British Bill of Rights and Responsibilities
A Right to Administrative Justice
1. This short paper is submitted by the Administrative Justice and Tribunals Council (AJTC) as an initial contribution to the 'national conversation' on a British Bill of Rights and Responsibilities.
Introduction
2. The AJTC was set up in November 2007 under the Tribunals, Courts and Enforcement Act 2007 as the successor body to the Council on Tribunals. In addition to inheriting the Council on Tribunals' oversight of tribunals and inquiries, the AJTC has been given the function of keeping the administrative justice system under review. In ordinary usage the term "administrative justice" has several shades of meaning. For present purposes the "administrative justice system" has the meaning given to it by the 2007 Act, namely:
"the overall system by which decisions of an administrative or executive nature are made in relation to particular persons, including –
- the procedures for making such decisions,
- the law under which such decisions are made, and
- the systems for resolving disputes and airing grievances in relation to such decisions."
So the AJTC's functions are not confined to looking at forums for legal redress or relationships only between individuals and the executive. They also extend to looking at the system as a whole, including the way in which decisions are taken at first instance and the extent to which learning from appeals can be used to improve the quality of administrative decision taking generally.
A right to administrative justice
3. In a recent speech the Secretary of State for Justice has said that the constitution of the United Kingdom exists in hearts and minds and habits as much as it does in law. In another speech he has adverted to the possibility of including a right to administrative justice in a Bill of Rights and Responsibilities. The AJTC believes that the time is indeed ripe for enshrining our traditional notions of 'fair dealing' at the hands of the State in a formal statement of that kind. Such a right to administrative justice would be founded not only on the rule of law and the general principles of legality and legal certainty but also on the principles of good administration, democratic accountability, equality of treatment and citizen empowerment.
4. There are numerous areas of life where administrative decisions affect the lives of ordinary people, to do with such diverse matters as social security benefits, school admissions, health and social care, mental health detention, asylum and immigration, taxation and tax credits, applications for planning permission and so forth. Typically these will be governed by a statutory scheme to guide first instance decision makers, with provision for appeal, usually to an independent tribunal. There are currently more than 80 tribunals under AJTC oversight with more being created each year. They deal with in excess of 600,000 cases each year. In cases involving maladministration rather than legal entitlement, there is often the possibility of recourse to a public sector ombudsman. There are also larger individual policy decisions capable of affecting the public generally, such as a decision to build new nuclear power stations or to give permission for a major infrastructure project, which are susceptible to judicial review.
5. The breadth of the administrative justice landscape in the context of decisions of central government was well described in Chapter 3 of the 2004 White Paper "Transforming Public Services: Complaints, Redress and Tribunals". It commented that a comprehensive description of the institutions and of the law which has grown up around what they do and how they interact would be extremely large. It went on to say that a citizen in a democracy should be in a position to deal with public institutions directly and easily, without the need to study large amounts of information or to seek professional help. It dealt in turn with departmental decisions, complaints to departments and agencies, complaints to independent complaints handlers, complaints to Members of Parliament, complaints to the Parliamentary Ombudsman, court proceedings, and tribunals. The challenge was to find ways of combining the strengths of all the redress methods so as to give people real choice and a genuinely responsive service, equal to the best service delivery organisations.
6. The White Paper also placed great emphasis on "getting it right first time". The better the decision making at first instance, the less will be the need for recourse to ombudsmen, tribunals, the courts or other forms of redress.
Principles of good administration
7. The Committee of Ministers of the Council of Europe has recently issued a Recommendation CM/Rec(2007)7 to member states on good administration. It states that good administration is an aspect of good governance; it is not just concerned with legal arrangements. The emphasis is to be placed on such matters as codification, internal and external monitoring, and dissemination of good practice.
8. The Appendix to the Recommendation constitutes a code of good administration. It sets out nine principles of good administration – lawfulness, equality, impartiality, proportionality, legal certainty, taking action within a reasonable time limit, participation, respect for privacy, transparency – and describes the content of each. The principles would apply equally to first-tier decisions and to review.
9. These principles are no doubt founded on those enshrined in the European Convention on Human Rights. But there is also a close correspondence between them and the principles worked out by the courts on judicial review, under the heads of illegality, irrationality, and procedural impropriety (including the principles of natural justice). In principle, all statutory schemes of the kind mentioned earlier must comply with those principles.
10. Last year the Parliamentary Commissioner for Administration (herself a member of the AJTC ex officio) published Principles of Good Administration and Principles for Remedy under the headings Getting it right, Being customer focused, Being open and accountable, Acting fairly and proportionately, Putting things right, Seeking continuous improvement. These enunciated similar principles in simple down-to-earth language.
11. The Council on Tribunals itself produced a Framework of Standards for Tribunals in 2002 which was generally well received. It was followed in 2003 by the Council's Guide to Drafting Tribunal Rules, which is frequently referred to by individual rule making bodies. The AJTC is planning to revisit this area with a view to producing a framework of generally applicable principles across the whole administrative justice system, including both first instance decision making and avenues of redress.
