Access to Justice: Vulnerable People

Debate between Jo Stevens and Karl Turner

Tuesday 19th January 2016 Westminster Hall

[Karl Turner (Kingston upon Hull East) (Lab)]

It is always a privilege to serve under your chairship, Mr Bailey.

To declare my interests, my wife is employed as a criminal duty solicitor and part-time judge and, before my election to the House, I was a member of Wilberforce barristers’ chambers in Hull. I was a junior member of the Bar and certainly not earning “fat cat” moneys, as the hon. Member for Warrington South (David Mowat) might want to believe.

I congratulate my hon. Friend the Member for Aberavon (Stephen Kinnock) on securing this important and timely debate. It could not have come at a better time, because the commission chaired by Lord Willy Bach is as we speak hearing evidence from experts in the professions on how we deal with this problem of access to justice and legal aid.

The Bach commission was established by my right hon. Friend the Member for Islington North (Jeremy Corbyn), the leader of the Labour party. It is fair to say that the Leader of the Opposition understands legal aid. He, unlike any other leader of a political party that I can remember, actually gets it, as no one else has done. He understands it, he cares about it and, as a result, he has established the Bach commission to look at access to justice and legal aid. He is also doing that in a non-party political way.

Members of the commission have been appointed by Willy Bach not because of their politics or any sort of association with or affiliation to any political party, but, on the contrary, because of their expertise and their knowledge not only of legal aid and access to justice, but of other things. For example, one member, a particularly huge asset to the commission, is Tanni Grey-Thompson, who is also providing expertise in relation to disability. So the commission is non-partisan and we hope that it will come to a view on how we provide access to justice for the most vulnerable people in our society.

It has to be said that the Government have made a real mess of access to justice and legal aid. Since 2010, advice-and-assistance matter starts in social welfare have gone from 471,000 down to 53,000, a drop of 91%. So more than 400,000 people are now not provided with the opportunity to receive legal advice and are not given the chance to access the courts. They are often left paddling their own canoe, faced with extremely complex issues of procedure and law, and left to do all that on their own.

In reality, no money is saved, because the courts are delayed. Judges are complaining constantly, privately in the main, but complaining none the less that cases are delayed while litigants in person are left fending for themselves, trying to navigate through complex areas of procedure and law. There is no real saving.

Following the Legal Aid, Sentencing and Punishment of Offenders Act 2012, exceptional case funding was supposed to help people who are denied access to lawyers. I think this is right—I will be corrected by the Minister if I am wrong—but last year, for example, only 394 applications were granted under the scheme, rather than the 3,700 or so estimated. Clearly, the system is not working.

The Government might be about to reintroduce the residence test. They got excited about that and were pleased that the judicial review was successful, in that the Government won, but the lord justices who heard the case for review were not considering the practical effects of the residence test. They were simply deciding whether the residence test was legal or “Wednesbury unreasonable”; they were not considering whether the test itself was practical or could be implemented successfully. To reintroduce the residence test would be a huge mistake. I have not heard from a lawyer who has been able to explain how it would work. I have asked the Minister, too, how it would work. Will he explain exactly how he intends the residence test to work in practice?

As for criminal legal aid, the Government are now attempting to implement a system that will see the number of duty contract providers reduced from some 1,650 to 526. There has been a cut of about 17.5%. The Government say that the number of providers needs to be reduced and consolidated, in order to allow them a profit on their work. The system, however, cannot work. It will not work and the Minister knows that it will not work. It is undergoing litigation, but the reality is that the Government have made a terrible mess of the duty criminal contracts since 2010. It was needless, in truth, but the entire thing is in a terrible mess now, to the point of a whistleblower coming forward. The whistleblower was employed through the Legal Aid Agency to help with the procurement exercise and was able to explain how chaotic the entire system was.

Last night I received an email from a criminal law solicitor, Mr Andrew Gurney of Gurney Harden Solicitors in Ashford. I will not read the entire content of the email, but that firm of solicitors was successful in its application for six contracts. Mr Gurney makes the point:

“We were involved in 6 successful bids and our early estimates put our costs at £30,000”—

so he knows. He knows that the system is impossible to implement. His firm has spent £30,000 in applying for contracts that everyone knows will probably not happen, because everyone knows that it is impossible to implement the system.

