This discussion was first published in Adjust, the newsletter of the Council on Tribunals and later the Administrative Justice and Tribunals Council, in July and November 2005, following the publication, in July 2004, of the Transforming Public Services: Complaints, Redress and Tribunals White Paper. It is republished here with permission of the authors.
So what do we mean by Administrative Justice?
Bernard Quoroll, Council on Tribunals member
We are looking forward to the wider role envisaged for us by the White Paper as we move toward a wider administrative justice remit, alongside our current role overseeing the work of tribunals. But what is administrative justice? The question is more easily posed than answered. You could say, “I can’t define it but I’ll know it when I see it” but that doesn’t seem very satisfactory. You could try to define it by what it is not but that does not establish any basis for deciding what common features there might be. One thing does seem clear – it is not only about fair and impartial tribunals and good tribunal practice, vital though they are. Otherwise why talk about a “landscape” of administrative justice in the White Paper? Nor arguably is it the same as administrative law, although there will be many issues in common.
As far as I can determine, no one has yet been able to provide a comprehensive definition consistent with the aspirations in the White Paper and which commands universal acceptance. Perhaps that is a good thing. Certainly, the Council on Tribunals is not bold enough to attempt a definition today. We are only at the beginning of this journey and we need to seek the views of many interested individuals and organisations before making too many assumptions. But as a starting point, it seems to us that a comprehensive approach to administrative justice will have its roots in good decision making by organisations and individuals who have the power to affect people’s lives. It is also likely to encompass everything which may happen subsequently, when such decisions come to be tested.
It surely means that we must continue to put the citizen at the heart of all our deliberations. We have already travelled far beyond the Franks Report in 1957 with its emphasis of curbing overweaning power. We had citizens then but we have citizens and customers now and our ideas about access, transparency, the right to ask questions and challenge have moved on apace.
So also has our sense of the importance of understanding and responding to the needs of users whose only experience of conflict with government may be when they appear at a tribunal and whose expectations have grown with the passage of time.
One way of addressing a definition would be to try to identify which individuals, organisations and interest groups might come under an administrative justice spotlight or have a part to play in the resolution of disputes. The first focus in the White Paper is on government departments and soon after, local government but the tribunal world already encompasses disputes between employers and employees, landlords and tenants, schools and parents, competition issues in the private sector and many more.
Such an approach could encompass all agencies engaged in dispute resolution, including the agencies which represent individuals before tribunals, but would it provide a comprehensive map of the territory?
Perhaps an answer lies in looking at the forms of redress open to individuals and organisations en route to a tribunal hearing. That would bring into the frame things like the quality of original decision making in organisations, reconsideration of decisions by them, complaints procedures, ombudsmen and other kinds of proportionate dispute resolution like mediation, right through to the use of inquiries and even judicial review. Such an approach might also include how to ensure that lessons learned along the way are transmitted back to those who take the decisions in the first place.
A third way of approaching the subject might be to look at areas where good practice might be defined or codes of conduct agreed – a tradition with which the Council on Tribunals is already very familiar and which many agencies such as ombudsmen and the Judicial Studies Board produce naturally as a by product of their primary roles. Such an approach on its own might, however, result in agencies not currently envisaged as falling within the administrative justice remit having a spotlight turned on them. Having said that, good practice in comparable circumstances ought arguably to be shared in any sector where it can be useful.
All these approaches seem to describe the landscape rather than define it. They raise crucial questions about how individuals at the receiving end of decisions by others are guided toward the fairest, quickest, least expensive and least stressful ways of getting an answer in the spirit of the “proportionate” approach championed by the White Paper.
We could of course simply identify and examine individual issues which seem to us to be important and worthy of attention, as we continue to develop our own sense of what administrative justice should include. One such topic, which we have already begun to consider, is the value of oral hearings on which we have recently produced a consultation paper.
What we would welcome most of all however would be to hear your views, both generally and in relation to the topics we should be examining on our path toward becoming an administrative justice council. Please email us at email@example.com with your thoughts.
Bernard Quoroll, Council member
So What Does Administrative Justice Mean To Me?
Brian Thompson, Liverpool Law School, University of Liverpool
I am pleased to contribute to the debate on administrative justice initiated by Bernard Quoroll in the last issue of Adjust. In this short article I shall not attempt a definition of administrative justice, but rather give some indications of its scope. I will refer to some of the ideas in the academic literature and end with some suggestions for the work programme which the Council might undertake in the new role envisaged for it in the July 2004 White Paper Transforming Public Services: Complaints, Redress and Tribunals.
