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

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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

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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

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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

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MICHAEL HARRIS AND MARTIN PARTINGTON

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

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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

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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

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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.

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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

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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

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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.

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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,

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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

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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.

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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

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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.

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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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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.

The Place of Formal and Informal Review

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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

The Place of Formal and Informal Review

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.

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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.

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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.).

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(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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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

10000 8000

6000 4000 2000

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

Complaints to PIA/IOB 8000 7000 6000 5000 4000 3000 2000 1000

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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

- Complaints received

10000

Cases to arbitrafon

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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

Source: Office of iheLGO

1987/8

1 1991/2 1992/3

199X4 1994/5 1995/6 1998/7

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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Source: Ombudsman's office

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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

1990

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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).

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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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Ombudsman, who has the power to see any relevant government files (other than Cabinet documents). However, the Ombudsman has no power to compel disclosure; if he is persuaded of the public interest in disclosing exempt information, he will in turn have to persuade the department to agree to release the information. His power of persuasion is underwritten by the Public Administration Select Committee (formerly the Select Committee on the Parliamentary Commissioner for Administration), which can pursue cases of refusal to comply with Ombudsman recommendations. There is no need for a complainant to demonstrate that injustice or loss has resulted; it is enough that the Code has been breached. The language of the administrative model of open government is borrowed from the consumer-populist variant of the managerial model, and, rather more ambivalently, from the due process variant of the legal model. The link with the Citizen's Charter, with its market and consumer orientation, is explicit. But in the same way that the Charter can be construed as accommodating values of procedural fairness, the Codes, by encouraging departments and NHS bodies to give reasons with administrative decisions, may plausibly be regarded as promoting a distinctive form of accountability to the public for administrative processes as well as outputs; in other words, as contributing to administrative due process. The Codes of Practice are part of a more general process of codifying or "normativising" British government and administration that has taken place over recent years,14 which corresponds to a form of "soft law" regulation of politico-administrative procedures. Prominent examples include the drafting of a code of ethics for civil servants;15 the codification of the relationships between civil servants, ministers and Parliament;16 the establishment of framework documents for executive agencies; the setting of service standards in the Citizen's Charter and various sectoral charters; and the regulation of local quangos via codes of practice on appointments and conflicts of interest. In so far as the process of codification is a coherent one, it springs not from the desire to strengthen the legal accountability of government but to formalise what have traditionally been understood as "tacit understandings" of the British constitution.17

Britain's Hybrid Open Government Regime In practice, open government regimes are complex amalgams of managerial, legal and administrative components. In Canada, for example, there has been much recent interest in providing greater access to government information 14

D. Oliver &c G. Drewry, Public Service Reforms (London, 1996). Departmental Evidence and Response to Select Committees 16 Questions of Procedure for Ministers: The Civil Service Code (Printed at Hansard HL vol 566 wa 146). 17 V. Bogdanor, Politics and the Constitution (Aldershot, 1996). 15

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independent of the formal access process through techniques of routine disclosure and active dissemination that approximate to the "administrative code" approach. The rise of administrative managerialism in the 1980s has ensured that the managerial model of openness has achieved greater prominence in all contemporary Western democracies. The policies of previous governments have ensured that the current British regime of open government is essentially a hybrid of the managerial and administrative models. However, the legal model was not totally discounted. Open government initiatives conforming to that model included measures establishing a statutory right of access to certain categories of personal records: see the Data Protection Act 1984; the Access to Personal Files Act 1987, the Access to Medical Reports Act 1988, and the Access to Health Records Act 1990; and to health, safety and environmental information. The Local Government (Access to Information) Act 1985 may also be regarded as an exemplar of the legal model, albeit a flawed one in so far as there is no in-built provision for independent enforcement of the right of access. In its 1993 Open Government White Paper,18 the Major government announced its intention to extend statutory rights of access to both personal records and to information about health and safety and the environment, in compliance with European Union directives which require a right of appeal through the courts against the enforcement authority's decisions. The Labour government's White Paper entitled Your Right to Know19 reiterates the pre-election pledge to introduce a Freedom of Information Act, providing UK citizens with a general statutory right of access to the information held by public authorities. Prima facie this appears to propose a wholly legal regime, but as in Canada, techniques of routine disclosure and active dissemination are emphasised.20 Thus the proposed new regime is likely to maintain a hybrid character although its managerial, administrative and legal components will be weighted differently.

The Ombudsman and Open Government In this section, we review the operation of the 1994 and 1995 Codes with a view to evaluating the potential of an administrative regime of open government to secure (enhanced) access to government information, as compared with a classic FOI regime.

Government Justification for Choosing a Non-Statutory Code The White Paper Open Government identified several advantages of the Ombudsman supervising compliance with the Codes, as opposed to the courts or an Information Commissioner and Tribunal, of the sort proposed in Mark 18

Open Government, Cm 2290 (1993).

" Cm 3818.

20

Ibid., 7.1-7.10

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Fisher MP's Right to Know Bill in 1993, which was sponsored by the Freedom of Information Campaign. The reasons given include: • many of the decisions on access to information involve a fine balance between the public interest in disclosing information and the public interest in withholding it. There is a case for retaining an element of parliamentary accountability for such decisions, and flexibility to weigh and assess the balance of factors; • an approach based purely on legalistic interpretation can make the holders of information extremely cautious. They may take a restrictive line not because of the merits of a particular case, but because they fear a precedent would be binding in more sensitive situations; • an ombudsman can afford a more constructive, persuasive and informal dialogue with departments; • a legalistic approach can be expensive. Whether decided before courts or a tribunal, the case tends to be argued out by lawyers and the body withholding information can often afford more than the applicant in the way of legal advice and representation. The Ombudsman's services cost the applicant nothing; • the ombudsman approach has been shown to be effective in the UK; although the Parliamentary Commissioner for Administration (PCA) has no power to enforce his decisions, there is a very high level of compliance with his recommendations.21

Criteria for Evaluating the Ombudsman's Record in Handling Access to Official Information (AO1) Complaints Whatever form it takes, the effectiveness of complaint-handling machinery may be assessed in relation to a range of evaluative criteria: visibility, independence, accessibility, jurisdiction, adequacy of powers of investigation, competence and authority. 22 Visibility This criterion, which relates to public recognition of the complaints mechanism, is fundamental, as a complaints mechanism cannot be activated if aggrieved persons are unaware of it. In this regard, it is clear that the Major Government did relatively little to publicise the Codes, the existence of which the Ombudsman, in evidence to the Select Committee, has called "a 21

Cm 2290, pp 3 6 - 7 . See P. Giddings, R. Gregory, V. M o o r e & J. Pearson "Controlling A d m i n i s t r a t i v e Action in the United Kingdom: T h e Role of O m b u d s m a n Systems and t h e C o u r t s Compared" (1993) 59 International Review of Administrative Sciences 291—309. 22

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well-kept secret". As a result there have been few requests under the Code—and even fewer complaints to the Ombudsman: 28 in 1994, and 44 in both 1995 and 1996 and 28 in 1997.24 Under the NHS Code, which came into effect on 1 June 1995, the Ombudsman (in his capacity as Health Service Commissioner) received 21 complaints in the first sixteen months' of the Code's operation.25 The comparable figures for complaints to the federal Information Commissioner in Canada in the early years of the Access to Information Act are 136 in the period from July 1983 to March 1984 (from a total of 1523 requests), 188 in the period April 1984 to March 1985 and 231 in the period from April to December 1985.26 The British figures would seem to demonstrate fairly conclusively that the Code is not particularly visible to the general public, and that this has adversely affected the volume of complaints to the Ombudsman. The Ombudsman has also noted that there is a worrying lack of knowledge of'the Codes among departmental and NHS officials.27 The lack of visibility of both the Codes and the Ombudsman is undoubtedly a function of the absence of the sort of public debate and media interest that has surrounded the launch of FOI legislation in other countries. Even so, the low number of complaints may have something t o do with the Ombudsman's own "house style", which has been described as more attuned to the civil servants whose work he is called upon to investigate than to the MPs whose servant he is supposed to be.28 Perhaps not unreasonably, the Ombudsman regards publicising the Codes as largely a matter for government rather than his own office; but the point has been made, for example by the National Consumer Council in its evidence to the Select Committee's 1993 review of the

23 First Report from the Select Committee on the Parliamentary Commissioner for Administration, H C 9 3 ( 1 9 9 6 - 9 7 ) , para 5 7 4 . T h e publicity budget for the first eight months of the C o d e o f Practice o n Access to G o v e r n m e n t I n f o r m a t i o n w a s just £51,000. This should be compared to the £542,000 spent o n t h e first nine m o n t h s ' o f the "Charterline" service to publicise the Citizen's Charter and t h e millions o f p o u n d s spent distributing free copies of the parent's charter a n d the patient's charter. In 1 9 9 6 , at the prompting of the Select C o m m i t t e e , the government decided t o give further p u b l i c i t y t o the C o d e , mainly by a series of advertisements in national newspapers, t h o u g h this h a s had little effect o n the number of complaints being referred t o the O m b u d s m a n . 24 Annual Report for 1995, Fourth R e p o r t o f t h e Parliamentary Commissioner for Administration, H C 2 9 6 ( 1 9 9 5 - 9 6 ) , p.47; a n d A n n u a l R e p o r t 1 9 9 7 - 8 , Fifth Report of the Parliamentary C o m m i s s i o n e r for A d m i n i s t r a t i o n , H C 8 4 5 ( 1 9 9 7 - 8 ) p. 10. 25 Selected Investigations—Access to Official Information in the National Health Service, First R e p o r t o f t h e Health Service C o m m i s s i o n e r , H C 6 2 , 1996—97, p . 3 . 26 See M . Sharp "Freedom o f I n f o r m a t i o n : h a v e w e g o n e t o far?" (1986) 2 9 Canadian Public A d m i n i s t r a t i o n p p . 5 7 1 - 5 7 8 . 27 H C 2 9 6 , loc cit supra n. 2 4 , p . 5 1 : a n d s e e further Health Service Commissioner Annual Report for 1995-96, HC 465, p.66. 28 See G. D r e w r y 8c C . H a r l o w "A C u t t i n g Edge? T h e Parliamentary C o m m i s s i o n e r and MPs" (1990)53 MLR 745-769.

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Powers, Work and Jurisdiction of the Ombudsman,29 that the Parliamentary/Health Service Ombudsmen could do more to increase public awareness of their services.30 Independence This criterion relates to the necessity for public confidence that the Ombudsman is independent from the authorities he is investigating and on which he reports. Although a number of Ombudsmen have been former top officials, this has never really been a cause for concern as regards the PCA's traditional role of redressing grievances arising from alleged maladministration causing injustice. Although he is an officer of Parliament, it is generally accepted that his investigations have always been undertaken impartially, in a quasi-judicial manner. Despite the Ombudsman's undoubted reputation for impartiality, critics have questioned whether his office should continue to be staffed predominantly from civil servants on secondment. Drewry and Harlow, for example, consider that new blood—investigative journalists, academics, people seconded from industry or from foreign ombudsmen's offices—would help to "dilute the civil service genes" and reinforce the Ombudsman's identity as an "officer of the House". 31 However, with regard to his supervision and review of decisions not to disclose information under the 1994 Code, the Ombudsman is traversing a more overtly political landscape. It can be argued that the Code's commitment to see publication of the facts/analysis underlying government policy, and especially the Ombudsman's discretionary power to recommend that certain exempt information should be disclosed in the public interest, have the potential to lead the office right into the sort of political controversy that some previous Commissioners, at least, have assiduously avoided. 32 The issues raised by the enforcement of the Code are of a different nature from those involving the fairness of administrative procedures and the PCAs investigations are more likely to provoke a defensive response from government. This may bring about an unwelcome politicisation of the Ombudsman. Ultimately, however, the Ombudsman is accountable t o Parliament, and this 29

The Powers, Work and Jurisdiction of the Ombudsman,

Select Committee on the

Parliamentary Commissioner for Administration, First Report, H C 3 3 , (1993—94), A p p e n d i x 9, p.236. 30 T h e O m b u d s m a n launched a new leaflet in M a y 1997 in r e s p o n s e t o a survey w h i c h revealed that only fourteen per cent of the public were aware of h i s e x i s t e n c e . 31 hoc. cit. supra n.27, p.768. 32 O n e c o m m e n t a t o r has observed: "There are those w h o seek from time t o t i m e to d r a w the Office into the political arena and o n e has to be ever watchful n o t t o be lured into criticism of an essentially political decision. Provided that reasonable care is t a k e n over this important matter, the O m b u d s m a n can generally c o m m a n d all party s u p p o r t for the idea that the occasional incompetence or oppressive behaviour . . . s h o u l d b e e x p o s e d and redressed": C. Clothier "The Efficiency of the Parliamentary O m b u d s m a n " in Parliament and the Executive (London, 1982), p.56.

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must secure, at least in constitutional theory, an appropriate degree of independence from government as well as the requisite democratic/public accountability. Accessibility This criterion relates to the degree of difficulty in reaching and starting the complaints mechanism. An intrinsic limitation arises here with the imposition of indirect access via an MP filter, a requirement which is generally recognised as contributing to the limited number of review requests coming the Ombudsman's way. With respect to his traditional role, the Ombudsman has himself suggested that it is time to allow direct access for complainants;33 the case is that much stronger with open government complaints, which may have nothing to do with the personal circumstances of a constituent at all. Of countries with an open government regime incorporating an independent review of decisions to release or withhold official information, Britain is unique in not allowing complainants direct access to such a body. An additional design feature, the requirement that government departments themselves review any refusal to disclose information before the complaint reaches the Ombudsman, may cause further delays. In Canada, where federal and provincial FOI laws dispense with the need for internal review, no concern has ever been expressed that the absence of such a procedural requirement has adversely affected the administrative implementation of FOI. Jurisdiction The Code applies only to those bodies explicitly within the Ombudsman's jurisdiction. The limitations of this approach were exposed by the FOI Campaign, in a memorandum to the Select Committee inquiry into Open Government: "It is unlikely that anyone devising an open government scheme from first principles would exclude from its scope bodies such as the police, the nationalised industries, the Atomic Energy Authority, the Monopolies and Mergers Commission, the Civil Aviation Authority, the Crown Prosecution Service, the Bank of England, the National Curriculum Council, the Broadcasting Standards Council, Training and Enterprise Councils and many others".34 As we have seen, the Codes contain a number of exemptions to disclosure, some of which have been criticised as being far too wide. This is balanced to some extent by the Ombudsman's discretion to recommend that exempt information should be disclosed in the public interest. 33

H C 33, loc. cit. supra n. 28, appendix II, p . l l . Open Government, Select Committee on the Parliamentary Commissioner for Administration, Second Report, HC 84—11 (1995-96), p.45; see further Campaign for Freedom of Information, Testing the Open Government Code of Practice (London, 1995). 34

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Powers of investigation This criterion relates to the existence of an adequate fact-finding process which is essential to the thorough review of refusals to disclose information. The Ombudsman has the power to obtain sight of any relevant government files apart from Cabinet papers, so it is clear in principle that he has the ability to secure the release of information where, for example, an exception is wrongly claimed. In this respect he is on a par with the federal and provincial Information Commissioners in Canada. Resources for screening and investigating access to official information (AOI) complaints would seem to be more than adequate in relation to case load: some of the staff initially involved in this work have been re-deployed, following the distinct paucity of complaints. In one case, in which the FOI Campaign appealed to the Ombudsman following the Lord Chancellor's Department's refusal to release the report of an inter-departmental working group on the implications of a legal ruling of constitutional significance35, the report was withheld, on the grounds that the Ombudsman is expressly denied access to a cabinet committee document by section 8(4) of the Parliamentary Commissioner Act 1967. The Ombudsman's investigation was then abandoned. As the Select Committee commented, this complaint raises a serious anomaly as Cabinet papers are not automatically exempted under the Code from release—a harm test applies. In the case in point, the Ombudsman was denied access to the information he needed in order to judge whether the refusal to disclose was justified.36 Competence This relates to the Ombudsman's remit. In his normal PCA role, the Ombudsman can only criticise public bodies on grounds of "maladministration". The PCA has confirmed that it is still open to him to criticise departments for "maladministrative secrecy" outside the provisions of the Code, but in his AOI role he can focus on the merits of the decision rather than just the process by which it is reached. Under the Code, the decisions covered relate to the release of information and not actual documents, but the Ombudsman has said that in most cases the most practicable way to release the information is to release the documents themselves.37 The FOI Campaign regards this is an impressive attempt to overcome the Code's defective approach to documents. Authority This criterion relates to enforcement mechanisms after an investigation has shown that some form of disciplinary or remedial action is called for. Like his 35

Pepper v Hart [1993] A . C . 593 (HL). H C 84 loc. cit. supra, n.33, para. 113. 37 Access to Official Information: the First Eight Months, Second Report of Parliamentary Commissioner for Administration, H C 91 ( 1 9 9 4 - 9 5 ) , p4. 36

the

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role as an arbiter of maladministration, the Ombudsman can only recommend a remedy in AOI cases; he cannot enforce it. Generally, government departments have complied, even where they have stoutly resisted up to the time the Ombudsman makes his decision. Thus far, he has found most difficulty with departments claiming a common law duty of confidentiality, irrespective of the provisions of the Code. 38 However, he has the back up of the Public Administration Select Committee in this regard, which can examine departmental officials. This means that ultimately the sanctions which can be applied to secure enforcement are those of political and parliamentary pressure. Critics argue that this is an unsatisfactory approach, and in particular that neither the Ombudsman nor the Committee can be expected to provide an authoritative legal interpretation on an issue under dispute. In order to develop the jurisprudence which will give guidance to ministers and officials in the way that the Code is to be operated, the authority of a court or tribunal is needed.39

What Difference has the Ombudsman Made? The Ombudsman has commented that AOI complaints differ widely from each other and show no general trend. What is clear, though, is that despite the MP filter, a relatively large proportion of complaints is rejected at the screening stage: in 1995, of the forty-six cases received or carried forward the Ombudsman decided not to investigate twenty-six;40 in 1996, he decided not to investigate twenty-three of the fifty-eight complaints received or carried forward.41 Of the cases accepted for investigation, it is the exemptions covering internal discussion and advice, law enforcement and legal proceedings, and third parties' commercial confidences, coupled with the "harm" test, which are the issues around which the Ombudsman's exchanges with departments turn. He has dealt with cases in which four or more different exemptions have been advanced as reasons for not releasing information.42 An indication of the nature of the Ombudsman's embryonic "case law" in relation to the "public interest override" can be gleaned from the selection of cases published in November 1994.43 38

H C 296, be. cit. supra n. 2 4 , p 51. R. Hazell "Freedom of Information; T h e Implications for the O m b u d s m a n " (1995) 73 Public Administration 2 6 3 - 2 7 0 ; D. Rowat "Ontario's N e w Freedom of Information and Protection of Privacy Act in Practice" in A. G a g n o n and A. Tanguay (eds), Democracy with justice ( O t t a w a , 1992); D . R o w a t , "Freedom of Information: T h e Appeal Bodies Under the Access Laws in C a n a d a , Australia and N e w Zealand" (1993) 5 2 Australian Journal of Public Administration 215-221. 40 H C 296 loc.cit. supra, n. 24. ibid. 41 Annual Report for 1996, Third Report of the Parliamentary Commissioner for Administration, H C 386 (1996-97), p.28. 42 H C 296, be. cit. supra, n.24, p 50. 43 Selected Cases 1994—Volume 4: Access to Official Information, First Report of the Parliamentary C o m m i s s i o n e r for Administration, H C 14 (1994-95). 39

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In his very first case, concerning an inspector's report which ministers had refused to release on the floor of the House of Commons on a number of previous occasions, he ruled that the fact that there was no harm involved militated in favour of release.44 In a second case, involving the Department of Health and information concerning discussions with the pharmaceutical industry, the Ombudsman decided that because there was no harm in making the advice public, with the exception of the identity of those who actually took part in the discussions, it should be released.45 The initial experience of the FOI Campaign, which has "tested" the Code (Campaign for Freedom of Information, 1995), suggests that it is capable of eliciting information which would not previously have been disclosed. One example is the guidance used by entry clearance officers on the admission of spouses to the UK, information previously not available either to organisations working in this field or to MPs.46 As indicated above,47 the Ombudsman has been able to persuade the Department of Transport to release a road inquiry report which had previously been suppressed for five years. The complainant, Richard Shepherd MP, had been refused the report in Parliament and in correspondence with several ministries. In another case, also referred to above, the Department of Health was forced to admit that— contrary to ministerial statements—it had held virtually no discussions with the pharmaceutical industry about the voluntary release of safety information about medicines. The alleged discussions were used as cover to help justify blocking a private member's bill.48 The Ombudsman has also been able to bring about modest changes to internal reporting practices. For example, partly as a result of one investigation, the Department of Social Security (DSS) has made publicly available its guidance to officials on the processing of claims for ex gratia compensation. 49 Following another investigation, DSS also agreed to release on request the reports of inquiries into national insurance contributions. 50 In future, the persons conducting such inquiries will be told that their report may be released. In another case, the Treasury agreed to release a report on fraud in Whitehall, subject to very minor excisions to avoid prejudice to investigations or legal proceedings, and promised to release all future such reports. 51 44

Ibid., case n o . A.4/94, p p 1-4. Ibid., case n o . A. 5/94, p p 8 - 1 5 . 46 See H C 84, loc. cit. supra, n. 3 4 , p 5 2 . 47 Supra, n.44, ibid. 48 M. Frankel, "State's Open Secrets", The Guardian, 24/1/95. 49 H C 386, loc. cit. supra, n . 4 1 , p 3 2 . 50 H C 296, loc. cit. supra, n. 2 4 , p 4 9 . •" Selected Cases 1995—Volume 4: Access to Official Information, N i n t h R e p o r t of t h e Parliamentary C o m m i s s i o n e r for A d m i n i s t r a t i o n , H C 758 (1994/95), case n o . A.20/95, p p . 11-13. 45

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As regards the NHS Code, the Select Committee has commented that although the investigations of the Ombudsman have been few, there have already been some benefits from his involvement—notably his judgement that a health authority should make publicly available the inspection report of a private nursing home. S2 On the other hand, the Campaign's experience suggests that the implementation of an administrative code is just as legalistic and bureaucratic as fullblown FOI, but without the benefits of a legally enforceable right. This is because access to information disputes are essentially legal disputes; even in the most high profile political cases, the argument is conducted in legal terms. 53 Therefore, in difficult cases, departments routinely seek legal advice relating to the interpretation of Code exemptions. The administration of the Codes, for example in respect of third party notification, entails the same respect for formal, "bureaucratic" procedures as is the case with open government regimes based on the legal model. Equally, there are comparable problems of "creative compliance",54 with a similar tendency for departments to manipulate the Code on occasion so as to avoid unwanted control. For example, concern has been expressed that both the Department of the Environment and the Health and Safety Executive have operated a policy that requests for environmental information should be dealt with only under the Environmental Information Regulations. Requesters have been given misleading advice that they must go to court if they wanted to challenge a refusal, with no mention being made of either the Code or the Ombudsman remedy.55 It has also been alleged that some departments are charging excessive search and administration fees as a means of deterring unwanted requests.56 Such defensiveness extends to departments' dealings with the Ombudsman; in his 1995 Annual Report, the PCA drew attention to "a tendency in some departments to use every argument that can be mounted, whether legally-based, Code-based or at times simply obstructive, to help justify a past decision that a particular document or piece of information should not be released".57 In practice, the PCA has always operated as a watered-down version of an inquisitorial-type administrative court.58 In this sense, in terms of impact on 52

JJ H C 9 3 , loc. cit. supra n.23, para 68. Hazell, loc. cit. supra, n. 3 9 , p 266. D . McBarnet & C. W h e l a n , "The Elusive Spirit of the Law: Formalism and the Struggle for Legal Control", (1991) 54 MLR 8 4 8 - 8 7 3 . 55 M . Frankel, "Cracking the Code", The Guardian, 12/2/97. 56 G. M o n b i o t , "Freedom C o m e s With a High Price-Tag", The Guardian 1/10/97. 57 H C 296, loc. cit. supra, n. 2 4 , p 5 1 . 54

58

In 1980 the C o m m i s s i o n e r wrote: "When I d o investigate, I need t o combine s o m e of the attributes of advocate and judge . . . At the outset I take u p the apparently genuine complaint of the citizen o n the assumption that it may be well-founded. I press it energetically forward against the department concerned in a parallel t o the inquisitorial process used by tribunals of inquiry in this country and by many legal jurisdictions abroad. At the end of that process, h o w e v e r , I must adjudicate impartially upon the facts disclosed by my investigation and here I m a k e n o presumption in favour of either citizen o r department": PCA 1980 Annual Report, pp. 1 - 2

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the culture of first-tier administrative decision-makers, it may make little difference whether it is "the judge looking over the administrator's shoulder" or "the Ombudsman in the administrator's files". Both modes of review may induce a legalistic and defensive ethos. Overall, the British experience has demonstrated that there is some potential in an administrative regime of open government, relying on the Ombudsman and a parliamentary select committee, to secure (enhanced) access to government information. But the impact of the Ombudsman as open government "regulator" has been modest, at best. This is largely a function of the inherent limitations of the Codes, but there is a particular problem of procedural delay attributable at least in part to the institutional style and philosophy of the British Ombudsman. The length of time taken for the PCA to investigate AOI cases averaged thirty two weeks in 199559 and forty five weeks in 199660— considerably longer than the average time taken by the Ombudsman-type Information Commissioner under Canada's federal FOI legislation. It is clear that the Ombudsman applies to his AOI work the same painstaking investigatory style that is the primary cause of delay in his maladministration work (and may help to blunt his "cutting edge" as a parliamentary watchdog). In 1995, he completed just nine AOI investigations, and carried forward another fourteen; in 1996 he completed twelve investigations and carried forward an additional twenty-three. In the first sixteen months of the NHS Code's operation, the Ombudsman received twenty-one complaints and completed three investigations, which took thirty, thirty four and forty five weeks respectively, compared with a target time of thirteen weeks per case.61 This is in sharp contrast to the policy of the Canadian federal Information Commissioner, where there is a clear preference for informal mediation rather than formal adjudication as the most cost-effective way of resolving FOI disputes. Thus, in fiscal year 1994—95, 1,016 complaints were received by the federal Information Commissioner and 960 were resolved, including 599 by mediation. The average turn-around time was 4.22 months, compared to 3.87 months in 1992-93 and 4.03 months in 1993-94. 62

The Institutional Design of FOI: The Lessons of the Canadian Experience The Labour Government's commitment to introduce FOI legislation raises a number of pressing issues of institutional design which rest uneasily with the British tradition of non-juridical regulation of government and public admin59

H C 296, loc. cit. supra, n. 24, p 47. H C 386, loc. cit. supra, n. 40, p 31. 61 H C 93, loc. cit. supra, n. 23, p 83, Q Q 589. 62 See R. Baxter, "Freedom of Information: Dispute Resolution Procedures" (1996) European Public Law, 635-661. 60

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istration. This tension is by no means confined to FOI but pervades the whole project of constitutional renewal on which the new government has embarked. The role of the courts in resolving FOI disputes differs from one institutional design to another. The various Canadian FOI regimes illustrate the range of possible judicial and quasi-judicial enforcement mechanisms in the form of courts, tribunals and specialist Ombudsman-type officers. There are two distinct models: the federal and the provincial. The federal FOI legislation leaves enforcement to an Information Commissioner, who has strong investigative authority and ombudsman-like powers to make recommendations as to how to resolve differences over refusals of access. The legislation allows a further appeal to the Federal Court for a binding decision, if the Commissioner's recommendation is not followed. Either the Commissioner or the applicant can seek an appeal on the merits {de novo review) against an agency decision to withhold information; o r a third party can appeal direct to the court to challenge the proposed release of commercially confidential information. The provincial model establishes a tribunaltype jurisdiction in the form of a Commissioner or Commission with broad investigative authority and the power to issue binding orders. The model is perfectly compatible with a negotiated settlement, but it is overshadowed by the Commission(er)'s quasi-judicial presence. There is a further right of appeal to the courts, which may be limited to questions of law or jurisdiction (as in Quebec) or jurisdiction only (as in Ontario). In the provincial model, administration of FOI and Privacy legislation is combined under one Commission(er), with the power to review and rule on the accessibility of administrative documents and personal information, and the correction of that information. Thus, the Quebec Commission d'acces ci I 'information, and the Ontario Information and Privacy Commissioner combine the functions of an administrative tribunal with those of a supervisory and advisory body, in the manner of Britain's Data Protection Registrar and Tribunal. In the federal model, there are two distinct offices: the Office of the Information Commissioner and the Office of the Privacy Commissioner. Both models provide that a report on the administration of FOI and privacy legislation be submitted to the government and/or Parliament every five years. The Canadian experience suggests that "juridification", understood as the production of modes of administrative behaviour inappropriate to the achievement of initial legislative purpose arising from the imposition of a judicial or quasi-judicial dispute resolution procedure, is an intrinsic design feature of FOI regimes63. Recent quinquennial reviews of the operation of FOI 63

This definition is derived from J Black, "Constitutionalising Self-Regulation" (1996) 59 MLR 24—55, whose own discussion of juridification builds on the work of G. Teubner (ed.) Autopoietic Law: a New Approach to Law and Society (Berlin, 1988).

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in Ottawa and Quebec underline the extent to which federal and provincial departments are inclined to manage exemptions rather than promote openness64. Additionally, the federal Information Commissioner has noted that his reports to Parliament, which evaluate the government's performance in meeting its obligations set out in the Access to Information Act, can have serious limitations in that they motivate government departments and agencies to do well mainly to avoid being unfavourably mentioned, rather than out of any real commitment to open government.65 The effectiveness of this legal regime has also been hindered by controversies over charging structures. The federal Information Commissioner considered that pressure for higher charges, as had occurred in Ontario, should be strongly resisted by both government and parliament. Such charges would have the real effect of severely limiting the right of access and encouraging poor records management and retrieval processes, as the longer the time taken the higher the fee that can be charged.66 Delays in the system as a whole have been a problematic issue. In this regard the federal Information Commissioner has pointed to the cumbersome appeal process in most departments. Although records may be prepared for release well within the statutory time requirements, long delays can arise out of protracted internal approval processes, for the convenience of officials and Ministers to the detriment of the requester. It would also appear that delay has been used as a tactic for dealing with politically sensitive requests.67 Litigation is costly and also a major source of delay. For example, between 1983 and 1991, cases taken to court by the federal Information Commissioner took on average twenty eight months to secure a decision. When an individual took the case it was fourteen months and when a third party sought to block release it took an average of twenty two months. 68 However, it is worth noting that some steps have been taken to minimise delay here. In 1993 a Federal Court Practice Direction was designed to ensure that all access (and privacy) cases were heard and determined "without delay and in a summary way". Under the Practice Direction each access case is to be heard within six months and all inactive cases are to be disposed of forthwith; all procedural 64

According to the Information Commissioner, politicians and bureaucrats looked to the federal Act, with its single request and, at times, confrontational, time-consuming approach, as the base-line for responding to the public. T h e consequence was that some information, which previously had been released to the public, was shut down, largely because it was deemed in violation of the privacy or third partly provisions of the legislation: see Information Commissioner of Canada, The Access to Information Act: A Critical Review (Ottawa, 1994), plO. 65 Information Commissioner of Canada, Annual Report, 1995-96 (Ottawa, 1996), p. 2. 66 Ibid, pp4-5, pl8. 67 Ibid., pp 13-14. 68 Baxter, loc. cit. supra, n. 62.

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difficulties are dealt with at the beginning of litigation. This has had the beneficial effect of improving productivity. It has also discouraged the use of the court as a delaying tactic, specifically in reducing the number of applications by third parties to block the release of information.69 Nonetheless, court decisions have not been consistently translated into action in the bureaucracy. Worse still, some court decisions have weakened rather than strengthened FOI legislation as an instrument of openness.70 Even though problems have arisen with regard to charging, delay, enforcement powers and exemptions, undoubtedly the federal legislation has gradually emphasised the government's role as the custodian rather than the owner of official information. As the federal Information Commissioner points out: "[TJhe Access to Information Act . . . has been increasingly effective in keeping Canadians better informed of the actions of their government and maintaining government accountability between elections. This amounts to a modest shifting of power from the state to the individual. 'If officials are uncomfortable with the law it must be having some bite' ".71 There are important differences of view in Canada regarding the appropriateness of specific enforcement mechanisms in minimising the negative effects of juridification. Rowat 72 considers that the Quebec and Ontario schemes have a number of advantages over the two-step appeal system at the federal level, the most important being that a system of binding decisions on appeals gives an definitive interpretation of the law. He also cites as a great advantage of the "provincial" appeal system that it combines the mediation and decision stages, the Commission(er) shifting to a formal inquiry if mediation fails to secure a satisfactory settlement. Thus, to its supporters the provincial model combines authoritative decision-making with the flexible use of "soft law" adjudicatory techniques. More specifically, the authoritative decision-making power conferred at a fairly early stage promotes flexibility, reducing delay and minimising potential procedural abuse of the system. This illustrates the effectiveness of melding 69

Information Commissioner of Canada loc. cit. supra, n. 65, p. 19. For example, the Quebec Superior Court has upheld two controversial lower court rulings reversing initial decisions of the Commission d'acces a I 'information granting access to documents held by certain government-owned bodies. It ruled in one case that an economic development corporation which is eighty per cent financed by a municipality and twenty per cent by federal and provincial funds is not covered by the law; it made a similar ruling in the other case, concerning a wholly-owned subsidiary of Quebec's hydro-electric corporation. A recent internal Commission review of "leave to appeal" decisions indicates that since 1995, in twenty-seven out of thirty-one cases, the Quebec Court has granted the government's request to appeal a decision ordering it to hand over documents; whereas, when a citizen has sought permission to appeal a decision denying him or her the right of access, leave has been granted in just three cases out of eleven: see R. Macdonell, "Access laws biased against public", The Montreal Gazette, 16/4/97. 71 Loc. cit. supra, n. 65, p7. 72 Loc. cit. supra n. 39. 70

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together elements of quasi-judicial and alternative dispute resolution techniques. Against this, the federal Information Commissioner believes that "a regime in which departments know that they must obey or appeal a Commissioner's order would inevitably result in the most narrow, legalistic application of the law". 73 As well as highlighting problems of juridification, the federal Review [of the operation of the legislation] stresses that FOI must become more than the mechanism by which individual access requests are made and answered. The Review identifies a number of ways in which, in the context of the prevailing doctrine of administrative managerialism, current administrative practices threaten the right of access to government information. 74 First, federal government policy on the pricing of information directs government institutions to recover the full costs of producing information except in those cases where there is a clear duty to inform. For example, Statistics Canada has a policy of market pricing, accentuating fears about the commodification of official statistics. Second, federal guidelines on tradeable data and intellectual property encourage departments to enter into licensing arrangements with the private sector to disseminate government information and to generate revenues. "Publishing" the information in this way is liable to reduce the amount of information subject to access requests, as there is an exemption under the Access to Information Act for "published material or material available for purchase by the public" (s.68). This exemption is also problematic when the government, as a result of Crown Copyright, prices its own published information at a level that limits access. There is a comparable exemption for "information having commercial value to the government" in s.18, and this "value" could become the basis for refusing access requests. In order to combat inappropriate incentives to commoditise government information holdings, the Information Commissioner recommends redrafting the Access to Information Act to enshrine three essential principles: that government information should be generated, preserved and administered as a national resource; that government should be obliged to help the public gain access to its national information resource; and that government information should be readily accessible to all without unreasonable barriers of cost, time, format or rules of secrecy. The Access to Information Act should be redesignated the National Information Act and a number of specific amendments should be made, for example to remove the exemption of published material from s.68. Such amended legislation would establish a framework of rules for pricing government information. It would give the Commissioner an expanded remit to review the organisation of information in government for purposes of 73 J. Grace, "Freedom of information—the Canadian experience" in Freedom of Information: International Experience and Prospects for Britain (London, 1993). 74 Information Commissioner of Canada, loc. cit. supra n. 64.

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access and dissemination, the appropriateness of public reference and charging mechanisms and to investigate all submissions for licensing databases.75 In recommending a greater role for the Commissioner in auditing the administrative implementation of FOI, the Review endorses the recommendation of the Standing Committee of the Canadian House of Commons on Justice and Solicitor General, which reviewed the operation of the federal legislation in 1986—87, that the powers of the Information Commissioner might be split into separate streams. On the administrative side, the Commissioner might be given authority to carry out investigations regarding institutional compliance with the provisions of the Act, especially delays in responding to requests; and to issue binding orders in regard to fees and fee waivers, time extensions and frivolous or vexatious requests. These investigations would be public documents in which the Commissioner would make recommendations to Parliament, the institution and the designated minister. The complaints regarding refusals of access would be dealt with exactly as they are at present. The perceived advantage of a "twin track" approach to enforcement is that it would respond to public concern for better accountability by government institutions without violating the Commissioner's role as an ombudsman. Applied to Britain, such an arrangement would enable a parliamentary select committee, operating in tandem with the Ombudsman, to act as the ultimate enforcement mechanism for the administrative aspects of FOI, leaving the substance of FOI disputes to be resolved through a judicial or quasi-judicial procedure. The final lesson of the Canadian experience is that political and ministerial leadership is crucial in setting an attitudinal tone towards the legislation, and thus to the healthy functioning of an open government regime. Formal regime changes to institutions, rules and procedures will not produce more constructive, less juridified FOI relationships in the absence of such leadership. In the British context, this underlines the importance of holding ministers accountable to Parliament for the administrative and policy aspects of FOI whilst removing adjudication from the parliamentary arena.

75

Ibid., recommendation 11.

8 The Ombudsman and Administrative Justice MICHAEL HARRIS (ed.)

Explanatory Note

T

HE following six papers, covering the work of both private and public sector Ombudsmen, were delivered at the Bristol Conference: Michael Barnes, "The Work of the British and Irish Ombudsman Association" ("Barnes"); Julian Farrand, "Ombudsman or Tribunal?" ("Farrand"); Tony Holland, "Tomorrow's Courts" ("Holland"); Walter Merricks, "Private Sector Ombudsmen—In Whose Interest?" ("Merricks"); Patricia A. Thomas, "The Public Sector Ombudsmen and the Courts" ("Thomas"); and Paulyn Marrinan Quinn, "Do Private Sector Ombudsman Schemes Work? The Experience of Establishing the First Insurance Ombudsman in Ireland" ("Quinn").With the authors' permission, this chapter has been constructed on the basis of selected extracts from these papers having particular relevance to the ongoing debate over the role this critical instrument can and should play in the overall scheme of promoting administrative justice. The reason for adopting this approach is the editors' view that to have reproduced each of the papers in full would not have allowed distinctive elements of that debate engaged by the papers to emerge as clearly and coherently as they otherwise might. This chapter opens, therefore, with a brief introduction, first placing the office of Ombudsman in context and then highlighting some of the more problematical issues concerning its institutional role examined in the papers. These and other themes are then picked up in the extracts that follow. The authors of the relevant extracts are identified as above. Introduction

The Ombudsman concept has proved both durable and popular in the cause of improving the quality of administrative justice. From the first creation of an Ombudsman-style office in this country—the Parliamentary Commissioner

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for Administration (PCA) in 1967—we have reached a point in 1998 where the British and Irish Ombudsman Association (BIOA) currently has twenty-three member schemes on its books. Perhaps the most remarkable aspect of this growth has been the spread of the Ombudsman idea as an instrument of administrative justice within the matrix of industry self-regulation. In what is formally a sphere of private power and private law juridical relationships we nevertheless presently find a total of thirteen schemes1 recognised by the BIOA. This development is also reflected in the fact that four papers of the six papers delivered at the Conference were by private sector Ombudsmen (Farrand, Holland, Merricks and Quinn). Realisation of the fact that the Ombudsman idea could have a part to play in dealing with the issue of industry accountability demonstrates one of its most remarkable features, namely a protean capacity for adaptation and evolution in response to new aspects of the problem of power. From this perspective it does not matter that the source of the power lies in private not public law. What matters is its capacity to affect the economic and other interests of ordinary members of the community on a large scale. In these circumstances the Ombudsman may be seen as an equally appropriate response to the unfair exercise of corporate power as it has hitherto been perceived in relation to the unfair exercise of the powers of the state by its functionaries. A major reason for favouring the incorporation of the Ombudsman idea into the private sector has been what Holland describes as "the effective collapse of access to the courts by the majority of the population of the country." The adversarial system is perceived not only as a deterrent in terms of cost, but also as an impediment to the speedy resolution of the kinds of disputes that typically crop up in, say, the provision of financial services. The existence of a flexible, cheap, easily accessible and efficient alternative forum to the curial process provides the rationale for Holland's thesis that in appropriate contexts Ombudsmen will operate as "tomorrow's courts." This idea of the Ombudsman's potential for performing a curial, as opposed to a purely conciliatory role, is related to another aspect of the office that continues to attract conflicting responses. This is the issue of what it is precisely that the Ombudsman should be doing within the structure of remedies for dealing with administrative error and injustice. Some have emphasised its adjudicative, grievance resolution role: others have contended that the office is better suited to the task of administrative audit. Certainly in relation to the work of the PCA it is the latter role that has been of the greater significance. Nevertheless a paper like Farrand's shows that this need not be the uniquely correct conception of what an Ombudsman can or should be, suggesting in turn that the PCA's role may be constrained as much by constitutional as by 1

This will shortly reduce to nine with the incorporation of the (unctions of the Banking Ombudsman, the Building Societies Ombudsman, the Insurance Ombudsman, the Investment Ombudsman and the Personal Investment Authority Ombudsman into a Financial Services Ombudsman scheme.

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inherently functional limitations. In any case, a broad view of administrative justice will according to many, including the Master of the Rolls, Lord Woolf, desirably involve an adjudicative as well as a systemic role, a point stressed by Farrand. A variation on the theme of what precisely should be the province of an Ombudsman is considered specifically in relation to the present remit of a public sector Ombudsman, the Local Government Ombudsman, in Thomas's paper. How, in particular, should the discretion to receive complaints be exercised notwithstanding the existence of an alternative remedy through the courts? Should an Ombudsman be used as an investigator of facts for the courts in such cases? What are the differences between the curial and Ombudsman processes? The paper by Merricks explores the extent to which private sector Ombudsmen are still engaged in promoting the public interest, given that in a sense they are the creatures of the industries they scrutinise and are in a financial sense dependent upon those industries for their continued existence. He argues that despite this, the creation of a private sector Ombudsman scheme can serve both the public and industry interests. The industry cannot ignore the culture of accountability, especially in a field like insurance, which generates a high volume of complaints. And consumers, resonating with Holland's point (see above), are provided with a free alternative to the courts in a particular area where they might otherwise be unable to afford to access the curial system. At the same time, however, appropriation by and proliferation within the private sector of an office originally perceived as a curb on the misuse of public power has created tensions at both the institutional and constitutional levels. Thus, for example, there is an obvious problem that the consumer may have no adequate means for distinguishing genuine private sector Ombudsman schemes from those that lack any real independence and effectiveness. The institutional response to this problem was the creation in 1991 of the UK Ombudsman Association, later to become the BIOA. The constitutional response designed to keep faith with the purity of the Ombudsman idea has seen much of the work of the BIOA directed to the validation of Ombudsman schemes. In particular this has involved devising rules and standards that will as far as possible ensure appropriate levels of independence, effectiveness, fairness and public accountability. These matters are highlighted in the paper by Barnes. A further question is whether the office works, especially in respect of private sector schemes? Quinn's paper is a strong affirmation of the essential virtues and efficacy of the office, provided real independence can be preserved. This is a special problem for private sector Ombudsmen, where the risk of allowing a facade to be created in order to mask the reality of industry domination is greater. This and other related issues are explored by Quinn. Are there any overall conclusions to be drawn from the relative diversity of

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these six papers? First it is important to emphasise that each was written by a practising Ombudsman. Each is therefore informed not just by enthusiasm but by the irreplaceable experience of actually giving effect to the idea. And one thing indeed does stand out: whatever the precise focus or institutional role an Ombudsman is required to adopt under a particular scheme, at bottom he or she will be operating a flexible, accessible and effective investigative remedy which in many cases will have considerably greater appeal than the more formal, adversarially-based approach of courts and tribunals. This, combined with a real independence not possessed by purely internal review systems, has given the office a unique ability to remedy wrong and/or unfair decisions in a diversity of contexts which now transcend its origins as a process for remedying bureaucratic shortcoming. At the end of the day the papers are testimony to the Ombudsman's success in promoting those essential characteristics of an acceptable institutional decision-making process—good sense and fairness. We can now explore the issues foreshadowed in more depth through the words of the Ombudsmen themselves.

The Ombudsman as "Tomorrow's Court" In the following extract Holland expounds his argument that the Ombudsman system provides an alternative and viable forum for the resolution of disputes in a high volume area like financial services: It is my belief that while "no win no fee" may well play some part in providing greater access to the courts for the majority of the population of this country, it is unlikely to be the lasting solution that will give real and genuine access. The primary reason for that is that it is built around the current adversarial nature of those very courts. The legal profession in this country seems so wedded to the benefits of such a system that nothing, not even the increasing lack of access to that system, will ever prise lawyers apart from it. That is a tragedy. The system itself, in commercial situations, is a wonderful benefit to this country in terms of invisible earnings. It creates a method of resolving disputes that is probably second to none. It is expensive but, usually, in cases involving high value, it is well worth the price. The difficulty is that it is not a system designed to benefit or to be used by the ordinary member of the public and will never be so, given the increasing attraction of commercial legal practice. What has always been needed is an alternative, different, system rather than trying to graft onto the existing system a cheaper, economy, version or one, dare I say, sustained on credit . . . What then is the alternative? In my view, the alternative for "Tomorrow's Court" is the Ombudsman system. Given the view that legal aid is now, only, ever going to be available in limited areas to a limited number of people, a view that seems now to be widely accepted, there has to be a viable and genuine alternative available. That available alternative is capable of being provided by an Ombudsman system. Currently, the Ombudsman system has developed from its original parliamentary commission variety into one encompassing other statutory systems but also semi-

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statutory ones and voluntary ones . . . "Ombudsmania" is, I believe, the current phenomenon. It is a mania supported by Lord Woolf in his Civil Justice review. [As a system, the ombudsman provides] many benefits . . . [It] has few critics and many admirers. Above all, its principal attraction is the fact that it is inquisitorial in nature and not adversarial. The implication of that to lawyers, of course, is that it represents little by way of attraction for future work. As an aside I believe that to be a misguided approach . . . It is not surprising that the Ombudsman system has developed fast and with such popularity. That has been the case with most informal tribunals of whatever nature and indeed other dispute resolving systems that are outside the courts' structure since the war. Many have now realised that there had to be alternatives and necessity has always been the mother of invention. It is my view and that of others, [therefore,] that the Ombudsman system is ideally placed to provide an alternative dispute resolving forum and one that is increasingly important to use . . . For example the advent of the new super financial regulator only recently launched as the Financial Services Authority will be an instrument of the creation, probably by the end of 1999, of one large financial ombudsman service . . . If one assumes that services of that nature are dealt with in that way, it will produce a background of experience that can be brought to bear in other areas. [To conclude,] . . . if there is a serious attempt to rationalise . . . the alternative dispute resolution area of civil justice [viz. advice agencies, tribunals and Ombudsmen schemes] it really could lead to the Ombudsman's schemes becoming "tomorrow's courts" . . . It is an opportunity that, in my view, is unique. Most systems that exist in western democracies are wedded either to the inquisitorial or the adversarial. We now have, in my view, the opportunity of creating two parallel systems offering the benefits of both and the disadvantages of neither to those who seek to use them. I maintain that now is the time to bring to bear all the inventiveness and originality of thought that the legal profession in this country has been known for generations in creating a strong and viable foundation to create via the Ombudsman system a complete and user friendly alternative to our present court system. Evolution, not revolution, is always the cry of lawyers usually as a way to procrastinate. In this instance, all that I suggest is a positive evolutionary approach to an Ombudsman system that has already proved itself.

Ombudsman or Tribunal? The Ombudsman as an Adjudicative Mechanism There is an area of complaint and dispute which ought not to be resolved by litigation but which equally may not be amenable to settlement by negotiation. An important question is whether this area should be occupied by an Ombudsman rather than by a tribunal. Farrand argues that the best mechanism for dealing with these kinds of dispute is the Ombudsman process combined with actual dispositive powers. The conceptual objection to this approach is that the adjudication of disputes, in contrast to the resolution of complaints by investigation and recommendation, does not properly form part of the remit of an Ombudsman. When the Pensions Ombudsman was for the

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first time given just such a legislative remit in 1990, the Council on Tribunals described it as "a novel and anomalous constitutional innovation." Farrand accordingly explores the arguments for and against vesting powers of final determination in an Ombudsman: Semantically speaking, ombudsmen schemes and tribunal systems may be difficult to distinguish, especially since an "ombudsman" might involve a committee of three or more persons, whilst many tribunals do consist of one person. But to weigh the merits, a traditional—not to say simplistic—start must be made. Accordingly, the contest is between three-member tribunals conducting hearings, more or less adversarially, and deciding on the basis of the parties' oral representations and evidence, against a one-person ombudsman heading a team of investigators considering more or less inquisitorially the parties' written representations and evidence and deciding in the light of all relevant and discoverable information. On this basis, certain points of substance may be submitted. 1. The fact that an ombudsman scheme depends on the judgment of one person is dangerous: some ombudsmen may not possess the wisdom of Solomon or even the patience of Job (the wrath of Jehovah seems easier to achieve). With tribunals, not only are three heads better than one, but the wing members may import personal expertise and/or indirectly be representative of the parties, eg employers (typically a magistrate) or employees (typically a trades unionist). 2. An ombudsman will employ proactive professional assistants, qualified to research the facts and law, question the parties and witnesses, discover documents, advise on detail and issues and draft submissions and provisional decisions. Tribunals have civil service clerks. 3. An ombudsman's inquisitorial role extends beyond investigating the facts by questioning the parties to instructing independent experts and consultants such as doctors, surveyors or actuaries. Whilst a tribunal chairman and members may put questions at hearings going beyond what the parties submit and call for further information or other documents, this is not properly inquisitorial. Indeed, a leading authority has pronounced: "It is fundamental that the procedure before a tribunal, like that in a court of law, should be adversary and not inquisitorial. The tribunal should have both sides of the case presented to it and should judge between them, without itself having to conduct an inquiry of its own motion, enter into the controversy, and call for evidence for or against either party. If it allows itself to become involved in the investigation and argument, parties will quickly lose confidence in its impartiality, however fair minded it may be." (Wade &C Forsyth, Administrative Law (7th ed, 1994) at 931.) What this says about confidence in ombudsmen I hate to think, and at least one tribunal is instructed by statute to investigate (see Financial Services Act 1986, s. 98, also Pension Schemes Act 1993, S.146(2)).

4. Ombudsmen offer advisory services and attempt conciliation and mediation before finally resolving complaints and disputes by a determination. Tribunals do not. 5. Ombudsmen comparatively rarely hold oral hearings, deciding instead '[on] the papers'. One justification may be that otherwise "the level playing field" between

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complainant and authorities/industry could become unbalanced by heavy legal representation. Tribunals almost always hold oral hearings which may be seen as dauntingly court-like (eg Industrial or Leasehold Valuation Tribunals). However, although submissions as to law or the implications of undisputed facts may be satisfactorily considered after exchange of written statements, disputed facts involving conflicting evidence may be impossible to resolve satisfactorily without oral testimony and cross-examination. Indeed tribunals may already be under a legal duty to give oral hearings (Wade & Forsyth, op. cit., at 933). The ombudsman, both personally and through his staff, not only controls and directs proceedings from the outset and throughout, but also participates by virtue of his investigatory/inquisitorial role. Tribunals of three tend to be appointed ad hoc from a panel of members for already listed hearings, receiving the papers only shortly in advance. Opportunities for pre-trial review or other preparatory intervention are limited for a tribunal but may be undertaken, purportedly on its behalf, where there is a presidential system (supported in other respects by the Council on Tribunals: Report 1997 Cm 3744). One ombudsman of efficient memory or cross-referencing system can ensure appropriate consistency in decision making. Various tribunals with different members may fail, inadvertently or deliberately, to achieve such consistency . . . Ombudsmen embrace accountability to the public as well as to their own authorities/industry, especially through explanatory annual reports but also by themselves reporting significant decisions (even if digested and anonymised). Tribunal hearings are open to the public in principle and certain of their decisions may be selected and reported by specialist journals; otherwise only a few produce annual reports. Ombudsmen enjoy a relationship with their authorities/industry which enables them to offer advice and exhortation as to standards and practice and to enter into a dialogue from time-to-time as to decision making; they may also feel it proper to "blow the whistle" to regulators etc. Tribunals do not. Ombudsmen dispense "palm tree" justice. Or, as the British and Irish Ombudsman Association puts it: "The Ombudsman should be required to make reasoned decisions in accordance with what is fair in all the circumstances, having regard to principles of law, to good practice and to any inequitable conduct or maladministration" (para 3(e) Schedule 1 Criteria). This has been recognised judicially, apparently with approval: ". . . the public do not have to use the Ombudsman. They can instead sue insurers in the courts. If they go before the Ombudsman, because he is not limited to purely legal considerations, in many cases their prospects of success will be better. But they have the choice of forum. Likewise, for insurers, although there are the advantages of Bureau membership to which I have referred, membership is not obligatory. Those who choose to be members run a greater risk of an adverse decision if complaint is made to the Ombudsman than if the case were decided in the courts by reference to strictly legal principles. This follows from the Ombudsman's terms of reference which expressly contemplate decisions more favourable to complainants than the law would provide"

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{per Rose LJ in R v Insurance Ombudsman ex parte Aegon Life Assurance Limited [1995] Lloyd's Reinsurance LR 101 at 105-6)... 11. Ombudsmen's decisions may not be legally binding on either side, usually because they are merely unenforceable recommendations (as with the Parliamentary and Local Authority Ombudsmen) but also because there may be the escape route of a "publicity option" (as with the Banking, Building Society and Legal Services Ombudsmen). More satisfactory for consumer complainants, an ombudsman's decisions may be made binding only on the respondent, ie the industry side (as with the Insurance and Personal Investment Authority Ombudsmen). Compliance in practice and enforceability at law are different questions. Tribunals' decisions will bind all the parties, subject to any appeal 12. Ombudsmen's decisions generally are not subject to appeal to the courts although if public sector, not private contractual, they may be susceptible to judicial review (cf R v Insurance Ombudsman ex parte Aegon Life Assurance Limited above). Tribunals' decisions will be subject to appeal on point of law and/or judicially reviewable. These dozen points of comparison, albeit generalised and far from exhaustive, may suffice to demonstrate distinctions of substance between ombudsman schemes and tribunal systems which are not justifiable in principle, given their similar raisons d'etre. So far as the contest is concerned, in my judgment it is a comfortable win on points for ombudsmen!

Conclusions Lord Woolf's Report on Access to Justice (1996) included three recommendations [apposite in the context of this discussion]: 296. The retail sector should be encouraged to develop private ombudsman schemes to cover consumer complaints similar to those which now exist in relation to service industries: the government should facilitate this. 297. The relationship between ombudsmen and the courts should be broadened, enabling issues to be referred by the ombudsman to the courts and the courts to the ombudsman with the consent of those involved. 298. The discretion of the public ombudsmen to investigate issues involving maladministration which could be raised before the courts should be extended. The Report makes no recommendations whatsoever about tribunals. Quite consistently, his Lordship's Foreword to The A-Z of Ombudsmen (NCC 1997) . . . began: "In both public and private sectors, 'ombudsmania' should be rampant.' Obviously no 'ombosceptic' [the Foreword] concluded: "Clearly, there is great scope to expand both the numbers and role of Ombudsmen. But growth must go hand in hand with quality controls. That is why I commend the efforts of the British and Irish Ombudsman Association to set criteria for ombudsman schemes, and to identify and share good practice."

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This echoes the words of the Franks Committee, forty years ago: "Perhaps the most striking feature of tribunals is their variety, not only of function but also of procedure and constitution. It is no doubt right that bodies established to adjudicate on particular classes of case should be specially designed to fulfil their particular functions and should therefore vary widely in character. But the wide variations in procedure and constitution which now exist are much more the result of ad hoc decisions, political circumstance and historical accident than of the application of general and consistent principles. We think that there should be a standing body, the advice of which would be sought whenever it was proposed to establish a new type of tribunal and which would also keep under review the constitution and procedure of existing tribunals." (para 128) Thus, the Council on Tribunals was created. My conclusion is that the Council and the Association should get their acts together: ombudsman schemes and tribunal systems should not be separated by semantics but co-ordinated in substance.

Defining the Relationship between the Courts and a Public Sector Ombudsman Thomas initially points up the areas of potential overlap of jurisdiction with the courts. She concludes that, notwithstanding a theoretical overlap with judicial review and/or the civil law, Local Government Ombudsmen will usually exercise their discretion in favour of receiving a complaint: Overlap with the Courts There are a number of complaints where, for the Local Government Ombudsman at least, a decision needs to be made about whether it is reasonable to expect the complainant to pursue an appeal to a tribunal or Minister of the Crown or a legal action (see Local Government Act 1974, s. 26(6)). In 1996/7 decisions not to investigate because there was an alternative route constituted 8% of complaints decided (1,268 out of 15,841). No figures are available for when discretion has been exercised. The Local Government Ombudsmen would normally expect a complainant to pursue an appeal to a tribunal if one is available as that would resolve the substantive issue, eg Housing Benefit Review Boards, Education Appeal Committees, Special Educational Needs Tribunal, Lands Tribunal. That might, however, leave other issues which could be investigated (eg failure to inform of the availability of appeal, delay in setting up a Housing Benefit Review Board) but would not allow an investigation only because costs were incurred and not recovered as a result of a successful appeal. Similarly, where an appeal to a Minister is available, the Ombudsmen normally expect that route to be followed, extra delays and costs notwithstanding. However, there may be situations (eg where an appeal would be pointless, as when the applicant for planning permission has lost the opportunity to purchase the land as the result of the refusal, or when misleading advice has caused additional abortive costs)

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which could be subject to investigation. Where the alternative route is to the courts, however, the situation is more complicated. There are some statutory provisions which give a specific right to go to a court: eg appeals by landlords against Housing Act notices (County Court); "right to buy" (council houses) matters under s. 181 of the Housing Act 1985 (County Court); disputes over service charges payable by long leaseholders under the Landlord and Tenant Act 1985 (County Court); enforcement of liability to maintain a highway (Crown Court). In those cases discretion will not normally be exercised to investigate. In other cases rights of action may arise under common law or general legislation. The Ombudsmen will not normally investigate if they are being asked to interpret the law or determine legal rights, eg property disputes such as the boundary of a house bought under "right to buy"; the meaning of a document setting out contractual obligations such as a commercial lease; or claims for negligence. However, the Ombudsmen will take account, inter alia, of the cost of seeking a remedy in the courts compared with the value of the claim. If the matter can be dealt with as a small claim in the County Court, or if legal aid is available, the costs will not be high. The higher the ratio of costs to benefit, the more likely the Ombudsman is to exercise discretion. The most common situation where discretion is exercised by the Local Government Ombudsmen is with council housing repairs, which constituted 10.5% of all complaints received in 1996/7. [And] where the complaint is about the giving of bad advice, which could possibly found an action in negligence, discretion will [nevertheless] usually be exercised where there is no indication of court action being taken. The point should clearly be made, however, that, for the majority of complainants, there is no alternative to the Ombudsman, except the possibility of judicial review. It could be argued that there is a 100% overlap with the courts because judicial review is potentially available for all administrative actions by public bodies. Recent court decisions, for example, would suggest that judicial review is available to those who object to decisions to grant planning permission (although planning applicants can appeal against refusal to the Secretary of State for the Environment, no such appeal is available to objectors) . . . Objections to the grant of planning permission have been one of the most fruitful causes of complaint to the Local Government Ombudsmen (22.5% of complaints in 1996/7 were planning) and it has not been thought, until now, that we needed to consider the exercise of discretion in such cases. [In addition it had already been] held by Woolf L.J. in R v Commissioners for Local Administration, ex p. Croydon London Borough Council ([1989] 1 All ER 1033, at 1045-1046) that the Ombudsman should have considered the exercise of discretion when considering a complaint about an Education Appeal Committee because of the availability of judicial review. Those committees were specifically put within the Local Government Ombudsmen's jurisdiction by the Education Act 1980 and 5% (265) of all complaints I received in 1996/7 were education appeal complaints. They also constituted 13.5% (16) of the reports I issued. The implication of [that case together with the planning decisions referred to] is that

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Ombudsmen should always consider the possibility of judicial review when a complaint is received. That would be likely to render it [sc. the consideration of the discretion] an automatic exercise . . . Thomas concludes that the fundamental reason for exercising the discretion favourably is a conviction that in so many cases of theoretical overlap the Ombudsman is a far more "user friendly" institution from the point of view of the ordinary citizen than a court: Characteristics and Questions [The following table defines some of the major differences between the ombudsman and curial processes respectively:] Ombudsmen informal private free to user legal representation not necessary inquisitorial decides on maladministration 8c injustice makes recommendations (compliance) no restriction on remedy proposed no appeal no precedent

Courts formal public costs payable legal representation generally necessary accusatorial determines legal rights makes decisions (enforceability) orders or damages appeal precedent

Ombudsmen are concerned with remedying injustice, the courts with determining legal rights. Are they the same thing? The main difference, it seems to me, is that the Ombudsmen, unlike the courts, investigate and assemble the evidence at no cost t o the complainant. The complainant may not otherwise be able to find out what happened and may not therefore be able to sue in a court. The value of what is sought is very often minor in Ombudsman cases but very important to the complainant. It may be that he only wants an explanation or an apology and for it not to happen to anyone else. No point of principle is involved in most of these such as would justify judicial review. Ombudsmen can propose any remedy which seems appropriate to rectify the injustice; the courts are more limited in what they can order and, in particular, damages will not be obtained from a successful judicial review. The two systems are in fact serving different purposes. Where they overlap, should it be left to the individual to decide which system to use? When considering the respective merits of the two systems from a public perspective, cost, speed and effectiveness seem to me to be the crucial factors. They are however not easy to determine. Costs to the public purse are difficult to compare because of legal aid etc; nor can the length of time taken be directly compared because Ombudsmen are often brought in earlier than would be the courts; the courts are effective in that decisions are enforceable and lay down rules for the

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future through the doctrine of precedent, but very few Ombudsman decisions are not implemented and a great many matters are settled at an early stage. While Ombudsman reports are not binding, government bodies take account of them and procedures are amended and practices changed, often without a full report. Effectiveness however depends on your perspective. [In his Report on Access to Justice (1996)] Lord Woolf has suggested that there should be a closer relationship between the courts and the Ombudsmen, with the courts referring cases to the Ombudsmen and the Ombudsmen referring legal issues to the courts. He suggested that the courts might ask the Ombudsmen to investigate the facts for the court. The Local Government Ombudsmen have some reservations about Lord Woolf's proposals, which could present a threat to the independence of the Ombudsmen, but welcome discussion of the issues.

Private Sector Ombudsmen and the Public Interest Merricks describes the factors that typically produce a private sector Ombudsman scheme. He points up the value of such schemes to complainants and concludes that they constitute an important element in the evolving administrative justice system: We all like to think, whether we are judges, academics, civil servants, or lawyers' that everything we do contributes to or serves the public interest. The phrase is never far from the lips of policy-makers, critics or commentators. Sometimes we use slightly different jargon and talk about the interests of consumers, often as a way of contrasting this with the interests of producers, providers or commercial interests. How can we private sector Ombudsmen analyse and bring to a satisfactory resolution the different interests we appear to be serving? The first thing which everyone notes is that we are paid by the industries over whose disputes we adjudicate. My salary [for example] comes . . . from the contributions of insurance companies. No taxpayers money comes to me . . ., and the industry could theoretically . . . withdraw funding from the scheme, in which case I would be out of a job . . . But rather than looking exclusively at the paymasters or sources of revenue, it may be more relevant to look at the impetus for establishing these schemes [and] the interests they serve and/or involve . . . The most obvious group to do well out of the ombudsmen are those consumers with well-founded grievances, who pursue their complaints through the internal machinery of the business, and then have the stamina to pursue the case with the Ombudsman. These individuals actually receive redress, at no cost to themselves, and are real beneficiaries of the scheme. In ray own scheme, for instance around 1,000 individual insurance policyholders benefit. Since my scheme costs around £2.7 million a year to run, it could be said that they are benefiting at the cost of £2,700 a time. Against these we must consider those 2,500 or so people who have complaints we find are not well founded. All have a strong sense of grievance, even anger. Their frustration is redoubled when rejected by the Ombudsman. Although we tell them

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that their legal rights remain unaffected by their encounter with the Bureau, and they are free to take their case to court, this is true only in a technical sense. Their rights may be unaffected, but their chances are substantially prejudiced. Their opponent in litigation (the insurance company) will be able to produce my report to the court, which may well be swayed by it. Nevertheless these individuals have had their case investigated and heard. It must be doubtful whether this would happen at all in the absence of the Ombudsman scheme. On the other hand it could be said, however, that a far larger number of consumers, those with potential disputes, also stand to benefit. Some 40,000 of them contact my office each year to make an enquiry but do not pursue a complaint, and surveys we have carried out among this group suggest that three quarters of them receive satisfaction. An even wider group no doubt take some comfort from knowing that they could pursue a complaint if they chose, and are able to handle their own case "in the shadow" of my jurisdiction. [And] beyond them stand the consumers who are customers or potential customers of the industry. They I hope feel a greater sense of confidence in their dealings with insurers as a result of the existence of my office. [A]s a result of the rulings of my predecessors there is no doubt that industry practice has noticeably improved in a number of identifiable areas. The collective interests of the industry can also be said to benefit from this general improvement in consumer confidence—the main reason for the scheme in the first place. Its reputation (which has never been of a high order) is enhanced, if only marginally. The cost to the industry and to each business of such schemes is a fraction of the amount which they would have to spend on legal fees and management time if these cases were litigated . . . The effect of a private sector ombudsman scheme is to offer a free alternative to the courts within a particular area of law . . . One result may be that very few cases arrive at the courts, and there are few opportunities for the courts of first instance to gain experience, let alone for the appellate courts to lay down new precedents . . . The courts, on the other hand, may see themselves as the gainers, being relieved of the potential caseload of potentially expensive disputes to process and decide. The legal aid fund is relieved—to the extent that legal aid will continue to offer a service to those with money claims. An argument which I occasionally contemplate advancing . . . is that we (private sector ombudsmen) are here to serve the interests of the courts in relieving them of disputes which they are not capable of or suited to handling or from which judges, paid by the taxpayer, can be spared . . . The volume of disputes and complaints dealt with through the courts pales into insignificance compared to those dealt with elsewhere . . . It can be argued that this immense proliferation of institutions—tribunals, commissioners, adjudicators, administrative authorities, and ombudsmen—represents a real public benefit with the advantages of specialisation, proximity to the sector under review and hopefully a close understanding of the problems and concerns of those who bring the cases. [And] it is unlikely that many of the complainants who approach these institutions would, if these bodies did not exist, have launched proceedings in the courts. But this may say as much about the failure of the courts to accommodate themselves to dealing with the problems of ordinary people as it does about merits of the alternatives. [Next,] is it just a coincidence that the burgeoning interest [of the Lord Chancellor's Department (LCD)] in [both public and private sector] ombudsmen

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has arisen at a time when containing, or if possible reducing, the legal aid budget is the LCD top priority? The discovery that there is a vast array of disputes being investigated or adjudicated outside the courts, for which legal aid does not have to be provided, and for which indeed no branch of the Government funds at all is [responsible is] perhaps prompting a more animated interest. Some of us have noted with particular interest the proposal . . . 2 that the LCD should play a role in coordinating the functions not only of tribunals and courts, but also of ombudsmen. This will have come as something of a shock to the . . . Parliamentary Commissioner (who certainly does not see himself as an alternative to the courts) . . . Last in this list of those with an interest in the ombudsman schemes should be noted the ombudsmen themselves and their staff. The ombudsman office is, rightly or wrongly a very personalised office. It is not a body where authority is diffused as in a committee, a council or a commission. Complainants and those complained about both want to know the identity of the decision maker in whom the ultimate responsibility is vested . . . [Such personalisation is not without its dangers.] The instinct for self preservation and self promotion is strong in all of us. The status of an "ombudsman" carries some public recognition, and a salary usually related to a judicial scale. Whether in full time judges, those drawing pensions, or those holding other offices, the possibility of self-interest colouring the arguments advanced by office-holders cannot be discounted. Is there scope for the establishment of further ombudsmen schemes in the private sector? I certainly hope that other industries may consider the benefits and advantages . . . As a machinery of government issue, no doubt the Middleton report (supra) will generate some discussion as to whether there should be any defined government department with an interest in private sector ombudsmen, their establishment, development or indeed their extinction, and if so where this interest should lie . . . While some may characterise them as usurpers of titles and pretensions which only Parliament ought to confer, it is clear that they have been successful in making marks which public administrators, and students of public administration cannot afford to ignore.

Quis Custodiet Ipsos Custodes? The Problem of Proliferation It has already been noted that a proliferation of private sector Ombudsman creates problems of distinguishing truly independent from facade schemes. As well, the existence of bogus schemes may well undermine public confidence in the institution more generally. Barnes explains the background to the creation oftheBIOA: The British & Irish Ombudsman Association (the Association) was formed as a result of a joint conference of UK public and private sector Ombudsmen which took place in October 1991. The Association was launched in the spring of 1993 and was originally called the UK Ombudsman Association. Its present name was adopted in 2 Sir Peter Middleton, Review of Civil Justice and Legal Aid, Report to the Lord Chancellor's Department (LCD, September 1997).

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1994 to enable members from the Republic of Ireland to join. Currently there are twenty UK member scheme and three Irish ones. 3 One reason for forming the Association was the proliferation of Ombudsman schemes which took place in the UK during the 1980s. This had made it difficult for people to distinguish those Ombudsman schemes which were independent and effective (and properly described as Ombudsmen) from schemes which lacked those essential qualities but used the name "ombudsman". The Association sought to address this problem by defining criteria for recognition and according recognition only to those Ombudsman schemes which satisfied the criteria . . . [T]wenty-three voting member schemes have been recognised because they meet the Association's key criteria (independence, effectiveness, fairness and public accountability). Decisions on recognition are made in the first instance by a Validation Committee which, in order to secure the public interest, has a majority of independent members. Recognition is however subject to on-going review and, over a period of time, it is intended that recognition should be dependent on satisfying the Validation Committee that existing members meet all of the criteria in detail. To ensure that the Association is more than a trade association, it has provided for the participation in its activities of appropriate consumer and academic representatives, and individuals with a relative interest, as Associate members. This wider participation has been encouraged in order to provide a critical input into the work of the Association from a wide variety of interest groups. Barnes goes on to explain the work of the Association: From the outset the Association has been involved in developing standards of best practice for Ombudsmen and, in particular, the standards which should be adopted during the course of investigations and in decision-making . . . Following the [Association's] 1995 Conference two working groups were set up— one to provide guidance to members of Councils of private sector Ombudsman schemes, and the other to consider whether it was practicable to develop a set of performance indicators [Pis] which would allow comparisons to be made between the performance of different Ombudsman schemes. The working group o n Councils of private sector schemes decided to interpret its role broadly and considered the following areas: 3

the functions of Councils in private sector schemes guidance for Council members ensuring impartiality and independence the appointment, re-appointment and removal of Ombudsmen terms of reference advice and guidance for Ombudsmen monitoring performance Councils' involvement with casework appeals and complaints against Ombudsmen

This will reduce to nineteen when in 1999 the Banking Ombudsman, the Building Societies Ombudsman, the Insurance Ombudsman, the Investment Ombudsman and the Personal Investment Authority Ombudsman are subsumed by the Financial Services Ombudsman scheme.

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- resources - recruitment and appointment of Council members - other areas of operational good practice. The report of the working group was accepted by the annual general meeting of the Association in May 1997, and it was agreed that it should be offered to Councils as guidelines for best practice in carrying out their role. The task facing the second working group proved to be somewhat intractable . . . Twenty-five standard Pis were eventually selected covering areas such as timescales, outputs, recommendations and awards, publicity, and public awareness and satisfaction. They were then subjected to a dummy run within each Ombudsman scheme represented on the working group. The results of those test runs, however, led the group to conclude that the significant differences between various Ombudsman schemes rendered comparisons on this basis at best misleading, and at worst mischievous. Lack of agreement over terminology (even on such basic terms as "complaint", "investigation", "findings", "resolution") meant that like was frequently not being compared with like. It became clear therefore that the arguments against making inter-scheme comparisons on the basis of a common set of Pis were more convincing than the arguments for. Nevertheless, much was learnt from the exercise that was valuable. The benefits of the inter-scheme discussions within the group itself could be taken back to the schemes and made use of when changes to published material on performance were being considered . . . Clearly the most important task has been to set down the recognition criteria for Ombudsman Offices. These are contained in Schedule 1 to the Rules of the British and Irish Ombudsman Association:

A. Introduction The core role of an Ombudsman is to investigate and resolve, determine or make recommendations with regard to complaints against those whom the Ombudsman is empowered to investigate by the exercise of powers and in accordance with procedures described in these criteria. The term 'Ombudsman' should only be used if four key criteria are met. Those criteria are independence of the Ombudsmen from those whom the Ombudsman has the power to investigate; effectiveness; fairness and public accountability . . . Given the considerable range of ombudsmen schemes in the public and private sectors and the variations in their constitution, jurisdiction, powers and accountability, the detailed criteria need to be interpreted with sufficient flexibility to encompass those variations . .. Initially, recognition of existing schemes will be dependent on whether, broadly speaking, they meet the key criteria; it will not be withheld if, in some respects, the detailed criteria are not met. However, over time it is expected that the constitution of all schemes would be developed to the extent necessary to meet the detailed criteria .. .

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In due course, it is expected that in the private sector all, or virtually all, firms in an industry with an ombudsman scheme or schemes should participate in the scheme or schemes, even though in the short term, especially when a scheme is first established, a lesser number of firms may participate . . . B. Detailed Criteria 1.

Independence

(a) The jurisdiction, the powers and the method of appointment of the Ombudsman should be matters of public knowledge. (b) The persons who appoint the Ombudsman should be independent of those subject to investigation by the Ombudsman. This does not exclude minority representation of those subject to investigation on the appointing body, provided that the body is entitled to appoint by majority decision. (c) The appointment should be either for a specified number of years or until a specified retirement age. If the former, it may be renewable. The initial term of office and any renewal should normally commence before the age of 65 years and be of sufficient duration not to undermine independence. (d) The appointment must not be subject to premature termination other than for incapacity or misconduct or other good cause. Those subject to investigation by the Ombudsman should not be entitled to exercise the power to terminate the Ombudsman's appointment, but this does not exclude their minority representation on the body which is authorised to terminate. (e) The remuneration of the Ombudsman should not be subject to suspension or reduction by those subject to investigation, but this does not exclude their minority representation on the body authorised to determine it. (0 The Ombudsman alone (or an appointed deputy) must have the power to decide whether or not a complaint is within the Ombudsman's jurisdiction. If it is, the Ombudsman (or an appointed deputy) must have the power to determine it. (g) Unless otherwise determined by statute the Ombudsman should be required to report to a body independent of those subject to investigation, but this does not exclude their minority representation on that body. That body should also be responsible for safeguarding the independence of the Ombudsman. (h) The office of the Ombudsman must be adequately staffed and funded, either by those subject to investigation or from public funds, so that complaints can be effectively and expeditiously investigated and resolved. 2.

Accessibility (a) The right to complain to the Ombudsman should be adequately publicised by those subject to complaint. (b) Those subject to complaint should be required to have proper internal complaints procedures. (c) The office of the Ombudsman should be directly accessible to complainants unless otherwise specified by or under statute.

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(d) The Ombudsman's procedures should be straightforward for complainants to understand and use. (e) Those complaining to the Ombudsman should be entitled to do so free of charge. 3. Powers and Procedures The Ombudsman should: (a) Be entitled to investigate any complaint made to the Ombudsman which is within the Ombudsman's jurisdiction without the need for any prior consent of the person or body against whom the complaint is made. This does not preclude a requirement that before the Ombudsman commences an investigation, the complainant should first have exhausted the internal complaints procedures of the person or body being investigated. (b) Save as otherwise provided by law, have the right to require all relevant information, documents and other materials from those subject to investigation. (c) Be entitled but not obliged, to disclose to the complainant or to the person being investigated such information, documents and other materials as shall have been obtained by the Ombudsman from the other of them unless there shall be some special reason for not making such disclosure, for example, where sensitive information is involved or disclosure would be a breach of the law. (d) Proceed fairly and in accordance with the principles of natural justice. (e) Be required to make reasoned decisions in accordance with what is fair in all the circumstances, having regard to principles of law, to good practice and to any inequitable conduct or maladministration. (f) In all cases which it is decided not to accept for investigation, notify that decision to the complainant and the reasons for it. (g) In all cases investigated, notify in writing the decision and the reasons for it to the parties concerned. 4. Implementation

of

Decisions

Either: (a) Those investigated should be legally bound by the decisions or recommendations of the Ombudsman. Or: (b) There should be a reasonable expectation that the Ombudsman's decisions or recommendations will be complied with. In all those cases where they are not complied with, the Ombudsman should have the power to publicise, or require the publication of such non-compliance at the expense of those investigated. 5. Annual Report The Ombudsman should publish an Annual Report. The Ombudsman should be entitled in that report, or elsewhere, to publish anonymised reports of investigations.

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What Makes an Ombudsman Work? Quinn first highlights the crucial matter of independence and how best to secure it in the context of a private sector scheme like that establishing the Irish Insurance Ombudsman: Some scepticism was expressed on the part of the media and consumer commentators who queried how could the Ombudsman be truly independent if funded by the industry, and there was rather more covert reticence on the part of some of the insurance companies and stake-holders . . . Having been at the cutting edge for the last five and a half years and with the benefit of a certain degree of hindsight, I hope to highlight the strengths, weaknesses, obstacles and threats of private sector ombudsman schemes. From what is described as a "green field", it was part of my brief, at the outset, to give effect to the role of Ombudsman as independent adjudicator whose services are provided free to the policy holder in circumstances where that office is funded by the industry complained against.. . The scope of the scheme is decided by its members. Insurance Ombudsman of Ireland Ltd is a private unlimited company and its operations are controlled by its memorandum and articles of association. The board represents the interests of members and is responsible for collecting the subscriptions from members from which the Ombudsman is funded. The Ombudsman submits a proposed budget for the running costs of the office to the council, which when approved is sent to the board for payment... It is universally agreed that if a private sector Ombudsman is to command respect as an independent adjudicator, he/she must be able to demonstrate his/her independence from the members of the scheme who provide the funding and determine its scope. The purpose of the council, a majority of whom must be, independent of the insurance industry, is to provide a visible and constitutional means of guaranteeing that independence. In order to safeguard the [ideas of a ] separation of powers, the distinction between the office holder, the board and the council should be well defined, effective in its construction and steadfastly protected. It is the role and function of the council to act as a "buffer" between the private sector Ombudsman and the industry over which he/she has jurisdiction, thereby providing a visible symbol of independence and autonomy as well as a buttress in preventing the Ombudsman from being subjected to pressure or control directly or indirectly from the board which represents the member companies within the Ombudsman's jurisdiction. The principle of independence is of critical importance and includes the resources provided for the operation of the office, without which the Ombudsman can not properly meet the demands. The scheme provides that the running expenses of my office are funded by a levy on the member companies. In discharge of its duty to ensure that the Ombudsman, whom it appoints, subject to the approval of the board, is an effective, independent adjudicator and referee of disputes, the council must ensure that the board provides adequate and timely payments, as approved by

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the council to enable the Ombudsman to carry out that task efficiently. "Effective" means of appropriate quality. "Efficient" means using only those resources which are necessary. Decisions about what constitutes "appropriate quality" and "necessary resources" are clearly subjective. It is clearly for the Ombudsman to advise the council on those matters . . . Quinn goes on to identify the unique qualities which both distinguish the institution from the ordinary courts and at the same time enhance its appeal to the industry and to the consumer: It is often said that "the Law Courts of England are as open to any man as the door of the Ritz". That saying could also be applied to my jurisdiction. In contrast, an Ombudsman service provides an open, free, accessible, simple and cost-effective means of redress. As a means of providing fast-track adjudication, an Ombudsman also offers the parties in dispute an opportunity of a private means of dispute resolution. As was demonstrated in the five year review document which I published in January 1998, an Ombudsman saves both the industry and the customer money. In addition to freeing up the court system, there are also opportunities to explore the potential for mediation and conciliation in private sector Ombudsman schemes. In circumstances where the parties in dispute need to or wish to have an ongoing commercial relationship, there are several advantages to having negotiated settlements which provide both parties with a means of proposed compromise. To disputants who have become grid-locked, the inquisitorial and investigative approach rather than the adversarial system helps the parties to keep in focus some area of common ground and thereby offers a route through to a set of conditions which will accommodate both sides as reasonably as possible and at the least cost. [Furthermore] customers are marginalised by conflict when they take on a large institution and suffer as a result of the imbalance in the power structure. By having access to an independent referee in the person of the Ombudsman, customers are empowered by what is a symbol of fair-play and derive satisfaction from settlements that are proposed rather than solutions that are imposed. [Finally,] a complainant has cause for confidence in referring his/her dispute to the Ombudsman when assured that he/she does so without prejudicing any legal rights. If dissatisfied with the Ombudsman's findings, a complainant remains free to pursue a remedy through the courts . . . Finally Quinn addresses some of the problematics that may be encountered in translating the institution from the public to the private sphere. She emphasises the need for vigilance in the face of industry interests not necessarily wholly committed to the Ombudsman philosophy (as apparently is the case with some areas of the insurance industry) if the office is to maintain true independence and real effectiveness : In those early days of 1992, when I set out to structure my office, it became clear that my role was one which could so easily be misunderstood depending on the perspective of the critics. From the customer viewpoint, a private sector Ombudsman could be viewed as being in control of the service provider—in my case

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the insurance companies: in the jargon—described as "industry capture". From the insurance companies' point of view Ombudsmen could be seen as champions of the customer: in the jargon—"consumerist infection" . . . It was part of my brief to create an operational framework within which to deal with the sophisticated range of disputes and complaints which began to arrive from the very day of the announcement of my appointment . . . I drew up a blueprint focusing on the strategies and procedures which would be necessary to achieve the stated objective of providing an efficient and effective means of resolving disputes, but which would enshrine the ethos of the office. I set out to develop an ethos which maintains a high regard for the dignity and the respect of those in dispute in the context of the commercial realities of the insurance industry market. . . I [also] set out some key guiding principles under which the office would operate. I was determined to develop a stable, independent and effective regime with the minimum of rules. My aim was to put in place simple procedures which were clearly expressed, publicly available and enforced consistently and fairly. I soon understood, [however,] that it was not going to be easy to make the adjudication process simple and straightforward in the context of the varied caseload which began to flow in involving life and investment insurance contracts which are, in themselves, complex legal documents. One of the most fundamental principles of "ombudsmanship" is openness. It is critical that an Ombudsman adjudicates in as open and as transparent a manner as possible. I endeavoured to establish an investigative approach in reviewing the cases in a manner which is neither intrusive nor bureaucratic. I was determined, at the outset, to explore every opportunity provided under my terms of reference to bring the parties to an amicable resolution of a dispute without my having to make a formal adjudication. Some of the challenges were clearly defined in the early days. I was faced with the need to manage the transition from an environment in which there was no Ombudsman to an environment in which the office of Ombudsman was established exercising authority over an industry from which it was necessary to generate respect under the glare of a sceptical media and wary general public. In view of the fact that my founding budget made no provision for public relations or advertising the task was a daunting one. [And] in common with most private sector Ombudsmen, I faced the double-edged sword, on a daily basis, of suspicion from some quarters of the industry, of consumer bias, and from some journalists who viewed the office as a public relations exercise or whitewash on behalf of the industry . . . Of course, the existence of an Ombudsman is not going to cure all ills and eliminate all causes of conflict and grievance between customers and service providers. It has often been pointed out to me, by the insurance industry, that in spite of what appears to be a mounting caseload, the number of cases referred to me represents a small fraction of the business written in the insurance market. Whereas I take no step to challenge this submission I have questioned the industry's commitment to "spreading the news" about the Ombudsman and providing the necessary information to policy holders of their right of redress . . . It is now well established that in order for an Ombudsman scheme to serve the public, the right to complain to the Ombudsman should be adequately publicised by those subject to complaint. The details of the Ombudsman scheme should be percolated down through the various

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departments of the member companies to the "front of house" personnel who should be familiar with the scheme, the terminology and the procedures involved . . . There can be no doubt that the service providers in a private sector Ombudsman scheme who fail to take account of the need to demonstrate their commitment to and trust in the Ombudsman scheme will lose out on the significant opportunity of gaining respect from the customer base which they serve. Competition is the best means of delivering improved services to customers and the existence of an Ombudsman plays a significant role in encouraging and facilitating competition. A competitive edge will be gained by participating member companies who have committed resources to improving standards of customer care and training personnel. Where competition exists it should work to the benefit of customers . . . As Ombudsman I am entrusted to be fair in all my dealings with both the company complained against and the complainant. In order for the scheme to be viable, to have credibility and clout, a substantial degree of confidence must flow from all quarters in relation to the autonomy and independence of the Ombudsman . . . Independence, in real terms, is crucial to the performance of the role of Ombudsman. A fundamental criterion of independence is that an Ombudsman must be truly accountable to the general public. [In this regard] I report to the Insurance Ombudsman council on a quarterly basis providing operational data and management accounts for the previous quarter. The running expenses of my office are funded by a levy on the insurance industry and it is the responsibility of the board to call in those levies and to keep the Ombudsman in funds. [In addition] through the annual report the Ombudsman reports on the "nuts and bolts" of the work of the office and lays this report, at a press conference, before journalists and the public for scrutiny, assessment, analysis and evaluation. The launch of the annual report is [in fact] the moment of reckoning from which the various "publics" being served by the Ombudsman can make a judgement as to the worth and effectiveness of an Ombudsman. I truly believe that the publication of the Ombudsman's annual report is a vindication of the transparency and openness and integrity with which the office is run. It is the defining moment when the Ombudsman renders account for her stewardship of the office. Whereas constructive suggestions and contributions may be offered from the council in relation to the report before it is written, it must be well-cast in the foundations of private sector Ombudsman schemes that the Ombudsman is free to report unfettered and uncensored. [After all] [decisions made in relation to cases referred to the Ombudsman may have wide-ranging implications for stakeholders in the insurance market and for the recipients of its services and products. The principle of Ombudsmanship is widely celebrated. The application of that respected concept to the private sector could render the office vulnerable and fragile. In order to buttress the viability and integrity of industry sector schemes, it is necessary that the bona fides are intact. A substantial amount of commitment and resoluteness is needed in ensuring that "checks and balances" are applied to prevent a lapse from the objectives. In order to ensure that the Ombudsman is fully independent and autonomous, the councils of private sector schemes must be vigilant in preventing any chink in the armour admitting influence or control over the Ombudsman. The balance of industry sector representatives on the councils of private sector Ombudsman schemes is recommended to be a noticeable minority. It

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is a widely held view that the councils in private sector Ombudsman schemes should not be self-perpetuating. I endorse this view . . . [As well] the British and Irish Ombudsman Association (BIOA) has recently reviewed the rules applicable in validating private sector schemes and thereby provides a safeguard against the proliferation of sham and bogus schemes which would denigrate the term "Ombudsman" and invalidate the concept of private sector schemes. [In addition to BIOA's criteria, it has been argued that] [i]n the absence of any statutory framework . . . that the presence of an official from the relevant government department, on the councils of private sector schemes, could provide an additional safeguard of ensuring that the Ombudsman is adequately funded, unfettered and uncensored. [Finally] [t]he terms of reference under which [an] Ombudsman operates should be meaningful. The separation of powers must be duly monitored, so that there is no imbalance or interference in the internal running of [an] Ombudsman's office. The appointment or re-appointment of [an] Ombudsman should not be influenced by the relevant industry. [A council must be vigilant in its] commitment to and support of [its] Ombudsman and the independence of the office holder . . .

New Procedures MICHAEL HARRIS (ED.)

Introduction VER seventy years ago, when the growth of the administrative process was already forcing us to reconcile the claims of administrative justice with an appropriate freedom for the proper exercise of administrative power in the public interest, Felix Frankfurter, the great American jurist, expressed the problem thus:

O

"[It is] idle to feel either blind resentment against "government by commission", or sterile longing for a golden age that never was. Profound new forces call for new social inventions or fresh adaptations of old experience."1 In this Chapter we present, with the authors' agreement, extracts from three papers presented at the Bristol Conference, each of which provides good evidence of Frankfurter's perception of the problem. Each presents an account of a mechanism designed to provide a remedy against abuse or excess of administrative power. On the other hand, each represents a departure from well-tried curia) or tribunal paradigms. The first example presented here is of an internal review procedure replacing external review by a tribunal, with the added twist that the "hearing" is not oral, but "on the papers'. Whether such an approach is capable of adequately meeting the demands of administrative justice is the main theme developed by John Scampion in his paper "The Use of Review in the Administrative Justice System: The Experience of Social Fund Reviews" (hereinafter referred to as "Scampion"). Next we have an account of the office of adjudicator. The appointment of someone from outside a government department to oversee its internal complaints procedures represents a novel approach towards ensuring that those procedures are in fact providing an adequate quality of administrative justice for clients who complain. The office of adjudicator is examined in the 1 "The Task of Administrative Law", (1927) 75 Univ. Pa. L. Rev. 613 at 617 (emphasis supplied).

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paper by Andrew Rein and Christine Lally, "The Role and Function of the Adjudicator's Office" (hereinafter referred to as "Rein and Lally"). Finally, we have the independent monitor. This is an intriguing alternative to the traditional mechanism of providing an external appeal in such largevolume areas as the refusal of visas, whether for permanent or temporary entry into the United Kingdom. Principally concerned with systemic review, yet still able to effect remedial action in individual cases, able to select cases rather than have them initiated by a complainant, this office is truly a "hybrid" of a number of existing approaches as Dame Elizabeth Anson suggests in her paper, "The Work of the Independent Monitor" (hereinafter referred to as "Anson"). The papers, therefore, testify to the importance of "new social inventions" (Scampion, Rein and Lally) as well as to the need for "fresh adaptations of old experience" (Anson) of which Frankfurter so presciently wrote. We should now examine in more detail what they have to say on these and related themes.

1. Internal Review The basic question addressed by Scampion is whether internal review can provide a satisfactory quality of administrative justice. In the context of the Social Fund there is a perception that it cannot. The reasons for this view are first, its perceived lack of independence; secondly, that the review puts aside orality in favour of a review "on the papers'; and thirdly, that there is no further review in the form of an external appeal. Scampion, on the other hand, believes these criticisms to be misplaced. According to him, internal review can be both efficaceous and appropriate provided there is accountability and a willingness to learn from experience. At the same time we should avoid showing undue reverence to our preconceptions of what constitutes fair administrative adjudication. Thus, echoing Frankfurter, Scampion sees the internal review process of the Social Fund as "a new and distinct form of administrative justice . . .". And as the Social Fund Commissioner he is dedicated to "tr[ying] to make it work in the interests of those whom it serves".

A. The Background to the Changes of 1988 Scampion begins by describing the socio-political background to the introduction of this important change to the social security review system This was the introduction of a new version of the Social Fund in 1988: . . . I must explain something of the Social Fund. It was heavily criticised in 1988 when it was introduced as the new version of the social security safety net [in the form of] payments to support those unable to manage on benefits on account of disability, health or other pressures. It was a major shift in emphasis from the

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scheme it replaced—single payments for specific items of need. The policy aim was straightforward. It was to reduce overall programme costs. And Social Fund did that effectively through cash limits—then relatively new and a heresy in social security and social services but now a more orthodox feature of public expenditure control. The old scheme was demand led. Persons eligible for payments would get them. Decisions were essentially adjudications interpreting regulations. As soon as some of the growing local authority welfare rights organisations began to measure their effectiveness by the amount of money levered into cities in highly effective benefits campaigns the programme costs rocketed. The new scheme was budget dominated. Persons eligible could have help to meet certain directed needs particularly to support the overall object of caring for people in the community rather than in institutional care. But only so long as such help was within budget. To exceed the budget within the Agency was simply unacceptable. There were two immediate consequences. First [the] Social Fund became deeply unpopular because of programme cuts although in government spending terms highly successful. Second, discretion replaced regulation. Benefit Agency officers had to make judgements based upon need as measured against the budget available. They had to make decisions on priorities for people by weighing a range of factors, a more difficult evidential task than under the old system. This was the "discretionary" element of the Social Fund scheme, seen by some as a need to make subjective value judgements . . .

B. The Social Fund and the Review Process Next Scampion describes the distinguishing characteristics of an internal form of review: . . . A new appeal process replaced the full tribunal appeal rights under the old single payments. A review by Social Fund inspectors was devised. It was a paper review with no right of audience. A Commissioner was appointed: not a civil servant but appointed by the Secretary of State for Social Security and it was his responsibility to appoint and train inspectors. And this scheme had a baptism of (ire. It was deeply criticised by the Council on Tribunals and academics alike: specifically because of the loss of right of audience and its apparent lack of independence; but probably also because it was new and was different. The review has [at least] six distinguishing characteristics: 1. It is by inspectors working to targets. They are administrators within [the Commissioner's] organisation at the HEO grade although a good number are in fact lawyers. 2. [It is] a paper review. 3. [Inspectors] have to carry out a two pronged test on Benefits Agency decisions: [legality (judicial review) and merits . . . ] 4. There is no other appeal except through the courts. 5. . . . Inspectors have an inquisitorial duty to find information. 6. [Inspectors] are accountable to the Commissioner as to quality of decision making and time . . .

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C. The Strengths of Internal Review Scampion goes on to describe what he perceives as the strengths of this form of administrative review: . . . The time, turnaround and quality standards of an inspector's review are apparent and can be extensively and . . . effectively monitored. Because they are administrators or executives they can be made accountable. Making accountability real, [i.e.] making inspectors deliver our standards, is the key focus of our organisation. The judicial review test [i.e. was the decision lawful] is not easy to the nonlawyer. But it has been shown to be within the competence of trained executives to handle . . . Judicial review by the courts of course is the ultimate protection for the citizen. The decision makers are experts; they know the system well. They are familiar with the nuances of discretionary decision making within the Social Fund and they can be relied upon to make fully informed, authoritative and expert decisions. They are not beyond the range of human frailty, of course. [Finally,] our costs have been proved to be well under those incurred by the more traditional systems . . .

D. An Assessment of Internal Review Finally Scampion offers a dispassionate assessment of the review process he is charged with monitoring. H e concludes that it is not only appropriate to the specific context of the Social Fund, but has the capacity for extension into other areas of the administrative process: . . . What we aim to do is to develop a process which is responsive to the needs of the programme it serves and the customers served by that programme. We listen to them and have set up processes to take note of what they say and what their representatives say. We believe a customer expects clarity, wants fair treatment, wants to be able to understand a decision and to have it quickly. And so we have adapted our approach to provide for these expectations. Above all [customers] need to have a decision which is right first time. They do not want a review at all. So by developing a flexible administrative machine working through accountable executives we can listen and we can respond and adapt. And why should [not] an organisation whose business is administrative justice do just that? Our most significant expression of this rationale has been the process of feeding back. The process of validating the work of decision makers and of the advisers who work for applicants . . . . . . If I am advocating anything arising from my experience it is flexibility of approach to reviews and appeals. Social Fund decisions are made on questions of urgent need but not on matters which are in a fundamental sense life-changing. If your family is under pressure and you need cooking facilities or bedding you need them now. If you get them the urgency of that need has passed but your life patterns are in the main unaltered. The review decision is a response to the imperatives of

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this scheme. It is a decision which is clear, well-focused and given quickly. And it works. It operates independently; it follows rules of natural justice and is responsive. It is a contemporary example of the flexibility of review appeals processes . . . [. . . Can the system operating in the context of the Social Fund] be expanded and developed? . . . I have cited the feature which I think most gives this system its contemporary relevance and best meets expectations—accountability. The work by inspectors can be effectively and comprehensively monitored: they can be targeted and are targeted in close detail both on quality [of] decision making and on time. And [the Commissioner is] re-accountable to Parliament through the Secretary of State through the vehicle of [his] annual report on the standards of inspectors review and on its cost effectiveness . . . Decision making by non-lawyer executives, particularly with no in-built right to a hearing has limitations. But the appeal system might benefit from a greater range and flexibility of process and if a system works use it. [Moreover, the] system [operated in the area of the Social Fund] could be extended to other areas of appellate decision making where judgements have to be made which are not life forming and where the decision calls for in-depth expertise in particular administrative areas. More interestingly it might be combined with more traditional systems . . . [Thus] a review by an investigative inspector might be used alongside a more traditional courtroom-based process to deal with those issues which do not admit to serious doubt on law or interpretation of evidence. I am sure there are many variations of this theme. I simply think we are limited only by our imagination and our resourcefulness.

