Public Administration Committee - Minutes of EvidenceHC 1621

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Oral Evidence

Taken before the Public Administration Committee

on Tuesday 22 November 2011

Members present:

Mr Bernard Jenkin (Chair)

Alun Cairns

Charlie Elphicke

Paul Flynn

David Heyes

Kelvin Hopkins

Greg Mulholland

________________

Examination of Witnesses

Witnesses: Richard Thomas CBE, Chairman, and Ray Burningham, Chief Executive, Administrative Justice and Tribunals Council, gave evidence.

Q1 Chair: Welcome to our two witnesses. I wonder if you could each identify yourselves for the record?

Richard Thomas: Good morning, Chairman. I am Richard Thomas. I am the Chairman of the Administrative Justice and Tribunals Council, and on my left is Ray Burningham, who is the Chief Executive.

Q2 Chair: Thank you for joining us this morning. I think you wanted to make a few opening remarks?

Richard Thomas: Thank you, Chairman. We have submitted a quite substantial submission to your Committee. We very much welcome the inquiry that your Committee has convened, and our submission runs to about six pages. We have annexed to it all of the reports we have published over the last year or so, and I would be very happy to elaborate on any of those this morning. This inquiry brings the spotlight not just on the AJTC but the administrative justice system as a whole, sometimes called the Cinderella both of public administration and of the machinery of justice. Clearly our prospective abolition is the main focus of your inquiry today. Our feelings are primarily those of puzzlement and frustration.

Our job is, and indeed has been since 1957 when the Council on Tribunals was established, to provide an overview of the entire system for public sector decision making, complaints and appeals as it impacts on the lives of ordinary citizens across the United Kingdom as a whole, and to put forward suggestions for improving that system. Much remains to be done to improve the accessibility, the fairness, and the efficiency of the system: in shorthand, better justice at lower cost. These are our statutory criteria. There are momentous changes and challenges right now and for the next few years across this system. The track record of the AJTC, the expertise, experience and commitment of our members and secretariat, and most importantly our independence, would seem to be of crucial importance to a Government that needs to make significant changes to the part of the justice system where it, the Government, is actually a party to most disputes.

Frankly, we are deeply sceptical that the Ministry of Justice could, should or would-I use those words advisedly-take over our functions. But we do believe that there is considerable scope for our Council and the MoJ to work more closely to secure worthwhile improvements. With so much current emphasis on improving public services, on the needs of users, on empowering people, on fairness and on upholding the rule of law, it seems to us misguided to abolish a well-established, well-respected and well-connected body, which at almost minuscule cost to the public purse is uniquely well placed to improve the system from the perspective of the user. Thank you, Chairman. That was the opening statement I wished to make.

Q3 Chair: Thank you very much. You may have answered some of our questions already. When the Council was originally established, or recommended, by the Leggatt Report in 2001, it was about coordinating the arms of administrative justice, of which they are parts. Hasn’t that largely been achieved by the 2007 Act? Hasn’t the Council therefore done its work?

Richard Thomas: Well, as you imply, Chairman, the Council was reconstituted. The old Council on Tribunals had been going since 1957. The Leggatt Report led to a White Paper, which led to the Tribunals, Courts and Enforcement Act 2007, and integrating the tribunals was just one part of that. If I can just quote one paragraph from the Leggatt Report itself, he said what is needed is to ensure that "there are fair, timely, proportionate and effective arrangements for handling those disputes, within an effective framework for decision making which … forms a coherent structure … for the delivery of administrative justice," and what I think the reforms recognised at that time is that the tribunals were really just the tip of a very large iceberg.

We reckon that perhaps about 650,000 cases a year are now going through just the tribunals that now fall under the scope of HMCTS, the Courts and Tribunals Service. There are more going to tribunals at local level and to tribunals that fall outside that system. There are yet more going to ombudsmen and other forms of dispute resolution. Probably about a million cases a year, which is a massive amount, are going through these various systems. But that is just the tip of the iceberg. If you go back to the original decision making at the base of the iceberg, there are tens of millions of decisions taken every working day of the week by public bodies at central and local level. Most of these, of course, we hope, are correct and are not questioned by people, but above that there are some decisions that are incorrect, where mistakes are made, and where there are misunderstandings.

Q4 Chair: You say a million cases a year. In how many cases is the original decision overturned?

Richard Thomas: It varies from jurisdiction to jurisdiction. In our report Right First Time, in some it is as high as 40%. In Immigration and Social Security-perhaps Ray could help me with the exact figures there-anywhere between 25%, 30% and 40% of appeals are upheld by a tribunal or an appellate body, for whatever reason. What we are really trying to say, Chairman, is that the Council was set in place in 2007 to oversee the entire system, not just the cases that reach the tribunal.

Q5 Chair: You are in a bit of a catch22 in terms of what contribution you have made to this, because if 40% of cases are still being overturned, and they are not getting it right first time, what contribution has this Council made to this? Is it even worse?

Richard Thomas: No, Chairman. What we are trying to say in our report Right First Time is that a very sustained and widespread effort is needed to reduce the number of cases. It must be a saving to the public purse, and it must be in the interests of individuals to try to push the agenda right back to the original decisionmakers. In our report that we published in June of this year we made that point very forcibly. We identified examples of good practice: we highlighted the Criminal Injuries Compensation Authority, the Midlands branch of UKBA, where they have made real efforts to get it right first time, to learn from the outcome of appeals, and bring that back into the system. We praised those, but they were exceptions across the system as a whole. That is not the case in Social Security. Only 15% of presenting officers even attend the tribunal hearings, so there is not the continuous learning back into the system itself, and part of our job is to oversee that system, try to get it right first time, and reduce the costs for all concerned.

Q6 Chair: Can you identify specific reforms or improvements that have resulted from your work?

Richard Thomas: Yes, Chairman. I would like to address that under two headings. The first is what you might call the high-level, agendasetting, intellectual level. I think we have pushed very hard on the Right First Time agenda and proportionate dispute resolution, looking at what I call a "Horses for Courses" approach-trying to get more effective mechanisms of justice, suited to the type of dispute. Thirdly, we have articulated the importance and the benefits of having a coherent system, and all the learning and crossfertilisation and the other benefits that flow from recognising it as a single system. Fourthly, we have pushed hard to ensure that tribunals are independent, outside the decisionmaking process and properly integrated. Those are the general achievements we can point to.

On the more practical level, I can give you quite a long list, but I will give you some examples. First of all, we have a statutory right to visit tribunals, and members of the Council use these rights. We observe hearings, we write up Reports judging the system from the perspective of the user, and we feed those back into the system. On fees for immigration appeals, we objected to the fact that the regime that was being originally proposed would have said that, even if the appellant had won their case, they would not get their fee back. The Government was introducing fees for people making an appeal, but the original idea was that they would not get their fee back even if they were successful. About six or seven months ago the Government changed its position on that, I think in part because of the strong representations we made, to give the tribunal now the power to say that, if the appellant has won the case, they can claim a refund of their fee.

Q7 Chair: You lobbied for a change of Government policy?

Richard Thomas: I would not use the word "lobby". We responded to the consultation.

Q8 Chair: What I hoped you were going to say was, "Under suchandsuch tribunal, there used to be 40% of decisions overturned on application, and now it is only 5% because we have done this, that and the other." How are we going to deal with all of the Social Security cases?

Richard Thomas: In two years’ time, Chairman, I hope I could say that, if we are still around. However, our report was only published in June, and I am bound to say that although we wrote to every Permanent Secretary, we have not had a very forthright set of responses yet. Some Departments are looking at this. We hear a lot of rhetoric coming from Government about the benefits of Right First Time, but we still think the system is not as coherent as it should be. We held our major conference last week, and I said to 150 or 160 people that there is still work in progress to make the system more coherent. You are absolutely right; we do need to be able to point to successes in reducing the number of cases that do not go all the way to appeal, because that would save money and improve the system for everybody else.

You asked for other examples. We produced a report in the spring of this year on mental health tribunals. These are a rather obscure part of the system. They are making fundamental decisions. They are either saying somebody should lose their liberty for a further period, or that the person is free to go back into the community. These are very important decisions. Until now, it has always been the conventional wisdom, if you like, that it is not possible to obtain the user’s perspective from people who are involved in mental health tribunals. We started an exercise in which we worked with the Care Quality Commission to get a report together documenting the experiences of people who were the actual users, and that has set an agenda for carrying on further improvements in the mental health area.

On schools exclusions and admissions, which are outside the central Government system-so therefore outside the purview of the Ministry of Justice-we have made a lot of progress with the independent review panels, which the Government is reconstituting under the latest reforms. To give you one example, we had a meeting last week where the proposals coming from the Department for Education referred to decisions being taken on the grounds of "judicial review or natural justice". We said, "That is not the sort of language that either the panels, the schools or the parents will understand." More needs to be done to explain how the system was going to work. On Social Security time limits we produced a report, on which we are making some progress, articulating our view that it was wrong in principle that the individual had very tight time limits but the Department for Work and Pensions was not exposed to a time limit for each stage of the review process. With the Tribunal Procedure Committee taking this up, we are hopeful they will move towards a position where there are time limits imposed on the Department. I have five or six other examples here, Chairman; these are examples where we have had real impact and effect in recent years.

Q9 Chair: You have given them in your written evidence as well. Do you have a system for measuring your own performance and making an assessment of how effective a body you are? How would you summarise that?