Whilst I have been teaching a course called Administrative Justice since October 1996, I do not have a definition such as Mashaw’s, ‘those qualities of a decision process that provide arguments for acceptability of its decisions’. I prompt my students to begin to map the terrain of administrative justice by indicating some boundaries and important features.
Let us start with tribunals and move on to the other means of redress for citizens aggrieved with public services which are principally (a) the internal complaints systems in public service bodies, which includes review conducted by the Independent Review Service in social security and conciliation which may be used in the first stage of the NHS complaints procedure; (b) the public services Ombudsmen who deal with central and local government and the NHS (and social housing in Scotland and Wales in their recently established ‘one-stop shops’) and (c) the courts with their judicial review and statutory appeals jurisdictions. On examining these institutions and techniques of dispute resolution one notices that they help to delineate a perimeter for administrative justice but that they have internal links and barriers. A point to which we will return.
The new Council would then extend its attentions from tribunals and inquiries to these institutions and techniques of dispute resolution but the expansion has another dimension.
Administrative justice includes not only the operation of these institutions and techniques of dispute resolution but also the administrative processes which gave rise to these disputes. As the White Paper puts it, there should be a concern with getting things right first time. This dual function of resolving individual grievances and learning the lessons so as to improve service is something which Ombudsmen seek to do and, following the work of the Citizen’s Charter Task Force and its successors, is built into the guidance for the operation of internal complaints systems.
The principles and values of administrative justice are not straightforward. We have moved beyond the Franks trinity for tribunals and inquiries of Openness, Fairness and Impartiality.
These were fashioned for dealing with a grievance and not initial administrative action and decision-making. One general tool used for controlling administration is audit, which has extended its concern from financial regularity to value for money, which focuses upon Economy, Efficiency and Effectiveness. This is an internal control compared to the external controls of tribunals, ombudsmen and the courts. Models of good administration derived from the case-law of the courts and ombudsmen have been proposed (e.g.Woodhouse). These models do overlap but they cover different aspects and it is generally true that the principles and values in administrative justice may vary according to the perspective of the particular stakeholder: the aggrieved citizen, the minister or official whose action or decision has been challenged, the citizen as friend of an aggrieved person, fellow citizen in this society or as a taxpayer.
Professor Adler has developed and adapted Professor Mashaw’s work producing six models of administrative justice which differ in their modes of decision-making, legitimating goals, modes of accountability and characteristic remedies. The six models are: Bureaucratic, Professional, Managerial, Legal, Consumerist and Market. The practical point to bear in mind from this theorising is that these models and their values will be in competition and it is most unlikely that a single model will dominate. Accordingly there will be trade-offs as policy makers seek to construct an optimum mix for each particular administrative activity.
An example of this is the oral hearing which is the subject of a current consultation exercise by the Council. From a legal perspective oral hearings promote openness, independence, impartiality, accountability and participation but require good advice and support/representation. Do these values trump cost, possible delay and a potentially stressful experience? In some cases yes but not, perhaps, in all. It is to be hoped that the Council’s consultation exercise will throw some light on the types of disputes or issues which may be better suited to an oral hearing. It is this idea of matching disputes to the appropriate method of dispute resolution which, for me, is a key feature of administrative justice and why I prefer the term ‘appropriate dispute resolution’ to ‘proportionate dispute resolution’.
The new Tribunals Service will have a duty to innovate, to try methods of dispute resolution such as early neutral evaluation and conciliation. The new agency will be interested in the work of its Australian counterparts in New South Wales, Victoria and Western Australia and their use of directions meetings, as well as the work being done on Alternative Dispute Resolution by our own Civil Justice Council, and so will the new Council as these techniques are relevant to its ‘party and party’ remit.
I end by agreeing with Bernard Quoroll that the new Council should focus upon the citizens’ perspective and experience and that two examples of inquiries with this focus would be:
References and Further Reading
Adler, M. ‘A Socio-Legal Approach to Administrative Justice’, (2003) 25 Law & Policy, 323;
Harris, M, & Partington, M. (Eds) Administrative Justice in the 21st Century, (1999, Hart);
Mashaw, J.L. Bureaucratic Justice: Managing Social Security Disability Claims, (1983, Yale University Press);
Partington, M. ‘Restructuring Administrative Justice? The Redress of Citizens’ Grievances’, (1999) 52 Current Legal Problems 173;
Woodhouse, D. In Pursuit of Good Administration: Ministers, Civil Servants and Judges, (1997, Clarendon Press).