Public Administration CommitteeSupplementary written evidence submitted by Ministry of Justice (OAJ 09)

Administrative Justice and Tribunals Council

I am writing following the evidence session, on 22 November, about the possible publication of the proposals for the oversight of administrative justice and the net savings that might be achieved from the proposed abolition of the Administrative Justice and Tribunals Council (AJTC).

Transition from AJTC

The Committee asked for further information about how I intend to “retain the best of what the AJTC has to offer”, and about the timescale for this.

The department is still finalising its longer term plans for administrative justice, through discussions with a range of stakeholders including senior judiciary, the AJTC and others. The views of this Committee will also inform this. As part of this, consideration will be given to the best mechanisms for engaging with stakeholders and drawing on expertise. As I indicated when I met the Committee, and as Lord McNally made clear in the debate on the Public Bodies Bill on 23 November, we propose to establish a group of administrative justice experts and key stakeholders – particularly those who represent the views of users. In practice, this will very likely include some people who are currently AJTC members, as well as others, such as representatives of advice agencies and key government departments. Such a group will provide a valuable forum for sharing information and best practice, and will be used to test policy ideas, and initially, to help prioritise the administrative justice work programme.

The ongoing discussions to inform longer term plans will also include whether the department should publish any policy papers, or as was suggested in the debate in the Lords, whether regular published reports would be valuable.

When I gave evidence, on 22 November, the Committee asked specifically whether I intended to publish a White Paper or similar document that would set out the proposals for the oversight of administrative justice if the AJTC is abolished.

I can inform the Committee that a great deal of work is already underway in developing a strategy and programme of work with regard to the oversight of administrative justice. This is being informed by the recommendations in the AJTC’s recent reports and ongoing constructive dialogue with stakeholders including the AJTC.

I do not want to pre-empt outcome of these discussions and this planning work. I would very much welcome the opportunity to consider the Committee’s report before I decide on the best way to share the government’s thinking and engage those with an interest. Once I have considered the report and taken this view, I will write again to the Committee. I anticipate that we will be in a position to share more detailed plans for our future strategy with all relevant stakeholders early next year.

Net Savings

More recent estimates suggest that on average MoJ will save approximately £1.4 million per annum from the closure of AJTC’s operations over the next ten years. This is based on a 201011 budget of £1.2 million, uprated for inflation and adjusted for the previous years under-spend.

I acknowledge that the AJTC have challenged this figure and have adopted the view that the actual saving that will be realised from the AJTC’s abolition is likely to be in the order of £0.9 million per year. AJTC’s estimate is lower than MoJ’s because it uses a different base year to estimate the savings.

I can assure the Committee that if AJTC staff are redeployed within the Ministry of Justice this will not incur additional staff costs nor impact on the level of savings realised.

One factor that might reduce the amount of savings achieved is the deferral of AJTC’s closure date. Closure, which we expected to take place by March 2012, is now unlikely to take place before summer 2012 thus reducing the level of saving in 201213.

Given the uncertainties surrounding the date of closure and the number of staff who will be redeployed, it is difficult, at this time, to estimate the net savings that will be achieved. However, I have no doubt that significant savings to the taxpayer will be realised.

I will be able to update the Committee with further information about the net savings realised from the proposed abolition of the AJTC as more information becomes available.

Justice Councils

You also asked for a note on the various councils covering the different parts of the civil justice system. This is attached at Annex A.

These bodies were established at different times and for different reasons, as part of wider changes in each area of the civil justice system. Their individual development to a large extent determined their role and constitution, and explains current differences.

The CJC was established following Lord Woolf’s review of the civil justice system. In his first report on the reform of the civil justice system in [1995], Lord Woolf recommended the creation of a statutory, judicially-led council to lead the reforms, and to be responsible for ongoing review of the system. In part, it was based on models from other commonwealth jurisdictions which he had observed. It continues today to provide judicial leadership in this part of the justice system.

