Joan McAlpine MSP Gets It Oh So Wrong on the Supreme Court Asbestos Case – No Lassie No!

It is the job of Parliament, both at Westminster and Holyrood, to make laws. Whilst a parliament full of lawyers is a prospect too horrible to contemplate, one would hope that the MPs and MSP’s charged with passing legislation would have some grasp of the issues before them. That often seems lacking however.

In addition, as I have mentioned before, the standard of coverage of legal issues in the Scottish media falls far short of the levels of the past, and of what helps properly to enlighten the public.

On 20th September the Scotsman printed a fine example of the “double whammy” of a journalist and MSP producing a woefully inaccurate article.

Step forward Joan McAlpine, SNP list MSP for the South of Scotland. Ms McAlpine has had a distinguished career in journalism, and latterly moved into blogging with the acclaimed Go Lassie Go blog. In May she won a seat at Holyrood.

On 20th September however her piece was so incorrect and inaccurate that there was some discussion about whether or not it could have been part of a “Spot the Deliberate Mistake” competition!

Her article seems to have been written as a follow up to this earlier piece by Gareth Rose. Mr Rose wrote his piece, with comments from interested parties and despite an over statement of the effects of the particular condition referred to, namely “pleural plaques”, there was little to fault.

This would appear to have prompted Ms McAlpine to pick up her pen and she wrote, under the headline “Shameless Effort to Evade Justice may Affect us all” about the legal challenge brought to the UK Supreme Court by insurers seeking to overturn the Damages (Asbestos-related Conditions) (Scotland) Act 2009, passed by the Scottish Parliament.

 

 

 

“ANYONE who thinks the row over the Supreme Court is esoteric should pay attention to a case due in the next few weeks, when insurance companies ask judges to “protect” them from workers with industrial disease. The Supreme Court is asked to overturn an Act of the Scottish Parliament that compensates workers exposed to asbestos on the grounds that this popular legislation violates insurers’ human rights.

The decision is due this Wednesday 12^th October, the case having been argued at the UK Supreme Court, and televised live on the internet, in June. Mr Rose noted the due date for the judgment but Ms McAlpine seems to have missed that.

The case is not about insurers asking for protection from workers with industrial diseases either. The case is about whether or not the Scottish Parliament has the competence, standing the terms of the devolution settlement, to pass such a law. Whilst there are a number of claimants named in the proceedings who are persons alleging that they suffer from pleural plaques, they were not sued by AXA and the other insurers, but intervened in the case to have their voices heard, as they were allowed to do by Lord Uist reported at AXA Insurance and Others v Lord Advocate and Others [2010] CSOH 36.

The issue is undoubtedly an important one, but not for the reasons suggested by Ms McAlpine. And the popularity of a piece of legislation has no bearing, as far as I can see, on its legality!

 

 

Now you might think the man with damaged lungs is more deserving of legal protection than the loss adjuster. It’s one thing to respect the dignity and privacy of all human beings, no matter what they have done. But extending this principal (sic) from individuals to institutions is a bizarre development. Do insurance companies bleed? Do they gasp for breath?

Let’s pass quickly over the spelling mistake and move to the next errors. Ms McAlpine seems surprised that insurance companies are claiming the protection of “human rights”. Whilst that might, at first glance, look odd, the position has been clear for many years. Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides, inter alia, that “In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The full title of the ECHR refers to fundamental freedoms and is not restricted to human persons only. A company is, in law, a legal entity and it too has the right referred to under Article 6 for example. There is no issue therefore about a company having “human rights”. It does.

Ms McAlpine, echoing Shylock in the Merchant of Venice, then goes on to contrast the flesh and blood worker with the soulless corporation. But her reference to “gasp for breath” is, as I will show below, also inept.

If they prick us, do we not wheeze...or something like that?

 

 

Asbestos is now recognised as a carcinogen. The lagging and insulation material was once widely used in construction, and particularly in the traditional shipbuilding communities such as Glasgow, Clydebank and Greenock. Survivors tell stories of leaving footprints in deadly dust that covered workshop floors like a light dusting of snow.

Asbestos was hailed upon its discovery as a fantastic material – waterproof, fire-resistant and easy to use. However, it had one drawback – its use could prove fatal to those who worked with it or who inhaled the asbestos dust of fibres. By saying that “now” asbestos is recognised as a carcinogen ignores the fact that that has been acknowledged since at latest the 1970’s.

 

In 2007, judges in the House of Lords in their wisdom decided that pleural plaques were a condition that merited no compensation – reversing the practice of 20 years. The decision prevented future sufferers from pursuing a claim and those who had started one were then left with nothing – the UK government has now retreated and offered the latter a one-off lump sum which is time limited.

The 2007 case, known as Rothwell [2007] UKHL 39, was where the House of Lords overturned around 20 years of legal understanding by declining to treat pleural plaques as being a compensatable injury. This was not some heartless decision by faceless judges, but a reasoned and principles, though widely disputed, judgment. To see why it came about, we need to look at what pleural plaques actually are.