The system is not fit for purpose, and the Government have been warned about it. The Justice Secretary privately accepts that the idea of removing more than 1,000 firms of solicitors and leaving some areas without access to duty solicitors is unmanageable. So even Ministers privately believe that access to justice for the most vulnerable people will be denied as a result of the Government’s plans to implement a system that is absolutely chaotic. It is time that the Government listened to people who know better than them.

That brings me to the point made by the hon. Member for Warrington South. We need consensus. We need to put politics aside. It is all right for me to come here and attack the Government—I enjoy that—but the reality is that will not get us anywhere. We need to sit down and accept that people need access to law. As my right hon. Friend the leader of the Labour party has said, that ought to be considered a basic human right. If the state is taking on an individual, surely the most basic thing required of a civilised society is to allow that individual access to people who have experience and expertise in the area of law that they are trying to navigate.

[Jo Stevens]

It is somewhat ironic that, later on this morning, the Minister for Human Rights will be appearing before the EU Justice Sub-Committee because the Government have not implemented a European directive adopted by other member states in 2013 that gives criminal suspects a right to access legal advice following arrest.

[Karl Turner]

I could not have put it better myself. My hon. Friend makes an important point.

It is time that we grew up. The Bach commission, with its cross-party members—I suspect some appointments are political and some non-political—chosen for their expertise only, not for their politics, will hopefully come to a view that can save money while providing access to the courts, lawyers and justice. As I have said, we need to do that in a non-partisan, non-political way. I sometimes find that difficult to manage, but it is crucial that we grow up.

Before I finish my remarks, I will mention the point made by my hon. Friend the Member for Lancaster and Fleetwood (Cat Smith). I think we have seen a drop of 80% in employment tribunals. The hon. Member for Warrington South talked about people in the law profession earning more than the Prime Minister, but we now have employment judges sitting idly in tribunals throughout England and Wales with no work to do because of the fee that needs to be paid for a tribunal to be heard.

Women want to raise serious issues. I think of a case that I advised on pro bono and referred the woman to a solicitor: she had told her employer that she would take maternity leave at some point in the not-too-distant future and he said, “Well, that’s not very convenient. I’m afraid you’ll have to find something else to do for a living.” I think she needed to find £1,300 to get her case to a tribunal, but she could not possibly afford that. I managed to find a solicitor who was prepared to act for her pro bono, but she still did not have the money—it would have taken her several months to save that up.

Sadly, the reality is that employers react to those cases only once the money is paid in. Before that, they do nothing—they are using that as a tactic. Therefore, while terrible employers such as that would have to settle if the case were taken to tribunal—they would not get anywhere near success, because they had clearly been discriminatory—because the woman concerned could not get the £1,300 together, she was at the stage of saying, “Fair enough, I give in.” The statute bar in employment cases means that people have to get their act together within three months and she could never have managed to save that money up in that period.

I do not know whether I am making this point well or not, but it is not about saving money because we have employment judges with no work to do. It is purely ideological. There is no reason for it—it does not save a penny.

--- Later in debate ---

[Jo Stevens]

Does my hon. Friend agree that another consequence is that while there are lots of good employers, bad employers, because of the tribunal fees, can get away with unlawful practices and they have no incentive to change their behaviour to become good employers?

[Karl Turner]

Absolutely. I know the Minister well, I think, and he does not want a situation to arise where employers get away with treating their staff badly. I do not think he wants that for a second, but that is an unintended consequence of the Government’s policy and it needs to change. It comes to something when the Lord Chief Justice comes out of his comfort zone as a senior member of the judiciary and criticises Government policy. It is appalling.

