Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘transformation of the justice system

Reforming Employment Tribunals: process

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There have been two recent consultations which could affect the work of Employment tribunals and the Employment Appeal Tribunal. The first, considered here, is on procedure. The other, on fees, is the subject of a separate note.

As part of its Transforming our Justice System programme, in December 2016 the Government published a short consultation on how reform of employment tribunals might fit into the overall transformation programme. The Consultation Paper noted that because these tribunals were set up under the Employment Tribunals Act 1996, major change could not be achieved without reform of that Act. The Consultation Paper therefore noted that major change was likely to take rather longer to be delivered, given the difficulties of obtaining parliamentary time for an amending Bill.

In the interim, this consultation set out what seems to be a rather minor change, namely that the responsibility for drafting the procedural rules which apply to the work of Employment tribunals should be added into the work already being done by the Tribunals Rules Committee.

This may actually be a rather more controversial proposal than might at first appear, since many judges in both the Employment Tribunal and Employment Appeal Tribunal have long thought that they should be part of the court system, not the tribunal system. They argue that they deal with disputes between parties (which is more what courts do) rather than citizen-state disputes (which is more what tribunals do).

The problem with this argument is that courts do deal with citizen-state disputes as well as tribunals; and other tribunals do deal with party-party disputes.

In my view the essence of tribunals is that they should generally be less formal than courts, and also use specialist expertise where needed. These considerations seem to have tipped the balance in the Government’s thinking. My own view is that the Government’s proposals are sensible.

The consultation closed in mid-January 2017, so no final decision has been taken. It will be seen whether the Government’s initial view prevails.

For the consultation paper, see https://www.gov.uk/government/consultations/reforming-the-employment-tribunal-system

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Written by lwtmp

February 1, 2017 at 11:04 am

Efficiency in the Criminal Justice System: the view of the National Audit Office

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In March 2016, the National Audit Office published a very interesting and pretty hard hitting report on efficiency in the Criminal Justice system – or rather inefficiency. Set against the programme for the Transformation of our Justice System that was announced by the Government in the summer 2016, the contents of the NAO need to be remembered. In essence it argues that the current reform programme will not be adequate to drive out inefficiency, and ensure better value for money.

I set out here an edited version of the Summary Chapter of the report which gives the headline issues that need to be dealt with.

Key findings of the National Audit Office:

1 Performance

  • Delays are getting worse against a backdrop of continuing financial pressure.
  • There have been some improvements in the management of cases since 2010-11. But two-thirds of cases still do not progress as planned, creating unnecessary costs.
  • Trials that collapse or are delayed create costs for all the participants, including the CPS, witnesses and HMCTS. (In 2014-15, the Legal Aid Agency (LAA) funded defence counsel to the tune of £93.3 million for cases that were not heard in court).
  • Delays and collapsed trials also damage the public’s confidence in the system.
    Giving evidence in court as a witness or victim can be a difficult and stressful process. The uncertainty caused by delays and collapsed trials exacerbates this.

2. Addressing the causes of inefficiency

The Ministry and CPS are leading an ambitious reform programme but this will not address all the causes of inefficiency.

