Justice - a case of deafness to the i-word

Administrative Justice in the 21st Century
February 11, 2000

In 1957, a famous inquiry headed by Lord Franks, the all-rounder of the great and the good of that era, produced a report on the role and functioning of administrative tribunals, which has been the point of departure for all academic discussion and policy development concerning the machinery of administrative justice ever since. Forty years on there was good reason to believe that a rethink was in order. The result was a major conference, supported in part by the lord chancellor's department (LCD).

This volume is the final result, and the editors have done a good job in focusing on common concerns and identifying general themes that might otherwise be lost in a mass of 26 chapters. Though the primary audience will comprise lawyers, administrators and complaints handlers (the latter a rapidly expanding occupation for reasons explored in several papers), the issues raised should be of concern to virtually everyone, since there can scarcely be a person alive who has not been involved in some form of dispute with a department of central or local government, a building society or insurance company, a doctor, lawyer or other professional, or one of the privatised public utilities.

Most legal writers on administrative justice focus on courts. That approach was deliberately rejected by the editors, for the very good reason that most decisions by officials in large organisations, public or private, never reach the courts, which are organs of second or even third-level decision-making. The result is liberating. It means that, unusually, adequate attention is devoted to matters such as primary decision-making; the experience of appellants in various appeals processes; alternative ways of resolving complaints, ranging from mandatory internal review to the use of ombudsmen as a substitute for courts; issues of institutional design; and the requirements new human-rights legislation may impose on administrative procedures.

The contributions, though of variable quality, are overall of a higher standard than is achieved in most conference collections. They are inevitably highly diverse - the editors' introduction identifies no fewer than 12 major themes that emerge. While the enterprise was worth undertaking and the product well worth reading, it is necessary in this review to focus on what seems to me a disabling deficiency.

There is a deep ambivalence in public feeling, reflected in common speech, about formal procedures. The word legalistic is always used with distaste, and denotes long-winded, time-consuming, highly technical proceedings and vocabulary controlled by lawyers, who are portrayed as remote and pompous. Yet very few people would be content to accept a procedure for handling their complaints that they felt denied them a fair chance to put their case, including presenting all the facts they think relevant, explaining the reasons for their behaviour, and rebutting the other side's factual case and the justice of its position. What is needed, therefore, are forms and fora of dispute resolution that effectively present individuals' interests in a user-friendly fashion. What those mechanisms might be is a matter that preoccupies many of the contributors and formed one of the dominant themes of the conference.

One key point of agreement is that the focus should not be on appeal or review: second-order decision-making. For all sorts of reasons, the majority of people with genuine grievances do not complain, and, in Terence Ison's striking phrase, "the total volume of injustice is likely to be much greater among those who accept initial decisions". Thus procedural justice requires proper training and adequate resources for front-line decision-makers, who are too often dismissed by scholars as mere "low-level bureaucrats" but who in fact make the discretionary judgements that have a vital impact on people's lives. And if their case load is excessive relative to a reasonable expectation of what a conscientious official can be expected to do, or if they lack specialist back-up necessary in particular contexts - interpreters in asylum cases, for example - they will do their job poorly, be seen by those subject to them as arbitrary, and injustice will result.

One is thus led directly to the problem of resources, an issue touched on by several contributors but usually somewhat delicately skated round. To put it more bluntly than they have been willing to do, administrative justice cannot be achieved on the cheap. There is little point, except as cynical window dressing, in setting up admirable procedures if the wherewithal to make them work is not provided. The LCD apparently urged participants to "think the unthinkable". In contemporary politics, this means imagining adequately funded and universally accessible public services, a state of affairs few of the contributors seem capable of conceiving. This reticence derives less from a positive commitment to new Labour ideology than from an acceptance of so-called "political realities". Yet a quarter of a century ago, when the welfare state and its assumptions had been riding high for 30 years and the Labour government was actively extending nationalisation and redistributive taxation, a group of intellectual free-marketeers began to challenge the governing axioms and, as the political climate changed in a remarkably short space of time, found fertile political ground for their views. Had they been overawed by "political realities", the intellectual underpinnings of Thatcherism would never have developed. The contributors here lack the same intellectual courage and vision, and the result is a sharp constriction in the range of possibilities and alternatives considered.