I will finish on this note. The hon. Member for Warrington South—

Employment Tribunal Fees

Debate between Jo Stevens and Karl Turner

Tuesday 1st December 2015 Westminster Hall

[Karl Turner]

Before the short suspension for us to run along to the Division Lobby, I was explaining that there is a difficulty with the Government suggesting that the fee remission scheme is the answer to employment tribunal fees. I said that there were three problems. First, there is the possibility that the remission scheme is not being brought to public attention. As far as I understand it, most people do not know it exists. I have spoken to various law centre staff and citizens advice bureau advisers who have said that people genuinely do not know that the scheme exists and are sometimes surprised to find that it does. Secondly, the fee remission scheme is an absolute minefield. Thirdly and lastly, how can any individual without legal help know what their own legal position is and whether they might be entitled to a fee remission?

I mentioned the first case study, but another one has come to me as an MP. It is the case of Mary, who was employed as a personal assistant. She brought a sexual discrimination claim when her employer was not happy that she had become pregnant. She left the job and immediately found other employment. Even with the fee remission, she was still required to find £840. It is fair to say that she begged and borrowed to come up with that money. However, she said to me that if she had not had family members and friends who were prepared to help her out financially, she would have had a problem. She could not have gone to a loan shark, and clearly she did not want to borrow money, but she considered it and eventually borrowed from friends and members of her family. But for that, she estimated that it would have taken her three months, even on a reasonable salary, to save the money to pay for the fee. We know that the statutory bar for bringing an employment case is three months. Clearly, people are not managing to get the money together to get an application in on time.

Such examples show that since 2010 the Government have attacked the rights of workers. Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, employment cases were taken completely out of the scope of legal help; the Government have increased the time required to gain employment rights from 12 months to two years; we have seen the introduction of employment tribunal fees; and we have also seen the introduction of the Trade Union Bill, which further dramatically undermines the rights of working people. Any claim that this Government are on the side of working people is utterly disgusting, and I put that in the strongest possible terms. It is absolutely disgusting to suggest that this Government are on the side of working people.

The Government argued that the reason for introducing fees was to prevent vexatious claims, and then they argued that it was mainly to recover the cost of running the employment tribunal service from users who could afford to pay. However, the latest accounts from the Ministry of Justice show that in 2014-15 the net income from employment tribunal fees was £9 million, while the expenditure on the service was £71.4 million. That means that the increase in net income from fees covers 12.5% of the cost of running the service. That12.5% gain in revenue was achieved at the expense of a 69% overall drop in people bringing claims to employment tribunals—tens of thousands of workers deterred from seeking justice for breaches of their employment rights. The evidence must suggest that the Government’s introduction of tribunal fees is purely ideological. It is punitive and shuts thousands of workers out of accessing justice.

[Mrs Cheryl Gillan in the Chair]

I am conscious of the time, and I am keen for the Minister to reply to hon. Members who have spoken. As I said at the outset, they are probably an awful lot better informed on the subject than I am. I do not want to take up too much more time, but I have some questions that I hope the Minister will make a note of and try to answer.

What is the Minister’s assessment of the high expenditure of the employment tribunal service? If it is terribly difficult for him to come up with a full answer immediately, I am happy for him to write to me. Given that the volume of cases is down massively, will the Minister explain why there has not been a corresponding drop in running costs? We are all keen to save money—we all want to make efficiency savings wherever possible—but the evidence seems to suggest that there is no genuine saving from the completely unfair introduction of fees.

[Jo Stevens]

I just want to provide an anecdote. I was talking to an employment tribunal panel member last week. He is supposed to sit for 31 days a year, but in the past 12 months, because of the paucity of cases being brought to the tribunal, he has been able to sit for only nine. We have some expensive people sitting in employment tribunals having to string cases out because people cannot afford to bring claims.

[Karl Turner]

I said that Opposition Members have a great deal of knowledge and experience in the field, and my hon. Friend has just highlighted that. Employment judges, who are paid—I will guess at the amount—probably upwards of £140,000 a year often sit idly without any work, as a result of what the Government have done with fees.

Finally, if, as the Government have claimed, the dramatic fall in the number of cases is down purely to the removal of vexatious claims, why have we not seen an increase in the percentage of successful claims? If the necessity to introduce the fee scheme was about preventing vexatious and unmeritorious claims, surely the success of the claims that are in the tribunal system should be going through the roof, but that is clearly not happening.