Going places, except Northern Ireland

Les Allamby, Law Centre (NI) director, maps the slow progress of tribunal reform in Northern Ireland and finds the current system is still seriously lagging behind Britain in many of its services to claimants and others involved in the tribunal system.

Reform of the tribunal system in Britain reached an important mile- stone with the passing of the Tribunals, Court and Enforcement Act in July 2007. This article charts the reform in Britain and contrasts this with the lack of progress in Northern Ireland, highlighting a number of major gaps in the rights of appellants using the tribunal system locally.

Background

Sir Andrew Leggatt’s Report: the Review of Tribunals for Users – One System, One Service was published in August 2001. The report noted the growth of tribunals. There were over 70 tribunals, leading to tribunals becoming the largest part of the civil justice system in England and Wales. The (then) arrangements had grown in a haphazard way with wide variation of practices and approaches and virtually no coherence. The report found that these arrangements met the needs and convenience of government departments and other bodies running tribunals rather than the needs of users. Leggatt’s recipe for reform was the creating of a unified tribunal service independent from the government departments making the original decisions under appeal. Alongside this, other recommendations aimed to increase the accountability of the work of tribunals, improve the information available to appellants and create a more user-oriented service. On Northern Ireland, the review noted the separate jurisdiction but stated that its recommendations applied equally strongly to the tribunal system in Northern Ireland.

A consultation document issued with the Leggatt review by the Lord Chancellor’s Department was followed by an announcement that the main recommendations had been accepted in March 2003 and by the publication of a White Paper a year later. The White Paper Transforming Public Service Complaints, Redress and Tribunals went beyond discussing tribunal reform and examined broader questions about the use of alternative and proportionate dispute resolution as a means of resolving public service disputes.

The White Paper created further impetus for the creation of a unified tribunals service launched by the Department of Constitutional Affairs in April 2006. Key tribunals transferred at this point included the Appeals Service covering social security and child support appeals, Employment Tribunals, the Criminal Injuries Compensation Appeals Panel, the Mental Health Review Tribunal and Special Educational Needs and Disability Tribunal. Further tribunals have come under the unified tribunal service remit since the initial transfer. The Tribunal Service is currently beginning an interesting pilot on alternative mechanisms to resolve disputes in social security appeals.

New legislation

The creation of a united tribunal service did not require legislation but many other reforms did. The Tribunals, Courts and Enforcement Act passed all its legislative stages in July 2007. The key parts of the Act covering tribunal reform include the:

• creation of an Administrative Justice and Tribunals Council with wide powers to keep administrative justice under review, advise on the development of tribunals, consider ways to make administrative justice accessible, fair and efficient and to bring forward proposals to research the tribunal and administrative justice system;
• introduction of a unitary upper tribunal system (save for employment and immigration appeals which will continue with its existing arrangements) so that a second right of appeal on a point of law is created for all tribunals;
• introduction of new judicial arrangements for the status of tribunal judiciary including provision to allow High Court judges to hear upper tribunal cases and certain judicial reviews to be dealt with at the upper tribunal.

Preparation is now at an advanced stage to introduce an upper tribunal and to create the Administrative Justice and Tribunals Council, building on the work of its predecessor, the Council on Tribunals.

The position in Northern Ireland

In spite of the momentum elsewhere, little was heard on tribunal reform beyond the creation of an inter-departmental working group to look at how Leggatt’s review and the White Paper could be applied in Northern Ireland. In November 2005, a conference jointly sponsored by the Appeals Service, Department of Constitutional Affairs and Law Centre (NI) highlighted the limited progress being made. It came as quite a surprise in March 2006, when Peter Hain announced in a statement on the Review of Public Administration the intention to introduce tribunal reform in Northern Ireland with the transfer of tribunals to the Northern Ireland Court Service. No further detail was given as to how the transfer would unfold in practice.

Since then, once again, little progress has been made. In practice, new tribunals concerning parking adjudication and rating valuations have been created under the responsibility of the Northern Ireland Court Service, an inter-departmental committee continues to meet and some scoping of the work of tribunals has been undertaken.

An unsatisfactory situation

The anomalies created by the lack of reform have been thrown into even sharper relief by the passing of the Tribunals, Courts and Enforcement Act. In effect, tribunals which have a UK wide remit, for example those covering tax and excise issues and immigration, will be subject to the reformed arrangements while the vast majority of tribunals which operate in a separate Northern Ireland context will not. The enhanced level of scrutiny, accountability and scope for research and monitoring will not apply to tribunals in Northern Ireland except for those with a UK remit. The new upper tribunal and judicial arrangements will not apply to Northern Ireland tribunals.

It is difficult to over-emphasize the unsatisfactory nature of the current situation for claimants and others involved in the tribunal system. The contrast between the level of accountability provided by the operation of the Tribunals Service in Britain (with its published framework document, business plan and annual report) and the approach in Northern Ireland is stark. At present, almost no tribunals in Northern Ireland produce and publish an annual report or a business plan with strategic objectives. Gathering statistics across tribunals is time consuming and difficult. Further, no significant research into tribunals and the views of appellants has ever been conducted in Northern Ireland.

Moreover, Northern Ireland continues to have no equivalent of an Employment Appeals Tribunal to bridge the gap between going from an Industrial or Fair Employment Tribunal to the Court of Appeal with all the expense of using the court as a legal remedy.

The new Administrative Justice and Tribunals Council will widen the long-standing gap in accountability given that its predecessor also had no remit for Northern Ireland. As a result, the fragmented, incoherent and largely not user friendly tribunal system found by the Leggatt review remains intact in Northern Ireland.

More people use the tribunal system than the civil and criminal courts, making the need for reform even more pressing. The devolution of justice throws further uncertainty into the mix. Nonetheless, the announcement of a time scale for legislative reform, a commitment to introduce an Administrative Justice and Tribunals Council and the creation of a shadow body, plus commencement of a long overdue research programme, could all happen immediately. This would then start to close the gap between what appellants can expect in Northern Ireland and what their counterparts receive in Britain.