The non-statutory Family Justice Council was established slightly later in 2004, in response to a need to facilitate better cross-agency working. You will be aware that as part of the recently published Family Justice Review, it was recommended that the future role of the FJC be considered in light of future plans for improved leadership and management of the family justice system. The Government is currently considering the Review’s recommendations and will be publishing a response in due course.

The AJTC, the successor to the Council on Tribunals, was created by the Tribunals Courts and Enforcement Act 2007, which also provided for the creation of the unified tribunals structure we now have, as well as the establishment of the Tribunals Service, now Her Majesty’s Courts and Tribunals Service. This significant phase of tribunal reform is now well-embedded.

Each part of the justice system also has a procedure rules committee. I undertook to give the Committee further information about these. The Tribunal Procedure Committee (TPC) is an advisory Non-departmental Public Body (NDPB), as are the other rule committees covering Civil and Family Law. It was established in May 2008 under Schedule 5 to the Tribunals, Courts and Enforcement Act 2007 (the Act). Its purpose is to make Rules governing the practice and procedure in the First-tier Tribunal and Upper Tribunal.

The membership of the TPC is governed by Part 2 of Schedule 5 to the TCE Act. Appointments to the committee are made by the Lord Chancellor, the Lord Chief Justice of England and Wales, and the Lord President of the Court of Session. Appointments made by the Lord Chancellor, as ministerial appointments, are regulated by the Office of the Commissioner for Public Appointments (OCPA). Currently, one of the members of the TPC is nominated by the Administrative Justice and Tribunals Council (AJTC). Consideration is being given to how best to provide for the voice of the tribunal user to be heard on the committee in the absence of an AJTC nominee.

The TPC has produced its first annual report (2010-11), which can be found on its web page: http://www.justice.gov.uk/about/moj/advisory-groups/tribunal-procedure-committee.htm

Finally, copies of the correspondence you requested are enclosed.

Annex A

ROLE OF & THE CIVIL JUSTICE COUNCIL

Background

The Civil Justice Council (CJC) is an independent Advisory Public Body, funded by the MOJ. It was established under the Civil Procedure Act 1997 with responsibility for overseeing and co-ordinating the modernisation of the civil justice system. Since 1 October 2010 it has been sponsored by the Judicial Office, the body of civil servants set up to support the Judiciary following the Constitutional Reform Act 2005.

Role

The CJC provides advice to the Secretary of State, the Judiciary and the Civil Procedure Rule Committee on the effectiveness of aspects of the civil justice system, and make recommendations to test, review or conduct research into specific areas.

The CJC meets at least three times a year and agrees formal responses to consultation papers and well as working with government on the detail of policy design (eg most recently on the detail of Lord Justice Jackson’s reforms to the cost of civil litigation which the department is taking forward). It also plays a mediating role, bringing different sides together as demonstrated by its role in mediating agreement to the Road Traffic Accident protocol for low value personal injury claims, and the fixed costs within it.

Members appointed to serve on the CJC follow the code of practice of the Office of the Commissioner for Public Appointments (OCPA) and are unpaid.

Membership of the CJC is made up from the following groups

The MR (who is the chair).

Members of the Judiciary.

Member of the legal professions.

Civil servants concerned with the administration of the courts.

Persons with experience in and knowledge of the lay advice sector.

Persons with experience and knowledge of consumer affairs.

Persons able to represent the interests of particular kinds of litigants (for example business or employees).

Executive Committee Members of the CJC are

The Master of The Rolls.

Alistair Kinley.

Deborah Prince.

HH Graham Jones.

John Pickering.

Peter Smith.

Abigail Plenty.

Funding of the Civil Justice Council

The Civil Justice Council is funded by the Ministry of Justice.

Its budget for 2011/12 is £68,000.