Richard Thomas: I would say it is work in progress, Chairman. In 2010, before our prospective abolition came on the horizon, soon after I started as the Chairman, we published a strategic plan for 2010-13, a threeyear plan. In practice we were able to deliver most of the first year of this plan, but then the question of our abolition came on the horizon, and that has created a great deal of uncertainty. In this plan, however, we had a section that talked about how we measure our performance and feedback. The section here is entitled "Measuring Our Effectiveness", and it set in place a broad framework for evaluating how we had fulfilled the various tasks we set ourselves. We have the threeyear plan and a oneyear work programme, and we set ourselves a task of reporting how we actually deliver that. We do that internally-at each of our Council meetings every month we report on progress-but I am bound to say that we have not gone as far as we originally envisaged in having key performance indicators and other ways to measure our success. That is still work in progress.

Q10 Charlie Elphicke: Where is this?

Richard Thomas: It is in our strategic plan. I do not think it is one of the documents we shared with you, but we are very happy to send it to you after this hearing.

Chair: That would be most useful.

Q11 Charlie Elphicke: I cannot see anything in your Annual Report on these things, which seem central to your case for survival.

Richard Thomas: That is a fair comment. We published the Annual Report last week. I do not think we linked it to having key performance indicators. As I have indicated, we have not developed those as precisely as we originally envisaged. What I would say is that the Annual Report we published last week is a very full record of our activities across quite a wide range of activity. It is difficult to measure this sort of work in numeric or objective terms, but I would say this is a very full Annual Report, documenting what we have done over the last year.

Q12 Paul Flynn: You say that it is work in progress. When did it start?

Richard Thomas: We had two or three Council meetings back in late 2009 and early 2010 where we agreed that we needed to have some key performance indicators.

Q13 Paul Flynn: So when did it start? It is a simple question. How long have you been in business?

Richard Thomas: The work as a whole?

Q14 Paul Flynn: When did you start to evaluate your own performance?

Richard Thomas: In the sense that I described earlier, Mr Flynn, we have always done that. We have always produced reports to our own Council and to the MoJ, who are the sponsoring Department, documenting what we have done, and that is done by reference to the various plans for each of the projects that we initiated.

Q15 Paul Flynn: How long is the progress likely to continue? Can you give us some kind of idea? Work in progress is a defensive phrase, which means, "We have not got a clue, really. We are not doing anything. We might do something today, tomorrow, sometime, never."

Richard Thomas: In that case I think I have not been fully fair to the AJTC. What we did initiate within this framework was a system of project management. We had a project initiation document for each of our six or so projects that we were undertaking. We divide our work into the proactive and the reactive: proactive where we undertake a particular task under our own steam, and reactive where we are responding to a Government initiative.

Q16 Paul Flynn: And you get lost in the jargon somewhere. Can we get something clear? Where exactly do you feel you have progressed?

Richard Thomas: What I would say, Mr Flynn, is that we set ourselves a target of producing the six reports. Over the last 12 months we delivered on those reports: we produced Principles for Administrative Justice in November 2010; Time for Action, on Social Security time limits, in February 2011; Patients’ Experiences of the First-tier Tribunal (Mental Health) in May 2011; Right First Time in June 2011; and Securing Fairness and Redress: Administrative Justice at Risk? in October 2011. Those were all following project plans that we, as a Council, adopted. We said, "This is what we will try to do, and this is how we will do it," involving both the Council members and the Secretariat, and we delivered those reports. We have not done it using the language of key performance indicators; we have simply delivered that which we set out to do.

On top of that, as our Annual Report records, we have done a very large amount of work responding to the initiatives that have come from elsewhere, for example the integration programme of the tribunals with the courts. We sat on the Programme Board, and we also responded to consultation papers. We have responded to the Legal Aid proposals, to fees for Immigration and Asylum appeals, the Welfare Reform Bill, the Education Bill, the adjudication arrangements for health professionals, and Special Educational Needs. Those are examples where we cannot anticipate that they will come, but as they have come, we have responded. All that is documented in our Annual Report.

Q17 Chair: I want to move on, but before we do so, generally all this decision making then being overturned on appeal is a kind of administrative chaos, isn’t it? It is a real failure of Government in this country, isn’t it?

Richard Thomas: We would say that there is a huge amount still to be done.

Q18 Chair: Have we gone mad? Are we trying to turn what are basically executive decisions into quasi-judicial decisions? I do not see this in other jurisdictions around Europe, for example.

Richard Thomas: With respect, Chairman, I think that you will find we are behind most of the rest of the world. If you look at the United States, Australia, France, Germany, the traditions of public law, the constitutional law, the Conseil d’État in France, the German Constitutional Court, and the whole system of public law has a much higher profile than in this country.

Q19 Chair: For people appealing against benefit decisions?

Richard Thomas: It is a fundamental principle of justice that, if an executive arm of the public sector makes a mistake, misunderstands a citizen, or makes arbitrary decisions or delivers service standards that are unacceptable, there should be some form of redress. If we did not have some kind of outlet for people to challenge Government, whether it is on planning, on education, on health, on social security or whatever, and some kind of arrangement for that to be reviewed and appealed, I think we would be severely impoverished as a nation. I do not think that is in serious dispute. I think everyone agrees that you need to have arrangements. What I think can be questioned is whether we can improve those arrangements by looking at the system as a whole and the component parts of it. I come back to our statutory criteria of accessibility, fairness and efficiency.

Q20 Chair: But how do we get to the point where the case going to appeal is the exception rather than a standard procedure for somebody who is protesting against a decision of a benefit being removed, for example?

Richard Thomas: What I would like to suggest to this Committee is that the proposals set out in our report Right First Time, where we set out some good practice advice-if I could just turn that up...

Q21 Chair: I think we had better move on.

Richard Thomas: Sorry, Chairman. I just have too much paperwork here. I would just like to draw your attention to this, because I think it is fundamental to achieving what we are all trying to achieve.

Chair: I think we will have to move on.

Q22 Alun Cairns: Mr Thomas, it seems to me that one of the achievements that you completed is the time limits on the appeals in relation to the Department for Work and Pensions. I know that there are time limit issues in relation to the Special Educational Needs and Disability Tribunal, for example. However, is it not the job of an MP to highlight that to the Minister? You have mentioned DWP. I have talked about the SENDIST, the Special Educational Needs and Disability Tribunal. I have taken it up with the Minister. I said I had concerns on that. The Minister said he would respond, and I would expect there to be a response in due course. Therefore, do we need the body to come up with those sorts of issues, when really those people should be coming to their MP in the first place?

Richard Thomas: I would make no claims whatsoever to usurp the role of a Member of Parliament, but I think Members of Parliament appreciate having the issues, the facts, laid before them. I do not think any of us have a monopoly of wisdom or power in this area, but on that particular issue we produced our report in, I think, February of this year. It had not been highlighted before, whether in the political arena or elsewhere. I think it was recognised that there is an issue there. The Tribunal Procedure Committee, which has the power to make the changes, is now seized of the issue. Ministers and officials at DWP, as I understand it, are still considering the best way forward. I very much welcome the support that Members of Parliament give to these matters. That is a very important role. However, with the greatest respect to MPs, I do not think they can do it all by themselves, and we, I hope, can make a contribution to improving the system.

Q23 Charlie Elphicke: Mr Thomas, the Civil Justice Council manages it all perfectly well for the family, civil and criminal justice, as far as I can tell, in terms of the oversight, staffed by volunteers at a fraction of the cost. What is the point of having your complicated machinery and producing fine reports when we could simply do it that way?

Richard Thomas: I think I would resist the suggestion that we have complicated machinery. We are a very small and simple organisation.

Q24 Charlie Elphicke: Expensive-it costs a lot more than the CJC.

Richard Thomas: About £900,000 a year. Perhaps later we could just make a point about the cost savings that the Government is suggesting. We think there could even be cost increases. However, the Civil Justice Council is quite a different body. First of all, it is chaired by the Master of the Rolls, and it is what I would describe, and I think the MoJ itself in its paper used the same language, as judicially led. It has a number of judges and other people working in the system-barristers and solicitors. Fundamentally it is not looking at the issues from the user’s point of view. It is looking at much more detailed, operational matters. It is not looking at the big picture. Although there has been speculation and debate about whether the functions of the AJTC could be brigaded within the Civil Justice Council, the Ministry of Justice has resisted that particular suggestion.

What we do find strange is that the Civil Justice Council is dealing with quite small numbers. In terms of hearings, only 63,000 go to the civil courts as against 650,000 to tribunals, but the need for independence is even greater in the case of administrative justice because of this fundamental point that the citizen is in conflict with the machinery of Government, whether at central or local level.

Q25 Charlie Elphicke: Turning to the way things have been reorganised, it was Her Majesty’s Courts Service. It is now Her Majesty’s Courts and Tribunals Service. It is said that now that has been set up and has its own governance arrangements, frankly, you are just not needed anymore.

Richard Thomas: We are puzzled by that. If I could quote a sentence from the MoJ’s consultation paper, it says, "Effective governance arrangements are in place between HMCTS and the Department, meaning that the AJTC’s oversight role in relation to tribunals is no longer required." Fundamentally, we do not really understand what is meant by that claim. HMCTS is the administration that supports the tribunals and the courts. They, if you like, are providing the system. Our role is to provide the independent challenge and feedback, so that both policymakers in the MoJ and those operating the system inside HMCTS have a better idea from the user perspective as to what is going on. Even within the narrow field of the tribunals, we do not accept that HMCTS can do this job. There used to be customer surveys. They have been stopped. What we can offer is the experience from our visits and our very wide range of networks and contacts as to what is actually happening in practice-not just surveys and opinions, but experience. We are sceptical that HMCTS can, if you like, oversee itself, and secondly it does not have oversight of the system as a whole; it is only concerned with the delivery of court and tribunal services.

