Justice Impact Test Guidance - March 2010
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Justice Impact Test Guidance March 2010
Justice Impact Test Guidance This information is also available on the Ministry of Justice website: www.justice.gov.uk
Justice Impact Test
Contents
Introduction 3
Who to contact for more information 4
The Justice Impact test - key stages 5
Impact on the justice system – important areas to consider 6
Legal Aid 6
Offences and Penalties 7
Courts 8
Tribunals and appeals 9
Judicial appointments and training 10
Litigation impact 10
Quantifying the impact on the justice system 12
Considering alternative approaches 13
Funding the cost to the justice system 15
Annexes
Checklist for screening impact on the justice system 16
Impacts on civil justice 18
Impacts on criminal justice 19
1Justice Impact Test 2
Justice Impact Test
Introduction
The Ministry of Justice is responsible for delivering an efficient, effective,
transparent and responsive justice system. New policies, especially those
which involve a change in the law, can have a very significant impact on the
justice system. These impacts need to be considered, anticipated and
planned for at an early stage, to make best use of public funds. Otherwise the
justice system will become strained and service provision jeopardised.
The Justice Impact Test is a tool to help policy-makers find the best way of
achieving their policy aim, while minimising the impact on the justice system. It
does this by:
identifying areas in which impacts need to be determined
suggesting methods for assessing and quantifying the impacts
identifying ways to avoid or minimise any negative impacts.
Early consideration, consultation and engagement with the Ministry of Justice
are vital.
The Justice Impact Test is a mandatory part of the Impact Assessment
process. Policy-makers will need to record whether there is a justice impact in
the specific impact test checklist in the Impact Assessment. If there is an
impact this will need to be detailed in the evidence base of the Impact
Assessment.
The test looks at the impact of policy right across the justice system – civil and
criminal, and covers:
legal aid
courts and tribunals
prisons and probation services
prosecuting bodies
the judiciary.
The key question that policy-makers should ask themselves at the start of the
policy-making process is: is it likely that the policy will increase the volume of
cases going through the courts?
If the answer to this question is yes, there will be a justice impact. A detailed
checklist for screening the impact of your proposal on the justice system is in
the Annex.
3Justice Impact Test A flow chart sets out the steps to take to assess, quantify, and agree with the Ministry of Justice the impact of your policy proposals on the justice system. When the Ministry of Justice screens policies for their impacts on the justice system, its consideration will be proportionate to the scale of the costs and benefits and the outcomes at stake. Who to contact for more information To notify the Ministry of Justice of an initiative affecting the justice system, or for further information on the Justice Impact Test, including guidance or assistance in assessing impacts including costs and benefits, please contact the justice impact team at: justiceimpact@justice.gsi.gov.uk 4
Justice Impact Test
Does the proposal affect the justice system? No
Don’t Is there evidence to support this?
Yes
know
Consider Justice Impact Test guidance No Yes
Identify impacts Complete impact assessment
(IA)
Have you got MOJ clearance for
creating or changing criminal
offences or any penalties?
Complete MOJ proforma and send to
justiceimpact@justice.gsi.gov.uk
Quantify Consider alternative
impacts approaches
Revise IA in light of
views expressed
Agree with MOJ final assessment of
justice impact, including funding
5Justice Impact Test
Impact on the justice system – important areas to
consider
Possible impacts on the civil and criminal justice system are summarised in
the diagrams in the Annexes.
Important areas to consider, when identifying whether or not an initiative will
impact on the justice system, are:
Legal aid
How policy changes affect legal aid
The following table includes general examples of the more common policy
changes that impact on the legal aid scheme. This is not an exhaustive list,
but it does provide helpful examples.
Proposal Potential impact
Creation of new Could lead to additional applications for legal aid.
offences
Changing the People receiving some types of welfare benefits
procedures/rules on automatically qualify for criminal and civil legal aid.
provision of welfare Therefore, increasing the population eligible for a
benefits particular benefit could also increase the number of
people eligible for legal aid.
Changing the Trial on indictment in the Crown Court generally costs
penalties and mode more than summary trial in the magistrates’ courts.
of trial for existing Therefore, changing the maximum penalty for an
offences existing offence could increase trial costs paid for
from the legal aid budget.
