20 October 2016

By Declan Owens, Socialist Lawyer

Access to Justice: Exposing the Myths, Andrew Moretta, published by the Institute of Employment Rights, 2016

Readers of Socialist Lawyer are aware of the problems in relation to their clients obtaining access to justice in their various practice areas and the devastating impact of the legal aid under New Labour, the Coalition Government and the Tories. One of the Coalition’s most far reaching reforms was the introduction of fees in the employment tribunals in 2013 (except for Northern Ireland) and the removal of employment law from the scope of legal aid, which had a major impact on law centres and firms. Andrew Moretta provides the reader with a clear, concise and detailed critique of how access to justice for workers in the United Kingdom has been gorged and outlines why the myths propagated by the Tories and businesses need to be exposed.

Moretta sets out eight myths and then forensically debunks them: (1) employment tribunals favour the worker; (2) employment protection laws reduce levels of employment; (3) there was a wave of ‘vexatious’ claims; (4) charging fees at tribunal serves to weed out ‘vexatious’ claims; (5) ACAS conciliation is an effective alternative to tribunal; (6) the claimant will be paid the compensation awarded by the tribunal; (7) a successful claimant can choose to be reinstated or reengaged; and (8) workers are likely to receive large awards at tribunal. He uses interviews with lawyers, relevant statistics (presented in clear tables and graphs) and the accompanying insightful analysis to reach the inevitable conclusion that the employment reforms by the Coalition and Tory governments were politically motivated attacks on workers and trade unions that were unsupported by empirical evidence, despite the skilfully deceptive crafting of the Beecroft Report to perpetuate the myths.

Building upon a previous strong critique of the employment tribunal system by Haldane Society member David Renton in his excellent book Struck Out: Why Employment Tribunals Fail Workers and What Can be Done, Moretta laments the decline of voluntarism in British industrial relations, individualisation and the juridification of the employment relationship. Moretta tracks the ideological de-regulation / reregulation of industrial relations and how it has been targeted to undermine the position of workers, reaching its apogee with the Trade Union Act 2016, which was still passing through Parliament as he was writing. Echoing the call by trade union leaders such as Unite’s Len McCluskey, Moretta anticipates that the action necessary to create the impetus to remove that legislation and to restore the trade union freedoms lost since 1979, ‘will now involve breaking the law’.

However, regarding access to justice, Article 6(1) of the European Convention of Human Rights and – notwithstanding the implications of Brexit – Article 47 of the EU Charter of Fundamental Rights guarantee the right to legal assistance in civil proceedings. These provisions should allow individuals to access justice irrespective of their means. What is to be done in the present situation in the United Kingdom when its government is clearly in breach of its international law obligations regarding access to justice? Moretta has achieved his objective in dispelling the myths; his prediction of the next steps for the labour movement is surely correct and one that readers of Socialist Lawyer will endorse: ‘The unions now face a decisive battle, one which will be fought in workplaces, on the streets, in Parliament and in the courts’.

Originally published in the October 2016 edition of Socialist Lawyer

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