TRIBUNALS TRIBUNALS TRIBUNALS WINTER 2015/16 TRIBUNALS ......
2 reflections 9 prInciples in practice 16 Welsh devolution The former President of the Employment Revisited: Andrew Bano’s articles on the Proposed changes to the legal system Appeal Tribunal on four years of change. inquisitorial aspect of tribunals. in Wales pose particular challenges. Sir Brian Langstaff Paula Gray Edward Mitchell
4 judicial skills 12 prInciples in practice 20 iojt conference Previous Tribunals articles provide an The issue of judicial intervention when Sharing knowledge and experience with online ‘Essential Reading List’. litigants in person are on the increase. judicial trainers from 75 countries. David Bleiman and Stephen Hardy Paula Gray and Melanie Lewis Sheridan Greenland and Siobhan McGrath
6 data protection 15 book review 22 the SENIOR PRESIDENT Guidance for judicial office-holders on ‘A triumph’ – praise for an authoritative The transformation of tribunals the two Acts relating to information. work on immigration law. justice – ‘What makes us special’ Rebecca Lewis Julian Phillips Sir Ernest Ryder ...... Editorial
SKILLS articles now online
Welcome to the winter 2015 in person, sharing their knowledge to suggest issue of Tribunals. We are delighted to helpful approaches (page 12 ). include as a new regular feature for the journal, the Senior President of Julian Phillips reviews an authoritative work on Tribunals’ column, to which you are immigration law entitled ‘The Law and Practice invited to respond via your Chamber/Tribunal of Expulsion and Exclusion from the United president or directly via the details on page 22. Kingdom: Deportation, Removal, Exclusion and Deprivation of Citizenship’ (page 15). This issue also heralds the launch of Judicial Skills Framework Resources (available here). Edward Mitchell provides an overview of Welsh David Bleiman and Stephen Hardy provide an devolution (page 16 ), following a theme started in introduction to the scope and purpose of this winter 2014, when David Bleiman wrote about new online resource (page 4). tribunals in Scotland (see page 19 for proposals on devolution in Scottish Employment Tribunals). Mr Justice Langstaff, President of the Employment Appeal Tribunal until the end Highlighting relationships developed at training of December 2015, reflects on four years of events, Sheridan Greenland and Siobhan McGrath change (page 2). report on the 7th International Organization for Judicial Training Conference (page 20). Rebecca Lewis outlines issues affecting the judiciary concerning the Data Protection Act and The term of appointment of Leslie Cuthbert on the Freedom of Information Act (page 6). the editorial board came to an end in December 2015, and the board would like to wish him well Paula Gray revisits the theme of an inquisitorial – his insightful contributions and enthusiasm will approach, discussed in previous issues by Andrew be missed in equal measure. Bano (page 9). This leads into an article in Jeremy Cooper, Chairman of the Editorial Board. which Paula and Melanie Lewis engage with the challenges of ensuring a fair hearing to litigants e-mail: [email protected]
For some time, the Justices of the Supreme Lord Carnwath has been invited to speak at Court have encouraged the Judicial College to an Employment Appeal Tribunal event in include them in training programmes where March 2016, to talk about appeals to the Upper their expertise and experience could enhance and Tribunal. Lord Carnwath will also be speaking enrich the occasion. The College has responded to the General Regulatory Chamber in 2016. positively to this open invitation and a steady flow of Justices has been booked into this year’s Lady Hale delivered, at Bristol University in tribunals training programme. November, a Judicial College Academic Lecture on ‘Diversity and the Judiciary’. Lord Neuberger spoke at a recent Residential Property Tribunal training event on the topic Both Lady Hale and Lord Kerr have agreed to ‘Construction of Leases’. The event was filmed speak at Mental Health Tribunal training events and his presentation is available on the LMS.1 in 2016. Lord Neuberger indicated that he will be willing 1 https://judicialcollege.judiciary.gov.uk/mod/resource/view. to speak to the Chamber again on other topics. php?id=14560
1 ...... Reflections
From glut to famine and the impact of FEES
Sir Brian Langstaff assesses the changing face of the Employment Appeal Tribunal over his four-year term as President, during which the number of appeals dealt with dropped by half.
It has been a tale of two halves! As the end There are two significant reviews of fees of my (extended) term as President of the currently under way, and the Scottish Employment Appeal Tribunal (EAT) came after Government has proposed that they be abolished. four years on 31 December, I look back first Reasons for their unpopularity are clear: there to the beginning 20 months when there was is no other obvious candidate for a cliff-face an increasing appellate load. It was difficult to drop in receipts such as has occurred, with cope. We (it is we, as I had the full support of the the expectation of a sheer rise should they be judicial and administrative team, and it was our abolished – but how does one plan for an in policy) adjusted our procedures so we could keep between of which one knows nothing? our heads above water. During the ‘second half’ we pored over our The second half? In August 2013, there was a statistics to see how fees affected the quality cliff-face drop in the number of receipts of of appeals. Did they eliminate unmeritorious applications to appeal, following the introduction appeals, as many had predicted? The answer of fees for bringing such appeals; is a clear ‘no’. The percentage of and there has been a slight decline Did [fees] eliminate applications which succeed in since, probably a downstream whole or in part on appeal is almost consequence of the introduction of unmeritorious exactly the same as it was when fees at the same time in Employment appeals, as many no fees were imposed. What has Tribunals from which almost all of had predicted? changed, however, is the number of the appeals come. The Employment cases being brought, and what this Tribunals have a workload that is The answer is a means is that for every two ‘good’ numerically around 25% of what it clear ‘no’. appeals that were brought before the was. The number of appeals coming introduction of fees, there is now has dropped by just over half. Instead of one. It may give pause for thought that charging managing glut, we have been managing famine. fees has apparently had an impact upon access to justice, since it might be thought that it has Future of fees prevented half the appeals which should have One of the key roles of a President is to have succeeded being brought. a vision for the future. To achieve it needs planning. But it has been difficult to form Restructuring any clear vision – a bit like trying to take a How does one plan to provide justice in such photograph with a camera while the raindrops a climate? Possibly by a restructuring of the fall on the lens. Some things are certain, such as courts and tribunals to use less resources per further cutbacks in resources. Some are much case, while improving decision-making. It is less certain, such as whether fees will stay as they unclear how the employment courts might be are, whether they will reduce, whether they will reorganised to do this. The Law Society has be abolished, and if so whether in one part of the called for four tiers of employment cases; the UK alone, i.e. Scotland. President of Employment Tribunals envisages
2 ...... Reflections
an expansion of jurisdiction to include both authorities for judges to see, which has caught on employment and equalities more generally. Has too; closer links with the Employment Tribunals, the time now come for the Employment Appeal with employment judges invited every month, Tribunal to cease to operate in its present form nominated by their regional judges, to observe and to become more clearly that part of the the process. High Court which deals with the most serious employment matters as well as appeals from And some decisions of huge importance: our, tribunals? To have an original jurisdiction as well and my, core work. A particularly pleasant bonus as an appellate one? And while the EAT remains is the number of overseas judges who have sought a ‘reserved tribunal’ in Scotland, but has a ticket me out because I head up the EAT. Among for the departure lounge, what policy can easily them are Thokozile Masipa, a woman of deeply be made for the whole of Great Britain? The impressive quiet dignity who presided over the difficulty of shaping policy when there are these Oscar Pistorius trial, and the Presidents of the imponderables might seem frustrating; I have Industrial Court of Trinidad and Tobago, and of preferred to see it as challenging, and offering New South Wales (with whom I had the honour opportunity. of sharing a platform at UCL). More disappointing More disappointing is to have Final reflections presided over a decline in the use is to have presided Is there a rainbow at the end of of lay members – again, a policy over a decline the rainstorm which obscures of government. The consequential in the use of lay the lens? Perhaps. There are the increase in judges sitting alone, opportunities to realign the Appeal however, leaves the EAT more members . . . Tribunal within the court system; closely aligned to a superior court the remarkable cohesion of a than it was to a tribunal. A lot, therefore, of the wonderful staff who have made my time so much ‘extra time’ that I have played out as President easier than it might have been; a committed – since my term was extended for a year from cadre of judges; the support of lay members who 31 December 2014 – has been concerned with have been understanding of the reductions there where the future might place the Employment had to be in their work; the splendid facilities Tribunal. which we continue to enjoy at Fleetbank House.
