Public Administration CommitteeWritten evidence submitted by Parliamentary and Health Service Ombudsman (OAJ 04)

As the UK Parliamentary Ombudsman, I very much welcome the Committee’s inquiry into the Government’s plans for future oversight of the administrative justice system and I value the opportunity to submit written evidence to the Committee.

I recently responded to the Ministry of Justice’s consultation on their plans to abolish the Administrative Justice and Tribunals Council (AJTC) as part of its programme of reform of public bodies.

My opinion, set out in that response, remains that 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.

Introduction

1. As the Committee will probably be aware, the UK Parliamentary Ombudsman is an ex officio member of the AJTC, and a member of both its Scottish and Welsh Committees.

2. I have been the UK Parliamentary Ombudsman since November 2002. In that capacity I have served as an ex officio member of the Council on Tribunals, and its Scottish Committee; and its successor, the Administrative Justice and Tribunals Council, and both its Scottish and Welsh Committees.

3. I was also heavily involved, as a member of the Executive Committee of the British and Irish Ombudsman Association (BIOA), in the extensive contribution BIOA made to the 2004 White Paper, Transforming Public Services: Complaints, Redress and Tribunals, which led to the establishment of the AJTC. I spoke at its launch in 2007.

4. I would also add that from 1997 to 2002 I was Legal Services Ombudsman for England and Wales – an associated office of the Ministry, in its former guise as the Lord Chancellor’s Department – which brought me into extensive contact with Ministry of Justice officials.

5. I therefore have a uniquely UK-wide, long-standing and broad perspective.

6. I am both bewildered and dismayed by the proposed abolition of the AJTC. I am bewildered because administrative justice is so important to the relationship between citizen and state. 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. 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. In the circumstances I find it inexplicable that the Ministry is proposing to abolish the AJTC whilst retaining the Civil Justice Council and the Family Justice Council.

7. I am dismayed because I believe that the AJTC’s abolition would have a deleterious impact on the delivery of administrative justice in the UK, on the relationship between citizen and state, and on the ongoing process of devolution.

Abolition of the AJTC

8. At the launch of the AJTC in November 2007, I observed that:

“Today is an important landmark – and a turning point - in the history of administrative justice in this country. This is a tremendous, long awaited and much needed opportunity to start to develop a system of administrative justice which is accessible, fair, effective and efficient - certainly; but which is also comprehensive, coherent and co-ordinated; which learns from experience; which drives improvements in administrative practice; and which builds public confidence.”

9. I am still of that view and therefore consider the proposed abolition of the AJTC to be a regressive step.

10. First, the AJTC was the first, and so far only, public institution to have in its sights the administrative justice “system” as a whole, not just a part of it, like its predecessor the Council on Tribunals. In that context it has enjoyed a privileged overview of the system in all its parts: administrative court, tribunals, ombudsmen and first-instance decision-makers.

11. Secondly, the AJTC has a particular eye for the user perspective and reflects that perspective in its composition.

12. Thirdly, from my unique perspective I can say with confidence that the AJTC is the only organisation that has a UK perspective on administrative justice. The interlocking relationship between the Council itself and its Scottish and Welsh Committees, alongside its strong contacts with administrative justice in Northern Ireland, enables the AJTC to stay close to developments within each nation, as well as to the different perspectives that each nation has on matters of common concern. As a result, the AJTC has a unique role to play as the devolution settlement continues to evolve, with all its constitutional complexity.

Ability of the Ministry of Justice to Carry Out the Functions of the AJTC

13. My extensive contact with the Ministry of Justice, in its various guises over many years, gives me no confidence whatsoever in the ability of the Ministry to assume the functions of the AJTC. However well-meaning and diligent individual officials may be, the Ministry simply lacks the institutional history, capacity and technical knowledge to do so.

14. I therefore consider that none of the core functions of the AJTC will be adequately covered by the Ministry. There will not be a competent organ of government to keep under review the administrative justice system as a whole; nor will there be anybody with the capacity and expertise to keep under review, and report on, the constitution and working of “listed” tribunals or of statutory inquiries.

15. I do not believe that the Ministry would be able to bring to the task of considering how to make the system more accessible, fair and efficient anything like the resourcefulness and expertise of the AJTC. The capacity for envisioning the future development of administrative justice and for formulating proposals for change and research would be hugely, and irreversibly, depleted.

16. In addition, 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. That factor alone undermines the ability of the Ministry, or indeed any other central government department, to replicate the AJTC’s current function.

Impact on the Ombudsman

17. When the Parliamentary Ombudsman was established by statute in 1967, the expectation was that the Ombudsman would be integral to the wider system of administrative justice that was beginning to emerge in the aftermath of the Franks Report in 1957.

18. Although the number of ombudsmen and other complaint handlers has grown significantly in the interim period, and although the administrative justice system as a whole has continued to evolve, with the exception of the AJTC there has never been a public institution charged with the task of ensuring a due measure of coherence and integration.

19. The existence of the AJTC has provided the Parliamentary Ombudsman in particular, and ombudsmen and complaints handlers in general, with a forum for forging a shared outlook with other parts of the system, and for achieving a voice that is independent of government and that has the interests of ordinary citizens as its focus.

20. The abolition of the AJTC would therefore have the direct impact of denying the Parliamentary Ombudsman such a forum and such a voice, and thereby of depleting the efforts of the Ombudsman to shape the administrative justice agenda by reference to the empirical experience of handling citizens’ complaints.

I stand ready to assist the Committee with the Inquiry in any way I can and to offer further written or oral evidence if the Committee would find that useful. Please do not hesitate to contact me if you require any additional information or clarification.

November 2011

Prepared 7th March 2012