Archive for the ‘chapter 6’ Category
Reshaping the Court estate: a further consultation
The programme of transformation of the justice system depends on the closure of a significant number of existing court buildings and reinvestment of the savings of running costs and the capital receipts from buildings that have been disposed of in a smaller but more efficient court estate.
In January 2018, Her Majesty’s Courts and Tribunals Service published a Consultation Paper setting out the basic principles on which detailed plans are now being developed. At the same time there were 5 more specific papers setting our proposals for closing courts in a number of areas, including Cambridge, the Thames Valley, London and Lancashire. There is nothing particularly new in this paper, though it does give interesting accounts of a number of initiatives currently on-going to deliver new ways of working in courts and tribunals.
The key aims are that there should be
- more videolinks and virtual hearings;
- digital service delivery, with a major reduction in the use of paper files;
- flexible opening hours;
- improved service delivery with much more work being undertaken online.
The number of court buildings will be reduced from around 530 buildings (a decade ago) to a total of 239 buildings in 2018. It is accepted that this will lead to some increase in travel time to reach those buildings, but the vast majority will still, according to HMCTS figures, still be within 2 hours travelling distance. As much work will in future be delivered without the need for lawyers and parties to be present in court, it is argued that this will further mitigate any inconvenience. What will be important will be to ensure that cases listed for a particular day are actually dealt with on that day.
The Consultation Paper reminds readers that the transformation policy is designed
- to enable existing and new buildings to be much more flexible in the ways in which they can be used;
- to ensure better public facilities – e.g. waiting rooms, rooms for clients to consult with their advisers;
- to ensure that the vulnerable are able to feel confident about using court facilities;
- to include of modern ICT to enable more work to be done online
- to support the needs of all the professionals who use the courts;
- to move towards an estate that provides dedicated hearing centres, while seeking
opportunities to concentrate back office functions in a smaller number of centres where they can be carried out most efficiently.
There will be resistance to some of these ideas. For example, the Bar has already argued against more flexible opening hours. It is said that this could be discriminatory against women barristers who may find it hard to take cases outside traditional working hours. While this is an issue that must be addressed, such arguments fail to acknowledge the fact historically the Court Service has only paid lip-service to the idea of delivering a service to court users. Many parties to litigation may find it more convenient to attend hearings outside of 10-4, Mondays to Fridays. The transformation programme provides a challenge to those who work in the courts to consider how they can deliver the service that clients want, when they want it.
The Consultation runs until 29 March 2018. The documentation can be found at https://consult.justice.gov.uk/digital-communications/transforming-court-tribunal-estate/
New administrative justice oversight body announced
This Press release and blog confirms the creation of the Administrative Justice Council – the body replacing the Administrative Justice Forum as the oversight body for the Administrative justice system in the UK. It has not yet started work. Progress will be noted here in due course.
UKAJI is pleased to hear that the new Administrative Justice Council has been announced. We have called for a new vision of administrative justice and an oversight body to work closely with UKAJI and other research-focused organisations to ensure that thinking, new initiatives and policy change are informed by empirical evidence. We look forward to working with JUSTICE, Sir Ernest Ryder, and colleagues on the new Administrative Justice Council.
See below for the official press release from JUSTICE and an article in the Law Society Gazette.
6 December 2017 – For immediate release
JUSTICE to host successor to the Administrative Justice Forum
JUSTICE has agreed to host the successor body to the Administrative Justice Forum.
It will be renamed the Administrative Justice Council (AJC) and will continue to advise government departments on administrative justice issues. Lord Justice Ernest Ryder, Senior President of Tribunals, has agreed to be the AJC’s chair.
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Transforming our Justice System: Transformation – Courts and Tribunals 2022
Despite the loss of the Prisons and Courts Bill 2017 at the General Election, held in June 2017, work on the Transforming our Justice System programme continues apace. (For those aspects of the reforms which need legislation, a replacement bill is expected shortly.)
Keeping up to date with the progress that has been made is hard, as most of the changes do not hit the headlines in the media. (About the only issue which has been subject to any public discussion has been criticism from the Bar about a pilot trialling the use of courts for longer periods during the day. The criticism focussed almost entirely on the inconvenience this would cause to barristers – no mention of the possibility that the public might prefer court hearings outside the traditional 10-4 Monday-Friday time frame.)
Specific developments can be noted by keeping an eye on Press Releases from the Ministry of Justice. A recent example is the announcement of the opening of the first two Courts and Tribunals Service Centres in Birmingham and Stoke on Trent
See https://www.gov.uk/government/news/first-courts-tribunals-service-centres-launched
A more rolling source of news can be found in the extremely interesting blog relating to the transformation programme – now called Transformation: Courts and Tribunals 2022. This provides news about the new services that are being developed for modernising the courts and tribunals system, both giving accounts of what is currently on going and also what is planned.
The link to the blog is at https://insidehmcts.blog.gov.uk/category/transformation-courts-and-tribunals-2022/
It is possible to sign up to an email notification service so that you are told when a new blog entry is published.
Employment Tribunals fees: payback scheme
In R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51 (noted in this blog on 1 October 2017) the Supreme Court held that the fees being charged for taking cases to Employment Tribunals were so high that they were effectively barring access to justice. In consequence the Court ruled that the fee scheme was unlawful. The Government has now announced arrangements for the refunding of those fees. Stage 1 of the refund scheme became operative on 20 October 2017.