Grand concepts In short, the Appeal Tribunal has been a Much of the work of both halves pales into satisfying place to work. There have been insignificance beside these grand concepts, difficult and challenging issues to resolve, almost though it is part of the stuff of regular judicial all endorsed by the Court of Appeal where that life: amended rules; a clearer concept of justice has proved important, and it has been both a as including not only ‘getting it right’ but doing fulfilling and enjoyable four years. I shall envy so within a reasonable time, at reasonable cost my successor. and (new to some people) without taking an unreasonable share of the courts’ resources away And as for the Chinese curse – to live in from other cases; a new practice direction; two interesting times – I think, on reflection, it has practice statements; the introduction of the been more of a blessing! ‘familiar authorities bundle’ – cases so often cited that it is unnecessary for litigants to chop Mr Justice Langstaff was succeeded as President down trees to photocopy them, since there is of the Employment Appeal Tribunal by Mrs Justice a bundle in every court; a culture of marking Simler on 1 January 2016.
3 ...... Judicial skills
Now online: a ‘reservoir of rapid INSPIRATION’
David Bleiman and Stephen Hardy announce a new skills resource that draws on articles published in Tribunals to provide a rich store of ideas and guidance.
In times of change, we fall as interpreters, litigants in person or back on our own resources. That The new judicial skills experts, including the theoretical applies as much for the system as resource is available underpinning of inquisitorial for the individual. For our courts at: www.judiciary.gov.uk/ hearings and the important tasks and tribunals, faced with providing ?p = 61323 of effective team-working, as well effective access to justice in the as decision-writing. Further, we most challenging environment, the skills and have, of course, referred to the Judicial Skills abilities of all of our judicial office-holders are and Abilities Framework 2014. This framework undoubtedly the key resources to work with. of judicial abilities and qualities is intended But equally, each of us as individuals, faced to identify the knowledge, skills, behaviours with new challenges such as ever more litigants and attitudes that the judiciary are expected to in person, redeployment to a new jurisdiction, demonstrate in performing their judicial role. sharing a hearing centre or grappling with new technology, can fall back on our own skills and The framework sets out the key competences abilities, those generic judgecraft skills of which of: the Tribunals journal has long been a leading Assimilating and clarifying information. exponent. Working with others. We have often come across colleagues who, Exercising judgement. tucked away at the back of a file or folder, retain a well-thumbed copy of an old article from Possessing and building knowledge. Tribunals which they continue to find a helpful Managing work efficiently. resource. But we have also met others who, when this was a printed publication, did not receive a Communicating effectively. copy or, as newly appointed members, found the back copies less accessible. Sound foundation All at first sight seem overwhelming, yet on a Now, with the launch of ‘Judicial Skills: An practical level provide a sound foundation for Essential Reading List for Tribunals’, all that has the delivery of justice. Thus the framework changed. provides an essential self-development aid to individuals. Accordingly, while the framework Back catalogue gives us the skeleton, the selected articles, We have compiled those key articles from arranged under each competence, provide the our back catalogue into a helpful reading list, flesh to the bones. with a précis of the content. Each article is also tagged to the relevant judicial skills which are To that end, this Essential Reading online engaged. For instance, the wealth of content resource promises to be an easy-to-use resource, from technical matters on burden of proof and which can be browsed repeatedly and trawled decision-making to more practical matters, such as required for specific ideas and guidance. We
4 ...... Judicial skills
remind new readers that all of these articles are Third, and finally, there is the emerging reform succinct – most can be scanned in five minutes programme. As expected, the Comprehensive and thoroughly digested in half an hour. There is Spending Review 2015 has given both courts nothing onerous here but an energising reservoir and tribunals a reducing current budget. of rapid inspiration and refresher learning or However, with £700 million provided for signposting. investment, the Lord Chief Justice and the SPT were able to express some optimism about the Compelling reasons future. This investment, they reported, will There are three compelling reasons to access and provide an improved, modern system of justice promote this new resource. which will maintain its world-class status.2
First, as the Senior President of Tribunals (SPT) Three limbs of reform reminds us in his foreword, the Judicial Skills The SPT has suggested that the reforms should and Abilities Framework 2014 brings together have three limbs: the creation of one system of a single set of skills and abilities providing clear justice, the development of one judiciary, and the expectations common to all jurisdictions1 and enhancement of access to specialist justice.3 The against which judicial office-holders concept of one judiciary is, as we are selected, trained, encouraged have seen, already grounded in the and appraised. A single standard . . . all tribunals generic skills and abilities framework – one skills framework for one judicial office- common to us all. The SPT aims for judiciary – provides a helpful holders will be all a framework that enables flexible basis to facilitate the more flexible deployment to maximise deployment which the system too aware of the opportunity and efficiency and requires. It also gives each of us, as recent and current facilitate those judges with individuals, a reference point for turbulence in the leadership responsibilities being able our own continuing professional caseload. to plan, allocate and distribute work development and a baseline for between judges; to plan future expertise and confidence in our recruitment; and to better generic skills, on which we can build when implement judicial training to improve skills and responding to new challenges. facilitate merit-based promotions.4 But it goes somewhat further and, despite resource and other Second, all tribunals judicial office-holders challenges, we should not underestimate the will be all too aware of the recent and current ambition of the reform programme. turbulence in the caseload. There is not the luxury of being able to settle into a single The reform programme is also about specialist jurisdiction and to count upon a steady stream justice which in the SPT’s own words means of work. Changes in the nature of the problems that reform is only part of the story. It must be and conflicts that individuals face in our society, complemented by quality that is a drive to ensure together with government policies that have that our judiciary is capable of recognising and an impact on the volume of claims and the applying good practice and innovating and extent of legal representation, have caused major developing their specialist knowledge.5 fluctuations in workloads. Again, this creates pressures on individuals just as much as on the Conclusion system. For example, fee-paid judiciary may Among potential innovations canvassed are: need to follow the work to fresh jurisdictions as a developing and using our specialist knowledge, matter of livelihood. Continued on page 8
5 ...... Data protection
Data and information: a guide in TWO acts
Rebecca Lewis highlights the differences between the two regimes that are concerned with the storage of information and their relevance to judges and judicial office-holders.
The Data Protection Act 1998 (DPA) and amended. For the sake of greater clarity, JOHs the Freedom of Information Act 2000 (FOIA) are data controllers for personal data which provide two separate regimes in respect of the they (either alone or jointly with other persons) provision of information to individuals. The determine the purpose for which, and the Acts are often spoken about interchangeably. manner in which, any personal data is or will be However, they serve different purposes. Therefore, processed. Judges may process personal data in this article aims to set out the relevance of each the exercise of their judicial functions and any to the judiciary in the day-to-day business of leadership responsibilities they have (including judging, without referring in detail to specific appointment, assignment disciplinary and other legislative provisions. such functions).
