14 December 2013

"Bringing Scotland into line with England..."

Making many of the Westminster government's mistakes, but more slowly. It is hardly a spirit-kindling motto for devolution. "Bringing Scotland into line with England" represents one of the most curious tendencies of this SNP government. 

The argument was deployed in 2011 to introduce the offence of incitement to religious hatred north of the border, despite the fact that the party had, in my view rightly, opposed an identical measure, introduced by Tony Blair's government in 2006. England, understandably, is the main comparator for corroboration reform, which will eliminate one of the most distinctive features of Scots criminal procedure. The Scottish Ministers are also taking Westminster's lead when it comes to tribunal reform.

Politically, the fate of tribunals may not stiffen the sinews, or summon up the blood, but they're important.  With the growth of the administrative state after the Second War, tribunals sprung up around the executive like mushrooms, attached to a whole gamut of statutory schemes. The minority - like the Employment tribunal - consider party to party cases, often with legal representation, and closely resemble our civil courts. 

But most concern disputes between citizens and the state. Unhappy with how the Criminal Injuries Compensation Authority has handled your claim? You can take it up with the review tribunal. In dispute about tax assessed as owed? There's a tribunal for that too. Disagreements about social security and child support entitlements, immigration decisions, detentions under the Mental Health Act - tribunals offer a mechanism independently to review a vast swathe of executive decision-making.

In their aspirations at least, most tribunals aim to cultivate greater informality and less expense than ordinary courts for their users. You needn't instruct counsel: people taking cases before them generally need not be legally represented. For many, no fees are levied.  The panels, if not inquisitorial in their approach towards resolving the dispute, adopt a more investigative posture towards it than the classic understanding of a judge in adversarial systems, as a passive arbiter between the parties. 

They also break with ordinary courts by putting experts, not in the witness box before a legally-trained judge, but on the decision-making panel itself. The Mental Health Review Tribunal, for example, includes personnel from medical backgrounds, as well as lawyers. The thinking is that, tribunals will achieve a measure of specialisation in their respective fields, constantly exposed to the workings of the executive departments they review, rather than our generalist judges serving in the civil courts, chancing across these issues once in a blue moon in judicial review.

That's the theory, anyway. The empirical evidence from tribunals offers a considerably more ambivalent picture. Despite the rhetoric of accessibility, many unrepresented applicants understandably approach their tribunal hearing with apprehension. It isn't obvious that a court would be markedly less stressful. Considerable legal formalism and difficulty still marks the decision-making process too.  Kicking lawyers and adversarial legalism out of the system is not without its attractions. But the legal norms being applied by these tribunals can be complicated, and the lack of representation offers only a veneer, an illusion of informality, while many legally unturored applicants still struggle to identify the relevant issues of fact and law around which their case really turns.

However patchily, however unsuccessfully they realise these aspirations, tribunals shouldn't be thought of as the civil courts' anaemic, callow kid brother. They promote laudable aims, of increasing the celerity and the accessibility of justice in a world where access to legal remedies is becoming more and more like the Ritz Hotel of Victorian London: open to the wealthy and the rich alike, but you don't see many paupers in the Deluxe King suite.  Tribunals emerged, albeit on a fragmented basis, as a response to the problems and limitations of courts. It's for that reason that recent reforms, and the threat they might represent to tribunals' fragile yet distinctive character, are rightly concerning.

Acting on the basis of the Leggatt Report, in 2007 the UK government rationalised the whole tribunal system in England and Wales (and the reserved tribunals in Scotland), condensing the various bodies into a neat two-stage system.  The First Tier tribunal would take all first-instance decisions, with the possibility of review by the Upper Tribunal on point of law. Nothing wrong with that. But significantly, the legislation also judicialised these executive bodies, providing for a judicial independent appointment processes to ensure their independence from the departments they review, rechristening the personnel serving on these tribunals "judges".  

This advancing judicial logic was reflected in the 2010 decision of the coalition to merge the now independent tribunal service with Her Majesty's Court Service, responsible for the administration of the ordinary courts in England and Wales.  The coalition followed the outgoing Labour government, taking this decision was taken after a paper-thin consultation with little research or recognition of the distinctive cultures dividing tribunals from courts. 

