Public Bodies (Abolition of Administrative Justice and Tribunals Council) Order 2013

Lord Beecham Excerpts

Monday 22nd July 2013 Lords Chamber

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[Lord Beecham]

At end to insert “but that this House regrets the proposed abolition of the Administrative Justice and Tribunals Council, which will remove independent oversight of the justice and tribunal system at a time when it is undergoing major change”.

[Lord Beecham]

My Lords, the amendment in my name would add to the Motion moved by the Minister that,

“this House regrets the proposed abolition of the Administrative Justice and Tribunals Council, which will remove independent oversight of the justice and tribunal system at a time when it is undergoing major change”.

I am grateful to the Minister for so clearly outlining the Government’s thinking and the details of their proposals.

Of course, the fate of the AJTC was debated at length during the passage of the Public Bodies Bill, which lit the torch for the Government’s proclaimed bonfire of the quangos. Deep concern was expressed in all parts of the House, led by the late and much lamented Lord Newton, to whom the Minister rightly paid tribute, and endorsed by the noble and learned Lords, Lord Mackay of Clashfern, Lord Woolf and Lord Howe, among many others.

Lord Newton had served with great distinction for 10 years as chairman of the Council on Tribunals, a non-departmental public body attached to the MoJ with oversight of the tribunal system, which in turn was replaced by the AJTC. Administrative justice as a feature of our legal system has grown in importance over the years in response to the need to offer an accessible means of redress for citizens wishing and needing to challenge the decisions of public bodies in a wide range of contexts. This changing landscape, incidentally, is another example of why, with justification, the original scope of the civil legal aid and advice scheme widened over the years, much to the apparent distaste of the present Government, who have in effect withdrawn administrative justice from what remains of legal aid.

The proposal to abolish the council evinced little response other than hostility both inside and outside Parliament. Having established three tests by which the status of public bodies was to be charged—namely, whether the body is needed in order to “perform a technical function”, whether it needs to be politically impartial and whether it needs to,

“act independently to establish facts”.

The Minister in the House of Commons, giving evidence to the Public Administration Select Committee, avowed that the council failed all three.

The Public Administration Select Committee, on the other hand, thought that,

“it could be, and has been, argued that the AJTC in fact meets all three of them”—

a judgment with which I profoundly concur.

The committee pointed to the high level of successful appeals across the system, with higher rates when legal representation was available, declaring:

“This poor decision-making results in injustice to individuals and cost to the taxpayer on a scale that PASC finds unacceptable. The role of the AJTC in providing an independent overview … is therefore one of vital national importance … overseeing a system that protects the rights of millions of citizens every year”.

It concluded that,

“oversight by an entity independent from Government is valuable and should be continued”.

The Justice Select Committee, in its eighth report for the previous Session, echoed many of these concerns and, while conceding that certain functions might be transferred to the Ministry of Justice, stated that it did not,

“believe that the abolition of the AJTC satisfies the statutory tests”,

set out in the Public Bodies Act,

“in respect of efficiency and effectiveness”.

I note in passing that, interestingly, in evidence to the Public Administration Select Committee, the Minister in the other place did not seem to rely on these tests. The Justice Committee concluded by recommending,

“that the Government reconsiders its decision to abolish the Council”.

The Minister, Helen Grant, rejected this recommendation in a brief letter which did not address the concerns raised by the committee, and which was copied to the Scottish Parliament Justice Committee, of which the Justice Committee knew nothing until its attention was drawn to it by the Scottish committee—clearer evidence of the woeful incompetence of the Ministry of Justice could hardly be imagined.

The Government’s proposals, affecting as they do some 650,000 people a year who appear before tribunals, sit oddly with the retention as non-departmental public bodies of the Civil Justice Council, when only 63,000 cases, roughly 10% of those appearing before tribunals, come before the civil courts, and the Family Justice Council.

Moreover, as Lord Newton pointed out, administrative justice is not confined to tribunals. It extends to local authorities and important areas of administrative justice,

“including, in education, school admissions and exclusion appeals”.

