Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

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Transforming administrative justice – current projects: progress reports

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Information about the progress of the Transformation: Courts and Tribunals 2022 programme has been emerging from HMTCS. (See this blog October 2 October 2018).

In this note I look in a little more detail at projects in the administrative justice area.

In their recent progress update, HMCTS listed 5 projects that were either started or in prospect relating to administrative justice. These were:

  1. Upper Tribunal: Building the IT infrastucture to enable new digital ways of working across Upper Tribunal.
  2. Social Security and Child Support (SSCS): Establishing a new, digital process to improve the experience of appellants, allowing them to submit, track and manage their appeal online.  Pilot projects are already been trialled in a number of venues.
  3. Immigration and Asylum Chamber  (IAC): Developing the administration of the Immigration and Asylum Chamber’s service so that it can adapt according to different needs of users. It will enable case resolution both online and by video.
  4. Employment Tribunals (ET): This project will use a combination of the tribunals authorisation and the civil money claims models to develop an ET service that can change the way it works according to what the user needs. This will include the ability to resolve cases online and by video.
  5. Specialist Tribunals: The project will establish new ways of working across the tribunals, developed on a tribunal-by-tribunal basis. This includes the Pilot project enable appeals to be made to the Tax Tribunal on-line, which are being tested and evaluated.
This information has been derived and adapted from Reform Update Autumn 2018, published by HMCTS, and available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744235/Reform_Update_issue_2_September_2018.pdf
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Keeping the ‘Transformation: Courts and Tribunals 2022’ programme under review

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In June 2018, I noted here the critical report from the National Audit Office on the Transformation: Courts and Tribunals Programme 2022.

The NAO report was reviewed by the Public Accounts Committee , which took evidence from the Ministry of Justice and HM Courts and Tribunals Service. It published a pretty brutal report which listed a number of concerns about the programme and set out a number of recommendations on the way forward.

The PAC found, in summary:

  1. It had little confidence that HMCTS can successfully deliver this hugely ambitious programme to bring the court system into the modern age.
  2. It found that HMCTS had failed to articulate clearly what the transformed justice system would look like, which limits stakeholders’ ability to plan for, and influence the changes.
  3. Despite revising the timescale, it thought that HMCTS’s imperative to deliver at such a fast pace risked not allowing time for meaningful consultation or evaluation and could lead to unintended consequences.
  4. The Committee thought HMCTS had not adequately considered how the reforms will impact access to, and the fairness of, the justice system for the people using it, many of whom are vulnerable.
  5. It found that, one third of the way through the programme, the Ministry of Justice still did not understand the financial implications of its planned changes on the wider justice system.
  6. The Committee remained concerned that the Ministry of Justice was taking on significant amount of change, without a clear sense of its priorities, at a time when it is facing severe financial and demand pressures.

In relation to findings 1, 2 and 4 above, the Committee wanted HMCTS to start producing update reported on a regular 6 month basis, starting in January 2019.

In relation to finding 3, it wanted, by November 2018, HMCTS to publish plans on how and when it will engage with stakeholders and be clear about how it will act on the feedback received and adjust plans if necessary.

In relation to findings 5 and 6 it recommended regular updates from the Ministry of Justice, again starting in January 2019.

The Government has just announced that it has agreed to all the PACs recommendations.

As I said in my original comment on the report from the National Audit Office, my personal view is that it is essential that the justice system is modernised. Doing nothing is not an option. While stern criticism may well help to ensure that the Director of the reform programme keeps her eye on the ball, I also think that it is important to support those working on the reform programme. Such harsh criticism could be extremely undermining of staff confidence and could paradoxically increase the chances of some of the negative outcomes listed by the Committee coming to fruition.

I will keep readers of the blog posted as and when new material is published.