The usual nostrums about efficiency and cost-savings were trotted out by Ministers, but the development prompts obvious concerns for the autonomous administrative justice values which tribunals strive to pursue. As Professor Michael Adler observes, "this, at the very least, puts a very big question mark over the prospects for tribunal justice in the UK",  continuing:

"In his response to consultation, Richard Thomas, Chair of the Administrative Justice and Tribunals Council, expressed concern that the merger would raise significant risks for tribunal users if it led to a ‘one size fits all’ approach that took insufficient account of differences in the ways in which citizen vs. state disputes are handled in tribunals and party vs. party disputes are handled in courts. 49 There is, of course, some overlap between courts and tribunals. Some courts, particularly lower-tier courts dealing with small claims, housing disputes and family matters, have adopted the active , interventionist and enabling procedures that are associated with tribunals and, especially where the parties are not represented, adopt inquisitorial rather than adversarial procedures.
At the same time, some tribunals, particularly when the parties are represented, are rather formal, adopt a ‘hands-off approach’ and favour adversarial rather than inquisitorial procedures. Some people argue that it doesn’t matter what the forum is called, i.e. whether it is called a ‘court’ or a ‘tribunal’, that what matters is the appropriateness of the procedures that are adopted and that a unified Courts and Tribunals Service should be in a good position to determine the appropriate procedure for dealing with different types of disputes.
However, there are real differences in culture between courts and tribunals and there is little doubt about who the senior partner in this merger is. There is thus a real danger that a ‘court culture’ will prevail in the unified Courts and Tribunals Service and that the distinctive approach to dispute resolution that has been associated with tribunals, and championed by its supporters, will be put at risk."

Now, at the instigation of Scottish Ministers, Holyrood is plodding after Westminster, essentially copying this half-rationalised model and applying them to the devolved tribunals, shifting them to the judicial branch of the state, under the ultimate authority of the Lord President and subject to administration by the Scottish Court Service.

While the streamlining of these disparate Scottish tribunals into a unitary Upper and First instance structure with consistent appeal mechanisms seems sensible, the judicialising drift in administrative justice policy is much more problematic. As Richard Henderson argues in a recent piece for the Guardian on the proposed reform, "the real risk is that the distinct characteristics of tribunals will fade after the merger, gradually to be succeeded by something resembling the courts as we know them."

Tribunals may not ignite fires in many political bellies, but their characteristics and aspirations are of the utmost political importance, mediating between citizens and the state, offering a distinctive account of the sort of justice which ought to be available to the citizen. The argument for "bringing Scotland into line with England" just isn't good enough.


  1. "......while many legally unturored applicants still struggle to identify the relevant issues of fact and law around which their case really turns......"

    Quite so, however, lack of legal tutoring is only a minor encumbrance to an applicant regarding her or his identification of the salient points of their case. In my experience over the past decade, I've discovered that the great mass of humanity is deeply, deeply stupid - especially here in North America. The anti-intellectualism is rampant - and it ain't new!
    To wit:
    James Garfield, the 20th President of the United States of America, devised his own novel proof of the Pythagorean Theorem – something not often done since, well, Pythagoras. He was also fully ambidextrous. It was said that if you asked him a question he could write the answer in Latin with one hand and in Greek with the other – simultaneously!

    And they shot him for this!!??!!??!!

    America’s hatred for learning goes way back.

    1. Nice pic of the 'Widow Capet' by the way. You're so cynical. Were you too old when your brethren and sistren invented the deep-fried Mars Bar and therefore could not partake of this oh so Scottish of culinary delicacies as a wide-eyed child when it should be experienced?
      My sarcastic awakening occurred when I was 18 and had my first, and last, McDonald's hamburger.
      Like Papism, these sorts of things must be enjoyed as a child - or it's too late!

    2. I think my cynicism popped out when I was about 7 or 8. Horrid wean. Happily (or unhappily, depending on your perspective!) I managed to escape adolescence without any exposure to the Catholic Church's moral teaching.

    3. Horrid wean?
      Nyuck, nyuck.

      I managed to escape adolescence without any exposure to the moral teachings of any of the Abrahamic cults.
      And for this I am truly grateful.

  2. Thanks again LPW for making the impenetrable explicable!

    1. My pleasure, Edwin. I was teaching this to students this term; given the reforms, it seemed a good idea to try to illuminate the issues for a slightly wider audience.