Public Administration CommitteeWritten evidence submitted by Dr Jeff King, University College London (OAJ 06)

I have attached a copy of a letter sent to various members of the Government on 4 October 2010 concerning the concern by a range of public law academics over the proposed cutting of the Administrative Justice and Tribunals Council. I should note that my affiliation in that letter is recorded as Balliol College, Oxford, but I have since that time moved on to University College London.

I would like to point out here that many of the signatories of that letter are the most senior professors of public law in the country. They include the writers of leading treatises (Paul Craig, David Feldman, Mark Elliot, Maurice Sunkin, John Bell) or influential monographs (Sandra Fredman, TRS Allan, Simon Halliday), some eminent contributors and to public policy (Dawn Oliver, Member of the Wakeham Commission on House of Lords Reform (1999), David Feldman, Legal Adviser to the JCHR, former Dean of the Law Faculty at Cambridge), and producers of important empirical studies that have been relied upon by the Law Commission and other public bodies working on administrative justice reform (Simon Halliday, Varda Bondy).

I should in fairness mention that the office of Jonathan Djanogly MP did send a letter in reply to this, by post, which claimed to refute all the points in the letter. I believe the reply was in good faith, but its central claim – that the Ministry of Justice could absorb the AJTC’s functions effectively – merely rejected without convincing argument or independent evidence all the claims made in the attached letter.

The attached letter basically reduces to three key points. First, that the AJTC’s functions are essential to the system of administrative justice. Second, that 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.

Letter to Rt Hon George Osbourne MP, Chancellor of the Exchequer, Rt Hon Kenneth Clarke MP, Lord Chancellor and Secretary of State for Justice, Mr. Jonathan Djanogly MP, Parliamentary Under-Secretary of State for Justice, and Rt Hon Nick Clegg MP, Leader of the Liberal Democrats

Re: The Abolition of the Administrative Justice and Tribunals Council

Dear Mr. Osbourne,

We are writing today to express concern over the leaked statement indicating that the Government plans to abolish the Administrative Justice and Tribunals Council (AJTC). We do not here question the importance of the Government’s drive for economies. However, as legal academics, having the benefit of an historical understanding of administrative justice and the statutory framework governing tribunals and inquiries, we believe that the move could be a serious setback for administrative justice and may in fact lead to greater expenditure.

The point of the tribunal system, which began piecemeal before the First World War, was to ensure that millions of citizens with disputes concerning statutory entitlements could have recourse to adjudication that is quick, efficient, and fair. The system was designed to be both cheaper and fairer than courts. The system was overhauled by the Tribunals and Inquiries Act 1958 (passed under the Macmillan Government after the receipt of an important Report of a commission headed by Oliver Franks). The Report found that tribunals should be considered in principle to be part of the machinery of adjudication rather than administrative organs of the departments they reviewed. But the Report acknowledged the distinctive, non-judicial virtues of tribunals. The “central proposal”1 of the Report was that there should be a permanent Council on Tribunals to provide general oversight, consisting of legal and lay representation, the latter being predominant. The 1958 Act created the Council, whose oversight reflected the tribunal system’s distinctive origins, culture, and delicate balance between bureaucratic efficiency and fairness to users. The Council provided such oversight for nearly half a century.

The Tribunals, Courts and Enforcement Act 2007 unified the tribunal system by removing them from the departments and formally placing them under the wing of the Ministry of Justice (MoJ)(formally through the Tribunals Service, an executive agency of the MoJ). However, the Act continued to recognise the distinctiveness of tribunal adjudication, and also sought the greater use of non-judicial approaches to what the 2004 White Paper called “proportionate dispute resolution.”2 The newer use of the term “administrative justice” intended, among other things, a greater emphasis on “moving out of courts and tribunals disputes that could be resolved elsewhere” (para. 1.13), chiefly through mediation, arbitration, and the involvement of the various ombudsmen. This was viewed as both cheaper for the state and better for users. These changes required reinvigorated oversight and a body to generally “keep under review” (TCE Act 2007) and advise upon the operation of the administrative justice system. The Council on Tribunals was thus replaced with the AJTC, which expands and fortifies the role previously played by the Council on Tribunals.

The seminal, pre-White Paper Report by Sir Andrew Leggatt called the proposed AJTC “the hub of the wheel of administrative justice.”3 This metaphor makes explicit the central, pivotal role the AJTC is meant to play in the new system.

