Scrutinising Administrative Justice
Public Seminars 2010-11
Richard Thomas
Date and Time: Thursday 26 April, 1.00pm
Venue: Council Room, The Constitution Unit
Chair of the Administrative Justice & Tribunals Council (AJTC) Richard Thomas CBE spoke in detail about the functions of administrative justice and the implications of its (possible) demise.
1. Administrative Law & Wider Justice
Mr Thomas defined administrative justice as how well the State makes decisions about people - affecting their benefits, taxes, immigration status, education, housing and (in the case of mental health patients) their liberty.
Over one million appeals and complaints against the decisions of public bodies are made each year to various Ombudsmen, tribunals and other institutions. These appeals have a success rate of approximately 35-50%, suggesting widespread failure to make correct decisions in the first instance. An aim of the AJTC is to encourage tribunals etc. to 'get it right first time'.
The AJTC was established by the Tribunals & Courts Act 2007 (s44) and is an advisory non-departmental government body with statutory responsibility observe tribunals etc. in action and to scrutinise (from the user's viewpoint) administrative justice on behalf of the Lord Chancellor. However, it is due to be abolished later this year, despite the recent conclusion of the Public Administration Select Committee that its role of providing independent overview is one of "vital national importance".
2. Why is independent scrutiny and challenge important?
Mr Thomas argued that administrative justice needs external overview as individuals often use the system to challenge monopolistic state power. Therefore, it is fundamentally important to have an independent view of how users could seek redress.
Furthermore, in many areas that the administrative justice system serves, there is no market pressure to improve upon dispute resolution/complaints services. This means that scrutiny bodies like the AJTC are the only way to ensure best practice.
3. Why - unlike most other countries - is administrative justice the Cinderella of the justice system?
Agreeing that administrative justice is not held in particularly high regard by politicians and the executive, Mr Thomas offered several explanations. First, legal aid has always been limited for many tribunals and this will only get worse with the on-going legal aid cuts. Secondly, many tribunals are 'do it yourself' forums where parties often represent themselves and this can lower the prestige of the system. Thirdly, many administrative law cases involve issues that cut across several government departments and subject areas - and thus 'fall into the cracks'.
4. What are the implications of cuts to legal and advice services?
It will be very difficult to pre-judge the effects of the legal aid cuts and it would be best to 'wait & see', Mr Thomas argued. He suggested that the administrative justice system could operate less efficiently as many individuals would be appearing before tribunals without any advice whatsoever.
5. Could the Ministry of Justice perform the functions of the AJTC?
The Ministry of Justice (MoJ) believes that it can take over scrutiny of the administrative justice system. Whilst not doubting that the MoJ has the competence to perform such a role, Mr Thomas identified the obvious problem: the MoJ is very much a part of the executive and so cannot be an independent arbiter.
Note prepared by Nick Perkins, intern on the Unit's Judicial Independence project.
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