affiliated to the International Association of Constitutional Law
Profound changes in the way law interacts with administration are underway. Recently, the Ministry of Justice announced a near one-billion-pounds funding injection to modernise the justice system. A considerable part of this effort will involve substantial revisions being made to the delivery of administrative justice. Sir Ernest Ryder, the Senior President of the Courts and Tribunals, recently spoke about these reforms at the Public Law Project Conference. There, he described the next six years as the “most ambitious period of change since the Judicature Acts of the 1870.” He emphasised the “need for academic scrutiny, by reference to empirical material i.e. rigorous attention to what works.” And ended with an invitation: “[t]hese are fascinating, perhaps even exciting times. My invitation to you is to join with me in helping to shape them.”
We have published a new report on current issues in administrative justice. The report emerged out of a research project—entitled “Administrative Justice: engaging with government to improve administrative decision-making”—funded by the Economic and Social Research Council Impact Acceleration Account. That project, and our report, was designed to explore three key issues:
This short blog post outlines how the report was produced and the recommendations made in our report. The report can be downloaded through the link at the end of this post.
The Basis of the Report
We conducted a detailed literature review and organised a one-day policy seminar in September 2016. The seminar was attended by 40 people. Participants came from a range of institutions, including central government departments, the UK Administrative Justice Institute, the tribunals system, complaint handling bodies, NGOs, and academia. The Administrative Justice Forum and HM Courts and Tribunals Service supported the project as external partners.
The seminar made apparent the complexity of the issues within administrative justice. There was clear recognition of a need for justice in administration, as well as a recognition that such justice must be achieved within constraints. Any system of administrative justice involves a wide number of trade-offs, compromises, and cross-cutting issues. Trade-offs arise between the need for justice, on the one hand, and policy and spending commitments, on the other hand. They also relate to the administrative capacity of government. Accordingly, it was clear that the quest for administrative justice cannot be a search for an ideal justice, but is instead concerned with finding the best within the limits of what is possible. At the same time, there are concerns that achieving administrative justice has become more challenging.
The report offers some reflections on the operation of administrative justice. It draws on the shared learning and experiences of those involved with seminar discussions to identify elements of the system that have worked well and potential areas for improvement. Based on the discussions, we offer three core recommendations concerning each of our three question. These findings seek to contribute to the public debate and offer critical reflections on how to develop and improve the work of administrative justice in the future.
In the area of initial decision-making, our report suggests:
Initial decision-making is the most important level of decision-making in terms of volume. Government departments and public authorities already do much to ensure good quality decisions first time round, but more could be done. Government can organise its internal structures more effectively, learn from tribunal feedback, introduce quality assurance and other methods and inculcate a culture of organisational learning. Government could also consider greater professionalisation of decision-making and promote a more ‘judicial’ approach to decision-making.
In the area of internal administrative review, our report suggests:
Administrative review is now an increasingly important part of the administrative justice process. To enhance the potential of administrative review, government needs to learn appropriate lessons from how tribunals collect and handle evidence. Given the growth of administrative review, there is a need for research to acquire a better understanding of how administrative review systems operate in practice and to capture the views of users.
In relation to the future of tribunals, our report suggests:
The Ministry of Justice’s Transforming Justice plan envisages a radical reform of tribunals by adopting online dispute resolution methods. Such reforms hold great potential in improving efficiency and access to justice. At the same time, they also raise possible challenges. Great care should be taken to ensure the development of this reform programme is underpinned by piloting and evidence-based research.
The report explores the basis for each of these recommendations in detail—linking them to recent developments and existing empirical data.
The report is available to download here.
Robert Thomas is Professor of Public Law at the University of Manchester.
Joe Tomlinson is Lecturer in Public Law at University of Sheffield.
(Suggested citation: R. Thomas and J. Tomlinson, ‘New ESRC Report Launched: Current Issues in Administrative Justice: Examining Administrative Review, Better Initial Decisions, and Tribunal Reform’, U.K. Const. L. Blog (23rd Nov 2016) (available at https://ukconstitutionallaw.org/))