Proposal to increase Any proposal that could increase the likelihood of
legal disputes legal disputes, especially between individuals and
public bodies, could increase the claims on the legal
aid budget.
6Justice Impact Test
Legal aid is potentially available to individuals involved in a legal dispute or
who require legal advice or representation in both criminal and civil cases.
The rules on eligibility for legal aid are complex, so please contact Ministry of
Justice for help with specific queries.
Offences and penalties
The Ministry of Justice has responsibility for clearance of new offences and
criminal penalties, and must be consulted for clearance on any proposals to
create or change criminal offences and penalties, including fixed penalties.
Alternatives to creating a new offence must be considered, including
consideration of whether civil sanctions may be more appropriate than
creating criminal offences. 1 In doing so an assessment of the potential
impacts on the justice system should be made.
If the evidence shows that a new offence or penalty may be required, you will
need to consider:
whether it is necessary and proportionate to the harm being caused
whether the behaviour being targeted is already covered by criminal law
who will be responsible for investigating and prosecuting any offence
implications for the legal aid scheme
how the courts will be affected
new court procedures that might be required
rights of appeal
whether the proposals will require changes to primary and/or secondary
legislation
whether they increase demand for prison places
enforcement costs for financial penalties
1
The Department for Business, Innovation and Skills has policy responsibility for new
civil sanction regimes for regulatory non-compliance.
7Justice Impact Test
When considering custodial penalties it should not be assumed that the prison
service can absorb an increase in the number of prisoners. The impact on the
prison service and the probation service (who work with those released from
prison enforcing conditions of court orders or release on licence) should be
identified and discussed with the Ministry of Justice.
Custodial penalties should be reserved for serious and violent offenders.
Alternatives to custody should be explored and any consequential impacts for
the probation service or youth justice system identified.
Account should also be taken of the need to train investigators, prosecutors,
the judiciary, court staff, and prisons and probation staff on any new offences
or penalties.
The Ministry of Justice can provide further information and advice in helping
policy makers identify and explore these possible impacts.
Courts
As well as the criminal courts, new policy initiatives could impact on the civil
courts, which include the county, family and high court, and the magistrates
and probate courts.
An impact on the courts will generally occur if the proposal results in new
types of application, more applications to the court or if a right of appeal is
created. It is important to consider the merits of using alternative dispute
resolution procedures, such as mediation, conciliation and ombudsman
schemes. This is discussed further in the guidance below.
Impacts for the court service, which can have cost implications, include:
increased work load due to an increase in the number of cases or in the
length or complexity of cases
system changes (either IT or manual)
enforcement of fines
reprinting of leaflets and other documents, such as guidance to the courts.
A proposal may also have a procedural element, which may need to be
accommodated by existing court procedures or it may require changes to
existing primary legislation or to court procedures rules. For example, the
court may be required to decide an application according to specified criteria;
this will then involve ensuring that the application to the court includes all the
8Justice Impact Test
information required for the court to make its decision. Time will be required
for any new procedures to be developed and for any new rules of court to be
made, approved and issued. Failure to identify the implications of a new
procedure may result in the policy not working as intended in the courts
Tribunals and appeals
Tribunals are often used as a means to appeal an administrative decision.
Therefore, it may occasionally be necessary to establish the jurisdiction for a
tribunal to hear a new kind of appeal. Creating a new jurisdiction is likely to
incur costs for the Tribunal Service and require new judiciary to be recruited
and trained. In order to propose a new jurisdiction, an agreement on funding
the start up and running costs would need to be reached first with the Tribunal
Service, and the Administrative Justice and Tribunals Council 2 will need to be
consulted if the proposal makes changes to existing tribunals.
Even if there is no prescribed appeal route, there can still be an impact on the
courts because administrative decisions can be judicially reviewed. Judicial
reviews are heard in the High Court. Depending on the nature of the appeal, it
may not be necessary or appropriate for appeals to be heard at this level,
particularly if the issues involved are simple. Alternative mechanisms are
available and may also be less costly, so contact the Ministry of Justice to
explore these options.
