Future oversight of administrative justice: the proposed abolition of the Adminstrative Justice and Tribunals Council - Public Administration Committee Contents

2  Role of the AJTC

5. The "administrative justice system", as defined by the Tribunals, Courts and Enforcement Act 2007, comprises:

    the overall system by which decisions of an administrative or executive nature are made in relation to particular persons, including:

    (a) the procedures for making such decisions,

    (b) the law under which such decisions are made, and

    (c) the systems for resolving disputes and airing grievances in relation to such decisions.[5]

It is generally understood as including the mechanisms by which individuals can challenge, question and seek to change decisions which central and local public bodies have made about them, in cases where there have been errors, misunderstandings or unacceptable standards of service. It includes complaint schemes operated by Government departments and other public bodies, ombudsmen, tribunals (both within the jurisdiction of the Courts and Tribunals Service and outside it) and the administrative court.[6]

6. Following the publication of the Franks Report on Administrative Tribunals and Enquiries in 1957, the Council on Tribunals was set up to "keep under review and report on the constitution and working of tribunals under its supervision and, where necessary, to consider and report on the administrative procedures of statutory inquiries". The Council "sought to ensure that tribunals and inquiries met the needs of users through the provision of an open, fair, impartial, efficient, timely and accessible service". [7]

7. The 2001 report on the tribunals system by Sir Andrew Leggatt ('the Leggatt Report') found that the Council on Tribunals, though undertaking important work on the independence and procedure of tribunals, had not exhibited sufficient strategic thought about the development of a system of administrative justice. It also observed that the Council had not published reports arising from the visits its members made to tribunals nor had it exposed many of the defects in tribunal operation which its members had identified. The report also found that the departments which were responsible for tribunals were unresponsive to criticism.[8]

8. Leggatt recommended that the Council be reconstituted to fill an "important new role":

    . . . to act as the hub of the wheel of administrative justice, or at any rate tribunal justice. Just as tribunals themselves cannot be expected to function properly without a Board, so the Council is needed to co-ordinate the arms of the system of administrative justice of which they are parts. The Council should monitor the development of the new Tribunals System during the first few years of its existence, and also check that the practices and procedures of Government departments are [European Convention on Human Rights] compliant. The Council should have as a primary duty the championing of the cause of users. To do this, it must include members with the experience and perspective of users.[9]

9. The majority of Leggatt's proposals were accepted by the Government in a White Paper in 2004.[10] A Tribunals Service was established in 2006, comprising the 16 tribunals administered by the then Department for Constitutional Affairs and several tribunals which were administered by other departments.

10. The Tribunals, Courts and Enforcement Act 2007 created the post of Senior President of Tribunals, and provided the legal basis for the reshaping of tribunals and tribunal judiciary. In 2011, following administrative decisions taken by the government, the formerly separate HM Courts Service and the Tribunals Service were merged to create Her Majesty's Courts and Tribunals Service, an executive agency of the MoJ.

11. The 2007 Act also replaced the Council on Tribunals with the AJTC, constituted as an advisory non-departmental public body of the MoJ. The Act sets out a number of functions that the AJTC is required to perform, which go much wider than the focus on tribunals envisaged in the Leggatt Report. In addition to specific functions relating to tribunals and statutory inquiries, the Act provides that the Council is to:

a)  keep the administrative justice system under review,

b)  consider ways to make the system accessible, fair and efficient,

c)  advise [Ministers] on the development of the system,

d)  refer proposals for changes in the system to those persons, and

e)  make proposals for research into the system. [11]

12. In relation to tribunals, the AJTC has a statutory duty to keep under review, and report on, the constitution and working of the tribunals within its jurisdiction (generally and individually). It may also comment on legislation affecting tribunals, including procedural rules. Its members also have the right, formerly held by members of the Council on Tribunals, to attend and observe any tribunal proceeding, even when held in private or in a format other than a 'hearing'. Similar functions are prescribed in relation to statutory inquiries.

13.  The 2007 Act provides for the Council to have between 10 and 15 members, plus the Parliamentary Commissioner for Administration who is an ex officio member. The Lord Chancellor, Welsh Ministers and Scottish Ministers may each appoint either two or three members. Members are paid, and are appointed after an open and transparent recruitment process which complies with the Code of Practice of the Office of the Commissioner for Public Appointments.[12] The Council is supported by a secretariat made up of staff seconded from the Ministry of Justice and the Scottish Government.[13] Its annual budget in 2010-11 was just over £1.3 million.[14]

14. Because of the nature of the administrative justice system, the potential scope of the AJTC's activities is considerably broader than other bodies overseeing the operation of other elements of the judicial system, such as the Family Justice Council and Civil Justice Council.

15. This point was illustrated in a recent lecture by the then Parliamentary and Health Service Ombudsman, Ann Abraham:

    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.

    To illustrate the point - in 2010 in England and Wales:
  • There were around 63,000 hearings/trials dealing with civil justice matters;
  • There were over 200,000 criminal justice hearings/trials;
  • There were over 650,000 administrative justice hearings - of which over 275,000 were about social security and child support.[15]

16. In oral evidence, Richard Thomas, the Chairman of the AJTC, estimated the total number of cases going through the wider administrative justice system, including cases handled by ombudsmen and other forms of dispute resolution, at "probably about a million cases a year". He said that appeals and complaints represent "just the tip of the iceberg" of the tens of millions of decisions affecting citizens each year, at a cost which is unquantifiable.[16]

17. The AJTC has noted the high proportion of successful appeals against decisions made in central Government:

    in 2009-2010, 38 per cent of appeals made to the Social Security and Child Support tribunal were upheld, and in 2010 on average 27 per cent of appeals against the UK Border Agency were upheld … Evidence also suggests that appeal success rates are even higher for appellants with legal representation.[17]

18. PASC regards the high level of successful appeals and complaints against decisions by government departments as an indication of widespread administrative failure. Government should aim to produce decisions which are right first time and command a high degree of confidence. The scale of the injustice and the cost to the taxpayer caused by this poor decision-making are wholly unacceptable. We expect the Government to echo this view in their response. We also therefore regard the role of the AJTC as one of vital national importance, overseeing a system that protects the rights of millions of citizens every year.

5   Schedule 7 paragraph 13 Back

6   Ev 19 Back

7   http://www.council-on-tribunals.gov.uk/ Back

8   Report of the Review of Tribunals by Sir Andrew Leggatt: Tribunals for Users - One System, One Service, August 2001 Back

9   Sir Andrew Leggatt Tribunals for Users: One System, One Service (2001) paragraph 7.49 Back

10   Transforming Public Services: Complaints, Redress and Tribunals, Cm 6243, July 2004 Back

11   See Schedule 7 to the Act. Back

12   Ev 34 Back

13   Administrative Justice and Tribunals Council Annual Report 2010/11 ( November 2011) page 42 Back

14   Ev 35 Back

15   The Parliamentary Ombudsman and Administrative Justice, Shaping the next 50 years, JUSTICE Tom Sargant memorial annual lecture 2011, 13 October 2011 Back

16   Q 3  Back

17   Administrative Justice and Tribunals Council Right first time (June 2011), paragraphs 28-29 Back

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Prepared 8 March 2012