Martin Partington: Spotlight on the Justice System

April 1 2011 sees two important changes to the infrastructure of the English Legal System.
The merger of the administrative functions of Her Majesty’s Court Service and the Tribunals Service is completed today. The new organisation will be known as Her Majesty’s Courts and Tribunals Service (HMCTS). As I argue in the book, the great challenge will be to ensure that the distinctive ethos of the tribunals service – its procedural flexibility, its willingness to be more inquisitorial than courts, its ability to specialise – are not lost.
While this change was anticipated for some months, less publicised is the fact that, also from April 1 2011, the Judicial Studies Board no longer exists. This does not mean that judicial training is being abandoned. Far from it. The decision has been taken to merge the resources available for training judges in the courts with those available for training tribunal judges. These activities will now be taken forward by a new (virtual) Judicial College.

At present, an individual pays a fee when they apply for leave to enter or remain in the United Kingdom. There is currently no fee for any appeal against a decision to refuse leave. The Coalition Government is  seeking views on proposals to introduce a fee for the majority of individuals who wish to bring an appeal against:

• a decision to refuse them leave to enter the UK;
• leave to remain in the UK; or
• permission to vary their current leave to remain in the UK.

There is no intention that an individual who is bringing an appeal against a decision refusing to grant them asylum and who is in receipt of asylum support or who qualifies for Legal Aid will  pay a fee.

The Consultation Paper summarises the proposals as follows:
The Lord Chancellor has the power, under section 42(1)(c) of the Tribunals, Courts and Enforcement Act 2007, to introduce fees in both the First-tier Tribunal Immigration and Asylum Chamber (FTTIAC) and Upper Tribunal Immigration and Asylum Chamber (UTIAC). The underlying policy of recovering costs through introducing fees is therefore not in question in this consultation. However, the Government believes that there is a sound policy reason to introduce fee charges at the initial level, and that with the proposed exclusions, this will ensure that access to justice is properly available.

In more detail: there are proposals to charge a higher fee for oral hearings (when the relevant parties attend a hearing with a judge) than paper hearings (when a judge considers the merits of an appeal based on papers submitted to him or her) as the costs of an oral hearing are more than those of a paper hearing;

Appeals from individuals who are facing action initiated by the State (e.g. deportation; revocation of indefinite leave to remain; or deprivation of citizenship) will not have a fee charged;

Overseas appellants should generally be liable to pay a fee;

There should be a special power, to be used at the discretion of the Lord Chancellor, to waive fees in exceptional or compelling circumstances;

Payment of the fee can be made by someone other than the person bringing the appeal;

There sh0uld be no refund of the fee if an appeal is successful, withdrawn, invalid or out of time (as the Tribunal incurs costs in processing the appeal irrespective of the outcome);

Charging a two stage fee for some appeals to the Upper Tribunal;

Moving to a system where all appeals will be lodged at the Tribunal in the UK, with payment made shortly after the time the appeal is lodged;

All individuals bringing an appeal (unless exempt), including dependents and children, must pay a fee.

It is not suggested that the fee should cover all the cost of the tribunal – but it is likely to be set at a percentage of the cost of the average case, perhaps 25%. The Consultation period on these proposals runs until 21  Jan 2011

The significance of these proposals – which have not been widely publicised – should not be underestimated. It seems quite possible that consideration will be given to charging fees in other tribunal contexts – Employment Tribunals would seem a possible candidate.

The consultation may be found at

http://www.justice.gov.uk/consultations/docs/tribs-fees-consultation-paper-cp10-10a.pdf

Although it is for the chop, the Administrative Justice and Tribunals Council is not going quietly. It has just produced a report setting out seven principle of administrative justice that all those delivering services to the public should bear in mind.

The Council says that a good administrative justice system should:

• make users and their needs central, treating them with fairness and respect at all times;

• enable people to challenge decisions and seek redress using procedures that are independent, open and appropriate for the matter involved;

• keep people fully informed and empower them to resolve their problems as quickly and comprehensively as possible;

• lead to well-reasoned, lawful and timely outcomes;

• be coherent and consistent;

• work proportionately and efficiently;

• adopt the highest standards of behaviour, seek to learn from experience and continuously improve.