In any event, detailed guidance has Notably, the Freedom of information obligations been issued in respect of data judiciary is not The FOIA enables individuals to see protection matters by the Lord Chief what information is held by public Justice and the Senior President of listed as a public authorities (specified in the Act). Tribunals. It is available on the authority in the Applications must also be in writing 1 judicial intranet. Revised guidance FOIA. This (again, e-mail is fine) and no fee is was issued in September 2015, payable. alongside an executive summary, means that and all judicial office-holders information held Notably, the judiciary is not listed (JOHs) should be familiar with it. by the judiciary is as a public authority in the FOIA. not required to be This means that information held Data protection rights by the judiciary is not required to The DPA enables an individual to disclosed. be disclosed. However, the FOIA apply in writing (e-mail is fine) is applicable to information held in order to obtain a copy of all personal data by the Ministry of Justice and HM Courts and held by an individual or organisation that is Tribunals Service. It is in this way that most responsible for the data. They are entitled to JOHs will come into contact with the FOIA, and their personal data unless any of the exemptions will have to consider who holds the information. set out in the DPA apply. Individuals making the application are known as data subjects. The Information may be held by officials and judges. person or organisation holding the information is Judges must always be consulted in respect of known as the data controller. These applications judicial information but do not need to respond are known as subject access requests (SAR). A directly. Knowledge and Information Officers fee may be payable. The purpose of the SAR (KILOs) are members of staff trained to handle provisions is to enable individuals to know requests for information. When a request is what personal information is being held about received in respect of judicial information, they them and for what reason.2 It also enables will work with the relevant JOH to prepare a people to require incorrect information to be response.
6 ...... Data protection
Anybody can apply for information under the Instead, the Attorney-General relied on the FOIA. It does not matter what they want the power under section 53(2) of the FOIA and information for, and once provided it may be issued a certificate. The effect of the certificate used publicly. There is no power to require an would have been to prevent disclosure, despite applicant to give reasons for their request. the decision of the Upper Tribunal, cutting However, if there are justifiable grounds to across principles of constitutional law. believe the request is vexatious then this can be relied upon in declining to disclose. Moreover, if The Supreme Court, by a majority of 5:2, found an individual applies under the FOIA for their own that the certificate was invalid (albeit for different personal data (which often happens because there reasons, and there were limited circumstances is a fee to pay under the DPA but not the FOIA) where it would be open to issue a certificate). then there is an exemption as the DPA should be Full analysis of the case (at 74 pages long) is food applied. Equally, there are safeguards in respect for another article. It is not directly relevant to of the personal data of other people. Personal data the daily business of the judiciary under the contained in information that is to be disclosed FOIA, but is an interesting read. In particular, under the FOIA can be redacted. Lord Neuberger said of the Upper Tribunal that it:
If an individual is unhappy with ‘. . . is an independent court, a response to an application, they If an individual which is both an expert may complain to the Information is unhappy with tribunal and a superior court of Commissioner. Appeal from a response to an record, effectively with the same a decision of the Information status as the High Court . . .’ 5 Commissioner is to the First-tier application, they Tribunal (General Regulatory may complain to He noted that the First-tier Tribunal Chamber) and then onwards to the the Information did not have the same status and was Upper Tribunal (Administrative Commissioner. not a court of record. However, he Appeals Chamber) and beyond. formed the view that the limitation on grounds upon which a certificate In terms of guidance, the case of R (on the could be issued following the decision of the application of Evans) and another (Respondents) v First-tier Tribunal are the same as following a Attorney General (Appellant) 3 went as far as the decision of the Upper Tribunal.6 Supreme Court. Most people will have heard of the case as it involves the so-called ‘black spider Practical issues for JOHs memos’, written by Prince Charles to various Returning to requests for information, more government departments. generally: applications often do not specify whether they are made under the DPA or Mr Evans was a journalist who worked for the the FOIA (and sometimes refer to neither). Guardian newspaper. He requested disclosure Regardless of what the application says, if it of the communications under the FOIA.4 amounts to either an SAR under the DPA or The government departments refused and the request for information under the FOIA then Information Commissioner agreed. Mr Evans it must be treated as such. There is a duty to appealed to the First-tier Tribunal and the provide advice and assistance. This means matter was transferred to the Upper Tribunal, helping to clarify the request if necessary. which decided that many of the letters should be disclosed. There was no appeal against this In some circumstances, JOHs might conclude decision by the government departments. that there is no requirement to disclose
7 ...... Data protection
information, but equally there is no good reason particular type of information is released it may to withhold it. It remains open to the judiciary be difficult to justify not releasing it to somebody to provide the information. This has the benefit else in the future. This is a complicated area of being open and transparent to members of of law and JOHs are strongly advised to work the public, and improving confidence in the in collaboration with leadership judges before judiciary. Responses, which will be drafted for responding to requests for information. JOHs by a KILO, should make clear the basis on which the information is being provided and Rebecca Lewis is Legal Adviser to the Senior should always be discussed in advance with the President of Tribunals. relevant leadership judge in the Chamber. This will ensure consistency of approach, and advice 1 https://intranet.judiciary.gov.uk/publications/dpa-it-and- from the Chamber President can be sought if information-security-guidance-for-the-judiciary 2 various types of personal data are in scope. An area of necessary. contention is notes written by judges, which will form part of a separate article in a future issue of Tribunals. In conclusion, judges should be aware that, once 3 [2015] UKSC 21. information is provided, there is no control over 4 Mr Evans also sought the information under the how it is used. Care must be taken to redact any Environmental Information Regulations 2004 (EIR), which is a separate, but very similar, regime to the FOIA. It relates to personal data contained within information documents containing environmental information. The EIR is before it is released. In deciding whether or not discussed in this article. not to release information outside the scope 5 Para 16 of Evans. of the legislation, it should be noted that if a 6 Ibid, para 85.
Continued from page 5 enlarged and updated (at least annually) as new learning from one area to apply knowledge ideas and experiences are added to the modern creatively in others, maybe applying more jurisprudence of judgecraft. investigative or problem-solving approaches or taking active steps to secure equality of arms. David Bleiman is a member of the Employment Here, Tribunals has long been in the vanguard Appeal Tribunal. of reform. Stephen Hardy is a judge in the First-tier Tribunal (Social Entitlement). The authors of the articles now compiled adopt 1 This applies to all judicial office-holders, judges and members a variety of styles, ranging from the learned to alike, in both courts and tribunals. Magistrates are the only the anecdotal and humorous. The views they exception, their competence frameworks being set out within express are their own. What all the authors the National Training Programme for Magistrates. share is a common passion to help those who 2 Spending Review Announcement, LCJ and SPT on sit on tribunals to maintain high standards of 25 November 2015, Judicial Intranet. 3 ‘In the Shadow of Magna Carta’, SPT speech in Washington adjudication while remaining sensitive to the DC, 13 November 2015. needs of those appearing before us. 4 Ibid. 5 Ibid. For all of us, this new resource can help us in the drive to uphold and develop quality. What is more, it is a reading list which can be
8 ...... Principles in practice
One judiciary, but many pathways to justice
As a prelude to the article on page 12, which discusses the judicial approach to litigants in person, Paula Gray revisits two articles by Andrew Bano that were published previously in Tribunals.