Example - Freedom of Information – internal reviews
Part IV of the Freedom of Information Act 2000 Section 45 Code of Practice
requires public authorities to have an internal review process in place to
consider complaints from any applicant who is unhappy with a response to a
freedom of information request. The internal review stage is an opportunity to
consider the request afresh. The review will either reverse or uphold the
original decision. Only when an internal review has been completed can an
applicant appeal to the Information Commissioner’s office. The appeal against
a Commissioner’s decision is to the Information Tribunal and thereafter, on a
point of law only, to the courts. By structuring appeals in this way there is an
opportunity to resolve disputes without immediate recourse to the courts.
See further: http://www.justice.gov.uk/requestinginformation.htm
2
Under paragraph 24 of Schedule 7 to the Tribunals, Courts and Enforcement Act
2007, 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 Administrative Justice and
Tribunals Council (AJTC). Further details on consulting the AJTC and the “listed”
tribunals are available at: http://www.ajtc.gov.uk/consultation/consulting-us.htm.
9Justice Impact Test Judicial appointments and training Policy initiatives which may require additional judiciary to be recruited, either due to an increased workload or the need for specific expertise, can impact on judicial appointments and/or training. The time required to recruit the judiciary means that it is important to consider this process at an early stage. Litigation impact ‘Litigation impact’ means any change in the number of cases being heard in the courts as a result of legal challenges to the making of decisions by public bodies, or in the exercise of their functions. Departmental lawyers will assist in identifying the legal risk associated with the policy options, before considering how best to manage those risks. However, a number of factors outlined below (some of which overlap) may affect the likelihood and the volume of litigation. This should be considered when formulating your policy and any such impact will need to be identified and quantified. 1. Engagement of human rights Policy initiatives which engage a person’s human rights are likely to generate litigation. Areas of policy most likely to generate large volumes of litigation include planning, employment, immigration and prisoners’ rights. 2. Discretion Legislation which confers a wide degree of discretion on the decision-maker may result in litigation. If a decision-maker is exercising statutory powers, the statute may set out the matters which the decision-maker should take into account. If the statute does not, it is necessary to decide what is relevant on the basis of its purpose or objectives. The more discretion a decision-maker has, the more potential scope there is to challenge decisions. 10
Justice Impact Test
3. Judicial discretion
Legislation may also allow a wide degree of judicial discretion by inviting the
courts to apply legislation on a case-by-case basis. One way of reducing the
extent of judicial discretion is to make provision in the legislation for guidance
to be issued by Ministers, which the authority would then have to take into
account when deciding how to fulfil these duties or obligations. The court
would have to have regard to the guidance in the determination of any case.
4. Allocation of resources
If the policy affects the allocation or distribution of an existing entitlement or
benefit, or creates a new one, then individuals, bodies or NGOs may
challenge decisions to deny them the entitlement.
5. Organised interest or opposition
Issues of high public interest often attract the support of interest groups, or a
degree of organised opposition. This may increase the likelihood of litigation.
6. Legislative complexity
Legislation may itself generate litigation. This is more likely to occur if
legislation further complicates the wider relevant area of law or an already
obtuse area of the law. Also the volume and rate of change of legislation in the
area may cause significant disruption and confusion.
11Justice Impact Test
Quantifying the impact on the justice system
If it is possible that your policy will have an impact on the justice system, the
next stage is to fully assess that impact. The quantification of the impact will
need to be included in the evidence base of the Impact Assessment. The
Ministry of Justice can advise on the key issues to consider and help to
quantify the impact with reference to:
cost/benefit methodologies
financial forecasting tools
research and data.
Through the process of quantifying the impact, policy-makers will also be able
to identify and address any gaps in existing data collection systems, so that
the implementation and impact of new policy initiatives is properly recorded
and monitored.
An evaluation toolkit specifically in relation to the Criminal Justice System,
which can help quantify the impact, is currently being developed, and further
details can be obtained from the Ministry of Justice.
