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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
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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 signposted 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
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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 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.
1.13 pm
Mr. Oliver Heald (North-East Hertfordshire) (Con): I congratulate the hon. Member for Bradford, West (Mr. Singh) on coming first in the ballot and thereby being able to introduce what is his second Bill on this subject, he having introduced the first, I believe, during the last Session. The Bill does raise important issues about the way in which employment tribunals operate in the sphere of discrimination law. I do not believe, however, that he has found the right solution. Setting up another quango and taking money from organisations that are already providing important services is not the way forward, but he has lit on an area in which difficulties exist.
In the early days of the industrial tribunal—I suppose that I should admit, as a lawyer, that I practised there for quite a few years—the atmosphere was very informal. It used to be described as the industrial jury, and there was an employer's representative and an employee's representative. Sometimes, just the employee and the boss would argue the case. At other times, the union representative or someone from HR—human relations, but we used to call it personnel in those days—would be involved. The environment was excellent and there was a real workplace feel about it. I can honestly say that it was not legalistic. The employer explained the reason why the person had been dismissed and argued that it was reasonable in the circumstances.
Discrimination cases are slightly different. Over the years, there has been a piecemeal accumulation of law on discrimination, leading to a large and complex body of law. I believe that it places a considerable burden on employers who have to try and understand the different
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matrices of discrimination within three different categories. From the employees' point of view, the protections are uneven, which is often poorly understood by employees themselves. I agree with the hon. Member for Kingston upon Hull, North (Ms Johnson) that people often require good advice in this sphere of the law.
Other problem areas include constructive dismissal, the Transfer of Undertakings (Protection of Employment) Regulations 1981, and so forth. Over the years, the atmosphere in the industrial tribunal—now the employment tribunal—has changed from being informal and constructive in how it operated to becoming more lawyerly, more formal and more legalistic. The rules have changed and become rather more restrictive, so it is time to look again into the whole subject of how this area of law operates. Indeed, the time has come for a review of discrimination law to see whether it can be made simpler. I would also welcome another look at how tribunals operate to see whether we could return to something more firmly rooted in what is happening in the workplace. I agree with the point made by the hon. Member for Ogmore (Huw Irranca-Davies)—that prevention is always better than cure. Providing decent grievance and disciplinary procedures that operate fairly in the workplace offers the best way forward.
I would make one point in defence of how employment law, rather than the courts generally, has operated, in that ACAS has always had an important role in dealing with cases, which allowed many settlements to be reached at an early stage. Lawyers practising in the employment field can justifiably feel that they were trailblazing to some extent.
In the really difficult cases of exceptional public concern where the highest issues of law apply, exceptional funding may be justified. However, for cutting-edge cases of discrimination, the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission are providing funding that is likely to make a difference in respect of clarifying, amplifying or extending the law. I do not believe that we have that much of a problem in getting the law right. The real problem is ensuring that someone worried about understanding the law has the opportunity to get the necessary advice in order to weigh up whether to proceed with a case.
The number of discrimination cases has increased, but levels of success at tribunals are pretty low—below 5 per cent.—and many cases are either withdrawn or dismissed. That may show either that many initial cases are of poor quality or, as the hon. Member for Bradford, West argued, that applicants feel unable to continue because they do not know how to navigate the system and need a lawyer. The community legal service provides a network throughout the country, but is currently under pressure. The legal aid practitioners group pointed out that its funding from the Government is being squeezed because the criminal legal aid budget is expanding rapidly and it has not been possible to ring-fence the civil side. That matter needs full review and we could talk about it for hours on end, but it is important for the Government to consider it carefully to ensure that that network of organisations that struggle for funding is not compromised by being squeezed in that way.
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It is also important that the referral system, to which the hon. Member for Ogmore referred, is right. In the 1970s, I was a member of the committee of the Free Representation Unit, which the hon. Member for Kingston upon Hull, North mentioned. We received referrals from organisations, but the network was patchy. It is better now and the organisation has grown like Topsy; it has caseworkers as well as trainee lawyers and is doing very well. However, we need to ensure that there is a proper pipeline so that people who ask for advice from citizens advice bureaux, community law centres or somewhere else have access to the type of services provided by FRU, the Bar pro bono unit and the solicitors pro bono unit. We need to look at referrals.
Much has been said about trade unions. It is right to give credit to trade union representatives at tribunals. At the early stages, much sane advice is often given at the right time, but trade unions could do better. It has been said that a large number of people are never offered the opportunity to join a trade union. One or two Members blamed employers, which I thought was a bit rich, but trade unions could do much more to explain to potential members the services they offer and sell themselves a bit. In the mid-1990s, when I was a member of the Employment Select Committee, trade unions carried out a survey in docklands, asking employees whether they had ever been approached to join a union. It turned out that only about 13 per cent. had ever been asked. It was said at the time that unions spent on average 10 times more on their annual conferences than on membership.
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