Administrative Justice in the 21st Century

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Administrative Justice in the 21st Century Edited by MICHAEL HARRIS and MARTIN PARTINGTON Centre for the Study of Administrative Justice, Faculty of Law, University of Bristol

HART PUBLISHING - OXFORD AND PORTLAND, OREGON 1999

Hart Publishing Oxford UK Distributed in North America (US and Canada) by International Specialized Book Services 5804 NE Hassalo Street Portland, Oregon 97213-3644 USA Distributed in Netherlands, Belgium and Luxembourg by Intersentia, Churchillaan 108 B2900 Schoten Antwerpen Belgium © The contributors severally, 1999 Hart Publishing is a specialist legal publisher based in Oxford, England. To order further copies of this book or to request a list of other publications please write to: Hart Publishing, 19 Whitehouse Road, Oxford, OX1 4PA Telephone: +44 (0)1865 434459 Fax: +44 (0) 1865 794882 email: [email protected] British Library Cataloguing in Publication Data Data Available ISBN l-901362-66-3(hardback) The publishers acknowledge, with thanks, the financial support from the Lord Chancellor's Department in the production of this volume. Views expressed in the book, are of course, those of the individual authors, not of the Lord Chancellor or his officials.

Typeset in Sabon by John Saunders Design & Production, Reading

Foreword The International Conference on Administrative Justice was a unique occasion. It was the first time since the Franks Report that such a conference had been organised on this important, though often overlooked, part of the justice system. The conference brought together many distinguished and experienced contributors from home and overseas, working in many different areas of this diverse field. I was delighted to have the opportunity to give an address to the conference, and to contribute to the lively discussions that took place. As the papers show, administrative justice is a very varied subject. It raises important issues, and challenges, for the future. I hope that the conference will be seen as a starting point, and that it will be possible to build on its achievements. Most of the papers in this collection have already developed from those originally delivered at the conference. I am sure that they will provide a welcome stimulus to further thought and discussion on the future of administrative justice.

c GEOFF HOON MP MINISTER OF STATE LORD CHANCELLOR'S DEPARTMENT

Contents Foreword Preface List of Contributors Table of Cases Table of Statutes Table of Statutory Instruments Introduction Michael Harris and Martin Partington Background to the conference Themes and issues Conclusion

v xv xvii xxi xxx xxxiv 1 1 4 17

Part 1 Initial Decision-Taking, Review and Appeals: General Issues 1 Administrative Justice: Is it Such a Good Idea?

21

TERENCE G. ISON

Introduction Primary adjudication Democracy The undermining of collective interests The impairment of efficiency Political realities System reform Proposals Conclusions

21 21 24 25 26 30 32 36 40

The Place of Formal and Informal Review in the Administrative Justice System

42

MICHAEL HARRIS

Introduction Matters of terminology The objections to formal review Observations and conclusions

42 43 46 51

Immigration and Asylum Appeals and Administrative Justice

55

JUDGE DAVID PEARL

Introduction International law

55 55

viii

Contents Domestic law The initial decision The present system and its defects Adjudicators'response The broader questions Conclusion

4 Sliding Scales of Justice at the End of the Century—A Cause for Complaints

57 57 59 61 62 64 66

LINDA MULCAHY

Introduction What are complaints? Top down and bottom up approaches to complaints Whose standards? The sliding scales of natural justice Is there a Plimsoll line? Recognition of other models Developing responsive principles Conclusion

66 68 70 75 76 77 78 79 81

Part 2 The New Administrative Law: The Citizens Charter, Ombudsmen and Other Developments for the Resolution of Complaints 5 The Citizens Charter and Administrative Justice

85

ALAN PAGE

Introduction The Charter Standards Complaints procedures Systems improvement Conclusions 6 A Question of Numbers: Managing Complaints Against Rising Expectations

85 86 88 91 95 98 99

T O M WILLIAMS AND TAMARA GORIELY

The development of complaints handling Trends since 1983: managing rising expectations Conclusion 7 Regulating Open Government: A Comparative Study of the UK and Canadian Regimes

99 102 100 112

DAVID CLARK AND JANE PEARSON

Introduction The discourse and practice of open government The ombudsman and open government The institutional design of FOI: the lessons of the Canadian experience

112 112 118 127

Contents 8 The Ombudsman and Administrative Justice

ix 133

MICHAEL HARRIS (ed.)

Introduction The ombudsman as "tomorrow's court" [Holland] Ombudsman or tribunal? The ombudsman as an adjudicative mechanism [Farrand] Defining the relationship between the courts and a public sector ombudsman [Thomas] Private sector ombudsmen and the public interest [Merricks] Quis custodiet ipsos custodes? The problem of proliferation [Barnes] What makes an ombudsman work? [Quinn] 9 New Procedures

133 136 137 141 144 147 151 156

MICHAEL HARRIS (ed.)

Introduction Internal review [Scampion] The role and function of the adjudicator's office [Rein and Lally] The independent monitor model [Anson] 10 Complaint Handling by Solicitors: Practice Rule 15—Waving or Drowning?

156 157 160 163 166

CHRISTA CHRISTENSEN, SUZANNE DAY AND JANE WORTHINGTON

Introduction The research The findings Conclusions and recommendations Appendices

166 170 175 193 205

Part 3 Collective Administrative Justice 11 Separation of Functions and Regulatory Agencies: Dispute Resolution in the Privatised Utilities

211

AILEEN MCHARG

Introduction The place of dispute resolution in utility regulation Internal separation of functions—US proceduralism and UK pragmatism Dispute resolution procedures—the current position Conclusions and recommendations for reform 12 Talking About Regulation

211 215 224 232 243 246

JULIA BLACK

Introduction Forms of conversation The reasons for conversations Justifying conversations: conversations and responsiveness

246 247 258 261

x

Contents Problems with conversations Structuring conversations Conclusion

263 267 276

Part 4 Recent Research 13 Child Support Appeal Tribunals: The Appellant's Perspective

281

RICHARD YOUNG, NICK WIKELEY AND GWYNN DAVIS

Introduction Research methodology Review and appeals under the Child Support Act 1991 Child support appeal tribunals Who are the appellants before child support appeal tribunals? Tribunals as an area to resolve disputes between parents Maintaining order at appeal hearings Advice and Representation Conclusion 14 The Developing Role and Structure of the Education Appeal System in England and Wales

281 282 283 285 286 288 289 293 295 296

NEVILLE HARRIS

Introduction Education reform and redress of grievance Education appeal committees The special education needs tribunal Conclusion 15 Parking Adjudications: The Impact of New Technology

296 298 300 318 324 326

CAROLINE SHEPPARD AND JOHN RAINE

Introduction Parking adjudicators The role of IT The impact of an IT-oriented adjudication system Conclusions

325 325 326 329 333

Part 5 The Influence of Human Rights on Administrative Justice 16 Human Rights, Ukases and Merits Review Tribunals: The Impact of Teoh's Case on the Administrative Appeals Tribunal in Australia

337

MARGARET ALLARS

Introduction Merits review prior to Teoh's case Teob 's case Application of Teoh's case Infiltration of human rights: beyond Teoh's case Conclusion

337 339 349 356 367 375

Contents 17 The Effect of a Constitutionally Protected Right to Just Administrative Action

xi 376

ROSEMARY LYSTER

Introduction The South African consitutional provision The need for constitutional protection: South African administrative law in decay What is administrative action? The right to just administrative action Administrative justice and "promoting an efficient administration" Privatisation and judicial review Conclusion 18 Human Rights and Hand-Rolling Tobacco: The Right to a Fair hearing

376 377 379 381 382 391 393 395 397

STEPHEN OLIVER QC

Introduction The case of Mr Hodgson General observations

397 397 401

Part 6 Management and Training 19 Maintaining Judicial Standards in the Independent Tribunal Service

407

GODFREY COLE

Introduction Background Training Evaluation Monitoring The future 20 Recruitment, Training and the Monitoring of Quality in the Planning Inspectorate

407 408 408 413 413 415 417

CHRIS SHEPLEY

Introduction: the planning inspectorate Recruitment Initial training Continuing training Monitoring Conclusion 21 The Selection, Training and Monitoring of Lay Tribunal Members (With Special Reference to the Independent Tribunal Service)

417 418 419 421 422 423 424

MICHAEL ADLER

Introduction Justifications for lay participation in tribunal decision making

424 426

xii

Contents Selection, training and monitoring in 1988 (Scottish Consumer Council study) Training in 1995 Conclusion

431 437 440

Part 7 Future Developments 22 The Reform of Social Security Adjudication

445

ROY SAINSBURY

Introduction Current models of adjudication and appeals The case for change The proposals for reforming appeals Evaluating the reforms Discussion and conclusion

23 Administrative Justice: Towards the Millennium, Towards Integration?

445 446 450 451 453 461

463

BRIAN THOMPSON

Introduction Mapping the terrain Emerging trends An integrated system for administrative justice? Conclusion

463 464 469 475 480

Part 8 - System Monitoring and Overview 24 The Role of the Council on Tribunals

485

LORD ARCHER OF SANDWELL

Introduction The Council on Tribunals: consultation, advice, special initiatives and training Conclusions

485 486 489

25 Monitoring Developments in Administrative law: The Role of the Australian Administrative Review Council

491

ALAN ROBERTSON SC

Introduction The Australian administrative law system The role of the Administrative Review Council The benefit of a separate and permanent administrative law advisory body The functions of the council The changing nature of government

491 491 493 495 502 503

Contents Future work of the council and final word Appendix 1 Appendix 2 26 Filling in the Gaps: A Standing Administrative Conference for the United Kingdom

xiii 505 507 509 519

DOUGLAS LEWIS

A brief history Why do we need a new body? From recipe to menu The overseas experience Back to the UK Conclusions

519 521 522 526 528 530

Conclusion 27 Future Developments

532

MARTIN PARTINGTON

Appendix: Standing Conference on the Resolution of Citizens' Grievances, A Proposal

539

Bibliography

547

Index

571

Preface The papers in this collection were all originally presented at an international conference on administrative justice held in Bristol, United Kingdom, on 2628 November 1997. The conference was held under the auspices of the University of Bristol's Centre for the Study of Administrative Justice (the Centre) and was timed to coincide with the 40th anniversary of the Franks Committee. Its principal objective was to reflect on the world of administrative justice since Franks' day. Those attending were an unusual—perhaps unprecedented—assemblage of policy makers, tribunal chairs, ombudsmen, administrators and researchers, all coming together to offer their views on the past achievements of the administrative justice system and its future prospects. The successful realisation of such an ambitious project of course depended on the contributions of many people and institutions. Now is the time to thank them for making both the conference and this collection of essays possible. In the first place, the running of so large a conference requires substantial financial backing. The generosity of the Lord Chancellor's Department in making a substantial grant to the Centre was indispensable to the decision to put on the conference and to its ultimate success. We are accordingly most appreciative of the confidence shown in our original idea by the relevant officials and by the Lord Chancellor himself. We are also most grateful to Geoff Hoon, MP both for coming to address the conference, and for agreeing to write the Foreword to this book. The Conference itself was organised by the Law Faculty's Conference Administrator, Ms Shirley Knights who, with her colleagues from the Law Faculty office, were not only able to anticipate all the problems that arose, but were even able to address the "risk analysis" prepared by the LCD! The conference benefited from the presence at its opening of the ViceChancellor of the University of Bristol, Sir John Kingman, to whom the Centre is most grateful. We were also able to welcome a number of distinguished guests to the Conference Dinner, including Lord Woolf of Barnes, who kindly gave the after-dinner address. The preparation of this volume has depended on the willing co-operation of speakers to revise their papers and polish their texts, all within a reasonably tight timetable. The final preparation of the text for submission to the publishers has been expertly undertaken by Mrs Wendy Brett, with the assistance of Mrs Pat Hammond and Ms Lorraine Dyer. We are also indebted to Ms Monica Fletcher for preparing the Index and Tables. The publishers,

xvi

Preface

Hart Publishing, have been their usual model of patience and support. To all of them we are most grateful. Michael Harris Martin Partington Centre for the Study of Administrative Justice, Bristol 2 October 1998

Contributors Michael Adler is Professor of Socio-Legal Studies at the University of Edinburgh and for many years an SSAT member. He has published extensively on the socio-legal aspects of public law and social policy, most recently (with Roy Sainsbury) Adjudication Matters (1998). Margaret Allars is Associate Professor of Law at the University of Sydney. She writes extensively in the field of Australian administrative law and is author of the Administrative Law title in Halsbury's Laws of Australia. Dame Elizabeth Anson is a Barrister and Independent Monitor to Parliament for the Refusal of Entry Clearance (Overseas). Formerly she was an Immigration Adjudicator and has presided over a number of administrative bodies. Lord Archer of Sandwell is Chairman of the Council on Tribunals. As Peter Archer MP he was for six years Solicitor General. He has written extensively on law and politics. Michael Barnes has recently retired as Chairman of the British and Irish Ombudsman Association. Formerly he was Legal Services Ombudsman for England and Wales. Julia Black is Lecturer in Law at the London School of Economics. Her principal field of research is regulation where she has published extensively, most recently (with Paul Muchlinski and Paul Walker) Commercial Regulation and Judicial Review (1998). Christa Christensen is Senior Lecturer in Law at the University of the West of England and a part-time Industrial Tribunal Chairman. Formerly she practised as a solicitor and now researches and writes in the field of professional regulation. David Clark is Principal Lecturer in Politics at the Southampton Institute. His main fields of research are comparative public policy and management with recent publications on governance and European public management developments. Gwynn Davis is Professor of Socio-Legal Studies at the University of Bristol. His extensive research and publication has been principally in the fields of family law, especially process issues, and criminal justice. Godfrey Cole is a Full-Time Chairman in the Independent Tribunal Service, with a special interest in judicial studies and the training of tribunal chairmen. Formerly he was Head of the Law School at the University of Westminster. Suzanne Day is currently a researcher on a project examining the mechanisms of complaint against solicitors. Formerly she practised as a solicitor in the UK and New Zealand.

xviii

Contributors

Julian Farrand, a Solicitor, is Pensions Ombudsman and Chairman of the Pensions Compensation Board. Formerly he was Insurance Ombudsman, a Law Commissioner and Professor of Law at the Victoria University of Manchester and has extensive legal publications. Tamara Goriely is a partner at TPR Social Sc Legal Research and Research Fellow at the Institute of Advanced Legal Studies. Her fields of research include legal services, legal aid and civil procedure. She is co-author of a recent book, Resourcing Civil Justice (1997). Michael Harris is Lecturer in Law at the University of Bristol and Deputy Director of the Faculty's Centre for the Study of Administrative Justice. He has published in both the United Kingdom and Australia in the areas of administrative law and public tort. Neville Harris is Professor of Law at Liverpool John Moores University. His specialist fields of research are education law and social security law where he has published extensively. He edits (with Nick Wikely) the Journal of Social Security Law. Tony Holland, a Solicitor, is Principal Ombudsman to the Personal Investment Authority Bureau Limited and Chairman of the Executive Board of Justice. He is a former President of the Law Society and has extensive legal publications. Terence Ison is Emeritus Professor of Law at Osgoode Hall Law School and practises law in British Columbia. He is the author of several books, especially in the areas of tort and accident compensation and of the highly influential study, The Administrative Appeals Tribunal of Australia (1989). Christine Lally is a Chartered Accountant and Adjudication Officer in the Adjudicator's Office. Douglas Lewis is Professor of Public Law at the University of Sheffield and Director of the Centre for Socio-Legal Studies. He has published widely in the field of public law and administration and is co-author of a recent book, Promoting Participation: Law or Politics? Rosemary Lyster is Lecturer in Law at the University of Sydney. Her specialist fields of research and publication include administrative law. She wrote the administrative law chapters in The New South African Constitutional and Administrative La«>(forthcoming). Aileen McHarg is Lecturer in Law at the University of Bristol. Her principal interests are constitutional and administrative law, with a current research specialisation and extensive publications in the field of the privatisation and regulation of utility industries. Walter Merricks is a Solicitor and Ombudsman to the Insurance Ombudsman Bureau. He is a former Law Society official, law centre director, law teacher and writer for the New Law Journal. Linda Mulcahy is Reader in Public Law at the University of North London. She carries out extensive empirical research in the socio-legal area, especially in relation to public health and disputes. Her recent publications

Contributors

xix

include work on public sector disputes and systems analysis in relation to the NCC and the NHS. Stephen Oliver, a Barrister, is Presiding Special Commissioner and President of the VAT and Duties Tribunals. He is a former Recorder and Circuit Court Judge and edits Potter and Monroe's Tax Planning. Alan Page is Professor of Public Law at the University of Dundee and an Honorary Fellow of the Society of Advanced Legal Studies. His fields of interest include constitutional law where he is currently completing a book on the place of the executive. Martin Partington is Professor of Law, Pro-Vice-Chancellor and Director of Centre for the Study of Administrative Justice at the University of Bristol. He is a member of both the Council on Tribunals and the Civil Justice Council and has researched and published extensively in the field of administrative justice. David Pearl is a Circuit Judge and President of the Immigration Appeal Tribunal. Formerly he was Chief Adjudicator and before that taught law at the Universities of Cambridge and East Anglia. He publishes extensively in the fields of family law and immigration law and is Consultant Editor of Butterworths Immigration Law Service. Jane Pearson is Senior Lecturer in Law at the Southampton Institute. Her teaching and research interests lie principally in the fields of public law and medical law. Paulyn Marrinan Quinn is a Barrister, admitted to both the Irish and English Bars. Until recently she served as Ireland's first Insurance Ombudsman. John Raine is Professor of Management in Criminal Justice in the School of Public Policy at the University of Birmingham. His specialist fields are management and policy agendas in the criminal courts. He has twice been commissioned by the Council of Europe to advise on the impact of the new technology in the administration of justice. Andrew Rein is a barrister and Adjudication Officer in the Adjudicator's office. Formerly he taught philosophy at the University of Oxford. Alan Robertson is a Barrister at the New South Wales Bar specialising in constitutional and administrative law. He was until recently a part-time member of the Australian Administrative Review Council. Roy Sainsbury is Senior Research Fellow in the Social Policy Unit at the University of York. He has conducted major research in a number of social policy areas, most recently publishing An Analysis of Responses (1997) to the government's green paper on social security adjudication which preceded the Social Security Act 1998. John Scampion is a Solicitor and Social Fund Commissioner for Great Britain and Northern Ireland. He is former Chief Executive of a metropolitan borough where he developed his special expertise in quality management in the public sector. Chris Shepley is an Architect and Planner and Chief Planning officer and Chief

xx

Contributors

Executive of the Planning Inspectorate Executive Agency. A former Visiting Professor at the University of Manchester and member of the Arts Council's Architecture Advisory Panel, he has written extensively in his specialist field of planning. Caroline Sheppard is a Barrister and Chief Parking Adjudicator. She publishes extensively on the topic of traffic and parking in legal and other specialist journals in the field. Patricia Thomas is Commissioner for Local Administration in England. Formerly she was Professor of Law and Head of Department at the University of Central Lancashire. As a former tribunal chair she has extensive experience of administrative adjudication. Brian Thompson is Senior Lecturer in Law at the Liverpool Law School. His principal fields of research and publication are constitutional and administrative law. He has a particular interest in both public and private sector Ombudsmen. Nick Wikeley is Professor of Law at the University of Southampton. He conducts empirical research and publishes extensively in the field of social security law: q.v. Judging Social Security (with John Baldwin and Richard Young) and edits (with Neville Harris) The Journal of Social Security Law. Tom Williams is a partner at TPR Social &c Legal Research. He has a particular interest in the field of complaint handling, having worked with the Citizen's Charter Complaints Task Force. His extensive writing on the topic includes a recent book, Dealing With Customer Complaints (1996). Jane Worthington is Senior Lecturer in Law at the University of the West of England. Formerly she taught on the Legal Practice Course at Bristol University and was a practising solicitor. Richard Young is Deputy Director of the Centre for Criminological Research at the University of Oxford and Fellow of Pembroke College. He is coauthor (with John Baldwin and Nick Wikeley) of Judging Social Security, an empirical study of welfare benefits adjudication.

Table of Cases Administrator, Nata! v. Sibiya 1992 (4) SA 532(A) (SA) 393 ALA Schechter Poultry Corp v. US 295 US 295 (1935) [US] 224 Annetts v. McCann (1990) 170 CLR 596 (Australia) 355 Ansett Transport Industries (Operations) Pty Ltd v. Commonwealth of Australia (1977) 139 CLR 54(Australia) 513 Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1KB 223 348,385-6 Attorney-General, Eastern Cape v. Blom 1988 (4) SA 645 (A) (SA) 387 Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629 351 Australian Fisheries Management Authority i/.PW Adams Pty Ltd (1995) 61 FCR 314 (Australia) 363 Baloro and others v. University of Bophuthatswana and others 1995 (4) SA 197 (BSC) (SA) 394 Barday v. Passport Control Officer 1967 (2) SA 347 (A) (SA) 385 Bates v. Lord Hailsham [1972] 1 WLR 1373 227 Breen v. Amalgamated Engineering Union [1971] 2 QB 175 389 Browne v. Minister for Immigration and Multicultural Affairs (unreported, Federal Court, 29 May 1998) (Australia) 348,363,372-5 Bugdaycay v. Secretary of State for the Home Department [1987] AC 514, [1987] 1 All ER 940 61 Christmas v. Hampshire County Council [1998] ELR 1 (QBD) 299 Claude Neon Ltd v. City Council of Germiston and Another 1995 (5) BCLR 554 (W) (SA) 381, 393 Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) 3 ALD74 (Australia) 510 Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 351 Customs and Excise Commissioners v. Boxall (1996) (unreported) 398, 399 Customs and Excise Commissioners v. Carrier [1995] 4 All ER 38 398, 399 Dawnlawn Beleggings Edms (Bpk) y. Johannesburg Stock Exchange 1983 (3) DS344 (W) (SA) 393 Department of Immigration and Ethnic Affairs v. Ram (1996) 41 ALD 517 (Australia) 365,370-1 Drake v. Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 (Australia) 338, 340, 341, 358, 361, 373 Du Plessis and others v. De Klerk and another CCT 8/95 (SA) 395 Du Preez and Another v. Truth and Reconciliation Commission 1997 (4) BCLR 531 (A) (SA) 388-9

xxii

Tables

Field v. Clark 143 US 649 (1892) [US] 224 Flentjar v. Repatriation Commission (1997) 48 ALD 1 (Australia) 368 Furnell v. Whangarei High Schools Board [1973] AC 660 389 General Newspapers Pty Ltd v. Telestra Corporation (1993) 117 ALR 629 (Australia) 382 Gerah Imports v. Minister for Industry, Technology and Commerce (1987) 14 ALD 351 (Australia) 346 GNH Office Automation CC v. Provincial Tender Board and Others 1996 (9) BCLR 1144 (Tic) (SA) 381 Government of the Republic of South Africa v. Sunday Times Newspaper 1995 (2) SA221 (T) (SA) 386 Gunaleela v. Minister for Immigration and Ethnic Affairs (1987) 74 ALR 263 (Australia) 347, 349 Haoucher v. Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 (Australia) 343,349,351, 362 Heshmati v. Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 123 (Australia) 348, 349 Hindi v. Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 (Australia) 368 IBM v. EC Commission [60181] [1981] 3 CLMR 635, [1981] ECR2639 254,264,368 Hodgson v. Customs and Excise Commissioners [1997] EuLR 116 [1996] V&DR 200 397-403 Hugo v. State President of the Republic of South Africa 1996 (6) BCLR 876 (D) (SA) 382 Ijaola v. Westminster College (1997) 7 March (QBD) (unreported) 299 Immigration and Naturalization Services v. Chadha (1983) 462 US 919 (US) 225 Inland Revenue Commissioners v. National Federation of Self-employed and Small Businesses Ltd [1982] AC 617 469 In re HK (An infant) [1967] 2 QB 617 362 Jalal v. Minister for Immigration and Multicultural Affairs (unreported, AAT, No V96/997,15 August 1997) (Australia) 362 Jeeva & Others v. Receiver of Revenue, Port Elizabeth & Others 1995 (2) SA433 (SE) (SA) 388 Khan v. Minister for Immigration and Ethnic Affairs (unreported, Federal Court, 11 December 1987) (Australia) 368 Kioa v. West (1985) 159 CLR 550 (Australia) 345-6, 347, 351, 355, 370, 374 Kruse v. Johnson [1898] 2QB 91 386 Lam v. Minister for Immigration and Multicultural Affairs (unreported, Federal Court, 4 March 1998) (Australia) 354, 357-8 Lamprecht and Another v. McNeillie 1994 (3) SA 665 (A) (SA) 395 Lancome SA and Cosparfrance Netherland BV v. Etos BV and Albert Heijn Supermart BV [1980] ECR 2511; [1981] 2 CMLR 164 254

Tables

xxiii

Leech v. Deputy Governor of Parkhurst Prison [1988] AC 533 474-5 Lek v. Minister for Immigration, Local Government and Ethnic Affairs (1981) 35 FCR 418 (Australia) 368 Lim v. Minister for Immigration and Ethnic Affairs (1992) 176 CLR 1 (Australia) 351 Liversidge v. Anderson [1942] AC 206 HL 383-4 Lloyd v. McMahon [1987] AC 625 HL 77 L'Oreal v. De Nieuwe AMCK [1980] ECR 3775; [1981] 2 CMLR 241 254 Marleasing SA v. La Comercial Internacional de Alimentacion SA (C—106/89) [1992] CMLR 305, [1995] BCC 421 ECJ 401 Matthews v. Eldridge 424 US 319 (1976) [US] 225 Matiso and others v. Commanding Officer, Port Elizabeth Prison and Another 1994 (4) SA 592 (SE) (SA) 379 Matroos v. Coetzee 1985 (3) SA 474 (SE) (SA) 383 Mbane v. Minister of Police 1982 (1) SA 223 (T) (SA) 383, 384 Mercury Communications Ltd v. Director General of Telecommunications [1996)1 WLR 48 275 Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24 (Australia) 370 Minister for Foreign Affairs and Trade v. Magno (1992) 31 FCR 123 (Australia) 348,349 Minister for Immigration and Ethnic Affairs v. Gungor (1982) 4 ALD 575 (Australia) 341 Minister for Immigration and Ethnic Affairs v. Teoh (1995) 183 CLR (Australia) 12-13,273, 337-9,346,348, 349,349-351,351,352,353, 354,355,356-361,362,363, 364,365,366,367-375 Minister for Immigration Local Government and Ethnic Affairs v. Gray (1994) 50 FCR 189 (Australia) 340,347,349 Minister of Education, Transkei v. Mgole 1994 (1) SA 612 (TkA) (SA) 385 Minister of Justice, Transkei v. Gemi 1994 (3) SA 28 (TkA) (SA) 389 Minister of Law and Order v. Hurley 1986 (3) SA 568 (SA) 383, 385 Mnyani and others v. Minister of Justice and others 1980 (4) SA 528 (Tk)(SA) 383 Moodley v. Minister of Education and Culture, House of Delegates 1989 (3) SA 221 (A) (SA) 387 Mpisi v. Trebble 1994 (2) SA 136 (A) (SA) 385 Natal Indian Congress v. State President 1989 (3) SA 588 (D) (SA) 383 Natal Newspapers v. State President of the RSA 1986 (4) SA 1109(N)(SA) 383 National Transport Commission v. Chetty's Motor Transport (Pty) Ltd 1972 (3) SA 726 (AD) (SA) 386

xxiv

Tables

Nevistic v. Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 (Australia) 340 Nikac and others v. Minister for Immigration, Local Government and Ethnic Affairs [1990] 92 ALR 167 (Australia) 339,343,346 Omar v. Department of Immigration and Multicultural Affairs (unreported) Federal Court, 11 December 1997; 22 January 1998; (28 January 1998) (Australia) 365-6,371 Omar v. Minister of Law and Order 1987 (3) SA 859 (A) (SA) 387 O'Reilly v. Mackman [1983] 2 AC 237 468 Page v. Hull University Visitor [1993] AC 682 264 Panama Refining Co v. Ryan 293 US 388 (1935) (US) 224 Pearlberg t/.Varty [1972] 1WLR 534 389 Pepper v. Hart 1993 AC 593 HL 123 Phelps v. The Mayor and Burgesses of the London Borough of Hillingdon [1998] ELR 38 (QBD) 299 Podlas v. Cohen and Bryden NNO and others 1994 (4) SA 662 (T) (SA) 389,390 Procureur de la Republique v. Giry and Guerlain [1980] ECR 2327; [1981] 2CMLR94 254 P W Adams Pty Ltd v. Australian Fisheries Management Authority (1995) 60 FCR 387 (Australia) 363 P W Adams Pty Ltd v. Australian Fisheries Management Authority (1998) 49 ALD68 (Australia) 363 R v. Appeal Committee of Brighouse School ex p G and B [1997] ELR 39 ..303 R v. Birmingham City Justices, ex p Chris Foreign Foods (Wholesalers) Ltd [1970] 1 WLR 1428 389 R v. The Board of Governors of Stoke Newington School and Others ex p M [1994] ELR 131 314 R v. Bromley LBC ex p C and Others [1992] 1 FLR 174 302 R v. Camden London Borough Council and the Governors of the Hampstead School ex p H [1996] ELR 360 CA 310 R v. Chief Constable of the Merseyside Police ex parte Calveley [1986] QB424 473-4 R v. Commissioner for Local Administration ex p Croydon London Borough Council and another 1989 1 All ER 1033 143,302 R v. Deputy Governor of Parkhurst Prison ex p Leech[1988] AC 533 R v. Director General of Gas Supply ex p Smith Lexis 31 July 1989 ....330, 323 R v. Director General of Telecommunications ex p British Telecommunications pic Lexis 20 December 1996 219 R v. Essex County Council ex p Jacobs [1997] ELR 190 302 R v. Gaming Board for Great Britain, ex p Benaim and Khaida [1971] 2QB417 389 R v. Governing Body of Dame Alice Owen School ex p S (27 October 1997) (QBD) (unreported) 302

Tables

xxv

R v. The Governors of Bacon's City Technology College ex p W (1998) 23 February (QBD) (unreported) 312,318 R v. Governors of St Gregory's Roman Catholic Aided High School and Appeals Committee ex p M [1995] ELR 290 310, 312 R v. Governors of the Bishop Challoner Roman Catholic School ex p Choudhary [1992] 2 AC 182, [1992] 3 All ER 277 (HL) 302 R v. Hillingdon London Borough Council, ex parte Royco Homes Ltd [1974] QB 720 R v. Huntingdon District Council ex parte Cowan [1984] 1 WLR 501 473 R v. Immigration Appeal Tribunal ex p S The Times 25 February 1998 QBD 62 R v. IRC ex p. Matrix Securities [1994] STC 272 251 R v. IRC ex p. MFK Underwriting Agencies [1990] 1 WLR 1545 251, 269 R v. IRC ex p. Preston [1985] 2 WLR 836 HL 251 R v. IRC ex p. Unilever pic [1996] STC 841 251, 269 R v. Insurance Ombudsman Bureau ex p Aegon Life Assurance Limited 1995 Lloyds Reinsurance Law Reports 101,1994 COD 426 139-140 R v. Lancashire County Council ex p M [1994] ELR 478 304 R v. LAUTRO ex p Ross [1993] QB 17 229 R v. Leicestershire City Council Education Appeal Committee ex p Tarmohamed [1997] ELR 48 34 R v. Liverpool Corporation ex p Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299 389 R v. Lord Chancellor, ex p Hibbit andSaunders (A firm) The Times 12 March 1993 [1993] COD 326 382 R v. Northamptonshire County Coucil ex p W. (1997) 28 July (QBD) (Unreported) 310,315 R v. Panel on Take-overs and Mergers ex p Datafin [1987] QB 815 273, 394 R v. The Royal Borough of Kingston upon Thames ex p Kingswell [1992] 1 FLR 182 302 R v. Secretary of State for Health ex p US Tobacco International Inc [1992] QB 353 227 R v. Secretary of State for the Home Department ex p Brind [1991] 1 AC 696 HL 12, 337, 348 R v. Secretary of State for the Home Department ex parte Swati [1986] 1 WLR 4772 474 R v. Secretary of State for the Home Department and Another ex p Robinson [1997] 3 WLR 1162, [1997] 4 All ER 210 CA 61 R v. Shadow Education Committee of the Greenwich London Borough Council ex p The Governors of John Ball Primary School (1989) 88 LGR589(CA) 302 R v. Solihull Metropolitan Borough Council ex p W 1997 ELR 489 QBD....314 R v. South Glamorgan Appeals Committee ex p Evans (1984) CO/197/84...302

xxvi

Tables

R v. Staffordshire County Council Education Appeals Committee ex p Ashworth (1997) 9 Admin LR 373 [1997] COD 132 310,314 R v. Wiltshire County Council ex p Razazan [1997] ELR 370 (CA) 302 Re the Accession of the Community to the European Human Rights Convention (2-94) 28 March 1996, [1996] 2 CMLR 265 399 Re Alvarado and Department of Immigration and Multicultural Affairs (unreported, AAT, No W971239,31 March 1998) (Australia) 372 Re Arias and Department of Immigration and Multicultural Affairs (1996) 44 ALD 679 (Australia) 359 Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 (Australia) 340 Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 (Australia) 340 Re Brown and Commissioner for Superannuation (1995) 38 ALD 344 (Australia) 356 Re Davey Browne and Minister for Immigration and Multicultural Affairs (unreported, AAT, No N97/806, 21 November 1997) (Australia) 359,372 Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Australia) 339,340,341,358, 361,366, 513 Re Edwards and Minister for Immigraton and Multicultural Affairs (unreported, AAT, 19 May 1998) (Australia) 360 Re Galang and Minister for Immigration and Multicultural Affairs (unreported, AAT, No N96/1119,3 April 1998) (Australia) 358 Re Grandlouis and Minister for Immigration and Multicultural Affairs (unreported, AAT, No N96/1188,15 August 1997) (Australia) 360 Re Gungor and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 225 (Australia) 341 Re Holani and Department of Immigration and Multicultural Affairs (1996) 44 ALD 370 (Australia) 360 Re Ilbay and Minister for Immigration and Multicultural Affairs (1996) 44 ALD 377 (Australia) 356,359,360,361 Re Irving and Minister for Immigration and Multicultural Affairs (unreported, AAT, No N96/402,18 November 1997) (Australia) 359 Re Ishri and Minister for Immigration and Ethnic Affairs (unreported, AAT, No N94/319,16 September 1994) (Australia) 358 Re Jalal and Minister for Immigration and Multicultural Affairs (unreported, AAT, No V96/997, 15 August 1997) (Australia) 357 Re Jeropoulos and Minister for Immigration and Ethnic Affairs (1980) 2 ALD 891 (Australia) 342 Re Kwong Leung Lam and Minister for Immigration and Multicultural Affairs (unreported, AAT, No N96/364,11 June 1997) (Australia) 357-8,359

