The next item is questions to the Counsel General, and the first question is from Dawn Bowden.
What assessment has the Counsel General made of the impact that employment tribunal fees will have on access to justice in Wales? OAQ(5)0037(CG)
The Welsh Government is concerned that, for many people, the cost of bringing employment-related claims is now prohibitively expensive and denies them access to justice.
Thank you, Counsel General, and I'm sure you're aware that recent figures indicate that there has been an 81 per cent decrease in the number of employment tribunal claims lodged since the UK Government introduced fees in 2013. Unison is currently challenging these fees in the Supreme Court. Do you agree with me, Counsel General, that such fees, ranging from £160 to £950, with discrimination claims attracting the highest level of fees, mean that ordinary people are effectively being priced out of justice and that this disproportionately penalises women, low paid, ethnic minority, LGBT and disabled employees and is yet a further example of Tory attacks on working people?
Well, you make some very good points. The UK Government’s own review of the introduction of fees in employment tribunals was published in January, and that does indeed highlight a number of very concerning the areas. First is obviously the very stark and substantial fall that there has been in the volume of claims: an 80 per cent reduction in claims to tribunals since the introduction of fees. The Government's own evidence is also that some people who are unable to resolve their disputes through conciliation nevertheless did not bring a claim to the employment tribunals because they said they could not afford the fee, despite any financial support that was available. Equally, the assessment under the public sector equality duty that has been made by the UK Government of the impact of fees is that they have had a significant impact on discrimination cases and the discrimination area. The Supreme Court reference itself—and we’re awaiting the judgment in that particular case—just highlights that there are substantial fees ranging from £390 to £1,600 to go to the employment appeal tribunal, and that following that, official statistics show a dramatic reduction in claims brought—around about 80 per cent. The Welsh Government has made its own representations in the consultations, which basically make the point very clearly that we do not think there should be fees at all, and certainly there should not be any fees that deny access to justice, and certainly in this area there clearly is a significant denial of justice to working people within Wales.
If I can just make a point about what Dawn said, fees are higher in some cases than Dawn Bowden suggested. It now costs around £1,250 for an unfair dismissal claim. Claimants are able to apply for remission of fees, but many people will need assistance doing so. Many people will also need help with issuing the claim and conducting it. The citizens advice bureau has long been a source of free advice and guidance, not only on employment matters, but on other issues—but I know how stretched that service has become. How would you propose to support the CAB in Wales?
The Welsh Government supports the CAB by actually funding advice and support through various advice agencies. Of course, the most effective way of gaining support in occupational matters is by actually belonging to a trade union, and of course the UK Government seems to spend most of its time looking at legislation that actually inhibits and restricts the role and operation of trade unions. I have to say that this area of work has never been properly recognised by the UK Government and by the Conservative Party.
2. What is the Counsel General's assessment of the implications for Wales of the report by the justice council on increasing judicial diversity? OAQ(5)0034(CG)
The recommendations relating to the personal development and career progression of lower-ranking judges and tribunal members could have a positive impact on career opportunities for the Welsh tribunal judiciary.
Can I thank the Counsel General for that response? The report concludes that a purely organic approach to increasing diversity means that change is happening far too slowly and calls for systematic and structural changes to promote change. Does the Counsel General agree? What discussions has he had in respect of how the Welsh Government can contribute to the change process? It’s not a huge improvement if a public-school man is replaced by a public-school woman. We want real diversity.
Thank you for that supplementary question. Of course, you raise some of the points that were very much raised in the Justice report, which effectively said that the senior judiciary is dominated by privately educated white men and may need targets with teeth to improve diversity on the bench. There is, of course, a significant process of change under way at the moment, and the study by the reform group Justice, which the Member has referred to, is in fact very highly critical of the slow progress that’s been made, as in fact have been senior members of the judiciary themselves. So, we wait to see the outcome of those considerations, but they have described very much that the failure to ensure that the judiciary reflects the UK’s ethnic, gender and social composition has become a serious constitutional issue. We are very alert to these issues in respect of that part of the judiciary that comes within the responsibility of Welsh Government. In representations that we make, we make very clearly the points in respect of diversity. We also make the point very strongly that it is vital that there is Welsh representation in the higher courts by judges with a knowledge and understanding of devolution and the law as it applies to Wales. So, those two aspects are very much within Welsh Government consideration in any opportunity there is to promote that increased diversity that we all want to see.
3. What assessment has the Counsel General made of whether the Assembly has the legislative competence to ban the use of zero-hours contracts in Wales? OAQ(5)0036(CG)
Members will know that my advice is legally privileged. Proposals to legislate for zero-hours contracts would require detailed analysis of legislative competence, having regard to the particular factual circumstances and context.
I thank him for that answer. Exploitative employment conditions are a major scourge of the modern economy and finding a way to outlaw exploitative employment is an absolute priority for us on these benches. I welcome commitments by the UK Labour Party to use reserved powers in Westminster to ban exploitative employment across the UK. Given his answer about the competence of this place, what does he make of attempts by Plaid Cymru to attach amendments to other legislation that cannot genuinely tackle this blight and put that legislation at risk, even if it secures a good headline for Plaid?
