This week sees the final meeting of the Administrative Justice Forum, which was established following the abolition of the Administrative Justice and Tribunals Council in 2013. The AJTC was abolished following a government consultation and an inquiry by the then Public Administration Select Committee. UKAJI takes this opportunity to set out some proposals for the way forward.
Administrative justice continues to be a Cinderella amongst the justice systems and remains a relatively neglected area.
Yet administrative justice deals with far more ‘cases’ of alleged injustice and directly affects a much larger section of the population in their day-to-day lives than do the civil, family or criminal justice systems. Everyone interacts regularly with, or is affected by, administrative systems and administrative decision-making, often needing to challenge decisions and seek redress. In her 2011 JUSTICE lecture, then Parliamentary and Health Service Ombudsman Ann Abraham notes:
‘Administrative justice can sometimes seem the poor relation by comparison with the civil, criminal and family justice regimes. Yet citizens are just as likely, if not more likely, to come across administrative justice issues in their ordinary lives than civil or even family justice issues. The outcomes of decision making by a wide-range of public bodies on a daily basis affect family incomes, jobs, healthcare, housing, education and much, much more.’
For users and reformers, this area of the justice system presents particular challenges. These include that it is made up of different systems – the public bodies making initial decisions (and rules and guidance governing those decisions); the tribunals/complaints/ ombuds and other mechanisms that operate at local and national level; and the different approaches taken by administrations in devolved jurisdictions.
These factors mean that administrative justice is susceptible to fragmentation and silo isolation, and as such it poses unique challenges for those seeking to learn lessons across the ‘system’.
Decline in support for independent oversight
An independent, robust, overarching body able to draw lessons and help thinking across the system(s) was for long recognised as necessary and valuable. (For an overview of the history, see 10 years on, are we closer to defining ‘administrative justice’? and the PASC inquiry) Yet in recent years various oversight initiatives have stalled or had their funding withdrawn (eg the AJTC, its Scottish and Welsh committees, the AJF).
One explanation for the recent movement away from independent oversight has been the government’s view that it is best placed to oversee the administrative justice system. In its response to the 2011 consultation on abolishing the AJTC, the government stated that it ‘believes that an advisory body is no longer required in the field of administrative justice as robust governance and oversight arrangements [are] now in place with regard to tribunals and the development of administrative justice policy is properly a function of Government’.
Despite this self-confidence, as government embarks on an ambitious reform programme, with an investment of nearly £1billion, that aims to transform how people access tribunals and other justice mechanisms, the need for independent oversight is greater than at any time in the past. That need will be all the more with the proposed convergence of the public-sector ombuds (covering Parliamentary, Health, and Local Government in England), which will have far-reaching consequences for complainants and public service providers and ombuds in devolved jurisdictions, as well as for the relationship between the ombuds and other institutions for administrative redress, such as courts and tribunals. Moreover, any such body must be capable of providing holistic oversight, and not be linked to any one strand of the administrative justice system.
Keeping an eye on research and working with research oversight bodies
Evidence derived from independent rigorous research should be key when designing redress mechanisms and reforming administrative justice. This demands greater collaboration between independent researchers and government departments/public bodies to identify research needs, improve data recording and facilitate access to data. This is a role that the UK Administrative Justice Institute (UKAJI) has been asked to fill and has progressed over the past three years.
It has become evident during UKAJI’s life is that there is a great deal of research being undertaken relating to ‘administrative justice’, some, but not all, by empirical legal researchers in university law departments. However, as institutional memory fades, past research can be lost. It is also clear that many people are involved in delivering ‘administrative justice’ but do not see themselves as part of an administrative justice system and do not look to that ‘system’ for evidence or useful learning.
Like oversight, research needs must also be considered independently and holistically across the system. There is therefore a need for an administrative justice oversight body to work closely with UKAJI and other research-focused organisations to ensure that thinking, new initiatives and policy change are informed by empirical evidence.
Re-positioning administrative justice
The abolition of the Administrative Justice Forum could be seen as an opportunity to reconsider not only what is needed in order to increase awareness, and scrutiny of administrative justice, but also as an opportunity to re-position administrative justice. Arguably ‘administrative justice’ is too disparate and diffuse a concept to be limited to law and directed only to lawyers and legal academics. While people can understand what criminal justice or family justice covers, administrative justice is also perhaps too rarefied to be readily recognised, including by advisers, government decision-makers, ombuds, tribunal members, and those people who are on the receiving end of government decisions. For these reasons there might be value in considering how to re-position administrative justice as an overarching set of principles and values governing individuals’ interactions with the state rather than as being one of the four ‘strands’ of the justice system.
A future oversight body
Below are suggestions from UKAJI for what we’d like to see as part of a future administrative justice oversight body, following the abolition of the AJF.
In our view an independent oversight body should:
- Take a holistic approach that is not rooted in silos or concerned only with particular ‘arms’ of the justice system
- Bring together academics, practitioners, policy-makers
- Understand the central role of research in the context of policy-making
- Have sufficient authority to challenge ministers
- Be adequately resourced and be able to follow through on actions agreed by its members
- Be based on principles for oversight and system design (eg Bondy and Le Sueur, Designing Redress, 2012)
- Conduct transparent proceedings
Activities we consider essential for such an oversight body include:
- Providing challenge through asking and teasing out questions and identifying issues that justify research and inquiry
- Encouraging testing and evaluation of initiatives
- Commenting on draft legislation and procedural rules
- Harnessing resources across government and redress providers
- Commissioning research and facilitating access to data resources
- Reviewing official statistics and the adequacy of relevant data
- Reviewing research and research needs
- Encouraging a culture of learning across systems and within systems, and contributing to operational improvements and policy development through evidence-based learning
- Regular meetings between internal and external stakeholders and academics based around specific area or theme, plus topic-specific roundtable discussions
Finally, it is worth remembering why administrative justice merits oversight and scrutiny. In the words of former Parliamentary and Health Services Ombud Ann Abraham:
‘All this is by way of reminding ourselves why administrative justice matters, why it is not some arcane discipline best left in the shadows, but something that is fundamental to ordinary daily life with much wider implications for the ever contested territory between state and society, the central and the local, the individual citizen and officialdom.’