Q26 Charlie Elphicke: You say that, and yet from your evidence so far we have heard that you do lots of marvellous reports but are unable to point to any castiron KPIs. A cynic would say that you sat there in June, the MoJ said, "We will come along and abolish you," and you thought, "Oh, we had better produce some KPIs and start to show that we actually do something." What do you say to that?

Richard Thomas: I am not the least bit cynical. I said that we set ourselves the task of producing KPIs well before abolition was even on the agenda. However, we did get sidetracked, because we have lost resources and we have had to focus on the real work programme. I am being completely straight with you by saying that we did not produce KPIs. However, we have produced a large amount of work.

Q27 Charlie Elphicke: Is it not the case, finally, that your functions, frankly, would be far better and far more effectively advocated by the many charities who write to us about the system, and the many other organisations, lobby groups and ginger groups who all go on at MPs and Ministers endlessly and lobby everyone senseless. Frankly, they do your job and they do not cost anything. Why do we bother to have you?

Richard Thomas: With the greatest respect, I do not think that is done in a very coherent way. The Prime Minister, when he published the Open Public Services White Paper, said that he thought the user perspective in public services was very important indeed, and at that time he said that organisations like Which? could articulate the user dimension in public services. I am the Deputy Chairman of Which? Although Which? will be doing a small amount of work on public services in the future, I can say-and I said in my evidence back to the MoJ-that I do not believe, and my colleagues at Which? do not believe, that we have the capacity, the networks, the knowledge, or the insights of the administrative justice system that AJTC has, and before it the Council on Tribunals had, to get under the skin of the system, to be the middle organisation, if you like, between the various parties. I do not think that Which? or any other charity could do that sort of work.

If I could turn up the practical steps from Right First Time, Chairman-I am sorry, I was struggling for the paper earlier-I think it is important. You say that we are just producing reports. Here, in June of this year, we set out a number of practical steps on how to give guidance to every public body making decisions about citizens, and what they need to do to take a coherent structured approach to getting it right first time. We looked at the starting point of their systems, the analysis of their arrangements, the action they need to take, the reflection, and the areas where good practice-and we highlighted good practice-has worked. I cannot quote the figures offhand, but within the Criminal Injuries Compensation Authority there were some quite significant savings of cost by following these steps. We have been promoting these to other Departments.

Q28 Chair: But is this agenda not straying into the Ombudsman’s role-correcting decisions in Government, correcting procedures in Government, and making reports to Government about how things should be improved?

Richard Thomas: No. The Ombudsman, of course, who is an ex officio member of our council, deals with maladministration. That is only one part of the system. We are primarily concerned with mistakes, misunderstandings or errors of fact, misunderstandings or errors of law, where there has been a problem quite separate from maladministration. She is part of the system-a very important part of the system. I know that she has given evidence to this Committee about our own future, but that is only one small part. If you saw the lecture that Ann Abraham delivered last month, the Tom Sargant Memorial Lecture, she would place herself and the tribunals and the other parts of the system within the bigger picture, and our role in this is having the independent oversight.

Chair: I was there for that lecture.

Q29 Charlie Elphicke: One last very short question. Over the last year, can you give me a castiron figure for either a) the amount of public expenditure that you have saved by your work, or b) the number of cases of injustice that you have averted?

Richard Thomas: On the latter point, we do not deal with individual cases. On the former point, I will not give you castiron figures in that language. Just to give you a couple of examples: on Right First Time we say that, if you could reduce the number of cases going to tribunal by 20%, you would save £66 million out of the costs of the Tribunals Service. That ignores all the costs in public bodies of handling appeals. If we could get Departments-and I hope you will be helpful in this, individually and as a Committee-to reduce the number of cases, a 20% reduction would yield a £66 million saving every year. As for unit costs, the data is not available on how much tribunal and individual cases cost. The National Audit Office tried to do it a few years ago with no great success.

Q30 Chair: So a 2% reduction is a 100% return on expenditure?

Richard Thomas: Yes, thank you. Yes.

Q31 Chair: That is pretty good.

Richard Thomas: These are generalised figures.

Q32 Charlie Elphicke: That would be better coming from the MoJ. They would listen to the MoJ civil servants, and they have far more influence across Whitehall in getting it right than you guys, surely?

Richard Thomas: With respect to them, we would like to see evidence of them doing that. There has been one example. They started talking to DWP about reducing Social Security cases. I think the Minister will mention that later. We were instrumental in getting them to do that. Just look at the costs of the Tribunals Service: £336 million a year for 650,000 cases. Very crudely, and I accept it is a very crude figure, that is a unit cost of £515. The Independent Review Service, which does Social Fund reviews, have reduced their unit cost to £86. That is an example of a proportionate dispute resolution system. They do not have hearings; they do it over the telephone. They do it very fast-in a matter of days, not months or years-and they have a very high customer satisfaction rate. We have been promoting that approach.

There is a unit cost of £515 in the tribunal area, and £86 in this one service. Sadly, that service is being closed down, because the Social Fund is being abolished. What we have argued is that you should keep that service, and make it available for other types of Social Security appeal. However, we only have so much influence, and you are right to ask whether we can point to castiron examples of where we have had that effect. I have only been chairman for 18 months. I think you know me as a fighter, and we are still trying to have that sort of impact.

Chair: We must crack on.

Q33 David Heyes: You are clearly a fighter, from everything you have said so far, but you are also a realist, I suspect. The prospect of abolition is looming as a real possibility. The Minister has said, for instance, that if the decision is to go ahead with your abolition, the order to do that will be laid as soon as spring next year. We are talking about potentially just four or five months. I wonder what effect this is having on your ability to operate. What are the consequences for staff? Is it unsettling? What does it mean in terms of job security and continuity? Have there been any discussions with the MoJ about what is going to happen should you be abolished?

Richard Thomas: Mr Heyes, perhaps I can invite my Chief Executive to say more about that. At the general level it has created a great deal of both insecurity and uncertainty for our work, and a sense of frustration, but at the same time we have managed to deliver what we said we would.

Ray Burningham: It is an uncertain time for staff. We are very grateful for MoJ’s agreement to keep our Scottish and our Welsh committees going until the AJTC is finally abolished, if that is what will happen, because there is important work going on in Scotland and Wales at the moment. But the staff remain motivated, and believe very much in what we do and in the value of it. As the Chairman has said, we have been producing what we believe is valuable work during the course of the year, and we intend to carry on doing that until the lights go out, if I can put it like that.

Q34 David Heyes: The question is - have any discussions taken place about the future of the staff?

Ray Burningham: Discussions have taken place with the MoJ. A MoJ HR representative has visited the staff and talked to us, and the staff are all aware of the options available to them. Some staff have left as job opportunities elsewhere have arisen, and have been redeployed. Others have left as fixed-term contracts have come to an end. 12 months ago we had a staff of 13. We now have a staff of nine, as staff have gradually left.

Q35 David Heyes: What about the expertise that is leaving with those staff? The hope is that the broad area of work you currently do will continue in some form within the MoJ? Surely that is dependent on retaining that current expertise within your organisation? If people are being given the opportunity to go, to take redundancy, which is the inference I take from what you have said, surely that is quite worrying?

Ray Burningham: I have 10 years’ experience with Administrative Justice. I have a senior colleague with me who has 10 years’ experience. Fortunately, a degree of expertise is retained. A senior colleague who wrote one of our major reports left just a few weeks ago. The expertise is gradually disappearing. We have not quite lost it yet.

Q36 David Heyes: That is not being done in any planned way. Is there any work being done to try to secure the services of individuals whom it would be disastrous to lose from the system, for example?

Ray Burningham: As staff depart, they are not being replaced in these uncertain circumstances. That is a decision the Department has taken.

Richard Thomas: Ray is a civil servant within the MoJ who works with our Council. Perhaps I can say a little more freely than he can that we have grave anxieties about how the MoJ could exercise our functions, because they do not have the depth of experience and expertise. We do not know exactly how many staff there are working on this area in MoJ. We believe it is more or less like three or four fulltime people, but that team really only started about six months ago. There was no capacity until about six months ago. A team was put in place; they disappeared to other, higher priority areas. A new team started about three or four months ago, and we were told just last week, or the week before last, that all three or four people working in this area will be gone. I think one will be gone in two weeks’ time, another very shortly, and the last one will be gone by early spring-a lady working parttime in this area. There has been a very high turnover, and a completely new team will be arriving in the coming weeks, and we do worry very much about whether the MoJ will have not just the expertise and depth of knowledge but also the contacts and networks you need to have to understand the system.

Q37 David Heyes: Will there be anything left to abolish by the time we get to spring next year?

Richard Thomas: It is for Parliament ultimately to decide. When the Public Bodies Bill gets Royal Assent, that will give Ministers the power to bring orders to Parliament. We have said that, as and when Parliament resolves that we should be abolished, we have agreed in principle that there will be a two- or threemonth period within which the Council would close down.

Q38 David Heyes: There must be a real risk, from what you say, that before that happens, potentially all the staff will have gone anyway, and their expertise with them.

Richard Thomas: We are feeling very fragile, but we have some very loyal and committed staff. We are down to the bare minimum now, Mr Heyes, but we are surviving as we are at the moment. It is not a comfortable or happy place to be.

