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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