While these may seem in many ways obvious, it is surprising how often these basic messages are forgotten. Their report also contains a self-assessment toolkit, which administrators can use as a template against which they can measure their organisation. This is the sort of valuable work that will be lost once the Council finally disappears.

For more detail, see:
http://www.ajtc.gov.uk/docs/principles_web.pdf

So, the Coalition Government has now published its decisions on what public bodies are to be kept, what are to go. Here I comment on the decisions through the specific lens of the English Legal System.

The two highest profile casualties of the cull are the Youth Justice Board and the Administrative Justice and Tribunals Council.

The YJB did have a bit of a reputation for clashing with Government on issues relating to young offenders and how they should be treated in the criminal justice system; presumably  policy will now be taken into the Ministry of Justice. The justification is that this change is wrapped up in a wider review of criminal justice. My view is that the independent voice of the Board will be missed and that Government will still need expert external input into policy making. We shall see.

The Administrative Justice and Tribunals Council, created out of the former Council on Tribunals, had a broad remit to keep administrative justice under review. Given the importance of getting the relationship between the citizen and the state right, ensuring that government operates according to principles of good administration is vital. The Council played a key role in ensuring that different agencies communicated with each other. This facilitative role was particularly important and I think it will be missed.

For me, the most intriguing announcement is that  the whole edifice of independent judicial appointments, created by the previous government, is stated to be under consideration. The new process has not been welcomed by many lawyers but has made judicial appointments more transparent – need to watch this space on this one!

Similarly the future of the Office of the Children’s Commissioner is also under review – an announcement is expected in November 2010.

The public bodies review has usefully tidied up a number of tribunals and brought them into the Tribunals Service. The Residential Property Tribunal Service and the Valuation Tribunal Service, which in my view should always have been in the Tribunals Service, are now to be incorporated. A number of other tribunals are still under consideration for inclusion in the Tribunals service, including the ever popular Plant Varieties and Seeds Tribunal.

The Parole Board has been spared, but its future status and functions are still under review.

The Victims Commissioner is retained, but the Victim’s  Advisory Panel is abolished.

The published list confirms the abolition of a number of bodies which had been announced earlier: these include HM Inspectorate of Court Administration; the Legal Services Commission (not to be confused with the Legal Services Board, which is retained); the Legal Services Ombudsman; and the National Policing Improvement Agency.

On balance, my view is that the legal institutional landscape has changed less than might have been expected. There has actually been some sensible rationalization, particularly in the tribunals world. But I think that the Youth Justice and Administrative Justice worlds have been weakened by the changes.

Full details at http://www.number10.gov.uk/news/latest-news/2010/10/public-body-review-published-55604

Although the results of the Government’s Comprehensive Spending Review are not officially published until 20 October 2010, the widely publicized leaks of the quangos that are likely to be axed suggest there could be some significant change in the legal landscape.

Many of the bodies considered in my book are under threat: they include the Administrative Justice and Tribunals Council, the Civil Justice Council, the Family Justice Council, the Legal Services Commission, many of the Boards that look after local courts, a number of tribunals – even the future of the Law Commission is, according to reports, not secure.

For the list as published in the Daily Telegraph see: http://www.telegraph.co.uk/news/newstopics/politics/8021780/Quango-cuts-full-list-of-bodies-under-review.html

In April 2010, I noted the statement of the then Labour Lord Chancellor that he intended to merge the Court service and the Tribunal service. This programme, the Courts and Tribunals Integration Project, is – under the new Government – developing rapidly. On September 15th, the Conservative Lord Chancellor  announced that he hopes the new integrated structure will start to operate in April 2011.

This will have profound implications for the judiciary who work in both the courts and the tribunals. While it may well enable those who manage court business to use judicial manpower more flexibly, the merged framework may well result in the loss some of the well recognised advantages of tribunals, namely their informality of procedure, ‘the enabling role’ and similar attributes.

I have argued elsewhere that courts have much to learn from tribunals, in particular how to handle litigants in person. However, the ignorance of most court judiciary about the work and ethos of the tribunal judiciary will mean that, without strong and enlightened judicial leadership, such lessons are unlikely to be learned.

The Lord Chancellor’s statement is at http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm100916/wmstext/100916m0001.htm#10091614000227