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