Archive for the ‘chapter 6’ Category
What is a court? Proposals for a modern approach to the courts and tribunals estate.
The programme for restructuring how all the buildings currently used by courts and tribunals – to ensure better and more effective usage – is gathering pace. A significant contribution to how detailed policy may develop was made this month by the legal think-tank, JUSTICE. A recent working party report (in which I participated) recommends:
- The reconception of court and tribunal rooms as ‘justice spaces’. This new model is defined by its inherent flexibility and rejection of the over-standardisation prevalent in existing courts and tribunals. Justice spaces are designed to adapt to the particular dispute resolution process taking place within them, and the needs of users, rather than the other way around.
- A flexible and responsive court and tribunal estate, made up of a number of dynamic parts. The Working Party suggests a portfolio of Flagship Justice Centres; Local Justice Centres; ‘Pop-up courts’; remote access justice facilities; and digital justice spaces.
The Working Party emphasises the importance of technology, and its potential to meet user needs and maximise access to justice. All of the Working Party’s proposals are anchored in a commitment to a core set of principled considerations to ensure fairness of process and access to justice. Finally, the report makes practical recommendations aimed at ensuring the effective implementation of the HMCTS Reform Programme.
The full report (and accompanying Press Release) can be accessed at http://justice.org.uk/what-is-a-court/
Proposed new fees for immigration and asylum cases
On 21 April 2016, the Government published a consultation paper proposing new fees for proceedings in the First-tier Tribunal (Immigration and Asylum Chamber) and Upper Tribunal (Immigration and Asylum Chamber). Following on huge rises in court fees for civil and family disputes, as well as huge increases in the fees charged in employment cases, the spotlight now falls on immigration and asylum cases.
At the heart of the government’s case for new charges is the statement:
The courts and tribunals service cost £1.8 billion in 2014-15, but only £700 million was received in income. This leaves a net cost to the taxpayer of around £1.1bn in 1 year alone.
This begs an important question: is it good policy for the justice system that its costs are met only by those who use the system, as opposed to being a collective responsibility which society as a whole should shoulder?
Whatever your answer to this question, you may be surprised at the level of fees which are now being proposed by the Government.
As the Minister stated when launching the Consultation:
We have previously consulted on plans to raise fees for proceedings in the First-tier Tribunal (Immigration and Asylum Chamber) in order to recover around 25% of the £84 million annual costs of that Chamber. Having re-assessed MOJ’s financial position following the Spending Review, we need to go much further.
The new consultation proposes increasing fees in those immigration and asylum proceedings where a fee is payable so that the fee meets the costs of those proceedings in full. (Emphasis added.)
The consequence of this policy is that it is proposed:
- To increase fees in the First-tier Tribunal from £80 to £490 for an application for a decision on the papers;
- To increase fees in the First-tier Tribunal from £140 to £800 for an application for an oral hearing.
- To introduce a new fee of £455 for an application to the First-tier Tribunal for permission to appeal to the Upper Tribunal.
The Government argues that the same principles should apply to appeals to the Upper Tribunal (Immigration and Asylum Chamber) so the consultation also seeks views on introducing fees, set at full cost recovery levels, for these proceedings.
The consultation proposes:
- a fee of £350 for an application to the Upper Tribunal for permission to appeal, where permission has been refused by the First-tier Tribunal;
- a fee of £510 for an appeal hearing where permission is granted.
The Government concedes that some applicants will face difficulties in paying these fees, so to make sure that the burden of funding the system is shared as fairly as possible it will continue to exempt from fees those in particularly vulnerable positions. This includes those who qualify for legal aid or asylum support; those who are appealing against a decision to deprive them of their citizenship; and those children bringing appeals to the tribunal who are being supported by a local authority. The Government will also extend our exemptions to protect children being housed by the local authority and the parents of children receiving local authority support. In addition, it is consulting on further extensions to the exemptions scheme in this consultation to make sure the most vulnerable are protected.
The Government claims that these proposals will raise around an additional £37 million a year.
There are at least two fundamental questions that these proposals raise.
First, as mentioned above, is the policy of full cost recovery the right one, particularly where it is decisions of the state that are being challenged. The now defunct Administrative Justice and Tribunals Council sought to establish some principles in relation the question of who should bear these cost – which included the principle that, at least to a degree the Government department that made a decision which was overturned should pay part of the cost of the appeal.
