Archive for July 2017
Keeping the administrative justice system under review
When the first major step was taken in the creation of what we would today recognise as a modern administrative justice system – the passing of the Tribunals and Inquiries Act 1958 – the Government of the day decided to create a statutory body – the Council on Tribunals – to keep the work of tribunals under review.
It was a body whose influence waxed and waned over subsequent years, but its reports were influential, particularly in promoting the need for training of tribunal personnel, ensuring that procedures would enable unrepresented parties to have the chance to be heard.
The Leggatt Review of Tribunals (of which I was a member) started with the view that the time had come to abolish the Council – but during discussion, it changed its mind, not least because of the powerful advocacy of its then Chair, the late Lord Tony Newton. Leggatt ended up recommending retention of the body that came to be known as the Administrative Justice and Tribunals Council (AJTC).
In the so-called bonfire of the quangos launched by the Cameron-Clegg Coalition Government in 2010, the AJTC was once again back in the firing line. The truth is that civil servants had long wanted to get rid of a body which they felt added to their administrative burdens without offering much in return.
Notwithstanding the fact that in its final years, the AJTC did extremely valuable work looking at some of the principles and broad strategic issues affecting the administrative justice system, the axe finally fell on the AJTC in 2013.
This was not however the end of the story. An Administrative Justice Advisory Group was created in 2012. In 2013 it became the Administrative Justice Forum (AJF). It was given a specific remit to keep under review the strategic programme of work being undertaken with regard to the administrative justice system – in particular tribunals – work now being taken forward under the Transforming Our Justice System programme.
In March 2017, the Government published the final report of the AJF, summarising some of the issues on which the Ministry of Justice had been working since 2013. Although the work is still ongoing, the AJF has been shut down.
Interestingly, its functions have not entirely disappeared. Arrangements are being put in place (the full details are not yet finalised) for JUSTICE, the Human Rights Group that has been engaged in a major programme of work relating to aspects of the development of the justice system, to host a new advisory group which will continue to have input to the Ministry of Justice.
The key topics on which the AJF reported were, in fact, issues which the former AJTC had done much to promote – for example,
- the importance of ensuring that practice and procedure take users of tribunals fully into account;
- the importance of Government departments learning from the outcomes of tribunal decisions, particularly where the may indicate operational practices that may need changing;
- the importance of enduring that there was no excessive delay in arranging and delivering decisions.
What the AJF did not do was consider broader questions about how different parts of the administrative justice system – tribunals, ombudsmen, complaints procedures – might interact more efficiently.
From my perspective what the latest development shows is that trying to keep a clear overview of the whole of the administrative justice landscape is a daunting prospect, particularly at a time when the bulk of civil service resources have to be devoted to the modernisation programme currently under way. This overview has to come from outside government, led by those who can take a holistic view and who are not locked into any specific aspect of the system.
For the final report of the Administrative Justice Forum see https://www.gov.uk/government/publications/administrative-justice-and-tribunals-final-progress-report
Business and Property Courts
The creation of the Business and Property Courts was noted here in April. From 4 July 2017 a series of events is being held in court centres around the country to launch the new Courts. The Courts will become operational from 2 October 2017.
The existing courts being brought together under the single umbrella are:
- The Admiralty Court.
- The Business List
- The Commercial Court (covering all its existing subject areas of banking and finance, shipping and insurance, trade and energy, and international arbitration, as well as the Circuit Commercial Courts, formerly Mercantile Courts.)
- The Competition List.
- The Financial List (covering banking and financial markets).
- The Insolvency and Companies Court.
- The Intellectual Property List (Including the Patents Court and the Intellectual Property and Enterprise Court, the “IPEC”).
- The Property Trust and Probate List.
- The Revenue List.
- The Technology and Construction Court (covering all its traditional areas of major technology and construction cases).
For further details see https://www.judiciary.gov.uk/announcements/launch-of-business-and-property-courts/
Prisons and Courts Bill 2017: new version awaited
One of the casualties of the calling of the General Election in June 2017 was that the Prison and Courts Bill 2017 was lost – i.e. failed to complete its Parliamentary process.
I have noted in earlier blogs the key features of this important legislation, both in relation to the reform of the Prison Service and to the Civil Justice system. It also planned to deal with rules relating to whiplash injuries (see entries in Spotlight on the Justice System 8 March 2017.)
It is clear from announcements in the Queen’s speech – delivered in June 2017 – that the Bill will be introduced, not necessarily in the same form but with the same policy objectives in mind.
For the moment, therefore, plans are on hold (though civil servants are actively working on the assumption that eventually they will get the new legal powers they need to introduce the proposed reforms.)
I will give further details when the new Bill is published.
Fixed-term Parliaments Act 2011 and the General Election 2017
There were those who thought that the enactment of the Fixed-term Parliaments Act 2011 meant that there would be general elections only every 5 years, unless very special circumstances arose. Enacted by the Cameron-Clegg government, it was designed to give some assurance that the Coalition Government would stay in power and would not be able to call a general election just on the whim of the Prime Minister.
What few people appreciated, however, was that the terms of the legislation did not in fact prevent the Prime Minister – now Theresa May – from putting in process the steps that would enable her to call an election, at a time when she was seeking to strengthen her position as Prime Minister, given her apparent strong position in the opinion polls. All she needed was a vote passed by a 2/3rds majority of MPs to trigger an early election.
As we now know, things did not work out like that. Her gamble did not pay off – at least not in the way she anticipated. So where are we with the Fixed-term Parliaments Act?
It remains on the statute book, and there are some who think that there will be a General Election – under the terms of the Act – in 2022. Political reality suggests, however, that the next election will take place before then. Exactly when will depend on specific factors such as strength of the Prime Minister’s position, and the progress of the Brexit negotiations.
I would not be surprised if, at some date in the not too distant future, steps were taken to repeal the legislation – unless perhaps there is another period of Coalition Government in the UK.
New Lord Chancellor and Secretary of State for Justice: David Lidington MP
Following the outcome of the General Election in 2017, the period of office of the first female Lord Chancellor, Lynne Truss MP, was brought to an end.
This was widely predicted, as there was a widely held opinion, especially among lawyers and the judiciary, that she had failed to gain the confidence of the legal profession. In particular, her failure to intervene to protect the independence of the judiciary when sections of the mass media attacked senior judges for upholding the argument that parliamentary authority was required before the formal process of the UK leaving the EU could begin, was seen as a lack of understanding of the Lord Chancellor’s obligations to protect the independence of th judiciary, set out in the Constitutional Reform Act 2005. Lord Thomas, the current Lord Chief Justice, was particularly critical of this.
Truss’ replacement is David Lidington MP. He is another post holder who has no experience of the law. Under section 2 of the Constitutional Reform Act, non-lawyers must nevertheless be ‘qualified by experience’. What this phrase means in practice is proving hard to determine. Presumably the post holder should be someone who understands and is willing to uphold the independence of the judiciary – even where such independence may lead to decisions unwelcome to the Government of the day.
At present it is impossible to say whether the new appointee will turn out to be a more satisfactory appointment than his predecessor, though his previous experience as a Foreign Office Minister suggests that he may have a particular understanding of the importance of upholding the rule of law, and the function of the judiciary is the process.
For comments of the Lord Chief Justice to the Constitution Committee of the House of Lords see http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/constitution-committee/lord-chief-justice/oral/49312.pdf
For the Lord Chancellor’s speech at his swearing-in ceremony, see https://www.gov.uk/government/speeches/lord-chancellor-swearing-in-speech-david-lidington
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 