Q39 David Heyes: In the same context of your potential abolition, have any discussions taken place about the priority work? Are you being asked by the MoJ to identify the crucial areas of work that it would be unthinkable to close?

Richard Thomas: We were not asked, but the Report we published last month, Administrative Justice at Risk?, was really a stock take of the existing system, and we set it out there very explicitly: "If we do not survive, this is our legacy. These are the areas that we think are priority areas." We listed various priorities that somebody needs to take on after our departure. Clearly, if we go, there will not be any sort of independent oversight, and we think that is constitutionally fundamentally important, but even if some of the functions may be doable elsewhere, our report set out what we thought the priorities were.

Q40 Kelvin Hopkins: The Government has stated that the work of the Council duplicates the function within Government of giving advice to Ministers on a Ministry of Justice policy. Is this a position you recognise?

Richard Thomas: As I said earlier, Mr Hopkins, until about six months ago, throughout my time as Chairman there was not any policy function whatsoever inside the MoJ. Even now, there has been a small unit created, but administrative justice is almost entirely missing from the strategies and plans. It is hardly mentioned. I even wrote to the Lord Chancellor about nine months ago to make this point. There is simply no mention in their plans of administrative justice. It has a very low priority compared with criminal justice, civil justice, family justice and other things the MoJ takes on. As I said in my opening statement, we are sceptical that the MoJ should do it, for the constitutional reasons, could do it, because we do not think they have the capacity to do it, and we are sceptical whether they would do it in practice. The fact there has been such a high staff turnover throughout the last six months or so does not really bode very well for any sort of priority being given to this area.

At a working level, Ray and his colleagues deal with the officials. We make no criticism of them as individuals, but we are not convinced that the MoJ could provide that user perspective. In their paper they say something about, "We engage with user groups." The majority of so-called user groups-there are not very many-are primarily local solicitors, local practitioners, local tribunal judges and so on. Our function is very much focused on the individuals, the men and women who are involved in these cases. We look at these things from their point of view. It is very difficult for a Government Department to do that. The other point I would make, just to elaborate on something I said earlier, an independent body can be far more innovatory. It can fly kites; it can look at new areas of policy. It is much more difficult for a Government Department to identify the sorts of changes that need to be made. That is why our reports are perhaps not as tangible as you might like-I accept that-but we are setting the agenda, throwing out the ideas and pulling the information together, and, if that is not done, we do not see anyone else to do it.

Q41 Kelvin Hopkins: So your functions are not really duplicated within Government. They are doing something different. Isn’t another significant factor that you can make public comment and civil servants cannot?

Richard Thomas: Indeed. Interestingly, in the consultation paper, the functions we have exercised were recognised. The MoJ recognised and valued the functions, and said that they could be discharged by civil servants providing independent advice. We challenged that quite strongly. It is not the function of civil servants to give independent advice. They give objective advice. They can give sound and balanced advice; indeed, in their submission to you the word "independent" has disappeared, and it now talks about "balanced advice", which we think is the right way. We can recommend, we can advise, we can float ideas for improving the system. It is then for the civil servants at the MoJ to advise the Minister which ones to pursue, and which not to pursue.

Q42 Kelvin Hopkins: So, effectively, the civil servants will not be doing what you are doing. Their loyalties, inevitably, will be to Ministers and to the Government machine, not to users or tribunal members even, and it will be a fundamental change from what we see now. It is not just shifting a function from one place to another.

Richard Thomas: I think that is very much as we see it in our written submissions back to the MoJ and to this Committee. That is the point we have made. We do perform a unique function. I have not talked about the devolution aspects. We look at the whole of the United Kingdom, for example, but we look beyond the boundaries that inevitably are imposed upon the MoJ. The MoJ is fundamentally concerned with the justice system. We are concerned with the whole of public decision making as it affects individuals across the whole of the United Kingdom.

Q43 Kelvin Hopkins: Touching on a particular function, the Council examines each statutory instrument that proposes rule changes to tribunals. How necessary and effective is this scrutiny?

Richard Thomas: We do it. We have struggled in the last year or so to do it as fully as we would like, because our staff numbers have reduced, but we are still doing it. Ray can give some recent examples. We have had some engagement with the Department for Business, Innovation and Skills in the Employment Tribunal area. We look at draft instruments in procedural rules.

Q44 Chair: Who sees this scrutiny?

Richard Thomas: It goes back to the Departments. They consult us before they go public with their proposals.

Q45 Chair: So you do not produce something for Parliament to look at?

Richard Thomas: No. The Annual Report comes to Parliament. There is no secret about it. We are very transparent about this, and there is no difficulty in making our conclusions more generally available. I should correct that; Ray will help me on this. Some of them come to us at a very early stage in confidence, and we respect that.

Q46 Chair: Mr Burningham, why don’t you explain?

Ray Burningham: As the Council on Tribunals, under the previous remit, the Council would see all procedural rules for tribunals, and publish good practice guidance for the Departments to follow. Under the new arrangements, of which we are part, the Tribunal Procedure Committee, comprising tribunal judges who make tribunal rules, makes rules for the unified tribunals, the ones that MoJ is responsible for. The AJTC is represented on that Committee. We are still consulted on rules made by other Departments. Rules for employment tribunals are an example. The Department for Business, Innovation and Skills is still responsible for those rules, and just in the last few weeks we were consulted by BIS about draft rules. We published our response on the website, and if we are around to produce the next Annual Report, the report to Parliament on that consultation will be available both to Ministers and to Members of Parliament.

Q47 Greg Mulholland: I will just briefly take up the crux of the matter as to why the Government is abolishing you, which is the cost. Clearly they have laid out the cost currently, but other evidence we have seen does make the point that you have made. I quote from the group of legal professors who wrote to us, who say that "it may in fact lead to greater expenditure". There is a powerful argument there, but how much are you getting that across? Are you able to give specific examples of where those extra costs could fall to the taxpayer?

Richard Thomas: We have had enormous difficulty, and still have great difficulty, in understanding the cost savings that the MoJ are claiming. In their consultation document, they claimed that will be a saving of £4.3 million over the next three financial years. Although we have probed how that figure was calculated, we have been unable to really understand it. The impact assessment that accompanied the consultation paper is, shall we say, somewhat opaque. We have tried to understand those figures. When we are costing only about £900,000 a year, it is difficult to see how you would achieve a saving of £4.3 million. We are not in a good position to enlighten the Committee on that aspect.

I would make some more general points about savings to the public purse if we were to be more successful in getting public bodies to reduce the flow of cases going to tribunals, or to adopt simpler and cheaper and faster ways of resolving disputes without cases going all the way to tribunal. There is, in our view, considerable scope to save money. We think we are well placed to identify, certainly at the general level, where those savings could be made. We would like to be active, as I said at the start, in pursuing this agenda of better and more appropriate justice at lower cost. That is what efficiency is all about.

The direct savings from our abolition we are frankly puzzled by. At our conference last week the Director of the Justice Group at the MoJ said there would be 12 people working in this area, either now or in the very short term. We do not quite understand where the 12 people come from. If it were to be 12 people, it would seem that the cost of abolition might even turn, in direct terms, to an extra cost, because getting rid of us and taking on 12 civil servants, it seems to us, would not save money at all. We do not have any idea exactly where those figures come from or what those savings might be.

Q48 Greg Mulholland: Do you think the Government has got its figures wrong?

Richard Thomas: All I can really suggest is that this Committee might like to probe more fully on that.

Q49 Chair: I am sure we will.

Richard Thomas: I have seen some email exchanges, and I have to say that I could not make head or tail of what the MoJ was saying in the email exchanges about how the calculations were arrived at. We have drawn a blank on that one.

Q50 Charlie Elphicke: What other means of continuing the work of your group have you considered, and what would you need to enable the group and the work to continue?

Richard Thomas: We first got the message in July 2010 that our abolition was on the agenda, and following that we looked at various options. One option we looked at was an Administrative Justice Institute, which would be, if you like, a freestanding body outside the public sector. It could be rooted in an academic institution. One of our members spent a considerable time talking to a wide range of people about how that might be established and what it might look like. However, we came to the conclusion that it really could not get off the ground without some seed money from somewhere. We frankly could not identify anywhere that the initial launch money could be found. That rests on the table but has not been taken any further.

I hope I have been clear on this: what we really think is important is our function being continued-the function of independent oversight. We had an exchange earlier in this hearing about the possibility of the Civil Justice Council having a role there, and I know that there will be a debate in the House of Lords tomorrow on that issue. An amendment to the Public Bodies Bill will be considered again by the Lords on that particular matter. Certainly we would like to see at the very least a flexibility left in the Public Bodies Bill for some form of integration with the Civil Justice Council. That would be better, in our view, than complete abolition.

Q51 Charlie Elphicke: The other thing that concerns me is that in the age of austerity, "nice to have" is not good enough. "Must have" is the watchword of the day. Principles of being on the side of the user, handholding, being nice to people going to tribunals, and making sure they feel comfortable are "nice to haves". I would put it to you that you need to work harder on the "must haves", particularly on how you save money and being able to point to the number of cases in which you have made a difference.

Richard Thomas: Perhaps we should be more strident in our message, but I would take issue with you. I say this is a "must have". The public sector is a long way behind the private sector in learning from mistakes and understanding the importance of complaint handling. I am not saying the private sector is perfect; we can think of good examples and bad examples in the private sector. What there is now in the private sector is an understanding that, where you have mistakes, you learn from them-a system of continuous improvement. That is fundamental to our rationale: seeing where there are mistakes; good, quick, effective complaint handling, maybe appeal procedures; and then putting that back into the system and learning from that. In my view at least, that is a "must have", not just a "nice to have". It is in the interests of what I broadly call justice. It is also in the interests of efficiency and saving money for the public purse, and fundamentally about giving the citizens of this country a fair deal.

