chief secretary appointments commission review report

Summary

The request sought the 2015 Chief Secretary review report on the Appointments Commission and related correspondence regarding alleged inaction. The Cabinet Office disclosed the review report itself but withheld some information, citing partial exemptions.

Key Facts

• The review was commissioned by the Chief Secretary in January 2015 following concerns raised in the Appointments Commission's 6th Progress Report in July 2014.
• The review was conducted by Yvette Mellor, Director of the Cabinet Office, and produced a draft report in September 2015.
• The Appointments Commission submitted a four-page response to the draft report citing factual inaccuracies and erroneous assumptions.
• Staffing for Tribunals administration has remained unchanged since 2006 despite the number of Tribunals increasing from 16 to 28.
• The Appointments Commission is not a Part 1 or Part 2 Tribunal and lacks specific statutory provisions for its own administrative support staff.

Data Disclosed

• July 2014
• January 2015
• September 2015
• October 2015
• June 2016
• 32 appointments in 2006
• 101 appointments in 2013
• 16 Tribunals in 2006
• 28 Tribunals today
• one full-time Executive Officer
• two full-time Administrative Officers
• 4 page response
• 6 weeks
• Tribunals Act 2006
• Tribunals Regulations 2010

Original Request

Please supply a copy of the chief secretary review report September 2015 and all related filenotes, reports, minutes, emails, etc to include the 4 page response to the draft report from the appointments commission with any internal reactions, shortlisted action points and evidence of will-ful uncommunicated dismissal or similar disrespectful inaction. Following the submission of the AC's 6th Progress Report in July 2014, the Chief Secretary commissioned a review of the operating vires of the Commission (including administration) and of the Structure and Administration of Tribunals to address issues raised in the aforementioned report. The review, intended by the Chief Secretary to be completed within 6 weeks from commencement in January 2015, produced a draft report in September 2015, which was replete with factual inaccuracies, unqualified statements, erroneous assumptions and recommendations supported by flimsy evidence. The AC submitted a four page response to the draft report. Despite repeated requests made between October 2015 and June 2016 for an update as to the outcome of the review, the AC received no such information. No apparent action was taken based on the review or its recommendations. The AC determined therefore to progress initiatives it believed would be beneficial to Tribunal members and the Tribunals service generally, which were being resisted by the Chief Registrar on the pretext of awaiting the outcome of the review.

Data Tables (4)