Tables

xxvii

Re Medyanto and Minister for Immigration and Multicultural Affairs (unreported, AAT, No N97/49, 28 November 1997) (Australia) 359, 360 Re Mulugeta and Minister for Immigration and Ethnic Affairs (unreported AAT NO W92/178,19 January 1996) (Australia) 356 Re Noonan and Minister for Immigration and Multicultural Affairs (unreported, AAT, 19 May 1998) (Australia) 360 Re Omar and Minister for Immigration and Multicultural Affairs (unreported, AAT, No V97/768, 26 September 1997) (Australia) 365-6 Re Paull and Department of Immigration and Multicultural Affairs (unreported, No W97/208, 5 February 1998) (Australia) 359 Re Pergamon Press Ltd [1971] Ch 388 389 Re P W Adams Pty Ltd and Australian Fisheries Management Authority (No2) (1995) 38 ALD 435 (Australia) 363 Re Yad Ram and Department of Immigration and Ethnic Affairs (unreported, AAT, No Q95/646,19 December 1995) (Australia) ..363-5,375 Re Renata and Minister for Immigration and Ethnic Affairs (unreported, AAT, No N93/742, 25 February 1998) (Australia) 357 Re Salameh and Department of Immigration and Ethnic Affairs (unreported.AAT, No N95/692,26 October 1995) (Australia) 362 Re Secretary, Department of Social Security and Khaldea Begum (unreported, AAT, NoN97/1631,15 April 1998) (Australia) 358 Re Secretary, Department of Social Security and Mei Lin (Grace) Chin (unreported, AAT No W97/80, 6 February 1998) (Australia) 356 Re Smirnov and Minister for Immigration and Multicultural Affairs (unreported, AAT, No NV97/781,19 December 1997) (Australia) ...359, 366 Re Sui and Minsiter for Immigration and Ethnic Affairs (1996) 42 ALD 163 (Australia) 359,360, 363, 371, 372 Re Thomson and Minister for Immigration and Multicultural Affairs (unreported, AAT, N97/595,16 July 1997) (Australia) 359 Re Todea and Minister for Immigration and Ethnic Affairs (1994) 34 ALD 639 (Australia) 348, 349 Re Towers and Department for Immigration and Multicultural Affairs (unreported, AAT No W98131, 21 May 1998) (Australia) 372 Re Tran and Minister for Immigration and Multicultural Affairs (unreported, AAT No N96/1996, 7 November 1997) (Australia) 354 Re Trigueros and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 611 (Australia) 356 Re Vaitaiki and Minister for Immigration and Ethnic Affairs (unreported, AAT, No N95/705,14 November 1995) (Australia) 362,367-8 Annie Rea v. Secretary of State for the Home Department (14870) (IAT) 64 Rewe-Zentralfinanz v. Saarland [1976] ECR 1979; [1997] 1 CMLR 533 399 Ridge v. Baldwin [1964] AC 40 227 Romans v. Williams NO 1997 (9) BCLR 1267 (C) (SA) 386

xxviii

Tables

Roy v. Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624 465 S v. Makwanyane 1995 (6) BCLR665 (CC) (SA) 377 S (A Minor) v. Special Educational Needs Tribunal and the City of Westminster [1996] 1WLR 382 (CA) 321 Schermbrucker v. Klindt NO 1965 (4) SA 606 (A) (SA) 385 Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch 149 389 Schouten and Meldrum v. The Netherlands [1995] EHRR 432 ECHR 400 Seifert and Lynch v. Pensions Ombudsman 1997 1 All ER 214 Ch D 79 Shabalala v. Attorney-General of the Transvaal 1995 (12) BCLR (CC) (SA) 377 South Africa Defence and Aid Fund v. Minister of Justice 1967 (1) SA 263 (A) (SA) 387 South Glamorgan County Council v. L and M [1996] ELR 400 (QBD) 387 Staatspresident v. United Democratic Front 1988 (4) SA 830 (A) (SA) 382 Staatspresident v. United Democratic Front (1987) (3) SA 296 (N) (SA) 384 Standard Bank of Bophuthatswana Ltd v. Reynolds NO 1995 (3) SA 74 (B GD) (SA) 386 State of South Australia v. O'Shea (1987) 163 CLR 378 (Australia) Teoh v. Minister for Immigration, Local Government and Ethnic Affairs (1994) 32 ALD 420 (Australia) 368 Theron v. Ring van Wellington van die NG Sendingkerk in Suid-Afrika 1976(2)SA1(A) (SA) 386,394 Todea v. Minister for Immigration and Ethnic Affairs (1994) 35 ALD 735 (Australia) 349 Tsang v. Minister van Binnelandse Sake 1995 (1) SA 185 (T) (SA) 390 Turner v. Jockey Club of South Africa 1974 (3) SA 633 (A) (SA) 394, 395 Turner v. Minister for Immigration and Ethnic Affairs [1981] 35 ALR 388 (Australia) 368 Uitenhage Local Transitional Council v. Txwiz and Others 1997 (8) BCLR 1115 (SE) (SA) 382,396 Vaitaiki v. Minister for Immigration and Ethnic Affairs (unreported, Federal Court, 15 January 1998) (Australia) 367-70,371 Vaitaiki v. Minister for Immigration and Multicultural Affairs (unreported, Federal Court, 20 June 1997) (Australia) 368 Van Huyssteen NO &C Others v. Minister of Environmental Affairs and Tourism &c (US) Others 1995 (9) BCLR 1191 (C) (SA) 387 Vermont Yankee Nuclear Power Corporation v. Natural Resources Defence Council (1978) 435 US 519 224 Visagie v. State President 1989 (3) SA 859 (A) (SA) 384-5 W (A minor) v. Education Appeal Committtee of Lancashire County Council [1994] ELR 530 CA 304 Winter and others v. Administrator-in-Executive Committee and another 1973 (1) SA 873 (A) (SA) 387

Tables

xxix

Wiseman v. Borneman [1971] AC 297 (HL) 389 Xu v. Minister van Binnelandse Sake 1995 (1) SA 185 (T) (SA) 388, 390 Yuriko Limited v. Minister of Trade and Industry and Others 1995 (11) BCLR 1453 (T) (SA) 386 Zwelibanzi v. University of Transkei 1995 (1) SA407 (TkGD) (SA) 387 LGO Reports 90/A/1462 (26 September 1991) 91/A/0930 (27 August 1992) 91/C/1595 (11 November 1992) 92/A/3573(7Julyl994) 93/C.3220 (6 June 1995) 95/A/1033 (17 April 1997) 95/A/4400 (31 October 1996) 95/B/1501 (16 July 1996) 95/C/1811 95/C/1721 (21 October 1996) 95/C/2263 (17 December 1996) 96/A/1034and 1040 (14 January 1997) 96/B/0503 (28 July 1997) 96/C/0509/0510/0598/0748 andl002 (28 January 1997) 96/C/729 (21 October 1996) 96/C/0797 (17 December 1996) 96/C/0927 (9 October 1996) 96/C/1148 (17 December 1996) , 96/C/1517 (6 March 1997) 96/C/1546 (17 October 1996) 96/C/1667 96/C/1737 (23 October 1997) 96/C/2055 (17 December 1996) 96/C/2783 (30 September 1997) 96/C/2859 (20 February 1997) 96/C/3692 and 3693 (5 August 1997) 97/a/1007,1028.1036 and 1486 (18 March 1998)

305 303 303

PCA Case A/4/94 in HC 1994-5,14 A/5/94 in HC 1994-5,14 A/20/95 (in HC 1994-5,758)

124 124 125

302 302 304 313 313 305 310 304 305 305 305 305 305 305 314 303 305 303 305 305 305 305 303

Table of Statutes Access to Health Records Act 1990....118 Access to Information Act 1982 [Canada] 129,130,131,132, s.68 131 Access to Medical Reports Act 1988 ..118 Access to Personal Files Act 1987 118 Administrative Appeals Tribunal Act 1975 [Australia] 496,509, 510

s.7(2)(d) s.27 s.27(l) s.35 s.43(l) s.49 s.49 (l)(a) s.50 s.51

512 510 510 514 339 495, 507 495 495, 507 493, 507-8

Administrative Decisions (Effect of International Instruments) Act 1996 s.2 [South Australia] 353 Administrative Decisions (Judicial Review) Act 1977 [Australia] 491 s.5(2)(f) 368 Administrative Procedure Act 1946 [US] 224, 225, 226 s.554 224 ss.556-7 224 s.557 225 s.706 225 Aliens Act 1947 [Australia] 518 Archives Act 1983 [Australia] 492 Asylum and Immigration Appeals Act 1993 56, 60 s.9 60 s.10 (3AA) 163 Australian Heritage Commission Act 1974 [Australia] 516 Broadcasting and Television Act 1942 [Australia] 511 Child Care Act 1972 [Australia] 511 Child Support Act 1991 281, 281-2, 284,446 S.13(1) and (2) S.13(3) and (4)

s.16

284 284

285

s.17 ss.17-19 s.18 s.19 S.19(1)

s.20

53 285 285 285,286 285 52-3

42

s.20(l) 285 s.20(3) 286 s.20(4) 53,286 s.24 286 s.46(7) 284 Child Support Act 1995 284,285 Schedule 3 paras 7(2) and (3) 286 Children Act 1989 322 s.l 312 Commissioner for Complaints Act (Northern Ireland) 1969 463 s.7 467 Companies Act 1973 (SA) ss. 147 and 148 388 Competition Act 1998 217, 240,242 s.51 240 ss.46-9 242 Competition and Service (Utilities) Act 1992 102,316,217,232 Consumer Protection Act 1987 100 Customs Act 1901 [Australia] s.72(4) 517 Data Protection Act 1984 118 Disability Discrimination Act 1992 [Australia] 356 Disability Living Allowance and Disability Working Allowance Act 1991 s.33(l) 42 Education Act 1944 298, 299 ss.68 and 99 300 Education Act 1980 143,300,301 s.6(3)(a) 299 Education Act 1993 300, 318 Education Act 1996 301 s.159 (1) 307 s. 160 (1) 296 s.333(2) 319 s.409 299

Tables s.411(3)(a) s.423(5) s.470 ss.496 and 497 Sch. 16 para.7A para.8 Sch. 23, para 6 Sch. 33 para 11 Education Act 1997

s.7 s.7(4) s.8 s.12 s.13

299,302 296 296 3 311 311 311 301,307 301 302 311,316

310,311, 313 310 310 306 306

Education Reform Act 1988 102 s.23 299 Electricity Act 1989 s.3(6) 239 s.7(3)(c) 216 s.21(b) 220 s.23 216 s.23(l) 232 s.23(lA) 218 ss.25-28 216 s.26 232 s.27(l) 242 s.39 216 s.39 (5A) 218 S.42B 234 S.44A 216 s.45 216 s.46 216 Sch.7, para 1(7) 216 Fair Trading Act 1973 100 Financial Services Act 1986 100, 271 s.98 138 Freedom of Information Act 1982 [Australia] 492, 494 Gas Act 1986 217 s.7(8)(c) 216 s.14

223

S.14A S.14A (2) S.14A (3) S.15A ss.28-30 s.29 s.30(l) s.31 s.32

216 216 232 216 216 232 242 216 216

xxxi

S.33A 216 S.33A (2) 216 s.33E 234 Schedule 5, paras 1-4 216 Health and Social Services and Social Security Adjudications Act 1983 ...446, 456 Health Service Commissioners Act 1993 463 Health Service Commisioners (Amendment) Act 1996 463 s.6 476 Health Service (Scotland) Act 1972 ....463 Housing Act 1985 s.181 142 Human Rights Act 1998 13, 230-231, 399,401-3 s.3 401 Human Rights Commission Act 1981 [Australia] 345 Human Rights and Equal Opportunity Act 1986 [Australia] 345 Immigration Appeals Act 1969 s.9 59 Income and Corporation Taxes Act 1988 s.444A(8) 251 s.765 251 Insolvency Act 1936 (SA) s.152 388 Internal Security Act 1982 (SA) s.29 384 s.29(6) 385 Jobseekers Act 1995 s.ll 42 Judiciary Act 1903 [Australia] 491 Landlord and Tenant Act 1985 142 Law Reform Commission Act 1973 [Australia] 507 Local Government (Access to Information) Act 1985 118 Local Government Act 1974 s.26(5) 472 s.26(6) 141 Local Government (Scotland) Act 1975 Migration Act 1958 [Australia]...512, 513 s.449 333 s.501 354 s.501(2)(a) 354 Migration Reform Act 1992 [Australia] 339

XXX11

Tables

Model State Administrative Procedure Act 1981 [US] 225 National Health Service and Community Care Act 1990 102 National Health Service Reorganisation Act 1973 463 Ombudsman Act 1976 [Australia] 507 Parliamentary Commissioner Act 1967 463 s.8(4) 123 Parliamentary Commissioner Act (Northern Ireland) 1969 463 Pension Schemes Act 1993 s.146 (2) 138 Prevention of Frauds (Investment) Act 1958 271 Privacy Act 1998 [Australia] 492 School Inspections Act 1996 296 Social Security Act 1986 446 Social Security Act 1991 [Australia] ...356 Social Security Act 1998 15,42, 285, 291, 415,425,441, 462 s.l 284 s.41 284 Social Security Administration Act 1992 s.25 44 s.25(l) 44 s.41(6) 431 Supply of Goods and Services Act 1982 100 Taxation of Chargeable Gains Act 1992 s.138 251 Telecommunications Act 1984 217 s.3

224

s.7(6)(c)

216

S.15(1)

S.15(3) ss.16-19 s.17 S.18(1)

S.27A S.27A (7) S.27E S.27F s.27F(4) s.27F(6) S.27G s.49 s.271 Tribunals and Inquiries Act 1958 s.8

277

274 216 232 242

216 218 234 216 218 232 216 216 216 486 487

Value Added Tax Act 1994 s.84(2) Water Act 1989 Water Industry Act 1991 s.2 S.12(2)

402 217 223 216

ss.18-22 216 s.20 232 s.21(l) 242 s.29 216 s.29(4) 235 s.30 216 s.30(3)(c) 235 s.30A 216 s.30A(2) 232 s.30A(3) 218 s.38 s.38(5) 218 S.86A 234 s.95 216 s.95(5) 218 s.105 216 s.122 216 s.126 216 S.150A 216 World Heritage Properties Conservation Act 1983 [Australia] 515-6 European Union legislation Treaty of Rome Article 85 Article 85(1) Article 85(2) Article 85(3) Article 86 Article 87 Regulation 17 article 4(1) article 8 article 19 article 19(3) article 21(1)

253, 354 253 269 253, 254, 264 253 253 253 253 253 253 253 253

Council Resolution of 20 June 1995 on minimum guarantees for asylum procedures (OJ C 274/13; 19/9/1996) HI 8 56 EU Directive governing excise duty in the single market 92/12 398, 399, 400,401

Tables Interconnection Directive 97/33/EC OJ L 199 26 July 1997 art. 9(5)232 (5585/95) III 8 56 Directive 92/12/EC of February 25 1992 on the general arrangements for products subject to excise duty and on the holding, moving and monitoring of such products (OJ 1992, L 76/1) 398, 399,400,401 Directive 97/33/EC on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) (OJ 26 July 1997, L199/32) 232 International Instruments Convention in relation to the status of Refugees 1954 341, 347, 348 European Convention on the Protection of Human Rights and Fundamental Freedoms 1950 56, 63,65, 399 article 1 403 article 3 65 article 6 227, 230, 231, 316, 397-403 6(1) 230, 399, 402, 403 6(3) 399 article 8 65 Geneva Convention of 12 August 1949 on humanitarian protection of peoples in times of armed conflict 56, 64 International Covenant on Civil and Political Rights....344-5, 345, 346, 350, 356,361 United Nations Convention on the Rights of the Child 1989 ....345, 346, 350, 356, 358,360-1,361,363,365, 366, 368-70, 371, 372 article 9.1 359

xxxin

article 12

312, 350, 356, 357, 360, 361, 363, 365, 368, 370, 371,373,374 United Nations High Commission on Refugees Handbook para 46 56 Universal Declaration of Human Rights article 23 363 South Africa Constitution of the Republic of South Africa Chapter 2 394 s.9(2) 387 s.24(a), (b), (c) 388 s.32 377 s.33 12, 377, 378, 380 s.33(l) 378, 389 s.33(2) 378, 390 s.33(3) 377,378, 390 s.33(3)(c) 12, 393 s.34 377 s.38 376,277 s.181 377 ss.l82andl83 377 s.184 377 s.187 Interim Constitution of the Republic of South Africa

s.24 s.24(a) s.24(b) s.24(c)

378,380 388 388, 389 390,391

United States Fifth amendment Fourteenth amendment

225 225

Table of Statutory Instruments Asylum Procedure Rules 1996 SI 1996/ 2070 reg.23 62 reg.24 62 reg.35 62 Child Support Appeal Tribunals (Procedure) Regulations SI 1992/ 2641 410 reg.9 293 reg.HA 285 Child Support Commissioners (Procedure) Regulations SI 1992/ 2640 286 Child Support (Maintenance Assessment Procedure) Regulations SI 1992/ 1813 reg.55 285 Commissioner for Complaints (Northern Ireland) Order 1996 No 1297 (NI 7) 463 art. 15 467 Education (Grant-maintained Schools) (Initial Governing Instruments) Regulations 1993 SI 1993/3102 ....301,302

Education (Lay Members of Appeal Committees) Regulations 1994 SI 1994/1303 300 Education (School Records) Regulations 1989 SI 1989/1261 reg. 8 296 Excise Duty (Personal Reliefs) Order 1992 SI 1992/3155 398, 399,400, 401 art.3 398 art.5 398 Ombudsman (Northern Ireland) Order 1996 463 Social Security (Adjudication) Regulations 1995 SI 1995/ 1801 reg. 2 410 reg.23 414 Social Security (Adjudications) and Child Support Amendment (No2) Regulations 1996 SI 1996/2450 452 Special Educational Needs Tribunals Regulations 1995 SI 1995/3113 318 reg. 28(2) 321

Introduction MICHAEL HARRIS and MARTIN PARTINGTON

Introduction: The Background to the Conference

T

HIS volume contains thirty-three of the papers, or extracts from papers, originally presented1 at the International Conference on Administrative Justice organised by the Centre for the Study of Administrative Justice at the University of Bristol in November 1997. As well as those presenting papers there were over fifty invited delegates. The list of speakers and delegates included representatives from all the countries of the United Kingdom and was further enlivened by the presence of representatives from the Council of Europe, France, Ireland, South Africa, Australia and Canada—the last two being Commonwealth countries with highly developed systems of administrative law and justice. The conference was generously underwritten by a grant from the Lord Chancellor's Department. Its aims had the explicit and personal support of the Lord Chancellor.

Historical Coincidence The conference coincided with the 40th anniversary of the publication in 1957 of the immensely influential Report of the Committee on Administrative Tribunals and Enquiries (Cmnd. 218), the Franks Committee Report. The publication of this book coincides—more or less—with the 40th anniversary of the Act implementing the recommendations of Franks, the Tribunals and Inquiries Act 1958. Its publication therefore occurs sufficiently close to the dawning of a new century to justify its title Administrative Justice in the 21st Century. In terms of historical reality, the symmetry of these events may be no more than coincidental. Reflections on the topic of administrative justice might have been just as fruitful had they coincided, not with the 40 th anniversary of Franks, but with its 39 th . And there is no reason why a conference on the topic held in 2001, while denied the obvious millenarian associations of this one, would not prove to be just as fruitful an exercise as this one was. These associations are, in short, at one level artificial constructs: ideas and events do not march to the dictates of the calendar. On the other hand it is human nature to respond to the stimulus that these temporal symbols provide. So one trigger 1

Most of the papers have been further revised for this publication.

2

M I C H A E L HARRIS AND M A R T I N PARTINGTON

for the conference was indeed the fact that the 40 th anniversary of Franks was upon us and that it would fall close to the end of one hundred years of significant growth and development in the area of administrative law and justice.

The Nature and Scope of Administrative Justice But of course there was more to it than that. The Franks Report was not intended to provide, nor could it ever have provided, an eternally selfrenewing template for a rapidly expanding system of administrative justice. We should question from time to time the assumptions upon which the Franks model of administrative justice was based. Underlying the conference, therefore, was an awareness that a great deal had happened since Franks, both in terms of the development of the administrative system itself as well as in terms of the mechanisms for reviewing the decisions of that system so as to ensure an adequate quality of decision-making. There was a need to revisit ideas that had originally informed the Franksian conception of administrative justice. In particular, as the papers in this volume reveal, there is considerable disagreement about the meaning of the concept of "administrative justice". Some, following Franks, appear to assume that administrative justice is a label which can only properly be attached to the kinds of process that occur in courts, or the tribunals and inquiries that were the subject of his report. There may also be an assumption in the minds of some that "administrative justice" can apply only to questions of determining legal entitlements, as opposed, for example, to considering whether an individual has been the victim of maladministration or poor quality service. Others, including ourselves as the conference organisers, take a much broader view. Their perception of administrative justice is one which, in effect, embraces the whole range of decision-taking, from an initial decision, to the ultimate level of appeal. Administrative justice would, on this view, include not only issues relating to the determination of legal rights or the making of discretionary decisions, but also issues arising from standards of service delivery. On this analysis, "administrative justice" should be regarded as a normative basis for the whole of the operations of government, and those private or semi-private agencies which now provide many services to the public. It does not imply that any particular type of procedure should be preferred to any other. Rather that the basis on which decisions are taken is a rational and appropriate one, reached with proper collection of evidence and a sensible evaluation of that evidence.

Administrative Justice: The Academic and Practitioner Focus Third, and following on from the above, the conference organisers were seeking to redress a balance. The vast bulk of the attention given to administrative law issues by both scholars and practitioners focuses on the work of

Introduction

3

the courts, in particular the development of judicial review by the Divisional Court. No one can doubt the qualitative importance of this area of our jurisprudence. But to concentrate more or less exclusively on this area is, in our judgement, to distort perceptions about the nature, scope and practice of administrative law and justice in Britain. A conscious decision was therefore taken, at least for the purpose of this conference, to "marginalise" the topic of judicial review2 so that those with things to say about other areas of the administrative justice system could be given a voice.

The Changing Context A fourth reason for designing the Conference Programme in the way that it was, was that, again in the organisers' view, this was an area in which not only had much happened in recent years, but where much further change was in prospect. It was felt that a conference which brought together the practitioners, the policy makers and the scholars—all too rare an occurrence—could be of advantage at a time when change was in the air; a matter given added impetus by the election of a government committed to ideas for reform of the Constitution and the machinery of government in May 1997.

Administrative Justice and Civil Justice Yet another consideration was that, in addition to change within the machinery of government itself, another set of issues relating to a radical reform of the system of civil justice is also currently in play. Much of the debate surrounding the reform of civil justice involves consideration of new forms of alternative dispute resolution and new types of procedure—less emphasis on the adversarial and more on the inquisitorial. Those pressing the arguments in these arenas often think that they must look abroad for models of how they might introduce change into the United Kingdom, without considering the richness of the procedures for the resolution of disputes that is available for inspection in the UK in the context of the administrative justice system. For all these reasons, we felt the time was a particularly good one in which to encourage a reconsideration of the fundamental questions of what values inform, or ought to inform, ideas about administrative justice.

2

There were two exceptions to this: M Sunkin and G Richardson, "The Impact of Judicial Review decisions on the work of tribunals and other procedures; case studies in Mental Health and the Social Fund"; and B Hadfield, "Prison (Disciplinary) Adjudication, Northern Ireland".

4

MICHAEL HARRIS AND MARTIN PARTINGTON

Themes and Issues One of the practical difficulties with books based on conference papers is that, however good the individual papers may be, the precise ways in which the papers may (or may not) hang together may not always be as clear as it should be, especially for those who did not attend the conference. For this reason, we here introduce what we regard as the principal arguments of the papers, and note some of the ways in which specific papers cross-cut with others. We hope that this will serve as an introduction to the volume as a whole, and will encourage readers to delve into the richness of the ideas which we think this collection contains. In our view, the key issues which emerge from the papers are: (i) how can a system of administrative justice best ensure the existence of an appropriate quality of administrative decision-making at the initial stage; (ii) what are the most appropriate mechanisms for reviewing and appealing against those decisions; (iii) what is the significance of new approaches to accountability, such as those implied by the creation of the Citizen's Charter; (iv) what is the role of the Ombudsman, including the potential for using that well-tried public law mechanism in the private law sphere; (v) what is the significance of the development of new procedures for the review of administrative action; (vi) what are the practical and constitutional problems posed by the emergence of regulatory agencies in response to privatisation; (vii) what are the administrative justice issues which emerge from the regulatory models which operate in specific contexts, e.g. the professions; (viii) what are the insights provided by empirical research into the operation of particular aspects of the administrative justice system; (ix) what are the implications of the UK assuming human rights obligations, domestically, supranationally and internationally, for the operation of administrative justice; (x) what are the issues related to the management and training of tribunal members and administrators which relate to the operation of the administrative justice system; (xi) what is the role and efficacy of mechanisms designed to monitor the processes of administrative justice; and finally, (xii) what should be the means for providing an overview and evaluation of recent, as well as potential future, models of administrative adjudication and review. The outline structure of this collection can be seen in the Table of Contents. Here we introduce each of the papers in the volume.

Introduction

5

Initial Decision-Taking, Review and Appeals: General Issues The papers in Part I raise theoretical questions about the nature and scope of "administrative justice". Ison starts by throwing down the gauntlet, arguing that discussion of "administrative justice" could be misplaced, "contrary to the public interest" even, if it suggested that all would be well if mechanisms for review and appeal were as effective as possible. He argues that all too often "administration" is presented and understood as being distinct from "adjudication"; but he stresses that the nature of the decision to be taken at the initial decisiontaking stage is in most cases the same as that taken at the highest levels of appeal. He argues that all too often efficient means of changing decisions once made disguise the inadequacies of the initial decision-taking process. There is no guarantee that only those affected by adverse decisions would complain or appeal; as likely as not, more would simply suffer in silence. Nevertheless, in the end Ison does allow some place for the idea of "administrative justice": wot as a subject in its own right, but "as a body of thought that can be drawn upon in the design of [particular systems]". There are thus limits to his polemic and ultimately a recognition of the reality of the principle. Michael Harris argues that, far from encouraging sloppy initial decisionmaking, internal administrative checks constitute both a practical as well as a legitimate safeguard against erroneous decisions by primary decision-makers. He argues further that there are good reasons for making this level of review formal rather than informal, i.e. the process of internal reconsideration should be a necessary prerequisite for accessing a right of appeal. The reasons he identifies are both practical and ideological. At the practical level, a mandatory "second look" can be an effective way of filtering out unmeritorious objections that ought not to activate any process of appeal. At the ideological level, administrators ought in principle to be accountable for their decisions and given the opportunity to remedy their mistakes. This may have the additional benefit of allowing systemic problems to be identified and remedied by the body with arguably the greatest expertise, the administrative area responsible. Mulcahy also makes a strong plea in her paper that administrative justice should not be limited to the mechanisms for the external scrutiny of administrative decisions. She argues that procedures for dealing with complaints about the public sector should themselves be conceptualised as an integral part of a broader conception of administrative justice. She particularly criticises accounts of administrative law and administrative justice that focus on the work of courts or higher appellate tribunals. Judge Pearl's paper places many of the theoretical issues raised in the first three papers in the specific context of decisions relating to asylum seekers. He strongly reinforces the view that any system of administrative justice must be underpinned by the highest possible quality of initial decision-taking. But his

6

M I C H A E L HARRIS AND M A R T I N P A R T I N G T O N

paper also recognises the practical reality that things may go wrong which will result in decisions needing to be changed. He outlines the principles which he thinks should inform any reform of the appellate structure of the immigration system His paper also introduces one of the emergent themes in modern administrative justice, considered more fully later in this volume: the impact of the enactment of the Human Rights Act 1998 on our procedures for addressing citizen's grievance.

The New Administrative Law: The Citizen's Charter, Ombudsmen and Other Developments For Resolution of Complaints Part 2 reflects the most obvious way in which the shape of the modern administrative justice system differs from that in Franks' day. This has been the recognition that many problems can be solved if organisations themselves have good and effective mechanisms for the handling of disputes and complaints. The way in which the Citizen's Charter was launched by the previous Conservative Government was pretty inept and engendered much cynicism. However, the importance of the concept for any broad vision of administrative justice should not be undervalued, particularly at a time when the idea— now called Service First— is being relaunched. Page, one of the few public law scholars to treat the Charter concept seriously, examines the role of the Citizen's Charter of 1991 from the perspective of administrative justice and "the new administrative law". Rather than focusing on the Charter as an example of internal executive self-regulation, he examines its potential significance in terms of its ability to set standards of quality of service of administration and its efficacy as a mechanism by which individual complaints arising out of the provision of public services may be resolved—essential if the arguments of Ison are to be reinforced. On the question of standards, Page concludes that charter standard statements constitute a potentially useful addition to the machinery of administrative justice, though primarily as a means of improving procedural standards rather than conferring the administrative equivalent of legal rights on individuals. He explores the issue of the "juridification" of charter standard statements, observing that insofar as they create individual rights, they are only administratively not legally enforceable. He also highlights the criticism that there is presently a lack of independent validation of performance against standards. On the question of complaints systems, their principal attraction to complainants may be seen in terms of the opportunity to have things "put right" without the need to pursue other more formal (and problematical) avenues of recourse. As far as organisations are concerned, the attractions of complaints mechanisms include the fact that they may reduce vulnerability to other forms of legal challenge. Establishing a complaints mechanism may lead to a reduction in the number of complaints to more formal machinery, such as the Parliamentary Ombudsman.

Introduction

7

Page's general conclusion is that while the Charter process is directed more to improving or maintaining standards of administration than the protection of individual rights, nevertheless the setting of charter standards and the provision of complaints systems mean that charters have the potential to make a valuable contribution to the overall system of administrative justice. The paper by Williams and Goriely presents an empirically based account of the development of complaints procedures, examining in particular the adoption by a variety of private sector organisations of the "Ombudsman" concept. Two particular points may be noted: adopting Page's theory about the impact on organisations, Williams and Goriely speculate that patterns in complaining levels indicate that sponsoring organisations have been learning practical lessons from their Ombudsmens' reports; second, that with the creation of the private sector Ombudsmen, there has been a shift from the somewhat "Rolls Royce" service provided by the Parliamentary Commissioner, given the relatively small number of complaints that he is able to investigate, to a more "mass" processing of complaints by the private sector ombudsmen. The related papers on "Ombudsmen and other Developments" begin with Pearson and Clark examining the currently contrasting approaches of the United Kingdom and Canada respectively to the issue of "open government" and especially to freedom of information (FOI). The discourse of open government treats information as a resource which confers unequal power on those who possess it and those who do not. Therefore, "any project for more open government is ultimately political, concerned to bring about a shift of power..." The basis for an accommodation of competing state and individual interests is a normative strategy designed to oblige the holders of official information to concede as much of this "strategic resource" as is compatible with the "public interest". The authors identify three models which have hitherto influenced that strategy. The first is the managerial: this is audit-based and primarily focused on efficiency of administrative outcomes. The second is the legal: this is informed either by the political ideology of classic liberalism and human rights discourse, or by a kind of "forever amber" approach. This latter approach— the so-called "public law" model—recognizes the interests of the individual in participation and accountability but seeks to balance these against the public interest in government being carried on without undue interference. Finally there is the self-regulating administrative model. Here the preference is for non-statutory injunctions designed to bring about good administrative behaviour without the need for legislative sanction. In the context of FOI in the UK this "soft law" paradigm is currently in place in the form of the 1994 Code of Practice on Access to Government Information and its companion Code of Practice on Openness in the NHS. This belief in the power of self-improvement also has direct links with the Citizen's Charter as well as being philosophically related to the managerial model. All open government regimes are in varying degrees an amalgam of

8

MICHAEL HARRIS AND M A R T I N PARTINGTON

these different models. However, the UK approach at the moment is essentially a "hybrid" of the managerial and administrative models. The Canadian, on the other hand is grounded more in the legal. The authors, having examined how the two systems are operating, conclude that there is some potential in the UK for an administrative regime of open government, relying on the PCA and the select committee to give it teeth. However, this is presently compromised not just by the deficiencies of the Codes themselves but also by the notorious "filter" system and by the overelaborate investigative procedure used by the PCA. The Canadian regime is seen as offering particular lessons at the level of institutional design. Both federally and provincially it is a legal regime, with enforcement powers vested in information commissioners. However, direct enforcement powers are widely perceived as responsible for a problem of "over-juridification" and current thinking now favours a "twin track" approach. This would preserve the commissioners' Ombudsman-type role, i.e. investigation followed by recommendation, leaving enforcement to occur as a result of publicity and where necessary backed up by Parliament. One caveat, therefore, is that such a model is heavily dependant on being able to hold ministers accountable for the administrative and policy aspects of FOI. And another, as the authors do well to remind us, is that whatever the regime we ultimately may choose, managerial tendencies will always be prepared to push the idea that information is a commodity that must be paid for by those who seek to access it. In developing the theme "Ombudsmen and Administrative Justice", the editors have used selected extracts from six papers, written by different Ombudsmen, delivered at the conference. One of the most significant things to emerge has been the way the office can be adapted to deal with complaints arising out of what is formally private power but the exercise of which offers a clear analogy with public power. This in turn illustrates one of the most remarkable features of the Ombudsman idea—its protean capacity for adaptation and evolution in response to new aspects of the problem of power. One other important point these papers brought out is that the Ombudsman concept will be especially appealing in times "when access to the courts by the majority of the population...[has effectively collapsed]" (Holland). The chapter "New Procedures" also consists of extracts from papers delivered at the conference. Each of the new procedures referred to offers an alternative to the usual curial/tribunal model for the review/reappraisal/scrutiny of administrative action. Each, therefore, attests to the importance of devising new approaches to the task of promoting administrative justice in a climate where it may no longer practicable or even appropriate to cling to Franksian paradigms. "Other Developments" are represented by a paper by Christensen, Day and Worthington which examines the operation and effectiveness of the current mechanism for redress of complaints against solicitors through the self-regulatory scheme operated by the Law Society. Historically the solicitors' profession has not welcomed criticism of or judgments about its performance by non-

Introduction

9

lawyers. On the other hand the profession has not been able, not indeed allowed, to ignore the new culture of accountability which, especially in recent times, has produced its own "complaints explosion". Equally the profession has withstood any attempt to subject it to a governmentally run regulatory regime (although this was recommended in 1985). It has to be said at once that the authors' painstaking and revealing research does not make for pretty reading as far as the profession is concerned. And as far as the outside world is concerned the reaction will probably be a cynical "so what's new?". The authors in particular wanted to find out how solicitors were actually conducting their complaint handling procedures and whether this differed from the way they represented matters to those outside the profession. They also wanted to find out what the experience of complainants was in relation to the operation of these procedures and what barriers to effective in-house complaint handling there were. Their findings make dispiriting reading for those who put their faith in the superiority of self-regulation for the professions. The authors provide disturbing evidence of systemic abuse, a notable example being the preparation of "showcase" files. These consisted of "perfectly designed" complaint procedures, the purpose of which apparently was to gain legal aid franchises and other quality marks. There was also evidence of contempt for the system, insouciance towards client complaints and occasional arrogance. The authors even uncover one instance of bribery in the form of a case of gin! Dispiritingly it was commercial clients whose complaints were taken most seriously by firms. In short, on the basis of this sampling, the profession, judged by the standards of administrative justice, was found not to be providing "fair and full investigation" in an area of legitimate public interest. The authors do not ascribe all the deficiencies they uncovered to an unreconstructed contempt on the part of the profession for the "culture of complaint". Some of the negativity to that culture stems from "the imposition of a rule through a poorly communicated signal from the centre". This in turn has produced a lack of concurrence on the part of both solicitors and clients over what the process can and/or should offer. The authors conclude by making a number of sensible recommendations for improving what is presently an unsatisfactory state of affairs. The profession would be wise to heed the lessons of this valuable research, because if it does not then the government may well step in. Such an intervention would not necessarily be to anyone's advantage.