2. The Role and Function of the Adjudicator's Office The office of adjudicator is an intriguing response to the problem of agency accountability and is the subject of the paper by Rein and Lally. Essentially it seeks to combine the inquisitorial role of an ombudsman and the "softer" approach of a mediator. The first Adjudicator was the Revenue Adjudicator, appointed by the Inland Revenue in response to the injunction in the 1991 Citizen's Charter that public organizations should have ". . . [a] well-publicised and easy-to-use complaints procedure with independent review wherever possible." The original remit has since been extended to Customs and Excise and the Contributions Agency of the Department of Social Security. This is reflected in the change in the name of the office from "Revenue Adjudicator" to "The Adjudicator's Office". Central to its task is the investigation of the way in which the internal complaints mechanisms of the various agencies have dealt with complaints from the public. A. The Role and Remit of the Adjudicator Defined Rein and Lally initially describe the essential functional aspects of the office: [. . . The Adjudicator] considers allegations of poor handling—i.e., such matters as delay, mistakes, the attitude and behaviour of staff, misleading advice, and the

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exercise of discretion (except where there is a statutory appeal route). She does not consider disputes about the interpretation of the law or about tax liability, nor does she look into complaints about government policy or complaints that have been investigated (or are being investigated) by the Parliamentary Commissioner for Administration (PCA). And the Adjudicator always gives the organisations an opportunity to settle a complaint before she takes it up for investigation . . . . . . In addition to acting as an impartial referee in resolving complaints about handling matters, the Adjudicator fulfils two other important roles. First, she feeds back better working practices to the government departments she investigates. The Adjudicator has regular meetings with board members of the Inland Revenue and Customs and Excise, with the chief executives of the Contributions Agency and the Valuation Office Agency (which is part of the Inland Revenue) and with the senior managers responsible for the major* executive units in these organisations. We produce quarterly reports for the three organisations in which we raise issues we think they will find helpful in their work on complaints handling and operational practice. We include summaries of cases which we believe highlight good and bad practice. We also publish a detailed annual report. Secondly, the Adjudicator's Office helps people to use the three departments' internal complaints procedures. We receive many complaints or queries from members of the public who have not yet exhausted the relevant department's internal complaint procedures. In these cases we help people clarify their complaint, direct them to the appropriate office, explain what they need to do, and tell them that they can come back to us if they do not receive satisfaction . . .

B. The Resolution of Complaints The authors identify some of the problems of a dual role and go on to describe the Adjudicator's modus operands: . . . We resolve complaints either by recommendation or by mediation . . . About one-half of our investigations are settled [by recommendation] . . . Where possible we try to mediate a settlement of a complaint by discussing the complaint with the relevant organisation and with the complainant and encouraging a fair settlement. We find that resolving disputes in this way is often quicker, and hence cheaper, and can lead to a better working relationship in future. About 40% of our investigations are settled by mediation. When we receive a complaint we ask the relevant executive office to send us a report. This report consists of their detailed response to the complaint, explaining why they feel they are unable to uphold it, or, where appropriate, giving their proposals for a mediated settlement. We also ask them to send us the relevant tax files and their complaints file, which contains the correspondence about the complaint. We then examine all these papers and any other available evidence, and try to reach a view on the complaint. If we feel we need more information we will ask for it. We might, for example, invite the complainant or an official to a meeting. We then decide whether there is scope for a mediated resolution of the complaint or whether the Adjudicator should issue a recommendation. The strengths of our way of working are, we believe, that we can cover a mass of factual detail relatively quickly and cheaply. But one of the more challenging

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aspects of our work stems from the different roles that we play—that is, as mediators on the one hand and as inquisitors on the other. A successful mediator must have the trust of both parties. Otherwise, it will be virtually impossible to bring both sides together or to persuade them that matters have been dealt with impartially. But this can create a conflict with the role of the inquisitor who must on occasion ask awkward questions . . . One has to remember that a person whose complaint has reached the Adjudicator's office has already had his/her complaint rejected at each level of the department's internal complaints procedure. So he/she already feels that no one believes his/her account of things. If one puts sharp questions to him/her one runs the risk of undermining his/her confidence in the impartiality of our investigations . . .

C. Redress and Implementation Next the author addresses the critical question of the office's remedial effectiveness: . . . The Adjudicator may recommend [a number of things:] that a department apologise; that, under their own rules for doing so, they give up tax or interest; that they pay compensation (including consolatory payments for worry and distress); that they reconsider a decision reached on a matter within their discretion, or that they reverse such a decision, or that they take appropriate management action to prevent the recurrence of a particular type of error . . . All three government departments have agreed to implement the Adjudicator's recommendations in "all but exceptional circumstances". To date they have implemented all the Adjudicator's recommendations. The sanction for failure to implement a recommendation is publicity and potential criticism of the relevant department by consumer organisations, professional bodies, Members of Parliament etc. The Adjudicator has said that if a government department rejected one of her recommendations she would carefully reconsider the matter but that, if she saw no reason to change her recommendation, she would immediately call a press conference and give wide publicity to the matter . . .

D. Independence Inevitably people will wonder whether an office which has no statutory underpinning can offer a truly independent quality of review. The authors offer the following thoughts: . . . Some people question the independence of the Adjudicator . . . The Adjudicator believes that her (separate] contracts with the three government departments demonstrate her independence in that they give her considerable freedom in the way she runs her office, prevent interference by any government department in her decisions and prevent her from being dismissed other than for gross inefficiency or serious misconduct. She also . . . thoroughly checks and approves every recommendation that she sends out. The Adjudicator believes that her track record is proof of her impartiality. In 1996/97 we completed 677 investigations. Of these, approximately 80% were Inland

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Revenue cases, 12% Customs and Excise cases and 8% Contributions Agency cases. Overall we partially or substantially upheld 48% of the cases we investigated (45% of the Inland Revenue cases, 45% of the Customs and Excise cases and 80% of the Contributions Agency cases.) Our average time for completing an investigation was 7 months. The percentage of cases upheld has declined from 64% in the first year of operation to the current 48%. The Adjudicator sees this as the result of our success: Departments are getting better at resolving complaints. There is also the "Adjudicator over your shoulder" factor. Departments now know that they cannot get away with fobbing off a complainant and they have acquired a keen sense of the way the Adjudicator will regard their actions if they attempt to deal with a complaint in such a manner.

3. The Independent Monitor Model Anson's paper describes the work of the independent monitor appointed under s. 10 (3AA) of the Asylum and Immigration Act 1993. A. Background Anson begins by describing the political context out of which this office was born: . . . Until July 1993 there was a right of appeal in UK cases and also against decisions at British embassies and consulates overseas to refuse visas both for permanent settlement (marriages etc) and temporary reasons (students, visitors etc). For visits of six months or less there were 70-80,000 refusals and about 20,000 appeals and approximately 1,800 a year were allowed. In the Asylum and Immigration Appeals Bill of 1993, it was proposed to withdraw the right of appeal to these refusals of visas of six months or less, and disquiet was expressed from both sides of the House of Lords until it was agreed to include in the Act (s. 10(3AA)) the appointment of an "independent monitor" to monitor annually the refusals overseas where the right of appeal had been withdrawn . . . B. The Work of the Independent Monitor Next Anson provides a description of the essential elements of the job: [. . . In the performance of this office I am] assisted by the Migration and Visa Division (MVD) of the Foreign and Commonwealth Office (FO), who arrange for the 1,800 randomfilesselected by me to be sent from overseas posts: and arrange my annual trip abroad and the printing of my annual report . . . . . . I monitor the way applications are approached with special regard to the Citizen's Charter, and the legal correctness of any refusal decision. Since July 1993 in all refusals without the right to appeal I have insisted readable reasons must be given on the refusal notice. Legally [an] entry clearance officer (ECO) has to be

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satisfied that the applicant is intending to go to the UK for a visit for the period stated; that he/she does not intend to work in the UK or be dependant on public funds; can pay for his/her trip; and will leave the UK at the end of the period stated. The British system is to use only UK based personnel for these interviews and decisions, and to train them not only to know the law, but also the customs and economic and political situation in the country where they are ECOs. There is no "right" to visit, but I consider there is a right to be informed of the requirements of the law and that comparable decisions should be made across the world. In practice all the pressure on an ECO is to grant a visa: and out of 1.4 million applications for temporary visas only 70,000 are refused .. . . . . I do invite Members of Parliament to write to me over their problems and incorporate their concerns in the following report and I also keep in contact with immigration practitioners . . . and others concerned with the application of the immigration [legislation] on visit applications . . .

C. An Assessment of the Effectivness of the Office Anson goes on to address the question of the impact the office has had on the administrative area concerned: . . . What impact has my monitoring had on the system} From my random sample each year I have found the whole decision making process greatly improved from 1993. Of course there are some (but few) decisions wrong legally, and a greater number that cause me concern—mostly family cases from the Indian sub continent. I hope my reports have informed not only Members of Parliament (MPs) and [legal] practitioners but also ECOs of the standard of knowledge and behaviour required by [the government]. Obviously there are many complaints over individual cases but only some of those are justified when you can see all the papers in the cases. I would be happy to have a wider independent monitoring role in a limited number of emergency cases . . . The internal review aspect has been very helpful and I have been invited to address some of the training conferences, particularly those for entry clearance managers. The appeal system between 1973 and 1993 had been unwieldy and often appeals against a short three week visit had not been heard for two years, and then usually "on the papers". I see the whole file when I call in my random sample and I insist it is sent "warts and all"—I am interested not only in the reasons for refusal but the attitude at interviews, queues etc, information given. Should [for example] interviews be tape recorded? [Next, on the question of reviews,] if you review a year's work in the next year and report at the end of that year, both your "audit" and suggestions and recommendations will not be in place to effect future behaviour till well into the following year. I have [therefore] tried to speed up my annual reports so that they are published before Parliament rises at the end of July, but of course I can have no official effect on individual cases being tackled by MPs . . . . . . Looking [finally] at "value for money"—[e]conomy, [efficiency and [effectiveness as considered by the Audit Commission—the independent monitoring system has been very cheap compared to the many millions of pounds required for judicial appeals. It is more efficient each year in picking up the deficien-

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cies that arise, especially since the reports now are published in July. I hope they are proving helpful to MPs. Monitoring has been effective primarily in smartening up the procedures, in helping the F O to identify management problems, and in training officials and keeping them up to date with judicial decisions . . . D. Conclusions Anson concludes inter alia by pointing up the unique "hybrid" character of the office—first as a systems monitor, but secondly, having the ability to highlight individual injustice: . . . [In the first place I am a) "hybrid"—neither an internal reviewer [nor] a judicial appeal. I select the sample and therefore I am not an ombudsman. I am independent of government or department and report to Parliament. [However,] my annual report goes through the Secretary of State for Foreign and Commonwealth Affairs who places it "on the table". Copies are [made] available and in 1997 each member of the House of Commons was sent one. Nevertheless in administering my monitoring [role] I depend on the co-operation of MVD and I have always been assisted ably by officials both in UK and overseas. [Secondly] in practice the [MVD] has always wanted to know of my concerns and address those matters as soon as possible, both directly and in its vastly expanded training programme. I am monitoring the system and procedures rather than individual cases, although over the years I have alerted officials to problems identified in individual cases . . . . . . [In conclusion, while] the Independent Monitor has limited p o w e r s , . . . I hope I have used those powers more effectively each year. A number of complaint procedures exist, as well as the monitoring [process] but immigration advisers are still pressing for the return of the old appeals system in use before 1993, and today that would probably mean an extra 50,000 appeals a year. Personally I have found most of the problems arise in a limited number of types of cases, [although] I also feel there should be a limited "fast track" procedure. I hope I have helped to make the present system, where there is no right of appeal, respond better to the government requirement that it should be '[f]air, [f]irm and [f]ast\

10 Complaint Handling By Solicitors: Practice Rule 15 - Waving Or Drowning? CHRISTA CHRISTENSEN, SUZANNE DAY AND JANE WORTHINGTON 1. Introduction1

C

ONSUMERS of goods and services are increasingly being encouraged to complain to the providers of those goods and services when they do not meet the reasonable expectation of the consumer.2 The factors which have influenced this encouragement are complicated and beyond the scope of this paper. For present purposes it suffices to recognise that what some commentators refer to as a "complaints explosion"3 has taken place in recent years. Principles of "best practice" in relation to complaint handling are being recognised through the work of bodies such as The Citizen's Charter Task Force which published its Basic Principles of Effective Complaints Systems in October 1993. The present government is committed to continuing the work of the Task Force and has recently re-launched that initiative. 1 This paper is based upon research undertaken by the authors in 1996 and 1997 funded by The Nuffield Foundation. This is a revised version of material presented by Christa Christensen at the Conference. The authors owe a great deal to the assistance of a number of individuals. We would like to thank in particular Professor Gwynn Davis of the Department of Law, University of Bristol, for his guidance in the undertaking of the research and in the preparation of this report. We would also like to thank Professor Martin Partington of the Department of Law, University of Bristol, for his support and assistance; all of the participants in the study, solicitors and clients alike without whom none of this would have been possible; and Peter Ross, Peter Johnson and Andrew Baker of the Office for the Supervision of Solicitors (OSS) for the provision of information and for taking their time to discuss the research with us. 2 Much of the consciousness raising in this area arises from work done in the public sector. See for example the Citizen's Charter Task Force established in June 1993 to review public service complaint systems and to encourage their improvement by the adoption of Citizen's Charter principles, and see further in this collection A Page, "The New Administrative Law, the Citizen's Charter and Administrative Justice". 3 See in this collection T Williams 6c T Goriely, "The Citizens Charter and the Complaints Explosion".

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A. Complaint Handling by Solicitors This "complaints explosion" has been and will continue to be very relevant to the solicitors' profession. As solicitors' clients are the consumers of legal services they increasingly expect to be able to complain when dissatisfied about the service provided. This has created a tension within the profession because historically it has not displayed a willingness to accept the validity of criticism or judgement by non-lawyers. The Law Society, however, recognises the importance of meeting consumer demand and is eager to inculcate a culture within the profession which will allow the legitimate needs of both solicitor and client to be addressed when a client complains. The then President of the Law Society wrote in May 1997: "The public's perception of what amounts to a first class service has changed radically. Fifty years ago, none of the professions had to work to gain the respect of the public or their clients. They operated in a climate of deference. The simple reality is that those days are gone and we must adapt to the fact."4 Adaptation to a service culture within which mechanisms exist to facilitate client complaints are of critical importance to the future of regulation by the solicitors' profession. Complaint handling is one of the facets of the selfregulatory responsibilities placed in the hands of the Law Society.5 It has traditionally been regarded as one of the "hallmarks" of a profession6 and solicitors guard the maintenance of all self-regulatory obligations very closely.7 The problem for the profession and the Law Society is how to establish the structures and culture necessary to create and maintain the confidence of the public and of those charged with determining whether the profession adequately discharges its self regulatory responsibilities and should be permitted to continue to do so. There is a view that there is insufficient real and perceived independence between the Law Society and the OSS for the public to have confidence in this structure and therefore for continuing selfregulation to be sustained.8

4

Foreword to Keeping Clients. A Client Guide for Solicitors (OSS, 1997). It delegates its regulatory powers to the Office for the Supervision of Solicitors (OSS). * See for instance R Abel, The Legal Profession in England and Wales (Blackwell, 1988), pp 29-30. 7 The chairman of the Law Society's compliance and supervision committee commented in the Law Society Gazette 8 October 1997: "At the heart of the system is the expression of disapproval against a solicitor by his peers. Despite what's said about self regulation not being justifiable, matters of solicitors' conduct can only sensibly be arbitrated upon by solicitors". 8 New Law Journal Editorial August 25 1997: "We and others have said before that if the Society does not establish a clear and apparent division between itself and the OSS then the Government will do it for them." 5

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B. Office for the Supervision of Solicitors (OSS) OSS came into existence in September 1996 as a successor to the Solicitors' Complaints Bureau (SCB). The SCB had itself been set up in 1986 following growing public alarm at the way in which the Law Society had been dealing with complaints. 9 The Law Society commissioned an independent review of its disciplinary procedures 10 in 1985. This recommended the transference of all disciplinary powers to an independent statutory authority.11 The Law Society did not act on this recommendation and opted instead to establish the SCB as a body located in premises physically separate from the Law Society and yet still remaining an organ of it. However, in due course the SCB was severely criticised by the National Consumer Council (NCC), 12 which advocated the abolition of the SCB and the establishment of a truly independent Legal Service Complaints Council. The Law Society responded to this criticism by the creation of OSS in September 1996. However OSS continues to operate from the same premises occupied by the SCB and although under the stewardship of a new Director its "rebirth" has failed to silence the critics of the old SCB.13 How long OSS has to "prove" itself is presently not clear. The rebirth of SCB as OSS has undoubtedly bought some extra time for the organisation. It will eventually be judged on its performance and on whether it gains the confidence of the public and the profession which was so lacking in its predecessor. Geoff Hoon, then the junior minister at the Lord Chancellor's Department, commented in November 1997 that "[t]he department has no plans to create a new complaint handling body . . . I agree with the Legal Services Ombudsman that it will take two to three years before the OSS can be properly judged by results."14

C. Legal Service Ombudsman (LSO) The LSO is appointed by the Lord Chancellor with a brief to oversee the handling of complaints against solicitors. The LSO reports annually to 9 This came to a head in 1983 following a complaint made against a member of the Law Society Council, Glanville Davies. The complainant was not satisfied with the refusal of the Law Society to discipline Mr Davies despite a reduction by them of his bill from £197 000 to £67 736. Following the complainant's subsequent action in the High Court for judicial review of the Law Society decision Mr Davies was struck off the Solicitors [ie solicitors'] Roll for gross and persistent misconduct. 10 By Coopers & Lybrand. 11 (1985) 82 Law Society Gazette p. 2728. 12 The Solicitors Complaints Bureau: A consumer view, NCC Report, O Hansen (1994). 13 The past president of the Law Society, Martin Mears, writing in the New Law Journal (letter, October 24 1997): "what a good wheeze it was to change the name! The "under new management" defence will keep the critics at bay for another four or five years whereupon . . . there will be a further reorganisation and name change and we can start all over again". 14 Law Society Gazette, 10 December 1997, p. 12.

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Parliament. In his Fifth Annual Report" the LSO flagged up the importance of both the changes being proposed at the time by the Law Society to the SCB, and the effectiveness of solicitors' in-house complaints procedures (under Practice Rule 1516) to the maintenance of public confidence and thus continued self-regulation by the solicitors' profession. The LSO particularly advocated that the SCB or its successor should be doing more than simply monitoring compliance with Practice Rule 15. In his Sixth Annual Report17 the LSO could say little about the new OSS as it had only existed for a matter of months at the date of the preparation of the report. His message was however upbeat observing that he was looking forward to "tangible" change. In her Seventh Annual Report18 the new Legal Services Ombudsman, Ann Abraham, comments that the OSS "still has a long way to go". She also recognises the importance of in-house procedures following the decision of OSS, announced in January 1998, to refer all complaints back to firms, to be dealt with under their PR15 procedures, in the first instance. "This last initiative is potentially the most important and far reaching development of all. It places responsibility for first instance complaints handling firmly where it belongs— with the firm; and introduces penalties to ensure that solicitors take that responsibility seriously".

D. Practice Rule 15 (PR 15) Solicitors are governed by the Law Society in their supply of legal services by, amongst other requirements, a number of practice rules. PR 15 requires all solicitors to "operate a complaint handling procedure which shall, inter alia, ensure that clients are informed whom to approach in the event of any problem with the service provided." PR 15 became effective in May 1991. It was implemented to encourage solicitors to provide better client care, but also due to the overwhelming workload upon the SCB at the time. The SCB simply could not cope with the volume of client complaints it received. A client may complain in the first instance directly to the firm and have the complaint dealt with by the firm's own inhouse procedure. Alternatively, a client may complain in the first instance to OSS. However with effect from 1 May 1998 all complaints will be referred back to firms to be dealt withunder PR 15 procedures. The requirement to operate a complaint handling procedure within firms has not been viewed positively by the profession.19 The more positive "client IJ

Presented in June 1996 for the year to December 1995. See 2.5 below. 17 Presented in June 1997 for the year to December 1996. 18 Presented in June 1998 for the year to December 1997. 19 As one of the complaint handlers in sample 1 commented: "The truth about PR 15 is that it was an idea of the then president of the Law Society to stem the overwhelming 16

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care" or "management tool" message appears not to have been widely embraced. There have been several studies since 1991 which have sought to determine the level of compliance with PR 15 and how the procedures in place have been viewed by clients. 20 These demonstrate that between 20% and 40% of firms claim not to have a complaint handling procedure. Of those that do have a procedure just under 50% do not believe it beneficial to the firm. Half of those who had made a complaint felt their solicitor did not listen when they did complain and were no use at all. Only 8% believed their solicitor did something to resolve their complaint. These findings present a bleak background to the apparent importance of the establishment of effective inhouse procedures felt by observers such as the LSO and the ongoing debate regarding whether the Law Society will be permitted by the government to retain its self-regulatory responsibilities.

2. The Research There was thus an apparent discrepancy between the motivation and expectation of clients and that of firms in relation to in-house complaint handling. It might, therefore, be expected that neither party would be satisfied with the process and that the process of complaining might in itself increase client dissatisfaction. Furthermore it was not known what these in-house procedures actually comprised (as distinct from what is recorded in an office manual), and the level to which they have encouraged a "culture" of client care at practice level. Was it simply that the letter, rather than the spirit, of PR 15 was being adhered to by those claiming compliance?

A. Aims of Research The research for this paper sought to gain a fully rounded and in-depth view of the perceptions and opinions of all parties involved in in-house complaint handling. The authors wanted to understand what sort of operational problems existed. We looked beyond what solicitors said they were doing and examined their actual complaint handling practice. We also gathered the clients' views of these procedures. In addition we wanted to gain an insight into any barriers to mounting tide of complaints. The Law Society could not and cannot provide a complaint handling department which provides a management function which ought to be provided internally. This was a bureaucrat's solution which was badly sold to the profession and only latterly is PR 15 being presented properly as a management tool". 20

See: Client Perceptions: Existing and potential clients' experiences and perceptions of using a solicitor for personal matters, Law Society RPPU Study 17; Quality of Solicitor's Practice Management, Law Society RPPU Study 10; N Harris, Solicitors and Client Care. An aspect of professional competence, NCC 1994; Complaints against solicitors: The complainants view, Law Society RPPU Study 19; R James and M Seneviratne, (1996) Consumer Policy Review Vol. 6 No. 3 May/June, p. 101.

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effective in-house complaint handling by examining the perceptions of all players involved in a number of real complaints. These views have not been systematically gathered. Given the large numbers of solicitors and clients it would have been impossible to do so. 21 We have sought to take a snapshot of these views within the sample of firms who participated in this research. B.

Methodology

a. General Approach The research involved a study of in-house complaint procedures and a qualitative case-based study of complaints within sixteen solicitors' firms over a fifteen month period between October 1996 and December 1997. The fieldwork was carried out between October 1996 and July 1997 and the analysis of the fieldwork together with the report writing was carried on thereafter. The authors aimed to understand the processes through which complaints travelled in the sample firms and to gain insight into the perceptions of those processes from all parties involved. At the start of the research it was envisaged that there would be six firms of solicitors participating, all of whom had already indicated that they would allow access to their complaint handlers, complaining clients and solicitors who had been complained of. b. Sampling Problems Two problems surfaced fairly early on in the initial interviews with the complaint handlers. Firstly it became apparent that the designated complaint handler in the firm was only dealing with a small proportion of the complaints received within the firm. The authors were examining the "tip of an iceberg", the size of which they could not measure. The complaint handler operated the "formal" process which would usually involve him keeping a record of a complaint and its outcome and occasionally being involved in the complaint resolution. However, the majority of complaints were dealt with directly at departmental level or by the solicitor complained of. Records of such complaints (what they were about and how they were handled) were kept on the client file (if at all) and were never recorded or reflected in the complaint handler's "formal/central" file. The "formal/central" register maintained by the complaint handler, therefore, appeared to be a "showcase" (available for inspection for instance by the Legal Aid Board), and not an accurate reflection of the total number and type of complaints entering the firm and how these were responded to. The complaint handler, although aware that there were additional complaints within the firm, knew little or nothing of what had caused them, or how they had been dealt with. Secondly, it became apparent that three of the original sample of six wished to alter their original commitment to the project. One firm was dissolved and 21 There are 8,842firmsof solicitors in England and Wales. Figure provided by the Law Society RPPU as at 31 July 1997.

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could no longer participate. One firm indicated that it no longer wished to allow the authors to contact clients for fear of possibly re-activating the complaint. One firm, having agreed a sample of complaints, failed to respond to any further communication. The authors, therefore, created a further sample of firms which allowed both of these problems to be dealt with positively. They split the sample of firms into two. Sample 1 comprised the sample of firms who allowed full access to complaining clients. Sample 2 comprised the sample of firms who allowed access only to their complaint handling partner and thereby their procedures. The authors "recruited" three further firms into Sample 1. Given that three firms could or would not allow access to their clients this was necessary to ensure that there were still six firms in this sample. The three firms who had withdrawn from client access were reallocated to Sample 2. A further seven firms were "recruited" into Sample 2. The firms (Samples 1 and 2) were drawn from Bristol, Bath, Oxford, Brighton and Norwich. Six firms were in Sample 1 and ten firms were in Sample 2. The full complement of Sample 1 firms is shown in a table in the appendices to this paper. 22 Sample 1 has a total of six firms and these are labelled firms A to F; Sample 2 has a total of ten firms and these are referred to as firms G to P. Expansion and splitting of the sample in this way allowed a much fuller understanding, in a broader base of firms, in relation to the processes through which complaints travelled and what factors determined whether the complaint reached the complaint handler and the central record. Having discovered early on that the complaint handlers deal with only a minority of their firm's complaints we wanted to be sure that our six firms were not atypical and the second group of firms addressed this concern. This second group also allowed us to retain within the research project those firms who had withdrawn their original consent regarding client access. That consent was only withdrawn after the conclusion of valuable interviews with their complaint handlers. We were keen to ensure that the information gathered from these interviews could legitimately be reflected in the findings of the research report. c. The Interviews All the authors were members of the research team and were involved in conducting interviews. Each was assigned responsibility for a number of firms and then undertook all the interviews within that firm. Interviews were conducted in accordance with a semi-structured questionnaire. All interviews were tape recorded and then selectively transcribed. In Sample 2 (supra), the interviews were limited to the firm's complaint handler. Sample 1 In Sample 1 (supra) the interviews were carried out in the following order: 1. The firm's complaint handler. These interviews were all conducted face to 22

See Appendix 1.

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face. The complaint handlers were all partners. Two were heads of department and the remainder were the chairman, senior or managing partner. Prior to interview, complaint handlers were asked to supply extracts from the staff manual relating to complaints, standard client terms of engagement letters, firm brochures and to complete a factual information sheet. This sheet identified the firm's composition and size in terms of fee earners, partners and work type. Firms were also asked to record the number of complaints received for the previous three years. At interview the researcher sought to understand the formal/publicised complaints process and the influences which had lead to its development. The researcher then examined the procedures in use within the firm where these were different to those publicised to clients or outlined within the office manual. These interviews were designed to gain an understanding of the complaint handling procedures and culture within each firm.23 2. The firm's complaint handler: phase two—identification of sample of complaints. These interviews were all conducted face to face. Following completion of the first complaint handler interviews and an initial identification of the issues arising from them, interviewers returned to identify a sample of clients whose complaints had been centrally recorded by the complaint handler. These clients would be contacted by the firm to seek consent to participation in the project. The criteria used to identify complaints were that the complaint had been concluded in the last three years and did not involve a negligence claim (actual or anticipated) against the firm. It should also be stated that by this stage the authors were aware that the sample did not fully reflect the totality of complaints received within the firm. Access to complaints at the level of the client file was considered to be problematic and too distant from the original research design for them to attempt to broaden the base of clients to include those dealt with by the fee earner or head of department on the client file and not centrally recorded or notified to the complaint handler. In addition a few centrally recorded client complaints were excluded from the sample of complaints by the firm, notwithstanding that they satisfied the above criteria. Where this happened it was because they were seen by the firm to be difficult or problematic clients. When this happened the interviewer persevered and attempted to ensure that full access was given. Ultimately, however, the decision of the complaint handler had to be final. Following identification of the sample, clients received a letter from the firm explaining the research project and their possible involvement. They were invited to return a consent form directly to us in a stamped addressed envelope indicating whether they were prepared to participate or not. The letter explained that participation would be limited to a telephone interview with a researcher. i?

It was this early interview with the complaint handlers that led to the redesign of the sample explained above.

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3. Clients. These interviews were all conducted on the telephone to minimise the cost and time of travel to many different destinations. The interviews were tape recorded with the client's consent. No client refused to give consent, although one insisted on being interviewed face to face because of the delicate nature of his views on the complaints process. The interview explored clients' views of what the complaint was about and their understanding and view of the firm process. It also sought to gather data on their levels of satisfaction with the process and outcome. 4. Complaint handler:phase three. These three interviews were conducted face to face. For each client complaint the interviewers sought to gain an understanding of the complaint handler's view of what the complaint was about and to determine whether this was the same as the client's. They also sought to understand the complaint handler's view of the merits of the complaint and what had affected this decision. They also wanted to find out about the ways in which the complaint handler had dealt with each of complaints and particularly whether any investigations had been instigated into the cause of the complaint. They asked the complaint handler for his view on whether he thought the client was satisfied and whether he thought that, having complained, the client would now return to the firm. 5. Solicitor complained of. These interviews were conducted by telephone to minimise the inconvenience to the solicitors. The interview explored the view of the solicitor complained of regarding the substance of the complaint and his/her satisfaction with the way in which the complaint had been handled by the firm's complaint handler. d. The Response Ninety-nine clients were contacted by the six firms in Sample 1. We received fifty-eight replies to the letters sent to clients by the firm. Fifty-one clients agreed to participate and seven declined. A reminder letter was sent by the firm to clients who did not respond to the initial letter. Ultimately interviews were carried out with forty-four clients - the remaining seven could not be contacted. The complaint handler was interviewed in respect of forty-one of the complaints. The solicitor complained of was interviewed in twenty-seven of these forty-four complaints. Solicitors complained of were not interviewed where they were no longer employed by the firm, in one instance where the firm would not allow us access to the solicitor, and finally a number of solicitors simply did not return the researchers' telephone calls. In summary: the research team carried out a total of 133 interviews: initial complaint handler interviews: 16; second complaint handler interviews: 5 (one firm dealt with the sample in the initial complaint handler interview); clients: 44; third complaint handler interviews: 41; solicitors complained against: 27.

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e. Data Analysis and Interpretation of Findings As a predominantly qualitative research study the research described in this paper was not intended or designed to gather a great deal of quantitative information. However, some elements of the interview data did lend themselves to quantitative analysis and these were undertaken where relevant.24 The data from the fieldwork interviews has been analysed by the authors through immersion in the fieldnotes of each interview, translating into research themes and findings.

3 T h e Findings

A. Firms' View of and Reaction to Complaints and Complaint Handling The overwhelming sense from the firm interviews was a pervading negative view of the requirements imposed by PR 15 to operate a complaint handling procedure and to inform their clients of its existence. There were some exceptions to this general statement and also evidence of an acknowledgement by complaint handlers that the requirement could be turned to positive ends. However it was clear that firms' cultures and priorities had not allowed a positive view of the requirement to operate a PR 15 procedure to develop. The authors found little evidence that solicitors had embraced the positive messages of effective complaint handling as advocated by consumer bodies and the Citizens Charter Task Force. Failure to view the requirement as anything other than negative clearly influenced the practices adopted by firms. a. What Procedures Were in Use? The authors found that most firms adopted a model which advertised one complaint handling procedure in their firm documentation ("paper procedure") and yet operated a different procedure in reality ("real procedure"). Where they existed, the paper procedures were usually explained in full in the firm's office manual and clients were told of their existence (but not details of what it was) in their letters of engagement or in the firm's brochure.25 Many of the paper procedures had been designed to facilitate central complaint handling and information gathering in relation to complaints. The most usual manifestation of this was a requirement in the office manual, on all fee earners, to file a complaint return form to the complaint handler containing details of what the complaint was about and how it had been resolved. Most firms with full paper procedures 24 E.g. levels of client satisfaction with the w a y in handled. These are represented more fully in Appendix data from the research. 25 T h i s made it difficult for clients to access the system within it, this is recorded in the client finding section (3B)

which their complaint had been 2 which records the quantitative or to understand what it w a s o n c e below.

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did not require the complaint handler actually to deal with all complaints, but the design of the paper procedure was such that he would be aware of all complaints, their nature, who they were against and how they had been resolved. However, discussions with firm complaint handlers and solicitors revealed that it was known and accepted that most complaints were received and dealt with within the interstices of the firm, either at fee earner level or at head of department level, with no report being made to the complaint handler. The complaint handler in the firm only dealt with a small proportion of the complaints received within the firm. What was being viewed was the "tip of an iceberg", the size of which could not be measured. The complaint handler operated the "formal" process which would usually involve him at least keeping a record of the complaint and its outcome and sometimes also being involved in the resolution of the complaint. However, the majority of complaints were dealt with directly at departmental level or by the solicitor complained of. Records of such complaints (what they were about and how they were handled) were kept on the client file and were never recorded or reflected in the complaint handler's "formal/central" file. The "formal/central" register maintained by the complaint handler therefore appeared to be a "showcase" (available for inspection for instance by the Legal Aid Board), and not an accurate reflection of the total number and type of complaints entering the firm and how these were responded to. This is a key finding which is clearly of critical importance to understanding the reality of complaint handling within solicitors' firms. The alternative model was not to have a paper procedure at all and to leave all decisions in the hands of the individual solicitor and complaint handling partner, with no attempt, even on paper, to define that procedure. Under this model the client letter referred to the existence of a procedure but there were no internal documents that defined it or determined how a complaint would be dealt with once made. This had little effect upon clients as they had little understanding of what process would be adopted. Even where a procedure was described in an office manual, clients were not made aware of this. This model allowed solicitors and the complaint handling partner to exercise a great deal of discretion regarding not only whether something was a complaint in the first place, but when it should be notified to the complaint handling partner (if at all). In either model it was impossible for the complaint handling partner to have full information on the range of complaints within the firm, what had caused them, or how they were dealt with. This had the effect of making it impossible for the complaint handling partner to collect and feed back26 any central intelligence on complaints to improve future service provision. This inability to create anything positive from the complaint handling role appears to have encouraged a negative view both of the role of complaint handler and the requirement to establish an in-house complaint system. Several complaint handlers commented that they recognised the feeding-back of information in 26

Feedback mechanisms from complaint handling procedures are identified by the Citizens Charter Task Force as one of the hallmarks of an effective procedure.

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this way as part of the role that they either should or could be performing. However, they and their firms did not make it a priority as they could not justify any additional time and cost commitment to complaint handling. This was a circular argument. Since the firms could see not tangible benefit in a complaints procedure, they were reluctant to commit resources to it. Yet, their lack of commitment prevented them from reaping the potential rewards of such a system. Another key finding in this regard concerned definitions of a "complaint". Some firms did attempt to define a complaint in their paper procedures (i.e. in the staff manual and on occasion in the client terms of engagement letters). However when we spoke to complaint handlers and solicitors we discovered that they largely substituted their own subjective view of a "complaint". This was not a subject upon which there had been any training or awareness raising within the firm.27 There was a distinction in some of the paper procedures between "formal" and "informal" complaints. Where this distinction existed it did not appear to be fully communicated to the client and yet required the client to request the formal procedure if they wished either to have access to the complaint handler or for their complaint to be one which was centrally recorded. Where there was a requirement placed on the client to request the formal process it was discovered that the clients who had "made it" into the formal procedure (and therefore either had their complaint dealt with by the complaint handler or recorded by him) had done so very much by default rather than by design.28 b. Role of the Complaint Handler in the Complaint Handling Procedures Complaint handlers appeared uncomfortable with their role in the complaint handling process. This appeared to be the case irrespective of whether there was a paper procedure or a distinction between a formal/informal complaint. There appeared to be two particular problems for complaint handlers: first lack of time to commit to the process and secondly, the difficulty in acting and appearing to act impartially in handling a complaint against a colleague. As to the first, given that the complaint handler was usually one of the most (if not the most) expensive fee earners in the firm it was difficult for them to commit 27

Complaint handler in Firm M commented: "I couldn't say there is a complaints handling process, other than this very basic concept of w h a t w e have got there. It is pretty much subjective. What happens each time is probably different". 28 For e x a m p l e Firm F's paper procedure required all complaints to be notified to the complaint handler but only "formal" ones to be entered in his central complaint record. There had never been any reporting of any complaints t o the complaint handler although o n e entered the complaint b o o k during the research. T h i s w a s because the client had addressed his letter "Dear Sirs" and because the solicitor dealing with him w a s o n holiday when the letter of complaint w a s received. T h e letter had therefore been referred to the complaint handling partner. It w a s clear from the client that he had n o k n o w l e d g e of the distinction between a formal or informal complaint and did not k n o w that his complaint had been classified as "formal".

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sufficient time to complaint handling. The authors believe that this is one of the reasons why complaint handlers were reluctant to encourage compliance with paper procedures which required central recording and complaint handling. As to the second, complaint handlers often had much sympathy with their colleague's position in a complaint and this appeared to have a great deal of influence over their response to the client. Moreover, styles of complaint handling varied considerably. We discerned two distinct styles which we have referred to as "pragmatic" and "judicial". Complaint handlers tended to conform primarily to one or other style but others varied their approach according to the circumstances of the case. The pragmatic style was preferred where the complaint handler was less interested in the rights and wrongs of the complaint and more interested in simply keeping the client happy (this appeared most frequently where the complaint handler wished to maintain the client's goodwill). If complaint handlers adopted a pragmatic style, they would often take the time to meet with the client to understand the complaint and what the client was seeking to achieve by complaining. They would sometimes offer the client some sort of a gift to try and appease them and would invariably offer financial concessions. The authors found examples of cases of wine and gin being offered!29 Some clients responded well to the pragmatic complaint handlers and our interviews show that this style had the potential to retain client goodwill. However, solicitors complained of responded negatively to this model of complaint handling. Solicitors wanted and expected the complaint handler to defend their position (that they had done nothing wrong) and felt marginalised and vulnerable by the apparent refusal of the complaint handler to do this. The adoption by a complaint handler of a judicial complaint handling style conversely involved an "adjudication" of the complaint and the making of a determination as to who was right and who was wrong. The methods of performing such an adjudication, and in particular gathering the relevant evidence to determine the right and wrong, did very little to promote client confidence in this style of complaint handling. This was largely because of the tactics employed by the judicial complaint handler to minimise and simplify the information and evidence gathering process. There was a tendency to seek and then support the view of the solicitor complained of, concerning the substance and merits of the complaint. As a general rule solicitors complained against rejected the validity of such complaints. Such a rejection appeared to be commonly accepted by the complaint handler without full engagement with the client to understand the substance of the complaint and without any full scrutiny of the evidence available to justify 29 However such offers can have unforeseen effects on clients. One client, sent a case of gin by the complaint handler, had never been able to tell anyone as he thought he was being bribed to keep quiet. He insisted on being interviewed in person as he could not bring himself to talk about this on the telephone.

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the rejection.30 This tended to leave solicitors complained of satisfied with the handling of the complaint by his/her colleague as the complaints procedure ensured their viewpoint was sought and endorsed. The desire to adopt a judicial style of complaint handling appeared to be instinctive to most complaint handlers. 31 The pragmatic complaint handlers were in the minority but appeared to produce greater client satisfaction. The problem, from the point of view of the firm, was that a pragmatic, open style was unsettling to colleagues within the firm.32 c. Influences Upon the Development of Procedures PR 15 does not prescribe any particular complaints procedure and, does it require that complaints should be centrally dealt with or recorded. It simply requires firms to have a procedure.33 AH of the firms which participated in the study had some sort of a procedure for dealing with complaints and were, therefore, in the strict sense of the word complying with this practice rule. The operational problems found appeared to be as a result of the failure to embrace what has been referred to as the "spirit" of PR 15. The lack of specificity in PR 15 appears, therefore, to have encouraged a variety of responses. This appears to have been what the Council of the Law Society intended when the practice rule was created in 1991.34 On the basis of our research the authors believe a 30 Other tactics to avoid full engagement with the complaint were also employed. These are referred to below at p. 183, Commitment by firms to exploring and responding to complaint. 31 An emphasis on getting the determination of complaints "legally correct" was focused upon by the National Consumer Council in their 1996 publication Putting it right for consumers: A review of '•omplaints and redress procedures in public services as being inappropriate and unlikely to produce customer satisfaction: "Research has been critical of complaints procedures that put too much emphasis on the legal concept of fault, and consequently too little on resolution of the grievance . . . Legalistic models of dispute resolution . . . may be responsible for this approach (not least, perhaps, when complaints procedures have been designed or overseen by legal officers). The danger with the "fault-based" approach is that it leads to your responses to complaints focusing on issues that pose a risk to the organisation, rather than addressing the consumer's own specific concerns. It promotes a negative and defensive attitude to complaints (did we break any specific laws or duties?) rather that a positive and constructive approach (should we have done things better? Is there anything we can do to put things right?) A complaint system dominated by anxiety about legal fault can easily end up translating every complaint into something far more threatening than the consumer intended."{emphasis supplied). 32 Solicitors and private clients expected an adjudication of their case and a determination reached on merit. Where this was avoided and an immediate remedy offered w i t h o u t consideration of merit, complainants were left dissatisfied, even offended: see n. 29. Conversely, commercial clients preferred the pragmatic approach which often led to a reduction in the amount of fees levied. 33 See ID. above. 34 "The Council deliberately made PR 15 relatively undemanding and unprescriptive . . . [T]he importance of PR 15 in the first instance was to offer a signal to the profession that complaint needed to be settled at firm level rather than sent directly to the SCB. T h e Rule

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more robust and positive line should now be adopted by the Law Society if true client care principles are to be inculcated in the profession.35 We also found from our complaint handler interviews that most firms had implemented changes to their client engagement letters and had appointed one of the partners to be complaints handler shortly after the implementation of PR 15 in 1991. They had done very little more than this, however. It was left to the solicitor complained of/complaint handler to determine in each case how and by whom each individual complaint should be handled. Initial compliance with PR 15 did not appear to reflect a change in culture within firms in relation to complaint handling, simply a recognition that there were a number of mechanistic administrative requirements that needed to be complied with. Compliance was easily achieved by tokenism. Another key finding is that application for a legal aid franchise (or other quality marks36) appears to have been the main influence which led firms to develop the paper procedures published in their office manuals referred to above.37 A decision to apply for a franchise or other quality mark reflected the desire of firms to position themselves in an increasingly competitive market. The acquisition of a franchise or a quality mark was seen as a way of giving a firm a competitive edge. Thus the more elaborate paper procedures were largely developed in response either to the requirements of the Legal Aid Board franchise requirements or the awarding body of other quality marks. Thereafter, as already stated, the procedures were not being followed because they were considered too onerous and time-consuming. Firms on the whole continued to operate the procedures they had created in 1991 to comply with PR 15. Where more elaborate paper procedures had been created the motivation and driving force appears, therefore, not to be an adherence to the principles of client care, but more a need to conform to the formal demands of various quality marks.38 could be changed so that firms had Co have a procedure . . .using a model laid down by the Law Society . . ." (Law Society Consultation Paper, July 1995, Supervision of Solicitors The Next Decade). 35 The Legal Service Ombudsman encouraged the Law Society to do more than simply monitor compliance in the 5th Annual Report. 36 BS5750, Investors in People, LawGroup UK. 37 One of the Sample 2 firms showed the researcher a perfectly designed complaint procedure on paper which had been devised with the sole aim of applying for a legal aid franchise. The firm explained that they had pulled o u t of the process when they realised the implications for the firm of seeking a franchise. The senior partner in the firm had felt that the implementation of such a complaint handling procedure would simply be too burdensome for the firm and not at all in keeping with the w a y in which he had traditionally dealt with any client complaint. 38 See the L a w Society's Solicitors' Office M a n u a l by Stephen Hammett, Managing for Success: ". . . with the recession has c o m e n o t only t h e drive for that elusive 'quality' but inevitably the additional stress o n 'value for money'. T h e t w o taken together have produced the phenomenon of solicitors striving for BS 5 7 5 0 and the debate about its relevance to our profession. It has also produced the Legal Aid Board's initiative for quality control—franchising. This in turn has led t o the Law Society devising the Practice Management Standards".

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d. Embracing the Spirit of PR 15 To begin, two significant quotes in this context: "Even where solicitors had complied with the letter of the Practice Rule and established procedures, many appeared to have ignored the spirit of client care in implementing them." 39 "The fundamental difficulty with [PR15] is that it is rejected by a significant sector of the profession who still believe it is wholly illegitimate for a client to complain about service quality...there are still many many solicitors who believe that "because I am a qualified solicitor I know best and that it is illegitimate of the client to complain". Ultimately this can only be addressed through education and training. This requires a broad education and understanding of how modern society works, understanding about service culture, understanding about business." 40

The authors' findings actually suggest that there is some recognition, particularly in larger firms, that clients have a right to complain about poor service and that there could be positive benefits to the firm through central collation of information on complaints. However, the predominant stance is one of scepticism. Indeed, several complaint handlers would not even contemplate a case for operating an in-house complaint handling procedure and resented having to do so: "If we have done something wrong, then let him sue us - we are accountable to him if we have been negligent. We're not given, apparently, the right to say we won't waste any more of our time."'11 Firms who adopted this attitude were of the view that they were running a business and should not be constrained by the Law Society in the running of their business. Furthermore, most firms viewed the requirement to focus the client's mind on potential complaints as damaging to the solicitor/client relationship. There were strong reservations about introducing information about complaints early on in the relationship, setting a negative tone. They did as little as possible to encourage clients to complain, whilst nonetheless complying with the letter of PR 15: "I can't think of any other business where the first thing they have to d o is tell you how to complain . . . sledgehammers are used to crack the silliest small nuts in this business . . ."42 39

Law Society Research Study N o . 19, Complaints against Solicitors - the Complainants' View, paragraph 3.34. 40 Complaint handler at Firm C. 41 Complaint Handler in sample 1. This echoes the sentiments of a correspondent to the Law Society Gazette, June 1997: "PR 15 should be abolished and the question of costs should be entirely a private matter between solicitors and their clients. The relationship between a solicitor and client should be solely governed by the law of contract and should not be subject to any rule of professional c o n d u c t . . . The existence of a practice rule only serves to encourage complaints, so the existence of PR 15 does the profession a grave disservice." 42 Complaint handler in Sample 1.

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Interestingly, this fear sprang from their own interpretation of the requirements of the non-prescriptive rule. Rule 15 simply provides that the client be informed "whom to approach in the event of any problem". The guidance notes elaborate by further stating: "The client may be informed about the whole complaints procedure at the start of the matter, e.g. in any general information about the firm given to new clients. The rule requires that the client must be told at the outset at least the name of the person with whom any problems should be raised and this should preferably be confirmed in writing. If a problem does arise which cannot be resolved almost immediately the full procedure should be explained, preferably in writing."43 AH firms are strictly required to do, therefore, is provide the name or identity of someone to raise a complaint with. Thereafter, if a client does register a complaint they should be given full details of the firm's complaints procedure. Firms did not appear to appreciate this distinction. The majority of firms interpreted the rule as requiring them to provide full details of their complaints procedure in initial correspondence. Where they provided this information it was rarely the "real" system used by the firm. Research disclosed that firms adopted one of the following models with regard to the provision of information to clients: (1) the firm had a paper procedure elaborated in the staff manual but it was not communicated to the client at any juncture; (2) the firm had a paper procedure in the staff manual and clients were given limited information about that procedure at the start of instruction: nothing further was provided once a complaint was registered; (3) the firm had no paper procedure but the real procedure operated was understood within the firm: details of that procedure were not passed on to clients. The authors found no evidence of firms complying with the suggestion in the guidance note that details of the full procedure be provided at the time a complaint is actually made. Those clients who were given minimal information at the start, still did not receive the information they needed at the time they needed it (i.e. when making the actual complaint). Consequently clients were either overloaded with information in the standard terms of engagement letters (information which they did not take on board) or they were given the name of the person to complain to at the start, with nothing further when initiating the complaint. Firm literature examined as part of our study confirmed that many firms did provide initial information about complaints in excess of the rule requirements. 44 A lack of understanding of PR 15 had led them to misapply it. The 43

Guide to the Professional Conduct of Solicitors (7th Ed), Ch 13 , p. 224. In an article in 94 Law Society Gazette, 25 June 1997, Tom Williams observed: "Firms, particularly smaller ones, react to the rule with cries of outrage, suggesting that a vast 44

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rule does not even require the word "complaint" to be used. Reference to problems with the service provided would be adequate. In their confusion firms have failed to adopt more imaginative approaches which would be equally acceptable for the rule (and the client) and less objectionable to the profession. In any case, this fear by firms about the negative effect of information on clients was not borne out in client interviews. Of the clients interviewed who instructed the participating firms, 86% had no clear recollection of being provided with PR 15 information. The impact on clients was, therefore, remarkable only in the indifference it inspired. Few clients read the standard terms of engagement letters, either at the time they were provided or even subsequently, when they needed to initiate a complaint. e. Commitment by Firms to Exploring and Responding to Complaints The firms' lack of commitment to the spirit of PR 15 (whether through lack of resources committed to the implementation of procedures which would allow it to play a positive role within the firm, or through fundamental opposition to the underlying principles), was manifested in their failure to explore and respond fully to client complaints. Given the inability of the systems in use to provide any positive feedback to the firms, complaints on the whole were seen as a distraction from fee earning work. There was no incentive to spend time analysing them and responding in a way which reflected that analysis in the remedy offered. There was a reluctance to engage with the complaint unless the firm wished to retain the client's goodwill. Where this was the case the authors found that firms would go to some lengths to find out what the client was complaining about, what the client wanted by way of remedy. They endeavoured to provide the client with satisfaction at the end of the complaint handling process. Where the complaint handler identified a positive benefit to the firm in retaining the client, a pragmatic style of complaint handling was usually adopted to ensure the client achieved satisfaction. Conversely, where no such benefit was perceived, an adjudicative or judicial style was adopted which employed a variety of tactics to dispense with the complaint quickly without having to spend a great deal of time analysing and exploring it and determining whether or not it was valid. As has already been said, one such tactic by complaint handlers was to exercise their discretion as arbiter in favour of their colleague and hence to dismiss the complaint, or at least its substance. There was little evidence of a full investigation with a reasoned judgement based on evidence. Instead, there appeared to be a superficial biased examination leading to a judgement which purported to be on the merits. Some complaint handlers made initial attempts to speak with the solicitor or to bureaucratic burden has been foisted on firms that they cannot reasonably be expected to cope with. It seems that many firms treat a complaints handling procedure as an optional extra, rather than as a requirement. Yet all that is being asked is the level of customer care expected from any high street store."

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examine the client file, to determine whether the complaint had validity. If the solicitor complained of rejected the validity of the complaint or if it became apparent that a full examination of the file would be time consuming, the complaint handler would usually respond to the client by indicating that his "decision" in relation to the complaint was that it was not valid. One of the solicitors complained of observed: "I think where it may be unfair is that the client may well feel or may believe that when they make the complaint that an objective assessment is being carried out. Where I think the reality is that [complaint handler] will probably not trawl through the file but will go very much on what I or what a colleague in a similar position will tell him. If you like, that perhaps is another reason why I would be comfortable in the way that it is dealt with. From my point of view it is likely that the views I am putting forward will be conveyed." This tactic for resolving or determining a complaint was frequently employed when the client made a complaint only after the delivery of a bill. A complaint at this juncture appeared to make the complaint handler and solicitor very suspicious of the client's motivation in complaining and very ready to believe that the complaint was simply a strategy for not paying the bill or for getting it reduced. This suspicion regarding what had motivated the complaint appeared to leave the complaint handler and solicitor very reluctant to accept that there was any validity to the complaint. The client interviews often revealed factors of longstanding dissatisfaction about the solicitor's performance but the client had been reluctant to voice it. There was a fear that to do so would adversely affect the way in which the solicitor acted on their behalf. They were concerned about upsetting the balance of the solicitor/client relationship during the live conduct of their case. They therefore saved the expression of their dissatisfaction until the bill arrived, when they objected to paying for a service which they had, in some way, felt to be substandard. Unfortunately, the firm's lack of prior knowledge of the existence or strength of the client's dissatisfaction left the complaint handler very suspicious of clients who complained at this juncture.45 Another tactic or response was to blame the client.46 This happened in a number of complaints from divorce clients where it was found that the complaint was dismissed, the existence of the complaint was explained as being a manifestation of the client's own troubled personal life, rather than *s A small number of commercial clients did explain that their complaints were a device to "haggle" over the bill. One client admitted that both the firm was aware of this and it formed part of the pattern of their commercial relationship. To an extent it was built into their dealings. They did not have a real grievance about the service provided but grumbled for effect. 44 As the complaint handler in one of the Sample 1 commented: "People with genuine complaints are identified by the average firm quickly . . . Those that do not have genuine complaints are either let's face it mentally deranged or obsessed or whatever, will be the sort of people who w i l l . . . never be satisfied".

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any failing in service by the solicitor who had acted for them. 47 Blame was also attributed to the client where the complaint appeared to the complaint handler to reflect unrealistic expectations of what the firm was able to do for the client. Where this happened client interviews showed an obvious disparity between the understanding of the parties on very basic issues such as what was going to be achieved by the solicitor and by what date. Important pieces of information appeared not to have been sufficiently well explained and communicated to the client. It appeared that complaint handlers and solicitors had failed to see the clients perspective on this type of problem and the lack of understanding and information on the client's part. The solicitor's perspective was that he or she had understood what was happening as the case or matter had progressed, the client had not raised any objection or concerns at the time, and they therefore failed to recognise the client's later expressed concerns about a their lack of communication as being legitimate. Commercial clients appeared to be dealt with rather differently on the whole. From the firm's point of view there were very good reasons for this. As the complaint handler in one of the Sample 2 firms explained: "Particularly when 80-90% of the complaints come from private clients who actually make up 5% of our turnover! You could spend a disproportionate amount of time dealing with people who are not critical to the success or otherwise of this business." Complaint handlers appeared willing to spend time and money (i.e. an offer to reduce a bill) placating commercial clients, the critical motivation being the maintenance of their goodwill for future business. We found no evidence of this being a critical factor with private clients. Firms appeared simply not to be concerned to ensure that they brought any future work to them.48 The only evidence we did find of firms checking the satisfaction of a private client with the complaint handling process was when the complaint involved a very serious allegation against a fee earner. Finally, complaint handlers had almost no knowledge regarding whether or not private complainants were satisfied with the way in which their complaint had been handled. Indeed, many appeared somewhat puzzled and surprised when asked about this in interview They regarded the client "going quiet" as a 47 An extension of this w a s the belief that contentious areas of law led more naturally t o dissatisfaction between solicitor and client. O n several occasions complaint handlers expressed the view that matrimonial law and litigation drew the highest number of complaints. In the more commercial firms interviewed there w a s indeed a higher number of recorded complaints in these areas, but those firms which relied predominantly o n private client/litigation work did not have correspondingly higher levels of recorded complaints. 48

Complaint handler in Sample 2:"You can't afford to offend commercial clients . . . T h e commercial client k n o w s that if he's not satisfied with your fees or performance he will just g o elsewhere . . . a private client very often is just a one-off job and you may not see them again for another twenty-five years. Commercial clients are an o n g o i n g thing . . . if you don't perform you're o u t . . ."

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satisfactory outcome and presumed silence indicated that the client was satisfied with the complaint handling. However the client interviews reveal quite the contrary. It is to the clients that this paper now turns.

B. What Did Clients Complain About? Clients complained about fees (66%), delay (34%), poor advice (52%), lack of communication (55%) and professional collusion (11%).49 Although the authors were primarily concerned with the process through which complaints travelled and all parties' views of that process, they did ask clients what their complaint had been about. As well, most complaints had more than one basis. Very commonly a complaint would concern fees, together with one or more of the other basis referred to above. As has already been explained, the authors found that one of the tactics used by complaint handlers to avoid full engagement with a complaint was to fail to give credence to a complaint. This frequently happened when a complaint about delay or lack of communication was coupled with a complaint about the bill once it arrived. Complaint handlers viewed this as a strategy to avoid paying the bill. Where a multifaceted complaint was made after the presentation of a bill, complaint handlers were reluctant to acknowledge the full scope of clients' complaints and they, therefore, failed fully to engage with the essence of what the client told the authors the complaint was about.

C. Clients' Reaction to Complaint Handling a. What did Clients Expect from the Process? Clients' expectations in relation t o process varied according to whether they had had previous experience of either making or dealing with service sector complaints. For example, one client, a retired solicitor who had for many years been the complaint handling partner in a different firm, made a complaint with an expectation and understanding of how it was likely to be processed by the firm. However, when he experienced the process from the perspective of the client he was appalled by it. He felt that nobody took him or his complaint seriously' and would give no credence to what he was complaining about because he was a divorce client. His perception was correct. The complaint handler stated that he would not acknowledge the main part of his complaint (in relation to poor service) and viewed the complaint as symptomatic of the client's troubled personal situation: 49 The complainants were asked to define the nature of their complaint - this was rarely answered in the singular. This fact is reflected in the table in Appendix 2 [point 6] and accounts for the double and triple counting. The % figure indicates that of the forty-four complaints, a certain given % included an element of complaint relating to that headed item. The % given therefore exceeds 100%.

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"Whatever you do for them they are going to be unhappy at the end of the day, simply because they are troubled people". The client commented that: "My whole experience of being a client has altered my view of the legal profession. I think I was a sinner beforehand. I felt we were delivering a very good service and it was the fault of the consumer not to have the intelligence to understand that. I now do see what people grumble about very clearly". Another client who had no previous experience of complaining had a vague notion regarding process when he made his complaint. He thought: "they would have a big meeting and get it all out in the open regarding what [the solicitor] had or hadn't done . . . whether they did or not I don't know". He in fact never received any tangible response to his complaint and the poor service about which he had complained continued with no explanation. Although the client did not know this, the complaint handler had simply passed the letter of complaint on to the fee earner complained about and left it at that. Clients had a consistent expectation regarding compliance with principles of natural justice. They expected their complaint to be taken seriously and dealt with fairly and fully. Their perception of the failure by firms in the majority of cases to meet these expectations of full engagement and fairness had a powerful effect upon the clients' satisfaction with the complaint handling process, their feelings of vulnerability within it, and their views on the position of the complaint handler. Although clients were sometimes offered financial remedy by the complaint handler, in a number of cases our client interviews show that this was not their primary concern. Clients were more concerned with being listened to, seeking an acknowledgement of their complaint, rather than monetary recompense. In fact the danger with a swift offer of compensation without engaging in the complaint led some clients to feel they had been "fobbed off". Where part of a client's complaint related to delay, poor communication, bad advice or collusion what the client wanted was information or reassurance together with, where appropriate a financial concession. However, exceptions to this expectation were found with commercial clients, who did appear primarily to want financial concessions when they complained. b. Entry into the Complaint Handling Process It was apparent from the client interviews that most clients did not have an understanding of the procedures (real or paper) which the firms had created and also were confused by the role that the complaint handling partner played in that procedure.50 Some clients simply had no idea how to enter the process, 50

We know that many complaints are dealt with by solicitors without the involvement of the complaint handling partner. All of the clients interviewed by us had some involvement with the complaint handling partner because their complaint details had been centrally recorded by him.

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did not know who to complain to or who would handle their complaint. For example, some had initially phoned the receptionist or the practice manager. Others expected there to be a complaint handling procedure in place and expected a partner to be involved but did not know the identity of the partner or what his role was to be. The firms, for their part, appeared to have very little perception of this lack of information on the part of the clients and the concern it generated. From the firms' perspective they were complying with PR 15 and that sufficed for their purposes. In fact some firms felt that too much information was given effectively inviting complaints from clients. The interviews also show that thirty-eight (86%) clients had no clear recollection of being provided with information about the firm's complaint handling procedures. 51 Three of these complainants were not clients of the firm and it is to be expected that they would not receive any client care information. Of the forty-one complainants who were clients, eleven (27%) were unsure and twenty-four (59%) denied ever receiving a client care letter.52 This left six (14%) who did recall receiving PR 15 client care information. Only two of these clients confirmed that they had used the information in the letter to assist them in making their complaint. The information in these client care letters was invariably limited to an explanation that if the client was dissatisfied with any aspect of service provision to speak to the solicitor acting for them. Therefore, even those clients who remembered receiving a client care letter and then used it to make a complaint (two in this research sample) did not have the identity of the complaint handling partner nor the information on internal procedures in use as recorded in an office manual. This was very relevant to the clients because it made it difficult for them properly to use or access a procedure, the details of which they were unaware of. Some internal procedures required clients specifically to ask for a complaint to be classified as "formal" if it was to be handled by or recorded by the complaint handler. Clients, however, had no knowledge of such requirements and most simply could not access the inhouse procedure. Only a handful of complaints that had been centrally recorded had been made directly to the complaint handler by the client.53 The majority were 51 Research in 1994 s h o w e d that 80% of clients did not recall being informed by the firm h o w they dealt with c o m p l a i n t s . See J Jenkins and V Lewis, Law Society Research and Policy Planning Unit Study N o . 17, Client Perceptions. Existing and potential Clients: Experiences and perceptions of using a solicitor for personal matters (1995). 52 O n e complainant w h o had categorically denied receiving any client care information s h o w e d it to the researcher at the time of interview. T h e y had never read it and did not k n o w it w a s a client care letter. " C o m p l a i n t s made initially t o the complaint handler (rather than being referred to him after a n initial attempt t o handle the complaint by the solicitor complained of) were made either by commercial clients, clients w h o knew the partners personally or by clients w h o had previous experience o f using a firm of solicitors. As o n e client c o m m e n t e d , he always went to "the organ grinder, not the monkey".

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referred to the complaint handling partner by the solicitor complained of or by his/her head of department because they had been unsuccessful in resolving the complaint at departmental level. The other factor which led to complaints being dealt with by the complaint handling partner was referral from OSS. In short, the lack of information and understanding on the part of the clients in relation to the procedures, how to access them, who ran them and the role they played in the process, left clients feeling uncertain of the procedure from the moment of entry. c. Inequality of Position and Vulnerability The extent to which clients felt able to communicate and engage with the complaint handler reflected the confidence they had in the system and the eventual outcome of their complaint. All of the clients spoken to had had some degree of involvement with a senior figure within the particular firm of solicitors.54 Equality of position was not an issue for commercial clients and those who were used to and comfortable with instructing solicitors. Indeed, these clients wanted and expected to deal with a senior figure within the firm. However, most of the non-commercial clients and those unfamiliar with the working of solicitors firms had a very different view of dealing with the senior or managing partner in the resolution of their complaint. Most of these clients felt overawed by the complaint handler and felt that the complaint handler tried to belittle their complaint. Some of the comments from clients indicate this: "[I got] such a knock back from [the complaint handler] that I wondered if my complaint was petty. It is only in retrospect I realised just how badly I feel they acted . . . [I felt] very, very unimportant and brushed under the carpet. . ." "There is a way of dealing with a complaint. You can't be abrasive with customers - I don't think solicitors are in the real world . .. [b]ecause he was a solicitor he thought he had right on his side." "[The complaint handler was] pompous and high-handed. [I felt as if I had been] patted on the head, told to go away and not bother grown-ups". "They think I'm a very small cog in a very large wheel . . . I did feel I was a very little fish in a big pond. I am not sure to this day whether they actually took it seriously". Clients who felt unequal, or that their complaint had not been fully examined, expressed their dissatisfaction in interview. Seventy-seven per cent of this research sample of clients were not satisfied with the complaint handling process and 86% would not use the firm again. Of the 23% of clients (ten) who were satisfied with the way in which their complaint had been handled only 14% (six) would instruct the firm again. This discrepancy was a 54

In ail cases either the chairman, managing partner or senior partner or head of department.

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result of irreparable loss of confidence in the firm arising from the original advice given. Although good complaint handling had been very much appreciated by these clients it could not restore their loyalty and confidence in the firm or solicitor complained of. The research data show nonetheless that the dissatisfaction caused by poor service can be remedied by effective complaint handling and there can, therefore, be a positive outcome to complaint handling from the firm's perspective. The clients appeared to want to have their confidence in the firm restored and the inability of the complaint handling process to do this in the vast majority of cases left the clients feeling disenchanted with the legal profession as a whole. Eighty-two per cent of clients had told others about their dissatisfaction. One divorce client took the opportunity of telling the trial judge at her divorce hearing of the complaint she had against the firm and how badly she felt they had dealt with it (she had subsequently instructed a different firm to act for her at the trial). Where it was found that clients were satisfied with the complaint handling process the authors looked at those factors which had influenced their satisfaction. They found that these included face to face meetings with the complaint handler; the giving of information where this was required to deal with part of a complaint (particularly where part of the complaint was about poor communication); and an early acknowledgement that the firm had got something wrong (where appropriate). Financial concessions alone appeared to produce very low satisfaction for private clients. Less emphasis on establishing right and wrong, and more emphasis on reaching both a mutual understanding of the complaint and determination of it, produced much greater client satisfaction and confidence than an attempt by the complaint handler to adjudicate on the merits. d. Full Engagement with the Complaint Clients wanted meaningful dialogue with somebody within the firm to whom they could explain the totality of their complaint and receive reassurance that the issues raised would be fully examined. They wanted to be taken seriously. The exception to this were commercial clients who understood that they had influence within the firm and that this would achieve a solution to their satisfaction with or without their complaint being taken seriously. The authors found many instances of clients able to explain the full substance of their complaint to them and yet a lack of corresponding understanding from the complaint handler or acknowledgement of that full substance. This usually manifested itself in clients complaining both about the quality of service and the bill they had been sent. When this happened complaint handlers would deal only with that part of the complaint relating to the bill and either fail to acknowledge or to concede validity to that part of the complaint concerning poor service. This, of course, made it impossible for the client to have any sense of a full engagement with the complaint. The

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complaint handler's reaction to that part of the complaint relating to the bill was informed by his view of the validity of the complaint relating to poor service. Some of the factors that led the complaint handler to deny allegations of poor service were to a large extent driven by this difficult position as arbiter. Properly to "adjudicate" part of a complaint in relation to service provision would involve an impartial examination of the evidence. This would be timeconsuming. From the complaint handler's perspective it was much more realistic to accept the position of the solicitor complained of. If that solicitor rejected the validity of the complaint, the complaint handler invariably passed that view on to the client.55 The other factor which led the complaint handler not to deal with the totality of the complaint was a lack of understanding of what the complaint was about. Clients did not always explain themselves very clearly in the first instance. The authors suspect this was largely due to a lack of understanding as to how to enter the procedure, how much detail to give, whom to give it to, and whether to give it in writing or on the phone. The complaint handler typically made little attempt to obtain "further and better particulars". To do so would have been very time-consuming. Clients quite simply did not articulate their complaint and felt inadequate in doing so. When clients concluded that there would not be a full and impartial investigation of their complaint they left the process feeling dissatisfied, frustrated and disillusioned. Their perception was of a superficial examination of their complaint, leading to attempts to speedily get them to pay as much of the bill as possible. Complaint handlers recognised that this was very often the reality of the situation and justified this in terms of it simply making no commercial sense to do otherwise. Engaging fully with the complaint or giving the client what he or she wanted appeared only to take place when the firm perceived a commercial justification for doing so. Responses to complaints appeared to be driven much more by a judgement of whether or not this was a client they wanted to keep and rarely by whether or not the complaint was valid. Finally, in some cases the authors found that complaint handlers and solicitors refused to give credibility to the complaint because of what they saw as a personality weakness or failing on the part of the client. They explained the client's dissatisfaction with the firm's service by reference to the client's problem rather than by reference to anything the firm had done. We could not judge the validity of such views. However we noted that this happened in several cases with divorce clients. As one complaint handler put it: "whatever you do for them [divorce clients] they are going to be unhappy at the end of the day, simply because they are troubled people." 55

The authors found that this was not so when the complaint was a very serious one involving allegations of potential negligence.

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D. Independence and Impartiality Interviews with clients, complaint handlers and solicitors complained of all raised the problem of the complaint handler having no real or perceived independence in his handling of the complaint.56 As one solicitor put i t . . . "I think where it may be unfair is that the client may well feel or may believe that when they make the complaint that an objective assessment is being carried out. Whereas I think the reality is that [the complaint handler] will probably not trawl through the file but will go very much on what I . . .will tell him. If you like that perhaps is another reason why I would be comfortable in the way that it is dealt with. From my point of view it is likely that the views I am putting forward will be conveyed. So from the clients point of view they may well feel that they are getting an objective assessment whereas they are not". Of the clients who were not satisfied with the way in which their complaint had been handled the vast majority expressed concern about the status or locus of the complaint handler as a colleague of the person complained about. Clients sensed there was something fundamentally wrong or unfair about a system that allowed one colleague to act in a complaint against another colleague. One client expressed their view in this way: "Firms make a declaration of pure professionalism which means you've got to put the client first - their interests must be put before your own - but they don't. I thought that they should also have somebody like a complainant's friend . . . there should be someone within thefirm- the compliance officer if you like .. . whose job it is and . . . who has an obligation under law [to] follow the complaint on behalf of the complainant — because nobody does. You have no knowledge or rights because there aren't any really . . . " The commercial and more sophisticated clients seemed relatively unconcerned about the lack of independence. They recognised it, but appreciated that the complaint process was really no more than a negotiation over the amount of fees they would have to pay. They were quite happy to negotiate. They engaged on that basis and on the whole got what they wanted out of the process. On the other hand, some clients said that they wanted the involvement of a truly independent agency, either to deal with or oversee the dealing with complaint handling. Neither the Law Society nor OSS was perceived by any client who had used it or had contact with it as fulfilling this criteria.

56

Some complaint handlers dealt with complaints against themselves, which is clearly what happens when complaints are made directly to the solicitor and dealt with by him or her with no referral to the complaint handler. This made it doubly difficult for there to be even a semblance of impartiality in the consideration of the complaint.

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4. Conclusions and Recommendations As explained at the outset of Section 2 of this paper, the authors' research was conducted to investigate an apparent discrepancy between the motivation and expectation of clients and firms in relation to the operation of in-house complaint handling procedures.57 We wanted to examine this discrepancy from all perspectives relating to complaint handling at firm level. We wanted to understand what created any operational problems and barriers for both firm and client. Our findings are a record of what we discovered from the fieldwork we conducted. In this final section we first draw some conclusions from these findings and then make a modest attempt at some recommendations to tackle the operational problems we observed in that fieldwork.

A. PR 15: Waving or Drowning? PR 15 was implemented by the Council of the Law Society in 1991. It was made "deliberately . . . undemanding and unprescriptive . . . The importance of PR 15 in the first instance, was to offer a signal to the profession that complaints needed to be settled at firm level rather than sent directly to the SCB."58 This was at a time when the Law Society and the SCB were coming under a great deal of pressure and criticism in relation to complaint handling. That pressure has not abated. It continues to be exerted by consumer groups 59 but also from within the profession itself.60 Critics have not been silenced by the recreation of the SCB as OSS in September 1996,61 although this recreation will provide a breathing space within which OSS will have to prove its credentials.62 Much of the criticism levelled at the SCB/OSS by the profession is 57 For instance see a recent article by Robert Sayer the Deputy Vice President of the Law Society in the Law Society Gazette, 16 April 1998: ". . . the public and solicitors have an extremely low opinion of our complaints procedures. The public thinks it is too slow and the profession that it concentrates on "easy targets" - the solicitor w h o has made an honest mistake. . .". 58 Supervision of Solicitors: The Next Decade, Law Society Consultation Paper, July 1995, p. 26 (emphasis supplied). 59 Notably the National Consumer Council. 60 See e.g. an article by the then President of the Law Society, Martin Mears, "Satisfying the Customer", Law Society Gazette 27 September 1995. 61 See e.g. Mears's letter to the New Law Journal, quoted in n.13 supra. See also Mears again: "For one so young, the OSS carries a lot of baggage. Its predecessor, the Solicitors Complaint Bureau, had an unhappy ten-year existence. It was attacked by consumer groups for pro-solicitor bias; by solicitors for treating them unfairly; for delay, incompetence and arrogance . . ." NL], January 23 1998, p. 98. 62 Recently reported delays in dealing with complaint and a surge in complaints received at OSS do not bode well for OSS. See The Lawyer, 24 March 1998.

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driven by its huge cost. In 1997 this amounted to approximately £13 000 000. This cost is borne by solicitors through their practising certificates. Given these historic and continuing problems at SCB and n o w OSS one might reasonably question the rationale of the Law Society in deciding to delegate such a sensitive and key regulatory function to the eight thousand or so firms of solicitors in England and Wales. Were the Law Society waving or drowning when they sent out their "signal" to the profession in 1991? Was it this positive signal: "We know that effective complaint handling can be good for business and we know how these complaints should be dealt with to ensure that all appropriate lessons are learnt and yet that clients do not get away with making unmeritorious complaints. We feel so positive about this that we think it would be a good idea for all solicitors to share in this experience as it will enable them to confront and deal with their own shortcomings and in this way improve their service and hence the standing of the profession in the community"? Or was it a rather different negative one: "We can't get this right and we are getting criticised from all quarters. The public say we are biased towards solicitors, solicitors say we are biased toward the public, that we encourage unmeritorious complaints and that we cost too much to run. The government keep making noises about taking away our self-regulatory function because of this disquiet. We could cut a great deal of cost if solicitors were forced to deal with some of these complaints themselves, (after all they caused them in the first place by not communicating properly with their clients)"? As one of the complaint handlers in Sample 1 commented: "The truth about PR 15 is that it was an idea of the then president of the Law Society to stem the overwhelming mounting tide of complaints . . . This was a bureaucrat's solution which was badly sold to the profession and only latterly is PR 15 being presented properly as a management tool". The research carried out by the authors suggests that although the Law Society may have hoped they were sending the positive "waving" signal, the profession have received the negative "drowning" one. The signal sent out to the profession significantly underestimated the distance that existed, and largely continues, between where members of the profession need to be to positively embrace a culture of in-house complaint handling, and where they actually are.63 Our research findings also lead us to conclude that in general terms, too much is being expected too soon from the profession. The delegation by the Law Society to individual solicitors of part of the Law Society's self-regulatory responsibility has not been successfully managed to date. Prior research supports this: "It appears that most firms, even those who have established a complaint procedure, have yet to adopt a culture of client care which is founded on the notion it is beneficial to operate a complaint procedure and to use reports of client dissatisfaction as feedback mechanisms to improve the legal services offered."64 63

See Jenkins and Lewis, op. at., supra n.51.

M

Ibid, para 6.10.

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The signal to the profession has not been clearly communicated. The research we carried out suggests that it has confused and concerned both the public and the profession. Within sample firms the most that we found, in relation to any evidence that would indicate a shift in culture, was an acceptance by some complaint handlers that there could and should be a positive angle to PR 15.65 Some had developed paper procedures which would allow positive messages to be learnt by firms. However these procedures were in no case being used. The motivation for creating them on paper was a desire to be awarded a legal aid franchise or other quality mark and not a desire to inculcate a new client care culture within the firm. And yet within the client sample the message was one of frustration and suspicion. As consumers of legal service, inexperienced private clients in particular were concerned and rather baffled at being encouraged through such means as the Citizens' Charter to complain about service provision on the one hand and yet discovering a complaint handling culture within solicitors firms which was clearly not sufficiently mature to allow them to fully engage in the complaint handling process. This difficulty was identified by Robert Baldwin in a recent report "Regulating Legal Services"66 in which he suggests that: "Consumers may be inexperienced shoppers for [legal] services rather than expert repeat players. They may, as a result, be ill-positioned to judge the quality of these services and may have to rely for evaluation on the very lawyers who have financial interests in the sale of the services . . . Consumers who are not repeat buyers may feel powerless not only to monitor or control the service given but also to impose sanctions once poor service quality is discovered. Their informational difficulties may rule out the compiling of a convincing complaint".*7 Our findings support this thesis and show that there can be very significant operational and informational difficulties for the "inexperienced shopper", not only in the provision of legal service but, more significantly for the purposes of our research, in the bringing of a complaint to allow the shopper to measure the quality of that service. B. A Change in Culture: Carrot or Stick? The then President of the Law Society, Martin Mears, commented in 1995 that a receipt of a complaint by a solicitor most commonly produced: "a reaction to repel boarders at all costs. A charge has been made against him and he sees it as his task to prove his innocence . . ."68 65 W e also found a few instances o f younger solicitors attempting to institute complaint handling initiatives. T h e s e were not always well accepted by their senior colleagues. 66 Lord Chancellor's Research Programme N o . 5/97 (December 1997). 67 Ibid, at p. 2 . 68 Law Society Gazette, 27 September 1995, p. 12.

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Our findings support this. Mears goes on to argue that "to produce a change in culture is, I believe, a primary task for the Law Society."69 The authors' research also indicates that a cultural shift by members of the profession is essential if the delegation (through PR 15) from the Law Society to individual solicitors of a complaint handling function are to satisfy the increasing demands of their clients as consumers. Our findings also show that such a shift has not yet taken place. Without such a shift the chasm between the expectations of client and solicitor in the in-house complaint handling process will continue to grow as will the arguments in favour of the removal from the Law Society of its current self-regulatory functions. We conclude that the days in which deference played a part in the relationship between client and solicitor are gone. Once again, Mears has written: "Fifty years ago, none of the professions had to work to gain the respect of the public or their clients. They operated in a climate of deference. The simple reality is that those days are gone and we must adapt to the fact".70 And Angus Andrew, the Law Society Council member for West London has recently commented: "We live in a consumer-orientated society where clients have high expectations and will complain if those expectations are not met. Blaming the OSS will not make those complaints go away. If solicitors, as a profession, decline to deal with those complaints then the government will do it and, rest assured, solicitors will still have to bear the cost."71 We conclude, however, that if the Law Society feels threatened by the loss of self-regulatory powers its responsibility is to put its own house in order and to manage the profession through this difficulty. The primary self-regulatory responsibility lies with the Law Society. It is clearly the case that, for whatever reasons, individual members of the profession are not currently equipped to meet the challenge of discharging complaint handling responsibilities to a degree which will meet consumer expectation. This shared responsibility by each member of the profession through the vehicle of PR 15, with (until very recently72) almost no tangible or comprehensive training or guidance on how to set up and administer effective in-house complaint handling procedures, has failed to produce a pervasive shift in culture within the profession. The Law Society did not appoint a PR 15 compliance office until 1993. Andrew Baker was appointed to promote the message that client care and "publicly stated policy on complaint handling, are good for business".73 However recent 69

Ibid. Writing as the Editor of Keeping Clients: A Client Care Guide for Solicitors at p. 5. 71 Law Society Gazette, 16 April 1998, p. 16. 72 P.Stevens, Keeping Clients: A Client Care Guide for Solicitors (OSS; the Law Society, 1997). 73 Law Society Gazette, "Pushing the client care principle", 23 February 1994, p. 11. 70

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research74 shows that only 15% of firms contacted by the researchers had ever been contacted by the compliance officer. In its apparent haste to bring the profession in line with its crusade to convert the profession to a service orientated culture, the Law Society/OSS has sent the profession a series of mixed messages or signals in relation to client care and PR 15 to the profession. Some have been communicated as encouragements or "carrots" and others as potential disciplinary "sticks". A recent example of encouragement through the carrot message was the much publicised joint-publication by OSS/Law Society in May 1997, Keeping Clients: A Client Care Guide for Solicitors. Its Introduction asserts: "Clients are the lifeblood of solicitors' practices. Without clients, there is no fee income and no profit . . . Dissatisfied clients generate complaints that are costly to deal with . . . It is good business practice to keep the client happy" In the Preface the then President of the Law Society wrote: "This guide from the Office for the Supervision of Solicitors is a long-awaited support for solicitors up and down the country . . . I promised the profession more practical support from The Law Society. Solicitors, too, have been asking for tangible help and guidance from the OSS and its predecessor . . . We all know what clients really want. The vast majority of the complaints to the OSS are, in reality, about poor client care. It is in our interests to stem the flow of these complaints and improve our services to clients". At its press conference in December 1997 to launch its first annual report the OSS director, Peter Ross, reinforced the positive message about client care confirming that a cultural change was essential to the hoped for success of the OSS.75 Ross further announced a range of initiatives76 launched by OSS to drive home the positive client further care message and the fact that "solicitors should embrace complaints and recognise them as "free commercial intelligence"." However, hand in hand with these rather belated messages of encouragement to the profession, OSS has also issued threatening "stick-like" signals regarding non-compliance with PR 15. In December 1997 the chairman of the compliance and supervision committee at OSS announced that, due to the burden of complaint handling being unnecessarily shouldered at OSS, failure by a firm to attempt to effectively resolve a complaint under PR 15 would be taken as prima facie evidence of inadequate professional service against the solicitor involved. This could result in disciplinary proceedings and an award of compensation to the client.77 74

See R James and M Seneviratne, loc cit., supra, n.20. However only three months later in March 1998 OSS has had to publicise failing in its own service and a surge in the number of complaints received leading to delay in complaint handling. 76 E.g. a telephone help line to assist solicitors with in-house complaint handling 77 It may be worth considering who has failed in their duty. Is it the firm's complaint handler or is it the solicitor complained of? Would such an award be punitive or compensatory? 75

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We conclude that the introduction of a new complaint handling culture within the profession will not be generated in this way. The current regulatory regime is at present balanced by many different factors: it is an incredibly "complex . . . tapestry". 78 In his recent comprehensive review of that complex tapestry Baldwin concluded that: "The regulation of legal service provision involves both formal and informal controls, rule-based constraints as well as discretions and judgements. Achieving the appropriate balance between these different kinds of control demands, in itself, that complex judgements be made. A further issue arises, however, concerning the compatibility of rule or target based regimes with strongly-held and valuable notions of professionalism (Paterson, 1996, p.317). If the fabric of legal services regulation is held together by the ethical tenets of the profession, enforced informally, is there a danger that movements towards rules and targets may prejudice those informal mechanisms? . . . Can it be countered, though, that professions can adapt and are strengthened as they adjust to new rules, targets and pressures? These questions, again, suggest the value of attending to the co-ordination of informal and formal mechanisms, with emphasis on the role of professionalism."79 If in-house complaint handling is to play a part in the current wave of selfregulation for the solicitors profession the authors conclude on the basis of their research that solicitors must either be positively encouraged and trained to deal with appropriate complaints in-house or the OSS (or some other body) must do it for them. Our findings lead us to conclude that the imposition of a rule through a poorly communicated signal from the centre has resulted in firms' complaint handlers viewing the requirements of PR 15 as predominantly negative. We found no evidence of a tangible shift of culture to one encouraging any positive messages in relation to complaint handling. OSS's "carrot" signals appeared not to be getting through and their "stick" ones infuriated the profession, coming from a body which was itself subjected to a great deal of criticism from all quarters with regard to the way in which it handled complaints. In the midst of this squabble private clients are left predominantly confused and dissatisfied with the manner in which their complaint had been handled in-house. Finally, on the evidence of the authors' fieldwork, there was no one obvious solution to the tensions between client and solicitor regarding inhouse complaint handling processes. What appeared to lie at the heart of this tension was lack of concurrence amongst the players regarding what the process could or should offer. We had degrees of empathy for both clients and solicitors in their expressions of frustration and anger to us with regard Such proceedings are treated as a breach of Practice Rule 1, which defines the essence of the solicitor-client relationship. Implicit in the retainer between solicitor and client is a duty of client care w h i c h includes operating a process which will a l l o w a client to voice their complaint. 78 79

Op. cit., supra n . 66, p.5. Ibid, p . 87.

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to their experiences of in-house complaint handling procedures. In many cases we felt that we were being told the same story but in different languages, one which the other party did not understand. Thus far we have carefully attempted to interpret these differences in language. We will conclude this paper by trying to translate them into some recommendations which may go some way to ensuring that any future stories would sound similar from the perspective of both client and solicitor. C.

Recommendations

a. Training The next generation In order to address a change of culture within future generations of solicitors, we recommend that the Legal Practice Course and Professional Skills Courses (LPC: PSC) place greater emphasis on the teaching and learning of the principles of client care and in particular that a greater emphasis is placed on the positive principles of effective complaint handling. We would recommend that this be firmly based upon real life case studies which facilitate an examination of the operation of complaint handling procedures rather than an academic examination of the wording and requirements of PR 15. 80 Client care in the context of PR 15 is currently stipulated as an area to be emphasised.81 It is not known how much emphasis is given nor how much time is spent by respective providers82 of LPCs in meeting this WS but would recommend this as something to be investigated by the Law Society.83 The Ethics and Client Responsibilities courses84 build upon Professional Conduct Course and currently require twelve hours tuition to deal with its WS component which will include an examination of the principles of client care. 85 80 We found evidence in several firms of something of a "bottom u p " u n d e r s t a n d i n g from some of the younger, more recently qualified and therefore less influential solicitors in the firm of the need to deal with complaints in an upbeat way and the n e e d for sophisticated procedures to deal with complaints. Some of their initiatives in this a r e a had been d a m p e n e d by more senior colleagues. W e took this to be a result at least in part o f their training of the LPC and evidence of the beginnings of a potential shift in culture f r o m the n e w e r generations of solicitors. 81

In the Professional Conduct Written Standards c o m p o n e n t ( W S ) . T h i s is o n e of eight areas of professional conduct which are required t o be emphasised on the LPC Professional Conduct module. There are a further s e v e n issues in relation to "the organisation of the profession", three in relation to " o b t a i n i n g w o r k " a n d three in relation to "professional relations" which are required to be covered i n o u t l i n e . 83 E.g. in the former University of Bristol LPC (no longer i n existence) W S were addressed initially during six hours teaching in the introductory c o r e c o u r s e : part of a w o r k s h o p w a s dedicated to drafting a client care letter to comply w i t h PR 15. C o m p l a i n t handling procedures and h o w these actually deal with complaints w e r e n o t addressed. 84 PSC: taken during the training contract. 85 Providers of the course are expected to reflect in the course's c o n t e n t the vital importance of confidentiality, conflict of interest, undertakings, client care and the publicity and referral codes. H o w this is d o n e is left to the provider's discretion. W S s are deliberately 82

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We would recommend that OSS should develop partnerships with all providers of LPCs and PSCs with a view to having an input into the development of case studies for use on the courses and perhaps also a visible presence on the teaching of the principles of client care and effective complaint handling. We suggest that this may achieve a much more healthy synergy and partnership between the Law Society/OSS and future generations of solicitors. Existing complaint handlers Given the poor selling of PR 15 to the profession and the pressures upon solicitors in practice our findings show that complaint handlers can and in cases do only pay lip service to their role. As one complaint handler put it: "It means that I have told everyone that I am the PR 15 compliance officer, and they have forgotten all about it. I am there in case anything ever happened. I think that we felt we ought to say that I was, in case anyone ever came round from the Law Society. In practical terms it doesn't mean anything at all." Given such attitudes to complaint handling, a change of culture within the current profession is more problematic. Solicitors, understandably, have become used to dealing with matters of complaint in a particular way. The imposition of PR 15 in 1991 has done little to change this. Many senior/managing partners (nearly always the complaint handling partners) within practices will not have received any training in complaint handling on their Law Society finals or part 2 examinations. 86 These figures set the standards and create the culture within their firms and it is plausible to suppose that those training under them are likely to adopt these standards in their own career development. A training programme for the whole profession would, in our view be too ambitious, too expensive and on the basis of our findings would in any event not be well received. We would therefore recommend the establishment of a compulsory training programme by the Law Society/OSS for firms' complaint handlers or complaints officers. We would further recommend that this address the different potential models for complaint handling and emphasise the positive effects that can flow from effective complaint handling. We would also recommend that complaint handlers are encouraged t o understand that effective in-house complaint handling need not give validity to all complaints made by clients. b. Principles of Natural Justice Principles of natural justice are defined87 as "the rules and procedure to be broad to allow maximum flexibility and tailoring of the course to meet the needs of particular trainees. 86 The predecessors to a current one year LPC which all intending solicitors must now take before starting a two year training contract. 87 Osborn's Concise Law Dictionary (Sweet 8c Maxwell).

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followed by any person or body charged with the duty of adjudicating upon disputes between, or the rights of others". These include an expectation that no person should be a judge in his/her own cause so that a judge must declare any interest he/she has in the subject-matter of the dispute before him/her. Our client findings show very powerfully that private clients felt an inherent unease in raising a matter of complaint with a colleague of the person complained of. This is not surprising given that to do so offends one of the central tenets of the principles of natural justice. Clients were concerned that they would not get a fair hearing and therefore frequently did not have confidence in not only the handling of the complaint but also the final outcome or determination by the complaint handler. If internal complaint procedures are to maintain the confidence of those using them strategies need to be developed to minimise the sorts of concerns voiced to us by private clients. As one client88 put it "it's a bit too close. I think it is flawed in that sense". He considered that it had to be simply human nature to give a colleague the benefit of the doubt: "why should a firm of solicitors be any different? We're all human beings". In order to address this issue, any recommendations should include at least training in, and the consistent use of, recognised principles of good complaint handling by complaint handlers. This may in itself go some way to address the issue and restore client confidence in in-house procedures. One client we interviewed has suggested a model for in-house complaint handling which would involve the appointment and use of a complainant's friend within each firm: "I thought they should also have somebody like a complainant's friend . . . there should be someone within thefirm—thecompliance officer if you like .. . whose job it is and I mean who has an obligation under law, that they follow the complaint on behalf of the complainant—because nobody else does. You have no knowledge of rights because there aren't any really . . ." Whilst appreciating that such an appointment would have resource implications for firms we would recommend that this suggested model be considered by firms and by the Law Society/OSS. It may for instance be that firms could form consortiums which could appoint such a person to be responsible for assisting clients with their complaints and advising fee earners on complaint handling within all firms within the consortium. Such an appointment would then also allow principles of good practice to be efficiently shared between firms. We also appreciate that as this person would be privy to very sensitive information, care would therefore need to be taken in their appointment and training.

88 A client who was himself a retired solicitor and a former senior partner in a different firm.

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c. Complaint Handler Being Seen as Non User-Friendly by Private Clients and Too Expensive by Firm Our findings showed a tension experienced by all complaint handlers (as very senior members of their firms) in having to devote their very expensive time to a non-chargeable activity. One firm in our sample had addressed this by the appointment of a part-time assistant solicitor, with no fee earning target, as a complaints officer.89 Our findings further showed that the senior partner could be seen as an intimidating figure to some private clients; they expressed their wish to us to be able to discuss the complaint with somebody a little more "user-friendly". We would recommend that use of a complaint handling model along the lines adopted by Firm O, in which the complaint handling partner delegates much of his role to a complaints officer, be examined and, if felt appropriate, recommended by the Law Society/OSS. This could provide employment for qualified solicitors who do not wish to adopt a traditional full-time working pattern. This would create a much "lighter" touch in in-house complaint handling models and would, on the basis of our findings, address many of the tensions experienced by both firms and clients. d. Identity of Complaint Handling Partner Not Known to OSS The authors' fieldwork exposed a lack of communication between OSS and firms regarding the identity of the complaint handler within the firm. In many cases OSS either did not know who the complaint handling partner was or if they did, chose not to make PR 15 referrals to that person. Instead, OSS in some cases referred complaints back directly to the solicitor complained of. This caused one complaint handling partner a great deal of concern as one of the fee earners in his firm generated many complaints, some of which he did not become aware of until some considerable time after their referral back to that person by OSS. In the light of such a finding and in the light of OSS's intention to start referring all service complaints back to firms to be dealt with under PR 15 procedures, 90 we would recommend that steps be taken to 89 T h i s model had been adopted by Firm O . T h e firm's chief executive w a s the designated complaint handling partner. T o assist him in this task he employed a part time assistant solicitor (without a fee earner's profit target), to be solely responsible for dealing with complaint and matters of professional indemnity. T h e complaints assistant screened all complaints and reported t o the chief executive. T h e complaints assistant's role w a s also to advise and assist staff in the handling of their o w n complaints if they wished to handle the matter personally. T h e appointment o f the complaints assistant w a s in part made to implement a cohesive policy o n the handling of matters of complaint and potential negligence but also t o relieve the m o r e senior members of the management team, particularly the chief executive as designated complaint handling partner, from time consuming non-chargeable activities. 90 Press release issued by OSS on 1 M a y 1998 announced that with effect from that date OSS will only accept complaints w h i c h have been subject to a firm's o w n in-house complaint procedure first.

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require all firms to notify OSS of the identity of their complaint handler and that all referrals be sent to that person in the first instance. e. Failure by Firms to use Their "Paper" Procedures The authors' findings show that firms may establish sophisticated and elaborate in-house complaint handling procedures on paper, most commonly recorded in the firm's office manual. The motivation for so doing was not a recognition of a shift in complaint handling culture but instead were in response to criteria laid down by The Legal Aid Board for the granting of a legal aid franchise or other quality mark providers. Many of these paper procedures were examples of recognised good practice in effective complaint handling. However, they were in no instance being used in practice because to do so would be too time consuming for the complaint handling partner. We would recommend, therefore, that the Law Society/OSS and the Legal Aid Board give consideration to closer monitoring of firms' complaint handling procedures. This could be linked with a compulsory training course for all firm's complaint handlers recommended above. There is evidence91 that systematic management and monitoring of internal complaint handling procedures can have a positive effect upon the incidence and volume of complaints made. However, any increase in reliance on internal procedures should be coupled with effective monitoring of them by the centre. We would also recommend that firms be encouraged to deal with complaints in a method that suits their management structures. This could, for instance, encompass the majority of complaint handling remaining at departmental level but with periodic comprehensive reporting of complaints and their outcomes to the complaints officer. This would facilitate feedback of information from the totality of complaints from the complaints officer to the management or to the firm as a whole. f. Separation of Disciplinary and Complaint Handling OSS has responsibility for dealing with all matters of discipline and complaint handling. This is a common model for professional bodies to follow. The relationship between matters of discipline and complaint handling within professional bodies was examined in a report of the Institute for the Study of the Legal Profession at the University of Sheffield. The authors commented: "It has to be asked whether, as professional bodies take on more regulatory tasks inhouse to prevent the profession being subject to an external statutory regulatory body, there will be a need to show more clearly the separation between the regulatory function of the body and its encouragement functions. At present this is being accomplished in most professions by the Chinese walls erected through using different committees for the investigatory, disciplinary and encouragement functions of a professional body. With greater demands for visibility and accountability of 91

See Williams and Goriely, loc. cit., supra, n.3.

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C. CHRISTENSEN, S. DAY AND J. WORTHINGTON

professional decision, and, it would seem, perception by professional bodies that the public is now less trusting of experts' decisions, it may be necessary for separation of function to be more clearly shown." 92

Our findings show uncertainty from both solicitors and clients in relation to the distinction between matters of complaint and discipline and the relationship between the two. Any Chinese walls erected at OSS between their disciplinary and encouragement functions and committees appear to have served only to obfuscate the distinction between the two. Solicitors appear to feel a great deal of ambivalence towards "embracing" complaints when the dividing line between a matter of complaint and a matter of discipline is not always clear to them. However the distinction between one and the other is of crucial importance for the solicitor in determining whether to "repel boarders at all costs".93 Private clients on the other hand appear by and large to want a "light touch", a sympathetic ear and a simple explanation of matters that our findings suggest they have little understanding of at the point of making their complaint. There are, however, models within other professions which ensure that matters of complaint and discipline are distinguished and separated at a very early stage. For example since 1996 within the National Health Service matters of complaint handling have primarily been delegated to the provider of the service in question with minimum intervention from health authorities. Matters of discipline however have been siphoned away to an entirely different procedure owned and run by a health authority.94 We accordingly recommend that the relationship between and the distinction between the handling of matters of complaint and discipline at OSS be very carefully examined with a view to ensuring that the separation of these two functions, and the decision making with regard to them, is not only seen to exist but that that separation is understood by all parties. 92 Allaker 8c Shapland, Organising UK Professions: Continuity and Change, (Law Society Research and Policy Planning Unit, 1994), Research Study N o . 16 at p 59. 93 M M e a r s , Law Society Gazette, 27 September 1995, p . 12. 94 See C Christensen, "Complaints Procedures in the N H S : All Change", (1996) 2 Medical Law International, pp. 247-269.