Well, I don’t believe it’s my purpose to comment on proposals that are made by particular individuals or by political parties. What I would say is this: Welsh Government has been very alert to the whole issue of conditions within employment and has raised on a number of occasions the issues of the way in which procurement can be used. We’ve already seen work that has been done by Welsh Government in respect of blacklisting. We’ve had, obviously, the discussion on the principles with regard to the trade union Act and, of course, there’s very considerable work that was undertaken, and significant impact, in respect of the Agricultural Sector (Wales) Act 2014, and, of course, the impact of that particular judgement. The code of practice on ethical employment in supply chains has been launched by the Cabinet Secretary for Finance and Local Government earlier this year. It is a voluntary code, but all organisations that receive funding from the Welsh Government are expected to sign up to it, and it provides that zero-hours contracts are not to be used unfairly. The Public Services Staff Commission has produced guidance about the use of non-guaranteed-hours contracts and principles and guidance on the appropriate use of non-guaranteed-hours arrangements in devolved public services in Wales. The Welsh Government has also commissioned and published research about the use of zero-hours contracts in devolved Welsh public services and in the domiciliary care context. Of course, Members will be aware of statements that have been made by Ministers in respect of the ongoing work of Welsh Government on the issue of tackling job insecurity, zero-hours contracts and imposed self-employment, and also considerations that are being given specifically to the care sector.
Well, perhaps to help test that central competence question, Welsh Government can of course try and offer advice and guidance, as you’ve just mentioned, Counsel General. If so, what status does that have in terms of non-compliance and how would you view the fact that, on my last set of figures, Bridgend County Borough Council, until last week, employed almost 350 staff on zero-hours contracts? Would you think that complies with the sort of mission that you have against unfair use of those contracts?
Well, the code of practice on ethical employment in supply chains is there. It’s there for public bodies to take into account when it comes to consideration of future contracts. Obviously, the expectation is that all public bodies will have regard to that particular code. Any further steps that can be taken by Welsh Government will have to ensure that they are actually compliant with the competence that this Assembly actually has. Members will be well aware of the issues that arose in the agriculture (Wales) Act—incidentally, something that the Member’s party actually opposed—which actually gave a very clear understanding of the way in which competence is considered under the conferred-powers model. Of course, we will, in due course, be changing to a different model, a reserved-powers model, in the future. The guidance that’s issued is voluntary, but we would expect compliance with it. And of course I have no doubt whatsoever that the Minister will want to see a system where it is reviewed in due course in the future.
Thank you for your answers on the subject so far. It’s good that there is at least a code of practice that you’ve drawn up, but the point that Plaid made last week through Adam Price on the zero-hours issue was that you’ve laid claim to legal competence over the public sector employment area in your putting through the trade union Act, so it seems inconsistent with your approach to zero-hours contracts.
There’s no inconsistency. Any set of circumstances where there is a piece of legislation or an amendment that is proposed has to be considered in the light of the legislative competence that we actually have. That’s the point I made, I think, in my first answer, and that is that we have regard to the particular factual circumstances and context. And in the light of that, the issue of competence is decided upon.
4. What assessment has the Counsel General made of the legal implications for Wales of the EU Commission’s 2008 inquiry into anti-competitive practices by the pharmaceutical industry? OAQ(5)0035(CG)
Well, every year, the national health services across the UK lose out on millions of pounds due to some pharmaceutical companies breaching European and domestic competition law. We work very closely and effectively with the Department of Health, and the other devolved administrations, who share our interest in these issues, to recover our losses, and where there are grounds for legal action.
Thank you, Counsel General. It’s clear from the scale of recent finds that the Welsh Government is at significant cost risk from some pharmaceutical companies, which appear to be working together to fix prices. Does the Counsel General believe that this risk will increase as a result of our exit from the European Union, and what steps has the Welsh Government taken in order to protect the Welsh NHS post Brexit?