The British Lung Foundation website gives us information on them. It states as follows:-

What are pleural plaques?

Pleural plaques are areas of scar tissue on the pleura. The pleura is a two-layered membrane surrounding the lungs and lining the inside of the rib cage. In virtually all instances of pleural plaques there are no symptoms and you can live with them without having any long-term problems with your health.

If you have pleural plaques, it does not mean that:

• you will go on to get a more serious disease
• you have a more serious disease at the moment
• you are likely to get a serious disease in the future.

While exposure to asbestos does carry a risk of developing a serious lung disease, such as asbestosis, mesothelioma or lung cancer, scientific evidence shows that having a pleural plaque does not increase that risk. Pleural plaques are not the same as asbestosis and they are not a pre-malignant form of cancer.

…

Do people need treatment for pleural plaques?

No. If you have been exposed to asbestos, but have no symptoms, such as breathlessness, there is no need to have any treatment. If you develop a cough which lasts a long time (more than three weeks) or you cough up blood, it is important to see your doctor straight away. Although these are not symptoms of pleural plaques, it may mean that you have a different, more serious, illness.

Does anyone die from having pleural plaques?

No.

Do people need an operation?

No. There is no need to treat pleural plaques in any way.

———————————————————————

So we have a symptomless condition that, whilst being a marker of asbestos exposure, is not a guarantee that any further condition will develop, nor is it a step on the way to the deadly asbestos related conditions such as mesothelioma. It was for this reason that, after 20 years where claimants for asymptomatic pleural plaques might receive from £5,000 – £10,000 compensation, the House of Lords decided that, as there was no “injury” within the legal meaning, there was no right to compensation.

The insurers, some of whom have gone out of business as a result of asbestos related liabilities, were delighted. Whilst the sums awarded by way of damages were much smaller than in an asbestosis or cancer case, the fact was that the vast bulk of asbestos injury claims related to pleural plaques. This decision therefore saved the insurers possibly billions of pounds. Understandably there was an outcry, but the Rothwell case did not attack the awards for conditions where there was suffering caused.

 

However the Scottish parliament moved to defend victims inside its legal jurisdiction and in 2009 passed The Damages (Asbestos-related Conditions) (Scotland) Act to ensure the Lords decision did not apply here. It received cross party support in Holyrood. The insurance companies were shameless. This should not really surprise us – they had previously tortured asbestosis sufferers by dragging out their cases for years in the hope the claims would die with them.

Now I hold no great love for insurance companies – my professional career has been largely spent fighting with them, but we must acknowledge that insurers are a business looking to make a profit. As a result they try, as far as they can, to reduce what they pay out. However, the canard that they want to drag out cases till the claimant dies, and thus save money, is one long in the past. The law gives no advantage to the insurance company in these circumstances now, as the claim passes on to the deceased’s next of kin. In fact, some recent decisions at the Court of Session suggest that it might now cost insurers more where they claimant dies than if they survive.

To say that a business doing what it is legally obliged to do – namely to act in the interest of its shareholders, is shameless is unfair. Does Ms McAlpine wish the few remaining insurers based in Scotland, if “shameless”, to leave?

 

The companies challenged Holyrood’s 2009 Act, without a scintilla of embarrassment. Indeed they were brazen in their contempt, not just for the law but for the people of Scotland and the parliament we elected. When the Court of Session in Edinburgh twice throw out their challenge earlier this year, David Williams, the claims and underwriting director of Axa, was reported as saying the industry had always doubted that a Scottish Court would overturn an Act of the Scottish parliament. This insinuates our most senior judges are compromised by nationality.

The courts are there to adjudicate on legal disputes. Is Ms McAlpine suggesting that the insurers ought not to have been allowed to test the issues in court? I fail to see how using the procedures that are there can be seen as contemptuous towards the law, the people of Scotland and the Parliament. Ms McAlpine refers to the Scottish court twice “this year” throwing out the challenges.

In fact Lord Emslie, at [2010] CSOH 2, delivered a lengthy and erudite opinion running to 2409 paragraphs of detailed legal analysis. As might be guessed from the citation, that occurred in 2010, the decision being issued in fact on 8^th January that year.

The insurers appealed, as is their right, and this too was rejected by the Inner House, reported at [2011] CSIH 31. The Lord President, and Lords Eassie and Hardie determined that the insurers’ challenges failed. But at no time in either of these judgments did the courts indicate that they viewed the action of the insurers as ones of contempt. Indeed, in the penultimate paragraph of the appeal judgment, their Lordships stated “…while we have not found these matter free of difficulty, we have come to the conclusion that particularly in light of the considerations to which we referred in paragraph [144] above, it cannot be said that the decision to place financial responsibility on the insurers was one which lay outside the margin of appreciation which the legislature enjoys in this sphere.”

