Martin Partington: Spotlight on the Justice System

In a new report, the Administrative Justice and Tribunals Council makes the argument that there are too many successful appeals before tribunals, the result of poor decision taking within government. It argues there should be more emphasis on ‘getting it right’; and that departments that have unacceptably high levels of successful appeals should be made to help fund the tribunals and ombudsmen that sort incorrect decisions out. The following note is taken from the executive summary.

‘The report‘s key message is that public bodies can save money and improve the quality of service by making fewer mistakes and learning more from those they do make.

‘Every day, public bodies make thousands of decisions about individuals across a diverse landscape – welfare benefits, immigration, education, tax, health and so on. Unfortunately, evidence suggests that far too many of these initial decisions are incorrect. Across the public sector there are high volumes of
appeals (over a million each year) against decisions and complaints about service provision. A worrying proportion of these appeals  and complaints – nearly 40 per cent in some cases – are upheld by tribunals or ombudsmen.

‘Incorrect decisions impact significantly on the lives of those directly concerned. Compounding the problem is the repetition of these expensive errors. Too few public bodies have in place feedback mechanisms to ensure that the outcomes of appeals and complaints are understood throughout the organisation.

‘Getting it right first time saves money. Mistakes result in considerable costs for the users of public services, the organisations concerned, and for the wider  public purse. There is little evidence that the financial costs of not getting it right first time are fully understood by public bodies, partly because many of the  costs can be off-loaded to tribunals and ombudsmen. As a result, the precise financial cost of poor decision-making and poor service delivery is unknown.

‘Poor service and waste of public money are unacceptable. The need for a sustained initiative to tackle the problem is long over-due. Public bodies must make it a priority to reduce mistakes and the financial and non-financial costs which go with them. This is particularly important at a time when there are  significant cutbacks in public spending.

‘Taking evidence from previous studies and two case studies conducted as part of this project, this report explains what right first time means and offers  practical advice on how public bodies can ensure that their decision-making or service delivery meets that standard.

‘Right first time’ means:
• making a decision or delivering a service to the user fairly, quickly, accurately and effectively;

• taking into account the relevant and sufficient evidence and circumstances of a particular case;

• involving the user and keeping the user updated and informed during the process;
• communicating and explaining the decision or action to the user in a clear and understandable way, and informing them about their rights in relation to  complaints, reviews, appeals or alternative dispute resolution;
• learning from feedback or complaints about the service or appeals against decisions;
• empowering and supporting staff through providing high quality guidance, training and mentoring.

‘A key finding of the study is that in order to get things right first time, public sector bodies must be learning organisations, always understanding their users and genuinely putting their perspective at the heart of processes and systems. The report identifies the fundamentals of right first time as Leadership, Culture,
Responsiveness, Resolution, and Learning.

‘The study also highlights Practical Steps that should be adapted and followed by leaders of public bodies when reviewing their services and attempting to establish a right first time approach. These Practical Steps relate to undertaking analysis, deciding on action and encouraging monitoring and learning.

‘Public bodies with responsibility for making original decisions must take the lead in improving the quality of the service they offer. All such bodies should carry out a review of their systems, procedures and decision-making structures, using the guidance offered in the Practical Steps, to ensure that they are doing all they can to get decisions right first time. As part of this, they should audit and
report on the volumes and costs of handling appeals, complaints and reviews on an annual basis. In addition, they must take demonstrable steps to feedback learning from appeals and complaints.

‘Embedding and supporting right first time in the culture and practice of administrative justice must also be seen as the responsibility of governments and parliaments.

‘The report argues that it is time to adopt a ‘polluter pays’ approach to help promote a right first time culture. Tribunals (including, but not limited to, those within the Tribunals Service) are currently carrying a heavy share of the financial burden caused by incorrect decisions.

‘It recommends the development of funding models by which original decision-making organisations contribute to the cost of running tribunals through direct reference to the volume of successful appeals they generate.

‘This report is intended to be a practical working tool to help public bodies  improve their performance, thereby reducing stress and cost for both end users and for the administrative justice organisations who deal with complaints and appeals. It is vital that all bodies serving the public should improve the quality of decision-making.

