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

4  Consequences of abolishing the AJTC

28. The MoJ proposes bringing what it describes as the "policy functions" of the AJTC 'in house', to be performed by civil servants in the Access to Justice Directorate.[27] The Department is "developing a strategy and programme of work with regard to the oversight of administrative justice". It also proposes to establish a "group of administrative justice experts and key stakeholders—particularly those who represent the views of users" to "provide a valuable forum for sharing information and best practice, and […] to test policy ideas". We understand that this user group is likely to include some former members of the AJTC.[28] We recommend that the Government provide further information on its proposals for the membership and operation of this group of experts and key stakeholders.

29. Of those who submitted written evidence to us, all but the MoJ itself expressed concerns about the proposal that the Department should take over functions of the AJTC. The Council for Justice described the plans as "a source of some anxiety to all who have an interest in good government",[29] while the Public and Commercial Services Union (PCS), which represents "staff across a number of grades in the AJTC" expressed particular concerns around the resources that would be available within the MoJ, and the potential conflict of interest in making the MoJ "its own watchdog".[30]

30. Dr Jeff King of University College London wrote that:

    First, […] the AJTC's functions are essential to the system of administrative justice. Second, […] there is no evidence at all that the MoJ could perform those tasks any more cheaply, or that the AJTC is not delivering value for money. Third, there is good reason to believe that the MoJ would not carry out those essential functions as effectively as the AJTC.[31]

31. Brian Thompson, Senior Lecturer in the School of Law at the University of Liverpool, and a member of the AJTC, wrote:

    I suggest that the Ministry of Justice in its proposal to abolish that ATJC has been focussing on an institution rather than roles and functions. I further suggest that the Ministry's proposed arrangements following abolition are inadequate to deal properly with these roles and functions and thus impair the achievement of an accessible, fair and efficient administrative justice system.[32]

This view was shared by the then Parliamentary and Health Service Ombudsman, Ann Abraham (an ex officio member of the AJTC) who informed us that, in her opinion "the abolition of the AJTC is a regressive step and that the Ministry of Justice is not equipped to provide the oversight role that the AJTC has performed".[33]

32. Richard Thomas, the current Chair of the AJTC, said "Frankly, we are deeply sceptical that the Ministry of Justice could, should or would—I use those words advisedly—take over our functions".[34]

Resources and expertise

33. Richard Thomas told the Committee that he had "grave anxieties" about the lack of experience and expertise on administrative justice matters within the MoJ. He said:

    We do not know exactly how many staff there are working on this area in MoJ. We believe it is more or less like three or four full-time people, but that team really only started about six months ago. […] A team was put in place; they disappeared to other, higher priority areas. A new team started about three or four months ago, and we were told just last week […] that all three or four people working in this area will be gone. […] There has been a very high turnover, and a completely new team will be arriving in the coming weeks, and we do worry very much about whether the MoJ will have not just the expertise and depth of knowledge but also the contacts and networks that you need to understand the system.[35]

34. The Minister told us that there would be twelve staff working on administrative justice issues. We also heard that the recent high staff turnover in the Directorate was due to the Ministry's ongoing Change Programme to reduce headcount.[36] However, Anna Deignan, the Deputy Director of the Access to Justice Directorate, told us that a team of 12 staff would be up to full strength by the end of 2011 and that "our core expertise will remain".[37]

35. Alongside the draft Order to abolish the AJTC, the Ministry of Justice must make available further information about the number, turnover and expertise of the civil servants who would become responsible for taking on the AJTC's functions, and provide verifiable assurances about staffing plans in this area for the foreseeable future.

Independence and oversight of the administrative justice system

36. One role of the AJTC is to "keep the administrative justice system under review" and make proposals to Ministers on how the system can be improved. The MoJ and AJTC have different understandings of this role.

37. The MoJ takes the "firm view" that:

    the development of administrative justice policy is properly the function of Government. An advisory body working in this area means duplication of effort and resources. While the AJTC is an arm's length body, the Government's view is that independence in this sense is not a prerequisite for policy advice on administrative policy, just as it is not for any other policy area; officials, working in close consultation with stakeholders, can provide Ministers with balanced, objective and expert advice.[38]

38. Recent reforms have sought to rationalise the tribunals system by standardising procedural rules and moving the administration of individual tribunals away from the government departments and agencies whose decisions they consider. The Government takes the view that increasing the independence of tribunals from their original parent department in this way reduces the need for independent oversight of their activities.[39]

39. In contrast, Richard Thomas emphasised that the AJTC was not aiming to develop government policy:

    We can recommend, we can advise, we can float ideas for improving the system. It is then for the civil servants at the MoJ to advise the Minister which ones to pursue, and which not to pursue.[40]