The first of two articles on the inquisitorial inquisitorial, but that such an approach was aspect of tribunals, written by my colleague demanded by the legislation that had to be Andrew Bano, who recently retired as an Upper applied in that case. As Lord Diplock (then a Tribunal judge, was entitled ‘Fundamentally judge sitting in the Divisional Court) said: different from courts’ (Summer 2011). I considered simply adding a question mark to ‘In such an investigation the Minister or the that statement as my title for this piece, given insurance officer is not a party adverse to that since his article was published we have seen the claimant. If analogy be sought in other the unification of courts and tribunals, initially branches of the law, it is to be found in an administratively under the HMCTS umbrella, inquest rather than an action.’ and now the judiciary too. That was also the position in the more recent case To be ‘one’, however, is neither to be the same, of Kerr v Department for Social Development [2004] nor is it to strive for equivalence; our strength UKHL 23 in which Baroness Hale, again in the is in recognising our differing context of entitlement to a social roles as well as acknowledging our At issue in [the] security benefit, notably eschewed many similarities. The goal may be the concept that the classic burden the same, but not necessarily the first article was the of proof is generally determinative, direction of travel, and the moment extent to which preferring to rely on the duty to at which we are embracing our tribunals exercise produce relevant evidence by the communality is probably as good an inquisitorial party in possession of it, the role a time as any to take stock of our of both parties being to cooperate different approaches to see whether jurisdiction. in ascertaining the true facts; only they would and should survive as we rarely should the outcome depend ‘boldly go’ into the new judicial universe, and to on the burden of proof. reassess the use that we can make of what have always been seen as our historical differences. Nuanced approach So, each of our many tribunals, dealing with At issue in Andrew’s first article was the extent a different aspect of the law that has at its to which tribunals exercise an inquisitorial heart particular core legislation, will need to jurisdiction. The case that is often cited as consider whether in applying that legislation an confirmation of the inquisitorial approach is R inquisitorial or a more adversarial approach is v Medical Appeal Tribunal (North Midland Region) called for; the answer may differ from tribunal ex parte Hubble [1958] 2 QB 228, in which a to tribunal and the legislation involved. This tribunal in what is now the Social Entitlement nuanced approach is frequently ignored in favour Chamber was able to decide the case on a basis of the mantra that tribunals are inquisitorial. which had not been put forward by either of the parties.1 However, the basis of the decision was Sir Andrew Leggatt in his 2001 report ‘Tribunals not that the tribunal’s jurisdiction was inherently for Users’ had concluded that neither the
9 ...... Principles in practice
traditional adversarial approach of the common if it is not, arguably should be lest tribunals fall law nor a fully inquisitorial approach, on the behind the courts in this sphere.3 Australian model, was appropriate for tribunals: In a practical sense, vis-à-vis most courts, our less ‘[7.4] . . . tribunal chairmen may find it formal procedure and relative evidential necessary to intervene in the proceedings simplicity (the issue being simply the probative more than might be thought proper in the value of any evidence proffered, evidence being courts in order to hold the balance between generally admissible unless excluded to give the parties, and enable citizens to present effect to a particular right such as legal their cases . . . The balance is a delicate one, professional privilege) make the process easier for and must not go so far on any side that the all, particularly those representing themselves. tribunal’s impartiality may appear to be However, that is often where the simplicity ends. endangered . . .’ The legislation with which we work can confound even the masters of statutory interpretation. Tipping point Pausing there to note in this quote In Secretary of State for Work and a historic acknowledgement of The legislation Pensions v Menary-Smith[2006] the difficulties in recognising the with which we EWCA Civ 1751, when considering tipping point between enabling a work can confound the Income Support (General) litigant and stepping into the arena, Regulations 1987, Lord Justice May it is a fact that our current tribunal even the masters observed that ‘the meaning of parts framework, the legacy of Leggatt of statutory of Regulation 60C seems to me as enshrined in the Tribunals, interpretation. to be obscure to the point of near Courts and Enforcement Act darkness’, and Carnwath LJ (as he 2007 (TCEA), does not expressly was then) rued the fact that: require tribunals to act inquisitorially although an inquisitorial approach may be implicit in the ‘. . . after four years since the original principles of tribunal justice set out in section 2 decision, which have seen one tribunal of the Act, which include injunctions that the hearing, two reasoned Commissioner tribunal should be expert and accessible. decisions, and a fully argued appeal to this court, with experienced counsel on both The view of our former Senior President of sides, we seem to be as far as ever from a Tribunals, then Carnwath LJ, expressed in a consistent or coherent account of how the paper published in the journal Public Law just relevant regulations are supposed to work, prior to the coming into force of the TCEA, or why it matters.’ was that the Act was neutral on the question of whether tribunals should be adversarial That complexity demands that we maintain our or inquisitorial, but he pointed out that the subject expertise; we are so often the only people principles of accessibility and expertise gave in the hearing room who understand what the an indication that court procedures would not case is about. necessarily provide the model for tribunals. He later bolstered the inquisitorial, or at least Citizen v State enabling, approach by issuing his Practice I have made brief reference to Article 6 of the Direction in respect of vulnerable witnesses;2 ECHR, and important in that is the requirement the category of those who should be considered for ‘equality of arms’ in order to ensure that the under that PD also appears to be widening, or parties to a dispute are procedurally in a relatively
10 ...... Principles in practice
equal position. This may be more acute in the and the resources of the parties which may skew tribunal world, where, due to the very genesis the ‘playing field’. The tribunal’s approach to of the tribunal system, many, perhaps most, the hearing will be infused by the extent to cases involve a Citizen v State dispute where which any or all these factors pertain, and there the relative resources will be significantly at are few cases I can recall where at least some variance, a situation which in the public interest were not present. may require addressing. It is perhaps here where the tribunal can best use its procedural and legal For that reason, I quote Andrew Bano’s second expertise to enable the litigant to put their case. article (entitled ‘Intervention: a delicate feat of Even in this regard, however, the tribunal must balance’, Spring 2012) where he wrote these wise be cautious as to the method and extent of any words: intervention, and the level of circumspection ‘. . . in the tribunal context, the principle of will probably vary between those tribunals, for fairness . . . generally requires the tribunal example Social Security and Child Support, member to play an active role in the which strive for structured informality, and the proceedings – a role in which human skills more formal approach of, say, the Immigration and legal knowledge may often both be and Asylum Chamber – an example of the needed in equal measure.’ nuanced approach to which I refer above. I conclude with what Andrew presciently wrote As an adjunct to the discussion about litigants in Summer 2011: in person, comments from the decision of the Court of Appeal in Hooper v Secretary of ‘As pressures on public funding result in State for Work and Pensions [2007] EWCA litigants in person becoming an ever more Civ 495, another social security case, remain common feature of litigation in the courts, particularly relevant, dealing as they do with the the inquisitorial approach of tribunals is arguably more tricky position where a party is likely to become increasingly more relevant represented, but not very well: across the whole justice system.’
‘Where an appellant is legally represented The working group referred to in the following the tribunal is entitled to look to the legal article is the result of those circumstances having representatives for elucidation of the issues arisen. that arise. But this does not relieve them of the obligation to enquire into potentially Paula Gray sits in the Upper Tribunal relevant matters. A poorly represented (Administrative Appeals Chamber). party should not be placed at any greater disadvantage than an unrepresented party.’ 1 The tribunal, which decided to remove the claimant’s entitlement to benefit without being asked to do so, would nowadays be under an obligation to warn the claimant of what So, in our tribunals, as we apply the principles it had in mind before allowing the appeal to proceed: R (IB) of TCEA, the Practice Direction, and ensure 2/04. Article 6 compliance, it will be important to 2 Practice Direction (First-tier and Upper Tribunal’s Child, take into account a variety of factors including Vulnerable Adults and Sensitive Witnesses) handed down in the complexity of the issues – whether the 30 October 2008. appellant is represented and how well, their own 3 See Counsel Magazine, June 2015, ‘Clear Direction’, Professor Penny Cooper re the criminal position, and September 2015, grasp of the issues and any apparent obstacles ‘A rallying call to the family bar’, Gillian Geddes, Counsel, such as disability or language difficulties that 2-3 Hind Court, as to the family law current position and which may affect their presentation of the case, work in progress.
11 ...... Principles in practice
Fair probing – or descent into the ARENA?
Paula Gray and Melanie Lewis discuss the issue of judicial intervention in light of the increasing number of cases where parties are unrepresented.
