Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘administrative justice

Keeping the administrative justice system under review

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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

 

 

 

 

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Written by lwtmp

July 10, 2017 at 11:19 am

Fees in immigration and asylum appeals

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In September 2016 I noted there the decision of the Government to introduce massive increases in the fees charged for bringing appeals to the First Tier Immigration and Asylum Chamber. They were introduced in October 2016.

On 26 November 2016, in a remarkable change of heart, the Government announced that the October increases would be scrapped and that the fee levels would revert to those in place before their introduction.

It should not be thought that the issue has entirely gone away. The Minister’s statement repeats the point that, in the Government’s view, the cost of providing court and tribunal should be broadly neutral, and that those who use them should pay more. Officials will therefore be working on new proposals, which will be set out in due course.

I think that two key questions remain unanswered:

1 Is the idea of making courts and tribunals self-financing the best basis for providing this service, particularly where what is being appealed against are decisions taken by civil servants working within the government? Is there not a public interest element – which should be funded in other ways, not by the individual – in ensuring that decisions taken by officials are right?

2 If fees are set at such a level that cases are simply not brought to the tribunal, does this not make the whole exercise self-defeating, in that no money comes into the system? In addition, if the flow of cases dries up, it is hard to argue that the impact of the fees has not interfered with access to justice.

I do hope that the nest consultation paper deals in a rather more nuanced way with these issues of principle, rather than just focusing on the narrow question of cash.

For the Minister’s statement, go to https://www.gov.uk/government/speeches/courts-and-tribunals-update

Written by lwtmp

November 26, 2016 at 10:31 am

Third Party Interventions

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In a number of key cases taken to the Supreme Court and th Court of Appeal, the legal arguments presented to the courts have been supplemented by ‘Third Party interventions’ in which submissions are made by organisations who are not directly involved in the specific case, but who have considerable expertise in the area of law the subject of analysis in the courts.

One of the consequences of the reforms to the procedures for judicial review, introduced in 2015, was that the rules on the costs implications for making such interventions were changed – with a view to trying to reduce their number.

During Parliamentary debate, it was acknowledged that there would be cases where the courts really would be assisted by additional expert submissions. In such cases, it was argued that the bodies making those submissions should not be penalised in costs.

The human rights group, JUSTICE, who have successfully intervened in many key human rights cases have just published a guide to the new law To assist the Court: Third Party Interventions in the Public Interest. This sets out the steps that need to be taken to ensure that costs penalties will not be imposed.

The guide is available for download, free, from:http://justice.org.uk/our-work/third-party-interventions/

Written by lwtmp

June 24, 2016 at 2:46 pm

Proposed new fees for immigration and asylum cases

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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:

  1. To increase fees in the First-tier Tribunal from £80 to £490 for an application for a decision on the papers;
  2. To increase fees in the First-tier Tribunal from £140 to £800 for an application for an oral hearing.
  3. 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:

  1. 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;
  2. 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.

Written by lwtmp

May 16, 2016 at 12:23 pm

Decision making and mandatory reconsideration: response to SSAC consultation

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UKAJI

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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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Written by lwtmp

April 25, 2016 at 10:05 am

Busting the myths of judicial review: new empirical evidence on outcomes and value for money

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UKAJI

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.
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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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Written by lwtmp

October 26, 2015 at 10:15 am

Senior President of Tribunals

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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/

Written by lwtmp

October 24, 2015 at 10:22 am