Public Administration CommitteeWritten evidence submitted by Brian Thompson, Senior Lecturer, School of Law, University of Liverpool and Member of the Administrative Justice and Tribunals Council (OAJ 02)

Summary

Importance of viewing administrative justice from the user’s perspective,

Which demonstrates the need for an integrated approach to administrative justice

And the need for independence

1. I wish to add briefly to the points made in the AJTC’s submission to the Committee. I do this as an advocate of an integrated approach to administrative justice who urged Sir Andrew Leggatt in his Review of Tribunals to extend his consideration beyond tribunals to the whole field of administrative justice.

2. Sir Andrew did recommend that the Council on Tribunals should have its remit extended and this happened with the creation of the AJTC following the passage of the Tribunals, Courts and Enforcement Act 2007.

3. In my teaching and research on administrative justice I was struck by the complexity which faced individuals who had a grievance with a public body. There was a variety of routes to redress complaints about service and maladministration to complaints procedures and then the possibility of an Ombudsman, and challenges about rights with appeals to tribunals or reference to inquiries or a possible court action.

4. These arrangements had gaps and overlaps with some redress routes leading to certain remedies which may or may not be the person’s desired outcome even if successful.

5. If one looked at these arrangements as components in a system and particularly from the user’s perspective then it would assist analysis and comprehension and the identification of topics for reform.

6. The 2007 Act introduces and defines the administrative justice system but this is more of an aspiration than a description of reality, as the various parts were not designed from a holistic approach but rather a piece-meal incremental approach.

7. The integrated approach to overview means that scrutiny is given to matters within and across boundaries. The boundaries occur:

Within methods of redress

Within methods of improving administration/initial decision-making

Between redress and improving administration/initial decision-making

Within devolved jurisdictions and relations with UK/GB/England & Wales

Between public and private sectors.

8. The point about relations between the public and private sectors is that Public Services Ombudsmen are being given responsibilities in the private sector, e.g. the English Local Government Ombudsmen in the field of privately funded social care for adults. Delivery of public services is also conducted by private bodies and the courts in exercising judicial review consider the actions of public and private bodies carrying out public functions. Thus the oversight needs to include this within its remit.

9. One of the activities which the AJTC has carried over from the Council On Tribunal is visiting tribunals. These statutory visits allow AJTC members to observe not only the public hearing but also the deliberations of a tribunal in private.

10. This allows the AJTC to fulfil it role of considering the composition and working of tribunals as part of the overview of the administrative justice system and provides useful feedback to the Senior President of Tribunals on the user’s experience.

11. Currently the AJTC is visiting some tribunals where the venue is a criminal court in order to assess the appropriateness of such courts for tribunal hearings. Tribunals are meant to be more accessible than courts and it is off-putting for some tribunal users when they learn that the tribunal is be held in a criminal court.

12. The AJTC with the range of experience in its Members allied to the observation from the user’s perspective can provide a useful independent opinion and it is perhaps this which led Parliament’s Joint Committee on Human Rights in its 7th Report: Legislative Scrutiny: Public Bodies Bill (HL86/HC725 of 2010-11) at paras. 1. 28-.29

The Judicial Appointments Commission; the Administrative Justice and Tribunals Council and the Legal Services Commission.

1.28Each of these bodies plays a particular function in ensuring the effectiveness of the domestic judicial system…

1.29…The AJTC acts to ensure effective justice in the Tribunals system and the LSC to ensure fair access to legal aid. Functional and perceived independence of both of these bodies enhances the protection of the right to fair and equal access to justice, guaranteed in both the common law and international human rights law standards (e.g. Article 6 ECHR and Article 26 ICCPR).

13. The Ministry of Justice’s consultation paper did not address the Joint Committee’s view. The Ministry may disagree with it but in applying the test used in the Review of Arms Length Bodies, no reasons were given to support the Ministry’s view that the AJTC did not meet the requirement of independence unlike the Civil Justice and Family Justice Councils.

14. I hope that what I have demonstrated is that there are roles and functions which should be discharged in the oversight of administrative justice. I suggest that the Ministry of Justice in its proposal to abolish the AJTC has been focusing on an institution rather than on 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.

November 2011

Prepared 7th March 2012