Collective Administrative Justice The two papers placed under the heading "Collective Administrative Justice" examine some of the challenges to our conceptions of administrative justice that arise out of the privatisation of the utility industries and the rise of regulatory agencies. In her paper McHarg shows first how a departure from the Morrisonian model of public ownership has led to the creation of agencies charged

10

M I C H A E L H A R R I S AND M A R T I N PARTINGTON

primarily with the protection of consumers and the promotion of competition. So far the new model has involved entrusting a single regulatory agency with plural functions. She explores this problematical vesting of rule-making (policy development) and rule-enforcement (adjudicative) functions in the same agency. In the case of the utility regulators we typically find power not only to amend existing and issue subsequent licences but also to enforce obligations and grant determinations under existing licences. McHarg starts from the position that this dualism, perceived by some as untenable, is in reality a mark of effectiveness: ". . . the distinction between rule-making and adjudication is at best one of degree, not of kind, and entrusting them to separate institutions simply creates the risk of inconsistent interpretation of regulatory objectives". On the other hand it has to be accepted that there is an issue of adjudicative fairness to be addressed where the regulator turns decisionmaker. Can procedures be designed which offer both the consumer and the licensee adequate protection? The United States approach to agency adjudication seems over-judicialized in the UK context. Then what of existing agency practice—can this be said to provide appropriate procedural safeguards? McHarg concludes that the pragmatic development of dispute resolution techniques on the part of agencies has allowed policy perspectives to emerge while at the same time providing a measure of procedural protection. And the disparity of approach that one finds at one level meets the requirement that "differences between industries dictate different procedural responses". On the other hand disparity may be a barrier to the spread of good practice. For this reason McHarg sees a case for a statute laying down what are the irreducible minimum requirements of good practice. Thereafter a judicious mix of statutory prescription and self-regulation may represent an appropriate compromise for dealing with any residual "constitutional awkwardness". In her paper Black reflects further on the processes of rule-making and decision-taking that take place between the regulators and the regulated. In the context of three specific models, the city take-over panel, the Inland Revenue and the application by the European Commission of EC competition policy, she explores the ways in which policy and decisions based on that policy is the subject of "conversations". She notes that the scope for discussion and negotiation varies as between the different bodies and explores possible reasons for this. She also analyses both the advantages and disadvantages of these procedures, which she tests against other, more formalistic, procedures for decision-taking. Again, this paper suggests that any comprehensive account of the modern system of administrative justice must embrace analysis of procedures other than the "due process" models of courts and tribunals.

Recent Research Insights into administrative justice are informed as much, if not more, by empirical observation as by ideological constructs. Recent research into the

Introduction

11

introduction of new systems of decision-making and review in a number of administrative areas has provided an opportunity for scientific appraisal of the efficacy of these systems in the light of administrative justice values. In their paper on child support appeal tribunals (CSATs), Young, Wikeley and Davis describe research they undertook with respect to the appellant's experience of appealing to a CSAT over child maintenance assessments by the Child Support Agency (CSA). Two aspects of that research are of particular interest to the administrative justice debate. First, the influence of adversarialism in the way CSATs arrive at their determinations; and second, the importance of legal representation in securing a favourable outcome where the tribunal's approach is conditioned by adversarialism. Adversarialism was prominent in those hearings where both parties attended. Here the proceedings took on the characteristics of an inter partes dispute. The tribunal was not inclined to run them in an enabling and inquisitorial manner (unlike appeals where only the appellant was present). Instead it left the parties to develop their arguments as they liked so that the advantage tended to shift to the party with the greater forensic skills. On the matter of legal representation, the authors conclude that in CSAT proceedings where both parties attend there will be a clear benefit to the parties (or to the represented party) and to the process if legal advice is available. Yet most people seeking the services of a CSAT cannot afford to be legally represented and, of course, legal aid is presently not available. The most significant conclusion to be drawn from this study is that we need to rethink our approach to the way administrative tribunals operate. Even when softened by the amicus device, their dependency on an adversarial approach can, in the absence of proper legal representation and advice, place unacceptable barriers in the path of achieving administrative justice. Neville Harris's paper describes the research he has conducted so far into the education appeal system of England and Wales. Two models presently coexist. Special educational needs are dealt with by the Special Educational Needs Tribunal (SENT). This body conforms to the standard tribunal model of a lawyer chair and two specialist lay members. In contrast, decisions concerning school admissions and permanent exclusion from schools are dealt with by local educational appeal committees (EACs) which are wholly lay. One obvious question is why decisions, not obviously different in principle (both special educational needs and admissions/exclusions decisions involve a high level of discretion), should attract different approaches in the matter of review. The role of EACs remains especially problematic at the level of expertise—numerous judicial review cases testify to their inability to understand and correctly apply the "prejudice test" in admissions cases not to mention the apparently "easier" principles governing exclusions. Harris's research highlights two important aspects of administrative justice. First, the Franksian "plurality" model of tribunal creation is avowedly founded on the proposition that diversity is more likely to produce expertise in discrete areas than an

12


overarching general administrative appeal tribunal model. However, if expertise is to become a reality there has to be greater attention to the kind of expertise that is necessary. In the case of EACs the relevant legal expertise has hitherto been signally lacking to the detriment of administrative review in the educationalfield.And secondly, Harris's implicit support for an approach that favours rational consolidation of cognate jurisdictions under the umbrella of a single tribunal like SENT has much going for it. It is a pity that the Government has apparently chosen the opposite path in the field of educational review. The final paper in this Part, by Raine and Sheppard, describes the impact of new technology on a particular field of administrative decision-making— parking adjudication. They demonstrate not only how a new jurisdiction may have greater freedom to adopt wholly new working practices than one with an established tradition. They also reveal the outcome of research into the perceptions of users of the system, something not often done by researchers. The findings suggest a broad level of consumer/user satisfaction with this highly IT- driven organisation. The Influence of Human Rights on Administrative Justice The incorporation of human rights obligations into domestic law will undoubtedly have important consequences for the content and development of administrative justice. In the United Kingdom, the decision of the House of Lords in Brind (1991) provides an example of human rights values infiltrating government decisions through judicial interpretation of the relevant power compatibly with international obligations. According to orthodox doctrine, however, this liberal judicial technique can only flourish where there is ambiguity—"leeways of choice"— to exploit. In this sense it was the limitations of Brind rather than its strengths that ultimately led the government to incorporate these human rights values into our domestic law. Allars's paper is an intriguing account of how in Australia, by contrast, judicial liberalism produced an opposite reaction. In Teoh (1995) the High Court of Australia delivered a new kind of procedural protection to those whose human rights had been affected by government decision, notwithstanding the fact that those values had not been incorporated. In short by treating Australia's ratification of human rights conventions as substantively significant in the domestic as well as in the international sphere, rather than "merely platitudinous or ineffectual", the High Court effected a significant, though hardly revolutionary development of the common law of procedural fairness—Allars describes it as ". . . no more than a modest step in the evolution of the common law of procedural fairness." Nevertheless, the Australian government's response to this exercise in judicial creativity has been hostile. Legislation designed to draw the teeth of Teoh is imminent. Instead of seeing the decision as the basis for more enlightened administration, the government

Introduction

13

has sought to undermine its effect. Allars's paper explores the implications of Teob and the government's reaction to it through decisions with a human rights dimension of the Administrative Appeals Tribunal (merits review) and the Australian Federal Court (judicial review). Some wider lessons emerge from this scholarly and intriguing examination of the nuances of Australian administrative law doctrine. One significant lesson is that executive attempts to inhibit liberal judicial instincts may well produce further acts of "disobedience". In the present context they have involved an ingenious circumvention of an apparently ill-drawn piece of legislation through the dynamic development of several other grounds of judicial review not touched by the so called "anti-Teo/7 Act". The irony is that, so far from ousting Teob, the government has managed to invest the original decision with an enhanced potency which is not yet spent. The possibilities of infiltration of human rights values have been exploited to the point where "backdoor incorporation" is not just the threat it was originally perceived to be but has become a reality. The true lesson of Teob may well be that in a democracy the wind of executive repression will be truly ill if it fails to provide some collateral enhancement of civil and political rights and the promotion of larger and more civilised values. Lyster pursues the human rights/administrative justice theme via an examination of the emerging jurisprudence of the "just administrative action" clauses in section 33 of the South African Constitution. The values they seek to promote are very significant (especially given the previous paramountcy of executive discretion in that country): rational decision-making; preventing the arbitrary exercise of public power; ensuring open and fair administrative decision-making; and promoting public participation in that process. On the other hand s. 33(3)(c) states that national legislation "must...promote an efficient administration." Lyster is critical of this clause with its emphasis on speed of outcome rather than correctness. In her view it carries the danger of subordinating administrative equity and accountability to what should be no more than a competing, albeit important, consideration in a system of administrative justice also seeking to promote the values of openness and fairness. Furthermore, since the judiciary has always had regard to considerations of efficiency and practicality in arriving at its calculus of what constitutes fair and appropriate administrative action, the clause can be said to be otiose. Finally Lyster considers the important question of whether a provision like the "just administrative action" section of the South African Constitution gives the judiciary too political a role. Active engagement in the "judicialisation" of politics is undoubtedly a dangerous enterprise for judges and may well expose them to a charge of frustrating democratic expectations. The South African judges appear to have been alert to this danger. On the other hand they appear not to have been inhibited to the point where they have ceased to give effect to the values (see above) contained in the "just administrative action" clause. Their approach offers lessons to our own judiciary as they prepare for the

14

M I C H A E L HARRIS AND M A R T I N PARTINGTON

task, inter alia, of giving effect to similar administrative justice values underpinned by the Human Rights Act 1998. In the third paper in this section on the human rights/administrative justice theme, Oliver presents an apparently simple and unexceptional case study— involving hand-rolling tobacco—, which in fact is highly suggestive of the potential impact that the incorporation of human rights values may have in the practical operation of particular parts of the administrative justice system.3

Management and Training One of the quiet revolutions that has occurred in the legal system over the last twenty years has been the increasing recognition that the job of adjudication (and indeed other forms of decision-making) is one that requires training—not only in the rules to be applied by the adjudicator but also in the ways in which the adjudicator carries out her task. These lessons have been increasingly embraced in the administrative justice system. In addition some parts of that system have recognised the importance of proper management of cases and the monitoring of the performance of adjudicators and other decision makers. These issues are now widely (if not universally) seen as crucial to the fair and efficient operation of a system of administrative justice. These issues are addressed in three papers by Cole, Shepley and Adler. The Independent Tribunal Service (ITS), which currently incorporates five different tribunal systems in the general area of Social Security, has been a pioneering force in the development of both the management of the judicial task, and the provision of training for that task. It has benefited not only from a presidential structure (and post-holders with the vision to give appropriate leadership to the system as a whole), but also the fact that the President did actually have a statutory duty to provide training. Cole describes the outcome of a recent internal review of both training and the monitoring of performance within the ITS. Shepley also gives an account of the very comprehensive approach to training and performance monitoring and evaluation provided within the planning inspectorate. He observes that what is provided is costly but argues that not to provide this level of training would be even more costly, both in terms of possible legal challenges to decisions made by inspectors and, as important, in terms of the potential for undermining the authority and legitimacy of the inspectorate's work. Adler revisits earlier work into the selection and training of lay members. He reasserts the value of the participation of lay members in these dispute resolution forums, but argues that their training needs must be taken seriously if they are to play a full part in the proceedings of which they are a part. He 3

This theme is also taken up in Judge Pearl's paper, summarised above.

Introduction

15

regrets the fact that the provisions of the Social Security Act 1998 appear t o lead to a diminution of the role of the lay person in this part of the judicial system.

Future Developments The two papers in this Part, dealing with future developments, resonate with much that has gone before, especially the papers in Part I ("Initial DecisionTaking, Review and Appeal: General Issues") and with the chapter in Part II entitled "New Procedures". In his paper Sainsbury picks up the theme of new social inventions—here the radical changes to the system of social security appeals shortly to come into operation as a result of the Social Security Act 1998. In essence these involve moving away from a system in which there was an immediate right to a de novo review by a full tribunal with an oral hearing to one that combines informal internal revision (the "second look" principle) with a more flexible appeal process. In particular many more appeals will in future be conducted "on the papers", single member tribunals will be employed more frequently and tribunals will be precluded from considering changed circumstances. In making these changes the government has obviously been persuaded that the old approach was both inefficient and disproportionately costly, especially given the large number of unmeritorious appeals gaining immediate access to this expensive process. It would be fair to say that Sainsbury is not persuaded of the virtues of the changes in the new legislation. His critique begins with Mashaw's thesis that a system of administrative justice must possess those "qualities" that make for "acceptable" decisions—hardly a contentious proposition. The rub, of course, is in identifying what those qualities should be and how far they should be emphasised. For Sainsbury the essential qualities remain tied to the values that originally underpinned Franks' approach to administrative adjudication— openness, fairness and impartiality—informed by the views of the main participants in a particular system. Sainsbury's view of how a system of administrative review should reflect those values emphasises the virtues of the judicial paradigm—legalism and the desirability of legal representation, orality and adversarialism. On the other hand, his criticism—that not allowing changed circumstances to be taken into account will unduly "fragment" the review process—is clearly unanswerable. What remains more contentious is his apparent mistrust of what we may call "administrative values", e.g in his discussion of the connotations of "independence". This, however, is inevitable for, as Sainsbury says, "administrative justice is disputed territory". There will always be disagreements when issues of cost and efficiency—in principle entirely legitimate considerations—are perceived as compromising values deriving from a Franksian paradigm of administrative justice. But what is certain is that Sainsbury has made a powerful case for his assertion that "the cause of administrative justice is unlikely to be advanced by

16

M I C H A E L H A R R I S AND M A R T I N P A R T I N G T O N

the provisions of the imminent Social Security Act 1998." Events will show whether that view was too sanguine or not. Finally, in keeping with the millennial theme, Thompson's paper presents a stimulating account of how we might achieve a more integrated and effective system of administrative justice going into the 21 s t century. Administrative justice is defined as "a system within public law", and in the light of the profound changes that our public law is undergoing, we need a similarly updated vision of administrative justice. Hitherto that vision has been illuminated very much by the light from Franks. But, as Thompson correctly states, Franks was informed by "unduly legalistic values". Dependency on those values in a mood of post-Franksian sentimentality and/or self-interest has meant the perpetuation o f a number of regressive features in our administrative justice system. Amongst the most notable has been an increasingly inappropriate reliance on adversarialism and a judicial paradigm of administrative justice. We should instead be exploring the potential linkages with the alternative paradigm provided by investigative models, especially the Ombudsman. This leads into Thompson's main thesis that we can advance administrative justice by producing a more integrated approach, especially at the level of the present segregation of the courts and other mechanisms. The task of integration should be addressed by first identifying the purposes and values that ought to underpin an integrated system of administrative justice. Three broad purposes are suggested: the vindication of rights; the representation of interests; and the promotion of good administration. Fleshing out these broad purposes are principles identical to those identified by Lord Woolf in his report on civil justice, Access to Justice: justness in result; fairness of process; adequate speed and acceptable cost; comprehensibility and responsiveness; and certainty and effectiveness. Finally, certain institutional reforms become essential if the process of integration is t o succeed. In the first place, there needs to be a permanent and adequately funded commission to monitor and reform the system. Secondly, there needs t o be established a general administrative appeals tribunal empowered to review the merits of decisions presently dispersed amongst a multiplicity of disparate and uncoordinated tribunals. This Franksian "plurality" model has always resisted change but it has become problematical in a number of areas 4 and the time seems ripe for reappraisal. There is much to explore in the thesis that we should be seeking to improve our system of administrative justice by making it more integrated in remedial terms, especially through matching different claims claims to discrete remedies and procedures, and by promoting institutional coherence. As Thompson says, his paper is and only could be a sketch, albeit a most valuable one. Whether we should be seeking a new compact for administrative justice 40 4

See also in this collection N. Harris, "The Developing Role and Structure of the Education Appeal System".

Introduction

17

years on from Franks, and if so, how this should be done, is surely a grand millennial project worthy of a "second Franks".

System Monitoring and Overview Such new visions are unlikely to be developed however unless there are those within or close to Government able to take a view on how the administrative justice system currently operates, and how it might develop. No volume inspired by the anniversary of the Franks' report would be complete without some account of the work of the Council on Tribunals—a body whose creation was recommended by Franks. The present Chairman, Lord Archer of Sandwell, gives an account of the different types of work the Council undertakes and the ways in which it seeks to influence the development of the administrative justice system, or at least that part for which it has oversight. Robertson gives a detailed account of the rather different model provided by the Australian Administrative Review Council. Particularly interesting is the scope of the inquiries it has conducted into the implications for the administrative justice system of a wide range of government policy. Finally Lewis argues that, building on the above two bodies, and also taking into account the work of the (now defunct) American Conference on Administrative Justice, there is an urgent need to create in the UK a new Standing Administrative Conference, which would have just the power and authority and scope to encourage government to adopt the holistic approach to administrative justice implicit in the contributions to this volume.

Conclusion At one level it is impossible to encapsulate all the issues as well as the wide spectrum of opinion and ideas contained in the numerous papers in this collection. They are simply too numerous and nuanced for that to be possible. On the other hand there is a remarkable feature that suggests a more general conclusion is possible. The fact is that the same topics kept recurring, often in different guises and in apparently disparate papers. We instance the following: the Citizen's Charter; the implications of human rights regimes for an administrative justice system; how best to ensure an acceptable level of primary decision-making; what procedures best serve the competing interests of the citizen and the administrative state and the values that should inform that choice, especially in the context of the processes of review of administrative decisions and of gaining access to information held by the government; the relative merits of adversarial and inquisitorial techniques in the administration of administrative justice, especially by tribunals; the proper role of an ombudsman and the special advantages of an ombudsman's technique of

18


investigation and mediation over a curial-based approach to dispute resolution; and the meaning of concepts like "independence" and "participation". This is far from being an exhaustive list. What it does suggest, however, is that the real value of this collection lies not just in its coverage of a great deal of ground but in its identification of the things we need to focus on if we are to make an informed analysis of the current and future state of administrative justice.

PART 1

Initial Decision-Taking, Review and Appeals: General Issues

"Administrative Justice": Is It Such a Good Idea?x TERENCE G. ISON

1. Introduction HEN Professor Partington asked me what I thought of his plan for a conference on "Administrative Justice", I expressed some scepticism about whether a conference on this subject would be in the public interest. After some discussion, Professor Partington concluded that this scepticism might make a useful conference presentation. It may have occurred to him, as it later occurred to me, that if the dangers of discussing the subject become part of the discussion, there is a better prospect of the dangers being averted. My experience has been primarily in Canada. So if I say something that seems strange, or out of accord with experience in Britain, that may be the explanation Let me talk first about some of the damage that has been done by the use, in conjunction, of the words "administrative" and "justice".

W

2. Primary Adjudication In court decisions on judicial review, the word "administrative", has been used extensively, primarily to classify decisions of an adjudicative nature into two categories: "administrative" and "judicial". To illustrate this and other points, let me take the example of an adjudicating tribunal that has a pyramid structure, with four levels of decision-making. (See Table 1). Level 1 (primary adjudication) is designed to process applications in bulk. It is where a vast number of decisions is made. Level 2 is a process of reconsideration in response to complaints. Level 3 is an appeals board, functioning on a due process model, and level 4 is the final level of appeal. In many systems; 1 A revised version of a keynote lecture given to the International Conference on Administrative Justice, Bristol, November 1997.

22

TERENCE G. ISON

Table 1 Tribunal stucture LEVELS

VOLUME

4

•

3

•••

2 1

Notes: Level 4 Level 3 Level 2 Level 1

the final level of appeal the intermediate level of appeal reconsideration primary adjudication (showing adverse decisions only)

levels 1 and 2 are in a department of government, while levels 3 and 4 are at a tribunal. Consider what happens if a disappointed party wants to take a decision to judicial review. The courts normally decide that only decisions made at the final level at the tribunal are reviewable. Sometimes they have referred to a discretionary power to decline review when there appears to be an alternative remedy. Otherwise they have declined review by classifying decisions made at the lower levels, particularly those made at the primary adjudication level, as "administrative". Yet the questions being decided have remained constant at all levels of decision-making. The courts classify lower-level decisions as administrative, not because of their nature, but as a way of rationing judicial time. This classification has been adopted within government departments and tribunals. There, too, primary adjudication is commonly classified as "administrative". This classification is then used to justify damaging structures and practices. This level of adjudication is commonly perceived as a function for clerical grade personnel, often working under pressure and in physical conditions that are not conducive to penetrating thought. Decisions are made on the face of incoming documents, without personal contact with the parties, even in complex and sensitive cases, and conclusions are reached without first having sought all the relevant evidence. If the same case later reaches an appeal, it may then be recognised as requiring careful consideration, perhaps fieldwork enquiries, and procedural fairness. Yet the need for that more

"Administrative Justice": Is It Such a Good Idea?

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sophisticated processing did not suddenly arise on an appeal. It was there in the first place. The need for procedural sophistication varies with the gravity of a matter, the kinds of issues involved (for example, whether there is a credibility question) and the extent to which the adjudicative criteria are judgmental; but the need does not increase as a case moves up the decision-making hierarchy. In a well-designed system, the needs for procedural fairness and for thoroughness in investigation should decrease as a case moves up the hierarchy (just as in the court system). There is another way, too, in which the classification of primary adjudication as "administrative" causes injustice. Primary adjudicators are often perceived as too junior to exercise judgment or discretionary powers. Thus decisions may be made in a way that is too automated. If a case goes on appeal, it may be then be decided by the exercise of judgment or discretionary powers. That structure tends to defeat another basic principle of justice: namely, a case should be decided by the same criteria at all levels. Otherwise, the ideal of justice according to law is displaced by the principle that the squeaky wheel gets the grease. A common defence of this structure is that a vast number of decisions can be made cheaply; and any injustices can be resolved in the processes of reconsideration or appeal. That argument might be acceptable if one could assume that those who suffer from erroneous decisions in primary adjudication will complain or appeal; but I know of no evidence to warrant such an assumption; no evidence to demonstrate that there is any substantial correlation between suffering and complaining. When decisions relate to elderly people, disabled people, single parents, small business people or immigrants, there are large numbers who suffer from erroneous decisions without filing a complaint. Indeed, the total volume of injustice is likely to be much greater among those who accept initial decisions than among those who complain or appeal. For this reason alone, thoroughness and procedural fairness are more important in primary adjudication than they are in appellate processes. This means that where a system is one in which primary adjudication is in a department with appeals to a tribunal, the need for improvement in the quality of adjudication is likely to be far greater in the department than at the tribunal. There are other reasons, too, why the quality of primary adjudication is critical. Inadequacy in the gathering of evidence, insensitivity, or a lack of procedural fairness, can be causes of therapeutic damage as well as injustice. In systems that are meant to respond to human disability, any inadequacy in primary adjudication can also be damaging to rehabilitation. Even when erroneous decisions are corrected on appeal, there will have been substantial delay, and any delay in deciding an insurance claim of a disabled person can also mean a delay in rehabilitation. A crucial point here is that success in vocational rehabilitation often depends on momentum. Hence delay does not merely postpone the commencement of rehabilitation. Delay can inflict

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permanent damage on rehabilitation prospects. The problems of inadequacy in primary adjudication do not arise where the eligibility criteria are simple, such as age, death or having a licence. The problems arise in systems where the eligibility criteria require the exercise of judgment, such as disability, cause of harm, need, unemployment, or the quality of goods. Even in these systems, there may well be a large volume of simple cases that can be processed adequately in an automated way, and others that require more sophisticated attention. But that is a reason for prescreening and classifying the incoming case-load, so that the cases requiring the more sophisticated treatment can receive it at first instance. While I have mentioned judicial review as a cause of inadequacy in primary adjudication, other causes may be more significant, particularly the political and bureaucratic pressures. Consider the dilemma of a harassed administrator in charge of a system that pays benefits out of public funds. Various interest groups demand that the payments be made, at least in particular cases. There is no negative pressure on individual claims, but there is an overall negative pressure to minimise cost. Both pressures can be accommodated by applying the slogan "if a claim looks doubtful, turn it down and see if the applicant complains". If a complaint is received, the claim can be investigated properly in the process of reconsideration. That structure can minimise cost, while also appeasing those claimants who are supported by substantial interest groups, or who otherwise have enough aggression to use the system of complaint or appeal. The victims are those, perhaps of more modest disposition, who accept without question the decisions of public officials.

3. Democracy The notion of "administrative justice" can also be incompatible with democratic principles and "the rule of law". I am not referring to the Dicey version of the rule of law, but to the democratic version that includes the right to vote for membership of a sovereign parliament. This version of the rule of law would recognize the legitimacy of privative clauses, and it would perceive as a form of treachery the overriding of those clauses by appointed officials. To the extent that it invokes judicial review, "administrative justice" can be anti-democratic in other ways, too. A tribunal structure may be created by statute to benefit broad public interests, to the disadvantage of a concentrated private interest. An example might be a pollution control board. There is a risk that judicial review will function like a third legislative chamber, creating yet another opportunity for the concentrated private interest to defeat the goals of the legislation. On the other hand, it can sometimes work the other way. If the concentrated private interest was overcome in the legislative process, but is wielding its power successfully in subsequent administration, judicial review can


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sometimes restore adherence to the terms of the statute. Unfortunately, this beneficial influence of judicial review has many constraints. There are the problems of delay, cost, and other limitations on access, as well as the traditional refusal of the courts to allow a remedy in the nature of mandamus for the protection of a public interest. Then there are the many ways in which an administering agency can limit the significance of an adverse court decision, or the risk of an adverse decision. For example, it may concede the particular case and then carry on in the same old way in every other case. We have seen that happen in welfare administration with regard to the "man-in-the-house" (cohabitation) rule. In other ways, too, the influence of judicial review has sometimes been counter-productive. It has, for example, sometimes discouraged the giving of reasons for decisions. It may also undermine the status of a tribunal, thereby diminishing the range of people who may be willing to accept tribunal appointments.

4. The Undermining of Collective Interests When used in relation to public administration, the word "justice" tends to focus on individual or corporate interests. It can be counter-productive in relation to collective interests. Yet it is collective interests that will determine human survival. When we think of pollution control, for example, it is doubtful whether an adequate quality can be maintained of the air we breathe, the water we drink, or the food we eat, unless there is a greater assertion of governmental power. Yet the opposite is happening. The notions of "administrative justice" and individual liberty are both being invoked in the cause of deregulation. Since the age of "free trade" and the "global economy", we are beginning to see some international spreading of ideas from the United States that public health and occupational health regulations should have to be justified by a cost-benefit analysis, or by proof of the harm that would be suffered without them, and by proof of the need for the particular regulations as the least intrusive remedy. Acceptance of these ideas means that corporations can challenge, on judicial review, any regulations that are alleged not to have met these prerequisite tests. Such prerequisites would often require the regulatory agency to replicate the technology of each industry: an impossible burden. Even when that is not so, such prerequisites would render many regulatory requirements totally impossible or ineffective. In this way, too, the notion of "administrative justice" is used in a partisan way to prefer trans-national corporate interests over human interests, particularly the human interest in health.

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5. The Impairment of Efficiency The term "administrative justice" has a pervasive homogenizing influence. Tribunals and other government agencies were created in the first place to achieve diverse goals through diverse structures and procedures. They were intended to differ from courts, and from each other. But "administrative justice" seems to inspire a demand for some common thread, some common bond, some common structure or process, or some common overview. Such demands may be discussed on occasions that cannot possibly include a costbenefit analysis of their significance in the context of a particular subject. Perhaps the most profound homogenizing influence of "administrative justice" is its propensity to favour the adversary system. Even when statute law prescribes an alternative, such as an inquisitorial model, there is still pressure for a tribunal to gravitate to the adversary system. It is promoted in various ways; the heavy concentration on adversarial processes in legal education, judicial review, legal history, and the general inclination of the legal profession to see court proceedings as a model to be emulated. Excess capacity in the legal profession also seems to be stimulating an aversion to procedural models in which lawyers might appear to be superfluous. The courts do not always compel the use of an adversarial model. Often they mention the need for procedural diversity: but at the same time, the courts and the profession create a distorting pressure in favour of the adversary system. Tribunal members know that they are safe if they follow it. Alternative procedures, no matter how much more efficient they may be in a particular context, involve a risk of criticism or condemnation. Let me give an example. In Ontario, a human rights code was passed some years ago, and a Human Rights Commission was established to receive the complaints. Initially, it seemed as if it might function efficiently. If a woman complained that she had been denied employment by reason of her sex, the investigating officer would phone the employer to make enquiries. A typical response might be "That's right. We don't hire women." That response was helpful. With a minimal allocation of resources, the validity of the complaint had been established. Then lawyers acting for employers complained that the processes of the commission were inconsistent with traditional concepts of procedural fairness. The commission changed the procedure, so that such complaints had to be presented to the employer in writing. The employer could then consult a lawyer before responding. It should have been no surprise that human rights commissions began to bog down, and human rights complaints now take months or years to process. This is so long that, in many and probably most cases, an effective remedy is no longer possible. Many complaints are abandoned, or token settlements are reached from exhaustion, or the complaints disappear into an abyss from which they never emerge. Another interesting comment on the significance of adversarial proceedings


27

came to me when I took over the Workers' Compensation Board in British Columbia. The assessment of disability pensions was not done according to traditional principles of administrative law. A disabled worker was called in for an interview by a pensions officer. At the same time, the worker was examined by a Board doctor. After receiving advice from the doctor on the nature and degree of the residual disability, the pensions officer determined the rate of pension. Although employers provided the funds for the pensions, they were given no notice of the proceedings, and no opportunity to be heard. The amounts involved were not trifling. In contemporary sterling, the capital value of a disability pension could range up to about half a million pounds. Thinking like a lawyer, I wrote to the president of the Employers' Council and asked whether he felt that employers ought to receive notice of pending pension assessments. After discussing it with the relevant committee, he replied "No, the consensus was that we have too much paper coming across our desks already". When I next met him, I asked whether the committee discussion included any other reasons. He said that one member had contributed these thoughts. "If employers receive notice of pension assessments, it's only a matter of time before some employer turns up and presents an argument, and it's only a matter of time before an employer who does that gets the impression, rightly or wrongly, that the resulting pension was lower than it would otherwise have been. Such an employer would probably talk about this, perhaps at the local branch of the chamber of commerce. That may inspire other employers to do the same. When more employers' representatives attend pension assessments, union officials will start to feel that they should be there too. Then there will be bilateral argument, which could tend to complicate the process. Then some employers may start using a lawyer. If this appears to succeed, other employers might start using lawyers, and then the unions might respond by using lawyers. While the results will vary in individual cases, the aggregate impact of advocacy on both sides is likely to balance out. So the end result would be that pension costs remain roughly the same, while administrative and adjudicative costs escalate." Even for cases in which a disabled worker would appeal the pension assessment, the employers' organization at that time did not want notice to employers. For collateral reasons, this has all changed in recent years. But the example still illustrates the point: the adversary system commonly has more attractions for the legal profession than it has for those who pay the costs. Compared with some inquisitorial proceedings, the adversary system can also impair the credibility of witnesses. First, the difficulties of recollection are aggravated by delay. When the witness has an interest in the result, delay can also increase the distorting influence of self-interest on the memory. Secondly, a tribunal does not hear the witnesses until they have been interviewed by a lawyer for one of the parties. There may be uncertainty about whether that process might have influenced the recollection, or the emphasis. A further word should be said about the significance of delay. The proce-

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dural diversity that was intended in the creation of tribunals facilitates (among other things) differences of pace. For example, one case in which I was involved related to occupational health and safety. The question was whether certain fishing vessels should be allowed to sail. The issue arose on a Friday, the decisions at the primary level were made that day, and the decisions at the final level of appeal were made the following Monday. It was the herring season, and the herring swim down the coast. They will not wait for any legal process to run a ponderous course. This pace of decision-making was necessary to save lives, while not creating an unnecessary impediment to commerce; but this pace would not have been achieved under an adversary system. The notion of "administrative justice" can also embrace the separation of powers. Here again, that may be desirable in some areas, but damaging in others. Often, system defects will not be overcome without the concurrence of adjudicative experience and regulation-making powers. It can be exasperating for an applicant to be told that the tribunal recognises the injustice being suffered, but because of the current state of the regulations etc., it has no power to prescribe a remedy. Public cynicism is understandable if the only people with whom they have contact, and by whom they are heard, announce that they have no power to right the wrongs. Sometimes, this problem might be avoided by having administration, the regulation-making power, and the final level of appeal in the same tribunal. Together with the adversary system, the separation of powers fosters the idea that investigation and adjudication should be separate functions, performed by different people. That can be appropriate for some systems, but not for others. Blending the roles of investigation and adjudication can help to ensure that the adjudicator receives the evidence and argument first-hand. Also, those playing the investigative role may not have sufficient status, or sense of relevance, if they do not also have the decision-making role. When decisions relate to the condition of premises or goods at a particular time, it is often most efficient for the decisions to be made by someone who is inspecting those premises or goods at that time. This is all the more so when the matter relates to health or safety; and it may be so, even at the appellate stage. In the example that I mentioned earlier relating to the fishing vessels, the issue at the appellate level was whether an inspector's order, prohibiting certain vessels from sailing, should be affirmed. The critical question was whether the vessels were seaworthy. It was obviously most efficient to receive the evidence and the arguments on the vessels, where the real evidence was visible, and to issue the decision at the same time. Occupational health and safety can also illustrate some further points about the separation of powers. If regulation-making and enforcement are perceived as separate functions to be performed by separate agencies, this means that the level of achievement will tend to be the lowest level that either agency would select. That problem can be aggravated further in the enforcement process. Consider three alternative enforcement models.


