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Rights lost to sight?

18 April 16

Government decisions, at UK and Scottish level, affect the rights of large sections of the population. But are they being effectively scrutinised, and should lawyers be concerned?

by Peter Nicholson

Millions of people are subjected to decisions that radically affect their lives but are effectively beyond scrutiny.

Lawyers may instinctively challenge such a statement, but to an expert committee within the Law Society of Scotland it is fact, and one that deserves the profession’s attention with a view to bringing pressure to bear on the decision-makers – our Governments.

The committee is the Administrative Justice Committee (AJC), chaired by former Society President and ex-head of the Government Legal Service for Scotland, Richard Henderson. The issue concerns the whole field of decisions by government in relation to individual citizens regarding their rights in relation to the state.

Welfare benefits, immigration and social care are of particular but not exclusive concern. It adds to the sensitivity surrounding the topic that so many decisions affecting the most vulnerable people are in politically highly charged areas. But that is no reason, in the AJC’s book, not to meet certain standards in the way they are taken, or to subject them to appropriate independent scrutiny. Yet the evidence points strongly to inadequate standards in decision making, and the Government chose to do away with a purpose-built scrutiny body after only a few years of its life.

Swing of the pendulum

Recent history is instructive. The Leggatt report of 2001 (Sir Andrew Leggatt: Tribunals for Users: One System, One Service) highlighted the patchwork nature of the then system of administrative tribunals, with Government departments frequently being responsible for appointments to, and procedures of, bodies that scrutinised decisions taken by those same departments. Its recommendations, designed to avert the obvious human rights concerns, led to the birth in 2007 of the First-tier and Upper Tribunals along with a centralised, independent tribunal administration.

At the same time Leggatt recommended a reformed Council on Tribunals, with an enlarged responsibility not only to monitor the developing tribunal system, but for ongoing oversight and review of the whole field of administrative justice. In response, the 2007 Tribunals, Courts and Enforcement Act created the Administrative Justice & Tribunals Council (AJTC) and its associated Scottish Committee.

This body’s principal functions included keeping under review “the overall system by which decisions of an administrative or executive nature are made in relation to particular persons”, including the law, decision-making procedures, and grievance and dispute resolution systems.

Scarcely had it begun to operate, however, than the costcutting zeal of the 2010 coalition Government identified it for inclusion in the cull of public bodies. The AJTC’s abolition took effect in August 2013; for the time being its constitution and work can still be charted at ajtc.justice.gov.uk

Is it coincidence that at the same time, controversy has increasingly surrounded Government decision making in the areas of benefits entitlement – including the sanctions regime – and immigration? This has highlighted issues with both the quality and consistency of initial decisions, and problems facing those seeking an independent review.

“The decision to abolish the AJTC was controversial,” Henderson observes. “It was suggested that it
would be convenient for Government not to have it around. It was one of its functions that it should actually comment on the activities of Government and how it carries on business. It’s not an area that the Government finds comfortable.”

A paper by his committee colleague Michael Adler, Emeritus Professor of Socio-Legal Studies at Edinburgh University, presented at the Society’s 2015 conference and published (in shorter form) in October 2015 on the UK Constitutional Law blog site, analysed the sanctions regime against the late Lord Bingham’s eight principles of the rule of law and raised “serious questions about its legality – in addition to its efficacy and humanity”.

Exposing the gaps

Such questions of principle, the committee believes, are of wider concern, particularly to the legal profession. Given that even the number of tribunal cases in the administrative justice field has in recent years exceeded the combined caseload of the civil and criminal courts, the subject is one that deserves much greater attention than it has so far received, and principles should apply at lower levels also. “It’s an end-to-end process, starting with first-instance decision making and ending with appellate justice in the courts,” Adler maintains.

Can the Ombudsman services play watchdog? Only to the extent that they primarily review whether good administrative processes have been followed, rather than act as appeal body in individual cases. And as Adler observes, their remit is quite narrowly drawn, and only a small percentage of cases taken to the ombudsman result in investigations. With some types of decision, Henderson notes, there is no provision for appeal at all, outside of judicial review, and to that extent the structure is defective.