He took particular issue with a statement made by the MoJ in its consultation paper on the Council's abolition:

    Fundamentally, we do not really understand what is meant by [the MoJ's] claim that 'effective governance arrangements … between HMCTS and the Department [mean] that the AJTC's oversight role in relation to tribunals is no longer required'. HMCTS is the administration that supports the tribunals and the courts. They … are providing the system. Our role is to provide the independent challenge and feedback […]. We are sceptical that HMCTS can […] oversee itself, and secondly it does not have oversight of the system as a whole; it is only concerned with the delivery of court and tribunal services.[41]

40. Mr Thomas' view was shared by Ann Abraham, who argued that "the fact that the Ministry is a government department means that, by definition, it lacks the essential independence of judgment and freedom of action to challenge policy proposals as enjoyed by the AJTC".[42]

41. When asked about the AJTC's role in observing and scrutinising tribunals (some of which remain outside the unified Courts and Tribunals Service, under the control of government departments other than the MoJ) the Minister argued that the AJTC's "independent oversight of tribunals has been very limited indeed. In respect of planning tribunals they have a statutory role, but other than that it is a pretty hit and miss affair, I would suggest."[43] In contrast, the AJTC described its staff as "assiduous" in feeding findings from their attendance at tribunal hearings back into the system.[44]

42. The Government believes that some of the AJTC's functions need not be carried out following its abolition.[45] Others have already been replaced. (For example, the Courts and Tribunals Service provides considerable amounts of data about the functioning of the Service, and the Annual Reports of the Senior President of Tribunals address some of the wider issues associated with the operation of tribunals.)

43. Separately, a number of other changes are proposed to elements of the administrative justice system which are outside the current remit of the MoJ, including:

  • the White Paper on Open Public Services, published by the Cabinet Office, indicated that there might need to be new ombudsmen and new roles for ombudsmen.[46]
  • the Law Commission has recently called for the Government to establish a wide-ranging review of the public services ombudsmen and their relationship with other institutions for administrative redress, such as courts and tribunals.[47]

Developments in the use of information and communications technology also have the potential to reduce costs and prove more efficient in delivering services to clients than traditional administrative justice processes. The breadth of the administrative justice system, and its direct relevance to the lives of ordinary citizens, make it all the more important to take a coherent and user-oriented approach to reform.

44. We agree that responsibility for the development of government policy in relation to administrative justice properly lies with the MoJ (although we do not share the MoJ's view that this is a function currently duplicated by the AJTC). We also accept that the creation of the new Courts and Tribunals Service means that many of the specific functions of the AJTC, in particular in relation to tribunals, have been taken over by the Tribunals Service. If the AJTC is retained, its functions will need to be reviewed and may need to be revised.

45. It is clear that there is a fundamental difference of view between the Government and others from whom we have heard on both the need for independent oversight of the administrative justice system, and the extent to which the AJTC has been performing such a function. We accept that this task may be undertaken in more than one way, but consider that oversight by an entity independent from Government is valuable and should be continued in some form. This should be a key consideration in deciding whether or not the AJTC should be abolished.

Cost savings

46. The MoJ believes that "containing administrative justice policy within the Department will provide greater value for money".[48] The annual budget of the AJTC in 2010-11 was just over £1.3 million,[49] of which a little more than £400,000 resulted from staff costs, paid to civil servants seconded from the MoJ and Scottish Government.[50] The budget of the AJTC is significantly greater than those of the Civil Justice Council (£68,000 in 2010-11) and the Family Justice Council (£95,000 excluding staff costs, plus £145,000 for local training), neither of which is proposed for abolition. It may help to provide some context to the cost of these oversight bodies to point out that in 2010-11 the cost of administering the tribunals within the responsibility of the Ministry of Justice was £336 million.

47. The Impact Assessment published by the MoJ estimates that abolishing the AJTC will achieve savings of approximately £4.6 million by 2015. This figure is based on the assumption that the AJTC's annual budget would have been maintained and increased with inflation over the course of the period. The costs of redundancy or early retirement payments to any MoJ staff who are not redeployed are estimated at around £600,000. Rental costs of £100,000 per annum until 2013 are, and will continue to be, borne by the MoJ centrally unless the space can be sublet.[51]

48. In its submission to the inquiry, the AJTC argued that the likely gross savings would be closer to £2 million, saying "we do not understand how [the MoJ estimate] is calculated".[52] It also drew attention to the savings (in avoided costs), that its work promoted, saying:

    The AJTC recognises that the UK currently faces a period of austerity and that the government is reducing public spending in real terms. This makes it especially important to save money by reducing the need for costly appeals and complaints. It is equally important that decisions taken to achieve cost savings in the area of administrative justice actually achieve this goal, while avoiding unintended and deleterious effects on individual rights and legitimate expectations. For example, cuts in legal aid and the provision of advice services are likely to reduce access to justice for individuals, result in fewer unmeritorious cases being weeded out and prolong cases which do proceed. Unresolved disputes may also generate greater costs both for individuals and families and ultimately for government and the taxpayer. This is especially important in times of economic and social uncertainty when it is vital to have acceptable arrangements for the redress of grievances.[53]

49. Neither the MoJ's impact assessment, nor the AJTC itself, offers any quantitative estimate of the scale of these avoided costs. However, a report by the National Audit Office on 'Citizen Redress' in 2005 found that:

    nearly 1.4 million cases are received through redress systems in central Government annually and are processed by over 9,300 staff and at an annual cost of at least £510 million. Appeals and tribunal cases account for just under three fifths of the redress load, seven tenths of the annual costs and two thirds of the staff numbers. Complaints are much cheaper to handle, accounting for two in five redress cases but an eighth of the annual costs.


    Cutting down the initial numbers of complaints or appeals, resolving more complaints and appeals more speedily and pro-actively, and improving the cost efficiency of current redress arrangements, could all make appreciable savings in public money, savings which could then cumulate with every passing year. If reductions of 5 per cent could be made in the current costs of redress systems, we estimate from our research that the Exchequer would save at least £25 million per year less the cost of implementation.[54]

50. The Minister accepted that, if staff from the AJTC were redeployed within the MoJ, savings in the MoJ budget would not necessarily represent a net saving to the taxpayer.[55] He explained that the eventual net saving would be unclear until all decisions had been taken regarding redeployment of staff, and any redundancy or early retirement costs were known,[56] though he emphasised that "I cannot see how it would cost the taxpayer more money. It could only be less."[57]

51. The Government estimates that abolition of the AJTC could save approximately £4.6 million by 2015, but this assumes that the AJTC would not be required to reduce costs and improve efficiency like other public bodies . We also suspect that the full cost of carrying out these functions within the MoJ has been underestimated. We therefore doubt this estimate. The Government should provide a more detailed estimate, which addresses these points before asking Parliament to approve an abolition Order.

52. The annual cost of the AJTC is a tiny fraction of that estimated by the NAO in 2005 as resulting from the 1.4 million cases received through redress systems in central Government: £510 million.[58] Improving the cost of current redress arrangements by as little as five per cent would save more than five times the Government's most optimistic estimate of savings to be derived from the abolition of the AJTC. The proposal to abolish the AJTC makes it all the more clear that the Government's priority should be to improve its own decision-making and redress systems. We recommend that the Government set out plans to achieve this improvement. This is an area into which we will inquire in depth during this Parliament.

27   Response to consultation on reforms proposed in the Public Bodies Bill, p 15 Back

28   Ev 32 Back

29   Ev 39 Back

30   Ev 30-31 Back

31   Ev 27 Back

32   Ev 24 Back

33   Ev 25 Back

34   Q 2 Back

35   Q 36 Back

36   Qq 36 (Richard Thomas) and 87 Back

37   Qq 86-87 Back

38   Ev 30 Back

39   Q 120 Back

40   Q 41 Back

41   Q 25, quoting Ministry of Justice Consultation on reforms proposed in the Public Bodies Bill Reforming the public bodies of the Ministry of Justice( July 2011) paragraph 34 Back

42   Ev 26 Back

43   Q 77 Back

44   Ev 20 Back

45   See paragraph 25. Back

46   Cabinet Office, Open Public Services White Paper, Cm 8145, July 2011 paragraph 3.26  Back

47   Law Commission, Public Services Ombudsmen, HC1136, July 2011 Recommendation 1 Back

48   Ev 37 Back

49   Ev 35 Back

50   Administrative Justice & Tribunals Council Annual Report 2010/2011 (November 2011) Appendix B Back

51   Ministry of Justice Impact Assessment for the Abolition of the Administrative Justice and Tribunals Council (27 June 2011, updated after July 2011) pages 6-7 Back

52   Ev 38 Back

53   Ev 20 Back

54   National Audit Office Citizen Redress: What citizens can do if things go wrong with public services HC 21 Session 2004-2005 paragraphs 12 and 16.This report also noted that government departments "do not collect systematic information on complaints, and many others have only partial or incomplete data". Back

55   Q 101 Back

56   Qq 90-100 Back

57   Q 103 Back

58   National Audit Office Citizen Redress: What citizens can do if things go wrong with public services HC 21 Session 2004-2005, page 4  Back

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Prepared 8 March 2012