Second, the whole of the Consultation Paper is based on assumption that the introduction of these fees will have no significant impact on the numbers of cases going through the tribunal system. If, however, the impact is similar to what has happened in employment cases, there will be a significant fall in appeal numbers, which no doubt the Government would like to see but which will prevent the Ministry of Justice achieving is financial targets.
Details of the government’s proposals are set out in the consultation can be found at https://consult.justice.gov.uk/digital-communications/first-tier-tribunal-and-upper-tribunal-fees.
The consultation runs until 3 June 2016.
Decision making and mandatory reconsideration: response to SSAC consultation
The Social Security Advisory Committee (SSAC) is currently seeking evidence on decision making and mandatory reconsideration before appeals of decisions by the Department for Work and Pensions (DWP) and HM Revenue and Customs (HMRC). The consultation is available here. The deadline for responses is 15 March 2016. Here, two members of UKAJI’s team identify key principles to guide internal review policy and suggest what research is needed into this important area of administrative decision making.
by Professor Tom Mullen and Professor Robert Thomas
We are both law professors with an interest in administrative justice. We respond on behalf of the United Kingdom Administrative Justice Institute (UKAJI). UKAJI is a network of people working with empirical research about administrative justice. This includes researchers from several different academic disciplines (including experienced academics running large projects, early career researchers and PhD candidates) and users of research (who include officials, practitioners, judges, ombudsmen…
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Court closures: the details
In July 2015, the Government launched a consultation on closing under used courts. 91 possible buildings were earmarked for possible closure. (See this blog 26 July 2015)
We know that reduction of the court estate is a key component needed to fund the investment needed to modernise the court estate. (See this blog 3o Nov 2015).
The Government has now announced the buildings that are to be closed – together with an indicative timetable showing that the closure programme will run over 2 years.
In the end only 64 of the sites originally identified will close as proposed. A further 22 closures will take place, but modified from the original proposals. 5 escape the axe altogether.
The details can be found at https://www.gov.uk/government/consultations/proposal-on-the-provision-of-court-and-tribunal-estate-in-england-and-wales
Public expenditure review: impact on the Justice system (2): the future of personal injuries litigation
A totally unexpected announcement in the 2015 Autumn Statement relates to how personal injuries cases are to be dealt with in future. The statement says (at p 125):
3.103 Motor insurance – The government will bring forward measures to reduce the excessive costs arising from unnecessary whiplash claims, and expects average savings of £40 to £50 per motor insurance policy to be passed onto customers, including by:
••removing the right to general damages for minor soft tissue injuries (Claimants will still be entitled to claim for ‘special damages’, including treatment for any injury if required and any loss of earnings);
••removing legal costs by transferring personal injury claims of up to £5,000 to the small claims court.
This announcement has caused consternation amongst PI claimant lawyers since, by moving many more cases into the small claims track, they will not be able to claim their costs from the insurers when they win. This will result in many claimant lawyers giving up this type of work.
Two consequences seem likely to follow:
First, insurers will be able to put more pressure on claimants to settle on terms dictated by the insurers.
Second, claims management companies may well try to find ways to move in to this work.
Despite the fact that many claimants may end up with a lower level of damages than they might have done had they been represented by a lawyer, many will think that the estimated reduction in insurance premia is a price worth paying to ensure that the costs of small claims are more proportionate than they currently are.
There might, however, be another way of looking at the issue.
In Ireland, the Injuries Board – established by Act of Parliament in 2003 – can deal with all personal injury claims on line. The injured party submits details of the accident and the injury; the insurer makes an offer; and this is assessed by an independent assessor with practical experience of PI and familiar with current trends on the awards of damages by the courts.
There is no compulsion to use the system, but it is free to claimants who win their case, and the services costs much less for the insurers (though still makes an annual surplus).
An analogous scheme already operates in the UK for dealing with tenancy deposit disputes.
The full statement is downloadable at https://www.gov.uk/government/publications/spending-review-and-autumn-statement-2015-documents.
For the Irish Injuries Board, go to http://www.injuriesboard.ie/eng/
Public spending review: impact on the Justice system (1): Court closures and investment in IT
The long awaited announcement that there would be significant investment in prisons and also in the IT infrastructure for the Courts and Tribunals service, paid for by selling existing old prisons and little used court buildings, was made by the Chancellor of the Excehquer in the Autumn Statement and Spending Review, announced on 25 November 2015.