He went on to say that,

“it also includes the whole area of decriminalised parking … They have nothing to do with the Ministry of Justice but they amount to important areas of administrative justice”.

For an essentially gentle man, Lord Newton went even further, declaring:

“The Ministry of Justice knows nothing—and, frankly, as far as I can judge, cares less”,—[Official Report, 28/3/11; col. 993.]

about these latter issues.

In debates on the Public Bodies Bill and subsequently, Ministers have shifted the basis of their argument to one of cost, yet the amount of the savings they predict are, even on the scale of the MoJ’s budget, let alone public expenditure as a whole, trivial—all of £700,000 a year, as the Minister has confirmed. The council’s running costs have already been reduced from £1.2 million in 2010-11 to that figure.

Where is the evidence that the MoJ, of all government departments, has the capacity to deliver the work hitherto carried out by the council and to press on with the work of improving the system, securing better decision-making and reducing the need for appeals, as opposed to putting obstacles in the way of appeals by withdrawing legal aid and advice or—as in the case of employment tribunals, which we debated last week—imposing fees which will deter claimants from using them? This, after all, is the department responsible for the fiasco of the interpretation service, for the problems of the single court issue of money claims, and for the recently exposed disaster of the electronic tagging contracts. This is the department that is pushing ahead with untested proposals in relation to the probation service and payment by results and which refuses FoI requests for information about pilot schemes that it abandons. Dickens would have rejoiced at the opportunity to satirise a department that combines all the vices of the Court of Chancery in Bleak House and the Circumlocution Office of Little Dorrit.

There is a more fundamental point. How can the Government, who are enacting legislation, promulgating regulations and changing structures in these important areas of administrative justice, and at the same time hugely reducing legal aid and advice, justify the absorption of an independent body with a remit to oversee the whole system and advise government? The Administrative Justice Advisory Group, which the department has set up, is in no way a satisfactory alternative, having, in the words of evidence given to the Public Administration Committee, no status, standing or budget of its own. It lacks a chairman and a secretariat, it is dependent on MoJ policy staff and it meets only twice a year.

What is the Government’s response to the nine recommendations made in the final report of the AJTC on ways to,

“maximise the robustness of this body”,

which, at the moment, has all the attributes of a watchdog equipped with neither bark nor bite? What is the position of the devolved Administrations in Scotland and Wales? Hitherto they have been represented on the AJTC. Will they establish their own councils once the AJTC disappears and, if so, what will be their relationship to the MoJ on areas of administrative justice covering non-devolved matters such as welfare or employment law?

The House will wish to pay tribute to the members and staff of the council who have been on organisational death row for three years but have managed to continue to discharge their responsibilities with exemplary fortitude. It is worth quoting further from the final report. It refers to the predicted nearly 100% increase in First-tier Tribunals for social security and child support to 807,000 cases a year by 2015-16 as illustrating the pressures with which the system will have to cope, exacerbated by the wholesale reduction of access to legal aid and advice, which we have so often debated.

The council questions, with reason, whether HMCTS, which is reducing the publication of performance data, is able to or has the independence to monitor performance. Its final report poses several questions about the role of HMCTS. I will quote from that report. The AJTC rejects,

“any suggestion that HMCTS is independent of government. HMCTS is not a judicial body”—

although it may have judicial representatives upon it—

“and it does not operate on an arms-length basis from its sponsor department. Rather, we believe that HMCTS as an executive agency of the Ministry is ‘as much part of government as the MoJ itself’, with MoJ Ministers being accountable within Parliament for what HMCTS does in the same way as they are for what their departmental officials do”.

