Partington, Martin --- "Administrative Justice in the Uk: Current Developments and Future Prospects" [2004] ALRCRefJl 9; (2004) 84 Australian Law Reform Commission Reform Journal 38

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Reform Issue 84 Autumn 2004

This article appeared on pages 38 – 40 & 71 of the original journal.

Administrative justice in the UK: Current developments and future prospects

By Martin Partington*

For many years, those with an interest in the British ‘system’ of administrative justice looked with envy at developments abroad, particularly in Australia.^[1]

There were many calls for the UK government to take a serious look at administrative justice. But political priorities always favoured reform of the criminal, civil and family branches of the justice system. Despite administrative justice being at the heart of the relationship between the citizen and the state, it seemed impossible to get proposals for reform onto the political agenda.

Over the past seven or so years, all this has changed. There is now a real prospect of change. This article offers a brief account of developments currently taking place and future prospects. This is very much a work in progress and much may change in the months ahead. Some of the key decisions have still to be made. But Ministers and policy makers within the Department of Constitutional Affairs (formerly the Lord Chancellor’s Department) are clear that reform of administrative justice is an important part of the Blair government’s programme for the reform of public services.

Development of tribunals in the UK

The history of the development of tribunals as a part of the adjudication system in the UK has been essentially driven by pragmatism. Although there was a review of tribunals and inquiries in 1957 (the Franks Committee Report), in the intervening 40 plus years, tribunals were created largely on an ad hoc basis. Advice from the Council on Tribunals, established following publication of the Franks Committee Report—that there should be a more principled approach to the development of tribunals—went largely unheeded. Although in some instances existing tribunals were given expanded jurisdictions to deal with new areas of work, there was a tendency for policy makers to create new tribunals to deal with new issues, rather than to think strategically about how existing tribunals could be developed to take new work on.

Much of the reason for this was that tribunals were seen essentially as extensions of the government department responsible for the underlying policy—for example, social security tribunals were the responsibility of the social security ministry and mental health tribunals were the responsibility of the health ministry. Although, following the Franks Committee Report, most chairs of tribunals were appointed by the Lord Chancellor—and even this was not a universal practice—in most other respects tribunals were run and managed by their sponsoring departments. There was little incentive for them to think outside departmental boundaries.

The Bristol conference

The first hint that there might be change in official thinking occurred in 1997 when, 40 years after the publication of the Franks Committee Report, the Lord Chancellor’s Department sponsored a major international conference on Administrative Justice. Devised by a team at the University of Bristol, the conference took a deliberately holistic view of administrative justice, inviting papers not only on tribunals, but also ombudsmen, other complaints processes and collective processes, including the regulation of privatised industries. There were papers on the Human Rights implications of administrative justice and more practical matters such as management and training for those involved in administrative justice. There were also calls for new mechanisms for keeping the system of administrative justice, as broadly conceived, under review.^[2]

After it was over, many delegates might have felt that however interesting and successful the conference had been, nothing much of significance would result. This gloomy prediction has been proved to be totally wrong.

The Leggatt review

The first development of the utmost importance occurred in 2000, when the then Lord Chancellor Lord Irvine asked the retired Court of Appeal judge Sir Andrew Leggatt “to review the delivery of justice through tribunals other than ordinary courts of law”. The object was to find “fair, timely, proportionate and effective arrangements for handling ... disputes, within an effective framework ... which forms a coherent structure”. Less than a year later, the report Tribunals for Users: One System, One Service^[3] was published.

The principal conclusions of the review were that:

• the present uncoordinated ‘system’ of tribunals should be brought together into a single tribunals service;

• tribunals should be run by that service, not by individual sponsoring departments;

• existing tribunals should be grouped into divisions, operating at both a first-tier decision making level, and an appellate level;

• the new system should make tribunals as independent of government as the courts;

• the focus of the reforms should be on the citizens who use the tribunals;

• tribunals should adopt an ‘enabling role’ to ensure that those appearing without representation are not disadvantaged;

• tribunals should increase their efficiency by much more active case management;

• the reforms should be underpinned by investment in essential information technology; and

• mechanisms should be created so that government departments can learn from the cases that went to tribunals.

The response to Leggatt

Leggatt completed his report and sent it to the Lord Chancellor in March 2001. It was not actually published until August of that year. The reason for the delay appears to have been that once government departments realised that the effect of Leggatt was to remove parts of their empires into the proposed Tribunal Service, this generated considerable internal resistance. The Lord Chancellor’s Department thought long and hard about how publication of the report should be handled. They concluded that publication of the report should be accompanied by the simultaneous publication of a further Consultation Paper, in which a range of options—including doing nothing—were canvassed.

The initial response to the report from commentators outside government was broadly supportive of Leggatt’s scheme. But there was also considerable disappointment at the apparent lack of commitment to the proposed scheme in the accompanying Consultation Paper. Many outsiders thought that the report was being kicked into the long grass.