Well, you raise a very important issue. And in answering that question as fully as I can, I think I need to be very prudent about the legal sensitivities and about the duties of confidentiality owed to the court and to other third parties, which the Member will appreciate, and which I must respect. So, I suppose, in answering your question, I’m not going to make any specific reference to any particular cases that have been brought or settled, or identify any individual companies, or ongoing legal actions, or potential actions, of which there are a number. Nevertheless, you raise an issue that is of significant importance and matters of clear public interest, where there are clear issues to be resolved as part of the Brexit negotiations. In 2008, as your question points out, the European Commission launched an inquiry to investigate possible anti-competitive conditions in the pharmaceutical sector. The commission published its final report in July 2008. The report presents the commission’s detailed findings, and proposes ways to improve patients’ rapid access to medicines. And the main findings of the report, which are a matter of public record, conclude that it takes too long for generic drugs to reach the market, fewer innovative medicines are reaching the market, and that certain drug company practices contribute to this situation. It is apparent from decisions of the commission, and the Competition and Markets Authority, the CMA, that certain companies within the pharmaceutical sector engage in anti-competitive behaviour, which has the potential to cause financial losses to the Welsh Ministers, to the national health service in Wales and to the wider NHS in the UK, and, indeed, across Europe. Welsh Government works with the departments of health in England, Scotland and Northern Ireland to investigate such cases. Where anti-competitive behaviour causes losses to the Welsh Ministers and the NHS in Wales, appropriate legal action is taken to recover such losses. I can confirm that Welsh Ministers have been successful in a number of cases by achieving settlements. The pan-European nature of this anti-competitive action by parts of the pharmaceutical industry can result in enormous losses. As a matter of public record, the level of some of the fines reflects this. For example, action taken by the European Commission has resulted in fines, in one case of €427 million for breaching EU anti-trust rules, and in other cases abuse of dominant market position; €180 million in another case; in other cases, €10 million and €5.5 million. Certainly, enormous and significant amounts. The CMA has parallel powers to those of the commission in tackling anti-competitive behaviour within the UK, and can impose its own sanctions. In one case, it imposed a fine of £45 million. The financial impact of this behaviour is potentially enormous, and if not tackled leads to unnecessary cost to the NHS of tens and hundreds of millions of pounds, of which the NHS bears a share. So, it is an area where Welsh Government is very active, in conjunction with our counterparts, across the UK, in the Department of Health, and the devolved Governments. Of particular concern will be the need for a post-Brexit strategy, to ensure that we are not disadvantaged in tackling anti-competitive activity. Notwithstanding the domestic powers of the CMA, at the moment it is unclear whether the ability to rely on the European Commission’s investigations and decisions, as we have done in the past, will continue, or how they will continue. To my mind, there is a clear common interest in Wales, the rest of the UK and the European authorities in continuing to tackle these complex transnational issues together.
5. What discussion has the Counsel General held with law officers regarding the devolution of the justice system? OAQ(5)0038(CG)[W]
The Member will know that this answer is subject to the established law officers’ convention and that I do not publicly discuss such meetings.
Thank you for that usual response. Does the Counsel General happen to agree with me, however, that the part of the justice system that’s most easily devolved in terms of the law, and the constitution as well, would be policing? And as the First Minister informed the Chamber yesterday that he is strongly in favour of the devolution of policing, and as we are to have a debate on the issue in some 15 minutes’ time, what steps is the Welsh Government taking now, with the advice of the Counsel General, to ensure that the necessary constitutional steps are in place to allow that to happen?
Well, any constitutional steps with regard to the devolution of policing actually require a change in the law, and it isn’t really appropriate for me to step on the toes of the First Minister in his description and his proposals in respect of any policy changes he feels are appropriate. But, of course, he did make very clear yesterday in this Chamber what the Welsh Government’s position is with regard to the devolution of policing.
6. What assessment has the Counsel General made of the impact that European legislation regarding air pollution will have on Wales? OAQ(5)0039(CG)[W]
Members will again know that my advice is legally privileged and subject to the law officers’ convention, but I do fully support the Welsh Government commitment to improving air quality across Wales and its various initiatives to tackle air pollution.
I thank the Counsel General for his reply. We did, of course, have a debate about this yesterday on the Public Health (Wales) Bill, and the Minister confirmed during that debate that the current powers that Welsh Ministers have are under section 80 of the Environment Act 1995. I think there are two problems with this. One is that that was initially passed, of course, before devolution, and therefore, the powers that Welsh Ministers have are administrative devolution powers, rather than a devolution of legislation that’s taken place. And secondly, as far as I can see, that Environment Act, though it places an obligation on Ministers to produce strategies around air pollution, has no obligation to reduce air pollution, in other words to improve the situation. So, you can respond to the legislation without doing anything about it. And, obviously, that’s 20 years ago, and that’s why I’m so keen that we should relook at this. And in particular, with the knowledge that we have that, with withdrawing from the European Union, we will lose that wider framework of European environmental legislation, does the Counsel General not think that in his ongoing work of the codification of Welsh legislation air pollution is one such area where we need and deserve specific Welsh legislation?
Well, as the Member will be aware, the process of codification, if I might deal with the last point, is not, of course, about reforming the law, it’s about codifying the existing law, and the issue that any reforms or changes need to be made are a totally separate matter and, of course, would require a totally different level of consideration, consultation and scrutiny. In terms of the policy matter that the Member raises, well, of course, that is a matter for another Minister and it’s not appropriate for me to cross into that particular territory. What I can say, by way, I suppose, of repeating some of the points that have been already made by Ministers in this area, is that the Welsh Government is firmly committed to improving air quality across Wales, and is tackling air pollution in a number of ways, and, of course, these were outlined yesterday in the debate and are there in the transcript. And of course, Welsh Government is currently working on improvements to ‘Planning Policy Wales’ in relation to air quality and there is a consultation under way. The Member might be referring, of course, to the nitrogen dioxide issues, which is clearly an area of concern, and as of last week, the Welsh Government is consulting jointly with other UK administrations seeking views on a revised plan to reduce levels of nitrogen dioxide around roads within the shortest time possible. I think any other areas, really, are policy matters, which should be referred to the appropriate Minister.
I thank the Counsel General.