Ann Abraham Speech
Speech given by Ann Abraham at the launch of the Administrative Justice & Tribunals Council
I’m going to focus on the ‘administrative justice’ bit of the Administrative Justice and Tribunals Council.
When I spoke at the Council on Tribunals conference in 2004 I was enthusiastic about the prospect of a new Administrative Justice and Tribunals Council. Three years later I am delighted that the proposal has come to fruition and I am very pleased to be here – at the launch of this new and exciting organisation.
I should say at the outset that I remain enthusiastic and even more convinced of the urgency of taking the administrative justice bull by the horns. I want this morning briefly to explain why that is so. I will do that:
- by drawing attention to those aspects of administrative justice that tend to get overlooked;
- by indicating what those habitual omissions tell us about the administrative justice system more generally and why those omissions matter for our public life beyond the administrative justice world itself;
- and finally I will point towards the ways in which I would like to see the AJTC make a difference, the sort of difference that would add up to the AJTC being a success and being heralded as such even by those who haven’t given a lot of thought to the concept of administrative justice – and even if they had done, probably wouldn’t have thought that it was really their cup of tea.
So, let me begin with the parts of the administrative justice system that tend to get overlooked, either because they seem remote from where the real judicial action is or because they appear as only a tenuous blip on the administrative radar screen. I might, of course, well say that Ombudsmen schemes figure high on the list, and I will return to the Ombudsman question shortly.
I want, however, to start at a more basic level, not with courts, or tribunals or Ombudsmen or even with the users of the administrative justice system itself, but with those countless citizens who have no option but to be more or less regular recipients of the administrative decisions of the state, whether as claimants for welfare benefits, as users of the health and social care systems, as householders or tax payers or in countless other ways. And I want to start there because it is with the citizen as user of public services and decision-making that the administrative justice system must ultimately come to terms.
Many of you will be aware from your own experience, and I certainly know from the thousands of complaints my office handles each year, that the encounters citizens have with first-instance decision-makers are far from uniformly positive, and of course we all know that this sense of dissatisfaction is not simply attributable to unrealistic expectations on the part of users or to the disillusionment that follows a negative outcome.
The simple fact of the matter is that decision-makers too often get it wrong, sometimes literally wrong (in the sense of making miscalculations or reaching perverse conclusions) but more often wrong in the more commonplace but ultimately more troubling sense of propping up a potentially dehumanising system by their lack of customer focus; by failing to treat the citizen as an individual – a person entitled to respect and instead as a cog in a bureaucratic machine.
Now it is of course an important part of the role of the AJTC to make sure that aggrieved citizens can use the administrative justice system to have things put right (the remedy business which most of us here are in); but what I am suggesting here is that the AJTC needs to ensure that its tentacles extend even further into the body of the administrative justice process – in search of the real prize of improving first instance decision making.
I am supported in that view by the definition of administrative justice that the AJTC has been given to work with:
‘The administrative justice system means 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 they are made, and the systems for resolving disputes and airing grievances in relation to them.’
And I am encouraged in that approach by what I take to be the conclusions repeatedly unearthed by Hazel Genn and by others at the Legal Services Research Centre, namely, that the vast majority of ‘justiciable’ events never see the light of judicial day. In other words, for every grievance that makes it to a court or tribunal, or indeed Ombudsman, there are hundreds, perhaps thousands, that remain subterranean, scarcely noticed or acknowledged, and rarely subjected to the sort of examination that goes with judicial scrutiny. The fact of the matter is that most citizens, even in what we are told is the ‘litigation culture’ of today, still grin and bear it (or possibly don’t grin, but still bear it – mainly because they have no choice – or don’t know they do).
Moreover, I can see no reason to believe that, even with all the ‘access to justice’ improvements in the world, the majority will still not have to make do with self-help of some sort, working from the furthest edges of the justice system to find their own solutions outside it.
Of course, I welcome the AJTC’s stated commitment to strategic oversight of the system, to infusing that system with the values of transparency, proportionality, independence, accessibility, fairness and equality. I am however suggesting that when we talk about the administrative justice system, we need to have clearly in front of us a broad conception of what that expression means.
I trust we have already got beyond the stage where we might have thought it just meant courts or tribunals. We now routinely acknowledge other forms of dispute resolution as having a place at the administrative justice table. Naturally, I would regard Ombudsmen as having a distinctive part to play as a system of justice in their own right, alternatives to the courts and tribunals, yes, but alternatives also to all those forms of ADR that are essentially negotiated forms of justice: for Ombudsmen the task of adjudication is a key identifying feature.
But I am suggesting that we must get beyond Ombudsmen too if the AJTC is to have a strategy that can deliver meaningful change for the citizen body at large. This, I take it, is what the White Paper meant when it spoke of the AJTC retaining its supervisory role but, crucially, evolving into ‘an advisory body for the whole administrative justice sector’. It is also, I take it, what the AJTC now means when it talks about the task of keeping under review the administrative justice system as a whole.