12 7 2 18 11 1

51

20 19 3 38 18 1

99

FIRM A FIRMB FIRMC FIRMD FIRME FIRMF

TOTAL

Yes

Firm

No Reply 5 11 1 17 6 0 40

No 3 1 0 2 1 0 7

Sample Response Number

Sample agreed/ number contacted

1

0 0

1

0 0 0

Other

SAMPLE 1 FIRMS

Appendix 1

27 41

18

44

5

10 1

Solicitor Interviews

2 18 10 1

5 5 2

Complaint Handler Interviews

3 3 0 12 8 1

8

Client Interviews

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C. CHRISTENSEN, S. DAY AND J. WORTHINGTON

Appendix 2 QUANTITATIVE DATA 1. Dissemination of Complaint by Client The complainants interviewed were asked whether they had told anyone else about their complaint and the manner in which it had been handled. If they had mentioned their complaint to others they were also asked to estimate how many. No. of complainants who told people about their complaint No. of complainants who told no one about their complaint Total

36 8 44

82% 18% 100%

Those complainants who had mentioned their complaint to other people estimated the number to be anything from "a few" to "everyone I meet". It was not possible to find an average with such a wide variance. 2. Impact of Rule 15 Information on Clients The complainants were asked if they received information from the firm informing them how to register a complaint, in accordance with the provisions of rule 15. No. of complainants who recalled receiving information No. of complainants who did not receive information* No. of complainants who were unsure Total

6 24 11 41

15% 58% 27% 100%

*Of the 44 complainants interviewed, 3 were not clients and have been removed from these statistics as they would not have received rule 15 information in any event. 3. Work Classification The 44 complaints investigated fell into the following broad categories of legal advice: Family Criminal Personal Injury Other Litigation Property/Planning Commercial Probate Debt Other Total

8 1 5

8 6 3 7 2 4 44

18% 2% 11% 18% 14% 7% 16% 5% 9% 100%

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4. Client Classification The complainants were funded in their original action as follows: Private client - Legal Aid Private client - personal funding Private client - insured Commercial client Non-clients Total

9 26 1 5 3 44

20% 60% 2% 11% 7% 100%

5. Degree of Client Satisfaction with Complaint Handling Complainants were asked whether they were satisfied with the manner in which their complaint had been handled by the firm, and if so, whether they would instruct the firm again. No. of satisfied complainants No. of dissatisfied complainants Total

10 34 44

23% 77% 100%

No.of complainants who would instruct Firm again No. of complainants who would wot instruct firm again Total

6 37 44

14% 86% 100%

* Note: One complainant who was not a client was unable to comment as to whether he would instruct the firm given the choice. Two other complainants were also not clients but did feel able to judge whether the way in which the complaint had been handled affected any future decision to instruct the firm. On this basis the % is calculated out of 43 or 44 as appropriate. 6. Nature of the Complaint The complainants were asked to define the nature of their complaint. Frequently the complaint consisted of several separate points of complaint. This fact is reflected in the following table and accounts for the double and triple counting. Consequently, the % figure indicates that of the 44 complaints, a certain % included an element of complaint relating to the particular headed item. The % will not add up to the total number of complaints of 44. Service/ Delay Fees Advice Communication Collusion 15

29

34%

66%

23 52%

24 55%

5 11%

PART 3

Collective Administrative Justice

11 Separation of Functions and Regulatory Agencies: Dispute Resolution in the Privatised Utilities AILEEN McHARG*

Introduction ECAUSE of the ongoing presence of monopoly and other market failures, the privatisation of the United Kingdom utility industries - telecommunications, gas, water and electricity1—was accompanied by the establishment of new regulatory agencies charged primarily with protection of consumers and, where possible, promotion of competition.2 In institutional terms, this represented something of a departure for British public administration which, especially compared to the United States, had made relatively limited use of regulation by agency as a means of economic intervention.3 Although designed partly as a solution to the perceived failures of the previous institutional form chosen for these industries - the Morrisonian model of public ownership4—privatisation plus regulation has, if anything, proved to be more controversial. Since the sale of BT in 1984, the various Directors General5 and their offices—OFTEL, OFGAS, OFWAT and OFFER—have been subject to

B

I am grateful to Colin Scott for his comments on an earlier version of this paper. Rail is excluded from the discussion because the institutions and forms of regulation used for that industry differ in significant respects from the others. 2 The establishment of such bodies was not inevitable. In New Zealand, for example, privatised utilities are regulated primarily through general competition law and by revived common law controls on common callings, though dominant firms also exercise some more specific regulatory functions and the Government has intervened or threatened to intervene in various ways in pursuit of certain policy goals. 3 See generally R Baldwin and C McCrudden Regulation and Public Law, Weidenfeld & Nicolson, London, 1987. 4 I.e., public corporations operating at arm's length from Ministers and Parliament— named after Herbert Morrison who advocated adoption of this model of nationalisation in his book Socialisation and Transport, Constable Sc Co., London, 1933. 5 Of Telecommunications, Gas Supply, Water Services and Electricity Supply. 1

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AlLEEN MCHARG

mounting criticism (from customer groups, regulatees, academics, politicians and other interested parties) and the subject of an unprecedentedly public debate over their (lack of) accountability.6 It came as no surprise that, within a few months of taking office, the Labour Government announced a review of the whole issue.7 A subsequent Green Paper8 has recommended some significant institutional changes, which will require legislative implementation, including merger of the two energy regulators (OFFER and OFGAS) and a possible merger of OFTEL with other communications regulators.9 The debate over regulatory accountability is a complex and multi-faceted one, some of the numerous suggestions for reform being complementary, but others mutually exclusive. The debate is at heart a highly political one, revealing fundamental disagreements as to the nature of the regulatory task and the legitimate extent and objectives of public control over private enterprises. The terms in which these issues have been discussed are, however, very familiar to administrative lawyers. They concern, for example, the desirability of regulatory discretion and the relative merits of confining it through rules, structuring it via procedures or checking it by appeals; how to reconcile the desire for regulatory independence with the demands of public accountability; and the appropriateness or otherwise of entrusting a single agency with multiple regulatory functions. It is the last issue which is the subject of this paper. As Baldwin and McCrudden have pointed out, regulatory agencies are characterised by the combination of functions which have traditionally been kept separate10—in particular, the mixture of rule-making or policy development functions with rule-enforcement or adjudicative ones. This is no less true of the utility regulators, although the precise range of tasks undertaken varies from case to case. Initial regulatory rules were determined either by the privatisation statutes or by the licences negotiated between the original operators in each industry and 6 See, e.g., CD Foster Privatisation, Public Ownership and the Regulation of Natural Monopoly, Blackwell, Oxford, 1992; C Veljanovski The Future of Industry Regulation in the United Kingdom, European Policy Forum, London, 1993; E Butler et al. But Who Will Regulate the Regulators? Adam Smith Institute, London, 1993; P Hain Regulating for the Common Good, GMB, London, 1994; D Corry et al. Regulating Our Utilities, IPPR, London, 1994; D Helm "British Utility Regulation: Theory, Practice and Reform" (1994) 10 Oxford Review of Economic Policy 17; C Graham Is There a Crisis in Regulatory Accountability? CIPFA, London, 1995; Report of the Commission on the Regulation of Privatised Utilities, European Policy Forum/Hansard Society, London, 1996; G Palast "Secrecy, Democracy and Regulation" (1996) 6 Consumer Policy Review 137; National Audit Office The Work of the Directors General of Telecommunications, Gas Supply, Water Services and Electricity Supply, H.C. 645, 1995-6, HMSO, London; Trade and Industry Select Committee Energy Regulation, 1st Report, H.C. 50 1996-7; T Prosser Law and the Regulators, Clarendon Press, Oxford, 1997. 7

Department of Trade and Industry Press Release, 97/427,30 June 1997. Department of Trade and Industry A Fair Deal for Consumers: Modernising the Framework for Utility Regulation, Cm 3898, HMSO, London, March 1998. ' Ibid., paras. 4.9-4.12 and 4.21. The latter issue will be considered in a separate consultation exercise. 10 Op. cit., note 3, p 3. 8

Separation of Functions and Regulatory Agencies

213

the Government. In addition, Ministers retain important powers to shape regulatory obligations in particular areas.11 However, the Directors General do have significant opportunities to engage in standard-setting, both directly by amending existing licences, issuing subsequent licences, establishing quality standards (via statutory instrument), approving Codes of Practice, granting consents and giving directions on particular issues, and indirectly, by advising Ministers and other agencies and publishing information. At the same time, the regulatory offices are a major locus for the resolution of disputes in the industries.12 Dispute resolution functions include enforcing statutory and licence obligations and general competition law, granting determinations under statute or licence provisions, hearing appeals and handling complaints. As Baldwin and McCrudden go on to claim, this combination of functions is at once the source of the perceived effectiveness of regulatory agencies and the reason for their constitutional awkwardness.13 Difficulties arise because we have different expectations about what constitutes fair adjudication, on the one hand, and efficient, effective and legitimate policy-making, on the other. Fair adjudication traditionally requires an impartial decision-maker who reaches conclusions based on the application of existing standards, rather than by developing new ones. It also requires "strong responsiveness" to the immediate parties to the case - that is, decisions are based on evidence and arguments presented by the parties and not on other factors. A "legislative" decision-making model, by contrast, typically involves a decision-maker with overt policy goals, who is free to take account of any relevant facts or arguments, and where all interested parties may participate in the decision, whether directly or indirectly. Clearly, it is difficult to conform to both decision-making models in the same institutional setting. A multi-function regulatory agency may thus find it impossible in practice to comply with "judicial" standards when dealing with disputes. At the same time, such an obligation could undermine its effectiveness in achieving its policy goals. Responses to this issue have tended to be polarised between what Asimow, in the United States context, has called "judicial" and "institutional" approaches.14 In line with the former, some commentators have called for regulatory functions to be curtailed, either to standard-setting or dispute resolution, with the other hived off to some other institution, thus re-establishing a conventional distinction between "legislative" and "judicial" tasks. The alternative response has been to claim that the regulators need broad 11 These will in fact be enhanced by the Green Paper proposals. In particular, it recommends that Ministers should be given clear responsibility for setting social and environmental obligations—op. cit., note 8, paras. 2.13-2.19. 12 Some disputes, such as ordinary contractual matters, are resolved in the courts or by industry arbitration schemes. 13 Op. cit., note 3, p 3. 14 "When the Curtain Falls: Separation of Functions in the Federal Administrative Agencies" (1981) 81 Columbia L. R. 759, p 759.

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AlLEEN MCHARG

discretion and access to a range of decision-making techniques in order to perform their jobs effectively, with a consequent assertion of the "regulatory" rather than "adjudicative" character of their dispute resolution functions.15 Such polarisation contrasts with the situation in the United States. There, state and federal Administrative Procedure Acts attempt to mediate the tensions caused by the competing demands of fair adjudication and effective policymaking though an elaborate set of procedural controls designed to reap the administrative benefits of multi-function regulatory agencies whilst ensuring that fairness to the parties involved in disputes is not unduly sacrificed. In this as in other respects, however, American experience has largely been viewed as a source of lessons as to what to avoid in designing a regulatory system, rather than a model to emulate. This is not to say that there has been no interest in regulatory procedures in the United Kingdom. On the contrary, the very limited statutory requirements and the regulators' alleged failure to adopt adequate procedures for themselves have been the subject of much criticism, though most commentators also acknowledge that matters have improved considerably in recent years.16 More generally, enhanced decision-making procedures are seen by some as a means of improving the learning capacities and pluralism of the regulatory regimes, and hence their "reflexivity" or responsiveness to their environments, which can assist in overcoming familiar causes of regulatory failure such as inadequate information or expertise and capture by regulatees.17 The Utilities Green Paper has responded to these arguments to some extent, recommending that the regulators should have a general duty to give reasons for key decisions and should consult over and draw up Codes of Practice on their procedures. 18 However, what has so far been lacking in the debate over regulatory procedures - and is entirely absent from the Green Paper—is a detailed consideration of the type of arrangements appropriate for different regulatory tasks. Though there is some acknowledgement that procedures must be tailored to the precise decision in question,19 the focus of discussion and recommendations for reform has nevertheless been on major policy-oriented events such as price reviews or other licence modifications. This, it may be argued, is merely symptomatic of a more general lack of 15

See section II below. See, e.g., Graham op. cit., note 6, p 46; Commission on the Regulation of Privatised Utilities op. cit., note 6, para. 5.2; Trade and Industry Committee op. cit., note 6, paras. 157 and 162. 17 See Prosser "Regulation of Privatised Enterprises: Institutions and Procedures" in L Hancher & M Moran Capitalism, Culture and Regulation, Clarendon Press, Oxford, 1989, p 144; C Scott "Analysing Regulatory Space: Implications for Regulatory Design and Reform", paper for presentation at Law and Society Annual Conference, Aspen, Colorado, June 1998, p 12. 18 Op. cit., note 8, recommendations 7.3 and 7.4. 19 E.g., Graham op. cit., note 6, p 55. 16

Separation of Functions and Regulatory Agencies

215

attention to the dispute resolution functions of regulatory bodies. Both major studies of regulatory agencies from a public law perspective—Baldwin and McCrudden's Regulation and Public Law and Prosser's Law and the Regulators—exclude consideration of grievance handling. The rationale for this, according to Baldwin and McCrudden, is that "[t]here is a danger of distorting the way we view administrative law, of skewing it towards grievance settling to the detriment of research on other functions of government and law." 20 This is undoubtedly true as a general proposition, but in the case of the utilities it has created its own distortion—a gap in our knowledge about one of the regulators' major roles. It also has the effect of leaving unexamined the adequacy of conventional notions of adjudicative fairness and their application in the regulatory context. This is especially ironic since, as Harlow and Rawlings have reminded us, one reason for the growth of regulatory agencies is to permit deviation from decision-making models derived from the courts. 21 The aims of this paper are therefore fourfold. First, it assesses the place of dispute resolution in utility regulation and the case for and against institutional separation. Second, it discusses the United States' procedural approach to separation of functions and attitudes to the issue in this country. Third, it examines the procedures that the utility regulators actually employ in carrying out their dispute resolution functions and the extent to which these strike an appropriate balance between the demands of fairness and effective regulation. Finally, it considers what lessons can be learned for the future organisation and control of regulatory decisionmaking in this area.

The Place of Dispute Resolution in Utility Regulation As indicated above, disputes can come before the Directors General in a variety of forms. They may involve disagreements between utility companies and their customers or between two licensees; they may concern complaints about a company's conduct or the failure of the parties to reach agreement on some issue; and they may arise either under statute, under a licence condition or from some other agreement. Further distinctions may be drawn between situations in which the Director General is the first instance decision-maker and those in which s/he acts in an appellate capacity; between cases in which the regulator is formally a party to the dispute and those in which s/he is more clearly occupying a "judicial" role; and between situations where direct sanctions are available and those where informal settlements must be sought or indirect sanctions used. 20 21

Op. cit., note 3, p 326. Law and Administration,

Weidenfeld & Nicolson, London, 1st ed., 1984, p 62.

216

AlLEEN MCHARG

The full range of the regulators' dispute resolution powers is too extensive and disparate to list in its entirety. However, the main provisions are as follows. First, each regulator has a duty to investigate representations concerning potential breaches of statutory or licence conditions22 and, if necessary (and if not precluded by her or his general duties), to issue enforcement orders, breach of which may in turn be enforced in the courts by the Director General or by any other affected person.23 Second, a number of statutory provisions empower the regulators to make determinations, which have the force of county or sheriff court judgments, relating inter alia, to disputes over terms and conditions of supply to customers,24 the companies' compliance with guaranteed standards of performance,25 deposits,26 and meter accuracy. 27 The Competition and Service (Utilities) Act 1992 also conferred powers on the Secretary of State to make regulations enabling the Directors General to determine billing disputes, but these have not so far been brought into force.28 Third, there is a general statutory power to create licence provisions requiring matters to be referred to the regulators for determination,29 notable examples of which are disagreements over the terms on which companies or their customers are entitled to connect to and use other operators' systems.30 Fourth, the Directors General hear appeals against certain decisions made by licensees, such as the grant or refusal of trade effluent consents and refusals to adopt sewers by sewerage companies31 or the amendment (or refusal to amend) the Pooling and Settlement Agreement by electricity companies. Finally, they have a general jurisdiction, exercised concurrently with the statutory consumer bodies, 32 to deal with complaints against licensees.33 If none of these specific powers is exercisable in respect of a particular complaint, the regulator may attempt to resolve the dispute informally, seek a licence amendment imposing new obligations on the company or make a reference to the Monopolies and Mergers Commission (MMC) if s/he 22 S.49 Telecommunications Act 1984 (TA); s.31 Gas Act 1986 (GA); s.45 Electricity Act 1989 (EA); s.30 Water Industry Act 1991 (WIA). 23 SS.16-19 TA: ss.28-30 GA; ss.25-28 EA; ss.18-22 WIA. 24 S.27F TA; S.14A GA; s.23 EA; S.30A WIA. 25 S.27A TA; s.33A GA; s39 EA; ss.38 and 95 WIA. The gas regulator has chosen not use her statutory powers to set standards of performance, relying instead on a licence condition. Hence in this case disputes are settled under licence rather than statutory powers. 26 S.27I T A . 27 Sch.7, para.l(7) EA; S.14A and sch.5 paras. 1-4 GA. 28 S.27G TA; S.15A GA; s.44A EA; S.150A WIA. 29 S.7(6)(c) T A ; s.7(8)(c) GA; s.7(3)(c) EA; S.12(2) WIA. 30 E.g., Public Electricity Supply licence Condition 8C; BT's Public Telecommunications Operator's licence Condition 13—though OFTEL is now withdrawing from detailed determination of interconnection agreements—see further note 143, below, and accompanying text. 31 Ss.105,122 and 126 WIA. 32 Except in the case of telecommunications. 33 S.49 T A ; s.32 GA; s.46 EA; ss.29 and 30 WIA.

Separation of Functions and Regulatory Agencies

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considers that the licensee is abusing its monopoly position or engaging in an anti-competitive practice. Once it comes into force, however, the new Competition Act will replace this last option with direct powers for the Directors General to take action against anti-competitive agreements and abuses of dominant positions. Of all these dispute resolution functions, it is the statutory powers of determination which have given rise to the most widespread concern. These effectively put the regulators in the place of the courts, providing consumers with a cheap alternative to litigation.34 There were no such powers in the first two privatisation statutes, the Telecommunications Act 1984 and the Gas Act 1986. However, following criticism that OFTEL and OFGAS were too weak to be able to protect consumers adequately,35 determination powers were included to a limited degree in the Water Act 198936 (in respect of disputes under the guaranteed standards of performance) and to a greater extent in the Electricity Act 1989 (covering supply and metering disputes as well). As part of the Citizen's Charter initiative, the Competition and Service (Utilities) Act 1992 brought the telecommunications, gas and water regulators into line with OFFER, also strengthening the latter's powers in some respects. During the passage of the 1992 Act, the Council on Tribunals reiterated the views it had earlier, and unsuccessfully, expressed in relation to the Water and Electricity Bills that these determination powers were judicial rather than regulatory in nature and hence ought to be made subject to its jurisdiction.37 Others, including the Labour Party,38 a Conservative backbencher,39 and a Financial Times leader,40 went further, arguing that economic regulation and investigation of complaints ought to be separated and an independent consumer ombudsman established to deal with the latter. Their argument was essentially, as Lewis and Birkinshaw have put it, that "a person who has bargained prices, objectives and standards may not be sufficiently disinterested to hold the ring as between the utility and its customers." 41 The Government resisted both sets of arguments, though in order to ensure that the Bill completed its Parliamentary stages before the 1992 General Election42 it was forced to concede a duty on the regulators to give reasons in respect of

34 T h e regulators have p o w e r s to award costs and expenses depending on the conduct and means of the parties. 35 See, e.g., National C o n s u m e r Council In the Absence of Competition, HMSO, London, 1989. 36 N o w consolidated as the Water Industry Act 1991. 37 See Annual Report 1988-9, H . C . 114, 1989-90, paras. 2 . 2 7 - 2 . 3 2 ; Annual Report 1991-2, H . C . 316, 1992-3,paras. 2 . 8 - 2 . 1 0 . 38 H . C . Deb. Vol. 199, cols. 49-50 (18 N o v e m b e r 1991) (Gordon Brown MP). 39 H . C . Deb. Vol. 199, col. 63 (18 N o v e m b e r 1991) (Tim Smith M P ) . 40 11 N o v e m b e r 1991. 41 When Citizens Complain, O p e n University Press, Buckingham, 1993, p 219. 42 See H.L. D e b . Vol. 536, col. 1514 (13 March 1992).

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determinations. Subsequently, the Council on Tribunals also managed to persuade the Directors General to accept a measure of "informal" supervision in this area. 44 More general criticisms of the current regulatory regimes on separation of powers grounds have been made by Veljanovski45 and, to a lesser extent, Helm. 46 Voicing concerns expressed by the utility companies themselves,47 Veljanovski has argued that weak accountability and the combination of different functions in the hands of the regulators tend to lead to more widespread use of non-legal techniques and more intensive regulation.48 This breaches the "regulatory bargain" struck between the Government and the companies at the time of privatisation and departs from the ideal of stable, transparent and rule-based regulation. He has claimed that licensees are "subject to the justice of a kangaroo court;" 49 that regulatory inquiries resemble "fishing expeditions", instead of the adversarial processes of information generation associated with the common law;50 and that utility companies have to anticipate regulatory policy rather than being given fair notice of what is required of them. 51 Helm has also made the charge that the regulators are judges in their own cause,52 though his primary concern is with the loss of efficiency which he has alleged arises from regulatory instability. Nevertheless, both have argued for the establishment of a clearer framework of regulatory rules and for the separation of licence amendment and licence enforcement functions, the former becoming the responsibility of the MMC. 53 Veljanovski has also proposed that there should be much stricter procedural controls on the regulators' remaining functions to ensure fairness to the parties and that third parties, as well as the Directors General, should be able to enforce statutory and licence requirements so that their remedies are not dependent upon the exercise of regulatory discretion.54 The counter argument to such separation of powers-inspired critiques is that, because the licensees have far greater informational and other resources than the regulators, the latter need discretion and the flexibility of access to a 43 Ss. 27A(7) and 27F(4) T A ; ss.HA(2) and 33A(7) GA; ss.23(lA) and 39(5A) EA; ss.30A(3), 38(5) and 95(5) WIA. 44 Annual Report 1991-2, op. cit., note 37, para. 2.10. 45 "The Regulation Game" in C Veljanovski (ed.) Regulators and the Market, Institute of Economic Affairs, London, 1991; op. cit., note 6; The Need for a Regulatory Charter, European Policy Forum, London, 1993. 46 Op. cit., note 6. 47 See, e.g., H.L. D e b . Vol. 535 col. 952 (14 February 1992) (Baroness Platt of Writtle, a non-executive director of British Gas). 48 Op. cit., 1991, note 45, p 16. 49 O p . cit., note 6, p 81. 50 Ibid., p 66. 51 Ibid., p SI. 52 Op. cit., note 6, p 36. 53 Veljanovski op. cit., n o t e 6, pp 82-5; H e l m op. cit., n o t e 6, pp 34-6. 54 O p . cit., note 6, p 85.

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range of regulatory techniques in order to redress the balance.55 Thus, for example, there is a symbiotic relationship between complaints handling and other regulatory functions. Though not all disputes raise wider concerns,56 dealing with individual problems is one of the most important means by which the Directors General can monitor the industries' compliance with regulatory obligations and it helps to identify new areas of concern which feed into the policy-making process.57 Integration of complaints handling into the regulatory regimes also increases the effectiveness of dispute resolution. The background presence of the regulators' other powers makes the companies more likely to accept their recommendations in individual cases than they would be if they were dealing with an independent ombudsman. 58 Moreover, the regulators are better placed to take action to address and remove the underlying causes of complaints rather than merely reacting to individual problems as they arise,59 which benefits all affected parties and not only those who complain. Second, because the regulatory offences can be difficult to define and detect, 60 and because events in the industries often move very fast, the combination of rule-making and adjudicative functions gives the Directors General flexibility to develop policy on a case-by-case basis, without having constantly to amend the licences. New and unforeseen abuses can thus be tackled immediately rather than being prohibited for the future only.61 In these circumstances, Veljanovski's argument that discretion to interpret rules is less objectionable than discretion to change rules 62 seems naive. Some of the regulators' dispute resolution functions raise enormously important policy questions. The ability to determine the terms of interconnection 55 Foster op. cit., note 6, pp 218, 268; see also J Vickers 8c G Yarrow Privatisation: An Economic Analysis, T h e M I T Press, O x f o r d , pp 212, 225-6 and 241. 56 OFTEL Annual Report 1984, H . C . 4 5 7 , 1 9 8 4 - 5 , p 3 1 . 57 See, e.g., O F T E L Annual Report 1987, H . C . 4 3 2 , 1987-8, p 9; OFTEL Improving Accountability, L o n d o n , 1997, p 7; O F W A T Annual Report 1990, H . C . 4 9 2 , 1990-1, p 55; OFFER Annual Report 1996, H . C . 1 7 , 1 9 9 7 - 8, p 90. 58 H . C . Deb. Vol. 199, col. 4 2 (18 N o v e m b e r 1991) (Peter Lilley MP). 59 O F W A T Annual Report 1991, H . C . 3 1 , 1992-3, p 27; O F T E L Annual Report 1992, H . C . 718, 1992-3, p 36; H . C . D e b . , Standing C o m m i t t e e E, col. 27 (26 N o v e m b e r 1991) (John R e d w o o d MP). 60 Foster op. cit., note 6, p 258. 61 For these reasons, the Director General of T e l e c o m m u n i c a t i o n s has included a new Fair Trading C o n d i t i o n , first in BT's licence, and subsequently in the licences of all other operators, which enables him t o take action against any anti-competitive practices. BT sought to challenge this as ultra vires o n the ground, inter alia, that it deprived the company of the procedural protection of being able to "appeal" to the M M C before new regulatory obligations are imposed. T h i s argument w a s rejected by the H i g h Court since B T could have exercised this right by objecting to the n e w licence condition, but had failed to d o s o — R v

Director General of Telecommunications ex p British Telecommunications pic. Lexis, 20 December 1996. *2 Op. cit., 1993, note 45, p 3.

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agreements in telecommunications or to hear Pool appeals in electricity,63 for example, have both been crucial instruments for encouraging the development of competition in those industries. Hence the distinction between rule-making and adjudication is at best one of degree, not one of kind, and entrusting them to separate institutions simply creates the risk of inconsistent interpretation of regulatory objectives. Admittedly, not all of the regulators' dispute resolution functions fall into this category; some involve narrow questions of statutory interpretation or questions of general legal policy.64 In such cases, however, the scope for abuse of power is correspondingly limited and the regulators' decisions are, in any event, subject to the supervision of the courts. Finally, from an institutional perspective, the argument that combining functions in one office tends to lead to more informal regulation is seen as advantage and not a criticism. Adopting a "compliance" approach, which relies primarily on persuasion and education, rather than an adversarial "deterrence" one, can be a quicker and more effective way of bringing industry practice into line with regulatory values, as well as more economical of scarce regulatory resources.65 Thus, for example, there is value to both regulator and regulated in the latter being able to seek advice on an informal basis about the meaning of particular regulatory requirements, though it blurs the distinction between rule-making and rule-application.66 The essence of the case against institutional separation of regulatory functions is that the conception of "fairness" that it employs is too narrow. The doctrine of separation of powers is usually invoked as a means of preventing abuse of power, in order to protect the citizen against the state.67 However, it may be argued that under-use of power is just as serious, especially where the main beneficiaries are powerful private monopolists or oligopolists. Veljanovski in particular can be accused of attempting to elevate the interests of the regulated above the effectiveness of the regime and, hence, above the 63

The Pool is the wholesale electricity generation market. An example of the former are disputes over the circumstances in which gas and electricity suppliers are entitled to disconnect customers who are suspected of tampering with their meters—see, e.g., R v Director General of Gas Supply ex p Smith, Lexis, 31 July 1989 (see further below, note 133 and accompanying text). An example of the latter are disputes as to the meaning of s.21(b) EA, which allows Public Electricity Suppliers to impose terms on customers "restricting any liability of the supplier for economic loss resulting from negligence which it is reasonable in all the circumstances for that person to be required to accept." The Director General of Electricity Supply has determined such disputes by reference to general principles of liability for economic loss in negligence. 65 See Scott op. cit., note 17, p 9. 66 See in this collection J. Black, "Talking About Regulation". 67 See, e.g., SG Breyer 8t RB Stewart Administrative Law and Regulatory Policy, Little Brown & Co., Boston, 3rd ed., 1992, p 33; J Braithwaite "On Speaking Softly and Carrying Big Sticks: Neglected Dimensions of a Republican Separation of Powers" (1997) XLVH M

Univ. of Toronto L.J. 305, p 308.

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interests of other stakeholders, especially consumers. From this perspective, therefore, the "fairness" of the regulatory regimes ought to be judged by reference to the results they achieve, rather than in formalistic terms. Despite the Labour Party's views in Opposition, it seems now to have accepted, albeit implicitly, the case against complete separation of functions. Events since 1992—in particular, the utilities' continuing ability to earn very healthy profits even while complaining about the burdens of regulation68— have tended to reinforce the perception that the balance of power between the companies and the regulators lies in favour of the former.69 Accordingly, while the Green Paper is concerned to curtail excessive regulatory discretion and to improve consistency and stability, it makes only limited reference to the question of allocation of dispute resolution functions.70 Indeed, insofar as the Government is concerned to separate functions, this relates to the division of economic regulation from social and environmental regulation, with the latter being seen as properly the responsibility of Ministers.71 This does not, however, mean that the regulators' combination of standardsetting and dispute resolution functions is wholly unproblematic. First, even though adjudicative decisions may involve policy questions, the decision to act through an individualised rather than a generalised process necessarily implies that the interests and circumstances of the parties directly involved in the dispute are of particular relevance to its resolution and hence deserve special recognition. Individualised processes also create the potential for particularised abuses of power,72 again entitling the immediate parties to procedural protection. Thus, for example, a customer or rival company left without an adequate remedy because the regulator has chosen not to take enforcement action against a licensee—albeit for sound reasons of policy or resource conservation—would understandably be aggrieved if they had been given no opportunity to make their case for action prior to the decision being made. Similarly, when companies are being penalised in respect of past actions, their settled expectations 68

British Gas has been the exception t o this rule in recent years. This was most starkly illustrated in 1995 when the electricity regulator was forced t o reopen his review of the price controls of the regional electricity companies in England and Wales only months after he had announced proposals to tighten the caps, when the attempted take-over by Trafalgar House of Northern Electric induced the latter t o reveal the extent of its wealth in trying t o fend off the bid. It became clear at that point that the companies had managed t o conceal from the regulator their true potential for reducing prices. 70 It asks for views on whether the complaints handling function should be vested in the regulators o r in independent consumer bodies—op. cit., note 8, recommendation 3.2. See further below, note 197 and accompanying text. T h e r e is currently no question of formal powers to settle disputes being vested elsewhere until such time as competition is fully developed and sector-specific regulatory offices a r e , by implication, n o longer necessary—ibid., para 3.18. 71 See note 11, above. 72 E Rubin " D u e Process and the Administrative State" (1984) 72 Calif. L. R. 1044, p 1119. 69

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about what was required of them demand greater recognition than when rules are being changed prospectively. Conversely, the policy content of adjudicative decisions must also be properly acknowledged. A determination which has significant consequences for the operation of the industry as a whole, or which can be expected to act as a precedent for other similar cases, ought not to be treated simply as a bipolar dispute between the immediate parties, but made in the light of the fullest possible input of information and argument. Second, Lewis and Birkinshaw's point about the perception of bias that may arise from the combination of rule-setting and dispute resolution functions is a valid one. The regulators must of course be entitled to exhibit an "institutional" bias in favour of their own policies when resolving disputes.73 This will naturally make them less amenable to certain arguments from the parties than others—for example, that a licensee's service is defective in some respect when the company is acting in accordance with policies approved by the Director General.74 What is to be avoided, however, is the perception that particular issues have been prejudged before the parties' views have been heard or that the regulator has a general predisposition in favour of one side or the other. An informal regulatory style oriented towards compliance, for example, is open to interpretation as evidence of capture by incumbent companies.75 In the utility context, because of the "bargained" nature of the licence amendment process (the regulators may make references to the MMC if licensees refuse to accept changes, but these are expensive and time-consuming) and because the Directors General are to a large extent reliant on the companies for information, they may be unwilling to jeopardise good relations by taking a tough line in response to complaints. Similarly, a request for advice from a licensee may be an attempt to pre-empt the regulator's decision if a dispute later arises on the same issue. In practice, there is no compelling evidence that such capture has occurred. If anything, the problem may be the opposite: that the regulators are predisposed against incumbents. For example, following the first determination of interconnection terms between BT and Mercury in 1985, the then Director General of Telecommunications (DGT) admitted that he had deliberately chosen not to give reasons because he feared that his decision, which was very favourable to Mercury, would be open to legal challenge. Similarly, though several commentators have argued that the role of the regulator is to balance the interests of customers against those of licensees and others,76 the idea that they exist to represent consumers is embedded deep in the regulatory psyche.77 This 73

See PP Craig Administrative Law, 3rd ed., Sweet & Maxwell, London, 1994, p 329. This may nevertheless be a cause of some dissatisfaction amongst complainants. 75 Scott op. cit., note 17, p 9. 7 * See, e.g., N C C op. cit., note 35; D Souter "A Stakeholder Approach to Regulation" in Corry et al. op. cit., note 6; A McHarg "Accountability in the Electricity Supply Industry: the Role of the Regulator" (1995) 6 Util. L. R. 34. This view is borne out by the terms of the statutes which impose general duties to ensure licensees can continue to finance their businesses and more general "social" obligations, such as protection of the environment, as 74

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"consumer partisan" role is reinforced by the fact that it is currently only in the gas industry that the statutory consumer body is wholly independent of the regulator. In telecommunications, water and electricity, consumer representatives are conceived more as lay advisers to the Directors General than independent consumer champions. As I have argued elsewhere,78 it is difficult to see how the regulators can act both as advocates for consumers and as arbiters between them and the industries—a point which applies to all regulatory functions, but with particular force to dispute resolution. The Green Paper resolves this problem in one respect by recommending that all statutory consumer bodies should be placed on an independent footing.79 But it also reinforces the consumer partisan model by recommending that the regulators' general duties should be reformed to enshrine consumer protection as their overriding objective, with other relevant interests and considerations relegated to secondary duties.80 On both counts, the narrow question of procedural fairness is relevant to the effectiveness, and hence the broader fairness, of the regulatory regimes. For instance, there is considerable empirical evidence that compliance is more likely when actors perceive regulation to be procedurally fair.81 In addition, a regulator who attempts to combine consumer advocacy with impartial adjudication is unlikely to be very effective at either—unable to represent the consumer case as vigorously as it deserves, but never convincingly impartial. Indeed, an independent adjudicator may be able to make bolder decisions in protection of consumer interests than one who fears being accused of bias. The question thus arises whether procedures can be designed which protect individual consumers and licensees adequately whilst enabling the benefits of combining functions to be fully realised. The next section discusses the approach to this problem in the United States and its suitability for adoption in the United Kingdom. well obligations towards consumers—s.3 TA: s.4 GA; s.3 EA; s.2 WIA. Similarly, Foster op. cit., note 6, p 276, describes the role of the regulator as being quasi-judicial—i.e., s/he is neutral as between the parties, but is supposed to make decisions on the basis of h e r or his economic expertise rather than by balancing conflicting interests. 77 The D G T , e.g., describes its primary focus as being on customers (op. cit., 1997, note 57, p 5), while the electricity regulator consistently sums up his task as being t o protect consumers and promote competition, the latter being a means to the former (see, e.g.. Annual Report 1991, H.C. 289, 1991-2, p 1). Similarly, OFWAT lays stress on the complaints process as a service to customers, highlighting its independence from the companies, rather than its impartiality as between customers and licensees—see Procedures for Handling Complaints Against OFWAT, Birmingham, May 1997, para. 1.1. 78 "Representation of Consumers in the Electricity Industry" (1994) 4 Consumer Policy Review 88 (1994a); "The Future of Consumer Representation in the Gas Industry" Regulate July 1994 (1994b). 79 Op. cit., note 8, para. 3.10. 80 Ibid., paras. 3.3-3.8. Admittedly, the current situation, in which consumer protection is only a secondary duty is somewhat anomalous. 81 See Braithwaite op. cit., note 67, p 320.

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Internal Separation of Functions—US Proceduralism and UK Pragmatism Decision-making procedures in United States administrative agencies are governed by the federal Administrative Procedure Act 1946 (APA) or equivalent state legislation. The federal APA was enacted essentially as a reaction to the proliferation of agencies during the New Deal era, which was criticised by conservatives as violating the separation of powers enshrined in the Constitution. 82 Although challenges to the constitutionality of agencies were, on the whole, unsuccessful,83 the enactment of the APA nevertheless represented a partial victory for opponents in that it attempted to reproduce within agencies the basic constitutional division between adjudicative, rule-making and executive functions. It did so by making each subject to a different standard of procedural control, Congressional/Presidential oversight and judicial review. The Act thus represented a compromise between the "institutional" and "judicial" models of decision-making84—accepting the necessity and legitimacy of combining functions within agencies, but nevertheless attempting to ensure that this did not interfere with the fair resolution of particular proceedings.85 The strongest procedural controls and most rigorous separation of functions are reserved for adjudicative decisions, governed by ss.554 and 556-7 of the APA.86 Strictly speaking, these provisions come into effect only where a statute requires an "on the record" hearing or where constitutional due

82 See M Shapiro " T h e APA: Past, Present, a n d F u t u r e " in PH Schuck (ed.) Foundations Law, O x f o r d University Press, N e w Y o r k , 1994. of Administrative 83 In Field v Clark 1 4 3 U S 649 (1892) a n d s u b s e q u e n t cases, the Supreme Court e x p o u n d e d the doctrine that Congress c o u l d n o t d e l e g a t e legislative power t o agencies, but nevertheless consistently upheld the legality o f t h e particular delegations involved. In Panama Refining Co. v Ryan 293 US 3 8 8 (1935) a n d ALA Schechter Poultry Corp. v VS 295 US 4 9 5 (1935), by contrast, particularly broad d e l e g a t i o n s i n pursuit of N e w Deal policies were struck d o w n . H o w e v e r , following these t w o c a s e s , the Court returned t o its pre-1930s practice o f paying lip-service t o the n o n - d e l e g a t i o n d o c t r i n e , while upholding ever more sweeping and vague delegations of legislative authority t o administrative agencies. See AE Bonfteld 8c M A s i m o w State and Federal Administrative Law, West Publishing C o . , St Paul, M i n n e s o t a , 1989, pp 4 3 1 - 7 . 84 A s i m o w op. cit., note 14, p 759. 85 PL Strauss " T h e Place o f A g e n c i e s in G o v e r n m e n t : Separation o f P o w e r s a n d the Fourth Branch" (1984) 8 4 Columbia L. R . 5 7 3 , p 6 2 2 . 86 See generally Asimow op. cit., note 14. Until the case of Vermont Yankee Nuclear Power Corp. v Natural Resources Defense Council 435 US 519 (1978), however, the courts gradually increased the procedural requirements applicable to rule-making, thereby enabling more stringent judicial review, effectively turning it from a quasi-legislative to a quasi-judicial process—see Shapiro op. cit., note 82, p 65.

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process requirements apply ("formal adjudication").87 The latter is determined by balancing the strength of the (life, liberty or property) interest at stake, the risk of error arising from combination of functions, the probable value of separation of functions in minimising this risk and the fiscal and administrative burdens that would be entailed.88 The majority of agency adjudications, including most involving utilities, in fact fall outwith the scope of formal adjudication and in such cases agencies have greater freedom to determine their own procedures ("informal adjudication"). In practice, however, private sector pressure has tended to induce agencies to separate functions even where it is not strictly necessary to do so. 89 The APA attempts to ensure fair adjudication in a number of ways. First, below the level of agency heads, there is an organisational separation between investigative/prosecutorial staff and adjudicative staff. Decisions are made in the first instance by independent hearing officers, known as Administrative Law Judges (ALJs), whose appointment, pay and promotion are determined centrally rather than by the agency, who can only be removed for good cause, who are not allowed to exercise functions incompatible with their judicial position and who may not be responsible to or supervised by anyone performing investigative or prosecutorial functions. Second, the APA requires decisions to be made after an oral hearing following court-like procedures. Finally, there are restrictions on the ability of Congress or State legislatures and the Executive branches to scrutinise agency adjudicative decisions.90 By contrast, such decisions are subject to rigorous judicial oversight and will be held to be unlawful not only if they are in excess of statutory jurisdiction, unconstitutional, procedurally irregular or otherwise arbitrary, capricious or an abuse of discretion, but also if the court considers them to be unsupported by substantial evidence as revealed by the decision-making record.91 The analogy with judicial trials is not complete, however. First, third parties are entitled to intervene in hearings, though the ALJ may not engage in any "ex parte communications" 92 either with the immediate parties, other members of the agency or outsiders, including Presidential staff or members of Congress, without putting them on the record and allowing all participants to 87

Fifth and Fourteenth Amendments to the US Constitution. Matthews v Eldridge 424 US 319 (1976)—see Asimow op. cit., note 14, p 780. 89 Asimow op. cit., note 14, p 760. The 1981 Model State Administrative Procedure Act takes a different approach to the application of adjudicative procedures. The Act itself specifies the circumstances in which procedures are to apply, distinguishing between different levels of adjudications—formal adjudications, conference adjudications and emergency adjudications. "" E.g., legislative veto of the decisions in individual agency adjudications was held t o be unconstitutional in Immigration and Naturalization Services v Chadha 462 US 919 (1983) and there are no mechanisms for executive oversight of agency adjudications equivalent to those which exist for rule-making—Bon field and Asimow op. cit., note 83, p 503. 91 S.706APA. 92 S.557 APA. 88

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comment. Second, separation of functions does not prevent the ALJ applying agency policies in reaching decisions. Nor does it apply at the preliminary stage when decisions are being made to launch investigations, hold hearings or determine what issues will be adjudicated and what remedies sought. Agency heads, to whom an appeal lies from the decision of the ALJ, are also exempt and may therefore combine adjudication with other functions. Nevertheless, they may not be advised by adversaries when making ultimate adjudicative decisions and the prohibition on ex parte contacts still applies. Despite these qualifications, the American model of internal separation of functions can be criticised on a number of grounds. One set of problems relates to the difficulty of drawing coherent distinctions between adjudication and rule-making and to the artificiality of trying to fit all administrative decisions into this bipolar model. Some respond to this by arguing for more sophisticated categorisation of decisions. However, others reject altogether the idea of basing procedural design on such conceptual distinctions.93 It has been pointed out that since the hallmarks of judicial and legislative decisions are themselves procedural, to use such criteria as the basis for choosing appropriate procedures is circular.94 Thus it is argued that procedures ought instead to be determined according to their effectiveness in producing accurate results and the values one wishes to protect and promote.95 Further criticisms have been levelled at the particular procedures mandated by the APA as being excessively formal and legalistic. This, it is alleged, imposes undue costs on the administrative process, not only in financial terms, but also in terms of delay and loss of accuracy in decision-making, by hampering the exchange of information between regulatory staff involved in different functions.96 It is also questionable whether internal separation of functions actually achieves its intended goals. On the one hand, it is doubtful how much independence it really secures for the dispute resolution process when adjudicative staff must in practice come into frequent contact with colleagues occupying other roles97 and when functions are in any case combined at the head of the agency. On the other hand, if judicial review of adjudicative decisions is so extensive as to amount almost to a rehearing of the case, then one has in effect reintroduced an element of separation of functions at the appeal stage, with the attendant dangers of policy drift and loss of effectiveness. Some form of review of decisions-making, whether 93

See RA Cass "Models of Administrative Action" (1986) 72 Virginia L.R. 367. Harlow & Rawlings Law and Administration, Butterworths, London, 2nd ed., 1997, Pp31-3. 95 See, e.g., G Ganz "Allocation of Decision-Making Functions" [1972] PL 215 and 279; DJ Galligan Due Process and fair Procedures, Clarendon Press, Oxford, 1996, pp 330 and 332. But c.f. Cass op. cit., note 93. 96 See generally Asimow op. cit., note 14, p 799; R Kagan "Adversarial Legalism and American Government" in Schuck op. cit., note 82. 97 Breyer 6c Stewart op. cit., note 69, p 8 2 1 . 94

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internal or external, is of course essential to ensure accuracy and to guarantee the integrity of the process. However, fairness to the individual does not require an opportunity for a complete reconsideration of each case on its merits.98 On the whole, the British response to internal separation of functions has mirrored these criticisms, with analytic distinctions between different categories of decisions having been rejected as the basis for imposition of procedural obligations at common law in Ridge v. Baldwin." In the specific context of utility regulation, even those who advocate stronger procedural control on the American model have doubted the utility of following the adjudication/rulemaking distinction.100 First, due to the bargained nature of the licence-setting and amendment process in the United Kingdom, all regulatory decision are currently individualised to some degree—though they are becoming more generalised as competition, and therefore the number of licensees, increases.101 Second, there are similarities and differences between various types of decisions which cut across the rule-setting/dispute resolution distinction. I have already argued, for example, that some disputes involve major issues of policy;102 equally some licence amendments relate to quite technical and detailed issues. Similarly, a major licence amendment process, like a price review, may depend to a significant degree on disputed issues of fact better dealt with through an adjudicative rather than a consultative procedure. Indeed, some commentators have argued that there should be adversarial public hearings before price

98

This is not required, e.g., by Article 6 of the European Convention o n H u m a n Rights, so long as the decision at first instance is procedurally fair—see DJ Harris, M O'Boyle & C Warbrick Law of the European Convention on Human Rights, Butterworths, L o n d o n , 1995, pp 240-1. 99 [1964] A C 40. Strictly speaking, the case abolished the previously crucial distinction between administrative decisions and judicial or quasi-judicial ones. T h e courts still maintain a distinction between judicial/administrative and legislative decisions, though, the rules of natural justice being excluded in the latter context—Bates v Lord Hailsham [1972] 1 WLR 1373 (but c.f. R v Secretary of State for Health ex p US Tobacco International Inc., [1992] Q B 353, which held that ministers had a duty to consult the c o m p a n y before making a statutory instrument because it w a s in practice the only party affected). 100 Graham op. cit., note 6, p 55; Prosser op. cit., note 6, pp 283-4; see also Baldwin & McCrudden op. cit., note 3 , p 48. 101 T h e electricity regulator, e.g., conducted an elaborate consultation process to establish standard licence conditions for the post-1998 competitive supply market. T h e G a s Act 1995 actually permits standard conditions to be modified in all licences at least 9 0 % , sch. 3 para 2 1 , substituting n e w s. 23 GA 1986 without reference to the M M C if a sufficient number of licensees agree to the change (find precise section). T h e Utilities Green Paper has canvassed the possibility of extending a "rules-based" approach to licence modification more generally (op. cit., note 8, paras. 7.70-7.72), a m o v e called for in particular by the Director General of T e l e c o m m u n i c a t i o n s w h o n o w has more than 350 separate licences to

administer—Review of Utility Regulation: Submission Telecommunications, OFTEL, London, September 1997. 102 See note 6 3 , above, and accompanying text.

by the Director

General

of

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controls are amended.103 The form of the decision is thus no guide to its importance nor to the range of interests at stake. Finally, as noted in section II, the regulators' dispute resolution functions are themselves very disparate and not necessary amenable to a single procedural model. In fact, the reason for the minimal procedural obligations imposed on British utility regulators by the privatisation statutes is directly traceable to a Ministerial desire to avoid the costs and legalism of the American system.104 The guiding principle behind the design of the British regulatory regimes was the pursuit of economic efficiency and not legal notions of fairness. This position is best articulated by Foster, who has argued that the net effect of USstyle procedures is to encourage regulatory capture, because regulatees have the greatest resources to take advantage of procedures (and to seek judicial review if there is any deviation from them) and the most to gain from delayed decisions.105 In his view, therefore, the laissez-faire approach adopted in the UK is, on the whole, correct. He has recommended that the regulators themselves should develop decision-making procedures which comply with the requirements of natural justice,106 but has argued that what is necessary and appropriate to ensure fairness depends on the circumstances.107 Accordingly, the regulators should not be bound by precise procedural rules, nor can Foster see any advantages in uniformity between the different regimes.108 His primary concern is that the Directors General adopt procedures which are sufficient to protect themselves against judicial review, and hence against the risk that the courts may impose stricter obligations.109 He is sceptical about the ability of procedures to contribute to more effective decision-making.110 Somewhat paradoxically, Foster is in favour of the creation of a system of appeals on the merits from regulatory decisions, though these should lie to another economic regulator and not to the courts. 111 However, his justification for this is a technocratic one, rather than motivated by concern for individual fairness. In other words, he believes that regulatory decisions can and should be made by reference to objectively determinable economic criteria and not considerations of policy—a highly contentious suggestion in itself.112 Accepting his assumptions, though, a system of appeals would act merely as a check on the regulators' expertise and 103 Prosser op. cit., note 6, p 284; C o m m i s s i o n o n the Regulation o f Privatised Utilities op. cit., note 6, pp 86-8. 104 Foster op. cit., note 6, p 267. 105 Ibid., p p 2 6 7 , 2 7 4 . 106 107 Ibid., p 275. Ibid., p 279. 108 "Natural M o n o p o l y Regulation—Is Change Required?", CRI Academic Forum, Regulating the Utilities—Accountability and Processes, September 1993, p 10. 109 Op. cit., 1992, pp 275 and 281. 110 Ibid., p 280. 111 Ibid., pp 284-5. See also Commission on the Regulation of Privatised Utilities op. cit., note 6, pp 88-90. 112 See note 76, above and references therein.

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on the technical "correctness" of their decisions, rather than providing an opportunity to second-guess them on the merits of each case. There is clearly considerable force in the criticisms directed at the US procedural model. However, the wholesale rejection of statutory procedural guidance is in turn inappropriate. First, as Prosser points out, the costs of US-style procedures should not be exaggerated; they are in fact no more expensive and timeconsuming than certain of the procedures that British regulators have adopted voluntarily, for example, in relation to price reviews.113 Moreover, the direct costs arising out of enhanced procedures must be balanced against the potential costs of increased obstructiveness and the risks of external challenges by regulatees and other parties if they do not feel that they have been fairly treated.114 Second, as Foster's reference to natural justice reminds us, the absence of an APA in the UK does not mean that administrators are free from externallyimposed, general procedural rules. It is, however, doubtful whether these rules are adequate to deal with the specific problems which arise in a mixed-function regulatory agency. While the courts have eschewed formalistic distinctions in determining when procedural fairness applies, the content of the obligations imposed at common law is still heavily influenced by the adjudicative model. Thus, for example, though a decision-maker may take account of information other than that provided by the parties in reaching her or his decision so long as s/he gives the parties an opportunity to comment on it,115 the right to be heard is normally confined to those immediately affected by the decision. The Court of Appeal did hold in R v. LAUTRO ex p Ross116 that fairness might in some instances include obligations to third parties. But the decision suggests that this will only apply to parties whose interests are very directly and significantly affected by a decision, and even so may be overridden by considerations of administrative convenience.117 Given the lack of any duty to consult at common law before making policy decisions, it is extremely unlikely that third parties who merely have a general interest in the outcome of a particular dispute would have any enforceable right to be heard, unless they could establish a legitimate expectation to that effect.118 113 Op. cit., note 6, pp 281-2. Recent practice has been to issue a series of consultation papers over a period of months prior to publishing the final proposals which, if accepted by the company, are the subject to a further statutory period of notice and comment. If the company rejects the proposals, the whole issue is then referred to the MMC which starts the investigation afresh. 114 E.g.: "OFGAS has a very strong incentive to ensure that its procedures are satisfactory from the point of view of the parties to a dispute. If OFGAS's procedures are not satisfactory a dispute between two or more persons quickly can become a dispute between both those persons and OFGAS, with references to MPs and Ministers."—letter to the author from OFGAS, 16 December 1997. 115 ll6 Craig op. cit., note 73, p 309. [1993] QB 17. 117 In this case, the applicant's livelihood was at stake, but the court held that considerations of urgency entitled the agency to act without giving him a hearing. 118 Foster himself argues that third parties should be consulted before important decisions are made—op. cit., note 6, p 277.

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As far as the rule against bias is concerned, the English courts are equally unsophisticated. Generally speaking, a mere "institutional" bias—such as a predisposition in favour of existing policies or where it is inevitable that the decision-maker has some prior knowledge about a party—will not invalidate a decision.119 However, as Galligan points out, it is not clear at what point institutional bias turns into loss of the independence of mind which is required of a fair adjudicator 120 and the law certainly provides no guidance to the regulators as to how they may organise themselves so as to minimise the risks of this occurring. In fact, this is a general weakness of relying on natural justice to guide regulatory procedures. The highly context-dependent nature of procedural fairness may import valuable flexibility, but it does so at the expense of certainty as to what level and type of procedures are required in any particular situation—the opposite problem to that encountered in the US. A second source of general procedural obligations, and one of which we must become increasingly aware, is Article 6 of the European Convention on Human Rights. Article 6(1) states that: "In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." The European Court of Human Rights has held that Article 6 does apply in an administrative context 121 and it seems likely that many of the utility regulators' dispute resolution functions would be included.122 Once again, though, there is little guidance as to how far the demands of fair adjudication may be adapted to fit the administrative context123 and in fact the general principles expounded by the Court are even more judicialised than our domestic common law. 124 Unlike the rules of natural justice, they guarantee, for example, an oral hearing and the right to call and cross-examine witnesses as well as obliging decision-makers to publish their judgments. If the requirements of Article 6 are not met by the original decision-maker this defect may be cured by the availability of an appeal to a tribunal which does so comply. However, there is conflicting authority as to whether the ability to seek judicial review is sufficient for this purpose.125 Thus, even if the utility regulators manage to develop suitable procedures for themselves, there is a danger that these could be undermined by the courts. Once the Human Rights Act 119

de Smith, Woolf & Jowell Judicial Review of Administrative Action, 5th ed., Sweet &

M a x w e l l , London, 1995, pp 545-7. 120 Op. cit., note 9 5 , pp 443 and 446. 121 Harris, O'Boyle & Warbrick op. cit., note 98, p 165. 122 T h e phrase "civil rights a n d obligations" covers all disputes between private persons {i.e., t h o s e b e t w e e n c u s t o m e r s a n d licensees, o r b e t w e e n t w o operators, which are determined by the Directors General) and certain disputes b e t w e e n the state and individuals, in particular where property rights o r commercial interests are at stake [i.e., almost certainly including the exercise o f enforcement powers)—see ibid., p p 176-80. 121 Ibid., p 165. 124 See generally ibid., ch 6. 125 See ibid., pp 192-5.

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1998 comes into force, the regulators as public authorities will be obliged to comply with Article 6 unless there is a clear statutory intention to the contrary (though the decisions of the Strasbourg court will only be persuasive and not binding). The claim that there are no advantages in the different regulators adopting consistent procedures is also questionable. To be sure, the same goals can be achieved by more than one procedural route, 126 and it is important to be sensitive to the context in which decisions are made. An effective procedural model for one industry may produce very different results in another if the range of interested parties and the power relations between them are substantially different. However, where the regulators are making essentially the same types of decisions one would not expect appropriate procedures to vary radically. If they do, this may suggest a lack of proper attention to procedural design and an unwillingness to learn from others, rather than a genuine response to different administrative needs. Overall, inconsistent procedures may serve to enhance the impression that the regulatory "system" is chaotic and out of control. Conversely, greater uniformity may increase public confidence in regulatory decision-making.127 As Foster himself remarks, "[w]ith all its faults, the American system of judicial review saved the regulatory system from incoherence and, as a result, decay."128 In any case, it is surely undesirable that the achievement of fair and effective procedures be left to chance or the whim of individual Directors General. In the current climate, it may seem unlikely that the procedural advances that have been made in recent years will be put into reverse. But there is no guarantee that utility regulation will always remain under such intense external scrutiny, nor can we tell what contrary pressures the regimes may face in the future. The challenge, therefore, is to strike a balance between sufficient control over regulatory procedures to ensure than the twin demands of individual fairness and regulatory effectiveness are met and avoidance of the rigidity, formality and costs associated with the American system. Rather than trying to work out appropriate procedural obligations in the abstract, however, it is desirable to start, as Graham suggests,129 with an assessment of the procedures the regulators already use to carry out their dispute resolution functions and to consider what lessons might be learned as to what constitutes best practice.

126

Galligan op. cit., note 9 5 , p 2 1 . An argument made by the Council o n Tribunals in arguing for jurisdiction over the regulators—op. cit., 1991- 2, note 37, para. 2.8. 128 Op. cit., note 6, p 265. 129 Op. cit., note 6, p 55. See also Scott op. cit., note 17, p 12. 127

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Dispute Resolution Procedures—the Current Position As has already been noted, the utility statutes place only minimal procedural obligations on the regulators in carrying out their dispute resolution functions. The strongest controls apply to enforcement actions, where the Directors General must follow notice and comment procedures, giving reasons for their decisions, before issuing orders, and repeat the process if they propose to modify an order in response to the initial consultation.130 But these duties only arise once decisions have been taken, first, that there is a breach of statutory or licence condition and, second, that formal action is appropriate. The statutes specify no procedures at all for the investigation of complaints, and, apart from the duty to give reasons imported by the 1992 Act, the regulators are also free to conduct determinations in whatever manner they consider appropriate. 131 OFTEL has some additional procedural obligations under European law when handling interconnection determinations—the major focus of its dispute resolution work—though these are again quite limited. The Interconnection Directive specifies a six month time limit for resolution of disputes and a duty to give reasons, as well as listing factors which must be taken into account in reaching decisions.132 Finally, the legislation leaves the regulators entirely free to determine the internal organisation of their offices, subject only to the need for Treasury consent to the appointment of staff. There have, however, been other external influences on their choice of dispute resolution procedures, some of which have reflected "judicial" values, some more "institutional" in orientation. The most significant example of the former was a successful judicial review of OFGAS in 1989 on the ground that it had breached natural justice in its investigation of a potential enforcement matter, which concerned disconnection of a customer for alleged meter theft.133 The Director General attempted to argue that in such cases his only duties were to licensees, but the High Court confirmed that he was obliged to act fairly towards all parties involved in disputes. Here he had failed to do so because he had not disclosed to the customer all his correspondence with the company about the dispute. The Council on Tribunals has also been consulted by OFWAT and OFGAS in respect of their determination procedures. Its responses in both cases were informed by the principles laid down in its Model Rules of Procedure for Tribunals,13* which are also heavily judicialised. 130

S.17 T A : s.29 G A ; s.26 EA; s.20 W I A . See s.27F(6) T A ; S . 1 4 A ( 3 ) GA; s.23(l) EA; s.30A(2) WIA. 132 Directive 97/33/EC, O J L 199,26 July 1997, art. 9(5). 133 R v Director General of Gas Supply ex p Smith, note 64, above. 134 Cm 1434, HMSO, London, 1991; letter to the author from the Council on Tribunals, 31 October 1997. 131

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In addition, the regulators have had to take account of more bureaucratic values in the formulation of their procedures, such as speed of decisionmaking, expertise, consistency, simplicity and accessibility. For example, OFTEL's complaints functions were reviewed by the National Audit Office (NAO) in 1993, as part of an investigation of its value for money in protecting consumers.135 The agency was criticised for a number of failings, including delay in resolving disputes, inadequate staff training and the poor quality of its decision letters to customers, and it reorganised its working practices as a result.136 Concerns about loss of expert staff and speed of decision-making were reiterated in a more recent report on its work in countering anti-competitive practices in the telecommunications industry, though overall this report was very favourable.137 OFWAT's complaints handling has been subject to investigation by the Parliamentary Commissioner for Administration (PCA) and similarly criticised for excessive delay.138 Another external influence has been the Citizen's Charter initiative which applies to the regulators' own dealings with members of the public, as well as to those of regulatees. The main effect of this has been to encourage the regulators to establish targets against which to measure aspects of their performance, such as speed of response to and resolution of complaints. It has also induced some of them to carry out surveys of consumer satisfaction with their dispute resolution service, the results of which have had some impact on procedures.139 Finally, there have been some other consultation exercises over procedural matters, whether limited to discussions with Ministers and fellow regulators or canvassing wider views.140 Such external input is not unimportant, but is clearly unsystematic. Hence it is unsurprising to find that, while there are considerable similarities in the dispute resolution procedures which have evolved, there are also significant 135 The Office of Telecommunications: Licence Compliance and Consumer Protection, H.C. 529, 1992-3. 136 Harlow & Rawlings op. cit., note 94, p 388. 137 The Office of Telecommunications: Countering Anti-competitive Behaviour in the Telecommunications Industry, H.C. 667, 1997-8. 138 PCA Annual Report 1993, H . C . 2 9 0 , 1993-4, Appendix C; Selected Cases 1996—Vol. 2, Fifth Report, H . C . 5 4 3 , 1 9 9 5 - 6 , p p 102-9. 139 O F W A T op. cit., note 77, para. 2.1; O F T E L op. cit., 1997, note 57, p 3 . 140 E.g., when it w a s first established, O F W A T participated in discussions with the Department of the Environment and other regulators about complaints handling responsibilities and procedures (Annual Report 1989, H . C . 458, 1989-90, p 28) and again sought the views of licensees, customer organisations and the Council on Tribunals in the w a k e o f the 1992 Act ("Dear Managing Director" letter, 24 August 1992). OFGAS undertook a consultation exercise in 1993 regarding British Gas's standards o f performance (letter t o the author from the Council o n Tribunals, 31 October 1997) and O F T E L in 1997 undertook a major consultation exercise on its procedures and accountability generally (op. cit., 1997, note 57). Finally, the regulators and the Office of Fair Trading are required t o draw up and consult over joint procedural rules and substantive guidance for the exercise of their n e w competition l a w p o w e r s — C o m p e t i t i o n Act 1998, s.51

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differences between the regulatory agencies. One obvious common feature is that all the regulators prefer disputes to be resolved between the parties themselves whenever possible. Thus in all four industries, customers who complain to the regulators will usually be referred back to the companies if they have not exhausted the latter's internal complaints processes, which licensees are obliged to operate under the 1992 Act.141 The rationale for this appears to be twofold: first, to force the companies to confront their own service failures; and second, because the regulators wish to prevent themselves being overwhelmed by minor complaints.142 Similarly, as the number of telecommunications providers has increased, OFTEL has withdrawn from the detailed determination of interconnection terms, requiring operators to resolve disputes themselves through ordinary commercial negotiation. The regulator now only becomes involved where competition or enforcement matters are at stake; straightforward contractual disputes are left to the courts or to alternative dispute resolution mechanisms.143 The DGT has also developed an advisory role, whereby operators can seek guidance as to whether proposed activities are likely to create competition problems, thus averting potential disputes before they arise.144 He does not appear to have been constrained by this in his willingness to take enforcement action, though. 145 Even where parties cannot resolve disputes for themselves, the regulators' preference is still for negotiated settlements rather than the exercise of formal powers. However, as the companies' own procedures have become more effective, the cases handled by the regulators have become more complex and intractable 146 and there also seems to be greater resort to formal action as competition develops. This latter phenomenon may be attributable to a greater reluctance by the companies to succumb to regulatory pressure as competition cuts into their financial margins. Alternatively, it may be that the publicity surrounding formal action is a more effective signal to the industry about regulatory attitudes in a multi-operator environment. Thus, reflecting 141

Ss.27E TA; S.33E GA; s.42B EA; S.86A WIA. These are subject to the approval of the regulators. Only OFGAS appears to monitor the progress of such disputes {Annual Report 1992, H.C. 385, 1992-3, p 45; Annual Report 1997, H.C. 739, 1997-8, p 39). The other regulators appear to assume that if the complainant does not contact them again, they must be satisfied with the outcome they have achieved. It may be, however, that some are deterred from taking any further action by their initial rebuff from the regulator. M2 OFTEL Annual Report 1986, H.C. 7, 1987-8, p 6, Annual Report 1987, H.C. 432, 1987-8, p 9; OFWAT Annual Report 1992, H.C. 714,1992-3, p 27. 143 See Network Charges from 1997, O F T E L , L o n d o n , 1997, p p 9-13. 144 Harlow & Rawlings op. cit., note 94, p 375. 145 E . g . , i n 1 9 9 7 B T sought the regulator's approval for a n advertising campaign to e n c o u r a g e c u s t o m e r s t o sign u p with the c o m p a n y . H o w e v e r , t h e actual campaign differed significantly from that w h i c h h a d been proposed a n d a provisional order w a s therefore issued in M a r c h 1 9 9 7 in respect of t w o clear breaches o f the c o m p a n y ' s licence—Annual Report 1997, H.C. 652,1997-8, p 47. 146 See NAO op. cit., note 6, Appendix 7, para. B.4.3 (OFWAT); OFFER op. cit., note 57, P94.

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the more advanced state of competition in the telecommunications industry, it is OFTEL which makes greatest use of its legal powers. Even so, in 1997 it had to become actively involved in only 160 disputes.147 Moreover, of 217 competition investigations opened between 1995 and 1997, only 17 resulted in formal enforcement action.148 As far as the other regulators are concerned, OFGAS has only recently issued its first provisional enforcement order 149 (again coinciding with the spread of competition in the industry), while OFWAT and OFFER have so far issued none. Determination powers are more frequently invoked, but again many disputes in which these are potentially applicable are resolved informally—sometimes in response to decisions in other cases.150 Perhaps the most significant disparities between the industries relate to the route by which disputes are handled if the parties fail to reach agreement without regulatory involvement. In all four, distinctions are drawn between different classes of disputes, in particular between complaints from large consumers or other operators, on the one hand, and those from domestic customers, on the other. In OFTEL, for example, the former are likely to be fed straight into its enforcement section, while the latter are dealt with by complaints staff. At first sight, it may appear that domestic customers are given a lower quality service than other complainants. Alternatively, however, the difference in treatment may reflect a (not unreasonable) assumption that since large customers and operators are better able to resolve their own problems, any which reach the regulator are likely to raise more serious issues. As far are domestic customers are concerned, the major difference between the regulatory offices relates to the role played by consumer representatives in the resolution of disputes. In the water industry, a distinction is made between complaints—cases in which the regulator has no specific powers of determination—and disputes. The former are handled initially by the ten OFWAT regional offices, which are managed by the statutory Customer Service Committees (CSCs). Only if the complainant is not satisfied with the way in which the CSC has handled the case151 or if the latter is not satisfied with the company's response,152 does OFWAT itself become involved. Disputes, on the 147

Op. cit., note 145, p 29. N A O op. cit., note 137, pp 4-5. T h e investigation w a s discontinued in 15 cases because the complainant failed to provide information, and in a further 7 due to lack of jurisdiction. Of those investigations completed, n o breach of any licence or competition law obligation w a s found in 116 cases, the parties reached agreement between themselves in 21 and an acceptable change of behaviour on the part of the licensee resulted without formal regulatory action in a further 4 1 . 148

149 O F G A S Press Release 8/98, 12 March 1998. Following remedial action taken by the licensee concerned, however, the regulator subsequently decided that it w a s unnecessary to proceed to a final order—Press Release 20/98, 27 M a y 1998. 150 E.g., determinations issued by the electricity regulator under the guaranteed standards scheme in three cases in 1996 led to another 200 claims being s e t t l e d — o p . cit., note 57, p 11. 151 S.30(3)(c) W1A.

152

S.29(4) W1A.

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AlLEEN MCHARG

other hand, are dealt with from the outset by OFWAT headquarters and the CSCs are at no point involved. In both situations, once OFWAT has become involved, cases are handled by a dedicated Complaints and Disputes Division. In the gas industry, the first port of call for all cases is the Gas Consumers' Council (GCC). Complainants may go direct to OFGAS, but it will pass the case back to the GCC if no specific regulatory powers are involved. The GCC notifies the regulator of all potential enforcement matters and OFGAS can call them into headquarters at any time. Alternatively, the GCC can refer cases to the Director General where it is not satisfied with the licensee's response and where regulatory powers may be exercisable.153 In the telecommunications and electricity industries, by contrast, the primary role in resolving all disputes is taken by the regulators themselves. Complaints staff are employed and managed by the regulators (albeit located in regional offices in electricity) and consumer representatives only become involved in an appellate capacity in cases which staff are unable to resolve by negotiation and where the regulators have no specific powers to take action. Neither OFFER nor OFTEL appears to make much attempt to separate complaints staff from those performing other functions. In OFFER, for example, the regional offices which handle the majority of disputes also perform more general regulatory functions in their areas, as well as servicing the Consumer Committees. A degree of separation of functions is achieved in that problems requiring formal action are ultimately dealt with at headquarters level in OFFER, while OFTEL (which does not have a regional structure) has a panel of senior staff and specially appointed part-timers dedicated to dispute determination. 154 Nevertheless, in both agencies, complaints and disputes come within the remit of the respective Consumer Affairs Divisions which have general responsibility for customer service issues. Although there is provision for independent arbitrators to be appointed to determine certain types of disputes, this option appears to be very rarely used. The differences between the regulatory agencies are not dramatic. Nevertheless, OFWAT and OFGAS appear to take a slightly more judicial view of the dispute resolution process, while OFFER and OFTEL take a more institutional view. The former seem more concerned to preserve a distinction between cases requiring a formal regulatory response and those in which an advocacy role is all that is necessary or possible. Although OFGAS and the GCC experienced some initial problems in determining their respective roles in handling complaints, 155 the regulator clearly does not now wish to take on any more extensive role in this area: "Dispute resolution is very resource 153 See OFGAS Annual Report 1988, H.C. 197, 1988-9, pl7; Annual Report 1991, H.C. 193,1991-2, pp 52-3. 1M Op. cit., note 59, p 40. 155 Memorandum of Evidence from OFGAS to the Energy Select Committee The Structure, Regulation and Economic Consequences of Electricity Supply in the Private Sector, H.C. 307-11,1987-8, p 140.

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intensive. It can also be quite thankless. OFGAS is appreciative of the fact that the GCC has been created and does not seek to usurp its role in dealing with domestic disputes." 156 OFTEL, by contrast, does not appear to see any problems in the hybrid nature of its dispute resolution role, describing itself variously as "an advocate on behalf of customers," 157 "a route of appeal" 158 and "an honest broker" between the customer and the company in cases where it has no formal powers of intervention.159 The DGT has also stressed the regulatory benefits of his complaints role and would clearly be reluctant to lose this function.160 The advantages of integration are not necessarily lost on the OFWAT/OFGAS model, however. OFGAS, for instance, monitors complaints and enquiries on a weekly basis to identify any operational problems gas companies may be experiencing and to ensure that they are complying with their licence conditions.161 The GCC also uses information gleaned from complaints to lobby the regulator for licence changes or other action.162 Other aspects of the dispute resolution process again reveal elements of similarity between the regulators, as well as subtle differences in the ways in which they resolve the tensions between the demands of fair adjudication and those of effective regulation. In the procedures by which disputes are investigated and decisions reached, for example, one can clearly see an awareness of the demands of natural justice on the part of all four. They are scrupulous about ensuring that information provided by each party and arguments put forward are fully disclosed to the other side and that each has an opportunity to comment on the other's case. Indeed, the first telecommunications regulator stated that, although he would respect complainants' requests for confidentiality, he might not be able to use the full range of his powers in such cases.163 In addition, all the regulators now give reasons for their decisions, even when they are not obliged to do so. Such concern for natural justice inevitably involves a degree of formality in handling all complaints and especially those which have the potential to lead to a formal regulatory order. OFFER, for one, has in fact been criticised for being overly formal. Early in its life, one of the Electricity Consumer Committees accused it of merely acting as a "Post Office" between the company and the customer; it complained that everything had to be put in writing, instead of staff being able to sort out grievances in

156 157 1JS

Letter to the author from O F G A S , 16 December 1997. N A O op. cit., note 6, p 75. Management Plan for 1996-7 and Beyond, OFTEL, London, 1997, para. 4.21.

" 9 Op.cit., note 145, p 2. 160 Op. cit., 1997, note 57, p 17. 161 Op. cit., note 141, p 39. 162 See M c H a r g op. cit., 1994b, note 78, p 10. "•' Op. cit., note 56, p 9. OFFER will not usually accept information o n a confidential basis, unless both parties have agreed t o this in advance—SK Bailey "Dispute Procedures"

(1994)5 Util.L.R. 51.

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AlLEEN MCHARG

person, as had been the practice during nationalisation.164 Nevertheless, the regulators are aware of the pitfalls of excessive procedural formality—particularly in terms of delay and inaccessibility to complainants—and attempt to keep it to a minimum. Thus, for example, cases are dealt with on paper wherever possible (contrary to the advice of the Council on Tribunals which prefers oral hearings), though regulatory staff or consumer representatives sometimes meet with the parties where this seems necessary to supplement written representations or to ensure that complainants are satisfied with the handling of their case.165 The regulators have also adopted an investigative/inquisitorial style166 and one aimed at producing agreement between the parties rather than an adversarial winner-takes-all approach. OFWAT and OFFER do nevertheless hold open the possibility of oral hearings—the former in relation to trade effluent appeals and the latter for Pool appeals and other major matters, or where the parties so request. OFFER'S reasons for doing so, however, seem concerned primarily with their benefits to the regulator rather than with fairness to the parties: oral hearings are held where the issues are complicated, where the amount and length of written submissions would be very extensive and where the ability to clarify matters by questioning the parties is useful.167 OFFER'S institutional leaning seems to be confirmed by the fact that, in cases where it does hold oral hearings, it allows any interested party to attend, to submit written representations in advance and to comment at the hearing on the arguments presented by the principal protagonists. When its written procedure is used, only submissions from the immediate parties are considered. However, if the dispute raises a novel issue of importance, the Director General sometimes issues a consultation paper or invites views from the Consumer Committees. 168 OFGAS similarly consults as extensively as it feels necessary, or as it is required to by the legislation, obtaining third party views on the basis that they will be disclosed to the immediate parties and more widely if appropriate. 169 OFTEL also routinely consults third parties, confidentiality permitting, 170 and has gone furthest of all the regulators in publi164

Eastern Electricity Consumer C o m m i t t e e Annual 1992, p 7. 165

Report

1991,

OFFER, Ipswich,

Interview w i t h H e a d o f O F W A T ' s C o m p l a i n t s and Disputes T e a m , October 1997; letter t o the author from O F G A S , 16 D e c e m b e r 1997. 166 E.g., O F W A T uses standard forms t o request information in relation t o particular categories o f disputes a n d m a y also appoint inspectors or c o m m i s s i o n consultants' reports where appropriate. OFFER'S procedure also provides for the regulator t o request additional information from the parties where necessary. W h e n investigating potential enforcement matters, the electricity regulator has p o w e r s t o require information equivalent t o that o f a civil court—s.28 EA. 167 Letter t o the author from OFFER, 27 October 1997. 168 Ibid. 169 Letter t o the author, 16 December 1997. 170 N A O op. cit., 1996, Appendix 5, para. B.6.5.

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cising its dispute resolution work. Details of all new, ongoing and completed enforcement investigations and determination are published both on its web site and in its quarterly Competition Bulletin, and information about complaints more generally is contained in the quarterly OFTEL News. Moreover, it publishes its decisions in draft to allow interested parties to comment on the resolution proposed. At the close of the consultation period, responses are lodged in OFTEL's library and an additional brief opportunity for comment is allowed.171 OFWAT, by contrast, has not so far consulted third parties in the context of specific disputes, 172 though it would be required to do so if it ever took enforcement action. However, in a consultation exercise following the enactment of the 1992 Act, it set out the factors it intended to take into account in exercising its determination powers and invited views as to their appropriateness. 173 This seems to reflect a general desire to keep resolution of individual disputes and policy development separate. The Director General of Water Services has, for example, described his general approach to the resolution of disputes as being to produce a reasonable outcome on the facts of each case, subject to the interpretation of relevant legal provisions and his general statutory duties. 174 He also takes considerable pains to set out his decision-making criteria in advance, issuing guidance notes which deal with the more frequent and difficult area of complaint. 175 This has the added advantage of improving consistency and speed of decision-making—which is further promoted via an internal complaints manual setting out policy and precedent advice and by encouraging the CSCs to make use of model response letters. 176 As far as the other regulators are concerned, the scope for policy development through the dispute resolution process is obviously constrained by the degree of discretion contained in the particular statutory or licence provision in question. OFFER is further constrained by a provision unique to the Electricity Act (s.3(6)) which expressly disapplies the general statutory duties to the determination of disputes.177 This exemption appears to be based on an assumption that the determination powers are judicial rather than regulatory in character,178 which is somewhat surprising given that this was the basis on 171

O p . cit., 1997, note 57, pp 11-12. Interview with Head of O F W A T ' s Complaints and Disputes T e a m , October 1997. 173 "Dear M a n a g i n g Director" letter, 24 August 1992; see also N A O op. cit., note 6, Appendix 7, para. B.4.3. 174 See, e.g., N A O op. cit., note 6, Appendix 7, para. A.8.7. 175 See Ibid., Appendix 7, para. B.4.3. 176 Op. cit., note 142, p 28. O F T E L has a similar internal manual of procedures for handling competition c a s e w o r k — N A O op. cit., note 137, para. 2.23. 177 OFFER interprets this to include determination p o w e r s exercised under licence provisions as well as under statute. 172

178

Department o f Trade a n d Industry Notes November 1989, ss.3 and 23.

on the Electricity

Act 1989, V o l . 1,

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which the Council on Tribunals—unsuccessfully—sought jurisdiction over the regulators. 179 The consequence is that the Director General must act differently in relation to complaints depending on which sort of powers is exercisable in respect of them. This has also led to criticism that he has not used his determination powers to further general regulatory goals. For example, in determining single premises disputes180—which effectively delimited the boundary between the competitive and monopoly supply markets—he felt unable to interpret the licences in such a way as to maximise the scope of competition. 181 Exactly what principles are supposed to guide decisionmaking in such cases remains unclear. Despite this caveat, OFFER has not adopted such a strict distinction between rule-making and rule-application as OFWAT. Rather than setting out decision-making criteria in advance, it seems to prefer to retain flexibility to deal with particular disputes in the manner it considers most appropriate. Instead, standards emerge as the result of decisions in individual cases. To this end, OFFER has always published its determinations, (taking steps to ensure confidentiality where necessary), though there is no statutory requirement to do so. These form a body of precedent which provides guidance as to how similar cases will be dealt with in future, though they are not strictly speaking binding. OFFER also includes case studies of complaints and disputes in its Annual Report. In line with its general policy of transparency in decision-making, OFTEL employs a mixture of the OFVCAT and OFFER approaches. Accordingly, it issues guidelines on how it will deal with, for example, certain competition issues and publishes the results of individual determinations or enforcement cases. OFTEL considers this approach to have a number of advantages. By promoting better understanding of its policies and its interpretation of licence conditions and legislative provisions it both provides certainty to licensees as to how they will be treated and creates a deterrent effect because companies are less able to claim ignorance that certain behaviour has anti-competitive effects.182 Only OFGAS currently makes no attempt to confine its discretion when handling disputes. It neither sets out its decision-making criteria in advance nor make determinations available to anyone other than the immediate parties. However, once the Competition Act 1998 comes into force, it, like all the other regulators, will be obliged to publish substantive guidance on how it will exercise its new powers. 183

179

See H . C . D e b . Standing C o m m i t t e e E, 1 9 9 1 - 2 , col. 383 (John R e d w o o d MP). C o n d i t i o n 2(5) Second T i e r Supply Licence. 181 See S C Littlechild " T h e Office o f Electricity Regulation: the N e w Regulatory Framework for Electricity" in Veljanovski (ed.) Regulators and the Market, IEA, London, 1991, p i l l . 182 NAO op. cit., note 137, para.2.58. 183 S.51. 180

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The final area in which differences in practice between the regulators can be found is in the recourse available to persons who are dissatisfied with the way their disputes have been dealt with. Insofar as complainants and licensees are expected to attempt to resolve problems themselves, there is of course an element of appeal built into the dispute resolution process from the outset. In electricity, gas and water, an opportunity for a second look is also provided by the ability to refer problematic cases from the consumer body to the regulator (or vice versa) or from the regional office to headquarters. In the case of OFWAT at least, however, this is strictly speaking not an appeal but a review. The regulator will look at the way in which the CSC investigated the complaint and only if that is unsatisfactory will the decision be reconsidered on its merits. If the complainant is still unhappy, there is provision for a further level of internal review within OFWAT headquarters, as there is in OFTEL—to the Deputy Director General in the former case184 and to staff at a more senior level in the latter.185 In OFWAT, particularly problematic cases might even be referred to the Director General himself.186 In 1996, OFFER agreed new Citizen's Charter standards which require it, inter alia, to establish procedures for dealing with complaints against its own staff,187 but it is not clear exactly what these entail. Such provision for internal review has merit from both a judicial and an institutional perspective—giving individual parties some guarantee of fair and accurate treatment, while enabling the agency to monitor the performance of its lower level staff. OFTEL in fact has a system of internal audit which periodically tests the compliance of cases with its manual of procedures. 188 However, I suggested above that provision for external challenge to regulatory decisions is more problematic.189 At present, such opportunities are extremely limited. One possibility is to complain to an MP and from there to the PCA— and OFWAT's published complaints procedure draws customers' attention specifically to this if they remain dissatisfied with the outcome of their case. 190 The PCA will investigate allegations of maladministration but will not question the merits of decisions taken without maladministration or criticise regulatory policy. That apart, the only option for disgruntled consumers is to seek judicial review. In the case of determinations, the statutes preclude appeals against the Director General's decision, while in relation to enforce-

184 185 186 187

188

Interview with Head of O F W A T ' s Complaints and Disputes T e a m , October 1997. Annual Report 1988, H . C 3 6 2 , 1988-9, p 15. Interview with Head of O F W A T ' s Complaints and Disputes T e a m , October 1997. Op. cit., note 57, p 96.

N A O op. cit., note 137, para. 2.23. N o t e 98 and accompanying text. 190 OFWAT's Complaints Procedure, O F W A T , Birmingham, August 1994, p 8. In fact, customers are reminded o f their right to d o s o o n c e they have been through O F W A T ' s internal procedures—interview with Head o f O F W A T ' s Complaints and Disputes T e a m , October 1997. 189

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ment orders, only licensees have rights to challenge the decision, which must be exercised within 42 days (though in reality this is not much different to judicial review).191 Only in the telecommunications industry is there currently any real opportunity for external scrutiny of adjudicative decisions on their merits. When OFTEL is dealing with cases under the Fair Trading Condition,192 either the Director General or the company under investigation can call for the Advisory Body on Fair Trading in Telecommunications to provide an independent assessment of the case or of OFTEL's analysis of the issues. The Director General is then obliged to consider the Advisory Body's report when deciding whether to issue a final order using the Condition. As this is not strictly speaking an appeal, and the Advisory Body, being appointed by the Director General, is not wholly independent, this might be thought to be a reasonable compromise between an impartial guarantee of the fairness and accuracy of the dispute resolution process and the retention of ultimate control over the development of policy in the hands of the regulator. Indeed, the NAO recommended that OFTEL should consider using a similar system of external review for its competition work more generally.193 However, this has to some extent been pre-empted by the new Competition Act. This gives both licensees and third parties rights to appeal on the merits against regulatory decisions on competition matters—first to the Appeal Tribunal of the new Competition Commission and then to the Court of Appeal.194 These provisions reflect the far more judicial orientation of the new law, compared to the current highly discretionary and politicised system. Enhanced procedural protection is in effect the price to be paid for the much stronger investigation and enforcement powers available to the Competition authorities. Placed in the wider context of utility regulation, however, this approach is both anomalous and unsatisfactory. First, it makes the ievel of recourse available dependent entirely on the particular legal powers the regulator chooses or is able to invoke rather than on the nature of the dispute or the strength of the interests affected. Second, since determining when a market abuse has occurred and what should be done in respect of it can never be an entirely technical matter, it introduces the possibility of inconsistent policy development. Unfortunately, the general issue of appeals against regulatory decisions is not one which has been addressed by the Green Paper.

191 192 193 194

S.18(l) TA; s.30(l) GA; s.27(l) EA; s.21(l) WIA . See note 61, above. Op. cit., note 137, p 7. Ss.46-9.

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Conclusions and Recommendations for Reform Privatisation and related policies pursued by the Conservative (and now Labour?) governments since 1979 have presented a profound challenge to public lawyers in the United Kingdom. Not only do they break with the particular institutional models which have governed public life for most of the twentieth century, they also represent a more fundamental rejection of the values and concerns which have traditionally informed public law. 195 As this study of dispute resolution in the utility industries has tried to demonstrate, however, what Hood has called "theta-type values" (the pursuit of honesty, fairness and mutuality through the prevention of distortion, inequity, bias and abuse of office) remain as relevant to questions of institutional design as the "sigma-type values" (economy, efficiency and effectivenss) of the New Public Management.196 Nevertheless, the ways in which we protect and promote those values must adapt to fit their new environments. Since combining different functions in the same offices is both a legitimate and effective means of pursuing the goals of utility regulation, we have to find ways to manage the resulting tensions between fair adjudication and effective policy-formation. The American solution to this problem—prescription of detailed decisionmaking processes for general categories of functions—would be inappropriate and unnecessary in the United Kingdom context. For a start, the absence of detailed control of regulatory procedures in the utilities has not meant that procedural issues have been ignored. All the regulators have clearly attempted to achieve basic (and sometimes much more than basic) standards of fairness and transparency in dispute resolution, whilst being aware of the overlaps with policy-making and the need for speed, consistency, simplicity and so on. At the same time, differences between the industries dictate different procedural responses. OFWAT's quasi-judicial approach to dispute resolution is more appropriate in the relatively stable environment of the water industry (which is the least competitive of the utilities) than it would be in the highly dynamic telecommunications sector. Similarly, OFFER'S desire to retain flexibility in its handling of individual cases is an understandable response from a regulatory body which has had to grapple with the problems of a supposedly competitive electricity generation market which is dominated by two very powerful incumbents. On the other hand, the British laissez-faire approach has its own disadvantages. First, any innovative procedural models developed by the regulators are vulnerable not only to changing priorities, but also to unsympathetic judicial 195 See, e.g. Harlow & Rawlings op. cit., note 94, ch 5: M Aronson "A Public Lawyer's Response to Privatisation and Out-sourcing" in M Taggart (ed.) The Province of Administrative Law, Hart Publishing, Oxford, 1997. 196 "A Public M a n a g e m e n t for All Seasons?" (1991) 6 9 Pub. Admin. 3 , p p 10-15.

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scrutiny. Second, some of the differences between the four industries are greater than seems justified, particularly in relation to the routes by which complaints are handled, the degree of transparency achieved and the opportunities for decisions to be reviewed. The current system does nothing to ensure the spread of good practice. On both counts, therefore, there is a case for greater statutory control over regulatory procedures than there is at present. What then constitutes best practice? No single regulator's approach to dispute resolution is perfect and each could learn from the others. The prominent role played by consumer representatives in complaints-handling in the gas and water industries, for example, is an effective way of reducing the possible confusion of consumer advocacy and adjudicative roles. OFWAT's attempts to ensure that complainants are satisfied with the handling of their cases are also commendable, as in a different way is OFTEL's provision for external scrutiny of competition decisions. Moreover, OFTEL's transparency and its attempts to maximise the opportunities for third party participation in disputes are striking not only in the utility context, but in British public administration more generally. Finally, OFFER is perhaps most aware of the need to tailor procedures to the nature and seriousness of the issues involved. Identifying good practice is one thing, but how best to ensure that it is generalised is a more problematic question. The structural issues are easier to deal with. For example, as has been mooted by the Utilities Green Paper, new independent consumer bodies should be given clear responsibility for complaints-handling197 (at least for domestic and other small users), with regulatory involvement only if lobbying fails or the issues are very serious. Similarly, if the regulators' general duties are to be recast, their disapplication to dispute determination in the electricity legislation should be removed. Finally, if a statutory advisory group is appointed for each regulator98 they could perhaps be given a role in hearing appeals on the model of OFTEL's Advisory Body on Fair Trading in Telecommunications. Internal decision-making processes are, however, more difficult to regulate satisfactorily. If procedural obligations are couched too generally, little will be achieved. But if they are too specific, they may import unnecessary rigidity and create opportunities for vexatious legal challenges on technicalities. An appropriate compromise might therefore be to employ a mixture of statutory and self regulation. Legislation should specify a general set of procedural obligations applying to all regulatory functions—for example, duties to consult all interested parties before making decisions; to allow parties to comment on one another's submissions; to publish sufficient information to enable 197

Op. cit., note 8, recommendation 3.2. This was one of a number of suggestions for improving regulatory decision-making made by the Green Paper—ibid., para 7—8. However, the Government's current thinking is to replace individual regulators with three-person executive boards—A Fair Deal for Consumers: Modernising the Framework of Utility Regulation: The Response of Consulation, DTI, London, July 1998, para 70. 198

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meaningful participation; and to give adequate reasons for decisions. Then, as the Government recommends, the detailed working out of how these principles are to be realised in particular contexts could properly be left to each regulator, after consultation with one another and other interested parties, and embodied in a Code of Practice. Of course, these suggestions will not eradicate the tensions between fair adjudication and effective policy-making, and they are made tentatively for that reason. There is inevitably a limit to what can be achieved via procedural control. However, I have sought to demonstrate at least that the issues of what functions regulators perform and the processes through which they exercise them are important and merit greater attention, not only in the utility debate, but in administrative law more generally.

12 Talking About Regulation JULIA BLACK1

Introduction

T

HIS paper is concerned with conversations; conversations which occur between the regulated and the regulator about rules, their interpretation and appropriate application or waiver in the individual regulatee's circumstances. Such conversations occur in the grey world of regulatory operation and implementation, where law plays a key structuring role but where its operation is a matter of continual interpretation, adjustment, and discussion. The locations for such conversations may vary within the regulatory process and indeed within the regulatory body, but whatever their location they concern the meaning and application of rules. They may be manifested in guidance, waivers, no-action or comfort letters, non-sanctioning of breaches, or the formation of requirements tailored to the individual regulatees' circumstances; they may occur at a fairly high level in the regulatory organisation, or at the relatively low-level and hidden world of enforcement; they may be an implicit part of the regulatory process, or explicitly incorporated into the regulatory structure through the adoption of particular techniques of regulation and rule making. There are different ways in which such conversations can be conceptualised and explained, conceptualisations and explanations which have normative overtones. Conversations ameliorate the limits of rules; they meet the perennial problem of how to resolve the tension between certainty and flexibility; they allow for more general rules to be written which serve as better, because more comprehensible, guides to behaviour, whilst allowing for adjustment to individual circumstances: a form of "acoustic separation" of law. Conversations have the postmodern credentials of flexibility, communication, 1 This chapter was first published in Public Law, Spring 1998 pp 77-105. It is reproduced here with the permission of the General Editor and the Publishers, Sweet & Maxwell. It has benefited from discussions which the author had at various times with colleagues, particularly Rob Baldwin, Damian Chalmers, Judith Freedman and Colin Scott, and from the comments on the article's entirety from Rob Baldwin and Tim Cross. Her thanks go to them all; the usual responsibilities remain her own.

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responsiveness, and enable individual regulatees to participate in the decision as to the rule's application in their case. But we can also anticipate problems with such conversations; conversations cannot be so easily seen as a necessarily welcome feature of regulation. They raise issues of consistent, fair and objective treatment, of access, participation and accountability. The question which this paper thus explores is, what is the place, both normatively and descriptively, of bilateral conversations in a generalised system of regulation? The paper looks first at instances of conversations in the regulatory process, then at the reasons and justifications for them and the problems which they raise, before considering ways in which conversations could be structured to address some of these issues. It suggests that conversations between regulator and regulated in some form are probably an inevitable feature of regulation. However, it argues that simply "having a chat" is not necessarily enough: conversations, if they are both to provide the advantages which they have the potential to offer and to meet the concerns which inevitably they raise, have to be both nurtured and carefully structured. Only then can conversations provide the responsiveness and flexibility which may be needed, whilst ensuring adequate safeguards of due process and preserving the integrity of the regulatory function. Four elements, it is suggested, are central to the effective operation and acceptability of regulatory conversations: commitment, access, authority, and trust and accountability. As the extensive work on discretion and bureaucratic decision-making indicates, however, designing structures to ensure particular modes of behaviour is not a straightforward task. So in adjusting the institutional and organisational context in which conversations occur we need to be sensitive to the limitations of such a structuring process. Ways need to be found to use and accommodate conversations whilst not shifting them outside those structures or silencing them completely.

Forms of Conversation The conversations being referred to are communications and discussions between a regulatory official or officials and a regulated individual or firm as to the application of a generally applicable rule in their particular case. Rules in this sense include primary, secondary and tertiary rules, 2 and so may be embodied in, inter alia, statute, regulatory rules, circulars, guidance, licenses or franchise agreements. Conversations are not synonymous with regulation; rather they are a feature of the day to day operation of a regulatory system and the interaction between regulator and regulatee concerning the meaning and application of rules. Conversations may involve guidance or rulings on the rule's application, its elaboration, either 2

The classification adopted is Baldwin's: R. Baldwin, Rules and Government (1995).

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by the firm or the regulator, or its effective modification or waiver. No clear cut distinction is thus being envisaged between rule formation and rule application: conversations may involve the development of previously written rules in such a way that that rule is effectively revised; rule application may thus lead to rule re-formulation. What is not included in the idea of a "conversation" however is the broader policy formation process and the initial construction of the regulatory framework. Rather, attention is placed on those conversations which occur within the regulatory framework once it has been set. Conversations may occur at a number of different points within the regulatory process and with officials in different parts of the regulatory organisation. They may be centralised or decentralised. Conversations may be part of the inevitable course of the regulatory process, and may or may not have explicit sanction within the regulatory system. Alternatively (or in addition), they may be a consciously adopted regulatory strategy; the regulator may issue only very broad rules, anticipating that it will then engage in a process of negotiation, a conversation, with individual regulatees as to how those broad rules will apply to those circumstances, including perhaps the approval of rules written by the firm or individual itself to guide its own behaviour in compliance with the generally applicable norm. Generalisations as to their nature can only take us so far. To illustrate the phenomenon, it is worth exploring some examples of different types or occasions of conversations. Three broad occasions for conversations are considered here: the process of rule application, that of supervised rule-formation, and that of monitoring and enforcement.3

Rule Application: Guidance and Waivers Guidance given to individual regulatees as to the meaning or application of the rule may be given informally or as a result of a formal process, it may or may not have legal status, and it may or may not lead to further action, such as the granting of a waiver or no-action letter. Three different systems of regulation, which are not of the archetypal "command and control" model, in which guidance and/or waivers play a central role are takeovers, tax collection and EU competition law. Takeovers The regulation of takeovers and mergers relies heavily on guidance, and indeed the conversational approach is one of its principal modes of regulatory operation. The Take-over Panel is a non-statutory body which regulates the 3 These categorisations are adopted for convenience of exposition only; they are not necessarily analytically distinct: rule application is clearly involved, for example, in monitoring and enforcement.

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conduct of takeovers and mergers of all public companies in the British Isles.4 Its code consists of ten general principles and thirty eight rules, elaborated by sub-rules and notes, rules on substantial acquisition of shares and various disclosure forms. These are supplemented from time to time by statements of practice or policy issued by the Panel.5 The operation of the Panel is notable in that its authority is almost universally accepted, and its conduct largely praised.6 The day to day work of the Panel is done by its executive, staffed by a combination of permanent members and those on secondment from a range of legal and financial City institutions. The principal function of the executive is providing advice and guidance on compliance, giving rulings on interpretations of the Code and monitoring compliance.7 The Introduction to the Code stipulates that where there is any doubt at all as to whether a proposed course of conduct is in accordance with the Code, advisers to the parties should consult the executive in advance. It is indeed common practice for the Panel, in the form of the executive, to be closely involved in takeover proceedings. The advice and rulings of the executive are frequently sought, and significantly, the executive will give rulings on hypothetical situations.8 The key to the Panel's operation is its flexibility and the speed of its responses: advice or rulings are sought or given mainly over the telephone, the executive requiring only two hours notice at most, and rulings given within twenty four hours. If the executive wishes to consult the other parties before giving a ruling, it usually does so by telephone. Staff meet daily to take decisions on matters of importance and to review decisions taken to try to ensure consistency. Guidance and rulings of the executive are authoritative; if the parties want to appeal against them they can do so to the Panel within one month, or sooner if the executive so stipulates. Alternatively, the executive can itself refer a matter to the Panel if it is a particularly difficult, unusual or important point. Both referrals and appeals 4 It also applies to private companies if their equity share capital has been listed on the London Stock Exchange or other exchange at any time in the last ten years or has filed a prospectus for the issue of shares in that time, or dealings in their equity share capital have been advertised in a newspaper for a continuous period of six months or more in the last ten years. 5 For texts of these and comments thereon see Weinberg and Blank, Take-overs and Mergers (1989, updated); see also G. Stedman, Takeovers (1993). 6 There are exceptions: probably the greatest challenge to the Panel's authority was in the St Piran case in 1981; its conduct in the recent bid by CalEnergy for Northern Electric has also been criticised: see reports in the FT, Times and Independent, 28th December 1996. 7 Its statement of operations which prefaces each Annual Report emphasises that the major function of the Executive is to provide guidance, and strongly encourages early consultations with it. 8 In 1993—4 it had detailed consultations in 81 takeovers in which documents were sent to shareholders, 340 other consultations, and 750 queries which involved such hypothetical situations: Takeover Panel, Annual Report 1993—4. In 1994—5, the figures were 108 takeovers and 201 consultations respectively, with no figures given for hypothetical enquiries: Takeover Panel, Annual Report 1994-5.

