Reform of the administrative justice system: a plea for change and a research agenda
By Richard Kirkham (University of Sheffield) (L) and Naomi Creutzfeldt (University of Westminster) (R)
This post is a response to recent overlapping speeches given by the Senior President of Tribunals (SPT), Sir Ernest Ryder, with a particular focus on his Ombudsman Association lecture. Amongst other things, these lectures chart a reform programme and advocate a more user-friendly and joined up way of delivering administrative justice. We highlight here some of the issues raised and respond with a plea for more clarity and direction. We conclude with a proposed programme for research.
Crisis in the administrative justice system?
The Senior President of Tribunals (SPT) is one of the most important positions in the legal system of England and Wales. Although not explicitly stated, the current SPT’s speeches detail a formal response to the pressures placed upon an overstretched administrative justice system (AJS), one which is struggling to serve its full purpose. In recent times these pressures have been regularly noted, particularly as caused by the decline of legal aid (eg Bach, EHRC). Further, the challenges do not just relate to obtaining quality legal advice, but there are also inherent design problems and issues of administrative learning. The practical pressures on the judiciary (including in the Tribunals sector) have also increased and there have been severe financial cuts in the ombudsman sector. Meanwhile, legislation to affect more bespoke reform to discrete branches of the AJS remains a long way off.
In addressing the challenges created, a key theme of the SPT’s OA lecture looks beyond the tribunals sector, and includes a critique of the overall design of the system.
The AJS operates too much through a collection of silos, based on a largely traditional and separated approach to administrative justice. Such problems have been known for a while but to date reform has been low on the priority list, with no single body currently responsible for oversight. As noted by the SPT, this lack of coordination places a heavy burden on the AJS’s most important component, the judiciary, when the consequences of systemic failures in administration are left unrepaired.
In the United Kingdom courts and tribunals … are not perceived as being responsible for or interested in the wider context of administrative adjudication, facilitative decision making or problem solving. We should be.
Two paths out of the crisis
To this dilemma the SPT’s lecture offers two possible ways forward.
The first is to embrace technology. HMCTS is investing £1b in reforming its justice system – implementing radical change and upgrading to a digital world:
The vision is to modernise and upgrade our justice system so that it works even better for everyone, from judges and legal professionals, to witnesses, litigants and the vulnerable victims of crime. When they have to engage with the system, we want everyone to have available to them the finest justice system in the world.
Where this initiative will go and how successful it will be it is very difficult to predict and receives ongoing critique. Nevertheless, the SPT makes a strong claim that digitisation could create new opportunities and have knock-on effects for the remainder of the AJS. In doing so, it may provide a trigger for other parts of the system to piggy-back reform-minded initiatives onto the process.
This leads to the SPT’s second suggestion. With legislative reform unavailable, creative incrementalism is going to have to be maximised, and even here radical options are available should we dare to try. For instance, one positive initiative would be, not only to improve access to and quality of justice (Ryder, para.21-30), but to make users a more central part of the management of the system.
The move to online platforms in the Tribunal sector is also important as its underpinning ‘aim is to improve the public’s involvement in and perceptions of justice so as to add more value to justice as a virtue’.
Likewise, the SPT hints at a simultaneous effort on improving existing systems, urging a conversation ‘about joint working, mutual co-operation and the creation of an administrative justice sector that our users’ value’ (Ryder 2019).
Enhancing the tribunal/ ombudsman partnership
The SPT’s lecture was given to an audience of ombuds, and hence unsurprisingly he chose to focus on the ombuds and tribunal relationship. In doing so, he considers a long-known overlap in administrative justice responsibility that has never really been fully addressed (eg Law Commission, Part 3), resulting in citizens being bounced around between different institutions, and information known in one branch of the system not being shared with other partner bodies.
The SPT offers four ways forward which we examine here.
- The ability of administrative courts and tribunals to refer matters that are prima facie maladministration to an ombudsman who can consider them using their own initiative powers. Courts used to do that in family law – they referred poor practice to the then social service inspectorates who reported back to the judge about it or published their own conclusions.
There are two elements to this proposal that could – and we would argue should – be pursued.
First, courts and tribunals should be encouraged to refer matters onto ombuds, and stay their proceedings so that ombuds can consider complaints, if appropriate. When this was proposed by the Law Commission ten years ago, it received a lukewarm reception from the legal community but in many instances, it might facilitate better and quicker justice.
Second, there is a hidden potential for the judiciary to compile the learning from multiple cases and ask the question – why does this keep happening? The SPT’s OA speech provides good examples where this does occur, and might be aided by an ombuds intervention.
