Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘chapter 6’ Category

Transforming the Justice System: the Prisons and Courts Bill 2017

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Enromous changes to the ways in which courts – both criminal and civil – and tribunals operate have already been foreshadowed in a number of policy documents published during 2016. Parts 2 to 4 of the Prisons and Courts Bill contain provisions that will give statutory authority to the changes that have been proposed.

The headline provisions may be set out as follows:

Part 2 creates new procedures in civil, family, tribunal and criminal matters.

It makes changes to court procedures in the Crown Court and magistrates’ courts to make processes and case management more efficient.

It allows some offenders charged with summary-only, non-imprisonable offences to be convicted and given standard penalties using a new online procedure.

It extends the use of live audio and video links, and ‘virtual’ hearings where no parties are present in the court room but attend by telephone or video conferencing facilities.

It makes provision which will apply across the civil, criminal and tribunal jurisdictions to ensure public participation in proceedings which are heard virtually (by the streaming of hearings), including the creation of new criminal offences to guard against abuse, for example by recording such stramed hearings.

It creates a new online procedure rules committee that will be able to create new online procedure rules in relation to the civil, tribunal and family jurisdictions.

It bans cross-examination of vulnerable witnesses  – in particular those who have been the subject of domestic abuse – in certain family cases.

It confers the power to make procedure rules for employment tribunals and the Employment Appeal Tribunal on the Tribunal Procedure Committee and extends the membership of the Committee to include an employment law practitioner and judge or non-legal member.

 

Part 3 contains measures relating to the organisation and functions of courts and tribunals.

It extends the role of court and tribunal staff authorised to exercise judicial functions giving the relevant procedure rules committees the power to authorise functions in their respective jurisdictions.

It abolishes local justice areas, enabling magistrates to be appointed on a national basis, not just to a specific local justice area.

It replaces statutory declarations with statements of truth in certain traffic and air quality enforcement proceedings.

It makes reforms to the arrangements for the composition of employment tribunals and the Employment Appeal Tribunal.

It enables the High Court to make attachment of earnings orders for the recovery of money due under a judgment debt, as far as practicable, on the same basis as in the County Court.

Part 4 contains measures relating to the judiciary and the Judicial Appointments Commission.

It enables more flexible deployment of judges by enabling them to sit in different jurisdictions.

It brings the arrangements for the remuneration of judges and members of employment tribunals – currently undertaken by the Secretary of State for Employment – under the remit of the Lord Chancellor.

It rationlises the roles of  judges in leadership positions who will support a reformed courts and tribunals system. (This includes provision to abolish the statutory post of Justice Clerk; this role will continue, but those qualified to be Clerks will also be able to undertake analogous work in other court/tribunal contexts.)

It  gives the Judicial Appointments Commission the power to carry out more work (not directly related to judicials appointments) on a cost-recovery basis.

Source, Explanatory Notes to the Prisons and Courts Bill 2017, available at https://www.publications.parliament.uk/pa/bills/cbill/2016-2017/0145/en/17145en02.htm

Employment tribunals: fees

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Following the introduction of fees to take a case to the Employment Tribunal, the Government undertook to carry out a review to examine the impact of the new fees on the work of the tribunals. They have now carried out this review and in January 2017 published a Consultation Paper on changes they are suggesting might be made to the fees charging system.

The paper states that the introduction of fees had three principal objectives. These objectives were:

(i) Financial: to transfer a proportion of the costs of the ETs to users (where they
can afford to pay);
(ii) Behavioural: to encourage people to use alternative services to help resolve
their disputes; and
(iii) Justice: to protect access to justice.
It might be suggested that there was a fourth, political, objective namely to ease burdens on employers who were arguing that it was too easy for them to be taken to a tribunal by an employee – an argument which was of course rejected by the TUC and other workers’ representatives.
Having conducted their review, the Government has concluded that its original objectives have broadly been met:
(i) the financial objective:
those who use the ETs are contributing around £9 million per annum in fees (which is in line with estimates at the time),transferring a proportion of the cost of the ETs from
taxpayers to those who use the Employment Tribunals.
(ii)the behavioural objective:

while there has been a sharp, significant and sustained fall in ET claims following the introduction of fees, there has been a significant increase in the number of people who have turned to Acas’s conciliation service.There were over 80,000 notifications
to Acas in the first year of the new early conciliation service, and more than 92,000 in 2015/16. This suggests that more people are now using conciliation than were previously using voluntary pre-claim conciliation and the ETs combined.
(iii) access to justice:

our assessment suggests that conciliation is effective in helping up to a little under half of the people who refer disputes to them (48%) avoid the need to go to the ETs, and where it has not worked, many (up to a further 34%) went on to issue proceedings.
While these conclusions will not satisfy those who argue that there should be a return to the former system, there is absolutely no indication that the present Government is planning to abandon its new fees scheme.
The review states:
The fall in ET claims has been significant and much greater than originally estimated.
In many cases, we consider this to be a positive outcome: more people have referred their disputes to Acas’s conciliation service. Nevertheless, there is also some evidence that some people who have been unable to resolve their disputes through conciliation have been discouraged from bringing a formal ET claim because of the requirement to pay a fee.
This assessment is reinforced by the consideration given to the particular impact that fees have had on the volumes of workplace discrimination claims, in accordance with the duties under section 149 (1)of the Equality Act 2010.
The Government is proposing that the income threshold for fee remission should be modestly increased to, broadly, the level of the National Living Wage, with additional allowances for couples and children. (This proposal would apply to all courts and tribunal where standards fees are payable.)
The Government has also abolished fees for certain types of case concerning payments from the National Insurance Fund, such as certain redundancy payments.
In addition, the Consultation Paper notes that the Government has taken steps to publicise better the Lord Chancellor’s power to remit fees in exceptional circumstances, which has apparently led to some increase in the numbers of cases where this power has been exercised.
It seems highly unlikely that these changes are going to lead to significant increases in the numbers of claims made in Employment Tribunals. and even the modest changes proposed are not yet settled.
What is potentially more interesting is whether changes that might be made under the Transforming Our Justice System programme which, by holding out the prospect of much greater digitization of process, could lead to more people taking their claims to the ET. But as noted in my earlier blog, significant procedural reform of ETs is not going to be put in place for a considerable time to come.
Details of the proposed changes are at https://www.gov.uk/government/consultations/review-of-the-introduction-of-fees-in-the-employment-tribunals

Written by lwtmp

February 1, 2017 at 11:52 am

Reforming Employment Tribunals: process

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There have been two recent consultations which could affect the work of Employment tribunals and the Employment Appeal Tribunal. The first, considered here, is on procedure. The other, on fees, is the subject of a separate note.

As part of its Transforming our Justice System programme, in December 2016 the Government published a short consultation on how reform of employment tribunals might fit into the overall transformation programme. The Consultation Paper noted that because these tribunals were set up under the Employment Tribunals Act 1996, major change could not be achieved without reform of that Act. The Consultation Paper therefore noted that major change was likely to take rather longer to be delivered, given the difficulties of obtaining parliamentary time for an amending Bill.

In the interim, this consultation set out what seems to be a rather minor change, namely that the responsibility for drafting the procedural rules which apply to the work of Employment tribunals should be added into the work already being done by the Tribunals Rules Committee.

This may actually be a rather more controversial proposal than might at first appear, since many judges in both the Employment Tribunal and Employment Appeal Tribunal have long thought that they should be part of the court system, not the tribunal system. They argue that they deal with disputes between parties (which is more what courts do) rather than citizen-state disputes (which is more what tribunals do).

The problem with this argument is that courts do deal with citizen-state disputes as well as tribunals; and other tribunals do deal with party-party disputes.

In my view the essence of tribunals is that they should generally be less formal than courts, and also use specialist expertise where needed. These considerations seem to have tipped the balance in the Government’s thinking. My own view is that the Government’s proposals are sensible.

The consultation closed in mid-January 2017, so no final decision has been taken. It will be seen whether the Government’s initial view prevails.

For the consultation paper, see https://www.gov.uk/government/consultations/reforming-the-employment-tribunal-system

Written by lwtmp

February 1, 2017 at 11:04 am

Fees in immigration and asylum appeals

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In September 2016 I noted there the decision of the Government to introduce massive increases in the fees charged for bringing appeals to the First Tier Immigration and Asylum Chamber. They were introduced in October 2016.

