Courts and tribunal reform - the user perspective Scottish Public Law - - PDF document

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Courts and tribunal reform - the user perspective

Scottish Public Law Group Summer Conference 10 June 2013 Sarah O’Neill- notes to accompany powerpoint presentation Slide 1: I have been asked to give a perspective on the current reforms from the point of view

• f the user. I have been involved as a representative of the user interest in

discussions on civil justice reform for 15 years. My former organisation, the Scottish Consumer Council (SCC), first called for a civil justice review back in 1980 when the Hughes Commission (Royal Commission on Legal Services in Scotland) raised concerns that court processes were too formal, slow, complex and expensive, and were deterring people from asserting or defending their rights. Since then, we have had the Paths to Justice Scotland research1, which raised similar concerns in 2001. Then came the first report of the Civil Justice Advisory Group (CJAG) chaired by Lord Coulsfield, and published by the SCC in 20052, which took a user perspective, and concluded there was a case for reform of important aspects of the civil justice

• system. This led to Lord Gill’s review, and was followed up by a second CJAG report in

2011, which considered the wider civil justice system beyond the courts.3 The SCC, and its successor, Consumer Focus Scotland, also published the two reports of the Administrative Justice Steering Group chaired by Lord Philip4, which took a use- led approach in relation to tribunals and the wider administrative justice system. In 2012, the Scottish Government published its Strategy for Justice, which states: we are undertaking the most radical transformation of the courts and tribunals system in at least a century’. It has been a long time coming, but now all of these reforms are coming together at the same time.

1 Genn, H. and Paterson, A. (2001) Paths to Justice Scotland: What People Do and Think About Going to Law,

Oxford – Portland Oregon: Hart Publishing

2 Scottish Consumer Council (2005) The Civil Justice System in Scotland- a case for review?: the final report of

the Civil Justice Advisory Group, Glasgow: Scottish Consumer Council

3 Consumer Focus Scotland (2011) Ensuring effective access to appropriate and affordable dispute resolution:

the final report of the Civil Justice Advisory Group, Glasgow: Consumer Focus Scotland

4 Scottish Consumer Council (2008) Options for the Future Administration and Supervision of Tribunals in

Scotland, Glasgow: Scottish Consumer Council; Consumer Focus Scotland (2009) Administrative Justice in Scotland- The Way Forward, Glasgow: Consumer Focus Scotland

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As I only have a 20 minute slot, I thought it might be helpful, rather than discussing the current court and tribunal reforms in detail, to look at who the users are, what they want and need, and how the system might be more responsive to their needs. My focus will be more on the court reforms, but I will also discuss aspects of tribunal issues. But I want first to make 2 very important points which need to be borne in mind when considering these reforms. Slide 2: Firstly, the civil justice system is much wider than just court and tribunals. The courts are only the tip of the iceberg of our civil justice system. As we all know, very few people with a civil dispute actually get to the stage of a final court hearing (although many more do go to a tribunal). Within that vast area below the waterline are a complex and confusing raft of processes and agencies that operate within the shadow of the court. The civil justice system (and I include within that the administrative justice system) includes all the agencies which people interact with throughout their journey through the system - from when their civil justice problem first arises- from recognising they have a problem, to doing something about it . These include advice agencies, lawyers, complaints processes, informal dispute resolution mechanisms including ombudsman, arbitration and mediation. Very few people actually end up in formal dispute resolution processes, but what happens below that waterline has a dramatic effect on people’s lives. This means that civil justice reform must not just be about the courts and tribunals. While of course they have a vital role within the system, they are just one aspect of the system- the tip of the iceberg. We need a system-wide approach to civil justice reform, as recommended by the Civil Justice Advisory Group, and I am pleased to see that the Scottish Government’s Making Justice Work programme aims to take a co-ordinated system wide approach. Slide 3: The second important point is that the civil justice system provides a public service – as recognised by both Lord Gill and the Scottish Government. There is an increasing emphasis within public service reform on user focus - and like any public service, the civil justice system should be responsive to the needs of its users. Their interests should be central to the reforms, rather than the interests of those who work within the system. The overriding objective of the civil justice system should be to improve access to justice for all within a system that is proportionate, affordable and

