Conference Report:
AJTC Scottish Committee

The Scottish Committee of the AJTC held a conference at Our Dynamic Earth, Edinburgh on 12 February 2008. The topic of the conference was "Advancing Administrative Justice and Tribunals - looking at where we are now and where we go from here". It was attended by about 80 delegates from the tribunals' world, the wider administrative justice field and academia.

The Scottish Committee was delighted that the speakers for this event; Lord Hamilton the Lord President and Lord Justice General, Bill Aitken, MSP and Chair of the Justice Committee, Professor Tom Mullen, Professor Lorne Crerar, Martyn Evans of the Scottish Consumer Council, Ewan Malcolm of the Scottish Mediation Network and Norman Egan of the Tribunals Service were able to provide the conference with a wealth and breadth of knowledge on issues impacting on administrative justice not only in Scotland but throughout the UK.

The feedback we received illustrates that the conference was a huge success and delegates found much information for them to consider.

The Scottish Committee greatly appreciated the efforts of everyone who attended the conference in making it the success that it turned out to be. It is planning to take forward a number of the issues raised at the conference. Here is a copy of the full report of the conference.

REPORT OF THE SCOTTISH COMMITTEE OF THE ADMINISTRATIVE JUSTICE AND TRIBUNALS COUNCIL CONFERENCE HELD ON 12th FEBRUARY 2008, EDINBURGH

"ADVANCING ADMINISTRATIVE JUSTICE AND TRIBUNALS" - Where we are now and where do we go from here

Lord Newton, Chairman of the Administrative Justice and Tribunals Council, made welcome and introductions

By way of setting the scene Lord Newton

  • Advised that in accordance with the Tribunals, Courts and Enforcement Act 2007 the Council on Tribunals became the AJTC in November. As well as a change of name the AJTC now has a much wider remit in Great Britain
  • The AJTC seeks to keep under review the performance of the Administrative Justice system as a whole - drawing attention to matters of particular importance or concern
  • It considers the relationships between the various components of the Administrative Justice system - in particular ombudsman, tribunals and the courts - ensuring they are clear complementary and flexible
  • It identifies priorities, encourages and makes recommendations for research - it looks to provide advice to government on changes to legislation including practice and procedures which impacts on the work of the Administrative Justice system

Lord Newton explained the purpose of today's conference was to

  • Consider administrative justice as it is now
  • Consider how it should develop in the future, and
  • Explore a range of administrative justice issues in terms of users

In organising this conference the Scottish Committee are seeking to enhance their role as a catalyst for sharing good practice and to explore opportunities for collaborative work with those involved in the delivery of Administrative Justice in Scotland

First speaker -

Bill Aitken MSP and Convener of the Justice Committee of the Scottish Parliament

Theme - Looking at "Administrative Justice in the Justice Committee and the Scottish Parliament"

In summary he -

  • welcomed the opportunity to speak at the conference and acknowledged the input of those involved in the tribunal world into the Scottish Justice system
  • appreciated the responsibility place upon tribunals particularly the lay members of tribunals
  • tribunals operate in a changing society - one where individuals are much more likely to know their rights - where advice is readily accessible - and a knowledgeable public are aware of the need to receive a fair hearing - they are also aware of human rights issues
  • The Tribunals therefore require to be innovative - they must take into account the continually changing backdrop of changes in the law and their interface with the courts and government
  • he acknowledged that the Tribunals were extremely fortunate to have so many dedicated individuals who were willing to give up their time and provide the tribunals with expertise to improving and serving the country
  • aware of the current review of Civil Courts and the cross-over into tribunals and its impact on administrative justice in general

Second speaker -

Lord Hamilton, Lord President and Lord Justice General

Theme - looking at "The importance of administrative law and the part tribunals play in that body of law"