That realisation, I want to suggest, draws us towards the central importance of administrative justice for our public discourse and so towards the central importance of the AJTC too. We hear a lot these days about ‘the democratic deficit’, about the cynical disengagement of ordinary citizens from the political process, about the unaccountability of the Executive for so much of what it does. I want to suggest that the AJTC has a crucial role to play in addressing this state of stagnation.
When the Prime Minister talks in The Governance of Britain Green Paper about the need to reinvigorate our democracy, he no doubt has chiefly in mind those major constitutional reforms that impact most directly upon high affairs of state, upon the inner mechanics of Whitehall and Westminster. Yet, if democracy is to be more than an aloofly representative process from which ordinary citizens are routinely alienated, there are worse places to start looking for a remedy than administrative justice.
It is after all in the daily encounters between citizen and state that most people experience the Executive at first hand. It is in those encounters that most people get a sense of the sort of administration they are dealing with. It is in the quality of those encounters that most people either detect, or more often fail to detect, signs that they are viewed by the state as persons not cogs, citizens not ciphers. And they detect, or fail to detect those signs, at least in part according to the extent that they are engaged in a dialogue that offers reasons for decisions that are transparent; and that produces decisions that are proportionate to the issues in hand precisely because they are reasonable and reasoned.
It has become fashionable to talk about ‘deliberative democracy’ as a viable staging-post between a representative democratic process that is too remote, and a participatory democratic process that is impracticable in a nation state. Deliberative democracy, I would suggest, starts with good administration, with transparent and reasoned decision-making at first instance. I might add in passing that it is one of the places where a human rights culture begins to take root also, one of those small places that Eleanor Roosevelt famously referred to, close to home, so small and so close that they cannot be seen on any map of the world but which nevertheless simply are the world of the individual person.
So, what does all this mean in practice for the AJTC? What might success look like? Let me start with a couple of examples of the challenges we face. Take the user of mental health services. To begin with, let’s not lose sight of the fact that he, or more often she, is only brought into contact with the mental health services because things have got quite bad at a very personal level. Far from the process for tackling grievances taking account of that fact, it seems instead to have been designed with the sole purpose of causing the maximum frustration for those citizens who are already more likely than most to be at the end of their tethers. Just consider the labyrinth that awaits them after a first-instance decision that warrants review: there is the Mental Health Review Tribunal, itself subject to appeal; there is the NHS complaints system; there is the Mental Health Act Commission and the Healthcare Commission; and then there is the Health Service Ombudsman; (and the Courts of course, if anyone has the stamina).
Is it any wonder that one complainant to me, a vegetarian and resident at an NHS run mental health establishment, found himself having to bring his grievance to me because he suspected his dietary needs were not being respected? In fact it wasn’t even as complicated as that: he simply wanted to know for sure whether the ‘vegi-burgers’ he was being served on the ward really were what they claimed to be: meat-free.
When the system, despite its many layers and its undoubted commitment to a ‘horses for courses’ philosophy, cannot answer a question like that for someone without escalation to the Ombudsman, there is clearly something wrong. In the end, one of my staff rang the ward and asked would somebody please show the vegi-burger carton to the gentleman in question so he could be sure that it really was the genuine article. End of story, but not until after a wholly disproportionate amount of fuss and rigmarole.
To my mind, the AJTC needs to be alert to this sort of systemic nonsense, not of course in any way as an adjudicator on the particular dispute in hand, but by way of exercising the sort of close vigilance that will enable it to call to account the administrative process where it impacts most directly on citizens, at the first-instance decision-making stage. That will mean having in place the right channels of intelligence (including some serious empirical research) and communication to enable that degree of scrutiny and oversight. Of course, it is vital to take a strategic approach, but the AJTC must not succumb to the temptation of allowing the strategic approach to look too much like a retreat from the front line trenches to a comfortable country chateau.
For my second example, let me turn to a more developed tier of the process, that of the Ombudsman. The very name of the AJTC naturally gives prominence to the role of tribunals in the administrative justice system. That is not surprising. It should not however disguise the fact that public sector Ombudsmen have an enormous part to play in that system of justice too. Unlike tribunals, Ombudsmen have not, at least not yet, been subjected to a Leggatt-type review. As a result, and despite the best and sustained efforts of the British and Irish Ombudsman Association over the years, the domestic Ombudsman world is fragmented, and increasingly complex for the ordinary citizen to navigate.
I said in 2004 that BIOA and I had hoped that the Administrative Justice White Paper would tackle this issue of unruly Ombudsman proliferation, often with little guarantee that every bearer of the title meets the minimum criteria for office either in terms of independence or remedial powers, and very often with little rationale for the introduction of yet another scheme into an already often crowded field.