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are in fact rare, with the Panel seldom overruling the executive.9 Both processes are speedy, and it usually only takes 3—4 days to convene the Panel.10 Appeals are private and are conducted on an informal basis with no formal rules of evidence. Parties give written submissions prior to the hearing, including the executive and shareholders (subject to some restrictions to prevent vexatious or frivolous submissions),11 the parties may call witnesses as they wish, but no party can be represented by counsel. The Panel operates in complete confidence: rulings are not published, and even Panel decisions on appeal remain confidential unless the issue is particularly important or controversial. In all events, the transcript of the appeal hearing is not disclosed unless all parties agree. The operation of the Panel provides an example of a system of regulation which relies on quite a sophisticated form of conversation. The Panel is the final interpreter of its own rules, giving it the authority to provide a flexible system of regulation;12 its rulings are binding; the procedure is speedy, and third parties have some limited rights of participation. This form of conversation provides an interesting comparison to that of the Inland Revenue's practice of giving advice with respect to the application of tax legislation. Inland Revenue The Revenue gives guidance and advice of a range of different degrees of formality, ranging from the generalised, published guidance on legislation, down to informal communications between accountants and local tax inspectors. At the more formal level, the Revenue issues generalised guidance on legislation in the form of Statements of Practice (IR 131), ExtraStatutory Concessions (IR1), and the Tax Bulletin; the Revenue has also started publishing its internal guidance manuals which are used by officials giving advice. 13 There are some specific legislative provisions which allow for consents or notifications (clearances) in respect of specific anti-avoidance and other provisions to be given prior to the transaction, which are binding

9 In the period 31st March 1989—31st March 1996 there were only 25 appeals to the Panel, only 3 of which were upheld (figures compiled from the Takeover Panel's Annual Reports 1990-96). 10 For a discussion see Weinberg and Blank, op. cit. n. 5, paras 3-512-3-513. The process can be far quicker: in the recent CalEnergy bid for Northern Electric, the panel heard two appeals against rulings of the executive and another hearing seeking a further appeal in one week: see T. Burt, "Under the rapid fire of a bid battle", Times 28th December 1996. 11 Although shareholders cannot appear in person at the hearing. 12 Its interpretations of its own rules are subject to judicial review, but following Datafin, these interpretations will be assessed on the basis of the reasonableness of the interpretation rather than its correctness: R v. Panel on Take-overs and Mergers, ex p. Datafin [1987] 1 All ER564. 13 See Simon's Tax Intelligence 1994-7.

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on the Revenue,14 and the taxpayer may appeal against an adverse ruling on specific legislative clearances to the Special Commissioners, and then to the High Court. At a less formal level, the Revenue also advises individuals on the tax implications of transactions both before and after they have occurred, but their advice comes in a range of legal and administrative forms and with different degrees of bindingness. The broad parameters and operation of the system are set out in the Inland Revenue's Code of Practice on Information and Advice, ls which states the conditions in which, and issues with respect to which, advice on the application of tax legislation will be given. Broadly, advice will be given on the application of legislation, double tax treaties, statements of practice, and "other areas concerning matters of major public interest in developments in an industry or in the financial sector."16 Specifically the Code provides that advice will not be given where it would assist with tax planning or would amount to advice on transactions designed to avoid or reduce tax, and the applicant is required to give full disclosure of the facts of the transaction and the statutory provisions on which advice is sought. Advice given prior to a transaction is not formally binding on either the Revenue or the taxpayer; there is therefore no system of appeal against adverse rulings. Rather, the circumstances in which the Revenue is bound are set by the doctrine of legitimate expectations,17 but the taxpayer may complete his or her tax return in accordance with his or her own interpretation of the statute. Moreover, the taxpayer does not have to mention which interpretation of the statute, the taxpayer's or the Revenue's, has been adopted in the return. The Revenue does however operate a non-statutory system of giving binding rulings on the application of tax legislation to particular transactions after the transactions have occurred (but before the tax return has been filed).18 The rulings are issued by the person's local tax office, and are not published.19 The Revenue is bound by a ruling given in favour of the taxpayer 14 These include Treasury special consents under the Income and Corporation Taxes Act 1988, s.765 (mainly used for non-EU corporate finance transactions); notification under ICTA s.707 (obtaining tax advantage from transactions in securities); capital gains tax clearances with respect to share for share transfers and reconstructions under, principally, s.138 Taxation of Chargeable Gains Act 1992; and issues relating to transfers of insurance business under s.444A(8) ICTA 1988. See further R. Fraser, "Pre-Transaction Rulings", Tax Journal, 15 February 1996, 14. " Inland Revenue, Code of Practice 10, 1995. 16 Ibid., 5. 17 R v. IRC, ex p. Preston [1985] 2WLR 836; R v. IRC, ex p. MFK Underwriting [1990] 1 WLR 1545; R v. IRC, ex p. Matrix Securities, Times [1994] STC 272; R v. IRC, ex p. Unilever pic [1996] STC 681. 18 The system is set out in Inland Revenue, Post-Transaction Rulings, A Consultative Document, (Inland Revenue, 1994), which has been implemented (see IR Press Release, 26th September 1996). On the issue of rulings generally see D. Sandier, A Request for Rulings (Institute of Taxation, 1994); W. Chan, "Binding Rulings" (1997) 18 Fiscal Studies 189. 19 Post Transaction Rulings, para 31.

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as long as the applicant complied with all the conditions of the ruling.20 However, if the ruling is adverse for the taxpayer, the latter can still complete his or her return on the basis of his or her own interpretation of the statute, and has a right of appeal to the Commissioners if the Revenue disagrees with that interpretation. No penalty will arise as long as the treatment adopted was reasonably arguable. 21 With respect to giving advice or rulings, therefore, the conversation between the Revenue and the taxpayer is of a quite different nature to that which occurs between the parties to a take-over and the Panel: the Revenue is not presumed to be the final authority in interpreting the tax legislation, it is open to the taxpayer to adopt a different interpretation to that of the Revenue, and indeed not to tell the Revenue which has been adopted; the Revenue will not give rulings which are formally binding on the tax effect of transactions prior to them occurring (although the Revenue may treat such rulings as binding in practice22), and unlike the Panel, will not give advice on hypothetical situations. Notably, the Revenue has a strong concern that in giving advice or rulings it should not assist individuals to reduce their tax burden, so depriving the Revenue of income. Indeed this concern was one of the primary motivating factors in the Revenue's refusal last year to introduce a system of pre-transaction rulings.23 Whilst informal advice is therefore available, and often freely so, conversations are significantly restricted in nature, and those which formally bind the parties only occur in very limited circumstances. EU Competition Law Conversations may also take the form of waivers, granting of exceptions, or no action or comfort letters. The difference between the two forms is essentially that in the case of guidance, the conversation is as to the precise application of the rule; in the case of waivers, the rule prima facie applies, but the individual is exempted from its application in particular circumstances. As with guidance or rulings, waivers may be more or less central to the operation of the regulatory process. They raise slightly different issues, however, and indeed at first glance whilst a system of guidance seems a necessary concomitant to any system of regulation, a regulatory regime which relies principally on the giving of individualised exemptions seems slightly odd. An example of a system in which waivers play a central role, however, is EU competition law, where the application for waivers is one of the principal vehicles for the operation, and development of, competition policy.

20

/bid., para 15. Ibid., para 3 0 . 22 I thank Judith Freedman for this point. 23 T h e proposals were set out in Inland Revenue, Pre-Transaction Rulings, A Consultative Document (IR, 1995); the decision not t o proceed w a s announced in a Revenue Press Release (26th September 1996), contained in Simon's T a x Intelligence 1996, at 1574. 21

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Article 85 of the Treaty of Rome prohibits restrictive practices and cartels; Article 85(3) of the Treaty permits the granting of exceptions to this general prohibition, primary responsibility for which is given to the Commission.24 Parties apply to the Commission to see whether it considers any aspects of agreements to which it is party or of their business conduct falls within articles 85 &c 86.15 The Commission may grant a negative clearance, that is a certification that facts in its possession provide no grounds for intervention under articles 85 or 86,26 or an individual exemption, in which it declares that the prohibition in article 85(1) is inapplicable to the agreement in question; the exemption is granted for a fixed period and may be subject to conditions. 27 The formal procedures provided in the regulation for granting such clearances are quite involved. Prior to granting a negative clearance, the Commission is required to publish in the Official Journal a summary of the relevant application and invite all interested third parties to submit observations within specified time, which must not be less than a month. 28 The final decision must also be published.29 The applicant has access to all documents relied on in constructing the Commission's case, and the right to be informed of the facts and considerations on which the decision is to be made. Applicants and those whose interests are likely to be adversely affected by the 24 Regulation 17, passed under Article 87, gives the Commission the power to take decisions ordering the termination of agreements; granting exemptions under a.85(3) and imposing fines and periodic penalty payments. Regulation 17 deprived national competition authorities of their power under a.88 to decide on the application of a.85 in particular cases, thus effectively conferring on the Commission a monopoly of decision making power, subject to review by the ECJ under article 173. See generally, D. Wyatt and A. Dashwood, Law (1993, 3rd ed.), Chs 13-16; Whish, Competition Law; European Community Butterworth's Competition Law (1989, updated). 2 ' With certain specified exceptions largely superceded by the block exemptions (Wyatt and Dashwood, op. cit., n. 24, p. 474) T h e incentive to notify comes from the provision in Regulation 17 article 4(1) which states that the person or undertaking cannot be subject to an exemption unless it has notified the Commission, even if it fulfils the substantive conditions for exemption. T h e date of notification determines how far the grant of exemption may be retrospective: if the agreement was entered into after Regulation 17 came into force, then the exemption is only effective from the date of notification; prior to that is void. Once they have notified, firms are immune from fines; the immunity is temporary and contingent however; if the Commission finds that in fact that the agreement is not exempt, it may impose fines. 16 As article 85(3) which permits the granting of exemptions is not applicable to national courts, any exemptions issued by the Commission, including negative clearances, are probably not binding on national courts. 27 Regulation 17, article 8. In addition, if the applicant is seeking a determination on the application of a block exemption regulation it may notify the Commission of an agreement, and the Commission has a period, usually six months, to expres its opposition; if it does not do so, the agreement is brought within the exemption. See generally, Wyatt and Dashwood, op. cit., n. 24, pp. 426-436. 28 Regulation 17a.l9(3). 29 Regulation 17a.21(l).

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decision are entitled to a hearing,30 although they cannot question the Commission. The hearing is presided over by a Hearing Officer, appointed to emphasise the objectivity of the hearing, who reports to the Commission with his views, which are not disclosed to the parties.31 The procedure for issuing an individual exemption is slightly less involved: a notice must again be published in the Official Journal prior to adopting the decision, and the decision be published.32 If it is proposing to impose an onerous condition the Commission must notify parties and give them the opportunity of making representations. The formal proceedings are in practice used in only a small minority of cases.33 Due to their time-consuming nature and in order to meet the demand for exemptions which it receives, the Commission has resorted to less formal processes for handling cases in the form of comfort letters and negotiated settlements. Comfort letters have been described by the ECJ as merely "administrative letters". 34 They are signed by an official in DG IV, usually a Director, and cannot be invoked against third parties.35 They may be used to state that article 85 is not applicable, or that there are grounds for exemption under article 85(3), and signal that the file will be closed, but that it may be reopened if material factual or legal circumstances change. Initially, no public notification of the issuance of a comfort letter was given. Following judicial consideration of the issue, the Commission stated that to increase their legal value, they would be accompanied by prior and subsequent publication of a notice in the Official Journal, to give interested parties an opportunity to comment. 36 However, notification is in practice rarely given: in 1992, for example in only 8 of 176 cases closed by comfort letter was a notice published.37 Further, in addition to issuing comfort letters, the Commission also simply reaches a settlement with the applicants; again this is not binding 30

Regulation 17 a.19. •" Created in 1982 after concerns relating to the objectivity of proceedings: European C o m m i s s i o n , 11th Report o n Competition Policy, points 26 and 27. T h e role is set out in 12th Report o n Competition Policy, point 36 and 23rd Report o n Competition Policy, point 205. 32 E x e m p t i o n may be revoked where there has been a material change in the facts, where obligation attaching to the grant been breached, where the decision is based on incorrect information or induced by deceit or where the exemption is abused by the parties (revocation may be retroactive in the last three cases). 33 In 1992, only 2 0 o u t of 1064 cases led t o a formal decision: European C o m m i s s i o n , 22nd Report o n C o m p e t i t i o n Policy, point 126. 34 Perfumes cases: Joined Cases 253/78 and 1-3/79, Procureur de la Republique v. dry and Guerlain [1980] ECR 2327; [1981] 2 C M L R 94; Case 99/79, Lancome v. Etos [1980] ECR 2 5 1 1 ; [1981] 2 C M L R 164; Case 31/80, L'Oreal v. De Nieuwe AMCK [1980] ECR 3775; [1981] 2 C M L R 2 4 1 . 35 Perfumes cases; IBM v. Commission [1981] ECR 2639; [1981] 3 C M L R 635. 36 11th Report o n C o m p e t i t i o n Policy, point 15; 12th Report, point 3 0 . 37 22nd Report o n C o m p e t i t i o n Policy, point 126. T h e figures in 1993 were 7 out of 749 (23rd Report, point 208).

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on third parties, and settlements are not accompanied by any form of publication or notice. Settlements are by far the most frequent method of dealing with applications: in 1992, for example, over half of applications were dealt with in this way.38

Supervised Rule Formation In the examples given above, the conversation which is occurring is as to the application of rules which have been formulated by the regulator or are embodied in some form of primary legislation. Other forms of conversation are possible. Firms could, for example, formulate their own rules under the supervision of and in negotiation with a regulatory body. 39 The conversation here would be not just about the application of a general rule in a particular instance, but the application of a general set of rules to a particular firm, and ways in which the firm could formulate a rule system of a greater degree of specificity which would be both tailored to its own operations, whilst achieving the general social objectives enshrined in the more general rules. This system of firm-written rules may take a range of forms: the regulatory body could formulate very simple, general rules, and the firm write their own more detailed rules under those; or the regulatory body could formulate a set of "default" rules which will apply to firms unless they choose to adopt their own, again in negotiation with and subject to the approval of the agency.40

38

Indeed, on the application form, the applicant has to indicate whether or not it would be prepared to accept a comfort letter; with respect to structural co-operative joint ventures, the Commission has formally stated that it will deal with individual applications by way of comfort letter unless the parties specifically indicate that they require formal clearance: 22nd Report on Competition Policy, point 121. 39 This is a form of regulation advocated by Ayres and Braithwaite, and forms part of their model of "enforced self regulation". The other part focuses on compliance and enforcement processes: the firm is primarily responsible for their enforcement and for monitoring its own compliance; the rules can however be enforced by the regulatory body. The model is set out in a range of places, see primarily I. Ayres and J. Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (1992). 40 ibid., pp. 108—109. Ayres and Braithwaite draw a parallel between this model and that of company law. Company statutes set out a standard form set of articles which firms may or may not adopt, analysed in the economic literature as a standard form contract: J. Easterbrook and D. Fischel, "The Corporate Contract" (1989) 89 Colum LR 1416. The analogy is true to the extent that certain aspects of the corporate governance structure are mandated and thus cannot be contracted around (though according to what criteria is unclear: see further B. Cheffins, Company Law: Theory, Structure and Operation (1997) at 227-264), but it falls down in that company members are otherwise free to choose the form of their relationship; there is no regulatory body with which they have to negotiate or whose approval they have to seek. The freedom of private actors to choose their regulatory regime is thus curtailed far more in the enforced self-regulation model; whether this is an advantage or disadvantage of course depends on one's view of the appropriate role of the state.

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Examples of regulatory systems which involve the use of self-written rules include aspects of US environmental regulation, of health and safety regulation in mines in the US and Australia,41 and nursing homes in Australia.42 The technique is also mandated by regulators in certain areas of banking and securities business. The international regulator of banking, the Basle Committee, has recently stated that firms will be able to use their own internally formed models to calculate the extent of their market risk, which will then be used to set capital requirements.43 The models have to conform to broad regulator-set parameters, but can otherwise take the form that the firm chooses. The Securities and Futures Authority already operates a similar system with respect to aspects of options trading. 44 A slightly different system, which does not involve the regulator assessing the firm's risk evaluation model but rather involves the bank pre-committing itself to a certain level of portfolio loss, has been advocated by economists at the Federal Reserve Bank in the US.45 The pre-committed amount sets the bank's minimum capital requirement. If the bank exceeds its own estimates of its portfolio trading loss, it faces a regulatory penalty. The technique is not confined to prudential supervision. In the retail area of financial regulation, the Personal Investment Authority is also discussing the introduction of firm-written rules for some areas of the regulation, for example training or record keeping.46

Monitoring and Enforcement In the examples given above, conversations have concerned the elaboration of and guidance on the application of rules in particular cases, the waiver of those rules, and approval of and reliance on firm-written rules; they have been both centralised and decentralised, and occurred at different levels within the regulatory organisation. The final example of conversations to be considered are those which occur during the process of routine monitoring and enforcement. These tend by their nature to be decentralised and relatively low-level;

41 Ayres and Braithwaite, op. cit., n. 4 0 at pp. 1 1 6 - 1 1 8 ; see further J. Braithwaite, To Punish or Persuade: Enforcement of Coal Mine Safety (1985). 42 J. Braithwaite et at., The Contribution of the Standards Making Process to the Quality of Nursing Home Life: A Preliminary Report (1990). 43 Basle C o m m i t t e e o n Banking Supervision, An Internal Model-Based Approach to Capital Market Risk Requirments (1995); id, Overview of the Amendments to the Capital Accord to Incorporate Market Risks (1996). 44 SFA Board N o t i c e 254; the details are set out in SFA, "The M o d e l Review Process", available from the SFA Risk Assessment Group. 45 P . H . Kupiec and J . M . O'Brien, "Recent D e v e l o p m e n t s in Bank Capital Regulation of M a r k e t Risks" (Federal Reserve Board, Finance and E c o n o m i c s Discussion Paper 95—51, 1995); id., "Bank Capital and Value at Risk" (FMG Special Paper n o . 90, LSE, 1996). 44 PIA, Evolution Project, (PIA, 1996); PIA, PlA's Evolution Project: The Next Steps CP 23 (PIA, 1997).

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they may involve the same elaboration, adjustment or waiver of the rule, or the same guidance as to its meaning, as that which is involved in the process of guidance or waivers discussed above; the principal differences are that the conversation is not necessarily initiated by the regulatee, it occurs in respect of both application of the rule, and in situations where it has been breached. The issue may thus not be so much whether the rule applies, but what should happen in the case of its breach. That such conversations occur as part of the enforcement process has been well observed by a number of empirical studies of the enforcement of social, particularly environmental and health and safety, regulation.47 These studies show the enforcement process to be one of negotiation, often involving bargaining (waiver of one rule breach in return for compliance with another), bluff (as to the legal requirements, the range of penalties at the agency's disposal), and the assertion and presentation of the legal authority of the agency. Whether the enforcement process consists of a conversation, what is usually styled the "compliance" model of enforcement, in other words one of conciliation, education and negotiation, or whether it is adversarial (the "deterrence" model) is shaped by a number of factors.48 These include the nature of the breach (one-off or persistent) and judgements as to its seriousness (the extent to which it is in excess of limits set by the rule, for example, or the nature of its consequences), assessments made of the nature of the regulatees (whether they are well or ill intentioned, well or ill informed, whether the breach was careless, negligent or malicious), and the social and moral legitimacy of the regulation being enforced. To anticipate in part the following discussion, the presence of such conversations is often seen by enforcers to be a necessary part of the regulatory process, particularly given the moral ambivalence surrounding breach of regulatory rules;49 it is also hailed by some as a sign of "responsive" regulation,50 the absence of such conversations giving rise to what Bardach and Kagan have notoriously characterised as regulatory unreasonableness.51

47 See for example, K. Hawkins, Environment and Enforcement. Regulation and the Social Definition of Pollution (1984); G. Richardson, A. Ogus and P. Burrows, Policing Pollution: A Study of Regulation and Enforcement (1983); R. Baldwin, "Why Rules Don't Work" (1990) 53 MLR 321; D. Vogel, National Styles of Regulation: Environmental Policy in Great Britain and the United States (1986); E. Bardach and R. Kagan, Going by the Book: (1982); R. Kagan and and J. Scholz, "The The Problem of Regulatory Unreasonableness "Criminology of the Corporation" and Regulatory Enforcement Strategies" in K. Hawkins and J. Thomas (eds), Enforcing Regulation (1989); R. Kagan, "Understanding Regulatory Enforcement" (1989) 11 Law and Policy 89. 48 See further B. Hutter, Compliance (1997). 49 Hawkins, op. cit., n. 47. 50 P. Selznick, The Moral Commonwealth: Social Theory and the Promise of Community (1993), p. 470. 51 Bardach and Kagan, op. cit., n. 47.

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The Reasons for Conversations In the examples noted above, conversations, in the form of guidance, waivers, rulings, or approval of the firm's own rules or the regulator's responses in cases of breach, form a central part of the regulation, and indeed may be adopted as a deliberate part of regulatory strategy. The reasons for this vary in part with the nature of the conversation. The granting of rulings, waivers or comfort letters, for example, provide advantages both for the regulator and the regulated. The regulated can address uncertainty in the rule's application by seeking an assurance that if it takes a particular course of action, the regulator will not proceed against it, or can seek an exception from the rule or its waiver in particular instances.52 From the regulator's point of view, this strategy enables tailoring of the regulation to fit particular circumstances, which the agency may want to ensure for a range of reasons. These may be concerns of regulatory equity (for example, if the application of the rule in particular circumstances would neither further its purpose nor the waiver undermine the policy goal of the rule). Alternatively, waivers or exemptions may comprise an attempt to prevent or reduce hostility to the regulation and alienation of regulatees, and may simply be an attempt to provide regulation which suits the circumstances of the regulatee in the hope of saving time and resources later in attempting to ensure enforcement. A slightly different set of advantages may accompany conversations which occur during a process of supervised rule formation. Such a process has the potential to avoid the problems of regulator written rules and, depending on its design, of "command and control" regulation. Rules could adjust more quickly to changing business environments, as the regulator could simply require firms to write rules to meet new situations rather than having to engage in a lengthy rule making process itself; the regulator could tap the knowledge and expertise of firms in designing regulation: regulation would thus permit innovation and cover a greater range of corporate activity than regulator-formed rules;53 companies would be more committed to the rules they have written; overall costs of regulation would be reduced: the regulator would not have to bear the costs of rule formation and the firm does not have to undergo the costs and confusion of having two rule books—the regulator's and its own in-house rules. Further by giving to the firm the opportunity to design regulation it could avoid what may be termed the "rationality clash" which is seen by some as the underlying cause of regulatory failure.54 52

Even if these are not formally binding, they may bind the agency under the doctrine of legitimate expectations. 53 See Ay res and Braithwaite, op. cit. n. 39, pp. 112-113. 54 G. Teubner, "After Legal Instrumentalism? Strategic Models of Post Regulatory Law" in G. Teubner (ed), Dilemmas of Law in the Welfare State (Berlin, 1985); id., "Regulatory Law: Chronicle of a Death Foretold" (1992) Social and Legal Studies 451.

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Regulators may use the technique in such a way as to ensure that the tailored rules structure the regulated's incentives to improve compliance, fine tuning requirements as becomes necessary (as in the examples of prudential regulation given above). Conversations which occur during the enforcement process are also frequently accompanied by their own set of rationales and advantages. The enforcement process is often as much about promoting a willingness to comply as it is about ensuring exact compliance with a particular rule. The reasons for the adoption of a compliance approach may relate to the resource constraints, both temporal and financial, of the agency, but they are likely to be more complex.55 A compliance approach tends to be adopted where there is an on-going relationship between regulator and regulated, and particularly where the individuals involved know one another or share a common background or outlook.56 It is usually adopted to prevent the alienation of the regulated; the more "bullying" approach of sanctioning every breach can stimulate opposition to the regulation by the regulated, prompting non-cooperation in investigations and the compliance process.57 More significantly, the greater the feeling of alienation, the less that firms are likely to implement the necessary measures to ensure on-going compliance with the regulation in the periods between inspections, and perhaps more likely to engage in minimal or creative compliance strategies.58 A compliance approach can thus be used in an attempt to stimulate compliance. The adoption of a compliance approach may thus have significant strategic advantages; it may also be adopted as a matter of necessity, and, as noted, because of the moral ambivalence surrounding the issue of regulatory rule breaches.59 There are more fundamental reasons for conversations in regulation, however, reasons which suggest that conversations are an inevitable feature of regulation, even if they are not formally mandated or do not form part of the central strategy of regulation. Conversations provide a means of addressing one of the central problems which pervades any system of regulation, whatever its design: the limitations of rules. The problems of using rules are familiar. The inability of rules to control behaviour is well documented,60 as is their manipulation by those pursuing ss Hawkins for example found chat resource constraints played no part in the lack of prosecutions of regional water authorities: Hawkins op. cit., n. 47, p. 192. 56 K. Hawkins, "Compliance Strategy, Prosecution Policy and Aunt Sally, A Comment on Pearce and Tombs" (1990) 30 B) Crim 444; see also D. Black, The Behaviour of Law (1976). 57 Bardach and Kagan analyse the impact of this "regulatory unreasonableness": Bardach and Kagan, op. cit., n. 47. 58 Hawkins op. cit., n. 56; Kagan and Scholz op. cit., n. 47; Bardach and Kagan op. cit., n. 47. 59 Hawkins op. cit., n. 47; Kagan and Scholz, op. cit., n. 47; Braithwaite, op. cit., n. 41. 60 For a recent cataloguing of their advantages and disadvantages see C. Sunstein, "Problems with Rules" (1995) 83 Calif LR 954.

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strategies of creative compliance.61 These problems have their roots in deeper ground, notably the inherent properties of rules themselves. Rules are anticipatory, generalised abstractions which when endowed with legal status provide authoritative reasons for action. Each one of these elements, anticipatory, generalised, authoritative, is the source of difficulty. Limitations of foresight, and the inherent nature of generalisations, mean that rules will inevitably be either under- or over-inclusive in relation to their purpose, failing to include situations which they should, or including situations they should not. 62 At the same time, the need for interpretation in their application means that they are also indeterminate, due to the inherent indeterminacy of language and the subjective and contingent nature of the interpretation of the fact situations to which rules are to be applied. Their status as authoritative communications, often with sanctions for their breach attached, however, means that rules act as limits on their own application and are thus imperfect tools of decision making; in Schauer's words "[r]ules doom decision making to mediocrity by mandating the inaccessibility of excellence".63 Further, their status throws into sharp relief the problem of rules' indeterminacy: the possibility for sanction for the rule's breach means that it becomes important to know whether a particular action is one covered by and in compliance with the rule or not. These problems of using rules in an attempt to control or guide behaviour pervade regulation and transcend the current debate on alternative regulatory techniques: the death of command and control regulation does not mean the death of rules. Competition, corporation, contract and tax law are not renowned for their rulelessness or simplicity. Ways of using rules or overcoming their limitations have thus been an increasing matter of consideration. A number of writers have identified various dimensions to rules, and ways of using these different dimensions for different purposes or in different contexts have been suggested.64 Focus has also been placed on the interpretive aspect of rule use, on the need to foster an understanding between the rule maker and the rule's addressees as to the rule's meaning and intended application through the development of interpretive communities.65 A conversational use of rules is a further way in which some of the problems of rules, notably those of interpretation, inclusiveness and entrenchment, can be overcome. As noted above, part of the problem of rules is that 61

D. McBarnet and C. Whelan, "The Elusive Spirit of the Law: Formalism and the Struggle for Legal Control" (1991) 54 MLR 848. 62 See I. Ehrlich and R.A. Posner, "An Economic Analysis of Legal Rulemaking" (1974) J Legal Studies 257; F. Schauer, Playing by the Rules (1991), Ch 2; id. "Formalism" (1988) 97 Yale LJ 509 at 539; D.J. Galligan, Discretionary Powers (1986), pp. 69-70. *3 Schauer, op. cit., n. 62 (1988) at 539. M C.S. Diver, "The Optimal Precision of Administrative Rules" (1983) 93 Yale L] 65; Baldwin, op. cit., n. 2; J. Black, "Which Arrow?" Rule Type and Regulatory Policy" (1995) P.L. 27; id. Rules and Regulators (1997). 6S Black, op. cit., n. 64 (1997), Chap. 1.

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they are legally binding statements or reasons for action. As they are anticipatory and generalised, they may over- or under-include; but their entrenchment means that they cannot easily be adjusted, hence the charge of the "inflexibility" of rules. The contrast is sometimes drawn with conversations.66 Conversations allow for adaptability. In conversation, the problems of generalisations and to an extent of open texture can be, and are, resolved by latitude in interpretation and understanding on the part of those participating in the conversation, and by the possibility of further elaboration or definition of generalisations made and statements uttered. For example, I may state that the weather is always miserable in February, but it is open to me to then immediately qualify that by saying there may be days in February in which the sun shines; or accept that in Australia the weather in February is in fact very pleasant. Conversation uses generalisations, and can tolerate them simply because it has the capacity for retraction, modification, qualification, clarification and embellishment. It is when this process cannot or does not occur that the over- or under-inclusiveness of generalisations poses a problem. Conversations not only allow for adjustment, they also aid interpretation. As has been well observed, rules do not apply themselves; they need to be interpreted. Interpretation is however a contested exercise. There is no inherent, fixed meaning to rules or to language; the meaning, and hence the application, of a rule is not an objective fact but is contingent on the interpretive community reading the rule.67 The contingency of the application of the rule on the interpretation it receives suggests a particular vulnerability of rules. Rules may receive a number of interpretations and thus be applied in a number of ways. Conversations which involve elaboration of the rule's meaning allow the problem of interpretation to be addressed. They can thus meet the need for certainty in the rule's operation, a need which itself stems from the legal status of rules, and the concomitant rule of law concerns that rules should be able to guide behaviour and allow individuals to plan their lives.68

Justifying Conversations: Conversations and Responsiveness So conversations provide practical solutions for both regulators and regulatees, and meet the problems posed by the inherent limits of rules, providing a resolution to the tension between certainty and flexibility. They may further 66

See Schauer op. cit., n. 62 (1991), pp. 38-42, and B. Bix, Law, Language and Legal

Determinacy (1994), pp. 19, 184. 67 See further Black, op. cit. n. 64 for discussion. 68 F. Hayek, Law, Legislation and Liberty (1961); J. Raz, "The Rule of Law and its Virtue" in The Authority of Law (1979); id., Ethics in the Public Domain (1994), Chap. 17. For a recent discussion see P. Craig, "Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework" [1997] P.L. 467.

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be justified on the basis that they provide a means by which the place of the individual in a generalised system of regulation is recognised. There is a well observed tension between different models of bureaucratic behaviour, models which have both descriptive and normative dimensions. The first, that of bureauratic administration or formal rationality, is that which draws on Weber's model of formal/legal rationality. Rules are comprehensive, and applied consistently according to their terms by bureaucrats unmoved by broader ethical, social or political considerations, and unmotivated by bias. The second, that of administrative justice, in contrast, emphasises the purposes of the regulation and the circumstances of the individual. It requires, inter alia, adjustment of the rules to suit the individual's circumstance, and has a substantive not a formal notion of equal treatment. The tension between the two models has engendered significant debate. There is also a third, which effectively denies the dichotomy between form and purpose, rule and discretion, and that is reflexive or "postbureaucratic" rationality.69 Flexibility and responsiveness are its hallmarks. As Selznick states: Communication is less (irmly channeled [sic]; authority is more diffuse; consultation and participation are more strongly encouraged. The system is open and fluid in many ways . . . A postmodern spirit of openness, adaptation, participation, and problem-solving prevails. The idea of top-down, authoritarian administration is rejected.70

Having a conversation does not necessarily mean that the regulation is simply for that reason taking the model of "responsiveness"; that model has itself additional requirements. To quote Selznick once more: "[We must distinguish] responsiveness from opportunistic adaptation or capitulation to pressure. A responsive institution maintains its integrity while acknowledging the legitimacy of an appropriate range of claims and interests. Mere openness is not enough, however. A spirit of consultation must prevail and authority be subject to criticism and reconstruction, while the institution's basic commitments, and its capacity to function, are preserved and protected."71 A conversational approach has the potential to develop into a model of administration which has the responsiveness or reflexivity which this form of rationality advocates. Moreover, its central element, communication, resonates favourably with the essentially participatory models of decision making which reflexive rationality envisages.72 69

See G. Teubner, "Substantive and Reflexive Elements in Modern Law" (1983) 17 Law & Soc Rev 239. 70 Selznick, op. cit., n. 50., pp. 286-7. 71 ibid., p . 465. 72 R. Mayntz, "The Conditions of Effective Public Policy: A New Challenge for Policy Analysis" (1983) 11 Policy and Politics 123; Teubner op. cit., nn. 54,69.

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Further, a conversational approach may itself uphold principles of fair treatment and due process. As Galligan suggests, the achievement of social goals is mediated through the fair treatment of persons, which in turn recognises that people have rights about the way they are treated by government.73 Engaging in conversations about the meaning and application of rules is thus an important way in which the place of the individual in the bureaucratic process is recognised; conversations are the human face of bureaucratic regulation.

Problems with conversations The experience of many of those regulatory systems which operate a conversational approach at some level suggests however that conversations are not necessarily an unproblematic phenomenon whose presence in the regulatory system can be given an unreserved welcome. It may be that conversations facilitate the use of particular rule types which may in some circumstances be desirable, it may be that they are the human face of bureaucracy, but it is argued here that it is necessary if they are to meet these concerns that they occur within the context of certain procedural and other requirements. The danger of conversations is in part that they have the potential to confer on the regulation a schizophrenic character: that it publicly represents one thing whilst in practice operating quite differently.74 It is not simply this bifurcation which is problematic, however: the principal sources of difficulty are rather the conditions in which and degree to which this difference occurs, and further the extent to which the decisions as to the rule's application are being determined by a body which is not recognised as legitimate to make those decisions. It is when an exceptions process, for example, effectively becomes a vehicle for policy change, that objections may arise.75 Or where it is the regulator who is alone determining the nature and terms of the bifurcation for 73

D.J. Galligan, Due Process and Fair Procedures (1997). Some would argue that such a duality can be justified: see M . D a n - C o h e n , "Decision Rules and Conduct Rules: O n Acoustic Separation in Criminal Law" (1984) 97 Harvard LR 625. Dan-Cohen roots his analysis back to Bentham's distinction between l a w s w h i c h create offences and laws which c o m m a n d punishment to be administered when an offence has been committed. O n Bentham's analysis see further J. Bentham, An Introduction to the Principles of Morals and Legislation, Concluding Note, esp paras 6 and 8; id., Of Laws in General, Chapter 14, both in J.H. Burns and H.L.A. Hart (eds), The Collected Works of Jeremy Bentham (1970). D a n - C o h e n ' s analysis may be subjected t o criticism o n a number of grounds, which cannot be entered into here. See, for example Sunstein, op. cit., n. 60. 74

75 For an example see P.H. Schuck, "When the Exception Becomes the Rule: Regulatory Equity and the Formation of Agency Policy through an Exceptions Process" (1984) Duke LJ 163. Schuck attributes this use of a waiver strategy to achieve a policy change to a desire on the part of the agency t o avoid the requirements of the Administrative Procedure Act 1946 which would operate if the policy w a s embodied in a rule change.

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unless an idea of legal pluralism is accepted,76 the regulator lacks the legitimacy which the court is afforded to determine the meaning and application of the rule in particular instances. The practice may lay the agency open to the charges of capture, inconsistency and inequity, of emptying the law of any meaningful content, and of undermining the regulation, and more particularly, its public interest or social objectives.77 This is particularly so if the adjustment of the rule is largely invisible to those observing the agency, or even to others within the regulatory system. A conversational approach in itself, therefore, whilst it may be flexible and responsive, does give rise to, and indeed is in turn affected by, issues of participation, transparency, the standing of participants in the conversation, and the nature of distribution of authority and decision making for the conduct of the conversation. At one level, these issues can be seen as examples of the familiar trade off between efficiency and due process.78 But the way in which this trade off is in practice achieved often satisfies no-one. In the context of EU competition law, for example, although the procedural protections accompanying the formal process for granting exemptions allow for greater third party participation, that process is very rarely used as it makes such significant demands on time and resources. The informal process which has thus developed is much quicker, but participation of interested third parties is restricted if not eliminated; publicisation of the actual application of the law in individual circumstances is limited or nonexistent; the ability of others to know what the law is in practice is subsequently impeded, giving rise to legal uncertainty, and it becomes difficult, if not impossible to monitor the agency's activity. The practice of dealing with cases by settlement or by comfort letter has been criticised on the basis of the lack of legal certainty;79 the lack of consistency as to when formal or informal decisions are made, and between informal decisions; the lack of transparency of the practice; and the lack of involvement of a hearing officer 76 O n resistance to such a notion in English public law see H. Arthurs, "Reforming Administrative Law: A Slightly Dicey Business" (1979) 17 Osgoode Hall LR 1, and Page v. Hull University Visitor [1993] 1 All ER 97. 77 Inserting t h e terms "public interest" here is not s o much to ascribe to a particular theory of regulatory genesis, but to emphasise that it is only if w e accept that regulation has at least in part s o m e public interested objectives that worrying about its effective implementation and operation makes sense; if regulation is simply there to provide benefits for certain sectional, private interests, then why engage in a debate as to h o w best it may attain those ends? 78 See Baldwin op. cit., n. 2, pp. 33-58. 79 They are n o t binding on third parties {IBM v. Commission [1981] ECR 2639). The Commission is presumably bound under the doctrine of legitimate expectations; however due to the particular features of a.85, the letters / settlements are not binding on national courts, at least presumably in so far as they grant exemptions (national courts cannot implement a.85(3), which grants exemptions). See further Wyatt and Dashwood op. cit., n. 24, pp. 480-481 for a discussion.

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or equivalent to ensure the objectivity of the process. 80 The experience of the Commission thus shows all too clearly that whilst administrative and business realities may demand the sacrifice of due process and accountability values in return for the speedy resolution of decisions, that sacrifice is a cause of discontent amongst that same business community and their legal advisors. These concerns may be exacerbated when the conversation occurs at the level of enforcement officers. Systems designed to increase participation and openness may more easily operate at the initial stage of rule formation rather than the subsequent stages of rule application and enforcement. Ensuring that others can participate in the conversation at these subsequent stages in the process could make significant demands on the time of both regulator and regulated, render the process unwieldy, and perhaps effect the willingness of either the regulator or regulated to participate in the conversation at all.81 Adoption of this type of conversational approach thus may mean that even if the rule formation process was one of negotiation between or otherwise involved the participation of a wide range of interests, those interests may be effectively excluded from the implementation of that rule in the enforcement process. Participation at one stage in the regulatory process, rule formation, is negated at another. Partly on this basis, the practice of adopting a compliance approach in enforcement has attracted significant criticism on the grounds that it is an unauthorised and pragmatic condoning of breaches of the rules, constituting effectively an illegitimate alteration of the regulation in favour of the regulatee, undermining its central policy aims.82 The issues which arise are not simply due to the pressures of time or other bureaucratic constraints. Conversations also depend for their successful operation on matters which cannot simply be achieved by improved organisational or procedural design: matters of trust and legitimacy. The operation of such a strategy as firm-written rules or the operation of an extensive system of guidance or waivers in which regulation is tailored to fit the particular regulatee, for example, depend significantly on the degree to which the regulator is prepared to trust the regulatees to formulate rules which will meet the overall social goals without the regulator dictating the requirements of those rules. These strategies, and those of compliance approaches to enforcement, also depend on the degree to which the public is prepared to trust both firm and regulator to construct a system of regulation which will in fact achieve those goals. These concerns are fundamentally linked to that of legitimacy: to what extent is such bi-lateral rule making accepted, and by whom? Different regula81 On the prerequisites for successful negotiation, see P. Harter, "Negotiating Regulation" (1982) 71 Georgetown LJ 1. 82 F. Pearce and S. T o m b s , "Ideology, H e g e m o n y and Empiricism: Compliance Theories of Regulation" (1990) 3 0 BJ Crim 4 2 3 .

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tory communities or constituencies may have different criteria of legitimacy.83 Indeed, it may be that conversations, in undermining the uniformity of the rule by its individualised adjustment, illustrate what may be described as the "legitimacy paradox" of regulators: regulators' legitimacy comes in large part from their ostensible pursuit of public interest regulatory goals, no matter how vague, ill defined or contradictory they may be. Conversations involving, for example, waivers or a compliance approach to enforcement may be necessary to maintain the legitimacy and acceptability of the regulation to one community, the regulatees; however they may be seen by others as an illegitimate approach to adopt, and further as evidence of collusion between regulator and regulatee, of capture or too cosy relationships. What therefore may be necessary to maintain the regulators' legitimacy for one audience may be contrary to that which is necessary to maintain it for another. These concerns are also critically linked to the expectations which surround the role (and rule) of law. Many of the criticisms which attend the conduct of conversations stem directly from the role which is played by law within that conversation. The significance of law in the expectations surrounding conversations does not stem from the fact that legal rules are "hard edged" in some way.84 Nor is it, as some legal-linguistic theorists have suggested,85 that they are entrenched and not susceptible to constant change, alteration and retraction (at least at the level of the formal, public statement of the rule), in the way that generalisations and statements which form part of the course of conversation can be modified, altered as the conversation adopts different courses or paths. It is rather the host of other values and considerations which come with the definition of a norm as "legal", and moreover, of a process as "public". The use of .law inevitably imports a set of values with which the regulatory system has to conform: "rule of law" values that law should be certain, general, open, stable and prospective. Moreover, the governmental nature of the bodies operating the regulatory system imports a further familiar set of values: of due process, transparency, openness and participation.86 Thus although law does not play the determinative role which classic formulations of the legal paradigm ascribe to it (that what the rule says is what the world does), the values which are embodied in the liberal legal paradigm do influence the expectations actors have of the manner in which law, or those administering it, should operate. 83

For an idea of "legitimacy communities" see R. Barker, Political Legitimacy and the State (1990). M See for example the analogy drawn by Feldman between the "wall" of law and the "rushing stream" of non-legal norms: M. Feldman, "The Social Limits to Discretion" in K. Hawkins (ed), Uses of Discretion (1992), at p. 183. 83 See for example Bix, op. cit., n. 66; Schauer, op. cit., n. 62. 86 These values may be imported irrespective of the state's involvement: Habermas, for example, sees participation as necessary for the legitimacy of law, irrespective of public involvement: J. Habermas, Of Facts and Norms (transl. 1996).

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These values are not simply the plaints of unreconstructed public lawyers: as noted in the examples above, they are shared by other participants and observers of the regulatory system, and can have a direct bearing on the conduct of the conversation. It is interesting to note, for example, that in the debate surrounding the operation of EU competition regulation that the issue of the legal status of comfort letters has been directly linked to those of due process: the greater the participation and openness of the exemption process, the greater could be the legal status and bindingness of such letters. The inevitability of conversations indicates that these issues have to be addressed if regulation is to retain a degree of effectiveness and acceptability both to regulatees and to society as a whole. Moreover, conversations should not be seen simply as regrettable but unavoidable features of regulation; as noted above, they carry with them considerable benefits of flexibility, responsiveness, tailoring; facilitating or indeed manifesting alternative forms of regulatory technique, forms which are attuned to the structure, operation and incentives of individual regulatees. How then can the institutional structure which surrounds such conversations be adjusted to enhance their legitimacy and effectiveness?

Structuring Conversations Questions of effectiveness and of acceptability and legitimacy are both contested and inextricably bound. It may not be possible to measure a system's effectiveness independently of the acceptability of the process or result to different communities. Indeed, the degree of its effectiveness may contribute to the extent to which it is regarded as legitimate. Conversely, unless the system is regarded as legitimate by those who participate in it or observe it, then to an extent its effectiveness is of little value. Without exploring further here the complexity of the relationship, it is suggested that the criteria against which a conversation should be assessed are those of Selznick's model of responsive regulation, viz. that in the conversation both regulator and regulated should maintain the integrity of the regulation and its commitment to its goals (however vague or contradictory they may be), while acknowledging the claims and interests of an appropriate range of persons.87 To this end, it is suggested that four elements are central to the effective operation and acceptability of regulatory conversations.88 These are commitment of its principal participants, regulator and regulatee, to a meaningful 87

Selznick, op. cit., n. 5 0 , p. 463. These specification of these four conditions is not intended to deny the need for principles of due process, non-discrimination or other basic civil, political or social rights: rather the intention is to focus on those elements which are central to the w a y s in which conversations in particular can be structured s o as to achieve the aims identified, a structure which both depends o n , and is in s o m e instances a further specification of, those principles. 88

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discourse; the nature of the opportunities of others to access the conversation; the distribution of power and authority between the different conversants; and the trust and accountability which exists between the participants and which surrounds the regulatory system. Commitment To consider first the issue of commitment. For dialogue to be successful, the conversants have to be committed to the process. It may be that certain preconditions are necessary for that commitment to be present, both for the regulator and the regulatee. On the part of the regulatee, although it may seem that engaging in a conversation with the regulator as to the exact application or possible waiver of a rule may be advantageous in conferring certainty, there may for a number of reasons be a reluctance on the part of those being regulated to participate. Indeed, seeking such exemptions or advice, and thus initiating the conversation as to the application of the rules, may itself be a complex decision, and the firm may conclude that certainty comes at too high a price. The firm may be reluctant to give the disclosures which are necessary, particularly if the process for applying for a waiver, guidance or ruling is formal, and if details of the application and/or decision are published.89 Further, in applying to the regulator for advice or an exemption, the regulated runs the risk not only of receiving adverse advice or being refused, but also of alerting the regulator to the transaction or to the firm's operation more generally, where in the absence of the application the regulator might have continued in ignorance of the practice. Or regulatees may fear that seeking advice on the application of a rule would signal to the regulator that the firm was incompetent, applying the rules improperly or not at all. They may be right: PIA's proposed approach to enforcement, for example, includes frequent calls from compliance officers as one of its "danger signs" in assessing the compliance profile of the individual firm.90 Work on compliance officers suggests that regulatees may thus require some relationship of trust to exist between themselves and the regulator before they feel confident that a request for advice will not trigger alarm bells in the regulator's enforcement office.91 89 O n the reluctance of firms to notify the C o m m i s s i o n of arrangements that may infringe article 8 1 , despite the danger of invalidity due to failure t o notify, see I. Forrester and C. N o r a l l , "The Laicization of Community Law: Self Help and the Rule of Reason: H o w Competition Law is and could be Applied" (1984) 21 CMLR 1 1 - 5 1 ; o n the reluctance of banks t o have their individual capital requirements published see C. Hadjeimmenuil, Banking Regulation and the Bank of England (1996); on the reluctance of firms to have their applications for tax rulings published see W. Chan, "A Useful Hybrid?" Tax Journal, 2nd June 1997, 9. 90

PIA Evolution Project: The Next Steps, para 172. See M . Weait, "The R o l e of the Compliance Officer in Firms Carrying on Investment Business in the City of London", unpublished D.Phil thesis, Oxford University, 1995, pp. 91

77-79; 158-160.

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On the part of the regulator, conversations are a way of addressing the information asymmetries which inevitably exist between regulator and regulatee concerning the latter's operation. There are several ways in which regulators could encourage conversations which would address these asymmetries. For example, they could prompt firms to seek advice or exemptions by, for example, making application for exemptions compulsory (as under EU competition law);92 another strategy is the approach adopted by the Panel, which is to permit applications for advice to be made on a hypothetical or anonymous basis. Both approaches encourage the regulatee to instigate communication with the regulator, providing the regulator with a flow of information as to the rule's application. This may indicate problems such as over- or under-inclusion, which the regulator may then address through amending the rule or seeking its amendment. Further, with respect to exemptions, the agency is put on notice about the transaction and therefore has the opportunity to control more effectively the giving of exemptions, rather than leaving it to the monitoring or investigation processes. However, whilst undoubtedly the process of the regulated seeking advice or exemptions could be advantageous for the regulator, there may nonetheless be reluctance to participate. This, for example, is the position of the Inland Revenue. Indeed the Revenue finds itself in a position almost of a conflict of interest which inhibits its conduct as a conversational partner: on the one hand it wants to provide certainty to taxpayers, on the other its principal duty is to collect taxes, and indeed to maximise the revenue which can be lawfully collected. The Revenue has been set a target of obtaining an additional £2bn over the next three years, and under the "Spend to Save" initiative, the Revenue will be deploying two thousand more staff over that period to counter tax avoidance and evasion.93 The Revenue's concern that any advice given could facilitate tax avoidance makes it a very ambivalent conversational partner, and whilst it may willingly engage in conversations on an informal basis, it is prepared to enter those which lead to binding rulings only in particularly defined circumstances. Indeed the approach which is required under the "Spend to Save" initiative is implicitly one of regulatory unreasonableness and not one of responsiveness, flexibility and dialogue.94 92

If the parties have not notified the Commission under article 85(2) they are subject to fines even if the agreement is not in breach of the competition rules, although even this may still not have the desired effect: see Forrester and Norall, op. cit., n. 89. ^ Moves which have prompted fears that the Revenue will use its considerable powers of investigation to pursue what are in reality cases of tax avoidance (which is legal) as opposed to tax evasion (which is not). See, for example, T. Murray and C. Glasson, "Beyond the Pale" Tax Journal, 30th January 1997, 10. 94 Moving to this more adversarial style of operation after long adopting a more cooperative approach may bring the IRC other problems. It was such a change in approach which led to the judicial review in R. v. IRC, ex p. Unilever [1994] STC 681. A cooperative arrangement between Unilever and the tax office had existed for twenty years, whereby Unilever claimed relief for tax losses simply by deducting losses from profits and not submitting returns showing losses separately until beyond the maximum time limit of two years

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Commitment is not only a question of attitude, it also depends on the harsh factors of resources. Concern over the resource implications of adopting a central strategy of advice or rulings was a significant factor in the Revenue's decision not to proceed with a system of pre-transaction rulings, for example. Again, the Revenue was particularly concerned not to prejudice its tax enforcement activity, and did not want resources to be switched from enforcement to advice, an issue of particular resonance in the area of tax as enforcement is a high yield, low cost activity, the results of which (more money for the Exchequer) are highly visible and tangible: unlike many regulators, the Revenue can to some extent measure the scale of its success. Adopting a technique of firm-written rules may also be highly resource intensive. Approval of firm-written rules essentially requires the regulator's role to move from that of regulator to that of consultant. Given the level of commitment of regulatory resources necessary to assess the different rules which firms formulate or to negotiate the individualised application of a rule, it may be necessary that the agency be well resourced and / or that the regulatees be relatively few in number for the agency to be able to engage fully in the negotiation and approval exercise. Such an approach also requires the regulatees to be well-resourced, or at least be willing to commit the resources they have to such a project. Firms are subject to a whole web of regulation in the course of their operations; if all the discrete elements of this regulatory web adopted this model, it could be potentially costly for the firm (although very good for the lawyers who would probably be employed to write the rules).95 The costs may therefore be high, and it is no answer, contrary to what Ayres and Braithwaite suggest,96 that these can be reduced by, for example, making the process of approval routine and carried out by low level officials acting in accordance with internal guidelines. Resources here interact with attitude in determining the commitment of parties to the conversation. This form of conversation can only work effectively if the agency engages in the process, and really does treat each individual set of rules individually, and not in accordance with internally set general guidelines applied either by rote or after the accounting period to which they related had elapsed. T h e Inland Revenue then without warning objected t o the returns on the grounds that they had been made out of time, and therefore relief for loss could not be obtained (a sum amounting to £95.5m). T h e court held that the practice had given rise to a legitimate expectation on Unilever's part, and that the Revenue's d e m a n d was unfair and an abuse of power. 95 Even if this a p p r o a c h was adopted by only some of that w e b , the willingness to commit resources t o writing rules would probably depend on h o w central the regulation is to the firm's operations: in very hazardous industries, for example mining, oil refining, chemicals, health and safety regulation is central, and s o firms may be willing to commit resources to writing supervised rules; investment firms, in contrast, may not be. For them, securities regulation is central t o their operations; they are more likely to invest resources in writing rules for c o m p l i a n c e with that rather than with health and safety regulation, which is more incidental to their day t o day operation. 96 op. cit., n. 39 at p. 121.

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out of a concern to exercise as much control as possible over the regulated firms, a concern which may or may not in turn be generated by the agency's search for legitimacy in the wider public. The importance of the agency's approach to the regulation is highlighted by the experience of an analogous regime in financial services regulation in the UK: the Financial Services Act 1986 initially provided that the rules of the subsidiary self-regulatory organisations (SROs) were to be "equivalent" to those of the Securities and Investments Board (SIB). This provision was interpreted very narrowly by SIB, which in effect required that the SROs' rules be the same as SIB's. It was only a change in regulatory approach at SIB which led to greater freedom on the part of the SROs in forming their rulebooks.97 Further, without such commitment, the process of approval will become routinised; the self-written rules will only be approved if they accord with the agency's internal guidelines, which in turn may or may not be published. Again, the experience of the administration of unit trust regulation prior to the Financial Services Act 1986 provides some evidence of this. Under the Prevention of Frauds (Investment) Act 1958 all unit trusts had to be approved by the Department of Trade. The system was criticised trenchantly by Gower in his report: it could take months to approve a trust deed; there was no published body of law which indicated when approval would be granted, and the regulation was administered by low level officials who were ignorant of the area, which had led to ossification.98 The danger with such an approach is that the pressures of bureaucratisation mean that the commitment necessary to ensure the benefits of individual tailoring will be lost.

Access The second element is access to the conversation, who participates in it. We have seen that it can be the closed nature of conversations, the fact that they are bi-lateral and that third parties are excluded, which can be at once their most necessary and their most contentious aspect. Conversations pose the risk, noted above, that participation in one forum of the regulatory process, policy and initial rule formation, is negated at another, that of rule application. As the experience of EU competition law suggests, however, too elaborate procedures run the danger of rendering the process ineffective. Moreover, the regulated's desire to maintain the privacy and confidentiality of its operations may mean that opening the process up to others has the effect that the conversation ceases, or simply moves to a more private forum.

97

Although accompanied by t o "adequate", the amendment requiring a change in regulatory 98 L.C.B. G o w e r , Review of paras 3.06 and 8.

an a m e n d m e n t in the statutory w o r d i n g from "equivalent" w a s largely o f semantic significance, s i g n a l l i n g rather than approach. See Black, op. cit., n. 64 ( 1 9 9 7 ) , C h a p . 3 . Investor Protection: Discussion Document ( H M S O , 1982),

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There is thus a tension between the need and desire for privacy and confidentiality on the part of the individual and the wish for openness and transparency on the part of others, both regulatees and the wider public. In resolving this tension, it is suggested that there is a need to distinguish different forms and occasions of access and participation. Participation is perhaps easier to achieve when the general policy and the rules embodying it are being determined, and indeed those who advocate a participative approach tend to concentrate on just this stage of policy or rule formation." Participation can also be a feature of the post hoc accountability of the regulators, with broader interests being involved in monitoring regulators and reporting processes including information on the operation of the process. Participation in the conversation itself, however, is harder to achieve, and indeed it is questionable whether it is always justified. Direct participation is perhaps only necessary where the third party's position will be directly affected by any agreement which is reached between the regulator and individual regulatee. Requiring it in other instances, given the regulatee's desire for privacy, is likely simply to shift the conversation to another forum, or end it altogether. Pragmatic considerations need not be the only justification for restricting third party access to the conversation concerning the rule's application. This approach, it is suggested, would moreover be consonant with a notion of fair treatment which Galligan posits, in that it balances the need to ensure the achievement of the general social goals of the regulation with a recognition of the position of the individual where that individual's position is central to the application of the rules.100 Authority Participation is linked to the third element, that of authority. The distribution of authority within the regulatory system to determine the interpretation of rules is critical to the operation of a conversational approach, and to the respective standing of participants in the conversation. The effectiveness of the conversational approach is primarily contingent on who has the authority, de facto or de lege, to determine the interpretation and application of the rule in the individual circumstance. An obvious example is that of giving guidance: guidance is of greater use to the regulated firm if it knows that it can rely on it. This requires two things: first, that the regulator cannot backtrack, but is bound by its interpretation, and second, that it cannot be overridden, that it is the final arbiter of the rule. However, the issue of authority to determine the rule's application is also central to the legitimacy of the conversational process. The question of where that authority should lie thus has a number of aspects. There are clearly the 99 100

See for example Teubner, op. cit. nn. 54, 69; Mayntz, op. cit., n. 72. Galligan, op. cit., n. 73, especially pp. 52-96.

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issues of speed and certainty: the fewer the number of bodies who are involved in interpreting the rules, the less complicated and lengthy any appeals process, the more the regulated can rely on the regulator's decision. Further, if the immediate regulator does not have the authority to interpret the rules, rather this authority resides with another body, then unless this final body participates in the initial conversation, possibilities are opened up of strategic play by the regulated to force the immediate regulator to agree with it rather than have matter referred on. 101 The locus of authority, and in particular keeping authority to determine the meaning of rules within the regulatory system, which may entail excluding courts from an appeal process, also has other, less obvious implications. These are that it may permit the development of an interpretive community, that is a shared body of understandings as to the meaning and application of rules within the regulated community. The arguments for such a development thus stem not from the usual assertions of regulatory expertise, often used a s a legitimating basis for giving the regulator authority to make final determinations, 102 but from the potential for tacit understandings as to the rules' operation and therefore greater certainty to be engendered, with subsequent implications for the type of rules which could be adopted. 103 Authority to determine the application of rules tends however to come only with certain pre-conditions attached, although what these are can vary with the particular context in which the regulator operates. Primarily, the regulated have to be prepared to accept that final authority for the interpretation of rules lies within the regulatory system, subject of course to judicial review. 104 This acceptance cannot be taken for granted: in considering whether it should move to a system of broad rules supplemented by individualised guidance or firm-written rules, for example, PIA ask explicitly whether firms would be prepared to accept that the regulator's view should hold sway where there is a conflict of judgement between PIA and the firm on its application.105 Central to the question of acceptability and legitimacy is the question of whether the final arbiter should be independent and objective, so fulfilling the classic rule of law requirements, or whether it is acceptable or indeed desirable for that arbiter explicitly to pursue policy objectives. In the case of the Inland Revenue, for example, it has been argued that given the Revenue's obligation 101 Dangers for example recognised by Lord D o n a l d s o n M R in Datafin in d e t e r m i n i n g and the courts approach to review of the Panel's decisions: R. v. Panel on Take-overs Mergers, ex p . Datafin [1987] 1 All ER 564. 102 R.B. Stewart, "The Reformation of American Administrative Law" (1975) 88 Harvard LR 1669; Baldwin op. cit., n. 2. 103 See further, Black, op. cit., n. 6 4 (1997), Chap. 1. 104 O n the exercise o f that review p o w e r with respect to regulatory rules see rules s e e further J. Black, "Reviewing Regulatory Rules and Rule M a k i n g Processes" in J. B l a c k , P. Muchlinski and P. Walker (eds), Commercial Regulation and Judicial Review ( f o r t h c o m i n g , 1998). 105 PIA, PlA's Evolution Project: The Next Steps, para 178.

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to maximise tax revenue collected, there is a danger that the legislation will not be correctly applied;106 some have therefore argued that a system of pretransaction rulings should be operated by a body independent of the Revenue.107 The case for an independent agency to administer EU competition policy is also hotly debated, where the issue is whether an independent agency will adopt a purer and more single minded pursuit of competition policy than the Commission.108 What participants in both debates share is a concern that whoever has the authority to apply the rules should do so consistently and objectively and not arbitrarily; where they differ is as to the type of institutional and organisational structure which will best ensure this. The location of this authority affects not only the conduct of the conversation and the relationship between the conversants, but the issue of effective third party participation. A good example of the effect of the distribution of authority on the conduct of a conversation is that of telecommunications regulation. The regulator does not have the power to impose a particular alteration or application of the licence issued to network operators, but needs the consent of the regulated.109 If consent is not forthcoming, the matter is referred to the MMC, to whose rulings the regulator has then to have regard. The provisions of the licence are not simply relevant to the licence holder, however. Because of the particular history of the regulation, the licence of one firm, British Telecom, is effectively the instrument for regulating the rest of the telecommunications sector. The regulatory structure established on BT's privatisation was designed for a duopoly, BT and Mercury Communications (MCL). Changes in technology mean that telecommunications is no longer a natural monopoly, and other entrants have come into the market. Changes to the regulatory regime, however, can only occur through modifications of BT's licence, changes to which BT's consent is statutorily required.110 Although such a bi-Iateral, consensual arrangement may be appropriate in a contractual situation, in a regulatory environment such as this it is less acceptable as it gives one regulatee, the licensed operator, a significant amount of power to 106 Indeed it is this danger which Galligan highlights as being the problematic aspect of conversations in the context of due process: Galligan op. cit., n. 73, pp. 283—4. 107 R . Fraser, "Pre-Transaction R u l i n g s , Part 2 " Tax Journal, 2 2 February 1996, 18. T h e same concerns as to lack of impartiality and objectivity surround the discussion on the introduction of a general anti-avoidance provision: see for example the responses to the Chancellor's suggestion in the Budget Speech of introducing such a clause in the FT, 3rd July 1997. 108 See, for example, C-D. Ehlermann, "Reflections on a European Cartel Office" (1995) 32 CMLR 471—486; K. Van Miert, "The Proposal for a European Competition Agency"

(1996) 2:2 Competition Policy Newsletter 1. 109 A s indeed is t h e case in t h e regulation o f w a t e r , electricity, gas, a n d certain parts o f environmental regulation. 110 If BT does not consent, the DGT may refer the matter to the MMC (S.15(1) TA, although the Secretary of State may veto a referral (S.15(3) TA)); the MMC then decides whether the existing licence is in the public interest; if they find it is not, the DGT has a discretion amend it without the operator's consent.

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determine the nature of the general regulatory regime, and indeed of key aspects of the industry itself.111 Questions thus arise as to the ability of others who may be affected by the terms of the licence provision to participate in such negotiations. However, despite recent attempts by Oftel to open up the process of consultation and negotiation over the conditions of, in particular, BT's licence,112 in requiring BT's consent to any change, the regulatory structure places limits on the impact that the views generated by such a participative process can have on the final decision. As Scott comments, given the scope which the regulation allows for bilateral bargaining between the regulator and BT, and the effective veto which BT has, it is tempting to ask whether such a transparent and participative process provides simply a veneer of openness over a system which is structurally closed.113 The BT example also illustrates very clearly how different elements of the institutional structure in which the conversation occurs may operate in tension, restricting the opportunities for other elements to be recognised.

Trust and Accountability Authority, commitment and participation are thus central to the conduct of conversations. The final element which is essential for their effective conduct and acceptability is that of trust and accountability. The two are inextricably linked, as it is only through accountability that the regulator can build a reputation for fairness and pursuit of regulatory goals, a reputation which will in turn engender trust in its actions on the part of the regulated and the wider public. Indeed, trust is important at a number of levels. Firms have to trust the regulator to treat them fairly and consistently under the rules; the regulator has to trust the firm to speak honestly; the public has to trust the regulator not to discriminate or act arbitrarily, and not to deviate from or otherwise preju111 Judicial failure to recognise the regulatory nature of the licence agreement is evident in the case of Mercury Communications Ltd v. DGT [1996] 1 WLR 48. See further A. McHarg, "Regulation: a private law function?" [1995] Public Law 551; J. Black, "Constitutionalising Self Regulation" (1996) 59 MLR 24. 112 In his response to the National Audit Office's review, the Director General of Telecommunications stated: "..it is particularly important in telecoms where there is increasing competition in different segments of the market and where regulatory decisions can have different effects on different players. OFTEL needs to have a clear picture of how possible changes in the regulatory regime will affect all the different players in the industry—both in the short and the long term. It is vital, therefore, that proposals for change are fully aired and discussed with all the stakeholders in the industry." Report by the Comptroller and Auditor General, The Work of the Directors General of Telecommunications, Gas Supply, Water Services and Electricity Supply, HC 645 1995/6 (July 1996), Response of the Director General of Telecommunications, Overview, para 7. See further, T. Prosser, Law and the Regulators (1997), Chap. 3. 113 C. Scott, "Re-regulating Interconnection and Deregulating Prices—The UK Experience", paper presented to the Communications Research Forum, Melbourne, October 1996, p. 15.

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dice the social goals (however ambiguous and conflicting) which the regulation is meant to achieve. The less open and transparent the regulatory system, the more, in other words, that it relies on private conversations between regulator and individual regulatees, the more that trust is needed, and the less it may be forthcoming. Systems of regulation, such as that of banking supervision, which rely heavily on bi-lateral conversations between regulator and individual regulated firms to determine the exact form that regulation should take in their instance, are thus extremely vulnerable to suspicion and mistrust.114 Trust can be developed essentially by regulators establishing a reputation for fair and consistent treatment, and their resistance to capture.115 Such a reputation can be engendered through a willingness to be accountable; to provide qualitative information as to the broad content and nature of the conversations which it has. These could include post hoc reports as to the extent and nature of guidance, rulings or waivers given; the publication of firms' rules which have been approved, for example, and statements of enforcement practice. Consistency of treatment can be ensured through internal reporting systems and centralised monitoring and recording of enforcement practices, guidance, rulings or waivers, and qualitative assessment and comparison of firm written rules. In focusing on trust, therefore, what is emphasised is the need for regulation to be responsive not just to wider interests in its formation and to the regulated in its operation, but to the claims of society as a whole in the integrity of its function.

Conclusion Conversations about rules are both a necessary and inevitable part of the regulatory process, almost regardless of the form that that process takes. The range of examples drawn on here illustrate that whether it adopts the classic "command and control" model, or whether it is enabling, facilitative, and incentive-based, whether it occurs in a self regulatory, statutory or EU context, regulation inevitably involves rules; given the nature of rules, it will inevitably involve conversations about those rules. Further, focusing on those conversations highlights the dynamic aspect of the regulatory process, and denies a linear conception of that process, whereby rules are made and then enforced, invoking instead a continuous process of rule adjustment and individualisation, rooted in communication and discussion. 114 With respect to the Bank of England, see for example Hadjeimmenuil, op. cit. n. 89, pp. 141-3; B. Quinn, "Rules v Discretion: The Case of Banking Supervision in the Light of the Debate on Monetary Policy", Financial Markets Croup Special Paper No. 8S (LSE/FMG, 1996). 115 For an discussion of the role of the regulator's reputation in financial regulation see C. Goodhart et al., "Financial Regulation: Why, How and Where Now?", Monograph for the Central Bank Governor's Meeting, 6th June 1997 (FMG, LSE, 1997).

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Such conversations are not only inevitable, they are also desirable: they "oil the wheels" of the regulatory process; their absence is the hallmark of regulatory unreasonableness; they may permit flexibility, adaptability and responsiveness; they recognise the position of the individual in a generalised system of regulation. They are nevertheless surrounded by concerns as to their operation and legitimacy, concerns which come not simply from public lawyers, but from those who operate in and observe the regulatory system. Moreover, they may not achieve the ideals of responsiveness: a regulatory system may appear to involve conversational elements, but the conversants may be rather ambivalent communicators. Consideration of conversations has therefore to take into account the commitment of those involved to the process, as well as the broader question of their legitimacy. They in turn raise issues of authority, participation, trust and accountability, issues in which the tensions between privacy and transparency, the pursuit of social goals and the recognition of individual needs have to be resolved. These issues are central to the legitimacy and ultimate effectiveness of the conversational process. Moreover, because the process has echoes of communication theory and models of procedural regulation the questions it raises also resonate there: of rights of access and standing within the process; of the operational limits on the process, the numbers that can be involved, the stages in the regulatory process at which that involvement is most likely and most feasible; and of the dangers of undermining the open and participative process which characterised the initial formation of the regulatory policy and rules by the later, less visible dialogues which occur between regulator and regulated. In resolving these issues, there is a need to structure the distribution of authority and the forms and occasions of participation and accountability in such a way that they do not operate in conflict either with each other or with the willingness and commitment of regulator and regulated alike to the conversation. In part, then, the call is for a need to recognise that, as Lacey states, "the insights about the complexity of administrative processes should feed back into social and political reflection on what kinds of administrative processes we want to set up and how to overcome difficulties in realizing the social goals of our institutions."116 It is also, however, to remember exactly why those administrative processes are so complex, and to recognise that in that complexity lies the limits to what prescription of administrative processes can achieve. As has been stressed throughout, conversations are both an inevitable and, in certain circumstances, a desirable part of the regulatory process; ways therefore need to be found to structure, use and accommodate them whilst not shifting them to another, more private, forum or silencing them altogether.

116

N. Lacey, "The Jurisprudence of Discretion" in Hawkins (ed.), op. cit., n. 84, p. 384.

PART 4

Recent Research

13 Child Support Appeal Tribunals: The Appellant's Perspective RICHARD YOUNG, NICK WIKELEY and GWYNN DAVIS Introduction

T

HIS paper describes one aspect of a research project which was designed to assess the impact of the Child Support Act 1991 on the process by which divorced and separated couples resolve their financial affairs, and in particular matters relating to child maintenance.1 The establishment of the Child Support Agency as a means of imposing a formula-driven maintenance obligation through an administrative rather than judicial process provided a natural focus for members of this collaborative research team. Previous work at Bristol and Birmingham had involved exploring the process by which solicitors negotiate financial relief settlements under the old discretionary based system2 and evaluating the system of social security adjudication and appeals, which formed the model for the Child Support Act scheme of dispute resolution.3 The focus of this paper is the appellants' experience of appealing to a child support appeal tribunal (CSAT). We start by outlining our research methodology and the system of reviews and appeals under the Child Support Act

' The research for this paper was conducted by the three authors with the assistance of Jacqueline Barron (formerly University of Bristol) and Julie Bedward (University of Birmingham). We are indebted to the Nuffield Foundation, which funded the study, and to the Department of Social Security, the Child Support Agency, the Independent Tribunal Service, the Lord Chancellor's Department, Birmingham County Court and a number of Bristol solicitors for generous research access. Last but not least, we are grateful to all those parents and other participants in the child support process who agreed to be interviewed as part of the project (all names used in this paper are, of course, pseudonyms). The original paper was delivered at the Bristol conference by the second-named author. A fuller account of the research has been published as G Davis, N Wikeley and R Young (with J Barron and J Bedward), Child Support in Action (Oxford, Hart Publishing, 1998). 2

G Davis, S Cretney and J Collins, Simple Quarrels (Oxford, Clarendon Press, 1994). J Baldwin, N Wikeley and R Young, Judging Social Security, (Oxford, Clarendon Press, 1992). 3

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1991. We then report on our findings relating to the reasons why people appeal to child support appeal tribunals and the way in which these tribunals seek to resolve disputes between parents while maintaining order in the hearing itself. Finally, we offer some analysis of the pattern of advice and representation before this form of tribunal.

Research methodology The research was primarily a case-based study, with most of the data collected by means of semi-structured interviews with parents and others involved in each case. These began in April 1994, a year after the child support scheme was implemented, with most of the fieldwork being undertaken between July 1994 and September 1995. This process of case-monitoring was supplemented with observations at child support appeal tribunals and more general discussions with lawyers, Child Support Agency (CSA) staff and tribunal chairmen and members. We drew our sample from four different sources. First, we collected a sample of parents who were undergoing the legal processes relating to separation and divorce. The Lord Chancellor's Department allowed us access to divorce files at Birmingham County Court. This procedure eventually resulted in our securing a total of twenty-two cases, in twenty-one of which we gained access to only one of the parties. Secondly, in Bristol we adopted the alternative method of asking local solicitors to invite one or more of their dients to cooperate with our study. We stipulated that the client should be engaged in separation or divorce proceedings and have one or more dependent children. We asked solicitors not to select clients for us, but to approach the first new referral that they came across following our letter. This system generated fifteen cases, including three couples. Our third method was to approach the CSA itself. In this we had the cooperation of the DSS Social Research Branch who arranged for case samples to be drawn from the two regional Child Support Agency Centres (CSACs) at Dudley and Plymouth. All parents approached by the DSS were asked whether they would permit us to contact them. Only when written permission was received by DSS were names and addresses passed to us. In this way we achieved nineteen cases referred by the Dudley CSAC (one of which eventually became a double case), and forty-six cases referred by the Plymouth CSAC (including ten double cases). Thus we secured sixty-five CSA-referred cases in total. Fourthly, we received the cooperation of the Independent Tribunal Service (ITS) and with their help secured a further twenty-one cases (ten in Birmingham, eleven in Bristol), all of which had reached the stage of a CSAT. The selection was by date rather than by case: everyone whose appeal was to be heard on a specific date was included in the sample. After we had observed the twenty-one hearings we approached the parties (either in the waiting area,

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or subsequently by letter) and sought their consent to being interviewed. In Birmingham we were able to conduct interviews in seven cases (this included four "double" cases); and in Bristol we were able to conduct interviews in ten cases (including three "double" cases). Included in these figures are interviews with four people (two at each centre) who had not attended the tribunal but who were approached subsequently. The cases we obtained through attending tribunals were amongst the richest of our overall sample of one hundred and twenty-three cases in terms of the data they provided. When we attended a tribunal we sought wherever possible to interview the chairman of the tribunal, the wing members, and the CSA presenting officer. Most of these interviews were conducted under some time pressure as they usually took place at the end of the day or during the lunch hour. We did not always attempt to record interviews in these circumstances. These tribunal observations form a small but important part of our study. We actually attended twenty-three tribunal hearings in all: ten in Birmingham, twelve in Bristol, and one in Sussex (the latter, and one of the Bristol cases, were ones which we had been following from the outset through the CSA sampling stream). To summarise: our total sample achieved from these four sources was 123 cases: 22 from Birmingham County Court; 15 from Bristol solicitors; 65 from the CSA; and 21 from the Independent Tribunal Service. In 20 of the 123 cases we secured the participation of both parties. We were able to gain access to CSA information (interviews with staff and access to files) in 19 of the 20 double cases.

Reviews and Appeals Under the Child Support Act 1991 One focus of the research was concerned with the formal procedures for redressing grievances as operated by the CSA, and their relationship with the independent child support appeal tribunals. Nearly all state agencies operate such internal redress procedures and many administrative decisions carry a further right of appeal to an independent tribunal. 4 What is unusual about decisions taken under the child support scheme is that they may lead to one private individual benefiting at the expense of another. It is important to begin by distinguishing the formal redress procedures within the child support scheme from other mechanisms for handling complaints. The type of grievance procedure available depends on the type of decision or action which is the subject of the complaint. Certain decisions made by CSA staff are taken on behalf of the Secretary of State for Social Security, whereas others are taken by Agency staff acting as child support 4 For a general survey see N Lewis and P Birkinshaw, When Citizens Complain: Reforming Justice and Administration, (Buckingham, Open University Press, 1993).

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officers. Generally, there are formal rights of appeal against the decisions of the latter, but not against those of the former. Secretary of State decisions typically concern the way in which a case is handled, especially in the areas of information gathering, collection of child support, and enforcement of arrears. The redress available to a client in respect of a Secretary of State's decision is to ask the CSA to reconsider, or to make a complaint to the customer services manager of the Agency office concerned. Child support officers may be thought of as representing the first stage in the adjudicative machinery created by the Child Support Act 1991.6 These officers are charged with such tasks as calculating assessments, carrying out change of circumstances reviews, deciding whether to cancel an assessment and so forth. Once a child support officer has taken a decision, it cannot be overturned by a superior within the CSA. Such decisions may only be changed on a review by another child support officer or through an appeal to a CSAT.7 Decisions taken by child support officers are essentially adjudicative in nature. In its most idealised form, the job of child support officers would be simply to collect information and enter it into a computer which would then produce an assessment according to rule-based formulae. In theory this meant that the new system would operate more quickly, efficiently and cheaply. It also meant that Parliament (or, more realistically, Government) could specify formulae to be used by the CSA which would guarantee that levels of child support payable would rise sharply from the levels previously set by the courts. These desired effects might be undermined, however, if extensive rights of appeal were afforded to the Agency's clients. This explains why an appeal cannot succeed on the ground that a child support assessment is causing exceptional financial hardship and why, generally speaking, there is little scope within the child support scheme to avoid the rigours of the formulae employed.8 It would, however, have appeared to be a denial of justice to provide no right of appeal whatsoever (other than through the residual and expensive remedy of judicial review).9 The solution adopted was to create a two-step 10 5 Under s.l of the Social Security Act 1998, this distinction has been abolished. For a critical commentary, see M Adler and R Sainsbury, Adjudication Matters: Reforming Decision Making and Appeals in Social Security (Edinburgh, Department of Social Policy, University of Edinburgh, 1998). 6 Child Support Act 1991, s.U(l) and (2). 7 Child Support Act 1991, S.13(3) and (4). 8 Since the fieldwork for this research was completed, the Child Support Act 1995 has allowed for "departures" to be made from the formula in a limited number of specified situations. 9 As the White Paper which preceded the Child Support Act 1991 put it, "There must, of course, be a right of appeal if one of the parties to the assessment made believes the decision to be mistaken": Department of Social Security, Children Come First, (London, HMSO, 1990), Cm 1264, vol.1, at 25. 10 A child support officer's decision to issue a reduced benefit direction can, uniquely, be appealed direct to a child support appeal tribunal without the need for an internal review first: Child Support Act 1991, s.46(7).

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system of internal review and external appeal within which challenges could be initiated only on narrowly defined grounds. There are in fact four main types of internal "review".11 First, there is the section 16 periodic review which examines whether the financial circumstances of the parents have changed such that the assessment should be revised.12 Second, there is the section 17 change of circumstances review which can be initiated by either parent. 13 Third, there is the section 18 second-tier review, which represents a challenge by one of the parents to a decision made by a child support officer. Finally, there is the section 19 review which enables a child support officer to review a decision of his or her own motion.14 Only the section 18 review should properly be regarded as part of the adjudicative machinery for redressing grievances (hence its tag within the CSA as a "second-tier review"). The other types of review are better treated as part of the administrative process for arriving at correct assessments. Thus, within the regional CSACs second-tier reviews are conducted by a specialist reviews section, whereas all other types of review are conducted by the Business Teams responsible for making assessments. Whether the Agency's clients appreciate the subtle distinctions between the different forms of review is another matter altogether.

Child Support Appeal Tribunals If either parent is aggrieved at the outcome of the second-tier review under section 18, an appeal may be made to a CSAT.15 CSATs comprise a paid chairman (part-time or full-time) and two volunteer lay wing members.16 The tribunals come under the aegis of the Independent Tribunal Service (ITS), the precise future of which is uncertain under the Social Security Act 1998. Whilst CSATs are formally independent of the CSA, their hearings draw on Agency resources in two important ways. First, on receiving an appeal from a parent, ITS transmits a request to the Agency's Central Appeals Unit at Lytham St Anne's to produce an appeals submission. The submission sets out the basis 1 ' In addition to the four types of review enumerated here, there exists a procedure for a child support officer to "set aside" (or cancel) a decision in the interests of justice but only on procedural grounds: Child Support (Maintenance Assessment Procedure) Regulations 1992, S.I. 1992 No. 1813, reg. 55. 12 Section 16 has since been amended by the Social Security Act 1998, s.40. 13 Child Support Act 1991, ss.17-19 have since been replaced by the new s.17 contained in the Social Security Act 1998, s.41. 14 This can be either on the ground of a change of circumstances, or on the ground of a mistake or law or fact in the original assessment. " Child Support Act 1991, s.20(l). '* The Child Support Act 1995 makes provision for a chairman to sit alone although at present this is confined to certain departures issues: Child Support Appeal Tribunal (Procedure) Regulations, S.I. 1992 No. 2641, reg. HA.

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for the contested decision and a response to the grounds of the appeal. It is made available to all the interested parties in advance of the tribunal hearing. Second, a presenting officer from the CSA attends at the hearing in order to explain the basis of the decision appealed against. This officer is expected to perform in the role of an amicus curiae (friend of the court) rather than as an advocate for the child support officer or the Agency.17 One significant difference between a section 18 internal review and a tribunal hearing is that at the latter both parties may attend at the same time to state their points of view. Another important difference is that the appeals submission provides the parents with a much fuller explanation of the child support assessment than they will have received in earlier dealings with the Agency. Moreover, the hearing gives parents the opportunity to discuss the assessment with an officer from the Agency as well as with a trained lawyer chairman and two interested lay members. There is thus greater scope on appeal than at internal review for explanations to be provided or clarified, points of view to be aired, and the issues thoroughly discussed from different perspectives. However, the absence of legal aid to cover the cost of representation at tribunals increases the likelihood of volatile exchanges between the parents exchanges which may have nothing to do with the legally relevant issues. Following the hearing, if an appeal against the decision of a reviewing officer is allowed, the tribunal must remit the case to the CSA, giving such directions as it considers appropriate. 18 In practice, tribunal decisions are reduced to writing and sent to both parents and to the Agency's Central Appeals Unit within a few weeks of the appeal hearing. A child support officer at the Unit determines how the tribunal directions should be implemented by the relevant regional Child Support Assessment Centre and also decides whether to lodge an appeal against the tribunal decision. It is open to the parents involved in a case and to the child support officer to challenge a tribunal decision by appealing to a Child Support Commissioner (and from there to the ordinary courts), but only on a point of law.19

Who Are the Appellants Before Child Support Appeal Tribunals? It came as no surprise to find that appeals are usually lodged by the absent parent (in our sample eighteen were brought by absent parents and five by parents with care). Parents had a variety of reasons for appealing. Some were 17 See E Jacobs and G Douglas, Child Support: The Legislation, (London, Sweet & Maxwell, 1997) at 449. For critical discussion of this function see N Wikeley and R Young, "Presenting Officers in Social Security Tribunals: The Theory and Practice of the Curious Amici" (1991) 18 Journal of Law and Society 464. 18 Child Support Act 1991, s.20(3) and (4). 19 Child Support Act 1991, s.24, as amended by Child Support Act 1995, Sch.3, para.7(2) and (3); see also Child Support Commissioners (Procedure) Regulations 1992, SI 1992 No. 2640. Leave must be obtained for such an appeal.

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aware that they had no legally valid grounds for appeal, but felt that the tribunal offered an opportunity to present complaints of bureaucratic inefficiency. Others felt that the CSA had made an error in their assessment and thus viewed the appeal as a final resort to have this rectified after reviews had proved ineffective. Yet relatively few appellants fully understood the appeals process when they first lodged an appeal against the decision of a child support officer. Indeed, some of the parents to whom we spoke had believed that the appeal itself would be handled within the Agency, and it was not until papers were received from ITS that they had realised their mistake. Others had appealed simply as an attempt to slow down the Agency's enforcement process. These initial motivations for appealing were reflected in rates of attendance at tribunal hearings. A high rate of non-attendance by appellants at social security appeal tribunals (SSATs) is a well documented phenomenon. 20 The picture with CSATs is less clear, although one obvious difference is that even where an appellant does not turn up, the other parent might attend in the role of a respondent. The appellant attended the hearing in seventeen of the twentythree tribunals observed, whereas the respondent was present in only seven instances. Complete non-attendance is thus less likely in this arena (occurring in just four of the cases which we observed).21 We were able to speak to some of those who had not attended their tribunal (two absent parents and three parents with care). Reasons given for non-attendance included illness and the desire to avoid confrontation with their expartner. Some non-attenders, like Miles Saltford, case 66, were aware that they had no grounds of appeal: "Because of the way the law is written I couldn't win no matter what I said. I wasn't expecting to win". He admitted that he had only appealed as a delaying tactic and had never intended to go to the hearing. Conversely, some respondents, such as Mary Fletcher, the parent with care in case 111, did not attend because they accepted that their ex-partner had a valid ground for challenging the assessment. Although many appellants expressed apprehension at attending the tribunal, the hearing was often viewed as a long awaited opportunity to have an injustice remedied.22 Appellants are generally anxious in their letters of appeal to paint themselves as responsible and reasonable. There is some evidence to support this: nine out of ten absent parent appellants had paid 20 See Baldwin, Wilceley and Young, n.3, ch.6. T h e attendance rate for SSATs for the first six months of 1996 was 63 per cent (DSS, Social Security Statistics 1997 (London, T h e Stationery Office, 1997) at 339. 21 I.e., on this limited sample, an attendance rate of 74 per cent by appellants and by one or other party of 83 per cent. 22 O n the importance attached by appellants to oral hearings before SSATs, see Baldwin, Wikeley and Young, n.3 at 179.

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child support, as against a compliance rate in the rest of the sample of about two-thirds. By contrast, the Agency is typically depicted as incompetent and the other parent as less than truthful or morally deserving. Such claims were often cited by respondents as the reason why they chose to attend the hearing. For example, Selina Ericson, parent with care in case 45, felt throughout that the bone of contention was between the absent parent, Malcolm Bridley, and the Child Support Agency, but that in making his case he had denigrated her character. She attended purely in order to correct what she perceived as his lies about her.

Tribunals as an Arena t o Resolve Disputes Between Parents The potential for a conflict of interest between parents marked out CSATs from the outset as facing a difficult and distinctive task.23 Other tribunals under the ITS umbrella, including the closely allied SSATs, pit an individual appellant against the impersonal state. Moreover, the state is represented by a presenting officer who is meant to perform in the role of an atnicus curiae rather than as an advocate for the relevant government department. This enables such tribunal hearings to be run, for the most part, in an enabling and inquisitorial manner with the panel putting questions to the appellant in an attempt to help them present their points.24 The chairmen of CSATs are similarly encouraged in their training to adopt an inquisitorial approach to the handling of hearings,25 and here too presenting officers act as friends of the court. But in CSATs any decision in favour of one parent may well have adverse consequences for the other parent. This makes it harder for the tribunal to avoid accusations of partiality if it enters the arena in order to help one or both of the parties to the appeal make out their case. We observed that this did not deter the tribunal from extending a helping hand where only one of the parents attended the appeal. But where both parents attended a tribunal (five of the twenty-three tribunals observed), the conflicts of interest were more apparent. In consequence, the handling of such cases by the panel was decidedly less interventionist. Typically chairmen would avoid delving too deeply into the conflicts of interests evident at such hearings. In the Mullins case (case 122), the chairman, rather than seeking to draw evidence out by pointed questions, mostly left it to the parties to develop their arguments in whatever way they liked. This worked to the advantage of the appellant and absent parent, Stuart Mullins, whose air was one of someone used to commanding authority and respect. He 13 See, for e x a m p l e , the v i e w s of t h e President of the ITS as reported in Council on Tribunals, Annual Report 1992-93, H C 78 (London, H M S O , 1993) at 5 0 , para. 2.111. 24 For an assessment o f t h e h a n d l i n g o f hearings by SSATs see Baldwin, Wikeley and Y o u n g , n.3, c h . 4 . 25 For d i s c u s s i o n , see J a c o b s and D o u g l a s , n.17, at 441-443.

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presented his case in a quiet, confident manner. By contrast, Doreen Mullins appeared reluctant to say much at all during the hearing. She seemed to be looking to the tribunal to act on her behalf by querying her ex-partner's financial position. The tribunal, however, was reluctant to act on her cues and sought to remain aloof from the fray in a way which is rarely seen in those tribunals where the appellant is pitted against the state, such as social security appeal tribunals.26 The presence of two private citizens as appellant and respondent thus seemed to inhibit the tribunal from playing the inquisitorial role. Of course, an adversarial mode of procedure tends to favour whichever side presents their case more effectively (to some extent regardless of the intrinsic merits of that case) and in this instance that was clearly the absent parent. As Doreen Mullins was to observe later in interview with us: "With someone like Stuart, who is on his guard, who is clever and tells lies, it is difficult to catch them out. I don't think they went into it enough, not to draw it out of him. I mean he's got a new boat and that, they only needed to look more into his lifestyle to find that he's got money. . . I suppose the only disappointment was that they didn't go more for him and sort him out. He's just far too clever. They just accepted everything he said."

Maintaining Order at Appeal Hearings The enabling and inquisitorial role that chairmen are supposed to fulfil often conflicts with the requirement that the chairman also has to contain the proceedings by attempting to limit the discussion to issues relevant to the appeal. This dilemma is familiar to chairmen sitting in a wide variety of tribunals but is a particular problem in CSATs, where the parties have usually suffered months or even years of poor bureaucratic service from the CSA. The tribunal may represent for these people the first chance they have had to express their frustration in person to someone in apparent authority. Certainly, in a significant proportion of the hearings we observed, the appellants perceived the tribunal as an opportunity to air their grievances about the inefficiency or unfairness of the CSA. Unless these situations are handled skilfully by the chairman, there is the potential for the hearing to get out of control. There were marked differences in the way chairmen managed this tension. Some chairmen showed great skill in allowing parents to let off steam, whilst still maintaining control over the hearing. At one extreme, one chairman showed such a willingness to discuss in depth every point raised by the parties present that hearings would typically last well over an hour. Whilst this was perceived by those parties as helpful, it meant that the next case due on might 26

See Baldwin, Wikeley and Young, n.3, ch.4.

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have to be rescheduled for lack of time. In one instance we saw a prospective appellant sent away for just this reason. Given the length of time it takes to get to an appeal, this is perhaps less than satisfactory. At the other end of the spectrum, others acted quickly, often too quickly in our view, to stifle any contributions deemed not legally relevant. These interpretive judgments were made within a complex legislative framework and the chairmen we observed were far from being as one on the question of what was legally relevant. For example, most (but not all) chairmen were not prepared to deal with issues, such as changes of circumstances, that had arisen subsequent to the decision appealed against. In view of the long delays involved in getting a case to a tribunal, this stance could make the hearing seem, at best, somewhat artificial. As Tim Wilcox, appellant in case 109, observed of the chairman who heard his case: "He wasn't going to listen to anything I had to say about what was happening in the present. All he was concerned about was when I put this appeal in, Christ knows how long ago, must have been a year and a half or two years ago, he wouldn't listen to what was happening right now, and that concerns me, what is happening now, not two years ago." Some of the tribunals we observed were particularly legalistic, refusing to entertain the slightest deviation from what they perceived to be the issues in the case. In one Birmingham tribunal in particular appellants were repeatedly chided and told that the tribunal was not a complaints' bureau. This undoubtedly added to the frustrations of those appellants whose previous attempts to gain advice or have the situation remedied by the CSA had been thwarted by an unsympathetic bureaucratic response. A dismissive attitude from a CSAT panel towards an appellant's complaints of how a case has been handled by the Agency could exacerbate feelings of powerlessness in the face of the system, as with this appellant: "It was upsetting me because I kept losing my thread. He [the chair] was saying "it's not a complaints' bureau", but I wanted to put my point forward about all the telephone calls and all the letters I've written [to the CSA]... I thought it was everything to do with it because I wrote twenty letters in ten months, plus the phone calls I tried to make. I've really tried my hardest to sort this out. I've really tried my damnedest." (Rodney Eltoff, appellant case 116) In another case heard by this Birmingham tribunal, the appellant, Patrick Beamon (case 118), was aware that his maintenance assessment was correct, and therefore that he had no formal grounds of appeal. However, he viewed the hearing as an opportunity to air his grievances about how the CSA had handled his case. This he was not allowed to do. In a subsequent interview Patrick commented caustically that the chairman had done his job "brilliantly.... He wouldn't let me talk about anything. He didn't want to discuss it. So he did his job". In Bristol too, some chairmen stifled all discussion. In case 109, for example,

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the chairman relentlessly undermined every issue raised by the appellant, Tim Wilcox. During the hearing, Tim was rebuked for his failure to bring his copy of the submission papers to the hearing. His solicitor's advice contained in a letter of appeal to the tribunal was dismissed as containing no grounds for an appeal. When the appellant sought an explanation as to why he had received three differing assessments from the CSA, the chairman refused to explore this, declaring "this is not a CAB". The hearing rapidly degenerated into an arena of conflict with sharp remarks flying between the chairman and the appellant, culminating in the appellant storming out of the room. Whilst the hearing discussed above might be an extreme example of the effects of a chairman's failure to fulfil an enabling role, it also highlights the dilemma encountered by the chairman when confronted by cases in which there is no apparent valid ground of appeal. Of the hearings we observed, these were the least satisfactory in terms of how they were conducted, and in terms of how their value was perceived both by the appellant and the panel. Arguably, cases such as 109 and 118 could best be dealt with by the CSA if they were more efficient and effective in handling clients' complaints. A prompt response by the Agency which provided the client with either an apology or an explanation might deter some legally hopeless appeals from being pursued.27 Apart from being a more cost effective way of dealing with grievances, it could spare the appellant from embarking on a course of action which with hindsight was often viewed as a waste of time. Another possibility is for tribunal chairmen to review cases in advance of the hearing and, where necessary, raise the question with the appellant whether there are any valid grounds for the appeal. At present, as we discuss further below, chairmen do not seek proactively to manage cases at the pre-tribunal stage and this can lead to frustration at the hearing. As Tim Wilcox (case 109) angrily asked the chairman when constantly rebuked for having nothing of relevance to say to the tribunal: "Why didn't you write to tell me that I had no ground for appeal?". The potential for loss of order and control within tribunal hearings was perhaps greatest in those cases where both parties attended, especially where accompanied by new partners. In case 114, for example, the appellant's new partner, Bryoni Banks, acted as his representative, and therefore sat next to the appellant facing the panel. Next to her sat the presenting officer and, next to him, the respondent, Amelia Radcliffe. The respondent's new partner was present simply as an observer, and was seated at the back of the room. In subsequent interviews, both Bryoni Banks and Amelia Radcliffe, admitted to feeling angered by the presence of the other at the hearing: "She was speaking for him and he hardly said two words, did he? And that did annoy me, for as far as I was concerned, it was none of her business. It was him that 27

It remains to be seen how far the new procedures to be introduced under the Social Security Act 1998 improve matters.

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made the appeal, not her. We were talking about his and my daughter - nothing to do with her". (Amelia Radcliffe, Respondent, case 114) "If she'd have said one comment today, I tell you now that chairman wouldn't have known what hit him: I'd have just smacked her one". (Bryoni Banks, Appellant's new partner and representative, case 114) Yet neither Amelia nor Bryoni as much as glanced at one another during the hearing, still less addressed any remarks to one another. Both the parties to the appeal and their new partners retained their composure throughout. The way in which tribunals sought to preserve order in such cases therefore merits analysis. In the Mullins case (case 122) the chairman began the hearing with a determined effort to confirm that everyone was willing to keep the appeal confined within the parameters of the written documents already exchanged. That he was not entirely successful in this endeavour may be seen in the fact that Doreen Mullins later introduced fresh evidence in the form of estate agent's details of Stuart's former and future houses. But the chairman's opening manoeuvre seemed designed to set a restrained orderly tone to the hearing and in this he appeared largely successful. This is not to say that the chairman's handling of the hearing was beyond criticism. For example, when Stuart Mullins had first been asked to comment on his written allegation that Doreen was claiming benefits fraudulently he shied away from the issue. The chairman responded by encouraging him to say more on the matter. This was not the most tactful way to proceed since if Stuart had been asked if he was content not to pursue this point further at the hearing he would almost certainly have responded in the affirmative. As it was, the chairman's poke into the hornet's nest of Stuart and Doreen's relationship resulted in a unpleasant sting for Doreen, with Stuart remarking that "I would like to point out that I was never even engaged to this woman . . . " It might be argued that the chairman should have softened the effect of this statement for Doreen by declaring it legally irrelevant. On the other hand, it seems a typical strategy for many tribunal chairs, including this one, to make no response to statements that have no legal bearing on the appeal. In this way they do not encourage the kind of legal irrelevancies which prolong hearings, nor do they stifle them in a way which might unsettle the parties and create a perception of unfairness.28 This applies as much to allegations made by parents about one another as to complaints about the CSA's inefficiencies. It was striking that at no point did either Stuart and Doreen address each other directly, nor were voices ever raised in anger or distress. Both parents kept roughly within the procedural bounds set by a rather formalistic chairman and both largely pulled their punches, neither wanting to be seen as vindictive. As the presenting officer put it to us after the hearing, parents tend to be "on their best behaviour in front of a tribunal." In consequence, and 28

See further Baldwin, Wikeley and Young, n.3 at 118-121.

Child Support Appeal Tribunals: The Appellants' Perspective

293

somewhat to our surprise, the cases in which both parents attended were amongst the most well-ordered of those we observed, notwithstanding the underlying tensions evident in these encounters. The most informal hearings were those where neither appellant nor respondent was present. These non-attended cases were processed quickly and efficiently. The hearings generally consisted of a brisk but informal discussion between the presenting officer and the chair.29 Typically, elementary errors on the part of the CSA would have been identified in the submission, and the chairman would confirm with the presenting officer that the tribunal should remit the case for these errors to be corrected. There was rarely any attempt to delve any deeper into the issues than this and it is difficult to see what more the tribunals could have done in these cases.

