Comment : So What Does Administrative Justice Mean To Me?
Brian Thompson
Liverpool Law School, University of Liverpool
I am pleased to contribute to the debate on administrative justice initiated by Bernard Quoroll in the last issue of Adjust. In this short article I shall not attempt a definition of administrative justice, but rather give some indications of its scope. I will refer to some of the ideas in the academic literature and end with some suggestions for the work programme which the Council might undertake in the new role envisaged for it in the July 2004 White Paper "Transforming Public Services: Complaints, Redress and Tribunals".
Whilst I have been teaching a course called Administrative Justice since October 1996, I do not have a definition such as Mashaw's, 'those qualities of a decision process that provide arguments for acceptability of its decisions'. I prompt my students to begin to map the terrain of administrative justice by indicating some boundaries and important features.
Let us start with tribunals and move on to the other means of redress for citizens aggrieved with public services which are principally (a) the internal complaints systems in public service bodies, which includes review conducted by the Independent Review Service in social security and conciliation which may be used in the first stage of the NHS complaints procedure; (b) the public services Ombudsmen who deal with central and local government and the NHS (and social housing in Scotland and Wales in their recently established 'one-stop shops') and (c) the courts with their judicial review and statutory appeals jurisdictions. On examining these institutions and techniques of dispute resolution one notices that they help to delineate a perimeter for administrative justice but that they have internal links and barriers. A point to which we will return.
The new Council would then extend its attentions from tribunals and inquiries to these institutions and techniques of dispute resolution but the expansion has another dimension. Administrative justice includes not only the operation of these institutions and techniques of dispute resolution but also the administrative processes which gave rise to these disputes. As the White Paper puts it, there should be a concern with getting things right first time. This dual function of resolving individual grievances and learning the lessons so as to improve service is something which Ombudsmen seek to do and, following the work of the Citizen's Charter Task Force and its successors, is built into the guidance for the operation of internal complaints systems.
The principles and values of administrative justice are not straightforward. We have moved beyond the Franks trinity for tribunals and inquiries of Openness, Fairness and Impartiality. These were fashioned for dealing with a grievance and not initial administrative action and decision-making. One general tool used for controlling administration is audit, which has extended its concern from financial regularity to value for money, which focuses upon Economy, Efficiency and Effectiveness. This is an internal control compared to the external controls of tribunals, ombudsmen and the courts. Models of good administration derived from the case-law of the courts and ombudsmen have been proposed (e.g.Woodhouse). These models do overlap but they cover different aspects and it is generally true that the principles and values in administrative justice may vary according to the perspective of the particular stakeholder: the aggrieved citizen, the minister or official whose action or decision has been challenged, the citizen as friend of an aggrieved person, fellow citizen in this society or as a taxpayer.
Professor Adler has developed and adapted Professor Mashaw's work producing six models of administrative justice which differ in their modes of decision-making, legitimating goals, modes of accountability and characteristic remedies. The six models are: Bureaucratic, Professional, Managerial, Legal, Consumerist and Market. The practical point to bear in mind from this theorising is that these models and their values will be in competition and it is most unlikely that a single model will dominate. Accordingly there will be trade-offs as policy makers seek to construct an optimum mix for each particular administrative activity. An example of this is the oral hearing which is the subject of a current consultation exercise by the Council. From a legal perspective oral hearings promote openness, independence, impartiality, accountability and participation but require good advice and support/representation. Do these values trump cost, possible delay and a potentially stressful experience? In some cases yes but not, perhaps, in all. It is to be hoped that the Council's consultation exercise will throw some light on the types of disputes or issues which may be better suited to an oral hearing. It is this idea of matching disputes to the appropriate method of dispute resolution which, for me, is a key feature of administrative justice and why I prefer the term 'appropriate dispute resolution' to 'proportionate dispute resolution'.
The new Tribunals Service will have a duty to innovate, to try methods of dispute resolution such as early neutral evaluation and conciliation. The new agency will be interested in the work of its Australian counterparts in New South Wales, Victoria and Western Australia and their use of directions meetings, as well as the work being done on Alternative Dispute Resolution by our own Civil Justice Council, and so will the new Council as these techniques are relevant to its 'party and party' remit.
I end by agreeing with Bernard Quoroll that the new Council should focus upon the citizens' perspective and experience and that two examples of inquiries with this focus would be:
- the provision and efficacy of advice and support for aggrieved citizens; and
- the boundary between judicial review and ombudsmen where each claims that alternative remedies should first be exhausted.
(October 2005)
References and further reading:
- Adler, M. 'A Socio-Legal Approach to Administrative Justice', (2003) 25 Law & Policy, 323;
- Harris, M, & Partington, M. (Eds) Administrative Justice in the 21st Century, (1999, Hart);
- Mashaw, J.L. Bureaucratic Justice: Managing Social Security Disability Claims, (1983, Yale University Press);
- Partington, M. 'Restructuring Administrative Justice? The Redress of Citizens' Grievances', (1999) 52 Current Legal Problems 173;
- Woodhouse, D. In Pursuit of Good Administration: Ministers, Civil Servants and Judges, (1997, Clarendon Press).
What do you think?
If you would like to share your thoughts on this article with us, and ultimately with others who are interested, please email us at enquiries¶@¶cot.gsi.gov.uk