Huw Irranca-Davies

Labour Party | Ogmore

Contribution to the Employment Tribunal Debate

14th October 2005

Huw Irranca-Davies (Ogmore) (Lab): I begin by congratulating my hon. Friend the Member for Bradford, West (Mr. Singh) on introducing the Bill and on inspiring quite a high-quality debate on access to justice for all in respect of discrimination and in a wider context. How do we ensure that the most vulnerable in the work force—people who are not necessarily represented by a union or people who do not have easy access to the legal network—can justifiably bring discrimination cases?

At the risk of jeopardising the career prospects of the hon. Member for Forest of Dean (Mr. Harper), I congratulate him on his extremely rational and reasonable contribution, both in terms of the principles he was speaking to and his analysis of the Bill clause by clause. I suspect that I might have knocked his chances back by about six months at least.

Surely the principle of access to justice for everyone is absolutely right. A major bone of contention is the expense and scope of the proposals—the belt-and-braces approach. It is said that, in effect, the Bill is a universal charter of prescription, and there is the worry that it is a universal charter for legal aid rather than a more proportionate response that would target those with the greatest need whose complex cases require full legal assistance against what are often highly professional teams of solicitors and barristers. That is one of the major criticisms.

Linked to that is the argument that, in some ways, the Bill, well-intentioned though it is, is unnecessary on two counts. First, the quality of advice and the extent of legal representation is already available. I have voiced concerns about how complete that coverage is. It is said that by and large the legal advice is already available.

Secondly, the Bill militates against the Government's aims of early intervention and non-litigious solutions such as conciliation.

Mark Tami: My hon. Friend makes a point about which I, too, am very worried. Although, as he says, a lot of advice is available, we must have a proper network that ensures that people are aware of it.

Huw Irranca-Davies: I entirely agree. On the latter point, availability is not the only issue, and we have, as a Government, made great strides with the various legal services and the voluntary sector to extend coverage. There is also the fundamental issue, which has frequently been mentioned in the debate, of how we draw these matters to people's attention when they cannot easily turn to somebody who can give them advice, either because they are in a workplace where they are actively discouraged from doing so or because they simply do not have access to a well trained, highly skilled and capable representative, union or otherwise. I shall return to that issue later.

Members have mentioned the principle that prevention is better than cure. The aim is to keep cases out of the legal system, not simply to try to pull back money from solicitors wherever possible but because it is far better to deal with issues as they arise. We should aim for early intervention rather than people getting into the costs, stress and anxiety caused by making a legal case and taking it through hearings and tribunals. That is very much the thrust of the Government's approach.

The dispute resolution process can take many forms, including mediation and arbitration. The use of grievance and disciplinary procedures is part of the process. I have learned through my experience in various voluntary sector organisations how crucial effective working relationships with all staff are. Employers should actively encourage people to express concerns or grievances, rather than slap them down or create a culture in which they feel unable to speak. In addition, there must be written procedures, even if, as my hon. Friend the Member for North Durham (Mr. Jones) said, they are the basic required grievance and disciplinary procedures.

Mark Tami: That is a crucial point, because not only the employee but the employer must be aware of the procedures. The grievance procedure allows an employee to raise an issue and have it dealt with. The vast majority of cases do not result in a tribunal or in the employee leaving the company, but are resolved through the grievance procedure.

Huw Irranca-Davies: I entirely agree. The point has been well made several times.

Perhaps I can give succour to those who have been concerned by some of the comments of Opposition Members. We should be trying to improve employers' access to advice that enables them easily to put in place written procedures, as well as training and upskilling that does not involve sending people away on a two-day course at immense expense. We have done work on that already, but we need to keep applying pressure to make it easier and simpler for employers. That is particularly important not only for small businesses, but for small organisations in the voluntary sector, which have limited resources.

Mr. Kevan Jones: Does my hon. Friend agree that the thrust of the Government's approach in the Employment Act 2002 was to ensure that disputes are resolved in the workplace, and that it is having an effect? The Government are committed to ensuring that cases do not get to a tribunal, which clearly proves that they are trying to ensure that good employment practice is spread more widely, contrary to the ignorant and ill-informed views of the hon. Member for Shipley (Philip Davies).

Huw Irranca-Davies: That should be the clear message from the House today. The aims of the 2002 Act were specifically

"to create a successful workplace through fairness and partnership at work and make it easier to settle disputes in the workplace".

That is the crux of the matter. My worry is that, if we impose an overarching, super-organisation at the top, it will go against that ethos. The principle of resolving disputes at the appropriate level, which the Government rightly support, may mean progressing into tribunal or into court. However, if we look at it as a pyramid shape, the vast majority of cases should be capable of resolution at the base—in the workplace—before they reach the system of tribunals and court hearings.