Advice and Representation The nature of tribunal hearings suggests a need for expert advice and representation. This is generally regarded as of key significance in achieving justice within an adversarial mode of procedure, as is commonly adopted by chairmen where both parents are present. The more inquisitorial stance seen in other hearings rarely made up for the lack of relevant evidence available, evidence which one would expect an expert advisor or representative to have collected in advance. At CSATs both the appellant and the respondent are allowed to be represented at the hearing by anyone of their choosing.30 As in most other tribunals, however, the various legal aid schemes do not extend to representation at tribunals. It has been argued on the basis of several major studies that advice on appeals and representation at tribunals should, in the interests of justice, be more freely available.31 In the absence of proper public funding for such services, parties to a tribunal hearing typically struggle to present their cases effectively. Most solicitors to whom we spoke had no experience of CSATs and were not prepared to act as a representative unless their clients could pay for their services. The cost of legal representation, however, is prohibitive for most appellants. Thus predictably only a minority of appellants are represented at child support appeal tribunals. Indeed, the representation rate appears even lower than in other tribunals. Professional representation was a feature of only two cases we observed. In both of these, representation was provided by the same advice agency worker who specialised in dealing with child support 29

For similar findings on SSATs, see ibid., at 103-109. Child Support Appeal Tribunals (Procedure) Regulations (S.I. 1992 No. 2641), reg. 9. 31 See K Bell, Research Study on Supplementary Benefit Appeal Tribunals (London, HMSO, 1975), H Genn and Y Genn, The Effectiveness of Representation At Tribunals, (London, Lord Chancellor's Department, 1989) and Baldwin, Wikeley and Young, n.3. 30

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R. Y O U N G , N. WIKELEY AND G. DAVIS

and in each case she skilfully achieved a successful outcome for her clients. Representation by family members occurred in a further three cases. Several of the parents in our sample said that they did not know from where to seek advice about their appeals, let alone to obtain representation. Solicitors were often discounted either because of expense or because they seemed to know little about the CSA. The following explanations of why appellants did not seek advice on their appeals illustrate these points: "The only advice I could get was probably a solicitor, I thought, because they are the people who would probably know more regarding a tribunal. I couldn't afford £90 an hour: If I could afford £90 an hour, I wouldn't be complaining about this [maintenance assessment]." (Patrick Beamon, appellant, case 118) "We phoned solicitors up in Kidderminster and they said, "No, we can't help you; we don't know anything about it [the CSA]"." (Bryoni Banks, appellant's wife, case 114) "Well, talking to him [solicitor] about this in general, the solicitor can't really help you with it. He says because the CSA is sort of a government thing, there's not a lot he can do about it that's going to make any difference in what happens. He's not really offered to represent me. But if he had represented me with this, it's going to be even more money to fork out. But he doesn't seem that interested". (Jeremy Hebden, Appellant, Case 117) The lack of availability of good advice on child support appeals was also noted by the advice agency worker referred to above: "We seem to be the only Bureau in the area that's dealing with it in depth. We have referrals from solicitors, who 1 have to say, have given some very poor advice in the past, and now don't seem to want to handle it at all." A few appellants had obtained legal advice prior to the hearing. This included help with completing tribunal papers and advice on how to present their case. Where the client is claiming income support, legal fees in respect of this service is covered by the green form scheme. This, however, is no substitute for representation at the tribunal hearing itself. In the Mullins case-study the solicitor who had acted for Doreen in relation to her separation from Stuart had also advised her on how to handle the tribunal appeal. His advice that she should try to give the tribunal as much information as possible about Stuart's financial circumstances was clearly inadequate in redressing the power imbalance between the two parents. A professional and expert representative would have raised this issue in writing in advance, would have organised the collection of more solid evidence of Stuart's allegedly extravagant lifestyle, and would have presented that evidence much more forcefully than did Doreen. This illustrates a point made by a number of observers of tribunals, that an inquisitorial and relatively informal mode of procedure, even when pre-hearing legal advice is obtained,

Child Support Appeal Tribunals: The Appellants' Perspective

295

cannot make up for the lack of publicly funded expert representation for appeal hearings.32

Conclusion CSATs are clearly flawed. This is not primarily the fault of those who hear cases, nor of the ITS. The fundamental problem lies in the child support scheme itself. Responsibility for investigating a case and for decision-making is diffused and there is a distinct lack of finality about the appeal process; in particular, CSATs are in the business of dispute processing rather than dispute resolution. Moreover, neither the CSA nor the tribunals appear willing to use what powers they have to ensure that all relevant information is disclosed by the parties. The process thus becomes heavily dependent on parents providing information voluntarily. But neither parent need be in a cooperative frame of mind, especially when cooperation might be against their own financial selfinterest. It seems that those operating the review and appeal procedures tend to abdicate their inquisitorial responsibilities and leave it to the parties to pursue their own investigations. Of course, such abdication of responsibility is entirely understandable within a system that, at all levels, is inadequately equipped for the tasks and targets it has been set. As in other judicial spheres, the independence of the CSATs is not threatened by political interference in particular cases, but rather by a lack of adequate financial, institutional and legal resources. Against this background, the regime under which lawyers and courts settled child maintenance responsibilities in their own laborious, inefficient and rough-and-ready way takes on a rather more attractive hue. 32

See, in particular Gcnn and Genn, n.31, and R Young, "Social Security Appeal Tribunals: A Fair Inquisition?", (1993) 8 Benefits 14.

14 The Developing Role and Structure of the Education Appeal System in England and Wales NEVILLE HARRIS Introduction INCE 1980, statutory appeal systems have make a critical contribution to redress of grievance in the field of education. They provide a forum for administrative justice in three principal areas of decision-making, which all involve a high degree of discretion on the part of the decision-maker and have a crucial bearing on individual educational opportunities and children's personal development: school admissions (choice of school); permanent exclusion from school; and special educational needs (SEN).1 In general, the courts will not entertain an application for judicial review in these areas unless and until the statutory remedy has been pursued. 2 The appeal bodies have a power to substitute their decision for that of the original decision-taker. Moreover, the rulings of each of them are binding. 3 Since 1994, SEN appeals have been within the exclusive jurisdiction of the Special Educational Needs Tribunal (SENT). Admissions and exclusion appeals are heard by local education appeal committees (EACs) comprising lay panels organised by local education authorities (LEAs) or, in the case of certain denominational and grant-maintained (GM) schools, by the school's governing body (see below). Table 1 shows the increasing use made of the education appeal systems in England and Wales. Admission appeals registered, for example, increased from 25,000 in 1991 to nearly 63,000 in 1996.

S

1

There are several other discrete appeal systems, concerned with: registration of inspectors of schools under the School Inspections Act 1996 (the Registered Inspectors of Schools Appeal Tribunal), registration of independent schools (the Independent Schools Tribunal: Education Act 1996, s.470); and access by parents and young people to a school record (the governing body: Education (School Records) Regulations 1989 (SI 1989 No.1261), Reg.8). 2 See, N. Harris, Special Educational Needs and Access to Justice (1997) (Bristol: Jordans), p.27. Decisions not amenable to appeal and obviously the exception: see below. 3 See, for example, Education Act 1996, ss. 160(1) and 423(5).

The Developing Role and Structure of the Education Appeal System 297

Table 1 Numbers of appeals registered with the main education appeal bodies in England and Wales, 1982-1997 Education appeal committees 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1996/97

8,887 10,000 (est) 9,000 (est) 9,100 N o n e available 10,500 None available 21,020 18,102 25,704 33,947 39,644 42,227 49,485 62,856 72,800

Special Educational Needs Tribunal

(1995/96)

170 1,536 1,622 2,051

Note: (1) In the mid-1980s the Department of Education and Science conducted biennial surveys in England only, on which the published figures for that period were based. (2) The EAC figures from 1991 onwards include appeals in respect of GM schools. (3) The EAC figures from 1983-1994 include SEN appeals. Some SEN appeals went to the Secretary of State: the number of these rose from 19 in 1984 to 72 in 1991: see N. Harris, above n. 2, p.19. (4) The EAC figures from 1987 onwards include exclusion appeals, which rose from just over 90 in 1991 to approx. 1,100 in 1996/7, according to the Department for Education and Employment (DfEE).

In 1996, the author completed a study of the SENT in its first two years.4 He is now researching the role of EACs in permanent exclusion cases.5 Both research projects received Nuffield Foundation funding. As it is the first education appeal body to conform to what has become the standard tribunal model of a lawyer chair sitting with two specialist lay members, and the first such body to be nationally organised and to have a President, the SENT is of particular interest—not least because of its potential to act as a model for the future reform of other education appeal systems. Indeed, the Council on Tribunals has recommended that school exclusion appeals should be heard by 4

Helen Whittaker was the research assistant on this project and I acknowledge her invaluable assistance. 5 Karen Eden is the research officer assisting with this project and I acknowledge her considerable contribution to the research.

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NEVILLE HARRIS 6

such a body. Unfortunately, however, the exclusions appeals system has so far not been subjected to detailed research analysis, which is where the author's latest study comes in. This paper draws conclusions from these two studies and also discusses evidence on the operation of EACs in relation to school admission appeals. Consideration of the role and structure of education appeal bodies is timely, as EACs were referred to specifically in the 1997 Government White Paper proposals on Excellence in Schools7 and in the School Standards and Framework Act 1998. However, while the Act introduces a more independent element in EACs, there will not be major changes (see below). The author believes that the evidence suggests that a more radical reform may be needed.

Education Reform and Redress of Grievance Before looking at each of the systems in detail, it is necessary to put the research into context. The introduction of appeal bodies was among the wideranging reforms of the education system of England and Wales during the years of Conservative government (1979-1997).8 The reforms as a whole have established a complex framework of new rights, responsibilities and remedies. Moreover, tensions have arisen in a hitherto relatively stable area of law and administration, as a result of shifts in power towards central government, parents and governing bodies and away from LEAs and the teaching profession.9 The legislative programmes have brought the role of law to greater prominence in this field. Moreover, that role has changed to one of intense regulation as opposed to the provision of a "facilitative framework" for local administration 10 which had characterised it since Butler's Education Act 1944. LEAs, individual schools and teachers are now subject to a vast range of new legal requirements and more accountability concerning aspects of school performance, school government, the curriculum, financial management, school admissions, and so on.11 The Labour Government intends not only to re-structure the schools system but also to intensify the regulation of schools in the area of quality control and educational standards. 6 7

Annual Report 1992193 (London, HMSO, 1993), para.2.15.

Cm 3681 (London, Stationery Office, 1997). 8 For an overview, see J. Le Metais, Legislating for Change—School reforms in England and Wales 1979-1994 (Slough, NFER, 1995). Le Metais notes (p.l.) that "The period 19791994 saw the enactment of 16 [statutes] and the publication of 189 associated Orders and [other] Statutory Instruments". 9 See N. Harris, Law and Education: Regulation, Consumerism and the Education System (London, Sweet and Maxwell, 1993); P. Meredith, Government, Schools and the Law (London, Routledge, 1992). 10 M. Loughlin, Legality and Locality (Oxford, Oxford University Press, 1996), p.418. See also ibid., pp.382-383. 11 See supra n.9.

The Dei/eloping Role and Structure of the Education Appeal System 299 The Conservatives' reforms brought about greater competition between education providers. A quasi-market system for education based on an element of competition was seen as a means to a more effective allocation of resources: good schools would be popular and, under funding formulae, would thereby attract greater resources than weaker schools. Parental choice would thus have a direct impact on the allocation of resources and would help to drive up standards as schools competed for custom, reflecting a tenet of the Citizen's Charter12 that "choice, wherever possible between competing providers, is the best spur to quality improvement". "Consumer" rights, although circumscribed (parental choice would rarely, if ever, be given primacy over the efficient use of resources13), have been highly significant in placing a new emphasis on individualism and the promotion of parental influence over their child's education, reinforced by the Parent's Charter^4 and increasingly manifested in contract and (especially) negligence litigation in the field of education.15 For parents, the widespread importance now attached to their involvement as "partners" in connection with their child's education (for example, via home-school agreements)16 has tended to elevate their status and implies a right to disagree. This is a right which would be weak without an accompanying right of redress. Redress mechanisms in this field include judicial review and the Local Government Ombudsman's (LGO's) jurisdiction, which have both become increasingly important in relation to education disputes—indeed education has been one of the major growth areas for each.17 But education also has its own discrete complaints and appeal procedures—for example, the local curriculum complaints machinery18 and the procedure, dating back to the Education Act 1944, under which the Secretary of State, following complaint or otherwise, can (although has tended to be very reluctant to19) issue directions to LEAs and governing bodies which have acted unreasonably or in 12

H.M. Government, The Citizen's Charter Cm 1599 (London, HMSO, 1991), p.4. See, for example, s.6(3)(a) of the Education Act 1980 (now s.411(3)(a) of the Education Act 1996). 14 D.E.S. (1991); revised edition (1994). 15 See, for example, Phelps v. The Mayor and Burgesses of the London Borough of Hillingdon [1998] ELR 38 (QBD) and [19981 ELR Issue 6 (CA) (in press), Christmas v. Hampshire County Council [1998] ELR 1 (QBD) and Ijaola v Westminster College (1997) 7 March (QBD) (unreported). lfi See, for example, Secretary of State for Education, Excellence in Schools Cm 3681 (London, Stationery Office, 1997), Chapter 1, para.20: "parents are a child's primary educator and our partnership approach will involve them fully". 17 See L. Bridges et. al. Judicial Review in Perspective (London, Cavendish, 1995). For a detailed discussion of the role of judicial review in this field, see N. Harris "Education and Judicial Review", in T. Buck (ed.) Judicial Review and Social Welfare (London, Cassell, 1998) 1-38. 18 Education Act 1996, s.409—formerly Education Reform Act 1988, s.23. See further N. Harris, Complaints About Schooling (London, National Consumer Council, 1992). 19 Harris, supra n.9, Chapter 2. 13

300

.

NEVILLE HARRIS

default of any of their duties.20 But in practical terms the most important redress mechanisms of all are the statutory appeal bodies.

Education Appeal Committees (EACs) The Council on Tribunals has said of EACs that "amongst all the tribunals under our supervision none has given greater concern". 21 As noted above, EACs have jurisdiction over admissions and permanent exclusions appeals.

School Admissions Before the introduction of admissions appeal rights under the Education Act 1980 parents challenged admissions decisions via either a complaint of unreasonableness to the Secretary of State (see above) or by refusing to send their child to the school selected by the LEA and asking the Secretary of State to adjudicate the question of the school to be named in the consequent school attendance order. A massive increase in complaints and references to the Secretary of State in the 1970s was seen to demonstrate the increasing demand for parental choice 22 to which the Education Act 1980 was directed. During the passage of the Act there were calls for an appeal panel which was completely independent of the LEA (or governors). But the Government argued that a committee without LEA membership would not be able to appreciate the practical and policy considerations which had borne on the admissions authority. 23 The one concession to the increasing calls, over the years, for greater independence24 was the introduction in 1994 of a requirement that there should be an independent "lay" member of the committee.25 Lay members must be recruited through advertising.26 The constitution of the panels is currently required to be 3, 5 or 7 members, as shown in Table 2, which notes that certain members are excluded from holding chairmanship. The (non-statutory) Revised Code of Practice on Appeals under the Education Act [Etc] (1994) emphasises the importance of the chairman's role and recommends that only persons with previous experience of conducting appeal 20

Education A c t 1944, ss 68 and 99. See n o w the 1996 Act ss 496 and 497.The School Standards Act 1998 introduces additional default powers: s.8 497A and 497B of the 1996 Act. 21 C o u n c i l o n T r i b u n a l s , Annual Report 1991-92 (London, H M S O , 1992), para. 1.18. 22 See M . A d l e r , A. Petch and J. T w e e d i e , Parental Choice and Educational Policy (Edinburgh, E d i n b u r g h University Press, 1989), p.32 and A. Stillman, "Legislating for Choice", in M . F l u d e and M . Hammer, The Education Reform Act 1988—Its Origins and Implications ( L o n d o n , Falmer, 1990), p.91. 23

See the d i s c u s s i o n in Harris supra n.9 at p p . 1 3 4 - 1 3 5 . See, for e x a m p l e , Council on Tribunals, Annual Report 1987-88 (London, H M S O , 1988), para.2.35. 25 Introduced v i a the Education Act 1993. 26 Education ( L a y M e m b e r s of Appeal Committees) Regulations 1994 (SI 1994 N o . 1 3 0 3 ) . 24

The Developing Role and Structure of the Education Appeal System 301 Table 2 Constitution of education appeal committees - Education Act 1996 LEA-maintained schools* County and controlled*

Voluntary aided and special agreement

1 lay member, nominated by LEA: must be person without professional experience of education (disregarding that as a school governor) or a connection with the LEA or its employee which might prejudice his ability to act impartially. 2, 4 or 6 LEA appointed members (must not be LEA employees other than teachers): LEA or education committee members with experience of education, knowledge of local education conditions or with a child at school (but not the school subject of the appeal). 1 lay member, nominated by the governing body. Must be a person without professional experience of education (but may be a school governor) or connection with the school or employee which might prejudice his or her ability to act impartially. 2, 4 or 6 governing body appointees. May include governors of the school and must include 1, 2 or 3 persons from the LEA's list (in a panel of 3, 5 or 7 respectively).

Grant-maintained schools'1 1 lay member: must be person without professional experience of education (but may be a school governor) or connection with the LEA which might prejudice his ability to act impartially. 2,4 or 6 governor appointees. Half must have educational experience, be acquainted with educational conditions in the area or be parents of pupils registered at another school, must never have been governors at the school. The other half may be governors, provided they are not employed at the school (whether as a teacher or not). a Education Act 1996, Sched.33. b LEA members must not outnumber the others. The chair must not be a member or employee of the LEA. c Education Act 1996, Sched.23 para.6; the Education (Grant-maintained Schools) (Initial Governing Instruments) Regulations 1993 (SI 1993 No.3102).

hearings should be appointed. As noted earlier, however, there is no requirement for the chairperson to be a lawyer. Under the 1980 Act (now consolidated in the Education Act 1996) parents must be given an opportunity to express a preference for a particular school. That preference must be upheld (with parents living outside the LEA's area

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NEVILLE HARRIS

having equal preference to those within it) 27 unless any of three statutory grounds applies. Two straightforward grounds are: (i) the child's religion (in the case of denominational schools whose admission arrangements, made with the agreement of the LEA, sanctioned such discrimination); or (ii) in the case of selective schools, the child's academic ability. But the real problem, which continues to dog this area of decision-making, arises from the other ground, which was intended to strike an appropriate balance between the rights of the parent and the LEA's need to operate the schools system efficiently: (iii) choice may be denied where "compliance with the preference would prejudice the provision of efficient education or the efficient use of resources". 28 This ground will be relevant to all schools which are over-subscribed. It may well interact with other factors, as the EAC will have to take into account not only the parent's preference but also the published admissions arrangements, which will specify how priority is to be determined in cases of over-subscription. 29 Case law30 holds that EACs should approach decision-making on this last ground in two stages. First, they should decide whether there would be prejudice should the child concerned be admitted to the school. If there would not, the appeal must be upheld. If, on the other hand, there would be prejudice, the committee must proceed to determine whether that prejudice is sufficient to outweigh the parental reasons for the preference.31 Decision-making becomes difficult when there are multiple appeals in respect of a particular school.32 The only practical way of deciding such cases is to hear all the appeals in respect of the school before coming to a decision in relation to any individual case; the courts have sanctioned such a practice. 33 If the committee feels that the 27

R v. Shadow Education Committee of the Greenwich London Borough Council ex p. The Governors of John Ball Primary School (1990) 88 LGR 589 (CA); R v. Bromley LBC ex p. C and Others [1992] 1 FLR 174; R v. Royal Borough of Kingston upon Thames ex p. Kingwell [1992) 1 FLR 182; R v. Wiltshire County Council ex p. Razazan [1997] ELR 370 (CA). 28 1996 Act, s.411(3)(a). The prescribed articles of government for grant-maintained schools make similar provision: see art.8 and, for example, R v. Governing Body of Dame Alice Owen School ex p . S (QBD) [1998] Ed. C.R. 101. 29 Ibid., Sched.33 para.11. See, for example, R v. Governors of the Bishop Challoner Roman Catholic Girls School ex p . Choudhury [1992] 3 All ER 227 (HL). 30 R v. South Glamorgan Appeals Committee ex p . Evans (1984) CO/197/84, applied in numerous subsequent cases. 31 In one recent case the committee did not attach sufficient weight to the matters put forward by the parents in support of their choice of school: R v. Essex County Council ex p . Jacobs [1997] ELR 190. 32 This is common. As a recent Audit Commission report, Trading Places: The Supply and Allocation of School Places (Abingdon, Audit Commission, 1996), para.28, reported, "Appeals may be concentrated in 'hot spots', where either a shortage of places or a desire by parents to avoid the area's poor schools leads to dramatically higher rates than the LEAwide 'average'". 33 R v. Commissioner for Local Administration ex p . Croydon LBC [1989] 1 AH ER 1033.

The Developing Role and Structure of the Education Appeal System 303 school can accommodate some, but not all, of the additional children whose parents have appealed, it can compare cases in order to rank them in order of priority.34 The large number of judicial review challenges arising from the approach and procedure followed by committees in applying the "prejudice test" offers clear evidence of the difficulties experienced by EACs.35 Even at stage one, committees sometimes fail to question properly the LEA's or school's case concerning "prejudice".36 Patricia Thomas, one of the LGOs in England, recently reported a 50% increase in the number of complaints made by parents about school choice appeals and argued that the prejudice rule should be abolished altogether and replaced by an admissions ceiling for each school.37 Appeals would thus, she argues, be relatively "uncomplicated" and "more fair", presumably on the basis that all the different sets of special circumstances would be considered on their merits and a decision reached accordingly. The problem with this is that if the ceiling were used in the initial allocation of places, an appeal could never succeed, as it would be necessary— but in practice impossible—to withdraw an existing offer made to another child. The solution would only work if the ceiling were set above the admissions limit for the school, but it could be argued that the ceiling places should be allocated in the same manner as those within the admissions limit. (See further the discussion of proposals to limit class sizes, below.) The operation of the prejudice test might be less problematic if changes were made to the appeal committees themselves. Ten years ago the Council on Tribunals reviewed the role of EACs; and it carried out a follow-up review in 1992. In 1988 it was critical of the lack of statutory rules which had resulted in a wide diversity of practice and varying standards. It said that there were still questions over the impartiality of appeal committees and it called for "a more balanced membership".38 Concern over the quality of some of the chairmanship in EACs led the Council to conclude that there should be specific training and the appointment of a panel of chairmen. It called for more guidance to deal with the problematic area of multiple appeals, less use of standard 34

R v. Education

Appeal Committee

of Leicestershire

City Council ex p .

Tarmohamed

[1997]ELR48at59C. 35 On those difficulties, see further AMA/ACC, Education Appeals Code of Practice— Seminar report (1992) (London, AMA/ACC), at p.12. See also LGO Report 97/A/1007, 1028, 1036 and 1486 (18 March 1998). The "prejudice" ground for refusing admission will continue under the School Standards and Framework Act 1998 s. 86. Also, it may n o w be taken to arise where an admission would be in excess of the maximum infant class numbers provided for under the Act. 16 See, for example, LGO reports 90/A/1462 (26 September 1991), 91/A/0939 (27 August 1992), 96/C/0797, 9 6 / 0 1 1 4 8 et all and 96/02055 et al. (all 17 December 1996), 96/C/3692 and 3693 (5 August 1997) and R v. Appeal Committee ofBrighouse School ex p . G; Same ex p . B[1997]ELR39. 37 Local Government Ombudsman Annual Report 1996/97 (London, T h e C o m m i s s i o n for Local Administration in England, 1996), p.13. 38 Council on Tribunals, Annual Report 1987-88 (London, H M S O , 1988), para.2.35.

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wording in appeal decisions letters, improvements t o the quality of clerking through training 39 and better training for members. By 1992, concern had, if anything, deepened. The "prejudice test" and handling multiple appeals were still problem areas, although there was optimism that the revised Code of Practice (supra), which had just been introduced, would ameliorate some of the problems, including the "lack of impartiality which we have witnessed" and inadequate reasons for decisions.40 There was also continuing concern about grant maintained (GM schools), which operated their own appeals arrangements but whose committees were often untrained 41 and where it was difficult to recruit clerks of the right calibre. Exclusion and reinstatement appeals were also emerging as particularly problematic (see below). Both of the procedural guides have been further revised to take account of changes in legislation, judicial guidance in the cases and general experience. A GM schools appeals guide has been published by the DfEE. Training initiatives have continued, 42 with the Tribunals Committee of the Judicial Studies Board becoming involved, but different standards of local training are still prevalent.43 The new "lay" members, recruited through advertising, have, as noted above, introduced a more independent element. But the way that EACs handle the prejudice test and conduct hearings involving multiple appeals is still proving problematic, on the basis of the substantial evidence provided by LGO investigations (above). Examples of recent investigations by the LGO where maladministration (in most cases with injustice) was found, include the following: • discussions between the appeal committee and the LEA's representative prior to the start of the hearing (Report 91/C/1595,11 November 1992); • in a voluntary aided (VA) school appeal case the appeal committee received a private briefing from the head teacher in the absence of the appellants and the appeal was heard in the head teacher's office, which would not give an impression of independence; also, there was no clerk, which resulted in there not being adequate notes to aid a fully considered decision (Report 95/B/1501,16 July 1996);

39 T h i s training should emphasise the i m p o r t a n c e of the clerk's independent role, as did the Council o n Tribunals in its Annual Report 1984/85 ( L o n d o n , H M S O , 1985) para 3.12. T h e independent role of the clerk is also stressed by the C o d e o f Practice o n appeals. 40 N o t e that in W (A Minor) v. Education Appeal Committee [1994] ELR 530 at 537F Ralph Gibson LJ, referring t o EACs' reasons for d e c i s i o n s , referred to "the code of practice which should guide appeal committees in handling these m a t t e r s " . See also, R v. Lancashire County Council ex p. M [1994] ELR 478. 41 Council o n Tribunals, Annual Report 1992/93 ( L o n d o n , HJvlSO, 1993), para. 2.23. 42 Council o n Tribunals, Digest of Training: Education Appeal Committees, England and Wales ( L o n d o n , Council o n Tribunals, 1997). 43 Council o n Tribunals, Annual Report 1995/96 ( L o n d o n , Stationery Office, 1996), para.2.59.

The Developing Role and Structure of the Education Appeal System 305 • the appeal was heard by a committee none of whom had received any training; the committee was not aware of the two-stage "prejudice" test and there was no clerk to provide any guidance (Report 95/C/1811) • in a VA school appeal case in which there were multiple appeals the LGO found that the mother had been prevented from putting forward all her arguments as result of not being informed of all the issues being raised by the school (Report 96/C/0927, 9 October 1996); • the LEA's appeal committee included a member of the governing body of the school in question (Report 96/C/1546,17 October 1996) s44 • the hearing of appeals in respect of one school in two phases resulted in prejudice to the later appeals (Report 95/C/1721, 21 October 1996); • the appellant was not sent all the relevant LEA evidence prior to the hearing and the head teacher and a teacher of the school concerned remained in the room after the parent had left (Report 95/C/2263, 17 December 1996); • inadequate reasons for decision were provided (Reports 96/A/1034 and 1040,14 January 1997 and 95/A/1033, 17 April 1997); • in a VA school appeal a governor member of the appeal committee spoke on behalf of the school and the governors' representative had lunch with the appeal committee prior to the conclusion of the hearing (Reports 96/C/0509/0510/0598/0748 and 1002, 28 January 1997); • in a VA school appeal there was no attempt to adjourn the hearing so that the father could examine material introduced by the governors, and there were other instances of unfairness (Report 96/C/2859, 20 February 1997); • the LEA's representative remained in the room with the committee after the appellants had left (Report 96/C/1517, 6 March 1997); • the parents had not been supplied with all the relevant documents prior to the hearing, the chairman of the panel acted also as clerk, the head and the deputy head had lunch with the panel, and there were other procedural deficiencies (Report 96/B/0503, 28 July 1997); • the committee took account of irrelevant considerations in assessing the strength of the parents' case (Report 96/C/2783, 30 September 1997) or failed to take account of appellants' domestic or employment situation in determining whether the parents' circumstances outweighed "prejudice" (Report 96/C/1737, 23 October 1997). Meanwhile the appeals system seems to be having a growing impact. The Audit Commission has reported that admission appeals make "the efficient and effective planning of school places more difficult".45 With, to take 1995/96 figures as an example, 17,000 (or 39%) of secondary school admissions appeals and 9,100 (or 31%) of primary school appeals being decided in favour 44

Cf Complaint 96/C/1667, when the LGO, in a similar case, accepted that the LEA had had no alternative due to a shortage of panel members. 45

Supra n.32 at p.29.

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of parents,46 it is easy to see how the planning of school admissions can be problematic. Yet no-one is saying that parents should not have a right of appeal; indeed these figures reinforce the importance of a review mechanism of this kind. Moreover, the admissions chaos which many LEAs experience is as much the product of the introduction of GM schools with responsibility for their own admissions arrangements (and, it has to be said, appeals), on top of VA schools already doing this, and the previous Government's drive towards the elimination of surplus school places. The Labour Government's White Paper47 and subsequent Technical Consultation Paper48 proposed, as a solution to this, a local forum for the different categories of school to forge some agreements on admissions policies, with the LEA having the final say, subject to a reference to a new "independent adjudicator". All would be required to have regard to a new Code of Practice made (under a new duty) by the Secretary of State. The Code would also cover appeals and provide guidelines for appeal committees. Appeals would be heard by "an independent appeals panel". The English and Welsh Consultation Papers stated that the panel would be "entirely independent of the school and the LEA" and that there would be "consistency in their membership regardless of the category of school". The Welsh Consultation Paper alone confirmed that "panels would not include any representatives from the LEA or governing body". Accordingly, the Government's School Standards and Framework Act 1998 (Sched.24-not yet brought into effect) which is currently before Parliament provides for panels (of 3 or 5 only) which may not include governors of the school in question or members of the LEA or persons whose connection with the LEA or school might raise doubts about their ability to act impartially. The 1998 Act also provides for the "adjudicator" to resolve disputes over admissions arrangements where objections are made (although in certain cases he or she will be required to refer the matter to the Secretary of State) (s.90). There is no specific provision for an admissions forum, although this may be covered by the new statutory Code of Practice, when made.49 The Government's proposals to limit infants class sizes to 30 in primary schools have made it necessary for the School Standards and Framework Act to enable parental preference to be denied on the basis that an infants class is 46

Department for Education and Employment, Press Notice 325/97, Admission Appeals for Maintained Primary and Secondary Schools by Local Education Authority Area in England, 1995/96,15 October 1997. 47 Supra n.16, paras 28-34. 48 Department for Education and Employment, Framework for the Organisation of Schools (London, DfEE, 1997), Part 9 paras 1-15. Parallel arrangements will apply in Wales: Welsh Office, Framework for the Organisation of Schools in Wales (Cardiff, Welsh Office, 1997), Chapter 7 paras 1-16. 49 The Bill would also repeal s.13 of the Education Act 1997 which h a s not been brought into force but which would have enabled admission to be denied on the grounds of refusal to agree to a home-school partnership document. Provision is being made in the Bill for these documents, but parents will not be required to sign them.

The Developing Role and Structure of the Education Appeal System 307 numerically full. The Act provides that prejudice may be taken to arise if admissions would exceed that limit (s.86 (4)). The Act (s.87) continues the rule, first introduced under the Education Act 1997, precluding appeals by parents in respect of children who have been permanently excluded from two or more schools, but will remove the right of the governing body of a county or controlled school to appeal where the LEA has decided that such a child should be admitted to the school.

Conclusions on Admissions Appeals Choice of school is a crucial issue for many parents, yet in some areas one in five parents cannot secure their genuine first preference.50 Undoubtedly, this must present this minority of parents with a sense of injustice. The appeal system has a key role in ensuring that admissions decisions have been taken fairly and in accordance with the legal requirements. EACs have indeed faced a difficult task in school admission cases. There is clear evidence that they have not always performed it well. It is not so much the decisions which they have made—which throughout the 1990s have involved upholding the appeal in around one-third of cases overall sl —but rather the way the adjudicative role has been performed, as documented above. Hopefully, planned moves to strengthen their independence and co-ordinate the appeal arrangements will produce increased impartiality and greater efficiency, and could facilitate improved training and monitoring. The introduction of national guidance on admissions, referred to in the White Paper, might in fact strengthen the case for a national appeals system for admissions cases, with locally recruited members to ensure a necessary knowledge and awareness of the local situation. But the complexity of the legislation and the need for fair procedures would also justify a requirement that there be a legally qualified clerk in every case or perhaps even a legally qualified chairperson—which has been recommended by the Council on Tribunals for exclusion cases {infra). Additional expense would be incurred, but, 15 years on from the first EAC hearings, the argument for having lawyers on admissions appeals panels to ensure better conduct of hearings is getting stronger.

Exclusion Appeals The data derived to date from the author's current survey of exclusion appeals is drawn from observation of over 40 appeal hearings and questionnaire responses received from 288 parents, 110 appeal panel members, 106 head teachers, 66 school governors and 81 LEAs. The research is being conducted principally in seven LEA areas. 50 51

Ibid., para.30. Audit Commission, supra.n.32.

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Table 3 Permanent school exclusions and appeals by parents, 1990-91 to 1996-97, in England54 A. Number of permanent exclusions B. Number of appeals lodged by parents B as a % of A

90-91

94-95

95-96

96-97

2,900 92 3.2%

11,084 1,242 11.2%

12,476 1,339 10.7%

12,665 1,455 11.5%

Appeals arising from the permanent exclusion of the child lie to the EAC.52 However, there is no right of appeal against fixed term exclusions, which represent some 75% of all school exclusions.53 Permanent exclusions from school have increased dramatically in recent years, and an increasing proportion of parents are lodging appeals: see Table 3. As Table 3 shows, the number of permanent exclusions more than quadrupled between 1990-91 and 1996-97, whilst the increase in the number of appeals was proportionately greater, at over 1,000%. Also, the proportion of permanent exclusions where there was a subsequent appeal rose considerably. A failure by the governing body (in the case of a VA or GM school) or the LEA to direct the reinstatement of a permanently excluded child may be appealed by the child's parent, or by the pupil him/herself if aged 18 or over. In addition, the governing body of a county, controlled or special school has a right of appeal against a decision by the LEA to reinstate the child. Only one appeal in five in respect of these schools is by governors: there were 162 such appeals lodged in 1994-95; the number fell to 141 in 1995-96 and to 87 in 1996-97.55 It is immediately evident from the above figures that both the number of exclusion appeals and the proportion of actual, relative to potential, appeals are still relatively small. The author's survey of parents of permanently excluded children has found that the chief reasons behind a failure to appeal are: • a belief that the appeal would not succeed (in some cases because parents could not distinguish between the LEA and the "independent" appeal system); • agreement with the school that their child had done wrong, thus no case to argue; • a belief that their child's special needs could not be met in the school; • a feeling that their child had been victimised by the school and that returning there would not be in the child's interests. 52

Education Act 1996, S . 1 5 9 ( 1 ) and Sched.23 para.6. For reforms under the 1998 Act, see

blow. 53

O F S T E D , Education for Disaffected Pupils (London, O F S T E D , 1993), para.6. Sources: D e p a r t m e n t for Education, Exclusions: A Discussion Paper (London, DfE, 1992), para 16; Hansard, Written Answers, 10 Decmber 1996, col. 115M/, M r E Forth, M P , DfEE figures supplied to the author, October 1997, and statistics published September 1998. ss DfEE figures supplied to the author, October 1997, and statistics published September 1998. 54

The Developing Role and Structure of the Education Appeal System 309 Ignorance of the right of appeal was not a factor; only a minority of parents claim not to have been informed of this right. It is also becoming clear that intervention methods within some LEAs are successful in resolving exclusion disputes, as in one LEA in the survey which has had many exclusions but disproportionately few appeals. Many parents in the survey had no regrets about failing to appeal, because they had felt that their child would be better off at another school anyway; but a number intimated that if they had known that inadequate provision would made for their child following his/her exclusion, and had anticipated the educational limbo which the child would be likely to experience, they would certainly have appealed. Black children are massively over-represented among excluded children (10% of permanent exclusions in 1996/97 but only 3% of the school population). 56 The fact that their parents are no less prepared than white parents to bring an appeal, according to the survey findings, is surprising when compared with the survey of special educational needs appeal cases (below) where black children were considerably under-represented. This aspect of the research will need further, careful, analysis before conclusions are drawn. Success rates for exclusion appeals vary across the different categories of school: see Table 4. The table shows a marked improvement in success rates for appeals by parents in VA and special agreement schools in 1995-96. Moreover, in 1995-96 parents in this category were around twice as likely to succeed with their appeal Table 4 Outcome of statutory appeals by parents against permanent exclusion from school in England and Wales 1994-95, 1995-96 and 1996-7 % of appeals upheld 1994-95

1995-96

1996-97

19.4%

16.7%

19.7%

20%

29.1%

22.4%

13.9%

13.4%

19.0%

Type of school County, controlled and special Voluntary aided and special agreement Grant-maintained Source: DfEE statistics 56 DfEE, Permanent Exclusions from Schools in England 1996/97 supra n. 55. (London, DfEE, 1998), Table 4. See also, eg, Commission for Racial Equality, Exclusion from School and Racial Equality: A Good Practice Guide (London, CRE, 1997); J. Bourne et al, Outcast England—How schools exclude black children (London, Institute of Race Relations, 1994); and OFSTED, Exclusions from Secondary Schools 1995/96 (London, OFSTED, 1996), para.15.

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than other parents. The figures evened out in 1996-97. Another important statistic is the higher success rate for governors' appeals than those of parents: 54.9%, 51.6% and 48.1% in the three years in question. Governors probably appeal more selectively and are better equipped to articulate a case than many parents, not least because less than half of parents are represented (infra); and the governors' views are perhaps more liken to be taken at face value. In the appeal hearings observed, the LEA was generally represented by a senior officer or, in the case of a school, by the chair of governors. Parents were represented in just under one-third of cases; and a lawyer represented in only one quarter of the cases where the parents had representation. The appeal committee's role in exclusion cases is on the face of it more straightforward than in admissions cases. The Code of Practice (supra) suggests that there should be two stages to the appeal: first, the committee will have to decide whether the excluded pupil was guilty of the conduct alleged; if it decides he or she was, then it will need to determine whether the exclusion or, more accurately, the failure to reinstate, was reasonable in the circumstances.57 The Council on Tribunals, however, refers to cases where appeal committees have "muddled the two issues";58 our observation of 42 hearings uncovered further examples. In the light of judicial reviews in this field, it has become necessary to have regard to the school's disciplinary regime and the impact that reinstatement would have on the school as a whole.59 When ss.7 and 8 of the Education Act 1997 came into force on 1 September 1998, the committee had a specific duty to "have regard to both the interests of [the excluded] pupil and the interests of other pupils at his school and members of its staff". In deciding the question of reasonableness, the committee should be guided by the DfEE's Circular on Exclusion from School (10/94) which, for example, stresses that exclusion should be used as a last resort by schools. The courts seem to regard the guidance as a material consideration which should be taken into account by those concerned,60 and the Local Government Ombudsman expects appeal committees "to be guided by its contents unless they have good reason not to follow it and I am satisfied that the departure has been properly considered".61 However, in the observations (including observation of deliber57 Such an approach is implicit in the provisions governing the way that particular factors should be taken into account by appeal committees: see 1997 Act, s.7(4) (not in force until 1 September 1998). 58 Council on Tribunals, Annual Report, 1996-97 (London, Stationery Office, 1997), para. 2.7. 59 R v. Governors of St Gregory's Roman Catholic Aided High School and Appeals Committee ex p . M [1995] ELR 290, now reflected in s.8 of the Education Act 1997 (in force from 1 September 1998). R v. London Borough of Camden and the Governors of the Hampstead School ex p . H [1996] ELR 360 (CA). 60 See R v. Staffordshire County Council Education Appeals Committee ex p Ashworth County Council ex p . W (1997) 28 July (1997) 9 Admin LR 373; R v. Northamptonshire (QBD) (unreported); and R v. London Borough of Camden and the Governors of Hampstead School exp.H supra.

The Developing Role and Structure of the Education Appeal System 311 ations of the panel) during the research, reference to the guidance was rare although there was evidence that at times some of its key principles were being applied. The guidance is expected to be updated shortly. Under the School Standards and Framework Act 1998 (s.68), appeal panels will be required to have regard to the guidance. The appeal arrangements are currently made by the LEA in the case of county and voluntary controlled schools and by the governing body in the case of VA and GM schools. At present, the constitution of the committee for exclusion appeals will be the same as for appeals concerning admissions (see Table 2 above). The Council on Tribunals has said that exclusion appeals are "among the most important appeals, since exclusion will in many, if not all, instances have a strong, sometimes adverse effect upon the whole further education of the child concerned".62 The Council has stressed the need for "the possession of high skills and abilities on the part of both chairmen and members", "meticulously applied procedures", and "adherence to the judicial approach" which, it complains, is often "abandoned in favour of a 'case conference' approach not contemplated either by the legislation or the Code". 63 The Council has recommended that lawyer chairmen are needed for these appeals64 and that one possibility would be to bring exclusion appeals within the jurisdiction of the SENT, an issue discussed below. In June 1998, the Chairman of the Council, Lord Archer of Sandwell, proposed an amendment to the School Standards and Framework Bill at the House of Lords Committee Stage seeking to require lawyer chairs of exclusion appeal panels, but it was withdrawn. 643 The procedural framework governing the appeal hearing will be largely determined by the committee itself, albeit that there is approved guidance (in the Code of Practice, revised in 1994) on procedural matters for the committee to follow. In addition, there are rules built into the legislation. In particular, appeals must be by notice in writing setting out the grounds and made within 15 days of the letter confirming that there will not be reinstatement; the hearing must be arranged within 15 school days of the lodging of the appeal; the parties have a right to appear and be heard, and may be permitted to be represented if they wish (an amendment, under sections 7 and 8 of the Education Act 1997 changed this discretion to a right from 1 September 1998); and the parties will be entitled to receive a decision in writing generally within 17 school days, giving reasons.65 The 1997 Act introduced a right for the governing body to be represented at an appeal hearing and for the head teacher to have the same right as the parties and LEA and governing body to

61

Report 95/A/4400 (31 October 1996). Annual Report, 1991-92 (London, H M S O , 1992), para. 1.28. 63 Ibid. 64 Ibid and supra n.58, para. 2.7. M ' Hansard H.L. D e b s , vol. 5 9 0 , cols 7 5 6 - 7 6 4 . 61

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attend and make oral representations.66 The speed with which hearings must be arranged emphasises the importance of a swift resolution of the dispute for the child concerned. But it does create administrative pressures. Nevertheless, a majority of LEAs have told us they find the time limits unproblematic, because most of the relevant evidence is already available. The running order of the hearing is a matter for the committee but the Code of Practice offers guidance. Generally, after the introductions, the LEA or governing body will explain the background and reasons for the exclusion; the matter will proceed from there, with each side having an opportunity to present evidence and call witnesses, and to cross-examine the other side. The excluded child may only bring an appeal in his or her own right if aged 18 or over. Thus, in practice, children will only be witnesses, and then only if called. Save the Children see this as meaning that "A child facing exclusion . . . has no automatic entitlement to challenge accusations made against him or her". 67 Some panel members have told us that it is helpful to be able to speak to the child and elicit the child's version of the events. Turner J has said that hearing the child's account of the matter constitutes "an act of obvious fairness" in exclusion appeal cases.68 In practice, however, the excluded child attends in only a minority of cases (in the survey, 45% of parents who responded said that their child did not attend the hearing; this compares with 38% in observed hearings analysed to date). Moreover, there is no mechanism by which the child can be summoned unless the parent brings him or her and the child expresses a wish to speak to the committee.69 Yet in 1996-97, 78.5% of children who were permanently excluded were aged between 12-1570 and would be well able to express a view. Current practice in school exclusion appeals does seem to run counter to the principle of the child's participation in welfare-related decisions, reflected in s.l of the Children Act 1989 and article 12 of the UN Convention on the Rights of the Child.71 Where the child does participate in the appeal hearing there are sometimes 65 Education Act 1996, Sched.16. There is a new requirement on the body responsible for arranging appeals to take reasonable care to ascertain times when various persons would be able to attend the hearing: new para.7A, added by s.7 of the Education Act 1997 (from 1 September 1998). s * Education Act 1996, Sched. 16, new para.8, also added by s.7 of the 1997 Act from 1 September 1998. 67 Save the Children, All Together Now—Community participation for children and young people (London, Save the Children, 1996), pp. 12-13. 68 R v. Governors of St. Gregory's RC Aided High School and Appeals Committee ex p . M supra n. 59 2 9 7 H . 69 See Council o n Tribunals, Annual Report 1987/88 (London, HMSO, 1988) para 2.52. See also R v. The Governors of Bacon's City Technology College ex p . W [1998] ELR 488 (QBD) in which Collins J was critical of the appeal panel's failure to question the child concerned when they wanted to do so; they allowed themselves to be swayed by the parents' representative w h o did not want the child to speak to the panel. 70 DfEE, Permanent Exclusions from Schools in England 1996/97 (DfEE, 1998, Table 3).

The Developing Role and Structure of the Education Appeal System 313 serious deficiencies in the kind of questioning of the child adopted by some appeal committee members or LEA or school representatives. In particular, there was on some occasions a fairly oppressive questioning of a kind which was quite inappropriate in such a hearing.72 It demonstrated the quasicriminal nature of the proceedings in some cases. It may be concluded that a lack of representation of the child and the lack of a lawyer chair have contributed greatly to such problems in these cases. The essential question for the committee is whether permanent exclusion is a reasonable punishment, both in general terms and also having regard to specific factors (currently dictated both by case law and statutory requirements). One problem with this is that, for the present at least,73 neither the needs of the child nor the potential impact of exclusion on him/her have at present be considered. The arrangements for educating the child outside school or in another school may be discussed; but in practice the case will turn on the child's conduct and behaviour and what would happen within the school should the child be allowed back. Given this, and the fact that the child is not independently represented, and that the parent is frequently unrepresented, the odds are stacked in favour of the school and LEA. The DfE's 1992 discussion paper on exclusions74 intimated that parents found the appeal system to be intimidating and that a friendlier and more informal system was needed. The DfE consulted with few, if any, ordinary parents, however. The author's research is, therefore, asking parents about their experience of, and views on, the appeal system. For example, several parents who appealed have been disparaging: • "I had never received no letters so I couldn't respond to them, they made it look as if I had ignored them . . . they treated me as a criminal, and teachers and panel were on first name basis, laughing and joking." • "You against many, felt looked down on accademically (sic), as though couldn't think for myself as neither could my son. Fobbed off. • "Made me feel like an outsider or that my son was a criminal". Observation of 42 appeals in 1997/98 in seven LEA areas has nevertheless revealed that basic standards of fair procedure are generally observed; however, we have found that the committees tend to be very reluctant to 71 See U N C o m m i t t e e o n the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: United Kingdom of Great Britain and Northern Ireland (1995), responding to The UN Convention on the Rights of the Child: The UK's First Report to the UN Committee on the Rights of the Child (London, H M S O , 1994). See further, G. Lansdown (ed.) UK Agenda for Children (Children's Rights D e v e l o p m e n t Unit, 1994). 72

This will be discussed at much greater length in the report of the research. As noted above, under an amendment made by s.7 of the 1997 Act from 1 September 1998, the committee will have to have regard to "the interests o f [the excluded] pupil", although will need to weigh them against other factors. T h e s e duties will disappear under the 1998 Act. 74 Supra n.54. 73

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question the head teacher's or LEA's judgment on the merits of the case or the "reasonableness" of the decision. The LGO reports have also provided some evidence on procedural matters and the conduct of hearings. For example: • Mother not informed of right of appeal (Reports 92/A/3573, 7 July 1994, and 93/C/3220, 6 June 1995) • At a hearing at a GM school, the school's representative (the deputy head teacher) was alone with the committee prior to the hearing, which took place in his office, and he later participated in the drawing up of the committee's reasons; there was no clerk; the appellant had not been provided with a copy of all the school's evidence (Report 96/C/729, 21 October 1996). • Appeal committee failed to probe facts sufficiently; no trained clerk available; maladministration and injustice (Report 97/C/5075, 29 October 1998). In addition, Lord Archer of Sandwell, the chairman of the Council on Tribunals, reported in a paper circulated as part of the induction materials provided to social security appeal tribunal members: "I once attended an Education Appeal Committee, considering an appeal against the exclusion of a pupil. The issue was whether an alleged incident had or had not taken place, a question not illuminated by a comment from the chairman that 'the headmaster is a very caring man, and we should support him'".75 Research also indicates that parents need to see their child's school record to avoid being at a disadvantage at hearings but that they often face a difficulty gaining access.76 There have also been some judicial review challenges to appeal committee decisions in exclusion cases, raising some interesting issues. In one case the court struck down a decision because of breach of natural justice: a governor member of the panel was a teacher at the school and knew the excluded child as her head of year.77 In another, an excluded child failed to demonstrate that the committee had not considered alternatives short of exclusion; Latham J held that it was not necessary for the committee to set out each and every option that had been open to it and to reject them with reasons.78 In a further case, a boy was excluded after a series of incidents, including assaults on other pupils, and the appeal committee's decision was challenged on the grounds, inter alia, that the committee had relied on hearsay evidence and had given inadequate reasons for decision. Turner J found no objection in a "quasi75

Cutting Humility Down to Size (undated: circa 1996). R. Cohen et al., Schools Out: The family perspective on school exclusion (London, Barnardos, 1994), p.19. 77 R v. The Board of Governors of Stoke Newington School and Others ex p . M (1994) ELR 131. 78 R v. Solihull Borough Council ex p . W, (QBD) [1997] ELR 489. 76

The Developing Role and Structure of the Education Appeal System 315 judicial body", which was conducting its proceedings in relatively informal manner, accepting hearsay evidence "even if that be the only evidence of a pupil's misbehaviour".79 As regards the decision letter, he said that it had to "be remembered that it was not drafted by those having legal qualifications". And he further commented: "I recognise that legal qualifications are not the only ones that count, for experience within the field of education which these committee members and their secretary [had], may count at least as much". 80

There is thus the implicit acknowledgement that a panel, or at least a clerk, with legal qualifications would be capable of producing clearer and fuller reasons that a lay committee. At present, however, the Code of Practice merely states that it might be advisable in the "more complex cases" for the committee's clerk to have legal qualifications.81 A committee's failure to provide adequate reasons was, in one recent case, remedied only by the court's acceptance that the chairman's affidavit explaining the decision could be considered by the court in relation to the judicial review proceedings which had been brought.82 It has also become clear that, to take the issue of clerking (supra), the nature of provision varies greatly from one area to the next. Some clerks have legal expertise, while others do not; some play a very active role in the hearing, while others are mere spectators. If the committees are to remain all-lay, I would argue that the role of the clerk should always be performed by someone with legal training combined with specific training on clerking these committees. Parts of the educational establishment have been critical of exclusion appeal committees, viewing them with suspicion ("who knows whether. . . appeals panels are properly balancing the rights of pupils against the needs of the violent and disruptive, when such appeals are heard in private?"83). Despite the fact that only a minority of appeals by parents succeed, some critics see the appeal process as undermining the professional role of head teachers and governors. In the wake of the dispute at Manton Junior School in Worksop, when teachers threatened to strike over the appeal committee's reinstatement of an unruly pupil,84 Doug McAvoy, General Secretary of the N.U.T., threatened that the union would sanction such action "where pupils who have been excluded are returned to school by governing bodies, appeals panels or [LEAs] against the professional judgment of the headteacher and the teaching staff".85 The N.A.S.U.W.T called for the abolition of exclusion appeals, saying they 79 R v. Staffordshire County Council Education Appeals Committee ex p. Ashworlh (1997) 2 Admin LR 373 at 394G-H. Ro

Ibid at 397C-E. para.5(b); also at para 5.2 o f the G M schools C o d e of Practice. R v. Northamptonshire County Council ex p . W (1998) ELR 291/(QBD). 83 "Whose rights?" Times Educational Supplement editorial, 26 April 1996. 84 See, "Schoolboy dispute badly handled, says Shephard" The Times 12 September 1 9 9 6 and "Head closes pupil-row school", The Guardian 2 9 October 1996. 81

82

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"achieve nothing except to turn education into a quasi-judicial procedure . . . At best Appeals Panels are redundant in so far as they mostly support the decisions of headteachers and Governing Bodies. When they exercise independence and force reinstatement they fatally undermine the authority of the school and Governing Body".86 At the union's annual conference in April 1997, one national executive member referred to appeal panels as a "damn nuisance".87

Conclusions on Exclusion Appeal Panels: Reform Nothing less than abolition of appeals panels would appear to be capable of satisfying the teaching unions. Short of this, the unions would at least like to see the inclusion of teacher members o n them and are likely to be pleased about the Education Act 1997 provisions requiring appeal panels to take account of the interests of staff at the school and other pupils (see above).88 It should be noted, however, that almost all head teachers and LEAs in the author's survey have said that they consider it right that parents should have a right of appeal against a school exclusion, "the interests of natural justice" being the most frequently given reason. What seems to be the principal concern, however, is that the appeal committees sometimes are too detached from the situation facing the school in question to appreciate fully the likely impact of the child's reinstatement. The N.A.S.U.W.T. believes that the governing body should be the final arbiter, but the governors can hardly be described as independent and the balance would surely be tilted too far against the interests of the excluded child. It seems very unlikely that proper standards of procedural fairness could be guaranteed. Thus, while it would be highly desirable that any reform of exclusions appeals should enable the panels to command the respect of the teaching profession, basic standards of justice must be maintained. Abolition of exclusion appeal panels should not be countenanced, not least because it would run counter to Article 6 of the European Convention on Human Rights: "In the determination of his civil rights. . . everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law". The Council on Tribunals has been pressing for exclusion appeals to be 85

D. McAvoy, "Why discipline laws behave badly", Times Educational Supplement, 11

October 1996. 86 NASUWT Reaction to Government Plans to Improve School Discipline, NAS/UWT Press Statement, 10 O c t o b e r 1996. 87 See "Teachers may strike over pupils c a u g h t with a gun", The Times , 4 April 1997, which also reports o n a threatened teachers' strike at a Bradford School over the appeal panel's decision to reinstate t w o pupils w h o h a d been found in the school carrying air pistols and a m m u n i t i o n . See a l s o " T e a c h i n g u n i o n s back refusal to take unruly pupils", The Times, 2 April 1997. 88 Nigel de Gruchy, General Secretary, N A S U W T , interviewed by the author, 24 October 1997. T h e s e provisions will, h o w e v e r , disappear under the 1998 Act, although they may be reflected in n e w guidance.

The Developing Role and Structure of the Education Appeal System 317 transferred to the SENT (which would mean lawyer chairs and stricter procedures). Presumably, therefore, when the Council recently argued that "the locally-based tribunal systems such as the Education Appeal Committees" should be excepted from its general recommendations concerning a judicial head for tribunal systems,89 it was thinking of admission appeals rather than exclusion appeals. The Council's case for such a transfer is based on the fact that special educational needs are "frequently at issue in exclusion appeals". 90 Children with statements represented only 2.8% of the school population in 1994-95, but 17.6% (up from 12.5% in 1990-91) of the total of permanently excluded pupils.91 Many other cases may involve children with SEN:92 in the study, nearly 50% of parents said that their child had SEN (of whom just over one third had statements), which is fairly close to the estimated figure of 60% reported by the Council on Tribunals. 93 The principal objection to the SENT taking on exclusion appeals jurisdiction, raised by its President, is that the SENT system is geared up for a lengthier procedure, given the range of specialist evidence it has to consider, whereas exclusion appeals need to be heard more quickly. But the possibility of a "fast-track" SENT procedure for exclusion cases has not been addressed. This would certainly be essential, as the current SENT procedure is relatively elaborate (see below). There are common features to both categories of appeal, such as the reliance on various reports and other documentation, and there is a similar need for a range of witnesses to be involved in hearings. Furthermore, the number of appeals (see Table 3 above) is not so great as to make such a transfer hugely expensive. There would be a need to consider a slightly different constitution—perhaps a lawyer, a special educational needs expert and a person drawn from teaching profession in general. The Technical Consultation Paper published in conjunction with the Education White Paper (referred to earlier) outlined several options for reform, involving standardisation of appeal arrangements in accordance with those operating in one of the different categories of school or a "hybrid model", preferred by the DfEE, under which school governing bodies would consider parental representations and decide on the question of reinstatement but the responsibility for arranging the so-called independent appeal would rest with the LEA.94 The Government has ruled out transference of exclusion appeals to the SENT and opposes the introduction of lawyer chairs for the 89 Council on Tribunals, Tribunals, their Organisation and Independence Cm 3 7 4 4 (London, Stationery Office, 1997), para 2.26."° Annual Report, 1992-93 (London, H M S O , 1993), para.2.15. See also para. 2.17. 91 DfEE statistics, supplied to the author, October 1997; Department for Education, supra n.54, para.16. 92 See R. C o h e n et al. School's Out: The family perspective on school exclusion (Essex, Barnardos (Family Service Unit), 1996) and C. H a y d e n , "Excluded from Primary School" (1996) 9(4) Representing Children 199-209. 93 Annual Report 1995/96 (London, H M S O , 1996), para. 2.42.

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committees. The School Standards and Framework Act 1998 (Sched.18) give effect to the "hybrid model". As with admission appeals under the Act, panels (of 3 or 5 only) will not be able to include governors of the school in question or members of the LEA or persons whose connection with the LEA or school might raise doubts about their ability to act impartially. This improved degree of independence is to be welcomed. The impact of exclusion appeal decisions can be enormous both for the child and, if the child is reinstated, for the school. It is vitally important that fair and effective appeal arrangements are made. Relevant evidence, including professional views, needs to be carefully assembled and assessed. The parent's or child's case must be properly heard, no matter how cogent the evidence against him/her. It is particularly important that the child's involvement in the hearing is managed in accordance with appropriate standards of justice and a recognition of the rights of the child, particularly in view of the child's lack of a proper legal status in these proceedings and the potential consequences of the appeal decision. In this regard, the current lack of independent representation for the child in these cases is undesirable. Moreover despite the welcome improvements to these panelsunder the School Standards and Framework Act 1998, there is a strong case for lawyer chairs or, at least, for lawyer clerks (who would have responsibility for procedural matters), in all cases. A national body, such as the SENT, would be useful as it would have responsibility for monitoring and upholding standards of adjudication and could possibly organise or co-ordinate training more effectively than the local authority associations do at present. Outside the appeal structure itself, there needs to be more assistance provided to parents. In the author's survey, only a minority of parents were provided with advice following their child's exclusion and, of these, a majority did not find it particularly helpful. Finally, the exclusion of city technology colleges from these statutory procedures is anomalous and needs to be rectified.95

The Special Educational Needs Tribunal (SENT) The SENT was established in September 1994 under Part III of the Education Act 1993. It is a nationally organised appeal body with a President, presently Trevor Aidridge QC. Unlike EACs, it is governed by detailed procedural rules.96 Other distinctive features include a requirement for chairs to be lawyers and provision for review of decisions and for further appeal to the High Court on a point of law. The tribunal's jurisdiction spans six separate grounds of appeal relating to decisions concerning the education of children with learning difficul94

Supra n.48 paras 16 (DfEE England) and 19 (Welsh Office). See for example [1998] ELR 488 R v. The Governors of Bacon's City Technology College ex p . W (QBD) in which a panel of governors hearing an appeal acted unfairly in the way it adduced evidence, including a failure to call the child concerned to give evidence. 96 See the Special Educational Needs Tribunals Regulations 1995 (SI 1995 No.3113). 95

The Developing Role and Structure of the Education Appeal System 319 ties. Many of the appeals concern the making of statements of SEN, including the provision required. This means, amongst other things, that tribunals have to deal with thorny questions of resources as well as technical issues. The author's research into the SENT, conducted with the full co-operation of the President and his staff, was completed at the beginning of 1997.97 In common with previous research into the tribunals system,98 the research included observation of hearings (40 in 24 locations) and use of postal questionnaires. Views were given by 118 parents (60% of those targeted), most SENT chairmen and members, 70% of English and Welsh LEAs, and numerous voluntary organisations and lawyers. Evidence presented to the House of Commons Education Committee in 1996 was also available.99 One of the strengths of the SENT is its independence, reinforced by having its own President with overall responsibility for appointing members, training and administration. Administrative efficiency was, however, hindered in the initial phase by under-staffing, but full-time equivalent staff numbers more than trebled in the 18 months from January 1995 when the tribunal heard its first appeal. This helped to reduce the average time between registration of an appeal and a hearing from five and a half to four and a half months over this period despite a continuing increase in appeal numbers (see Table 1 above). 100 In the year from September 1996 the average period between registration and the hearing was down to four months; but this is still a long period of uncertainty during a child's crucial years of development, particularly when the time limits for the making of statements of SEN are frequently exceeded by LEAs (among the many SEN administration issues frequently investigated by the LGO 101 ). However, a fast-track provision for some cases does not seem to be in demand. 102 The tribunal has an appropriate blend of legal and special educational skills and experience (a lawyer chair with two wing members with experience of SEN or local government).103 Training is provided periodically in sessions organised by the SENT. There is a high degree of mutual respect between the chairmen and members and a general commitment to the work and considerable interest in it. Recruitment has not been a problem; however, ethnic 97

N . Harris, supra n.2. See, for example, H. Genn and Y. Genn, Representation and Administrative Tribunals (London, Lord Chancellor's Department, 1989) and J. Baldwin, N . Wikeley and R. Y o u n g , Judging Social Security (Oxford, Clarendon Press, 1992). 99 House of C o m m o n s Education Committee, Second Report, 1995-96, Special Educational Needs: The Working of the Code of Practice and the Tribunal, H C 205 (London, H M S O , 1996). 100 T h e annual increase between the 1994-95 and 1995-96 w a s 3 9 % and between 1995-96 Needs Tribunal, Annual and 1996-97 w a s 2 6 % : T. Aldridge, The Special Educational Report 1995/96 (London, S E N T , 1996) and 1996/97 (London, S E N T , 1997). 101 See, for example, the comments by Mr E.B.C. Osmostherly in supra n.37 p.10. 102 T. Aldridge, The Special Educational Needs Tribunal, Annual Report 1996/97 (London, S E N T , 1997), pp.10 and 20-21. 103 Education Act 1996, s.333(2). 98

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minorities are under-represented among the membership. As at January 1998, 95% of the 107 lay members, and all 49 of the chairmen, were white. This is clearly unsatisfactory and needs to be remedied. I might also mention here that ethnic minorities appear to be considerably under-represented among appellants. 104 The SENT system as a whole is adversarial. The author's evidence does not altogether support the Council on Tribunals' observation that the hearings are like "case conferences".105 The procedural rules mirror those of court procedures—with "replies", "discovery" and even awards of costs (in exceptional cases). Yet the law in this field (and, since 1994, the Code of Practice)106 has long emphasised the principle of "partnership" between parents and agencies in determining the needs of the child and in particular the arrangements for meeting them. This would in fact suggest a need for a mechanism for conciliation or settlement of disputes. There are some who feel that either the tribunal should have such a role or that a separate system of mediation should be introduced (as recommended by the Association of London Authorities). The Government wants to encourage more meetings between LEAs and parents to resolve disputes informally.107 However, appeals are usually the result of an impasse which often needs to be resolved judicially. In this context, it is interesting that, according to a majority (60%) of LEAs in the author's survey, settlement of disputes is now less likely than under the pre-1944 system. Several officers said that the new system has raised the stakes in disputes; because the tribunal can make decisions which impose additional expenditure obligations on LEAs, parents are not only more likely to pursue the appeal to a hearing but have found it increasingly necessary to do so. The benefits of advice and representation in connection with welfare appeals are well documented (although it should be stressed that not all the advocacy before the SENT was found to be effective). A majority of parents (65% in the survey group) received advice in connection with their case and around 33% were represented, valuing this help very highly. Among the cases where there was representation, lawyers represented in 42% of cases in both 1995-96 and 1996-97, according to SENT figures. It would appear that the 104

Harris, supra n . 2 , p . 7 6 . T h e President's annual report for 1996-97, published in December 1997, publishes for the first time the results of the SENT Secretariat's own ethnic monitoring of appellants: 1,670 White, 86 Black, Asian or Chinese and 126 Others, so that 89% were White. It urges caution in drawing conclusions from the figures: T. Aldridge, The Special Educational Needs Tribunal, Annual Report 1996/97 (London, SENT, 1997), p.17. 105 Council on Tribunals, Annual Report 1995-96 (London, Stationery Office, 1996), para. 2.48. 106 Department for Education, Code of Practice on the Identification and Assessment of Special Educational Needs (London, Department for Education, 1994). 107 See the recent DfEE Green Paper, Excellence for all children: Meeting special educational needs ( L o n d o n , D f E E , 1997), w h i c h p r o m i s e s (by 2002) "improved arrangements for encouraging dialogue b e t w e e n parents, s c h o o l s a n d L E A s should be reflected in a reduction in the n u m b e r o f appeals t o the S E N T r i b u n a l " (Part 2 , s u m m a r y ) .

The Developing Role and Structure of the Education Appeal System 321 benefits of legal representation—skilled examination of evidence, a more disciplined and focused approach as regards the issues, greater knowledge of procedural requirements and so on—outweigh the disadvantages of increased formality and longer hearings (in my survey, 2.6 hours with at least one lawyer, compared to 2.3 hours without any). 108 The President remains opposed to legal aid for SENT appeals, however, because of what he sees as a potential threat to the tribunal's established and effective informality.109 The tribunal has its own suite of rooms for hearings in London. Elsewhere, accommodation is hired. Most venues are hotels. These are not always suitable. Problems in some of the 24 venues visited during the research included unhelpful hotel staff, the lack of a separate waiting area and representativeclient conference facilities, poor acoustics and inadequate ventilation. The problems with venues have been taken up with the SENT by the Council on Tribunals. 110 Hearings are generally allocated to a half day only. It is common for there to be one appeal before lunch and one after it, involving the same panel. As a result, some morning hearings became rushed towards the end of the allotted time. Where, as is common, the parents present their case after the LEA, they sometimes feel they have insufficient time. Some questioned felt that this running order put them at a disadvantage because it meant that they were forced to respond to points made by the LEA rather than presenting their case in their preferred way. The regulations require the tribunal to "seek to avoid formality in its proceedings"." 1 The tribunal has been particularly good at creating an air of informality at the outset of the hearing, which has helped to put parents at ease. Many parents commented on the friendliness of the chairmen and, indeed, the tribunal staff. As the hearing progresses, however, some chairs adopt quite a formal, judicial, approach, although others are better at maintaining some informality. The question of breaks is another issue. Often there were none in the entire session (average session length, approximately two and a half hours). Some parents commented that a break would have been helpful or, in one case, humane! Children rarely attend SENT hearings. They are not parties to the appeal, nor to any further appeal to the High Court. 112 Their views are hardly ever sought, although in a few of the cases observed the child had written to the tribunal. The question whether the child should be a party to the proceedings or independently represented, and whether he or she should attend the 108 T h e S E N T ' s o w n survey found that 6 2 % of cases where there w a s legal representation were concluded inside three h o u r s , c o m p a r e d with 7 1 % of t h e cases where t h e parents did n o t have a legal representative: supra, n.100 (1996), p.12. 109 T . Aldridge, The Special Educational Needs Tribunal, Annual Report, 1996/97 (London, S E N T , 1997), p . 8 . 110 Supra n.93, para.2.49. 111 Special Educational Needs T r i b u n a l Regulations 1995 (SI 1995 No.3113), reg.28(2). 112 See, in particular, S v. Special Educational Needs Tribunal and the City of Westminster [1996] 1 W L R 382 (CA).

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Table 5 LEAs' views on extent of change of bias before and after establishment of SENT Pre-SENT - Parents favoured more Pre-SENT - LEA favoured more No change No response/don't know TOTALS

14 14 40 12 80

17.5% 17.5% 50% 15% 100%

hearing, remains thorny and is discussed by the author at greater length elsewhere.113 In essence, the author feels that (as with exclusion appeals) the position of the child should be reviewed and changes made to ensure that there is some movement towards the kind of status which the child enjoys in Children Act 1989 proceedings. In this regard, it is encouraging to note a recent commitment by the Government to put the SENT under a legal duty to have regard to the views of the child, where they can be ascertained.114 Although there is some variation across the categories of appeal, parents generally succeed (in whole or in part) with around 50% of appeals. Many LEAs see this high success rate as pointing to a degree of bias or oversympathy on the part of the SENT towards parents: in the survey 33% of LEAs regarded the SENT as biased pro-parents (as opposed to 1% saying it favoured LEAs), although, as the results in Table 5 show, many believe such bias also existed prior to the establishment of the SENT. Some voluntary organisations were more concerned about possible proLEA bias resulting from the presence of a high proportion (approximately two-thirds) of former LEA advisers, inspectors or other officers among the tribunal membership. Only four of the first 88 members appointed had experience which was confined to the voluntary sector. While the present success rate is high it does not prove bias. Observations of the decision-making process during the research revealed that, on the contrary, the tribunal operates impartially. Further evidence came from the views expressed by chairs and members of the tribunal, who reported that there was no, or virtually no, bias. I believe that any apparent bias in favour of parents on the part of the SENT is nothing more than an inevitable outcome of the way the legislation has been framed: it provides a basis for parental choice and wishes over a number of matters and, while not guaranteeing such choice, limits the basis on which it can be denied. The SENT has no power to enforce its judgments and some parents commented that the LEA's failure to implement the tribunal's decision made their victory a hollow one. Nevertheless, the ruling is binding on the LEA and a failure to implement it could be enforced via a direction by the Secretary of 113

Supra n.2. DfEE, Meeting Special Education Needs: A Programme of Action (London, DfEE, 1998) chapter 1, para 12. 114

The Developing Role and Structure of the Education Appeal System 323 Table 6 High Court Appeals from SENT Decisions, as at 25 September 1997 U6 Appeals lodged Appeals disposed of Withdrawn Dismissed Remitted for hearing Pending Withdrawn Decision set aside whole/part Decision confirmed Time extension cases

OO117

77 31 26 14 5 5 3 1 6

State (above) or via an order of mandamus in the High Court. The tribunal's and the President's powers of review may also be useful where, for example, previous proceedings were defective in some way or, as happens in some cases, reasons for decision were inadequate.115 Both parents and LEA have an avenue of appeal against the SENT's decision to the High Court on a point of law. Table 6 shows the number of appeals lodged and heard to September 1997, and the outcomes. It should be stressed that most of the 31 cases withdrawn were probably settled wholly or partly in favour of the parents, as were some of the remitted cases which were withdrawn.

Conclusions on the SENT The SENT has demonstrated the advantages of a discrete, specialist, education appeal body modelled on classic tribunal lines; and it might thus be regarded as a model for other education appeals. Many of its teething problems, including procedural difficulties, have been ironed out. Nevertheless, action on several fronts is still required. First, the relative complexity of the appeal process as a whole still hinders access for some parents and should be reduced. Secondly, a less adversarial approach should be encouraged by pre-hearing meetings which, in line with Lord Woolf's recommendations on civil justice, could result in fewer or at least shorter hearings. Thirdly, there is a need to review the position of the child in SEN appeals (following the failure in early 1997 of Lord Campbell of Alloway's Bill, which sought to enable the child to be an appellant). Fourthly, the 115

See South Glamorgan CC v. L and M [1996] ELR 400 (QBD). Statistics supplied to the SENT by the author, October 1997. 117 A different total, 101, was subsequently stated in supra n. 109, p.22, which also revealed that 89 of the appeals were made by parents and 12 by LEAs. 116

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arrangements (including the venues used) for hearings and the procedure during hearings need to be improved. Finally, a further reduction in the waiting period for appeals would be highly desirable.

Conclusion The present education appeal system is well established and important. Decisions on admissions, school exclusions and special educational needs, which all involve a fairly large amount of discretion and can have considerable administrative and resource implications, need to be subject to appeal to ensure that decisions conform to the legal requirements and are not arbitrary. Nevertheless, each of the three systems is in need of improvement, even the SENT. The kinds of reforms needed were outlined at various points in this paper. There are, in addition, some general issues. The most important is whether it would be beneficial for there to be a single education appeals body, perhaps modelled on the SENT. Certainly, many of the necessary improvements to each of the present appeal bodies, such as a greater legal input, more accessible, clear and tightly operated procedures, a more judicial approach to decision-making, more involvement of the child, greater independence, and so on, would be advanced by establishing a national body like the SENT to deal with all appeals. Local knowledge of schooling provision, sometimes necessary in admissions and exclusions cases, could still be a feature of membership. Undoubtedly, most common ground exists between SEN and exclusion cases. Although the research into the way the exclusion appeals system works is still being evaluated, it is already clear that the case for bringing exclusion appeals within the SENT framework seems quite strong; indeed, it would become more so if the appeal body could be required to consider not only the question of the child's reinstatement at his own school but also the alternative arrangements that would need to be made if the exclusion were to stand. Were such a reform to be made, it might be necessary to extend the period within which the appeal should be decided, so that sufficient evidence could be assembled. However a delay longer than, say, six or eight weeks would unduly prolong the period of uncertainty for the child and his/her carers. There are common issues in these cases and similar skills and procedures are required. Consideration would need to be given to the question whether, as happens in SEN cases, appeal to the High Court on a point of law should be possible. So far as admissions appeals are concerned, they are different in nature to SEN and exclusion appeals and probably do not need to be brought within a judicial framework of the SENTtype. They should be locally organised but within a national framework, as discussed earlier. Another possible reform which merits serious consideration is the establishment of mechanisms for mediation and conciliation. Of course, the experience of other areas of practice covered by such arrangements suggests that if they

The Developing Role and Structure of the Education Appeal System 325 are to succeed a high level of expertise and skill and adequate resources are very important. At present, many disputes in the fields discussed here are satisfactorily resolved without such arrangements, whilst in others there may be insufficient likelihood of settlement to justify the overall costs which would be incurred.

15 Parking Adjudications: The Impact of New Technology CAROLINE SHEPPARD AND JOHN RAINE

Introduction

T

HIS paper focuses on the impact and potential of new technology within an administrative justice context and illustrates how the use of computers and associated systems can transform an adjudicative process in terms of the nature and style of conduct as well as in its supporting clerical and management functions. Specifically, the paper examines the arrangements that have been pioneered in London in recent years to handle appeals against local authority-imposed penalties for breaches of local parking regulations. The administrative justice process and its key features are outlined, with particular focus on the way in which computers are used. Then the paper reports some results from a survey of appellants (and of a sample of those who did not appeal) of perceptions of the process and draws some conclusions about the ways forward for this particular administrative justice process.

Parking Adjudicators Parking Adjudicators is a new tribunal set up under the Road Traffic Act 1991, under which parking became decriminalised in London. The scheme was introduced in July 1993. At that time it was difficult to predict the scale of work (appeals) for the adjudicators. But because a high volume of cases was anticipated, it was decided that the new tribunal process should be supported by new technology to an extent not yet pioneered in this country. The system that was eventually commissioned is such that all the documented evidence for each case is scanned into the computer. Adjudicators then examine it on screen and type their decisions and reasons directly into the system. The Parking Adjudicators tribunal operates by means of a highly automated process. At the start of a session, each adjudicator logs on to the system using their own personal password. In this way the system identifies them and any decisions or letters they produce will bear their own name. It also gives each

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327

adjudicator access to their own personal queue of cases. They can either select a case from the genera! list by pressing a "next case" button (this could be any case from any of the 33 London local authorities) or they can select a case from their individual lists which are comprised of cases which either the Chief Adjudicator has allocated to them because of their particular expertise or that they have previously adjourned and retained for themselves. The system involves a number of standard directions and phrases which are pre-programmed into the computer. Many of these are plain English explanations of the legal principles involved in the Road Traffic Act or parking regulations. If the adjudicator needs to adjourn a case, their reasons are entered along with any directions either to the appellant or to the local authority and emerge as tailored versions of standard adjournment letters that are automatically issued.

The Role of IT The Parking Adjudicators tribunal provides an unusual example of an administrative justice process that relies strongly on IT for its core adjudicative activity. In addition, however, IT plays an important role in a number of other respects: • Case Management • Information provision • Judicial Monitoring

• Management Information • Performance Statistics

Case Management Each "Notice of Appeal" (the form completed by each appellant) is scanned into the computer on receipt by the tribunal administration and a case number is automatically assigned. Checks are automatically made to sift out those which are "out of time" (i.e. submitted after the statutory 28 days for appeals to be lodged) and cases to be heard are scheduled automatically (but with the facility for manual intervention to accommodate an appellant's stated preferences on date and time of hearings). The system normally assigns a list of cases automatically/randomly to each adjudicator (who work through their lists deciding an appeal and then calling up the next case on their computers). However, cases may be specially assigned to particular adjudicators because specialist expertise is required or because they had part-heard the case on an earlier occasion. The scheduling arrangements are such that, in the interests of customer-service, appeals may be heard from 8.00 am to 8.00 pm on weekdays and on Saturday mornings. The hearings take the form of specifically timed appointments assigned automatically by the computer (if the appellant has not specified a preferred date/time or dates to avoid on the appeals form). There are performance pledges not to keep appellants waiting more than 15 minutes; and that all cases will be heard within 35—42 days from the registration of the appeal.

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Information Provision The same computer system automatically generates correspondence to notify each appellant within two days of receipt of the appeal of the hearing date. Appellants have a choice between attending in person or having their appeal heard without their presence, in which case, they are notified of the date by which they should expect a determination. The system also automatically notifies appellants within two days if a case is adjourned. All this generally works well. In practice, personal appellants seldom wait more than 15 minutes for a hearing and, because adjudicators type their decisions into the computer at the end of the hearing, decision notices are printed and issued immediately for appellants to collect as they leave the hearing centre. Postal decisions are printed over night and despatched the following day. The system also provides information on the decisions made to each of the 33 London local authorities whence the Penalty Charge Notices originally arose. Each authority in fact receives a bundle of daily reports produced by the system dealing with appeals registered the day before, "out of time" appeals, copies of additional appellant evidence, adjournment information and adjudicators' directions, plus the previous day's decisions. The system also generates "prompt reports" to remind the local authorities to submit evidence if they have not done so within the week when the case is due to be heard. Judicial Monitoring One consequence of the highly automated system is that it is easy for adjudicators to measure their own performance—and indeed, for the Chief Parking Adjudicator to monitor the performance of individual adjudicators. At the end of each day a report is automatically generated for each adjudicator listing the number of appeals that they have considered, the number allowed/refused and their average time for dealing with personal hearings and postal cases. At the end of the report is shown the average time taken for personal and postal cases for all the adjudicators working that day to provide a benchmark for comparison. These reports are confidential and are only issued to each individual adjudicator. It is also possible to generate reports listing the reasons given in deciding appeals by each adjudicator over a given period. This can be useful to adjudicators if they wish to re-examine their decisions in particular previous cases or identify the precise wording used in specific cases. It is also potentially a valuable aid to adjudicators in the process of training and development. For example, a selection of "best practice" reasons may be identified and compiled as a single report for circulation amongst all adjudicators as guidance (without attribution of the source). The value of this kind of facility is heightened by the fact that the adjudicators, though experienced lawyers, are recruited for this particular adjudicative role on a part-time basis and, sitting on their own, have only limited opportunity to interact with one another, to exchange

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329

ideas/practice experience and to develop common standards and consistency. In other judicial contexts the concept of judicial monitoring may be regarded as controversial. But in the Parking Adjudicators' environment, with its high level of automation, it is part of the daily and annual routine for adjudicators, albeit accepted partly because there is sensitive management of confidentiality and firm emphasis on such monitoring for self-development rather than for "league-table" performance accountability of individual adjudicators.

Management Information That said, the computer system has also been designed to produce comprehensive management information which enables the tribunal performance to be monitored in terms of a set of statistical indicators. On a daily basis reports are generated on the number of personal hearings and postal cases awaiting determination and on the number of cases decided and adjourned the previous day. There are also weekly reports to the Chief Adjudicator and Clerk to the Parking Appeals Service giving details of: • • • • •

the volume of cases arising from each local authority the workload plan for the next 4 weeks the percentage of cases dealt with in 35-42 days the average time taken to determine cases during the previous week a full list of pending cases within the system that are more than 35 days old.

These reports enable the Chief Adjudicator to organise extra adjudicator sessions if necessary to deal with any growing backlog or for the Clerk to the Parking Appeals Service to schedule in more cases. The system also generates annual statistics on the performance of the tribunal which are reproduced in the Annual Report as well as being provided to other interested organisations, for example the Council on Tribunals and the Department of Environment, Transport and the Regions. A few such statistics illustrate how the Parking Adjudicators tribunal works: The workload of the adjudicators is currently 35,000 cases per year from London alone. 30% of cases are personal hearings. The average time taken for hearings in the year 1996/97 was: Personal hearing Postal decision

22.18 minutes 13.23 minutes

The average time taken from registration of the appeal to an adjudicator's decision for 1996/97 was: Personal hearing Postal cases

37.103 days 39.695 days

87% of appellants were seen before an adjudicator within 15 minutes of arrival at the hearing centre.

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The Impact of an IT-Oriented Adjudication System As indicated, the IT systems in place at the Parking Adjudicators tribunal have a significant impact upon the shape and style of the adjudication process and on the supporting administration. They also shape the culture of the organisation and indeed on its staffing structures. In this latter respect, this is a minimalist staffed organisation. Most of the basic clerical functions are contracted out to the company which provides the computer services. Their staff not only undertake the scanning of documents but also take responsibility for other administrative functions, for example, the rescheduling cases and handling telephone enquiries. Indeed, the direct staff complement of the Parking Adjudicators tribunal consists of just four full-time staff (the Chief Adjudicator; the Clerk to the Parking Appeals Service, an administrative assistant and the Chief Adjudicator's personal assistant) and the team of 26 parttime adjudicators (qualified lawyers approved by the Lord Chancellor, who typically sit for one session each per week). In these respects it is, indeed, an interesting organisational case-study within the administrative justice context. But what of its impact for those who use it—who seek to pursue their case against the impositions made by the parking authorities by lodging appeals? Here the findings of recent research provide some interesting insights. The research, conducted in Spring/Summer 1997 took the form of a survey of a sample of appellants and, equally importantly, also of a sample of those who might have appealed but did not in fact do so. Some of the key questions for the survey were as follows: • How aware were people of the right to appeal? • Why did some lodge their appeal by post and others choose to present their case in person? Did it make a difference? • How did personal appellants perceive the experience (and what was the impact of the IT in this context)? • How independent and fair was the adjudication process perceived to be? The main survey took the form of a series of postal questionnaires dispatched to a 100% sample of appellants in a 4 month period (between December 1996 and March 1997). Names and addresses of appellants were supplied from the Parking Adjudicators system, clearance having been obtained from the Data Protection Registrar. Of the total sample of 1,183 appellants contacted, 832 (about 70%) had had their appeal dealt with through the post (postal appellants); the remaining 351 had attended their adjudication in person (personal appellants). The questionnaire sent to personal appellants was rather longer than that for postal appellants with a number of additional questions about the experience of attending the Parking Adjudication venue in Central London and about their perceptions of the process there. In addition to the appellant surveys, co-operation was obtained from four London Borough parking authorities and names and addresses supplied by

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each of about 100 people whose representations against the imposition of parking fines had been rejected by the authority but who had not exercised their right to appeal to the Parking Adjudicators in the statutory period (nonappellants). A separate short questionnaire again was sent to these non-appellants, with questions focusing particularly on their awareness of their right of appeal and the reasons for not exercising this right. Response rates of around 40% were achieved on all three sample surveys. Some of the key findings of the research are summarised below.

Non-Appellants: Awareness of Right of Appeal Twenty-one percent of the non-appellant sample said that they were unaware of the right to appeal and claimed not to have received details of the Parking Adjudicators tribunal or the appeals form with the letter of "rejection of representations" from the parking authority. While it was not possible to ascertain whether this reflected administrative failure on the part of the authorities or oversight on the part of the recipients, the finding seemed significant in so far as it suggested that the statutory rights of a sizeable proportion of people were not understood. Moreover, 45% of all non-appellant respondents reported that they had not known of the possibility of a postal appeal (i.e. even if they were aware of an appeals process, they had thought it would mean an attendance at the Central London venue being necessary). Perhaps of most significance here was the finding that two out of three such non-appellants who did not know about the option of postal appeals indicated that, had they known, they would have lodged an appeal. The overall pattern of reasons cited by non-appellants for not making an application was as follows: 1. 2. 3. 4. 5.

feared having to pay costs (28%) unawareness of right (21%) little chance of winning (16%) didn't think it would be fair/impartial (12%) the allowable grounds didn't suit (12%)

The Issue of Liability for "Costs" Of these reasons, the most commonly cited was fear of being liable for costs in the event of an appeal being unsuccessful. This, in fact, was not just an issue of concern to non-appellants. The survey highlighted widespread confusion about the issue of liability for costs both among those electing to appeal by post and through personal hearings (as the table on the following page shows). Interestingly, the point was made by the Parking Adjudicators that, although the legal power to award costs is at their disposal, a costs order has never yet been made in practice. Yet this reality was evidently not being communicated effectively to the public by the local authorities in their letters

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not liable might be liable would be liable don't know

Postal 22% 35% 18% 25%

non-appellants

Personal 20% 44% 19% 17%

All 21% 41% 18% 20%

Definitely liable (15%) Probably liable (7%) Might be liable (30%)

of "rejection of representations". While all boroughs made reference to the "costs" issue in their correspondence and while practice to date does not necessarily match the formal legal position, differences in the particular language (and legalistic tone) used by many of the boroughs in their correspondence seemed at least partly to blame for the confusion.

Postal or Personal Appeals? Reasons for choosing between postal and personal appeals was also of some interest in the research. Reasons cited in response to questions in the survey were as follows: Reasons cited for choosing a "postal" appeal All the evidence was "paper-based" 25% Didn't think it was worth attending 23% Inconvenient location for hearings 18% Inconvenient date/time of hearing 14% Didn't know of entitlement to attend in person 4% Didn't want to face adjudicator 2%

Reasons cited for choosing a "personal" appeal Arguments would be best made face to face 31% Felt it would increase chance of win 25% Wanted to participate in the process 22% Inadequate space/design of form for postal appeal 13% Convenience of appeals centre location 4%

Impact of the Computer Of particular interest given the IT theme of this paper was the perceived impact of the computer system on the part of personal appellants. As indicated, the computer screen and keyboard plays a very visible part in the adjudication process. Indeed, adjudicators are in the habit of swinging the monitor around so that appellants can see exactly what adjudicator are seeing and doing. So how did appellants regard the computer? Was it felt to be a help or a hindrance to them during their hearing? In fact for about one third of respondents the computer was judged to have helped (31%) and several indicated that they had been very impressed by the image-processing arrangements and the general efficiency of the automated system. On the other hand, for slightly more than another third (36%) the computer was felt to have made no difference to the process. A further 27% expressed no opinion on the matter (so might perhaps be considered similarly to have been unaffected by

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the computer); while some 6% of respondents reported that, for them, it hindered the process. Perceptions of the Process Finally there was the broader set of questions about perceptions of the adjudication process. In this respect appellants were asked a range of questions about their perceptions of fairness, formality (asked of personal appellants only), understanding of the status of the appeals (i.e. a last-resort opportunity the decisions of which are binding), about the perceived independence of the Parking Adjudicators (e.g. from the boroughs) and about their overall experience of using the tribunal as against their initial expectations of the process. Key findings here were as follows: Fairness: The appeal was fairly conducted: 57% The appeal was unfairly conducted: 15%

Experience vs Expectations (personal appellants only): The experience proved better than

Formality (personal appellants only): 7 r rr ^ •" The process was over-formal: 8% The process was about right: 64% Understanding of status of hearings: The status of the hearing was very clear: 51% The status of the hearing was fairly clear: ^8% The status of the hearing was not c ear: ' 6 '"

__.,".' , , The experience proved about as expected: 24% The experience proved worse than expected 15% Independence: The process was felt to be independent and impartial 42% The process was not felt to be independent and impartial 42% No view expressed on the independence of the process: 28 % Particularly in this latter respect, and perhaps as might have been anticipated, the research revealed some significant differences in perceptions between the postal and the personal appellants: Perceptions of the independence of the adjudication process Postal Personal All Independent 36% 57% 42% Not independent 35% 17% 30% Don't know 28% 26% 28%

Similarly, and again as might perhaps have been expected, the findings highlighted significant differences in perceptions about independence between those who won their appeals and those who lost. Perceptions of the independence of the adjudication process POSTAL Appellants lost won Independent 11% 58% Not independent 63% 15% Don't know/no view expressed 26% 27%

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PERSONAL Appellants Independent Not independent Don't know/no view expressed

lost 25% 64% 11%

won 90% 3% 7%

Conclusions The Parking Adjudicators tribunal provides an interesting example of an important new development in administrative justice. Much of that interest arises because of the way IT systems are used, not simply in the role of administrative support but also as a key component of the adjudicative process itself. Indeed it is intriguing to ponder the applicability of this way of working to other high volume tribunal or court-based adjudicative processes. Might the Parking Adjudicators tribunal represent something of a glimpse of the future so far as IT-supported judicial processes are concerned? Of course there are many fundamental and practical questions to be raised both about the scope for and appropriateness of developing this way of working into other adjudicative contexts. And there are important questions to be considered about what it all might imply for the nature of the adjudicative process and of the decisions reached. In this respect, the research reported in this paper, which focused only on the perceptions of a sample of appellants, is but a small component of the kind of thorough evaluation that would be welcome. That said, the surveys did offer some interesting insights into how this particular administrative justice process is working and provides some important pointers for policy and practice in relation to the Parking Adjudicators tribunal. While on the whole the survey findings painted a generally positive picture of the process, as perceived by appellants, particularly in terms of a "public service orientation" agenda, a number of important issues were identified as meriting further reflection and perhaps attention. These included: • Limited awareness of the right of appeal and of the options (postal/personal). • Confusion about liability for "costs". • Uncertainty about the independence and fairness of the adjudicative process (particularly among postal applicants and among "losers"). • Limited accessibility (one venue in central London) for personal hearings. • Higher confidence in the system of personal appellants than postal appellants. • Higher success rates in winning appeals of personal appellants compared with postal appellants

PART 5

The Influence of Human Rights on Administrative justice

16 Human Rights, UKASES and Merits Review Tribunals: The Impact o^ Teoh's Case on the Administrative Appeals Tribunal in Australia MARGARET ALLARS* Introduction N the United Kingdom a turning point with regard to the infiltration of human rights into administrative law was reached in Brind's case1 in 1991.2 The restrictive approach taken by the House of Lords to the structuring of administrative discretion by reference to international human rights norms will, however, be reversed by the enactment of the Human Rights Act. In Australia the turning point was reached in Teoh's case3 in 1995, where the High Court delivered a new kind of procedural protection for persons whose human rights are affected by government decisions. The majority judgments developed the common law of procedural fairness. That development was underpinned by a political understanding on the part of the judges that Australia's ratification of international human right conventions cannot be "a merely platitudinous or ineffectual act", 4 but rather constitutes a message to

I

* I am grateful for the generous support of a Leverhulme Fellowship held at the institute for advanced Studies at the University of Bristol in 1997 and to Martin Partington and Michael Harris for the rcseach environment provided by the Centre for the Study of Administrative Justice at the University of Bristol. 1 R v. Home Secretary; Ex parte Brind [1991) 1 AC 696. 2 The expression "infiltration" is used in a relatively narrow sense to refer to the evolution by courts of principles of the common law so as to achieve an adjustment of standards to conform with international human rights norms. Infiltration is to be distinguished from incorporation, where domestic legislation implements an international instrument, giving it domestic force. See Lord Browne-Wilkinson, "The Infiltration of a Bill of Rights" (1992) PL 397 where the expression appears to be used to encompass a number of forms of protection other than incorporation. 3 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 {Teoh's case). A Ibid at 291 per Mason CJ and Deane J. See also Sir Anthony Mason, "The Influence of International and Transnational Law on Australian Municipal Law" (1996) 7 Public Law

Review 20.

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Australians as well as the rest of the world that human rights are respected by the Australian government. This was so even though Australia's ratification of the major international human rights conventions has not been followed by domestic legislation in the form of a bill of rights.5 The reaction by the federal government in Australia to Teoh's case was strongly disapproving and clumsily executed, through policy statements and proposed legislation. The proposed legislation will attempt to effect a retreat from Teoh's case, just as the Human Rights Bill offers the United Kingdom a retreat from Brind's case. Of course Australia's retreat is from human rights, in a direction absolutely opposite to that of the United Kingdom. Partly as a result of the government's reaction, a perplexing situation has emerged for merits review tribunals in Australia dealing with human rights issues.6 This paper examines the way in which the major federal merits review tribunal in Australia, the Administrative Appeals Tribunal (AAT), has responded to Teoh's case, and the accompanying government reaction. As a tribunal responsible for affording procedural fairness itself, and for interpreting statutory provisions correctly and reaching independent judgments as to the propriety of government policy,7 the AAT was, it will be argued, placed in an extremely difficult position. If it complied with the common law principles as expounded in Teoh's case, it would probably depart from the government policy applicable in the particular case and certainly would depart from the government's policy on Teoh's case. Given the diversity of the AAT's jurisdiction, one might expect a variety of cases where the impact of Teoh's case is considered. However, this is not the case. The issue has arisen predominantly in the AAT's criminal deportation jurisdiction and more recently acquired additional jurisdiction in the migration area. It will be necessary firstly to outline the principles governing merits review in the AAT, and the role of international human rights norms in criminal deportation review prior to Teoh's case, both in the Criminal Deportation Policies and in common law principles applying to the AAT with respect to non-incorporated international conventions as relevant considerations and the legal effect of their misinterpretation. Teoh's case is then examined and the government's reaction to the decision traced. This provides the background to analysis of the AAT's application of Teoh's case, the impact of Teoh's case upon policy review and the AAT's approach to the government's policies on Teoh's case. Finally, Teoh's case is recognised as the impetus for infiltration of 5 In the limited areas of protection of privacy and discrimination on the grounds of sex, race and disability international human rights conventions have been incorporated into domestic law in Australia. 6 Curiously, the problem of Australia's equivocation on the issue of human rights is most acute for tribunals exercising jurisdiction to review government decisions on the merits, rather than for the federal and state anti-discrimination tribunals which conciliate complaints relating to privacy or discrimination. 7 For an explanation of the AAT's duty to consider the propriety of government policy, see text accompanying notes 11-21 below.

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human rights in other administrative law principles as the Federal Court gives further definition to the proper approach of the AAT to review and application of policy.

Merits Review Prior to Teoh's Case A. General Principles for the ATT: The Drake Litigation The role of the AAT in conducting merits review is not spelt out in its empowering Act. This gives no greater guidance than to say that the AAT has "all the powers and discretions" of the decision-maker whose decision is under review.8 The scope of this power was settled in the litigation consisting of Drake (No 1), which was an appeal to the Full Federal Court from a decision of the AAT in its criminal deportation jurisdiction, and the subsequent rehearing of the matter by the AAT, Drake (No 2).9 The principles articulated in the Drake litigation provided the defining benchmark for the proper function of the AAT, and consequently for other merits review tribunals in Australia.10 In the Drake litigation the full Federal Court held that the function of the AAT is to reach the correct or preferable decision on the material before it.11 The AAT re-hears the matter, standing in the shoes of the primary decisionmaker, able to make fresh factual findings. The more difficult question was the AAT's role in reviewing government policy. It is a well established principle of administrative law that a policy is not binding upon a decisionmaker but it is always a relevant consideration in the making of a decision. If a decision-maker fails to take into account an existing policy applicable to the decision, then this amounts to a failure to take into account a relevant consideration. 12 On this basis the Court in Drake (No 1) held that an existing government policy applicable to the decision was one relevant consideration the AAT was bound to take into account. 13 However, since the AAT was an 8

Administrative Appeals Tribunal Act 1975 (Cth) s 43(1). Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 (Drake (No 1)) and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake (No 2)), respectively. 10 For example, the Social Security Appeals Tribunal (SSAT), Veterans' Review Board (VRB), Immigration Review Tribunal (IRT) and Refugee Review Tribunal (RRT). The federal government currently proposes to amalgamate the AAT, the SSAT the IRT and the RRT into one Administrative Review Tribunal, partially implementing the recommendations of the Administrative Review Council in its report Better Decisions: Review of Commonwealth Merits Review Tribunals Report No 39 (Commonwealth of Australia, Canberra, 1995). Note that since the Migration Reform Act 1992 (Cth) came into operation, s 499 of the Migration Act 1958 (Cth) has provided for the Minister to issue policy directions which bind the IRT, removing the policy review aspect of merits review in certain areas of its jurisdiction 11 Drake (No I) at 68. 12 Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 16 ALD 611 at 625. " Drake (No 1) at 69-70. 9

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independent statutory authority, having taken the policy into account, it was not bound to apply it. It should not abdicate its function of making an independent decision in which the propriety of the policy is considered.14 The Court regarded it as appropriate for the AAT itself to work out the more precise aspects of its role in reviewing policy. In Drake (No 2) Brennan J, constituting the AAT, provided this guidance. The AAT is as free as the minister or other primary decision-maker under review, to make a policy when re-exercising the discretionary power.15 However, government policy operates as the constant reference point which promotes consistency in administrative decision-making, whether by the administrator whose decision is under review, or by the AAT. Inconsistency, said Brennan J, "is not merely inelegant: it brings the process of deciding into disrepute".16 If consistency is important, when should the AAT, in considering the propriety of the policy, do violence to consistency by declining to apply the relevant policy and applying its own policy in a particular case? As Deane J observed in a later appeal from a criminal deportation decision of the AAT, while consistency is an ingredient of justice it is not its hall-mark, since decision-makers may be consistently wrong or consistently unjust.17 In Drake (No 2) Brennan J said that departures from government policy should be "cautious and sparing", and made only where there are "cogent reasons" for doing so, say where application of the government policy would work injustice in the particular case.18 The test in Drake (No 1) and Drake (No 2) has been cited by the AAT consistently for more than two decades of its existence as the essence of its role in policy review. It has been adopted by other federal merits review tribunals subsequently established as the test for review of government policy in their own particular jurisdictions. The AAT has indeed been cautious and sparing in making overt departures from government policy. It has recognised that the need for caution is particularly strong in cases where the policy has been scrutinised by Parliament,19 or made at the ministerial rather than the departmental level,20 or where the policy has been formulated through highlevel consultation with federal and state governments and the relevant industry.21 The possibility of a higher rate of hidden departure from government policy, without overt acknowledgment by the AAT in its reasons, is a question which is raised later in this paper. 14 Ibid. See also Minister for Immigration Local Government and Ethnic Affairs v. Gray (1994) 50 FCR 189. 15 Drake (No 2) at 642. 16 Ibid at 639. 17 Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 at 646-7. 18 Drake (No 2) at 644,645. 19 Ibid at 644. 20 Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 at 162-3; Drake (No 2) at 644. 21 Re Aston and Secretary, Department of Primary Industry (1985) 8 ALD 366 at 380.

