Shaping the Future of Administrative Justice

Welcome to the third edition of Adjust, the Council on Tribunals' quarterly electronic newsletter.

We have had a busy three months since our last edition in April. As some of you may know we have issued a consultation paper on the use and value of Oral Hearings. In conjunction with this we organised a seminar on Oral Hearings, which provided a lively and engaging forum for debate.

In June we hosted a conference on 'Advancing Administrative Justice in Wales', our first ever event in Wales. Opened by Assembly First Minister Rhodri Morgan, the conference was a very worthwhile opportunity to discuss issues of common interest, and identify future priorities to advance the administrative justice sector in Wales.

We also enjoyed a very successful Users Support Workshop in Manchester, and we look forward to our next Users Workshop in Bristol in October. I hope you enjoy reading more about these events, and other news from the administrative justice world, in this edition.

Lord Newton of Braintree, Chairman
 

Council News

The Use and Value of Oral Hearings: Consultation

The DCA White Paper Transforming Public Services: Complaints, Redress and Tribunals encouraged the adoption of proportionate dispute resolution and emphasised the need to reduce reliance on formal oral hearings.

The Council on Tribunals has issued a consultation paper to canvass views on the use and value of all forms of oral exchange within the administrative justice system, and those with an interest in this area are encouraged to respond. Responses are due before 2 September 2005.

• view the consultation paper
• email simon.catherall @ cot.gsi.gov.uk to request a copy

The Council hosted a seminar in June, inviting senior representatives from the administrative justice world to consider issues arising from the consultation paper.

• view the full report from the seminar (pdf, 67KB)

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Advancing Administrative Justice in Wales

The Council hosted its first ever conference in Wales in June 2005. The Welsh administrative justice sector was represented by over seventy delegates.

• view the conference report

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Scottish Committee Conference

Over 60 delegates from a wide range of tribunals, local authorities and users organisations attended the Scottish Committee's third conference in Edinburgh on 5 May 2005.

Professor Hazel Genn of University College London set the scene on the user's perspective by describing what appellants expect at a hearing and how tribunals need to react to those expectations.

Delegates could choose to attend three of five workshops on offer. These were: Susan Howdle, Council member, on Procedural Rules; Joan Aitken, Traffic Commissioner, on pre-hearing contact; Steve Mannion, Council member, on the physical environment; Derek O'Carroll, Advocate, on how to deal with appellants and witnesses; and Jane Irvine, from the Rent Assessment Panel, on continuous improvement.

The post-conference evaluation showed that the majority of delegates found the day useful and thought-provoking. For more information contact Marjorie Macrae on 0131 220 1236 or email marjorie.macrae @ cot.gsi.gov.uk

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Tribunal Premises in Scotland: Special Report

The Scottish Committee of the Council on Tribunals has produced a Special Report on tribunal premises in Scotland.

During the period November 2002 to December 2004 covered by this report, the Committee attended seventy-three tribunal hearings throughout Scotland.

• view the Special Report
• view the Council's Framework of Standards

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Users Support Workshop 16 May 2005

In May the Council hosted the latest in its series of Tribunal Users Support Workshops in Manchester. The event was attended by representatives from local and national groups that support users of tribunals.

The workshop explored how support to tribunal users could be improved, and how employing proportionate dispute resolution techniques might avoid the need for many appeals to go to a hearing.

Speakers included Ian Moss, Head of Employment Rights within the Citizens Advice Specialist Support Unit in Wolverhampton.

Adjust asked workshop attendee Bernie Vose, Co-ordinator of the Miles Platting Advice Centre* in Manchester, for her reaction.

Bernie found the Council's workshop useful and was pleased that the Council 'came out of London'. She would welcome the opportunity for more feedback from tribunal representatives to be obtained so that the Council and policy makers could become aware of the problems they face in assisting clients going to tribunals. She feels it is important the Council is made aware of the inconsistencies that occur in tribunal hearings, so that standards can be improved.

Bernie looks forward to the reforms suggested by the Transforming Public Services: Complaints, Redress and Tribunals White Paper, but thinks that it will be a case of 'wait and see'.

The Council is hosting another Users Workshop on 6 October 2005 at the Bristol Thistle Hotel. The workshop is open to any representatives in the region, or from Wales, and is free of charge. Please contact Diana Worman either by phone (020 7855 5208) or by emailing diana.worman @ cot.gsi.gov.uk to register your interest.

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Mental Health – Bournewood Consultation

The Department of Health recently consulted on the approach to be taken in response to the judgment of the European Court of Human Rights in the 'Bournewood' case.

The judgment concerned a patient who lacked capacity to consent to treatment in hospital, but who, because he did not object to being admitted for treatment, was admitted informally, i.e. not under the compulsory powers in the Mental Health Act 1983, and therefore did not have a right of appeal to a Mental Health Review Tribunal.