  • welcomed the unique opportunity the SCAJTC Conference provided him to speak to a dedicated tribunal audience - appreciated the efforts of the SCAJTC in organising this event
  • acknowledged the evolving nature of tribunals and administrative justice and the role the AJTC and the Scottish Committee had to play
  • He has direct experience of tribunals - was a past President of the Pensions Appeal Tribunal in Scotland and also chaired Medical Tribunals - these positions gave him an insight into the specialisms that are required of tribunals
  • In 2005 he chaired the Scottish Tribunals Forum, (STF) - this group was made up of a wide range of individuals who had responsibility for Scottish tribunals and UK tribunals which operate in Scotland - it was heavily involved in establishing the pathways which led to establishing the Tribunals, Courts and Enforcement Act 2007
  • the STF is now under the Chairmanship of Lord Philip and the STF has a wider remit which includes ensuring that domestic Scottish Tribunals are not left behind in matters of funding and appropriate development
  • In acknowledging that there are significant differences between tribunals and the courts it was apparent that what divides the two systems is far less significant than what both share. In facing similar challenges both act as judicial office holders and exercise a judicial function
  • In 2007 the Judicial Council for Scotland was established and he was aware of the need that the tribunal world had due representation on the Council. Ken Kirkwood, Tribunals Service and Lord McGhie from the Lands Tribunal are members
  • the Council is a non-statutory body charged with providing advice to the Lord President and generally to the Judiciary of Scotland in matters relevant to the administration of justice. It aids, protects, advises and promotes the independence of administrative justice by co-ordinating the views and actions of judges, providing guidance to the judiciary on questions of ethics, eases the communication pathways between the various branches of the judiciary and collates these views. It basically deals with all matters of interest to the judiciary
  • the true significance of the Council is that it brings together perspectives from all levels of the judiciary including lawyers, tribunal chairs and district judges with a view to addressing matters of mutual interest and concern - it also considers appraisal and rules of conduct and discipline - there is a real possibility that this platform will lead to a sharing experiences between the tribunal and courts
  • Administrative law has never been more important than it is today - there is evidence to support the view that governments are increasingly held to account and judicial scrutiny - not just in parliament but also in the courts. Little doubt that in today's political environment the trend towards increasing challenge on government action and the competition for resources make the task of governing even more complex and more challenging and even more open to challenge than ever before
  • Government has therefore had to devise other more sophisticated administrative systems to manage and to review its decisions making process across an enormous range of social policy such as immigration, housing, taxation and social security. The basis for challenging administrative action continues to develop
  • He considered that lack of proportionality may become a common law principle providing an independent basis for challenge of administrative action and decision - there is also a need to be aware of International standards such as human rights legislation
  • There are clearly exciting times ahead - and it is important to state the importance that administrative law plays in ensuring government stays within the bounds of what it is entitled to do
  • Administrative law develops in tandem with government administration and decision making - Tribunals are in the front line and have a vital role to play - decision making in the first instance must be of the highest quality possible
  • Important that the Courts respect the undoubted skills of the tribunals - and a partnership between the courts and tribunals in the delivery of administrative justice is required - without tribunals the courts would collapse under the weight of work that they would require to undertake - it is difficult to see the courts being able to provide the same sort of cost effective, accessible , specialist expertise service to the public that the tribunals provide
  • Courts obviously have their place - they offer the ability to step back and bring general principles to bear on problems that can be obscure
  • as a result of the enactment of the Tribunals, Courts and Enforcement Act of 2007 this relationship is in somewhat of a flux at the present time. Under section 6 of the Act, judges of most courts may sit in the new first tier and the upper tribunal - under section 20, judicial review applications may be transferred from the court of session to the upper tribunal. These provisions offer greater flexibility and the potential for a system in which there are special strengths of the courts and of the tribunals which can be turned to good advantage in both forums.
  • care needs to be taken not to disturb the special relationship that exists between courts and tribunals. It may also be that the operation of these provisions in Scotland may and should operate differently from their operation in England and Wales.
  • The Lord President has an array of responsibilities in relation to Scottish tribunals and UK tribunals sitting in Scotland. Readily acknowledged the important role tribunals play in the justice system - it is an aspect of office which the Lord President takes very seriously
  • continual dialogue between the Scottish Tribunals Forum and the Lord President on a wide range of matters, including developing the potential of purely Scottish tribunals
  • The civil courts are currently in the process of a wide ranging review which is being carried out by the Lord Justice Clerk on the provision of civil justice by the Courts in Scotland. This considers their structure, jurisdiction, procedures and working methods. This is a golden opportunity for further examination in the way in which civil courts are structured and organised and to examine how they operate. The review is taking a very consultative approach which can only enhance the quality of the final product. The Lord President is positive that the information that tribunals can offer will add to the review and he encouraged tribunals to take part in the review.
  • valued the contribution of the tribunal systems towards creating a dynamic Scottish legal system with its own unique approach to administrative law and justice. He considered that those charged with administering the law through the courts would benefit from having experience of tribunals
  • Was sure that this conference would allow those involved with tribunals a great opportunity for sharing of views and experiences