Q52 Kelvin Hopkins: Just very quickly, what you seem to be saying is that the Government is effectively trying to weaken the tribunal system, and we will see more rough justice for citizens. The Government do not like being picked up on their mistakes by tribunals. I know that the Home Office does not like this in particular, from my own experience.

Richard Thomas: I am not putting it in quite that language, Mr Hopkins. A lot of effort has gone into improving the tribunal system, making it more coherent. What I would say, and I said it in the preface to our recent Report, is that there is still an attitude of defensiveness or denial across the public sector. The public sector has yet to learn the value of this. Someone once said to me, "Complaints are the cheapest form of market intelligence and research," and that is where we are seeing a fundamental gap.

You have talked about some of our priorities for the future. If we do survive at least into the spring of next year we will be doing some workshops and hearings on these sorts of matters, first of all comparing public and private sector complaint handling, and secondly a workshop on how you can resolve disputes without hearings, and the use of technology and the telephone to achieve much faster, much more effective justice.

Chair: Thank you very much indeed for your testimony. It has been an interesting session. On behalf of the Committee, I just add that whatever the outcome of these deliberations and the final decision of the Government, we have no doubt that you and your staff are dedicated public servants, and we appreciate this is a very difficult time for you as individuals and your staff. Please would you pass our best wishes to them? Thank you very much.

Richard Thomas: Thank you very much, Chairman.

Examination of Witnesses

Witnesses: Jonathan Djanogly MP, Parliamentary Under-Secretary of State, Ministry of Justice, and Anna Deignan, Deputy Director, Access to Justice Directorate, Justice Policy Group, Ministry of Justice, gave evidence.

Q53 Chair: Minister, welcome, and could you just identify yourself for the record?

Jonathan Djanogly: Jonathan Djanogly, Justice Minister.

Q54 Chair: Are you not being joined by your colleague?

Jonathan Djanogly: I was. I do not think there was a chair for her to sit in on the earlier session, but she is coming.

Q55 Chair: Very good. We very much appreciate your being present for part of the earlier evidence session. To start with, none of us can be satisfied with the system of administrative justice as it is performing in this country at the moment, would you agree?

Jonathan Djanogly: I think there is always room for improvement. There has been tremendous improvement over the last year.

Q56 Chair: What plans does your Department have to increase the coherence of the administrative justice system?

Jonathan Djanogly: Listening to, admittedly, only a part of the last evidence session, what struck me was the lack of mention of what has been going on in terms of improving administrative justice. I would say there are two aspects to that. Firstly the reactive aspect: in other words the Government has a very significant series of reforms going on, particularly in social services and immigration, which has meant that we have had to address some issues coming out of that. That is a reactive aspect. Proactively, of course, we have the formation of HMCTS, which has radically changed the whole formation, if you like, of the tribunal structure. Looking at HMCTS to start with, if I may, Chairman, because it is an important starting point, if you look back to 2007 when AJTC was set up-when the Tribunals Service was very much in a state of flux, with tribunals being attached to a whole variety of Government Departments-I can very much see where people were coming from, not least people like Lord Newton, in terms of setting up the AJTC and wanting to have some kind of policy format across the piece.

Times have very much changed, however, and we now have most tribunals within HMCTS. There are still some to come over. Another two came over this year, and there are more to come. We have accommodation sharing, so we can now look across the piece in terms of where these tribunals actually sit. If you take SENs, until last year most of them were sitting in hotel rooms.1 We have created a chairman of judges. We now have the ability to look across the piece in terms of judicial careers. We have common standards, applicable not only in terms of tribunals but now tied into the judiciary, so we are now looking at courts and tribunals across the piece, and the Senior President of Tribunals sits on the Board of HMCTS.

Of course appeals, instead of being dealt with by the Department of State, which was taking the initial decisions, are now being dealt with by a single tribunal structure. The whole game, if you like, of tribunals has dramatically changed, I would say for the better. I would say that the formation of HMCTS has been one of the greatest successes of MoJ in the last year. Listening, frankly, to the previous speakers, I got the impression that we have not looked at this very much. I can tell you, Chairman, that this has taken up a lot of my time over the last year.

Q57 Chair: I have no doubt about that. How will you make sure that you can cajole other Government Departments into cooperating with you in the same way as the AJTC has a crossDepartmental view at the moment?

Jonathan Djanogly: I would say that we can do it rather better than the AJTC. Not only that, I would say that we have been doing it rather better than the AJTC. I could not give you the number of meetings, but we are talking about maybe a dozen meetings that I have had over the last year with Ministers like Chris Grayling or Damian Green to discuss how they can make better decisions in the first place within their Departments so that fewer cases have to go to tribunals.

If you look at Immigration-we can get you some figures perhaps-we have had some great successes in reducing the number. We are winning 60% of determinations, and the number of cases has started to come down. Again, if we look at Social Security, the productivity has increased, I think, 10% in the tribunals. Although the number of cases has been increasing, we are on top of it. Every month for the last 11 months we have had more disposals than cases coming into the system, so the overall numbers are now coming down. That is all through Government working together: me talking with other Ministers, and officials talking with other officials.2

Q58 Chair: So in all these efforts and achievements, AJTC has been completely otiose? It has made no contribution to these improvements?

Jonathan Djanogly: The AJTC has a very good networking structure. I would very much hope that, following their demise, we can retain the best of that.

Q59 Chair: What is your plan for retaining that?

Jonathan Djanogly: Officials have been meeting with AJTC, and we would look to set up stakeholder groupings that could retain the best of what AJTC had to offer.

Q60 Chair: You can give us an undertaking that those arrangements will be set out in detail before tabling any regulation to abolish AJTC?

Jonathan Djanogly: I can tell you that work has already started, both in terms of the Ministry looking at how we have continuity, and also in terms of the officials meeting with the AJTC.

Q61 Chair: This is a fasttrack legislative procedure. The AJTC was set up by primary legislation. This is a very serious decision you are making.

Jonathan Djanogly: Indeed.

Q62 Chair: One would hope that there would be something of a White Paper produced to set out the alternative arrangements, not just an assurance that there was work in progress.

Jonathan Djanogly: It would not be a negative order. We would have to go through a full SI procedure.

Q63 Chair: Yes, I appreciate that, but it is not primary legislation, which is what set this body up.

Jonathan Djanogly: No.

Q64 Chair: So will you be tabling a proposal, a White Paper or a discussion document, a consultation?

Jonathan Djanogly: I do not think there are proposals for a White Paper.

Q65 Chair: Could we invite you to do so?

Jonathan Djanogly: We will consider, Chairman, how best to approach this matter. We will certainly look at it.

Q66 Chair: How will the new arrangements take the end user into account? That seems to be a strong selling point of AJTC.

Jonathan Djanogly: The end user in terms of AJTC reporting to Government and then Government somehow taking it back out to the end user?

Q67 Chair: It being the thorn in the flesh of Government Departments on behalf of the end user. Where is the thorn in the flesh on behalf of the end user going to be in the new arrangements?

Jonathan Djanogly: Regular discussions with stakeholders, particularly those who represent the voice of the user, have been taking place and will continue to take place through the formulation process, but ultimately in terms of policy formulation we do believe that it is the appropriate role of Government to do that rather than the AJTC.

Q68 Chair: So there will not be the independence of the present arrangements.

Jonathan Djanogly: When you say independence-

Q69 Chair: The independent voice on behalf of the end user.

Jonathan Djanogly: We are talking about a quango. When you talk about independence or accountability, I am not sure to what you are referring.

Q70 Chair: There are three tests for whether a quango should exist: whether it pursues a technical function-

Jonathan Djanogly: Yes.

Q71 Chair: -and AJTC certainly does that.

Jonathan Djanogly: It does not have a technical function particularly.

Q72 Chair: So anybody could be on the AJTC? You do not need to be an expert in administrative law?

Jonathan Djanogly: It might help generally in policy formulation, but in terms of providing technical assistance to the MoJ, it does not have that role in practice, no. I think it technically does under its statutory constitution, but in practice it does not.

Q73 Chair: Yes. The justification for keeping the Civil Justice Council, for example, is that it performs a technical function.

Jonathan Djanogly: Absolutely. Very much so.

Q74 Chair: So why is the sauce for the goose not sauce for the gander?

Jonathan Djanogly: Why does not AJTC work in terms of technical function? Because it has never evolved with that role.

Q75 Chair: I think they would dispute that. I think they are full of technical experts and academics and practitioners who deal in administrative law.

Jonathan Djanogly: Let us take the CJC as an example. I would see that as having a very important role in terms of providing, if you like, the oil between the Government and the judiciary. When you have primary legislation, and we have to look at how it will apply in the court, what sort of secondary legislation we need and how it would it be treated by the judiciary, the CJC has a very definite role. I have been looking to them to a great extent for advice and guidance. However, the AJTC does not have that role. They tend to opine on policy issues.

Q76 Chair: Is that not the nature of the subject?

Jonathan Djanogly: They have established that role, and I cannot say that some useful issues have not come out of what they have said. Of course that is the case.

Chair: Okay.

Jonathan Djanogly: It is a duplication.