29

Model A For any sanction to be applied, an inspector must initiate the process, a supervisor must recommend, a departmental director must approve, a lawyer must approve, and a judge must convict. There is a chain of decisionmaking in which a positive decision by any one of the five people requires concurrence of the others; but a negative decision does not. In effect, each has a veto power. So the level of enforcement will tend to settle at the lowest level that any one of the five would select. This model might be appropriate if the primary concern was to prevent the excess or abuse of power by public officials. Model B A single person or panel makes the final decision, and also has the direction of those responsible for the initiation of the process. Model C Each of five people can impose a sanction, and any one of the five can direct that the process be initiated. On this model, the level of enforcement would tend to settle at the highest level that any one of the five would select. This model might be appropriate if the perceived need was to overcome inertia and inspire action. A rational choice of structure and process would surely take account of the political pressures on the system. If the political pressures were in favour of enforcement, it would make sense to worry about the risk of abuse of power, and to adopt model A. But in occupational health and safety, the political pressures are against enforcement (except for a few days after a disaster). So it would make sense to adopt model B, if not C. The separation of powers might be in the public interest in some subject areas, but in occupational health and safety, the separation of powers creates a bias in favour of corporate over human interests. This example also illustrates a broader point. A structure to prevent the abuse of power by public officials can sometimes facilitate the abuse of power by others who govern, though they are not part of "government". In other ways, too, notions of "administrative justice" tend to deny or downgrade the need for adjudicative and administrative efficiency. This concern is particularly relevant in high-volume subjects, such as customs duty or social security. The costs of adjudication and administration would be unacceptable, and complaints of arbitrariness would be overwhelming, if every case were a matter of contemplation, including the weighing of judgmental variables, or the exercise of discretion. To achieve a workable system at an acceptable cost, and one which is seen to be a system of law, it may be necessary to establish broad categories, even though this might produce rough justice in marginal or exceptional cases. A system designer must prescribe the extent to which decisions should be made according to: (a criteria that are readily ascertainable in most cases (such as age, death, or having had a criminal conviction); (b) judgmental criteria, (such as disability, need, cause of harm, or quality of goods); (c) discretion.

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In deciding how many variables the system can accommodate, and how much (if any) judgment or discretion are optimum, the designer must consider administrative and adjudicative efficiency and aggregate cost, as well as individual rights and public policy goals. This breadth of vision may produce categories that subsequently appear too rigid if a case reaches a court on judicial review or appeal. To a judge of general jurisdiction, the sympathetic circumstances of the particular case may be apparent, but not the large volume of other cases, nor the balances that were struck in system design. The court may be tempted to consider more variables than were used in primary adjudication, and perhaps more than ought to have been used. Judicial discretion then displaces justice according to law, producing a result that could not, and probably should not, be applied in other like cases. An improvement might have been achieved in the quality of justice in one case, but only at higher adjudicative cost, only by sacrificing equality before the law, and perhaps also by sacrificing other social goals. This has sometimes been recognized by the judges, and it may be one reason why they tend to restrict their role in social insurance cases. When a court decides a case by adding another variable, one of several consequences may follow. The court decision may be ignored as a precedent. Two bodies of law can then result, one for the bulk of applicants, and another for the few who commence court proceedings. Or the court decision might be accepted as a precedent. The system may then involve higher administrative and adjudicative costs, perhaps with negative consequences for substantive rights. For example, funds might be diverted from benefits to procedure. Also, when more judgmental variables are added, certain primary decisions may be referred up the line-management structure. Those decisions are then made by someone who has not heard the evidence or argument. The reluctance to delegate judgmental and discretionary responsibilities to those at the lower level of staff can make this response likely.

6. Political Realities Sometimes, there seems to be a convention in academic debate, as well as in the media and in public life, that political realities should be ignored. But any search for solutions to problems in public administration must take account of political realities. A common phenomenon is that the incidence of political power is different in the legislative process, through which a system is created, from what it is in subsequent administration. This is noticeable, for example, with regard to social insurance systems, trading standards, employment law, and protection of the environment. Public interest groups may have the .resources to campaign for the legislation, and they may gain the sympathy of politicians for the legislation, but when it comes to ongoing administration, it is the corporate world that has the daily presence, the peer group interactions,


31

the resources, the media control and the political clout to frustrate the fulfilment of the legislative mandate. They also have many ways in which they can control or influence the appointments of system administrators and their subsequent careers. This phenomenon helps to explain the perception of statute law that is commonly found in a regulatory body, or an adjudicating tribunal. Within many agencies, the legislation by which they were created is perceived as if it were decorative literature, or a statement of aspiration, not a body of law to be implemented. A related difficulty in many systems of public administration is the conflict between the notion of justice according to law, and the demand for annual budgeting. The problem is most profound in systems that create a right to payment out of public funds. Imagine what would happen if the Chancellor of the Exchequer (Minister of Finance) told the Chief Justice to produce a budget for next year, showing the total amount that the court expects to award on personal injury claims. The legal profession would see that as ridiculous. Twenty-five years ago, the same proposal might have been seen as outrageous if it had been made in relation to an adjudicating tribunal. Nowadays, the political pressures require the accommodation of that absurdity. It is part of the contemporary demand for "accountability". Political pressures at the time of budgeting may also require that the estimates for this type of spending be unrealistically low, particularly if they are tied in with government economic forecasts. The problem of statutory rights being negated by budget decisions is probably at its greatest in systems in which primary adjudication is in a department, and the payments come out of the departmental budget. Legislated rights to payment out of public funds require a pre-emptive allocation of revenues; but people in the finance departments of government do not always see it that way. The political and bureaucratic pressures are commonly for the discretionary expenditures to have priority. An aggravating factor here is that statutory rights to payment usually accrue to humans, who have no political clout. "Discretionary spending" usually benefits transnational corporations. Thus the political pressures run counter to the legal priorities. Other political problems are found in the regulatory bodies, particularly those that are supposed to regulate business. The convention that political realities should be ignored can include a blind eye to regulatory capture, ie., the phenomenon that regulatory bodies are usually controlled by the industries that they are supposed to regulate. The Americans have not been very successful at eliminating this problem, but at least they seem to have done better than the Commonwealth countries in recognizing its existence. These are some of the political realities that help to explain the persistent failure of many public bodies to observe the terms of the legislation that they are supposed to be administering, and to strive for the achievement of its objectives. As well as creating many of the problems, political pressures militate

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against an analytical approach to reform. Contemporary pressures have revived the dependency on shallow forms of "reasoning", denying the need for empirical research. Without such research, "reasoning" can easily reflect media conceptions of how the world works, and a lack of foresight about the significance of particular system changes. The extent to which this is so seems to be directly proportionate to the breadth and extent of a proposed change. For example, if a public servant were to propose a modest reform in a particular system, someone would probably insist that at least the proposed change should be costed. There may also be expectations of a cost-benefit analysis, if only a rudimentary one. Yet when it comes to a panacea that can have profound consequences over broad areas of public administration, such as the Canadian Charter of Rights, that was introduced without costing studies and without the slightest attempt at any cost-benefit analysis.

7. System Reform Returning to the notion of "administrative justice", I have discussed the damaging influence that it may have had in creating problems. Let me now consider whether the notion has any potential value in system reform. As I mentioned earlier, remedies within a system, and in the courts, usually depend upon complaints being filed. Unfortunately, the focus on individual justice has tended to produce the same limitation in the more modern external remedies. The Ombudsman and the Privacy Commissioner have played useful roles, but, like judicial review, they generally respond to complaints. The Ombudsman and the Privacy Commissioner sometimes recommend system changes to prevent a continuation of the problem in other cases; but the process leading to such a recommendation still depends on complaints. What is lacking is any enforcement of fidelity to law that is not complaint-driven. Consider the example of secret criteria being used in adjudication. Sometimes, this has been so extensive that cases are decided by reference to a whole body of secret law. The problem has been mitigated over the last twenty-five years by the publication of adjudicative manuals, but contemporary political pressures support its revival. The problem of secret law needs a remedy in the nature of an audit, not merely a response to complaints. The Auditor-General inspects the accounts of government agencies without waiting for complaints. Surely it could be somebody's job to inspect adjudicating bodies to ensure publication of the criteria being used for making the decisions. This example invites a further question. Is the prohibition of secret law the only prescription that could usefully be enforced on all adjudicating bodies? Should there be other such prescriptions? Or does the notion of "administrative justice" imply that there are some more general over-riding prescriptions that should be applied across the board? Here is where I believe that we need to be cautious.


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Suppose that someone began a presentation at this conference by saying "I have a profound general principle that should determine all structures and procedures, and that will have beneficial effect if it is enforced by a central office over all areas of public administration". Perhaps we would be thinking "That's absurd. He's talking like a Chicago School economist". There is surely a similar danger in talking about "administrative justice". One problem with ideas in the nature of a panacea is that they tend to involve a professional or ideological bias that includes an incapacity or unwillingness to identify the problem, gather the evidence, and work out the optimum solution in a particular subject area. For example, a typical approach of a lawyer is to believe that adjudicative or regulatory structures can be improved by adding something. A typical approach of an economist is to believe that improvements should be made by subtracting something. Many contemporary problems in legal systems have been generated or aggravated by the abdication of governmental powers in the face of political demands for panaceas, particularly the Canadian Charter of Rights, "freetrade", "globalization" and "deregulation". These movements have negative consequences in public administration, including a distorting influence on adjudicative processes; but the problems will not be remedied by any quest for a countervailing panacea. What, then, is the best approach? I believe that the public interest is better served if "administrative justice" is perceived, not as a subject on its own, and not as a rationale for some controlling overlordship, but as a body of thought that can be drawn upon in the design of a particular system, such as income tax, social security, the regulation of road transport, or occupational health. It is in the design of such systems that notions of "administrative justice" can be used constructively, with a minimum risk of collateral damage. The damage that I fear is likely to come when notions of "administrative justice" are forced onto a system by people who have no overall responsibility for the design of that system, and who have made no study of that subject area. The significance of any general principle of "administrative justice" in any particular subject area cannot be understood if it is considered in isolation from the structure and nature of policy-making, regulation-making, budgeting and finance, appointments, promotions and pensions, the culture of the system, economic and political pressures, triggering devices, investigative techniques and strategies, the nature and structure of primary adjudication, and sanctions. A study of these matters requires a concentration on a substantive subject, including the adjudicating agency, its goals, policies and methods. Commonly the modus operandi for this type of study must include survey work. The process of system design should generally include a period of presence by the designer in the relevant department or agency under study to understand its goals, structures, practices, problems and methods of work. Part of the study must be an analysis of the economic, political and bureaucratic pressures operating on the system, and which may promote or defeat

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the policy objectives of the legislation. To adopt some general prescription, other than in the context of a subject-area study, would be to seek law reform through the methodologies of a bull in a china shop. One problem is that when "administrative justice" is discussed outside the context of a particular subject, there is a propensity to advocate more procedural fairness without putting the basic questions: What would be the achievement? What would be the cost? What consequential changes would result to other features of the system? What would be the collateral damage, if any, to private interests, or to the achievement of public policy objectives? Are the perceived problems real problems, and if so, are there better ways of solving them? One of the problems with judicial review is that the courts generally decide on the level and type of procedural fairness without knowing the answers to those questions. It is impossible to determine the optimum level and type of procedural fairness without a cost-benefit analysis in the context of a particular subject. Consider the example of whether oral hearings should be required. An argument for a hearing requirement can refer to general principles and the experience of the profession. To the extent that there may be a rational argument against a hearing requirement, it may relate to excessive cost, the damage that might be done by a hearing requirement, or the availability of a preferable alternative. Such an argument will usually depend on evidence and reasons that are specific to a subject area. The desirability of hearings can only be decided intelligently by a cost-benefit analysis in the context of particular issues in a particular subject area. The notion of "administrative justice", with the propensity to adopt the adversary system, has sometimes resulted in hearing requirements being so extensive that they lead to pure waste. In Ontario, for example, the Criminal Injuries Compensation Act required that for every application, the Board shall hold a hearing. When I reviewed the procedure for criminal injuries decisions in British Columbia, I found that: (i) The majority of claims were for minor injuries, so that, on any view of the case, the compensation would be less than the cost of a hearing; (ii) In some cases of severe injuries, it was obvious that the statutory maximum should be paid, and there was no issue on which a hearing could help; (iii) In a few cases, it was clear from statements in the application that the claim was outside the coverage of the Act (for example, the applicant states that the crime was committed in another jurisdiction); (iv) The vast majority of applicants did not want a hearing. We decided that the Board should hold a hearing only when the Board felt that a hearing was needed (about 4% of claims), or when the applicant asked for one (another 4%). Except where the Board wanted a hearing, applicants were sent the draft of a tentative decision, based on the documents onfile,and


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offered the choice of approving the draft, sending in further documents, a telephone discussion with the adjudicator, an informal interview with the adjudicator, or a hearing. A common response was that an applicant would ask for one or two changes in the draft, and the decision was finalized when these changes were made. Another example of the dangers of generalization is whether there should be some right of appeal, or at least a right to have a decision reviewed. Structures for review or appeal are sometimes beneficial, but sometimes counter-productive. For example, in some situations of bilateral or multilateral conflict, the availability of an appeal might simply create a bias in favour of those best able to afford the process. In some situations, a right of appeal might increase the risk of any abuse of power, while in others, it might reduce that risk. The matters decided by tribunals and other agencies often involve multiple public and private interests, which have been accommodated by the structure and procedures of the agency. Some of these interests would never be represented by advocacy at a hearing. It would seldom be an improvement to have decisions of that type subject to review or appeal in a court that is geared to the adversary system, that usually insists upon a "respondent", and that was designed to function at its best in a context of bilateral conflict. This problem is not solved by having appeals to courts that are confined to "a question of law". If it is done intelligently, appellate adjudication is policymaking. A comparison of "legal reasoning", drawn from court judgments, with "political argument", drawn from Hansard, shows that a "question of law" does not have a discrete character that distinguishes it from a question of policy development. In some contexts, allowing such appeals may negate democratic values by allowing key questions of policy to be decided by a judiciary that is less representative of broader public interests than the tribunal from which the appeal comes. In other contexts, such appeals may promote democratic values, requiring tribunals or administrators to adhere to the terms of a statute. The existence and nature of any structure for review or appeal can only be decided intelligently in a study of a particular subject area, including empirical research, looking at the goals of the system, and analysing the best ways of achieving those goals. Another example of a matter that should not be decided by reference to any general principle is "notice and comment" requirements for the promulgation of regulations. This is the idea that the promulgation of regulations should be preceded by the publication of a draft, public notice of the availability of the draft, and an opportunity to comment before the regulations are finalized. In some situations, such a requirement could help to contain the problem of regulatory capture, but in other situations, it could aggravate that problem. The notion of "administrative justice" can also enhance the power of the law offices of the Crown in a way that impedes reform. (I refer to "the law offices" collectively because these comments may refer, in contemporary

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England, partly to the Lord Chancellor's Department, and partly to other offices; and, of course, the Commonwealth countries distribute government legal functions differently). When associated with public administration, the word "justice" tends to classify a matter as requiring attention from one of the law offices of the Crown. In that way, the term "administrative justice" tends to conceal conflicts of interest. The law offices can be valuable if they see their role as supportive, but when the word "justice" is used, the law offices may come to play the dominant role. In the law offices, lawyers are generally the dominant group. In at least some jurisdictions some of the time, their professional orientation is with the legal profession. The primary conflict of interest is this. The legal profession has an interest in complexity. Some other professions, and sometimes the corporate world, also have an interest in complexity. Ordinary people and small business are generally better served by simplicity in system design, and in decision-making processes. Moreover, it is the front-line departments and agencies that are usually most familiar with the goals to be achieved and the most efficient ways of achieving them. The law offices have the expertise in relation to what might be called "lawyers' law"; but for other subject areas, the more that decisions are made in the law offices, the greater the risk that crucial decisions will be made by people who lack a clear understanding of the significance of what they do.

8. Proposals I have stressed the danger of any quest for a panacea, and the need for reform to be by way of studies that are specific to a subject area; but the question remains: should reform in adjudicative structures and processes be confined exclusively to subject area developments, or is there any useful role for more general studies? I think that certain questions can reasonably be detached from subject areas, and on those questions a broader study can be constructive. For example, should appointments, promotions and terminations in the public service require an opportunity to be heard, or reasons for decision? There are good arguments both ways. Their cogency may vary with the level and functions of a position, but not usually with the subject area. It is normally with regard to the output decisions of a tribunal that procedural diversity is required. It may not be required for certain decisions relating to internal management. There may also be justification for a few basic general requirements. One that occurs to me is the publication of all criteria used in adjudication. This is aimed at the problem of "secret law", mentioned earlier. It might also be constructive, though risky, to produce a list of matters that should be considered in the design of any system of adjudication. These are matters that should be considered when system design is being reviewed in a subject area. The danger is that such a list could easily be referred to by the


37

courts, or in the law offices of the Crown, as a way of controlling decisions that ought to be made elsewhere. Each item on this list would refer to something that is commonly desirable, but not always so. Even when it is, it would need to be weighed in the balance with other competing and sometimes conflicting goals. That should be a function of those responsible for system design, not for those who see only limited aspects of the subject. Even if those risks could be averted, there would still be a danger that the proposals listed in such a code would tend to achieve a pre-eminence over alternative features that could achieve other goals, perhaps goals that are less obvious to lawyers. If such a list was produced, what might it contain? As a starting point, my suggestions are these. 1. The possibility that the relevant law be consolidated into adjudicative manuals. 2. The traditional opportunity to be heard, though without any bias in favour of adversarial "hearings". 3. In systems that involve the payment of money, and which are audited, the auditor should be looking for under-payments as well as over-payments. 4. The convention that departmental decisions are made in the name of "the Minister" should be discarded for decisions of an adjudicative nature. The constitutional rationale for the convention is clear to lawyers, but to the ordinary citizen, it can be confusing to receive a letter stating that "The Minister has decided . . .", and which then advises of rights of appeal to a panel appointed by the minister. 5. Where reasons for decision are given in writing, they should be written by the person who made the decision. The most important reason for this is quality control in public appointments. 6. The language of an adjudicating body should, as far as possible, be the ordinary language of communication, not the jargon of the legal profession. For example, people should not ordinarily be required to "appear" at a "hearing" to "present your case". It would usually be clearer and more welcoming to invite them to come for a meeting with . . . to discuss the matter, and to accompany this with some help on what and who to bring with them. 7. Unless there is a particular reason for doing so, people should not be told that they must separate evidence from argument. The decision-maker should be better trained to do that than most other people. 8. There is commonly no need to insist that all evidence and argument must be produced at a single event, analogous to a trial. Often it is more compatible with ordinary forms of communication to proceed in stages. 9. The use of "referrals" should be minimised. In many systems, a primary decision-maker determines most questions that arise in a case, but certain questions are referred for decision by someone else, perhaps someone

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10.

11.

12.

13.

TERENCE G. ISON

more senior in line-management, or perhaps a staff expert. The initial decision-maker has usually received the evidence and argument first-hand, while the effective decision on some critical issue may be made by someone who has not. It is also common in these referral processes that discussion within the agency becomes an inefficient substitute for inquiry outside the agency. Concurrence becomes a diversion from personal responsibility for investigation and decision. There are usually better alternatives to referral systems. For example, if certain issues in a case require more senior attention, it would usually be better to move the conduct of the whole case to the more senior person, including the conduct of interviews and other types of investigation. Where a referral really is needed, such as to an expert on a particular matter, it would usually be better to make the referral for an advisory report, rather than for the decision of an issue. The report can then be made available to the parties for comment, so that the expert functions more like an expert witness than a collateral decision-maker. An appellate structure is often desirable, but in many subject areas, it should not be the principal medium of quality control in relation to primary adjudication. There may need to be a quality control unit, doing spot checks, monitoring processes and decisions in primary adjudication in cases where there are no complaints. Caution should be used in creating rights of appeal, and before adding another level of appeal. The existence of complaints about decisions made at the final level of appeal is not, by itself, a symptom of anything amiss. Even if a system is operating as efficiently as possible, including the maximum achievable justice, there would still be complaints about some of the decisions made at the final level of appeal. The role of an appellate body should not necessarily be confined to the grounds stated or to the issues raised by the parties. Also, an appellate body may sometimes be allocated functions other than appeals. For example, it might decide certain cases or issues at first instance, or it might produce the adjudicative manual to be used in primary adjudication (as well as on appeals). In large volume systems with a pyramid structure, "reconsideration" should usually be prohibited. I am not talking about decisions that were accepted when made, but subsequent events have changed the circumstances. I am talking here about complaints that the initial decision is wrong. Many systems have a process of reconsideration for dealing with such complaints. Even when aggrieved parties insist that they want to appeal, some systems require that the matter go first to the reconsideration process. Usually this is in the same unit as primary adjudication, or in a unit closely related to primary adjudication.

The injustices and delays that are caused by "reconsideration" have been

"Administrative justice": Is It Such a Good Idea?

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mentioned earlier. The rationale commonly heard for "reconsideration" is that it can avoid the costs and delay of an appeal. Following an adverse decision, people often send in "new evidence", and "reconsideration" enables a decision to be changed in response. A difficulty with that rationale, found in my experience and empirical research, is that it is almost 100% untrue. Roughly half of the cases in which I have found a decision to have been altered on reconsideration were cases in which no further evidence had been received. The other half were cases in which further evidence had been received, but it was not new. It was available prior to the initial decision, but it had not been sought. In almost every case, the only reason why the initial decision needed to be altered was that it had been made in the first place without any adequate enquiry. But this inadequacy in primary adjudication is encouraged by the availability of reconsideration. The real attraction of reconsideration for system administrators is that it helps to conceal from public view the full dimension of the inadequacies in primary adjudication. To maintain the pressure for an acceptable quality of primary adjudication, it is crucial that senior administrators and primary adjudicators know that if cases are shabbily decided at first instance, the magnitude of the inadequacy cannot be concealed from the appellate body. A prohibition of reconsideration would not generally result in primary decisions not being reviewed. If the system is one in which the unit of primary adjudication responds to appeals, a notice of appeal would require a case to be reviewed to decide on the response. If it then appears that the initial decision was wrong, the appeal can be conceded. This type of review preserves any advantages of reconsideration while eliminating its negative effects. It is better than reconsideration in several in several ways. (a) It does not delay appeals. (b) If the decision is reversed because the unit of primary adjudication concedes the appeal, the reversal becomes part of the appeals statistics. Any large number of such concessions would be more public, potentially embarrassing, and therefore an influence for the improvement of primary adjudication. (c) If this type of review does not produce a change in the decision, the claimant does not suffer the therapeutic harm of two negative decisions, perhaps both made without procedural fairness. (d) Since this type of review does not involve interaction with the claimant, it cannot be used as an opportunity to discourage an appeal. Even the receipt of a second negative decision can sometimes have that effect. (e) Since the claimant does not have to file two complaints (one for the reconsideration and another for the appeal) the claimant is less likely to be discouraged from appealing by the fear of being perceived as a persistent complainer.

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9. Conclusions Of course there are general principles that should be considered in the design of a system of adjudication in any subject area, but for the reasons that I have explained, the application of those principles in any particular subject area should be determined either by those who have a career focus on that subject, or in the context of an overall study of that subject area. I am sceptical about the use of overview bodies. Perhaps some of them have achievements that are unfamiliar to me, but I am apprehensive about their propensity to favour structural and procedural homogeneity. An over-riding cause of contemporary problems in public administration and adjudication is surely that the political pressures of our time have led to a deterioration in the methodology of system change. We did better when the bombs were falling on London than we have in more recent years. For example, the Beveridge Report reflected acceptance of the principle that system design requires someone to play the role of system architect. Similarly, in earlier years in Canada, we sometimes had a system designed or changed in a scholarly way by a properly constituted Royal Commission. Nowadays, systems are commonly changed by thrashing out compromises with or among interest groups on the supply side. Sometimes, the political pressures seem to require that even fundamental system changes be made in a way that can fairly be described as flippant, or as government by fumble and tumble. With regard to the role of the law offices of the Crown, I believe that they will make a constructive contribution if they proceed modestly, playing a supportive role, rather than any role of oversight or control. That supportive role might include: 1. Research on alternative adjudicative structures; i.e., structures that do not involve either the adversary system or mediation. The aim might be to develop four or five models, not with a view to adopting a standard, or to coercing the use of any of them, but simply to make the models, and the discourse around them, available to broaden the vision of those responsible for the design and development of particular systems. 2. Enforcing a short list of process requirements. The only one that occurs to me at the moment is the prohibition of secret law. 3. Providing a list of matters to be considered in system design, but with no obligation on system designers to decide them in any particular way. 4. Supporting services, as requested, for commissions of enquiry that study particular subject areas. My main apprehension about the discussion of "administrative justice" is that it will not help to alleviate the negative political pressures that create the problems. It is more likely to generate proposals for another overview agency.


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Such an agency could be damaging, primarily for the diversion that it would create from the problems, and from more promising solutions. Reform is more likely to be constructive if it is sought through studies that focus on particular subject areas, and that proceed in a methodical way, including empirical research. That cannot happen in the context of a broad overview function.

The Place of Formal and Informal Review in the Administrative Justice System MICHAEL HARRIS

Introduction HOULD a person wishing to challenge a primary administrative decision initially be required to have it re-assessed internally before being allowed to appeal to a tribunal? This is what I mean by "formal review', i.e. internal review as a legal prerequisite to invoking external review. The question has in one sense become less problematical since the eclipse of formal review and its replacement by a system of informal revision (review) in the Social Security Act 1998.' Despite this recent turnabout by the government, however, the question whether such formal review has in principle a proper place in any system of administrative justice remains a valid subject for discussion. Since 1991 requiring a prior internal re-assessment of possibly defective decision-making had been a device favoured by the bureaucracy, especially in the social security area. 2 That experiment has now been abandoned in favour of what one might broadly term the old orthodoxy which from its inception had opposed formal review. It argued that postponing the right of appeal until an internal re-

S

1 According to the Explanatory and Financial Memorandum that accompanied the Bill it was intended to "simplify] . . . decision-making and appeals in social security, child support and vaccine damage payments . . . "(ibid.,I) Apart from producing initial administrative savings, the new decision-making, revision and appeal structures are expected over the longer term to produce about £50 million per annum (ibid., 13). 2 The background to these changes is the DSS Consultation Paper, Improving Decision Making.and Appeals in Social Security (SO, 1996), Cm. 3328. Systems of formal review, now replaced by a process of informal revision, were to be found in s.33(l) of the Disability Living Allowance and Disability Working Allowance Act 1991; s.2O of the Child Support Act 1991; and s.ll of the Jobseekers Act 1995.

The Place of Formal and Informal Review

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assessment had taken place was both illegitimate in principle and undesirable in practice.3 In this paper I examine the strength of the case against formal review and then the arguments in support of this approach. Initially, however, I consider the prior question of what the term "review" properly connotes, especially when it is used in the same general context of reviewing administrative decisions as the term "appeal". Thereafter I examine the meaning of the terms "formal" and "informal" review. I also explain why, until the brief flirtation with formal review, informal review as developed in the social security adjudication system, had always been regarded as the "ideal" or "mainstream" type of review. In addition I briefly examine the extent to which the "revision" system in the 1998 Act reflects the main features of this "ideal" type. In the next section, I critically evaluate the arguments against prescribing internal review as a formal prerequisite to the exercise of the right of appeal. In the final section I attempt to place the competing arguments in context, concluding that formal review has a greater legitimacy and utility than its opponents have allowed. I suggest that, notwithstanding its abandonment, formal review might have co-existed with the Franksian independent tribunal model as an appropriate element of a system of administrative justice.

Matters of Terminology The Distinction Between Review and Appeal We will need to return to this issue again because of the argument that formal review is, at least in effect, "the first formal tier of an appeals system". 4 Nevertheless, whether or not internal review is required before a tribunal can carry out a reconsideration, there are certain obvious differences in the two processes, although they are frequently either conflated or inadequately distinguished.5 Essentially review is a re-appraisal of a primary decision within the administrative area responsible for making that decision. In this sense it is a continuation of the primary administrative decision-making process. An appeal, on the other hand, involves a process of de novo re-evaluation of the legal and substantive efficacy and acceptability of the original decision by a body forming no part of the primary decision-making structure. The typical forum for an appeal is an independent tribunal whose powers derive from 3

See esp. R. Sainsbury, "Internal Reviews and the Weakening of Social Security Claimants' Rights of Appeal" in G. Richardson and H. Genn, Administrative Law and Government Action (1994, Clarendon, Oxford), 287-307; and also T.G Ison, The Administrative Appeals Tribunal of Australia (1989, Law Reform Commission of Canada), 32-5, 52-3. 4 Sainsbury, loc.cit.,supra n.3, 305. 5 As in the DSS's recent Consultation Paper, op. cit., supra n.2.

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MICHAEL HARRIS

some source of public power, usually a statute. In addition to this essential point of distinction, one could add that generally a review can only be conducted on limited grounds, usually set out in legislation.6 In the case of appeal, by contrast, the grounds are typically at large, allowing the tribunal to make a completely fresh determination of the matter rather than continue the original decision-making process.

The Distinction Between Formal and Informal Review The essence of internal review is reconsideration. This can be carried out by the primary decision-maker herself, or by a different and possibly more senior officer. The rationale for this process is that "[i]t is always sensible to reconsider a decision that is disputed and to have regard to the grounds on which the dispute is based and the reasons underlying the decision at issue."7 In the case of informal review reconsideration may be triggered either by the unilateral decision of the primary decision-maker to reconsider her decision, for example because an appeal has been lodged, or because the person aggrieved has requested that she or another officer should reconsider her decision. There is frequently specific legislative provision for reconsideration of an adverse decision at any point in the review process.8 This idea of internal review as a naturally occurring administrative procedure provides the ideological basis for what has been characterised the "ideal" or "mainstream" type of review.9 This is a process in which the internal and the external (adjudicative) elements work together harmoniously but independently. Together routine internal review and independent external appeal constitute what has been called the adjudicative model of review. It might be instructive at this point briefly to examine the extent to which the Social Security Act 1998 fits this model or type. The most obvious feature of the Act for our purposes is that it goes some way towards restoring the adjudicative model to a position of primacy. All those areas where a system of formal review, or some variant thereof, had hitherto been in operation, in particular in respect of decisions made in the Social Fund, Child Support, Disability Working Allowance and Jobseekers Allowance (especially jobseekers' agreements) areas, are returned to the fold of informal review. Thus the Act gives the Secretary of State or her delegate the power to revise (review) any decision of hers, either upon application or at her own instigation. The grounds upon which a revision may be made are to be prescribed by regulation. Anybody 6

See, eg, s.25 of the Social Security Administration Act 1992. S.Skehill. "The Hidden Dimension of Administrative Law: Internal and First Tier Review—I" in Administrative Law: Retrospect and Prospect (1987) 58 Canberra Bulletin of Public Administration 137, 138. For a contrary view see Ison, op. cit., supra n.3, 32-5, 52-3, repeated in his paper in their collection, "Administrative Justice: Is It Such a Good Idea?", supra pp. 38-39. 8 See eg, 5.25(1) of the Social Security Administration Act 1992. 9 Well described by Sainsbu'ry, loc cit., supra n.3,288-90. 7


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affected by a primary decision, whether as originally made or as revised, has a right of immediate appeal to an appeal tribunal. The new Act, therefore, exhibits most of the characteristics of the ideal type of internal review. Revision is a routine mechanism, operating not necessarily because a claimant has sought it, but because the decision-maker herself may wish to invoke it for checking on and if necessary correcting original error. It conforms to the rationale of "allowfing] officials a simple and quick means of changing decisions without claimants needing to make a fresh claim or lodge a request for a formal appeal." 10 Secondly, the right to seek an external review by way of appeal to a tribunal does not depend upon either the decision-maker deciding unilaterally to review the original decision, or upon the person affected formally requesting an internal review. The most obvious, and I would think controversial, aspect of the process of informal review contained in the Act is that it is apparently to be carried out by the original decision-maker herself. Hence the interposition of a different adjudication officer from the one who made the original decision as one finds in the "ideal" model has gone. Indeed so have the functions of adjudication officers and their equivalents under the Social Fund and the Child Support schemes. This aspect of the Bill is considered later when assessing the arguments in favour of formal review.11 Formal review differs from informal review by making an internal review a prerequisite for exercising a right to an external review by way of an appeal. This constitutes a clear departure from the "ideal" (adjudicative) model of internal review. No longer is it a routine administrative procedure operating concurrently with appeal. It has become a pre-condition for the exercise of the latter. Critics of this approach have argued12 that making the internal stage mandatory could well compromise the value of external review by an independent tribunal. In sum, the difference between formal and informal review lies in the fact that with formal review external review, by way of an appeal, is subject to a prior requirement of internal review. In the case of informal review, by contrast, the right to go on appeal arises and is capable of being pursued immediately the original decision has been reached. This does not in any way preclude internal review taking place—indeed there may be specific provision for that to occur. But the point is that it does not have to take place. And if it does take place, an appeal can still be in train.