The insurers then proceeded to appeal to the UK Supreme Court. There has been a long-standing right of appeal in civil cases to the House of Lords, the UKSC’s predecessor. There are few of the constitutional issues which arose when some, including the First Minister, accused the UKSC of interfering in Scottish criminal law in the Fraser case. Whilst Mr Williams, quoted by Ms McAlpine, was not tactful, his comments were much less offensive to the judges, I would guess, than those of Mr Salmond and Mr MacAskill, who accused the UKSC of “ambulance chasing”! As Ms McAlpine is a staunch Scottish Nationalist, one might think she would be happy that the Scottish courts have a reputation for standing up for Scottish law!

 

Williams went on to declare the insurance companies intention of challenging the act outside of Scotland: “The Supreme Court is our best chance. We are bullish and will be preparing for the next steps of the case.”

There seems to be a refrain in the SNP of treating the UKSC as a “foreign” court. Yes, it sits in London, but generally has at least two Scottish judges sitting in any Scottish case. As has been commented in the context of the Fraser case, it seems odd that the SNP seem to dislike a court sitting in London comprising 40% Scottish judges, but welcome the European Court, where there is one British judge!

 

That case is due to be heard in London early next month. Many observers believe the companies have little hope on Human Rights grounds – the case hinges on their property rights – though stranger things have happened.

As already mentioned, and indeed as had been reported in the Scotsman, the appeal was heard previously and the judgment will be issued on 12^th October. Having watched much of the case it is fair to say that the performance of counsel for the Scottish Government was unimpressive, leading to online discussion (not seriously I should add) as to whether or not counsel had been instructed to ”take a dive” so as to lose the case, allowing the SNP to complain that their laws were being overturned by a “foreign” court. Sad to say, Ms McAlpine’s article would actually lend weight to that frivolous theory! And again the snide reference to the case being heard in London – one can hear the sneer in our Parliamentarian’s voice!

After the invective directed at the insurers by Ms McAlpine for arguing about human rights, it is of note that she acknowledges that, in fact, the “property rights” case is observed to be the stronger leg of the insurers’ submissions.

 

But there are even greater issues at stake if the asbestos ruling goes the wrong way. If the insurance companies win, you will effectively see a London court overturn an Act of the Scots Parliament that has with widespread support from other political parties, the trades unions and churches. The immorality and injustice of this would not be lost on the people of Scotland, particularly as it would be impossible for the Supreme Court to similarly dismiss Acts of the Westminster parliament, which is regarded as a sovereign, law-making body in the way Holyrood is not.

Once more we have a disparaging reference to London, ignoring the fact that the UKSC is, as the name hints, the Supreme Court for the United Kingdom! As already mentioned, if Holyrood has exceeded its competence, then it does not matter how “popular” the legislation is – it is ultra vires and cannot stand. For my part, I agree with the judges in the Court of Session regarding this issue, but there is an issue on the retrospective application of the Act which flies against commonly recognised legal principles.

Ms McAlpine’s complaint is that the UKSC cannot strike down a Westminster Act. Of course, under the present constitutional arrangements, like it or not, the Scottish Parliament is a creature of Westminster legislation. The powers of Holyrood derive from the Scotland Act, and Westminster can, short of Mr Salmond making a unilateral declaration of independence, increase or decrease those powers. That is what the present debate on the Scotland Bill is about.

It might be thought indeed that it is the Westminster position which is anomalous. After all, the US Supreme Court can strike down legislation as can the Supreme Courts in many jurisdictions. The courts can, and should, act as a bulwark against unconstitutional and unfair legislation.

 

This exposes the sham of the current constitutional arrangements. Scots, increasingly, are proud of their parliament, expect it to protect them and want it to have far greater powers. It is sovereign in the eyes of the people because they are sovereign and it is they who elect it.

Ms McAlpine refers to the present arrangements as a “sham”. My trusty dictionary defines a “sham” as a “piece of pretence; something pretending or pretended to be what it is not”. The present arrangement is what it is – it is not what Ms McAlpine wants it to be. That does not make it a “sham”. And if and when the SNP get round to having their much promised referendum, we will find out what the Scottish people want, rather than having Ms McAlpine declare what that is.

 

Even if the damages legislation is not found to be in contravention of human rights law, the court may still grasp the opportunity to extend its authority over Scotland’s parliament. The 1998 Scotland Act says Holyrood laws can only be challenged if they intrude on reserved issues, breach European law or violate the ECHR. The insurers are also asking for a ruling that there is a right to appeal under common law as well – though the system is of course different in Scotland and England which complicates matters further. If the Supreme Court, in which only one of its current contingent of eleven judges is trained in and has detailed experience of Scots Law, said an act could also be reviewed on common law grounds, Holyrood’s status would be relegated to that of local council. It would open the floodgates and any law could be challenged on just about any grounds. Such a ruling would be a sort of ritual humiliation, but would we put up with it?

It is, I am sure, a political decision by the SNP to characterise the UKSC as an arm of Westminster, sitting in its “London” lair, striving to take control of Scotland’s affairs. The court has to deal with the issues put before it. Lord Hope did not ring up AXA Insurance to tell them “Between us, here is what I want you to argue before the court”. As their Lordships mentioned in the judgments referred to in the Court of Session, these issues are very difficult for the court to determine. One could easily see circumstances where a Scottish Government, of whatever hue, sought to pass a law which was abhorrent to the SNP, and where the Nationalists would be delighted for the UKSC to come to Scotland’s aid. But politically it suits for the judges to be disparaged.