Q77 Chair: I understand that is the point you are making. The third test is whether they investigate facts on an independent basis, and in the way that they scrutinise tribunals, the way they visit tribunals and assess the quality of tribunals, they provide independent oversight of the tribunals that take place. Who will do that?

Jonathan Djanogly: I would suggest that their independent oversight of tribunals has been very limited indeed. In respect of planning tribunals, they have a statutory role, but other than that it is a pretty hit and miss affair, I would suggest.

Q78 Greg Mulholland: To follow on from that, clearly we have two diametrically opposed views here as to whether this is the right way forward or not. Clearly the purpose of our inquiry is to try to work out, from those utterly opposing views, which is correct. I would like to bring your attention, Jonathan, to the comments of the Ombudsman, someone that clearly the Committee have worked very closely with and respect, as have you and the Department. The Ombudsman, in her submission, says that she is "bewildered and dismayed" by the proposed abolition of the AJTC. Specifically picking up on that point, which is a very strong point that has come through the evidence that we have had, she says, "However well meaning and diligent individual officials may be, the Ministry simply lacks the institutional history, capacity and technical knowledge to perform this role." Throughout a lot of the evidence we have had from a lot of experts in this field, there is concern that the Ministry simply does not have the technical capacity to be able to perform that role. Why do you think that it does?

Jonathan Djanogly: If you look at the formulation of HMCTS over the last year, the work that has gone in, the way it is working and the way that the judiciary is now working with the Tribunals Service, I would dispute that. I have personally been very impressed at the ability of officials to move forward what was a very complicated agenda. Obviously I listen to what the Ombudsman has to say. I think she came out only this week and said she wanted to get rid of the MP filter as well, so there are issues that will have to be looked at there. It is interesting to note that, if you were to go to the wider judiciary and suggest cancellation of the CJC, for instance, they would be riled, whereas really they do not have any problem with AJTC going at all.

Q79 Greg Mulholland: In terms of the independence, again the Ombudsman said that the Ministry was a Government Department and "by definition lacks the essential independence of judgment and freedom of action to challenge policy proposals as enjoyed by the AJTC." One of the issues here is that certainly as a Committee we are not hearing the strong evidence from the Ministry that that is not the case. How would you answer that?

Jonathan Djanogly: This goes to the heart of democratic Government. Do Ministers, backed up by nonpartisan officials, make policy, or do quangos? This is the scope. Your question goes to the heart, and I would say it is Ministers, backed up by an objective Civil Service, who are answerable to Committees such as your own, and indeed let me mention also the Justice Select Committee, who take a strong interest in such things.

Q80 Chair: I do not think there is any dispute that Ministers in the end decide policy. The question is whether there is some independent and external challenge, from an expert viewpoint, from a knowledgeable viewpoint, which is clearly necessary in the fields of civil justice and criminal justice but for some reason the Government does not consider necessary in the case of administrative justice?

Jonathan Djanogly: As I said, we are very keen to take on board the stakeholder element of AJTC and use it to the benefit of the Tribunals Service. That is very different from saying that there should be a statutory, policymaking-

Q81 Chair: It does not make policy. AJTC does not make policy. It advises the Government publicly and independently.

Jonathan Djanogly: Yes. Well, if you were to read, for instance, their latest annual report, it is very policy biased.

Q82 Chair: Maybe you do not like what they say.

Jonathan Djanogly: No, we take on board what they have to say. I have to say, in most cases our agendas tie in very closely-in fact in the significant majority of cases. You have mentioned already the need to get early correct decisions from Government Departments. That is an agenda item that they have been pushing very strongly, and that we are pushing very strongly too. Help me out, Anna-what other sorts of policy issues?

Anna Deignan: I think the Getting it Right First Time agenda is a key part of the AJTC’s work, and it is something we are working very closely with them on. Getting decisions right at the point of entry to the system is essential for everyone. It makes the system swifter, more cost-efficient, and also more accessible to users, who are using a sometimes complex administrative justice system. Some of the areas that we are looking at, building on the AJTC’s work, include for example Jobcentre Plus carrying out a pilot to proactively contact customers and explain their decisions, and perhaps provide more information if they need it. That has led to a 15% reduction in cases. That is 16,000 people who might have ended up in formal tribunals who have not. We are doing a lot of work in these areas particularly, as the Minister says, on the Right First Time agenda.

Jonathan Djanogly: Let me add to that building links with devolved administrations, the same agenda, and ongoing process of tribunal reform. I have mentioned HMCTS but there is a continuing agenda there that is shared between us. On supporting the Tribunal Procedure Committee on reworking rules-again, a shared agenda between us. Most of what we do is a shared agenda.

Q83 Chair: Can we just press you on the capacity your Department has, and this point raised by our previous witnesses about the shortage and high turnover of staff in the Administrative Justice Directorate, if that is what it is called? Is it a Directorate?

Anna Deignan: It is the Access to Justice Directorate.

Q84 Chair: Access to Justice. Well, we are very glad that some emphasis is being put on administrative justice in the Department.

Anna Deignan: Indeed.

Q85 Chair: I gather you are the first ever of your-

Anna Deignan: Indeed. I am the first to have an established team dedicated to administrative justice.

Q86 Chair: How many staff do you have?

Anna Deignan: I have 12 staff.

Q87 Chair: 12 staff. How stable is your staff recently? The suggestion has been made that there is high turnover.

Anna Deignan: There is currently a change programme under way in the Ministry of Justice to drive through some headcount reductions, so there is a turnover in staff. However, all staff will be replaced by the end of the year, and our core expertise will remain.

Q88 Chair: Will you be taking on some of the people from the AJTC?

Anna Deignan: We will consider that. There are eight fulltime civil servants currently with the AJTC. They will be placed in the redeployment pool, and we will consider where the most appropriate place to allocate them is.

Jonathan Djanogly: They will come over.

Anna Deignan: They will come over, yes.

Q89 Chair: But not necessarily into your Department?

Anna Deignan: We will consider that. Every redeployment decision is taken on its individual merits.

Greg Mulholland: May I move on to a follow-up point on expenditure?

Chair: Yes.

Q90 Greg Mulholland: Jonathan, a key issue I want to raise with you is clearly this extraordinary discrepancy we have in terms of the cost saving. If I can pick up directly on that point with you, Anna, I have had an estimate in our written evidence that, of the approximately £1,000,000 that the AJTC currently costs, £400,000 is actually staff in the Ministry or devolved staff. That is a huge proportion-approximately 40% of the costs. You have just said that those people will all be redeployed. The savings to be made already, then, seem to be £600,000, which is not a huge amount and certainly nothing like the extraordinary £4 million figure, Jonathan, that has been there. The AJTC are baffled by it, and we ourselves do not understand it.

Jonathan Djanogly: The AJTC has a budget allocation of £1,318,000 for 201011. As has been said, staff will be coming over, but that does not necessarily mean that they will be coming over into that particular team. They may be redeployed.

Q91 Greg Mulholland: But unless they are made redundant, there is no saving to the taxpayer, and that is what this is about.

Jonathan Djanogly: It has to be put into the context of overall savings in the Department. Overall the Department is getting rid of some 15,000 people.

Q92 Greg Mulholland: If they are being redeployed, that means passing it on to another Department, so actually not a saving to the taxpayer.

Jonathan Djanogly: No. It depends whether they fit into the other 15,000, or whether they are given other jobs.

Q93 Chair: Is there no increase in the number of personnel on administrative justice in your Department?

Jonathan Djanogly: The proposal is to have a team of 12.

Q94 Chair: That is a proposal?

Jonathan Djanogly: We have a team of 12.

Anna Deignan: No, we have a team of 12, and there will be increases before the end of the year. We have something called the Policy Plan, in which we have all of our policy priorities listed, and resources allocated to that. That has just been agreed with Ministers.

Q95 Chair: Presumably this increase in personnel is a response to the abolition of the AJTC and taking the function inhouse, yes?

Anna Deignan: We have now taken the time to have a look at the administrative justice landscape more broadly.

Q96 Chair: Is that a yes or a no?

Anna Deignan: We can see there is a lot of work that needs to be done in this area, so I am bringing in more staff to help with particular things like the Right First Time agenda.

Q97 Chair: Excellent, but the net saving is obviously less than the £1,300,000 headline figure, isn’t it? You will have to take over some of the functions.

Jonathan Djanogly: What we have agreed is to have a level of fluidity here. We will see to what extent we need extra capacity.

Q98 Chair: The £1,300,000 per year is a gross saving. It is not a net saving, is it?

Jonathan Djanogly: It is a gross saving.

Q99 Chair: Yes. So what would the net saving be? Perhaps you could write to us on that.

Jonathan Djanogly: We can, but it may be at such time as we have done the job interviews and looked at what we need, once we have decided where duplication is to be avoided.

Q100 Chair: But the £1,300,000 as a gross saving is a bit misleading as a figure, isn’t it? It could be misleading.

Jonathan Djanogly: It is a figure at the current time, but depending on how resources are redeployed, it could change, yes.

Q101 Greg Mulholland: Also, it is very important to clarify, Chair, if the £400,000 staff costs of that are being redeployed, then it may be a saving to the Ministry of Justice, but it is not a saving to the taxpayer. That is correct?

Jonathan Djanogly: That could be correct, yes.

Q102 Greg Mulholland: If they are being redeployed, it must be correct.

Anna Deignan: Just to clarify, we will not know that until we have worked through our whole Policy Plan and decided where resources need to be allocated. There may end up being redundancies in various areas, so we cannot yet take that view, but we will write to you.

