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

Lord McNally Excerpts

Monday 22nd July 2013 Lords Chamber

Moved by

[Lord McNally]

That the draft order laid before the House on 18 December 2012 be approved.

Relevant documents: 15th Report from the Joint Committee on Statutory Instruments, Session 2012–13, 25th, 32nd and 35th Reports from the Secondary Legislation Scrutiny Committee, Session 2012–13, 2nd and 7th Reports from the Secondary Legislation Scrutiny Committee, Session 2013–14

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, before starting my speech it would be remiss of me if I did not pay tribute to the late Lord Newton. He was passionate about administrative justice and provided rigour and challenge in your Lordships’ House to the proposals contained in the Public Bodies Act. We will all feel his presence and spirit with us in today’s debate.

The purpose of this draft order is to abolish the Administrative Justice and Tribunals Council using powers provided in the Public Bodies Act 2011. Before setting out further details on the order, I will briefly explain some of the background. The AJTC is an advisory, non-departmental public body, not a tribunal or any other form of judicial body. It does not exercise powers that relate to judicial independence or judicial decision-making. It was created before much of the reform of recent years was implemented—crucially before a unified tribunal structure was put in place.

The Government announced proposed reforms to public bodies on 14 October 2010. It was considered that the oversight of the administrative justice system and development of policy was properly a function of government, and also that the AJTC’s oversight functions with regard to tribunals were no longer required, given the governance and oversight arrangements that exist within HMCTS. The AJTC was therefore included for abolition in the Public Bodies Bill. A public consultation, including the proposal to abolish the AJTC, was launched on 12 July 2011 and closed on 11 October 2011. The Government’s response to the consultation was published on 15 December 2011. After considering all the responses to the consultation, the decision was that the AJTC should be abolished. Following further policy development and discussions with the devolved Administrations during 2012, the draft order was laid before Parliament on 18 December 2012.

Noble Lords will no doubt be aware of the scrutiny given to this draft order by both the Justice Committee in the other place and the Secondary Legislation Scrutiny Committee in this House. The Secondary Legislation Scrutiny Committee has fulfilled its role in that regard with its customary thoroughness, but that is not to say that I am in agreement with all its conclusions. Section 8 of the Public Bodies Act provides certain criteria that Ministers must consider have been met when making an order under the Act. Taking each of these in turn will give a full account of how the order meets the requirements of the Act.

On efficiency, abolishing the AJTC will remove duplication of functions and ensure that the state provides only what is necessary to support the administrative justice and tribunals system. The reforms of recent years mean that the vast majority of the system is now administered by HMCTS and so is managed independently of the departments whose decisions are being challenged. I believe that this is a vital point. I know that in a debate on the Public Bodies Bill the noble Lord, Lord Pannick, expressed concern that the Government are often defendants in tribunal proceedings. This in no way compromises the independence of the tribunals judiciary which determines cases impartially and acts independently. This independence is also reflected in the governance of HMCTS which has an independent, non-executive chair and has two judicial representatives on its board. It also has a dual reporting line to both the Lord Chancellor and the Lord Chief Justice. For those limited number of bodies that are outside the oversight of HMCTS, Ministry of Justice officials already work with the relevant departments, the bodies themselves and others to identify and share good practice as well as tackle areas of concern. This is an approach that works well. It is solution focused and one that the department is keen to build on.

The Administrative Justice and Tribunals Strategic Work Programme, published in December 2012, sets out the areas on which the Government will focus until 2015. Objectives include improving initial decision-making by government and making systems and processes more accessible and proportionate for users. The noble Lord, Lord Borrie, commented at Report that there will no longer be a group coming together and discussing important issues of administrative justice. The Government listened to such concerns and in May 2012 established the Administrative Justice Advisory Group, which provides an expert and critical forum to review the system from a user perspective against the strategic work programme. The advisory group supports and guides this by informing policy development from the perspective of users of the system. For instance, members from the group contributed to the development of the strategic work programme ahead of its publication. The group is also able to form sub-groups to look at specific issues, such as improving user guidance. To date the advisory group has been chaired by a director from the MoJ. Having reflected on concerns raised by your Lordships’ Secondary Legislation Scrutiny Committee, my right honourable friend the Secretary of State for Justice has decided to appoint an independent chair to the advisory group on abolition of the AJTC. Whoever fills the post will have responsibility for ensuring the group’s collaboration to give robust, evidence-based challenge; building consensus and ensuring that the different representative bodies work together; galvanising action to inform improvements to the system in line with the MoJ’s principles of efficiency, fairness and accessibility; providing strong leadership to the group and representing its views to Parliament; and ensuring that the group delivers on its aims and objectives, as set out in its terms of reference.