We are all aware of the importance of the themselves are not homogeneous and there are issue of judicial intervention in cases involving certain tribunal jurisdictions that are unsuited litigants in person, particularly in the current to an interventionist approach, some courts climate of austerity which has resulted not only judges have at least equivalent experience to in more LIPs but a lack of even pre-case advice tribunal judges in dealing with unrepresented for many of those who appear before us. There parties. What comes across in discussions is a clear need to discuss the extent to which with the various judges from High Court to judges may, without trespassing into the arena, District Bench in what we often refer to as intervene in probing the evidence or in relation the ‘Uniformed Branch’ is the very different to points of law. experiences and thus levels of expertise that they have in relation to LIPs. There are a number of moves afoot, including a working party under the What comes across Judges who sit on the District Bench auspices of Mrs Justice Asplin on the in discussions . . . is in particular are used to having extent to which judges hearing civil people before them who are and family cases should intervene to the very different unrepresented. They also frequently facilitate a fair hearing where one experiences and sit in their chambers, a more or both parties are unrepresented. thus levels of informal venue than many tribunals. The intention is to produce a Despite their loftier position, both DVD with a number of scenarios expertise that physically and metaphorically, High to provoke discussion and enable [judges] have in Court judges encounter LIPs not judges to benefit from the views of relation to LIPs. infrequently, so are used both to others as well as to offer guidance explaining complex legal concepts for judges. simply and, often, communicating the unpalatable fact that this is probably the end The group consists of both tribunal and courts of the road in relation to the claim. judges. Given the remit of the group this is perhaps an acknowledgement that this is an Diverse backgrounds area where tribunals, which broadly speaking When considering judicial experience of LIPs have an inquisitorial function, have a great deal we must not overlook the fact that, particularly of practical experience which can be shared to recently given the advent of more judicial general benefit. progression through the ranks, many judges now have experience of a variety of jurisdictions Levels of expertise including tribunal appointments and so have The writers of this article are the tribunal judge experience and awareness of the issue in members of this group and, while we believe differing contexts, and as the judiciary tends that the concept of judicial collaboration and the towards more diverse backgrounds a multiplicity mining of our ideas is a good one, we would be of experience and skills are available to meet the the first to acknowledge that, just as tribunals challenge.
12 ...... Principles in practice
In light of the above, we have asked ourselves different point, which they have as their point whether the perceived distinction between the E and deal with it, continuing the submission court versus tribunal approaches may be unhelpful. from point F onwards, perhaps realising that the In our experience as judges and former members points in the middle are no longer material or, if of the Bar, a court judge who has familiarity with they are, being able to come back to them later their legal area, tends to act in a similar way to a in a circular way. This of course is an academic tribunal judge with an inquisitorial function, in approach which as lawyers we are used to, both that they will ask relevant questions of witnesses in front of and on the Bench, but we would despite counsel’s presence as well as when probably all agree that it is our legal training representation is not there. and experience which has enabled us to think in that way. If that is accepted, it is probably Points of law uncontentious to say that any probing of the legal In point-of-law jurisdictions, whether the submissions of an LIP is likely to be of little value Court of Appeal or the Upper Tribunal, a judge and may even be counterproductive. Patience is experienced in the area of law, given sufficient truly a virtue in these cases, and adequate time time to research the points at both in preparation and for the issue, can generally manage quite hearing is critical. well without an advocate. That Difficulties . . . can is certainly not to concede that be avoided by Fact-finding this is easy; it is considerably more giving a witness In the fact-finding arena, whether difficult where the fundamental a chance to tell a that is the High Court or a First- legal parameters are not laid out by tier Tribunal, the judicial role the parties and without the benefit little of their story should be one of enabling a litigant of balancing arguments, but it even where it is to participate in the proceedings is yet possible to do justice. The already on paper. by telling their story. A series of procedure, however, may need to be short, easily comprehensible open markedly different. questions from the judge is the best way to facilitate a good account. If oral evidence In making submissions, a party acting for is being heard on the issues from the outset, the themselves, even if they have had some questions that are asked by the judge appear to preliminary legal advice, may have written arise naturally from the evidence, whereas if submissions that they simply want to read out. the evidence in chief is paper evidence which What they want to say may not be of particular a judge has read and then asks questions about, relevance to the legal issues under consideration. those questions may appear to the litigant as Nonetheless, a judge trying to shortcut that cross-examination by the judge; a perception of approach by insisting on reading the submission pre-judgement can be created where there is no to themselves, or asking questions during the ‘preamble’. presentation can lead to objective concerns as to possible injustice in relation to the right to be To have the evidence in chief on paper only is heard, and, in a very practical sense, may result in generally the practice in the civil courts, and the the LIP needing to go back to the beginning and difficulty of a judge asking questions in these start again. circumstances may be a potential problem as to the perception of fairness for unrepresented An LIP is unlikely to have the ability of a litigants. Difficulties, however, can be avoided competent advocate to argue point A, but be by giving a witness a chance to tell a little of their taken by an astute (or irritating) judge to a story even where it is already on paper. Once
13 ...... Principles in practice
again allowing sufficient time is important; between the jurisdictions, not merely tribunals hearings may be longer not simply because which frequently have an inquisitorial approach counsel is able to concede or shorten points that and the courts with a more adversarial practice, an LIP cannot, but because more evidence may but between the courts and tribunal jurisdictions need to be heard, as opposed to just read to guard themselves. This conclusion tends to preclude against perceptions of injustice in the judge bright-line rules – a ‘one size fits all’ approach to appearing to play the part of the advocate rather the problem of when and how to intervene is not than a neutral interlocutor. the solution. That does not mean, of course, that working groups such as ours should not strive to Additionally, the judge who has a good factual assist in answering this complex question with command of the papers can more easily intervene useful scenarios for discussion out of which may yet retain their neutrality. Asking be derived some helpful guidance, generalised questions risks the . . . while not but it is, we think, important to appearance of bias far more than understand that this is a difficult asking specific questions based always possible, issue which will take a great deal of upon the documents; where judicial continuity of judicial thought and acumen to be knowledge of the background is judicial care can applied to each and every individual not apparent, questions may be seen be of significant case. as the judge requiring lifestyle or behavioural justification because of assistance in Key to all of the above is sufficient a preconceived attitude. demonstrating the judicial time to prepare the case even-handedness papers properly, including time for A relationship with litigants which legal research, as well as sufficient has been built up as part of early and independence time for hearings, which will and effective case management can of the judge . . . inevitably be longer than those help to confirm the judge’s position to which we are more generally as an impartial facilitator enabling intervention accustomed. Short cuts in either regard may to be seen in those terms – such investment of create the risk of a judge being perceived as not judicial time, sometimes in person, sometimes independent, upon which genuine Article 6 by telephone hearings, can be effective in issues may arise. explaining the process and narrowing the issues, particularly given the wide discrepancy in the Melanie Lewis sits in the First-tier Tribunal amount of detailed information available to (Health, Education and Social Care Chamber). litigants in advance in the various jurisdictions. A Paula Gray sits in the Upper Tribunal pro-active approach to case management could (Administrative Appeals Chamber). be adopted in many jurisdictions in both courts and tribunals and, while not always possible, continuity of judicial care can be of significant assistance in demonstrating the even-handedness and independence of the judge, with resulting confidence in the final tribunal.
Conclusion The short answer to the difficult question as to whether intervention is appropriate and where it may become inappropriate is that this varies
14 ...... Book review
A forensic TRIUMPH
Julian Phillips praises an authoritative work on immigration law in the expectation of an inevitable update.
