Beyond Leggatt – Where next for the Administrative Justice and Tribunals Council?
Bernard Quoroll, a member of the AJTC, argues that administrative justice should be broadly defined and reflects on what this will mean for the AJTC.
In the last edition of Adjust I looked back at 50 years of progress since Franks and suggested there is still much to do. In this second article I will comment on how society has changed since 1957, challenge the idea that the scope of administrative justice should be narrowly defined and reflect on how the AJTC will need to raise its game if it wants to add value as “The hub of the wheel”.
What has changed since Franks?
Attitudes to entitlement and authority have changed dramatically in half a century. Deference is no longer a watchword in society. Confidence in and respect for authority and many of its institutions have withered. The information society has arrived and with it, greater transparency and access to information but also greater potential for deliberate or inadvertent harm. Human rights have risen higher up the agenda and become almost routine components of any hearing to do with entitlement.
Issues arising from economic migration, asylum seekers and their needs for support and representation, and ensuring that guest workers’ rights are respected are already on the agenda, not just in the UK and Europe. Population movement due to climate change may soon be on the horizon.
All these things are changing the agenda of rights and entitlements but especially highlighting the importance of timely advice and representation and an emerging need to consider cross border enforcement. Whether we use the word citizen, user or customer, the world has become an altogether more complex and demanding place and all institutions are racing to try to keep up.
It has never been more important for providers of services, whether public or private to learn what their customers want, why they are unhappy and what needs to be done to put things right. Better still, they need to get things right first time. That way they reduce costs, keep customers and stay in business. Losing control of a relationship when someone heads off to a tribunal or ombudsman is just not good business. It damages reputation, increases costs, wastes time and loses customers. Government departments and tribunals are no different from the private sector in that respect. Whilst they may use the language of entitlement, ultimately they are delivering a service and often to people who do not have a choice.
Being technically proficient is no longer enough. Softer skills are increasingly being recognised in industry and elsewhere to be essential for those dealing with the public; awareness of gender, ethnicity, disability and equality issues now underpin relationships with individuals. Many forms of disability would hardly have figured on the radar 50 years ago. The ability to develop empathy, listen actively, respect individuality and respond sympathetically is becoming almost as important when deciding entitlements as making the right decision.
At the same time, the gap between those at the receiving end who are equipped to navigate these complexities and those less capable has hardly reduced. Growing complexity and continuing pressure on scarce resources means that the availability of support has in relative terms diminished. It is convenient to suggest that new forms of advice and support have become available but not everyone has been a gainer from the technological revolution. Putting information on websites is not a panacea. Those most in need of support do not always have ready access to computers, or necessarily have the skills to use them effectively. For every well equipped citizen able to articulate his or her case in a tribunal, there is another who needs an advocate. Great strides have of course been made in some jurisdictions in producing clear readable information and making it available electronically but they all need to become as effective as the best and we need to find more effective ways of identifying and responding to unmet need.
What is the public sector anyway?
Franks articulated the case for improving redress on behalf of citizens confronted by the potentially overweaning power of the state. But the distinction between the public and private sectors is evaporating, with each adopting characteristics of the other. Ethical considerations and the idea of governance have invaded the private sector and companies compete with each other in demonstrating their community credentials. Outsourcing , private financing and competition have become watchwords in the public sector. Arms length organisations in government and local government are required to run on business lines and have distanced people from elected representatives, reducing their ability to act as advocates for voters. The boundaries between the public and private sectors have become increasingly opaque and public / private partnerships have proliferated. Citizens and customers have in turn become much more interested in getting their entitlements than the organisations that deliver them it. This creates large challenges for the public sector. How does the citizen know who to complain to when things go wrong? How does an organisation know about it and respond sensitively when its reputation is being damaged by an “outsourced” contractor?
What does this mean for an AJTC?
In my submission it means that we need to take a much more holistic view of administrative justice. That begins not with tribunals but with the places where principles of fairness and natural justice are or should first be applied. We have until now, rightly sought to understand the experience of users appearing before a wide array of tribunals and thought it appropriate to comment on how they interact. But tribunals are only one element of a complex transactional compact between individuals and those organisations which take decisions about their rights and entitlements. By focusing on the processes and attitudes adopted in local and central government departments where decisions are first taken and applying the learning acquired by tribunals to situations where “things go wrong” we have a real opportunity to influence improvement. But that is not a task for an AJTC on its own. It will need to articulate the needs of users, recognise the competing pressures on the organisations themselves and work closely with those already in the business of fixing things – tribunals, ombudsmen and legislators, if it is to have any real prospect of making a difference.
Nor in my view should our remit be confined to government departments. Tribunals these days may just as easily be dealing with a dispute between an individual and a local authority, a landlord and a tenant, an employer and an employee, a pension provider and pensioner or competition between companies. Some but not all tribunals and regulators were formally within the Council on Tribunals’ supervision. Many were not and yet they have continued to proliferate in public and private schemes as have ombudsmen. In its new role as an AJTC our formal powers of supervision are not extended but our interest in bodies acting fairly and impartially, especially where there is an imbalance of power, remains undiminished.
