not be overburdened with unnecessary and elaborate bureaucracy which can be the enemy of enterprise. I accept that this is a very difficult target to hit and I confess to being a little nervous about how much is left to regulation. However, I feel much more confident in saying that the debate, principally in the other place, was positively riddled with hyperbole. Both there and in your Lordships’ House the opposition Front Bench used the expression “a near impossible burden” when describing the prospects of a claimant bringing a successful action for injuries at work. I simply do not accept that. A breach of a regulation will be regarded as strong prima facie evidence of negligence. Judges will need some persuasion that the departure from a specific and well-targeted regulation does not give rise to a claim in negligence.

Many regulations are sensible, comprehensible and can be effectively interpreted both by employers and the courts, but this is not always the case. For example, the Management of Health and Safety at Work Regulations 1992 were revoked and re-enacted by similar regulations in 1999. Originally they did not give rise to a civil course of action—they now do. The regulations are extraordinarily wide and extraordinarily vague and seem to require extremely elaborate arrangements, ostensibly for health and safety purposes, in particular as to risk assessments. What a risk assessment is and how you prove you have done an appropriate one is problematic. It seems to require quite a number of employees simply to be devoted to compliance with the regulations rather than actually doing the underlying work.

It was said in the other place that this prospective change in the law was “not about compensation” but about “not being killed” and that the change was not simply a matter of red tape. I am afraid that I do not agree with the burden of those comments. Nor are the Government seeking to turn back the clock a hundred years. Rather, these provisions are a response to an overreaction to an entirely appropriate aim which is to ensure health and safety at work. The problem of overreaction is having a negative effect on enterprise. To borrow the title of the report of the noble Lord, Lord Young, the aim of this change in the law is to restore common sense and common safety. I support the Government’s position.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Faulks and Baroness Turner of Camden

Monday 12th March 2012 Lords Chamber

[Lord Faulks]

My Lords, as a young barrister I had quite a lot of experience of going to employment tribunals. It has now become fashionable to talk about equality of arms but on those occasions when I represented the employer I dreaded the moment when the employee was unrepresented. This usually meant that, quite rightly, extra steps were taken by the chairperson and those assisting him or her to make sure that everything possible could be said on behalf of the employee. On the whole, while I am sympathetic to what underlies the amendment, these tribunals were designed for access by ordinary people without lawyers and, while I should be the last person to stress the fact that lawyers are not always the answer, on this occasion I need some convincing.

[Baroness Turner of Camden]

My Lords, I have spoken on this issue several times in the course of the discussion on the Bill. I support the amendment wholeheartedly. I speak, of course, as a former trade union official. It was my job when working for my union to have charge of the legal aid system that we applied to members. When I saw the provisions in the Bill, I hoped that the unions would begin to impress on their members the necessity of belonging to and having the support of the union when they are faced with this kind of problem.

It is, of course, an enormous problem for the ordinary worker and his family, who depend upon his employment, when they suddenly no longer have it. If the worker has been unfairly dismissed, they need to have access to a way of compensating them for their loss. Unfortunately, the Government also have employment policies in train generally that are designed to make it easier for employers to get rid of workers when they wish to do so.

The arrangements that the Government have in mind, which we have discussed from time to time in this House, are that if the worker wants to get to a tribunal he should have to pay to get there. A fee of £1,000 has been suggested. Furthermore, when a worker gets before a tribunal in future, it will not be a tribunal made up of lay members who have some knowledge of the working practices and industry generally; it will be before a judge sitting alone. In other words, it will be a much more legal system, but there will be no legal assistance to represent the member. All I can suggest to the Government is that perhaps there will be consequences that they had not foreseen. In other words, there will be much more interest in union membership and unions will increase their members—and the Government may not be very pleased about that.