At court, one of the things that the judge will look at is whether dispute resolution has been tried. That is right and proper. He will look at an application poorly if one of the parties has been offered the option of alternative dispute resolution and said that they were not interested. That is absolutely right. There has been a fundamental change in the ethos and the way in which we deal with the issue.

Mr. Kevan Jones: If the applicant refuses to go through a company's formal disciplinary procedure, the application will automatically fall, even if it has good cause in terms of grievance. That flies in the face of the claim that frivolous and vexatious cases are queuing up to go before employment tribunals.
Huw Irranca-Davies: That is correct. It is worth drawing attention to one of the most instructive cases in this regard, the Burchill and Bullard case in 2005. In his summing-up, Lord Justice Ward made four specific points. One was that the defendants' belief that their case was so watertight that they did not need to resort to alternative dispute resolution was unreasonable. Secondly, in his opinion, their claim that the case was far too complex for alternative dispute resolution was "plain nonsense". Thirdly, the costs of alternative dispute resolution would have been a drop in the ocean—we have said it repeatedly—compared with the legal costs that were incurred by bringing it to that level. Finally, Lord Justice Ward said:

"The defendants cannot rely on their own obstinacy to assert that mediation had no reasonable prospect of success".

That is a fundamental challenge to what used to happen. Previously, there was almost a charter saying, "Get straight to the lawyers; take it straight to the highest level." There are now appropriate levels at which disputes can be dealt with.

Mark Tami: That is a key point. The grievance procedure in many ways acts as a cooling off period. It stops people almost straight away bypassing everything else and going straight to lawyers. I know from my casework that once lawyers are involved, reasonable cases that could be resolved by other means often get very nasty and expensive. All employers, regardless of whether they are big or small, have grievance procedures enabling talks between them and employees. In the vast majority of cases, that results in a sensible outcome.

Huw Irranca-Davies: Indeed. It is vital to put on record the importance of looking at it as a process. It is not a one-size-fits-all approach. We are saying, in tune with what we have done in recent years, "Let us solve these issues, where we can, at the earliest possible level of intervention, without going through the courts." Lord Justice Ward said in his summation:

"Mediation has established its importance as a track to a just result running parallel with that of the court system. Both have a proper part to play in the administration of justice. The court has given its stamp of approval to mediation and it is now the legal profession which must become fully aware of and acknowledge its value."

There is a strong message there for the whole legal profession. In a debate such as this, it is tempting to indulge in scurrilous anti-legal profession stories, but, tempted though I am, it would be unfair to do so. As we all know, many legal practitioners do good work, especially at the edge, where they deal with some of the most vulnerable members of society. However, there are also those who are willing to exploit this area of law. Perhaps the Minister will say how we can prevent people who suffer from the present gaps in provision from becoming vulnerable to those who would take money from them, even though there was no hope of the case being taken further.

I applaud the aim of the Bill, which is to deal with what we might call equality of arms. Where two individuals or an organisation and an individual confront each other at any stage of a dispute they should have the same capability, expertise and skills on which to draw to present their case in the best possible way. The starting point is article 6 of the European convention on human rights, which has been incorporated into law in this country through the Human Rights Act 1998, with which the Legal Services Commission and the Department for Constitutional Affairs have a duty to comply. Article 6 establishes that people must have effective access to courts and tribunals for civil cases; that there should be equality of arms; and that there should be no disadvantage for either party, be it the person making the complaint or the small business man—or the small voluntary sector organisation—against whom the complaint has been made. The article allows that, sometimes, that can be achieved without legal aid and without resorting to solicitors and barristers, other than in exceptional circumstances.

In England and Wales, we already have provision for exceptional funding. Many of the cases that have been highlighted in this debate by hon. Members on both sides of the House have been peculiarly complex and challenging; they do not fit into the standard tribunal approach. In such cases, it is right and proper that there be a method of funding available to ensure equality of arms. I argue that exceptional funding meets that requirement.

Mark Tami: Much has been said about how different provision in Scotland is. In fact, the Scottish system provides aid where the case is evidently complex. I regard that as very similar to the system of exceptional funding. Although there is a difference, it is not as great as it has been made out to be.

Huw Irranca-Davies: I suspect that my hon. Friend is correct. One of my questions for the Minister is about the extent to which she has identified deficiencies in the present system. I agree that the two systems are not that far apart.

Mr. Alan Reid: The Library note states that

"Legal aid is not available for hearings in employment tribunals in England and Wales."

That is a straightforward statement. Is the hon. Gentleman suggesting that that is not so—that there are circumstances in which legal aid is available?

Huw Irranca-Davies: Indeed there are, but they are deemed to be exceptional circumstances. They are extremely rare—[Interruption.] My hon. Friend the Member for Bristol, East (Kerry McCarthy) tells me that we are talking about six cases in the past five years. Rightly and properly, there is access to funding in England and Wales, and our system is not that different from the one in Scotland.