The NAO report is at https://www.nao.org.uk/report/early-progress-in-transforming-courts-and-tribunals/

The PAC report is at https://publications.parliament.uk/pa/cm201719/cmselect/cmpubacc/976/97602.htm

The Government’s response is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/746797/CCS001_CCS1018676736-001_Treasury_Minutes_Gov_Resp_43-58_Cm9702_Web_Accessible.pdf

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Transformation: Court and Tribunals 2022 – progress reports

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I have observed before that it is quite hard for someone outside HM Court and Tribunal Service to keep up to date with progress with the Transforming our Justice System, now Transformation Courts and Tribunals 2022, reform programme.

For some time there has been an occasional blog, setting out information about a number of initiatives.

In recent months, a monthly Bulletin (also called an electronic Newsletter) has been launched, the latest of which, published on 1 Oct  2018 contains links to a detailed report Reform Update, Autun 2018, setting out the story so far.

The transformation programme is a very substantial one – it consists of some 50 projects. Not all of them have yet started and very few have as yet been completed. Many ideas are, quite rightly, being tested and evaluated before being nationally rolled out.

The easiest way to get an overview of the projects and their progress is to look at the summary table of the report (pp 22-26).

I will be adding further detail on these projects, dividing the information into broad subject headings.

The monthly bulletin can be accessed by clicking on the link under the heading Newsletter at https://www.gov.uk/government/news/hmcts-reform-programme.

The Reform Update report can be seen at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/744235/Reform_Update_issue_2_September_2018.pdf

The Inside HMCTS blog can be accessed at https://insidehmcts.blog.gov.uk/

 

 

 

 

 

 

 

Employment Law Hearing Structures: Consultation from the Law Commission

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The headline features of the Transformation: Courts and Tribunals 2022 programme have been about major changes to the ways in which courts and tribunals work: on-line courts, digitization of process, investment in IT and so on.

But in parallel with these major changes, other more technical changes are being contemplated which it is hoped will improve the efficiency of the work of courts and tribunals.

The recently announced (26 September 2018) consultation paper Employment Law Hearing Structures is an example of how the government is seeking to take this opportunity to make some technical changes to the ways in which  courts and tribunals dealing with employment and discrimination cases interact.

For example:

  • At present Employment Tribunals can only claims for contractual damages, where the damages claimed are below £25,000;
  • Employment Tribunals operate on a ‘no-costs’ basis – i.e. the winner of the case cannot seek an order for costs from the losing party;
  • Employment Tribunals have no power to make an order to enforce a decision that it has made.
  • Courts have exclusive jurisdiction over no-employment discrimination cases

These and other rules mean that there can be circumstances in which cases have to go to courts that might be better dealt with by the tribunal, and vice versa.

The detail of the proposals in the Consultation Paper are not considered here, though of great importance to specialist employment lawyers and other interested in employment matters.

But the existence of the consultation is flagged here to indicate yet more ways in which the detailed work of courts and tribunals is likely to be amended under the general banner of the Transformation programme.

(A similar exercise, though not currently the subject of a public consultation, is ongoing in the context of the resolution of housing and property disputes where  complex boundaries have to be negotiated between tribunals and courts which mean that cases may need to be launched in more than one forum. There is likely to be greater public debate on these issues when the promised Consultation Paper on a new Housing Court is published later in 2018.)

The Law Commission’s Consultation Paper can be seen at https://www.lawcom.gov.uk/consultation-launched-into-how-employment-law-disputes-are-decided/

The Consultation runs till January 2019. Final recommendations will be published in 2019.

 

 

 

Written by lwtmp

September 27, 2018 at 12:21 pm

Administrative Justice Council starts work

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The creation of the Administrative Justice Council – replacing the Administrative Justice Forum – was announced in December 2017.

It has now started work. In July 2018 it held its first meeting, the minutes of which have just been published.

The Council is a relatively large body – some 40 participants – who have a wide range of experience of the administrative justice system. The overall direction of the programme is led by a steering group drawn from the wider Council membership. Much of its work is to be done through sub-committees. The first two sub-committees – academic, and pro bono – started work before the first full meeting and fed their progress to date into the main Council meeting. In addition, specific projects will be led by ad hoc Working Groups.