The Council's primary interest derives from its statutory oversight of the Mental Health Review Tribunal (MHRT) (and future oversight of the prospective new Mental Health and Mental Health Appeal Tribunals). Our response therefore focused primarily on the possible impact on the MHRT, the proposals for review of detention and the scope for alleviating pressure on the courts or tribunals.

• read more

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Meeting with Professor Spiller of the New Zealand Disputes Tribunal

In June the Council's Dispute Resolution Committee met Professor Peter Spiller, who has recently been appointed Principal Disputes Referee of the Disputes Tribunal in New Zealand. Professor Spiller is the author of various legal articles and books and was in the UK visiting Cambridge as a Fellow of Wolfson College. The meeting was a very useful opportunity to discuss dispute resolution processes across two different jurisdictions.

• NZ Disputes Tribunal

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Other News

Judicial Studies Board News

The JSB held a workshop in June on proposals for a scheme to evaluate judicial training provision, appraisal and mentoring arrangements in Tribunals, the outcome of which will be reflected in the final evaluation scheme. Another current consultation is the development of a common induction syllabus for newly appointed tribunal members.

Judge Victor Hall hosted a half-day forum in June to help guide JSB thinking on mediation in respect of both civil and administrative justice proceedings.

The Autumn 2005 issue of the JSB's Tribunals journal will include guidance on fact-finding, a discussion of the proposed reforms to the tax tribunals, and an update on the new Tribunals Service. Enquiries about the journal should be sent to publications @ jsb.gsi.gov.uk.

Finally, the JSB is pleased to announce the appointment of Judge Eleri Rees as the Course Director for Welsh Language training.

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Increasing the Diversity of the Judiciary

On 13 July 2005 the Constitutional Affairs Secretary and Lord Chancellor, Lord Falconer, announced a number of steps to increase the diversity of the judiciary in England and Wales. New legislation will allow a wider group of legal practitioners to apply for judicial office, and reduce the legal years' experience required before applying. Solicitors and barristers who are magistrates will also be allowed to use their experience on the bench to apply for judicial office, including tribunal and specialist tribunal posts.

• written ministerial statement

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Tribunals and Diversity Research

The Council looks forward to the publication later this year of the Tribunals and Diversity research project headed by Professor Hazel Genn

• read more

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The Queen's Speech

The Queen's Speech on 17 May 2005 set out the Government's policies and proposed legislative programme for the new parliamentary session. The following matters were of particular interest to the Council.

The Charities Bill and the Consumer Credit Bill, which fell before the dissolution, have been re-introduced. They each provide for new appellate tribunals under the Council's supervision.

The Commons Bill replaces the registration system under the Commons Registration Act 1965 with a new system. One effect of this is that the Commons Commissioners, presently under the Council's supervision, will be abolished.

The Finance Bill 2005 abolishes the statutory adjudicator for National Savings and Investments, also presently under the Council's supervision. Disputes will now go to the Financial Ombudsman Service.

The Immigration, Asylum and Nationality Bill provides for further restriction to rights of appeal in immigration and asylum cases, and makes certain changes in connection with legal aid, advice and assistance.

The Government has recently published its official response to the report of the Joint Committee on the draft Mental Health Bill 2004. Plans to introduce the Mental Health Bill in the current parliamentary session were announced in the Queen's Speech.

• Joint Committee report
• Response to Joint Committee report

The Equality Bill was re-introduced in the House of Lords on 18 May. The Bill intends to establish the Commission for Equality and Human Rights.

• The Equality Bill

There was no direct mention of the Courts and Tribunals Bill, which is expected to establish an administrative justice council and provide for a unified tribunals system.

• The Queen's speech in full

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Comment

So what do we mean by Administrative Justice?

We are looking forward to the wider role envisaged for us by the White Paper* as we move toward a wider administrative justice remit, alongside our current role overseeing the work of tribunals. But what is administrative justice? The question is more easily posed than answered. You could say, "I can't define it but I'll know it when I see it" but that doesn't seem very satisfactory. You could try to define it by what it is not but that does not establish any basis for deciding what common features there might be. One thing does seem clear – it is not only about fair and impartial tribunals and good tribunal practice, vital though they are. Otherwise why talk about a "landscape" of administrative justice in the White Paper? Nor arguably is it the same as administrative law, although there will be many issues in common.

As far as I can determine, no one has yet been able to provide a comprehensive definition consistent with the aspirations in the White Paper and which commands universal acceptance. Perhaps that is a good thing. Certainly, the Council on Tribunals is not bold enough to attempt a definition today. We are only at the beginning of this journey and we need to seek the views of many interested individuals and organisations before making too many assumptions. But as a starting point, it seems to us that a comprehensive approach to administrative justice will have its roots in good decision making by organisations and individuals who have the power to affect people's lives. It is also likely to encompass everything which may happen subsequently, when such decisions come to be tested.