On economy, those opposed to abolition have cited the modest or insubstantial savings involved and questioned the estimates provided by the ministry. Let me be clear on both counts: the AJTC currently costs £700,000 per year to operate. While this represents a reduction from its 2010-11 budget of £1.2 million, it is still a significant amount of money at this time. Based on a revised closure date of late August, which allows for a four-week orderly close-down period following parliamentary approval to the order, we estimate gross savings of around £1.2 million across the remainder of 2013-14 and 2014-15. Costs of closure are estimated to be around £0.6 million over the same period. This includes £300,000 for possible redundancies at the AJTC and £300,000 for reimbursements to the Scottish and Welsh Governments for the creation of interim non-statutory bodies to replace the AJTC in Scotland and Wales. This means net savings of around £0.6 million over the rest of this spending review period and, of course, this would represent a long-term saving well beyond the spending period. No further costs are estimated from our successor arrangements. The advisory group is supported using existing resources within the policy group in MoJ. The costs of recruiting and remunerating the independent chair of the AJAG are negligible—some £10,000 to £15,000—and will be met from the budget required to implement policy changes.

I now turn to securing appropriate accountability to Ministers. The abolition of the AJTC will not result in any loss of accountability. Ministers are, and will remain, ultimately accountable for the administrative justice system and for HMCTS as an executive agency of MoJ. HMCTS is responsible for the performance of the unified system. A minority of tribunals sit outside HMCTS and remain accountable to Ministers through their respective departmental channels. MoJ will re-examine the case for bringing these remaining existing tribunals into the unified tribunal system. Where they are not brought into the unified system, MoJ will still, as it does now, keep their administration and performance under review.

On the removal or loss of protections, rights and freedoms, the abolition of the AJTC will not result in the removal of any necessary protection and no person will be prevented from exercising a right or freedom that they might reasonably expect to continue to exercise. Abolition does not prevent anyone from accessing a tribunal or an ombudsman to vindicate or protect their rights or freedoms. Tribunal users can still make their voices heard by raising concerns with their elected representatives or through the user groups that exist in most HMCTS tribunal jurisdictions. Concerns may also be raised by their elected representatives with the Parliamentary and Health Service Ombudsman.

I stress that no part of the administrative justice system currently included under the AJTC’s overview remit will be left out under the new arrangements, including those tribunals and bodies currently outside the unified tribunal system. There is no “hiatus” in oversight as has been mentioned in scrutiny reports. HMCTS’s governance structure, with its strong judicial representation, provides a clear level of protection to the public in respect of its oversight of the unified tribunal system.

Parliament will also have an important role to play in scrutinising the work of the department. In his response to the Public Administration Select Committee report on the future oversight of administrative justice in May 2012, the Lord Chancellor agreed, following the AJTC’s abolition, to report annually to the Public Administration Select Committee on the following: details of the resourcing of the department’s administrative justice function; actions taken by Ministers and officials to improve the operation of the system; details of how the views of users of the administrative justice system have been sought and addressed; and details of work undertaken with other departments, devolved Administrations and local government to improve administrative justice for the citizen. Parliament will therefore have the means of ensuring that the Government are held to account for oversight in this area and provide a further layer of protection for the public.

It is important to have had this opportunity to set out in some detail the Government’s plans for oversight of the administrative justice and tribunals system following abolition of the AJTC. What we propose is about delivering real improvements, based on ministerial priorities and on evidence gathered by capable and experienced officials working with colleagues and experts from other departments and from across the system. We disagree that oversight has always to take place at arm’s length from Ministers and departments. It is absolutely in the interest of government to reduce demand on the system, get decisions right first time and make the system accessible and proportionate to users. This, I think, we are doing. I commend this draft order to the House. I beg to move.

--- Later in debate ---

[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.