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Appeals, Complaints, Courts, Initial decision-making, Ombuds and reviewers, System design, Tribunals

Administrative justice oversight must continue

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.’

Discussion

4 thoughts on “Administrative justice oversight must continue

  1. That is a fair point and one I adverted to in my earlier post. Being “inside” the tent had disadvantages but there were also benefits. Firstly, AJTC had a statutory right to attend tribunal hearings and give feedback on what they saw, both directly to practitioners and in written reports which were publicly accessible. We also had an opportunity to comment on emerging policy making materials and draft Statutory Instruments and sit down with key influencers, even attending internal MoJ working parties and being generally welcomed. A downside was that the price of being inside the tent was some dampening of the rhetoric available to us when pointing out error or the need for reform. It needed good chairs to judge when to be polite and when to turn up the heat and fortunately, the last two chairs during my time as a Council member had all the necessary skills. A civil service secretariat who knew how the system operated, was also very useful, even though I suspect the MoJ at times thought they had gone native. Secondly, the annual report recorded what AJTC found and how government responded. It was a publicly accessible resource for Select Committees and it was evidenced based. Once policy papers have been published, the opportunity to influence a change of direction are much reduced of course but that has always been the case. The relationship was never an easy one. I would have preferred to be outside the tent but with a statutory right of access maintained. However I had to accept that once fully outside, some drawbridges would have been drawn up which indeed they were, when it became clear that the imperative within MoJ was saving money, more than administering justice. Government’s assertion that the public could not hold NDPB”s to account may have had some traction in relation to some quango’s but AJTC, with its modest costs was never a runaway quango and never the subject of public criticism, except perhaps on the issue of lacking “teeth”. The reality is that in the same way that AJTC never countenanced the idea that organisations should be judges in their own cause, government departments should not be permitted to claim that “robust governance and oversight arrangements” are in place without challenge. It is to quote Jeremy Bentham “nonsense on stilts”.

    Posted by Bernard Quoroll | March 21, 2017, 1:24 pm
  2. Looks a bit like the former remit of the now abolished and much missed AJTC! What a surprise. One of the cornerstones of any serious attempt to do justice is not just to have “robust” systems but also to avoid the accusation of being a judge in your own cause. The MoJ ought to know better but of course that would be too much to hope for from a justice ministry, bent on saving money. The delivery of inconvenient truth was sometimes uncomfortable for the MoJ and its ministers but the AJTC almost certainly covered its modest costs in the reforms it encouraged. Being a constructive outsider, sponsorship by the MoJ meant that its role was not always a comfortable one. But by focussing on evidence-based issues and having access to the inner workings of government, it was in a unique position to point out the need for reform. If there is to be a next time, oversight of the delivery of administrative justice should be implanted in a service ethic before and alongside conceptions of doing justice. That concept was destroyed when tribunals were absorbed within the court system and the cart put firmly before the horse. So don’t hold your breath. An effective body should ideally be outside government but with access enshrined in law, adequately funded and led by people who are passionate about good service delivery and equal justice. I cannot see that happening anytime soon, unless there is another Crichel Down affair or worse but the memories of politicians are short. Meanwhile it is up to academics to count the bodies. Perhaps I should cross my fingers as well as holding my breath. I think I cold manage that!
    Bernard Quoroll (Former AJTC Member)

    Posted by Bernard Quoroll | March 14, 2017, 2:33 pm
  3. The government state that they are ‘best placed to oversee the administrative justice system’ yet government continually tell the public that they cannot hold these ‘independent’ bodies to account. So what does ‘oversee’ mean in this context? Government overseeing the bodies which hold them to account provides for a very cosy relationship between the two. So how would any external oversight body have ‘sufficient authority to challenge ministers’? Where would this power come from?

    Posted by phsothefacts.com | March 14, 2017, 10:09 am

Trackbacks/Pingbacks

  1. Pingback: Administrative justice oversight must continue | Martin Partington: Spotlight on the Justice System - March 15, 2017

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