With its title ‘The Law and ‘Deportation, Removal, Exclusion, Denial and Practice of Expulsion and Exclusion Deprivation of Citizenship’ this approach, looking from the United Kingdom’ and at the domestic, European and IHL contexts, is sub-title ‘Deportation, Removal, repeated with easy reference back to the legal Exclusion and Deprivation of framework. This structured approach makes this Citizenship’, it is no surprise to find a detailed and difficult subject easy, or at least easier, to navigate exhaustive guide to the law as it currently stands and enhances the practical usefulness of this text. in this fascinating and politically sensitive area. The book is to be commended for an analysis Editor Eric Fripp and deputy editors Rowena that seeks to look not only at the law as it stands Moffatt and Ellis Wilford are experienced but also, albeit in neutral fashion, at the political practitioners who regularly appear before the context in terms of the rationale and intentions of Immigration and Asylum Chambers and the government. senior courts – as such they are able to give practical and not merely academic The problem for works such as this guidance. The comprehensive and comes with the almost constant changes practical nature of this text shines in legislation and jurisprudence. It is a through from the outset. truism that by the time of publication each edition of just about every text The book benefits from a foreword by covering immigration and asylum law Lord Hope of Craighead that adds to in the United Kingdom will be out of the gravitas of the work and is followed date. This work does not escape this by a preface in which the editors clearly fate with, for example, references to set out their aim. Their enthusiasm The Law and Practice of the now obsolete Detained Fast Track for their work is clear and infectious. Expulsion and Exclusion from the United Kingdom. system and little information as to Equally readable is a short section General editor Eric the effect of non-suspensive rights of detailing the historical background Fripp. Deputy editors appeal. With publication of the book Rowena Moffatt and against which the jurisprudence Ellis Wilford. following so closely on the heels of the has developed. Thereafter this is a Hart Publishing 2014. implementation of the Immigration textbook comprehensively dealing Act 2014 this could not be avoided. I with the law as it stands. It is not, and clearly it have no doubt that the editors are following, and was not intended to be, a bedtime read. It is a indeed are probably involved in, the inevitable forensic work of real authority and a triumph not development of the law in this regard particularly only for the editors but for the team of expert following R (on the application of Kiarie) contributors from Lamb Building. Secretary of State [2015] EWCA Civ 1020.
Having set out the foundations of the system and This excellent work is an essential addition to the turning to the detail, the book moves on to a full bookshelf of the immigration law practitioner. analysis of the legal framework. It is particularly Surely a second edition is already on the way. interesting that in doing so the authors go outside an analysis of domestic and European law to look Julian Phillips is a Designated Judge and Training at the wider context of international human rights Judge of the First-tier Tribunal (Immigration and law (IHL). When moving on to the core areas of Asylum Chamber).
15 ...... Welsh devolution
Politics with reservations: watch this SPACE
Edward Mitchell on why proposed changes to the legal system in Wales present distinct challenges, not least of which the contentious question of a separate jurisdiction.
The law in Wales poses particular challenges Taken together, these factors impede accessibility for tribunals. And, currently, the future of the law relating to Wales, a matter which the operation of courts and tribunals in Wales is a Law Commission is currently considering as part politically sensitive matter. These features create of its project ‘The Form and Accessibility of the a unique context to the operation of tribunals in Law Relating to Wales’. The Commission expect and for Wales. to report in May 2016.
Why Welsh law is difficult Why tribunal justice in Wales is challenging Often, finding out the applicable law in Wales Wales poses particular challenges for the is not straightforward. The priorities of the inquisitorial and enabling tribunal. The legal publishing sector and the focus of many unrepresented appellant’s usual difficulties in practitioners create a real risk that the law relating finding out the relevant law are heightened in to Wales will be overlooked. Wales. While this ought not to Welsh legislation is trouble the ‘devolved’ tribunals, The UK’s legislative drafting it calls for some steps by other tradition tends to favour textual enacted bilingually. tribunals to familiarise themselves amendment over consolidation. . . . Conceptually, with relevant Welsh legal Without access to a paid-for this is complex. differences. Otherwise, they risk legislation database, keeping track The implications being less inquisitorial and enabling of the law is time-consuming and in Welsh cases. At the Upper difficult. And the initial form of have yet to be Tribunal (Administrative Appeals Welsh devolution involved ‘silent’ considered at a Chamber (AAC)), for example, modifications – in a transfer of higher judicial we produce regular internal functions order – to a wide range of briefings about Welsh legislative statutory provisions that originally level . . . developments. conferred functions on Ministers of the Crown. These were made exercisable by Welsh legislation is enacted bilingually. Both the Welsh Assembly but without any express language versions have equal status and both amendment of the legislation conferring the texts ‘are to be treated for all purposes as function. being of equal standing’ (section 156(1) of the Government of Wales Act 2006). Accordingly, Furthermore, not changing the law in relation one version is not to be treated as a translation to Wales creates its own difficulties. It can be of the other. Conceptually, this is complex. The easy to overlook that many Acts that no longer implications have yet to be considered at a higher apply in England continue to apply in Wales. For judicial level but, no doubt, it will come. example, the special educational needs legislation in Part 4 of the Education Act 1996 was The distinctive Welsh context disapplied in relation to England in September Specific considerations apply to the operation 2014 but not in Wales. of tribunals in Wales, an awareness of which is
16 ...... Welsh devolution
A timeline of Welsh devolution The ‘Silk’ Commission Chaired by Paul Silk, a former clerk in both the House Government of Wales Act 1998 of Commons and to the National Assembly for Wales, This established executive devolution. A wide this is formally the Commission on Devolution in range of specified Minister of the Crown functions Wales. Established in 2011, it reported in two parts. in ‘devolved areas’ were made exercisable by the The first was implemented by the Wales Act 2014 National Assembly for Wales. By this route, the which extended the National Assembly’s legislative Welsh Assembly attained many ministerial functions competence in a number of areas, most notably tax. in relation to devolved tribunals but not generally The second part – ‘Silk II’ – recommended a Scottish- the function of appointing legal members. style reserved powers model of legislative devolution. Government of Wales Act 2006: phase 1 Briefly, under that model, a legislature has authority This gave the Welsh Assembly power to enact to legislate on any topic so long as it is not reserved. ‘Measures’ in relation to quite precisely defined The draft Wales Bill subject matters. Within its sphere of competence, This was the UK Government’s initial October 2015 a Measure is akin to primary legislation. Using proposal for implementing ‘Silk II’. It has been 2006 Act powers, the Welsh Assembly created a contentious. Disputes centre on reservations that Welsh Language Tribunal (Welsh Language (Wales) include ‘courts and tribunals (including, in particular, Measure 2011). The 2006 Act also formally separated their jurisdiction)’ and ‘judges and members of the Welsh executive (Welsh Ministers/Government) tribunals (including, in particular, their appointment from the Welsh legislature (Welsh Assembly). and remuneration’ but not ‘a tribunal whose purpose Government of Wales Act 2006: phase 2 is to make determinations in relation to matters that A positive referendum vote activated more extensive are not reserved matters’. The Welsh Assembly’s primary legislative powers, the products of which Constitutional and Legislative Affairs Committee are named Acts. This is the current position. The reported on 4 December 2015 that, in their view, the Welsh Assembly can make Acts in relation to reservations effectively reduced the Welsh Assembly’s broadly described subjects in schedule 7 to the Act legislative competence. In fact, the Secretary of State but subject to specified exceptions. For example, for Wales has said: ‘I do expect the final piece of the social welfare subject excepts ‘family law and legislation that gets Royal Assent to be significantly proceedings’. different from the draft.’ Watch this space. desirable for a number of reasons. Why step on Direction of 30 October 2008 on ‘Use of the an avoidable toe? Welsh Language in Tribunals in Wales’. Applying to a ‘Welsh case’, defined as one ‘in which all The Welsh Government promotes ‘repatriation’ “individual parties” are resident in Wales or of justice to Wales – cases involving a party which has been classified as a Welsh case by the located in Wales ought to be heard there. The tribunal’, this entitles a party to use Welsh at a AAC’s listings policy accords with this, although hearing. The PD confers a similar right to rely on it is flexible and the parties’ views as to venue are Welsh documentation. taken into account. Noteworthy new legislation has also been The Welsh language looms large in Welsh life. made. Section 1 of the Welsh Language (Wales) Any tribunal that underestimates its importance Measure 2011 declares Welsh to have ‘official to many in Wales does so at its peril. In any status’ in Wales. The Measure also provides for event, the First-tier and Upper Tribunals a roll-out of enhanced Welsh language duties are subject to the Senior President’s Practice of certain public, and some private, bodies by