Full Response Text

Review of the operation/operating vires of the Appointments Commission ( including administration) and of the Structure and Administration Of Tribunals By Yvette Mellor Director Cabinet Office 7 1 Index
Pages/s Terms of reference
2- 5 Executive Summary 6-7 Review
8-19 Appendices A. Consultation list B. Tribunal Growth Chart C. Proposed future Tribunals Structure 8 2 Terms of Reference Review of the operation/operating vires and role of the Appointments Commission (including administration) and of the structure and administration of Tribunals Introduction / Vires for a review 1. A review is required to consider matters raised by the Appointments Commission (the Commission) in its 6th progress report1 to the Council of Ministers (COMIN) in July 2014. After consideration of the report COMIN subsequently requested that the Chief Secretary and Chief Registrar review the concerns raised by the Commission within its report2. Background 2. The Tribunals Act 2006 (TA 2006) introduced provisions3 for a new body (the Appointments Commission), including the constitution of that body, and provided the statutory framework for the appointment, resignation and removal from office of Members4 of Tribunals. The Commission consists of 5 persons appointed by COMIN. 3. In 2006 a total of 32 Tribunal appointments were made by the Appointments Commission, increasing to 101 appointments in 2013. (32 appointments have been made in the current year to date.) 4. Under the structure established by the 2006 Act there are two types of Tribunal in the Isle of Man:- a. Part 1 Tribunals (made up of a Chairman of legal training plus a fixed panel membership) and b. Part 2 Tribunals (made up of a Chairman of legal training with the remaining quorate membership taken from a panel of members selected by staff of the Tribunals’ Centralised Administration). 5. The majority of Isle of Man Tribunals are appellate bodies dealing with decisions taken by Departments of Isle of Man Government (IOMG). As in the case of Courts, Tribunals are bodies of independent structure and mind and are separate to the Government Executive - effectively being a junior tier of the justice system and dealing with issues relating to administrative justice. 6. As with the provision of administrative support to the Island’s Courts the provision of administrative support to Tribunals is undertaken by staff of the Courts and Tribunals 1 http://www.gov.im/registries/Tribunals/vacancies.xml 2 A number of related concerns are also included in various correspondence between the Commission and the General Registry 3 Section 1 and Schedule 1 of the Act 4 Sections 3 to 5 of the Act (‘Members’ include Chairmen) 9 3 Division5 of the General Registry, formally established (in the case of Tribunals) under the Tribunals Regulations 2010.
7. The staffing resources allocated by the Civil Service Commission to administratively support Tribunals comprises one full-time Executive Officer (EO) post and two full-time Administrative Officer posts. 8. This staffing allocation has remained unchanged since the establishment of the centralised Tribunals structure in 2006, although the numbers of Tribunals supported has increased from 16 in 2006 to 28 today. Furthermore it is understood that there are legislative proposals currently underway which may give rise to further Tribunals (or existing Tribunals with an enhanced scope). These increased Tribunal numbers affect the work and workload of both the Commission as part of the 3 year recruitment cycle and of the Tribunals Administration on an ongoing daily basis. 9. Although established and given its powers under the TA 2006 the Appointments Commission is not a Part 1 or Part 2 Tribunal and no statutory or regulatory provision exists in relation to the provision of officers or other staff in support of the Commission’s work. However this support has more recently been provided (and continues to be so) by a part-time post from the General Registry’s staff resource allocation. 10. The assessed grading and workload/duties of this post is the subject of regular discussion by the Commission and General Registry management with the duties of the support post comprising a combination of Executive Officer and Administrative Officer/Assistant duties. 11. A full-time equivalent value of 0.4/0.5 of a post is officially allocated to this support post (from the previously estimated 0.20/0.25 fte original allocation) with the changing scope, increasing duties and demands of the post being no longer sustainable. This is particularly so in the face of increased demands for cost savings, greater efficiency and the general scope of work and services funded by Government. 12. A further 0.5 fte allocation at EO grade also exists within the Tribunals’ Centralised Administration providing support to two non-appellate bodies (the Criminal Injuries Compensation Tribunal/Panel and the Advocates’ Disciplinary Tribunal) neither of which are Part 1 or Part 2 Tribunals. In relation to the ADT it should be noted that this staff allocation had to be provided from existing resources when the ADT was transferred from the Chief Secretary’s Office. Purpose and aim of Review 13. The purpose of the review is to provide a report to the Chief Secretary and Chief Registrar in relation to:- 5 The Tribunals’ Centralised Administration 10 4 a. the operation/operating vires and role of the Appointments Commission (including administration) and b. the structure and administration of Tribunals in order that a paper may be provided to COMIN with appropriate recommendations. 14. Due to pressures experienced within and in relation to the Commission, within Tribunals themselves (including reform and efficiency requirements) and due to forthcoming BCSG6 change proposals affecting the General Registry it is considered that this review exercise is a priority and should be concluded as soon as possible. Scope & Outputs 15. The review will consider the following:- (Appointments Commission) a. Legislation (current legislative scope of the Commission) b. The role of the Appointments Commission, including its scope, operation and general operating vires c. The tenure of office of the Chairman of the Commission d. The makeup / balance of membership of the Commission e. The termination of appointments made by the Commission7 f. The process and policies for the appointment of Tribunal Members (including Chairpersons) g. Appointments outwith the TA 2006, including non-Tribunal /Independent Review Bodies h. Potential areas of conflict arising from Commission Members’ serving on a Tribunal i. Extent of unsuccessful appointments/recruitment campaigns to date j. An assessment of continued administrative support to the Commission, taking account of the proposed future BCSG operational changes and structure of the General Registry – to include staffing and other resources for the Commission (including financial resources and running costs) k. The Commission’s policy and model for recharging Tribunal appointment and other costs l. (Whilst noting the independence of the Commission from Government but also noting that it is funded from the public purse) the impact of the principles of the Scope & Structure Review of Government and Cost Saving initiatives as they apply to the Commission8 m. Remuneration of the Commission n. Code of Conduct arrangements for Members of the Commission (Tribunals) o. The format and structure of