• accessible. This is increasingly recognised by the Scottish Government – for example,

Roseanna Cunningham, the Minister for Community Safety and Legal Affairs, said in her foreword to last year’s consultation on a proposed new tribunal structure- ‘We

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want to retain and build on a tribunal system that puts users at the centre. We want the public to have confidence in and experience a system that treats them fairly, quickly and with respect.’ This is to be welcomed, although it remains to be seen whether the eventual reforms will put users of the civil justice system at the centre. So if the civil justice system should be focused on - and responsive to- the needs of its users- who are those users? Slide 4: The answer is all of us!- everyone who has ever had a civil justice problem- with their home, their job, their relationships, goods or services that they buy. The users are definitely not just solicitors/advocates/judges/sheriffs/court staff. These groups tend to see themselves as the users- and of course they are to an extent, and of course they have an interest in ensuring a modern and efficient system- but ultimately the system is there for the benefit of the public who need to use it. The users are all of those with disputes who need to use the civil justice system. I am aware that I am falling into the trap I have just mentioned here by using the language

• f the courts, but they can be pursuers in small claims or family actions, or defenders

in debt/rent arrears / repossessions cases. The point I’m trying to make here is that anyone involved in a civil dispute is a user of the system, whether they initiate it or are responding to action taken by someone else. In relation to tribunals, users could be those who feel they haven’t got the benefits they are entitled to, or who feel they have been unfairly treated by their employer, for example. Most people are only likely to come into contact with the formal civil justice system once or twice in their

• lives. They are therefore at a major disadvantage compared to the ‘repeat users’- big

companies and public bodies. The key point, however, is that the vast majority are reluctant users of formal systems- whether they initiate the matter or are responding to it. Slide 5: The evidence is clear that the current formal civil justice system – the courts- is not meeting the user’s needs. This picture sums up how most people see the legal system at present – the Paths to Justice research found that people in Scotland have more negative views of system than those in England and Wales. The quotes on the slide come from research by Consumer Focus Scotland and the Scottish Legal Aid Board into court users’ experiences, published in 2009.5 The first is from a rent arrears defender, the second from a small claims pursuer. The research supported previous evidence that people are concerned about cost, formality, legal language

5 Consumer Focus Scotland/Scottish Legal Aid Board (2009) The views and experiences of civil sheriff court

users, Edinburgh: Consumer Focus Scotland/Scottish Legal Aid Board

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and frightened by the system. Ironically, most people found that the court experience was not actually as bad as they had feared. But they were the ones who actually got to court- we don’t know how many others are put off because of their

• fears. So if the current system isn’t delivering what users want- and the evidence

suggests it is not -what do users actually want when they have a civil dispute? Slide 6: The usual default position for we lawyers is to assume that the formal justice system is the answer to dealing with civil justice problems – that we need to ensure that people assert their legal rights and get everything they are legally entitled to. And that is understandable, given the legal training we’ve all had. But that is not necessarily what people want. Recent research by Consumer Focus Scotland in partnership with the Scottish Government and Scottish Legal Aid Board6 found that the main aim of those with civil justice problems was to resolve the problem as soon as possible and get on with their lives (this backs up the findings of Paths to Justice Scotland). People don’t suffer a civil justice problem in isolation from the rest of their

