Risking increased injustice

Just over a year ago the Public Administration Select Committee (PASC) produced a scathing report on the Coalition Government’s approach to creating a “bonfire of the quangos”. It suggested that the whole process was fundamentally inept, as I discussed here. The Coalition nonetheless moved forward with the Public Bodies Act 2011, which was enacted in December 2011. This is the vehicle to be used to abolish public bodies deemed no longer necessary.

Last week the PASC produced a report on a more specific component of this agenda: the proposed abolition of the Administrative Justice and Tribunals Council (AJTC). The report is perhaps slightly less scathing in its tone. But it is equally negative in its assessment of the Coalition’s analysis of the AJTC and the arrangements it proposes post-abolition.

While the PASC is chaired by an incorrigible old Tory, Bernard Jenkin, and includes one or two members of the loose cannon variety, it takes its role seriously and exercises that role in a largely non-partisan way. If you can have a favourite Select Committee, then the PASC is probably mine.

The AJTC is a somewhat shadowy body. Its very existence is probably something only a few people are aware of. Yet, it performs an absolutely vital function.

Its primary responsibility is to have oversight of the way in which administrative justice is being dispensed. It also provides policy advice on how tribunal processes are functioning and could be improved. Administrative justice is itself rather opaque compared to the more familiar criminal and civil justice. It is concerned with the quality of decisions made by representatives of the state. While it may be less high profile than civil or criminal, in terms of the breadth of impact upon people’s lives administrative justice is more important. For example, in 2010 there were 200,000 criminal justice hearings/trials, but there were 650,000 administrative justice hearings. These are in areas such as social security, child support or immigration. It has been suggested that if ombudsman decisions are also included then the scope of administrative justice would top one million cases a year.

Many of these cases were successfully appealed which is, in itself, cause for concern. As the PASC comment:

PASC regards the high level of successful appeals and complaints against decisions by government departments as an indication of widespread administrative failure. Government should aim to produce decisions which are right first time and command a high level of confidence. The scale of the injustice and the cost to the taxpayer caused by this poor decision-making are wholly unacceptable … We … therefore regard the role of the AJTC as one of vital national importance, overseeing a system that protects the rights of millions of citizens every year. (para 18)

Yet, the Coalition has decided that the AJTC is surplus to requirements. Its oversight functions can be absorbed into the Ministry of Justice. Its policy functions are no longer needed. Its abolition would save around £1.3m per year.

Pretty much everyone else who made representations to the PASC disagreed.

There were practical concerns. The MoJ was not seen as having the personnel capacity in terms of scale, expertise and continuity.

The PASC acknowledged that other bodies such as the Tribunals Service have taken on new roles, which has created overlap with the AJTC. It considers that a review would be in order, but it rejects the view that there is complete duplication.

But there were more principled concerns about the wisdom of the proposed new arrangements. They place the Government in the position of being its own scrutineer. Not only that, the AJTC has oversight of activities that fall outside the MoJ’s policy field. It’s not clear how those will be overseen in future.

The PASC concluded:

It is clear that there is a fundamental difference of view between the Government and others from whom we have heard on both the need for independent oversight of the administrative justice system, and the extent to which the AJTC has been performing such a function. We accept that this task may be undertaken in more than one way, but consider that oversight by an entity independent from Government is valuable and should be continued in some form. This should be a key consideration in deciding whether or not the AJTC should be abolished.

It seems to me that this is of fundamental importance. In order to save a very small amount of money, the Government is proposing to undermine the principle of independent oversight of its own activities. Yet, given the demonstrably problematic nature of much frontline decision-making the need for independent oversight should be self-evident. To remove it will no doubt result in the Government being accused of trying to neuter criticism of its – generally quite poor – performance.

Anyone with a commitment to justice should be concerned about these proposals. They show, yet again, the Government’s disregard, or misapprehension, of the importance of strong institutions in sustaining confidence in contemporary social order.

Image: © maximmmmum – Fotolia.com


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