The Council before and now as an AJTC is attempting to map these organisations and in due time identify where there are gaps in redress provision and overlaps between redress providers. Why for example should there be an ombudsman for tenants of Registered Social Landlords but not for 2 million tenants in the private sector, some of whose landlords have joined the statutory scheme on a voluntary basis. So far we have identified over 600 organisations in the public and private sectors which in some way appear to operate using the administrative justice principles of fairness, independence and transparency. Over time we hope to paint a more complex landscape in pursuit of our remit to identify the relationships between tangent parts of the administrative justice system and how they interact. I am not sure that it is sensible though to describe it as a system. That implies a degree of natural coherence between wildly differing services, entitlements and providers which simply does not exist. The issues that unite them seem to be more about how they exercise power than who they are. In generating a dialogue where there can be information exchange about good practice, the elimination of gaps and avoidance of duplication, an AJTC can perform a valuable service, whether or not it relates to tribunals strictly so called. It can also help academics to expand the range and focus of administrative justice in pursuit of an improvement agenda.
In my ideal world, however, tribunals would be less necessary if original decision makers saw it as their role always to get decisions right first time; or at least ensure that those affected do not feel the need to go to an external appeal. That would mean more focus on evidence gathering, explanation and communicating with customers and less on acting defensively. It would mean having a passion to resolve issues quickly, fairly and in house, seeing mistakes as a means of learning and treating the relationship with every individual as a precious commodity. It would also mean a willingness to innovate and offer more proportionate and informal means of resolving disputes and looking for opportunities to signpost people toward less stressful ways of getting an answer than tribunals by their nature can offer. Of course some issues do need to go before a tribunal where some degree of formality is inevitable. I am not suggesting that people should be deprived of that right. I am suggesting however that there are many situations where it would be quicker, cheaper, less stressful for individuals and less distracting for organisations not to adopt a one size fits all approach. An AJTC can of course work with others to promote experiment, innovation, and wider adoption of techniques that can be proved to work.
No discussion of redress would be complete without some reference to the important role of ombudsmen and complaints handlers who add a new dimension to the provision of redress for citizens and who are now of course well established. Professor Wade noted in 1960 that there was nothing in the constitution or practice of the former Council to prevent it from considering complaints from individuals. He also noted that the then Danish Ombudsman had expressed the opinion that the Council contained “the germ” of his office (a metaphor intended to be complimentary). He went on to say “It will be interesting to see whether germination occurs”. It did not. Probably just as well with the limited resources available to the Council. The first British ombudsman, the Parliamentary Commissioner, came into existence 40 years ago and has been a member of the CoT and now the AJTC, since coming into existence. The British and Irish Ombudsman Association now records in membership around 65 organisations in the public and private sectors engaged in complaints handling. Collectively they illustrate that there are many common features to the handling of complaints within both sectors and reinforce my point that administrative justice should not be narrowly defined. Ombudsmen have already demonstrated not just that dealing with individual complaints is an important service but that the collective intelligence they acquire is also essential for organisations wanting to improve, especially when the provider is one of last resort or the customer or citizen has few alternatives. In recent years the Council and BIOA have found it increasingly worthwhile to collaborate, recognising each other’s areas of interest but combining when needed to identify and promote good practice. Most recently we have exchanged members on working groups and are collaborating on the mapping exercise mentioned above. These brief notes cannot do justice to the contribution already made by ombudsmen. An AJTC will in future continue to work closely with them in the public interest.
There is much more that can be said but I hope I have done enough to illustrate that an AJTC in partnership with others has a large and exciting task ahead in bringing more coherence to administrative justice. As a user focused organisation it will need to demonstrate that it can add value to the interests of individuals whose voices are often not easy to hear. As the hub of the wheel it will have to find ways of becoming more visible, sitting at or near the centre of the deliberations of more stakeholders and interest groups and hopefully becoming an early point of call for any with an interest in administrative justice. It will need to continue to nurture the valued relationships it has established over many years with tribunals, government departments and others and will need to work closely with the Civil Justice Council to avoid duplication. It may have to reconsider its current stance as a backroom body and become, not more campaigning but certainly more visibly forthright, about issues it decides to champion. It will have to produce evidence in support of its views, especially now that under a proposed Code of Practice departments will have to respond to its reports and draw them to the attention of Select Committees. It will need to promote getting things right first time, awareness of proportionate dispute resolution and institutional learning in competition with all the other preoccupations that compete for attention in organisations providing services. Its focus will move away from direct supervision of those tribunals within the Tribunals Service but toward monitoring and commenting on its priorities and performance. In support of all these things it will need to improve its use of technology, learn from networking, manage information better, promote its website as a real source of information exchange whilst continuing to develop the e-magazine you are reading today. If we want to make a real difference we will of course have to chose priorities carefully but remain passionate about the whole improvement agenda, hopefully for another 50 years. Big results require big ambition!