Examples of key issues to consider when quantifying impacts include:
type of court/tribunal – which part/s of the court/tribunal system are likely to
be affected by the policy? For example, magistrates’ courts, Crown Court,
first-tier tribunal.
type of action/application to the court – what kind of action is anticipated?
For example, a prosecution or court application to impose an order, or to
enforce a financial penalty. Or are any legal challenges to the policy
anticipated? If this is an extension of an existing policy, can an estimation
of any likely increase be made by looking at numbers of prosecutions or
applications to date? Statistics on the operation of the justice system are
regularly collated and published. Ministry of Justice can provide further
details on request.
criminal penalties or sanctions - can we estimate likely sentencing practice
and as a consequence the impact on the prison and probation service?
For example, how many people are likely to get a custodial sentence?
appeal – are you creating a right to appeal? If so, how many appeals are
anticipated and what is length of time required to hear them? Will any
specific judicial expertise be required to hear the appeal? Alternatively, if
you are not creating an appeal, is there a likelihood of recourse to judicial
review?
12Justice Impact Test
volume/length/complexity of process – what will be the number of likely
prosecutions for the new offence, or number of new civil cases? Is there a
similarity with another procedure that could aid estimation of the likely
volume or length of cases which will result? How many cases are likely to
be contested or uncontested hearings? Generally, the higher the court the
more time is required for listing a case, and jury trials are usually longer
than trials before the magistrates.
legal aid – Ministry of Justice staff can help quantify the potential costs to
the legal aid budget by working with the Legal Services Commission, who
administer the legal aid budget.
possible unintentional effects – it is important to consider any unintended
consequences of your policy options. For example, a policy to increase
court fees may result in an increase in legal aid claimants or applications
for fee remission, or have an impact on alternative means of resolution
such as mediation services.
geographical application – will the impact of the policy be greater in
specific areas? If so, consider phased implementation or pilot areas.
pace of change – how quickly will the impact be felt? When will the effect
occur on, for example court services, prisons or probation? Will it be
immediate or ramp up over time?
Considering alternative approaches
If negative impacts have been identified, you should consider, and Ministry of
Justice staff can advise on, alternatives that still achieve the desired outcome
but that avoid or minimise these impacts. For example:
Is there a less costly appeal process? For example, an appointed persons
procedure for appeals 3 rather than a tribunal jurisdiction, or an appeal to a
tribunal rather than a judicial review.
Would civil sanctions be more effective and proportionate than criminal
penalties?
Will it affect the prison population? Changes to sentencing policy can have
a significant effect on the prison population. An initiative that impacts on
3
Rather than providing for a new appeals jurisdiction or an appeal against a decision
directly to the Secretary of State (“SOS”), the SoS appoints an independent person to
consider the appeal and advise the SoS on a recommended course of action. See as
an example The Veterinary Medicines Regulations 2009 No. 2297.
13Justice Impact Test
the rate at which custodial sentences are imposed would impact on the
prison population almost immediately. An initiative that increases the
length of sentence will take longer to impact, as it will only be felt when
those sentences would otherwise have come to an end. It is important to
identify the consequences of such initiatives so we can consider how best
to manage the impacts.
Alternative dispute resolution
You should also consider the merits of alternative dispute resolution (“ADR”),
which are a range of options for resolving disputes without going to court. ADR
includes:
mediation
adjudication
arbitration
conciliation
ombudsman schemes.
Mediation, for example, is an alternative to litigation and is a voluntary process
where a neutral third party helps both sides to agree on the outcome of their
dispute. Advantages in using ADR schemes are that they can be quicker,
cheaper and less stressful. Legal aid is available to help with the costs of
using an ADR scheme, subject to eligibility.
Further details on alternative dispute resolution can be found at
http://www.justice.gov.uk/about/alternativedisputeresolution.htm
Case study – Tenancy Deposit Protection
Tenancy Deposit Protection was introduced by the Housing Act 2004 as part
of a package of measures to raise standards in the private rented sector.
Since 6 April 2007, all deposits (for rent up to £25,000 per annum) taken by
landlords and agents for assured shorthold tenancies in England and Wales
have had to be protected by an authorised tenancy scheme.