As Lord Emslie said in his ruling “But if, hypothetically, a Scottish parliament were ever to legislate in a manner which could be described as a flagrant and unconstitutional abuse of power (it would be) unthinkable that the courts should have no option but to hold themselves powerless to intervene”.

It is true that there is only one Scottish judge out of 11 just now. That is because Lord Rodger sadly died and for each Scottish case heard since his death, including in fact this one, one of the judges from the Court of Session has sat along with Lord Hope to make up the second Scottish judge.

Ms McAlpine is right that any law could be challenged on any ground. But the courts would kick out frivolous or nonsensical arguments, whilst applying full and rigorous analysis to serious cases. If the UKSC rules against the legislation, this would not be a “ritual humiliation” but a decision that the Parliament has gone wrong. We have had devolution since 1999. How many Acts have been declared invalid since then? If Ms McAlpine’s thesis is to be accepted, then this would have been a common event, even if only since the SNP took over in 2005. It has not happened. The decision in the AXA case will not leave Holyrood left akin to a “parish council”.

 

Alex Salmond v Lord Hope...or is it AXA Insurance v Scotland...

This is a David and Goliath clash, whatever angle you view it from. It should not be a party political matter. Kenny MacAskill, the justice minister has said the Asbestos Damages Act was the piece of legislation he was most proud of in the SNP’s first term in office. It had support right across the Labour movement and from industrial injuries lawyers such as the late Frank McGuire whose contribution fighting for justice was marked in a motion by Labour’s Johanne Lamont just this week.

It is interesting that a battle between on one hand insurance companies, and on the other, the Scottish Government is classed as a “David v Goliath” affair. I suspect that Ms McAlpine wishes to classify the UKSC as Goliath, and the plucky SNP as David. In either event, this is a gross distortion.

As mentioned above there is an argument about the payment of compensation to people “suffering” from a symptom free condition. If this was a situation where the law was created to allow payment of compensation for asbestosis or mesothelioma, that would be entirely different. But that is not what this Act is about. It relates to pleural plaques.

Ironically, the Surpreme (sic) Court challenge also comes at the same time as the 40th anniversary of the Upper Clyde Shipbuilders work in, which was commemorated in the parliament last week. UCS played a considerable role in boosting the campaign for Scottish Home Rule that gained momentum from the early 1970s.

Here we come to the nub – this, in the same way as UCS in the 1970’s, is being used by SNP politicians paying little or no attention to the legalities and realities of the argument, in a Scotland – good; London – bad argument. As I said at the start, this would be bad enough from a journalist, but far worse when coming from a Parliamentarian.

The remarkbale and greatly missed Jimmy Reid and the UCS workers

 

It was believed a parliament in Scotland would protect shipbuilding and the men who worked in the yards. Four decades later, it is appropriate that the casualties of that industry should be central to a battle over where power should lie.

The “casualties” referred to are not suffering. The issue is whether the Scottish Parliament went beyond the rules which govern its competence. The UKSC Justices will declare their decision on this on Wednesday.

It would be interesting to see what Ms McAlpine’s reaction would be to an order from the European Court that an Act of the Scottish Parliament was invalid – how would that square with her declarations of the people’s sovereignty?

 

Conclusion

For the avoidance of doubt, as lawyers are prone to say, I am happy that the Scottish Government legislated to make compensation payable to pleural plaque sufferers, as people with that condition had been so entitled for 20 years prior to Rothwell.

I have always been on the side of the “wee man” against the “big business”. But that is not the issue here.

We have a prominent politician and writer disregarding the facts for political purposes. I do not suggest that Ms McAlpine has written her piece having decided to ignore the truth which she knows. Instead she has written it, I can only assume, without having ascertained the full position.

It just goes to show that the standard of writing and comment on legal matters in Scotland, whether by press of politicians, is woeful, and I fully expect that the decision on Wednesday will do nothing to change that view.

 

 

 

The Chancellor’s Changes To Employment Tribunals – An Attack on the Workers?

 

 

The Coalition Government proclaims that, in this time of economic crisis, we are “all in this together”. However, the Chancellor’s speech today at the Conservative Party Conference suggests that that is not, at least in the field of employment law and Employment Tribunals, the case. Let us pass over for now the fact that he is declaring new policy to his Party Conference, and not to Parliament, despite this being a regular complaint by the then Opposition against the Blair and Brown Governments. Let us look instead at the two main changes proposed.

Chancellor Osborne

Employers and Employment Tribunals

Employers hate employment tribunals. Whilst some companies might have insurance cover for such matters, or access to one of the organisations that provides assistance on these issues for payment of an annual fee (a bit like going to Green Flag or the AA for breakdown cover) many, particularly small businesses, are faced with a choice of acting for themselves, with the risks that can bring, or engaging a solicitor to represent them. The legal costs incurred by an employer can, especially if a full hearing proceeds over a number of days, run into thousands of pounds.