‘By implementing the findings and recommendations of this report they will not only save money but will help to improve the public’s trust and confidence in public services.’

For further information see http://www.justice.gov.uk/ajtc/docs/AJTC_Right_first_time_web%287%29.pdf

In April 2011, I commented on the creation of HM Courts and Tribunals Service – the single executive agency responsible for running both courts and tribunals.

In this note I comment on two matters:

judicial diversity; and access to tribunals.

Judicial diversity: One of the arguments made in favour of merging courts and tribunals was that the merger would make it easier for those appointed to chair tribunals also to as judges in the courts. This idea is being actively developed in the context of thinking about ways of increasing judicial diversity – i.e. ensuring that the judiciary is better balanced in terms of the numbers of women judges and judges from ethnic minority groups.

This is an issue that the Judicial Appointments Commission has been grappling with for some time. It is now clear that judicial leaders and others engaged in the judicial appointments process are coming to see how the merger of courts and tribunals can enable new thinking to develop about judicial careers – with people gaining judicial experience in a variety of judicial contexts, both tribunals and courts.

The Judicial Diversity Taskforce has recently published a report on progress towards greater diversity, in which this benefit from the merger of courts and tribunals is particularly noted. See: Improving Judicial Diversity; Progress towards delivery of the ‘Report of the Advisory Panel on Judicial Diversity 2010’ available at http://www.justice.gov.uk/downloads/publications/policy/moj/judicial-diversity-report-2010.pdf

Access to tribunals: One feature of the current system of tribunals is that, for the most part, access to them is free to users. The merger of Courts and Tribunals, combined with the economic challenges facing the current government has caused officials to start a process of identifying those tribunals which should charge fees and what those fees should be. The recent update on the delivery of the MoJ Business Plan indicates that this work should be completed by the end of 2011.

If changes on the lines contemplated are introduced this will do much to change the accessibility of members of the public to tribunals. While it is not possible to prejudge the outcome of this review at this stage, it is worth noting that many of those concerned with the future development of administrative justice view these potential developments with considerable alarm.

For example, in responding to a Ministry of Justice consultation on introducing fee charges for appeals in the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, the Administrative Justice and Tribunals Council argued against the introduction of fees in individual vs state jurisdictions as such charges fall on individuals who already face a massive inequality of arms in challenging state decisions. From this perspective a compelling argument would need to be made in favour of the imposition of fees to persuade the Council that fees should be introduced. The consultation paper contained no such argument.

The Council is not opposed in principle to the charging of a fee for the underlying public service of providing and administering the system of immigration visas. However the AJTC remains concerned about any proposal that treats tribunals as if they were providing a chargeable public service like any other. They are not. It has been well established for more than half a century that tribunals are necessary to provide an independent mechanism by which individuals can seek redress for alleged mistakes by government departments and other public bodies. Individuals should not have to pay a second time to challenge mistakes in a situation where the state is alleged to have been at fault.

Most unfair of all is the suggestion that appellants will not receive a refund of appeal fees even if the Home Office withdraws its case or the appellant wins his or her case. Collectively, these proposals appear to place administrative ease and income generation above basic principles of fairness and justice which in the Council’s opinion is unacceptable.

The Council considers that a major factor in the cost of the appeal system is a lack of effective incentives for initial decision takers to get their decisions right first time. The current proposals fail to recognise that the failure rate in original decision making by the UK Border Agency is unacceptably high. The Council recognises that improvements are being made but the introduction of appeal fees does not appear to encourage UKBA and Tribunals Service staff to make the correct decisions. It actually reduces any existing incentive. This cannot be the right way to proceed if public services are to improve. See http://www.justice.gov.uk/ajtc/adjust/articles/feesinequality.htm

This robust line of argument is worth bearing in mind as further proposals for fee charging start to emerge from the Government

The increased use of ways of dealing with offenders outside the formal court system is noted in the book in Chapter 5, p 149. The particular focus there was on the use of so-called ‘on-the-spot fines’ for public order offences. But there are other out of court disposals available as well, e.g. cautioning.

While the use of such methods of disposal may be appropriate for first-time youth offenders – to prevent them getting a criminal record, which may impact on their ability to get employment later in life – such disposals do evade the ‘due process’ features of the criminal court process. They would not seem to be particularly appropriate for persistent offenders.

