“Blind Lady Justice”

Transforming Justice

Estimated reading time: 8 minutes

In this article I summarise some of the proposed reforms to our Justice system emanating from JUSTICE, the British section of the international commission of jurists and the Ministry of Justice, before dealing with two changes which have serious implications for the poor, disadvantaged, sick and disabled.

JUSTICE have in their paper ‘What is a Court?’ sought to provide a reconfiguration of the Court estate and the introduction of online procedures which will soften the impact of Court closures. For, very soon, under Government plans, some towns will lose their own Court. The MOJ are eager to facilitate vulnerable witnesses to give evidence by video link to Court and to permit cross examination recorded earlier to be used.

And it is proposed that for ‘victimless crimes’ people should be able to plead guilty (and pay their fines) online. If, upon finding out about the charge, the accused decides to plead ‘not guilty’, the case reverts to an actual Court hearing before a Magistrate.

However, the main proposed change is to establish an online civil court for all money claims less than £25,000. This would do away with the ‘small claims track’ in the County Court and part of the main County Court jurisdiction. Once this ‘online’ civil court gets going it will not be possible to bring or contest a money claim for £25,000 or less by a ’paper based’ procedure in a conventional Court with an actual hearing before a judge, (although there will be an appeal procedure from the online judgment to a conventional Court probably at Circuit judge level).

It is proposed to drastically simplify civil procedures so it can be handled by litigants in person online. Some categories of whose case – such as boundary disputes – will not be part of the online jurisdiction, because it is thought that the issues ‘are too emotional’. Moreover, it is recognised by some members of the judiciary advocating the ‘online solutions court’ that there is a risk of disenfranchising those who are not computer literate or do not have a computer. So it is proposed that technical assistance will be provided to those not computer literate to enable them to defend themselves or bring a case. Lord Justice Ryder has, in a speech to the Annual Conference of the Bar 2016, on 15th October 2016, said:

“…we are designing a whole programme of assisted digital access. Specialist providers whose expertise can be made available to assist litigants in person, those with disabilities, special needs and vulnerabilities will be commissioned to provide coherent service…”

One wonders. It seems likely that the computer literate man of modest means (e.g. small businessmen or women) who wish to bring money claims will benefit from the simplified procedure of a ‘lawyerless’’ online Court. But it seems very unlikely that a defendant who is on low income and is computer illiterate will do so, whatever the assurances Lord Ryder or Sir Michael Briggs (the chief proponent of the Online Solutions Court) may seek to give.

My pessimism about the effects of the above apparently benign proposals is strengthened by consideration of what has happened as a result of imposition of fees on claimants in Employment Tribunals in 2013, and also on the likely effect of the proposed changes in Tribunal composition in the social entitlement chamber.

Well, what about the workers? From the nineteen sixties onwards Employment Tribunals dispensed justice for matters connected with work e.g. unfair dismissal, unauthorised deductions from pay, wrongful dismissal in breach of contract, redundancy payments and discrimination in increasing numbers.

In 2010 the change in Government focused attention on the large numbers of supposedly unmeritorious claims. Thus, in 2013 fees for a worker/employee to start a claim and then to get a hearing were introduced with the objects of weeding out the unmeritorious claims and saving money.

The number of claims certainly fell drastically after fees were introduced. Down from 16,000 a month in 2012/13 before fees were introduced to 7000 a month in 2015/16 (TUC analysis of official figures). However, the ratio between successful and unsuccessful claims at hearings remained much the same as before fees were introduced. In other words, there was no change in the proportion of claims which were meritorious or unmeritorious as a result of the introduction of Tribunal fees.

In July 2016, the House of Commons Justice Committee published a report about how the introduction of fees had affected justice in the Employment Tribunals. The report criticises the Government’s failure to publish its post implementation review on the impact of ET fees.

Based on evidence collected during its own inquiry, the Justice Committee concluded that fees had led to an undisputed drop in the number of cases brought and had a significant impact on access to justice. It heard evidence that far from encouraging early conciliation and resolution of disputes, fees were having the opposite effect, because there was no incentive for an employer to settle in cases where the claimant might have difficulty in raising the fee.

A few months earlier, in December 2015, the President and Regional Employment Tribunal judges in evidence to the MOJ review had concluded; “the introduction of fees has had an adverse effect upon access to justice”, and, moreover, “the fees and remission scheme acts as a very clear disincentive to bringing what might otherwise be claims that are not obviously weak or unmeritorious”.

These senior judges made a number of suggestions to improve the system of fees. The most radical suggestion was that employers should be required to pay a fee as well as employees. Thus employers would have to pay for lodging a defence, “response”, to an employee/worker’s claim. This in my view would somewhat even up the class bias in the current system where, by and large, only employee/worker claimants are required to pay fees. Unsurprisingly, at the time of writing, this proposal, that employers should have to pay a fee for lodging a response to claims against them, has not been implemented by the present Government.

The introduction of Employment Tribunal fees and its effect raises the question: In whose interests are we transforming the justice system?

This brings me to the proposal, in the MOJ consultation paper, “Transforming our Justice System”, to scrap ‘wing’ members of First Tier Tribunals so that in general judges, for example hearing cases of appeal against refusal of certain welfare benefits, will hear such cases sitting alone rather than with voting members from other disciplines as at present.

I should explain that the First Tier Tribunal (social entitlement chamber) hears appeals against refusals by the Department of Work and Pensions of benefits like Employment and Support Allowance and Personal Independence Payment. When hearing appeals against the refusal of ESA, the Tribunal judge sits with an experienced Doctor as the other panel member, and when hearing PIP cases the Tribunal judge sits with an experienced Doctor and a member with special expertise in the disabled and their caring needs.

In my experience as a First Tier Tribunal judge, these ‘wing’ members are invaluable. First, in the bundle of documents for each case there is frequently a mass of medical evidence, much of which requires medical expertise to interpret correctly. Second, during the hearing, the medical member and the disability member’s questions often elicit the disclosure of the appellant’s symptoms and difficulty in functioning (eg. walking, eating, dressing etc.) more readily than questioning from the judge. This is because disadvantaged, sick and often inarticulate people frequently have more experience dealing with Doctors and carers rather than lawyers. They therefore give evidence more freely and fully to questions from Doctors and carers. So it seems correct that these “wing” members should continue as voting members of the First Tier Tribunal.

The MOJ, however, appears to believe that medical, voting members of the Tribunal can be relegated to mere “advisers” or “assessors”. However, the experience in former years, when judges heard Invalidity Benefit cases with the medical input merely being that of an assessor, was that the medical advice was frequently misunderstood by the judge leading to ill-founded decisions which the medical assessor could do nothing about. It would be regression to revert to this situation.

There is also the matter of appellants’ expectations. In Employment and Support Allowance cases in particular, they are characteristically appealing against a DWP decision based on an ATOS work capability assessment made by a healthcare professional who is usually a nurse, physio, or paramedic rather than a fully qualified Doctor. The appellant, therefore, expects that his or her appeal will be heard by an experienced Doctor. In the present system this is what they get; the medical members of the Tribunal are experienced GPs and sometimes consultants. This would go under the MOJ’s “judge sitting alone” proposal.

The MOJ’s consultation is now over but readers of the ER might like to write to their MPs at the House of Commons, London SW1A OAA. The question which needs to be considered is “To what extent do recent, and current proposed, reforms in our justice system benefit those  exploited at work and disadvantaged by ill health as well as the increasingly computer literate majority of the population?”

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