Mr. Heald: Does the hon. Gentleman agree that exceptional funding relates to the whole case load of tribunals and that, in discrimination cases, the EOC and other commissions fund the significant cases that will amplify the law?

Huw Irranca-Davies: I agree. The hon. Gentleman's point is well made, but what analysis has been made of cases that may have slipped the net? An important premise of today's debate is that many of the necessary mechanisms and agencies already exist and operate. I am more interested, therefore, in an analysis of the cases that were not successfully taken up at an early stage.

Mark Tami: The Scottish system takes into consideration language issues and physical or mental illness or disability. I am not sure whether the exceptional funding covers that. If not, I hope the Minister will deal with it, as it is a valid point.

Huw Irranca-Davies: My hon. Friend makes an excellent point. I hope the Minister will address it in her remarks.

Let me explain why I believe we have many of the right mechanisms in place. There has long been a tradition of support in the workplace. Support has come from colleagues, unions, friends and, increasingly, voluntary sector organisations. The diversity of support that is available from the beginning of a potential case or from the early mediation stage ensures that widely differing cases and circumstances are recognised. In an intervention on my hon. Friend the Member for Alyn and Deeside (Mark Tami), I mentioned the case of homeless young single males in the Bridgend area. They are exactly the sort of people who would not reach out or be reached out to by a normative countrywide organisation. They need individuals who are trained and well funded to work closely with them and give them advice. The tradition of grassroots support should not be jeopardised. Community legal services have traditionally sought to maximise their impact in the union and the not-for-profit legal support sector.

Legal help, formerly known as the green form scheme, has been subject to means-testing and the merits of the case. So there is a filtering system and a progression that tests the efficacy of a case and whether the individual requires financial support to pursue it. Exceptional funding under the Access to Justice Act 1999 is available for complex cases, as we have discussed. The reason that so few cases qualify is that they are examined individually and recommended by the Legal Services Commission.

The question is whether the principle of targeting resources on those whom we recognise as most requiring assistance—the equality of arms issue—is right or whether we should adopt a much wider approach. I believe we should fine-tune the current system, rather than try to replace it or overlay it with a different system. The history of such reorganisations is that they lead to confusion and inefficiency, instead of tightening up the system. However, I have several questions that I should like to pose and ask the Minister to respond to.

First, what evidence is there that under the current system people are losing out? Has there been any independent review of what is working and what is not working in the current system? My hon. Friend the Member for Kingston upon Hull, North (Ms Johnson) touched on that. There are independent bodies out there, and in the light of the debate perhaps it is timely to discover where there are gaps in provision. Secondly, is access to justice under the present system clear enough? Is it sufficiently well sign-posted at the time of need in the workplace? Thirdly, how seamless is the system? In the progression from early identification to deciding whether the case should be solved through early arbitration or mediation or progressed through tribunals into the court system, is the signposting clear enough or are there differences, depending on location and the organisation in question?

At the very first level—trade unions, reliance on work colleagues and so on—how confident are we as a Government that there is good coverage in skills, training and experience not only in workplaces that have union representatives, but in those where unions do not exist? If we are not confident that such coverage is near perfect, what can we do to make it so? We have already talked about the onus on employers to encourage such a climate. What more do we need to do to ensure that gaps do not exist?

I have raised this issue before in the past two or three years, during which time we have made great improvements. However, in closing I have a question for the Minister. What recent analysis has been made of funding gaps in the current system, particularly in universal coverage of legal aid? I also have some points for my hon. Friend the Member for Bradford, West, who introduced this Bill, to consider. One of my concerns is how the Bill would synthesise with existing legal and support structures on the ground. He has heard several Members express the worry that, at best, it would be a superstructure that duplicates existing practice, and that, at worst, it would damage existing provision by taking funds away or by skewing priorities on the ground. As I said earlier, diversity of provision is very healthy.

As several Members have also said, we must clarify the costs that the Bill would entail. Providing a blank cheque for legislation— any legislation—is an extreme worry, and although I would not want the question of funding to prevent a good Bill from making progress per se, it is incumbent on any Bill that its financial implications be as clear as possible. Have other ways of overseeing access to justice in discrimination cases been considered that are less "belt and braces"? What suggestions did the Equal Opportunities Commission and other such bodies make to my hon. Friend the Member for Bradford, West during his discussions with them? What did they have to say about developing the current system and dealing with its deficiencies?

Today's debate has shown that there is general consensus that the Government's current approach is right. However, concerns have been expressed about clarity of provision, and about the ability of people throughout the UK to access such provision. I hope that the Minister will discuss the integrity of the current system and the potential for improvements to it in her response. However, I am extremely worried about rolling out new legislation that might destroy or damage the very elements that my hon. Friend the Member for Bradford, West is seeking to enhance.