Public Administration CommitteeWritten evidence submitted by Dr Richard Kirkham, Senior Lecturer in Law, University of Sheffield (OAJ 03)

Summary

My interest in the work of the Administrative Justice and Tribunals Council (AJTC) stems from my academic research into one of the dispute resolution mechanisms at the heart of the administrative justice system, the ombudsman. I wrote an article a year ago which explains in more detail my position (“Quangos, coalition government and the ombudsmen”, Journal of Social Welfare and Family Law, 32: 4, 411 — 421). Here I summarise my thoughts.

Context

Administrative justice is an important aspect of the rule of law. Its importance stems from the size of the administrative state and the degree of direct impact it has on individual lives, both collectively and individually. During their lives a few people will directly experience the criminal justice system, some very closely; many will experience the family justice system; but it is probable that virtually everyone will have cause to interact with the administrative justice system. Broadly conceived, at an individual level the administrative justice system includes the promotion of our interests in relation to health services, education systems, welfare benefits and a whole array of public services that affect our daily lives.

In more than one country the importance of an individual’s right to administrative justice is recognised by an express reference within the constitution eg,1 By contrast, in the UK the significance of administrative justice has not always been given the prominence that it might. For instance, unlike in the USA where the courts are given an express authority to test administration against high procedural standards (the Administrative Procedure Act 1946), there is no statute that addresses the issue in general. Instead, in the UK we have a series of ad hoc measures that provide various unconnected elements of control and redress with the linked aim of providing for administrative justice. In addition, the courts have developed an increasingly coherent and systematic body of administrative law.

The end result of past innovations in the UK on administrative justice is a highly complex, and possibly overlapping system of administrative justice. It may be that the administrative justice system that we have ended up with is operationally perfect and designed in an admirable fashion. It may be that viewed from the perspective of the individual citizen, they have access to appropriate opportunities to pursue their grievances against public administration and suitable information about those opportunities. It may also be that viewed from the top downwards the system is organised in a rational, effective and cost-effective manner. The difficulty is that our constitutional mechanisms for ensuring that the administrative justice system is effective and effectively managed are not strong, and will become even weaker should the Coalition Government go through with its plans to abolish the AJTC.

The Role of the AJTC

The history of the political management of the administrative justice system has been dominated by ad hoc reform and subject or institution specific review (this is a non-party political point as governments of all persuasions have overseen the administrative justice system this way). Much of this work has been commendable but the fear is that opportunities have been missed to understand and rationalise the system as a whole. Maybe such an approach is unnecessary, but the concern is that if the system were considered in a holistic fashion then alarming gaps and unnecessary duplications in justice provision would be discovered.

At present it is unclear who is responsible for strategic oversight of the administrative justice system. The Ministry of Justice is the most obvious government department, but aspects of the system come under the responsibility of other departments (eg, as with the ombudsman community for instance). Currently, there is no clear or convincing direction being provided by the government that the issue of overall oversight of the system is a matter of much concern to them. This is worrying as it will probably mean that the administrative justice system as a whole will not be managed and that instead the various institutions within the system will continue to be managed in an isolated and uncoordinated fashion.

The introduction of the AJTC was a measure to partially address this oversight problem. I offer no views at this stage as to how effective it has been, partly because its history has been too short to come to any firm conclusions. But the rationale for the organisation is strong. It was to provide the intelligent oversight of the system as a whole that is surely necessary given the importance of administrative justice to all members of British society. The body has only an advisory role, coupled with a small research and intelligence gathering capacity, but this specific statutory prioritisation of the issue of administrative justice represented a sizeable advance on the preceding situation. Moreover, the body was constituted of existing experts in the field and was thereby able to operate without the need for an extensive administrative support unit. The AJTC’s existence, therefore, offered the potential for administrative justice issues and problems to be identified quicker than previously and solutions proposed in a more thoughtful manner.

Arguments for the Abolition of the AJTC

It has been argued that the AJTC should be abolished to allow for the Government to take control of the administrative justice system. The difficulty here is that history suggests that governments only sporadically take administrative justice seriously, do not possess the appropriate knowledge base to undertake this function and do not always recognise their interests in taking this matter seriously. Thus abolition could well lead to administrative justice issues not being addressed adequately, which in turn could lead to flaws in the system become increasingly evident.

A further unspoken argument against proper oversight of the administrative justice system is that the output of oversight might lead to added expense for government. Thus it may be that there is a latent fear that citizens will be able to make more onerous demands on public authority or access enhanced financial remedies. Such a fear is expressed in several government contributions to consultations on administrative justice. But reforms to administrative justice systems do not necessarily mean that greater expense will be the end result. In Scotland recently a wide ranging review of the regulatory system was conducted which included coverage of elements of the administrative justice system. In this review, one of the key themes pursued was a rationalisation of the system.

A more up front argument made has been the potential to save money through the closure of the AJTC. I believe this argument has been subsequently down played. In any event, given the scale and importance of the administrative justice system, the sums involved in maintaining the AJTC appear inconsequential.

Conclusion

It is difficult not to be cynical about the decision to abolish the AJTC. The decision appears motivated by a dogmatic desire to cull unelected institutions from the public sector rather than a reasoned cost-benefit assessment of what the AJTC can contribute to good governance. The Public Bodies Bill has been much improved by the intervention of the House of Lords but the wider review of public bodies has been an unfortunate experience, with the manner in which the AJTC has been dealt with just one example. To conclude, I cannot see any good reason to abolish the AJTC and the process by which this decision has been made has lacked rationality and been a poor example of good government. Further, I predict that, if abolished, at some time in the near future a body with a broadly equivalent remit to the AJTC will have to be established following increasing evidence of disfunctionalism in the administrative justice system.

November 2011

1 See also the European Charter on Fundamental Rights.

Prepared 7th March 2012