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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