In the months that followed publication, a remarkable series of discussions took place among civil servants, during which the case for change was pressed. Over this period, departments came increasingly to accept the desirability of change and the principles that Leggatt had articulated. Although there remained disagreements on points of detail, there was a gradual if reluctant acceptance that reform was needed.

Other initiatives were also taking place within the government during the same period. For example:

• in November 2001, the Department for Trade and Industry established a taskforce to look at the Employment Tribunal system. Its report, Moving Forward, was published in July 2002.^[4]

• in November 2002, the Law Commission was given a specific assignment to look at how existing tribunals dealing with matters relating to land and valuation might be reformed—a topic which Leggatt did not have time to review in detail.^[5]

This stage of the process culminated in March 2003 with the formal announcement by the government that a Tribunals Service would be created.^[6] The statement indicated that the process of the creation of the service would take place over a number of years. The first stage would be the integration of a core of tribunals for which the Lord Chancellor’s Department already had responsibility. Other tribunals would be added in due course.

Although the principle of the service was agreed, much of the detail was still to be finalised. The Lord Chancellor stated that these details would be set out in a White Paper. He suggested that this would appear in the autumn of 2003.

Creation of the Department of Constitutional Affairs

The timetable has not been adhered to. In the summer of 2003, major changes to the machinery of government were announced. These involved:

• the abolition of the Lord Chancellor’s Department and its replacement by the Department of Constitutional Affairs;

• a commitment to establish a new Supreme Court, to replace the judicial functions of the House of Lords; and

• the creation of new machinery for the appointment of judges.

The new Lord Chancellor, Lord Falconer, also proposes to abolish the post of Lord Chancellor and become, like other chief Ministers, a Secretary of State. These steps require legislation. In addition, civil servants were already engaged on a major restructuring of the criminal justice system. Thus there was simply not the personnel capacity available to stick to the timetable for reform of tribunals set by Lord Irvine.

One consequence of Lord Falconer’s appointment is a new rhetoric about the role of his department. He has published a Manifesto in which he states that his department should be seen as no longer built around the needs of a Cabinet Minister who was also head of the judiciary and presided over the House of Lords, but “a mainstream public service delivery Department ...there for the public, not for the judges, or the lawyers”. This has led his ministerial team to place users of the justice system at the centre of policy formulation.

This was precisely Leggatt’s focus for his report on tribunals. Current indications are that Ministers want to go beyond the specific question of the reform of tribunals, to consider administrative justice more in the round. Thus the junior Minister in the Department of Constitutional Affairs, Lord Filkin has, in a number of recent speeches, indicated that:

• ideally disputes between citizen and state should not arise at all (because the decision is right first time);

• if they do, internal complaints procedures and ombudsmen may be more appropriate mechanisms for dealing with them than tribunals; and

• if and when tribunals are needed, they should be used in a proportionate fashion.

The balance between these options should be determined, at least in part, by what the users of the current systems think desirable. (This approach very much reflects the scope of the discussions at Bristol, mentioned above.)

Next steps

It now looks likely that a White Paper on Administrative Justice will appear in May/June 2004 (though no firm date has yet been made public). Once this is published, it will probably followed by a Bill providing for the establishment of the Tribunals Service. The present intention is to start the new service in 2006.

Two related issues flow from these developments.

• First, there must be a question of whether the current role of the Council on Tribunals—which has responsibility for keeping tribunals and inquiries under review—should be expanded to embrace the more holistic approach to administrative justice now being contemplated and thus also look at the work of ombudsmen and other complaints resolution procedures.

• Second, research interest in the developing world of administrative justice in the UK must be encouraged. A body modelled on the lines of the Australian Institute for Administrative Law is something that should be considered for creation in the UK.

Conclusion

As indicated at the outset, this is an account of work in progress. Exciting opportunities for reform are in prospect, but until set in place will remain subject to the whim of political expediency. However, if—as I hope—they come to fruition, then at least some of the attention that the Australian administrative justice system has rightly attracted over the past 30 years may start to be directed our way!

* Professor Martin Partington is a Law Commissioner for England and Wales. He is on secondment from the University of Bristol, where he is Professor of Law. He was a consultee both to Sir Andrew Leggatt's review of tribunals (2001) and to Janet Gaymer's review of Employment Tribunals (2002). While this article draws on this experience, he writes here in a purely personal capacity.

Endnotes

{1} I was first introduced to the Australian scheme while a Visiting Professor at the University of New South Wales in 1983.

{2} Most of the papers are published in M Partington and M Harris (eds) Administrative Justice in the 21^st Century (1999).

{3} A Leggatt Tribunals for Users: One System, One Service (2001) and available at <www.tribunals-review.org.uk/leggatthtm/leg-00.htm>.

{4} The report is available at <www.dti.gov.uk/er/individual/etst-report.pdf>.

{5} The Commission’s report Land, Valuation and Housing Tribunals: The Future (Law Com 281) was published in September 2003.

{6} See <www.dca.gov.uk/civil/tribspn.htm>.