Tribunals in the Isle of Man compared to other jurisdictions 6 IOMG Business Change Steering Group 7 Current provision exists in relation to absence, incapacity & bankruptcy (or an “otherwise unfit status”) but not explicitly in relation to matters of conduct or discipline. No Code of Conduct arrangements currently apply 8 For example, ‘best practice’ vs relevant specific legislative requirements 11 5 p. The current process for the creation of new Tribunals/non Tribunal bodies q. The existence and current provision in relation to Tribunal Rules (covering the vires and operation of the Tribunals) r. The training and performance assessment of Tribunal Members s. The term of appointment of the Chairman and Members of Tribunals, including relating to 2nd/subsequent terms t. The role of the Tribunals’ Centralised Administration u. The effectiveness of the current Isle of Man Tribunals model v. Code of Conduct arrangements for Tribunal Members w. Tribunals/non-Tribunal bodies/other support arrangements9 outwith the TA 2006, including the Advocates Disciplinary Tribunal and the Criminal Injuries Compensation Tribunal (Panel). In relation to the ADT the review should consider whether there should be an interim solution to address particular issues pending any legislative changes for the long term solution x. The current process for the creation of new Tribunals (including an assessment of the adequacy of the ‘impact assessment’ process) y. Staffing and other resources for Tribunals(including financial resources and running costs) z. Remuneration of Tribunal Members (including Chairmen) Reference sources 16. Review of relevant documents, including:- a. Appointments Commission progress report to COMIN b. Commission minutes (publicly published) c. Annual Tribunal Statistics Report 17. Appropriate Officers from the Centralised Tribunals’ Administration and General Registry 18. Members of the Appointments Commission Will Greenhow Chief Secretary Stephen Cregeen Chief Registrar 9 Including the support role to the Appointments Commission, the location of these non-appellant Tribunals and any conflict perception issues 12 6 Executive Summary In 2001 the Leggatt Report “ Tribunals for users – One system, One Service” which looked at the tribunals system in the UK showed a bleak picture. It described a patchwork of tribunals administered by different government departments, each of which had been created by individual pieces of primary legislation, but without an overarching framework. To deal with this problem the Leggatt Report recommended that tribunals should be brought together into a single system administered by a new tribunals service in what was then the Lord Chancellors department. Legislation was brought into form the new tribunal judiciary system in 2007. The Isle of Man was suffering from the same problem as the UK and in 2006 it was considered critical for the Isle of Man to have a fully functioning Independent Appellate Tribunals structure. The Tribunals Act 2006 formalised the tribunals as the first level of the judiciary, independent of the Departments, but did not take the overarching framework as far as the UK. The role the Tribunals play is even greater now, not just in the terms of fair and proportionate access to administrative justice but also in terms of reducing the numbers of cases that might otherwise be heard before the formal courts. This review was undertaken to revisit the way tribunals are created, structured, and administered as well as how appointments to tribunals are carried out and the role of the Appointments Commission in the process. Summary of Key Findings • There has been a significant increase in the number and scope of tribunals with further increases likely. ( see section 1 ) • It is increasingly difficult to recruit to tribunals due, in part to, shortcomings in the current structure/framework for Tribunals.( see section 4 ) • There are resourcing issues in the Tribunals administration team due to the increase in the number of Tribunals to administer and the increase in secretariat support required by the Appointments Commission whose recruitment role has extended beyond purely appointing to Tribunals. • There is a need to change the Tribunals Act 2006 to allow Tribunals to be created around subject groups, as they have in the UK, and for changes to model rules and terms of appointment (see section 8) • The scope of the remit of the Appointments Commission and the arrangements for the provision of its administrative support needs to be determined. 13 7 Recommendations • The role, scope and key policies of the Appointments Commission should be determined by the Council of Ministers. • When the next vacancy arises on the Commission, Council of Ministers should consider appointing , if possible, a person with an alternate skill set to the sitting members. • Host Departments to put in place a robust assessment process for setting up new tribunals and ensure that the outcome of the assessment is included as mandatory in any Council of Ministers paper which considers and approves new legislation that comes forward (including better scrutiny of resource impacts / net effects on the wider tribunals system). • The Advocates Disciplinary Tribunal should be reconstituted as an industry regulatory body and removed from the tribunals structure, the Law Society should provide the secretariat services it requires. • Council of Ministers to confirm to the Appointments Commission that it’s members cannot also be members of tribunals. • The secretariat resource for the Appointments Commission, and where it should be provided, should be included in the review of the role of the Tribunals team (detailed below), taking into consideration the proposed changes of the structure of tribunals going forward. The Commission to :- • Appoint a chair each year. • Amend the recruitment pack to allow applicants to submit CV’s. • Update the handbook to allow Department’s more flexibility in determining the necessary skills and qualities needed for the role. • Put in place a procedure to deal with complaints and the termination of Tribunal Appointments. • Work with the Cabinet office to put in place a Code of Conduct to cover the duties/roles of the Commission. The Cabinet office to consider :- • Changing the primary legislation to move the model rules to be established by order • Whether to introduce a statutory time limit for a decision from a tribunal to be issued. • Seeking an amendment to the Tribunals Act 2006 to put the terms of appointment to the Commission and to Tribunals on the same basis. • A review of staffing levels in the Tribunals Administration team be done after the implementation of the new Tribunals Structure. • Preparing an amendment to the Tribunals Act 2006 to allow a new tribunal’s structure based on the one attached at appendix B to be put in place. 14 8 Review of the operation and operating vires of the Appointments Commission 1.Role of the Appointments Commission The Appointments Commission ( the Commission) was established under Section 1 of the Tribunals Act 2006, how the Commission should operate is set out in Schedule 1 of the Act. Section 1 of the Tribunals Act states that the Commission is made up of 5 persons appointed by Council of Ministers, with no members of Council or the House of Keys being allowed to be members of the Commission. Schedule 1 of the Act lay

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