Q103 Greg Mulholland: My final question, Chair, if I may, is just to say that a key challenge coming from the people who obviously do not agree with this decision is to say that it could end up costing the taxpayer more money. Can you assure us that is not the case?

Jonathan Djanogly: I cannot see how it would cost the taxpayer more money. It could only be less.

Q104 Greg Mulholland: And have you fully addressed and answered all those arguments, and written to the professors who have suggested it might?

Jonathan Djanogly: I have written to those who have written to me, yes.

Q105 Greg Mulholland: Could you share that letter with us, if you have not already done so?

Jonathan Djanogly: I am not sure I can share private correspondence, but I can certainly address the point that you have made.

Greg Mulholland: It is clearly not private correspondence, because we have copies of their letters here. It would be useful to have your response.

Q106 Chair: We can have it under a Freedom of Information request, if necessary. But I am sure you will give it to us.

Jonathan Djanogly: We will certainly address the issue.

Alun Cairns: Chairman, my question does not relate to the cost. Do you want me to pursue it? Does someone else have something related to cost?

Q107 Charlie Elphicke: I have a quick question on the cost. Mr Djanogly, this is a lot of hassle to save half a million quid, which is what it will end up being. Is this not just deckchair shuffling?

Jonathan Djanogly: There seems to be a possibility of a presumption that this is just about saving money. It is actually not. We think that Government are the people who should be properly creating policy in this area.

Q108 Charlie Elphicke: So you would say it is about transparency and accountability?

Jonathan Djanogly: Indeed it is.

Q109 Charlie Elphicke: The agenda promoted originally by Mr Thomas, as I recall.

Jonathan Djanogly: Indeed it is.

Q110 Alun Cairns: This does tie in with my question, Chair, if that is okay. So who then would be the champion of some sort of administrative failure, or maybe the resource allocation, if there are issues surrounding resource allocation, in relation to the various tribunals? For example, you highlighted the planning and time limits that have been taking place, and that is a question that we pursued earlier.

Jonathan Djanogly: Yes.

Q111 Alun Cairns: DWP came from Mr Thomas, and you rightly highlighted that there is work going on on that, as well as asylum and immigration. You mentioned that you had met Damian Green, the Minister responsible there. Is it not the case, however, that those are hot topics? There is a lot of political attention around those. What about the areas around mental health and SENDIST? For example, there is already a sixmonth delay in a SENDIST appeal, something I have highlighted with you in the past. It is my job as an MP to highlight that, but who will be the champion for the service user?

Jonathan Djanogly: Me. Let me tell you that SEN is one of the worst examples we have at the moment. We have about 35 tribunals, so I cannot remember all the statistics for all of them, but off the top of my head, about 80% of appeals are being won at the moment on SEN tribunals, whereas if you take Immigration, over 60% are being lost.3 That is a very good pointer, to me, that SEN needs a lot of work, which is why in recent weeks I can tell you I have been meeting with quite a lot of the people involved in SENs, and I have been in discussions with Education to improve what I think is a poor Tribunals Service.

Q112 Alun Cairns: There is a Green Paper coming out-

Jonathan Djanogly: I am sorry. When I say poor, it is not a poor Tribunals Service; we are getting it wrong in terms of too many appeals being made in the first place.

Q113 Alun Cairns: That is right. I think there is a Green Paper coming forward in that area. But it is the time delay that I am getting at. There has been a sixmonth delay for a considerable period of time, and if you are a sixyearold child, a sixmonth delay has a huge impact on the development of that child. So who will be the champion?

Jonathan Djanogly: This is something that should be dealt with by the Department, with an answerable Minister. I am happy to answer to you today on the matter. I can tell you that it is something I am very concerned about and that we are addressing. It is a historic problem, by the way.

Alun Cairns: Absolutely.

Jonathan Djanogly: It mainly relates to the fact that local authorities are not taking-

Q114 Chair: They use it as a cost control measure, don’t they?

Jonathan Djanogly: I think that is true in many cases.

Alun Cairns: Yes, they do.

Q115 Chair: Shall we move on?

Jonathan Djanogly: Can I add one other aspect to that, though? Another important aspect that is crosscutting is that, when we are talking about cases being determined earlier and better, it is not just about Government Departments making better, earlier decisions. It is also about people having alternative venues, which is why we are very keen and we have a whole policy agenda to promote ADR. You mentioned, for instance, SEN. We are looking at it in terms of employment tribunals and a whole variety of other tribunals to get people to go to mediation so that they do not even need to go to tribunals in the first place. That is a whole significant agenda we are looking at.

Q116 Alun Cairns: There is the accusation from the service user that the mediation is yet another delay to the process, and that is why there needs to be a champion.

Jonathan Djanogly: That is a fair point, which is why we are generally looking now at mediation assessment, rather than forced mediation. This is a whole policy agenda that we are pushing in many different ways, and across the Court Service. This is a very good example of how bringing together court process and tribunal process is important, and that is another reason why it should be done through the MoJ.

Chair: Mr Heyes, I apologise for having trespassed on some of your questions.

Q117 David Heyes: It has been covered to some extent, Chair, but a couple of points: what has been established in the answers so far is that, potentially just a few months away from this major change, you still do not know what your overall resource requirement will be. You still do not know what the staffing numbers or staffing need will be. We know from previous evidence we have had that there is the serious risk of the loss of a large bank of expertise that has been working in this area for many years. It is all very worrying, isn’t it, and uncertain? The question really is - how are you going to deal with the transition? Will you need to pay consultants? Will you need to bring external support and advice to bear on this?

Jonathan Djanogly: There are two points. Firstly, we cannot preempt AJTC’s abolition. It is still going through the House.

Q118 Chair: It is Government policy. You should be planning for it.

Jonathan Djanogly: We are planning for it, but at the same time it is a work in progress for us.

Q119 David Heyes: You said earlier, Minister, "following their demise". That suggests you have made up your mind already.

Jonathan Djanogly: That is a conditional demise, isn’t it? I would not want to preempt Parliament. Secondly, and importantly, it is taking AJTC in isolation, whereas what I hope I have been making out today is that we are not coming at this from fresh. We are not just starting: "Oh, let us do what AJTC does." Firstly, most of what we do is duplicating what they do, and secondly, this is a policy area that we as a Department, I as a Minister, have been spending a lot of time on over the last year. It is not a "where do we start from?"

Q120 Kelvin Hopkins: This is really about control. It is not about money at all. It seems to me to have the flavour of Blair at his peak, when they wanted to draw as much power into central Government as possible. The idea that Ministers can be the champion of users, our constituents, when actually they are appealing against decisions made by the very Departments that Ministers represent and lead, is incredible. There is a conflict of interest there. The whole idea of tribunals is that they are independent. Their lobbying body, if you like, is the Council, and they must retain that independence to make sure that our constituents have the right decision made.

Jonathan Djanogly: It is a good constitutional point, but I would say it should have been answered by the policy that we have been adopting, which is to take tribunals away from the Ministries that have been making the decisions, put them within the MoJ, put them within the combined management structure of HMCTS, with a Minister, ultimately the Secretary of State, the Justice Secretary, who is of course duty bound constitutionally to represent the interests of the judiciary. I would say that is a much stronger constitutional position than doing things through the AJTC.

Q121 Kelvin Hopkins: But the tribunals in this scenario would become pussycats under the control of Departments, rather than independent bodies. The members of tribunals would be more worried about what the Department thinks than about what our constituents think.

Jonathan Djanogly: The constitutional structure that we are moving to through HMCTS is of course putting tribunals in the same position as courts. I do not think anyone would say that the judiciary-and of course the tribunals are now part of the judiciary-is subject to the whims of politicians, and that is certainly not what we are aiming to have.

Q122 Kelvin Hopkins: But the judiciary is independent. Part of how our unitary system of government works is that we have checks and balances, and we have to have a degree of independence. The more you draw them into Government Departments, the less there is a check and balance, the more power central Government has, and the less justice will be seen to be carried out.

Jonathan Djanogly: I would respectfully disagree. I think taking the tribunals out of the specific Departments and putting them into the MoJ, subject to the Lord Chancellor, gives them more independence constitutionally.

Q123 Kelvin Hopkins: If I could just follow the theme, weakening tribunals, as I think it will, as the object is-and Government Departments, notably the Home Office-

Jonathan Djanogly: How will tribunals be weaker?

Q124 Kelvin Hopkins: If they do not have an organisation that is independent and can publicly represent them, in a sense, as the Council does, but they are represented by a Government Department, effectively, we see tribunals become weaker and the whole system becomes weaker. Government Departments, notably the Home Office, do not like tribunals. I am sure others have come across this. In immigration cases where they get a decision that goes against them, it takes months to get them to take action on that decision, because they do not like the decision. They do not like tribunals. They are a nuisance.

Jonathan Djanogly: Sorry, who thinks tribunals are a nuisance?

Q125 Kelvin Hopkins: The Home Office. My experience of Home Office, when decisions go against them on immigration cases, is that they are irritated by the decision and they drag their feet on implementing what the tribunal is recommending. Anyway, let us assume that the tribunal system becomes weaker. Then there are more bad decisions. We will have queues a mile long outside our surgeries, coming to complain to us that people have been mistreated, badly treated. The civil servants who make the decisions will have less pressure on them. Therefore there will be more bad decisions, more rough justice, more people coming to our surgeries and more problems for MPs, instead of having a tribunal that is fair and independent, making good recommendations. Then we can say to our constituents, "You have had the decision; unfortunately it went against you and there is nothing more we can do." At least the system is fair. The drift looks to me as if it is taking power into Departments and weakening the whole tribunal system. Certainly in employment law we have already had Ministers making speeches saying that they want to weaken tribunals in relation to employment law, in particular.