  • The court reform programme’s scope is far-reaching. It includes rationalising and modernising the estate to enable more efficient digital working and the roll-out of a single digital case management system accessible by all parties. Better IT infrastructure and a modernised estate would provide the tools for a more efficient, less paper-based system, but are not sufficient to address all the causes of inefficiency in the system.
  • Inefficiencies are created where individuals and organisations do not get things right first time, and problems are compounded because mistakes often occur early in the life of a case and are not corrected.
  • There can be multiple points of failure as cases progress through the system but these are often not identified until it is too late. (A 2015 inspection found that 18.2% of police charging decisions were incorrect. Incorrect charging decisions should be picked up by the CPS before court, but 38.4% of cases were not reviewed before reaching court. The system’s reliance on paper also builds in inefficiency).
  • The system as a whole is inefficient because its individual parts have strong incentives to work in ways that create cost elsewhere.
  • As there is no common view of what success looks like, organisations may not act in the best interests of the whole system. (For example, courts staff seek, under judicial direction, to ensure they are in use as much as possible by scheduling more trials than can be heard so that there are back-ups when one trial cannot proceed. This is both a cause and a result of the inefficiencies in the system, and leads to costs for other parts of the system, for example witnesses who spend a day waiting to give evidence for a trial that is not then heard, and who may then be more likely to disengage from the process).
  • There is significant regional variation in the performance of the system, suggesting that there is scope for efficiency gains. (A victim of crime in North Wales has a 7 in 10 chance that the trial will go ahead at Crown Court on the day it is scheduled, whereas in Greater Manchester the figure is only 2 in 10. The large variation in performance across the country means that victims and witnesses will experience very different levels of service.)
  • If the performance in those Local Criminal Justice Board areas with the highest rate of cracked trials was equivalent to the best-performing quartile, 15% more cases would proceed as planned, saving a minimum of £4 million in CPS costs, as well as those costs incurred by other organisations.
  • There are some mechanisms to identify and share good practice, but awareness and use of these varies. Our case study visits identified a range of innovative approaches that made a positive impact on the system. These included implementing an appointment system for the approval of search warrants, which saved a significant amount of police time, and creating a dedicated videoconferencing court. But there is varied awareness and use of mechanisms to identify and disseminate learning from these initiatives.

3 Conclusion on value for money

  • Reducing inefficiency in the justice system is essential if the increasing demand and reducing funding are not to lead to slower, less accessible justice. Although the bodies involved have improved the management of cases, around two-thirds of criminal trials still do not proceed as planned on the day they are originally scheduled. Delays and aborted hearings create extra work, waste scarce resources and undermine confidence in the system.
  • Notwithstanding the challenges of improving the efficiency of a system designed to maintain independence of the constituent parts, there are many areas where improvements must be made. Large parts of the system are paper-based and parties are not always doing what they are supposed to do in a timely manner.
  • The system is not currently delivering value for money.
  • The ambitious reforms led by the Ministry, HMCTS, CPS and judiciary are designed to tackle many of these issues by reducing reliance on paper records and enabling more flexible digital working. They have the potential to improve value for money but will not address all of the causes of inefficiency.
  • More also needs to be done to explore and address the wide regional variations in performance, and to create incentives that encourage all parties to operate in the best interests of the system as a whole.

Recommendations

a The Criminal Justice Board should agree what ‘good’ looks like for the system as a whole, and the levels of performance that each part of the system can commit to deliver to achieve this. It should report publicly on whether these levels of performance are being met. While it is important that the different parts of the system are not able to unduly influence individual cases, this cannot preclude agreement over the level of service that each element of the system should provide. Whenever possible, these measures should focus on quality and align with the system’s overarching aims.
b The Criminal Justice Board should regularly review performance at a level sufficient to identify good practice. Unlike many other areas of government, there is granular performance data available for many aspects of the system. Identifying and exploring regional variations in performance will highlight innovative practice, as well as giving organisations across the system incentives to improve.
c The Criminal Justice Board should establish mechanisms to increase transparency and encourage feedback through the system. This is particularly important where one element of the system has a direct but discretionary impact on another. (For example, when magistrates’ courts refer ‘either way’ cases to Crown Court they should be able to find out how many of these cases were ultimately sentenced within magistrates’ court powers. This would allow them to judge whether they are sending the right cases.)

Note. The Criminal Justice Board, is a cross-governmental group chaired by the Justice Secretary. It includes ministers and officials from the Ministry of Justice (the Ministry), its executive agency HM Courts & Tribunals Service (HMCTS), the Home Office, the Attorney General’s Office and the Crown Prosecution Service (CPS). It also includes representatives of police forces, police and crime commissioners and senior members of the judiciary.

Source: https://www.nao.org.uk/wp-content/uploads/2016/03/Efficiency-in-the-criminal-justice-system.pdf