In an important and interesting report, undertaken jointly by HM Inspectorate of Constabulary and HM Crown Prosecution Service Inspectorate, called ‘Exercising Discretion: The Gateway to Justice’ the following points emerge.

1. The number of crimes that are dealt with outside the formal criminal justice system has risen dramatically in a five year period by 135 percent. The most commonly used out-of-court disposals – warnings, cautions and penalty notices for disorder – now account for around one third of the 1.29 million offences brought to justice. When restorative justice outcomes – which are not currently included in national data – are added to this figure it is clear that out-of-court disposals have become an increasingly important tool in the fight against crime for both police officers and prosecutors.

2. When out of court disposals are used effectively, particularly restorative justice where offenders are encouraged to repair the harm they have done, we found high levels of victim satisfaction, promising signs of a reduction in re-offending, and minimal bureaucracy when the offender was dealt with quickly.

3. However, the inspection found significant variations in the use of out-of-court disposals around the country ranging from 26% of offences brought to justice in one criminal justice area to 49% in another. Choosing an out-of-court disposal or prosecution in court will have very different consequences for individuals depending on the requirements to keep a record of the result for disclosure to a court or a prospective employer. Local variations in practice are inevitable and expected but the inconsistencies we have identified mean that some offenders will receive differential treatment depending on where they were found or where they live.

4. In a small sample of 190 out-of-court disposals, the inspection found that about a third were administered inappropriately. In most of these cases, an out-of-court disposal was inappropriate as the offending was too frequent or serious.

The report concludes that while out-of-court disposals are a legitimate way of dealing with some criminality, more work needs to be done to improve consistency and prevent inappropriate use. A national strategy that brings greater transparency and consistency in the use of out-of-court disposals is now urgently required based on a proportionate response to the level of offending and the nature of the offender, what works to improve victim satisfaction, reduce re-offending and gives value for money for communities who ultimately foot the bill.

The full report may be seen at http://www.hmic.gov.uk/SiteCollectionDocuments/Joint%20Inspections/CJI_20110609.pdf

What do you think? How should the balance be struck between formal and informal processes?

The Government’s plans for a National Crime Agency, to be established by April 2013, have been taken a stage further with the publication by the Home Office of the paper ‘National Crime Agency – a plan for the creation of a national crime-fighting capability’.

The Paper state: ‘Sharing intelligence, capabilities, expertise and assets, the NCA will comprise distinct Commands for Organised Crime, Border Policing, Economic Crime, and the Child Exploitation and Online Protection Centre. Each Command will be led by a senior experienced individual and will manage its own priorities and risks.’

Full details of the plans, as they currently stand, are published at http://www.homeoffice.gov.uk/publications/crime/nca-creation-plan?view=Binary

Two recent announcements from the Ministry of Justice have been concerned with the interaction between young people and the law.

The first, called the ‘London Justice Programme’ is the latest initiative of the National Centre for Citizenship and the Law. Though based in Nottingham, the Centre has been seeking to develop national initiatives, of which the London Justice Programme is the latest development. At present there is not a lot of detail on what the programme involves, but it does provide opportunities for children at school to visit courts, hold mock trials there, and more generally become more aware of the legal system. The announcement at http://www.justice.gov.uk/news/features/feature170511a.htm provides a link to a video which gives the flavour of what is on offer.

There has also been an announcement about a new DVD – made by the Halton and Warrington Youth Offending Team (which comes under the Youth Justice Board) – which seeks to explain how restorative justice works and the demands that restorative justice measures make on those subject to them. The press announcement suggests that the DVD will be available from the YJB, but my researches do not currently indicate how it may be viewed. But it could be a useful source of information about restorative justice, challenging the perception that it is a ‘soft option’. For the press announcement, see http://www.justice.gov.uk/news/press-releases/yjb/yjb-news-release-20may2011a.htm

One of the trends in the practice of law noted in the book is the increased globalisation of the provision of legal services. Two recent Government announcements indicate just how important this work is, not just to our legal system but to the overall economy. They also indicate how competitive the legal services market is becoming in a globalised world. If the UK does not offer what global businesses want, business will go elsewhere.