Jonathan Djanogly: Yes. I have tried to explain how, over the last year following the creation of HMCTS, tribunals have become stronger. Their management has become integrated with the courts management. Their judges have been integrated with the courts judges. Common standards across both services have improved. I would say that the changes that have taken place in this area over the last year have made tribunals much stronger. The AJTC itself is a NDPB. It is not a tribunal or any other form of judicial body.

Q126 Kelvin Hopkins: But it has a degree of independence.

Jonathan Djanogly: The proof of the pudding is that, if you go through in the last year what tribunals have been doing, we have seen productivity improve by, I believe, 10% in the last year. There are significant numbers of cases, so the challenge has been there. If we take Social Security, for instance, the number of appeals has gone up by 55% over the last five years, and yet productivity has gone up, and we have the caseload going down at the moment because we have significantly increased the number of judges and medical members. This is an area that we are on top of, and the figures are moving in the right direction. I think it is a success story. I would say it is the reverse of what you are suggesting could happen.4

Anna Deignan: One thing I would like to talk about is the role that we have in central Government, and the opportunity we have to influence those decisionmaking Departments. You picked on two there in particular. The Minister referred to dispute resolution. For example in employment tribunals, we are working there on a pilot of judicial mediation, so a judge helps parties reach a settlement without a formal hearing. That is in everybody’s interests.

Jonathan Djanogly: All cases to go to ACAS.

Anna Deignan: Indeed. You also mentioned immigration decisions. Working very closely with the Department for Work and Pensions and UKBA on benefits and immigration decisions, we are looking at what we call reconsiderations. That is an internal review that provides the Department with an opportunity to look afresh at their decision, perhaps with new evidence, before a formal appeal is lodged. Because we are in the heart of the machinery, we are able to have that dialogue and influence.

Q127 Kelvin Hopkins: I suggest that with a judge making a decision on their own, without wing members, we would get more rough justice and more harsh treatment about decisions.

Jonathan Djanogly: This is being consulted on at the moment, and the Government will have to take a view on this. What I can tell you is that the MoJ has been working very closely with BIS on this. The consultation document that went out was jointly put out by me and Ed Davey. That is a very good example, Chairman, of how Justice is very keen to work with other Government Departments on policy areas.

Kelvin Hopkins: I have had enough, Chairman.

Chair: Thank you, Mr Hopkins.

Q128 Charlie Elphicke: Just to take you back to the issue of productivity, you have been saying that there have been some productivity improvements of recent times. How much of those improvements is due to the work of the Council?

Jonathan Djanogly: None of them. They are managementled productivity improvements.

Q129 Charlie Elphicke: Has the work of the Council helped to make any savings, or indeed helped users to avoid injustice and the other things that they do? Are you aware of any particular numbers?

Jonathan Djanogly: Generally the latter, which is why it is hard to attribute numbers.

Q130 Charlie Elphicke: The other thing that I wonder is: why are there so many tribunals and so many appeals? Shouldn’t there be less of both?

Jonathan Djanogly: That is an interesting question, and it would depend on the circumstances. For instance, normally speaking, if the number of appeals goes up, I would want to know what has gone wrong from the Government Department. Has their management changed? Have they started doing something wrong? However, if Government policy has changed such that the underlying law has changed, which means that you will see a spike in appeals, that again could be a valid reason. You cannot necessarily say that an increase in appeals is related to that Government Department having done wrong. You would have to look at the underlying reasons.

Q131 Charlie Elphicke: Let me give you an example. My constituents in Dover feel very passionately about immigration. They feel the Immigration Tribunal should be got rid of, and we should fasttrack decisions and chuck people out who ought not to be here. That would be a policy decision, would it, to abolish that tribunal, and generally reduce the number of tribunals or things like that?

Jonathan Djanogly: That would be a policy decision. Policy has to take on board other such things, such as the ECHR and various other things. But yes, it would be a policy decision, indeed, on which one would consult.

Q132 Charlie Elphicke: Finally, and we have touched on this issue, you say this is not about the money but about accountability.

Jonathan Djanogly: The money issue is there. The CJC costs £300,000, and we have this in the budget as £1,300,000. Let us say that could be different. However, there are certainly money aspects.

Q133 Charlie Elphicke: There are money aspects, but your case was that the overriding issue is one of accountability.

Jonathan Djanogly: And policymaking. Policy and accountability, yes.

Q134 Charlie Elphicke: And you, as a Minister, are the policymaker and the one who is accountable. Do you therefore see yourself, if you like, as the user of the tribunal system’s representative in the Government, rather than the Government’s representative to the Tribunals Service?

Jonathan Djanogly: The Secretary of State has a statutory duty to protect the judiciary. I am not sure of the exact wording. That is very much at the forefront of our thinking. But it is also to provide an effective appeals process at the lowest cost possible to the taxpayer.

Q135 Chair: Can you have one more go at this, Minister? I still do not quite understand why it is necessary to have a Civil and a Criminal Justice Council, a council for each of those subject areas, but not for administrative justice.

Jonathan Djanogly: There is a Family Justice one as well. There is a procedure committee-I forget the exact name of it, but it deals with procedure, so there is the equivalent, in effect.

Q136 Chair: But that is not an independent body, is it? It does not publish independent reports. It is not a statutory body, so it is not an equivalent to the Criminal Justice Council or the Civil Justice Council.

Jonathan Djanogly: I will have to come back to you on that.

Q137 Chair: If you could, I would be very grateful. Also, of course, there are some tribunals that are not in the Courts and Tribunals Service, like education tribunals. You have talked a bit about SEN provision, for example, and SEN appeals. How will MoJ supervise those in the same framework in the way that AJTC does now?

Jonathan Djanogly: I would not say that we would do it any worse than AJTC. You have mentioned, for instance, employment. Employment is technically BIS. I have been heavily engaged with BIS, for instance-more engaged than the AJTC has been, I would suggest.

Q138 Chair: The Master of the Rolls suggested last week that maybe the Civil Justice Council should take on some aspects of AJTC’s work. What is your reaction to that suggestion? Is that something you have considered?

Jonathan Djanogly: I thought the judiciary generally were not keen on that happening.

Anna Deignan: They were not keen on the Civil Justice Council being included in the Public Bodies Bill.

Jonathan Djanogly: Right. But if there are specific aspects that could be taken on board, we are prepared to hear what he has to say. I do not know, Chairman.

Q139 Chair: The judiciary were not keen to have the AJTC in the Public-

Anna Deignan: Sorry. The judiciary have concerns about the Civil Justice Council being included in the Public Bodies Bill.

Q140 Chair: But I think that the Master of the Rolls said last week that the Civil Justice Council should take over some aspects of AJTC to ensure that there is that independent oversight. Is that something you would consider?

Anna Deignan: Indeed. I was at the event. It was the AJTC conference, and the Master of the Rolls did indeed indicate that, and that is something we will indeed consider.

Jonathan Djanogly: Yes.

Q141 Charlie Elphicke: It does not seem to be just this Council. There seems to be a Civil Justice Council, a Criminal Justice Council, and a Family Justice Council.

Jonathan Djanogly: Yes.

Q142 Charlie Elphicke: No doubt there is a whole load of other Councils. Why are there so many quangos? Why are they not all merged or reduced and reorganised?

Jonathan Djanogly: We are looking at that issue too. For instance, the secretariat of the CJC will be merged with the secretariat of the Family Justice Council. Although the CJC costs, I think, about £300,000 per year-5

Anna Deignan: That is right.

Jonathan Djanogly: -that will come down once we have merged the secretariats. We are looking at other things as well.

Q143 Chair: Has the Government consulted the Senior President of Tribunals, Mr Robert Carnwath, on the future of the AJTC?

Jonathan Djanogly: I have certainly spoken about it with him. Whether I have sent him a letter-of course this was mooted over a year ago, so I have written a lot of letters to a lot of people.

Anna Deignan: The Senior President of Tribunals did respond to the consultation on the Public Bodies Bill.

Q144 Chair: What is his view?

Anna Deignan: He has concerns about some of the functions that the AJTC perform, and our ability to take them on. The main issue is the independence issue, which we have covered a lot today.

Q145 Chair: Is he in favour of the abolition, or is he expressing concerns about it?

Anna Deignan: He is concerned that the independent overview must be guarded. That is his priority.

Q146 Chair: So he is against the abolition of the AJTC?

Anna Deignan: Trying to recall the tone of his letter, I think that is probably a fair reflection.

Q147 Chair: Thank you. I would just close by saying that I have absolutely no doubt, Minister, of your sincerity in wanting to be the champion of the end user and to be the independent voice accountable to Parliament in favour of administrative justice and improvement in the system. You as an individual might be very capable of doing it, but depending on Ministers, who come and go, it is not the most reliable constitutional way of overseeing what is a very large and expensive area of Government policy.

Jonathan Djanogly: The Justice Select Committee have this area within their sights as well, of course.

Q148 Chair: Have they expressed a view on this matter?

Jonathan Djanogly: I do not know. You might like to ask them.

Q149 Chair: They may be looking at our Report with interest. You have been very robust, and very straightforward, and very clear in your view. Minister, Anna Deignan, thank you very much indeed for your testimony.

Anna Deignan: Thank you.

Jonathan Djanogly: Thank you.