It surely means that we must continue to put the citizen at the heart of all our deliberations. We have already travelled far beyond the Franks Report in 1957 with its emphasis of curbing overweaning power. We had citizens then but we have citizens and customers now and our ideas about access, transparency, the right to ask questions and challenge have moved on apace. So also has our sense of the importance of understanding and responding to the needs of users whose only experience of conflict with government may be when they appear at a tribunal and whose expectations have grown with the passage of time.

One way of addressing a definition would be to try to identify which individuals, organisations and interest groups might come under an administrative justice spotlight or have a part to play in the resolution of disputes. The first focus in the White Paper is on government departments and soon after, local government but the tribunal world already encompasses disputes between employers and employees, landlords and tenants, schools and parents, competition issues in the private sector and many more. Such an approach could encompass all agencies engaged in dispute resolution, including the agencies which represent individuals before tribunals, but would it provide a comprehensive map of the territory?

Perhaps an answer lies in looking at the forms of redress open to individuals and organisations en route to a tribunal hearing. That would bring into the frame things like the quality of original decision making in organisations, reconsideration of decisions by them, complaints procedures, ombudsmen and other kinds of proportionate dispute resolution like mediation, right through to the use of inquiries and even judicial review. Such an approach might also include how to ensure that lessons learned along the way are transmitted back to those who take the decisions in the first place.

A third way of approaching the subject might be to look at areas where good practice might be defined or codes of conduct agreed – a tradition with which the Council on Tribunals is already very familiar and which many agencies such as ombudsmen and the Judicial Studies Board produce naturally as a by product of their primary roles. Such an approach on its own might, however, result in agencies not currently envisaged as falling within the administrative justice remit having a spotlight turned on them. Having said that, good practice in comparable circumstances ought arguably to be shared in any sector where it can be useful.

All these approaches seem to describe the landscape rather than define it. They raise crucial questions about how individuals at the receiving end of decisions by others are guided toward the fairest, quickest, least expensive and least stressful ways of getting an answer in the spirit of the "proportionate" approach championed by the White Paper.

We could of course simply identify and examine individual issues which seem to us to be important and worthy of attention, as we continue to develop our own sense of what administrative justice should include. One such topic, which we have already begun to consider, is the value of oral hearings on which we have recently produced a consultation paper.

What we would welcome most of all however would be to hear your views, both generally and in relation to the topics we should be examining on our path toward becoming an administrative justice council. Please email us at enquiries @ cot.gsi.gov.uk with your thoughts.

Bernard Quoroll, Council member

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Users focus

Satisfaction with the Appeals Service – MORI Social Research Institute

Between August and September 2004 the Appeals Service commissioned the MORI Social Research Institute to undertake research to determine customer priorities, measure customer satisfaction and develop a Customer Satisfaction Index. The research also aimed to measure gaps in service provision, relating to the length of the appeals process and the amount of information appellants receive. The Appeals Service intends to repeat the survey annually in order to monitor its performance over time and prioritise the areas for improvement.

MORI carried out their research in three stages - through focus groups with appellants, interviews with representatives and panel members, and telephone surveys of appellants.

Tribunal Panel Members and Representatives reported high levels of satisfaction with the administrative service they receive from the Appeals Service, but raised concerns that appeals take too long to resolve and that appellants are poorly informed during the appeals process.

The research found that more appellants are satisfied with the service than are dissatisfied (3 in 5 are satisfied). The four strongest drivers of satisfaction are having enough information, a short appeals process, competent staff and a flexible service. The research recommended that these four drivers should lie at the centre of the Appeals Service's efforts to improve its service to appellants.

MORI reported that the Appeals Service has already initiated improvements in these areas, including a reduction in the overall length of appeal waiting times in the past two years, and is set to achieve 2005 waiting time targets. Additionally, the Appeals Service is has developed the information it provides to appellants and is planning to improve the content and accessibility of its publications. A new step-by-step guide on how to appeal has been developed together with a guide to customer services standards and what to do if things go wrong.

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Profile - Ros Hepplewhite

Despite admitting to being a Francophile, spending much of her spare time at her house in France with her husband and their three beloved dogs, Ros Hepplewhite is proud of the UK's administrative justice system and optimistic about the future changes that will improve the system further and put users at the heart of the administrative justice process.

• Read the interview

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Spotlight - The Appeals Service

His Honour Judge Michael Harris, President of the Appeals Service, talks to Adjust about the Appeals Service's current and future work, emphasising the need to continue to improve upon the standard of initial decision-making and sharing his thoughts on the move toward a unified tribunals service.

• Read the interview

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