Rather than disputes related to the deposit automatically being referred to the
courts, each scheme offers an alternative dispute resolution service to deal
with disputes. The ADR service is free of charge and where both parties
consent to use the service, the decision made by the adjudicator will be
binding. Disputes are only referred to the courts if one party does not agree to
use the ADR service or where the landlord is not contactable.
14Justice Impact Test
Example – Mediation pilot’s success in Manchester
Following the success of an in-house small claims mediation pilot at
Manchester County Court in 2006/07, Her Majesty’s Court Service has been
rolling out the service, which is free to court users with a defended small
claims case (valued at less than £5,000).
From April 2007 to March 2008:
3,745 mediations were conducted, of which 2,527 settled – a settlement
rate of 67.5%
the average length of time from date of allocation to date of settlement was
5.2 weeks – much quicker than the 14 weeks that it normally takes from
allocation to hearing
98% users said they were ‘satisfied’ or ‘very satisfied’ with the
professionalism and helpfulness of mediators, with 94% saying that they
would use the service again.
Ministry of Justice Annual Pledge Report 2007/08 (updated April 2009).
Funding the cost to the justice system
Where there is an impact on the justice system, the additional cost must be
properly funded and will be subject to negotiation between Finance
Departments. The presumption is that the Department responsible for the
initiative will be expected to cover the additional costs. Decisions on how to
finance a new proposal must be taken simultaneously with the policy decision.
Any agreement as to the new policy, including the finance of the impact of that
policy on the justice system, must take place and be agreed with the Ministry
of Justice, before a proposal goes forward for collective consideration by
Ministers.
15Justice Impact Test
Annexes
Checklist for screening impact on the justice system
At an early stage in your policy development you should consider the following
points in order to make an initial assessment as to whether the policy is likely
to impact on the justice system:
Does the policy involve:
creating or amending a criminal offence
creating a new civil sanction or fixed penalty
creating a civil order or injunction breach of which may lead to further
proceedings or criminal sanctions 4
new, or amendments to, sentencing/penalty guidelines
new, or amendments to, court or tribunal procedure rules?
Or is the policy likely to:
result in, create or increase applications to the courts or tribunals, including
judicial review
establish a new tribunal jurisdiction
require an appeals mechanism
require enforcement mechanisms for civil debts, civil sanctions or criminal
penalties
result in an increase in the number of offenders being committed to
custody or probation
result in an increase in the length of custodial sentences?
If the answer to any of these questions is yes, then the policy is likely to have
an impact on one or more areas of the justice system and you must contact us
at justiceimpact@justice.gsi.gov.uk to inform us and discuss further. If you are
4
Examples of a civil order with potential criminal sanctions for breach include anti-
social behaviour orders and football banning orders.
16Justice Impact Test
unsure as to the nature of any potential impacts, we can advise you. This list
is not exhaustive so if you have any concerns that the justice system may be
impacted you should contact us. In doing so, you should be ready to tell us:
the broad outline of the problem under consideration
the policy objectives and intended effects
what public commitments have been given, and to whom
the options under consideration
how it changes what happens now
the geographical area and timescale.
17Impacts on civil justice
APPEALS
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A I I E
W D L A C N
M E L I F
I I G A O
N A A L r
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S MAGISTrATES’:
FAMILY & CIVIL
COUNTY and
HIGH COUrTS
APPEALSImpact on criminal justice
INVESTIGATION COSTS
PRE TRIAL OUT OF COURT DISPOSALS
STAGE REMAND
CPS/PROSECUTING AUTHORITY
CPS/ PROSECUTING AUTHORITY
JURY COSTS
COURT COSTS
LEGAL AID
ADMIN
FINE EN- JUDICIAL/
FORCEMENT MAGISTRATES
CPS/ PROSECUTING AUTHORITY
COURT COSTS
DAMAGES
PRISONS
PROBATION SERVICE
YOUTH JUSTICE SERVICES
ELECTRONIC MONITORING© Crown copyright 2010 Produced by the Ministry of Justice Alternative format versions of this report are available on request from Justice Impact Team at justiceimpact@justice.gsi.gov.uk
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