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B. Criminal Deportation Jurisdiction The complex nature of the AAT's task in policy review is nowhere more evident than in its criminal deportation jurisdiction. The Drake litigation arose in that jurisdiction and for the first decade of the AAT's existence it was in this context that the difficult issues concerning the proper role of the AAT were most frequently tackled. Examination of successive ministerial policies on criminal deportation indicates an increasing emphasis upon the importance in the best interests of Australia of deportation of serious drug offenders. The first ministerial policy of 1960-61 was expressed in very general terms, describing deportation as "a last resort to deal with the very serious cases where reform cannot be expected of the individual".22 The second policy of 1978 identified the basic question as whether in all the circumstances it was in the best interests of Australia that the person be deported. It listed as an additional relevant factor "the necessity to prevent or inhibit the commission of like offences by other persons". 23 This policy made an explicit statement about kinds of offences. The Minister was more disposed to deport in cases of sex offences against children and drug trafficking While the AAT in no case expressly claimed to depart from the policy, in reality the Minister proceeded on the basis of a presumption in favour of deportation in these kinds of cases while the AAT did not. 24 The Criminal Deportation Policy 1980 was tabled in Parliament, and made a stronger statement regarding deportation of persons convicted of offences involving the production, importation, distribution or trafficking in drugs. 25 In such cases the interests of the community must almost always outweigh the compassionate considerations and "in the absence of compelling circumstances" these people should be deported. 26 It contained a very brief reference to Australia's obligations under the Convention relating to the Satus of Refugees 1954 as modified by the Protocol relating to the Status of Refugees 1973 (Refugees Convention). This policy met with more frequent explicit departure by the AAT. In declining to apply it in one case Smithers J described the policy as having a "Draconian tone". 27 In another case Fisher J declined to 22 "Notes for the Guidance of Officers", Press Release 21 December 1960; Press Release, Appeals Tribunal and 19 January 1961, reproduced in J M Sharpe, The Administrative Policy Review (Law Book C o , Sydney, 1986) Appendix A. 23 Policy Statement, 28 March 1978; Covering letter dated 28 March 198 from the Minister, M R J MacKellar to the H o n Justice F G Brennan, President of the AAT. The letter and extracts from the policy are reproduced in J M Sharpe, supra n.22, Appendix B. 24 See J M Sharpe, supra n.22, pp 79-83. 25 Government Policy Relating to Deportation of Persons Convicted of Criminal Offences, 30 January 1980; reproduced in J M Sharpe, supra n.22, Appendix C. 26 Government Policy Relating to Deportation of Persons Convicted of Criminal Offences, 30 January 1980, paras 9, 10, in J M Sharpe, supra n.22. 27 Re Gungor and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 225 at 230. The Full Federal Court allowed an appeal from this decision on a different ground that Smithers J had reached his decision on the basis of facts inconsistent with the conviction,

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apply the policy because this would result in injustice to the deportee.28 The Criminal Deportation Policy 1983 discriminated between different types of drug offences, and avoided any presumption that all drug offenders should be deported. 29 Jennifer Sharpe has argued that in this respect the Criminal Deportation Policy 1983 reflected a positive response on the part of government to the AAT's criticism of the Criminal Deportation Policy 1980 and accepted the AAT's practice of making such distinctions as to the nature of the offence.30 Her analysis of the key decisions points to a consistent approach by the AAT in its criminal deportation jurisdiction, irrespective of changes in the criminal deportation policy, of balancing the factors for and against deportation. The key factors were the nature of the offence, the likelihood of rehabilitation and the risk of recidivism.31 The Criminal Deportation Policy 1983 described the purpose of deportation as protection of the safety and welfare of the Australian community and exercise of choice on behalf of the community that the benefit accruing to it by the deportation outweighs the hardship to the persons concerned and their family.32 While contemplating a balancing exercise between these broad factors, the Policy devoted more attention to the particular factors weighing in favour of deportation than those weighing against, and in particular indicated that social ties developed after the liability for deportation arose could be discounted according to circumstances. 33 However, the Policy listed as a factor to be taken into account: ". . . the relevant obligations of the Commonwealth of Australia under international treaties ratified by the Australian Government. . ,"34 While family and social ties that already exist was one of the important broad criteria to be taken into account, in their particularisation hardship to the family alone is not a factor but rather the degree of hardship. Moreover the Policy contained no special reference to the impact of deportation upon children of the deportee: ". . . the degree of hardship which would be caused to lawful residents of Australia (especially Australian citizens) known to be affected adversely by deportation or conversely the extent of support for deportation from persons directly affected .. ."35 A more notable feature of the Criminal Deportation Policy 1983 was its clearly indication of a preparedness of government to respect the AAT's approach to policy and merits review. It stated that it was the policy of the Australian Labour government that recommendations of the AAT should be and the AAT could not go behind the conviction": Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575. 28 Re Jeropoulos and Minister for Immigration and Ethnic Affairs (1980) 2 ALD 891. 29 Ministerial Deportation Policy, 4 M a y 1983, reproduced in J M Sharpe op cit Appendix D. 30 3I J M Sharpe, supra n.22, p 90. J M Sharpe, supra n.22, p 93. 32 33 35 Supra n.29, preamble. Ibid, para 10. *• Ibid, para 16. Ibid, para 16.

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overturned by the Minister only in exceptional circumstances and only when strong evidence is produced to justify the decision.36 The Policy promised that when the Minister decided to deport a person contrary to a recommendation of the AAT, the Minister would table in the Parliament at the first opportunity a statement of his reasons for doing so. The reciprocity between the AAT and the Minister promised by the Criminal Deportation Policy 1983 was not to last for long. In a spate of criminal deportation decisions the Minister departed from the AAT's recommendations against deportation. The promise provided the basis for a successful judicial review action for denial of procedural fairness when the Minister made the second deportation order. In Haoucher v. Minister for Immigration and Ethnic Affairs37 in 1990 the High Court by a narrow majority held that a published, considered statement of government policy such as the Criminal Deportation Policy 1983 generated a legitimate expectation that the Minister would not depart from the policy without giving an affected individual a hearing on the proposed departure. As a deportee who had obtained a favourable recommendation from the AAT, Haoucher was entitled to know the exceptional circumstances and strong evidence justifying the Minister's decision and to have an opportunity to make submissions in response. The High Court described this as a procedural protection only, requiring that an individual be afforded a hearing on a proposed departure from the policy in his or her case. Haoucher's case did not effect a substantive protection because ultimately the Minister remained free to depart from the Policy. The spate of departures by the Minister from AAT recommendations marked the end of a "long tradition of acceptance" by Ministers of those recommendations, a tradition with bipartisan support, and only three departures from recommendations prior to 1987.38 These new departures were the subject of judicial criticism as damaging the standing of the AAT and exposing applicants to costs, unnecessary additional litigation and disappointed reliance upon a policy which was otherwise "mere rhetoric" and merits review which was otherwise "an empty ritual". 39 In 1988, at a time when Haoucher was seeking special leave to appeal to the High Court, the Minister responded to the Federal Court decisions made in review of his decisions to deport Haoucher and other deportees who had 36 At that time the A A T ' s remedial powers were restricted in the criminal deportation jurisdiction to affirming the deportation order or setting it aside and remitting the matter with recommendations. Normally the A A T also has the full scope of powers under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth), which includes power to vary a decision or set it aside and substitute its o w n decision. 17 (1990) 169 CLR 648. 38 Nikac v Minister for Immigration and Ethnic Affairs (1988) 16 A L D 611 at 6 2 7 per WilcoxJ. 39 Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 671 per T o o h e y J. See also Nikac v Minister for Immigration and Ethnic Affairs (1988) 16 A L D 611 at 627 per W i l c o x J .

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obtained favourable recommendations from the AAT. The response was a ministerial statement supplementing the Criminal Deportation Policy 1983. The statement chastised the AAT for giving less weight than the minister believed justified to the total criminal history, and prior warnings made to the deportee that further offences will result in deportation, and for giving more weight than the Minister believed justified to perceived difficulties for the deportee in returning to the country of origin.40 In the hope that the statement would provide the AAT with "a better understanding of the Government's aims in this matter" the Minister stated that the AAT "could give a reduced weighting to the views of the offender and that person's family and to the adverse consequences for them of deportation." A new Criminal Deportation Policy was issued in 1992.41 This contained guidelines for deportation, setting out the factors which indicate that deportation of a person who has been convicted of a criminal offence in Australia is appropriate because the protection of the safety and welfare of the Australian community outweighs the hardship to the person concerned and his or her family. The Policy overwhelmingly emphasised factors which weigh in favour of deportation, such as the seriousness of the crime, the possibility of recidivism, and the contribution which the person may reasonably be expected to make to the community, rather than family and social ties. Ties developed after the liability for deportation arose are to be discounted according to circumstances. Indeed the guidelines expressly state that more weight should be given to the factors pointing to deportation than those of a humanitarian nature concerning the welfare of the family: "Consistent with Government policy, most weight should be given to the need to protect Australian society. Conversely, less weight should be given to the views of the offender and that person's family and associates, and to the possibility of adverse consequences for them of deportation."42 Nevertheless, subsequent distinct paragraphs in the guidelines require the decision-maker to pay regard to international obligations. In a paragraph summarising these factors the guidelines state that "[i]n particular the following factors will be taken into account when making a decision on whether a deportation order should be issued:". The list includes as a factor "the relevant obligations of the Commonwealth of Australia under international treaties ratified by the Australian Government". Further, in the paragraph immediately following the one directing that less weight be given to humanitarian factors of impact on the family, the guidelines make a specific reference to the International Covenant on Civil and Political Rights (ICCPR): 40 Minister for Immigration and Ethnic Affairs Statement on Criminal Deportation by Senator the Hon Robert Ray, Minister for Immigration, Local Government and Ethnic Affairs, 8 December 1988. 41 Australia's Criminal Deportation Policy—Policy Statement by the Minister for Immigration, Local Government and Ethnic Affairs, 24 December 1992. 42 Ibid, para 7.

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"The Government recognises Australia's obligations under international law, particularly to the International Covenant on Civil and Political Rights. However, the Government is mindful of the need to balance a number of very important factors, especially: the need for community protection against criminal behaviour; the requirement to take into consideration the legitimate human rights of an individual; the need to protect the rights of other persons, including the family of the person concerned; and the need to avoid discrimination when making deportation decisions."43 The apparent inconsistency within the Criminal Deportation Policy 1992 in directing a weighting of factors other than that set out in international human rights conventions like the Convention on the Rights of the Child and the ICCPR, while still requiring that regard be paid to them, presented a confusion in approach which could hardly be called guidance. It was the subject of judicial consideration in 1998, considered later in this paper. 44

C. Relevant Considerations Not only policy, but also the common law may play a part in drawing international human rights into a tribunal's decision-making. In Kioa v. West,*s a landmark case in liberalising the test for implication of procedural fairness, the High Court rejected, with little discussion, an important submission grounded in international human rights. In this case the applicants for permanent resident status succeeded on the ground of denial of procedural fairness. However, it was also argued that the Minister's delegate should have taken into account the ICCPR and the Declaration on the Rights of the Child in relation to the couple's two young children, who would have to return with them to Tonga. The younger child was ten months old and an Australian citizen. The submission was dealt with briefly and in different ways by the judges. Of most importance were the judgments of Gibbs CJ and Brennan J. Gibbs CJ held that these international instruments were not part of the domestic law of Australia. The fact that they were scheduled to the Human Rights Commission Act 1981 (Cth) and that the Act's preamble stated that "it is desirable that the laws of the Commonwealth and the conduct of persons administering those laws should conform with" the instruments, did not effect their incorporation.46 Gibbs CJ made it clear that the Minister's delegate had no legal obligation to ensure his decision conformed with the ICCPR or the Declaration.47 In any event no breach of the ICCPR or Declaration would 43 46

Ibid, para 8. *• Infra, text accompanying notes 173-180. 45 (1985) 159 CLR 550. (1985) 159 CLR 550 at 570. Note that Gibbs CJ was in dissent on the issue of denial of

procedural fairness. The Human Rights Commission Act 1981 was later replaced by the Human Rights and Equal Opportunity Act 1986 (Cth). The ICCPR, the Declaration on the Rights of the Child and other human rights instruments were scheduled to this Act, but w e r e not mentioned in its preamble. The 1986 Act also makes provision for further international instruments to be declared human rights instruments. 47 (1985) 159 CLR 550 at 570-1.

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occur in such a case because there was a natural expectation that the child would accompany the parents without any loss of the protection of the child by society and the state. 48 Only Brennan J clarified the relationship between these non-incorporated conventions and the administrative law ground of review of failure to take into account relevant considerations. The delegate was entitled to take into account the conventions but was not bound to do so. 49 Thus, if a delegate took into account the conventions this did not amount to taking into account an irrelevant consideration. If the delegate did not take into account the conventions there was no failure to take into account a relevant consideration. The delegate had a discretion. Kioa v. West represents the law for all administrators, including merits review tribunals. The High Court's ready rejection in Kioa v. West of the argument founded on human rights perhaps accounts for the apparent absence of attempts by counsel for many years in migration cases to draw upon administrative law principles as vehicles for the infiltration of human rights into the common law. Ten years later Teoh's case would revive awareness of this potential for strengthening the interface between administrative law and human rights. Teoh's case itself defines the requirements of procedural fairness in a way which in practice comes close to the relevant considerations requirement, and as well paves the way for judicial creativity in relation to the relevant considerations ground of review itself as a vehicle for importing human rights.

D. Misinterpretation of Policy In the absence of any special statutory provision to the contrary, a decisionmaker is free to depart from his or her policy without this constituting a legal error. However, a question arises whether misinterpretation of policy amounts to legal error. It is arguable that if a deliberate decision to modify a policy is not unlawful then an accidental decision to modify a policy (misinterpretation) should not be unlawful either.50 There are three problems in this area. One is that it is not always clear whether the decision-maker is changing the policy in general for the future or only departing from the policy in the particular case being decided. Secondly, it may not be clear whether the departure or modification of policy or departure in the particular case is deliberate or accidental. Thirdly, it may make a difference if the modification or departure is done by a decision-maker other than the power holder who is the author of the policy. There is some Australian authority that a misinterpretation by a decisionmaker who is not the author of the policy amounts to an error of law.51 48

Ibid at 571. *9 Ibid at 630. See the arguments canvassed by Wilcox J in Nikac v. Minister for Immigration and Ethnic Affairs (1988) 16 ALD 611 at 622. 51 Gerah Imports v Minister for Industry, Technology and Commerce (1987) 14 ALD 351 at per Davies J; 363; Nikac v. Minister for Immigration and Ethnic Affairs (1988) 16 ALD 611 at 621-2 per Wilcox J. 50

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This aspect of the role of the AAT in policy review was considered in Minister for Immigration, Local Government and Ethnic Affairs v. Gray.S2 In affirming a deportation order made against a British citizen who had a long history of drug abuse and crime, including a conviction for armed robbery, the AAT referred to the Criminal Deportation Policy 1983 and the ministerial statement of 1988, and balanced the seriousness of the crime, reports on the risk of recidivism and hardship to the deportee and his family. In an appeal to the Federal Court, the judge at first instance held that the AAT had misinterpreted and misapplied the policy and statement in such a way that it erred in law. The Full Federal Court dismissed the Minister's appeal. A complete misinterpretation of a policy may amount to application of something altogether different from the policy so that the decision-maker fails to take into account the policy as a relevant consideration or indeed acts ultra vires the empowering statute in a narrow sense.53 Gray's case contains no discussion of international obligations as a factor in the Criminal Deportation Policy 1983. In the aftermath of Teoh's case, the reference in the Policy to international obligations proved to be an important aspect of the Policy which provided a basis for the relevant considerations ground to be established.54

E. Misinterpretation of Non-Incorporated International Instrument Where a tribunal exercises its discretion to take into account a non-incorporated convention, as Kioa v. West contemplates it may lawfully do, the question arises whether a misinterpretation of the convention by the tribunal renders its decision unlawful. The Federal Court has shown a marked reluctance to tackle this question. In Gunaleela v. Minister for Immigration and Ethnic Affairsss the Full Federal Court deliberately left open the question whether the Minister's delegate, who accepted a recommendation of the Determination of Refugee Status Committee not to grant refugee status, would have made an error of law or acted unreasonably on account of a misinterpretation by the Committee of the Refugees Convention.56 The Court was alert to the fact that a policy may require regard to be paid to an international convention, but made no 52

( 1 9 9 4 ) 5 0 F C R 189. Ibid at 208. In the majority, French and D r u m m o n d JJ agreed with the trial judge's description of the errors, although it categorised the approach to the level of rehabilitation as a failure to take into account a relevant consideration rather than Wednesbury unreasonableness (1994) 5 0 F C R 189 at 211. N e a v e s J dissented, holding that the A A T had not misinterpreted the Policy or statement and that the trial judge had given them his o w n emphasis to such an extent that he had restated them. 54 Infra, text a c c o m p a n y i n g notes 173-180. " (1987) 74 ALR 263. 56 Ibid at 281. T h e Court held that o n the facts the C o m m i t t e e had not misinterpreted the definition of refugee in Art 1A of the Convention. 53

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comment on the issue other than to hint that here Wednesbury unreasonableness was the appropriate ground of review.57 In a subsequent Full Federal Court decision concerning a claim to the status of refugee sur place, Gummow J preferred to leave undecided the question whether a misinterpretation of the concept of refugee sur place in the Refugees Convention would amount to an error of law.58 Gummow J observed that when a case arose where the issue was a live one and was fully argued, it would be necessary for the court to consider the significance of the decision of the House of Lords in Brind's case. 59 Subsequently, in Minister for Foreign Affairs and Trade v. Magno,60 in the course of summarising the principles governing the relationship between international instruments and municipal law, Gummow J referred to the question again in obiter, without answering it. Gummow J described the core question as whether misinterpretation of a non-incorporated international convention which an administrator takes into account as a matter of discretion amounts to an error of law or an error of fact.61 More guidance was given on the issue in Todea's case, where a person who obtained permanent resident status by satisfying the definition of refugee, later was deported under the criminal deportation provisions.62 The AAT took the view that although the Refugees Convention was not incorporated into Australian domestic law, "due regard should be had to its terms". 63 While this suggests that the AAT made the error of treating the Convention as a relevant consideration it was bound to take into account, the AAT also stated that the AAT "may properly take into account, in a general way, the existence of Australia's international obligations". 64 Interestingly Deputy President McMahon drew attention to the specific inclusion in the Criminal Deportation Policy 1992 as a factor to be taken into account, the relevant obligations of Australia under international treaties ratified by the Australian government. He regarded a failure to comply with this aspect of the Policy as a matter which goes to the merits, as to whether a decision is the preferable decision, but not as a basis for establishing legal error. 65 A very different conclusion, reached by Wilcox J in the aftermath of Teoh's case and after more detailed consideration of the same issue in relation to the same Policy, is discussed later.66 57

Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223. See (1987) 7 4 A L R 263 at 2 8 1 . 58 Heshmati v. Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 123 at 133. Since the relevant articles o f the relevant convention were in this case incorporated into the d o m e s t i c statute it w a s n o t necessary to reach a conclusion o n the issue. 59 R v Home Secretary; Ex parte Brind supra n.l. 60 61 (1992) 31 FCR 123. Ibid at 1 3 3 . 62 Re Todea and Minister for Immigration and Ethnic Affairs (1994) 34 A L D 639. 63 M 6S Ibid 3t 650. bid at 6 5 0 . Ibidat6S0. 66 Browne v. Minister for Immigration and Multicultural Affairs. See infra, text accompanying notes 173-180.

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The Federal Court dismissed an appeal from the AAT decision in Todea's case.67 The judgment of Sackville J case includes a discussion of the issue as raised in Gunaleela, Heshmati and Magno, without definitively stating the applicable principle.68 However, Sackville J referred to the approach taken by the Full Court in Gray's case in relation to misinterpretation of policies.69 A serious misinterpretation of the terms or purpose of a policy may amount to a failure to take into account a relevant consideration, especially if the policy purports to cover all considerations properly brought to bear upon an exercise of the statutory discretion.70 Sackville J observed that this was "suggestive of the approach which might be taken" in relation to misinterpretation of unincorporated conventions.71 Certainly there are good reasons for administrative law to approach unincorporated conventions in a similar manner as policy. This provides justification for the High Court's decision in Teoh's case, where unincorporated conventions were treated as a source of legitimate expectations in the same way that policy was treated as a source of legitimate expectations in Haoucber's case.72 However, an unincorporated international convention is unlikely to cover all considerations in the way that a domestic policy does, and indeed may include principles inconsistent with an existing policy

Teoh's Case A. The Decision Teoh's case is critical to the approach of merits review tribunals to human rights. Review was sought of a decision of the Minister's delegate to accept a recommendation of the Immigration Review Panel that Teoh, a Malaysian citizen, should be refused permanent resident status. 73 Although eligible for resident status on the basis of his marriage to an Australian citizen, Teoh failed to meet character requirements in the "Integrated Departmental Instructions Manual, Resident Status". Teoh had been convicted of six counts of importing heroin and three counts of possession of heroin, with a sentence 67

Todea v. Minister for Immigration and Ethnic Affairs (1994) 35 ALD 735. *» Ibid at 742. 69 Minister for Immigration, Local Government and Ethnic Affairs v. Gray (1994) 50 FCR 189, discussed supra, text accompanying notes 52-54. 7(1 (1994) 50 FCR 189 at 208. 71 Ibid at 208. Sackville J also referred in passing to the Full Federal Court decision in Teoh's case, the High Court having at that stage heard the appeal but not yet delivered its decision. 72 Supra, text accompanying notes 37-39. 71 The Panel has since been replaced by a system of internal review by the Migration Internal Review Office and external review by the Immigration Review Tribunal, with criminal deportation decisions remaining within the jurisdiction of the AAT.

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of six years' imprisonment. His conduct resulted from his wife's heroin addiction, and he was the main care-giver for their seven children. According to the Panel the children faced a very bleak future if he were deported. However, in the view of the Panel and the delegate the serious nature of the criminal offences outweighed these compassionate claims. Mason CJ, Deane and Toohey JJ held that Australia's ratification in 1991 of the United Nations Convention on the Rights of the Child gave rise to a legitimate expectation that administrative decision-makers will act in conformity with the Convention. 74 Art 3.1 of the Convention provides that " . . . in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration." Procedural fairness therefore requires that a decision-maker who proposes to depart from this ratified but non-incorporated Convention give notice to a person whose interests will be affected by the departure, and an opportunity to present a case against such a course. Since the certain result of deportation would be break-up of his family, Teoh was entitled to a hearing on the issue of departure from the Convention before a decision was made to deport him. In failing to afford an opportunity for a hearing of this kind, the delegate denied Teoh procedural fairness. Gaudron J joined the majority in holding that Teoh had been denied procedural fairness, but regarded the Convention as "only of subsidiary significance". 75 The state had special obligations to children as vulnerable persons. According to Gaudron J, it was arguable that citizenship carries with it a common law right of children and their parents to have the child's best interests taken into account, at least as a primary consideration, in all discretionary decisions by governments which directly affect that child's individual welfare, especially where the decision affects the child as dramatically and fundamentally as in the present case.76 The judges took the opportunity in obiter to affirm existing principles relating to the effect of international conventions in domestic law and their role in interpretation of the law. These were firstly that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless their provisions have been validly incorporated into domestic law by statute. Secondly, a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with established rules of international law, including international human rights conventions. Thirdly, the provisions of an international convention to which Australia is a party, especially the ICCPR given Australia's accession to its First Optional Protocol, is a legitimate influence upon the development of the common law.77 74

7J 7 Teoh's case, supra, n.3. Ibid at 304. « Ibid. Ibid at 287-8, 298,304,315. For affirmation of the principle that domestic legislation is necessary to incorporate the ICCPR, and an example of a validly enacted later statute 77

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In a dissent scathing of the reasoning of the majority, McHugh J held that international instruments ratified by Australia do not give rise to legitimate expectations because they are statements to the international community and whether those obligations are given force in Australia is a matter for the federal parliament.78 In the light of the High Court's approval of earlier Privy Council and House of Lords decisions relating to legitimate expectations,79 followed by its decision in Haoucher's case five years earlier,80 Teoh's case was no more than a modest step in the evolution of the common law principles of procedural fairness.81 Teoh's case afforded only an entitlement to a hearing of a particular kind, rather than realisation of human rights. Nevertheless, the decision effected the infiltration of all non-incorporated treaties, which numbered about 900, into the principles of procedural fairness. The practical consequences for public administration in Australia were enormous. To implement Teoh's case, the federal government would have needed to commence a major training program for public sector managers and revise all policies potentially affecting human rights. No such action was taken.

B. Government Reaction The government's reaction to the decision was negative in the extreme. This was reflected in the issue of a policy statement on the decision and introduction into the Commonwealth Parliament of a bill intended to remove its effect. Much academic commentary on the decision was disapproving, labelling Teoh's case as an example of backdoor incorporation.82 However human rights academics, members of anti-discrimination tribunals and public interest advocates working within the field of human rights supported the decision.83 excluding human rights in the ICCPR, see Lint v. Minister Affairs (1992) 176 CLR 1 at 3 8 , 5 2 , 7 4 - 5 . 78

for Immigration

and Ethnic

Ibid at 316. Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, both approved in Kioa v West (1985) 159 CLR 5 5 0 . 80 See supra, text accompanying notes 37-39. 81 For a fuller argument t o this effect, see M Allars, " O n e Small Step for Legal Doctrine, Case and the O n e Giant Leap T o w a r d s Integrity in Government: Teoh's Intel-nationalisation of Administrative L a w " (1995) 17 Syd Law Rev 2 0 3 . 82 See R Piotrowicz, "Unincorporated Treaties in Australian L a w " (1996) PL 190; M Taggart, "Legitimate Expectations and Treaties in the High Court of Australia (1996) 112 LQR 50; F Klug and K Starmer, "Incorporation through the back door?" (1997) PL 223 at 233; H Burmester, " T h e Teoh D e c i s i o n — A Perspective from the Government Service" (1995) 5 AIAL Forum 8; M H u n t , Using Human Rights Law in English Courts (Hart Publishing, O x f o r d , 1997) p 2 4 5 . 83 This is evident in their submissions t o the inquiries made be the Senate Legal and Constitutional Legislation C o m m i t t e e in 1995 and 1997 into the anti-Teoh Bills 1995 and 1997. See infra, text a c c o m p a n y i n g notes 88, 96-97. 79

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The government's resolve to tackle Teoh's case decisively by removing its effect rather than by introducing a training program on human rights for tribunal members and public servants became evident within a month of the delivery of the decision. The Minister for Foreign Affairs and Trade and the Attorney-General in the then Labour government issued a Joint Statement purporting to restore the position regarding the effect of ratification of treaties to what it was understood to be prior to Teoh's case.84 The government asserted that ratification of an international instrument does not give rise to any legitimate expectation: "We state, on behalf of the government, that entering into an international treaty is not reason for raising any expectation that government decision-makers will act in accordance with the treaty if the relevant provisions of that treaty have not been enacted into domestic Australian law. It is not legitimate, for the purpose of applying Australian law, to expect that the provisions of a treaty not incorporated by legislation should be applied by decision makers. Any expectation that may arise does not provide a ground for review of a decision. This is so both for existing treaties and for future treaties that Australia may join."85

In issuing the Joint Statement 1995, the government sought to rely upon a passing observation made by Mason CJ and Deane J that the act of ratification generates a legitimate expectation "absent statutory or executive indications to the contrary". 86 The government interpreted this as meaning that later policy statements (by which member of the executive branch is unclear) and legislation are capable of removing the capacity of the act of ratification to generate a legitimate expectation. The government then introduced an anti- Teoh Bill into the House of Representatives.87 In the Senate the Bill was referred to the Senate Legal and Constitutional Legislation Committee which recommended by a majority that it be enacted as introduced. 88 However, the Bill lapsed when Parliament was prorogued prior to federal elections in 1996.89 Initially the newly elected Liberal-National Coalition government rested easy with the question of reception of international human rights in 84 Minister for Foreign Affairs and T r a d e and Attorney-General, joint Statement (10 M a y 1995). 85 Ibid. 86 Teoh's case, supra n.3 at 291. A similar comment was made by Toohey J at 302. 87 Administrative Decisions (Effect of International Instruments) Bill 1995 (Cth), introduced on 28 J u n e 1995. 88 T h e referral w a s made o n 28 August 1995, and the Senate Committee reported o n 28 September 1995: Senate Legal a n d Constitutional Legislation Committee, Administrative Decisions (Effect of International Instruments) Bill 1995 (1995). T h e then government and the opposition supported enactment of the Bill. T h e t w o Green Party Senators on the Committee dissented, as did o n e of t h e Democrat Senators while the three Democrat Senators w h o joined the majority made additional comments. 89 Parliament was prorogued o n 6 M a r c h 1996.

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Australia.90 In response to a report by the Senate Legal and Constitutional References Committee on the treaty making process, the government announced changes to strengthen the role of parliament in scrutinising decisions of the executive branch to enter treaties.91 In the meantime the South Australian government enacted the Administrative Decisions (Effect of International Instruments) Act 1995 (SA), which provided that an international instrument which does not have the force of domestic law under a federal or South Australian statute "cannot give rise to any legitimate expectation that - (a) administrative decisions will conform with the terms of the instrument; or (b) an opportunity will be given to present a case against a proposed administrative decision that is contrary to the terms of the instrument". 92 The South Australian Act made it clear that it did not prevent a decision-maker from having regard to an international instrument if the instrument was relevant to the decision.93 Then in February 1997 the federal government issued an anti-Teoh policy similar to that of the previous government, containing the following critical passage: "Therefore, we indicate on behalf of the Government that the act of entering into a treaty does not give rise to legitimate expectations in administrative law which could form the basis for challenging any administrative decision made from today. This is a clear expression by the Executive Government of the Commonwealth of a contrary indication referred to by the majority of the High Court in the Teoh case."94 This Joint Statement 1997 policy was followed by introduction into the House of Representatives of a fresh anti-Teoh Bill.95 After the Bill had passed through the House of Representatives, the Senate referred it to the Senate Legal and Constitutional Legislation Committee.96 The Senate Committee did not accept evidence that the anti-Teoh Bill was unnecessary and undesirable. 90 The Attorney-General took the view that the Anti-Teoh Bill should not be reintroduced since there was evidence that the problem with Teoh's case was not as large as it had appeared at the time and he would monitor legal developments: Sydney Morning Herald, 11 September 1996. 91 Senate Legal and Constitutional References Committee Trick or Treaty?: Commonwealth Power to Make and Implement Treaties (Commonwealth of Australia, 1995); announcement by the Minister for Foreign Affairs, May 1996, regarding tabling of treaties and national interest analyses in Parliament prior to binding treaty action and establishment of a Treaties Council and a joint Standing Committee on Treaties. See D Williams, "Treaties and the Parliamentary Process" (1996) 7 PLR 199. 92 Administrative Decisions (Effect of International Instruments) Act 1995 (SA) s 3(2). 93 Ibid s3(3). 94 Joint Statement—The Minister for Foreign Affairs and the Attorney-General and Minister for justice—The Effect of Treaties in Administrative Decision-Making (25

February 1997). 95 Administrative Decisions (Effect of International Instruments) Bill 1997 (Cth), introduced on 18 June 1997. 96 O n 26 June 1997.

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Although there was uncontradicted evidence that Teoh's case had not had a discernible impact on administrative decision-making and that there had not occurred a flood of test cases, by a majority the Committee recommended that the Senate pass the Bill without amendment. 97 Beyond the very general Joint Statements, an acknowledgment of Teoh's case did intrude into migration policy. This occurred in relation to a more recently acquired migration jurisdiction of the AAT, to review the Minister's exercise of power under s 501 of the Migration Act 1958 (Cth)to refuse to grant a visa to a person or to cancel a visa if he or she is satisfied the person is not of good character having regard to the person's past criminal conduct or general conduct. Migration Series Instruction (MSI) N o 164 of 199798 provided guidelines on the exercise of the discretion under s 501, setting out general conduct requirements associated with the grant of a spouse visa." These requirements consist in a list of relevant factors, including a variety of factors associated with family, referring to the interests of children as "the best interests of any child associated with the visa applicants". MSI N o 164 requires a balancing process to be undertaken. However, the bests interests of the child are not described as a primary consideration. Another listed factor to be balanced is whether undue harm would be likely to result to the Australian community if the visa is granted. This includes assessment of the likelihood of the person re-offending or engaging in unacceptable conduct in Australia. This is described as "a primary consideration, equal in weight to any other primary consideration". 100 MSI N o 164 reserves the position as to the effect of Teoh's case: "While there is an issue regarding the application of international obligations when considering the discretion to refuse after a rinding that a person is not of good character subsequent to the findings of the High Court in the Teoh case, these will not be considered in this MSI until further guidance is sought from the Minister. In any applications where there is an Australian citizen or resident child the case should be referred to Director Health and Character Section, Migration and Temporary Entry Branch, Overseas Client Services Division, Central Office."101 97 Senate Legal and Constitutional Legislation Committee, Administrative Decisions (Effect of International Instruments) Bill 1997 (Commonwealth of Australia, 1997). Dissenting reports were given by the t w o Labour Party members o f the C o m m i t t e e and the Australian D e m o c r a t s member o f the Committee. 98 Minister for Immigration and Multicultural Affairs Migration Series Instruction No 164, 2 2 April 1997, as reproduced in Re Tran and Minister for Immigration and Multicultural Affairs (unreported, A A T , N o N 9 6 / 1 9 9 6 , Deputy President Chappell, 7 N o v e m b e r 1997) p 5 . See also Minister for Immigration and Multicultural Affairs, Procedures Advice Manual (27 September 1996) ( P A M ) , as reproduced in Lam v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Sackville J, 4 March 1998) pp 6-7. 99 Pursuant t o the Migration A c t 1958 (Cth) s 501(2)(a)(ii). 100 MSI N o 164, para 9.9.2. 101 Ibid, para 9.9.1; P A M supra n.98, para 9.9.

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The drafting of MSI No 164 suggests an attempt to counteract any effect of Teoh's case by making the risk of recidivism a primary consideration. It will be for Teoh's case itself to render the interests of any affected child a primary consideration demanding equivalent consideration to recidivism.

C. The Result It was expected that the anti-Teoh Bill 1997 would be passed by the Senate late in 1998. However, the Bill lapsed when the Parliament was prorogued for the federal elections. It is likely that the Attorney-General will reintroduce the Bill early in 1999. The common law principles of procedural fairness may be overridden by statutory provisions provided they evince an express and unambiguous legislative intention to exclude those principles.102 There is therefore no doubt that the anti-Teoh Bill once enacted will exclude any legitimate expectation generated by the fact of Australia's ratification of an international convention. However, the poor drafting of the anti-Teoh Bill suggests that its enactment will not prevent the infiltration of international human rights into administrative law.103 The central defect of both the anti-Teoh Bills is that they aim to remove human rights from the decision-making of administrators and tribunals by destroying legitimate expectations stemming from a particular source. However, both within the field of procedural fairness and in relation to other grounds of judicial review, enactment of the anti-Teoh Bill will leave ample scope for invalidation of tribunal decisions on a basis which involves infiltration of human rights into administrative law principles. Prior to the enactment of the Bill this is already evident in Federal Court appeals from AAT decisions, discussed below.104 It is curious that the Criminal Deportation Policy 1992 was not revised either to remove reference to Australia's international obligations or even to bring its drafting into line with policies like MSI No 164.105 MSI No 164 also remained unchanged even in the period after the issue of the Joint Statement 1997. It is curious that this policy was not revised given that the Joint Statement claimed to negate the effect of Teoh's case. These omissions to engage in policy revision at the ministerial and departmental level left the AAT and Federal Court scope for reaching ingenious interpretations of government policy and its relationship to administrative law principles, so as to introduce further bases for infiltration 102 Kioa v West (1985) 159 CLR 5 5 0 at 584, 632; State of South Australia v O'Shea (1987) 163 CLR 378 at 386; Annetts v McCann (1990) 170 CLR 596 at 598. 103 See infra, text accompanying notes 155-180. For c o m m e n t on the 1995 Anti-Teoh Bill, see M Allars, "International L a w and Administrative Discretion" in B Opeskin and D Rothwell (eds) International Law and Australian Federalism (Melbourne University Press, 1997) 232 at 268. 104 See infra, text accompanying notes 155-180. 105 T h e Criminal Deportation Policy is currently the subject o f an inquiry by the Joint Standing Committee o n Migration.

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of human rights beyond that discovered in Teoh's case. To the present the major question presented to members of the AAT has been how to" implement Teoh's case and to determine whether the Joint Statements of 1995 and 1997 alter the position as stated by the High Court.

Application of Teoh's Case by the ATT In the wake of Teoh's case, the AAT has only occasionally cited the decision as authority for the principles of statutory interpretation which it affirms.106 The incorporation principle is misunderstood in one case, where it is accepted that the scheduling of the ICCPR to the Human Rights and Equal Opportunity Act 1986 (Cth) effected its incorporation, a proposition which has been rejected by the High Court. 107 Occasionally Teoh's case is applied by the ATT as authority for the procedural fairness issue which is its ratio. However, the truly remarkable feature of application of Teoh's case by the AAT is in relation to policy review, where Art 3.1 of the Convention on the Rights of the Child has overtaken the Criminal Deportation Policy 1992 without explicit acknowledgment by the AAT that it is departing from government policy. A. Procedural Fairness In the few cases where the AAT has cited Teoh's case as authority for the procedural fairness issue which is its ratio, this is done in obiter, there being no issue before the AAT of denial of procedural fairness by the Minister's delegate.108 In 106 For the affirmation in Teoh's case of the principle that a m b i g u o u s statutory provisions should b e interpreted consistently with international h u m a n rights norms, see supra, Commissioner text a c c o m p a n y i n g n.77. T h e A A T referred t o the principle in Re Brown and for Superannuation (1995) 3 8 A L D 344 at 353-4. T h i s principle did n o t assist, because the clear statutory intention w a s t o make provision for superannuation benefits t o be paid t o spouses o f the o p p o s i t e s e x rather than people in same s e x marriage-like relationships. C o m p a r e R e Secretary, Department of Social Security and Mei Lin (Grace) Chin (unreported, A A T , N o W 9 7 / 8 0 , Deputy President T E Barnett, D r J G Billings, D r D Weerasooriya, 6 February 1998) paras 3 3 , 37-43, where, applying Teoh's case, the A A T determined that certain provisions of the Social Security Act 1991 (Cth) a n d the Disability Discrimination A c t 1 9 9 2 (Cth) were not clearly discriminatory and therefore should be interpreted consistently w i t h Australia's international obligations in the C o n v e n t i o n o n the Rights o f the Child. A s a result, the A A T determined that a deaf student w h o emigrated from China at seven years w a s eligible for a disability support pension. 107 R e Mulugeta and Minister for Immigration and Ethnic Affairs (unreported, A A T , N o W 9 2 / 1 7 8 , Deputy President G L M c D o n a l d , 19 January 1996) para 4 3 , where it w a s held in obiter that t h e procedures in' the Act for inquiry by the H u m a n Rights and Equal Opportunity C o m m i s s i o n ( H R E O C ) into violations o f h u m a n rights under the ICCPR and compellability o f individuals t o give evidence t o the H R E O C , indicate that the ICCPR is incorporated a n d consequently that the Joint Statement 1995 can have n o effect upon the application of the ICCPR in Australia. 108 For example, Re Trigueros and Minister for Immigration and Multicultural Affairs (1996) 43 ALD 611 at 616; Re llbay and Minister for Immigration and Multicultural Affairs

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some ATT cases Teoh's case is cited as authority on interpretation of the policy requirements relating to good character.109 The AAT has itself been held to have denied procedural fairness in a Teoh sense, in a case where the Federal Court paid no attention to the Joint Statements. In Re Lam and Minister for Immigration and Multicultural Affairs,1*0 the AAT affirmed a decision to refuse a spouse visa on the ground that the applicant was not of good character by reason of his conviction for the possession of a large quantity of heroin. His only involvement was the safe-keeping of the heroin and no paraphernalia of use or sale of the drugs were found in his house. His deportation would result either in his permanent separation from his wife and eight year old son or their accompanying him to China, a country neither of them had ever visited. The AAT applied the 1996 guidelines on good character in MSI No 164, in which the Minister reserved his position on Teoh's case.111 After referring to Teoh's case, the AAT engaged in the exercise of balancing the countervailing weight of the illegal conduct and the family ties. On the basis that "under the established policy guidelines the principal factor which must be considered is the protection of the Australian community", the AAT concluded that this outweighed the consideration of the family ties. 112 The Federal Court set aside the decision on the basis that this statement indicated the AAT had applied the guidelines in such a way that the interests of the child were not a primary consideration in equal contest with the factor of protection of the community.113 Thus, if the AAT follows the guidelines on good character it errs in terms of Teoh's case unless it explicitly gives the deportee notice that it proposes to depart from Art 3.1 of the Convention on the Rights of the Child and an opportunity to make submissions on this course. Since the AAT had failed to take this step it had denied the deportee procedural fairness. The Federal Court decision in Lam's case is a straightforward application of the ratio of Teoh's case. Indeed had the AAT followed the guidelines to the letter it should have sought further advice on the Teoh issue, as the guidelines explicitly required primary decision-makers to do. 114 Sackville J observed that (1996) 44 ALD 377 at 389-90; Re Jalal and Minister for Immigration and Multicultural Affairs (unreported, AAT, N o V96/997, Deputy President B M Forrest, 15 August 1997). 109

Re Renata and Minister for Immigration and Ethnic Affairs (unreported, AAT, N o N93/742, Purvis J, 25 February 1998) para 13 where the judgment of French J in the Full Federal Court in Teoh's case was cited in relation to understanding of the content of the good character test. 110 Re Kwong Leung Lam and Minister for Immigration and Multicultural Affairs (unreported, AAT, N o N96/364, Deputy President D Chappell, 11 June 1997). 111 See supra, text accompanying notes 98-101. 112 Re Kwong Leung Lam and Minister for Immigration and Multicultural Affairs (unreported, AAT, N o N96/364, Deputy President D Chappell, 11 June 1997) p 17. 113 Lam v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Sackville J, 4 March 1998). IM See supra, text accompanying n.101.

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the case illustrates the dangers of following guidelines that are not designed for the circumstances of the case. The guidelines explicitly state that they might not be appropriate for the particular category of case where there is an issue regarding the application of international obligations and a child resident in Australia is involved. Sackville J said that this strengthened the case for setting aside the AAT's decision: "[Qonsiderable care should be exercised before relying on them in such a case. As the guidelines recognised the decision in Teoh made it at least questionable whether they were appropriate criteria to apply in a case involving a child resident in Australia."115

B. Impact of Teoh's Case on Policy Review The potential impact of Teoh's case on policy review by the AAT has continued to revolve around the Convention on the Rights of the Child rather than any other international instrument ratified by Australia. The AAT has not doubted that in review of criminal deportation orders and refusals to grant visas, where the migrant has children, its decision affects the interests of children. As a result, in these cases the AAT considers the impact of Teoh's case and the Convention on the Rights of the Child.116 Decisions made in other jurisdictions have also been recognised by the AAT as falling into the category of affecting the interests of children and thus requiring consideration of Teoh's case. For example, in its social security jurisdiction the AAT has regarded Teoh's case as establishing a requirement that in all discretionary decisions consideration must be given to the best interests of children as a primary consideration.117 How does Teoh's case affect the AAT's approach to considering the propriety of government policy as required by Drake (No 1) and Drake (No 2)? In its criminal deportation jurisdiction the AAT has in many cases drawn from Teoh the principle that the interests of an Australian child are a primary 115 Lam v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Sackville J, 4 March 1998) p 17. The Federal Court's decision in Lam was considered by the AAT, somewhat inconclusively, in Re Galang and Minister for Immigration and Multicultural Affairs (unreported, AAT, No N96/1119, Deputy President D Chappell, 3 April 1998) where the interests of the wife and child were held to outweigh those of the Australian community, given the low risk of recidivism. 116 Cf Re lshri and Minister for Immigration and Ethnic Affairs (unreported, AAT, Deputy President McMahon N o N94/319, 16 September 1994) paras 34-5, where refusal to grant Australian citizenship was held not to be an action concerning children. This case was decided when Teoh's case had been decided by the Full Federal Court but the High Court appeal was pending. 117 Re Secretary, Department of Social Security and Khaldea Begum (unreported, AAT, N o N97/1631, Senior Member R P Handley, 15 April 1998) paras 29, 40, where the AAT determined that a mother of small children was not a "member of a couple" during the absence of her husband who left her without income while he studied for a doctorate overseas. She was therefore entitled to social security benefits.

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consideration but not the primary consideration for the decision-maker.118 These interests must be weighed in the balance of discretionary factors.119 The respondent Minister has not disputed this approach by the AAT. 120 In some cases the weighing process results in the AAT affirming a deportation decision which involves separation of a parent from children.121 The same approach has been taken to the significance of Teoh's case in AAT review of refusals of Class 812 Transitional (Permanent) visas on the ground of failure to meet good character requirements in the ministerial policy.122 The AAT regards the welfare of the child as a primary consideration, but this need not be the primary consideration. 118

Re Sui and Minister for Immigration and Ethnic Affairs (1996) 42 A L D 163; R e Thomson and Minister for Immigration and Multicultural Affairs (unreported, A A T , N97/595, Deputy President Chappell, 16 July 1997) paras 11, 2 2 ; Re Davey Browne and Minister for Immigration and Multicultural Affairs (unreported, A A T , N o N 9 7 / 8 0 6 , Deputy President Chappell, 21 N o v e m b e r 1997) p 7; Re Irving and Minister for Immigration and Multicultural Affairs (unreported, A A T , N o N 9 6 / 4 0 2 , Deputy President Chappell, 18 N o v e m b e r 1997) pp 3 , 18-9. 119 Re Thomson and Minister for Immigration and Multicultural Affairs (unreported, A A T , N97/595, 16 July 1997) para 22; Re Arias and Department of Immigration and Multicultural Affairs (1996) 4 4 A L D 679 at 6 8 5 - 8 , where there w a s in any event n o departure from Art 9.1 of the Convention o n the Rights o f the Child, which requires that a child shall not be separated from his or her parents against their will except where competent authorities subject t o judicial review determine that such separation is necessary for the best interests o f the child. 120 Reference is made in s o m e cases to the fact that the Minister does not dispute it: R e Ilbay and Minister for Immigration and Multicultural Affairs (1996) 4 4 A L D 3 7 7 at 389; Re Medyanto and Minister for Immigration and Multicultural Affairs (1997) 4 9 A L D 731 at 741. 121 Re Thomson and Minister for Immigration and Multicultural Affairs (unreported, A A T , N97/595, Deputy President Chappell, 16 July 1997) para 2 5 , where the deportation o f a N e w Zealand citizen, convicted of importation of cocaine on a large scale worth $2 million, w o u l d separate him from his seven year old son. T h e A A T refused an extension o f time for seeking review given the nature of the offence and the need t o protect members of the Australian community; R e Irving and Minister for Immigration and Multicultural Affairs (unreported, A A T , N o N 9 6 / 4 0 2 , Deputy President Chappell, 18 N o v e m b e r 1997) p p 18-9, where risk of harm t o the Australian community from further violent offences w a s t o o great and outweighed the potential hardship to the deportee, his fiancee and her family; R e Paull and Department of Immigration and Multicultural Affairs (unreported, A A T , N o W97/208, Deputy President T E Barnett, 5 February 1998), where the seriousness o f the drug offences, long criminal history, fraudulent entry into Australia, lack of respect for immigration laws and possibility of re-offence outweighed the Convention o n the Rights o f the Child and in any event by the time the deportation order w a s executed o n completion of the Immigration prison sentence, the child would be 18 years old; Re Smirnov and Minister for and Multicultural Affairs (unreported, A A T , N o N V 9 7 / 7 8 1 , Deputy President G L M c D o n a l d , 19 December 197), where the seriousness o f the drug offence outweighed the loss o f the deportee's stepdaughter in being deprived o f his company and the possibility o f his resuming the relationship with her mother. 122 Re Kwong Leung Lam and Minister for Immigration and Multicultural Affairs (unreported, A A T , Deputy President Chappell, 11 June and 18 July 1997) p 16.

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This approach is also found in AAT review of refusals of spouse visas on character grounds. 123 In some of the spouse visa cases reference to Teoh's case appears to assist in tipping the balance towards a conclusion that the good character requirements are satisfied.124 On what basis does the AAT simply apply Art 3.1 of the Convention on the Rights of the Child? In Teoh's case the majority judges were careful to emphasise that the existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act that way:125 "To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law. It incorporates the provisions of the unincorporated convention into our municipal law by the back door."126 Do AAT members treat the Convention as a factor they may, or are entitled, to take into account, or as a factor which they have a duty to take into account? Although a less than careful reading of some decisions could suggest otherwise, AAT members do not regard themselves as bound by the Convention. For example, in a 1996 case the ratio of Teoh's case was explained by a judicial presidential member of the AAT as follows: "Thus a majority in Teoh was of the opinion that while decision-makers are not obliged to take into account Australia's international obligations in making decisions, if they choose to ignore them as a relevant consideration, procedural fairness requires the person who is the subject of the decision to be notified of this fact and allowed to make representations against that course."127 However, AAT members never reject the Convention on the basis that it is inconsistent with the Criminal Deportation Policy 1992. They apply the 123 Re Holani and Department of Immigration and Multicultural Affairs (1996) 44 ALD 370 at 375 per Deputy President Forrest; Re Medyanto and Minister for Immigration and Multicultural Affairs. 124 For example, Re Holani and Department of Immigration and Multicultural Affairs (unreported, AAT, No V96/588, Deputy President B M Forrest, 6 December 1996) para 27; Re llbay and Minister for Immigration and Multicultural Affairs (1996) 44 ALD 377 at 393; Re Grandlouis and Minister for Immigration and Multicultural Affairs (unreported, AAT, No N96/1188, Deputy President D Chappell, 15 August 1997) para 62; Re Edwards and Minister for Immigration and Multicultural Affairs (unreported, AAT, No N97/446, Deputy President D Chappell, 22 December 1997) para 47-8, 59; Re Noonan and Minister for Immigration and Multicultural Affairs (unreported, AAT, Deputy President B M Forrest, 19 May 1998) (conviction in the United Kingdom for attempting to obtain financial advantage by deception, and previous entry into Australia using a false name without conviction, outweighed by better prospects for wife and child in staying in Australia). 12 -' Teoh's case, supra, n.3 at 291 per Mason CJ and Deane J (with whom Brennan J agreed); at 299,302 per Toohey J. 126 Ibid at 291 per Mason CJ and Deane J. 127 Re Sui and Minister for Immigration and Ethnic Affairs (1996) 42 ALD 163 at 179 per Purvis J.

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Convention and balance the primary consideration of the best interests of the children against the considerations of the criminal record and risk of recidivism. Thus, the substance of the principle in Art 3.1 of the Convention has become a policy applied by the AAT irrespective of the way in which the interests of the child are dealt with in the Policy. Yet the clear tenor of the Criminal Deportation Policy 1992 is that the criminal record and the risk of recidivism are to be given greater weight than the interests of the family. The policy applied by the AAT differs from that of the Minister. Drake's case requires cautious and sparing departures from the Policy and cogent reasons for departures, usually for the sake of individual justice. The AAT does not articulate that it is departing from the Policy or on what basis it regards the Drake test for departure as being satisfied. The AAT is consistent in its approach, but this amounts to consistent inconsistency with the Criminal Deportation Policy 1992. In the absence of Teoh's case probably the AAT would have resorted to ordinary notions of humanitarian and compassionate treatment to justify different application of the Criminal Deportation Policy 1992. This is what occurred prior to Teoh's case.128 Since Teoh's case, occasionally reference is still made to ordinary notions of compassion, as a justification additional to the Convention, for a decision to grant a visa which will allow a family to reunite. 129

C. Effectiveness of Joint Statements The Questions Assuming for the moment that each of the Joint Statements do amount to an "executive indication to the contrary", thereby removing any legitimate expectation generated by ratification of the Convention on the Rights of the Child, the ICCPR or other human rights instruments, a number of questions arise regarding their effectiveness.130 It is a fundamental doctrine in administrative law that administrators are not to be fettered in their future exercise of statutory discretionary powers in the public interest. They must not be shackled in changing policy for the future. Neither Joint Statement can bind the government for the future. After all, the Joint Statement 1997 was intended to replace the Joint Statement 1995. It is possible that policy statements made after the issue of the Joint Statements will to some extent override or replace the Joint Statements. This 128 Supra, text accompanying notes 27-28; and for a fuller discussion see M Allars, supra n.81 at 210-216. 129 R e llbay and Minister for Immigration and Multicultural Affairs (1996) 4 4 A L D 377 at 393. 130 T h e arguments which follow are explored more fully in M Allars, supra, n.81.

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could occur inadvertently, say where a federal Minister makes a public statement that Australia respects human rights whether outside or within Australia and is proud of its human rights record. Furthermore, policy statements made after the Joint Statements may independently generate legitimate expectations, in accordance with the principles set out in Haoucher's case. Thus, a policy statement re-affirming Australia's commitment to an international human rights instrument may reinstate a position equivalent to that under Teoh's case, but on the authority of Haoucher's case. The preliminary assumption that the Joint Statements do destroy legitimate expectations generated by ratification also needs to be questioned. Can a legitimate expectation generated by ratification be destroyed by a legitimate expectation generated by a policy statement? Does the source of the legitimate expectation matter? Furthermore, did Mason CJ and Deane J have in mind that the executive indication to the contrary could be made at any time, even many years after ratification? This is a question taken up in an appeal from an AAT decision, discussed later.131 There is also a large question of the locus of authority to make policy on particular subject matters. Can a policy made by only two federal Ministers in sweeping terms without reference to any particular international instruments affect the vast range of existing policies and decision-making of many different Ministers, Departments and agencies? The Joint Statements are presumably made in exercise of undefined prerogative power132 while the policies potentially affected are made in exercise of statutory discretionary powers. There is a strong argument that most of the statutory regimes within which the policy is made abrogate any prerogative power to make policy in relation to the subject matter of the scheme. Six AAT Decisions In six cases following Teoh's case the AAT has considered the Joint Statements 1995 and 1997.133 In a criminal deportation case decided in 1995 the Joint Statement 1995 was noted and discussed but its effect was not decided.134 In a second criminal deportation case it was not necessary to decide the legal effect of the Joint Statement 1995, but attention was drawn to academic expression of doubt about its effectiveness.135 In a third case, affirming a decision to impose a condition of a quota on its 131

See infra, text a c c o m p a n y i n g notes 142-147. Its source is the C o m m o n w e a l t h Constitution s 6 1 , which is also the source o f the federal g o v e r n m e n t ' s p o w e r t o enter treaties. 133 This excludes cases where the AAT refers to the Joint Statement 1997 without comment, such as Re Jalal and Minister for Immigration and Multicultural Affairs (unreported, AAT, No V96/997, Deputy President B M Forrest, 15 August 1997) p 12. 134 Re Salemeh and Department of Immigration and Ethnic Affairs (unreported, AAT, N95/692 26 October 1995). 135 Re Vaitaiki and Minister for Immigration and Ethnic Affairs (unreported, AAT, No N95/705, Deputy President McMahon, 14 November 1995) p 3. 132

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fishing licence, a fishing operator submitted that the Australian Fisheries Management Authority was in breach of its obligations to ensure the economic viability of its business and violated the legitimate expectation that it would exercise its powers in the light of Art 23 of the Universal Declaration of Human Rights.136 Deputy President McMahon referred to Teoh's case and the joint Statement 1995 and concluded without discussion that whatever substance there may have been in this submission, it had "been neutralised by the terms of this joint statement".137 In a fourth case, the criminal deportation case of Re Sui and Minister for Immigration and Ethnic Affairs,™* presidential member Purvis J referred to the earlier cases, but restricted his consideration of the legal effect of the Joint Statement 1995 to whether it "neutralised" the ground of review argued in the present case, namely the duty to take into account relevant considerations. 139 Since the Criminal Deportation Policy 1992 explicitly made Australia's international obligations a relevant consideration, and the Joint Statement 1995 only purported to destroy legitimate expectations, it failed to affect the availability of the relevant considerations ground of review. In any event in this case the AAT concluded that it should follow both the Criminal Deportation Policy 1992 and Art 3.1 of the Convention on the Rights of the Child. The policy required the interests of the children to be considered and all the Convention did was to make them a primary consideration. 140 The AAT avoided articulating whether this "up-grading" of the weight to be attributed to the interests of the children, as per the Convention, involved inconsistency with any other aspects of the Policy. The issue of the implications of Teoh's case for the relevant considerations ground of review in the light of the Criminal Deportation Policy 1992 was to be fully explored in an appeal from a later AAT decision.141 The fifth AAT case expresses the most robust disapproval of the tenor and " 6 Re PW Adams Pty Ltd and Australian Fisheries Management Authority (No 2) (1995) 38 ALD 435. Art 23 guarantees the right to work. '•'7 Ibid at 441. The Federal Court subsequently allowed an appeal from this decision on the ground that the policy applied by the AAT, embodied in the formula for determining quotas, failed to take into account the relevant consideration of the objective of economic efficiency: P W Adams Pty Ltd v. Australian Fisheries Management Authority (1995) 60 FCR 387. This decision was affirmed by the Full Federal Court: Australian Fisheries Management Authority v. P W Adams Pty Ltd (1995) 61 FCR 314. An application for judicial review of the later decision made by the A A T on rehearing the matter was dismissed: P W Adams Pty Ltd v. Australian Fisheries Management Authority (1998) 49 ALD 68. 138 (1996) 42 ALD 163. 119 Re Sui and Minister for Immigration and Ethnic Affairs (1996) 42 ALD 163. 140 Ibid at 182. H1 See discussion of Browne v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Wilcox J, 29 May 1998) infra, text accompanying notes 173180.

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intention of the Joint Statement 1995. In Re Yad Ram and Department of Immigration and Ethnic Affairs™2 the AAT reviewed a refusal to issue a spouse visa. The AAT directed that a spouse visa be issued to permit the return to Australia of the applicant's spouse, who was citizen of Fiji and the mother of the applicant's Australian-born child. Deputy President Gerber commented on the government's reaction to Teoh's case: "The majority decisions in Teoh gave rise to considerable disquiet within Government and, on 10 May 1995, the Minister for Foreign Affairs (the Hon Senator Evans) and the Attorney-General (the Hon Mr Lavarch) issued a joint statement which sought to turn Teoh into a jurisprudential curio, an artefact like Piltdown Man, of historic interest only, establishing nothing. Unlike the Piltdown skull, where someone (generally believed to have been a mischievous solicitor) merely filed down two of "Mr" Piltdown's molars, Messrs Evans and Lavarch were determined to extract all of Mr Teoh's teeth."143 Acknowledging that the Ministers sought to rely upon the dictum of Mason CJ and Deane J in Teoh's case for the legal effectiveness of the Joint Statement 1995, Deputy President Gerber doubted its effectiveness in removing the legitimate expectation. It was no doubt competent for the Commonwealth Parliament to render the signing of an international convention into a merely platitudinous ineffectual act, but "I am not convinced that this same competence can be found in the interstices of some kind of ministerial prerogative."144 Deputy President Gerber rejected in even stronger terms the view assumed in the Joint Statement 1995 that it in some way prevented any expectation which arose from forming a ground of judicial review: "The above ukase clearly was not intended to - nor could - curtail the judicial power of the courts to determine what constitutes a ground of appeal. Nor do I believe that the two Ministers (both lawyers) intended to interfere with the merits review process which vests in this Tribunal. Indeed, I am satisfied that I would be derelict in my duty if - post-Teoh - I refused to review an administrative decision which failed to give a consideration to the welfare of an Australia child which results in that child leaving Australia, to be brought up in foreign country where, on the evidence, it was destined to become a member of a social underclass with bleak prospects for its future. The Ministers' ukase, regarded as a political statement, is unexceptional, although possibly giving rise to a cynical view that Australia's attitude to signing international conventions is governed more by expediency - to be applied when it is convenient and to be ignored whenever it is not - than by any genuine desire to be bound. If, on the other hand, the Ministers intended their joint statement to have the legal consequence of removing from this Tribunal the right to consider the merits of a ministerial decision whenever it involves the future of an Australian child, then I find myself placed between Scylla and Charybdis - a rock on one side and a dangerous monster on the other, If I have chosen the 'rock' of the High Court in preference to the 142 143

Unreported, A A T , N o Q95/646, Deputy President P Gerber, 19 December 1995. 144 Ibid para 19. Ibid para 22.

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'monster' of two eminent Ministers telling me to take the opposite view, I am comforted in the knowledge that if I am wrong, I will be corrected on appeal."145 Not surprisingly, the Minister appealed. In the Federal Court Hill J held that the A AT had erred by treating Art 3.1 as a consideration it was bound to take into account rather than as a matter of discretion. This result is discussed in detail later.146 Of present importance is Hill J's obiter observation in Ram's case doubting the effectiveness of the Joint Statement 1995: "When, in Teoh, Mason CJ and Deane J refer to 'executive indications to the contrary', it may well be that their Honours intended to refer to statements made at the time the treaty was entered into, rather than to statements made years after the treaty came into force. When initially referring to executive comments, their Honours do so in the context of the act of ratification, an act that speaks both to the other parties to the Convention and to the people of Australia as well as to the world. I doubt their Honours contemplated a case where at the time of ratification, Australia had expressed to the world and to its people its intention to be bound by a treaty protecting the rights of children, but subsequently, one or more ministers made statements suggesting that they at least had decided otherwise."147 On account of the doubt expressed by Hill J in Ram's case, on later occasions the AAT has questioned the effectiveness of the Joint Statements, but in terms more measured than those of Deputy President Gerber. Thus in a sixth case, Re Omar and Minister for Immigration and Multicultural Affairs,1** where the AAT ultimately affirmed the deportation of the father of five children, Deputy President McDonald noted that in Ram's case Hill J had placed "some doubt" on the efficacy of the government's approach in the Joint Statements.™9 The Deputy President took the view that irrespective of the effect of the Joint Statements and the content of the Criminal Deportation Policy 1992, the content of Art 3.1 was the policy to be applied: "Regardless of the requirements of the Convention and of the effect of the Ministerial statement on the way in which the Convention is to be regarded in the administrative decision-making process and whether or not that statement because it is made at a point later in time than the Policy should be taken to displace the reference in the Policy to the requirement that Australia's obligations under international treaties should be taken into account, the separation as the result of deportation of a father or mother from his or her children should always be a primary consideration to any administrative decision-maker."150 In an appeal from this decision the Federal Court held that this passage did not show any error of law on the part of the AAT in its interpretation of '•" Ibid para 24.

147

I46

See infra, text accompanying notes 165-167.

Department of Immigration and Ethnic Affairs v. Ram (1996) 41 ALD 517 at 522-3. 148 Unreported, A A T , N o V97/768, Deputy President G L M c D o n a l d , 26 September 1997. 149 Ibid para 26. 150 Ibid para 26. See also R e Perth City Mission and Department of Immigration and Multicultural Affairs (unreported, ATT, No W97/044 and W96/465, Deputy President T E Barnctt, 29 June 1998) p 10.

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Teoh's case.151 Nor had the AAT erred in its application of the law to the facts of the case in concluding that the hardship of separation from the children was outweighed by the unacceptably high risk to the community, including the children, that may result from the deportee involving himself in serious drug related activity after his release: "In the light of the Tribunal's findings of fact, and the balancing process in which it engaged, it is impossible to say that its conclusion was not open to it. It carefully weighed the welfare of the children against the welfare of the community, and came to its conclusion. In doing so it noted that these two primary considerations are not mutually exclusive, since the 'community' includes the children. All that could be put on the hearing of the appeal is that the Tribunal should have accorded sufficient additional weight to the interests of the children to have produced a different result. That is not a contention available on an appeal, since it does not assert an error of law. It is plainly an invitation to the Court to review the merits of the Tribunal's decision."152 The Court was clearly alert to the fact that the AAT did not follow the Criminal Deportation Policy 1992 but rather the Convention on the Rights of the Child, which places a more exacting requirement upon decision-makers with regard to the interests of the child: "The Tribunal made no error of law in applying the policy. The policy is to be followed unless there is good reason not to do so: Re Drake (1979) 2 ALD at 645. There was no reason why the Policy should not have been followed. Although the Policy requires the Tribunal to take into consideration the fact that hardship would be caused to lawful residents of Australia who will be adversely affected by the deportation, the Tribunal did not consider the interests of the children under this head. It had regard to the more exacting requirements of the Convention. In my view the application has no prospect of establishing that it was 'contrary to law' for the Tribunal to have followed the Policy."153 The AAT's application of the Convention rather than the Policy was to the advantage of the deportee, but ultimately the balance went against him. The interests of the children would probably not be served by their continued close contact with him.154 151 Omar v. Department of Immigration and Multicultural Affairs (unreported, Federal Court, Sundberg J, 11 December 1997) pp 7, 8. 152 Ibid p 7. T h e Federal Court subsequently refused an application for a stay of the deportation decision indicating there w a s no error in the Court' s application of Teoh's case: Omar v Department of Immigration and Multicultural Affairs (unreported, Federal Court, Marshall J , 22 January 1998). This decision dismissing the stay was affirmed by the Full Federal Court in Omar v. Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Black CJ, N o r t h and Finkelstein JJ, 28 January 1998). 153 Omar v. Department of Immigration and Multicultural Affairs (unreported, Federal Court, Sundberg J, 11 December 1997) p 7. 154 T h e a p p r o a c h in R e Omar has been applied in subsequent cases by Deputy President M c D o n a l d : Re Smirnov and Minister for Immigration and Multicultural Affairs (unreported, A A T , N o V97/781, Deputy President G L M c D o n a l d , 19 December 1997) para 28.

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Infiltration of Human Rights: Beyond Teoh's Case In the aftermath of Teoh's case the A AT decided three cases which, through appeals to the Federal Court, suggest that Teoh's case is unaffected by the Joint Statements and is operating as the catalyst for infiltration of human rights into not only procedural fairness but also two other grounds of review. These are the duty to consider cases on the merits without inflexible application of policy, and the duty to take into account relevant considerations. In each case the administrative law principles have been developed within the crucible of the interaction between policy and human rights in the AAT's reasoning process.

A. Duty to Consider the Merits and not Apply Policy Inflexibly In the Vaitaiki litigation,15S Teoh's case provided the impetus for further development of the ground of review of failure to consider the merits by inflexible application of policy. The case concerned a deportation order made against a Tongan man who had been convicted of serious violent crimes, including sexual assaults. If he were deported, three of his six children would return to Tonga with his present partner and the other three would stay in Australia with his former wife. The AAT affirmed the deportation order. Although the AAT decision was made prior to the High Court's delivery of its judgment in Teoh's case, the respondent Minister consented to an order that the AAT's decision be set aside and the matter remitted to be re-heard in accordance with Teoh's case. The reason appears to be that the AAT had not even adverted to the status of the children as Australian citizens, which suggested that it had not made their interests a primary consideration. At the re-hearing, by the same AAT deputy president, Teoh's case was distinguished on the facts. In this case the deportee was not the main caregiver for the children who would be left in Australia, and any hardship to them was outweighed by the seriousness of his crime and the risk of reoffence. Since the consent order had not described any legal error, the deputy president regarded his reasons as "legally intact" and he relied on them again. He took the view that the legitimate expectation described in Teoh's case did not require that a decision be made in a particular way but went only to procedural fairness and this had now been afforded.156 In spite of further evidence presented at the second hearing relating to the children, the deputy president 155 Re Vaitaiki v. Minister for Immigration and Ethnic Affairs (unreported, AAT, No N95/705, Deputy President McMahon, 14 November 1995); Vaitaiki v Minister for Immigration and Ethnic Affairs (1998). 26 AAR 227. '•'* Re Vaitaiki v. Minister for Immigration and Ethnic Affairs (unreported, AAT, No N95/705, Deputy President McMahon, 14 November 1995) pp 2-3.

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decided that the balance of considerations was the same as at the last hearing. In a majority decision the Full Federal Court held that the AAT had failed to give proper, genuine and realistic consideration to the best interests of the children.157 The expression "proper, genuine and realistic" has developed in the jurisprudence of cases decided by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(2)(f) as a gloss on the well-established common law principle that an administrator must not apply a policy inflexibly without regard to the merits of the case.158 The Federal Court's formula is obviously a powerful one which tends to expand the scope for judicial intervention beyond the scope of the common law formulation of the principle. It provided one of the grounds of review in the full Federal Court decision in Teoh's case itself, where Black CJ held that the Immigration Review Panel had failed to give proper, genuine and realistic consideration to the relevant consideration of the break-up of the family.159 In the High Court in Teoh, this particular principle was not referred to, but Mason CJ and Deane J held that the Panel had not failed to take into account the relevant consideration of the family break-up.160 What is interesting here is that the stepping stone to application of the principle is failure to give notice as required by Teoh's case. Amongst the majority judges, Burchett J held that the first decision of the AAT clearly failed to comply with Teoh's case. Although the AAT was correct to say that Teoh's case was concerned with procedural fairness and did not create a substantive rule, the AAT erred in thinking that it did not have to regard the children's interests as a primary consideration in substance. There would be no need for the AAT to re-hear the matter in accordance with Teoh's case if its policy approach had been to treat the interests of the children as a primary consideration. If that had been its approach then it would have been consistent with Art 3.1 of the Convention on the Rights of the Child and there would have been no need to give notice and a hearing on a proposed departure from the Convention. However at the first hearing the AAT had failed to make it clear that the interests of the children were a primary consideration, and so its approach was inconsistent with the Convention, requiring notice to 157 Vaitaiki v. Minister for Immigration and Ethnic Affairs (1998) 26 A A R 2 2 7 For the first instance decision where Beaumont J held there w a s n o error of law and any misinterpretation of the C o n v e n t i o n w o u l d only a m o u n t to an error of fact, see Vaitaiki v. Minister Affairs (unreported, Federal Court, Beaumont J, 20 June for Immigration and Multicultural 1997). 158 Khan v. Minister for Immigration and Ethnic Affairs (unreported, Federal Court, G u m m o w J, 11 December 1987); Turner v. Minister for Immigration and Ethnic Affairs (1981) 35 ALR 3 8 8 at 392; Hindi v. Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 at 12-4; Lek v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 4 5 FCR 418; Flentjar v Repatriation Commission (1997) 48 A L D 1 at 5. 159 Teoh v. Minister for Immigration, Local Government and Ethnic Affairs (1994) 3 2 ALD 4 2 0 at 425-6. 160 Teoh's case supra, n.3 at 292-3 per M a s o n CJ and Deane J.

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be given. In its second decision the AAT had misunderstood Teoh's case by assuming that procedural fairness had been afforded to the applicant merely by holding a hearing. The AAT was required to give a hearing in which the interests of the children were treated as "very significant matters". 161 To do this, the AAT had to look not just at whether or not the children would follow their father but at possible disadvantages for them as individuals if they stayed or if they went. On Branson J's reading of the AAT's reasons, the AAT was attempting to act in conformity with the Convention. But it failed to do so by assuming that all was well for the three younger children if they were able to accompany their father to Tonga. This was not enough to comply with the Convention. The AAT must consider whether they would be worse off starting an entirely new life in a country they had never visited before, losing the benefits of being Australian citizens. Similarly it was insufficient for the AAT to conclude that the older children ought to stay with their mother in Australia if their father were deported. The AAT ought to have considered whether they would be worse off on account of the serious restrictions on contact with their father and half-siblings. While in the minority in Vaitaiki, Whitlam J agreed with the proposition that absent notice and an opportunity to address the AAT on the issue, the AAT should treat the best interests of the children as a primary consideration. Whitlam J was also prepared to draw this principle either from the ratification of the Convention or from the broader foundational principle of Gaudron J in Teoh's case that children as Australian citizens are entitled to have such a legitimate expectation which grounds the duty of the AAT. Whitlam J dissented with regard to the application of this principle to the facts. He held that the AAT in its reasons had taken into account the children's best interests as a relevant consideration, and this ground of review should not be conflated with that of procedural fairness.162 Thus, according to the majority reasoning in Vaitaiki, the effect of Teoh's case is that if the AAT does not give notice to the contrary, then it has a duty to make the interests of the children a primary consideration. In performing that duty the AAT must give genuine, proper and realistic consideration to the best interests of the children, not make a mere gesture towards those interests. Effectively, in the absence of giving notice, the AAT is bound by Art 3.1 of the Convention. Indeed Branson J says that the AAT was bound to give consideration to the best interests of the children, referring to the leading 161

Vaitaiki v. Minister for Immigration and Ethnic Affairs (1998) 26 A A R 227 at 234. Ibid at 2 3 2 , 236. Whitlam J's differing conclusion stems from his view that the protection and support with which the A A T should be concerned in making those interests a primary consideration relates to that provided by the family rather than that provided by the Australian government. T h i s d o e s not accord with A A T decisions where the superior medical and government support available in Australia has, in terms of Teoh's case, tended to s w a y the A A T to conclude that deportation orders should be set aside. 162

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High Court authority on failure to take into account relevant considerations. 163 The Convention does not require that the best interests of the child be the only primary consideration. Other primary considerations may compete with it. However, Teoh's case triggered a slide from procedural fairness into the relevant considerations ground of review. Although the duty to give a hearing is not equivalent to a duty to take into account Art 3.1 as a relevant consideration, a failure to give notice of the departure from Art 3.1 converts the duty into one of taking into account Art 3.1 as a relevant consideration. Adding to this the requirement to give genuine, proper and realistic consideration to the best interests of the children, the proper approach of the AAT appears to give substantive effect to Art 3.1. B. Relevant Considerations

Revisited

Relationship Between Procedural Fairness and Relevant Considerations Although receiving only brief discussion by the High Court in that case, it is accepted that Kioa v. West is authority that non-incorporated international conventions are not relevant considerations which tribunals are bound to take into account. 164 International human rights norms may, however, be taken into account as a matter of discretion. This distinction between a duty and a discretion to take into account international human rights norms was re-affirmed in Ram's case, previously discussed in relation to Deputy President Gerber's criticism of the ukase of the Joint Statement 1995. Hill J held that in forming a conclusion as to the good character of the mother who sought to rejoin her husband and child in Australia, the AAT erred in believing it was bound to take into account the future of the child as a primary consideration.165 Clearly the interests of the child were a relevant consideration. Further, as a matter of discretion the primary decision-maker or the AAT on review was entitled to treat the interests of the child as a primary consideration.166 However, Hill J held that neither Teoh's case nor the common law required that the AAT make the interests of the child a primary consideration. Hill J pointed out that Mason CJ and Deane J in Teoh's case did not say that a decision-maker is bound to treat the interests of the child as a primary matter but only that before a decision-maker embarks upon a contrary course, a person affected must be 163

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. See Vaitaiki v. Minister for Immigration and Ethnic Affairs (1998) 26 AAR 227 a t 251. Vaitaiki has since been applied by the A A T in Pert City Mission and Department of Immigration and Multicultural Affairs (unreported, A T T , No W97/044 and W96/465, Deputy Pesident T E Barnett, 29 J u n e 1998). 164 See discussion supra a t text accompanying notes 45-49. 165 Department of Immigration and Ethnic Affairs v. Ram (1996) 41 ALD 517. 166

/Wat523.

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given notice and an opportunity to be heard. Hill J noted that according to Gaudron J in Teoh's case at common law the welfare of the child is always a primary consideration. This would make the terms of the Convention always a relevant consideration, a view which did not have the support of the other judges in the majority in Teoh's case.167 In Ram's case Hill J also affirms the distinction made by the majority judges in Teoh's case, between treating Art 3.1 as a consideration which should not be departed from without giving the immigrant a hearing and treating Art 3.1 of the Convention as a principle which must be complied with in a substantive sense. Like the majority in Teoh's case, Hill J rejected the notion that the AAT was bound to give substantive force to Art 3.1. This judgment with respect misses the subtlety of the position in which the AAT is placed and which was accepted by the Full Court in Vaitaiki's case. If the AAT decides not to give notice that it is departing from Art 3.1 of the Convention, then to proceed lawfully it must decide in accordance with Art 3.1. To do otherwise is to deny procedural fairness in terms of Teoh's case. In this context procedural fairness and the relevant considerations ground of review are intertwined. Once the AAT omits to give notice it is bound to take into account Art 3.1. It has also performed its function of considering the propriety of the government policy and decided that it will apply Art 3.1 in a substantive sense irrespective of whether it is inconsistent with the government's Criminal Deportation Policy 1992. If Art 3.1 and the Policy are indeed inconsistent, then in terms of Haoucher's case the AAT should give notice to the applicant and Minister that it proposes to depart from the Criminal Deportation Policy. However, the AAT does not do so. It departs from the Criminal Deportation Policy 1992 silently. References in Policies to International Obligations The reference made to Australia's international obligations in the Criminal Deportation Policy 1983 recurred in the Criminal Deportation Policy 1992. As already noted, following Teoh's case the government failed to excise the reference. It remained in place, in awkward co-existence with the Joint Statement 1997. The AAT has referred to the fact that the Criminal Deportation Policy 1992 contains a statement that Australia's obligations under international treaties should be taken into account. 168 In the wake of Teoh's case, the AAT tended to refer to this sub-paragraph in the Policy in the same breath as Teoh's case, and then reach the conclusion that Teoh's case is authority that the Convention on the Rights of the Child "requires" the AAT to take into account the best interests of any children concerned as a primary 167

Ibid at 522. For example, Omar v. Minister for Immigration and Multicultural Affairs (unreported, AAT, No V97/768, Deputy President G L McDonald, 26 September 1997) para 26; Re Sui and Minister for Immigration and Ethnic Affairs (1996) 42 ALD 163. 168

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consideration.169 In Re Sui, already discussed,170 the AAT took the view that the Joint Statement 1995 did not prevent the AAT from taking into account the Convention, and that Art 3.1 was consistent with the Criminal Deportation Policy 1992. As the issue of the legal effect of the Joint Statements lurked in the wings of AAT and Federal Court decisions, the reference in the Policy to international obligations provided a new point of departure for finding answers. In Re Browne and Minister for Immigration and Multicultural Affairs171 a New Zealand citizen sought an extension of time for lodging an application for review by the AAT of the order for his deportation. He was serving a sentence of five and a half years, following his conviction for armed robbery and possession of a shortened firearm. The case appeared to have little merit and the AAT refused the extension of time. Since the deportation order was made and while he was on day release from prison to play rugby with the Malabar Sharks, he had conceived a child. If he were deported the mother was prepared to accompany him with the child, but the father of her elder child would probably resist her taking that child with her as well. If the deportation order were not revoked, it was likely that one of the two children would be separated from one of the parents. The AAT's reasons for decision contained a brief reference to Teoh's case, cited as part of the respondent Minister's argument that the interests of the deportee's child was a primary consideration but not the primary consideration in the balancing of discretionary factors.172 The AAT took into account that Browne's offences were serious, the relationship had been formed after the deportation liability arose, and that he had been in prison throughout the period since the child's birth, without playing any significant role in his upbringing. Browne appealed, arguing that the AAT had failed to offer him an opportunity to address it on a proposed departure from the principles in the Convention on the Rights of the Child with regard to the interests of the two 169 Re Towers and Department of Immigration and Multicultural Affairs (unreported, AAT, No W98/31, Deputy President T E Barnett, 21 May 1998) para 38, where the AAT set aside the decision and remitted it with a direction that the applicant not be deported on the basis that he had taken positive steps to address the problem of his driving under the influence of alcohol. Here Teoh's case was not directly in point because the applicant was single with no children and his nieces and nephews would not suffer hardship by his deportation; Re Alvarado and Department of Immigration and Multicultural Affairs (unreported, AAT, No W97/239, Deputy President T E Barnett, 31 March 1998) para 22, where the relationship with two step-children was only for three years, and outweighed by the seriousness of the offences. The applicant had been convicted of indecent dealing with a child under his care, had admitted but been acquitted of sexual penetration of the same child, and had engaged in domestic violence. 170 Re Sui and Minister for Immigration and Ethnic Affairs (1996) 42 ALD 163. See supra, text accompanying notes 138-141. 171 Unreported, AAT, No N97/806, Deputy President D Chappell, 21 November 1997.

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children and that it had failed to give proper, genuine and realistic consideration to the merits of their interests. Relying partly on Ram's case, counsel for Browne submitted that the Joint Statement 1997 was ineffective to exclude a legitimate expectation that the AAT would act in accordance with the Convention. The Federal Court set aside the AAT's decision.173 Wilcox J considered Teoh's case and the Joint Statements and concluded that the AAT had erred by failing to take into account Art 3.1 of the Convention, which was a relevant consideration it was bound to take into account.174 In arriving at this view Wilcox J first observed that the Joint Statement 1997 was less likely to be effective than the Joint Statement 1995 but found it unnecessary to reach a conclusion on whether either Joint Statement precluded the generation of a legitimate expectation. Wilcox J concluded instead that the Criminal Deportation Policy 1992, which was not applicable in the circumstances of Teoh's case,175 in any event imposed a substantive obligation upon decisionmakers in cases affecting children to apply the Convention. The general reference made in the Criminal Deportation Policy 1992 to Australia's obligations under international treaties it has ratified, as one relevant consideration to be taken into account, must be taken to include a reference to the obligations under the Convention. Since the Criminal Deportation Policy 1992 was one relevant consideration which the AAT was bound to take into account, so too was the Convention. This included Art 3.1 of the Convention which made the best interests of the child affected a primary consideration. The AAT had referred to the child's interests but failed to grapple with its obligation to make them a primary consideration. The AAT had therefore failed to take into account a relevant consideration it was bound to take into account. Wilcox J made it clear that the AAT's obligation, via the Criminal Deportation Policy 1992, was not necessarily always to make a decision most beneficial to the interests of affected children, but at least to ensure that those 17

' Browne v. Minister for Immigration and Multicultural Affairs (1998) 2 7 A A R 3 5 3 . W i l c o x J also drew attention t o Art 9.1 o f the Convention o n the Rights o f the Child. T h i s requires state parties t o ensure that a child is not separated from his or her parents against their will except w h e n c o m p e t e n t authorities subject t o judicial review determine the separation is necessary for the best interests o f the child. Examples given in Art 9.1 are cases of abuse o r neglect or in cases o f separation o f parents and a decision h a s t o be m a d e as t o the child's place o f residence. A second ground o f review w a s the A A T ' s error in regarding the applicant's reliance upon the relationship with the mother as an abuse o f the process o f invoking the entitlement t o seek an extension of time. 175 W i l c o x J said that probably the Criminal Deportation Policy 1992 w a s not considered in Teoh's case because Teoh's case concerned a decision of the old Immigration Review Panel made on 25 July 1991, before it was issued: Browne v. Minister for Immigration and Multicultural Affairs (1998) 27 AAR 353 at 369. However, Teoh's case concerned review of a refusal to grant permanent resident status rather than a criminal deportation decision. The applicable policy was not any of the Criminal Deportation Policies but the character requirements in the "Integrated Departmental Instructions Manual, Grant of Resident Status". 174

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interests are "balanced equitably" against the factors that tend to support a contrary decision.176 But what of the contrary indications in the Criminal Deportation Policy 1992, especially the paragraph indicating that less weight should be given to the welfare of family members than to the need to protect Australian society? Wilcox J disposed of the confusing contrary guidance given in this paragraph by concluding that it conveyed only a very general statement. It could not have been intended to reduce the obligation in the later paragraph listing international treaties as relevant factors so as to make Art 3.1 of the Convention on the Rights of the Child only a subsidiary obligation.177 If there was a tension between these different paragraphs of the guidelines, Wilcox J said it should not be resolved "by allowing protection of Australian society automatically to trump the best interests of the child".178 This was also true of resolution of tension between the paragraph requiring social ties formed after the deportation liability arose to be discounted and the paragraph requiring international obligations to be taken into account. Ultimately the AAT might have the difficult task of making a decision where two primary considerations, one the risk of recidivism and the other the best interests of the children, point in opposite directions. Here the AAT must make further investigations of the circumstances of the case in order to achieve a better quantification of the amount of weight to attribute to each of these primary considerations.179 This is an extraordinary conclusion. It appears to undermine the principle established in Kioa v West that unincorporated conventions are not relevant considerations a tribunal is bound to take into account. It takes the possibilities for infiltration, along with the likelihood of accusations of "backdoor incorporation" of international treaties, to heady new heights. In obiter Wilcox J held that in the absence of the Criminal Deportation Policy 1992 the AAT itself was in a position to make a policy statement so as to defeat any legitimate expectations.180 It appears Wilcox J's difficulties with the joint Statements relate to the source of power to make the policy. While not explicit his approach may be that the AAT, not the Minister for Foreign Affairs and Trade and the Attorney-General, has the discretionary power with regard to deportation, standing in the shoes of the Minister for Immigration and Multicultural Affairs. Hence it is the AAT, exercising its own independent discretion, which must form a policy adopting or rejecting the principles in the Convention. This may be why Wilcox J found it unnecessary to consider the legal effect of the Joint Statements. Only a statement by the Minister for Immigration and Multicultural Affairs, probably by way of amendment to the Criminal Deportation Policy 1992, could destroy the legitimate expectation generated 176

Browne v. Minister for Immigration

371.

177

Ibid.

178

Ibid.

m

Ibid.

and Multicultural IS0

Ibid 369.

Affairs (1998) 27 AAR 353 at

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by Australia's ratification of international instruments applicable to decisions made by the AAT. Similarly only amendment of the Policy to remove reference to international obligations as a relevant factor in the exercise of the power would render those obligations no longer relevant. This means that the executive branch of government, through the Minister for Trade and Foreign Affairs can engage in conduct which generates a legitimate expectation affecting a wide range of exercises of statutory discretionary powers. Australia's withdrawal from a convention would no doubt inactivate the legitimate expectation. This apart, only the portfolio minister for each of those statutory powers is in a position to destroy the legitimate expectation. The most effective way to do this is by amendment of individual policies.

Conclusion At a time when the United Kingdom has just incorporated the European Convention on Human Rights, Australia is on the brink of enacting legislation denying that its ratification of international human rights conventions gives people in Australia any expectation that their human rights will be respected. The executive branch of Australian government which controls the legislature has strengthened its distrust of human rights, while the judicial branch has become more relaxed about permitting the infiltration of international human rights into administrative law. In the aftermath of Teoh's case and the associated government reaction, the position of the AAT as an independent merits review tribunal with a responsibility to act lawfully, and to consider the propriety of government policy, is not an enviable one. While the AAT's criticism in Re Ram of the so-called ukase may have constituted a performance of the latter duty, the AAT has remained silent with regard to its departure from the Criminal Deportation Policy 1992 as a result of its application of Teoh's case. Because of the AAT's role in conducting merits review, compliance with Teoh's case produces a strong tendency for it to provide the substantive protection of compliance with the principles enshrined in the unincorporated convention in place of the applicable government policy. If the AAT were to do otherwise it would be required to give notice to the applicant of its proposed departure from the convention. In this context of decision-making by a tribunal with a power to review and depart from government policy, Teoh's case has achieved much more even than has been envisaged by critics of the decision. Moreover, in the light of the Federal Court's approach to the legal effect of the joint Statements and its discovery of further bases for infiltration which are not addressed by the Anti-Teoh Bill 1997, the impetus provided by Teoh's case for protection of human rights by merits review tribunals in Australia is clearly not yet spent.

17 The Effect of a Constitutionally Protected Right to Just Administrative Action ROSEMARY LYSTER Introduction

A

T a time when constitutional and administrative justice systems are under review, it is worthwhile to reflect on the effect of the just administrative actions clause in the institution of the Republic of South Africa.1 The significance of constitutional protection is that all organs of government are amenable to constitutional review. If a Parliament passes legislation which infringes the right, a high court has the power to strike it down. Parliament is no longer sovereign.2 Likewise, all executive and administrative action can be challenged for breach of a constitutionally protected right. Importantly, the Bill of Rights also constrains the judiciary, which must interpret and enforce the rights contained in the constitution. Where a judiciary has been restrained in protecting common law rights to administrative justice, this feature of constitutional protection is crucial. Although the constitution, like legislation, is open still to judicial interpretation, judges are required to interpret the rights consistently with "the values that underlie an open and democratic society based on human dignity, equality and freedom".3 1 I would like to thank Hugh Corder, Professor of Law, University of Cape Town, South Africa, for his comments on an earlier draft of this paper. 2 In some jurisdictions, like Canada and South Africa, legislation which interferes with fundamental rights may pass constitutional muster provided that the provisions of a limitation clause are satisfied. Section 38 of the Constitution of the Republic of South Africa provides that the rights may be limited "only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom." A number of factors, including proportionality, must be taken into account by the court when assessing the limitation. 3 For example, section 39 of the Constitution of South Africa.

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During the apartheid era, South African administrative law became impoverished not only by legislative and executive action, but by a restrained judiciary, which, with notable exceptions, was described as being more "executive-minded than the executive".4 The new Constitution has freed South Africa from those constraints and catapulted the country into a "new administrative law" era. For the first time in South African legal history, the Constitution confers four rights which are of particular importance to administrative law: standing to enforce constitutionally protected rights;5 a right to have disputes settled by a court or other independent forum, like an administrative tribunal;6 a right of access to information held by government;7 and a right to administrative justice.8 The Constitution also provides for the establishment of State institutions to support constitutional democracy, for example, an office of the Public Protector, known in other countries as an Ombudsman. 9 The Public Protector will investigate matters and protect the public against government maladministration or improper conduct.10 In addition, a Human Rights Commission11 and Commission for Gender Equality12 are provided for by the Constitution. These Commissions may exercise the powers vested in them to assist individuals who believe that administrative action has infringed their human rights or right to gender equality. The "new administrative law" should serve to advance the democratic virtues of rational decision-making; prevent the arbitrary exercise of public power; ensure openness and fairness which are essential to the legitimacy of, and public confidence in, the administration; and promote public participation for the purpose of informing government decision-making.

The Constitutional Provision In discussing the right to just administrative action in the South African Constitution, it is necessary to refer to the provisions in both the interim and the final constitutions. The reason for this is that the provision in the final Constitution is not self-executing. The Parliament is required, in terms of this provision, to enact legislation to achieve administrative justice. By contrast, the provision in the interim Constitution is self executing. A transitional provision contained in the final Constitution saves the provisions of the interim Constitution, until the legislation envisaged in section 33(3) is adopted. There have been a number of interpretations of the consequences if such legislation is not adopted. Asimow13 believes that if legislation is not 4 For example, S v Makwanyane 1995 (6) BCLR 665 (CC) at 725-6 and Shabalala v Attorney-General of the Transvaal 1995 (12) BCLR 1593 (CC) at 1605 D-F. 6 7 •* Section 38. Section 34. Section 32. * Section 33. 9 10 u Section 181. See also ss 182 and 183. " Section 184. Section 187. 13 M Asimow, "Toward a South African Administrative Justice Act" 3 Michigan Journal

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enacted, section 33(3) falls away and the rights contained in sections 33(1) and (2) become free-standing. Others interpret the transitional provision to mean that if no legislation is enacted the provisions of section 24 remain in effect indefinitely. Some believe that sections 33(1) and (2) have immediate effect, and that section 33(3) requires legislation that will give the right practical content. Another view is that if no legislation is enacted both provisions will fall away. This view is untenable because a legislature, by its inaction, cannot frustrate the democratic goals protected by the Constitution.

Interim

Constitution

Section 24 of the interim Constitution provides: "Every person shall have the right to — (a) lawful administrative action where any of his or her rights or interests is affected or threatened; (b) procedurally fair administrative action where any of his or her rights or legitimate expectations is affected or threatened; (c) be furnished with reasons in writing for administrative action which affects any of his or her rights or interests unless the reasons for such action have been made public; and (d) administrative action which is justifiable in relation to the reasons given for it where any of his or her rights is affected or threatened."

Final Constitution Section 33 of the final Constitution provides: "(1) Everyone has the right to administrative action that is lawful, reasonable, and procedurally fair. (2) Everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. (3) National legislation must be enacted to give effect to these rights, and must(a) provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; (b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and (c) promote an efficient administration."

of Race & Law 1; see also M Asimow, "Administrative Law Under South Africa's Final Constitution: The Need for an Administrative Justice Act" (1996) 113 South African Law Journal 613, M Asimow "Administrative Law Under South Africa's Interim Constitution" (1996) American Journal of Comparative Law (44(3)) 393.

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The Need for Constitutional Protection: South African Administrative Law in Decay Just Administrative Action: A New Role for Judges? The significance of the new era of constitutionalism for the judicial function was perceived by Froneman J in Matiso and others v Commanding Officer, Port Elizabeth Prison, & others.^4 In that case he stated that: "The values and principles contained in the Constitution are, and could only be, formulated and expressed in wide and general terms, because they are to be of general application. In terms of the Constitution the courts bear the responsibility of giving specific content to those values and principles in any given situation. In doing so, judges will invariably "create" law. For those steeped in the tradition of parliamentary sovereignty, the notion of judges creating law, and not merely interpreting and applying the law, is an uncomfortable one. Whether that traditional view was ever correct is debatable, but the danger exists that it will inhibit judges from doing what they are called upon to do in terms of the Constitution. This does not mean that judges should now suddenly enter into an orgy of judicial law-making, but that they should recognise that their function of judicial review, based on the supremacy of the Constitution, should not be hidden under the guise of simply seeking and giving expression to the will of the majority in Parliament. Judicial review has a different function, but it is still subject to important constraints. And recognition of those constraints is the best guarantee of shield against criticism that such a system of judicial review is essentially undemocratic."' 5

A Political Role for Judges? Accepting that judicial interpretation is inextricably linked to the personal political theory of the presiding judge, Davis16 cautions against encouraging the judiciary in South Africa to play too great a political role. He believes that the judicialisation of politics is a "dangerous enterprise for it curtails democratic activity by stifling the voices of ordinary people and hands over the challenge of transformation to an institution that is often a prisoner of the very ideology and political structure one seeks to transform." 17 Davis would accept a more interventionist judiciary if there "were a set of coherent legal principles to be found, rather than created by a judge." But he believes that in a society where political activity is free, and a variety of interest groups are active, it is impossible to construct a coherent moral system of politics and principles. He believes that rather than searching for coherence which is "neat, 14

1994(4)SA592(SE). Ibid at 597-8. '* D Davis "Integrity and Ideology: Towards a Critical Theory of Judicial Function" (1995) WISouth African Law Journal 104. 15

17

Ibid, p 129.