It is clear that the Government plan to introduce a revised scheme which they hope will meet the Supreme Court’s objections.
For the announcement see https://www.gov.uk/government/news/opening-stage-of-employment-tribunal-fee-refund-scheme-launched
Employment Tribunal fees: back to the drawing board
(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.getting a better balance between what the taxpayer funds and what the litigant funds.
An official review of the impact of the fee changes, published in January 2017 concluded that, broadly, these objectives had been achieved. (See this blog, February 2017)
The Supreme Court has, however, come to a quite different conclusion. In R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51, the Court concluded unanimously that the Fees Order was ultra vires (that is to say that the Lord Chancellor did not have the power to make the order) and so quashed it.
There are at least three reasons why the judgements in this case are particularly interesting.
First, in most cases where the validity of a Statutory Instrument is challenged in the courts, the argument turns on fairly precise questions of statutory interpretation – were the rule-making powers in an Act of Parliament sufficient to give the relevant Minister the power to make the order being challenged?
In this case a much broader, constitutional approach was adopted. The essence of the argument was that the impact of the Order was so dramatic (the numbers of cases coming to both the ET and the EAT had fallen dramatically since the introduction of the fees) that they had the effect of denying potential claimants access to justice.Lord Reed, in the principal judgement, refers back to a number of historic legal texts, including Magna Carta, to conclude that it is a constitutional principle recognised in common law, that people should have access to justice.
Second, the judgement relies heavily on a number of empirical studies to show that the effect of impact of the fees rules was quite disproportionate. Using hypothetical examples, the Justices conclude that ordinary people on average earnings would have to forgo weeks if not months of expenditure on anything other than the most basic necessities to save the money needed to pay the relevant fees. The Court decided that the fees thus imposed a quite disproportionate burden on those who might have an arguable case to take to the ET or EAT. Certainly the cosy conclusions of the impact review, mentioned at the start of this note, were totally rejected by the Supreme Court
Finally, Lord Reed makes a number of interesting and important observations about the rule of law and the functions of courts and tribunals in supporting the rule of law. (See in particular paras 66-85 of the judgement). Here I set out brief extracts from the judgement:
The importance of the rule of law is not always understood. Indications of a lackof understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services tothe “users” who appear before them, and that the provision of those services is ofvalue only to the users themselves and to those who are remunerated for theirparticipation in the proceedings. [There is an] assumption that the consumption of ET and EAT services without full cost recovery results in a loss to society, since “ET and EAT use does not lead to gains to society that exceed the sum of the gains toconsumers and producers of these services”.
[However] …the idea that bringing a claim before a court or a tribunal is a purely private activity, and the related idea that such claims provide no broader social benefit, are demonstrably untenable….
Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.
Every day in the courts and tribunals of this country, the names of people who brought cases in the past live on as shorthand for the legal rules and principles which their cases established. Their cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless. The written case lodged on behalf of the Lord Chancellor in this appeal itself cites over 60 cases, each of which bears the name of the individual involved, and each of which is relied on as establishing a legal proposition. The Lord Chancellor’s own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people….
But the value to society of the right of access to the courts is not confined to cases in which the courts decide questions of general importance. People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations….
When Parliament passes laws creating employment rights, for example, it does so not merely in order to confer benefits on individual employees, but because it has decided that it is in the public interest that those rights should be given effect. It does not envisage that every case of a breach of those rights will result in a claim before an ET. But the possibility of claims being brought by employees whose rights are infringed must exist, if employment relationships are to be based on respect for those rights. Equally, although it is often desirable that claims arising out of allegedbreaches of employment rights should be resolved by negotiation or mediation,those procedures can only work fairly and properly if they are backed up by theknowledge on both sides that a fair and just system of adjudication will be availableif they fail. Otherwise, the party in the stronger bargaining position will always prevail….
Queen’s Speech 2017 and the Parliamentary session: 2017-2019
The draft legislation relating to the exit of the UK from the European Union is going to be extremely complicated – both in terms of the technical content of the proposed measures, and in terms of the political controversies that the legislation will attract, arising from the fact that Mrs May is leading a minority Government in the House of Commons and that there is a great deal of opposition to Brexit in the House of Lords.
The Government has therefore decided that, exceptionally, the current Parliament should last for two years rather than more normal one. Thus the next Queens Speech, following that delivered in June 2017, will not be made until May 2019.
In addition to the raft of measures required to deal with different aspect of Brexit, the 2017 speech contained annoucements about two measures that will have specific impact on the English legal system.
- “Legislation will be introduced to modernise the courts system and to help reduce motor insurance premiums.” This will not actually be wholly new. The measures relating to court reform and insurance premiums were originally contained in the Prisons and Courts Bill 2017, which fell when the 2017 General Election was called. The revised version of the new Bill has not yet been published but may be anticipated in Autumn 2017.
- “To support victims, my government will take forward measures to introduce an independent public advocate, who will act for bereaved families after a public disaster and support them at public inquests.” This is a reform that has long been called for. The details of this measure are not yet available.The Queen’s speech may be read at https://www.gov.uk/government/speeches/queens-speech-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
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.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 