Whilst the Tribunal can award costs against a party where it is determined that they have acted unreasonably, this is much less of a risk for a claimant than the rule in court proceedings that the loser pays the costs. Often the claimant has no funds to meet a costs award anyway, even if one is made.

Employers view these cases as an interference with their right to run their business, large or small, as they see fit, and a needless drain on their time and resources.

The Eagle Building - Home to the Employment Tribunal in Glasgow

Employees and Employment Tribunals

Employees are not very keen on them either, but find it necessary at times to have to go there. Employment Tribunals hear much more than simply unfair dismissal cases, although that is the most common type of claim presented.

Whilst there are a few high profile Employment Tribunal cases, where City financiers allege sex discrimination and seek million pound awards, the vast majority of claims relate to termination of employment, whether by dismissal or unfair selection for redundancy.

It is only the minority of cases which proceed to a full hearing. Often claimants give up as they cannot afford their own legal costs or they no longer have the stomach for the fight.

When it comes to legal costs the press coverage complains about the costs to business of defending these claims, whilst never looking at how the claims are funded by claimants.

As with employers, some employees have cover for a Tribunal claim, either through legal expenses insurance or through their membership of a Trades Union. However, in Scotland, most claimants do not have such cover, and proceed on their own, with the help of voluntary organisations like the Citizen’s Advice Bureaux or with a private solicitor or adviser.

Whilst there are solicitors and claims representatives willing to proceed on a “contingency fee” basis i.e. taking a fee only if the claim is successful, these are less useful in employment cases where there is normally no award of costs against the employer who loses the case – any payment to the solicitor, in a no win, no fee case has to come from the damages awarded.

In theory there is limited Legal Aid cover in Scotland for pursuing an Employment Tribunal claim, but this only kicks in where the case raises some issue of wider legal importance, and where the claimant meets strict financial limits.

Finally of course, employees are often reluctant to pursue a Tribunal case because of fear of what a new or prospective employer might think. “If he can take his last employer to a Tribunal, he could do the same to me” is a sentiment I have heard on a number of occasions from employers. In most cases the award due to a successful applicant would not make it worth their while to be out of work for a couple of years or more.

What Effect Does All This Have on Proceedings?

The result of these competing pressures on cost is that many cases settle by agreement before a full hearing takes place. An employer, even feeling that they have a strong defence, might make an offer to settle a case knowing that the claimant might have to accept the offer simply to meet their legal costs.

Equally, an employee with a strong claim may find themselves forced into settling a case (a) because unemployment means that funds are needed sooner rather than later and (b) the claimant does not want to risk their adviser ending up with most of their damages. So an early settlement, caused by these economic factors, is common, and, although on one view might not be seen as far, actually helps the system. On one cynical view, if the employer pays more than they want to pay, and employees receive less than they are looking for, then an appropriate balance has been struck.

In addition ACAS provides an excellent service in seeking to assist the parties, even where represented, to reach a settlement. Sadly ACAS has found itself ever more hard pressed by the increasing number of claims and by budget restrictions. The ACAS oil is now spread very thin.

Why Does The Chancellor Want to Change Things Now?

The CBI and other employers’ organisations have campaigned for many years to clamp down on the number of Employment Tribunal claims, for the reasons mentioned above.

It is a truism to say that the Conservative Party is more in tune with the employers than the Labour Party. The Government therefore has been looking for ways to reduce what are called the “vexatious” applications which are “hopeless” and exist only to trouble employers.

There has been a large increase in numbers of claims over recent years, although much of this has been caused by the growth of unemployment due to the recession. It is very easy, for example, to make a mess of a redundancy selection process, leaving the employer liable, but as long as they cannot show they have acted fairly.

There Is No Suggestion That Mr Trump Has Ever Acted Unfairly Towards Any Employee Ever

What Are The Rules Mr Osborne Wants To Change?

Normally an employee will need to have had twelve months’ continuous employment with an employer to make an unfair dismissal claim, although if a dismissal falls into one of the “discrimination” categories, (of which there are many) then the minimum period does not apply.

Some years ago the time limit was reduced to one year as a result of a legal challenge on the grounds of sex discrimination. Because generally women had shorter periods of continuous employment than men, the former two year limit was deemed to be indirect discrimination against women – the rule affected far more women than men.

As matters stand today, there are no costs payable by a claimant when lodging an application with the Employment Tribunal and, unlike some Scottish court cases, no fees payable to the Tribunal as the claim proceeds. Some view this as encouraging frivolous claims, as if a “free bet” for the claimants.

So What Will Be New?

Mr Osborne now proposes that the time limit, except in discrimination cases, should go back to two years.

First of all, I wonder of a challenge might be brought to this on the basis that again there will be unfair and disproportionate discrimination against women.