The Government’s Action Plan ‘Promoting the UK’s Legal Services Sector’ was published in May 2011. It is available at http://www.justice.gov.uk/downloads/publications/corporate-reports/MoJ/legal-services-action-plan.pdf.
It sets out objectives which the Government will be seeking to support over the next few years, which will be incorporated in the upcoming MoJ Business Plan.
The second announcement is that a new ‘state of the art’ court building for dealing with commercial disputes – the Rolls Building – is scheduled to open in the Autumn 2011. A note on the progress of this initiative, for which the judiciary and commercial lawyers have long been pressing, was made at the end of May 2011. See http://www.justice.gov.uk/news/features/feature310511a.htm

For some time I have been meaning to draw the attention of readers to the amazing Democracy Live website run by the BBC.

It can be found at http://news.bbc.co.uk/democracylive/hi/default.stm.

The reporting of events in Parliament in the print media has significantly reduced over the last decade, so people who might be interested in knowing what is going on in Parliament don’t have an easy regular channel of information.

At the same time, Parliament’s functions have been developing – for example more use of Select Committees, backbench debates. And there have been other very important developments resulting from the creation of devolved governments in Scotland Wales and Northern Ireland. As if this was not enough, we cannot forget that our governance also embraces developments in Europe and the institutions of the EU.

The BBC website offers instant access to all these different Parliaments, including videos of speeches, and live debates as well as introductions to the background to many contemporary issues.

I know that there is concern that people in general do not take politics as seriously as perhaps they should. However, the work of our representatives in Parliament is at the heart of our system of representative democracy. One should not become cynical about the work of our representative institutions without actually knowing what they do.

Any argument that people will find it difficult to find out what is going on in our various Parliaments is totally undermined by this exceptionally informative and richly resourced website – for which I think the BBC should be unreservedly praised – this is public interest broadcasting of the highest quality and value.

There has been much controversy in recent months about the use of ‘super-injunctions’ to prevent the press and broadcasting media from reporting details of the private lives or confidential affairs of the rich and powerful. (I leave to one side the very practical question of the extent to which such super-injunctions can – because of Twitter and other social e-media – actually be effective in keeping the lid on confidential matters.)

Much press reporting of the issue might lead to one the view that the development of super-injunctions has been the result of the senior judiciary seeking to develop new legal principles, in the teeth of opposition in Parliament. (Of course there is nothing new in this as an idea – many of the fundamental principles of the law of England and Wales have been developed by the senior judiciary.)

The recent publication of the report on super-injunctions, written by the Master of the Rolls – who led a team of experts, including representatives of the press – seeks to offer a more reasoned analysis of what has been happening.

This shows, first, that it was Parliament that, by enacting the Human Rights Act 1998, created the conditions in which the judiciary was required to balance the competing rights to freedom of expression and privacy in individual cases.

The report also emphasises that there is an important distinction to be drawn – which recent reporting has often failed to do – between ‘super-injunctions’ and ‘anonymised injunctions’.

A super-injunction is an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and, (ii) publicising or informing others of the existence of the order and the proceedings.

An anonymised injunction is an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.

Again, contrary to the impression given in many press reports,  since January 2010, only two super-injunctions have been granted, one which was set aside on appeal and the second which was in force for seven days. In practice, super-injunctions are now only being granted, for very short periods, and only where this level of secrecy is necessary to ensure that the whole point of the order is not destroyed.

While there has been an increase in the number of cases which are anonymised, the law on anonymisation has been clarified in two recent Court of Appeal decisions. When anonymised orders are made, the court should wherever practicable provide a reasoned judgment for its decision.

The Committee produced draft Guidance setting out the procedure to be followed when applying for injunctions to protect information said to be private or confidential pending trial. This procedure will enable the media to be informed about applications in advance as Parliament envisaged when it passed section 12 of the Human Rights Act 1998.

The Master of the Rolls has asked HMCTS to monitor these cases in future to see whether the changes to procedure proposed are having the desired effect.

The full report of the Master of the Rolls’ Committee can be found at http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/super-injunction-report-20052011.pdf