The duty to give reasons
12. A perennial topic of discussion is the duty to give reasons. There is no general duty either at common law or under the European Convention on Human Rights for administrators to give reasons for their decisions. But the courts have been increasingly willing to imply a duty to give reasons in order to meet the requirements of fairness in particular cases. The courts have also been ready to infer an error of law in the absence of reasons. In some instances, an obligation to give reasons has been imposed by statute. At the same time, there has been a developing tendency in certain areas, such as competition policy, to give fuller reasons even at the risk of laying the decision maker open to challenge in the courts.
13. Since the Tribunals and Inquiries Act 1958, most tribunals have been statutorily obliged to give reasons for decisions and the same applies to statutory inquiries. The European Court of Human Rights regards the duty to give reasons as implicit in the right to a fair hearing under ECHR Article 6.
14. The JUSTICE–All Souls Report on "Administrative Justice: Some Necessary Reforms" (1988), in advocating a general duty to give reasons, said that reasons were needed:
- to improve the quality of decision-making;
- to satisfy the citizen's desire for just and fair treatment;
- to enable him to decide whether the decision is open to challenge.
It considered this principle to be of such fundamental importance that it ought to be imposed in the form of an enforceable legal duty (subject to exceptions). These arguments still have force.
Mechanisms of redress
15. As indicated earlier, there is a wide spectrum of mechanisms for resolving disputes and airing complaints about administrative decisions, ranging from internal or external review, independent adjudication, complaint of maladministration to a public sector ombudsman, or appeal on fact and law to a tribunal. There may be the possibility of a further appeal on law to an appellate tribunal or to the courts. Judicial review is available on the now well-established grounds of illegality, irrationality or procedural impropriety. There is also an increasing emphasis on the role that other techniques of dispute resolution such as early neutral evaluation, mediation and conciliation can play. It is essential that, as they develop, the extent to which they are consistent with the principles of fairness already established is closely scrutinised.
16. Another significant development in recent years has been the establishment of private sector ombudsman schemes. Some of these, such as the Financial Ombudsman Service, are underpinned by statute. Unlike public sector ombudsmen, these schemes have generally been set up to resolve disputes rather than simply to investigate complaints of maladministration. The dangers, from the consumer's point of view, of undue proliferation of such schemes has recently been the subject of a pamphlet published by the National Consumer Council entitled "Lessons from Ombudsmania" (2008).
17. So far as tribunals are concerned, the Franks Report on Administrative Tribunals and Enquiries in 1957 was a turning point. Since then, it has been recognised that tribunals should be regarded as part of the judicial as opposed to the administrative arm of the State. However, so long as the administration of a tribunal remained in the hands of the department responsible for the relevant policy and legislation, there was continuing tension. This has now been resolved by the Leggatt Report "Tribunals for Users – One System, One Service" (2001) and the subsequent creation of a unified Tribunals Service, comprising most of the central government tribunals, under what is now the Ministry of Justice.
18. The Leggatt recommendations were given statutory effect by the Tribunals, Courts and Enforcement Act 2007. This provides for a First-tier and Upper Tribunal under the judicial leadership of the Senior President of Tribunals, incorporating the jurisdictions of what has hitherto been a multitude of different tribunals. The position now reached is that most tribunals have independent judicial chairs, appointed independently in the same way as judges, with (where appropriate) wing members to provide additional expertise and balance, as for example in employment tribunals. Leggatt also emphasised the importance of tribunals in the "landscape" of administrative justice, and the need to look at the whole lifecycle of administrative decision making from the original decision, through various forms of redress, to ultimate resolution, with the potential for organisational learning.
Access to justice
19. The important thing from the aggrieved person's point of view is that avenues of redress should be readily accessible, and appropriate and proportionate to the issues at stake. One of the tasks of the AJTC, in the words of the 2004 White Paper referred to earlier, will be to ensure that the relationships between the courts, tribunals, ombudsmen and other ADR routes satisfactorily reflect the needs of users. This may involve considering, for example, whether the transfer of cases from one forum to another should be made easier, or examining the extent to which independence is an essential ingredient of a satisfactory redress mechanism.
20. The user is indeed at the heart of the AJTC's agenda. This means that the AJTC will not only need to consider such issues as whether a particular type of grievance is best resolved through, say, a court, a tribunal or an ombudsman or some less formal mechanism. It also involves seeking to ensure that users have the necessary information, support and (where necessary) legal or other help to guide them through the system. From the user's perspective, the difference between a "complaint" and an "appeal", or the distinction between appeals on law, fact, or merits, is hard to discern. There is a considerable task of legal education involved not only in informing people about their entitlements but also in showing them how those entitlements can be obtained.
Conclusion
21. In summary, the AJTC regards administrative justice as a crucial aspect of our constitutional arrangements and a prime candidate for consideration in the context of a British Bill of Rights and Responsibilities. Whether a right to administrative justice should be an explicit, justiciable right to good governance in addition to existing redress mechanisms will no doubt be the subject of further debate in which the AJTC looks forward to taking part. In any event, such a right could provide a secure basis for the development of generally applicable principles of good governance not just in tribunals but across the wider administrative justice landscape. Over time, improvements in the area of administrative justice can only serve to strengthen the compact between the citizen and the State by helping to entrench principles of fairness and transparency in relationships between decision makers and those whose interests they serve.