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orderly, and understandable in the image of those who rule, South Africa should examine the dominant values of the legal system, its quest for coherence and the nature and justification of it. In this way, instead of creating a non-racial autocracy, "law might assist in the transformation to a pluralist democracy."18 A Different Role for Judges Despite Davis's caution, it is clear that judges in South Africa have a new and different role to play in reviewing administrative action. In enforcing the rights protected by the administrative justice clause, the courts will need to free the principles of administrative law from the corruptions they suffered during the apartheid era. By testing administrative action for conformity with the Constitution, they will be developing and giving content to the rights contained in s 24 of the interim Constitution and s 33 of the final Constitution. The courts' judicial review function will go beyond this, however. With the constitutionalisation of human rights and fundamental freedoms in South Africa, the courts will be involved, increasingly, in a broad range of socialpolicy issues.19 Thus administrative action will be challenged not only where it violates the administrative justice clause but also where other rights and liberties are infringed. It is difficult to distinguish at this point between constitutional and administrative law, because presumably the administrative action will have been authorised by legislation. It may be that the affected individual will apply to the Constitutional Court to strike down the legislation as unconstitutional. On the other hand, as Mr Justice Hlophe has noted, the legislature is often unwilling to deal with pressing, controversial social issues. So it might phrase legislation in very broad terms, giving a wide discretion to the executive to implement a policy. Here, although the legislation itself passes constitutional muster, the administrative action taken in terms of the Act, might not. The judiciary then has no option but to deal with policy issues and to engage in judicial law making. Different Approaches in Different Contexts? As Davis has argued, it is impossible to find a coherent theory for judicial review. But to understand the outcome of a particular application for judicial review it is crucial to have some sense of alternative theories of judicial review, rather than accepting the rhetoric of the traditional Diceyan approach. Indeed, if one accepts the importance of the political, and the 18

Ibid, p 130. J Hlophe "The Role of Judges in a Transformed South Africa—Problems, Challenges and Prospects" (1995) 112 South African Law Journal 22 at 27. 19

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significance of interpretation, the way is open for the development of a critical legal theory. So in some instances, one might find that the courts will adopt a "green light"20 approach as they support administrative action which implements important socio-economic programmes. Here they will show a deference to administrative action which is implementing the will of the democratically elected government. Deference may mean "no review at all." 21 Where executive action deprives an individual of fundamental civil and political liberties, the court might adopt a liberal watchdog approach. Yet, in another instance, rather than protect the individual or defer to the majority, the court may adopt a "new public law" 22 approach and mediate between the individual and the community. This model may be appropriate, for example, where administrative action is taken in terms of legislation which limits the property rights protected by the Constitution. The court, in resolving the conflict, will need to mediate between the needs of the affected individual and the community that will benefit from the action. As the following discussion will show, judges in South Africa have approached their review function with a renewed vigour, determined to reinstate the grounds of review and to accord the full protection of the constitutional provision. In this sense, it might be argued that the courts are adopting a traditional or "watchdog" approach to judicial review.

What is Administrative Action? Before discussing the discrete grounds of review in the just administrative action clause, it is instructive to have regard to what the courts regard as "administrative action". Failure to persuade the courts that conduct is "administrative action" will result in a lack of redress under the constitutional provision. It is clear that all executive and administrative acts will be caught by this provision. However, there have been some interesting judgments which have either included, or excluded, other governmental activity. In Claude Neon Ltd v. City Council of Germiston and Another23 and in GNH Office Automation CC v. Provincial Tender Board and Others 24 it was held that when government functionaries implement tendering processes they perform a purely administrative act. The attitude of the South African courts in this regard may be distinguished from that of courts in other jurisdictions 20 O n this metaphor see C H a r l o w and R Rawlings Law and Administration (London, 2nd ed. 1997) at 29-90. 21 D Beanie "The Rule (and Role) of Law in A N e w South Africa: Some Lessons from Abroad" (1992) 109 South African Law journal 408 at 420. 22 See W N Eskridge Jr and G Peller "The N e w Public Law Movement: M o d e r a t i o n as a Postmodern Cultural Form" 89 Mich L Rev 707.

" 1995(5)BCLR554(W). 24 1996(9)BCLR 1144 (Tk).

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which have held that the contracting activities of government are not reviewable. 25 There had been some discussion in South Africa as to whether the prerogative powers of the State President had survived the advent of the new Constitution. However, in Hugo v. State President of the Republic of South Africa26 it was held that all powers and functions of the President, including all common law prerogatives, are specifically enumerated in the Constitution. As such, they must all be performed strictly in accordance with its provisions. Where local authorities exercise rights of ownership, however, there is no administrative action. In Uitenhage Local Transitional Council v. Zenza and Others17 the council had evicted illegal occupiers from land owned by it which had been set aside for housing development. This, in the view of the court, did not amount to an "administrative" decision. It seems that the South African courts have adopted an activist approach towards expanding the kind of action which it will regard as "administrative", and subject to constitutional scrutiny.

The Right to Just Administrative Action Lawful Administrative Action The constitutionalisation of a right to lawful administrative action impacts on all branches of government. It disallows legislation which infringes the right, subject only to the limitation clause. It ensures that executive and administrative action is consistent with the provision, and places an obligation on the South African courts to redefine the grounds of judicial review. To this end, the grounds of review, which were severely undermined during the apartheid era, will need to be reinstated. To better appreciate the protection provided by the constitutional provisions, it is necessary to understand the inroads that were made into administrative justice, at common law, during the apartheid years. Abandonment of the ultra vires doctrine In Staatspresident v. United Democratic Front,29 the Appellate Division of the 25 See, for e x a m p l e , General Newspapers Pty Ltd v Telstra Corporation (1993) 117 ALR 6 2 9 where the full court of the Australian Federal Court declined to review the contractual activities of a government business enterprise. See, a l s o , R v Lord Chancellor, ex parte Hibbit & Saunders (A firm), The limes, 12 M a r c h 1993, where the Divisional Court held that the Lord Chancellor's decision to award a contract for shorthand reporting services lacked any public law element and that it w a s entirely in the sphere of commercial contracting. 26 27 1996 (6) BCLR 876 (D). 1997 (8) BCLR 1115 (SE). 28 1988 (4) SA 830 (A). See also Laurence Boulle, Bede Harris and Cor Hoexter Constitutional and Administrative Law (Cape T o w n , 1989) 263.

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Supreme Court held that South African courts have no need of a comprehensive principle ("allesomvattende grondreel") to explain their review jurisdiction. According to Rabie ACJ, there was no reason why common-law rules of good administration have to be related to the intention of the legislature at all; legislative intention only becomes relevant when a particular rule or standard has expressly been excluded.29 Though this reasoning seemed to flow logically from the recognition that the ultra vires doctrine is a highly strained legal fiction, it was in fact a much more startling claim. It was tantamount to a rejection of the accepted constitutional relationship between the legislature and the judiciary. Although there is now a vigorous debate amongst English administrative lawyers about the utility and validity of the ultra vires doctrine, the VDF decision was alarming for many South African administrative lawyers. They believed that it would be fatal for the courts to do away with the ultra vires doctrine, for they would be left without a constitutional justification for their intervention. Indeed, Christopher Forsyth30 article, relied on the UDF case to argue that the practical consequence of severing the link between judicial review and Parliamentary intention is the evisceration of judicial review. The effect of the constitutional provision is that the courts do not need to look beyond the Bill of Rights to justify their intervention. Certainly they no longer need to rely on the ultra vires doctrine to protect affected individuals. They rely rather on a duty to interpret and protect the rights guaranteed in the Constitution. Jurisdictional facts The restraint of the judiciary was evident in review for errors of jurisdictional fact. Following the English case, Liversidge v. Anderson,31 the South African courts vacillated for a number of years between subjective and objective interpretations of "reason to believe" clauses. In a number of security cases,32 it was decided that the phrase warranted a subjective determination. The most notorious of these was probably Mbane v. Minister of Police33 where the court held that it could not inquire into the question whether a commissioned officer, who caused the arrest and detention of the applicant, had reason to believe that Mbane had committed or intended to commit an offence. The court's reasoning was remarkably similar to that of the majority in Liversidge, causing one commentator to title a case commentary "Liversidge in Decay." 33 29

1982 (1) SA 223 (Tk). Ibid at 870 H-J and 872 E.

30 C Forsyth "Of Fig Leaves and Fairy Tales: T h e Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review" (1996) 55 CLJ 122; P Craig "Ultra Vires and the Foundations of Judicial Review" (1998) 57 CLJ 63. 31 [1942] A C 206 (HL). 32 Mnyatti v Minister of Justice 1980 (4) SA 528 (Tk), Mbane v Minister of Police 1982 (1) SA 223 (Tk), Matroos v Coetzee 1985 (3) SA 474 (SE).

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This line of reasoning came to an end, however, in Minister of Law and Order v. Hurley.3* A pacifist had been arrested and detained for the purposes of interrogation under the notorious section 29 of the Internal Security Act 1982. That section provided that a police officer above a certain rank had to have "reason to believe" that a person so arrested committed or intended to commit an offence, or that the person was withholding information relating to the commission of such an offence. The Appellate Division held that the Minister bore the onus of showing that there were objective grounds which gave rise to the officer's belief. Unlawful sub-delegation In addition to abandoning the ultra vires doctrine, the case of Staatspresident v. United Democratic Front35 challenged the traditional approach of South African courts in regard to unlawful sub-delegation. This case concerned the validity of Emergency regulations made by the State President; in particular, regulations making it an offence to publish or even to possess a "subversive statement". In one of the regulations, the State President had purported to sub-delegate to the Commissioner of Police the power to determine what acts and omissions amounted to a "subversive statement" for these purposes. Since the sub-delegated power was unaccompanied by any guidelines for its exercise, the court a quo36 found that there had been an unlawful delegation of a legislative function. In the Appellate Division, however, Rabie ACJ came to the surprising conclusion that the sub-delegated power was neither legislative nor discretionary. In his view, the process of identification required of the Commissioner was quite mechanical.37 Grosskopf JA, who found that the power was legislative, agreed with Rabie ACJ that the power was non-discretionary, since the Commissioner would merely have to identify acts and omissions which the State President had already decided were subversive.38 Irrelevant considerations and improper purpose In Visagie v. State President39 the appellant, a minister of religion, had been detained for two months when the Minister of Law and Order authorised his release subject to the conditions that he remain within a particular magisterial district, and refrain from participating in the activities of certain organisations, from preparing printed matter for public dissemination, and from attending any meetings at which certain subjects were discussed. 34

1986 (3) SA 568 (A). 1988 (4) SA 830 (A); see Boulle, Harris and Hoexter, above n.29. n 28 at305. 1987(3)SA296(N). 37 Staatspresident v United Democratic Front 1988 (4) SA 830 (a) at 845 per Rabie ACJ. 38 See the judgment of Grosskopf J A at 8741-J. 39 1989 (3) SA 859 (A); see also J Grogan "Restricting the power to restrict" (1990) 6 South African Journal on Human Rights 431. 35 36

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Although the Appellate Division struck down the decision of the Minister on various grounds, it rejected the claim that the Minister had taken into account irrelevant considerations in imposing conditions upon the appellant's release. Hoexter JA dismissed the entire "extraneous factors argument" as "fatally flawed"40 holding that "[a]s long as the Minister bona fide considers a fact to be relevant no Court may disturb his exercise of discretion simply because the court itself regards that fact as being unhelpful or indeed entirely irrelevant." 41 Ouster It has been argued that the right to lawful administrative action entails "at a minimum (that) an Act of Parliament cannot oust a court's constitutional jurisdiction and deprive the courts of their review function to ensure the lawfulness of administrative action."42 Ousters were relied upon particularly heavily by the authors of security and immigration legislation, though they appear in many other contexts too. A typical example was the clause appearing in s 29(6) of the Internal Security Act 1982: "No court of law shall have jurisdiction to pronounce on any action taken in terms of this section, or to order the release of any person detained in terms of the provisions of this section." Clauses like these had devastating consequences for detainees who could not approach the courts for review. On a number of occasions the Appellate Division decided that ouster clauses were effective in preventing judicial review.43 In Minister of Law and Order v. Hurley44, however, the Appellate Division accepted an important line of reasoning to minimise the effect of ouster clauses.

The Right to Reasonable Administrative

Action

Most administrative lawyers would concede that review for unreasonableness is a notoriously difficult ground upon which to rely. This is largely due to the test laid down in Associated Provincial Picture Houses Ltd v. W'ednesbury Corporation Ft which requires an applicant for review to show that the impugned action is "so unreasonable that no reasonable authority could ever have come to it" and that this would require "something overwhelming." 45 40

Ibid at 867H. "' Ibid at 868C. J Klaaren "Administrative Justice" in M Chaskalson, J Kentridge et al (eds) Constitutional Law of South Africa (Juta: Cape T o w n , 1996). 43 See Schermbrucker v Klindt NO 1965 (4) SA 606 (A), Barday v Passport Control Officer 1967 (2) SA 347 (A). 44 1986 (3) SA 568 (A). See also Mpisi v Trebble 1994 (2) SA 136 (A), Minister of Education, Transkei v Mgote 1994 (1) SA 612 (TkA). 45 [1948] 1KB 223 at 230 per Lord Greene M.R. 42

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Prior to the new Constitution, the South African courts adopted different tests for unreasonableness depending on a classification of functions. Not satisfied with the stringency of the Wednesbury test, the South African Appellate Division held that an "administrative" decision would be reviewable for unreasonableness only if it was "grossly unreasonable to so striking a degree".46 By distinction, a "no reasonable evidence test" was adopted to test the reasonableness of "judicial" decisions.47 Delegated legislation was reviewable for unreasonableness on the basis of the decision in Kruse v Johnson.** A significantly different approach to review for unreasonableness has emerged under the new constitution. In Standard Bank of Bophuthatswana Ltd v. Reynolds NO,49 Friedman JP favoured a "substantial evidence" test.50 He found that the test of "gross unreasonableness" does not accord with the new approach to judicial review and is not consistent with the testing rights given to courts in the Constitution. The judge held that a less stringent test of unreasonableness is necessary. Consequently, (1) the concept of "unsupported by substantial evidence" could be used to widen the scope of review; and (2) the principle of "no reasonable evidence" may be used as a test for resolving questions of fact.51 The court went further in Romans v. Williams NO. 52 Here, it was held that administrative action must be "suitable, necessary and proportional" and that the court's inquiry extends to the substance and the merits of administrative decisions. The court, however, defered to the assessment of the facts by the functionary, and was mindful of the need for efficiency in the administration. The decision of the functionary was therefore upheld. Is there any need to retain the position of the courts with regard to review of delegated legislation for unreasonableness? One preliminary observation is that the test in Kruse v. Johnson may have lost much of its significance. For any delegated legislation that is unequal, unjust or oppressive would fall foul of various provisions, like the right to equality, in the Bill of Rights.53 This is, of course, unless the inequality is expressly allowed, as in the case of affirma46 National Transport Commission v Chetty's Motor Transport (Pty) Ltd 1972 (3) SA 726 at (A). 47 Theron v Ring van Wellington van die N G Sendingkerk in Suid-Afrika 1976 (2) SA 1 (A). 48 4 [1898] 2 QB 91. » 1995 (3) SA 74 (B GD). 50 It was suggested (ibid at 96C) that the requirement of "substantial evidence" allows the courts to test the logic of findings of fact and "..is a test of the reasonableness, not the rightness, of agency finding of fact. T h e question under it is whether the evidence is such that a reasonable person, acting reasonably, could have reached the decision from the evidence and the inferences." 51 sz Ibid at 96E-97D. 1997 (9) BCLR 1267 (C). 53 See, for example, Government of the Republic of South Africa v Sunday Times Newspaper 1995 (2) SA 221 (T) (regulation violating the right t o freedom of expression), Yunico Limited v Minister of Trade and Industry & Others 1995 (11) BCLR 1453 (T) (right to procedurally fair administrative action).

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five action programmes.54 Likewise, all administrative action, which is in bad faith, falls foul of the right to "lawful" administrative action. The courts could simply ask whether or not the delegated legislation can be justified on the basis of the evidence available to the decision-maker. There seems to be no need to retain special rules to test the unreasonableness of "legislative" acts.

The Right to Procedurally Fair Administrative Action In the same way that the grounds of review for unlawfulness were corrupted by South African courts, the audi alterant partem principle was also subject to the vagaries of the courts. In South African Defence and Aid Fund v. Minister of justice,ss for example, Botha JA held that the first question to be decided must always be whether the enactment concerned impliedly incorporates the maxim. If it were found not to be impliedly incorporated, audi alterant partem would not apply. The absence of an intention to exclude it would be irrelevant, since "where it [the rule] cannot be implied, there is obviously no need to exclude it". 56 The confusion created by this case and its offspring57 was dispelled by the decision of Corbett JA in Attorney-General, Eastern Cape v. Blom,58 where the learned judge of appeal expressed an informed and unequivocal preference, both "logically and in principle",59 for the view that the right arises by virtue of the common law. The impact of a constitutionally protected right to procedural fairness is clear in the cases which have been decided under the new constitution. In Van Huyssteen NO & Others v. Minister of Environmental Affairs and Tourism & Others60 Farlam J held that the right to procedural fairness entitles a person to "the principles and procedures. . . which in (the) particular situation or set of circumstances are right and just and fair".61 In Zwelibanzi v. University ofTranskei62 for example, Beck CJ required a University to give a student, who had achieved a final mark of 48% in a course, a hearing before deciding not to grant her an oral examination. A regulation in the University Prospectus provided that all third year students who obtained a mark of 47-48% may be given a re-evaluation or oral examination. In refusing to grant the oral, the University had taken into account the 54

For example, section 9(2) of the Constitution of South Africa, provided that "[t]o promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken." 55

1967 (1) SA 263 (A). See also Boulle, Harris and Hoexter above n. 28 at 330. Ibid at 270 F. 57 See Winter v Administrator-in-Executive Committee 1973 (1) SA 873 (A) at 8 8 8 H 889A, Omar v Minister of Law and Order 1987 (3) SA 859 (A). 58 1988 (4) SA 645 (A). 59 Ibid at 662G-I. See also Moodley v Minister of Education and Culture, House of Delegates 1989 (3) SA 221 (A) at 2 3 5 H - 2 3 6 D . 60 61 1995 (9) BCLR 1191 (C). Ibid at 1214 B-C « 1995 (1) SA 4 0 7 ( T k G D ) . 56

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fact that her year mark was too low. This was a factor personal to the applicant and one which was in dispute since she had alleged, inter alia, that her low mark was attributable to the fact that the University had lost one of her test papers. This decision was based on the doctrine of legitimate expectation. The court rejected the submission of the respondent that the relationship between it and the applicant was purely contractual and that the audi alterant pattern rule had no application to it, preferring to decide the question on the basis of "fairness". It will be noted, however, that s 24(b) of the interim Constitution provides a right to procedurally fair administrative action only where rights or legitimate expectations are affected or threatened. This section, from which "interests" are specifically excluded, (cf s.24(a)) has been interpreted variously by the courts. The absence of a right to protect interests was evident in Xu v. Minister van Binnelandse Sake 63 where applications for temporary residence permits had been made. Stafford J found, correctly, that the applicants had neither a right to residence or continued residence, nor a legitimate expectation that the permits would be granted. He found, further, that the respondents interests had not been affected, such interests not having been proved, and that it had been held in the past that the audi alterant partem rule did not apply in similar circumstances.64 Similarly in Podlas v. Cohen and Bryden NNO 6 5 Spoelstra J held that the issuing of a notice to persons to attend an inquiry in terms of s 152 of the Insolvency Act 1936 did not attract natural justice. He went on to say that, although the prejudicial consequences might arise from the inquiry itself, it was "purely investigative" and would not affect the witnesses in their liberty, property or other existing rights.66 Clearly, investigative proceedings can have adverse effects. The mere fact that one's conduct is under investigation gives rise to apprehension, and an individual's reputation may suffer where his activities have aroused sufficient suspicion to merit investigation. Moreover, an interim decision carries with it a likelihood of an adverse "final" decision.67 However, do such proceedings affect rights or interests? A preferable approach is evident in the decision Jeeva & others v. Receiver of Revenue, Port Elizabeth & Others.68 Here, it was held that a liquidation inquiry in terms of ss 147 and 148 of the Companies Act 1973 was administrative action and that the applicants were entitled to administrative action which was procedurally fair. Jones J accepted that such inquiries constitute a serious inroad into the common-law rights of the persons to be interrogated, and that it has a material bearing on their rights and interests. 69 A similar position was adopted by the court in Du Preez and 63 66 67 68

1995 (1) SA 185 (T). <* Ibid at 193E. « 1994 (4) SA 662 (T). Ibid at 675 D-E, I-J. See R Douglas and M Jones Administrative Law (Sydney, 1996), at 510. i9 1995 (2) SA 433 (SE). Ibid at 442 F-H, 444 E-F.

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Another v. Truth and Reconciliation Commission70. In this case, the court held that where the TRC was likely to make findings of gross violations of human rights, it had to accord procedural fairness to those implicated. Commensurate with the nature of the harm occasioned by the findings, the court interpreted the content of procedural fairness expansively. The persons implicated had a right to notice of the time and place where evidence would be presented and sufficient details of the allegations against them. In addition, they had a right to be personally present, to have legal representation and to immediately cross-examine witnesses. An unfortunate consequence of s 24(b) is that judges, who wish to impose a duty of fairness, have artificially defined the interests affected as legitimate expectations, instead of relying on the "duty to act fairly". It is submitted that Minister of Justice, Transkei v. Gemi71 should not have been decided on the basis of legitimate expectation. The respondent had requested that he be transferred from one town to another so that he could be closer to members of his family who were sickly. Instead of being moved closer to home, the respondent was transferred 100 kilometres further away from his home on the basis that he was guilty of misconduct. Goldin JA found that the respondent had established "an adequate foundation to entitle him to an opportunity to be heard before the decision to transfer was taken." 72 The judge then based his decision on a rather contorted notion of the legitimate expectation doctrine, necessitated by the fact that there had been no practice or promise which would give rise to an expectation. But for the limitation in s 24(b) Goldin JA could simply have recognised that the decision-maker had a "duty to act fairly". The decision-maker should have allowed the respondent to make submissions on the matters relied upon when deciding to transfer him. The significance of the provision in the final Constitution is that it moves beyond natural justice, and the doctrine of legitimate expectation, to the English notion of procedural fairness.73 It does not merely codify the existing law. It apparently recognises that the contemporary notion of the right to procedural fairness encompasses application cases.

70

1997 (4) BCLR 531 (A). 1994 (3) SA 28 (TkA). Here (at 33D) Goldin JA discussed when departure from the legitimate expectation doctrine was justifiable. He held that "the test is when do the rules of natural justice not require the application of the legitimate expectation doctrine and not when is it justified to depart from the rules of natural justice." 72 Ibid at 31F-G. 73 See In re HK (An infant) [1967] 2 QB 617, R v Birmingham City Justices; ex p Chris Foreign Foods (Wholesalers) Ltd [1970] 1WLR 1428, Schmidt v Secretary of State for Home Affairs [1960] 2 Ch 149, R v Gaming Board for Great Britain; ex p Benaim and Khaida Engineering [1971] 2QB 417, Re Pergamon Press [1971] Ch 388, Breen v Amalgamated Union [1971] 2QB 175, Wiseman v Borneman [1971] AC 297 (HL), R v Liverpool Taxi Fleet Operators' Association [1972) QB 299, Pearlberg v Varty [1972] 1WLR 534, Furnell v Whangarei High Schools Board [1973] AC 660. 71

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The Right to Written Reasons for Administrative Action Section 33(2) of the final Constitution is quite different from the section which preceded it in s 24(c) of the Interim Constitution. That section provides that every person has a right: "to be furnished with reasons in writing for administrative action which affects any of his or her rights or interests unless the reasons for such action have been made public.. ." What was meant by action which "affects" rights or interests? In relation to a right, Mureinik 74 pointed out that "affect" has at least two meanings. A right may be "affected" by action which deprives a person of the right (for instance, the cancellation of an existing licence), or by action which determines whether a person has a right (for instance, a decision to grant a licence in the first place). The "deprivation theory" gave a rather narrow meaning to s 24(c), since the section would then only apply if rights or interests were being taken away. The "determination theory", on the other hand, gave a very generous meaning to s 24(c): reasons would be required whenever a decision had the effect of determining a person's interests, let alone her rights. Mureinik argued that the deprivation theory cannot apply in the case of interests, which amount to something less than rights and legitimate expectations. Since one cannot logically be deprived of an interest, he claimed that the wider determination theory must be the one intended by the word "affect". This argument has not been lent support by the case law. In Podlas v. Cohen and Brydert NNO,75 for example, Spoelstra J stated {obiter) that reasons would not have to be given for the decision to hold a "purely investigative" inquiry which would not affect existing rights. As noted above, it is interesting that the court did not pause to consider the question of "interests" at all. In Xu v. Minister van Binnelandse Sake; Tsang v. Minister van Binnelandse Sake,76 mentioned above, the court seemed equally unwilling to define "interests", and appeared to equate them with "legitimate expectations" (which can, of course, be disappointed or taken away). The court found that the applicants had no rights to residence in South Africa, nor any legitimate expectations of remaining in the country (they had been warned that their permits were strictly temporary). Stafford J concluded that the applicants had not proved any interests in residence or continued residence, and that they were not therefore entitled to reasons. Other questions which arise in respect of this right are: must reasons be furnished as a matter of course, or only upon request; how informative must the reasons be? In an ideal world, administrative authorities would automatically 74 75

E Mureinik "A Bridge t o Where?" (1994) 10 SA/HR 31. 76 1994 (4) SA 662 (T). 1995 (1) SA 185 (T).

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give carefully-drafted and comprehensive reasons for all their decisions. As Baxter has noted,77 good decision-makers will in any event formulate their findings and reasons before making a decision; why not simply furnish those reasons as a matter of course? Other writers incline towards a more conservative (and perhaps more realistic) approach. Klaaren78 suggested, in relation to the clause in the interim Constitution, that the passive phrasing of the subsection implies that a request for reasons must be made; and de Ville79 notes that the furnishing of reasons where none is required would be a waste of time and money. Asimow, 80 meanwhile, suggested in relation to the clause in the interim Constitution that it is "completely impractical" to expect that every interaction between government officials and the individual entitled the individual to demand a written statement of reasons on request. He proposed that the Constitutional Court should interpret the reasons provision to apply "only where there would be significant personal and institutional benefits from requiring a statement of reasons." The South African courts, concerned to protect the administration from intolerable burdens, are likely to agree with these views.

Administrative Justice and "Promoting an Efficient Administration" Democracy, efficiency and equity are the three central organising concepts of the modern public service. They are all equally important public service values and citizens can expect the administration to decide matters in accordance with them. But why does section 33(3) of the final Constitution provide that national legislation must be enacted to promote an efficient administration? The obvious answer to this is a political one. It seems that in the course of negotiating the content of the just administrative action clause in the final Constitution, the current government wanted to be sure that the administrative process would not become overburdened by the accountability mechanisms. One wonders whether its inclusion is necessary or appropriate. It seems unnecessary, for an enduring feature of administrative law is the sensitivity of the judiciary to the need for an efficient administration, free from unnecessary procedural burdens. Moreover, what needs to be remembered is that efficiency tends to require "the speedy production of outcomes, rather than their correctness, with the consequent danger of elevation of the means (efficiency) over ends (legislative goals)."81 77 78 79 80 81

L Baxter Administrative Law (Cape T o w n , 1984) at 232. Above n.42. J de Ville "A Contribution to the Section 24 Debate" (1995) 11 SAJHR 246-280. Above n.13. M Allars "Managerialism and Administrative Law" (1991) Canberra Bulletin of Public

Administration 50 at 59.

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Efficiency is a worthy goal because it requires a public service to administer its programmes and policies expeditiously while minimising costs. In attempting to measure efficiency, however, there is great room for argument between those who measure it by looking simply at outputs in terms of services provided, and those who measure it in terms of outcomes in the community. 82 This is true particularly when the concepts of efficiency and equity collide. Social equity demands of administrators that their decisions are not only procedurally fair, but also substantively fair.83 Administrators must implement governmental programmes in an equitable way. In an attempt to be efficient, however, administrators will adhere to standard procedures, impose time-limits on dealing with cases, and exercise proper caution in the use and allocation of public funds. The difficulty with this is that some sectors of the community are better able to interact with administrations, make their needs known and use bureaucratic procedures to further their cause. They may be better organised, educated or resourced. Efficiency will dictate that the administration respond to these groups, because dealing with them requires fewer resources and less time from the administration. Administrators, by responding to these groups, may also want to demonstrate that their programmes are successful. The result is likely to be social inequity. As Allars84 has noted, "[equity] places a greater negative value on the error of denying a benefit to a person who is truly eligible than upon an error of wrongly granting a benefit to a person who is ineligible." Consequently, equity requires that extra care should be taken in dealing with an application by a person who is disadvantaged. Offering assistance to this person in establishing a claim, may require a departure from usual, efficient procedures. Equity may even require a public official, "in making a discretionary application of policy, (to) reach a morally justifiable compromise between different perspectives interests and values." 85 On the other hand, decisions made on the basis of equity might entail a loss of efficiency in the public service. The point here, is that although the need to promote an efficient administration is mentioned in the just administrative action clause, it should not hold primacy of place as a goal of public administration. Allars notes that "[i]f a reduction in efficiency within the public sector on account of administrative law is to be justified, then the inherent values served by administrative law must be exposed for scrutiny. Once administrative law is seen to be instrumental to achievement of inherent values such as openness and fairness, those values must be pursued by conformity to the principles of administrative law, alongside pursuit of the often more immediate values served by particular legislation."86 The goal of efficiency is not only in competition with that of equity, however. Accountability is an equally, if not more, important aspect of 82 83

P Wilenski Public Power and Public Administration (Sydney, 1986), at 50. 84 86 JW
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administration. The Constitution has provided a number of accountability mechanisms, including the right to administrative justice, recourse to the Public Protector and a right of access to information. These mechanisms ensure that efficiency "cannot be taken as an end in itself but has to be subordinated to other ends." 87 It is often argued that these mechanisms prevent the administration from being efficient. This is because recourse to the mechanisms tend to consume a considerable amount of time. It is hoped that in drafting legislation consistently with s 33(3)(c) the Parliament will balance the goals of democracy and equity with the right to efficiency.

Privatisation and Judicial Review The crucial question here is whether the actions of public bodies, which are commercialised/corporatised or privatised, will be susceptible to Constitutional or common law judicial review in South Africa. The answer will depend upon the way in which the entities are constituted, and brings to the fore the debate about whether or not the fundamental rights are enforceable only against the state (vertical application) or private individuals (horizontal application).

Commercialised Utilities Where public bodies are commercialised, but still wholly government-owned, it seems likely that the courts will require them, at least, t o act fairly. This is so, given the common law duty owed by public bodies t o act fairly toward employees,88 and recent decisions which have held that the contractual activities of public bodies are reviewable.89

Government/Private Sector Partnerships Are the activities of government/private sector partnerships reviewable? If, as is likely, these utilities are under a statutory duty to act in the public interest, their activities may be reviewable. In Dawnlawn Beleggings Edms (Bpk) v. Johannesburg Stock Exchange90 the court found, at common law, that 87 R W Cole "The Public Sector: The Conflict Between Accountability and Efficiency" (1988) 47 Australian Journal of Public Administration 233. 88 See Administrator, Natal v Sibiya 1992 (4) SA 532 (A). Hoexter JA found that the economic loss brought about by the dismissal constituted a deprivation of property attracting natural justice (at 538-9). 89 Claude Neon Ltd v City Council of Germiston and Another 1995 (5) BCLR 554 (W) where Zulman J found that a representative of the respondent local authority, in giving an undertaking that the applicant would be notified when tender documents were ready, had performed an administrative act. He rejected the argument that, since the undertaking established a contractual right, damages was the only appropriate remedy. 90 1983(3)SA344(W).

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although the Stock Exchange is a non-statutory body it is under a statutory duty to act in the public interest. Hence its actions were reviewable. It may be that part-Government ownership gives rise to the notion that the activities of the utilities is "state action", for the purposes of Chapter 2 of the Constitution. A leading English case which may be useful in analysing the type of power exercised by government/private sector partnerships is R v. Panel on Takeovers and Mergers; Ex parte Datafin Pic (Datafin)91 Aronson and Dyer92 emphasise the fact that privately sourced power will be public power in the Datafin sense only where it is in partnership with government. They are not convinced that the power also needs to be regulatory. Applying the rationale of this case to our present discussion, it may be that courts will regard the exercise of power by government/private sector partnerships as an exercise of public power.

Privatised Utilities Clearly, where public bodies are fully privatised there will be no state action and presumably their activities will not fall within the ambit of the "just administrative action" clause. However, the South African courts have for a number of years found exceptions to the general rule that only the actions and decisions of public bodies are reviewable. In Turner v. Jockey Club of South Africa,93 for instance, the Appellate Division held that the Club, a private body, had acted illegally in taking disciplinary action against a jockey without giving him a fair hearing. The fact that the contract between the parties said nothing about fairness could not excuse the Club's failure to give him an adequate opportunity of defending himself, since the requirement of a fair hearing, although part of administrative law and not private law, was held to have been implied into the contract. There are many other cases in which private bodies wielding (contractual) coercive or disciplinary powers have been made to conform to the principles of natural justice.94 In these cases, the coercive nature of the power (rather than the nature of the organ exercising it) seems to be the factor which justifies the courts' interference. Moreover, in Baloro and others v University of Bopbuthatswana and others95, Friedman JP, while interpreting the Bill of Rights in the Constitution of the former "homeland" of Bophuthatswana, found that the Bill of Rights had a horizontal/"non-state" dimension and applied, inter alia, to: 91 92

[1987] 1QB 815. M Aronson and B Dyer, Judicial Review

of Administrative

Action

(Sydney, 1996) at

134. 93 94

1974 (3) SA 633 (A). See also Boulle, Harris and Hoexter, above n 2 8 at 328. See Theron v Ring van Wellington van die NG Sendingkerk in Suid-Afrika 1976 (2) SA

1(A). 95

1995 (4) SA 197 (BSC).

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"Corporations, multinational and local companies engaged in trade, commerce, business, that deal with the public, have employees, (and) engage in numerous undertakings. This category is subject to the fundamental rights in all their manifold operations because they deal with the public and are generally no different in power, wealth or influence from State, or parastatal companies, or statutory bodies." 96

In this insightful and creative judgment Friedman JP recognised that "these groups may perform functions of so public a nature in quality and calibre that the activity remains essentially public even though performed by private persons and actors." Although in Du Plessis and others v. De Klerk and another97 the Constitutional Court found that the fundamental rights could not be applied directly to action between private parties, it left open the question whether there were particular provisions of the Chapter that could be so applied. Moreover, the application clause98 of the final Constitution provides that a provision of the Bill of Rights binds a natural or a juristic person, if it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. It may be that in the case of privatisation the courts will find, like Friedman JP, that the activities of utilities fall within the ambit of the "just administrative action" clause. Even if their activities are not "administrative" for the purposes of Constitutional review it may be that, as in Turner's case, the courts will find that utilities exercise a monopolistic and coercive power, and that they should be subject to common law judicial review."

Conclusion The right to just administrative action in the South African Constitution has had a significant effect on the development of administrative law principles. Where the grounds of review had been truncated by a restrained judiciary, these have now been reinstated by the Bill of Rights. The effect of the right to lawful, reasonable and procedurally fair administrative action, as well as a right to reasons, has been demonstrated by reference to recent cases. It seems that the courts, emboldened by the Constitutional provisions, are interpreting their powers of review expansively, with few exceptions. They are doing this by interpreting "administrative action" broadly, determining that the right to reasonable administrative action implies review on the merits, and that 96

9 Ibid at 238H-}. "" CCT 8/95. » Section 8(2). In Lamprecht and Another v McNeillie 1994 (3) SA 665 (A), however, the Appellate Division found that where an employment relationship had no public law element the principles of administrative law would not govern the case. The employment relationship was distinguished from cases where administrative law rights flow from the constitution of a voluntary organisation. The court held that an applicant for review would have to prove that an employment contract contained a provision incorporating the rules of natural justice. 99

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procedural fairness equates with the "duty to act fairly". At this point, there is not much evidence of a judiciary restraining itself in order to give government the "green light". One possible exception is the Vitenhage Local Transitional Council case, where to hold that the exercise of rights of landownership is an "administrative act" might have frustrated the legitimate goal of the council to provide housing in an orderly manner in accordance with the reconstruction and development of South Africa.

18 Human Rights and Hand-Rolling Tobacco: The Right to a Fair Hearing STEPHEN OLIVER QC Introduction HAVE chosen Article 6 of the Convention, the right to a fair hearing, because that is the article most likely to be encountered in the Tribunals where I work, that is the Special Commissioners and the VAT and Duties Tribunals. Other human rights will come into play in the work of other administrative tribunals. But Article 6 throws up many of the practical issues that are likely to arise in the course of the work of all Tribunals. I have chosen hand-rolling tobacco because it was the subject matter of one of the human rights cases that came before the VAT and Duties Tribunals; and I have chosen it because it affords a concrete example of a case where Article 6 has been the determining factor in a case decided before the VAT and Duties Tribunals. Another reason for choosing hand-rolling tobacco is that human rights are frequently asserted in the most prosaic and unheroic situations of which this was one. I shall start with a case study.

I

The Case of Mr Hodgson1 Two years ago an elderly man limped into the VAT and Duties Tribunals and took his place in Court 1. At the other end of the table was the Customs team. The appellant, Mr Hodgson, was appealing against a decision of Customs and Excise to seize and condemn some packets of hand-rolling tobacco found on him when he returned from two weeks on the Costa Del Sol. And he was appealing against the penalty imposed on him for not 1 Hodgson v. Commissioners of Customs and Excise [1997] EuLR 117 [1997] 3 CMLR 1082 [1996] V&DR 200

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declaring the hand-rolling tobacco which, the customs officer had decided, was being imported for a commercial purpose, ie for resale. My colleague, a doctor, and I listened attentively to his story. He had been seriously injured in a factory accident. He was no longer able to work. He had been given compensation. He was in a chronic state of pain and he controlled this with prescribed drugs. He smoked heavily to control the depression and anxiety caused by the drugs. He had been to Spain because the weather suited his condition. Before leaving Spain he had stocked up with six kilograms of hand-rolling tobacco which he claimed was 4/5 months supply for his and his wife's use. We were entirely satisfied on that count. Customs and Excise then referred us to the domestic law. This was all contained in secondary legislation. The Excise Duty (Personal Reliefs) Order 1992 (SI 1992/3155) was the Statutory Instrument in question. The effect of that, by Article 3, is that no United Kingdom excise duty is payable on goods, such as tobacco and alcohol, imported from another Member State where the goods have been acquired by individuals for their own use. That is in line with the Single Market principle that excise duties are charged in the country of supply and not again. But a later provision of the UK Order, Article 5, states that excise duty is chargeable if the goods in question are imported for a commercial purpose. It goes on to say that a person is to be regarded as having imported goods for a commercial purpose if, in the case of hand-rolling tobacco, the quantity exceeds 1 kilogram unless Customs and Excise are satisfied to the contrary. The Divisional Court, in at least two earlier cases, (ex parte Carrier2 and ex parte Boxall3), had held that it was not open to the magistrates or consequently to us, a s the civil appeal tribunal, to decide on the merits whether the goods had in fact been imported for a person's personal use; we were bound by the decision of the customs officer. The customs officer had, as it turned out, acted impeccably and had complied with the procedural requirements of the Personal Reliefs Order. So, despite the finding that we would have made that the goods were for the elderly gentleman's personal use and so free from seizure and condemnation and the imposition of any penalty, we were apparently bound to dismiss his appeal without hearing the case on the merits. We adjourned the case for further argument. We read the EC Directive governing excise duty in the Single Market (Council Directive 92/12). It was clear to us that the Directive gave all EC travellers enforceable Community rights to bring goods such as hand-rolling tobacco into the United Kingdom without having to pay excise duty here - so long as the tobacco was not as a matter of fact being carried for a commercial purpose. And because we had decided on the facts that the tobacco was for his own use, we would have given effect to his enforceable Community rights and allowed the appeal. We would have discharged the penalty and the seizure and condemnation orders. 2 3

Customs and Excise Commissioners v Carrier [1995] 4 All ER 38. (1996) unreported.

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The obstacle to the case was that the Divisional Court had ruled that, under the UK law found in the Personal Reliefs Order, there was no way of substituting our decision on the facts for that of the customs officer. We had no jurisdiction. Consequently there was no tribunal or court (not even the Divisional Court) in the United Kingdom to which Mr Hodgson could turn for a fair hearing in his efforts to have effect given to his enforceable Community rights. The Excise Directive is a Community law measure and it is well established under Community law that an individual who, like Mr Hodgson, has a substantive enforceable Community right must also have the procedural right to have it enforced; and each Member State has an obligation to provide the machinery for enforcement. See, for example, the case of Reive*. The United Kingdom legislation, as interpreted by the Divisional Court, had the effect of denying Mr Hodgson any right to have his claims heard. We therefore turned our attention to Article 6 of the Convention on Human Rights. This reads, so far as is relevant, "(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law . . .". We were well aware that the Convention on Human Rights was not part of our law and that our courts had no power to enforce Convention rights directly. But we were also aware that the European Court of Justice has established a principle that in disputes concerning Community law rights it, and the courts of the Member States, will protect fundamental rights some of which are enshrined in the Convention on Human Rights5. We therefore decided that it was legitimate for us, dealing as we were with a person's claim to Community law rights, to examine Article 6 of the Convention and see whether it applied to Mr Hodgson's claim. If it turned out that Mr Hodgson had been denied a fair hearing, we could then re-examine the Divisional Court decisions with a view to possibly concluding that they had been reached per incuriam because they had been decided without regard to the impact of Article 6. Three questions immediately presented themselves. These are questions that are bound to arise once the Human Rights Act takes effect because this in terms incorporates Article 6 as part of the laws of the United Kingdom. First, did the case before us involve the determination of a criminal charge against Mr Hodgson? If it did, the Excise Directive had to be construed as giving Mr Hodgson the Community law right to all the safeguards in Article 6.3, ie all the normal incidents of a proper criminal trial. We were satisfied that the penalty was not the product of a criminal charge against Mr Hodgson. We, 4 5

Rewe-Zentralfinanz v Saarland [1976] ECR 1979; [1997] 1CMLR 533. ECJ's Opinion 2-94, 28 March 1996.

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the VAT and Duties Tribunals, had been given jurisdiction over excise duties in 1994 as part of the general policy of decriminalising minor customs and excise infractions. Moreover the penalty had been imposed by the administrative decision of the customs officer on account of what customs perceived to have been Mr Hodgson's breach of the Personal Reliefs Order. I am not sure that this provides a universal answer to the question of what charges and proceedings are "criminal". What is "criminal" in the social security regime may not be so in the spheres of Inland Revenue and Customs and Excise tax legislation. More difficult was the second question. Were Mr Hodgson's "civil rights and obligations" affected by the customs officer's decision? The Strasbourg authorities draw a line between public law and private law. Public law rights and obligations, it appears, are not civil rights and obligations whereas private law rights and obligations are. There is a great deal of authority. The obligations to make social security payments and to pay taxes appear to fall on the "public" law side of the line. This is because, as the Court of Human Rights said in Schouten and Meldrum v. Netherlands6 they derive from the citizen's "normal civic duties in a democratic society". This would rule out a citizen's right to a fair hearing where his liability to pay tax or the quantum of tax assessed was in issue. But here the issue went beyond the single question of Mr Hodgson's liability to pay excise duties. A main issue, though not the only issue, was the correctness of his claim to bring his own goods into the United Kingdom for his own use without having them seized and condemned. That seemed to us to fall fairly within the realms of his civil rights and obligations. Then we had to confront the question which will, I suspect, be in point in most disputes falling within the province of administrative tribunals. The Commissioners of Customs and Excise argued that there should be no need to have a hearing before a tribunal because the right to apply to the Divisional Court for judicial review of the customs officer's decision to seize the goods and impose the penalty was always open to importers like Mr Hodgson. Judicial review, they argued, provides a sufficiently fair hearing. This is a profoundly difficult matter. We concluded that there were areas, of which this is one, where judicial review did not provide a sufficiently fair means of enabling an individual to test his enforceable Community rights. The simple issue under EC law was whether, as a matter of fact, the tobacco was for Mr Hodgson's own use. The EC Directive unlike our Personal Reliefs Order contained no provision leaving the final decision to a customs officer. As Mr Hodgson's right depended upon a fair and judicial evaluation of the facts, we concluded that the tribunal's appellate jurisdiction offered a fair hearing. Judicial review has a different function, that is to maintain a check on excesses in the exercise of administrative discretions. It would not have helped Mr Hodgson in the present case because the customs officer had acted quite 6

Schouten and Meldrum v The Netherlands ECHR, 48 and 49/993

Human Rights and Hand-Rolling Tobacco

401

properly and according to the book, i.e. the law as found in the Personal Reliefs Order. We had another reason for concluding that judicial review, did not, in the circumstances, afford a fair hearing. This was because the Divisional Court had already ruled that there was no appeal on the merits of whether the customs officer could properly have considered that the goods were not for Mr Hodgson's personal use. There would have been no point in going there again. A further problem about the Divisional Court is that leave to apply is required; no such qualification is found in Article 6 of the Convention. The legal consequence was that Mr Hodgson had the enforceable Community right, underpinned by Article 6 of the Human Rights Convention, to a hearing to resolve the merits of whether the goods had been brought here for his personal use. The UK law, i.e. the Personal Reliefs Order as interpreted by the Divisional Court, was repugnant to the EC Directive and to Mr Hodgson's enforceable Community rights. Should we dis-apply the UK law? Or should we adopt the more tactful course of seeking to find a construction of the United Kingdom provisions that complied with the Community law and human rights position? We chose the latter course encouraged by the ECJ decision in Marleasing7. This decision requires the courts of a Member State to construe their domestic provisions in a manner consistent with the requirements of European Community law. It was possible to do so. In doing so we complied, in prospect, with the direction found in Section 3 of the Human Rights Act 1998.

General Observations I turn now to the position following the passing of the Human Rights Act. It is worth noting that section 4 of the Act enables a "court" to make a declaration of incompatibility where the Court is satisfied that primary legislation is incompatible with Convention rights. A tribunal is not a "court" for these purposes (see section 4(5)). So, if an appellant is relying solely on his Convention right to a fair trial, and a fair trial is denied him by the UK legislation, there is nothing the tribunal can do. But the administrative tribunals are more and more concerned with enforceable Community rights, i.e. those given by EC Directives. The Member State has to provide the procedural means of enforcing these rights. As we concluded in Hodgson, the individual has to have recourse to a fair hearing within Article 6 of the Convention. If it is primary United Kingdom legislation that forbids this, the tribunal may be driven to dis-applying UK legislation, notwithstanding clause 4 of the Bill. This is not because the UK law is incompatible with the Convention taken on its own, but because it is incompatible with EC law which in turn is underpinned by the Convention. The moral is that the tribunals should not allow 7

Marleasing SA [1990] ECR 1-4135 [1992] 1CMLR 305.

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themselves too readily to concede that they have no power to dis-apply UK primary legislation. Stepping back from the particular, what general conclusion can be reached as to the impact of human rights on a tribunal such as ours? By "such as ours" I mean a tribunal concerned with a subject's allegiance to the State. As I see it Article 6.1 will be raised in areas where either there is no right of appeal or there is a right but it is dependent on the potential appellant satisfying onerous or even impossible conditions. The Hodgson decision is a good example of a situation where the domestic law makes, or appears to make, the decision of the administration as to the existence of a right final and unappealable. In that situation it will be our statutory duty to strive to construe the legislation so far as this is possible in a way that gives the potential appellant the right to a hearing on the merits before the tribunal. There are many situations, particularly in the excise and customs codes (and I suspect under the new social security legislation) where - by accident or by design - no rights of appeal exist. If the tribunal cannot see its way to construing the domestic legislation in a manner that complies with Article 6.1 of the European Convention on Human Rights, it will be powerless under the Human Rights Act. This is because, as I mentioned earlier, it is not open to a tribunal to make a declaration of incompatibility. The position will, of course, be different where the potential appellant is asserting an enforceable Community right and that right is based on one of the principles found in the Convention. In that situation it will, as I have mentioned, be open to the tribunal to disapply the incompatible domestic legislation freed from the constraints of section 4 of the Human Rights Act. An example of a situation where the domestic legislation may impose an impediment on a right t o appeal which may be a violation of Article 6.1 is found in the provisions of the VAT code dealing with "security". Where a "VAT trader" is perceived by Customs and Excise to be a "risk to the revenue" he can be served with a notice requiring him to provide security for six months' worth of tax. A trader who continues to trade in defiance of this notice is guilty of a crime. The tribunal's jurisdiction is confined to an assessment of the reasonableness of the decision to require the security. But, by virtue of the VAT Act 1994 section 84(2), the tribunal can not entertain the trader's appeal unless he is up-to-date with all his returns and payments of VAT. There are situations where traders have meritorious answers to the notices requiring them to provide security. For example the reason why they have become risks to the revenue is often because local authorities, suffering from cash shortages, simply don't pay their contractors or pay them very late. The knock-on effect to the trader is that he is prevented from paying his tax on time. Customs and Excise react to this by applying to the tribunal to strike out the trader's appeal because he is behind with his returns and payments. Traders have now responded by invoking Article 6 and contending that the obligation to be up-to-date with their returns and payments of tax as a pre-condition of being able to appeal

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denies them a fair hearing. Several appeals on this topic are in the pipeline. Another area where we expect to see human rights points being taken is that covered by Article 1 of the First Protocol. This covers the peaceful enjoyment of possessions "except in the public interest". Customs and Excise have numerous intrusive powers to stop and search and impound goods and to seize documents, disks and other sources of information. Traders will, I have no doubt, take every step to resist the exercise of these powers and the tribunal will be faced with delicate questions of whether the exercise of the power exceeds the needs of the public interest. To summarize, it seems to me that at an early stage in the life of the Human Rights Act, we will have to solve a number of fundamental issues. Two of these arose in the Hodgson case. To what extent are tax-related obligations imposed on citizens "civil rights and obligations" within Article 6.1? The Strasbourg authorities indicate that a taxpayer's obligations are outside the scope of Article 6.1. I suspect that the English courts, who are not as constrained by the "public law-private law divide" as some of the continental courts, will tend to regard tax obligations as falling within the scope of Article 6.1. The question of whether judicial review provides a fair enough hearing to satisfy the requirements of Article 6.1 will also, I think, provide a fruitful source of litigation. Whatever the Human Rights Act says, tribunals like ours that deal with domestic law covered by EC Directives will constantly have to give effect to enforceable Community rights where those rights are underpinned by "human rights". And the tribunals, faced with these problems, will not be inhibited from dis-applying the domestic legislation on the basis that it is incompatible with the enforceable Community rights asserted by the taxpayer. Finally, I think that the advent of the Human Rights Act will have a salutary effect on the administration. There have been situations in my experience where taxpayers have threatened to raise human rights points. As often as not the revenue authority has backed down stating "that in the very special circumstances of the case" they will not insist on the full rigour of the law.

PART 6

Management and Training

19 Maintaining Judicial Standards in the Independent Tribunal Service GODFREY COLE

Introduction

T

HE premise of this paper is that high quality, effective training will result in better prepared, more knowledgeable, more confident and more competent tribunal chairmen and members. How far these aspirations can be realised will depend on the clarity with which formulated training objectives are articulated and delivered, as well as the effectiveness of their evaluation. For present purposes training is defined as both passive and active1: passive training means the provision of annotated texts, distribution of Presidential Practice Directions and Circulars, and circulation of digested Commissioners' Decisions2. These items might be overlooked in the training context because it is assumed that they will be provided, but they are essential because without them tribunals will lack the tools, and confidence, to reach decisions properly. Their provision though will provide the foundation for active training days when exercises can be designed around them—active training meaning the provision of formal training and also the monitoring of subsequent performance; reviewing these two aspects of training forms the basis of the rest of this paper.

1

Arguably, successful performance is the result of the triangulation of selection, training and then monitoring followed by more training and monitoring as needed. Selection of chairmen is arranged by the Lord Chancellor's Department since the Lord Chancellor appoints both members and chairmen. The President is a member of selection panels to ensure compliance with the needs of the Independent Tribunal Service (ITS). The President is responsible for selection of members following receipt of nominations after interviews arranged locally. 2 Social Security Commissioners being the jurisdiction with the responsibility for considering appeals from all the ITS tribunals.

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Background With some 6000 members and 800 or so chairmen, all part-time, and a further 56 full-time and regional chairmen, ITS is the largest tribunal system in the United Kingdom and possibly also in Europe. It currently co-ordinates the work of five separate jurisdictions: Social Security Appeal Tribunals (SSAT), Medical Appeal Tribunals (MAT), Disability Appeal Tribunals (DAT), Child Support Appeal Tribunals (CSAT), and Vaccine Damage Tribunals (VDT). Each has three members: a legally qualified chairman and two others who may be lay or specialist depending on the jurisdiction3. Uniquely the President has a statutory duty to provide training, and has had since 19844. In accordance with that obligation training has always been offered to both members and chairmen. Since the early 1990's5 there has been a qualitative change in the organisation and presentation of training militated, possibly unconsciously but nevertheless inevitably, by a number of factors: the jurisdictions increased from three to five, with the addition of DATs in 1991 and CSATs in 1993; the number of appeals has continued to rise steadily year on year6; a number of additional full-time chairmen were appointed, some from academic backgrounds; and training has become an expected component of a part-time appointment7.

Training In 1995, the then President, HH Judge Bassingthwaighte, directed a review8 to consider "the extent of training which members need in the regions...the assessment being made on the basis of real need rather than on perceived preference or desire [ensuring] that we deliver what is necessary . . ." To 3 SSATs and CSATs both have lay members: MATs and VDTs have medical consultants as their members, and DATs have a GP and a carer member. The details will alter once the provisions of the Social Security Act 1998 are brought fully into effect. 4 Existing since 1984, the Social Security Administration Act 1992, Sched. 2, para 5(a)(ii) imposes a duty on him: " . . . to arrange . . . such training for such chairmen and members, as he shall consider appropriate". 5 Jones, C and Adler, M (1990) Can Anyone Get on These? A study of the Appointment and Training of Justices of the Peace, Members of Social Security Appeal Tribunals and Children's Panels in Scotland, Glasgow: Scottish Consumer Council. 6 Illustrative figures of appeals received (all jurisdictions) for the following financial years being: 1995/96,235,000; 1996/97, 290,000; 1997/98, 365,000. 7 The readiness of Presidents to turn to academics and trainers for assistance in delivery and preparation as well as including them in membership of training advisory groups has ensured awareness and application of a variety of educational techniques. 8 The Judicial Training Review, carried out between February and August 1995 by the President's Judicial Training Advisory Group. The President's response to its recommendations are to be found in The Way Forward, published by ITS in December 1995.

Maintaining Judicial Standards in the Independent Tribunal Service 409 establish the perceptions held by current chairmen and members of training on offer a survey questionnaire enquiring as to their experiences was circulated. 350 questionnaires were prepared and sent out to a sample that was representative of regions, jurisdictions, and chairmen and members: 63% of recipients answered, enhancing the value of the survey both as a fair reflection of attitude and as a way of developing future policies. Respondents were asked about their sitting frequency, their background in the sense of experience in other jurisdictions, their views on training received and their preferred style of training. Frequency of sitting increases confidence, especially for chairmen upon whom lies the obligation to give guidance on legal issues, whilst the member who sits frequently will feel more in touch and will probably be more enthusiastic about attending training—not to mention more responsive to the real possibility of termination of appointment in the event of non-attendance 9 . Whilst the review was prompted in part by the need to ensure that training was included in the then parallel wide ranging consideration of ITS administrative activities and budgeting procedures, the increased sitting patterns of full-time chairmen and their consequentially reduced availability for training meant that they had (and have) less time to devote to preparation and delivery of training. Nevertheless they must continue to take the lead in responding to demand for training from members and chairmen. Continuing education is an opportunity to meet, to hear of developments and to acquire and refine skills. Specifically, tribunal members and chairmen need to learn and demonstrate specific judicial tasks and skills such as deliberating and decision making. To paraphrase the 1991-95 Judicial Studies Board report (para 2.8-2.10): overall control and direction of judicial training must be in the hands of judges in order to maintain its credibility and to ensure independence. It was for not dissimilar reasons that the 1995 ITS Training Review concluded that training must remain primarily in the hands of full-time chairmen. The mission statement of ITS is that the organisation: ". . . seeks to provide a professional, prompt and impartial service. ITS gives value and quality through committed individuals and teams who strive for continual improvement". Training offered must also meet the criteria of that mission statement. Hence "to maintain and improve standards chairmen and members must be given expertise through skills, knowledge and experience to undertake their roles effectively in order to facilitate their decision making and to promote judicial good practice". The challenges in implementing the above, which are in effect overall objectives for ITS training, are made greater when the number of jurisdictions ITS has within its responsibilities are recalled. Many regulations that are considered and scrutinised daily in each jurisdiction are difficult to comprehend or exceedingly complex or both. If the foregoing were not enough, the absence of legal aid means that many appellants appear unrepresented and consequently 9

Confirmed by the President in the course of 1996.

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are uncertain, confused or even fearful: the resulting obligation upon tribunals to be inquisitorial creates expectations that chairmen, and to a lesser extent members, have extensive legal knowledge at their fingertips—as well as being good time managers. Recognition of the difficulties of the work of ITS is, interestingly, to be found in the Senior Salaries Review Board Report for 1997:10 "Although the range of law dealt with in these tribunals is relatively narrow, it is subject to regular legislative change, is frequently complex and sometimes difficult to interpret. Chairmen need to spend considerable time keeping up-to-date with amendments to statutory provisions and their jurisdiction. . . The approach of the ITS tribunals is inquisitorial: it is the duty of the tribunal to enquire into all relevant matters and to apply the law even if neither party has proffered argument against it. The Chairman's task is made more demanding by the high number of unrepresented or poorly represented appellants who have little or no understanding of the legal issues within their case and need to be guided on the conduct of judicial proceedings . . . the points at issue can be extremely sensitive for those directly involved." (paragraph 153). The review of training identified four areas where experience showed a need for training: a broad awareness of developments, an understanding of new jurisdictions as they arise, a continual honing of the special skills of the decision maker, and proper induction for new appointees. How far has and does training address these needs? ITS has been assailed with changes in the law in the last few years: Disability Living Allowance and DATs in 1991, Child Support and CSATs in 1993, Incapacity Benefit in 1995 and Jobseekers Allowance in 1996 stand out. Other less known but still significant and important changes abound including as a few examples entitlement to Income Support for those from abroad, the introduction of departures into child support, and the introduction into English Law of the European Convention of Human Rights in the early part of 2000. More emphasis has been placed on training chairmen than members: their expertise in legal concepts and interpretation will be greater than the members but they are charged with responsibility for organisational procedure as well as with giving guidance on substantive matters 11 . Chairmen attend regional and national induction training: regionally they observe hearings, meet personnel and undertake some substantive training 12 and nationally they attend, with others at the same stage as themselves, a conference13 which gives them information on key areas of 10 J<JI* Report on Senior Salaries, Vol 2, Fundamental Review of the Judicial Salary Structure by the Review Body's Judicial Sub-Committee, Cm 3541, London, The Stationery Office (1997). 11 Social Security (Adjudication) Regulations 1995 as amended, especially reg 2. Child Support Appeal Tribunals (Procedure) Regulations, especially reg 11. 12 This stage includes observation of tribunals, and an opportunity to meet regional personnel. There might also be start made on training in substantive issues. 13 The objectives for this conference are: to meet newly appointed colleagues from other

Maintaining Judicial Standards in the Independent Tribunal Service 411 substantive law as well as the opportunity to practise skills. Once they start sitting they are invited to regular evening meetings where they drive the agenda—discussion of developments and difficulties are favourite topics. They also meet, with members, for bi-annual jurisdictional training. Members—lay or professional—receive less training: observation and induction followed by the bi-annual training meetings with chairmen. Chairmen have received residential refresher training at weekend conferences on a four year cycle for some years, these conferences having similar objectives to the conferences arranged for new chairmen.14 The President asked the training review to consider in particular whether joint training of members and chairmen is "the best and most efficient way of delivering necessary training". It is self-evident that the three tribunal members have different approaches and experiences and in DATs and MATs there are different areas of professional expertise. Should they be trained separately or together, or in both ways? The task of applying the law rests upon the whole tribunal and for this reason alone the majority of training has hitherto been offered to chairmen and members together at a minimum frequency of each jurisdiction every other year. Nevertheless, training chairmen on their own gives scope for cross fertilisation of experiences, fosters a collegiate spirit and develops awareness of the links between jurisdictions as well as allowing deeper consideration of substantive issues than is ever possible in mixed member and chairmen sessions. Whether members too should be trained separately is less easy to answer. There is some indication that separate training of lay members encourages a sense of empowerment and self worth but this must be set against the advantage of interchange of ideas in joint training, and the ever present issue of training time not being unlimited. Of course there are exceptions—for example, the training of MAT members in the scope of Prescribed Diseases recently added to the list of such diseases, or the special training for assessors who sit with SSATs hearing Incapacity Benefit appeals so that they can be acquainted with the structure and work of ITS, with the judicial process and their role in it and the benefit insofar as they are involved in the hearing. Enquiries were made of those surveyed as to their preferred style of training and the value of documentation provided therewith. A summary of the responses is not easy because of the varieties15 of training (depending, particularly, on the jurisdiction and the regional preference) listed in the alternatives that could be "ticked". In the event, 43% of the respondents confirmed a regions in a learning and social environment; to explore common tribunal problems— substantive and procedural—in order to develop good practice in their resolution; to acquire essential tribunal skills, especially that of decision recording, in a collegiate learning atmosphere; and, to hear of, and understand the effects of, national policy developments that affect tribunal practice and procedure 14 15

See note 13 supra. Eighteen different permutations in all.

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preference for a combination of lectures and small groups with a further 12% favouring small groups only—balanced perhaps by 10% who supported lectures only. The lecture will always have a place as a way of imparting a block of new knowledge but the firm support in the survey by both chairmen and members for small group work that encourages discussion and participation has been an incentive to continue and refine this type of training which has been used both for skills and in joint training of chairmen and members. Over the past few years ITS has set its small groups case studies to discuss. Their complexity can vary. Members need less detail and time than chairmen, the latter benefiting from the opportunity to practise skills16 and rehearse solutions to practical problems in a neutral environment. Videos have proved particularly successful in joint training and in consequence ITS has commissioned several for its own use; whilst they are of prime value in demonstrating good practice in procedure and tribunal skills, they are a springboard for discussion of substantive issues which can be appreciated by all present given the context in which they are presented. Most recently ITS has produced its own video on "walking" which causes immense difficulties because of the difficulties for all in estimating distance and in reaching conclusions on speed, or manner, or gait. These apparently obvious and colloquial terms have been enshrined in legislation on Incapacity Benefit and Disability Living Allowance so must be considered daily by tribunals. The review of training confirmed and strengthened the scheme which now applies: centralised, expected by members and chairmen with their attendance in turn expected by the President as a condition of reappointment, regularly provided, and delivered regionally with provision for some local variation17. To illustrate its operation: 1995/96

- SSAT. Initial training in Incapacity Benefit. — DAT. Review of developments, focusing on mental health issues as they affect entitlement to Disability Living Allowance. — CSAT. Consolidation of understanding of basic rules governing child support, including using an interactive video produced by ITS.

1996/97

- SSAT. Initial training in Jobseekers' Allowance. — MAT. Review of principles to be used in assessing degrees of disablement in claims for disablement benefit.

1997/98

- DAT. Review of developments, particularly the interpretation of "supervision" as an element of the care component of Disability Living Allowance.

" Including for this purpose, listening, questioning, deliberating, weighing evidence, decision-making and writing. All are important if a successful tribunal is to be created. 17 Regional input might range from discussion of cases on particular areas of law causing local difficulties, guidance on procedure which seems to be causing problems for tribunals in the region, or hearing of administrative developments.

Maintaining Judicial Standards in the Independent Tribunal Service 413 - CSAT. Introductory training in departure directions. 1998/99

- SSAT. Refresher training in Incapacity Benefit for chairmen, members and assessors18.

Evaluation The final words of the review, accepted by the President, were to ". . . [confirm] that training . . . delivered is meeting the needs of chairmen and members . . . [The] recommendations, therefore, seek to create a centralised approach to joint training, to expand the current induction training, to be more effective at controlling budgets and to examine . . . evaluation procedures to ensure that the training that is provided continues to meet the needs of the organisation." The simplest evaluation test is to count the number of appeals from each individual chairman as a proportion of cases heard, but that is too crude because those figures will mask the complexity of the points at issue let alone the "litigious" personality of the some appellants, who are not of course distributed evenly between chairmen. An alternative is to refine further the evaluation techniques currently being used19 by considering perceptions of training immediately after the event and also inviting comments as to its success some time after the event (indeed better evaluation methods will be the way to ascertain whether the concerns expressed in the review have been addressed in subsequent training). Another alternative might be the perception of quality of tribunal decisions coming from Commissioners in their own judgements, or from regional20 and full-time chairmen who read decisions as well as monitoring.

Monitoring Monitoring is qualitatively different to previous assessment or training of that individual. It means a visit to a hearing lasting for one or both sessions of the day, sometimes unannounced, in order to observe the part-time chairman in action and assess his or her ability in that environment21. ITS has monitored 18 The foregoing does not include other wider training such as the refresher conferences for part-time chairmen, and the annual conference for full-time chairmen, and induction training for new members and chairmen. " A standard evaluation form suitable for all training has been developed and is used in all regions at each event. 20 Regional Chairmen may indeed choose to scrutinise all, some or any of their parttimers' decisions. 21 Monitoring reports should probably also be used to influence training content, although that occurs only in general terms such as the general sense that practice in decision writing is a continuing need that should be incorporated wherever possible.

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its chairmen for many years and is unusual in the judicial world in so doing. It almost goes without saying that it must be handled sensitively for a number of reasons including the need to preserve judicial independence and to be supportive of the individual concerned who may have little or no judicial experience. The monitoring task is carried out by a Full-time or Regional Chairman and all ITS chairmen are monitored within the first six months of their appointment, the visit being announced beforehand. They are monitored again a year after their appointment, that visit being unannounced; if pronounced satisfactory they will be left to proceed on their own, subject only to visits if there is cause for concern. A successful visit will have been an opportunity to discuss problems encountered to date and a chance to provide support for the novice who is learning technical, substantive and judicial skills, as well as an opportunity to correct poor practices before they become set. The emphasis is more upon whether judicial skills22 are being applied at all stages of the hearing than upon whether substantive law is known and being applied—although there will be difficulties of conscience for the monitor who, required t o be aflyon the wall, observes a substantive mistake. In this writer's experience, at any rate, it does not happen often, but when it does the rule must always be to keep quiet, and discuss later. Although most tribunal decisions issued are summary23, either party has the right to request a full statement of reasons for the decision24 that may have to be prepared after the session—so a monitoring visit is not complete until any such statement has been seen and noted by the monitor, so that skill too can be considered. Last, a report is prepared for the file which concludes with an assessment of ability against defined standards and outcomes which represent common norms that are applied in all regions by all monitors. They are set out below in the Table opposite. Neither lay nor professional members are formally monitored although a pro forma may be completed about their arrival, preparedness and contributions whilst a Chairman is being monitored. Members have not been included in part for logistical reasons—their numbers—and equally because whilst their role is without question important, the adjudication regulations impose upon the Chairman the duty of organising the proceedings and completing the decision following deliberations.

22 Judicial skills (or t h e s e purposes are defined as: managing the list; previewing; c o n d u c t i n g t h e h e a r i n g t o include introductions, organisation of the hearing, deliberating, and giving t h e d e c i s i o n ; a n d recording the decision. 23 Being t h e d e c i s i o n i t s e l f a n d a very brief n o t e as t o w h y the decision w a s reached

according to the Decision Notice (DN) form. 24

Social Security ( A d j u d i c a t i o n ) Regulations 1995, reg 2 3 .

Maintaining Judicial Standards in the Independent Tribunal Service 415 Table Monitoring standards and outcomes STANDARD

PERFORMANCE OUTCOME

SATISFACTORY

of a standard that is reasonably to be expected of a competent

GOOD

performance to a significantly higher level than satisfactory.*

MARGINAL

serious lapses, errors or omissions although there w a s effective performance in some areas.**

UNSATISFACTORY

failure adequately to demonstrate sufficient judicial skills to ensure the conduct of an effective hearing.**

and effective Chairman.*

* Although Chairmen in these two groups may be written to about their performance there is no obligation upon the monitor to do so. In fact, most monitors seem to do so, as a way of reinforcing advice offered or praise given. Further visits to Chairmen in these two groups are unlikely unless their appointments are to be widened, or some concern is subsequently expressed as to their performance. ** Chairmen in these two groups will always be written to after the monitoring visit, and will always be visited on a further occasion to ensure beyond the first one, or subsequent one if the visit has been to an experienced chairman about whom there is some concern, that there has been sufficient improvement to merit continued appointment.

The Future Training is dynamic; the conclusions and recommendations from the review are appropriate for the moment but will need to be revisited at intervals to ensure that the objectives continue to reflect both the mission statement of ITS and also its changing needs and responsibilities. During 1999 the present appeals processes will change when regulations to be made under the Social Security Act 1998 are implemented and the new scheme of "Decision Making and Appeals" (DMA) is introduced. The President will retain his obligation to arrange training. The changes will bring new training challenges to the successor to ITS. Lawyers will be more generic, capable of working in more jurisdictions than at present, many appeals will be heard by less than the present three people. Training in substantive law will be required for those taking on new work. It will also be required in skills for those sitting alone where hitherto they have been sitting with others: the expectation of previewing25, and of deliberating in the absence of appellants will disappear. Instead, experienced part-time and full-time chairmen will find themselves in situations familiar to most other holders of judicial offices—sitting on their own, more involved in case management than hitherto, eliciting all the evidence for themselves, and giving ex tempore judgements supported by brief 25 The private, preliminary consideration by all the Tribunal of an appeal, using the papers alone.

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noted decisions . ITS's successor will have the experience and structures established in the last few years to assist its response. DMA could be the catalyst for new training initiatives, such as greater use of distance learning which may become more significant as an option even though not hitherto contemplated except in unusual situations where the topic is important and pressing but not worthy of a whole module27. Actual and anecdotal experience though, shows that it is face to face training which is more appreciated in formal and informal sessions. It is perhaps ironic that in a smaller judicial force training could become more frequent because fewer resources would be needed to see the smaller number more frequently. 26

With, of course, the continuing option of requesting a full statement. See also note 24. Recently a note w a s prepared and circulated o n developments in compensation recovery, by which damages awarded are reduced to take account of benefits received by the successful party in the proceedings in the intervening period between accident and judgement. 27

20 Recruitment, Training and the Monitoring of Quality in the Planning Inspectorate CHRIS SHEPLEY

Introduction: The Planning Inspectorate SUMMARY of the nature and work of the Planning Inspectorate, albeit uncomfortably brief, is necessary in order to explain the way in which we recruit, train and monitor Inspectors. The Planning Inspectorate is an Agency within the Department of Environment, Transport and the Regions, and the Welsh Office. It is able to carry out work under more than 180 different pieces of legislation, but the most important are as follows:

A

1. Determining appeals against the refusal of planning permission for the development or change of use of land. There are various related matters, such as listed building consents, applications called-in by the Secretary of State for determination, and appeals against the refusal of advertisement consent. There are something like 14,000 appeals, and 2000 advertisement appeals, per year. 2. Appeals against enforcement action taken by local authorities requiring the removal or cessation of unauthorised development. There are between 4,000 and 5,000 cases per year. 3. Dealing with inquiries into development plans produced by local authorities. Though there are less than 100 of these cases each year, they are massive tasks for the Inspectorate; on average there will be something like 1,200 objections to each plan, and in extreme cases these figures rise as high as 20,000. The preparation, holding of inquiries, and reporting can take a year or more. 4. A whole variety of other matters are dealt with by the Inspectorate, of which rights of way and various appeals relating to environmental protection are perhaps the most important.

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In the vast majority of the appeal and enforcement cases, the Inspector makes the decision, "standing in the shoes of the Secretary of State". About 2% are called-in or referred to the Secretary of State for a decision. In the case of local plan inquiries, the Inspector reports to the local authority concerned, who makes the final decision. Inspectors normally sit alone, although for very large cases there may be 2 or even more Inspectors. Extreme cases such as the fifth terminal at Heathrow are unusual. The great majority of cases are relatively small, and 80% of them are dealt with by means of written representations. The remaining 20% are dealt with by either a formal public inquiry, held according to strict rules and with legal representation normal for the main parties; or by means of an informal hearing, which tends to take the form of a round table discussion led by the Inspector. The Inspectorate employs something like 350 Inspectors to carry out all this work; most of these are fulltime, but just over 100 work on a part-time basis. All of the Inspectors work from home—a very important factor in the management and monitoring of their work, to which I will return. At Tollgate House in Bristol, there are some 350 administrative staff. They process the casework, allocate it to appropriate Inspectors, collate the necessary information, and provide all the normal back-up services. A number of field Inspectors are based in the office, carrying out management duties. I need hardly say that the Inspectorate works strictly according to the Franks' principles of openness, fairness and impartiality. Surveys show that its decisions are respected, and that its impartiality is not in doubt, but it is constantly necessary to re-emphasise the commitment which the organisation has to these principles, and work to ensure that they are maintained. With this background, the paper will go on to discuss the following issues. First, it will describe how we go about recruiting new planning Inspectors; secondly it will describe how—once recruited—they are given their initial training. Thirdly, it will describe some of the continuous processes of training and development which we have for Inspectors. And fourthly, it will describe the various means •which we use to monitor the quality of work of Inspectors, and to ensure that the high standards which we set for ourselves are maintained.

Recruitment Over the last 3 years, the Inspectorate has recruited something like 80 new Inspectors, in 3 groups. Whilst the recruitment methods have varied slightly, the general principles are the same. There have, on each occasion, been a very large number of applications (as many as 850). It is obviously necessary to carry out some form of initial sifting process, and this is based on the experience of the candidates concerned, the quality of their applications, and other relevant matters.

Monitoring of Quality in the Planning Inspectorate

419

We would first draw up a "long short-list". These candidates are put through a number of tests, which are designed to examine their suitability to perform the various functions of an Inspector. This will always include a written test, since the ability to write a clear and well structured decision letter is fundamental. It will normally include a psychometric test, designed to see whether an individual will take easily to the rather unusual regime of an Inspector, which involves not only working from home, but spending some time away from home at site visits and inquiries, and being somewhat isolated (because of an inability, for obvious reasons of fairness and impartiality, to talk to other parties in the inquiry). Thirdly, there will normally be some problem-solving exercises (not necessarily related to town planning), and also some structured discussion groups designed to identify those candidates who are likely to be able to hold and control public inquiries. On the basis of all of these, quite stringent, tests candidates will be narrowed down to a short list of maybe 20 (if there are 12 places) for a formal interview. This will be held by a board of 3, and will again be vigorous and searching. Thus, the process is a very thorough one. It is expensive and time consuming, but we regard it as particularly important to identify the best possible candidates for the job. We are fortunate in having a large range to choose from, but the job is a rather unusual one, and we feel it necessary to test all of the various characteristics which are relevant.

Initial Training Successful candidates will attend an initial 2-week training course, in groups of about 12, immediately on entry to the Inspectorate. Most of the candidates are planners, but sometimes we recruit others from related professions, (architects, environmental scientists for example) who are needed for specific kinds of cases. These people may be given a special one-week training course, before the main induction course, in some of the basic principles of planning. The induction course, which is residential, and intensive, is designed to do a whole range of things. First, it will inculcate in candidates the principles of openness, fairness and impartiality. Secondly, it will ensure that they are aware of all the basic policy and legal matters which they need to know. They will be given large quantities of paper to read, and to refer to in the future. There is a large amount of such material which has to be taken on board in a short space of time. Thirdly, it will train Inspectors to carry out written representation casework. They will be given dummy cases, and be asked to write decision letters based on those cases. They will be instructed on ways to proceed (for example when making site visits), and on the problems which may arise; and told how to write decision letters, in what timescale, and what kinds of mistakes to avoid.

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They will be placed in the care of a "Senior Inspector Trainer", a field Inspector who will look after them, and guide them for their first 15-18 months in the Inspectorate. Immediately after the initial 2-week training course the new Inspectors will be given real casework, and sent out into the field. They are, immediately, responsible for their own decisions. But all of their letters are read and monitored by the Senior Inspector Trainer (with assistance from administrative staff). Comments are given to them on their letters, rewriting is carried out as necessary, and the live casework is used as a training medium to bring them up to speed, eliminate mistakes, and develop a proper style of decision letter writing. After about 9 months of experience with written cases, the group of Inspectors will return for a second 2-week residential course, which is designed first to discuss the lessons which have already been learnt, and secondly to train Inspectors in the skills of inquiry holding and the holding of hearings. They will, amongst other things, hold dummy inquiries during the training course, and there is particular entertainment in the session when their colleagues are briefed to raise unexpected problems (such as a pneumatic drill outside the window, or a pregnant member of the public giving birth during the inquiry), and so on. These exercises are videoed, and prove an invaluable learning experience. There will also be outside speakers at these events— including, in particular, a representative of the Planning and Environmental Bar Association. The Inspectors will also observe real life hearings and inquiries, and discuss the proceedings amongst themselves. They will then be given their first inquiry and hearing cases—always a significant moment in an Inspector's career—and go off into thefield.The aim is to give them simple one-day cases initially, although sometimes these turn out to be more complicated than anybody could have predicted. In general, the level of training which they have been given is such that they can cope with almost any eventuality. However, they continue to be monitored, and all their letters continue to be read, for a further year or so. The monitoring includes their Senior Inspector Trainer sitting at the back of their 3rd or 4th inquiry. Eventually, when 90% of their letters are without error, they are given what is known as "red star" status. This means that they are fully fledged Inspectors, and that all of their letters do not need to be checked (though, as we shall see later, their work still needs to be monitored along with everybody else). Thus, there is a period of (on average) 2 years during which Inspectors remain in training, though with increasing quantities of work, and decreasing levels of intervention by their trainers. After the completion of training, Inspectors enter sub-groups and come under the care of a Principal Planning Inspector (the structure, for Inspectors who have been trained, involves 3 tiers—"Main Grade Inspector", "Senior Inspector" and "Principal Inspector"). Appeals which are received in the Inspectorate are graded according to the level of difficulty, and, so far as

Monitoring of Quality in the Planning Inspectorate

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possible, are allocated to an Inspector of the appropriate grade. Thus a complex case will be given to a Principal Inspector, and a simple case to a Main Grade Inspector. However, of course, it is not always possible to predict how complex a case is likely to be. In addition, Inspectors have (or develop) specialisms. Thus, a case involving a listed building will normally fall to an architect. We have Inspectors who are specialists in retailing, in minerals, in environmental work, and in a whole range of other specific topics.

Continuing Training After the initial training is over, it is obvious that Inspectors need to continue to be helped and trained in carrying out their tasks. We live in a rapidly changing world, and they need to be kept up to date. This is particularly difficult, because they are home based. It is very expensive, both in terms of travel, and in terms of lost casework time, to bring Inspectors together. Inevitably, therefore, much of the keeping up to date has to be done in writing. It is also done through the Principal Planning Inspectors who meet quarterly, and discuss issues of current significance—then cascade that information through their sub-groups. Each Principal Inspector would head a sub-group of up to 12 Main Grade or Senior Inspectors and would call informal meetings in the locality of the sub-group, usually about 4 times a year. Three years ago we instituted an annual training week for Inspectors. The whole of the Inspectorate will stay, for a week, at a university (Bath in 1996, Exeter in 1997 and Warwick in 1998). They will be given an extensive series of talks and seminars, and hold discussions on policy and procedural issues. It also gives them an opportunity to socialise, and to learn from one another. The isolation of Inspectors working from home is a management problem, and the training week does a great deal to overcome this difficulty. The week will include contributions from outside speakers, as well as presentations by Inspectors themselves. In addition, specific courses are held on particular topics. For example, those who specialise in minerals might be brought together to discuss a new piece of Government advice; or the shopping specialists might meet to discuss current problems. Over the last 2 years or so, we have had difficulty in meeting our timescales because of an upsurge of work (particularly in local plans); some of these specialist training courses have suffered as a result, and there is always a difficult balance to be struck between completing the work on time, and training the workforce. Training is also given in management, to those Inspectors who come into the Headquarters office; and, within reason, Inspectors are encouraged to attend outside training courses organised by such bodies as the Royal Town Planning Institute.

422

CHRIS SHEPLEY

Monitoring The Inspectorate has for a long time put a great deal of effort into monitoring the work of its Inspectors. This is done for a number of reasons. First, and very obviously, we need to ensure that we continue to maintain our high quality output. Secondly, because Inspectors work from home, it is more difficult than it might otherwise be to keep a grip on quality and consistency. We are encouraged in this task by an outside body—The Advisory Panel on Standards—which is appointed by the Secretary of State, and is currently under the Chairmanship of a prominent member of the Planning Bar. This body is charged with ensuring that we maintain our quality standards, and keeps a close watch on our activities in this field. Internally, we have a "Quality Assurance Unit". It has 3 primary tasks. First, it deals with complaints—which we regard as an important source of information about our performance. We respond to complaints as best we can, and make changes where complaints reveal a genuine error or problem. Secondly, the Unit deals with legal challenges—all too frequent (though not always successful by any means). These also provide a source of information and guidance to us. Thirdly, and most importantly from the point of view of this paper, they carry out various exercises to monitor the quality of Inspector's work. They will read a random sample of decision letters, post issue. They will look at them in relation to the case file (which contains all the evidence and representations). They will comment on the structure of the letter, the logic and rigour of the letter, whether or not it relates well to the evidence on the file, and whether it is expressed clearly and logically. Most decision letters, will not, of course, be read internally at all—although an Inspector can always ask for his o r her letter to be read before issue if they feel that it raises particular problems. This will normally be done by the line manager (or his or her staff), who will also read letters on Secretary of State cases or letters which raise particularly sensitive issues. All decision letters on local plans are also read in the office. Principal Inspectors read a proportion of the letters (post-issue) produced by members of their sub-groups, as part of their management and staff appraisal responsibilities. It will be seen, that taken together, these mechanisms provide a good opportunity to ensure that the quality of decision letters is being maintained and the process is being faithfully and honestly applied. It is never possible, after the event, to be certain about some matters. Only the Inspector who attended the site, or who was present at the inquiry or hearing, can be in possession of all the information. But in general, these checks provide a good way of picking up potential errors and mistakes. We find that difficulties arise in 2 particular areas (although they arise very infrequently). First, there can be careless errors (Acacia Avenue instead of Acacia Grove, or east instead of west). These may make very little difference

Monitoring of Quality in the Planning Inspectorate

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to the decision, but they should not happen. Secondly, problems arise where conditions are placed on the grant of planning permission. These have to be worded very carefully; mistakes can creep into this area and decisions can be fatally flawed. So we are particularly on the look out for these two things. We will issue advice to Inspectors where we find that mistakes are being made on particular topics, and organise sessions at the annual training week, so that these points can be discussed. We try to ensure that this monitoring is not seen as a hostile activity; it is intended to be for the benefit of Inspectors and the Inspectorate, in maintaining high standards, and the respect which flows from those standards for the decisions that we make. We have tried a number of experiments which go further than simply reading decision letters and actually involve visiting sites. We have given case files (but not the decision) to a second Inspector; asked him or her to visit the site; and sought a "dummy" decision, from the second Inspector. This is then compared with the original decision, and (fortunately) they are usually the same. In cases where there are differences, there are generally good explanations. But, in planning decisions (as in many other areas) there is not always a "right" or "wrong" answer, and we would expect some differences to occur. In cases where national policy is very clear (such as green belts) these differences are rare; in cases where national policy is less clear, and the decision depends very much on local circumstances (such as hot food takeaways), the decisions tend to vary rather more. However, we have been able to learn from these differences and issue advice to Inspectors which has helped to ensure greater consistency in decision making.

Conclusion I hope that this brief summary of our approach to recruitment, training and monitoring has helped to explain how we manage to maintain standards within the Planning Inspectorate. All of the processes which I have described are expensive and time consuming; and since, like all other areas of Government we are under financial pressure, they are always under threat. But we try not to make short term financial savings in these areas because we realise that the long term costs can be significant. Our continued existence, and our ability to do the job we are given, depends absolutely on our maintaining the respect of all those involved in the planning appeal process. This in turn depends on recruiting the best people, training them properly, and making sure that they maintain a high standard. We are constantly changing and improving these methods, and I am sure that we can continue to do so, and to learn from others in the Administrative Justice system. In turn, I hope that our experience will be useful to others; I am pleased that we have been able to put resources into these areas, and I feel that the results we have had justify our efforts.

21 The Selection, Training and Monitoring of Lay Tribunal Members (With Special Reference to the Independent Tribunal Service) MICHAEL ADLER1 Introduction NDER the provisions of Part I of the 1997 Social Security Bill, the Government sought to abolish the requirement that appeals relating to social security and child support had to be heard by a three-person tribunal and that tribunal chairmen had to be lawyers of standing. In spite of opposition from (among others) the welfare rights lobby, the Independent Tribunal Service and Liberal Democrats on the Standing Committee, there was little opposition to these proposals in the House of Commons and the radical shake-up of decision making and appeals envisaged by the Bill passed almost unnoticed2. However, they aroused considerable opposition in the House of Lords and, in an effort to secure the passage of the Bill, the Government agreed to an amendment proposed by Lord Archer of Sandwell, Chairman of the Council on Tribunals, which ensures that at least one member of an appeal tribunal (but not necessarily the chairman) is legally qualified. However, the Government refused to accept a second amendment designed to ensure that all appeals continue to be heard by three-person tribunals. Thus, some appeals will be heard by a one person "tribunal", although that person will have to be legally qualified.3 The proposals in the Bill and the Act have very different implications for the

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1

I am pleased to acknowledge the contributions of Jeffrey Jowell, who was the source of many of the arguments set out in the first part of the paper and the catalyst for most of the others; Carol Jones, who carried out the research and wrote the report on which the second part of the paper is based; Godfrey Cole, who commented on an earlier draft of the paper; and Alan Gamble who provided me with an update on recent developments. 2 See generally Adler, M and Sainsbury, R (eds) (1998) Adjudication Matters: Reforming Decision Making and Appeals in Social Security (New Waverley Papers 14), Edinburgh: University of Edinburgh, Department of Social Policy. 3 Circular No. 14 from the President of the ITS. As from the date on which the Act was

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selection and training of tribunal members. Under the Government's original proposals, the legal input into tribunal decision making was clearly under threat since tribunal chairmen would not necessarily have been legally qualified and tribunals would not necessarily have included any legally qualified members. Somewhat perversely, under the provisions of the Act, it is the lay input into tribunal decision making which is now under threat. At the time of writing, no firm decisions have been taken but, if one person "tribunals" become the norm, it follows that the role of lay members will be reduced. Be that as it may, this uncertainty makes it an opportune time to consider the selection, training and monitoring of lay tribunal members. In the first section of this paper, I set out and attempt to evaluate the various arguments which have been deployed to explain and justify lay participation in tribunal decision making. I consider this issue first because it informs the analysis of empirical research which follows. In the second section, I summarise a piece of research which Carol Jones and I carried out some 10 years ago for the Scottish Consumer Council4. The Scottish Consumer Council, which commissioned the research in 1988, considered that it was unclear how lay people were appointed to magistrates courts and tribunals, what kind of people they were, and what kind and level of training they received. Thus our remit was "to assess and compare methods of appointment and training provided to lay members of tribunals and to magistrates in Scotland; to identify examples of good practice and to make recommendations". Our report attempted to answer these questions, to explain how and why the methods of selection and training had developed in different ways and how they might profit from change. In the third section, I look at the position in respect of training (although, sadly, not in respect of selection or monitoring) some six years later by summarising the results of a review of the training provided for part-time chairmen and members of those tribunals which are the responsibility of the Independent Tribunal Service (ITS). This reviews, which was carried out at the request of the President of the ITS by the Judicial Training Advisory Group (JTAG) and includes an analysis of the training carried out in 1994/95, sought to identify "the extent of training which members and part-time chairmen need" and to determine whether joint training of members and chairmen is "the best and most efficient way of delivering necessary training". Finally, by drawing on these two studies, I seek to draw some general conclusions about selection, training passed, hearings and applications to set aside would henceforth be determined by legallyqualified chairmen sitting alone. In Circular No. 16 he announced that, as from 2 November 1998, appeals involving the "All Work Test" for Incapacity Benefit would likewise be determined by a legally-qualified chairman sitting alone. 4 Jones, C and Adler M (1990) Can Anyone Get on These? A Study of the Appointment and Training of Justices of the Peace, Members of Social Security Appeal Tribunals and Children's Panels in Scotland, Glasgow: Scottish Consumer Council. 5 Independent Tribunal Service (1995) judicial Training Review, London. See also Chapter 19 by G. Cole in this volume.

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and monitoring of tribunal members and some more particular conclusions relating to ITS.

Justifications for Lay Participation in Tribunal Decision Making Arguments for Lay Participation Since lawyers have all had a legal training and are members of a profession with its own code of professional ethics and mechanisms sanctioning professional misconduct, it does, at first sight, seem rather odd that tribunal adjudication should not be the exclusive domain of lawyers. However, it would appear that a number of arguments for lay participation in tribunal decision making have been used. Some of these arguments focus on the positive features of lay decision making while others focus on the negative features of decision making by lawyers. 1. Tribunal decision making may be seen as an extension of the administrative process rather than as an integral part of our system of justice. Although the Franks Committee's conclusion that "tribunals should be regarded as machinery provided by Parliament for adjudication rather than as part of the machinery of administration"6 might appear to be unchallenged, administrative tribunals are still, in some quarters, seen as an extension of administrative processes. From this, it would follow that they do not need to be staffed by lawyers. 2. Lay membership is supported by the pragmatic tradition in British public administration. There is a tradition of pragmatism in British public administration which disparages expertise that is encapsulated in the belief that "any intelligent person can decide anything". Unlike France, where most civil servants have graduated from one or other of the Grandes Ecoles, or many other European countries, where they have graduated in law, civil servants in the UK may have graduated in anything. Moreover, although some civil servants are specialised professionals, they rarely achieve the "commanding heights" in the civil service; the tradition of pragmatism referred to above means that most civil servants are moved to a new post just at the point at which they have mastered their old one. 3. Lawyers are very expensive and non-lawyers much cheaper. Lawyers may sit on tribunals on a full-time or a part-time basis. In the first case, they will draw a salary linked to the judicial salary scale, in the second case they will be paid on a sessional basis; in both cases, the cost may be considerable. Lay members, on the other hand, are typically both part-time and either unpaid or paid at a much lower rate. Although they are usually able to 6

Cmnd 218, HMSO 1957, para 41.

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claim time in lieu and expenses for travel and subsistence, the cost is obviously much less. If the standards achieved by lay decision makers are comparable with those achieved by legally-qualified decision makers, it could be argued that a system of lay participation is not only more economical but also more efficient. 4. Lawyers are thought of as excessively formal and unapproachable while lay representatives are more informal and approachable. Since tribunals were designed to be more informal and "user friendly" than courts, it has been argued that lawyers should have a much lower profile in triunals. With one or two exceptions, legal aid is not available and there is little legal representation. It is entirely consistent with this view that decision making should not be the exclusive preserve of lawyers and that lay members should contribute to it. 5. Lay participation gives additional legitimacy to administrative tribunals and helps to make their decisions more acceptable. Lay membership of tribunals, as well as lay representation of appellants, helps to "demystify" the law by making it more accessible to the public. The participation of lay tribunal members, especially where they are from the same background as appellants and have some experience of the issues in dispute, can confer additional legitimacy on tribunal procedures and outcomes. 6. Lawyers may be out of sympathy with much of the welfare state legislation with which administrative tribunals are concerned and seek to undermine it while lay representatives are more likely to be sympathetic and supportive. Griffith7 has argued that senior judges are drawn almost exclusively from a small section of the wealthy, professional upper middle class and, in evidence to the House of Commons Select Committee on Home Affairs last year, he pointed out that 80% are educated at public school and Oxbridge and that the figures have varied very little over the years.8 According to him, their background makes them inherently conservative and thus out of sympathy with "progressive" legislation. Similar arguments are expressed by critics of the government's decision to incorporate the European Convention on Human Rights who are concerned that this will give too much power to judges who are likely to sabotage our liberties by interpreting the Convention in very conservative ways. Although senior members of the judiciary have little (or no) involvement with administrative tribunals, these arguments are sometimes extended to those (fairly senior) members of the legal profession who do take an active role in tribunal proceedings. It is suggested that members of the public who apply to be lay tribunal members are more likely to be in sympathy with welfare state legislation and that, in the absence of these lay members, lawyers could sabotage the delivery of many welfare state programmes. 7 8

Griffith, JAG, The Politics of the Judiciary (Glasgow: Fontana; 5th ed 1997). Daniel, C (1997) "Can We Rely on the Judges?", New Statesman, 21 November, 22-23.

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7. Lawyers are associated with the "pathology of legalism" while lay representatives can be expected to adopt a more common sense approach to decision making. It is sometimes argued that lawyers are naturally inclined only to accept evidence given on oath, to require corroboration, to insist on more procedural formality than is appropriate, to be preoccupied with form rather than substance and to engage in excessive "hair splitting". Lay members, on the other hand, are thought to be more relaxed about rules of evidence and forms of procedure, and to be more prepared to use "common sense" in arriving at a sensible judgement. 8. The inquisitorial mode of dispute resolution adopted by most tribunals calls for specialised, contextual knowledge which lawyers are unlikely to possess. Where the parties in dispute are legally represented, the adversarial mode of dispute resolution makes sense. However, where the parties are not legally represented (as is the case in most tribunals where appellants are not entitled to legal aid), this will be less appropriate and an inquisitorial mode of dispute resolution may be more desirable. However, inquisitorial decision making requires a familiarity with contextual matters which lawyers are unlikely to possess. 9. Lay expertise may be needed to establish the facts where these are in dispute. The issues in dispute are more likely to focus on different accounts of the facts than on the correct application of the law. Lay tribunal members who are familiar with the setting in which the dispute has arisen are more likely to be able to ascertain the facts than lawyers who have, at best, a general knowledge of the area. 10. Where the tribunal has considerable discretion, a lay member's input may be more relevant than a lawyer's. Just as magistrates' discretion in sentencing is designed to ensure that the penalties imposed reflect local norms and the values of local communities with which lay magistrates are thought to be familiar, so the exercise of discretion by administrative tribunals can also reflect the norms and values of the communities from which the lay members are drawn and with which they are presumably familiar. When it comes to the exercise of discretion, there may be no distinctively legal input into decision making.

Assessing the Arguments In the previous section, the arguments in favour of lay membership of tribunals were set out but no attempt was made to assess their validity. In some cases, the arguments stand or fall "across the board" but, in others, their validity is greater in some contexts than in others.

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1. The first argument (that administrative tribunals should be seen as an extension of the administrative process) fails to grasp that one of the most important functions of tribunals is to act as a check on administrative decision making. It is widely held to have been dealt a fatal blow in the Franks Report 30 years ago. 2. The second argument (that lay decision making is consistent with the pragmatic character of British public administration) is based on tradition rather than on principle and, although a generalist culture is not only pervasive but clearly constitutes a formidable obstacle for reformers who seek to promote a judicial model of adjudication, it is not particularly compelling. 3. The third argument (that lawyers are more expensive) raises some very important pragmatic considerations and, in the context of severe constraints on public expenditure, cannot be ignored. However, the strength of the argument is clearly contingent on the availability of data about the relative costs of legally-qualified and lay members which is often unavailable. 4. The fourth argument (that lawyers are excessively formal and unapproachable) is usually directed at judges sitting in the higher courts and it is not clear that it applies to judges in the lower courts or to lawyers on tribunals. Moreover, to the extent that it does apply (and thereby constitutes a problem), it should be possible for the tribunal authorities to deal with it through selection, training and monitoring. 5. The fifth argument (that the lay members confer legitimacy on tribunal proceedings) is undoubtedly important although the extent to which they do so undoubtedly depends on the quality of tribunal proceedings and the efficacy with which lay members are selected, trained and monitored. 6. The sixth argument (that lawyers may be out of sympathy with much welfare state legislation and seek to undermine it) tends to be held by those who subscribe to "red light" theories of the relationship between law and administration, which assume that the state is a threat to the freedom of the individual. However, it is strongly contested by those who subscribe to "green light" theories which hold that the state is the only effective guarantee for individual freedom9. In this case, the validity of this critique of lawyers will be affected by the effectiveness of selection, training and monitoring of legally qualified tribunal members. 7. To the extent that the seventh argument (that lawyers are associated with the "pathology of legalism" while lay members adopt a more common 9

Harlow, C and Rawlings, R (1984) Law and Administration, London: Weidenfeld and Nicolson.