• lives. They find it very stressful- and don’t necessarily see getting everything they are

legally entitled to as their top priority. People viewed the problem as an unwelcome interruption to their lives, and just wanted to get back to normal. For many, this means they didn’t want to pursue a legal route, even if they were aware they could, because they saw other aspects of their life as more important. Several women with employment problems had young children, for example, and did not pursue a legal remedy- because the immediate needs of their children took priority for them. This can be a valid decision- so long as it is an informed choice. Of course, it is vital that people have access to good quality, accurate advice about their rights and their options, and to appropriate dispute resolution mechanisms if they want to use these. But haven’t we all been in a situation where we think ‘life’s too short’ and don’t pursue things even though we know we are in the right? I know I have! Even if someone does want to pursue the matter further, they still generally want to resolve it as soon as possible- so getting a resolution they can live with may be more important than holding out for the maximum possible amount of money (of course it is not always about money but the same holds true). All the research clearly shows people want to avoid involvement with lawyers and legal processes if they can- they are apprehensive about involvement with lawyers and the costs, formality, delay and stress they associate with legal processes. However, if they are unable to resolve their

6 Consumer Focus Scotland (2012) Facing up to Legal Problems: towards a preventative approach to addressing

disputes and their impact on individuals and society, Glasgow: Scottish Consumer Council

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dispute informally, they want a system that meets their needs, rather than those of lawyers/judges/court staff. So how do we ensure that the system gives people what they want and need, as any good user-focused public service should aim to do? Slide 7: Firstly, we need to understand what those needs are- how people respond when faced with legal problems and focus our attention on the person and their problem, rather than trying to shoehorn them and their problems into an existing formal

• system. The Consumer Focus Scotland research found that people don’t necessarily

see their problem as a legal one - most characterised it as bad luck/part of life/a social problem/a problem with bureaucracy. As we have seen, people generally just want to resolve their problem and get on with their lives. In order to help them do this, we need to look at how to build people’s ‘legal capability’ in dealing with their problems. There has to date been too much emphasis on giving people information about their rights- which has its place of course- but knowledge is not enough on its own, if people don’t even recognise they have a problem, or know where to go for help. The Consumer Focus Scotland research shows there are other complex factors at play – emotional factors, such as stress, fear, embarrassment and shame at having got into difficulties. It also shows that many of the capabilities required to deal effectively with a legal problem are about general life skills, such as problem solving skills and dealing with conflict, and personal resilience and confidence. The legal system can’t tackle this alone- there is a need to work with other agencies- in the health/housing/social work sector etc. If we can build people’s legal capability, they may be less likely to get into a difficult situation in the first place. But if they do, they will have the skills and confidence to take action to resolve it themselves, or get advice early, before the problem escalates. While building people’s legal capability is key, it is also vital that we tackle the problem from the other end- by ensuring that those agencies on the other side of a dispute get it right first time, reducing the number of formal disputes which arise in the first place. The second report of the Administrative Justice Steering Group7 identified this as an issue- it said public bodies need to improve their initial decision making processes, so that fewer of those decisions are challenged. It said they also need to improve feedback from grievance procedures to encourage learning from mistakes and provide more effective redress mechanisms. This is backed up by the

7 Consumer Focus Scotland (2009) Administrative Justice in Scotland- The Way Forward, Glasgow: Consumer

Focus Scotland

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recent Consumer Focus Scotland research, which found evidence of frustration with dealing with state agencies. Getting it right first time is harder in the private sector, as there are many more potential parties, but there are still ways to improve- particularly in more specialist decision making forums. One possible example might be the new Homeowner Housing Panel- if it transpired that there were a number of similar adverse decisions against property factors, for example, this might help to improve industry practice. Also private sector trade associations/codes of practice could have an important role here. Slide 8: If a problem can’t be avoided/resolved before it escalates - we know people want their problems resolved asap, so there should be a greater emphasis on informal dispute resolution – mediation/consumer arbitration/ ombudsmen. The Civil Justice Advisory Group reports stated that court should be a last resort.- tribunals should be too! This is starting to happen hopefully the draft courts reform bill will lead to greater use of mediation, although it will be left to the new Scottish Civil Justice Council to make rules. This is a real source of personal frustration for me- I was a member of the Sheriff Court Rules Council when it proposed rules on referral to mediation in non-family/commercial cases back in 2006 - but they were put on hold pending the Gill review. Some tribunals are now using mediation, as are bodies like the Scottish Legal Complaints Commission, but progress is slow. Mediation is certainly not a panacea and will not always be appropriate - for example in relation to disputes about rights- but remember what I’ve said about people not necessarily looking to get what they are legally entitled to. Mediation can also offer more flexible solutions than a court, give people their ‘voice’, and help redress imbalances of power. Finally, there will always be some disputes which can’t be resolved informally. If people do end up in a court or tribunal, the processes should be as user friendly as

