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Comparative studies, Judiciary, Reports & Publications, Research, System design, Tribunals, Wales

Administrative Justice in Wales and Comparative Perspectives

AJ in Wales - Sarah Nason

[from left to right some of the book’s contributors, David Gardner (Administrative Court), Dr. Sarah Nason (Bangor University) Ann Sherlock and Professor John Williams (Aberystwyth University)]

By Sarah Nason

The 15th September 2017 saw publication of Administrative Justice in Wales and Comparative Perspectives (University of Wales Press) (AJWCP). Publication coincided with the Legal Wales Conference at which The Rt Hon Lord Thomas of Cwmgiedd Lord Chief Justice of England and Wales praised the achievements of the Legal Wales movement over the past 20 years, and the first Welsh Justice Designate of the Supreme Court Sir David Lloyd-Jones spoke of the need to establish an Institute of Welsh Law.

AJWCP is part of the Public Law of Wales series, the purpose of which is to present to the professions and the public an account of the law as it applies in Wales and how this diverges from England and Wales, and from England alone. The series provides a foundation for legal literature to serve the distinct needs of Wales. Theodore Huckle QC (former Counsel General for Wales) describes AJWCP as ‘a vital contribution’ to authoritative analyses of the developing law for Wales situated in its proper historic constitutional context. Professor Richard Rawlings welcomed the book as ‘pioneering and authoritative…a landmark title on the challenges and opportunities of administrative justice in conditions of small country governance’.

Historically there is much to support the view that Legal Wales punches above its weight, and whilst some scholars warn of a declining commitment to administrative justice across a range of legal jurisdictions, this is not so apparent in Wales. Indeed Welsh scholarship has begun to place administrative law and administrative justice issues centre stage. The Welsh Government Justice Policy Team actively promotes the importance of administrative justice. Wales has a distinctive and evolving Public Services Ombudsman, a range of innovative Commissioners, and an ongoing programme of tribunal reform, including the recent appointment of the first Interim President of Welsh Tribunals.

In this process of developing its own unique system of administrative justice Wales should of course learn from other jurisdictions, and in turn these jurisdictions can learn from the Welsh experience. AJWCP therefore examines issues in administrative justice in Wales primarily in comparison to other UK jurisdictions, the Netherlands, Belgium and Australia.

“…a landmark title on the challenges and opportunities of administrative justice in conditions of small country governance” – Professor Richard Rawlings

Part One

Part One examines distinctive Welsh legislation particularly in relation to its progressiveness in the protection of children’s rights, housing and homelessness, and the importance of bilingualism. Citing this legislation in the context of administrative justice, the book’s contributors evaluate the extent to which the rights and duties contained in such seemingly progressive legislation are properly protected by relevant redress procedures. Critical attention is paid to finding the appropriate balance of protecting rights and enforcing duties through soft-law processes, policy guidance, and regulatory structures, as well as through tribunals and courts. Contributors also note that understanding the perspectives of end recipients of rights and bearers of duties should be crucial in legislative drafting and redress design.

It is observed that the Commissioners’ powers to ‘name and shame’ make them particularly effective at resolving grievances, but sometimes these are issues that ought to have been more proportionately dealt with earlier, such as within local authority review processes.

Part Two

Part Two adds to a growing body of literature on so-called ‘integrity branch’ institutions, and in particular the innovative Welsh Commissioners. Contributors explore the functions and accountability of Welsh Commissioners, including a specific focus on the perceived and actual independence of the Welsh Language Commissioner and the relationship between this Office, the newly established Welsh Language Tribunal, and the Welsh Tribunals Unit (WTU) which administers the majority of devolved Welsh Tribunals. The functions of the Children’s Commissioner and Older People’s Commissioner are also are analysed, in particular their empirically proven role in sign-posting individuals to other procedures and institutions within the administrative justice system. It is observed that the Commissioners’ powers to ‘name and shame’ make them particularly effective at resolving grievances, but sometimes these are issues that ought to have been more proportionately dealt with earlier, such as within local authority review processes.

…the smaller scale of governance makes partnership working between government, tribunals, and ombudsman, more feasible and potentially more effective.

Part Three

Part Three examines developments in tribunals and ombudsmanry across the UK. Contributors present empirical data and analyses suggesting the development of a ‘new model’ of tribunals with an increased policy emphasis on dispute avoidance and containment as opposed to dispute resolution. Concerns are raised about the role of administrative review within this model, including its lack of systematically principled underpinning. It is argued that core areas of immigration and asylum, and welfare, are becoming ‘de-tribunalised’ and increasingly colonised by internal bureaucratic decision-making at the UK Government’s behest. Comparative analysis shows that such ‘de-tribunalisation’ is not so evident in the devolved tribunals (in Wales, Scotland and Northern Ireland), but that each of these nations is presented with unique opportunities and challenges in developing their own distinctive approaches to administrative justice. For example, the smaller scale of governance makes partnership working between government, tribunals, and ombudsman, more feasible and potentially more effective, and so-called ‘silo-mentalities’ are not so evident. On the other hand, local political priorities and a lack of knowledge of devolution within Whitehall can delay or derail innovation.

Part Four

Part Four is dedicated more explicitly to examining comparative law perspectives on a range of administrative justice issues. Wales is embarking upon a ‘ground breaking’ project to become the first UK nation to codify various areas of its public law. AJWCP examines some of the benefits, challenges, and potential disadvantages of codifying administrative procedure law by looking to the Netherlands General Administrative Law Act and the Australian Federal Administrative Decisions (Judicial Review) Act. Drawing on the experiences of Australia and Belgium, contributors also examine the challenges and opportunities of delivering administrative justice in a federal nation, and with respect to Belgium, in a multi-lingual nation.

The broader design of administrative justice systems, in particular courts and tribunals, is also addressed. For example, considering issues such as the regionalisation (localisation) of administrative courts and tribunals, and the relative advantages and disadvantages of fragmentation (or diffusion) of specialist jurisdictions, versus amalgamation (including amalgamation into so-called ‘super-tribunals’ able to handle both civil and administrative claims). The role of lawyers in administrative tribunals (and administrative redress more generally) is critically analysed, especially against the context of declining access to legal aid. Returning to the theme of administrative review, a cautionary tale of ‘new bureaucratic justice’ from the Netherlands is presented.

Common Themes

Together the book’s contributors provide expert analysis of a range of commonly recurring themes in administrative justice, in particular: the importance of clarity and accessibility in underpinning legislation, the need for a rational and principled approach to designing procedures and institutions, and the necessity of developing a modern understanding of how the different parts of an administrative justice system can work together to deliver proportionate justice. As Professor Richard Rawlings (UCL) notes, this collection therefore, ‘places Wales firmly in the mainstream of contemporary legal discussion’.

About the author:

Sarah Nason is Lecturer in Law at Bangor University.

 

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