Secondly, that should result in a fall in the number of cases as workers with between 12 and 24 months employment fall out of eligibility to claim. There has already been comment that in fact claimants will circumvent this by claiming “discrimination” but Employment Judges are very good at clarifying the position as regards precisely in what way discrimination is alleged, and if the Tribunal determines that there has been no discrimination, then the case can fall foul of the time limit. It is not enough to cry “discrimination” – it actually needs to be there.

Of course, there might simply be an increase in preliminary hearings designed to ascertain if there was discrimination or not, and that will mitigate the effect of the change, and in fact might make things worse as, even with fewer cases, there might have to be more hearings.

The other change and the one which has the potential to be most damaging to a prospective claimant, is the imposition of fees on claimants. The Guardian reports that:-

“Under the plans, applicants will be obliged to pay the costs of an unfair dismissal claim – £250 for lodging a claim and a further £1,000 if the case goes to a hearing – which will only be refunded if the employee wins.”

This is a remarkable change, and one expressly designed to price people who may have been sacked unfairly out of vindicating their rights. At the present time, in particular, a person dismissed from work might not find it easy to get back into employment and will find their funds very precious indeed. In such a case how is a sacked employee to be able to find the cash to pursue a case to the end? Employers might fell happy to sit tight until, depending on the stage it has to be paid, the claimant has actually stumped up the hearing fee.

I do not see the Scottish Legal Aid Board agreeing to fund new outlays which did not exist before, especially in a class of case they have little to do with just now.

It is possible that the same exemption from paying court costs which applies in Scottish court cases just now might simply be extended. The above exemption allows people in receipt of certain Income Based benefits to be exempt from paying the court fees, for as long as they remain eligible, not for the duration of the case.

But as the Employment Tribunals have a UK wide jurisdiction, I imagine the intention will be to have the same system across the board, and in these straitened times, I can well see the exemption being limited if not eliminated totally.

If I was a potential claimant, recently dismissed, struggling with the DWP to be paid the benefits to which I thought I was entitled, the prospect of having to pay over £1,000 to pursue a Tribunal case would be daunting in the extreme.

And the suggestion that the fees would be refundable if successful are unclear. Does this mean that the Tribunal has to find in the claimant’s favour? What if they win, but their award is reduced to “nil” under Polkey? What if a claimant wins on four grounds out of seven, or eight or nine?

Claimant’s advisers would obviously want to insist on employer’s refunding the cost as part of a settlement, but if they are not obliged to do so, will an employee be prepared to proceed to a Tribunal hearing simply to get their Tribunal payment back?

Conclusion

Expecting the Conservatives to extend the reach of the Employment Tribunals is unrealistic in the extreme.

However, what we have seen here is a blatantly political attack on the rights of the working person, at a time when they are at their most vulnerable.

One hopes that the lawyers who act for the main Trades Unions, for example, are poised to see the new Regulations, and mount whatever legal challenge they can.

In a week when the Home Secretary has already called for repeal of the Human Rights Act because it interferers with the work of her department and causes her “problems” we are going to be left again to look to the courts to protect the people. Let’s hope they find a way to do so!

 

 

Confessions of a Floating Voter – Part 1 – From the Curse of Peladon to New Labour

Introductory Note – this has nothing to do with legal stuff, and is a personal ramble – think of it as a very extended “About Me” page, and pass over it if that has no appeal (and indeed why should it?)

 

I was brought up in Coatbridge. You might not have heard of it, a dwindling town, formerly dependent on heavy industries, which are now long gone. Staunch Labour territory – one of the places where it was rumoured that a traffic cone with a red rosette stuck to it could be elected.

That characterisation is rather unfair to the two members of Parliament who have represented Coatbridge for my lifetime. First of all there was James Dempsey, a former Provost of Coatbridge, who was the local MP from 1959 till his death in 1982.

Then, in the by-election that followed his passing, Tom Clarke, another former Provost, was elected to replace him. Both of them have had long and distinguished Parliamentary careers.

Indeed, as I will mention again below, I had the chance, when on a university trip to Parliament, to meet Mr Clarke in one of the tea rooms. He was remarkably personable, giving up some of his time to meet a starry eyed law student, whilst representing a constituency where the Labour vote traditionally was weighed, rather than counted.

So one would have expected me to be solidly and staunchly Labour.

However I’d shown an early interest in politics, and I vividly recall watching the news, between power cuts, in the winter of 1973-1974 (and particularly remembering the power going off one dark and stormy Saturday evening whilst watching the Doctor Who story “The Curse of Peladon” – I have never been as terrified in my life as I was by the sudden loss of power).

The Trades Union leaders were regular fixtures on the news (Moss Evans, Jack Jones, Len Murray, Arthur Scargill and the rest were as familiar as Barbapapa, Pinky and Perky and Mr Benn (not the former Viscount Stansgate, but the cartoon character)) – seemingly more than the politicians, and to my recollection they split time not so much with Messrs Heath and Wilson, but with Sheikh Yamani of OPEC and Yasser Arafat, as the 4^th Arab Israeli war slogged on. The West Bank, the Golan Heights and the Sinai Peninsula seemed as familiar from the news as George Square in Glasgow. Regular reports from Saigon plotted the end of the Vietnam War, and Richard Nixon was removed after a titanic struggle to make way for Gerald Ford, who promptly pardoned him, whilst making it clear he had not done anything wrong needing a pardon anyway.