3rd Speaker

Professor Tom Mullen - University of Glasgow

Theme "A critical analysis of the Scottish administrative justice landscape"

  • Covers an enormous field and a wide range of particular issues - looking today at a general overview of administrative justice on a system wide basis
  • Alive to the Scottish dimension but many of the important issues are UK wide - his talk looked and commented on public sector focus
  • The need for tribunal reform - initially started through the Leggatt Review - has since moved on through the White Paper on Transforming Public Service - concluded with the Tribunals Courts and Enforcement Act 2007
  • Other aspects include the Ombudsman Reform - consideration of a one stop shop in Scotland - the major review of civil justice in Scotland and the Crerar review - particularly aspects involving complaints handling
  • Reform is very much to the fore. One can see a systematic approach to administrative justice taking place - the creation of the AJTC along with a wider remit for the Council - and the establishment the Scottish Tribunals Forum
  • definitions of administrative justice includes - the initial decision making process and the need to have effective mechanisms for redress and also the rules under which decisions are made - they should be compatible with those in the Tribunals 2007 Act
  • Aims of administrative justice - administrators get it right first time - correct and defensible decisions - also the process should take account of delays, the structure and the availability of advice - when things do go wrong there should be effective accessible redress mechanisms and it is vitally important that lessons are learned from mistakes made
  • clearly a need for understanding the law - applying the law - exercising discretion - and appropriate feedback mechanisms are in place
  • current redress frameworks include - the courts, who are involved with judicial review - a wide network of statutory appeals - tribunals, inquiries, ombudsmen, independent complaints handlers and statutory reviews
  • Getting it right first time - not quite that easy - need to consider why won't decision makers get it right first time. This could be for a variety of reasons - unrealistic rules/policies - rules are too vague - rules are complex and difficult to apply - rules change so frequently - training
  • the responsibility for getting it right first time does not sit with one agency - responsibility sits on all levels of government
  • Need for a system-wide perspective - an end to end perspective - top up and bottom down approaches should be encouraged - a whole mix of redress systems are required - surely a case of horses for courses - it is not possible to use a one size fits all policy - tribunals need to be aware of possible overlap - there is merit and value in experimenting - introducing pilot schemes - looking at better alternatives - balanced against the costs involved
  • should consider forms and methods of redress - adjudication, arbitration, conciliation, early neutral evaluation, mediation, negotiation and ombudsmen
  • made mention of the First Minister speech on 31 January advising of the Scottish Government intention to consider an integrated tribunal system in Scotland - Public Sector Ombudsmen rationalisation has already been achieved in Scotland through the establishment of the SPSO
  • an issue surrounding the ownership of Administrative Justice Policy - the creation of MOJ is a forward step - but there is not a single point of contact for AJP - the cabinet office has responsibility for ombudsmen - considered there was a need for integration of government ownership
  • the AJTC is in a unique position to look at all aspects of the administrative justice system - still need to address who is responsible for what within the UK government and also the Scottish government
  • Other issues for consideration - limits on appropriateness of different methods of redress - use of internal hearings - internal and external reviews - early neutral evaluation - more use of ombudsmen/investigative techniques - single complaints portal - accessibility - costs
  • Need to learn from mistakes - feedback systems need to be effective
  • Awareness of the Scottish dimension - need to think what we can do in Scotland - legislative competence - relationship between UK and Scottish governments; the MOJ and Scottish government departments; UK tribunals in Scotland - and the relationship between the AJTC and its Scottish Committee and the relationship between Scottish Committee and Scottish government