The council concedes that,

“the constitution of the HMCTS Board provides some independence in the governance of the agency”,

although not its role. The council points out that,

“whatever the correctness of our view on the independence of HMCTS, such is not relevant to the separate question of the existence of and need for a body to offer independent advice to government, which is currently offered by the AJTC and in future could only possibly be offered by”

the advisory group, with all the limitations to which I have referred. The council raises a series of other points about the performance and the future of HMCTS, which are surely germane. The council makes the point that:

“The task therefore of ensuring effective scrutiny will be many times more difficult in future than it has been … Cutbacks in the availability of advice and legal aid and the introduction of fees … are likely to act as even greater barriers and disincentives to redress than restrictions in the availability of judicial review”—

about which there is also great concern—and, tellingly, that there are,

“disturbing signs that MoJ explicitly sees the use of fees as a mechanism to reduce demand on the tribunals system”.

Can the Minister deny these serious charges?

I conclude with a final quotation from the council:

“There is an inevitable risk that those who have access to the levers of power may yield to the temptation to use them to exclude or restrict challenges. And even if that temptation on occasion is resisted there will always be the suspicion that it may not be resisted on others. Effective oversight is necessary both to ensure that temptation is resisted and also to create confidence amongst citizens that it will be”.

I wholly endorse that view and I suspect that I am not alone. I beg to move.

[Lord McNally]

My Lords, considering that this is the third time today that the noble Lord, Lord Beecham, and I have faced each other across the Dispatch Box—admittedly the other two times were in the Moses Room—he is in fine and feisty form. But his speech revealed what I think is the abiding problem of the Labour Party when looking at these matters: savings are always trivial and can be dismissed; always look for the firewall of a committee to get between a Minister and responsibility; and, if in doubt, appoint a consultant or, even better, a tsar. It is a philosophical difference between us. I really do believe that this is where responsibility lies and that the effective oversight he called for should be oversight in Parliament by parliamentarians to Ministers at the Dispatch Box. We will have to disagree on some of these matters, but I will try to answer a number of the points that he made.

The noble Lord mentioned the AJTC’s report on the Future Oversight of Administrative Justice. This final report was published on 17 July and the department has not yet fully considered the recommendations in detail. However, we thank the council for its constructive recommendations. We are already tackling many of the issues raised, such as the need for good-quality information and signposting, and the Right First Time agenda. We also welcome the AJTC’s invitation to parliamentary committees to take an enhanced role in scrutinising the work of the department in this area. We will consider the report’s recommendations as we progress our strategic work programme and build on the principles of fairness, efficiency and accessibility.

The noble Lord also asked about administrative justice in reserved sectors in Scotland and Wales. We are focused on ensuring that users of the system can expect consistency of service and adjudication, no matter where they access it. The MoJ has agreed to support the Governments in Scotland and Wales to complete their reform programmes. We believe that the change in approach will be beneficial to users by encouraging closer working between the bodies actually responsible for developing policies and implementing reforms. We have draft formal protocols between the UK Government and each of the devolved Administrations to oversee the system. These will include examining and addressing issues for users in Wales, Scotland and Northern Ireland accessing reserve tribunals.

--- Later in debate ---

I have made the point previously—but it bears repeating—that undue emphasis is being put on the benefits that arm’s-length bodies can deliver. By doing so, we risk downplaying the checks and balances that are in the direct line of responsibility running from Ministers to the Floor of both Houses. As I have said, this is the place where responsibility lies. We need those responsible for the system to drive through the changes needed to improve the services for users and to be answerable for those actions at the Dispatch Box in both Houses of Parliament. I hope that the noble Lord will withdraw his amendment and that the House will approve the order.

[Lord Beecham]

My Lords, needless to say, I am not persuaded by the Minister’s argument. Indeed, one could go on to examine further the problems with a system administered by HMCTS, not least in the context that that organisation itself will presumably be subject to some reorganisation or privatisation of some of its functions. I do not accept that that can offer an independent service, nor that independent agency is superfluous. It is very important for public confidence that there should be an independent body as effective as the council and its predecessor have been. However, it is clear that the Government are going to proceed with this. There is not a massive attendance in the House tonight and there is therefore no prospect of my amendment being carried were I to put it to the vote. In any case, it would not be fatal. In the circumstances, I beg leave to withdraw the amendment.

Amendment to the Motion withdrawn.