I suspect I was a bit more politically aware therefore as I approached my teenage years than some of my contemporaries.

In the early 1980’s the spectre of the Cold War loomed over us. I remember going to sleep at night worried that by morning I would have been vaporised. I knew that the Soviets were not going to attack Coatbridge just for the sake of it, but we were close enough to the Faslane base and the Holy Loch, where British and US submarines were based to find ourselves, literally, caught in the fall-out if missiles had been launched.

Politics in the early 1980’s seemed remarkably polarised. The “Butskellite coalition” whereby Labour and Conservative took turns to be in charge in Downing Street without significantly, it seemed, changing matters had ended on the accession to No 10 of Mrs Thatcher, or the “Milk Snatcher” as she would forever be known.

Mind you, bearing in mind that the school milk was generally served lukewarm, and that on the coldest of days, there were not actually many children who missed it, from a taste point of view anyway.

Mrs Thatcher immediately succeeded in polarising matters, and Labour moved left under Michael Foot. The Labour and TUC conferences were given lots of screen time, and were the stages for massive in-fighting in the Labour movement. The Labour party seemed, to my young eyes, to spend much more time and energy fighting itself than it did fighting Mrs Thatcher.

Then, in 1981, came the political event which sparked my interest most. Up till then the choice was either Conservative or Labour, the SNP and Liberals being irrelevant, and coming from Lanarkshire, the vote would always have gone to Labour.

But the “Gang of Four” of Roy Jenkins, Shirley Williams, Bill Rogers and David Owen split from the Labour Party and formed the SDP. Suddenly poll ratings went through the roof. The political mould seemed to be broken. Many people who had not been active in politics joined the SDP. There were projections that the SDP would have a crushing majority should there be a general Election.

However, the initial excitement faded. General Galtieri decided to invade the Falkland Islands, allowing Mrs Thatcher to dispatch the Task Force and, through the skill and expertise of the British Army, Navy and Air Force, recover them.

A triumphant war leader now, Mrs Thatcher ordered us to “rejoice” and she suddenly was set fair to retaining her position in the 1983 election.

As the election approached, the SDP led by Roy Jenkins formed an Alliance with the Liberals under David Steel. Already the seeds of the SDP’s destruction were being sown. However there still remained anticipation that something remarkable could happen on election day.

I was too young to vote then, and watched the night time coverage with Dimbleby and Day unfold. The Conservatives were left with a thumping majority, and the SDP Liberal Alliance only garnered 23 seats, despite 25% of the vote.

That alone convinced me that a fairer electoral system was needed, and was a topic I studied in depth in the coming years at university.

I was first able to vote in the 1984 European elections, casting my vote for the Alliance. In Council elections (and we had both District and Regional Councillors to choose) there was generally not an Alliance candidate put up, so my “X” went against the Labour candidate.

The next General Election was in 1987. By that stage I was well on my way to finishing my studies. I was reading as much about politics as I could. As the 1987 election came into view, I recall devouring the Alliance manifesto and the joint publication by the Davids, Steel and Owen, setting out their philosophy. Behind the scenes however the two parts of the Alliance were tearing each other apart, and the SDP, under David Owen, with the shallower roots, was the one to lose out.

At the election the Alliance share of the vote fell, although it was still at 23% nationally. However the electoral system meant that the Conservatives again had a sizeable majority, and the Alliance had far fewer MP’s than its votes justified.

In a party political sense, I should have voted for the Alliance that year, having given serious consideration to voting Conservative (this all because of my new political hero, Michael Heseltine.)

However, I had had the good fortune to meet Tom Clarke, as I mentioned, in 1986 and when I reached the polling booth the next year, felt I should vote for the man, not the rosette. My vote went to Labour. That experience helped me see that a strict proportional electoral system by way of party list for example, would be bad in that the personal link between an MP and his constituents would be lost. Politicians should be able to enhance their chances of election by their positive manner and behaviour, and to detract from their chances if negative.

To return to Michael Heseltine however. He had knocked the Roy Jenkins’ posters figuratively off my wall. I had seen him as Environment Secretary on the news tramping round derelict sites in Liverpool, following riots there, and grabbing the Council by the scruff of the neck to get things done. Regeneration was the watchword and he vigorously pursued his goal in a manner that seemed almost semi-detached from the rest of Mrs Thatcher’s Cabinet.

He then became Defence Secretary, a vital role at the height of the old War, but his crowning moment came when he walked out of Cabinet, and through the door of No 10 into Downing Street to tell the press that he had resigned from the Cabinet as a result of the Westland Affair. He then turned to his right and marched down Downing Street, apparently away from power for ever.

