Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I beg to move Amendment 82, in my name and that of my noble friend Lord Beecham. We come now to employment law, which, if the Government have their way, would be taken out of scope of legal aid altogether. As a country we spend £4 million a year on legal aid for employment matters. That goes to help some 13,300 people at around £300 per head. Representation, as opposed to advice, is provided only to a handful of people a year, measured in the dozens not the thousands, and at pretty negligible cost. The kind of issues at stake will be well known to the Committee; they include unfair and wrongful dismissal, redundancy, employment contracts, discrimination, strike action, data protection and employee confidentiality, and wage issues. These issues are of importance to the individual who has become a victim of an unlawful practice, but the Government consider them insufficiently important to merit public money—there seems no other interpretation of the Government’s intentions. Further, the Government consider that there are alternative sources of funding available for these cases. The Government’s consultation document says: "““We note that damages-based agreements are available in employment cases and that there are other sources of help available in this area of law. For example, some Trade Union members are usually entitled to legal assistance, the employer may be willing to engage in civil mediation (which is sometimes paid for by the employer), or, if the dispute concerns unfair dismissal or flexible working disputes, and there are no complex legal issues, the ""Advisory, Conciliation and Arbitration Service (ACAS) provides a free arbitration service. The presence of these alternatives is not determinative, but makes the provision of legal aid in these cases less likely to be justified””." I cannot resist the comment that this must be one of the first times that a Conservative Minister and Secretary of State have plotted together to drive people into the arms of the trades unions, but so be it. More seriously, we have to acknowledge on all sides that the majority of British workers are no longer members of trade unions. Damages-based agreements are not yet widely available and, we believe, open up the possibility of predatory behaviour by interested parties. In looking at the Solicitors Disciplinary Tribunal’s website, it does not take long to find evidence of pretty dodgy employment law claims management companies taking huge chunks of people’s damages—and that is before the lawyers get paid. If this part of the Bill goes through, the consequence will be that a large proportion of employees who have been dealt with unlawfully will end up representing themselves and will not have the benefit of legal advice. When we asked government departments whether, when they are taken to a tribunal, they would typically be represented, hardly surprisingly, the answer was a unanimous yes. Similarly, private employers will often—although certainly not always—be represented at a tribunal by lawyers, whether they are solicitors or barristers. In practice, this means the creation of a highly prejudicial inequality of arms between employees and employers. That of course can be alleviated, as we all know, by high quality advice pre-tribunal, but even that cheap but successful option is no longer to be provided. We argue that in real terms it will mean an erosion in individual employees’ rights, especially those at the margin—for example, those on minimum wage and those who are most vulnerable. Those firms which choose to behave in the worst possible way by playing fast and loose with their employees’ rights may well be advantaged. It could be a bit of a race to the bottom, which is a cliché but precisely what happens when we start restricting access to justice. Good companies and employers that treat their employees with respect and that honour the law will find themselves at a competitive disadvantage to those who employ predatory practices. We do not believe that it is in anyone’s interests to encourage such a system. I am afraid that it looks as though a concerted effort to curtail the rights of employees is taking place in our system. The law creates many of these rights because of the fundamental basic inequity of power between employer and employee. If these rights are to be taken away from employees gradually, that balance will shift. We have to make a decision as to whether that is a good or a bad thing. I am not talking about just the taking away of legal aid from scope; I am talking about the discussion that is going on at the moment about fees for employment tribunals, including the fee to begin a claim and the much larger, additional fee if the claim goes to hearing. I am talking about unfair dismissal and the qualifying period being doubled from one year to two years and, even though this may sound trivial, the payment of expenses to witnesses and claimants to attend an employment tribunal. We on this side believe that such moves are unhealthy and a backward step in the very sensitive field of the employer/employee balance of power relationship. As my right honourable friend John Healey MP says today in an article in PoliticsHome, the emergence of the Trade Union Reform Campaign appears to be a rather extreme part of this process, but here we are discussing legal aid and whether it should remain in scope or be taken out of scope. The cost of ensuring that people have good quality advice on employment rights and are able to exert those rights before a tribunal is, as I have said, £4 million a year. If those 13,000 people were not able to get some money or their job back, and if only a tenth of them went on JSA, that £4 million would immediately be spent just on that benefit. There are lots of examples of cases where employment advice has proved to be beneficial, and I want to mention a case referred to in the document London Advice Watch Report, which sets out the findings of a research project on the provision of social welfare law advice in London. The document was launched in the Palace of Westminster a couple of weeks ago, and among the speakers were my colleague Mr Andrew Slaughter MP and the noble Lord, Lord Phillips of Sudbury. The document cites the following case: "““A man who had worked at a large retail chain for eight years was fired for gross misconduct after making a mistake on the till which cost the shop a very small amount of money. Tower Hamlets Law Centre helped him claim unfair dismissal and won him his job back, along with compensation for lost earnings””." The facts of that case are incredibly simple and straightforward, and I would bet that they are replicated many times in England and Wales, but it is just this sort of case where, if advice is not given, an employee who is unfairly sacked will go without a remedy. To use the phrase again, he will be without access to justice. We think that this is £4 million that is well spent under our legal aid system, and has been for many years. That is why it is economic, humane, just and sensible to continue this provision and why we are putting forward this amendment to keep employment law in scope. I beg to move.