From the minutes, it is clear that much of the first meeting was taken up with scene- setting with individual members explaining their work in the administrative justice field to the other members of the group.

Two particular themes in the minutes caught my eye:

First, it is clear that there are interesting developments taking place in Scotland and Wales which, following devolution, have the freedom to develop their own approaches – this is particularly the case for Wales.

Second, there was an interesting contribution from the Secretary of the Ombudsman Association, proposing that there should be a workshop bringing together people from the tribunals and ombudsmen worlds to look in some detail at how they approached their work, and to explore ways in which their work could be made more interactive.

Obviously these are early days, but I will be keeping and eye on how the Council develops and the contributions it may make to the development of administrative justice policy and its delivery.

Information about the Administrative Council can be found at https://justice.org.uk/ajc/

This page gives a direct link to the minutes of the meeting.

 

 

 

 

Improving Immigration and Asylum procedures

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Immigration and asylum is always controversial. People have strong view, both for and against current immigration policy and practice. But these policies are underpinned by a legislative framework (albeit a very complex one) and if we believe, as I do, that upholding the rule is an important societal value, then it is important that those impacted by our law on immigration and asylum should be able to rely on decisions that are made in accordance with the law, and that there should be rights of appeal where something has gone wrong.

For a number of years, however, the immigration and asylum appeals process has been under close government scrutiny. In the early part of the 21st century, the concern was with the huge numbers of immigration cases being taken on judicial review to the High Court. More recently, most of these cases were taken away from the High Court and transferred to the Immigration and Asylum chambers of the First Tier Tribunal and the Upper Tribunal.

However, numbers remained high. In this context, there were concerns that too many cases brought were unmerited, being used as a delaying tactic to postpone deportation; and that some of those providing advice and assistance in immigration cases were not providing a properly professional service.

As part of its major series of reports on the justice system, written to assist the Transformation of our Justice System programme led by HM Courts and Tribunals Service, JUSTICE, the all-party Human Rights group, has just published a report Immigration and Asylum Appeals – a Fresh Look. (I declare an interest, I was a member of the working party, chaired by Sir Ross Cranston, that wrote the report.)

In it they try to take a dispassionate look at the problems and challenges which face the immigration and asylum appeals procedure. Their approach is to look at each of the steps through which a case may go in order to  identify difficulties and recommend practical change.

The report is quite detailed. In outline, it argues:

Home Office refusal decisions The Working Party’s view is  that better Home Office decision-making – with more emphasis on getting it right first time – is the key to delivering a better appellate system;

The application process for immigration and asylum appeals. Here the working party argues that more detailed attention needs to be paid to the move to online processes. At the same time the working party addresses the issue of unsupervised, unqualified and poor quality representatives purporting to provide advice and assistance to appellants;

Appeals against adverse decisions of the Home Office on immigration and asylum matters in the First-tier Tribunal (Immigration and Asylum Chamber). This examines the important role of tribunal case workers in moving cases forward. It also wants to see stronger judicial case management to improve tribunal efficiency.

Hearings in the First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber). This section of the report focusses in particular on video-conferencing and video-hearings, recognising the potential advantages of these models. At the same time, the report stresses the fundamental principles that should govern any expansion in their use and where they will not be appropriate.

Appeals to the Upper Tribunal (Immigration and Asylum Chamber), Judicial Reviewapplications and appeals to the Court of Appeal. This part of the report focusses on the multiple stages that may be gone through when seeking permission to appeal. The working party considered the tension between the important right of review in this jurisdiction and the pressure on the system that flows from too many appellate stages. While not recommending removing rights of appeal, the report outlines ways to streamline this process.

A key theme to emerge from the report is that there needs to be much better communication between the parties.The Working Party considers how this might be facilitated both at the pre-hearing stage and on a continuing informal basis.

Detailed recommendations are made on ways to improve the management of cases and to reduce the number of unnecessary appeals – to the benefit of all participants in the system and the administration of justice more generally.

