1. The Administrative Justice and Tribunals Council (AJTC) was set up by the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”) to replace the Council on Tribunals. The White Paper “Transforming Public Services: Complaints, Redress and Tribunals” (2004) gave notice of the Government’s intention to introduce a code of practice dealing with consultation with the AJTC. The code is in the course of preparation. The present note provides interim guidance to departments on the obligation to consult the AJTC on proposals for certain subordinate legislation and suggests the desirability of consulting the AJTC on proposals for certain other primary and subordinate legislation. It also suggests the form and timing of such consultations. The note largely reflects advice given in the Code for Consultation with the Council on Tribunals circulated in 2001.
Subject matter and timing of consultation
2. Under paragraph 24 of Schedule 7 to the 2007 Act the power of a Minister of the Crown, the Welsh Ministers or the Scottish Ministers to make, approve, confirm or concur in procedural rules for certain “listed” tribunals is exercisable only after consultation with the AJTC. Rules made after such consultation will usually state that consultation has taken place. The tribunals concerned are those listed by orders made by the Lord Chancellor, the Welsh Ministers and the Scottish Ministers. Further particulars are given in paragraph 9 below. Similarly, under section 9 of the Tribunals and Inquiries Act 1992 the Lord Chancellor and the Scottish Ministers are under a statutory obligation to consult the AJTC with regard to procedural rules for statutory inquiries. Where consultation is mandatory, it is necessary for instruments containing the proposed rules to be submitted to the AJTC in draft form before they are made.
3. Before seeking the AJTC’s advice on procedural rules the AJTC recommends those responsible for drafting them to consult and make use of, so far as may be appropriate, the Council on Tribunals’ Guide to Drafting Tribunal Rules (November 2003).
4. Under paragraph 14(2) of Schedule 7 to the 2007 Act the AJTC is empowered to scrutinise and comment on legislation, existing or proposed, relating to tribunals or to any particular tribunal. Consultation on proposals for primary legislation affecting listed tribunals or statutory inquiries, or on rules for statutory inquiries other than those referred to in paragraph 2, is not mandatory, but usually takes place and is welcomed by the AJTC. As is further explained in paragraph 8 below, the AJTC considers that such consultation is most effective and beneficial to departments if it takes place at an early stage in the formulation of proposals.
5. Under paragraph 13 of Schedule 7 to the 2007 Act, the AJTC has the function of keeping the administrative justice system under review. Consultation on proposals for primary legislation affecting the rights of the citizen which may require consideration of whether, and in what form, new adjudicative procedures are necessary or desirable is therefore welcomed by the AJTC. As explained at paragraph 8 below, the AJTC recommends consultation on such proposals at an early stage in their formulation.
Time allowed for consultation
6. The AJTC expects that departments consulting it will always allow it as much time as possible to prepare and submit its comments. This is particularly important when consultation is mandatory and the instrument will state that such consultation has taken place. The AJTC meets monthly (except in August) and departments will therefore understand that, if considered advice on any important matter is required, certain minimum periods of consultation are necessary. The AJTC suggests that the following should be regarded as the optimum periods for consultation:
(a) where proposals are of a routine kind and do not raise major questions of principle: 5 weeks;
(b) where proposals involve major issues of principle: 8 weeks.
7. Where, for unavoidable reasons, consultation has to be completed in a shorter time, the minimum periods which will enable the AJTC to give proper consideration to proposals may be taken to be three weeks and four weeks respectively. If these suggested minimum periods cannot be adhered to and an explanation is given to the AJTC, it will endeavour to complete the consultation process in such time as may be available. In cases of real emergency, the AJTC does not preclude other means of consultation through its secretariat, but any advice so given is subject to the endorsement of the AJTC with such further comments as it may wish to make.
8. The AJTC is very conscious of the constraints imposed on departments by, for example, the Parliamentary time-table. If difficulty is foreseen about meeting the recommended minimum periods, the AJTC suggests that consultation need not be delayed until a full draft of the new legislation has been produced but in suitable cases may be initiated at an earlier stage, perhaps with regard to specific provisions. Indeed, particularly with regard to non-mandatory consultations, the AJTC suggests that the best time for consultation will often be when proposals have taken reasonably firm shape but before Ministers are committed; the AJTC may be able to suggest means of solving an adjudication problem which may not have occurred to the Department, e.g. by amending the powers of an existing tribunal to enable it to undertake the work rather than by creating a new tribunal.
9. As stated in paragraph 2 above, the requirement to consult the AJTC on tribunal procedure rules arises in respect of tribunals which are listed by orders made by the Lord Chancellor, the Welsh Ministers and the Scottish Ministers. The current orders are:
- The Administrative Justice and Tribunals Council (Listed Tribunals) Order 2007 S.I.2007/2951
- The Administrative Justice and Tribunals Council (Listed Tribunals) (Wales) Order 2007 S.I.2007/2876 (W.250)
- The Administrative Justice and Tribunals Council (Listed Tribunals) (Scotland) Order 2007 S.S.I. 2007/436
The AJTC will be able to give a view in any case of doubt as to whether consultation is mandatory. The requirement to consult the AJTC does not arise in respect of rules made by the Tribunal Procedure Committee established under the 2007 Act to make rules for the First–tier and Upper Tribunals. The AJTC will be represented on the Committee when it is established.
Process of consultation
10. In submitting draft instruments to the AJTC in cases of mandatory consultation, a copy of the draft should be sent to the AJTC with an explanatory statement and any necessary covering letter. Where proposals for primary legislation are concerned, a letter will usually suffice, although material such as draft clauses or instructions to Parliamentary Counsel is particularly helpful.
11. The AJTC’s comments will be submitted in writing. This may be supplemented, if necessary, by further correspondence or by oral discussion with members of the AJTC or its secretariat.
Reporting the results of consultation
12. The outcome of consultations between departments and the AJTC may be reported in the AJTC’s Annual Report, but in every case the accuracy of such a report would be cleared with the departments concerned before publication. Where consultation has taken place on a confidential basis, that confidence will be respected.
13. Where the AJTC has, when consulted, expressed views on an important question of principle, and it is intended to inform Parliament or the public that it has been consulted, the AJTC trusts that the general tenor of its advice will be stated at that time.
14. It will be seen from the above that the AJTC attaches great importance to the following points:
(a) to being consulted, with such consultation taking place at the appropriate time (paragraphs 2 to 5);
(b) the allowance of adequate time to formulate advice in each case (paragraphs 6 to 8);
(c) the provision of information and background necessary for full consideration of the issues (paragraph 10);
(d) the discussion with the AJTC of points of difference in appropriate cases (paragraph 11); and
(e) the disclosure of the AJTC’s views on important questions of principle (paragraph 13).