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Justice system reforms

There have been some consultations of interest recently:

Transforming Our Justice System: Summary of reforms and consultation ran from September to November 2016.

The proposals relate to improving technology and putting more services and processes online. Their view is that this will make court and tribunal services more accessible and easier to deal with.

The consultation also proposed to change the panel composition of First Tier-Tribunals, from a default three-member panel to a single member unless decided otherwise. It also said that it intended to remove the current requirement to consider the arrangements that were in place previously.

Mind responded to the consultation and raised concerns about the way digital systems will be implemented, fearing that it could prevent people from using the court and tribunals.

Digitising HMCTS should not exclude or disadvantage anyone, specifically people with mental health problems. Not everyone is computer literate. Some people with mental health problems will not have access to a computer or will have difficulty in travelling on public transport in order to access assistance. Some live in remote areas, where help from the voluntary sector may not be easily accessible.

We recommended that the same systems be used to ensure consistency, rather than different systems for different parts of the process – for example, the DWP and Social Security Tribunals. We also raised concerns about the impact that this would have on charities who may be expected to provide additional support without any additional resources.

The government published its response in February 2017. It has confirmed that it will not force people to use digital channels and will make telephone, webchat and paper channels available where needed or requested. It will be carrying out pilot tests and research. This will include using groups such as older users, people living in remote areas, users with physical and mental health problems and people for whom English is a second language.

The government has made clear that it does not intend to change the default position of panels from three members to a single member. However, it intends to remove the requirement that the Senior President of Tribunals does not have to consider the historic panel arrangements when deciding current panel composition. Whilst it is positive that there won't be a default reduction in panel members, it is still possible that the Senior President of Tribunals can specify whether a panel should consist of one, two or three members. We will have to monitor this for the future as this may lead to a reduction in some areas, particularly in areas such as Social Security Tribunals.

Modernising judicial terms and conditions ran from September to December 2016 and the government consulted on a number of reforms, including introducing a new single fixed term for new fee-paid judges.

It was argued that the reforms would improve efficiency and diversity. Whilst Mind supports the need for diversity in the judiciary and welcomes efforts to promote and increase it within the court and tribunal system, we were concerned that these proposals would decrease diversity – particularly introducing a single fixed term for fee-paid judges, which would mean that a person would only be able to work in the job for a maximum of, say, five years. It was argued that a person would then be able to progress to another post – but the consultation recognised that there is a lack of salaried roles, so that experience could be lost completely.

We are concerned about the over-representation of members of the BME community, who are sectioned in hospital. People with mental health problems are also disproportionately impacted, as they are more likely to face multiple disadvantage, and will therefore need to use the court system. It is important that the courts reflect the needs of our community.

In addition, time and resources would be wasted on recruiting rather than spending that money on the provision of justice.

The government published its response to the consultation in February 2016 and has confirmed that it has decided not to go ahead with the fixed term contracts, which is excellent news as this will ensure that the Tribunals maintain the experience of their panels. The government will look at alternative ways to improve diversity in the judiciary.

Reforming the Employment Tribunal system ran from December 2016 to January 2017. The government consulted on a range of issues, some of which potentially affect people with mental health problems, including:

  • how to accommodate the needs of the users of the Employment Tribunals and Employment Appeal Tribunal in a more digitally-based system and what issues need to be considered in order to achieve this
  • proposals to delegate judicial functions to caseworkers in these tribunals and consideration of what skills they might need
  • what issues need to be taken into account in relation to making changes to the law regarding panel composition.

Mind's response raised concerns about accessibility of digital systems for people with mental health problems for the reasons set out above, as well as concerns about changes to legal aid and increased fees for employment tribunals.

We also raised concerns about algorithms being used so that computers make decisions about cases. This would mean that the dispute resolution role would be lost, as well as justice not being seen to be served. We highlighted the importance of non-legal members on the panel as they can bring their own specialist expertise and add value to the decision-making process. We are still waiting for the government's response.

Interestingly, a Review of the Introduction of Fees in the Employment Tribunals was published in January 2017. They have acknowledged that the fall in claims has been significantly greater than was estimated when fees were first introduced. They are therefore consulting on proposals for an adjustment to the Help With Fees scheme to extend the scope of support available to people on lower incomes. The deadline for responses is 14 March 2017.

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