2 Workshops considered "Getting it right first time" and 2 workshops considered "Effective Redress"

Morning Group 1

"GETTING IT RIGHT FIRST TIME"

Reporter: Audrey Watson

What gets in the way of getting it right first time?

main points discussed -

  1. Lack of resources at first tier decision makers
    • in the gathering of evidence e.g. medical evidence in DLA appeals - there was a consensus among the group that within the area of social security appeals, cases requiring medical evidence to be gathered have been adversely affected by cost cutting exercises. Medical evidence is no longer gathered in all relevant cases and this often leads to unnecessary appeals and adjournments for such evidence to be obtained. There is also little face to face contact between the decision makers and applicants leading to more cases having to be appealed. Independent adjudicators have been missing from the system since 1998.
    • for the training of staff – it was said that often staff at first tier level seem to take the role of application processors rather than decision makers. It was said that more resources are needed to train existing staff and recruit staff with improved skills to improve decision making. Staff must be aware of the extent of their discretion and should know what evidence is required before a decision can be taken.
    • to allow sufficient time for claims to be properly assessed - it was said that pressure of work leads to more appeals as claims are not given proper consideration.
  2. Can any appeal system possibly be a reliable indicator of the success or failure of first tier decision makers?
    • In asylum cases there is a very high appeal rate because there is so much at stake. Appellants exercise all appeal avenues and often are eventually allowed to stay due to the amount of time they have been in the country regardless of the merits of their appeals
    • In social security appeals only a very small percentage of decisions are appealed. This percentage varies across the country depending on the availability of affordable welfare rights advice.
    It is therefore sometimes impossible to know if decision makers are getting it right
  3. What's in it for the decision-maker to get it right first time?
     
    The system at present does not encourage the decision-maker and the tribunal to work together to improve the overall system for the user. One member of the group from Northern Ireland suggested that a system of punitive charges might be introduced which would affect the funding at first tier level to encourage less appeals.
  4. Complaints handling should be used to improve decision making. One member of the group gave the example of Stirling Council who regularly publish the outcome of complaints on its web-site and state what has been done to make improvements as a result.

 
Morning Group 2

GETTING IT RIGHT FIRST TIME

Reporter: Eileen MacDonald

Communication with the applicant

  • Need for effective review process at the earliest stage
  • Decisions should be easily understandable, given in a straightforward manner, using plain English - a person with no legal background should be able to understand the decision

Decision making process

  • The process should be fair and seen to be fair - user friendly regardless of the decision - independent
  • There is inadequate means of feedback from tribunals to legislation makers in respect of "bad" legislation. At present, there is no mechanism for dialogue between the tribunal and Parliament, other than their decision commenting on or criticising any problem the tribunal has identified in relation to substantive law. Consideration should be given to establishing a dedicated unit with government to liaise with tribunals in respect of this issue.
  • There should be equality of arms insofar as representation is concerned. Representatives should be of a high standard and able to represent properly, efficiently and effectively.
  • Quality of decision making requires decision makers to be trained properly and to be of a high standard.

 
Morning Group 3

EFFECTIVE REDRESS

Is it time to review the effectiveness of the current variety of redress mechanisms, assess their strengths and weaknesses and attempt to establish the most effective redress mechanisms for different types of grievances?