17 ...... Welsh devolution
reference to statutory Welsh language standards. distinction needs to be drawn, it is better to With its aim of normalising the use of Welsh refer to the ‘law relating to England’ or ‘the law in the public sphere, the Measure may well relating to Wales’. increase the frequency with which Welsh is used at hearings and Welsh documentary evidence The types of Welsh tribunal relied on. In terms of organisational and appellate structure, there are three discernible categories of first Certain assumptions and oversights about instance tribunal in Wales: Wales and the law can cause offence or imply ignorance and are best avoided. One relatively Tribunals with an England/Wales jurisdiction, common misconception is that Wales has no funded by the Ministry of Justice where the autonomous legal history. Many Welsh lawyers, onward right of appeal – normally on a point however, admire the codified set of laws of of law – lies to a specialist second-tier appeal Hywel Dda (Hywel the Good), a 10th century tribunal. Examples are the Employment Welsh king. Tribunal and the First-tier Certain Tribunal in many of its different This code probably had even older guises. Some such tribunals apply roots as well as a legal compass assumptions and a separate body of law relating orientated to points north and oversights . . . can to Wales. If the First-tier Tribunal west, bearing, as it does, similarities cause offence or hears a Welsh care standards with the Brehon law of medieval imply ignorance appeal, for example, it might Ireland and the laws of the ancient apply very different legislation Briton kingdom of Strathclyde/ and are best than in an English case because Cumbria. And, while the Laws avoided. One the Care Standards Act 2000, in Wales Acts 1535 and 1542 relatively common which currently applies in Wales, extinguished separate Welsh laws no longer regulates adult care and forged a single England-Wales misconception is provision in England. legal jurisdiction, they also created that Wales has no a unique court system for Wales autonomous legal What are known as the ‘devolved’ (apart from Monmouthshire which history. tribunals are funded and was allocated to the Oxford circuit administratively supported by the of the English assizes). Welsh Government (within the Welsh Government, there is now a Welsh Until its abolition in 1830, the Court of Great Tribunals Unit). Their remit is confined to Sessions in Wales had the same civil law Wales. Appointment functions may be split jurisdiction as the Queen’s Bench Division, between the Lord Chancellor (legal members) jurisdiction in equity and a criminal jurisdiction and the Welsh Government (lay or specialist equivalent to the English county assizes. members). The onward right of appeal normally lies with the same specialist second-tier tribunal Finally, it should be remembered that, currently, – the Upper Tribunal – as hears appeals from we have a unified law of England and Wales. the counterpart Chamber of the First-tier One legal jurisdiction exists in that England and Tribunal in English cases. Examples are the Wales are subject to a single body of law. This Mental Health Review Tribunal for Wales is why references in a decision to ‘English law’ (appeal to the Upper Tribunal, AAC) and the or ‘the law of England’ are best avoided. They Residential Property Tribunal for Wales may be read as overlooking Wales. If a legal (appeal to the Upper Tribunal, Lands Chamber).
18 ...... Welsh devolution
At least one devolved tribunal has different ‘The retention of the existing England onward appeal and appointment arrangements. Wales jurisdiction will result in a measure The Welsh Language Tribunal, which will hear of complexity for the Welsh settlement appeals against certain decisions of the Welsh which is incompatible with the Secretary Language Commissioner under the Welsh of State’s aspirations for clarity and Language (Wales) Measure 2011, is appealable workability.’ to the High Court and its legal members are appointed by the Welsh Government. The Minister also supplied draft legislative provisions intended, if enacted, to create a Why Wales matters separate Welsh jurisdiction. The provisions With perhaps surprising speed, questions as to would also establish separate High Courts, and the future shape and control of the Courts of Appeal, for England law and legal system for Wales have Following a 2012 and Wales with judges of the become politicised. The question High Court of England and Wales whether Wales should be a separate consultation, being reconstituted as judges of jurisdiction remains contentious. By the Welsh both a High Court of England ‘separate jurisdiction’, commentators Government and a High Court of Wales. The usually mean an end to the ‘law of position of tribunals was not England and Wales’ which may, decided not to expressly dealt with. or may not, involve extending the pursue a separate Welsh Assembly’s Act-making Welsh jurisdiction What does all this mean for competence to include reforming as an immediate tribunals? Clearly, the pros courts and tribunals in Wales. The and cons of a separate Welsh debate can be confused, however, priority. But jurisdiction and/or justice system by inconsistent definitions. It is not policy has recently are a political matter on which uncommon to hear the view that changed. comment would be inappropriate. the law applicable in Wales is now Instead, for tribunals operating in so different to England that Wales and for Wales, the aim must be that, has already become a separate jurisdiction. as and when final decisions are taken about a separate Welsh jurisdiction, they are not affected Following a 2012 consultation, the Welsh by genuine concerns about the quality of service Government decided not to pursue a separate provided by tribunals in and for Wales. Welsh jurisdiction as an immediate priority. But policy has recently changed. The UK Edward Mitchell is a judge of the Upper Tribunal Government recently published a draft Wales (Administrative Appeals Chamber) with special Bill – to create a Scottish-style reserved powers responsibilities for Wales. form of Welsh legislative devolution – which reserves courts and tribunals generally from the Assembly’s Act-making remit. In response, Scottish devolution proposals the Welsh Government publicly disagreed with A Draft Order in Council has now been published the Bill and decided to pursue a separate Welsh containing proposals for the planned devolution of jurisdiction. functions of the Employment Tribunals in Scotland to the First-tier Tribunal. The Scottish Government The Welsh First Minister told the Welsh consultation is open for responses until 24 March. Assembly’s constitutional affairs committee in Details can be found here. late November 2015 that:
19 ...... IOJT conference
Moving tales of BRAVERY
Sheridan Greenland and Siobhan McGrath report on sharing knowledge and experience with judicial trainers from 75 countries.
In November 2015, the influence and independence in International Organisation judicial training. for Judicial Training (IOJT) held its 7th International Conference, in Recife, Brazil. The programme and themes The IOJT was created in 2002 in order to The programme for the conference was promote the rule of law by supporting the work ambitious and was delivered in 45 plenary and of judicial training institutes around the world. parallel sessions including presentations from IOJT facilitates cooperation and the exchange a high percentage of the 350 delegates. Under of information and knowledge among its 123 the general heading of ‘Excellence in Judicial member institutes from 75 countries. It holds Training’, the four days were divided into three conferences at different venues around the main themes. globe every other year. ‘Essential Components’ dealt with Several conferences ago, as Some delegates the core requirements for successful Executive Director of the Judicial were from countries judicial training – not only induction College, Sheridan Greenland just starting to and continuous professional was elected Deputy Secretary- development training for judges but General of IOJT, part of the small develop training also the vital importance of international executive committee. strategies and institutions, funding and Fortunately, Executive Committee institutions and infrastructure. As an opportunity to members’ attendance at conferences looked to those understand the challenges in judicial is paid for through the conference training, the theme was very fees, so she was able to present two with greater successful, providing a foundation sessions in Brazil. experience for for the remainder of the conference advice and support. and a catalyst for discussion and The first, ‘Judges in Jeans’, reflection. Some delegates were showcased College e-learning from countries just starting to and demonstrated how it can be blended with develop training strategies and institutions and discussions about judicial ethics (e.g. in the looked to those with greater experience for ‘Business of Judging’ seminar), or used as advice and support. Others were able to share stand-alone training (e.g. ‘Becoming a Judge’ good practice and successes. e-learning 1). The second session was a panel discussion about the governance of judicial ‘Emergency Topics for Judicial Training’ sought training institutions. to capture the necessity for training to reflect social and political developments and included and Judge Siobhan McGrath’s Property Chamber three-part session on training for judges handling training approach has already been recognised terrorism-related issues. Otherwise, the themes as an example of best practice by the European ranged widely, and choosing what to attend Judicial Training Network and her practical became difficult with sessions, for example, use of simulations – scripted mock hearings – dealing with substantive issues on sentencing, and innovative course design received similar judicial communication between countries, the acclaim, alongside a session considering judicial and the digital age and many more.