On 26 November 2016, in a remarkable change of heart, the Government announced that the October increases would be scrapped and that the fee levels would revert to those in place before their introduction.

It should not be thought that the issue has entirely gone away. The Minister’s statement repeats the point that, in the Government’s view, the cost of providing court and tribunal should be broadly neutral, and that those who use them should pay more. Officials will therefore be working on new proposals, which will be set out in due course.

I think that two key questions remain unanswered:

1 Is the idea of making courts and tribunals self-financing the best basis for providing this service, particularly where what is being appealed against are decisions taken by civil servants working within the government? Is there not a public interest element – which should be funded in other ways, not by the individual – in ensuring that decisions taken by officials are right?

2 If fees are set at such a level that cases are simply not brought to the tribunal, does this not make the whole exercise self-defeating, in that no money comes into the system? In addition, if the flow of cases dries up, it is hard to argue that the impact of the fees has not interfered with access to justice.

I do hope that the nest consultation paper deals in a rather more nuanced way with these issues of principle, rather than just focusing on the narrow question of cash.

For the Minister’s statement, go to https://www.gov.uk/government/speeches/courts-and-tribunals-update

Written by lwtmp

November 26, 2016 at 10:31 am

Setting limits to the exercise of prerogative powers: R (Miller) v Secretary of State for Exiting the European Union

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One of the most important legal challenges to the exercise of prerogative power has recently been made in the case of  R (Miller) v Secretary of State for Exiting the European Union. This is the case that challenged the Government’s view that it could trigger Article 50 of the Treaty of the European Union without the necessity for a vote in Parliament. This is a case of very considerable constitutional importance. I provide here links to a  summary of the case, and  to the whole judgement.

The decision of the Administrative Court is being appealed go the Supreme Court. The outcome of that hearing is expected early in 2017.

A summary of the decision can be found by clicking on the following link:

 

The full judgement is at

While it was accepted that the Government can use its prerogative power to enter international treaties, in the case of the European Union, the relationship between the UK and the EU was underpinned by the European Communities Act 1972, which had been enacted by the UK Parliament. The judges accepted that, if the UK were to exit the EU, this would inevitably result in rights and obligations brought into the UK’s domestic law by the Act of 1972 being altered.

The judges held that the Sovereignty of Parliament was the most important  principle in the UK’s constitutional arrangements. While the Parliament could make or unmake any law, it was not permissible to use prerogative powers to change law enacted by Parliament. Thus, in the current situation, it was not permissible to use  prerogative power to trigger the start of the process of leaving the EU.

Sections of the UK Press saw this decision as undermining the will of the people (as expressed in the result of the referendum on leaving the EU). However, a more sensible view is that in this decision the Court was deciding  that the fundamental principle of the Sovereignty of Parliament should be upheld and that it was the proper function of the Court – which is independent of Government – to rule that in these circumstances the Sovereignty of Parliament was not to be undermined by the use of prerogative power.

 

 

 

Written by lwtmp

November 6, 2016 at 8:21 am

Transforming the English Legal System: Administrative Justice

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The Consultation Paper, Transforming our Justice System also has important proposals to make about the tribunals system, though – because the creation of the Tribunals Service in 2007 has already led to considerable structural change – changes to tribunals will be less marked than to the the criminal and civil justice systems.
The Paper states that in line with their principles of a just, proportionate and accessible system, the Government is planning on the following:
i. Streamlining procedures and encouraging a balanced approach: We are
working to simplify our procedures and put entire services online where
possible, carefully designed to be intuitive and easy to follow. Many relatively
straightforward tribunal decisions do not require full physical hearings, so where
appropriate, judges will be making decisions based on written representations,
hearings will be held over telephone or video conference and specially trained
case officers will help cases progress through the system. All of these changes
will make the process quicker and easier to deal with for all parties involved in a
case.
ii. Digitising the Social Security and Child Support Tribunal: This will be one of the
first services to be moved entirely online, with an end-to-end digital process that
will be faster and easier to use for people that use it.
iii. Simplifying panel composition: Another factor in taking a balanced, tailored
approach to tribunal cases is making sure the panels that make decisions in
tribunals are designed to best suit the circumstances of the case. Most tribunals
currently reflect historic arrangements that may be out of date and do not tailor
the expertise of the panel according to the case. We propose to revise the
current arrangements for setting panel composition to make sure that that
appropriate expertise is focussed on those cases that need it. We would
welcome views on how best to achieve this.
iv. Reforming employment tribunals: The Employment Tribunals deal with a huge
volume of claims every year – c. 83,000 in 2015/16. They work on similar
principles to many other tribunals and the civil courts, but currently have an
entirely separate structure, including a specific appeals tribunal. We are
considering whether the new approaches being adopted elsewhere in the
justice system could be applied to the employment jurisdiction.