I have yet to fathom, for example, the rationale in the minds of the Ministry of Justice (which of all departments should know about such things) for creating a statutory Prisons Ombudsman (in the Criminal Justice and Immigration Bill), when prisons already fall ultimately within the statutory remit of the Parliamentary Ombudsman, albeit with the Ministry’s own non statutory Prisons and Probation Ombudsman occupying the intermediary ground? I hope the AJTC will be seeking an answer to that question.
Meanwhile, in another part of the Whitehall forest the Department for Business, Enterprise and Regulatory Reform (where of course competition and choice are the order of the day) is proposing a very different sort of Ombudsman arrangement for consumer redress in our gas, electricity and postal services in the Consumers, Estate Agents and Redress Bill. It makes little sense to extend the philosophy of consumerism to the process of adjudication if the offer of ‘choice’ threatens to undermine the credibility of all the schemes involved and to limit the ability of any of them to exert real influence and so bring about systemic change. ‘Horses for courses’, yes, ‘Pick’n’ Mix’, no.
I see a key role for the AJTC here. If its oversight is to extend to the entire administrative justice sector, it must have within its ambit the sort of rationalisation of each and every part of the system that it has already been required to exercise over the tribunals.
The balance will be all wrong if we find ourselves drawn into the challenges of rationalising the tribunal estate (the Tribunals Service is perfectly capable of tackling that one) whilst not having a clue how the other parts of the system sit with one another or with the system as a whole. I am conscious that the Law Commission is beginning to address some of these issues of ‘overlap’ in its deliberations about public law remedies. It should not be alone in that venture but should, I suggest, expect to find in the AJTC a well-informed and engaged partner in the quest for an integrated administrative justice system, one that means business and can deliver.
Finally, let me offer a third example of an aspect of the system that the AJTC needs to have in its sights. As I have already suggested, yes, it must have an eye to first-instance decision-making and to how it can be improved by learning from feedback; yes, it must have an eye too to the structure of the system, to the way in which its various parts interlace and interact. And yes, it should do all that whilst being self-conscious about its potential contribution to the reinvigoration of the democratic process.
But it must have a further ambition too. Over the summer, the Ministry of Justice’s task force on Public Legal Education and Support, chaired by Professor Dame Hazel Genn, produced its final report entitled, Developing capable citizens: the role of public legal education. In the course of calling for a new agency to oversee delivery of public legal education, the report identified a situation in which ordinary citizens, confronted by ever more complex and fast-changing lives, frequently have little idea how the law and the legal system affect them, and how they could be put to good use.
The report suggested that as a result of that lack of understanding, around a million civil justice problems go unresolved every year, with the burden falling as ever most heavily on the socially excluded and the vulnerable. The Ministry of Justice itself has estimated that over a three and a half year research period, unresolved legal problems cost individuals and the public purse around £13 billion.
We do not know for sure what the comparable picture is on the administrative justice scene, but I think we can be pretty confident that it is not very different, even allowing for the relative complexity of the legal process as against the alternatives to it, such as the tribunals and the Ombudsman system. I would suggest that here a third challenge awaits the AJTC, the challenge of educating citizens so that they know how the system works, and of educating the system so that it can respond to the real needs of citizens.
In summary then, the role of the AJTC spans the entire spectrum, from awareness of the small places of first-instance decision-making; to strategic oversight of the construction of an integrated administrative justice system in the round, embracing not just courts and tribunals but Ombudsmen too; and finally to the larger task of stimulating public education, both of citizens and of administrators, about the benefits of good administration and the perils of bad.
I remain enthusiastic about the AJTC, then, not because its challenges are slight but because its new extended remit fills a gap, and takes the delivery of administrative justice on to the next stage of its evolution. It embarks on that voyage at a time when the relationship between administrative justice and the future of democracy is of increasing importance.
The AJTC vision
The AJTC’s vision is a clear and compelling one. It is an administrative justice system:
- Where those taking administrative decisions do so on soundly based evidence and with regard for the needs of those affected;
- Where people are helped to understand how they can best challenge decisions or seek redress at least cost and inconvenience to themselves;
- Where grievances are resolved in a way which is fair, timely, open and proportionate; and
- Where there is a continuous search for improvement at every stage of the process.
All that adds up to no mean challenge. But it is a challenge I feel excited by and privileged to be facing. It will need the commitment of everyone here – and plenty of others outside this room – to make the AJTC’s vision a reality. I look forward – with all my colleagues on the AJTC in England, Scotland and Wales, led by our excellent Chairman, Lord Newton, and with all of you – to tackling that challenge.
To echo Lord Newton’s words, I too believe 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; which builds public confidence.
My exhortation to the new AJTC is to seize that opportunity with energy and enthusiasm: to be ambitious and bold; to be strategic and proactive; to be confident and strong – in the interests of all the users and the providers of administrative justice – but also in the interests of a much, much wider public.
Ann Abraham
20 November 2007