Reporter: Lyndy Boyd

  • Each member of the group gave examples of the forms of redress/outcomes of the system with which they were involved. These tended to be case by case decisions with outcomes for individuals, for example financial compensation or reversal of the decision of an initial decision maker, although one or two group members had a wider role in suggesting systemic change. A central area discussed by the group was the possibility of looking beyond the individual to a broader concept of redress, such as increased focus on systemic issues. Some group members considered that this may be a way for some Tribunals to provide added value. However, other group members expressed concern about this approach, for example in relation to the constraints of current legal frameworks and the possible tension between judicial decision making and involvement with broader recommendations or learning outcomes.

 
Morning Group 4

EFFECTIVE REDRESS

Reporter: Michael Menlowe

Do we need to review the variety of redress mechanisms?

  • The group agreed that it would be appropriate but there was uncertainty that there is a problem from the applicants' point of view. There is a lack of empirical information.
  • Possible to aim for a limited number of models rather than 'the' most effective model.
  • It would be useful to standardise the times for the redress processes
  • The experience of the First Tier of the Tribunals Service and the recent announcement of the First Minister were noted

Thoughts about forms of redress other than adjudication

  • Legislation can assist in bringing in new forms of redress (eg) mediation
  • Mediation may be difficult to embed in administrative justice generally since it does not necessarily produce the 'correct' result
  • Since we are in the early days of Alternative Dispute Resolution, perhaps an evolutionary approach would be best. Related problem of the difficulty of embedding ADR into a more formal process: (eg) stopping the clock for mediation.
  • Tension between public bodies that want certain kinds of outcomes and an individual who just wants a solution to his/her problem.

 
Afternoon Group A:

"A NEW APPROACH TO COMPLAINTS HANDLING"

Reporter: Lyndy Boyd

Professor Crerar expanded on his earlier presentation.

In general group members appeared to respond positively to the idea of taking a fresh look at how complaints are handled in Scotland. There was also acknowledgement of the complexity of the current landscape. There was broad agreement on a number of matters, including:

  • There should be more standardisation of the process/methodology for dealing with complaints. For example a similar model could be used by all local authorities, and within each authority.
  • Where possible, the aim should be for complaints to be resolved as close to the source of the complaint as possible.
  • Complainants can have difficulty in understanding the appropriate route for making a complaint. An underlying difficulty may be the fragmented nature of Scotland's administrative system/the complexity of the provision map.
  • Lessons learned from complaints in one environment could be more effectively used in other environments.

Group members also discussed or raised several other matters, including:

  • The impact of the fact that some organisations view complaints as negative.
  • The question of what is a complaint, for example, where is the line drawn between an enquiry, observation, feedback, and complaint.
  • Complaints handling is not the core business of local authorities, and time spent on this may impact on the provision of key services.
  • The negative impact that a local appeals body may have on the visible independence of the body dealing with this stage of complaints.
  • The review of a decision in relation to a complaint must be independent and objective.
  • The appropriate role of an overarching body.
  • The overlap between complaints in the private or voluntary sector and public sector.

 
Afternoon Group B

"ADVICE AND REPRESENTATION IN THE NEW ERA"

Reporter: Eileen MacDonald

The Group looked at the following areas

  • The quality of representation
  • Training for the tribunal panel
  • Can and should citizens represent their own interests - limited resources of the applicants and inequality of arms that can arise
  • Use of mediation - doesn't always work - not legally binding
  • Loss of faith by the public in ADR, especially mediation, if unsuccessful
  • Deterioration in working relationships as a result of centralisation
  • Importance of seeing 'person' so that correct information will be elicited in the first instance at every stage of the process
  • Public often confused by the systems that are available to them to complain - where to go in the first instance - complexity of complaints systems – need for streamlining

 
Afternoon Group C:

"STRUCTURE AND RELATIONSHIPS BETWEEN TRIBUNALS IN SCOTLAND"

Reporter: Audrey Watson

The group started by asking the question - "is Leggatt valid in Scotland?"

The 2 main Leggatt principles were identified as –

  • Tribunals should be independent of their sponsoring government departments
  • A system of tribunals should be coherent in order that appellants understand how to appeal

All members agreed that the Leggatt principles were as valid in Scotland as they are in England & Wales.

