Claim Now

To ensure we give you the most tailored advice regarding your data breach enquiry, we kindly request that you complete our specialised enquiry form. You can access the form
by clicking on the following button: Click here

Click here to return to the previous window

Well. The trolls numbered in the single digit and it was entirely clear that none of them took the time to listen to the full exchange from start to finish; and the universal view of the hundreds of friends, colleagues and most importantly strangers who sent me message of support was that it was the Tories who tried to bash me who were left looking like fools.  Discourteous at best and bullies at worst.

The nasty party, it seems, is alive and well in the Scottish Parliament.

Patrick McGuireI do have one regret about the evidence that I gave before the Economy Committee on 22 November 2016.  Not that I had missed the memo from the Tory party saying that rather than taking the opinion of an expert on the political-legal consequences of Brexit against our legally complicated devolution settlement (in relation to which I would say with all humility that there are few solicitors, if any in private practice better placed to provide such expert evidence than me) they simply wished to squander the hour evidence session with a “pop quiz”.  Had I received the memo I would have made sure that I would have revised accordingly and been ready to give specific dates, short titles of legislation and even the specific dates that legislation came into effect.  I didn’t swat up like that because I thought that the Committee would wish to deal with far more important and bigger issues.  Of course, all of the other (non-conservative) members of the Committee did have higher ambitions and objectives for the session.

No.  The regret I have is that when the pop quiz began I didn’t simply say “I have already answered the substantive point you are making, Mr Kerr”; for I had.  The hundreds of people who sent me messages of support, because they had watched the full exchange, saw me deal with the point.  They have therefore encouraged me, and I have agreed, to write this blog. 

Unless he really was seeking to exorcise a ghost of a failed or lost career as a teacher;  or he was out to try and deliberately make me look stupid;  Liam Kerr, MSP,  was trying to make the point that certain Acts of the UK Parliament on Equalities predated the 1972 European Communities Act 1972 [and I should confess, Mr Kerr, that as I was drafting this blog I did have to “google” the exact name of the 1972 Act as I regret to say I didn’t know that off the top of my head either].  The point being made was a fair but entirely misguided one.  It is a point that misunderstands or deliberately intended to obfuscate the role that European Law has played in extending, strengthening and solidifying those pre-existing rights.  It is a point that also ignores the key role that the European Court of Justice has played in the quantum leap we have seen in the legal protection of workers over the last 40 years.

It is a point that overlooks the sheer weight  of progressive European Directives on workers’ rights that the UK have had no choice other than to transplant into our law.  It therefore denies the truth that in the main for 45 years workers’ rights could not be used as a political football by Westminster.

Mr Kerr’s point certainly denies the political reality of the various legislative wrecking balls that the Tory party have taken to workers’ rights over the last 7 years.  

It was suggested at one point during the evidence session I was making “a political point”.  There is nothing in what I said on that day or anything in the preceding paragraph that is a political point. They are plain facts based upon specific Acts of parliament introduced at Westminster.  The Conservatives firstly attached Trade Union finances with the Legal Aid Sentencing and Punishing of Offenders Act 2012 (LASPO).  They doubled the qualifying period for employees to make a claim for unfair dismissal. The Conservatives essentially abolished workers’ rights to effective and dissuasive health and safety remedies with Section 69 of the Enterprise and Regulatory Reform Act.  The Tories capped the compensatory award payable in unfair dismissal cases to a maximum of 12 months.  They immediately introduced legislation on holiday pay to thwart the intentions of two recent European Court of Justice decisions; restricting significantly and punitively the period over which mistreated employees could claim and the amount of compensation that employers who ignored the laws on Working Time had to pay. They introduced the “portal” and fixed PI fees as a further attack on Trade Union finances.  The Tories repealed the pre claims discrimination questionnaire and the Employment Tribunal’s ability to make recommendations that relate to the rights of and protections for the wider workforce. And they introduced crippling Employment Tribunal fees aimed at creating insurmountable financial barriers to workers accessing the Employment Tribunal system.  A move that was spectacularly successful [sic]  for bad employers – the first year of ET fees saw a 70% reduction  in cases brought to Employment Tribunal.   The most recent legislation in this long list of recent Tory Acts of Parliament is the Trade Union Act, widely accepted as the most anti-Trade Union piece of legislation since the Combination Acts.  

And only 4 days before I gave evidence, the Prime Minister, Theresa May, gave a strong indication that she would roll back on her promise to have worker representation on company boards.  Separately there was the announcement that the small claims limit would increase from £1000 to £5000.  The increase in the small claims limit is in my opinion the most insidious and invidious attack on Trade Union finances.  All of the public pronouncements related to “whiplash” and yet the proposed increase in the small claims limit will affect all cases including accidents at work.  If it was not the Tories intention to strike another blow against workers’ rights and Trade Union Finances they could and should have indicated an intention to exclude work related cases from any increase in the small claims limit.  

[I should pause again and once again make my confession.  I have cited a very large number of Acts of Parliament, Mr Kerr.  I know only too well their substance and the damage they have done.  From memory alone, I’m afraid I can’t provide their full citations or year they came into effect.  I’ll check Wikipedia for you if that gap in my knowledge offends.]

I brought two very important matters to the attention of the Committee arising out of the series of recent Tory Acts of the Westminster Parliament described above.  Firstly the sheer volume of legislation; all aimed at reducing workers’ rights and attacking Trades Unions, in a short period of time.  Secondly, that several of the legislative provisions are considered by legal academics and experts to potentially be in breach of European Law.  Some are actually being challenged on that basis.  The increase in Employment Tribunal fees, the legislative response to the ECJ’s holiday pay ruling, aspects of the Trade Union Act, Section 69 of the Enterprise Act and the proposed increase to the small claims limit all, at best, sail extremely close to the wind in terms of European Law.  

I also pointed out to the Committee that the list of legislative reforms above would have gone even further if we were not members of the European Union when they were taken forward.  For example, in terms of Section 69 of the Enterprise Act it is perfectly clear that the legal advice given to the government was that the provision was as far as they could currently go despite the Government’s desire to go further.

Based upon these clear and incontrovertible facts I offered the opinion that I re-state here: It is accordingly the inevitable and unavoidable conclusion from so many legislative attacks on workers’ rights over such a short period of time that UK workers will be substantially more vulnerable after Brexit.  It is an equally inevitable and unavoidable conclusion that the Tories will introduce further legislation diminishing and attacking workers’ rights while seeking to kill off the Trades Union movement in the months and years ahead when they are no longer shackled by EU Law.  

That is my opinion as an expert in these matters.  It stands up to any scrutiny and is based on the very clear facts I have stated above.  The fact that I didn’t know the precise date of one or two Acts of Parliament does not detract from the compelling nature of that opinion any way and it is laughable to suggest otherwise.  The true intention of Mr Kerr’s pop quiz interrogation was obvious.  He knew the truth of my opinion; it doesn’t sit comfortably with the supposed Zeitgeist of the cuddly Ruth Davidson Party; and he therefore thought attack was the best form of defence.  A strategy that backfired.  

Thankfully, all of the non-Tory members of the committee present  seemed to clearly understand the point and shared my concerns.  Let’s wait and see what the Committee Report says.

Blog by Patrick McGuire, Partner

Injured through no fault of your own?
Call us on
To see how much you could claim
Compensation Specialists
Our offices and meeting places
Talk to Thompsons
Claim Now