At tribunal level too, there is a hiatus in oversight. Under its founding statute, the Scottish Civil
Justice Council’s remit is not restricted to the courts, but Lord Gill, whose review led to the SCJC’s creation, only envisaged it taking on tribunal supervision at some future date. “So we have a coming together of the organisation of courts and tribunals, but an SCJC for which tribunals may not be a priority,” Henderson observes. “It may be that this is a work in progress but in terms of oversight functions there is another gap there.”

Reinventing the wheel

What should be done? Ideally, in the committee’s view, something like the AJTC would be reinstated – after all, there is little reason to suppose that it is any less needed now than in 2007. “There should be something like the AJTC that sits at arm’s length from Government, and is sufficiently resourced to allow it to exercise meaningful supervision,” Henderson believes. “If you go to the AJTC website you can see the papers it wrote, setting out really for the first time the principles of administrative justice.”

There remain a few stirrings of life. UK-wide, the Administrative Justice Institute was set up following the demise of the AJTC, largely due to one of its final initiatives. Henderson describes it as “for the most part a clearing house for research, rather than a body that goes into the pressure areas”. Separately there is the Administrative Justice Forum, established by the Ministry of Justice post-AJTC, but importantly as a non-statutory body located within the Ministry. As Adler observes: “It’s not independent; it doesn’t have resources; it doesn’t speak out.”

Meanwhile, the Scottish Government, which effectively acquiesced in the abolition of the AJTC, set up a short-life advisory committee, recently succeeded by a working group with the rather vague remit of developing an action plan on administrative justice. Paul Smith, a former AJTC senior policy adviser who also serves on Henderson’s committee as well as this group, comments that as yet its focus remains unclear, though tribunals and reserved matters are out of bounds.

None of this suggests any urgency to put something in place, though in Adler’s view “Informed people could tell them in 10 minutes what is needed.” He continues: “There’s a vacuum now at Government level. Bodies are wound up; it takes these committees a year or more to decide what comes next; then the Government takes time to consider, so in effect our Administrative Justice Committee is the only player in town.”

The challenge of devolution

The need for effective Scottish-based oversight increases as the Scottish Parliament and Government take on further powers under the new Scotland Act. Smith observes: “As a number of currently reserved systems will be devolved, now is the time when the bigger picture should be addressed with a view to making sure we have in place the necessary mechanisms to run the new business we will be getting.”

From long experience, Henderson knows that Government works “essentially in a silo system”, in which if department A decides that it needs a way of interacting with citizens and looking after their rights, it will develop a process to deal with that, even as department B may be doing a similar thing in a completely different way.

Adler provides an example. When the social fund was abolished as part of the UK welfare system, the Scottish Government decided to develop a substitute emergency scheme, which its welfare division duly came up with. Then council tax benefit was abolished; again Scotland needed to devise its own successor arrangements, a task given to a different section, local government finance. The two came up with completely different schemes, because no one was ensuring consistency. The Scottish Committee of the AJTC was concerned with both of these, and tried to press on Government the need for general principles, but to no avail.

“All my experience was like this,” Henderson observes. “There is an increasing breadth now of the silos but less depth, because the resources are fewer. However that isn’t for us; what we are saying is that the legal profession must take a greater interest in these matters simply because of the impact they have on individual citizens, often the most disadvantaged.”

He and his AJC colleagues believe more needs to be done within the profession, from the undergraduate legal education stage onwards, to focus on the quality of decision-making and review procedures within Government. To members of the public, after all, it translates into how their rights are perceived and vindicated, and what processes apply. “The consequences of the current system are writ large – we are seeing people without access to a fair disposal of their rights. The legal profession is an influencer in relation to how Government acts.

We believe that the standing of Government for the future depends on whether it recognises the need for independent monitoring and review of its systems and processes in regard to its dealings with individual citizens.”  

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