Administrative Justice and Tribunals Council

Background

The Administrative Justice and Tribunals Council (AJTC) is an Advisory Non Departmental Public Body funded by the MoJ. It was established by the Tribunals, Courts and Enforcement Act 2007. The Council was set up under the Tribunals, Courts and Enforcement Act 2007 with a role to keep under review the administrative justice system, to consider how it might be made more accessible, fair and efficient and to advise the Lord Chancellor, Ministers of the devolved administrations in Scotland and Wales and the Senior President of Tribunals accordingly.

Role

The AJTC, which cover England, Wales and Scotland, has certain statutory functions. Its key functions can be summarised as: keeping the overall administrative justice system and most tribunals and statutory inquiries under review; advising ministers on the development of the administrative justice system; putting forward proposals for changes and making proposals for research.

The Council meets monthly and produces reports on specific topics; responds to consultations and; monitors the Government’s legislative programme. Members also observe tribunal hearings.

Members, who are remunerated, are appointed to serve on the AJTC after an open and transparent recruitment process which complies with the Code of Practice of the Office of the Commissioner for Public Appointments.

Constitution

The membership of the Council is governed by Schedule 7 of the Tribunals, Courts and Enforcement Act 2007. The Council Comprises:

Richard Thomas CBE, Chairman.

Richard Henderson CB, Chairman of the Scottish Committee.

Professor Sir Adrian Webb, Chairman of the Welsh Committee.

Jodie Berg OBE.

Professor Alice Brown CBE.

Professor Andrew Coyle CMG.

Penny Letts OBE.

Bronwyn McKenna.

Dr Jonathan Spencer CB.

Brian Thompson.

Sukhvinder Kaur-Stubbs.

Professor Mary Seneviratne.

Ann Abraham.

The Scottish Committee

Richard Henderson CB, Chairman.

Professor Andrew Coyle CMG.

Annabel Fowles.

Michael Menlowe.

Michael Scanlan.

Ann Abraham.

Jim Martin.

The Welsh Committee

Professor Sir Adrian Webb, Chairman.

Bob Chapman.

Gareth Lewis.

Rhian Williams-Flew.

Peter Tyndall.

Ann Abraham.

Governance

The AJTC is sponsored by the Ministry of Justice.

The budget allocation for 201011 was £1.318 million.

Family Justice Council

Background

The Family Justice Council (FJC) is an independent non-statutory advisory body established in 2004. Its members have significant knowledge and experience of the family justice system. There are also 39 Local Family Justice Councils which aim to promote an inter-disciplinary approach to family justice locally.

Role

The FJC has the following core roles:

Promote an inter-disciplinary approach to family justice.

Provision of inter-disciplinary training.

Promote good practice.

Advise on reforms necessary for continuous improvement.

Membership

The FJC is chaired by the President of the Family Division.

The national Council of 30 members meets quarterly and includes expertise from the legal (judges, barristers, solicitors), medical (a paediatrician and a child psychiatrist) and social care (Cafcass representation and a Director of Children’s services) worlds.

Executive Committee Members of the FJC

Lord Justice Thorpe.

District Judge Nicholas Crichton.

Annabel Burns.

Malek Wan Daud.

Alison Russell QC.

Bridget Lindley.

Dr Elizabeth Gillett.

Nick Goodwin.

Beverley Sayers.

Its members include:

a family division high court judge;

a circuit judge;

a district judge (county courts);

a district judge (magistrates courts);

a lay magistrate;

a justices clerk;

two family barristers;

two family solicitors;

a family mediator;

a paediatrician;

a child mental health specialist;

a director of local authority children’s services;

an academic; and

a person appointed for their knowledge of family justice from a parent’s point of view.

In addition the Council has ex-officio representatives (who attend meetings where there is business which concerns them) from the following organisations:

Cafcass;

CAFCASS CYMRU;

the Children’s Commissioners for England and Wales;

the Ministry of Justice;

the Department for Children, Schools and Families (DCSF);

the Department of Health (DH);

the Foreign and Commonwealth Office (FCO);

the Home Office (HO);

the Welsh Assembly Government (WAG);

the Legal Services Commission (LSC);

Her Majesty’s Courts & Tribunals Service (HMCTS); and

the Association of Chief Police Officers (ACPO).