10

lbid,289. Infra text at nn.46-48. And see further the discussion of these and other aspects of the problematics of reform in the paper by Sainsbury in this collection "The Reform of Social Security Adjudication", esp. text at nn. 4-15 and 48ff. 12 Sainsbury, loc. cit., supra n.3, 294-6. 11

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The Objections to Formal Review As previously noted there is, according to Sainsbury, an "ideal" type of internal review13. Its basic characteristic is that it is an informal administrative process allowing officials "a simple and quick means of changing decisions without claimants needing to make a fresh claim or lodge a request for a formal appeal." 14 This was to be contrasted with formal review. Sainsbury argued that when the prior conduct of an internal review was made a precondition for appealing it became, in effect, "the first formal tier of an appeals system". 15 Instead of providing an administrative rationale, internal review had, so to speak, been driven into the arms of appeal. It was no longer intended to function as "a means of correcting error", but as "a means of redress". 16 It had, in short, been "move[d] from the machinery of administration to the machinery of adjudication."17 And since it had in reality become the first stage of an appeal process, it must be judged by those criteria which ever since Franks have generally been accepted as the marks of an adjudicative process, in particular independence and impartiality and the opportunity for a greater degree of participation on the part of an applicant.18 However, the question is whether its legitimacy should have been judged in this way. If Sainsbury's argument was that making internal review a formal prerequisite had changed its character in a conceptual sense, then I cannot agree with him. Merely making it mandatory, when in the so-called "ideal" type it was discretionary, did not alter its essential character. It is for this reason, I would submit, that the Council on Tribunals was originally prepared to give formal review its imprimatur when considering its introduction into the review systems for Child Support assessments19 and Disability Allowances:20 "The present tendency to provide expressly for such reviews does no more than formalise the process of reconsideration which should in any event properly be regarded as good, standard administrative practice .. ."2) However, it may be that Sainsbury was not actually arguing that formal review represented a conceptual shift from an administrative to an adjudicative process. On the face of it, formal review met his definition of the "ideal" type in that it was still, notwithstanding its mandatory nature, "an internal mechanism carried out by officials of the relevant administrative organization" and in all instances where it had previously been used22 review was only n

H ls Supra, n.9. hoc. cit., supra n.3,289. " Id., 305. Id., 297. l8 Ibid. Ibid., 299-303,306. " Child Support Act 1991, s.20. 20 Disability Living Allowance and Disability Working Allowance Act 1991, s.33(l). 21 Council on Tribunals, Annual Report 1990-91 (HC (1991/92, 97), para 3.27 (emphasis supplied). 22 Supra n.2. 17


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carried out "on limited grounds defined in legislation".23 What alone made formal review objectionable was the additional fact that it blocked the path of immediate access to a tribunal hearing. While this did not distinguish the two types of review in a conceptual sense, it suggested a further, pragmatically-based criticism of formal review. On this aspect of formal review Sainsbury was both explicit and trenchant: "When the Council on Tribunals warns us that internal review should not be regarded as equivalent to a right of appeal . . . , I think it is absolutely right. But I don't think that the Council has recognized that this is effectively what has happened. Aggrieved claimants of some benefits are not in the first instance offered an independent adjudication. They are offered an administrative review. So if I take the position of a dissatisfied social security claimant, what I am doing when I am expressing my dissatisfaction with a decision is effectively making an appeal, however I term that, whatever language I use to express it." 24

Substituting a de facto appeal for a review would not, presumably, in itself have been objectionable given that there was a further (authentic) appeal from an unfavourable first stage decision. But according to Sainsbury, this was not the reality of the situation, whatever the apparent availability of two opportunities for correction. On the contrary, the reality was that where internal review had been made mandatory, it would be likely to supplant the tribunal, thus depriving those seeking it of a truly independent evaluation of the merits of the primary decision. This assertion was founded on the argument that to a disappointed applicant seeking to challenge an initial decision there would be no sensible distinction between a formal (internal) review and an (independent) appeal. On this view it was likely that those who failed to persuade at what had effectively been transmuted into a first tier appeal (as opposed to a true administrative review) would be put off and be less inclined to go further and avail themselves of their right to an independent appeal: "Let's think of their position, they have failed twice, first in their original claim to get what they wanted, and secondly at the internal review. Not many people can stomach going on further or see much point in going on further."25 The effective loss of the right to an independent appeal caused Sainsbury to conclude that "the public has been sold a dud which I think the Council on Tribunals has bought as well."26 And he was quite clear that the pass had been sold deliberately in order to deter claimants and so save the Treasury money.27 23

Loc. cit., supra n.3, 290. "Administrative Review or Tribunal?", Conference of Tribunal Presidents and Chairmen, 22nd April 1994 (Council on Tribunals, 1994), 14 (emphasis supplied). See further loc. cit., supra n.3, 306. 25 "Administrative Review or Tribunal?", loc. cit., 17. 26 Id.. 16. ^ Ibid. 24

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The charge that the then government had resorted to formal review for such a base purpose was clearly serious, as was the assertion that the bodies responsible for protecting the public, most notably Parliament and the Council on Tribunals, were gullible in not seeing what was going on behind the facade. I do not propose to deal with the first charge of governmental bad faith since it is most unlikely that such a charge could be proved. Certainly it is unlikely that the government responsible for introducing formal review would have been forthcoming in admitting that it had introduced that administrative system with a view to depriving the meritorious weak of their legal entitlements. As to the charge of gullibility, I have already referred to the Council on Tribunal's acceptance of the propriety of this approach.28 What then of Parliament? I have carried out a close examination of the parliamentary record relating to both the Child Support Agency (CSA) and Disability Living Allowances (DLA), two areas in which formal review has hitherto operated. In my view it is difficult to sustain the suggestion that the government was disingenuous in the way it introduced the legislation29 or that Parliament did not appreciate that what was being proposed necessarily involved rejection of the right of immediate appeal. My impression is that the government explained quite clearly that it was seeking a system that would allow errors to be put right with a minimum of fuss, but without diminishing the importance of the right of further appeal where an applicant was still dissatisfied. As far as the government's interlocutors were concerned, if the problem of a formal review potentially compromising the value of a further appeal to a tribunal did occur to them it must not have seemed especially significant. Their dominant concern was rather with ensuring that any formal review would involve an authentically fresh appraisal of the original decision, in particular by reposing that power in a different officer from the one who made it. In this way formal review might capture something of the quality of a truly independent review while avoiding the need for immediate exposure to the greater formality and adversarialism of a tribunal appeal. Although this does not establish that Parliament was correct wholly to discount the threat posed by formal review, it does establish that its introduction did not go by default and that there was a rational basis for accepting it. The point remains that where tribunal re-examination (appeal) had been made to depend upon prior internal (formal) review in this way, there might yet be a danger of the former becoming confused with, if not subsumed by, the latter in the minds of those seeking to reverse an adverse primary decision. The specific danger, according to Sainsbury, lay in the fact that those who had been required to seek a formal review and who had done so unsuccessfully would be inclined to give up on what they might realistically perceive as being 28 29

Supra n.21. See Sainsbury, h e . cit., supra n.3,295.


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a mere continuation of the process of internal check by the administrative area responsible for the original decision.30 Sainsbury supported this by reference to two studies, one on the social fund,31 the other on housing benefit32, both of which have of course now been made subject to the new regime of informal revision or review which is being brought in.33 His conclusion on the evidence of these two studies was that "failure at internal review leads the majority of claimants of these two benefits to give up their appeals . . . [T]he best estimates were that some 90% of the losers at internal review . . . give up." 34 I have looked at both the studies and think some additional observations ought to be made about them. First, the Dalley and Berthoud study. In 1991/92, out of the 840,000 applicants who had been unsuccessful in getting adverse primary decisions changed following an informal review, 186,500 (22%) requested a first formal review. Of these, 33,000 (18%) had withdrawn their applications, 68,900 (37%) had been successful and 84,000 (45%) unsuccessful. Of the 84,000 who had been unsuccessful, 15,250 (18%) had gone on to the second formal review stage35, representing an 82% (as opposed to a 90%) drop-out rate for those who had unsuccessfully participated in the first stage review. However, what was arguably more significant was that an 18% take-up rate for second stage review was fairly comparable with the 22% of unsuccessful claimants who had taken up the opportunity of a first stage review. The authors also conceded that there might well have been other factors, such as the wide disparity in the rates of acquiescence in adverse primary decisions from region to region,36 as well as variations in the systems by which those who had been unsuccessful at the first stage were notified of their right to a second review,37 to be investigated before a more definitive view of the effects of a mandatory first stage review could be arrived at. The Sainsbury and Eardley study of housing benefit had concluded that the formal internal review stage reinforced negative attitudes towards the exercise of appeal rights, strengthening the control already exerted by housing benefit officers over the matters going on appeal and reducing the number of appeals.38 They estimated, notwithstanding reservations about the statistics kept on formal reviews,39 that "the vast majority (probably over 95 per cent) of queries, grievances and appeals (sic) . . . are disposed of by officers informally or by internal review and do not go as far as a Review Board . . .'>4° However, they did allow that the 95% figure was somewhat speculative—"the 30

"Administrative Review or Tribunal?", loc. cit., supra n.24, 16-17. G. Dalley and R. Berthoud, Challenging Discretion. The Social Fund Procedure (1992). 32 R. Sainsbury and T . Eardley, Housing Benefit Reviews. An Evaluation of the Effectiveness of the Review System (DSS Research Report Series, No.3 (1991)). 33 Social Security Act 1998, ss. 8(2), 34 (housing benefit); 8(3)(f), 36 (social fund). 34 Loc. cit., supra n.24, 16-17. 35 36 37 Supra, n.3\. Ibid, 120. Id., 74. 38 39 Op. cit., supra n.32, para. 6.8. Id., para 2.21. *° Id., para. 3.4. 31

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number of internal reviews held in local authorities is not known [and] we cannot be certain of the number of Review Boards being held . . ."41 Moreover, in the case of housing benefit, formal reviews were conducted by the same officer making the original decision and without defined grounds. There were, therefore, grounds for caution when extrapolating from the studies over what might have been happening in those areas which had most recently utilised formal review. As much was conceded by Sainsbury: "Although I have quoted these studies as saying 90% of losers of internal review give up, these figures may be very different for the new disability benefits, [for the jobseekers allowance] or for child support appeals. The evidence is just not there yet."42 Taking the other two areas where formal review previously operated—DLA and CSA—an examination, first of all, of the available statistics in the CSA area during the period formal review was in place yields up very little that could have been used to confirm or deny a 90% figure in that area. For example, the CSA's Annual Report for 1994/95 discloses that in that year there were 27,295 requests for formal review, some 28,272 requests were cleared (presumably including some from previous years) and 6,654 appeals from the child support area were dealt with by the Independent Tribunal Service. However, no information is provided on how many requests for review were refused (there was a right of appeal against such a decision), how many reviews were actually carried out, what the results were (presumably some of those were favourable to the applicant), nor, finally, how many of the appeals filed related to review decisions. In the absence of this kind of information it is not possible to say what percentage of those who had been unsuccessful at the formal review stage went on to appeal. As to DLA reviews there are indications in figures I obtained in 1997 from the Benefit Management Branch concerning DLA reviews and appeals that a postulated drop-out rate of 90% was too high in the case of this benefit. For the period April 1996 to March 1997, some 266,342 formal reviews were carried out. The number of appeals emanating from unsuccessful reviews was 45,513. Even if we assume that none of the 266,342 reviews was successful, the figure of 45,513 appeals represents an appreciably lower drop-out rate than 90%, viz 83% . Since, however, we must take it that a proportion of these reviews was successful, the percentage of those who, despite being unsuccessful, were not inclined to appeal to a disability appeal tribunal would have been lower still. If we were to hypothesise a success rate at the formal review stage of 60% (as a comparator, the percentage of complaints found to be fully justified by the Parliamentary Commissioner in 1992 was 62%) that would produce a figure of 106,537 disappointed applicants. A 90% abandonment rate equates 41 42

Id., para. 2.21. "Administrative Review or Appeal?", h e . cit., supra n.24, 17.


51

to some 95,883 giving up at this stage and 10,654 going on to the appeal stage. In fact, as we have seen, some 45,513 exercised their right of appeal. Working on our hypothesised figure of 106,537 unsuccessful formal review applicants, this means that 43% went on to appeal, a drop-out rate of 57%. This scenario must, however, remain speculative, since the actual figures for those who were successful at the formal review stage have not been published and cannot be made available by the agency. My conclusion, nevertheless, is that the postulated figure of 90% would prove to be significantly too high in respect of both CSA and DLA.

Observations and Conclusions Observations of Principle (1) At a theoretical level there is a certain coherence, not to say elegance, about all forms of internal review in that they locate initial responsibility for correcting administrative decisions within the area responsible for those decisions. (2) Where, as under previous legislation,43 internal review had been made a prerequisite to the exercise of a right to appeal to a tribunal, this did not in principle alter the conceptual nature of what is still essentially a process of reconsideration. (3) In any case formal review remains a rational first stage in the process of correction, particularly in high-volume areas, since it entrusts that responsibility to a structure that will prima facie be speedier and cheaper than external (tribunal) review based on the curial model. In this way it can operate "as a filter upon the number of cases that might otherwise need to be resolved in a tribunal or court." 44 Furthermore, it provides an opportunity for resolving disputes without putting the person aggrieved to the potential ordeal of a tribunal hearing in an adversarial context. 45 (4) Where the process of internal review has been formalised, it seems rational to insist that this avenue should be exhausted before an appeal is put in train. Obvious arguments for not allowing an immediate appeal are that it could be both wasteful of resources and might affect the efficacy of the review. (5) Both formal and informal review are in principle very much part of good administration. They not only provide logistical advantages (see above), but are also good for morale in that they allow the relevant administrative area to 43

Sec supra, nn. 1,2. Review of Commonwealth Merits Review Tribunals (Australian Administrative Review Council (ARC) Discussion Paper, 1994), para. 3.18. AS See N. Wikeley and R. Young, "The Administration of Benefits in Britain. Adjudication and the Influence of Social Security Appeals Tribunals" [1992] Public Law 238, 241. 44

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M I C H A E L HARRIS

assume responsibility for its errors without the intervention of an outside tribunal or court.

Practical Oberservations (1) Formal review need not necessarily be seen as an aberrational departure from the "ideal" system of informal review operating in tandem with an automatic right of immediate appeal. 4 * We should not deprive ourselves of the opportunity to experiment with variations on the review/independent appeal theme. Thus, for example, although the CSA area previously utilised formal review, it also insisted that where there was an application for review this should be conducted by a different adjudication officer from the one who made the original decision. This safeguard has not been incorporated into the new integrated system of internal, informal revision. Instead it is the Secretary of State or her delegate as the primary decision-maker who carries out the review.47 It is submitted that this is open to objection on at least two grounds. First, there is the practical objection that primary decision-makers should be focusing on making decisions accurately in the first instance. A process that stipulates that whenever they are asked they should be obliged to carry out a revision of their original decision could well have a detrimental impact upon both the quality and the efficiency of primary decision-making. And secondly, there must surely be the appearance, if not the reality, of a want of impartiality if a revision is carried out by the same person who made the original decision. This objection applies a fortiori where a decision made by an officer on revision is portrayed to the applicant as a decision of the Secretary of State.48 Moreover, even a "hierarchy of reviews" of the kind previously associated with the Social Fund review system, but now done away with like the rest of formal review, and which was in any case always criticised out of hand, 49 is not necessarily as objectionable as may at first appear. For provided an appropriate degree of independence can be secured, as was arguably the case with the Social Fund Inspectorate, 50 there is a persuasive argument that a purely internal "appeal" structure can offer advantages in terms of co-ordinating the development and application of policy. 51 (2) Furthermore, the extent to which formal review diverged, or needed to diverge, from the "ideal" type can be exaggerated. For example s. 19(1) of the 46

Supra, text a t nn.9-10. *7 Social Security Act 1998, ss. 40-^4 (child support decisions). *s See n . l l supra 49 See, e.g. special report of t h e C o u n c i l o n Tribunals, Social Security: Abolition Independent Appeals under the Proposed Social Fund (1986, H M S O ) , C m n d . 9722. 50 See e.g. Sainsbury, loc. cit., supra n . 3 , 300-301. 51 Ison, op. cit., supra n . 3 , 6 2 - 6 3 .

of


53

Child Support Act 1991 allowed the original decision-maker to enter upon a review of a maintenance assessment without there having been an application for formal review. This was a legislatively-sanctioned example of the "ideal" type of review operating ancillary to the formal. It is not without significance that precisely this mechanism has been written into the new legislation to operate as a general rule. 52 Also, we might in different circumstances have wished considering making internal review prima facie mandatory, but with the option of allowing it to be bypassed in some situations. 53 (3) There was undoubtedly a serious question as to whether making internal review a mandatory pre-condition of an appeal had the effect of deterring those who might otherwise have exercised this option. However, one way of significantly reducing that risk would have been to make sure that this additional avenue was clearly pointed out. This precautionary step, significantly, is now spelled out in the new Act.54 In any case, surely the ease with which this could be done does cause one to question whether it was ever intended "[to replace] the tribunal as the first stage in the adjudication of a disputed decision." 55 Finally, in none of those appeal provisions where formal review had previously been made a prerequisite does one find any further "hedging" of that right, for example by the introduction of a leave requirement.

Conclusion I think, in the first place, that before scrapping formal review it would have been more satisfactory if we had in fact known that those who were being required to seek a formal review and who had been unsuccessful in overturning an original decision did indeed tend to regard this as part of an appeal rather than a review process. In other words, whether, having failed at the formal review stage, some form of "appeal fatigue" took over. The fact is, at least in respect of those examples of formal review that had been most recently introduced, i.e. child support, disability allowances and jobseekers' agreements, we simply do not know whether that phenomenon had been at work. Appropriate empirical studies were surely vital to reaching an informed position on whether formal review should be seen as an obviously undesirable departure from the "ideal" adjudicative model,56 as opposed to an appropriate 51

53

See Social Security Act 1998, s. 40 SS.13(6) 40 (Child Support Act, new section

A R C Discussion Paper, op. cit., supra n.44, para. 3.22. Loc. cit., supra n . l , S S . 1 3 ( 6 ) , 4 2 (Child Support Act, substituted section "20(4)" ). 55 Sainsbury, "Administrative Review or Tribunal?", loc. cit., supra n.24, 14. 56 It is a major criticism o f the 1996 DSS Consultation Paper, Approving DecisionMaking and Appeals in Social Security that there w a s no proper research into the effectiveness of the existing formal review procedures. As Martin Partington, Director of t h e Bristol Centre for the Study o f Administrative Justice, observed in his R e s p o n s e t o t h e Paper (Bristol Centre for the Study o f Administrative Justice, August 1996): " H a d there been, (sc. 54

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refinement (see para. (1), p. 52 above). This approach should also have included finding out the extent to which willingness to resort to appeal might have been compromised by inadequate notification procedures,57 or fuelled by a culture of resistance to external check.58 My own view is that greater use of formal review in principle posed no threat to external review (appeal) and the administrative justice values it embodies. 59 Indeed it can be argued more positively that in addition to promoting the correction of administrative error, formal review reinforces the idea of the administrative process itself forming part of an overall system of administrative justice. It can also promote systemic reform from within, surely a desirable development? In all the recent examples of formal review, appeal to an "independent" tribunal was specifically preserved. So at the level of its formal existence there was no question of doing away with or compromising the right of appeal. The only question was whether it was being subverted by other means (see above) and this hypothesis has never been fully tested. Provided the right of appeal can be properly safeguarded, and there is at least some evidence from the rate of appeals to the former DLA appeal tribunals that it was, 60 1 think formal review represented a useful development. For practical reasons alone, the burdens of re-evaluation in large volume areas of administrative decision-making must necessarily be shared between the administrative process and independent tribunals. "We shall have to see how the new unified appeal tribunals in the social security area cope with a workload that may be about to increase quite significantly. proper research) then the notion of either continuing with and expanding present provisions for formal review o r by contrast abandoning them, could have been made on a more informed basis t h a n a p p e a r s t o be the c a s e . . . " (ibid., 7). 57 58 59 60

Sainsbury a n d Eardley, op.cit., supra n.32,6.8; Ison, op.cit., supra n.3,34. Sainsbury and Eardley, ibid., 3.23-5. See Sainsbury, loc. cit., supra n.3, 299-305. Supra text at n.42.

Immigration and Asylum Appeals and Administrative Justice JUDGE DAVID PEARL1

Introduction N considering the complex question of appellate structures for asylum status determination, two competing strands need to be highlighted. They are first and foremost international law norms, and in particular international and regional human rights concepts on the one hand, and, secondly, domestic or municipal law requirements on the other. These strands diverge at times and there are clearly conflicts and tensions inherent within them. Policy considerations have dimensions in both areas. It is often suggested that such matters should not concern judges. It is my view that it is inevitable that the dynamic of numbers and the realities of economies under strain are unlikely to be far from the decision makers' mind, whether it be an initial decision or one made on appeal. Such policy factors should obviously play no part in the decision making process of the individual status determination, but as a backdrop to the critical question of the structures required for resolving these status issues, such factors are bound to be matters of considerable moment. It would be foolhardy to ignore them.

I

International Law International law norms in this area are essentially under-developed and provide little in the way of guidance in developing a model of a structure for refugee status determination. Thus, Guy Goodwin-Gill in his seminal work International Law and the Movement of Persons between States1 illustrates 1 The views expressed in this paper are the personal views of the author, and must not be taken to represent necessarily the official position of the judicial members of the Immigration Appellate Authority, UK. 2 Clarendon Press, Oxford, 1978.

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the limitations in international law of the right of an alien to a full merits appeal hearing prior to expulsion. However, he does go as far as to assert that: ". . . the rule of international law requires that there be available some procedure whereby the underlying legality of executive action can be questioned."3 These matters are considered by him in the context of expulsion generally, but he addresses the issue of review and appeal against adverse executive decision-making in refugee status determination in a later work: The Refugee in International Law4. Here he expressly refers to what he calls "minimum standards"(a) (b) (c) (d)

knowledge of the case against one; an opportunity to submit evidence to rebut that case; reasoned negative decisions; and the right to appeal against an adverse decision before an impartial tribunal independent of the initial decision-making body.

The Geneva Convention 1951 itself is silent when considering these procedural safeguards, and the United Nations High Commission for Refugees (UNHCR) Executive Committee has said little to develop any further guidance. The UNHCR Handbook at paragraph 46 is equally undemanding, referring simply to: "...a formal reconsideration of the decision, either to the same or to a different authority, whether administrative or judicial, according to the prevailing system." The 1995 EU intergovernmental Resolution on Minimum Guarantees for Asylum Procedures (5585/95) states as follows: "In the case of a negative decision, provision shall be made for an appeal to a court or a review authority which gives an independent ruling on individual cases under conditions laid down . . . " (Ill 8). There is nevertheless an accepted norm, minimalist though it may be, both in European and in international practice, that there must be some provision for a merits appeal separate from the executive arm of Government. Certain politicians may wish to limit its scope; human rights activists may plead for a widening of its scope. But all would agree that some provision for independent merits review must exist. Indeed the introduction of in-country appeal rights for asylum seekers in the UK by the Asylum and Immigration Appeals Act 1993 is itself a response to a developing Strasbourg jurisprudence on the interpretation of the European Convention on Human Rights.

3 4

op cit, at p 275. 2nd ed 1996, Clarendon Press, Oxford.


57

Domestic law It is perhaps understandable that the literature in this field is afloat with critical articles suggesting that municipal systems have failed to meet perceived minimum standards for a review of executive status determination. It is clear that emphasis has been placed emphatically by the domestic policy makers and the politicians, both in the UK as elsewhere, on quick and relatively cheap decision making. In the UK, there is little if any difference between the public statements of the Government Ministers responsible, be they the Ministers of the former Conservative administration or those of the present Labour Government. The many speeches on this topic highlight the need first, to remove speedily those perceived not to be in need of international protection, and secondly, to ensure that others are not attracted falsely to claim asylum on the basis that status determination is a long protracted process. Amnesty regimes in the UK, at least for the immediate future, have been ruled out by Ministers and therefore there is even greater political pressure to create an expedited appellate structure. Municipal administrative law has developed a complex and sensitive system of checks both on the powers of the administrators and also, through judicial review in particular, on the standards applied by the many administrative tribunals themselves to assess the factual and legal basis of initial decision making. Do these safeguards operate within the asylum process? Goodwin-Gill himself adopts a somewhat pessimistic approach, considering not only that domestic law criteria in other areas may be unavailable in this context, but also the international norms, such as they are, are being subjugated to domestic policy considerations. He writes: "In practice few have succeeded in marrying an efficient and expeditious national process (and national legal traditions) to the fulfilment of international obligations"3

The Initial Decision It is necessary to observe at the outset that the purpose of an appellate system in one sense is to provide a safeguard against a wrong conclusion drawn by the initial decision maker. Thus it is of considerable importance that resources are placed at the disposal of the initial decision maker to enable high quality decisions to be made. The key here must be training in interviewing techniques, as well as detailed knowledge of the appropriate law and country backgrounds. Resources must be provided for skilled interpreters. Access to 5

op.cit at p 329.

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lawyers and community advisers at this early stage of status determination must also be viewed as a minimum requirement. National considerations will dictate whether this initial decision is made by an arm of the executive, by an independent body, by UNHCR, or by a combination of all three. This paper does not examine the advantages or disadvantages of the various models which are in existence at the present time. In most countries, including UK, the initial decision is made within a Government department. It is undeniable that the political realities are such that this model is not likely to be discarded within the foreseeable future in the UK. The Canadian model of an independent initial decision making authority will not find support in the UK, and it is interesting to note that none of the recently published Reports recommends the adoption of the Canadian model. The quality of decision making at this first executive level is often justified by Government Ministers and their spokespersons by pointing to the low level of successful appeals, running in the UK in 1996 for example at no more than 5%. In their view this underlines the quality of the initial decision making. This approach is in my opinion misconceived. The Commission for Racial Equality (CRE) in UK in its 1985 Report Immigration Control Procedures: Report of a Formal Investigation pointed out: "it would be a mistake to suppose that if an administrative system is seriously flawed, a system of appeals against it will correct those defects. It will not." The CRE is of course talking about immigration decision making, but the same point applies, perhaps with extra force, in the context of refugee status determination. It is both a false economy and a flawed legal system which places emphasis solely on appeal rights. If the first decision by the administrator is in error, the procedural complexities of the appeal process may make detection of that error almost impossible to obtain. This last point has been made forcibly by Ann Dummett6 and more recently in the influential report, produced by Justice, the Immigration Law Practitioners' Association and the Asylum Rights Campaign.7 In the latter report there is a clear statement that good decision-making at the initial stage "is critical to the fairness and effectiveness of the whole procedure". In the context of the UK model, the Justice Report is highly critical both of the so-called "short procedure" under which initial information on the claim is taken, and what is referred to as "the culture and evidential basis which inform substantive decision-making." The Report refers to evidence of what it suggests has always been widely understood: namely that both decision-makers in the Home Office and claimants' representatives "rely on the later processes of appeal to deal with contentious issues." Although this statement is not sourced, it is likely to be an accurate description, and certainly adjudicators often find 6 See her essay in Individual Rights and the Law in Britain C. McCrudden and G. Chambers (eds) Clarendon Press, Oxford 1994 at p 362. 7 Providing Protection: Towards fair and Effective Asylum Procedures, Justice, 1997.


59

that matters which should have been explored at the early stage are left for the appeal hearing. Such an approach is costly and most unsatisfactory. An appellate system should exist not solely to right wrongs. In an appropriately funded and resourced system of decision making there will be relatively few wrongs. Rather the system should exist to ensure that those cases where injustice would otherwise exist are corrected, but also and perhaps more importantly to establish the framework for a consistent and fair status determination system. In the words of the Wilson Committee8 which established the system of immigration appeals in the UK: "however well administered the present control may be, it is fundamentally wrong and inconsistent with the rule of law that power to take decisions affecting a man's whole future should be vested in officers of the executive, from whose findings there is no appeal . . . In many other fields of public law there are [procedures] requiring a clear statement of the administration's case, an opportunity for the person affected to put his case in opposition and support it with evidence, and a decision by an authority independent of the Department interested in the matter."

Of course there is inevitably a danger that any appeal system will develop simply into no more than a "legal buffer" (Bridges) or possibly more damagingly, a form of "legal ritual" (Blake and Gillespie). However, the more emphasis given to a requirement placed on the initial decision maker to act fairly, the less likely it is that this be the case. I have no doubt whatsoever that better quality initial decision-making would allow the appellate authority to be better able to exercise its own function of merits review in individual cases and establish consistent norms of decision making which can and should provide the basis for other cases as well.

The Present System and its Defects The structure for asylum appeals in UK has in effect been planted in the same soil as the well watered system of immigration appeals. The system for immigration appeals was established in the UK in 1970 to deal with appeals from adverse decisions of Home Office officials relating to immigration into the UK either on a short term or an indefinite period. The initial Act, the Immigration Appeals Act 1969 adopted a two-tiered system of appeals which remains in force today. The original suggestion proposed by Wilson and his committee, in their Report 9 was that there be a central Tribunal hearing appeals from "subordinate judicial officers" at ports, to be known as adjudicators. It was thought that the first judicial decision subsequent to the administrative refusal of entry at the air or sea port should be 8 9

Cmnd 3387,1967 HMSO, London. op. cit.

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dealt with by a short hearing by these adjudicators, who would give an immediate oral determination. It was thought that very few cases would then be taken on appeal to the second tier, the Immigration Appeal Tribunal. The initial appeals system was not thought to involve much law, and that was why the Wilson Report had stated that for adjudicators "legal qualifications would be an advantage but are not in our view essential." It never happened like that. Very few determinations are delivered orally and no hearings are now held at ports. What has developed is a sophisticated body of procedural rules and case law. The latter has been created by decisions of adjudicators (all of whom are now legally qualified and some of whom, especially those recently appointed part time, already holding judicial office as Recorders), the Tribunal (sitting as a legally qualified Chairman with two lay members), and of course most importantly by the Courts. The Courts' intervention is both by Judicial Review in the Divisional Court and above, and latterly by appeals direct to the Court of Appeal by virtue of Asylum and Immigration Appeals Act 1993 s 9. The adjudicators are now paid at Grade 7 on the Judicial Scale (equivalent to District Judges), the Regional Adjudicators are paid at Grade 6(2), the Tribunal Vice Presidents at Grade 6(1) (equivalent to Circuit Judges) and both the Chief Adjudicator and the Tribunal President at Grade 5 (Senior Circuit Judges). This same structure is responsible in the UK not only for the immigration appeals which continue to occupy much time, notwithstanding recent changes which have limited the rights of appeal in certain areas and even more recent changes in the substantive rules relating to marriage applications, but also now for the merits review of asylum cases. The only safeguard, such as it was, to ensuring the creation of expertise, was to insist on a "licensing" arrangement whereby asylum cases would be heard only by those adjudicators designated as "special adjudicators" for the purposes of the 1993 Act. There have been many Reports, both published and on-going, on the working of the appellate structure under the 1993 and 1996 Acts, some by Government initiative10, some by independent observers such as Amnesty International and Justice, and some by independent academics. The Home Office and the Lord Chancellor's Department have been responsible jointly for examining the appellate structure of asylum determination in the UK as a result of Governmental initiative announced in December 1996. This Report has now been superseded by a wider Governmental review.11 It is for others to comment on these Reviews and Reports. 10

For example the Peat Marwick Review of Asylum Appeals Procedure in December

1994. 11

See "Review of Appeals: A Consultation Paper", July 1998; "Fai—A Modern Approach to Immigration and Asylim", CM 4018, July 1998.