20 ...... IOJT conference
Finally, ‘Innovation in Judicial Training’ the difficulties in securing funding for training explored new approaches and techniques in and dealing with reluctance in the judiciary. In training, seeking to draw on the experience all cases there was enthusiasm and good humour. of the judiciary themselves and to simulate the And then, of course, there was the beach . . . experience of decision makers in hearing. These sessions were fascinating, providing new ideas to Conclusion engage and educate. For example, in one model, The IOJT website includes an online library delegates were asked to design a module in and newsletter with the four issues of the IOJT advance of training, another included a design for Journal published to date containing many articles interaction between delegate groups. on judicial education and training themes from 54 authors, including our own Director of Highlights Tribunals Training, Jeremy Cooper. Papers from It was particularly moving when speakers past conferences are included and may provide outlined their personal challenges of witness, juror inspiration to anyone designing for the College. and judge intimidation during terrorism trials. This graphically brought home the difficulties IOJT has yet to decide the venue for the 2018 and bravery required to protect principles of conference but has already agreed that an justice and rule of law. There was a commitment outcome will be to establish agreed principles for to work together to design the outline of a judicial training. training course to explore the particular issues involved with handling such cases. Sheridan Greenland is Executive Director, Judicial College. We developed an unexpected appreciation of Siobhan McGrath is President of the First-tier our health and safety regulations having watched Tribunal (Property Chamber). workmen walk away from their day’s work, leaving unlit piles of cobblestones in the road. 1 Available on the LMS at https://judicialcollege.judiciary.gov.uk/ course/view.php?id=1063 It would be remiss not to mention the hospitality of the Brazilian hosts and the beauty of Recife and the surrounding area. However, the highlight was the opportunity to work with judges and judicial trainers from jurisdictions across the world. The challenges in providing judicial education were strikingly similar notwithstanding constitutional differences. Recurring themes included the importance of judicial independence and freedom from bias;
21 ...... The Senior President
What makes us SPECIAL
The Transformation of Tribunals Justice: a view from the Senior President (No 1)
In November, the Chancellor and interesting. Crucially, it demonstrates of the Exchequer announced that that the baby that is tribunals justice is very the Government was committing much alive and kicking as we look forward to over £700 million to the reform of courts and £700 million of new bathwater! tribunals. That commitment had been eagerly awaited by many of us. Against the backdrop of Your key messages to me are that: Mr Osborne’s more general (austerity-defined) spending review, the fact that the Reform Each Chamber and Tribunal has a strong Programme secured any funding at all, let alone and individual concept of specialist justice. at the level we achieved, was clearly encouraging. The knowledge of our panels of the relevant Money is of course important, but securing it law and of our users’ needs is central to the was not an objective in or of itself. Far from it: success of tribunals justice. Judges and our it was only the beginning of a process of the expert non-legal members examine evidence transformation of justice. independently in a more informal and inquisitorial environment than the courts, Since becoming Senior President in September, which suits the often unrepresented parties I have been consistent in setting out three themes before them. around which I believe reform will and must The collegiality of each Chamber and Tribunal coalesce. Those core themes are: is patent, with judicial office-holders working with each other across their jurisdictions to ‘One system’ – accessible and simple, with no second or third-class elements lagging behind support, guide and help each other develop. the rest. The benefit of that close working also extends to administrative colleagues, in particular ‘One judiciary’ – with flexible and to registrars and other legal and tribunals responsive structures to ensure deployment case workers. There is a strong collaborative and assignment that both fits the needs of working environment that is evidenced jurisdictional workload and provides career through the Jurisdiction Boards where judges progression opportunities for all. and officials come together to identify good practice. ‘One size does not fit all’ – specialist quality- assured justice with innovative approaches to Our leadership and workload management is dispute resolution to fit the needs of our diverse a central and key component of our success. users that will be different in each tribunal and The ability of leadership judges to invest jurisdiction: it is what makes us special. time in communicating consistent messages about good practice and managing the fine In my first message as Senior President, I wrote detail of their jurisdictions and workloads to all my Chamber and Tribunal Presidents sets us apart. inviting them to have a conversation with you and me about these key themes. In my early None of this requires any more money. These discussions with them we explored what each are things we do already. These key elements are jurisdiction is doing at the moment, what needs central to what makes tribunals justice special to be preserved and what might be capable of and they will be key to the success of the Reform sharing. The feedback has been both excellent Programme.
22 ...... The Senior President
Our ultimate objective is, of course, to safeguard so that the relevant Chamber Presidents can and strengthen the rule of law. A reform come together to share the advice of their programme will provide new working processes, jurisdiction boards. support and infrastructure, in particular estate and information technology, but it is in the skills, The Tribunals Judicial Executive Board will experience and commitment of our colleagues not only monitor and discuss the progress of that the real success of a transformation the Reform Programme but also highlight the programme will be guaranteed. ideas that you and our user groups identify. I hope to find ways to extend I would like to invite all of you to I would like this diversity and build on the excellent contribute to the discussion about appraisal and peer review schemes our future. The Tribunals journal has ‘one system’ that already exist. We must work kindly offered a regular platform of justice that together to discuss new ways of for us to share ideas and update on we design to using our estate and other local progress. Your ideas about good be digital by facilities and respond to litigants practice in particular during the in person needs by building on the Reform Programme will be listened default . . . good practice that already exists. to. Whether by responding direct These components and many more to my office (details below), or by letting your like this will be developed by us in the coming jurisdiction board or President know of your weeks and months. thoughts and ideas, I strongly encourage each of you to participate in our joint endeavour. I take this opportunity to thank all of you for your help this far and to invite you all to take a For my part, it is now time to develop a broad part in designing a courts and tribunals system plan to build upon the themes I have identified. that is fit for the 21st century. I would like this ‘one system’ of justice that we design to be digital by default and to be Sir Ernest Ryder, Senior President of Tribunals a ‘one-stop shop’ where judges are able to sit in concurrent jurisdictions so that the user Judicial Office experiences a more coherent approach to Room E218 problem-solving. I would like to provide for the Royal Courts of Justice flexible deployment of tribunals judges across Strand all courts and tribunals and to improve the user’s London experience by ‘facilitated service’ using our WC2A 2LL registrars and case officers to assist both litigants and judges alike in early neutral evaluation, E-mail: [email protected] triage and case management.
I have put together a small strategy group whose membership will change as the Reform Programme identifies projects in each Chamber
23 Editorial Board Aims and scope jeremy cooper 1 To provide articles to help those who sit on tribunals to Board Chairman and Director of Tribunals maintain high standards of adjudication while remaining Training sensitive to the needs of those appearing before them.
David bleiman 2 To address common concerns and to encourage and promote Employment Appeal Tribunal a sense of cohesion among tribunal members. leslie Cuthbert 3 To provide a link between all those who serve on tribunals. First-tier Tribunal (Health, Education and Social Care) 4 To provide readers with material in an interesting, lively and informative style. paula gray Upper Tribunal (Administrative Appeals) 5 To encourage readers to contribute their own thoughts and experiences that may benefit others. Stephen hardy First-tier Tribunal (Social Entitlement) Tribunals is published three times a year by the Judicial College, although the views expressed are not necessarily those of the JUDITH LEA College. First-tier Tribunal (Immigration and Asylum) Any queries concerning the journal should be addressed to: melanie lewis First-tier Tribunal (Health, Education and Publications Manager Social Care) Judicial College 3A Red Zone Craig robb 102 Petty France Judicial Office London SW1H 9AJ Adrian V stokes First-tier Tribunal (Social Entitlement) Tel: 0113 200 5123 E-mail: [email protected] jane talbot Website: www.judiciary.gov.uk First-tier Tribunal (Social Entitlement) aNdrew Veitch First-tier Tribunal (Social Entitlement)