There were 4 options discussed for Scottish tribunals -

  1. the status quo i.e. a variety of different tribunals operating alongside each other with lots in common but little interaction between them apart from at events such as these and the Tribunal Forum – there was no support for this option
  2. all Scottish tribunals should become part of the Tribunals Service – again no one spoke in support of this option
  3. the creation of a separate Scottish tribunals service for Scottish tribunals not within the Tribunals Service
  4. the creation of a separate Scottish tribunals service including the Employment Tribunal Scotland – it was suggested that this option would involve a system large enough to make it viable

The group welcomed the news that the issue of tribunals now seems to have found its way onto the political agenda. It was discussed that the politicians will need to make the decision as to which option is preferable.

The advantages of options 2, 3 or 4 were seen to be

  • sharing of venues
  • sharing of generic training
  • sharing of staff – clerks, admin staff and the tribunal judiciary
  • centralised recruitment

and it was anticipated that all these advantages would lead to cost savings.

The group then went on to discuss what can be done before decisions are taken. Sharing of venues was the issue focussed on by the group. It was stated that the Tribunals Service have spare capacity at some of their Scottish hearing centres e.g. Stirling and Inverness. Norman Egan from TS said that his organisation would be interested in sharing venues with other tribunals. He said that when they are opening new centres it would be useful to know if other systems could make use of these. He said that he would be happy to arrange a meeting between TS and representatives of Scottish tribunals. It was agreed that he could get contact details for the other systems from the Scottish Committee of the AJTC.

It was also discussed that there need to be structures put in place to allow staff and training resources to be shared. One member employed full time by the TS but with a part time appointment at a Scottish system said there was no mechanism for his salary to be paid for by the Scottish system on the days that he sits as a judge in that system.

The group also discussed whether appeals to an upper tier system would be workable in Scotland. It was noted that this already works for employment cases but it was suggested that there may not be enough business to make it viable. It was suggested that if such a system was not put in place, Scottish appellants in the mental health and additional support needs systems would be disadvantaged by having to appeal to the Court of Session which is a much more difficult and costly route. It was suggested that judicial review is not an adequate form of review from tribunals due to its complexity, cost and the fact that it is not available locally.

It was hoped that many of these issues would be discussed in detail by the Scottish Tribunal Forum as it was feared that if no action was taken that there would be an increasing gulf between the Scottish tribunals in the Tribunals Service and the other Scottish tribunals operating out-with the Tribunals Service.

 
Afternoon Group D

"PRACTICAL APPLICATION OF ALTERNATIVE DISPUTE RESOLUTION"

Reporter: Michael Menlowe

The group considered the following points -

  • Participation in mediation
  • Success rates and satisfaction of users of mediation process - more empirical data required.
  • Success ACAS has enjoyed in its role
  • The role of mediation in Administrative Justice
  • The style of intervention needs to be appropriate to the aims of intervention
  • Difference between good result and the correct result
  • Balancing of power - wide ranging issues covered in this phrase
  • Time is ripe - to intervene - to settle - correct timing is essential both to deciding when to intervene as a mediator (or better, when mediation might be appropriate) and seeking a settlement as part of the mediation process
  • Mediation is "human relations"
  • When mediation might be appropriate as a process
  • Must be a desire by both stakeholders to settle

 
The Panel Session

The Panel - Tony Newton (Chair); Lord Philip; Paul Cackette; Peter Handcock; Colin Milne; Tom Mullen; Alistair MacLeary

The Panel commented on the issues that had arisen during the course of the afternoon discussions and the comments emanating from the feedback from the workshops.

 
Conference end

Lord Newton and Professor MacLeary thanked the guest speakers for their contributions and the delegates for taking the time to attend the conference. It was hoped they had enjoyed and benefited from the opportunity the conference provided. Special thanks were given to the Secretary, Marjorie MacRae who was shortly to retire. They particularly wished to thank her for all her help and efforts in organising this conference.

 

Scottish Committee of the AJTC
George House
Edinburgh

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