• possible. While tribunals are more inquisitorial and informal in general, as we all

know, some are still very formal and legal in their approach and could be improved. As regards the courts -while the general framework of the draft courts reform bill is a good starting point, if the courts are to become truly more user friendly, there is a need for a radical change in culture. While there is a real need to make processes and the language used simpler, that in itself is not enough. Where previous attempts have been made to make processes more informal and user friendly - changes to the small claims procedure, for example - advisers’ experience and research suggest this has not been successful in practice. We need to change the way in which the courts operate, putting the user at the

• centre. Firstly, we need to find ways to separate criminal and civil business-this was a

key concern raised during the Gill review consultation process. It’s clear from the

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research that the public associates the courts with criminal cases, and that is one of the main reasons they have a fear of the courts. While there are of course practical issues with this, particularly in light of proposed court closures, there are ways of tackling it. These might include greater use of shared premises with tribunals, using

• ther venues- finding ways to provide local justice in light of court closures- although

it is important to note that accessibility is not the same as proximity. If we are to truly focus on the needs of users, we need to look at holding hearings at times which are convenient for them- in the evenings and at weekends. This may be more convenient for some parties and witnesses, and is also a way of separating civil and criminal cases. Specific appointment times could also be introduced, so that people are not left hanging around in court for long periods. Greater use could be made of IT- those with disputes could be routed to help and advice through the Scottish Government’s proposed digital public services portal; it could be made easier to raise actions online; videoconferencing could be used to reduce the numbers of physical hearings/ travel/expense. We could also introduce greater specialist decision making where possible- this should result in better quality decisions, with greater understanding and consideration of people’s circumstances e.g. in housing cases. Processes should be more inquisitorial, and designed so far as possible to ensure that people can pursue disputes themselves without the need to rely on representation –this is in line with the approach of the Leggatt review of tribunals. While some people will always need help, some, with adequate advice, should be able to do it by themselves- research by Mike Adler with tribunal users found that pre-hearing advice was more important than representation in the outcome achieved. Overall success rates for those with pre-hearing advice were almost as high as those who were represented, in some cases actually higher.8 Slide 9: So are the current reforms going to improve things for the user? I hope so- but it’s important not to lose sight of the fact that courts and tribunals are only the tip of the iceberg of the civil justice system. We need to take a whole system approach, with a focus on preventative interventions in line with the Christie Commission reforms to public services. This is not only likely to save money, but also lots of stress, time and worry for those with disputes. Very few of us want to go to court if we can avoid it- the emphasis should be on these aspects, rather than focusing all the attention on the formal dispute resolution mechanisms which very few people ever actually come into contact with.

8 Adler, M. (2009) Tribunals Ain’t What they Used to Be’ ADJUST Newsletter March 2009

http://ajtc.justice.gov.uk/adjust/articles/AdlerTribunalsUsedToBe.pdf

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As regards the reforms themselves, once the structures are in place, there is a lot more to be done on processes. The role of the Scottish Civil Justice Council will be vital to this. It will have 2 consumer representatives- while I would have liked to see more, I hope that they will be a strong voice, although they are in a small minority. It is also vital to consult with actual users on what they want, as well as their representative organisations. Unfortunately, the UK government is in the process of abolishing Consumer Focus- which with its predecessor the Scottish Consumer Council, has had a key role in much of the policy development up to this stage. I very much hope that other user organisations will continue to push for the reforms to have a user focus - and I would urge them to do so.