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Adjudicators' Response The Adjudicators' themselves submitted a Response Paper in advance of any possible interdepartmental Consultation document, in May 1997. The purpose behind this Response Paper was to set out as clearly as possible the parameters within which we saw that an appellate model of administrative justice should be operated. There are certain aspects of the Adjudicators' Response Paper that I wish to highlight. The first strikes at the heart of the question relating to the exact nature of administrative justice. We commented on the judicial nature of our work in this way: "Being administrative tribunals we try to observe underlying ideals of informality andflexibility.But in fact we run courts, not tribunals. In fact we handle complex issues of law on a regular basis. In fact we have to deal on a daily basis with serious issues concerning very basic and fundamental rights . . ." We attempted to identify why this judicialisation has come about, and the reasons are worthy of reproduction. In part, there are quite obviously and understandably race relations concerns: "to ensure persons settled here from Commonwealth countries enjoyed adequate remedies for decisions which were seen to affect their rights to family life and family reunion and to enjoy adequate protection against decisions which could result in deportation or removal." In the asylum context, such concerns are prominent, and to an extent find an echo in the requirement that one must give to an asylum appeal the most "anxious scrutiny"12 The issue which I would like to address is whether it would be appropriate when acknowledging the pressures of a mounting volume of work, to abandon the judicialisation of the administrative justice structure and embark on a path of de-judicialisation? I consider such a route to be seriously flawed. It would be embarked upon notwithstanding the consensus of judicial comment in the higher Courts. They have clearly laid down an awesome responsibility. Thus, by way of an example, when giving the judgment of the Court of Appeal in the case of Robinson,13 Brooke LJ said: " . . . it is the duty of the appellate authorities to apply their knowledge of Convention jurisprudence to the facts as established by them when they determine whether it would be a breach of the Convention to refuse an asylum-seeker leave to enter as a refugee, and. . .they are not limited in their consideration of the facts by the arguments actually advanced by the asylum seeker or his representative."14 12

per Lord Bridge of Harwich in Bugdaycay v Secretary of State for the Home

department [1987] 1 All ER 940. 13 [1997] ImmAR 568. 14 R. v. Secretary of State for the Home Department and Another [1997] 3 WLR 1162, [1997] 4 All ER 210 (C.A.).

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The adjudicators' role is not simply limited to review of executive decision making. In a real way, the adjudicator ia also bound to consider afresh all issues which relate to the possibility of a well founded fear of persecution. In our Reponse Paper, we identified a number of principles: independence, international integrity, public confidence, the need for adequacy of expertise, and the need for adequacy of administrative and technical and research backup. All of these principles in many ways underline the essential point, that for appeals in asylum determination, we are most definitely operating a judicial function. We believe that the appellate stage has to be a clearly demarcated stage of judicial decision making, and that it must have the power and authority to look afresh at issues of fact and merit: "The facts found must be evaluated in the light of the relevant legal frameworks. In short, decision makers at this stage must be arbiters of fact and law." Far more sensible in our view than to rush headlong into a process of dejudicialisation, and one which I believe to be particularly important, is to respond to the pressures of the many cases which require decisions, by introducing case management action such as time tabling, directions, insistence on skeleton arguments and so on. Lord Woolf's Interim Report "Access to Justice" (1995) refers to: ". . . the court taking the ultimate responsibility for progressing litigation along a chosen track for a pre-determined period during which it is subjected to selected procedures which culminate in an appropriate form of resolution." This is a model which we have already acted upon in order to attempt to bring cases to trial quicker than has been possible in the past. It is these Woolf inspired internal initiatives which we hope will enable us to respond to the domestic realities, whilst at the same time ensuring that the integrity of the international commitment for asylum determination is retained.

The Broader Questions Of course there are major issues to be addressed even assuming that the power is given to adjudicators to be more proactive in managing the case. Rules 23, 24 and 35 of the 1996 Procedural Rules in particular have already gone a long way in this direction, relating to directions and the consequences of failure to comply with these directions. In ex parte S, IJ Sullivan J has accepted the vires of these provisions albeit within strictly limited circumstances. Some of the broader questions are as follows: (a) should asylum appeals be divorced from immigration appeals; IJ

R. v. I.A.T., ex parte S, The Times, 25 February 1998 (Q.B.D.).

Immigration and Asylum Appeals and Administrative justice

63

(b) is it necessary to have a two tier structure; (c) should lay members continue to play any part at all; (d) can more cases be dealt with on the basis of the documents only without the need for an oral hearing; (e) should the system be more inquisitorial than adversial in its approach? The first of these questions must be answered in the negative. It would be impossible on costs grounds alone for a separation of the two systems. In any event, the asylum claim is often so intertwined with immigration status that the two issues are not readily capable of separate treatment, and the introduction of the ECHR into UK law by the Human Rights Act 1998 underlines this point. The second question is much more difficult. The Justice Report points to the present role and structure of the second-tier as "at present unsatisfactory." Justice says that it should have two functions: to decide whether the law has been properly applied, and to decide whether the adjudicator correctly assessed the facts. The Report goes on: "The first is important in setting precedent for the whole determination system. It is argued that a specialised Tribunal is in a better position than the Courts on judicial review to provide clear guidance for finders of fact at lower levels. The second function is clearly needed at present, given the number of adjudicator decisions which are not upheld." Both the Justice Report and the Adjudicators' Response Paper argue for the continuation of a second tier, and for its upgrading to a Court of Record. As the Adjudicators write: "We believe that a properly constituted system of administrative justice is both quicker and cheaper. Abolition of the Tribunal would leave open the floodgates of judicial review. It is far better, in our view, for the cases to be confined within the system of administrative tribunals if at all possible." Justice states: "We consider that this option would be better than the alternative: to dispense with the Tribunal altogether and rely on the High Court's judicial review jurisdiction to review cases and interpret the law. This would place a great burden on the court, and would lose the benefit of a specialist court with a wider jurisdiction than that provided by judicial review." Legislative efforts to preclude higher courts from judicial review would be a cause of serious tension and controversy in the UK, as it is in Australia. However, it is not inconceivable that judicial review would become a court of last resort if, as the Adjudicators state in the Response Paper: ". . . the Tribunal is given the status that would be accompanied by the respect with which its determinations would be viewed; by the appellants, by their representatives, by the Home Office, by the adjudicators, and by the Courts."

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JUDGE DAVID PEARL

The third question relating to lay members is interconnected with the second question. It is my view that there is a need for a lay element in asylum status determination, given the policy considerations which I have already referred to and which are so important in this area. However, some cases will be more susceptible to lay help than others. If credibility is the only issue, lay members (suitably trained) are invaluable. If the sole matters concern legal interpretation, their role is less obvious. The Response Paper suggests that lay members could be used at the adjudicator level, at the Tribunal level or not at all and that it should be a matter for the adjudicators and the Tribunal to regulate their own composition. Justice feels that consideration could be given for specialist lay assessors, particularly in cases which rest on psychological or cultural factors. Flexibility would appear to be required in the use of lay members. The fourth and fifth questions address the process of decision making. Traditionally, the adversarial process is used; but there is no doubt that the adjudicators are now encouraged to be much more proactive, both prior to the hearing (in the context of directions under Rule 23) and at the hearing itself. Inevitably, the inquisitorial method of ascertaining the factual information is likely to be more useful when the appellants are either not well represented or not represented at all. The Rules allow for decisions to be made on the basis of documents alone, but the UK tradition is to provide a person with the entitlement to an oral hearing if he requests it. The Tribunal has consistently said that natural justice principles demand that there be an oral hearing if the appellant wishes it. It was said in one case, for example: "The general structure of immigration appeals is such that an oral hearing, where this is desired by the appellant, is an important element of the remedies available to those who seek to put to the test administrative decisions which affect their lives" {Annie Rea v SSHD (14870)16. Again, flexibility is important.

Conclusion There are a number of key matters which require emphasis. First, training of judicial and lay members — whether they be at adjudicator level or Tribunal level - is absolutely paramount. Consistency in decision making can never be achieved unless those whose responsibility it is to make decisions actually talk to each other about their decision making, sharing their problems and their concerns. It is a trite remark that a judicial system is only as good as its weakest link! Secondly, information technology must be adopted in a structured and sensitive way. Agreed background country reports should be made available for all decision makers, the Home Office presenting officers, and the representatives. 16 See also Villa (15288).


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Thirdly, regard must be had to the jurisprudence of other countries as well as the UK, for the obvious reason that the Geneva Convention is an international document which has been judicially considered across many countries, and in particular Commonwealth countries. The final matter which requires comment relates to the need to radically alter the present haphazard system of representation. The Response Paper refers to the present unsatisfactory situation in this way: "In our cumulative experience there currently exists a serious pattern of exploitation. Precisely because of the serious issues at stake for many appellants and/or of the potential economic benefits that can flow from improving immigration status, there appears no end to the amounts of money certain appellants will pay to those who hold themselves out as experts or specialists."

The UK Government in its recent Consultation Paper is now committed to a system of Registration, although the details have yet to be worked out, and the Law Society has recently produced its own response by announcing an accreditation scheme of its own. It would make abundant sense, regardless of the ultimate solution, for the two statutory bodies that provide independent and free legal advice, assistance and representation (the Immigration Advisory Service and Refugee Legal Centre) to be included in any registration scheme. If registered, there is no reason to deny that person financial compensation either privately paid for or, in my view, from State funds. If not registered, no payments should legally be available. The system of administrative justice as it has developed in the UK is itself at a cross roads, awaiting incorporation of the European Convention on Human Rights. The Human Rights Act 1998 will affect our substantive work and impact on the entire procedure of asylum status determination. In particular arguments relating to Article 3 regarding allegations of torture or degrading treatment in the country of origin and Article 8 regarding respect for family life will be relevant to many of our appeals. Whether Article 6 will impact on our work is a matter of controversy at the present time, but there is no doubt that many will argue that it does so, and it would be politic for Government to have regard to its implications at an early stage.

Sliding Scales Of Justice At The End Of The Century-A Cause for Complaints? LINDA MULCAHY

Introduction

I

N this paper I consider an issue which has long troubled lawyers: what standards should govern grievance procedures? While emphasis has traditionally been placed on considering this question in the context of the courts and judicial review I will explore what is considered appropriate in relation to internal review of decisions, in particular the review of decisions in in-house complaints procedures. This particular topic has been afforded little status by academics in their discussion of administrative law. Despite this more citizens will have experience of complaints systems than have even heard of judicial review and the subject is one which is likely to increase in importance as we move into the twenty first century and more emphasis is placed, post-Woolf, on local and less formal resolution of disputes. A particular issue which arises in the discussion which follows is whether the principles governing complaints procedures should reflect those developed by the courts in the guise of natural justice or should be different. Responses to the question hinge on whether, and how, the issues considered in complaints procedures and the ideologies their procedures reflect are somehow different from the courts. The topic is important because complaints procedures deal with thousands of citizen grievances every year but also because it strikes at a question of significant importance to administrative lawyers. Is there one overarching model of administrative law which justifies it being called a system or is it a mere collection of overlapping systems guided by distinct and possibly conflicting ideologies? Finally whatever the answer to that question, what models of administrative justice do policy makers and academics aspire to as we approach the millennium? The development of the British administrative justice "system" has reflected a number of ideological and pragmatic tensions. Alternatives to the courts

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have emerged to achieve a range of different goals. In many cases they have been designed on an ad hoc basis as problems have arisen in a particular branch of the public sector. One response to this might be to celebrate such diversity. An administrative justice system developed on such lines is more likely to be responsive to particular needs which arise in the context of different types of service delivery. This may well be a logical approach to the problems which citizens have with the state. The particular problems faced by inmates and other unwilling recipients of state services may be very different from those faced by pupils in higher education or NHS patients. A more common approach is for administrative lawyers to bemoan this rather unstructured approach and call for greater coherence. Calls for the emergence of a generalist rather than a functionalist approach are not uncommon1. In the words of Ison2: " . . . "administrative justice" seems to inspire a demand for some common thread, some common bond, some common structure or process, or some common overview". Does this reflect a desire for equity or just a need for intellectual simplicity in a complex field? Recent years have seen the emergence of debates about the core tasks with which public lawyers should be concerned as well as calls for policy makers to systematically review systems for grievance resolution in an attempt to rationalise approaches to the administration of justice3. There has been a marked movement away from the pronouncement of rules to consideration of the nature of principles governing administrative action and systems for redress4. Jowell and Lester5 argue that there are clear signs in administrative law cases that the judiciary are beginning to abandon their traditional preference for dealing with technicalities and are moving towards a greater consideration of the core principles governing official action and individual rights. This has led to a reconsideration of the proper role of the courts and the need for substantive principles to give clarity and coherence to public law. There is widespread concern that the traditional mechanisms used by public lawyers to hold public officials to account have been woefully inadequate6 and have not adapted to the rise of party government, leaving an imbalance between law, politics and public administration7. In parallel with this policy makers have shown an interest in encouraging 1 Thompson, B (1998) Chapter 23 in this volume; Craig, P., (1994) Administrative Law, Sweet and Maxwell, London. 2 Ison T., (1998) 'Administrative Justice - Is it such a good idea?' Chapter 1 in this volume. 3 Lewis, N., and Birkinshaw P., (1993) When Citizens Complain, Open University Press, Milton Keynes. 4 Oliver, D., (1994) 'Law, Politics and Public Accountability' Public Law, pp 238-251. 5 Jowell, J., and Lester, A., (1987) 'Beyond Wednesbury: Substantive Principles of Administrative Law', Public Law, pp 368-382. 6 Freedland, M., (1994) 'Government by Contract and Public Law' Public Law, pp 86104; Lewis and Birkinshaw (1993) op cit. 7 Oliver, op cit.

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the proliferation of formal and informal complaints procedures, both in addition to, and as a substitute for, the courts and tribunals. The launch of the Citizen's Charter Initiative and the publication of key complaint handling principles by its complaints task force suggests that there can be a uniform approach to complaints procedures across the public sector8. It has encouraged some uniformity in the design of new systems and a systemic and "organisational learning" approach to grievances rather than a coercive disciplinary one9. The twin goals of provision of a remedy for the individual and improvement in service provision are still fundamental but are achieved in a different way than has traditionally been the case in formal adversarial proceedings. When arranging the conference which led to this publication the Lord Chancellor's Department encouraged participants to be creative and to think the unthinkable in our discussions of visions of administrative law in the next millennium. In this paper I suggest that academics and policy makers have missed opportunities to develop meaningful guidelines for complaints handling which reflect both the complexity of empirical realities and the needs of users of state services.

What Are Complaints? For the purpose of this paper complaints are defined as the voicing of a grievance about a public sector organisation. In the socio-legal literature grievances, or feelings of injustice, are seen as existing prior to complaints and are capable of continuing after they have received a formal response and the case has been closed for bureaucratic purposes10. The term complaint is not ideal. Many people use complaints procedures in order to make comments or to give or receive information rather than to express a grievance or obtain a financial remedy and all of those working in the field have struggled with distinctions between grumbles, moans, complaints and grievances in an attempt to distinguish between more or less serious cases. Some have argued that definitions of disputes adopted by legal academics and socio-legal scholars have centred too much on defining their importance in terms of what is relevant in the formal legal system11. Complaints procedures tend to be seen as "low level" grievance and admin8

Citizen's Charter Complaints Task Force First Report, (1992) Allsop, J., and Mulcahy, L., (1996) Regulating Medical Work - Formal and Informal Controls, Open University Press, Buckingham. 10 For a review of some of the literature see Mulcahy et al, 1996. Mulcahy, L., Lickiss, R, Allsop, J and Karn, V. (1996) Small Voices, Big Issues: an annotated bibliography of the literature on public sector complaints, London: University of North London Press. 11 Trubek, D., (1980-81), "Studying Courts in Context" Law and Society Review, Vol. 15, No. 3-4, pp 485-501. 9


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istrative lawyers interested in studying them are seen as "descending" for the purpose of their perusal12. Low in this context normally means that they are seen as relatively informal service level redress mechanisms. At the other end of the spectrum are the courts, providing a formal procedural gold standard at the top of the civil justice hierarchy. As Harlow and Rawlings explain: "Adversarial procedure plus the right of access to a court are seen as the ultimate protection the law can bestow" 13 . For most citizens, low can be best understood as immediate. Formal complaints about General Practitioner doctors, for instance, are expected to be handled by a designated complaints officer in a GP practice; complaints from council tenants can be directed at the local housing officer; parents concerned about the national curriculum in their child's school are expected to approach the governing body; and complaints about London Underground are initially handled by the Line General Manager responsible for the station in question. These are primary or point of entry systems. What distinguishes them from other systems for redress is that they provide the first stop, and sometimes the only stop, for the expression of a grievance about the service being provided. Defined in this way complaints fall into the second tier of Ison's administrative justice pyramid14. According to this, level one is the point of entry to the decision making system where initial decisions are made. Cases at this level are processed in bulk. Level two is the stage at which there is reconsideration of the case prompted by a service user. Level three represents the appeals stage which functions on a due process model and level four is the final stage of appeal. These descriptions of the justice pyramid suggest organised and progressive tiers which do not overlap. The reality is more complex. Most public bodies now operate their own internal complaints system but they vary considerably in their jurisdiction and place within appeal systems. In their review of NHS complaints procedures in 1994 the Wilson Committee drew attention to eight distinct complaints systems operating in the NHS depending for their jurisdiction on the location of care, person being blamed and the type of allegation made 15 . Similarly in their dicussion of prison complaints procedures Harlow and Rawlings16 identify eight different procedures ranging from those which involve Members of Parliament to petitions to the Queen. In some cases public sector organisations are required by departmental guidance to have such a procedure, elsewhere they have established one 12

Harlow, C, and Rawlings, R., (1998) Law and Administration, 2nd ed Butterworths, London. 13

Ibid p 404. See above chapter 1, p. 22. 15 National Health Service Executive (1994) Being Heard, Leeds: Department of Health. Nettleton, S and Harding, G. (1994) "Protesting Patients: a study of complaints submitted to a Family Health Service Authority", Sociology of Health and Illness, 16(1), 38-61. 16 Op cit. 14

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voluntarily. Some involve a form of internal review or independent appeal and others filter into the statutory tribunal system. A number of organisations or groups have private systems for disciplining staff, such as disciplinary procedures operated by professional bodies.

Top Down and Bottom up Approaches to Complaints On the whole legal scholars have paid little serious attention to complaints systems, leaving them, alongside the study of other internal reviews in the public sector as something of a poor relation in mainstream public law. Complaints procedures are not alone in this respect. Concerned about the coverage of tribunals Genn has argued that the writers of leading administrative law textbooks tend to adopt an approach to the subject which has little theoretical content and conclude on the basis of meagre argument, that tribunals are a "good thing"17. As Partington has summarised " . . . most parts of the administrative justice system have an extremely low profile in the minds and priorities of those who have in the past shaped policy relating to dispute resolution"18. This attitude reflects the judiciary's tendency to construe the gateways to administrative law narrowly19. Preoccupation with the courts and the ambit of judicial review has resulted in a "top down" approach to grievances with scholars concentrating on the decisions of bodies at the top of the grievance hierarchy. Emphasis has been placed on the appellate courts, their models of reasoning and adjudication20, the structure of rule-making bodies and the rules, the growth of judicial review and comparisons between courts and tribunals. Little attention has been paid to the people who interpret and implement these rules, or those affected by them. Few public law texts pay serious attention to complaint handling within public sector organisations. This approach is often considered justified because of the radiating effect of courts decisions21. According to this view judicial pronouncements have a direct influence on the way that service users and administrators handle similar cases in the future. The courts are seen as having a declaratory role or as bestowing a regulatory endowment which casts a shadow over all disputes or acts as an incentive to debate. In the words of Galanter: 17 Genn, H., (1994) "Tribunal Review o f Decision-making" in Richardson and Genn (eds) Administrative Law and Government action - The Courts and alternative mechanisms of review, Oxford University Press, Oxford, at p 250. 18 Partington, M., (1997) "Administrative Justice 40 years after Franks: Past Achievements and Future Prospects", paper presented at Bristol Administrative Justice Conference, 1997. " Craig, op cit. 10 Hawkins, K. (1992) The Uses of Discretion, Oxford: Clarendon Press. 21 Galanter, M., (1983) 'The radiating effects of courts' in Empirical Theories about Courts, edited by K.Boyum and L. Mather, N e w York: Longman.


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This contribution includes, but is not exhausted by, communication to prospective litigants of what might transpire if one of them sought a judicial resolution. Courts communicate not only the rules which would govern adjudication of the dispute but also remedies and estimates of the difficulty, certainty and costs of securing particular outcomes22.

The importance of court decisions being elaborately reasoned and thier role in developing the concepts of rules of law which define the limits of lawful administrative action is also stressed. Publicly articulated standards are said to have a legitimating effect. In this sense they can be seen as attempts to establish a collective identity and agreement about baseline standards in society. According to this view the law is seen as a system of constitutionally authoritative generalised standards which can be used to evaluate conduct23. Emphasis on the courts also reflects a rational model of grievance filters, an assumption that the important cases in need of judicial consideration reach the courts. Internal complaints procedures deal with trivial and routine cases which do not justify extensive public funding. Proponents of this argument are keen to ration access to formal procedures because they are concerned that the courts will be overrun by a flood of unimportant cases. The sole rationale of low level procedures is to process small claims quickly, efficiently and cheaply so that this does not happen. Attempts have been made, for instance, to confine the ambit of the application of the rules of natural justice to those cases where a judicial rather than an administrative decision is being made24. These arguments are powerful but the assumptions on which they are based are questionable. Anyone interested in access to justice debates will appreciate that a significant number of cases which could have important implications never even reach the judicial system. In response to rationing arguments proponents of "green light" theories of administrative justice have also seen the opportunities complaints systems have to expand access to justice, to extend the legal system and services to new clients and new types of disputes. According to this view the way in which complaints systems operate constitutes an important aspect of how justice is achieved and how conflict in managed in contemporary society. The top down approach tends to create the illusion that non-court based procedures are relatively unimportant. It rests on the premise that law and legal debate is constantly touching and transforming ordinary people's lives. Whilst judicial review is important it may be irrelevant to most citizens who want to challenge the decisions of public bodies25. In fact it is clear that far 22

Ibid p l 2 1 . Feldman, D., (1994) 'Review Article: Discretions, Choices and Values', Public Law, pp 279-293. 24 Craig, op cit. 25 Sainsbury, R., (1994), "Internal Reviews a n d the Weakening of Social Security Law and Claimants' rights of appeal" in Richardson and Genn (eds) Administrative Government Action—The courts and alternative mechanisms of review, Oxford University Press. Oxford. 23

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more people use internal complaints procedures than tribunals and the courts, prompting the National Consumer Council to label public complaints systems the mass end of the disputes market. Empirical studies of decision making have demonstrated that the majority of official decisions in the legal system of the modern state are not made by the judiciary but by low status bureaucrats whose decisions are rarely reviewed26. It may well be that these low level bureaucrats have much more of an impact on the population and in particular the socially excluded who are probably amongst those least likely to challenge decisions through bureaucratic channels. Arguments about the primary importance of the courts in developing meaningful concepts and regulatory frameworks are convincing if the courts receive the most serious, typical or complex cases and widespread discussion is generated about decisions reached in these cases. However, there is much evidence to suggest that cases which proceed to formal adjudication are unrepresentative of the range of disputes which arise in the citizen's interface with state authority. There are a number of reason for this. Gatekeepers within organisations may not recognise a grievance brought to them as legitimate or may narrow it to fit a recognised cause of action 27 . It is also the case that many service users do not pursue grievances, for instance because they are not aware of their interests having been compromised or of the existence of a procedure through which they can channel their dissatisfaction28. Alternatively they may not have the resources to pursue the matter, or they may choose to "lump it', to remain loyal to the service provider or to avoid the dispute by going elsewhere for the service29. In addition, particular subjects of interest to public lawyers may not be complained about. In their survey of 1,640 householders for the Department of Health in 1994, Mulcahy and Tritter 30 found that however accessible or well designed complaints systems are, they will not be used by many dissatisfied service users. They found that grievances about policy and management issues in particular, tended not to be voiced as complaints. 26

Kagan, R., (1984) 'Inside Administrative Law', Columbia Law Review 84: 816-32. Serber, D . , (1980) "Resolution o r rhetoric: M a n a g i n g complaints in the Californian Department o f Insurance" p p 317-343, in N o Access to Law - alternatives to the American Judicial system, N a d e r (ed) Academic Press, London. 28 Ison, op cit, see also Brennan, T. Leape., L. Laird, N . , et al (1991) Incidence of adverse events a n d negligence in hospitalised patients: the results from the Harvard Medical Malpractice Study I, New England Journal of Medicine, 3 2 4 , 370-6 and Annandale, E., and Hunt, K., (1998) Accounts o f Disagreements with d o c t o r s , Social Science and Medicine, 1:119-129. 19 Felstiner, W., Abel, R., and Sarat, A., (1980-81), "The emergence and transformation of disputes: naming, blaming, claiming. . . ", Law and Society Review, Vol. 15, No. 3-4, pp.631-654 and Hirschman, A., (1970) Exit, Voice and Loyalty, Cambridge: Harvard University Press. 30 Mulcahy, L., and Tritter, J.Q., (1998) "Pathways, Pyramids and Icebergs? Mapping the links between dissatisfaction and complaints", Sociology of Health and Illness, vol. 20, November, pp. 825-847. 27


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Even when service users complain, very few will appeal against a decision, however dissatisfied they happen to be. In their study of first tier complaints about doctors Lloyd-Bostock and Mulcahy found that despite considerable levels of dissatisfaction with initial handling less than two per cent took their complaint further by consulting a solicitor or contacting the Health Service Commissioner31. Of course, these individuals had an opportunity to act on their dissatisfaction, but for a number of reasons including lack of resources and a need to avoid further upset, did not. Their decision not t o appeal does not necessarily reflect a lack of injustice or bad decision making. Ison has argued that: ". . . the total volume of injustice is likely to be much greater among those who accept initial decisions than among those who complain or appeal. For this reason alone, thoroughness and procedural fairness are more important in primary adjudication than they are in appellate processes"32. Ison suggests that resource allocation priorities should be reversed in the administrative justice system since the inadequacies of entry level systems can exacerbate the sense of grievance and be a cause of therapeutic damage. In this way the bad handling of a case becomes a cause for grievance in its own right. The radiating effect of court decisions and their role in the setting of regulatory frameworks has not gone unquestioned. The top down approach assumes a rational reaction to rules, that administrators and others not only take their lead from formal systems but respond to the directions given to them by those in authority. The extent to which the press can be relied on t o report, and prompt debate on representative decisions of the courts is questionable.While lawyers have tended to assume the link between standard setting and compliance, sociologists have tended to concentrate more attention on the study of avoidance techniques33. Galanter's excellent typology of low level workers' reactions to rules charts a variety of responses to rules from "above", many of which are more concerned with avoidance than compliance. However there is a dearth of empirical data which tests these assumptions and direct and indirect channels of communication between the citizenry and the courts are not easily identified. Until relatively recently top down assumptions have discouraged scholarly work being undertaken on complaints systems. Over a decade ago Rawlings criticised this lack of interest in the lower end of the civil justice system in his review of the literature on grievance procedures and administrative justice for the Economic and Social Research Council. He suggested that the existing 31 Lloyd-Bostock, S., and M u l c a h y , L., (1994) "The Social P s y c h o l o g y o f m a k i n g and responding to hospital complaints: An account model o f complaint p r o c e s s e s " Law and Policy, Vol 16(2) pp. 123-148. 32 Supra, n. 2.. 33 H a w k i n s , K., op cit.

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socio-legal literature be expanded to enhance our understanding of less formal, internally managed mechanisms for the handling of disputes between the citizenry and public sector organisations, and that the administrative law focus had been on the visible tip of the iceberg34. The inadequate attention paid to the dynamics of extra judicial dispute settlement in more informal settings should cause even greater concern given the policy trend towards informalism and compulsory internal review as a pre-requisite to other forms of action. This trend is reflected by developments in the social security system where internal review has come to occupy the place previously held by tribunals in the appeal structure 35 . It is also apparent in new NHS grievance systems leading Mulcahy and Allsop36 to express concerns about the "privatisation" of justice in this field. Most recently Lord Woolf's review of the civil justice system has heralded a "shifting down" of cases from the formal adjudicatory system to less formal mechanisms for resolution37 a move which critics such as Abel 38 have viewed as an attempt to purge the upper echelons of the judicial system of the "junk" cases involving the disempowered. The traditional justification for constructing tiers of decision making and attributing prestige accordingly is that in such systems the majority of decisions can be made quickly and cheaply at the lower rungs. As a case proceeds up the hierarchy it is more and more likely t o be subject to the rules of due process and to be more thoroughly investigated. Ison questions whether this is the best use of resources: Decisions are made on the face of incoming documents, without personal contact with the parties, even in complex and sensitive cases, and conclusions are reached without first having sought the relevant evidence. If the same case later reaches an appeal, it may then be recognised as requiring careful consideration, perhaps fieldwork enquiries, and procedural fairness. Yet the need for that sophisticated processing did not suddenly arise on an appeal. It was there in thefirstplace39. Research by Wikely and Young also demonstrates that conditions at the bottom rung are not always conducive to accurate decision making40. Other research has cast doubt on the quality of first tier decision making and suggests that inappropriate factors may be taken into consideration when making decisions such as the affluence, articulateness, gender or ethnicity of 34 Rawlings, R., (1987) Grievance procedures and administrative justice - a review of socio-legal research, Economic and Social Research Council, Swindon. 35 Sainsbury op cit. 36 Mulcahy, L., and Allsop, J., op cit. 37 Lord Chancellor's Department, 1996, Access to Justice, H M S O , London.. 38 Abel, R., (1982) " T h e Politics of Informal Justice", in Abel (ed) The Politics of Informal Justice, Academic Press, New York. 39 Supra, n. 2.. 40 Baldwin, J., Wikeley, N . , and Young, R., (1992) Judging Social Security, Clarendon, Oxford University.


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the complainant 41 and that first tier decision making is often slow42. These studies raise the question of what standards should govern the handling of complaints and whether standards should be higher or lower at this stage than in the upper strata of the administrative justice system.

Whose Standards? Public and administrative lawyers have paid considerable attention to the principles which should guide grievance procedures but as it has already been argued, most emphasis has been placed on the courts and tribunals. Particular importance has been attached to developing notions of natural justice and more recently the duty to act fairly. The term natural justice has at times been taken to suggest that these rules have some objective reality, that they are selfevident truths. Others have argued that it is more appropriate to see them as socially constructed43. In this vein Sainsbury has argued that:"There is . . . no fundamental theory of justice that waits discovery and hence no definitive conception of administrative justice; each must be based ultimately on moral beliefs or principles."44. Similarly Damaska 45 has suggested that statements about core principles may be more of a rhetorical achievement than a revelation of a fundamental truth. The point that none of the fundamental principles espoused by the courts is sacrosanct is well illustrated in Damaska's excellent analysis of comparative approaches to legal process46. His work reveals the ethnocentric nature of much debate on the topic. He develops two ideal types of state which reflect different perceptions of the mission of the state in society. The quest of the activist state is to manage the lives of people and steer society by reference to a clear policy implementation programme. By contrast the quest of the reactive state is for the government to maintain the social equilibrium and for the legal system merely to provide a framework for self management. Within the spectrum marked out by each of these ideal types can be found the red light, green light and amber light theories of Harlow and Rawlings47.

41 Serber, op cit. Kemp, C , Maguire, M., Minkes, J., and Morgan, R.., (1992) Complaints against central government departments. Summary Report for the ESRC, Swindon. 42 MORI (1995), Complaints Handling in the Public Sector, Citizens' Charter Unit Complaints Task Force, HMSO, London. 43 Cane, P., (1992) An Introduction to Administrative Law, Clarendon, Oxford. 44 Sainsbury, op cit, p 327. 45 Damaska, M., (1986) The Faces of justice and State Authority: A comparative approach to legal process, Yale University Press, N e w Haven. 46 The simple presentation of Damaska's views here does not do justice to the intricacy of his arguments and breadth of sources he draws on. 47 Op cit.

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Damaska's analysis demonstrates that concepts of participation and impartiality are not accorded importance in activist states. Instead disputes are seen as ways of highlighting problems in society rather than as conflicts between individuals requiring resolution. The comprehensive theory of the good life enshrined in state policy may actually require that the interests of both parties are ignored in pursuit of a collective goal 48 .

The Sliding Scales of Natural Justice Within the United Kingdom debate on administrative justice has tended to focus on notions of justice which promote procedural equality between the parties. The two basic tenets of natural justice hardly need to be repeated— the rule against bias and the need for a fair hearing. The common law and development of the Rules of the Supreme Court and County Court rules have been responsible for the fleshing out of these key principles so that more specific notions can be developed. These include such things as the right to be given notification of a hearing, the right to an oral hearing, the right to question witnesses at a hearing, the right to be represented at a hearing, details of the case to be met, adequate time to prepare one's case, access to all material relevant to one's case, the right to have a case decided solely on the basis of material made available, and a reasoned decision which takes account of the evidence and answers the case made. The importance of procedural protections is commonly justified on one or more of three grounds 49 . First, that a fair process is more likely to achieve a good quality substantive outcome. Secondly, that citizens should be able to enjoy procedural protections as of right. Thirdly, that meaningful participation in process is of intrinsic value as it affords dignity. However, the judiciary have long been troubled by determining when the full panoply of procedural protections are warranted. Images of sliding scales of entitlement are sometimes discussed and more often hinted at. It is clear that the courts do not expect elaborate formal procedures to be used to manage relatively unimportant matters. At the top of the sliding scale are the procedural protections enshrined in court procedure; at the bottom is a watered down version for less important disputes. A number of procedural protections have been described as rights but the courts have rarely been prepared to concede such forms of legal insulation. Even where the rules of natural justice apply they have been seen as a fluid 48 Despite this, it is interesting that claims that the accuracy of decision making in the interests of preserving the integrity o f t h e legal system have surfaced under both models, reminding us that legal process is n o t o n l y set against a political theory but also that the making of the law is a political act. 49 Harlow and Rawlings, op cit.