Governance

The national FJC has a non-paybill budget of £95k. The Local FJC training budget is £145k.

It is supported by the Judicial Office

Annex B

LETTER FROM JONATHAN DJANOGLY MP, PARLIAMENTARY UNDER-SECRETARY OF STATE,
MINISTRY OF JUSTICE TO DR JEFF KING

Review of the Ministry of Justice’s Arm’s Length Bodies

Abolition of the Administrative Justice and Tribunals Council

Thank you and your fellow academics for your letter of 10 October which also went to the Deputy Prime Minister, the Chancellor, and the Lord Chancellor, about the proposal to abolish the Administrative Justice and Tribunals Council (AJTC). I am replying as the Minister responsible for tribunals and administrative justice.

I understand your disappointment about the decision to abolish the AJTC, formally announced on 14 October, but I cannot agree that this decision could represent a serious setback for administrative justice or lead to greater expenditure.

The Government-wide review of public bodies has been underpinned by a principle that it is up to departments to carry out policy and this should not be duplicated elsewhere. In reviewing the Ministry of Justice’s public bodies, we looked at the functions those bodies undertook, whether the functions needed to continue, and if so, who should carry them out. As you will have seen, as part of review three tests were applied to each body to assess whether it, as a public body, remains the right delivery mechanism:

is the body needed in order to perform a technical function;

does the body need to be politically impartial; and

is the body needed to act independently in order in order to establish facts?

The AJTC did not meet any of the tests. Administrative Justice policy is the function of the Ministry of Justice, and the oversight and development of administrative justice should stay with the Department.

Regarding your points about tribunals, I am sure that you would agree that the tribunals system has come a very long way in recent years. We now have a well established unified tribunals service supporting the majority of tribunals. The AJTC has played an important role in helping in the creation of the Tribunals Service. Both the MoJ and the judiciary have a much clearer role in both the governance of the system and the development of policy, and stronger governance arrangements mean the review function is no longer needed.

I agree that the distinctive features of tribunals which make them accessible for users are important and I can assure you that the MoJ is committed to ensuring that the specialism and the unique and distinctive features of tribunals will be preserved. The Lord Chancellor, in announcing proposals to bring the tribunals judiciary under the overall leadership of the Lord Chief Justice said in a Written Ministerial Statement on 16 September, that our shared vision is to work towards a unified judiciary encompassing both courts and tribunals. This could be achieved, so far as England and Wales are concerned, by transferring the statutory powers of the Senior President of Tribunals to the Lord Chief Justice, and creating a new office of Head of Tribunals Justice with a statutory obligation to protect and develop the distinct and innovative features of the tribunals.

Turning to your concern that the MoJ is not presently able to perform the same functions as the AJTC, the M0J has in recent years given priority to reforms to the tribunals system. We are now developing a wider administrative justice capability, bringing administrative justice policy fully into MoJ. We will take the lead on coordinating redress policy across Government, facilitate development of more integrated and consistent dispute resolution systems, and will take a systemic view across the various means of tackling disputes and the roles of the different organisations that provide them (courts, tribunals, alternative dispute resolution, etc). I can assure you I do not intend that the work that the AJTC has done and is doing now should end up being shelved. My officials have committed to regular dialogue with AJTC membership and staff until the time the AJTC is wound up to ensure that its latest thinking on administrative justice issues is taken into account in MoJ’s policy work going forward.

In response to your comments about the AJTC providing good value for money, the Government is committed to making substantial reforms to its public bodies, increasing accountability and reducing numbers and cost. I would like to make it clear that where decisions to abolish bodies have been made, they do not reflect on the quality of the work the bodies have done. In relation to the AJTC, I believe that containing administrative justice policy within the Department will provide greater value for money.

December 2011

Prepared 7th March 2012