Nowhere can the poverty of the dominant approach be more clearly seen than in the conclusions of the conference, set out in great detail in an appendix written by one of the editors, in which yet another oversight body - a standing conference on the resolution of citizens' grievances - is advocated. This is preceded by reference to "the wider political context", and defined to encompass constitutional reform, alterations to civil justice embodied in the Woolf report, commitment to "joined-up government" and greater use of information technology. Not a peep about funding, privatisation, and certainly not the unspoken i-word of our time - inequality.

Another dimension of "political context" too often ignored in these essays is the issue of whether procedural justice can compensate for substantive injustice. If a social programme is structurally flawed - as in the case of child support, which for reasons well explained in the essay by Richard Young and his colleagues is cumbersome, complex and difficult for those affected to understand - then even the best-designed procedure for resolving the disputes inevitable in any system can only explain to the dissatisfied complainant why the unsatisfactory result must stand. But of course ill-designed programmes, or those designed to control or repress rather than assist claimants - there is a substantial overlap between the two categories - do not come equipped with the latest model-dispute resolution procedures.

Indeed one of the most significant features of administrative justice in Britain emerges unintentionally from a reading of two couplets of essays in quick succession. Sophisticated analytical pieces by Julia Black and Aileen McHarg take the reader on an extended tour through the mansions of the system. With great intellectual brio, one is taken through complex dimensions of the regulatory state. They explore such matters as separation of powers; the competing arguments about combining rule-making with adjudicative functions; "reflexive" regulation; competing "models" of regulation; and the place of values such as participation, authority, trust and accountability. It is no accident that this interesting and difficult territory is inhabited by the big players of the modern economy - public utilities and major companies subject to the City Take-over Panel or the European Commission's Competition Directorate.

The essays by Neville Harris and Young and his colleagues take the reader abruptly to the lower depths. Both present empirical studies of the workings of two sets of tribunals that deal with issues critical to ordinary people, with an over-representation of those on low incomes: education, especially Education Appeal Committees (EACs), which hear complaints about school expulsions (which incidentally involve black children in wildly disproportionate numbers), and Child Support Appeal Tribunals (CSATs).

Harris's conclusion on EACs is that "the odds are stacked in favour of the school and the LEA". Sadly but predictably, the government has refused to require that the EACs be chaired by a lawyer or establish stricter procedures for their work, despite evidence of oppressive questioning of children and often-slipshod methods that adherence to basic principles of procedural fairness should prevent. The study of CSATs concludes that the absence of publicly funded representation of appellants makes matters so difficult for many of them (especially those of limited education and income) that "the regime under which lawyers and courts settled child maintenance responsibilities in their own laborious, inefficient and rough-and-ready way takes on a rather more attractive hue".

The mansions and the slums of public administration are in theory part of a general system, but they are so different in atmosphere, rigour and, it must be said, in the respect with which those subject to their decisions are viewed and treated, that all family resemblances are well-nigh invisible.

Hence all grand, or even modest, schemes for unifying appeal procedures, and for monitoring and general oversight of the system - several are presented by various authors here - that fail to address these fundamental inequalities are fated to remain exercises in abstraction.

How then do we stand, 40 years on from Franks at the dawn of the new millennium/ century/decade? Perhaps, above all, with the thought that the time interval more important than any of these is the financial year. The most important pressure on administrative justice is economic. The recent cuts in legal aid are only the latest stage in what one contributor calls "the effective collapse of access to the courts of the majority of the population of the country". Creative use of ombudsmen, or other innovations under the broad heading of Alternative Dispute Resolution, may take up some of the slack. Fundamentally, however, until a political decision is taken to subordinate tax cuts to the provision of quality public services - of which access to the institutions of justice is according to any view one of the most important - the case will be at best a one of make do and mend. And the slums will remain unfit for human habitation.

Laurence Lustgarten is professor of law, University of Southampton.

Administrative Justice in the 21st Century

Editor - Michael Harris and Martin Partington
ISBN - 1 901362 66 3
Publisher - Hart
Price - £50.00
Pages - 546

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