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rather than a rigid concept with much depending on the nature of competing claims being adjudicated and situational factors50. The rights allocated to parties seem to depend on a number of key factors such as: the importance of the interest which a complainant is seeking to protect; the seriousness of the consequences of an unfavourable decision; the nature of assurances given to the individual citizen; the cost of awarding a full range of procedural rights; and the necessity for speed. These distinctions have often been hard to draw and it has been argued that resulting decisions are often based on pragmatic rather than principled grounds. In the words of Ison "The courts classify lower level decisions as administrative, not because of their nature, but as a way of rationing judicial time" 51 . Similarly Cane has argued there is no logic to the ways in which circumstances have been matched with method of resolution within the civil justice area: There is no simple answer to the question of which procedure is relevant in which circumstances or to which decisions. There is no necessary relationship between particular models of procedure and particular types of issue. The question of which issues ought to be decided according to which procedures is policy52.

Is There a Plimsoll Line? One question which arises when considering the sliding scale model discussed above is whether there is a plimsoll line: a set of minimum standards which can be expected of all grievance systems. The launch of the Citizens Charter Initiative and the task force the Cabinet Office commissioned to review complaints systems across the public sector caused a burgeoning of interest in this question amongst policy makers, academics and practitioners. The Charter placed considerable emphasis on complaints as one of the key methods of holding the public sector to account. Task force publications posed a series of questions according to which organisations could determine whether they were meeting the charter standards. Their reports can be seen as reflecting an inherent tension or as posing a pragmatic solution to some of the problems already discussed in this chapter. They suggested both that there were a number of core principles that should guide complaints procedures but that variation and dynamism should also be encouraged. The document laid down seven principles most of which reflected the natural justice debate: Accessibility Simplicity Fairness 50 51 52

See for example Lord Bridge in Lloyd v. McMahon hoc. cit., supra n. 2. Op cit, p 166.

[ 1987] 1 All ER 1118.

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Effectiveness Speed Confidentiality Quality Management The checklist provided by the unit was not meant to be prescriptive or exhaustive. It was suggested that the enormous range and variety of organisations within the public sector meant that not all the criteria or questions posed would be relevant to all of them. What made them interesting was the very real attempt to guide considerations of fairness in low level complaints procedures 53 .

Recognition Of Other Models Is the relationship between the courts and low level complaints procedures best couched in terms of alternative, complementary or hierarchical systems? There have been suggestions that the alternative or complementary view should prevail. Support for this argument could well explain the courts traditional reluctance to extend the ambit of natural justice and the courts' supervisory power over alternative fora54. The rules of natural justice have been seen as inextricably linked to the principles of the adversarial system and the dominance of an adversarial approach to fact finding have been less evident in low level procedures. But there is also evidence that, despite these distinctions, all systems gravitate to formal adversarial systems. It has been argued that this approach is fuelled by the emphasis on this approach in the legal education system, case law, legal history and the dominant vision of the courts as a model to be emulated. Particular examples of this tendency are the increasing formality of tribunals and inquiries. It would seem that this happens because the court based adversarial system is seen as the gold standard and that lawyers cannot help comparing all other processes to it unfavourably and trying to change them. Harlow and Rawlings have described this as a case of "squaring the circle"55 or modelling the administrative process in the court's own adjudicative image. One of the ways in which the "judicialisation" of all grievance procedures has been facilitated is by the linking of different grievance resolution sites in

53

T h e notion o f fairness w a s considered t o be of particular importance to the Task Force because o f the absence of effective choice in public sector services. Fairness was defined in c o m m o n sense terms as evenhandedness, an impartial view of the facts and open and straightforward responses. T h e Task Force emphasised the importance of external review but w a s imprecise as to when it should be required. 54 See Craig, op cit. 55 Op cit, at p 404.


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the public sector through the extension of judicial review to lower level procedures. If the decisions of a lower decision maker can be judicially reviewed then respect for the rules of natural justice will be expected of them and the validity of their own decision considered with reference to making the procedures subordinate to, rather than alternatives to the courts 56 . Harlow and Rawlings57 argue that when the courts require that decision makers be impartial they are asking for adjudication to be incorporated into the administrative process. They also suggest that what underpins such developments is a desire for the courts to become omnicompetent in matters relating to fair procedure. Lawyers have been slow to notice that there may be other issues at stake. Craig58 has argued that a major consequence of modelling procedural rights after those of the ordinary courts has been to constrict experimentation with other types of process right.

Developing Responsive Principles Attempts at establishing core principles belie the difficulties of applying such concepts in practice and this is nowhere more apparent than in low level grievance procedures. It is here that the tensions between the needs of disputants, the public and the principles of administrative law are most at odds. The lower levels of the grievance hierarchy are the places where it is most likely that abuse will occur, yet the grand principles of administrative justice are upheld more vociferously when they relate to appeals procedures and tribunal hearings. The inability of public and administrative lawyers to rise to the challenge of meaningful concepts of fairness at this end of the justice system has meant that many natural justice concepts are rendered meaningless because of the difficulties involved in achieving them. The "right" to question witnesses means little where a hearing does not take place. The notion of impartiality means nothing when the first attempt at a complaint is to the person whom you hold responsible for the problems caused. Moreover, procedural safeguards based on equal right being accorded to each side may be of little use to disadvantaged users of the welfare state who are in a position of vast inequality of bargaining power with providers. In recent decades commentators have been concerned that the notion of natural justice is so vague as to be meaningless. These concerns have led Mashaw 59 to question whether the notion of administrative justice has any meaning at all in a welfare programme. He has argued that administrative lawyers should direct their attention to internal administrative practice and 56 57 ss 59

On this point see Seifert and Lynch v. Pensions Ombudsman [1997] 1 All ER 214. Opcit. Op cit. Mashaw, J., (1983) Bureaucratic Justice, New Haven, Yale University Press.

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routine activities rather than external appeals. A small number have and, in the ensuing debate, they have posed the question of whether there are more appropriate criteria which should be applied to internal grievance procedures. Sainsbury60 argues that a grounded approach to the establishment of principles, which looks to the competing tensions and reality of decision making within organisations, could mean that a more relevant normative framework could be established for low level decision making. In this way commentators would be focusing their efforts on an area which is far more relevant in securing or improving the effective provision of public services. The notion of impartiality causes particular problems. Many have argued that the rules against bias are basic to our idea of fair decision making and that it is only in very special circumstances that observance of the rules can be dispensed with 61 . Typologies of third party roles have tended to focus on visible legal actors in formal settings such as judges, arbitrators and mediators. Little attention has been paid to third party dispute resolvers from within the organisation being complained about. Few have examined impartiality capacities, the interface between partisan roles or the ways in which actors switch between them. There are some exceptions to this trend most notably the work undertaken by Black and Baumgartner62, Kolb63 and Mather and Yngvesson64 but the empirical reality is complex and difficult to unravel, especially when third party roles are shrouded in rhetoric. In particular little account has been taken of the tensions experienced by complaint handlers created by such factors as prevailing ideologies, socio-political context, public relations needs, budgetary constraints, standards of efficiency, professional and managerial culture, promotion prospects, the preference of colleagues and general workplace politics. The extent to which these concerns marry or conflict with the individual characteristics of complaint handlers and their personal morality is clearly in need of further explanation. Commentators are increasingly placing emphasis on the notion of participation as a guiding principle and this has provided fertile ground for debate. An appreciation of what is required for effective participation begs empirical investigation of how individual disputants want to participate. Recent research suggests that this can be achieved through the opportunity to have one's say; to witness verbal responses and accounts; to experience the process 60 Sainsbury, R., (1992) "Administrative Justice: Discretion and Procedure in Social Clarendon Press, Security Decision Making" in Hawkins (ed) The Uses of Discretion, Oxford. 61 Cane, op cit. 61 Black, D . a n d Baumgartner, M. (1983) "Towards a theory of the third party", in K. Boyum and L. M a t h e r eds Empirical Theories about Courts, N e w York: L o n g m a n . 63 Kolb, D . , (1987) "Corporate o m b u d s m e n and organization conflict resolution" Journal of Conflict Resolution 31: 673-91. 64 Mather, L. and Yngvesson, B. (1980-81) "Language, audience, and the transformation of disputes", Law and Society Review, 153-4:775-821.


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of clarification, investigation and attempts at resolution of issues and to help clarify what the key issues in dispute are 65 . Participation can be seen as an important way of complainants experiencing process and promoting accuracy in the investigatory process. It transforms service users from passive recipients or resisters into active co-operators in decision making which effects them. It also acknowledges that service users may be a principal source of information and gives complainants the opportunity to have an impact on any review. Viewed in this way, process is capable of becoming a constituent part of outcome. It remains to be seen whether the promise of the notion of participation can be achieved.

Conclusion In this paper I have argued that insufficient attention has been placed on understanding the needs of those involved in low level justice systems and whether these systems occupy a special place in the administrative justice system or are an "add on" used to deal with low status cases. Administrative justice is not limited to the external scrutiny of administrative practices so why has the scope of academic debate been so limited? Why have we chosen to concentrate on appeal structures? Is it a form of intellectual snobbery which equates low level with the unimportant or with cases involving the socially disadvantaged? Does it reflect an inability to accept anything other than one gold standard procedure as enshrined in the procedures of the upper courts? Or is it an area in which administrative lawyers feel that administrative law principles have little to contribute? The issues are complex and would benefit from a heightened debate about the theoretical underpinnings of administrative law and a more multi-disciplinary approach to an understanding of the problems it seeks to address. In an era in which the concept and problems of social exclusion are being debated it seems odd that academic debate as reflected in major journals and text books has not risen to the challenge of more in-depth discussion about the parts of the legal process of which most people are likely to have experience. The debate about the notion of participation suggests a useful new starting point for theoretical and empirical research. It facilitates a more in-depth discussion of what constitutes empowerment than has been prompted by the traditional emphasis on procedural equality. Providing procedural equality can protect the socially excluded. It can also exacerbate existing inequalities. The rhetoric is attractive but the reality can make a mockery of the good intentions.

65 Mulcahy, L., (1998) Mediating medical negligence claims—an option for the future, Report to the Department of Health, University of North London, London.

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Lord Woolf's report on civil justice and the imminent reforms that will come in its wake should force debate on the issue of where the cases being pushed out of the court system will go. It should also provide a sharper focus on the issue of what constitute alternative forms of grievance resolution. To date much debate in administrative law has focused on the notion of informality and this is the most common way of distinguishing between low and high levels of the civil justice system. But notions of informality and alternative are not synonymous though they co-exist in many procedures. There is much to be done in the quest for understanding the alternative procedures which work best in a low level setting and more importantly, the type of procedures which users of those services consider best suit their needs. It is not only the socially excluded who use low level complaints procedures but they are the group about which most concern may be felt because of the potential for abuse of their weak bargaining position. Understanding how they can participate fully in social and legal systems is undoubtedly one of the biggest challenges facing the current government and the academic community.

PART 2

The New Administrative Law: The Citizens Charter, Ombudsmen and Other Developments for the Resolution of Complaints

The Citizen s Charter and Administrative Justice ALAN PAGE

Introduction

T

HIS paper is based on research into the constitutional implications of executive self-regulation in the United Kingdom carried out as part of the Economic and Social Research Council's (ESRC) Whitehall programme.1 By executive self-regulation is meant all significant controls over the executive branch of government which are initiated, designed and operated within the executive branch itself—as opposed to Parliament or the courts. Seen from an internal control perspective what is significant about the Citizen's Charter is that it represents a widening of central internal control to include relations between the executive and individual, which traditionally have been very much left to departments. In this paper I want to concentrate on the Charter from the other side of the coin, i.e. from the perspective of administrative justice. Two aspects of the Charter in particular stand out as being of potential significance from this perspective. The first is that it provides a vehicle for the setting of standards of quality of service or administration, standards which in some cases are individually enforceable. The second is that it envisages the establishment of complaints procedures through which complaints arising out of the provision of public services may be resolved. But while in my view both these aspects of the Charter represent potentially valuable contributions to administrative justice, it is the Charter's emphasis on the systemic aspects of quality of service or administration that may hold the greatest lessons for the traditional machinery of administrative justice.

1

Award no L113251005.

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The Charter The Citizen's Charter was launched in July 1991 as a ten year programme to raise the standard of public services and make them more responsive to the needs and wishes of their users. It followed an earlier OMCS management study which had sought to identify the essential elements of a "service to the public strategy". 2 The White Paper that launched the Charter heralded it as "the most comprehensive programme ever to raise quality, increase choice, secure better value, and extend accountability".3 In relation to the quality of public services, its purpose has been described as being to "stimulate public services to use public money better", in the face of a traditional reluctance on the part of both departments and the Treasury to discuss standards or quality, the latter because of fears that it would be called on to fund improvements.4 It applies to all public services, including government departments and agencies, local authorities, the National Health Service, the courts, police and emergency services, and the "key utilities" in the private sector.5 Following the change of government a consultation document was issued on its relaunch,6 which is expected to be followed by a White Paper on "Better Government". The Charter does not have the force of law. For some commentators the absence of a legal framework for the Charter is a weakness, which "undermines the citizen's right of redress and weakens the government's powers of implementation, making it essentially dependent upon the goodwill of heads of agencies who may mouth the rhetoric of the Charter without ensuring that it is effectively adhered to". 7 But in the Government's view the Charter did not require "legislative teeth" in order to achieve results.8 As well as being unnecessary, statutory intervention was seen as having undesirable consequences. Not only would it threaten the executive's control of the initiative by exposing it to the uncertainties of the legislative process, but once enacted it might be difficult to alter. According to the Deputy Director of the Citizen's Charter Unit, legislation to empower citizens to obtain their entitlements from public services could in practice become a "constraint on developing more flexible, responsive public services that reflect what people want today". 9 There was 2

Cabinet Office, Service to the Public (London, HMSO, 1988). The Citizen's Charter: Raising the Standard, Cm 1599 (1991), 4. 4 S Hogg and J Hill, Too Close to Call (London, Warner Books, 1996), 93. 5 Above n.3, at 6. * Cabinet Office, Office of Public Service, The Citizen's Charter: A Consultation Exercise (September 1997). 7 R Bellamy and J Greenaway, "The New Right Conception of Citizenship and the Citizen's Charter", (1995) 30 Government and Opposition 469 at 483. 8 D Goldsworthy, "The Citizen's Charter", (1994) 9 Public Policy and Administration 59 at 63. 9 Ibid. 3

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thus built into the Charter process from the outset an opposition to the creation of what might be described as vested rights, which stands in sharp contrast to the approach of traditional administrative justice. The core of the Charter comprises six "principles of public service" to which public authorities are expected to give effect. The six principles are: standards Setting, monitoring and publication of explicit standards for the services that individual users can reasonably expect. Publication of actual performance against these standards; information and openness Full, accurate information readily available in plain language about how public services are run, what they cost, how well they perform and who is in charge; choice and consultation The public sector should provide choice wherever practicable. There should be regular and systematic consultation with those who use services. Users' views about services, and their priorities for improving them, to be taken into account in final decisions on standards; courtesy and helpfulness Courteous and helpful service from public servants who will normally wear name badges. Services equally available to all who are entitled to them and run to suit their convenience; putting things right If things go wrong, an apology, a full explanation and a swift and effective remedy. Well publicised and easy to use complaints procedures with independent review wherever possible; and value for money Efficient and economical delivery of public services within the resources the nation can afford. And independent validation of performance against standards. Public authorities have given effect to these principles by issuing their own charters and charter standards statements. There are now some 41 national charters and approximately 10,000 local charters, in addition to which the Office of Public Service has promulgated six minimum service standards for central government which departments and agencies have been expected to meet since 1 April 1997.10 Exercising effective control over the charter-making process is difficult, but the centre in the shape of the Citizen's Charter Unit has attempted to exercise a measure of control over the making and revision 10

The Citizen's Charter—Five Years On, Cm 3370 (1996), 46.

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of national charters and charter standards statements through a combination of guidance and clearance requirements. Guidance has been issued on procedures for clearing national charters,11 which includes a checklist of what national charters should contain, redress,12 and complaints review arrangements,13 the latter two in response to recommendations from the Select Committee on the Parliamentary Ombudsman, which has played a key role in the development of the Charter process. Some national charters require central clearance, while others require clearance by departmental ministers.

Standards The first aspect of the Charter which stands out as being of potential significance from the point of view of administrative justice is that it provides a vehicle for the articulation of standards of service or administration. The Citizen's Charter White Paper envisaged that, in addition to courtesy and helpfulness from staff, standards should invariably include accuracy in accordance with statutory entitlements and a commitment to prompt action, which might be expressed in terms of a target response or waiting time.14 The Inland Revenue's current customer service standards are not untypical. They comprise targets for dealing correctly first time with cases, as well as targets for dealing with correspondence (there are also targets for the fullness of the response to correspondence), attending to personal callers, answering telephone calls, and dealing with repayment claims. The Benefits Agency follows a similar pattern with targets for benefit claim clearance times, accuracy of assessments, dealing with correspondence, attending to personal callers, and answering telephone calls. The guidance on procedures for clearing national charters stipulates that standards should relate both to the service provided and the way in which it is delivered.15 For the last Parliamentary Ombudsman charters and charter standard statements were useful but not necessarily definitive statements of "good administration".16 Standards of good administration are of course not the only standards we expect to find reflected in the administrative process. As well as standards of good administration, we also look for standards of propriety, 11

Citizen's Charter Unit, Charter Checklist (1997). Cabinet Office, Office of Public Service, Redress under the Citizen's Charter: Guidance for Departments and Agencies (1996). 13 Cabinet Office, Office of Public Service, Complaints Review Arrangements in Public Services (1997). 14 Above n. 3, at 5. 15 Above n. 11. 16 Parliamentary Commissioner for Administration, Annual Report for 1991, HC (199192) 347, para 8; see too Select Committee on the Parliamentary Commissioner for Administration, The Implications of the Citizen's Charter for the Work of the Parliamentary Commissioner for Administration, HC (1991-92) 158, para 3. 12


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regularity and legality. But subject to the Ombudsman's caveat that they are not necessarily definitive of good administration, there would seem no reason to regard charter standards as anything other than a potentially useful addition to the machinery of administrative justice. A feature of some charter standards is that they are individually enforceable, through the Charter's own machinery of redress. While of obvious importance to the individual affected, it would be a mistake in my view to place too great an emphasis on the individual enforceability of charter standards. The Charter's status as one of two "key disciplines"—the other being control of running costs—within which a further improvement in Civil Service performance was sought under the last Conservative administration 17 suggests that in contrast to the traditional machinery of administrative justice the Charter was conceived first and foremost as a means of improving standards rather than of conferring the administrative equivalent of legal rights on individuals—insofar as "rights" are conferred on individuals that is incidental to its main purpose. The origins of many charter standards in ministerial quality of service targets set for Next Steps agencies points to a similar conclusion. Nevertheless, a valid criticism of charters and charter standard statements has been that they often fail to make clear whether they be understood as a guarantee that a certain standard will be met, or merely as a statement of intention, which may in fact not be fulfilled.18 This criticism is acknowledged in the guidance on procedures for clearing national charters, which stipulates that charters should make clear whether they create rights or expectations in the users of the services to which they relate. The guidance defines rights as standards which users will receive all the time, expectations as standards providers are aiming to achieve, but which exceptional circumstances may sometimes prevent from being met.19 Treasury guidance on financial redress in the context of the Citizen's Charter, which was issued following an inquiry by the Select Committee on the Parliamentary Ombudsman into the practice of redress among government departments, similarly provides that charters and statements of charter standards should "explain the nature of the commitment to the user, and, where appropriate, whether compensation may be paid and in what general circumstances".20 Whether standards are to be understood as guarantees or as non-enforceable statements of good intentions is therefore a matter for service providers themselves. Insofar as charters and charters standard statements create rights in individuals they are administratively rather than legally enforceable. "Charters are 17

The Civil Service: Continuity and Change, Cm 2748 (1994), paras 3.2-3.4. Select Committee on the Parliamentary Commissioner for Administration, Maladministration and Redress, HC (1994-95) 112, para 70; Public Service Committee, The Citizen's Charter, HC (1996-97) 78, para 41. 19 Above n . l l . 18

20

D A O (GEN) 7/96: para 36.4.12

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not legal documents; their promises do not, by and large, constitute legal rights". 21 This does not of course exclude the possible of their indirect judicial enforcement, though there have been few signs of the "juridification" of charter standards. 22 Calls have been made for the legalisation of charter rights, but these have generated little enthusiasm. In evidence to the Public Service Committee in the last Parliament the National Consumer Council was of the view that non-statutory "entitlements" were at least as effective as statutory ones, so long as public authorities acted as if they were under a duty, consumers were able to act as if they had rights, and complaints and redress procedures for enforcing them were effective and user-friendly.23 The Committee for its part accepted that to set standards too precisely might be "unhelpful and bureaucratic".24 Lack of clarity is not the only criticism to have been made of charters and charter standard statements. Although the "consultation" principle stipulates that there should be "systematic consultation" with users of services, and that their views about services and priorities for improving them should be taken into account in final decisions on standards, a recurrent criticism of the standard-setting process has been that standards have for the most part been determined by service providers themselves.25 This criticism, too, is acknowledged in the guidance on the procedures for clearing national charters, which require requires new and revised national charters to demonstrate that users of the service have been consulted on the standards and type of service offered, and that their views have been taken into account. From April 1997 new and revised national charters have also had to be issued in draft, so that users' views can be taken into account before final versions are published.26 A further source of criticism has been the lack of independent validation of performance against standards. The Citizen's Charter White Paper envisaged that targets should be published accompanied by full and audited information about the results achieved.27 The Public Service Committee in the last Parliament, however, found little evidence of monitoring or audit of performance against targets, despite the vulnerability of performance data to manipulation. 28 A National Audit Office examination of the Contribution Agency's customer charters found that, apart from its target for customer satisfaction, 21

Public Service C o m m i t t e e , The Citizen's Charter, H C (1996-97) 7 8 , para 4 2 . C H o o d , "Emerging Issues in Public Administration", (1995) 73 Public Administration 165 at 179. 23 A b o v e n. 2 1 , para 4 3 . 24 Ibid., para 94. 25 A b o v e n.7 at 488. 26 T h e Government also published jointly with the National Consumer Council and C o n s u m e r Congress a guide t o improving services through consulting users—Citizen's Charter Unit, Asking Your Users. . . . How to improve services through consulting your consumers (1996)). 27 A b o v e n.3 at 5. 28 A b o v e n.21 , paras 62-63. 22


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there was no external validation of the Agency's performance against the Secretary of State's targets for customer service. It also found that only two of the Secretary of State's four targets for customer service related directly to standards set in the Agency's charters, leading it to recommend that the Agency review the link between the customer charters and the Secretary of State targets, to ensure greater consistency and efficiency in measuring and reporting performance to customers and to strengthen accountability. 29 What these criticisms underline, however, is not that the effort that has gone into the formulation of charter standards is necessarily misplaced, but the importance of scrutiny of the choice of standards, the relationship between charter standards and other standards or targets which may be set for service providers, e.g. ministerial targets for Next Steps agencies, and the effectiveness of their implementation, particularly in the light of the persistent criticism that considerations of quality have been subordinated to those of efficiency. Before leaving standard-setting we may note that the technique is not confined in its application to the machinery of administration but also extends to the conventional machinery of administrative justice. From the outset the Council on Tribunals made clear its view that charters for individual tribunal systems were a useful means of publishing the standards which could be expected by appellants, and urged the issue of charters for all the major tribunals falling within its jurisdiction.30 The fragmented nature of the administrative justice system may have made this a more difficult process than in relation to the judicial system where it has proved possible to proceed on the basis of a single Charter for Court Users (in Scotland, a Justice Charter). But a number of tribunal systems, including the Independent Tribunal Service, have now published charter statements. The Lord Chancellor's Department has also published Standards of Service for Tribunals; it is not in terms a charter statement, but it is intended to prescribe the standards of service individuals can expect from the administrative staff of tribunals supported by the department. 31

Complaints procedures The second aspect of the Charter which stands out as being of potential significance from the point of view of administrative justice is that it envisages the establishment of complaints procedures through which disputes arising out of the provision of services may be resolved. The "putting it right" principle 29

National Audit Office, The Contribution

Agency's Customer Charters, H C (1996- 97)

266. 30 Council HC (1993-94) 31 Council HC (1995-96)

on Tribunals, The Annual Report of the Council on Tribunals for 78, para 2.6 and 2.110. on Tribunals, The Annual Report of the Council on Tribunals for 114, para 2.191.

1992-93, 1995-96,

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requires public authorities to have "well publicised and easy to use complaints procedures with independent review wherever possible." Perhaps more so than with the setting of service standards, the Charter in this respect caught a tide which was already flowing strongly in the direction of alternative mechanisms of redress. The principal role in the elaboration of the putting it right principle was played by the Citizen's Charter Complaints Task Force, which was set up in June 1993, after the White Paper's proposal for a lay adjudicator had proved unworkable, to draw up and publish "a set of principles for effective public service complaints systems that people can believe in". The Task Force identified seven basic principles of effective complaints systems which it believed to be of widespread application. Complaints systems, it suggested, should be: easily accessible and well publicised; simple to understand and use; speedy, with well established time limits for action, and keeping people informed of progress; fair, with a full and impartial investigation; confidential, to maintain the confidentiality of both staff and complainants; effective, addressing all the points at issue, and providing appropriate redress; and informative, providing information to management so that services can be improved.32 The Task Force was also charged with encouraging public service organisations that did not do so already to adopt its principles. It was not equipped with statutory powers for this purpose, a fact which it emphasised in its literature, but relied instead on a mixture of advice and encouragement to secure their adoption. It also published as part of its final report a Good Practice Guide, which public services are encouraged to use as the "basic building block" of their complaints handling systems. 33 One of the more striking features of public service complaints systems is the open-ended nature of their jurisdiction. In particular, their jurisdiction is unlikely to be confined to the circumstances in which service standards are allegedly not met. The Complaints Task Force recommended that each public service develop its own definition of a complaint, and apply it consistently across all it services.34 The definition chosen should be the most appropriate and least restrictive to suit its circumstances. A working definition organisations might wish to consider was "any expression of dissatisfaction which needs a response".35 Some commentators have claimed to detect a clear 32

Citizen's Charter Unit, Complaints T a s k Force, Effective Complaints Principles and Checklist (1993) 33 Citizen's Charter Unit, Complaints T a s k Force, Good Practice Guide (1995). 34 Ibid., para 4. 35 Ibid., para 5.

Systems:


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conceptual distinction between complaints procedures o n the one hand and other avenues of redress on the other.36 A definition of this breadth, however, is apt to catch many complaints that might ultimately form the subject of an appeal or other form of challenge, and indeed part of the attraction of complaints systems for organisations must be that they reduce their vulnerability to other forms of challenge. Following the establishment of their own complaints machinery, there was a noticeable reduction in the number of complaints to the Parliamentary Ombudsman against the prison service, while the percentage of complaints relating to the Inland Revenue also fell.37 A further feature of public service complaints systems is the growing emphasis on the provision of an independent element. Complaints systems typically make provision for some form of "independent" internal review, which the Task Force defined as "review within the organisation but separate from the direct line management of the person or section complained about". 38 The Task Force, however, found that, although many systems provided a full and thorough review, there was a good deal of scepticism among the public about whether internal reviews were truly independent. 39 Perhaps for this reason it has become more common for complaints systems to make provision for a review stage beyond investigation by an organisation's own staff. The lead in this respect was taken by the Inland Revenue, which established an Adjudicator scheme in 1993.40 Its scope now covers the three revenue-raising authorities, i.e., Customs and Excise and the Contributions Agency as well as the Inland Revenue. Adjudicators or complaints commissioners have also been established for Companies House, the Prison and Scottish Prison Services, and the Child Support Agency. The Task Force was sufficiently impressed by the Inland Revenue's adjudicator scheme to recommend that all public services providing a service direct to members of the public establish an external review mechanism appropriate to their own circumstances and their existing complaints handling arrangements. 41 Guidance issued by the Citizen's Charter Unit42 suggests ways of ensuring the independence and effectiveness of complaints review arrangements. Among the "guiding principles" for complaints review it identifies, derived from the Task Force's Good Practice Guide, are that reviewers be independent of the sponsoring service; have adequate resources to do the job properly; be 36

Citizen's Charter Unit, Complaints Task Force, Complaints: Literature Review (1994). Parliamentary Commissioner for Administration, Annual Report for 1996, H C (199697) 386, paras 36 and 60. 38 Above n. 32, para 5. 39 Citizen's Charter Unit, Complaints Task Force, Putting Things Right: Main Report (1995), para 2.27. 40 See P Morris, "The Revenue Adjudicator—The First T w o Years" [1996] Public Law 309. See further the paper by Rein and Lally in this collection, "The Role and Function of the Adjudicator's Office" in Chapter 8 infra, New Procedures. 41 Above n.39, para 3.87; n. 33, para 3.23; see too n.12, para 19. 42 Above n . l l . 37

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free from pressure from the service about how to carry out investigations and run their affairs; have the right of access to the service's staff and documentation; and have power to make decisions binding on the service, or have a clear agreement that decisions will not be accepted only in exceptional circumstances.43 The guidance emphasises that it is for individual services to judge the merits of a complaints review system in the light of the number and nature of their unresolved complaints and their resources. Beyond external review by some form of complaints adjudicator, the possibility may also exist for those bodies subject to his jurisdiction of a complaint to the Parliamentary Ombudsman as the last rung in the complaints ladder. A persistent concern of the Select Committee on the Parliamentary Ombudsman in the last Parliament was to ensure that organisations' complaints literature did not omit mention of the possibility of a complaint to the Parliamentary Ombudsman. The Citizen's Charter Unit's guidance on redress enjoins departments and agencies that fall within the Ombudsman's jurisdiction to ensure that their charters and charter standard statements refer to the involvement of the Ombudsman in independently reviewing complaints; and to explain this option for seeking redress to complainants who remain dissatisfied.44 The Citizen's Charter Unit's guidance on procedures for clearing national charters requires charters to explain what remedies are available if individual standards are not met. 45 Among the possible forms of redress that may be obtainable via a complaints system are an apology, an explanation, an assurance that the same thing will not happen again, action to put things right, and financial compensation. The principles governing the availability of financial compensation for sub-standard service were only worked out following an inquiry by the Select Committee on the Parliamentary Ombudsman into the practice of redress among government departments. 46 Revised Treasury guidance issued in response to the Committee's recommendations makes the availability of financial compensation dependent upon the nature of the commitment to the user of the service, which is a matter for the service provider, subject to the approval of the Treasury where it is proposed to make it a standard part of redress procedures for failure to deliver a service.47 Citizen's Charter Unit guidance on redress issued at the same time anticipates that financial compensation following a failure to achieve a charter standard will be appropriate in relatively limited circumstances. It also stresses that it is important to ensure that charters and charter standard statements do not create a general expectation that compensation will automatically be paid if charter standards are not met. 48 The overall effect is to reinforce the impression of the 43 44 46

A b o v e n.33, paras 3.24-3.25; n.39, para 3.89. 45 A b o v e n. 12, para 18; n. 13, para 35. Above n.11. Select C o m m i t t e e o n the Parliamentary C o m m i s s i o n e r

Maladministration and Redress, HC (1994-95) 112. 47 48

D A O ( G E N ) 7/96: para 36.4.14. A b o v e n.12. para 11.

for

Administration,

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charter as an aggregative process aimed at raising or maintaining standards of administration as opposed to conferring rights on individuals—or at least rights in respect of which financial compensation may be payable where they are infringed. In its final report to ministers on the way in which public services handled complaints, the Task Force said there was still some way to go before all public services could be said to operate wholly effective complaints systems.49 It recommended that public services draw up an action plan for implementing its recommendations and that the Citizen's Charter Unit commission a survey every two years of user awareness of, and satisfaction with, how public services were handling complaints to establish whether real progress was being made and to identify what problems needed addressing. The first such survey has been commissioned, but the results have yet to be published. Clearly, however, there is a double-edged quality to complaints systems. On the one hand, they can contribute to the speedy and effective resolution of disputes and the enforcement of standards. On the other hand, they can become just another hurdle to be negotiated—"layers of investigation that simply become an obstacle course"50—which may have the effect of deterring individuals from pursuing well-founded complaints. But subject to steps being taken to ensure that responsibility for their effective operation is clearly located and monitored, there would seem to be no reason to regard them as anything other than a valuable addition to the machinery of administrative justice.

Systems Improvement Perhaps the most striking feature of the Charter process from the point of view of administrative justice, however, is the emphasis placed on systems and systems improvements. The Citizen's Charter Unit's guidance on redress lays down as a general principle that, as well as putting things right for individual users, public service complaints systems must allow organisations to learn the lessons from complaints, initiate a systemic change, or make an improvement in the way a service is delivered.51 One of the hallmarks of effective complaints systems was that they should ". . . enable public services to learn the lessons from complaints, whether they concern a failure to meet a Charter standard, or a case of maladministration. One of the most effective means of redress is to be able to assure users that failures in service will not recur. Within the constraints of resources available, departments and agencies should record and analyse complaints for trends; set targets for reducing recurring failures; look for any repetition or pattern in failures to meet standards or in maladministration; and take action to change systems or procedures where necessary".52 49 52

so Above n.39. Above n. 13, para 6. Above n. 12, para 5d.

5I

Above n. 12, para 4.