 

Written by lwtmp

October 5, 2016 at 5:07 pm

Transforming the English Legal System

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September 2016 saw the publication of an extremely important Consultation Paper, which sets out ideas on how the courts and tribunals system in England and Wales should be reformed.

Its proposals are based on three principles, that the reformed system should be proportionate, accessible and just.

The Paper states:

To deliver a system that is proportionate and tailored for the complexity and
seriousness of individual cases, [the Government is] taking a consistent approach across jurisdictions [i.e., criminal, administrative, family and civil], including:
i. More use of case officers for routine tasks: Judges spend too much of their time
dealing with uncontroversial, routine or straightforward matters which could just as
effectively be dealt with by court staff under judicial authorisation. Where it is
appropriate, specially trained staff will be able to carry out some of this work to
help justice move faster.
ii. More decisions made “on the papers”: Where a case is relatively straightforward or
routine, representations will be made online in writing for a judge to consider
outside of a traditional court room, without the need for a physical hearing,
meaning a more convenient experience for everyone involved.
iii. More virtual hearings: Where a judge needs to listen to the parties make their
arguments, it will be possible in many cases to hold the hearings over telephone or
video conference, without the need for the parties to travel to a court building.
There will still be an important place for physical court hearings for criminal trials
and other serious or complex cases, but where they are appropriate, virtual
hearings offer an easy and convenient alternative for everybody.
iv. More cases resolved out of court: In appropriate cases, we will encourage parties
to settle their disputes themselves, without the intervention of the courts.
The Government wants to make legal processes more accessible and easier for to use, with many  services moving online – for example:
i. Putting probate applications online: Dealing with probate affairs can be difficult and
complicated at a time when people are often coping with bereavement. We are
digitising the probate system to allow the entire process to be managed online,
from application to resolution, making it an easier and faster process when cases
are uncontested.
ii. Managing divorce online: Work has already begun to allow divorce applications to
be made and managed online, removing some of the bureaucracy from often
stressful and lengthy proceedings and simplifying cumbersome administrative
processes.
iii. Digitising applications for Lasting Powers of Attorney: Allowing people to make
arrangements for a time in the future when they may not be able to make
decisions by themselves is a helpful but often emotionally stressful process.
Applications have been partially digitised since 2014, resulting in fewer application
forms being returned because of errors. We will build on this by making the system
fully digital to deliver a quicker service.
Across the board, the Government wants to simplify forms and make processes more
straightforward so they are easier for everyone to understand. Many of these changes are designed to bring the justice system up to date for the modern world and take advantage of advances in technology to provide a faster,more accessible service for users of the courts and tribunals.
It is important, however, any unintended effects of this technology are taken into account to make sure that the system remains just. Thus the Government intends to:
i. Provide a system that works for everyone: Digital and online processes are easy
and efficient for many people, but the justice system must also work for people
who do not or cannot access services online. We must provide an alternative route
of access for every service that moves online. ..
ii. Continue to ensure open justice: It is a core principle of our justice system that
justice is open. “It is not merely of some importance, but of fundamental
importance that justice should not only be done, but should be manifestly and
undoubtedly seen to be done,” as Lord Chief Justice Hewart said in 1924. The
principle of open justice will be upheld and the public will still be able to see and
hear real-time hearings, whilst we continue to protect the privacy of the vulnerable.
Most of these changes build on initiatives that are already underway. What is important about this new Consultation Paper is that it is being jointly promoted by the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals.
I set out in separate blog items the sections of the Paper on each of the different parts of the justice system.
The paper is not open for consultation for long. To read the paper and find the questions to which the government is seeking answers go to https://consult.justice.gov.uk/digital-communications/transforming-our-courts-and-tribunals

Written by lwtmp

October 5, 2016 at 9:31 am