Putting the citizen at the heart of the tribunal service

This is a revised text of a presentation by Martin Partington to the AGM of Law Centre (NI), held in Belfast on 7 December 2007. Martin Partington was an expert member of the Leggatt review team; until recently he was a part-time research adviser to Sir Robert Carnwath, now Senior President of the new Tribunals Service. He writes here in a personal capacity.

Introduction

The last time I wrote for this journal, I discussed the then recently published Leggatt Review of Tribunals and some of its possible implications.{footnote}Modernising Tribunals: the Leggatt Review (2001) Frontline 43, pages 14-15.{/footnote} But there was a great deal of doubt and scepticism about whether or not the government would act to implement the report’s recommendations.

The story of how agreement was reached that implementation should go ahead has not been fully told. There were dark rumours of arm-twisting, possibly worse, in the corridors of Westminster and Whitehall, as secretaries of state began to realise the implications that implementation would have on their departments.

What is known is that, following the resignation of Lord Irvine as Lord Chancellor and his replacement by Lord Falconer, combined with the appointment of Lord Filkin as a junior Minister in the Lord Chancellor’s Department, government rhetoric changed considerably. The language was much more about delivering services (including adjudication services) which the user of those services wanted, rather than simply carrying on with ‘business as usual’.

Indeed, officials were asked to go further and explore new approaches to problem solving and dispute resolution under the general label of proportionality. The White Paper that was the precursor to the creation of the tribunals service was a very remarkable document.{footnote}Transforming Public Services (Cmd 6243) (London, 2004){/footnote}

The story so far

To the amazement of many observers and others outside government, all Leggatt’s principal recommendations have been brought into effect. In England and Wales there is now:

• a new Act – the Tribunals, Courts and Enforcement Act 2007;
• a new Tribunals Service, with First-tier and Upper Tier tribunals;
• the Upper Tier tribunal, with the status of a court of record;
• a Senior President with power to determine policy for the reporting of decisions of the Upper Tier;
• a new Administrative Justice and Tribunals Council;
• a renewed commitment to the training of tribunal judiciary;
• new obligations (on the Senior President) to report annually on the work of the Tribunals Service;
• new powers for the Senior President to issue Practice Directions.

The creation of the new service offers a great deal of opportunity.

For the first time, a new Rules Committee will be working towards the creation of a single set of procedural rules within which all tribunals will operate.

There will be vastly increased opportunities for the flexible deployment of judicial personnel in different tribunal contexts (though without destroying the specialist expertise that the tribunals can offer) as well as movement of judiciary between courts and tribunals.

Eventually, the administrative and IT structure of the new service should be able to work in a holistic and coherent way, replacing the fragmented arrangements currently in place.

New types of service can be offered, for example relating to the provision of advice and assistance to those appearing before tribunals.

The potential for the use of mediation and other forms of alternative dispute resolution can be explored.

New ways of working (eg greater use of new technologies) can be trialled.

In short the new Tribunals Service offers a context for the testing of new ideas and practices.

The challenge in the coming months, of course, is to ensure that existing services do not suffer as a result of all this change. It is essential that the Tribunals Service can establish from the outset a reputation for efficiency and for customer care – which should be the hallmarks of a service focussed, as Leggatt insisted, on users.

So far the signs are good. As research from other countries shows, major transformational change is highly dependent on enthusiastic leadership. Both the Senior President, Sir Robert Carnwath, and the new Chief Executive, Peter Handcock, are committed protagonists of the new service and, as far as I can see, are providing just the kind of leadership that is required.

Next steps

The process of transformation has not stopped. The government published, at the end of November 2007, a Consultation Paper on how the Tribunals Service might develop.{footnote}See www.justice.gov.uk/publications/cp3007.htm. Responses were sought by the end of February 2008.{/footnote} It gives more detail about how the ‘chamber’ structure of both the First-Tier and the Upper tribunal is to work. And it suggests that after the initial programme of work to establish the service has been completed, other tribunals may be brought within the scope of the service.

Given all the focus on the specific challenges of getting the Tribunals Service running, the wider vision of the Transforming Public Services White Paper must not be lost sight of. The creation of the Administrative Justice and Tribunals Council{footnote}The AJTC website www.ajtc.gov.uk is a mine of useful information, including links to its quarterly newsletter Adjust.{/footnote} (AJTC) in November 2007, replacing the Council on Tribunals, is the key step in making sure the ‘holistic’ approach to dispute resolution is not forgotten.

The AJTC has already launched a number of important initiatives asking some important questions about how the administrative justice system as a whole can be improved. For example, it has raised the question of the extent to which oral hearings should be required; it is exploring whether those who take decisions on appeal can offer feedback to initial decision makers to prevent problems and disputes arising in the first place; it will be working on the implication of the use of new information technologies in the delivery of administrative justice services to the public.

The new Council is also ensuring that particular attention can be given to how the administrative justice system operates in Scotland and Wales. In relation to Scotland, this will be achieved through the continuing work of its Scottish Committee. As regards Wales, for the first time there will be a new statutory Welsh Committee of the Council.

Implications for NI?

What the developments sketched out above indicate is that administrative justice – which is at the heart of the relationship between the citizen and the state – is being taken seriously within government. A core driver for reform was the realisation that while tribunals were largely the creation of the government departments against whom appeals were being brought, there would always be a perception, whatever the reality, of unfairness. As Leggatt strikingly put it, as far as the citizen was concerned ‘every game was an away game’.

Obviously the comparatively smaller size of Northern Ireland’s population may mean that the sort of major restructuring that is currently going on in England will not be needed. But the reform programme has a number of core features which could be replicated here:

• putting the user first;
• ensuring the key attributes of tribunals – independence, expertise, informality – are sustained and reinforced;
• seeking better integration of tribunals with ombudsmen, use of complaints procedures;
• ensuring more flexible deployment of judicial resources in the tribunals system and breaking down barriers between courts and tribunals.

If established, a body analogous to the Administrative Justice and Tribunals Council would, in my view, be a very cost effective means to promote these principles. Working with the AJTC and its committees, a Northern Ireland body could learn much to assist them in the development of practical ways for ensuring they are adapted for implementation in the specific context of this jurisdiction. I trust that as the institutions of government in Northern Ireland take shape, the importance of an efficient system of administrative justice is not forgotten.