The above note has been adapted from the report which is available at https://justice.org.uk/new-justice-working-party-report-on-immigration-and-asylum-appeals/

 

 

 

Transforming the Justice system – views from the National Audit Office

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In this blog, I have tried to keep readers abreast of developments with the major Transformation of the Justice system programme. I have observed that this is not always easy and depends on keeping an eye out for press releases, blogs and now the new monthly e-bulletin issued by HM Courts and Tribunals Service.

In May 2018, the National Audit Office (NAO) published its first appraisal of how the programme is going.

Obviously the NAO is supportive of the aims of the programme, which it summarises as follows:

In 2016, HMCTS set up a portfolio of change programmes that will introduce

new technology and working practices to modernise and upgrade the justice system.

By March 2023, HMCTS expects to employ 5,000 fewer staff, reduce the number of
cases held in physical courtrooms by 2.4 million cases per year and reduce annual
spending by £265 million. Savings will come from lower administrative and judicial staff costs, fewer physical hearings and running a smaller estate. As well as making savings HMCTS expects the reformed system to work better for all those involved, use court time more proportionately, and make processes more accessible to users.

The NAO report helpfully reminds readers of the scale and scope of the overall programme:

The HMCTS change portfolio consists of several related programmes, which in turn
are made up of many individual projects. The major programmes are:
• The HMCTS Reform Programme which is modernising processes and systems
to reduce demand on courts by moving activity out of courtrooms. For example,
it will introduce online services and digital case files and expand the use of video
technology in hearings.
• The Common Platform Programme which is developing shared processes
and a digital criminal justice case management system to share information
between HMCTS, the Crown Prosecution Service and the police. It is jointly
managed by these organisations.
• The Transforming Compliance and Enforcement Programme (TCEP) which
is upgrading systems in HMCTS’s National Compliance and Enforcement Service,
used to enforce court orders such as penalties and compensation.
As part of these programmes, HMCTS is also reducing and modernising the
court and tribunal estate and creating cross-jurisdictional hearing centres and national ‘customer service centres’. These will centralise case management and administration and provide support to the public, judges and lawyers on civil and criminal matters.
The NAO makes some rather obvious observations:

1 The scope of the programme is challenging

2 The timetable has been expanded

3 The scope of some projects has been reduced

4 Progress has been slower than expected

5 Costs have risen and likely benefits decreased

6 There remain funding gaps for the later stages.

The NAO notes that many of these points have been taken on board within HMCTS. Nonetheless, the NAO argues that more should be done to demonstrate in detail how the reformed system will work. It states that it is important to sustain the committment of all those involved in the design and delivery of the new service. It implicitly criticises the Ministry of Justice for its failure to reintroduce the legislation that will be needed to ensure that aspects of the reform programme can be implemented. The NAO warns that the scale and spped of change may result in changes having unexpected consequences. And as much of the anticipated savings arise from reductions in staff, this could actually lead to an inability to deliver the service.

The public response of HMCTS has been upbeat – as indeed it has to be. A Press Release acknowledges that the programme is challenging; it summarises a number of specific changes that have been delivered; and remains confident that the programme will be successfully delivered.

My own view is that it is very important that the transformation programme is delivered. But the managerial challenge of delivering a large scale change should not be underestimated. To date, key judicial figures have been working with HMCTS to promote the need for and advantages of change. Continued judicial leadership will be essential. But I think it would be wise to develop a wider group of ‘change champions’, particularly within the judiciary more broadly and from  the legal professions. Many practitioners will accept that the current system does not serve the public well. Many will have good ideas for how things could be done more efficiently and to greater public benefit. Giving them the encouragement to voice their support for change would be highly desirable.

The NAO report is at https://www.nao.org.uk/wp-content/uploads/2018/05/Early-progess-in-transforming-courts-and-tribunals.pdf.

The HMTCS Press release is at https://www.gov.uk/government/news/hmcts-response-to-national-audit-office-report-on-court-reform-programme?utm_medium=email&utm_source=