The logic of your Government’s position may be that the MoJ can provide any needed oversight and advice. We believe this would be a grave mistake for the following reasons:

1. The AJTC is crucial for ensuring the distinctiveness of tribunals from the common law judicial process

Tribunal judges use a non-adversarial, or managerial, approach that is meant to assist the parties with their submissions. Parties are frequently unrepresented and research has shown this has a large impact on success rates. The more interventionist judging model is crucial for meeting, at least half-way, the mounting calls for state-funded legal representation before the tribunals.4 The more tribunals are viewed as courts, the more unsustainable the restricted access to Legal Aid will become.

The administrative justice landscape was explicitly meant, in the new system, to move beyond adjudication, for reasons of economy and justice. This orientation is distinctive and requires specialist review and guidance.

2. The MoJ will not presently be able to perform the same function

This distinctive culture is likely to be overlooked at the MoJ without the benefit of the AJTC expertise. In our experience, understanding the administrative justice field requires being conversant in a body of empirical literature and/or field experience in public administration.

Presently, the AJTC brings together people with expertise and extensive experience in areas that include experience in law and social science, the civil service, the Parliamentary Commissioner for Administration, advice sector and elsewhere. It is doubtful the MoJ could replace this expertise. The Council reviews the rules and operations of the tribunals, inquiries and other areas of the “administrative justice system,” something intentionally broader than the tribunals service. The AJTC regularly reviews legislation and regulations, and there is a statutory obligation for Ministers to consult the Council before adopting new rules for listed tribunals (TCE Act 2007, Schedule 7, Part III). Furthermore, the AJTC has special knowledge of how administrative justice connects with devolution arrangements. Again, there is little evidence that the MoJ has the capacity to absorb all these functions without the benefit of AJTC guidance.

3. The AJTC provides excellent value for money, and it plays a role in reducing the costs of dispute resolution

Even if the MoJ could ultimately take on such a role, it would not represent any greater value for money. The AJTC budget is approximately £1 million a year, over £400,000 of which is paid to MoJ and Scottish Government staff seconded for that purpose.5 That is excellent value for money for the oversight of a system in use by probably a majority of the population at some point in their lives.

As noted above, a key theme in the history of tribunal adjudication and in the recent reforms was keeping costs low. The AJTC facilitates this by exploring cheaper, less formal dispute resolution options that involve a lower likelihood of appeals than would be the case in a more judicialised model. MoJ staff, lacking the range of expertise of AJTC staff, would not be able to do this.

The upshot of all of this is that if the AJTC did not exist, the Government would have to invent it. Its functions cannot be entirely absorbed by the MoJ at the present time. And it delivers value for money.

We have phrased most of our concerns in terms of cost-savings and the logic of streamlining services, but we also believe your Government is alive to the concerns of fairness and justice proper. As frequent critics of bureaucracy, your Government is aware of the potential for injustice in the administrative state, and the need for fair redress. Both parties in the Coalition Government are well aware – indeed are perhaps champions – of the need to maintain public confidence in administration. The AJTC plays a pivotal role in doing so in the most efficient manner available. We therefore strongly urge you to reconsider your position.

Yours respectfully,

Prof Trevor Allan, University of Cambridge, John Allison, Queen’s College, University of Cambridge, Prof John Bell, Pembroke College, University of Cambridge, Varda Bondy, Public Law Project, Tom Cornford, University of Essex, Prof Paul Craig, St. John’s College, University of Oxford, Anne Davies, Brasenose College, University of Oxford, Mark Elliot, St. Catherine’s College, University of Cambridge, Prof David Feldman, Downing College, University of Cambridge, Prof Sandra Fredman, Exeter College, University of Oxford, Prof Simon Halliday, University of Strathclyde, Jeff King, Balliol College, University of Oxford, Prof Peter Leyland, London Metropolitan University, Prof Dawn Oliver, University College London, Prof Maurice Sunkin, University of Essex

1 HW Wade and CF Forsyth, Administrative Law (10th Edn, OUP 2010) p.773.

2 Transforming Public Services: Complaints, Redress and Tribunals (Cm. 6243 (2004)) (http://www.dca.gov.uk/pubs/adminjust/transformfull.pdf).

3 Report of the Review of Tribunals by Sir Andrew Leggatt, Tribunals for Users: One System, One Service (2001)(http://www.tribunals-review.org.uk/leggatthtm/leg-00.htm)paras. 7.45-7.51.

4 Calls that were rejected by the Leggatt Report (para.4.21-4.28). The calls continue in earnest P Draycott and P Hynes, “Extending Legal Aid to Tribunals” (2007) (June) Legal Action 6-7.

5 Administrative Justice and Tribunals Council, Annual Report 2009, p.40 (http://www.ajtc.gov.uk/docs/Final.pdf). Members’ retainers and travel costs amount to £292,228, whereas other Agency Costs amount to £103,907. A complete breakdown is available on p.40 of the Annual Report.

Prepared 7th March 2012