It is though, unclear how such innovations could be taken forward without legislative reform both to permit the courts and tribunals to stay proceedings in cases brought before them, and for ombuds to launch own-initiative investigations. Or is the SPT suggesting that sufficient ‘back channels’ already exist for tribunals to cajole litigants in the direction of ombuds, and flexibility in legislation for ombuds to expand individual investigations into systemic ones? In the absence of reforming legislation this may be the best practical way forward, with caseworkers being challenged to use their discretion and ombuds to become bolder in finding representative cases to build systemic investigations around (as for instance could have happened with the Windrush scandal). The fact that such discretionary power is not being widely used at present is one good reason to maintain the pressure on Whitehall to follow the example of Northern Ireland and Wales to implementing legislative reform.
- A corresponding power in an ombudsman to refer to the Administrative Appeals Chamber of the Upper Tribunal – which is a United Kingdom Superior Court of Record – any issues they believe require guidance by judicial review determination or individual redress beyond their powers. The power to issue binding guidance should not be underestimated.
Again, we would agree with this proposal but here too legislation would be needed.
Whether it would have a significant impact is doubtful (an equivalent power held by the Pensions Ombudsman has been used only once in 25 years as far as we are aware of), but occasionally it could be a very important tool. There may be some reticence to use the power on the ombuds part (fear of judicialization and delay) but there is a good precedent in the Charity sector of an equivalent referral mechanism (eg see Law Commission).
- A programme of interoperability – and what do I mean by that – judges able to work as ombuds and vice-versa – not just collaboration and co-operation but career paths and that includes for our case workers and case officers. One of our case officers has become a judge and others will follow. They have materially identical skills and abilities frameworks in both our services.
Unlike the other proposals, on one level this idea is workable at present. Indeed, both the ombudsman sector and the judiciary are already developing joint training and liaison events. In Germany judges do commonly become ombuds – and arguably this has very beneficial effects within the German legal culture. For deeper interoperability, such as asking a judge to apply ombuds-like processes in a tribunal case, would surely need new legislative powers, or the development of a ground of ‘maladministration’. The reverse is already possible, in that ombuds can find maladministration on the basis that the authority had breached the law.
However, the ombuds sector would no doubt be nervous that the direction of travel would be all one way – with the judicial culture formalising and diluting the more ‘equitable’ form of justice currently delivered. This may not be a necessary conclusion, and the ombuds sector’s engagement in this process may in part be due to a heightened confidence that in some respects, such as the LGSCO’s current transparency agenda, it may be ahead of the tribunals sector, and have much from which tribunals need to learn.
- A strong and single voice for change rooted in what our users want. They can and should be asked what do they want their justice space to be like.
More needs to be done to engage users’ voice. The aim of focusing a system around what users want and expect is a common driver for reform and change, and has been a regular theme promoted by policy-makers (eg Citizens Charter 1991; PASC 2013) and the former AJTC for some time. An important aspect of this goal is implementing procedural fairness in existing procedures. However, the aspiration needs to go further, with more attention paid to managing user expectations and helping them experience a fair process. The SPT is right to argue that incorporating this perspective should be a huge and necessary aspect of the design of digital procedures. Where we need more debate is on how we integrate the voices of all users of public services into the ongoing oversight of ombudsman and tribunal services, not just those most immediately participating in dispute resolution.
An agenda for research
To summarise, we suspect that whilst the SPT argues for the ombuds sector to be bold in forging a new relationship with the judiciary, many of his stronger proposals need legislation and cannot be introduced through managerial incrementalism alone. That said, there is much to consider in the proposals and we raise here two points for further debate.
First, currently an ombuds – tribunals familiarization programme between the LGSCO and the SEND tribunal is underway. Thought of as a pilot study, this initiative aims to share understanding and best practice between the two systems, building on the existing ‘McKenna / Berg Protocol’ developed between the First-Tier Tribunal (Charity) and the Independent Complaints Reviewer.
This initiative is a positive one, and is indicative of the networked solutions that will have to be pursued in the absence of broader support from Government. However, reliance on such entrepreneurial and opportunistic activity to bring about change carries risks that other partnerships and networks are not pursued for want of an available voice. To avoid new silos being created, ideally such partnership approaches will need to be connected to wider debates about the administrative justice system as a whole.
This leads to a second point. This pilot is not just an excellent opportunity to test out some of the ideas promoted by the SPT, there is also the opening for researchers to add empirical knowledge to the theoretical claims that are often made about both the ombuds and tribunal sectors. If, for instance, the current familiarization programme appears too narrow in focus, then it does at least open the space for a debate about alternative lines of inquiry.
This final point illustrates a broader development that could become embedded. The AJC was created just over a year ago. It has the oversight over the AJS and is open to working closely with academics. Through the AJC, many organizations have demonstrated a willingness to make data available that has previously been unavailable and to grant researchers access. This initiative builds in part on the work put in in recent years by UKAJI. A shift is taking place in the justice system, providing many opportunities and hurdles – and researchers need to take advantage of the moment.