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To the same effect the Treasury guidance requires departments to "ensure that defective systems or procedures are corrected where a complaint (or PCA investigation) has shown systemic faults".53 An examination of the work of the Parliamentary Ombudsman over the last few years reveals a similar emphasis on the systemic aspects of good administration. At the start of the decade the Ombudsman defined his aims exclusively in terms of securing the redress of justified complaints,54 but by 1994 their definition had been widened to include the identification of measures needed "to improve systems, practices and procedures which the investigations of complaints have shown to be deficient, with a view to avoiding or reducing the repetition of maladministration", and the promotion of "higher standards of administration by publishing evidence of bad practice to enable government departments and other bodies within jurisdiction to assess what steps they can take to improve the standards of service they offer".55 In pursuit of his aim of improving standards of administration, the Ombudsman amplified the original Crossman catalogue of maladministration in order to make "departments and others more aware of what constitutes maladministration";56 he also secured the circulation by OPS of summaries of the reports of his cases, produced by his office, together with notes drawing civil servants' attention to the lessons of general application that can be learned from them;57 and offered departments and other bodies within his jurisdiction guidance on how maladministration might be avoided in the shape of nine "basic principles of good practice based on experience". The principles of good practice and the "Reid supplement" to the original Crossman catalogue are both set out in a booklet, The Ombudsman in Your Files,58 which was inspired partly by the example of The Judge Over Your Shoulder.59 He also made greater use of his power to issue special reports, e.g. on disability living allowance60 or the Child Support Agency,61 in order to highlight issues of redress or administrative practice raised by a particular case or group of cases,

53

D A O (GEN) 7/96: para 36.4.15; see t o o D E O (PM) (96)4: para 55. Parliamentary C o m m i s s i o n e r for Administration, Annual Report for 1990, H C (199091) 2 9 9 , para 7 54

55

Parliamentary C o m m i s s i o n e r for Administration, Annual Report for 1994, H C (199495) 3 0 7 , para 14. • w Parliamentary C o m m i s s i o n e r for Administration, Annual Report for 1993, H C (199394) 290, para 7. 57 Ibid., para 4 ; Parliamentary Commissioner for Administration, Annual Report for 199S, H C (1995-96) 2 9 6 , para 4 ; the summaries are headed 'Lessons to be Learned from the O m b u d s m a n ' s Investigated Cases or What to Avoid'. 58 Cabinet Office, The Ombudsman in Your Files (London: H M S O , 1995). 59 Treasury Solicitor's Department, The Judge over Your Shoulder (2nd e d . , 1995). 60 Parliamentary C o m m i s s i o n e r for Administration, Delay in Handling Disability Living Allowance Claims, HC (1992-93) 652. 61 Parliamentary Commissioner for Administration, Investigation of Complaints against the Child Support Agency, HC (1994-95) 135; HC (1995-96) 386.


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and encouraged the Select Committee to undertake "thematic" inquiries into issues which have recurred in the course of his investigations. It is not so long ago that the suggestion that standards of good administration might be made more explicit was viewed with some scepticism, if not as positively inimical to the needs of good administration. Sir Cecil Clothier, Parliamentary Ombudsman from 1979 to 1984, opposed the introduction of a code of principles of good administration, on the grounds that, if they were anything more than "pious generalisations", in other words, if they were taken seriously, they could be the cause of "undesirable bureaucratic rigidity .. [and] the enemy of that sensitivity and flexibility which were essential to good administration".62 What appears to have prompted this change of approach are fears of the effects of the fragmentation of the Civil Service and the attendant dilution of Civil Service knowledge on standards of administration. In his Annual Report for 1993 the Ombudsman wrote that "continuing changes in the public services and the way its functions are to be carried out" had heightened the "need for best practice to be disseminated among departments in a directed and focused manner." 63 It was, he wrote, a "source of great concern that my investigations reveal one department repeating unnecessarily another department's errors." 64 A glance at the annual reports of the Council on Tribunals is sufficient to show that the last few years have seen the conventional machinery of administrative justice subject to the same pressures as the machinery of administration. In its most recent annual report, the Council draws attention to instances where the continued pressure on public resources is seriously eroding the quality of service which tribunals are able to provide to the public and, in some cases, impinging on the proper exercise of the tribunal's judicial task.65 Its comments echo the observations of the last Parliamentary Ombudsman that he expected further reductions in the number of civil servants to lead to "more, not less, maladministration, despite the references to efficiency savings."66 But although the problems are the same, the extent to which we are seeing the adoption of a more systemic approach to the conventional machinery of administrative justice along the lines mapped out by the Parliamentary Ombudsman is less clear. It may be, however, that we are beginnings to see signs of a change in the Council on Tribunal's approach through, for example, the issue of feedback reports. 67 The Council has also issued a special report on the organisation and independence of tribunals68 in which it examines the essential elements of the independence and integrity of tribunals and their implications for relations between departments and individual tribunal 62 Justice-All Souls, Administrative Justice: Some Necessary Reforms (Oxford, Clarendon, 1988), para 2.24. 63 M Above n.56, para 8. Ibid., para 3 . " A b o v e n.31 para 1.2 and 2.2. 66 67 Above n.55, para 6. A b o v e n.31, para 3.20. 68 Tribunals: their Organisation and Independence, C m 3744 (1997).

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systems. If the conventional system of administrative justice is to cope with the challenges it faces, one suspects it will only be through the further development and refinement of this more systemic approach and the active monitoring of departmental compliance with the principles laid down.

Conclusions This paper has highlighted a major difference between the charter process and the conventional machinery of administrative justice. Unlike the conventional machinery of administrative justice, the Charter process is directed more towards improving or maintaining standards of administration than the protection of the individual against the administration. Nevertheless, the Charter has the potential to make a valuable contribution towards administrative justice through the setting of charter standards and the provision of complaints systems. It may be though that it is through highlighting the need for a more systemic approach to administrative justice that its greatest contribution is to be made.

A Question of Numbers: Managing Complaints against Rising Expectations TOM WILLIAMS AND TAMARA GORIELY

URING the 1980s, Britain experienced a "complaints explosion". A myriad of new ombudsmen, regulators and commissioners were established, and each received increasing numbers of public grievances. As politicians deliberately encouraged this new found consumer assertiveness, administrators struggled to cope with raised expectations. Here we look at how organisations have dealt with complaints against an apparently inexorable increase in complaints volumes. We see that, despite the underlying increase in complaining, many organisations now manage the number of complaints, both through better low-level complaints procedures and improvements in service.

D

The development of complaints handling From public sector bespoke investigations to private sector mass processing Complaints handling is a field in which the private has borrowed from the public and the public is now borrowing from the private. The story is usually taken to start in the public sector with the establishment of the Parliamentary Commissioner for Administration (PCA) in 1967. The PCA and other public sector ombudsmen that followed during the 1970s (Health Service Commissioner and Commission for Local Administration) were "classic" ombudsmen. They were originally conceived as offering a high quality, low volume service, concentrating on thoroughly investigating a few cases. Lewis and Birkinshaw describe the PCA in particular as offering "a Rolls-Royce standard of investigation", but dealing with only "a trickle of work". 1 1 N. Lewis and P. Birkinshaw, When Citizens Complain: Reforming Justice and Administration, Open University Press 1993.

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Deliberate attempts were made to reduce the number of complaints coming in the public sector ombudsman (through the MP and councillor filters). Furthermore, the standard for triggering investigation was a tight one—maladministration, rather than substantive unfairness or poor practice. Finally, the emphasis was on investigation rather than on settlement or redress. During the 1970s, private sector improvements in complaints handling focused around trade arbitration schemes. The Fair Trading Act 1973 placed a responsibility on the Office of Fair Trading to work with trade bodies to develop Codes of Practices. During the 1970s and early 80s, some 29 codes were drawn up in consultation with the OFT, of which 25 included a form of independent arbitration. However, only a few (notably ABTA) succeeded in establishing themselves in the public consciousness. The National Consumer Council found that many dealt with only a handful of cases per year.2 The breakthrough came in the 1980s, when the private sector began to borrow the Ombudsman concept. The Insurance Ombudsman Bureau was set up in 1981, followed by the Banking Ombudsman in 1985 and the Building Societies Ombudsman in 1987. In doing so, the concept was transformed, from the hand-crafted investigations of the Parliamentary Commissioner to the mass processing of complaints. By 1990, for example, the Insurance Ombudsman received over 15,701 written enquiries (and nearly 20,000 telephone enquiries) and opened 2,640 cases for investigation. By comparison, in 1990 the Parliamentary Ombudsman received only 704 complaints, of which 23 per cent were passed for investigation.3 The 1980s saw a move towards a more "service orientated" society. Consumers slowly responded to the important consumer legislation of the 1970s, and the decade saw increasing legislative attempts to improve their rights.4 It is also likely that the recession of the early 1980s made people more aware of value for money. High street shops led the way in dealing with complaints. This transition can be seen by comparing current practice with that described by the National Consumer Council in 1982.5 Then, consumers frequently found difficulty in returning faulty goods. Typical shop responses ranged from blaming the customer for product defects, through simple abuse, to threatening to call the police if the customer did not leave. As the decade progressed, however, increasing numbers of stores followed the policy pioneered by Marks and Spencer of giving refunds without question. The Office of Fair Trading's (OFT) 1986 Consumer Dissatisfaction Survey found that most of those complaining about low value goods (such as food, clothes and shoes) received a satisfactory response (with satisfaction levels around 2 National Consumer Council, Out of Court: a consumer view of three low-cost arbitration schemes, NCC, London, 1991. 3 See Lewis and Birkinshaw, op. cit. 4 For example, the 1982 Supply of Goods and Services Act, the 1986 Financial Services Act, the 1986 Building Societies Act and the 1987 Consumer Protection Act. 5 National Consumer Council, Buying Problems, NCC, London, 1984.

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85%). Those complaining about high value items (cars, furniture, household appliances) were less likely to be satisfied but, even so, around two thirds of complainants were happy with the response they received. The main problems, however, came in complaints about services. Here, consumers were much less likely to receive a satisfactory response. The OFT found that the lowest satisfaction scores were for complaints about builders (26%), holidays (20%) and professional services (19%). People were beginning to expect the same level of service from their insurance company or bank that they received from their supermarket. It is therefore not surprising that in the 1980s organisations monitoring services received ever increasing numbers of complaints. During the 1980s there were many new schemes concerned with service industries. Almost all schemes covering utilities, government and services expanded their workload. We looked at ten schemes which were broadly typical of large-scale complaints handlers in the public and private sectors.6 From 1983 to 1993, only the Parliamentary Commissioner and the Gas Consumers Council failed to show substantial rises. The Health Service Commissioner noted that "almost every Ombudsman has found in recent years an increase in the complaints referred," reflecting the fact that "we live in a querulous and questioning age." 7

The effect on the Public Sector The complaints explosion may have started in the private sector, but it was soon to produce major change within the public sector. A key development came in 1988 when, for the first time, complaints were allowed direct access to the Local Government Ombudsman. The effect was dramatic. In 1988-89, complaints increased 44%, with a further 24% increase the following year. By 1990, the Local Government Ombudsman had been transformed from a selective investigator to a mass processor of complaints. Meanwhile, the neat academic division between public and private sector was breaking down. Many new hybrid schemes were established. For example, the Legal Services Ombudsman, set up in 1991, is a governmentappointed office to oversee a private industry.8 The Pensions Ombudsman, also established in 1991 to oversee a private industry, combines an ombudsman scheme with a tribunal. 6

These were the Parliamentary Commissioner for Administration, Health Service Commissioner, Commission for Local Administration, Insurance Ombudsman Bureau, Banking Ombudsman Scheme, Building Society Ombudsman Scheme, Office of Telecommunications, Gas Consumers Council, Office of Water Services and Office of Electricity Regulation. 7 Health Service Commissioner, Annual Report 1993/4, HC 499 London: HMSO. 8 R James and M Seneviratne (1995) "The Legal Services Ombudsman: Form versus Function?" Modern Law Review 58(2) 187-207.

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The 1991 Citizen's Charter initiative was a deliberate move to borrow from the private sector. The aim was to harness new found consumer assertiveness to make improvements within the public sector.9 As the First Report stated, the objective was to create more assertive citizens to put pressure on the providers of public services to raise standards. 10 The first stage seems to be working. Many organisations report that Citizen's Charter initiatives are creating more assertive citizens.11 In one study, a doctor put it in the following terms: "I can't blame patients for complaints. The Government encourages them daily." 12 However, complaints about education, health, housing disrepair or social services share all the attributes of hard-to-resolve disputes in the private sector. They are usually about services—often professional services— and they involve high-value items. Whether the Citizen's Charter will succeed in translating this new found assertiveness into improved services (rather than into angry and frustrated consumers) remains to be seen.

Trends since 1993: managing rising expectations As we have seen, the 1980s saw a sharp rise in complaints to almost all formal institutions. The reality of the "culture of complaint" is reflected by the continuing and apparently inexorable rise in complaints reported by Trading Standards Departments. These complaint statistics have been collected in the same way for many years and an examination of the graph (Fig. 1) shows that there has been a steady growth in the number received since at least 1987 (with the exception of a slight dip in 1991/2).13 There is no reason to expect that this overall increase in complaints will be reversed. There is continuing support from the public sector for complaints to be used as a means of popular control of service delivery standards. This will put continuing pressure on the private sector to improve its performance in this area. Economic recovery in itself is unlikely to lead people to lose the 9 From 1988 onwards a succession of Acts required public services to establish complaints systems: see, for example, the Education Reform Act 1988, NHS and Community Care Act 1990 and the Competition and Services (Utilities) Act 1992. 10 Citizen's Charter: First Report, Cabinet Office, London 1992. " Examples include Community Health Councils (NHS Complaints Procedures: A Submission to the Complaints Review Committee, ACHCEW, 1993), the Audit Commission (What Seems to be the Matter? Communication between Hospitals and Patients, HMSO 1993) and the CAA (T. Williams, Dealing with customer complaints Aldershot: Gower, 1996, p9). 12 Mulcahy L., Alison J. and Shirley C , The Voices of Complainants and GPs in Complaints about Health Care, School of Education, Politics and Social Science, South Bank University, London (in prep.) 11 This year saw a substantial drop in consumer expenditure so the fall in complaints may simply reflect the fact that people were buying less.

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900,000 800,000 700,000 600,000 500,000 i 400,000 300,000 200,000 Source: Annual Report of Director General of Fair Trading (Appendix F)

100,000

cn

cn

ID

cn •

3

Fig 1 Complaints reported by Trading Standards Departments

attitudes shaped by a harsh economic decade any more than an earlier generation gave up the habit of food hoarding when rationing stopped. In any case, even a move back to more prosperous times will not change the increasingly competitive nature of the marketplace. While firms are aggressively competing for the consumer pound, customer care will remain an important element of service differentiation. This means no one can be the first to refuse to respond to customer complaints. As National Westminster's Customer Relations Manager puts it: "It's a more competitive environment. . .. We're all competing for people's money.. . . People have been through a recession and they know that if you want people's custom you're going to have tofightfor it."14 In these circumstances, it is even possible that people will be more willing to complain as economic recovery boosts the confidence of consumers. Demographic change, too, suggests that the complaint culture is not about to go away. Older people are more likely than others to complain—especially retired people who have the time to do so. The growth of Grey Power as the population ages is likely to result in an increase in the volume of complaints and the doggedness with which people are prepared to pursue them. The Trading Standards statistics, however, are very crude. They simply record all the complaints to Trading Standards Departments in the course of the year. Particular consumer campaigns, publicity given to Trading Standards Departments or media scares will all affect the total. Whilst we must accept that, overall, people have a greater propensity to complain than they did in the recent past, does this inevitably mean that the number of complaints to all organisaQuoted in T. Williams, Dealing with customer complaints Aldershot: Gower, 1996.

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tions must be expected to rise? Commentators have suggested three possible hypotheses. The first possibility is that an upward rise will continue, as people's expectations grow. The second hypothesis is that the rise will at least slow, and that numbers may even fall back from their peak. As far back as 1975, American academics Sarat and Grossman associated the increase in formal adjudication with a period of social change. They argued that one should not expect it to continue indefinitely. They predicted that after a critical mass had been reached, society would adapt to new demands and develop less formal means of managing conflict. Thus, the graphs would show a "curvilinear picture".15 Finally, the third hypothesis suggests a mixed picture in which complaints levels fluctuate in response to a range of subject-specific factors, such as service levels within that industry sector or the publicity given to the organisation. In an attempt to assess these hypotheses, we have examined trend data for the number of complaints received by eight major organisations.16

A continuing upward trend In the event, only one industry shows a continuing upward trend. This is the insurance industry. (Fig. 2). Even here, though, the picture is less straightforward than at first appears. The insurance industry has two quite separate elements, long-term (life) insurance and general insurance. The two are now dealt with by separate ombudsmen and, even when both were dealt with by the Insurance Ombudsman Bureau (IOB), complaint statistics were reported separately. When we break the figures down, we see that it is only in the area of life insurance that complaints continue to grow. (Fig. 3). Despite a small increase in 1997, complaints about general insurance seem to fit Sarat and Grossman's hypothesis. Is life insurance simply a rogue area and do other industries also fit the curvilinear picture?

A curvilinear picture The Association of British Travel Agents' Conciliation and Arbitration Scheme was the earliest of the private sector schemes to make a significant impact on the public consciousness. It is therefore the organisation that has 15

Sarat and Grossman, "Courts and Conflict Resolution: Problems in the Mobilization of Adjudication" (1975) 69 American Political Science Review 1200 at p.1210. 16 Organisations give figures in one or more of three ways. Some include all the enquiries made, irrespective of whether or not they concerned a specific complaint. Some look only at complaints received, even if they are later referred back to internal complaints systems. The third series consider complaints passed for full investigation. As far as possible, the analysis that follows looks at the second category—complaints received, whether or not an investigation was started. However, the insurance ombudsmen (PIAOB and IOB) only give the number of complaints fully investigated. The ABTA graph shows both initial complaints received and arbitrations.

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Overall growth In complaints to I OB/PI A 12000

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Fig 2 Complaints in the insurance industry Source: Insurance Ombudsman Bureau/Personal Investment Authority Ombudsman

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Fig 3 Complaints in the insurance industry broken down by type Source: Insurance Ombudsman Bureau/Personal Investment Authority Ombudsma

had the best opportunity to reach the critical mass at which Sarat and Grossman would predict a falling of in the number of complaints. This is, indeed, what we have seen. (Fig. 4). It appears that the Local Government Ombudsman is also beginning to control the increases in complaints. The figure below shows a steady rise in the volume of complaints received by the Local Government Ombudsman from 1987 to 1994. 1995/6 was the first year to show a decrease. Although

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AUTHOR ABTA 18000 16000 14000 12000

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Fig 4 Complaints and arbitration under the ABTA scheme Source: ABTA 1996/7 showed a small increase, it does seem that the number of complaints is levelling off. The Ombudsman's office suggests that this may in part be because of the increase in formal complaints systems in local councils. The Audit Commission has recently started to include data on complaints systems in their reports. It is not yet possible to make any trend claims. However, the fact that more than 90% of councils now say that they operate a formal complaints system is likely to be at least in part responsible for the levelling off in complaints to the Ombudsman. (Fig. 5). These examples suggest that Sarat and Grossman are correct. Does this Local Government Ombudsman - Complaints Reeslvtd

16000 14000 12000. 10000 8000. 6000 4000. 2000

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Fig 5 Complaints to the Local Government Ombudsman

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Banking Ombudsman - Initial complaints 10000-, 9000 8000 7000 6000 5000 4000 3000 2000 1000

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Fig 6 Complaints to the Banking Ombudsman mean we are moving towards a promised land where consumers will be treated with respect and those few who have anything to complain of will have their problems dealt with quickly and efficiently at an early stage? Unfortunately, life is rarely like that. Two obstacles stand between us and the land of milk and honey: rising consumer expectations and a natural tendency to complacency in those companies that have seen complaints falling for any length of time. This problem is illustrated by complaints to the Banking Ombudsman. Initial complaints to the Banking Ombudsman are shown in Figure 6. As with the insurance industry, it appears that the 1990-91 recession provoked a steep rise. In 1992 complaints levelled, and then fell. The Banking Ombudsman has suggested that improved internal complaints handling by the banks themselves was partly responsible for the fall in workload. Banks have also stopped particular practices that generated complaints. In particular, most banks no longer charge £10 or more to write and tell customers that they are overdrawn by a few pounds. Interestingly, although this practice led to many complaints to the Ombudsman, he was unable to uphold any of them as the banks were within their contractual rights to do this. Whether the Ombudsman's implicit criticism of banking practice was effective in changing things, we cannot know. However, it does suggest that publicity is a potential weapon for complaints organisations. More recently, however, they have started to rise again. In part, this is explained as a result of several major building societies converting to banks, which had the effect of transferring work from the Building Societies Ombudsman to the Banking Ombudsman. However, this seems unlikely to explain the steady and continuing rise in two successive years.

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Specific factors It is unlikely that patterns of complaint can be explained by any single model. We have seen that there is an underlying tendency for complaints to increase but that this can be offset somewhat by improvements in service and complaint handling. Other, specific, factors, though, can have a substantial impact on complaint levels. A good example is the number of complaints notified to the telecommunications regulator, OFTEL (Fig 7). After some years of growth (the dip in 1988 appears an anomaly) the number of complaints levelled off in 1992. OFTEL attributes this, at least in part, to the fact that BT started to highlight its own contact numbers on its customer literature so people were more likely to approach BT rather than go direct to OFTEL. In 1993, there was a dramatic drop in the number of complaints to OFTEL as BT and other telephone companies introduced new and more responsive internal complaints procedures. In 1995, the number of complaints rose again but OFTEL staff attribute this in part to an improved call handling system in their offices which makes it easier to get through and register a complaint. In 1996, although the number of complaints rose by 5%, this does suggest some levelling off. However, initial forecasts for 1997 suggest that the year may well show a steep rise again, reflecting the continuing turbulence in the consumer telecommunications market. A well-publicised example of a rise in complaints linked to particular changes in operating practice is that reported by the Gas Consumers Council. (Fig. 8).

Complaints and anqulrfes to OFTEL 1985-1996

jtmpfovi Improved OFTEL ntaptona svt twn ptMrttnvnovo complaints Q9t tfvouon

Fig. 7 Complaints and enquiries to OFTEL 1985-1996

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Source: Annual Reports

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Fig 8 Complaints to Gas Consumers Council The dramatic rise, which followed a period of improvement, has been attributed to changes in organisation at British Gas. 17 In 1993, the Gas Consumers Council (GCC) predicted that complaints might rise as British Gas "cuts its operating costs during transition to a fully competitive market". In 1994, GCC commented that its predictions had come true. The Council was particularly critical of British Gas's attempt to reorganise into separate operational units, in place of the traditional and "consumer-efficient" integrated districts. It commented that "customer care appears to have been put temporarily to one side while each business unit establishes its structure and the boundaries between its own and others' operations." (Annual Report 1994 p. 5) The publicity given to the pay of top British Gas executives may also have exacerbated public disquiet, ensuring that the rise continued unabated during 1995. The political and commercial furore that followed this increase led to a particularly dramatic illustration of the Sarat-Grossman effect. It will be interesting to see what the next few years bring. Finally, the Building Society sector has been experiencing a particularly turbulent period, with conversions generating a short-term rise in complaints, followed by a longer-term fall. The following graph (Fig. 9) excludes all conversion-related complaints, in an attempt to highlight underlying trends. Even without conversion complaints, however, it appears that building society complaints are particularly likely to cluster around a few particular issues of topical interest. Many of these are highlighted in the annual reports. Thus, the 1996-7 Annual Report records a welcome decrease in complaints about endowment policies but an increase in complaints that the formal mortgage offer did not reflect the expectations of borrowers. 17

Gas Consumers Council, Annual Report—1994.

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Source: Annual Reports 1881/2

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Fig 9 Complaints to the Building Societies Ombudsman

Conclusion Several factors underlie the pattern of complaints in any given industry. There is a tendency for complaint volume to increase, but that tendency can be managed. This means that we should expect that, at any given time, some organisations will see a fall in the number of complaints that they receive. However, we would not expect to see long-term falls in the number of complaints because improved service will lead to higher expectations, just as diminished complaint numbers lead to complacency from management. The picture is further confused by the large number of specific factors that influence complaint volumes. Mergers, rationalisations, privatisations—even the installation of a new telephone system: all these can have a significant impact on complaint volume. The impact of economic factors, such as recessions, is also apparent. What lessons does this hold for complaints handlers? In some respects, the news is encouraging. The demand is there—and as new organisations are established, one may expect increased volumes of complaints. But equally, demand can be managed. This is partly a question of bringing services in line with consumer expectations. Complaints handlers have a vital role in providing feedback. They should be encouraged to publish independent reports, highlighting areas where change is needed. If the public is to have confidence in the new developments, they should also highlight where change has been successfully introduced. It is unfortunate that several authors have noted that public services have been less successful than private businesses at using complaints data to change policies.18 Equally, the current emphasis on 18

See, for example, L. Seelos and C. Adamson, Redefining NHS Complaint Handling— The Real Challenge, TARP (Europe), London, 1993 and T. Williams and T. Goriely, "Big Idea—any effect?", (1994) 144 New Law Journal 1164.

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improved low-level complaint handling should continue. The interest taken by the Local Government Ombudsman, for example, in improving internal systems, seems to be having some effect. Complaints organisations, however, cannot improve services all by themselves. The basic service must be adequately funded, and able to respond to public expectations. Without these preconditions, complaints initiatives may simply highlight inadequacies. It is dangerous to raise expectations unless they can be met.

7 Regulating Open Government: A Comparative Study of the U.K. and Canadian Regimes DAVID CLARK AND JANE PEARSON

Introduction HIS paper 1 is concerned with recent developments in public policy designed to promote more open government. It is divided into three parts. The first presents a framework for analysing the discourse and practice of open government. The second focuses on the extension of the terms of reference of the Parliamentary Commissioner for Administration (PCA/Ombudsman) from the administrative realm of grievance redress into the more politically charged realm of disputes about information disclosure. It reviews the workings of the Code of Practice on Access to Government Information (1994) and the companion Code of Practice on Openness in the NHS (1995), with particular reference to the effectiveness of the Ombudsman as 'regulator'. The third examines the Canadian experience of freedom of information (FOI). This is perceived as a useful comparator as Canada has both a Westminster system of government and a range of FOI regimes at federal and provincial levels incorporating both tribunal and Ombudsmantype enforcement mechanisms.

T

1. The Discourse and Practice of Open Government For analytical and comparative purposes, the paper makes use of the concept of open government "regimes". A "regime" is intended as an analytical construct denoting a particular combination of legitimating norms, political strategy and institutional design. Information is a resource which confers 1 The paper draws on material from the authors' research project on open government regimes in Britain and Canada, funded by the Nuffield Foundation, whose financial support is gratefully acknowledged.

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unequal power on those who possess it as against those who do not. Any project for more open government is ultimately political, concerned to bring about a shift of power, and therefore needs to develop a strategy to oblige public authorities to concede their control over access to such a strategic resource as official information. The political strategy will be underpinned by legitimating norms indicating which aspects of openness are valued, and which types of information are to be privileged in terms of public disclosure. Institutional design refers to the system of rules and procedures for promoting openness and adjudicating disputes about access to information. Such a definition connects with other social science uses of the term "regime" which emphasise the importance of the underlying structure and logic of action of relatively stable sets of formal and informal rules in creating and sustaining a capacity to accomplish goals, as in "urban regimes" (decision-making relationships between city governments and non-governmental interests)2 and "organisational regimes" (the transition from bureauprofessional to managerial regimes in the post-war welfare state).3

Managerial, Legal and Administrative Models of Open Government It is helpful to distinguish between three "ideal types" or models of open government—the managerial, the legal and the administrative (as identified in the table below). Each embodies an alternative prescription of the types and forms of information to be made available to the public, and of the institutional design required to operationalise its particular version of open government. Each is legitimated by reference to contrasting political discourses of accountability, empowerment and citizenship.4 The managerial ideal type privileges the release of categories of information which promote greater transparency in government by requiring public bodies to report on their performance. It uses the language of "empowering" the citizen as taxpayer and consumer. In terms of institutional design, great reliance is placed on the publication of performance indicators and on the reports and scrutiny of external audit institutions and inspectorates. It is possible to identify two variants. In the "technocratic" variant, the emphasis is on providing information about the value for money or efficiency with which public service organisations use the fiscal resources supplied by the taxpayer. The information stream exploited by this variant derives from the technicalrational form of expertise of the accountancy and audit professions.5

2

See C Stone, Regime Politics: Governing Atlanta 1946—1988 (University Press of Kansas, 1989). } As discussed by J Clarke & J Newman, The Managerial State (London, 1997). 4 See further D Clark, "Open Government in Britain: Discourse and Practice" (1996) 16 Public Money and Management 23-30. s See M Power, The Audit Explosion (London, 1994).

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Table 1 Three models of open government Types and forms of information

Institutional design

Legitimating discourse

The managerial model

Performance indicators

Reporting requirements. External audit and inspection

The citizen as taxpayer and consumer. Efficiency/ marketisation

The legal model

Documents identifying the reasons for policy and administrative decisions

FOI legislation. Indexing of documents

Deliberative democracy. Human rights/ administrative due process

The administrative model

Information (not documents), to be released voluntarily and in response to requests

Charterism/ Non-statutory codes of practice. administrative due process Independent, non-binding adjudication

The "consumer-populist" variant corresponds to the Citizen's Charter approach, which is based on informing the citizen-consumer about the standard and quality of public service outputs. In this variant, the characteristic currency of information is the production of an annual report or league table comparing the performance of individual service providers or organisations on a series of benchmarks of service quality or output. The dominant language of accountability is grounded in a discourse of "market-based citizenship", which holds that the individual consumer of public services enhances citizenship by exerting populist-type pressure on providers through the exercise of informed choice. 6 The managerial model is also informed by a view of government information as a tradeable commodity, having value in the market place. There is some tension between a managerial approach to government information which treats it as primarily a public resource and one which treats it as a commercial asset, to be exploited as a source of revenue from the sale of published information or tradeable data. The centrepiece of the legal model of open government is FOI legislation, or more precisely a general, statutory right of access to official information, subject to certain limited exceptions. Effective implementation of FOI requires 6

See K Walsh, Public Services and Market Mechanisms (Basingstoke, 1995).

Regulating Open Government

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that decisions about disclosure of government-held documents are ultimately a matter of legal judgement, either directly by the courts or, more often, via judicial review of the decisions of whichever independent body is charged with hearing appeals against refusals to release documents. Effective use of the right of access also depends upon certain administrative procedures, in particular the regular indexing and publication of registers of official documents. The legal model puts a premium on access to information about the reasons for policy and administrative decisions, including decisions about the allocation of resources to spending programmes, as well as access to environmental and health and safety information of value to the citizen-consumer. It is also identified with a statutory right of access to personal records held by governments in manual or computerised files. The legal model connects with a normative language of "deliberative democracy"7: a process of open, public deliberation of policy issues which treats individuals as responsible citizens who are competent to understand and discuss public affairs and to hold government to account. As with the managerial model, it is possible to identify two variants of the legal model. One is associated with the political ideology of liberalism and the discourse of human rights; the other draws on an alternative tradition of law which views the government as legitimately engaged in activities of a collectivist and redistributive nature, and stands for a countervailing system of procedural safeguards for the citizen, to be established through the development of a system of public law and the codification of administrative procedure. Such legal techniques and strategies are designed to counteract secrecy by strengthening "due process" requirements in executive decision-making, such as the requirement to consult widely before decisions are taken and the duty to state reasons for those decisions. More positively, such a "public law" strategy has been defended as promoting the values of participation and accountability.8 Both variants link open government with judicially enforceable rights and enhanced legal controls on the executive. The introduction of the 1994 and 1995 Codes of Practice corresponds to a third, administrative model of open government, most fully developed in Britain. This eschews enhanced legal controls on the executive in favour of the voluntary disclosure of official information, backed up, as a means of resolving disputes about access, by a system of independent administrative adjudication closely allied to existing forms of parliamentary accountability. The basic institutional mechanism of the administrative model is a nonstatutory code, which, in the words of the Public Service Select Committee 7 D. Miller, "Deliberative Democracy and Public Choice" in D. Held (ed.), Prospects for Democracy (Cambridge, 1993). 8 P. Birkinshaw, I. Harden &C N. Lewis. Government by Moonlight: the Hybrid Parts of the State (London, 1990). See also T. Prosser, "Democratisation, Accountability and Institutional Design" in P. McAuslan & J. McEldowney (eds), Law, Legitimacy and the Constitution (London, 1985).

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report on Ministerial Accountability and Responsibility, "leaves Ministers, rather than the courts, as the ultimate arbiter of what it is in the public interest to disclose".9 The 1994 Code of Practice on Access to Government Information, as revised in 1997, commits departments and public bodies to "publish the facts and analysis of facts which the Government considers relevant and important in framing major policy proposals and decisions; to publish explanatory material on departments' dealings with the public (including such rules, procedures, internal guidance to officials and similar administrative manuals as will assist better understanding of departmental action in dealing with the public); to give reasons for administrative decisions to those affected; to publish, in accordance with the Citizen's Charter, information about how public services are run, how much they cost, who is in charge and what complaints and redress procedures are available; and about what services are being provided, what targets are set, what standards of service are expected and the results achieved".10 Access is to official information, as opposed to actual documents: "there is no commitment that pre-existing documents, as distinct from information, will be made available in response to requests".11 Part II of the Code sets out fifteen exemptions from the commitment to provide information. Some of these are standard exemptions, of the kind found in FOI regimes, including categories relating to defence, security and international relations; internal discussion and advice (though this is defined much more extensively than in a typical FOI regime to cover all forms of advice given in the policy-making process, including expert and scientific opinion as well as civil service advice); law enforcement and legal proceedings; privacy of an individual; and third party's commercial confidences. Others, such as "information relating to immigration and nationality" and information whose release would prejudice the "effective management and operations of the public service" are more idiosyncratic. Because the Code has no legal basis, it cannot override the two hundred and fifty or so separate statutory restrictions which prevent disclosure of many kinds of information, but most of the exemptions are subject to a "public interest test", which states that exempt information may be released "when any harm or prejudice arising from disclosure is outweighed by the public interest in making information available".12 Departments, agencies and public bodies are free to make their own arrangements for charging, within specified guidelines.13 The Office of Public Service has a remit to monitor the fees and charging regimes of government departments. Complaints that access to information which should have been provided under the Code has been denied, or that unreasonable charges have been levied should be made first to the department or body concerned. If the applicant remains dissatisfied, a complaint may be made through an MP to the 9

Ministerial Accountability and Responsibility, Public Service Committee, Second Report HC 313-1 (1995-96), para 151. 10 12 Ibid., para. 3. " Zfe/

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