The “principled resignation” was not quite as unusual then as it is now, but this was one of the most principled for many a long year. Heseltine quit because it was the right thing to do, not because it was all part of some grand plan of action. The fact that he was a millionaire many times over from his outside business interests made the sting of leaving a bit easier to bear, but I am sure it was not a decision motivated by ambition in any way. It was, as I have said, what he saw as the right thing to do.

He followed that up the next year with a book “Where There’s a Will”. This spelt out his manifesto, effectively a return to “One Nation” Conservatism, with a rejection of Thatcherite dogma.

Public spending was not seen as anathema – to my eyes at least at that time there seemed little difference between the views of Heseltine and of Owen.

I suspect that if the 1987 election had been fought with Heseltine as Prime Minister, I might well have voted for him, but despite the fact that Mrs Thatcher wobbled badly, she survived, and led her party to a third consecutive election win.

By this time the Alliance was effectively no more. The manoeuvrings which led to a merger of the parties was well under way. David Owen, not prepared to accept a merger, led his SDP rump into the wilderness and all but ended his UK political career. From being the youngest Foreign Secretary for many a year, his career fizzled out disappointingly.

This seemed to me to be a dreadful mistake by the Liberals. The impression gained from the news and papers was that some of the Liberal hierarchy had really not liked the prospect of victory, or at least of a substantial role in Parliament. They would rather be big fish in their small Liberal pond, rather than small fish in a big and successful SDP-Liberal Alliance. That may be unfair to many in the Liberal party at the time, but there did seem to be, especially at the Liberal Conference, a fear of being tainted with the merest whiff of power. After all, the thought process seemed to go, the Lib Lab Pact in Callaghan’s premiership had led nearly to a wipe out of the Liberals. Better to keep small and under the radar, they seemed to say. They did not want any truck with the politicians who were striving to make the third force in British politics significant again.

For the next few elections, my vote at local and European elections, where possible stayed, despite what I have said about them, with the Lib Dems, as they became. General elections are different however.

Maybe I would have been happy to support the Conservatives if Michael Heseltine had been able to succeed Mrs Thatcher. However John Major sneaked past to take the prize and Heseltinian Conservatism, which seemed to have far more humanity at its heart than any other brand of Toryism in recent years, failed to catch on.

At the same time, the Labour Party, after its wilderness years, seemed to be getting its act together. Neil Kinnock was prepared to take on the extreme left – his conference speech when he condemned Militant for its running of Liverpool Council being a tour de force. I recall watching Derek Hatton, Eric Heffer and Arthur Scargill marching out of the hall in protest.

Sadly for Kinnock, he was having to devote so much energy to fighting the enemy within, that he could not focus his attacks on the government, and he failed to become Prime Minister, despite his oratorical abilities.

By 1992, he seemed expected to win, but a bit of premature triumphalism led to Major staying in power, and to Kinnock stepping down where he was replaced by John Smith.

Now Smith was the MP for the constituency next to the one I lived in, Airdrie. He was a well known figure locally and nationally. He seemed to be well respected and liked.

It looked as if the new guard of Labour politicians, lining up behind Smith, were poised for victory over a tired Government, ridiculed in the press and by Spitting Image. However in May 1994, John Smith collapsed and died, his known heart problems having claimed him.

The Labour Party then was left with a fateful decision, but in fact the decision was taken out of the Party’s hands by the two front runners.

Gordon Brown and Tony Blair, both comparatively new men of prominence in the Party, saw that if one of them stood for leader, they would win, but if they both did, then another candidate might burst through the middle of them.

As a result the Granita Restaurant in London was the scene for their infamous meeting where Brown agreed to back Blair for leader with, depending on who you believe, some agreement about Blair standing down after he had been Prime Minister for a certain period.

Ignoring the hubristic nature of the “agreement” it can be seen as the cause of much of Labour’s successes over recent years, but equally of their failures.

In 1992 I had become disillusioned by the Liberal squabbling, and the Major government seemed uninspiring and tired. The only choice at the General election therefore was to support Labour in the person of Tom Clarke again. This was, once more, a personal vote, not a party one.

Then came the rise of New Labour.

Tony Blair, with Gordon Brown and Alistair Campbell beside him, grabbed hold of the initiative. New Labour, as the party was re-branded, took control of the news agenda.

The Opposition spokesmen seemed new, keen and energetic, whilst the Cabinet were the opposite. The smell of “sleaze” wafted all round Downing Street. We even had Martin Bell in his white suit challenging Neil Hamilton in Tatton.

“Things Can Only Get Better” blared from the loudspeakers. I felt energised politically, in a way I had not been since the rise of the SDP and the heady days of 1982, prior to the Falklands War, when it seemed that the SDP was heading for power.

Election night 1997 is memorable for many reasons, one of which is because my second daughter was born the day after the voting took place. She came into the world the day New Labour came to power.

By this time I had moved to Hamilton, so the personal vote for Mr Clarke was no longer an issue (though he has survived perfectly well without me). But the rise of New Labour, the promises of radical action and, to my ears, significant echoes of Heseltinianism, made me join the landslide of people voting in the first Labour Government for 18 years.

It was a remarkable moment, and a time ripe with expectation.