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/
There is a huge volume of law relating to the sentences courts may impose on those found guilt of committing criminal offences.
Indeed, there is so much that judges often take decisions that, in law, they are not allowed to make. To quote from a recent announcement from the Law Commission:
A survey of 400 Court of Appeal cases from 2012 by the sentencing expert Robert Banks found that 262 were appeals against sentences and that of these, 76 included sentences that had been unlawfully passed in the Crown Court. Banks wrote, “[This] figure shows that we can no longer say the sentencing system is working properly. Cases since then have indicated that these figures are not unrepresentative.”
Currently, the law lacks coherence and clarity: it is spread across many statutes, and frequent updates are brought into force at different times by different statutory instruments and with a variety of transitional arrangements. This makes it difficult, if not impossible for practitioners and the courts to understand what the present law of sentencing procedure actually is. This can lead to delays, costly appeals and unlawful sentences.
The Law Commission is currently engaged in a project designed to introduce a single sentencing statute that will act as the first and only port of call for sentencing tribunals.
It will set out the relevant provisions in a clear and logical way, and ensure that all updates to sentencing procedure can be found in a single place. It is not the aim of this project to interfere with mandatory minimum sentences or with sentencing tariffs in general. Those will remain entirely untouched, but the process by which they come to be imposed will be streamlined and much improved.
The latest stage in the process has recently taken place with the publication on 20 May 2016 of a paper setting out proposals for the transition from the current position to a reformed position.
The amount of work still to be undertaken is enormous, and will not be effective for at least two more year – perhaps longer. But this is a project of great importance not just to criminal lawyers, but all those interested in the criminal justice system.
For an outline of the progress on work to date go to http://www.lawcom.gov.uk/project/sentencing-code/
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.
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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Ideas for new ways of funding cases for persons of moderate means have been floating around for a number of years. JUSTICE produced a report on the matter as long ago as 1978. The Bar Council returned to the issue in 2008/9 when a policy group, chaired by Guy Mansfield QC, made proposals for the establishment of such a scheme. And suggestions for the creation of a scheme were made to Lord Justice Jackson’s Review of the Costs of Civil Litigation.
In that report, he did not make a definitive recommendation, but he did propose that the Government should undertake further modelling work to see whether a financially viable scheme could be created.
With recent cuts to the publicly funded legal aid scheme, Lord Justice Jackson has returned to the issue in a speech delivered in February 2016. He notes that such a scheme has successfully operated in Hong Kong for a number of years; and that similar schemes also operate in a number of Australian states.
A CLAF would not offer funding in all cases; it would have to be very selective in the cases it took on. As Lord Justice Jackson noted, it would – in effect – be a not-for-profit third party funding scheme. The idea provokes many questions:
- where would the initial seed corn money come from?
- how would the fund be sustained?
- who would decide which cases to support?
- would the introduction of such a scheme require changes to the normal principle that a loser pays the costs of the winner?
In his lecture, Lord Justice Jackson argues that the time has not come for more detailed work to be done on this issue and argues at the legal profession – the Bar, the Law Society and the Chartered Institute of Legal Executives – should come together an develop proposals.
Whether the legal profession will rise to the Jackson challenge is not at present clear – but it is an issue worth keeping an eye on.
To read the Jackson lecture, visit https://www.judiciary.gov.uk/wp-content/uploads/2016/02/lj-jackson-speech-clf-160202.pdf
Lord Justice Jackson is indefatigable. He has not abandoned the issue of the cost of litigation on which he produced a major report at the end of 2009. Since then the Government has taken steps to implement some of Jackson’s proposals. But in his opinion, these have not yet gone far enough. So he has taken a recent opportunity to argue that now is the time for much greater use of fixed costs in the course of litigation.
He set out his views in a lecture delivered in January 2016. You can read the lecture at https://www.judiciary.gov.uk/wp-content/uploads/2016/01/fixedcostslecture-1.pdf
It is not yet known how far the Government is likely to take his proposals, but with the ferment of reforms currently surrounding the civil justice system (among others) it is reasonable to suppose that at least some further extension of fixed costs will be introduced in the not too distant future.
One of the documents published with papers relating to the March 2016 Budget statement was a report of an independent review of Claims Management Companies (CMCs). Unusually, CMCs are regulated by a dedicated Unit which operates within the Ministry of Justice, rather than by a body more independent of a government department.
The review offers three options for the way forward: 1, creating a wholly now external regulator; 2, leaving things within the Ministry of Justice, while building on the reform programme currently being developed by the Unit; or 3, transferring the function to the Financial Conduct Authority.
The review concluded that the first option would be unlikely to be approved by Government, as it would be too expensive and disruptive. The second option would be the least disruptive to the market; option 3 would permit a new, refreshed approach.
The Government has now announced that it will transfer this function to the FCA – but as this will require legislation to achieve, it is unlikely to take place before 2018.