More specifically, the Ministry of Justice website notes:
On prisons
£1.3 billion will be invested to reform and modernise the prison estate to make it even more efficient, safer and focused on supporting prisoner rehabilitation. The government will build 9 new, modern prisons – 5 of which will open this Parliament – with better education facilities and other rehabilitative services, while selling ageing, inefficient prisons on prime real estate to free up land for new homes.
By investing in the prison estate, the government will reduce running costs in prisons by £80 million a year when the reforms are complete. New investment will also fund video conference centres, allowing up to 90,000 cases to be heard from prison instead of court, and will deliver more safety improvements in prisons, including body scanners and mobile phone blocking technology.
The Government states its hope that these reforms will reduce reoffending through more effective rehabilitation, and will reduce the cost of transporting prisoners between courts and prisons, stamp out the organisation of crime from within prisons, and stem the availability of drugs and other illicit substances.
The Government also states that these developments will build on the probation reforms undertaken in the last Parliament, which will reduce the costs of the system and reinvest them into extending probation support to 45,000 short-sentence offenders for the first time, to tackle reoffending.
On courts and tribunals
Over £700 million will be invested to fully digitise the courts and create a more modern estate. This will generate savings to the taxpayer of approximately £200 million a year from 2019-20. The government will also look at changes to court fees as it continues to put the courts on a more sustainable financial footing.
The text of the statement and other documents may be accessed at https://www.gov.uk/government/topical-events/autumn-statement-and-spending-review-2015
The impact on the Ministry of Justice is at https://www.gov.uk/government/news/ministry-of-justices-settlement-at-the-spending-review-2015
Busting the myths of judicial review: new empirical evidence on outcomes and value for money
This post summarises the findings of a study into the effects of judicial review (JR) in England and Wales which was funded by the Nuffield Foundation and undertaken by the Public Law Project and the University of Essex, with Maurice Sunkin as the Principal Investigator.
By Varda Bondy, Lucinda Platt and Maurice Sunkin
Overview
The Value and Effects of Judicial Review: The Nature of Claims, their Outcomes and Consequences concerns the use and effects of judicial review (JR) in England and Wales, primarily from a claimant perspective. Judicial review provides a route for obtaining legal redress against public bodies, including in human rights cases, when no other suitable remedy is available. It also provides a means by which public bodies may be held accountable for the legality of their actions. In these ways JR gives practical effect to the rule of law.
The research:
- builds on previous work to throw…
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Senior President of Tribunals
Sir Ernest Ryder has replaced Sir Jeremy Sullivan as Senior President of Tribunals. He took up the role in September 2015.
More information about Sir Ernest is at https://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/biographies/senior-president-tribunals-biography/
Housing disputes – court or tribunal? Civil Justice council review
The Civil Justice Council has asked Judge Siobhan McGrath to take another look at the best ways for resolving housing disputes. This will follow up work done some years ago by the Law Commission. The Commission argued that a wider range of issues could go to what was then known as the Residential Tenancies Property Tribunal.
Since then there have been at least two relevant and significant developments. First, disputes relating to disputed tenancy deposits are mostly determined by alternative dispute resolution procedures created by the introduction of Tenancy deposit Protection.
Secondly, in Scotland there are proposals for establishing a specialist housing tribunal. (There is also a specialist Residential Tenancy Board in Ireland).
The outcome of the review is expected early in 2016.
For further information go to https://www.judiciary.gov.uk/related-offices-and-bodies/advisory-bodies/cjc/working-parties/working-group-on-property-disputes/
Reviewing the structure of the civil justice system
An essential part of the HMCTS reform programme involves deciding how best to deliver civil justice in England and Wales in a modern age of information technology.
The Lord Chief Justice and the Master of the Rolls, as Head of Civil Justice, have recently asked Lord Justice Briggs to carry out an urgent review of the structure of the courts which deliver civil justice. His work is designed to ensure that the structure of the court system aligns with the reform programme and in addition to look at the overall structure of civil justice. He has also been asked to look at the relationship of those courts with the Family Court and with tribunals.
This aim is to assist HMCTS by ensuring that the reform programme comes up with a service which makes best use of the large capital investment proposed and provides a modern, efficient and accessible civil dispute resolution service for all.
An interim report is scheduled for December 2015.
The announcement is at https://www.judiciary.gov.uk/announcements/message-from-the-lord-chief-justice-and-the-master-of-the-rolls-civil-courts-structure-review/
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 