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sense approach to decision-making) is true, it should also be possible to deal with it though selection, training and monitoring of legally qualified and lay members. Although "hair splitting" has its drawbacks, "common sense" is not always sufficient. In this case training should attempt to highlight the advantages and disadvantages of both attributes. 8. The eighth argument (that the inquisitorial mode of dispute resolution calls for specialised knowledge which lay members are more likely than lawyers to possess) assumes that lay members with the requisite knowledge get selected and that training informs them how best to bring that specialised knowledge to bear on the cases that come before tribunals. 9. The same comments can be made about the ninth argument (that lay expertise may be needed to establish the facts where these are in dispute). 10. The tenth argument (that a lay member's input may be more relevant than a lawyer's to the exercise of discretion) is clearly more relevant to some administrative tribunals than to others. However, where it is relevant, it does assume that selection results in lay members who embody the relevant communal norms and that training provides them with guidance as to how and in what ways these norms are relevant to the exercise of discretionary decision making. By assessing the validity of these arguments in different institutional contexts, the particular contributions which lay members can make to a range of different administrative tribunals could be clarified. The Implications of These Arguments for Selection, Training and Monitoring An assessment of the arguments in favour of lay participation in tribunal decision making has implications for selection, training and monitoring. Selection (of legally-qualified as well as lay tribunal members) should aim both to weed out applicants with inappropriate qualities (e.g. excessively legalistic lawyers or lay members who believe that common sense is all that is required) and to identify those with appropriate qualities (e.g. legally qualified members who are broadly in sympathy with the aims of the legislation or lay members who have the requisite contextual knowledge); training should aim to encourage those distinctive contributions to the decision making process which legally qualified and lay members are thought to possess; while monitoring should aim to identify members whose contribution to tribunal decision making is unsatisfactory. For this to happen, each of these processes needs to operate with a clear conception of what these contributions are. Against this yardstick, the findings from the study carried out in 1988 for the Scottish Consumer Council (the SCC study) will now be reviewed.

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Selection, Training and Monitoring in 1988. The SCC study focused on three systems of adjudication (Social Security Appeal Tribunals, Magistrates' Courts and Children's Hearings, the welfare tribunal which decides what should be done with children who are in need of compulsory measures of care) in Scotland and covered selection, training and monitoring. Each of these subject areas is considered below.

Selection The three systems of adjudication adopted quite different selection procedures. SSATs invited applications from a set of approved organisations. The President of the Independent Tribunal Service (ITS) is bound by statute to consider any recommendations for potential members from any organisation he deems appropriate. In practice, he delegated this responsibility to the Regional Chairmen who were responsible for maintaining the balance of the tribunal in their Region. The Scottish Regional Chairman selected a number of organisations which were considered to be representative of the community and, when a vacancy occurred, he contacted one or more of these organisations and asked them to nominate a candidate. There were no formal criteria for selection but nominating organisations were given some idea of the qualities which were sought in candidates and the role they were expected to fulfil in an introductory letter from the Regional Chairman. However, applicants were not necessarily given this information. Although Regional Chairmen had a free hand in selecting tribunal members, to ensure that SSATs met the statutory requirement that "if practicable, at least one of the members of the tribunal hearing the case shall be of the same sex as the claimant"10, they attempted to maintain a balance between men and women. In addition, and on the grounds that "a substantial proportion of tribunal work involves knowledge of workshop practices and working conditions", 11 they attempted to recruit approximately 50% of tribunal members through the TUC and local Trades Councils (in England and Wales) and through the STUC (in Scotland). Finally, in areas where there was a substantial ethnic minority population, efforts were made to ensure that ethnic minorities were adequately represented. Candidates who were nominated for membership were interviewed by the Regional Chairman or by a full-time Chairman. The interview itself, which was seen by both the President and the Scottish Regional Chairman as providing a measure of "initial training", aimed to impart information 10 11

Social Security Administration Act 1992 Section 41(6). H. H. Judge John Byrt, QC (1989) Personal Communication to the author.

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concerning the role of the tribunal member and to assess the candidate's suitability for a judicial role. However, since nearly all nominees were recommended and appointed, the assessment cannot have been very rigorous and it is unlikely that everyone who was recruited in this way had the requisite qualities. Those who were appointed were expected to sit in on a few tribunals to familiarise themselves with tribunal procedures but were not required to undertake any pre-service training. By contrast, Magistrates Courts themselves identified individuals who were thought to possess the requisite qualities. The local Justices of the Peace Advisory Committees (JPACs), whose membership was kept secret, adopted a "personal" approach in selecting new JPs. Informal enquiries were sometimes made concerning potential new recruits to the Bench and interviews could be conducted without the candidate necessarily being aware that he or she was being considered. Although there was nothing to stop someone who was not already well connected from asking to be considered, this was relatively rare and it appeared that "word of mouth" recommendations were a sine qua non. About three quarters of those considered were recommended for appointment but just how this was done was unclear. The whole process was highly subjective and many of those who were recommended could be described as "local worthies" or "local notables". As a result, the Bench had some of the characteristics of a club and was in no way representative of the local community. Recommendations for appointment had to be unanimous and it follows that each JPAC member had the power of veto. Those who were nominated were then asked to complete a standardised pro forma and their names were forwarded to the Secretary of State who had "absolute discretion" about whether or not to make an appointment. However, as with SSAT members, appointment followed on fairly automatically from nomination. Newly appointed justices were required to sit in the District Court on three occasions of not less than six hours each and to attend a course of pre-service training organised by the local Clerks to the Justices before they were allowed to sit in court. Whereas both SSATs and Justices of the Peace used "closed" systems of recruitment, the Children's Hearing was much more "open" and pro-active in its approach. Although local Children's Panel Advisory Committee, which are responsible for both selection and training, are free to decide on ways of recruiting panel members in their local areas, the Social Work Services Group (in the Scottish Office) has made recommendations concerning the form and content of publicity, advertising, application forms, method of assessment and selection criteria. CPACs have, in fact, been quite innovative in their recruitment strategies, using advertisements in the national press and on national radio (paid for by the Scottish Office), on local radio, in local community centres, on buses and, in Strathclyde, by means of a specially produced video. As a result, they have generated a large pool of applicants.

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Many CPACs used professional selectors and applicants were typically required to submit a written application, go through a series of interviews and take part in a group discussion. In selecting panel members, there is a conflict between creating a panel which represents a cross-section of the community and selecting panel members possessing the appropriate personal qualities for dealing sensitively with children in trouble. With a small pool of applicants, hard choices have to be made but, with a large pool, it has increasingly been possible to satisfy both goals at the same time. Although we were unable to obtain statistics on the proportion of applicants who were recommended for appointment, the success rate was clearly much lower than for SSATs or JPs. The names of those who were recommended were then forwarded to the Secretary of State. Before sitting, they were required to undertake and satisfactorily complete both a mandatory programme of pre-service training and an initial programme of training where members sat in on hearings to familiarise themselves with tribunal procedures, went on visits, liaise with local schools and social workers, and took part in a two day course on chairmanship. The pre-service training lasted for 75 hours over a period of four months and was supplemented by 15 hours over several evenings following up and reinforcing areas of particular interest. Each of the systems of adjudication we studied used a different set of selection procedures. Although each could undoubtedly learn from the others, selection of lay members of the Children's Hearings appeared to come closest to representing "good practice". By using "open" methods of recruitment and making the criteria for selection available to applicants, it generated a far larger pool of applicants than either SSATs or Magistrates Courts. This enabled the selectors (who often included professional experts) to distinguish those who had the relevant personal qualities from those who did not. Selection was linked to an ambitious and broadly-based programme of preservice training which new panel members were not only required to take but also had to complete satisfactorily. It was clear that this involved a substantial commitment of resources but, if this could be justified in the case of the Children's Hearing, it is not unreasonable to ask whether it should not be considered in the case of other administrative tribunals.

Training The training programmes provided for lay members of the three systems of adjudication were likewise very different. As with selection, the President of ITS is formally responsible for training, being bound by statute to "arrange such training for chairman and members as he considers appropriate". When the SCC study was carried out, training for tribunal members was carried out separately from training for tribunal chairmen and comprised a one-day course of regional training every other year, with additional training being provided "in light of major changes in the

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law" 12 . A training team, comprising the Regional Chairman and one or two academics, travelled the country giving short, one-day courses on recent pieces of legislation. Attendance was not compulsory and members who had not attended a training course could sit for some time (until the end of their threeyear period of appointment) without this being noticed. The training itself was rather narrowly legalistic and made very little reference to the distinctive contributions which lay members could be expected to make. Thus, there were virtually no references to tribunal procedures, the importance of representation, the problems of the unrepresented appellant, the living and working conditions of claimants, the difficulties surrounding a determination of the facts, or to problems associated with an inquisitorial mode of dispute resolution. The mode of instruction was traditional and didactic—role play was not used and there were no visits to local DSS offices, voluntary organisations or welfare rights groups. By concentrating on legal issues, training programmes ignored the special contribution to tribunal decision making which lay members could have been encouraged to make. Training for JPs was somewhat more ambitious. The programme of preservice training has already been referred to. The programme of in-service training involved more advanced instruction on legal aid, the operation of the Legal Aid Board, the place of the District Court in the judicial system, common law and statutory offences, and a further examination of the powers of punishment available to JPs. In some cases, it also included visits to local prisons and police stations. Much of the training was organised by local Clerks to the Justices and, in the absence of any national minimum standards, there was a good deal of local variation. The more enterprising Clerks developed sentencing exercises and used small group discussions; the less enterprising invited speakers to give traditional lectures and/or circulated updates on recent legislation. There were also annual courses run by the Regions and by the District Courts Association but attendance at all forms of training was not compulsory. Although the content of JPs training was not as narrowly legalistic as that for SSAT members, it was weak on social context. Thus, for example, it did not include any discussion of criminology, criminal justice, adolescence, poverty, child care, social attitudes or public opinion and although some sentencing exercises were used, the treatment of sentencing was fairly rudimentary. By concentrating on legal issues, training for lay justices was narrower than it needed to be. If it had addressed what lay justices could bring to the courts, it would have been more wide-ranging. In part because it was organised by professional Training Organisers, who were based in University Continuing or Adult Education Departments, Children's Panel training was altogether more ambitious. Reference has already been made to the programme of pre-service training. In-service 12

Byrt, op. cit.

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training took place throughout a panel member's term of office. It consisted of three regional training events (organised by the Training Organiser) every year, a refresher course for everyone re-appointed as a panel member and training events organised by local panels. In addition, there was an annual summer school. Although in-service training was not compulsory, it was strongly encouraged and attendance was a factor considered by the CPAC at the time of re-appointment. Training consisted of lectures, seminars, discussions, videos and role-play exercises. It covered the circumstances of children in trouble, the resources and facilities available for them, the interface with education, social work, the police and the courts, panel procedure and panel decision making, and included visits to children's homes, intermediate treatment centres and community projects. As such, it was not excessively legalistic and attempted to give panel members, who were drawn from a wide range of backgrounds, a relevant course of training "in the round". In respect of training, our research revealed one de luxe model and, by comparison, two rather inferior ones. This contrast holds whether we consider the volume of training and the importance attached to it or the content of training and the extent to which it recognised and sought to develop the distinctive contribution of lay members. Training for Children's Panel members was substantial and ongoing; for Magistrates it was significant but intermittent; for SSAT members at was insignificant and occasional. Training for SSAT members was narrowly legalistic and very traditional in its mode of communication; for Magistrates it was largely but not wholly legalistic and somewhat more imaginative in its mode of delivery; for Children's Panel Members it was wide ranging and varied in its mode of presentation. These differences are largely attributable to the fact that Childrens' Panel training was run by professional Training Organisers with a base in the universities, while training for SSAT members and Magistrates was an additional (and possibly unwelcome) responsibility for full-time Chairman and Clerks to the Justices, neither of whom necessarily have any special expertise in the area. The effects of this are that SSAT training, to the extent that it has any impact, encouraged lay members to think like lawyers and played down their distinctively lay inputs to tribunal decision making. Magistrates training was not quite as extreme although it was not designed to encourage JPs to critically evaluate their performance or question their prejudices in the light of knowledge concerning the causes of crime or the effectiveness of sanctions. Training for Children's Panel members could be viewed more positively although there was a lingering doubt that it had the effect of reinforcing the welfare ideology underlying the Children's Hearing System rather than encouraging members to bring communal concerns to bear on the cases they had to deal with.

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Monitoring The third concern of the SCC study was with monitoring the performance of lay tribunal members. Although the Council on Tribunals has general oversight of those tribunals which fall under its jurisdiction and conducts a programme of visits to tribunals, its remit does not extend to monitoring the performance of individual tribunal members. Different procedures were in evidence in each of the three systems we studied. Appointments to SSATs are for periods of three years and re-appointments are for a similar period. According to the then President, the performance of tribunal members and chairmen was regularly assessed whenever the Regional Chairman or a full-time Chairman visited or chaired a tribunal. Where areas of concern were apparent, the practice was "to have a quiet word afterwards". However, given the number of SSAT members and chairman and the many other pressures on the Regional Chairman and his or her full-time colleagues, it was clear that this could neither be a very systematic nor a very comprehensive exercise. Complaints were investigated by the Regional Chairman and a series of complaints would result in an interview with the member concerned. However, unless the complaint was a really serious one, no action was likely until the question of re-appointment arose. At this point, the member's attendance at training sessions and at tribunal hearings could also be taken into account but members who wished to continue and were still eligible to sit were almost always re-appointed. JPs are appointed for life and there is no system of re-appointment. There was likewise no system of monitoring the performance of Magistrates although obviously questionable decisions could be reversed on appeal. This reflected their status as members of the judiciary but was far from ideal since, in the large cities, magistrates sit on their own and have little basis for assessing their own performance in relation to that of their colleagues. It is to be hoped that the recent development of computerised sentencing information systems in the higher courts13 will, one day, be extended to the criminal court of first instance in Scotland. Children's Panel members are appointed for an initial period of three years with the possibility of re-appointment up to a maximum of 12 years. Because of the rigorous selection procedures and the extensive use of informal methods for assessing the performance of tribunal members prior to re-appointment, this was fairly automatic for those who wished to serve another term. Tribunal members invariably sat as a panel of three in the presence of the Reporter and any difficulties that might have arisen would have been quickly 13

Hutton, N and Tata C (1995) Patterns of Custodial Sentencing in the Sheriff Court, Edinburgh: Scottish Office Central Research Unit Papers; Hutton, N, Paterson, A, Tata, C and Wilson, J (1996) A Sentencing Information System for the Scottish High Court, Edinburgh: Scottish Office Central Research Unit Papers.

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recognised and passed on to the Children's Panel Advisory Committee. In much the same way, Training Organisers submitted reports to the CPAC on panel members who gave grounds for concern. Such cases would be taken up informally and not allowed to drag on until the time for re-appointment came up. Although, from one reading, this may seem rather oppressive, these informal arrangements have the virtue of responding quickly to problems and, where this is appropriate, responding constructively to them. None of the systems of adjudication we studied had any formal system of monitoring the performance of lay members in place. SSATs were "better" than Magistrates Courts in this respect because appointments were time limited and a decision had to be taken every three years as to whether or not a member should be re-appointed. However, the scrutiny of that member's performance was both perfunctory and largely random. It is patently unsatisfactory that there should be no mechanisms for assessing the performance of magistrates who are appointed for life and, in many cases, are now well past their sell-by date. The Children's Hearing System has adopted an informal system of feedback that may be appropriate for the Children's Hearing system but is unlikely to be so in other settings. Thus, in this respect, it may well not provide a model to emulate.

Training in 1995 It is fortunate that, at least in respect of training (although, sadly, not in respect of selection or monitoring) more recent data is available from a review of the training provided for part-time chairmen and members carried out by the Independent Tribunal Service l4 . This review (known as the Judicial Training Review) was carried out at the request of the President of ITS by the Judicial Training Advisory Group (JTAG) and sought to identify "the extent of training which members and part-time chairmen need" and to determine whether joint training of members and chairmen is "the best and most efficient way of delivering necessary training". Unlike the SCC study, it included a survey of responses from part-time chairmen and tribunal members to the training provided by ITS. Whereas the SCC study focused on three systems of adjudication (Social Security Appeal Tribunals, Magistrates Courts and Children's Hearings, the Judicial Training Review focused on social security appeals alone. However, in the intervening period, social security adjudication had become considerably more complex—instead of two types of tribunal (social security appeals tribunals and medical appeal tribunals, which were not covered in the earlier study), there were now five (child support appeal tribunals, disability appeal 14 Op. cit., above, n. 4. See too Independent Tribunal Service (1997) Annual Report 19961997. London.

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tribunals and vaccine damage tribunals as well as SSATs and MATs). Likewise, although the SCC study covered selection, training and monitoring, the Judicial Training Review dealt only with training. On the other hand, while the SCC study dealt only with Scotland, the Judicial Training Review covered England and Wales as well.

The Organisation of Training There have been a number of important changes in the organisation of training in the last 10 years. At the time of the SCC study, the provision of training for part-time chairmen and tribunal members was entirely separate— the former was organised on a national basis while the latter was organised regionally. However, joint training has now become established practice in most regions. Although this was commended in the Judicial Training Review (para. 4.6.3), the Judicial Training Advisory Group (JTAG) also made a strong plea for separate training, arguing that "[c]hairmen require detailed legal input in a way that can never apply to members and need training in the complexities of their role" (para. 4.6.5) and that there is a case for separate training for members who "derive considerable benefit from separate training . . . [because they] may be reluctant to challenge part-time chairmen sitting as members of the same small group and yet be totally confused about a topic. They need sufficient training in the law to be effective and confident members of the tribunal" (para. 4.6.6). The Judicial Training Review identified needs for induction training (para 4.6.2), "plateau" training to maintain standards of adjudication and training in new jurisdictions, regulations and legislation (para 4.6.3). Since 1994/95, induction training has been provided for part-time chairmen but there are no plans to extend this to members. As far as the frequency of training is concerned, the Review concluded that chairmen and members should attend training in each of his or her jurisdictions every two years as a minimum (para. 4.6.4) although chairmen will continue to be invited to a national residential refresher course "every four or five years". At the time of the SCC study, training for part-time chairmen was organised nationally while training for tribunal members was organised on a regional basis. As described above, a training team, comprising the Regional Chairman and one or two academics, travelled the country giving short, one-day courses on recent pieces of legislation. As more full-time chairmen were appointed, so they were drawn into the regional training programme but, with increasing case loads and increasing demands on their time, these arrangements were hard to sustain. A national Training Advisory Group (TAG)—forerunner of the JTAG set up in 1992—generated modules for use in the Regions but Regions were neither required to use the modules nor to employ particular types of training. In 1993, centralisation was taken further—it was argued that "full-time chairmen no longer had the time to plan, prepare and deliver

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training to the extent to which they had done previously" (para. 5.2) and, prompted by the reduced time available to full-time chairmen as a result of increased sitting patterns' (para. 1.1), the Judicial Training Review recommended that the JTAG should take responsibility for developing a set of training packages for part-time chairmen as well as members which would provide 75% of the training provided at Regional level. To allow for some local input, the remaining 25% of the training programme was to be the responsibility of the Regions. According to the Judicial Training Review, since the inception of national training modules in 1992, "ITS has offered no more than good, effective basic training" and this was confirmed by the survey results (para. 4.6.1). The JTAG must be commended for its candidness in concluding that "ITS may train below the minimum level really needed to provide a good grasp of regulations, issues and hearing context" {ibid.) but this does not make the situation any less problematic. Although the training budget (approximately £650,000 in 1994/95) was considerably underspent, the use of outside training agencies was rejected, both on grounds of cost and because it was held to be essential to retain the participation of full-time chairmen. The new training programme is somewhat less narrowly legalistic than the training provided at the time of the SCC survey. However, as the repeated references to "judicial" training suggest, the content of training for the lay members as well as the legally qualified part-time chairmen is still primarily legal. The Judicial Training Review identifies three substantive areas where training is needed: (general) legal training, training for new jurisdictional areas or where there are major changes in legislation or case law, and developing and improving skills, e.g. decision writing, interpersonal skills and questioning the unrepresented claimant (para. 4.6.2) but the training modules have, at least so far, been exclusively concerned with training for new jurisdictions, legislation or case law. Thus training sessions still make very few references to the difficulties surrounding a determination of the facts, the problems associated with an inquisitorial mode of dispute resolution, tribunal procedure, or to the process of decision making. The mode of instruction was still fairly traditional, although it must be said that the combination of lectures and small group teaching (using case papers and/or a video) was what most part-time chairmen and members preferred—there were few references to exercises involving role play or to visits to local DSS offices, voluntary organisations or welfare rights groups. Although, as mentioned above, lay tribunal members were thought to be in need of basic legal training in order to challenge the legally qualified chairmen and play a full part in tribunal deliberations (para. 4.6.6), there is no suggestion in the Judicial Training Review that chairmen might need some special training to offset the perceived shortcomings in the lawyer's contribution to tribunal proceedings or to exploit the lay member's contextual knowledge and understanding to the full (see above). By concentrating on legal issues, it is arguable that training programmes ignore

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the special contribution to tribunal decision making which lay members could be encouraged to make.

Implications of Training for Selection and Monitoring Although the Judicial Training Review makes few references to selection or monitoring of part-time chairmen and members, some references can be found in the statement of ITS Training Policy document which is included as an Annex to the report. This document makes it clear that "training has to be part of an overall strategy which supports and is supported by recruitment and training" (Annex 6, para 5). On recruitment, "ability, temperament and judicial awareness of candidates can be measured against competencies which they will be told they are expected to achieve" (ibid.). Moreover, "[m]onitoring standards should be applied against known standards so as to challenge lack of achievement and assist the individual as a follow up to training given, and also to identify future training needs" (ibid.). Although selection procedures remain essentially unchanged, there have changes in relation to monitoring. According to Cole15, all part-time chairmen are now monitored within the first six months of their appointment and again after the first year—the first monitoring visit is announced but the second is not. The task of monitoring is carried out by the full-time judiciary who observe the part-time chairmen in action and assess their performance, the emphasis being on whether judicial skills are being applied. A report is prepared for the file which concludes with an assessment of ability against defined standards and, where the standartd is deemed to be marginal or unsatisfactory, the chairman will be written to and further minitoring visits may take place. With some 6,000 members, the task of systemmatically monitoring their performance would clearly be a formidable one. Thus it is understandable that there are no plans to do so and the monitoring that does take place is as an accidental by-product of the monitoring of chairmen. As with training, one is left with the impression that this is, in large measure, because insufficient thought has beeen given to the role of the lay member and because, in any case, it is seen to be less important than that of the legally-qualified chairman.

Conclusion Selection, training and monitoring are closely connected activities and need to be seen as such. They will, of course, vary from one jurisdiction to another but, in every jurisdiction, selection, training and monitoring need to be seen in 15 Cole, G (1996) 3 "Creating and Maintaining an Effective Scheme of Training in the Independent Tribunal Service", 3 Journal of Social Security Law, (1996)3. 121-129. See also Cole, G (1998) "Maintaining Judicial Standards in the Independent Tribunal Service", chapter 19 of this volume.

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this light. Among the juridictions considered in the SCC sudy, this only seems to have been the case with the Children's Hearing System. Selection, training and monitoring need to be taken out of the closet and recognised for the importance they undoubtedly have. As in other organisations, they need to be properly resourced and not run on a shoe-string. Moreover, it is arguable that they should be professionally staffed and not entrusted to busy people with other priorities. Here again, the Scottish Children's Hearing System provides a model which merits serious consideration. Selection, training and monitoring themselves require regulation and, in spite of its reputation as a rather toothless tiger, a good case can be made out for extending the remit of the Council on Tribunals (and providing a corresponding increase in its block vote) to cover these vitally important activities. As far as lay members of ITS tribunals are concerned, it is clear that there have been some improvements, especially in relation to training, over the last decade. However, these have been within the confines of an approach characterised in terms of passive selection, basic training, and the absence of any systematic monitoring. The selection and monitoring of tribunal members have hardly changed while training, with its emphasis on the law, seems designed to transform lay tribunal members into "paralegals" rather than to bring out the distinctive qualities which lay members could bring to tribunal proceedings. As for the future, a great deal will depend on what the composition of appeal tribunals turns out to be and, in particular, on the balance between legally-qualified and lay tribunal members. This is clearly not a matter for the ITS but is, rather, something for the Government to decide. T h e swing of the pendulum from a position where, in terms of the 1997 Social Security Bill, lawyer chairmen were seen to be under threat to one where, in terms of the 1998 Social Security Act, a question mark currently hangs over lay tribunal members is not only a cause for concern but suggests that the Government does not have a clear view of what it wants or of what contributions legally qualified and lay tribunal members can make. The biggest criticism of the Judicial Training Review is that it did not address this issue. But, as has been argued above, if selection, training and monitoring are to be effective, the Government must first decide how tribunals should deal with appeals and what contributions legally qualified and lay tribunal members can make to this end.

PART 7

Future Developments

22 The Reform of Social Security Adjudication ROY SAINSBURY Introduction

T

HE system of adjudication and appeals for social security is set for radical change. At the time of revising this paoer, the 1997 Social Security Bill has recently completed its committee stage in the House of Lords. It will soon become the Social Security Act 1998. The Bill covers a range of topics from social security adjudication to backdating of benefit awards and cuts in benefits to lone parents. However, in this paper I wish to concentrate primarily on the impact of the Bill on social security appeals. The question I will be addressing is the extent to which the Bill's provisions represent an advance for administrative justice in this country, or a retreat in the face of the policy imperative to cut public expenditure.1 My approach will be to address this question from a perspective which seeks to protect and promote the interests of social security claimants. In other words, I will apply a simple test to the reforms of social security appeals: will the proposed reforms enhance or reduce the probability that social security claimants can secure their full benefit rights and entitlements? This is an approach that can be contested since it essentially places a higher value on the individual rights of claimants than, for example, on the legitimate concerns of a public administrative organisation to operate at the lowest possible cost. Also, there is a wider public whose views and aspirations (as voters, taxpayers, potential claimants) must be considered and weighed. However, given that social security claimants are among the poorest members of society, I would argue that a perspective which privileges their interests is justifiable. The context for the proposals in the Bill is the desire of the last Conservative government to limit the cost of the most expensive area of public policy. The Department of Social Security (DSS) and its Agencies pay out more than £90

1 The Bill, now enacted as the Social Security Act 1998, also contained important provisions regarding first-tier adjudication which are outside the scope of this paper.the substance of this paper is not affected by the passage of the Bill into law.

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billion a year in benefits to over 30 million people and manage £40 billion of National Insurance contributions. Administration costs amount to between £34 billion a year. In February 1996, the then Secretary of State, Peter Lilley, announced proposals for a reform of the way the DSS carries out its business, known then as the DSS Change Programme2, but now restyled the Active Modern Service Programme under the new Labour Government. The Change Programme was intended to produce savings of 25 per cent (or around £l billion) in the space of three years. The Programme included proposals to change the processes for decision making and appeals and published the Government's proposals in a Green Paper, Improving decision making and appeals in Social Security.3 The aims of reform were set out as follows: • to improve the processes for decisions and appeals; • to produce a less complex, more accurate and cost-effective system for making and changing decisions; and • to preserve customers' rights to an independent review of decisions in appropriate cases. Following the consultation exercise and a report summarising the submissions,4 the Social Security Bill 1997 was published by the new Labour Government just before the summer recess of Parliament in July. The contents of the Bill largely mirror those in the previous Government's Green Paper despite widespread opposition to some of the proposals.

Current Models of Adjudication and Appeals The current system of social security appeals in this country is based on structures established by the Health and Social Services and Social Security Adjudications Act 1983 (HASSASSA) and subsequent variations brought in later with major pieces of social security legislation (such as the Social Security Act 1986 and the Child Support Act 1991). Initial decisions on social security claims5 or child support cases are made by adjudication officers or child support officers who are statutory independent of the DSS and its Agencies6. Appeal structures vary according to different benefits. 2 Speech to senior managers of the DSS and its Agencies, 28.2.96; reproduced in Annex G of the Green Paper Improving decision making and appeals in social security. 3 Department of Social Security Improving decision making and appeals in social security, Cm 3328, (London, HMSO, 1996). 4 R Sainsbury, Consultation on Improving decision making and appeals in social security: Analysis of responses (London, Department of Social Security, 1997). 5 The principal exception is the decision making arrangements for Housing Benefit and Council Tax Benefit which are administered by local authorities. Officials making decisions on these benefits do not have statutory independence but remain agents of the local authority when deciding claims for benefit. 6 The Social Security Bill proposes to end the independence of adjudication officers and

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There are three principal models of adjudication and appeals in place in the social security system, which can be called: • the tribunal-based, two-tier, one appeal system • the tribunal-based, three-tier, two appeal system • the review-based system.7 In the first model (Figure One), a social security claimant has the immediate right of an appeal to the appropriate tribunal if he or she is dissatisfied with a decision of an adjudication officer. For the social security claimant, therefore, the adjudication structure has two tiers: the adjudication officer of the appropriate Agency and the tribunal. To access the appeal system, only a single contact is required. In practice, the Benefits Agency will look again at each

Initial decisions

Claimant's appeal succeeds

OR

Fig. 1 The tribunal-based, two-tier, one appeal system child support officers ands transfer their responsibilities to the Secretary of State thus ending over eighty years of independent adjudication. For a critique of this proposal, see T Lynes, "The End of Independent Adjudication?" in M Adler and R Sainsbury, Adjudication Matters: Reforming Decision Making and Appeals in Social Security, New Waverley Papers SP14 (Edinburgh, Department of Social Policy, University of Edinburgh,1998). 7 These models are compared in R Sainsbury, "Internal Reviews and the Weakening of Social Security Claimants' Rights of Appeal" in G Richardson and H Genn (eds) Administrative Law and Government Action (Oxford, Oxford University Press, 1994).

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case appealed and review the decision if the appeals falls within one of the three prescribed grounds for review. 8 If all aspects of the appeal can be resolved in the claimant's favour, a new decision is substituted and the appeal proceeds no further. This model exists for most social security benefits, including Income Support and Retirement Pensions. In the second model the internal review of the appealed decision becomes part of the formal appeals structure. Hence, when the Benefits Agency has reviewed the case it will inform the claimant of the outcome and offer the right of appeal if he or she is still not satisfied with the decision. To access the tribunal stage, therefore, the claimant must lodge another (i.e. second) appeal. Initial decisions

/ Claimant's I FIRST V appeal

\ ) /

Review decisions

Claimant's SECOND appeal

Tribunal hears case

Fig. 2 The tribunal-based, three-tier, two appeals system For the social security claimant, therefore, the adjudication structure has three tiers: the initial decision of an adjudication officer, the review by another officer, and the tribunal hearing. This model exists for some benefits introduced since HASSASSA, including Disability Living Allowance and Incapacity Benefit. Appeals against decisions 8

The three grounds are: (i) that there has been a mistake in, or ignorance of, a material fact; (ii) that there has been a mistake in law; and (iii) that there has been a relevant change in circumstances. The regulations concerning reviews of decisions are primarily intended as an administrative means of correcting errors and dealing with changes in circumstances without the need for the claimant to submit a fresh claim or lodge an appeal.

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Initial decisions

FIRST review decision

SECOND review decision

Fig. 3 The review-based system

of the Child Support Agency also follow the model. A variant of this model operates for Housing Benefit appeals.9 In the review-based system which exists only for the Social Fund, the tribunal-based system is replaced by a two-tier review. The first review is undertaken within local Benefits Agency offices by Social Fund officers and the second by centrally-based Social Fund Inspectors under the management and control of the independent Social Fund Commissioner.10 One important feature of all three models, of relevance to the reforms set out in the Social Security Bill, is that the flow of cases between each of the levels is dictated by legal rules. Once a case has been appealed, the various routes by which it can be resolved are not a matter for discretion or negotiation. Unless an appeal is withdrawn, decisions taken at each stage of an appeal effectively dictate what will happen next. 9 R Sainsbury and T Eardley Housing Benefit Reviews. An evaluation of the effectiveness of the review system in responding to claimants dissatisfied with housing benefit

decisions, DSS Research Report Series No. 3 (London, HMSO, 1991). 10 The Social Fund system of reviews has been the subject of evaluative research reported in C Dalley and R Berthoud, Challenging Discretion (London, Policy Studies Institute, 1992). Its effectiveness and legitimacy are the subject of Scampion's paper, "The Use of Review in the Administrative Justice System: The Experience of Social Fund Reviews", extracted in chapter 8 of this collection.

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There is little doubt that the system of appeals in social security is characterised by inconsistencies and contradictions. For this reason alone, a thorough review would have been justified. However, there were also long-standing problems with appeals, of a more practical, organisational and managerial nature, identified by the previous government in their Green Paper, which contributed to the initiative to reform decision making and appeals.

The Case for Change The need to reform the social security appeal system was first set out in the Green Paper and has since been elaborated in public statements and in Parliamentary debates. The core of the argument is that the current arrangements exhibit a range of problems and deficiencies in their structure, organisation, management and performance. The main problems cited include: • Tribunals waste time hearing cases which have no possibility of succeeding. In press releases and in Parliamentary debates Ministers have referred to "twenty thousand hopeless Income Support cases" per year to illustrate the extent of the problem 11 although no explanation has been given of the definitions or measuring techniques used in calculating this figure. • Tribunals have to deal with new facts which could have been dealt with by the Benefits Agency under existing review provisions. • At a hearing the tribunal may be dealing with changes in circumstances which had taken place between lodgement of the appeal and the hearing. Again, changes in circumstances can already be dealt with by the Benefits Agency. • Claimants often get drawn in to the appeals process when all they really want is an explanation of the original decision. • The statutory requirements placed on tribunals (for example, that they have three members including a legally-qualified Chair, and that in some cases members must hold specified professional qualifications) are too formal and inflexible, and may not be cost-effective. • The Independent Tribunal Service (ITS) is deficient in the service provided to appellants (particularly in the time taken to clear cases) and in the accountability of its judicial head, the President, for performance and efficiency. These arguments have not been accepted uncritically, however. Many commentators 12 have made the point that many of the supposed problems are at the level of assertion, with little or no supporting evidence.

11 12

Hansard, 22 July 1997, col.784. Sainsbury n.4; see further M Adler and R Sainsbury, op. cit. supra n. 6.

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The Proposals for Reforming Appeals The general approach to dealing with the problems outlined above has been to suggest reforming appeals structures and procedures so that cases only proceed to appeal if they cannot otherwise be resolved, and that when they do go forward, appeals are heard efficiently and effectively by an independent body focusing on the essential reason for appeal. The concrete measures in the Social Security Bill designed to achieve improvements to the appeals system include: • introducing a 'second look' at cases where the claimant is not satisfied with the initial decision on a claim, allowing a greater opportunity for explanations to be given for decisions in place of the inflexible arrangements for formally reviewing decisions; • identifying and agreeing areas and facts in dispute (and those not in dispute) before appeal; • settling cases as early as possible to the satisfaction of all parties, so that only those that cannot be settled proceed to appeal; • providing a fast track for disposing of simple or hopeless cases; • not prescribing in legislation the number and composition of a tribunal; • reserving legal expertise for appropriate cases, and allowing some decisions to be taken by non-legal but qualified and trained decision makers; • allowing single decision makers to hear cases, and using two or three decision makers only when necessary; • introducing provisions to allow cases to be 'sifted' to decide how they should be handled; • replacing ITS by a new "Appeals Service" which would have clear responsibilities and accountability, with a minimum of legislation governing its internal organisation and processes, and staffed by appropriately qualified, trained and experienced decision makers and advisers. The proposed changes for a 'second look' at decisions would effectively merge the tribunal-based, two-tier, one appeal system with the tribunal-based, threetier, two appeal system for most benefits. However, the review-based system of the Social Fund would remain. The Social Security Bill does not implement the Green Paper suggestion for a mandatory review stage along the lines of Model Two above. The 'new' model of adjudication and appeals is represented below.

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Claimant appeals to tribunal

Explanation or review decision

'Hopeless* case rejected

OR

'Fast track' Tribunal

OR

Small Tribunal

Full

OR Tribunal OR

Referred to Benefits Agency

Fig. 4 The 'new model' of adjudication and appeals In addressing the perceived problems of the appeals system, the previous Conservative government did not rely solely on the introduction of a Social Security Bill. In October 1996, it introduced changes to the adjudication regulations' 3 designed to reduce the number of tribunal hearings which were heard in the absence of an appellant or representative. Before the new regulations came into force, all cases were dealt with by a full tribunal of three members regardless of whether anyone attended the hearing. Under the new arrangements, there is a presumption that cases will be heard 'on the papers only', i.e. in the absence of the appellant, unless the appellant positively requests an oral hearing. These regulations have been severely criticised by organisations representing the interests of social security claimants' 4 because there is overwhelming research evidence that the chances of an appeal succeeding is significantly reduced if the appellant does not attend.' 5 13 Social Security (Adjudication) and Child Support Amendment (No.2) Regulations 1996 (SI 1996 No. 2450). M

15

See Sainsbury n.4.

H Genn and Y Genn, The Effectiveness of Representation at Tribunals (London, Lord Chancellor's Department, 1988).

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Evaluating the Reforms The reforms to social security decision making and appeals contained in the Social Security Bill have proved controversial. The analysis of the responses to the Green Paper, and the subsequent representations that have been made, as the Bill has proceeded through Parliament, by organisations such as the National Association of Citizens Advice Bureaux, the Child Poverty Action Group, and the Law Society, has shown that there is some agreement about many of the problems with the current arrangements. However, there is much less agreement, and some strong opposition, to the proposals for responding to those problems.16 In making sense of the contrasting views of those inside and outside of Government, we can turn to the concept of administrative justice. Like all theoretical concepts, administrative justice is contested territory. In this analysis, I will start from the definition of administrative justice offered by the American academic lawyer, Jerry Mashaw. From there I will develop a series of principles that we can apply to the reforms in order to evaluate as best we can whether, and in what ways, they appear to increase or diminish the justice of the UK social security appeals system for social security claimants. For Mashaw, the justice of an administrative system means "those qualities of a decision process that provide arguments for the acceptability of its decisions".17 From this definition we can begin to explore what 'qualities' of the proposed reforms might provide the arguments for the acceptability of decisions about social security claims, and to pose the question of what constitutes 'acceptability' and for whom. Clearly an attempt to establish the principles which might underpin administrative justice will not be conclusive. There is scope for differences of opinion which, ultimately, cannot be resolved by rational argument. In my analysis, however, I will make an attempt to draw on competing views to suggest a 'best fit' between them. Unravelling the concept of administrative justice leads us to examine a rich literature, which in the context of post-war developments in this country can begin with Franks. 18 When Franks set out the criteria for comparing tribunals with courts he provided an invaluable and enduring framework for analysis. Not only did he reaffirm the advantages of tribunals, i.e. their "cheapness, accessibility, freedom from technicality, expedition and expert knowledge of their particular subject" first set out by Donoughmore 19 twenty-five years earlier, and establish the principles of openness, fairness and impartiality as 16

See also Adler and Sainsbury n.6. J Mashaw, Bureaucratic Justice (New Haven, Yale University Press, 1983). 18 Franks Committee, Report of the Committee on Administrative Tribunals and Enquiries, Cmnd. 218 (London, HMSO, 1957). 19 Donoughmore Committee, Report of the Committee on Ministers' Powers, Cmd. 4060 (London, HMSO, 1932). 17

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crucial for tribunals if they are to be adequate substitutes for courts, he also provided the basis for a method by which we can assess prospective changes to policy. The policy context for Franks was a debate about whether courts or tribunals were more suited to hearing appeals deriving from administrative law. In contrast, the choice for dealing with appeals in the 1990s is between direct access to tribunals and using processes based on reviewing decisions in the first instance. We need therefore to revisit Franks and, where appropriate, update his principles so that they are appropriate for the current policy environment. Apart from Franks himself, the literature on administrative and procedural justice (which cover similar areas of inquiry) is a rich source of analysis and ideas.20 Part of this literature has consciously incorporated the views of participants to appeal hearings and court proceedings. This 'consumer' view is an important perspective and will contribute to a view of administrative justice which is acceptable to the users of appeal services. However, the views of appellants on their own must be treated with caution. Numerous studies of tribunals and courts show that appellants' views are affected by the outcome of their appeal, that their assessments of their experiences are made difficult by an incomplete knowledge of social security adjudication and alternative decision-making structures, and that their assessments are often based on low expectations of public bodies.21 Studies of social security tribunals have consistently demonstrated that the principal motivation for appealing is the need for money.22 If appellants do not succeed they are more likely to be critical of the procedures that in their view failed them.23 If we want to assess options for the future development of appeals processes and structures, it is insufficient to rely solely on appellants' experiences of current arrangements. By asking people what they thought of the way their appeal was handled we can learn lessons about what features of the current arrangements are satisfactory and which are problematic. But we cannot say definitively what they might want from new arrangements. To do this we would need to ask them directly, and provide them with the means of making 20

For e x a m p l e , W R o b s o n , Justice and Administrative Law, (London, Stevens, 1928); P N o n e t , Administrative Justice ( N e w York, Russell Sage Foundation, 1969); J Thibaut and L Walker, Procedural Justice ( N e w Jersey, Hillsdale, 1975); M a s h a w n.17; E Lind and T Tyler, The Social Psychology of Procedural Justice ( N e w York, Plenum, 1988); J Baldwin, N Wikeley and R Y o u n g , Judging Social Security (Oxford, Clarendon Press, 1992); R Sainsbury and H G e n n "Access t o Justice: Lessons from Tribunals" in A Zuckerman and R Cranston, Reform of Civil Procedure, (Oxford, Clarendon Press, 1995). 21 For e x a m p l e , Lind a n d Tyler n.20; R Sainsbury, Survey and Report into the Working of the Medical Appeal Tribunals (London, H M S O , 1992); Baldwin et al. n.20. 22 H Genn "Tribunals a n d Informal Justice" Modern Law Review, 1993, Vol.56, pp.393411; R Berthoud a n d A Bryson "Social security appeals: w h a t d o the claimants want?" Journal of Social Security Law, 1997, V o l . 4 , 1 , pp.17-41. 23 Sainsbury n.21; R Sainsbury, M Hirst a n d D L a w t o n , Evaluation of Disability Living Allowance and Attendance Allowance, DSS Research Report N o . 4 1 (London, H M S O , 1995)

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comparisons and choices, beyond the narrow experience of their own appeal. This is certainly not to argue that the views of appellants should be treated lightly or dismissed. While studies have repeatedly shown that unsuccessful appellants are more critical of tribunals, this not only may reflect a reaction against the decision but may also indicate that unsuccessful appellants are more inclined to reflect upon their experience and identify why they were dissatisfied. In contrast, successful appellants may be inclined to be more charitable and overlook any shortcomings of the tribunal that heard their appeal. Grievances are clearly felt more acutely when the long road to the tribunal or court ends in failure. It is also important to note that social security administration and appeals is not exclusively a consumer-based service. As a public service the DSS must answer to a wider public (as voters, taxpayers, contributors and potential users). What claimants, as appellants, want is only part of the question that needs to be asked. The views of representative organisations, participants in the tribunal process, administrators and external analysts all have value and relevance. Having drawn on a wide range of material capturing the views of all interested parties, from politicians to social security claimants, a set of main principles or criteria emerge which represent one version of what constitutes administrative justice within the social security appeals system. In brief these principles are: • • • • •

quality of decisions speed of decision making independence and impartiality participation value for money.

Quality of decision making Assessing the quality of decision making at any level of adjudication is fraught with difficulties. The first problem is with a definition of what constitutes high quality decisions. The second problem is with the empirical evidence (or the lack of it) that is available on the quality of decisions, particularly at the level of tribunals. The final difficulty is with interpreting the information that is available—if we find that the one tribunal produces high quality decisions, but those of another are inferior, what conclusions can we draw about tribunals in general? Under the proposals in the Social Security Bill, and as a result of the changes in adjudication regulations introduced in October 1996, fewer appeals will be heard by full, three-person tribunals, or heard by tribunals at all. Instead, appeals that cannot be dealt with administratively will be distributed between the various types of tribunal, i.e. with single or multiple members, who may or

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may not be legally qualified. The argument of the government is that this will ensure that cases are dealt with efficiently because only the appropriate resources will be allocated to them—simple cases to smaller tribunals and complex cases to full tribunals. The question of whether the new arrangements will produce decisions of a comparable quality to existing tribunals can only be answered in the light of experience, but some powerful arguments have already been raised in opposition. There was considerable support in many of the responses to the Green Paper for the current composition of tribunals, which is laid down in legislation. Importance was attached to the need for clarity in the information given to claimants about how their case would be handled. It was predicted that complaints and appeals would emerge if claimants felt that the arrangements made for their case were in any way different or inferior to other cases. Objections to single decision makers included the concern that personal preconceptions or prejudices about certain groups of claimant or about individual appellants would go unchecked. The opportunities for ensuring the requisite expertise in the appeal body were also reduced. In general, the decision making processes of the three-person tribunal were considered superior to decision making by a single person. There was little support for the proposal to reserve legal expertise for appropriate cases, and allow some decisions to be taken by non-legal but qualified and trained decision makers. A return to non-legal decision makers (the position before the implementation of the 1983 HASSASSA Act) was seen as an undesirable and retrograde step. Legally-qualified decision makers had the advantage of training and experience in judicial methods, of considering and weighing evidence, establishing facts, identifying the relevant law to be applied in the case, and making a decision based fully and only on the facts and the law. There was also considerable doubt about the feasibility of 'sifting' appeals and allocating them to an appropriate level of tribunal. There were arguments that it is not possible to establish the simplicity or complexity of a case until the case is before the tribunal. For the same reason, it was considered undesirable and unacceptable to define cases as 'hopeless' in advance of a hearing. The ability of a tribunal to investigate all aspects of a case often resulted in seemingly hopeless cases eventually succeeding in favour of the appellant. Although quality of decision making is often treated as synonymous with accurate decision making, the Bill's proposals add a new and different dimension to the discussion. Under the Bill's provisions, social security tribunals will be precluded from considering changes in circumstances that occur between the lodgement of an appeal and a hearing. This is a radical departure from the existing arrangements under which a tribunal can consider a case de novo and make a fresh decision on the whole claim. In effect, the current arrangements provide the claimant with a single decision which runs from the date of the hearing. The new proposals fragment decision making. Tribunals will only be able to consider those parts of the original decision that have been identified as

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being the substance of the appeal. If new information is brought to the hearing which was not available to the first-tier decision maker, or the appellant brings evidence of a subsequent change in circumstances, the tribunal must refer those aspects of the case back to the Benefits Agency for a review. There is no doubt, therefore, that some cases which previously would have been dealt with fully by a tribunal will in future be only partly decided, with the remaining aspects of the claim being dealt with later by the Agency. In these circumstances, the case will take longer to resolve fully, the Benefits Agency will have more work than at present, and the claimant will be given an inferior service to the one currently available. The quality of the final decision may be unaffected but the quality of the service offered to claimants will not.

Speed of decision making It is virtually axiomatic that claimants want a quick resolution of their appeals. However, it is hard to argue, as the Green Paper attempted, that speed of decision making is of equal importance for social security claimants as getting the decision right. There is no research evidence to support such an assertion. Speed is clearly of great relevance and importance, but it is no good a decision making system producing quick decisions if a large proportion are wrong and either stay wrong or have to be put right later. The aim of any decision making system linked to a scheme of legal entitlements should be to deliver people's entitlements accurately—the right money to the right people. What is not in dispute is the widespread dissatisfaction in recent years with the length of time taken to clear social security appeals. Much was made in the Green Paper and in the Second Reading Debate in the House of Commons 24 about the fact that average time for a claimant to wait for an Social Security Appeal Tribunal (SSAT) hearing is twenty-six weeks.25 Delays are clearly undesirable but in devising effective policy responses, it is important to understand the nature of delays and their causes. All appeals are potentially subject to delays which are outside the control of administrative agencies and which have no relation to how well or badly the appeals system operates. In a study of Medical Appeal Tribunals, 26 it was found that requests by appellants and representatives for postponements of hearings (for reasons such as the unavailability of representatives or the need for more time to gather additional evidence), and waiting for reports from third parties (usually hospitals, general practitioners or employers) contributed, on average, an additional three months in deciding the appeal. If waiting times were analysed thoroughly it would be possible to construct 24

Hansard, 22 July 1997, col.783 T h e Green Paper claimed that waiting times increased in ten years from 1987 from "a few weeks", although this is in contradiction of the Department of Social Security's o w n statistics. T h e official figure for 1987 w a s twenty t w o weeks (Department of Social Security, Social Security Statistics 1996 (London, T h e Stationery Office, 1997)) 26 Sainsbury n.21 25

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a range of responses which would not require the wholesale reconstruction of the ITS which is anticipated in the Bill. An example of what is possible is an experiment27 conducted in the Midlands involving ITS and the Benefits Agency in 1996. It is not entirely clear how the improvements were actually achieved, but the claim is made that by close liaison between ITS and the Benefits Agency, average waiting times for a tribunal hearing were under 12 weeks during the exercise compared with the Regional average of 28 weeks. Not only that, but attendance rates and postponements and adjournments were not adversely affected. It is puzzling, to say the least, why the results of this pilot have not featured in public debates about the problem of delays. Channelling more appeals through internal review procedures would certainly lead to some cases being dealt with more quickly. For example, in undertaking a review it is not necessary to prepare comprehensive documents for all the parties, nor to organise a date for a hearing that suits tribunal members, appellants and representatives. Similarly, there is no need to give appellants the statutory period notice that applies, for example, to SSAT hearings. However, others cases would take longer. In addition to those which are passed back to the Benefits Agency, cases turned down on review and appealed again would take longer overall to resolve than under the current 'one-appeal' arrangements. Independence and

Impartiality

The question of independence is essentially one about principle. The case for the independence of appeals structures lies in the principle of natural justice that nobody should be a judge in their own cause. As a guiding principle it is very powerful, but as a prescription for the design of appeals structures it raises a number of difficulties, which we will come to shortly. Impartiality, though sometimes confused or conflated with independence, implies the absence of bias and prejudice in decision making. It is not an attribute that can be guaranteed by the structure of an appeals systems but must be practised by decision makers whether they are judges, tribunal members or officials. The case for independence of tribunals is put by Franks28 when he argues that: " . . . it is important to secure the independence of the personnel of tribunals from the Departments concerned with the subject-matter of their decisions. This is particularly so when a Government Department is a frequent party to the proceedings before a tribunal." When the tribunal-based, two-tier, one appeal model dominated the appeals landscape, independence was clearly visible. First-tier decisions were administrative and could be carried out by government officials, but appeals were the responsibility of an independent body. However, the present variety of 27 28

Reported in Annual Report 1996 (London, Independent Tribunal Service, 1996) Franks Committee n.18, para 45, p. 11.

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reviews and appeals demonstrates that this clear distinction is no longer possible. Independence must now be seen as a relative concept; it is not a matter of all or nothing, but there are competing views about appropriate or acceptable degrees or levels of independence. An underlying concept which can be used to understand the different approaches of respondents is that of distance from the relevant government department. Several dimensions of distance can be identified, such as accountability for decisions, financial responsibilities, responsibilities for appointments, and managerial responsibilities, including routine administration and training. But the question remains of how much distance there should be between the Department of Social Security and Benefits Agency and the officials who are charged with deciding reviews and appeals. When does that distance constitute 'independence'? And at what stage of an appeals structure should it become a consideration? The rationale for the changes in the Social Security Bill appears to be that the previous clear distinction between an appeal and some form of enquiry or complaint was no longer valid. People 'appeal' for a variety of reasons and not all expect or want their case to proceed t o a tribunal hearing. Therefore, the argument goes, to devote tribunal resources to all 'appeals' is both inappropriate and inefficient. The proposals in the Social Security Bill will mean that fewer claimants than at present will have their appeals dealt with by independent decision makers. This increases the possibility that the new arbiters of appeals will come under the influence of a range of organisational pressures which will undermine or compromise their impartiality. The principle of independence clearly has had a powerful influence on appeals structures in the past but its importance appears to be waning. What we appear to be witnessing in the social security system in the last ten years is a willingness to abandon its symbolic and practical advantages and to embrace structures which bow to other principles such as speed and budget savings.

Participation The opportunity for appellants to participate in proceedings has been a defining characteristic of social security tribunal hearings since their inception. Participation can, of course, take many forms. It can be in person, before the actual decision makers, or through a representative. It can be conducted orally or in writing. Apart from the symbolic importance of involving individuals in decision making, there are instrumental advantages. Appellants have the opportunity of providing additional, or clarifying existing, evidence. In principle, the presence of the appellant allows the tribunal to adopt the inquisitorial mode intended for it. Tribunal members have the opportunity of checking information and of eliciting evidence which may not have seemed important or relevant to the appellant. Although not contributing to decision making, the presence of the appellant also affords the opportunity of providing a more comprehensive explanation of the initial decision than is

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No-one attends

Appellant attends

Appellant and representative attend

Fig. 5 Success rates at tribunals (1996)

usually contained in Benefits Agency decision letters. Without an appellant present, none of this can take place and the chances of winning the appeal are significantly reduced,29 as thefigureabove demonstrates: At one level, the proposals for a 'second look' at decisions afford the opportunity of the claimant attending a meeting with an official at which the decision can be explained and the claimant's questions answered. However, many observers identify dangers for the claimant, particularly if unrepresented, in this informal arrangement, and more so if the occasion is also used as a means of establishing the 'points at issue' which a tribunal might eventually be required to consider. A major concern is the inherent imbalance of power between claimants and representatives of the Benefits Agency that results from the claimant's relative lack of knowledge about social security rules and regulations. Without an adequate knowledge of social security law, unrepresented claimants might agree to definitions of facts or issues without knowing their relevance or potential importance at a tribunal hearing, or might fail to identify issues which could be to their advantage. The advantages of participation at the tribunal level are, of course, completely lost if appellants fail to attend their tribunal hearing.30 Non-attendance is presented as a problem in the previous Government's Green Paper, 29 30

Genn and Genn n.15; Sainsbury n . 2 1 . Baldwin et al. n.20.

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but the response has been to introduce measures to reduce the number of oral hearings (through the requirement to opt in for a hearing) rather than to understand and respond to the reasons why people do not attend.

Value for money The amount of information in the Green Paper, in the Bill, and in Parliamentary debates on the cost implications of the Bill is very thin. In the financial memorandum to the Bill it is suggested that overall savings resulting from the changes to decision making and appeals structures will be in the order of £50 million in the long term. There is no separate breakdown of expected savings from reforming appeals. It seems unlikely therefore that the reforms are going to contribute significantly to the objective of the Change Programme of saving in the region of £1,000 million in three years from 1996. Trimming the £40 million ITS budget is simply not going to make much of an impact. But are tribunals good value for money? The Green Paper presented data on the relative costs of various parts of the overall appeals system in this country. SSATs compare well with other tribunals and with the cost of the Social Fund review system run by the Independent Review Service. At £88 a case 31 , one might be forgiven for asking whether we should not be building on a model which can deliver administrative justice at that price rather than suggesting that it is a problem in need of radical surgery. Furthermore, the value of some social security claims and appeals can run into tens of thousands of pounds over the lifetime of a claim. Many court cases involve sums much smaller than this. It does not seem disproportionate, therefore, to use the resources of a tribunal to decide such cases. The new arrangements may actually increase costs in some parts of the administrative system. We have already referred to the additional work for the Benefits Agency when tribunals are obliged to refer cases back to them for reviews previously carried out by tribunals themselves. It is also possible (or likely) that the offer to claimants of an informal second look at decisions may increase the number of decisions that are challenged. Again this will create work for the Agency and could generate a new wave of appeals for the new Appeals Service to deal with.

Discussion and Conclusion At a time when a new Government has recently proposed wide-ranging reforms to the structure of the welfare state 32 and is reviewing every aspect of -" This figure has been calculated from data contained in Annex F of the Green Paper (DSS, 1996). 32 Department of Social Security, New ambitions for our country: A new contract for welfare, Cm 3805 (London, The Stationery Office, 1998).

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the social security system, an examination of structures of decision making and appeals may appear a little premature. But regardless of the timing of the Bill, there is no denying its importance for the provision of administrative justice for the millions of people who rely wholly or in part on our social security system for their incomes. Administrative justice cannot tell us whether a particular policy or piece of legislation is just, in its distribution of resources, or rights and responsibilities, or rewards and punishments. We have to refer to other criteria such as equity and deservingness to be able to make that kind of assessment. So, in discussing administrative justice, we have to remain neutral, for example, on the issue of whether benefits are adequate. But we can scrutinise administrative structures and criticise them if they do not perform the task of delivering full legal entitlements to those who are eligible. I have drawn on the literature of administrative justice in an attempt to explore a set of principles or criteria which can be used retrospectively to evaluate structures for decision making and appeals, but also prospectively in providing a commentary on plans for the future. However, moving from principles of administrative justice to the features of an organisation to deliver it, is not straightforward. What might guide decisions about who should make decisions, and how they should be made, includes the nature of the substantive content of social security policy. Some commentators 33 have argued that any changes to the substantive provisions of social security benefits should logically precede changes to adjudication. However, it is clear that the opportunity of cutting into a large administrative budget (which social security undoubtedly is) and at the same time rationalising the complicated and inconsistent adjudication system, was too seductive to miss. At this stage, however, it appears that many of the provisions in the Social Security Bill appear to have been hurriedly put together, ill thought-out and under-researched. The roots of the Bill, in the previous Government's Change Programme, suggest that the prime motivation for reform has been to save public expenditure. When we carry out a close scrutiny of the provisions and ask 'what is in these reforms for the average claimant?', there are few convincing answers. If we apply Mashaw's definition of administrative justice and look at the arguments for the acceptability of the decisions which will emerge from the new arrangements, we can only conclude that the cause of administrative justice is unlikely to be advanced by the provisions of the Social Security Act 1998. 3i

See review in Sainsbury n.4.

23 Administrative justice: Towards the Millennium, Towards Integration? BRIAN THOMPSON Introduction

T

HE purpose of this paper is to look forwards. Whatever one's reservations about the Franks report1 in particular in relation to the unduly legalistic values it espoused, it was a key point in the development of administrative law in the United Kingdom. It takes its place in the twentieth century alongside those other landmarks on the path of administrative justice: the Donoughmore-Scott Report of the Committee on Ministers' Powers2; the Justice Report on The Citizen and the Administration: The Redress of Grievances3 which helped to lead to the Parliamentary Commissioner for Administration4 and subsequently the other public sector "classical" ombudsmen and ombudswomen in local government and the health service; the Citizen's Charter s which was responsible for placing an emphasis upon quality and redress mechanisms in the public service; and Lord Woolf's report on Access to justice.6 Of course Lord Woolf's report was concerned primarily with civil justice but he did make recommendations on the Crown Office List, that is, judicial review of administrative action. 1

Report of the Committee on Administrative Tribunals and Enquiries, Cmnd 218 (London, HMSO, 1957). 1 Cmd 4046 (London, HMSO, 1932). 3 Chaired by Sir John Whyatt (London, Stevens, 1961). 4 Parliamentary Commissioner for Administration Act 1967, as amended; in Northern Ireland the Parliamentary Commissioner for Administration Act (Northern Ireland) 1969 and the Commissioner for Complaints Act (Northern Ireland) 1969 (now the Ombudsman (Northern Ireland ) Order 1996 and the Commissioner for Complaints (Northern Ireland ) Order 1996); the Health Service (Scotland) Act 1972, the National Health Service Reorganisation Act 1973, see now Health Service Commissioners Act 1993, and the Health Service Commissioners (Amendment) Act 1996; the Local Government Act 1974 and the Local Government (Scotland ) Act 1975 as amended. 5 Cm 1599 (London, HMSO, 1991), which was succeeded by Service First The New Charter "programme (London, Cabinet Office, June 1998). 6 (London, The Stationery Office, 1996).

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It seems to me that, prior to Lord WoolPs report, these various landmarks in the administrative justice landscape have been concerned with a segregated approach which distinguishes between the courts and extra-judicial remedies. Lord Woolf does take Alternative Dispute Resolution (ADR) into account, although in the administrative justice field ADR is not necessarily an alternative to the courts for a citizen seeking redress for a grievance against the state. I say not necessarily because while the ombudsman was conceived of as a channel for those without any other means of redress, it does allow for overlap, and recourse to judicial review is sometimes a desperate last fling of the dice, particularly for homeless persons, and immigrants seeking to avoid deportation. 7 Lord Woolf's report is a larger, more visible indicator of a trend in administrative justice which, I would suggest is, in nature, integrating, creating more of a system from the disparate remedies in this area. I will argue that this trend is to be welcomed, but it is also one which requires work so as to realise the potential for achieving administrative justice.

Mapping the Terrain The major types of redress mechanism in administrative justice are tribunals, ombudsmen, internal complaints systems, and the courts. They all have advantages and disadvantages but from the perspective of the aggrieved citizen they can appear to be restrictive remedies.

Tribunals As has been pointed out by Genn,8 some accounts of tribunals uncritically repeat the received wisdom of tribunals as being cheap, accessible, free from technicality, speedy and expert.9 If one is comparing tribunals with the courts then it may be the case that they are quicker and cheaper and more expert but from the point of view of the appellant the claimed accessibility and informality is more apparent than real. It has long been appreciated that appellants' success rate is associated with attending the tribunal and being represented at it.10 The reason why these factors matter is that the tribunals are not alternatives to the courts but rather substitutes. Superficially they are 7

For statistics on matters which formed the subject of applications for judicial review see M. Sunkin, L. Bridges 8c G. Meszaros, Judicial Review in Perspective (London, Cavendish Publishing, 2nd ed, 1995). 8 H. Genn, "Tribunal Review of Decision-making" in G. Richardson 8c H. Genn, (eds) Administrative Law and Government Action (Oxford, Clarendon Press, 1994) p.291. 9 Op. cit n. 1 at para. 38. 10 Take for example the work in social security by K. Bell, Research Study on Supplementary Benefit Appeal Tribunals: Review of Main Findings, Conclusions and Recommendations (London, HMSO, 1975).

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not as intimidating as the courts but their helpfulness to appellants is structurally limited because underneath the veneer of an inquisitorial approach lies the adversarial procedure which places upon the parties to the dispute the burden of presenting their arguments. As the matters on which tribunals adjudicate have become more complex, appellants need assistance, comprising at least advice on the relevant law, if not representation before the tribunal. Where tribunals hear the appeals de novo then they can assist the appellant who has not brought all of the relevant material to the attention of the first tier decision-maker. Sainsbury has alerted us to the structural disadvantages of those review procedures in which claimants do not participate and so there is no opportunity for an oral procedure in which new information can be received or ambiguities clarified.11

Ombudsmen The task of the ombudsman is to determine if maladministration has caused injustice. A cursory look at the annual reports of the various public sector ombudsmen or commissioners, to use the statutory term, indicates that the vast majority of complaints made to them are rejected as being outside jurisdiction. This may be because the matter does not appear to disclose any maladministration, or is premature, or is outside the ombudsman's remit, or because there is an alternative remedy which it is not, in the ombudsman's discretionary judgement, unreasonable to have expected the complainant to use. The commissioners have made it clear that where a service has been contracted out so that it is delivered by a third party, it is still a matter for the public body and so is not outside the commissioners' jurisdiction. Other contractual/commercial matters are outside jurisdiction as are personnel matters (except local government and the health service in Northern Ireland) and their exclusion has long been complained about. Access to the ombudsmen is not as wide as it should be. The Parliamentary Commissioner for Administration (PCA) is not approached directly by the public but via a reference from a Member of Parliament (MP). This so-called "MP filter" has been criticised for some time but the MPs are strongly in favour of retaining it on the constitutional ground that they would be less effective in holding the government to account because of a decrease in their knowledge and experience of their constituents' grievances.12 They were also worried about the PCA being overwhelmed by cases if citizens could make direct complaints. In the first year when complaints to the Commission for 11 R. Sainsbury, "Internal Reviews and the Weakening of Social Security Claimants' Rights of Appeal" in G. Richardson & H. Genn op.cit. supra n. 8, p. 287. And see further in this collection: Sainsbury "The Reform of Social Security Adjudication", Chapter 22. 12 First Report of the Select Committee on the Parliamentary Commissioner for Administration: The Powers, Work and Jurisdiction of the Ombudsman, HC 33 of 1993-94 (London, HMSO, 1993) paras. 53-76.

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Local Government (CLA) could be made direct, and not via a councillor, they rose by 44%. The PCAs have done what they can to minimise the filter by requesting the MPs to refer a case which has been received direct rather than asking the complainant to send it to the MPs for reference back and risk the complainant not taking it further. The public's general awareness of the ombudsmen is not high. It is raised by some cases which make the news, but this has a temporary effect. The efforts of the Northern Ireland Commissioner to advertise on television and on buses apparently did increase the numbers of complaints received but the ratio of inside/outside jurisdiction remained constant. In Northern Ireland they have also tried a more proactive approach by engaging in outreach work, in which they go out to community centres and "set up a stall". One weakness of the various ombudsmen is the fact that should they uphold a complaint, then they may only recommend remedial action. In the case of the PCA the record is very good in that departments very rarely fail to take any action. Even where ministers reject the findings of the PCA they will make some recompense, eventually.13 It is surmised that the fact that the PCA is backed up by a select committee may help explain this record which is better than that in local government in which 5-6% of complaints upheld by the CLA have not been resolved to their satisfaction. There is a two stage process in which the council have to consider the report made by the CLA. If they resolve to do nothing or anything which the CLA regards as unsatisfactory, then a further report may be made. Again it must be considered by the council and if the CLA is unsatisfied with the response then there is a power to require the publication of a notice in a local newspaper in which the action recommended by the ombudsman is stated and the council may give its reasons for not accepting those recommendations. The idea of publicising the second report was a response to the views of CLA and others14 that it was wrong for councils to be able to ignore the CLA's recommendations made in a 13 See for example the saga of the investigation into the blight caused by the Channel Tunnel rail link which the PCA found to be injustice caused by maladministration. This was rejected by the Department of Transport, but after the Select Committee supported the Ombudsman, a scheme for compensation was approved by the Ombudsman. The relevant reports are Fifth Report from the Parliamentary Commissioner for Administration: The Channel Tunnel Rail Link and Blight HC 193 of 1994-5, Sixth Report from the Select Committee on the Parliamentary Commissioner for Administration : The Channel Tunnel Rail Link and Exceptional Hardship HC 270 of 1994-5, Fifth Report from the Parliamentary Commissioner for Administration: The Channel Tunnel Rail Link and Blight HC 193 of 1994-5, Fifth Special Report from the Select Committee on the Parliamentary Commissioner for Administration : The Channel Tunnel Rail, Link and Exceptional Hardship: The Government's Response HC 819 of 1994-5 (all London, HMSO, 1995), Second Report from the Select Committee on the Parliamentary Commissioner for Administration : The Channel Tunnel Rail Link and Exceptional Hardship—Government Proposals for Redress HC 445 of 1996-7 (London, The Stationery Office, 1997). 14

See the Report of the Committee on the Conduct of Local Authority Business (Chaired by D. Widdicombe), Cmnd 9797 (London, HMSO, 1986).

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report which upheld a complaint. The solution they preferred was the extension from Northern Ireland of the possibility for the complainant seeking redress in the county court on the basis of the Commissioner for Complaint's report. 15 Academic research did not support this proposal as it was feared that it would upset the good co-operation which had been achieved voluntarily.16 Following Lord Woolf's report and the review of the CLA the possibility of greater interplay between the courts and the CLA, including judicial enforcement, is under consideration.17 The PCA has done valuable work in improving departmental compensation arrangements, both in their coverage and implementation, particularly in social security.18 The English CLA have produced guidance to local authorities on devising complaints systems and on principles of good administration. One disadvantage which all the commissioners share is the length of time it takes for a full investigation. There has been some innovation pioneered in Northern Ireland where they have attempted to identify those small cases which can be "fast-tracked" which appears to mean communicating with the complained against bodies by telephone rather than correspondence.

Complaints The Citizen's Charter launched in 1991 sought to improve the public service. It set out principles for the public service which included the setting of standards which would be publicised and also expected to improve, openness, information, choice, non-discrimination, accessibility. In the section entitled "And if things go wrong" it was stated that explanations and apologies should be given and that there should be well-publicised and available complaints systems. The features of a good complaints system were subsequently announced and a Complaints Task Force was established. The Task Force produced its report in 1995 which elaborated upon the principles of a good complaints system: speedy, effective, readily accessible, simple to operate, confidential, integrated with management information systems and the availability of independent investigation. The final point in that list of principles is very important because a common 15

Then, Commissioner for Complaints Act (Northern Ireland) 1969, s. 7 and now Commissioner for Complaints (Northern Ireland) Order 1996, art. 15. 16 N. Lewis, M. Seneviratne & S. Cracknel!, Complaints Procedures in Local Government, (Sheffield; Centre for Criminological and Socio-Legal Studies, 1987); C. Crawford & B. Thompson, Decisions of Local Ombudsmen (unpublished report for the Department of the Environment, 1987). 17 See Access to Justice (London, The Stationery Office, 1996) para. 89, p. 220, and A. Whetnall, Report of the Financial Management and Policy Review of the Commission for Local Administration in England Stage II (London, Department of the Environment 1996), paras. 394-411. See discussion in text. 18 B. Thompson, "The Parliamentary Commissioner for Administration and Social Security" (1995) 2 Journal of Social Security Law 24.

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perception of most internal complaints systems is that they are not independent and free from bias. The degree of concern will vary according to the context. In the area of complaints against the police, the widespread criticism of the system for investigating complaints and the support from the Police Federation for independent investigation suggests that there would be few complaints which would be dealt with internally, whereas with councils and the health service, one might expect the majority of complaints to be resolved internally, with only a few having to progress to a stage of external/independent investigation. Such a role might be played by the ombudsmen, or as in the case of the Inland Revenue, Customs and Excise and the Prison Service (England 8c Wales, and Scotland) there could be someone appointed by the public body as the final level of their internal system from which recourse to the relevant ombudsman could still be available. The Inland Revenue Complaints Adjudicator appears to have bedded-in successfully19 but there have been stories in the press about the Prison Ombudsman in England & Wales being unhappy about the way in which the Home Office responded to his investigations.

Judicial Review To complete the picture, a brief outline of the redress from the courts. Prior to the changes in Order 53 of the Rules of the Supreme Court, creating the application for judicial review, which were put on a statutory basis in 1981,20 there were problems about the available judicial remedies. The particular public law remedies, the prerogative writs (since renamed prerogative orders), and the private law remedies of declaration and injunction had different rules about the locus standi or legal interest required in order to be entitled to seek them, as well as having different properties which made them or less appropriate for particular situations. In addition the remedies were discretionary and so the court might not award them. In the new application for judicial review, the applicant did not have to specify which particular remedy was sought but the other problems of sufficient legal interest and the discretionary nature of the remedies remained. New problems emerged over the division between public law and private law issues and the requirement of procedural exclusivity, that is that issues of public law must be dealt with only in the application for judicial review.21 The application for judicial review is a two stage process with the applicant first having to seek leave to bring the application. Research has indicated that the granting of leave does not appear to be straightforward, with a level of variation which is higher than desirable.22 In 19

P. Morris, "The Revenue Adjudicator—The First T w o Years" [1996] Public Law 309. Supreme Court Act 1981, s. 31. 21 O'Reilly v Mackman [1983] 2 AC 237, although Roy v Kensington and Chelsea and Westminster family Practitioner Committee [1992] 1 AC 624, seems to have eased some of the difficulties posed by the earlier case. 22 M . Sunlcin, L. Bridges 6c G. Meszaros, op. cit. supra n. 7, ch 8. 20

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addition the issue of sufficient legal interest is not now regarded as a threshold issue which can be conclusively determined at the leave stage so that leave may be granted. However, at the determination of the application the court may decide that there is insufficient legal interest to grant the remedy sought.23

Emerging Trends The period since 1995 has been an interesting one for the various ombudsmen, particularly for the English CLA. I will suggest that the trends here have implications across the whole field of administrative law/justice.

Internal Complaints and Ombudsmen The rise of internal complaints systems since the inauguration of the Citizen's Charter has been extremely important. In particular, it raises the question of the relationship of complaints systems to the ombudsmen. This was a point which the Select Committee on the Parliamentary Commissioner for Administration seized on in its first report on the Citizen's Charter. In the White Paper which announced the Citizen's Charter, it had been mentioned that complaints which were unresolved despite having been though an internal complaints system, might be passed to a group of people known as "lay adjudicators" and it was hoped that they might be able resolve them in a speedy and commonsensical way. Insofar as this was seen a threat to the work of their Commissioner, the committee's defence was successful as nothing more has ever been heard about the "lay adjudicators". Having clarified that aspect of the ombudsman-complaints system relationship, the PCA has gone on to indicate that failure to meet the standards in the various Charters of public bodies within his jurisdiction might constitute maladministration. 24 For a period, the relationship between the CLA and complaints systems might have led to the abolition, or a drastic reduction in scope of the local government ombudsmen's role and functions. Such a future was envisaged in a report by Sir Geoffrey Chipperfield.25 He took the view that it is impossible to consider the functions of the CLA separately from the working of complaints systems of local authorities. He thought it likely that there would be an increasing volume of complaints because of the growth of awareness of rights and remedies, and that the present system of voluntary and partial local review, coupled with the centralized investigation and review process of the 23

Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982) A C 617. 24 Annual Report for 1993 H C 2 9 0 o f 1993^t, (London, H M S O , 1994) para. 8. 25 Sir G. Chipperfield, Financial Management and Policy Review of the Commission for Local Administration Stage I, (London, Department o f the Environment, 1996).

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CLA, would not be able to handle this effectively. He stated that the Government perceived a necessity for complaint systems for all public service providers—including local authorities—to be strong and effective and to contain internal and external review. While local authorities have made great progress in establishing such systems, he thought that there is still more to be done. In his opinion it was very unlikely that there would ever be effective systems without a statutory basis. There should, therefore, be a statutory requirement on all local authorities (and possibly all public service providers) to put in place such systems which meet specified criteria, these to include a Chairman of external review or an adjudicator who is genuinely independent and adequate resources and co-operation from the authority in investigating and implementing recommendations. These systems will not be likely to be effective in all authorities—or perceived as being totally effective by the public—unless there is a central body which validates and monitors them. A refusal to validate an authority's system could be on the grounds that the external reviewer was not sufficiently independent or did not have sufficient resources. The central body would be statutorily based and its refusal of validation could put an authority in breach of the law. It could cover public service bodies other than local authorities. It might report to Parliament or to the Secretary of State. This central body would also determine complaints that the processes had not been properly operated. The onus would be on the authority to show that they had been. Failure to do this would result in the council being required to undertake the process again. But the central body would not reinvestigate individual cases. Its function would be to ensure others got it right, not to do the job itself. In the light of this analysis the functions of the CLA as they exist at present, of independent investigation, are not necessary. It would be possible for them to undertake the functions proposed for the new central body, but there would be difficulty in changing their culture from one of investigation to that of supervision and validation. The DOE and the CLA received this report on 30 November 1995. In February 1996 a junior minister announced that the Government had decided that there was still a role for the CLA as an independent investigator. The second stage of the review was announced and this would concentrate upon the CLA's effectiveness and efficiency as an investigatory body. It is not entirely clear why the government rejected Chipperfield's central conclusion and recommendation. Perhaps it was disagreement with his analysis that internal complaints systems could have an external element which need not be independent. Certainly consultations made by third parties indicated the need for an independent element. Chipperfield's view that independence was not necessary was influenced by the experience of the Inland Revenue Complaints Adjudicator. He was of the opinion that so long as the external reviewer is independent in decisions, has sufficient resources and recommendations are agreed by the service provider, then time will erode the perception that the paymaster calls the tune.

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In Chipperfield's view the role of the CLA could be one of back-up, conducting an audit of complaints systems, hearing appeals. He also thought that the ownership of the complaints systems would be best if councils carried responsibility. He thought that independent reviewers add little to their effectiveness and detract from motivating councils to do their jobs properly in reviewing their own processes. He did not think that one could "read across" a need for an independent reviewer because of the statutorily established Pensions Ombudsman, Building Societies Ombudsman, Housing Association Tenants Ombudsman, because they are in the private sector. As for the Health Service Commissioner, this office could be distinguished because it deals with a unified service, whereas local government is not unified. Chipperfield had also reasoned that the need for the CLA was not justified because of the potential for confusion. In local government the various services provided included social services, social housing and education and that local democratic control of these services was derogated from by the operation of the CLA. Whilst he did have some praise for the work of the CLA, he was critical of the delay from receipt of complaint to issue of final investigation report. He felt that in some cases a local settlement might have been reached between the complainant and the council without the intervention of the CLA, and that it was not until a council's Chief Executive became involved that the complaint was properly considered. From this he concluded that what might be regarded as a failure of the internal complaints system might really be explained as a failure of giving the system the opportunity to work. Accordingly effort must be expended in getting local complaints procedures to work properly. The second stage of the review was conducted by Mr A. Whetnall. This was a substantial report with many recommendations which included accountability, jurisdiction, powers, management and financial accountability and quality of service. I wish to concentrate on the proposals which deal with the CLA's relationships with internal complaints systems and the courts. The CLA had indicated that it was unhappy with Chipperfield's recommendation for a role as a validator of councils' internal complaints systems and Whetnall's review supported this stance which was based on the difficulty of agreeing a detailed objective specification for validating complaints systems without suppressing innovation and local variation. Whetnall approved the idea of experimenting with the suggestions of the CLA. This would mean that councils would be asked about the adequacy of their complaints systems and whether they met the principles in the guidance on complaints systems. This would in turn provide the CLA with a basis on which to compile a list of councils or departments of councils which would not be subject to the requirement that complainants exhaust the council's complaints system. It followed that in all other cases complainants would be required to exhaust the council's complaints system (this, however, would not be a validation of that system). Finally, where a complainant was not satisfied and the CLA accepted the case

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for investigation, this might include an examination of the council's complaints system and could lead to a recommendation for improvements to that system.26 This last recommendation must be read alongside a recommendation on what Whetnall called the "ultimate rung" strategy. Under this the CLA would interpret the provision in the Local Government Act 1974, s.26(5), that the CLA be satisfied that the complaint had been brought to the notice of the council and that it had had a reasonable opportunity to investigate and reply to the complaint, to mean that the CLA would refer the complaint to the council where a complainant had not exhausted the internal complaints system unless there were exceptional circumstances. This was the CLA's own suggestion and was a response to the fact that (on the figures provided by the Audit Commission) some 98% of councils do have their own complaints systems. The criteria suggested by the CLA for not being required to exhaust councils' complaints systems were as follows: that the volume of similar complaints suggested a systemic problem; that full investigation would be unlikely or impossible because the complaint concerned members' or other interests; that the council did not have an adequate complaints system; where delay would make resolution more difficult (school allocation appeals); and that the complainant was particularly vulnerable (by reason of age, disability, mental health) and would be deterred from pursuing a complaint. Where the complaint was referred back to the council, the complainant would be told why, and after eight weeks' progress within the council's complaints system its progress would be checked. If progress was unsatisfactory because the council was slow in reaching conclusions, or the complainant wished to challenge the conclusion, or both parties felt that they could not reconcile their differences locally, then the complaint would be registered for a formal investigation. Cases would stop if the parties agreed that nothing had gone wrong, or fault had been admitted and an offer of redress was accepted as satisfactory. It was thought that if this procedure were adopted more cases might be resolved locally, given improvements in complaints systems. And in complex, contentious cases the CLA would have a better factual basis on which to begin investigation which could reduce the time to resolve complaints. The procedure could also improve complainants' understanding of the local ombudsman service. Whetnall agreed that a pilot study was required and this would be very useful in refining the exceptional circumstances in which non-exhaustion was acceptable. The problem of what to do with "premature complaints" could vary between two undesirable extremes: the presentation of a "cold shoulder" which could increase the barriers for complainants, and involving the CLA in a large amount of advisory work. Here the practice of the Revenue 26

A. Whetnall, op. cit. supra n. 17 paras. 380-93.

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Complaints Adjudicator was praised for the way it handled premature complaints. It is interesting that while the experience in one service subject to the oversight of a national ombudsman, the PCA, was considered, no mention was made of the most extensive internal complaints system which had just been overhauled and which featured an "ultimate rung" relationship with its ombudsman—the National Health Service (NHS). Following a very thorough investigation of the disparate complaints procedures within the NHS, the committee chaired by Professor A. Wilson produced a report Being Heard,27 which was notable for its consideration of complaints systems in the private and public sectors, as well as a comparison with health service complaints systems in other countries. The committee drew upon the preparatory work of the Citizen's Charter Complaints Task Force, which explains the similarities between the recommendations in their reports on the principles of a good complaints system. Under the new NHS scheme which was introduced on 1 April 1996, there are two stages and access to the Health Service Commissioner (HSC) will normally only be possible if a complaint remains unresolved after having progressed through the system's two stages.28

Ombudsmen and the Courts It was not surprising that Lord Woolf in his report on civil justice should pay attention to the judicial review jurisdiction of the courts. This was not only because it meant that the report would be thorough but also because Lord Woolf, both at the Bar and on the bench, had acquired a great deal of experience and knowledge of judicial review. Moreover his extra-judicial writing includes opinion pieces29 as well as joint editorship of the leading practitioner text on judicial review.30 One of the major themes in his proposals for the reform of civil justice is to seek to reduce the number of cases which the courts hear by encouraging the use of ADR. In judicial review Lord Woolf also expects that applicants should have had recourse to alternative remedies, which in any case is part of the consideration made by the judge who determines leave for the application for judicial review, although acknowledged as having exceptions.31 One of the other consistent themes or principles in his 17

(London, Department of Health, 1995). Health Service Commissioner (Amendment) Act 1996, s.5. 29 Sir Harry Woolf , "Public Law—Private Why the Divide?" [1986] Public Law 220, Protection of the Public—A New Challenge (London, Stevens 8c Sons, 1990), "Judicial Review: A Possible Programme for Reform" [1992] Public Law 221; Lord Woolf, "Droit Public—English Style" [1995] Public Law 57. 30 S. A. DeSmith, Lord Woolf & J. Jowell, Judicial Review of Administrative Action (London, Sweet & Maxwell, 5th ed, 1995). 31 For example 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, R v Chief Constable of the Merseyside Police, ex parte Calveley [1986] QB 424, Leech v Deputy 28

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reform proposals was that of appropriate procedures. Lord Woolf did not wish to see cases which had begun on the wrong procedure stopping there and hoped that they could be transferred to the appropriate one. A development of this point was his suggestion, first made in his Hamlyn Lectures,32 that there might be an interchange between ombudsmen and the courts. 33 He thought that it might happen that a case under investigation by an ombudsman could be transferred to the courts if a point of law required interpretation. In general, he approved of the way the ombudsmen handled their discretionary override of the barrier to their jurisdiction of complaints which had an alternative remedy. The adoption of this proposal would enable ombudsmen to accept complaints for which they were, in most respects, the most appropriate procedure. Using the example of housing in his final report, Lord Woolf outlined the advantages of using either the CLA or the Housing Association Tenants Ombudsman as consisting in their expertise; their informal, flexible and non-confrontational investigatory method; the lack of a user fee; and their ability to group together similar complaints. As well there was the possibility of preventative measures through the specific recommendations they might make in the investigation report to the housing authority/association and the potential that publication of their reports had to achieve an improvement in standards. As for transfers in the opposite direction from the courts to the ombudsmen, Lord Woolf appears to envisage that this would occur where fact-finding was at issue and the investigatory powers of the ombudsmen would be helpful. Facts found by the ombudsmen would be accepted as being correct in the absence of clear evidence to the contrary. It would appear that Lord Woolf was also in favour of the courts being able to enforce the ombudsmen's recommendations. 34 In the review of the CLA, Whetnall considered some variations on the Northern Ireland Commissioner for Complaints model of enforcing ombudsmen remedies through the courts. It was not envisaged that this would happen frequently and one possibility was that it might be limited to those cases which had begun in the courts and then been referred to the ombudsman. Whetnall was also of the view in the light of the research which both the CLA35 and the review team had conducted into the topic of Governor of Parkhurst Prison [1988] AC 533, R v Secretary of State for the Home Department, ex parte Swati [1986] 1 WLR 477. See also the recommendation of the Law Commission that applications for judicial review should not normally proceed to a substantive hearing if an alternative remedy has not been pursued, Law Commission, Administrative Law: judicial Review and Statutory Appeals (Law Com No 226, HC 669 of 1993-4) (London, HMSO, 1994), para. 5.35. 32 Sir Harry Woolf, Protection of the Public—A New Challenge, op. cit. supra n. 29 pp. 90-1. 3J Access to justice Interim Report (1995) pp. 139-40, and Final Report (1996) para. 89, p. 220. 34

Ibid., para. 8 9 , p. 220. Remedies: Non-compliance England, 1995). 35

(London,

Commission

for

Local

Administration

in

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councils' non-compliance with CLA recommendations for remedial action, that such occasions would decrease if the ombudsmen could refer disputed questions of law between the council and the ombudsmen for judicial interpretation.36

An Integrated System for Administrative Justice? It seems to me that these trends relating to the ombudsmen, presenting a kind of hinge with complaint systems on one side and the courts on the other, have the potential to provide an integrated system of remedies for citizens aggrieved at the in/action of public bodies.

SERVICE CLAIMS

RIGHTS CLAIMS

NHS Government (NDPB) T T Complaints 1st Tier Complaints Stage 1 • T Stage 2 (Adjudicator) • T 2nd Tier HSC Ombudsmen (PCA/CLA)

Decision-Maker T Appeal Tribunal (SSAT) | T Appeal on Law (SSC)

Judicial review may occur anywhere if non-exhaustion of alternative remedies is permitted Figure 1 Current Remedial Ladder

In the above figure I present a very simplified view of the current range of administrative justice remedies. I am also aware that the soon to be enacted Social Security Act 1998 implements proposals in the Green Paper Improving Decision-making and Appeals in Social Security.37 The Act will change current arrangements in the following ways: first, it reduces the number of occasions on which a tribunal sits; second, it creates the possibility of singleperson tribunals as opposed to three person tribunals; finally it increases internal reviews ("revisions") of initial decisions. I have very broadly categorised the claims that citizens may make into two: service and rights. Not only are they broad but they are permeable. I would identify service claims with maladministration (itself undefined), i.e. concerned with the quality of the service provided by a public body, including delay, discourtesy and failure to inform. Rights claims include social security benefits, licences/permits. Some issues which are initially presented to an ombudsman as a service claim may end up having the outcome of a successful rights claim. The PCA may in the course of the investigation into the administration of a social security benefit discover that a failure to take proper account of some information meant that the assessment of the complainant's 36 37

Op. cit n. 26, pp. 159-60 and see Figures 1, 2. Cm 3328 (London, H M S O , 1996).

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need was faulty and that more or other benefits were due. On the other hand the CLA will reject claims about the way a council has determined an application for planning permission because the complaint is what a might be termed a "surrogate appeal". What the complaint really wants to do is to appeal against a grant of planning permission but the legislation does not allow for third party appeals against planning consent. It is possible that the ombudsman's investigation into the procedures could disclose maladministration. For example, the complainants were neighbours and should have been, but were not, given any or timely information about the planning application. This may lead to an apology, or a small amount of financial compensation, but not the remedy which they want, which is the revocation of the planning permission. The avenues for redress which the citizen may pursue are the four remedies discussed earlier: tribunals, ombudsmen, complaints and judicial review. Tribunals have been established to adjudicate rights claims. Indeed one of the reasons given for not establishing an appeal to a tribunal in respect of grants or loans made from the Social Fund was that there was no right to them, unlike other benefits such as Income Support. We have mentioned that ombudsmen may end up dealing with rights claims, and in the person of the Health Service Commissioner this may include matters of medical negligence as this ombudsman's jurisdiction has been widened to include matters of clinical judgement. 38 Whereas this ombudsman does operate as the ultimate rung in the NHS complaints system this is not the case in other areas. And in some areas again—Inland Revenue, Customs & Excise—there is a voluntary second stage to the internal complaints systems.

The Agenda of Integration The idea of the ombudsman being the hinge linking complaints systems and the courts suggests to me the possibility of developing these links so that we have more of an integrated system rather than a disparate array of remedies. I would suggest that one way of trying to develop such a system would be to consider the best match of claims to remedies or procedures, to use Lord Woolf's term. This is not without its difficulties. Before proceeding to consider this, one should, perhaps, first reflect upon this system and its values, purposes and principles before moving to the more instrumental level of institutions and matching claims with procedures. If one were to attempt that agenda, one would perhaps be tending towards grand theory and systems building. This is not the place to do that. What I propose to do is to sketch out some of these factors so as to give some indication of what might be done and what requires to be done. I should articulate some fundamental points before embarking upon some 38

Health Service Commissioner (Amendment) Act 1996, s.6.

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of the detail of reform proposals. It is, I think, clear to most that administrative law is more than just judicial review of administrative action. From that I would urge that we should try to think of administrative justice as a system within public law. Public law in the United Kingdom is about to undergo a considerable change. There is incorporation into domestic law of the European Convention on Human Rights by the Human Rights Bill and the enactment of a promised Freedom of Information Act. Following the "Yes" votes in the September 1997 referendums, Scotland and Wales will have legislative and administrative devolution respectively. The English regions, it seems, may in the future be able to request a measure of devolution. In Northern Ireland, following agreement at the multi-party talks reach agreement there is to be devolution to institutions within Northern Ireland and innovative linkages between those institutions and their counterparts in the Irish Republic, as well as agreements between the two governments in London and Dublin. The impact of devolution will also have the potential to improve the relationship citizens have with their government.39 Parliament too will be reformed. A select committee has suggested some changes to the legislative process and other areas have been identified for examination.40 There will a referendum on replacing the "first past the post" method of electing MPs with a version of proportional representation, and there are changes foreshadowed for the House of Lords affecting the hereditary peers. Aspects of this, never mind the whole list, amount to a significant new constitutional settlement and in the context of such massive transformation it no longer seems fanciful to think that we might be able to be clearer about what we wish to do in our system of administrative justice. Drawing on the work of the Law Commission in its study of judicial review and statutory appeals I would suggest that it might have three broad purposes: • The vindication of rights • Interest representation • The promotion of good administration There may well be other purposes which could be included but for the moment these three will serve. They are, I think compatible with a liberal democracy and seek to protect the rights and interests of individuals and groups, the public interest as well as good administration.

39 The devolution legislation is the Government in Wales Act 1998, The Scotland Act 1998, and the Northern Ireland Act which implements the Belfast Agreement, Cm 3883 (London, The Stationery Office, 1998). 40 First Report from the Select Committee on the Modernisation of the House of Commons: The Legislative Process, HC 190 of 1997-8 (London, The Stationery Office, 1997) and First Special Report from the Select Committee on the Modernisation of the House of Commons (London, The Stationery Office, 1997).

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I think that one may then specify the following values: • Pluralism • Accountability • Rationality Again I would hope that these are uncontroversial. In a liberal democratic society I think that pluralism is desirable and that in our government we would wish to see that our representatives and their officials are accountable and that their work is, to a degree, rational. This would make explicit that which we have arrived at incrementally through the development of the principles of judicial review. In addition Lord Woolf has suggested some principles which should underpin civil justice and which I think can equally be applied to an administrative justice system.41 Accordingly it should: (a) be just in the results it delivers; (b) be fair in the way it treats litigants; (c) offer appropriate procedures at a reasonable cost; (d) deal with cases with reasonable speed; (e) be understandable to those who use it; (f) be responsive to the needs of those who use it; (g) provide as much certainty as the nature of particular cases allows; (h) be effective: adequately resourced and organised. I would also suggest some institutional reforms. First, various proposers of administrative justice reform share the view that there ought to be a body with a combined oversight and research capability which is stronger and wider than the Council on Tribunals. 42 The models for this body are Australian (the Administrative Review Council) and American (the Administrative Conference of the United States). Personally I would prefer the ideas of the Institute for Public Policy Research, given their focus upon the whole field of administrative justice. Two of their proposals may be highlighted here: enacting a requirement for all public bodies to establish complaints systems; and creating a Commission for Public Administration which would also contain an Ombudsmen Division bringing together all of the public sector ombudsmen. Of course there are advantages and disadvantages in creating umbrella bodies. One concern is that areas which previously had their own free-standing body may lose out in any amalgamation. I hope this would be offset by the potential of such an umbrella body for improving accessibility to citizens and for cross-fertilisation within it. 41

Access to Justice, op. cit. supra n. 17, para. 1, p. 2. Justice-All Souls (Chaired by Sir P. Neill), Administrative justice: Some Necessary Reforms (Oxford, Oxford University Press, 1988) ch 4; Institute for Public Policy Research, The Constitution of the United Kingdom (London, Institute for Public Policy Research, 1991); N . Lewis and P. Birkinshaw, When Citizens Complain (Open University Press, Buckingham, 1993). 42

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Secondly, I would propose an Administrative Appeals Tribunal which would join together the various specialist bodies, such as the Social Security Commissioners and Employment Appeal Tribunal, which hear appeals on law. It could also have the jurisdiction to determine appeals on the merits for specific areas, such as, for example, reviews in social security. The model for this is the Australian Administrative Appeals Tribunal (AAT) which has the jurisdiction to hear appeals, both on the law and the merits, either directly or from first-tier tribunals. For constitutional reasons the Australian AAT's merits jurisdiction is seen as part of an executive process of arriving at the correct or preferable decision. It does not, however, imply any want of real independence on the part of the AAT. In any case, I wish any British AAT t o be independent of the executive, but I also wish it to be a body which can deal with appeals from social security reviews which are not appeals on law. So the new body could be the ultimate rung for appeals in the way that the Ombudsman Division is the ultimate rung for complaints which may have progressed through one or two stages. Another concern about these bodies is scale. Is it possible to transplant the AAT model from its Australian context with its smaller population and caseload? It is in my view perfectly possible to devise appropriate mechanisms, including internal review systems, lower level tribunals in high volume areas etc. So the number of cases reaching the ultimate rung on the ladder would not be large, the vast majority having been resolved at these earlier stages. In light of the preceding discussion I would, therefore, propose the following remedial structure: SERVICE CLAIMS

RIGHTS CLAIMS

NHS Government (NDPB) • T 1st Tier Complaints Complaints Stage 1

Decision-Maker

Stage 2 T 2nd Tier

CPA Ombudsman Division

Review

Appeal Tribunal

(Merits) (Law) Administrative Appeals Tribunal

Figure 2 Proposed Remedial Ladder

The task then is to identify the types of claim and ensure that they are dealt with by the most appropriate procedure. The broad dichotomy of service/rights can suggest that service claims are dealt with by complaints and ultimately ombudsmen, and that rights can progress through appeal tribunals on to the AAT. This body would also hear appeals from reviews which it seems, despite academic concerns, may be destined to increase in social

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security. The problems of access to these procedures must be seriously addressed. The idea of transfer between procedures must be considered. For example, it might be that the investigative style of the ombudsmen would be appropriate in the determination of appeals from social security reviews and so could be tansferred from the AAT. The points made earlier about the need for advice and representation before tribunals mean that finance will have to be provided. Finally, what of judicial review? Following Lord Woolf, the aim must be to reduce the need to have resort to it. The provision of the other procedures should help to achieve this aim. What might be the criteria for access to judicial review? I would suggest the following: • Urgency • Public Interest • Point of Law Thus judicial review can ensure that parties can be protected by "trumping" other procedures and permitting wider interests to be taken into account.

Conclusion The development of internal complaints systems which has been promoted by the Citizen's Charter programme is a welcome development. The Chipperfield review was, in my view, correctly not followed in its recommendation to change the role of the CLA to that of a simple validator of councils' complaints systems, although I think the CLA can play a role here by providing guidance which sets prescriptive minimum standards and still allows for local innovation. The "ultimate rung" strategy advocated by Whetnall coincides with an initiative by the CLA and a pilot experiment has been designed which will run for the year April 1998-March 1999. One of the concerns is that, with the variety of redress procedures in administrative justice, and the lack of a body which can monitor the whole field of administrative justice, there is a danger of the wheel being re-invented. The PCA is a member of the CLA, and this officer is also the HSC who, from 1 April 1996 is the ultimate rung on the very extensive NHS complaints system. Research on all of the procedures is required with a view to integration. Lord Woolf's suggestion that there can be an interchange between the courts and ombudsmen is interesting (and may well be required in the determination of clinical complaints). It is easier to see how it might be used to transfer from the ombudsmen to the courts for determination on a point of law, than vice versa. It indicates, perhaps, more that the complaint was wrongly started off on judicial review. Given Lord Woolf's concern that recourse to the courts should be a last resort, it may be that one can think of occasions when, for reasons, say, of interest representation or urgency a case might go to the

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courts to stop something and then allow another more appropriate procedure to resolve the matter. This requires further thought aided by research amongst the relevant user communities to determine the boundaries of this possibility. I am a little concerned about the very short reference in Access to Justice concerning judicial enforcement. It may be that Lord Woolf was really thinking of it in the particular circumstances of housing, rather than making a general point. Again research could assist us here. I have sketched a somewhat grand plan for reform of administrative justice which will involve new institutions but mostly what is proposed is a development of the present arrangements. It would be possible to improve things by continuing the thrust of the integrating nature of complaints vis a vis ombudsmen and the courts. This process would, however, be helped if we were to have a Commission with the research capacity denied the Council on Tribunals. I also think the bringing together of ombudsmen would help the setting of standards and the provision of advice on good practice. The establishment of an AAT would reduce, and thus help to rationalise, the proliferation of tribunals and, of course, allow for appeals on the merits from reviews and lower level tribunals.

PART 8

System Monitoring and Overview

24 The Role of the Council on Tribunals LORD ARCHER OF SANDWELL

Introduction

T

HE latter half of the 19th Century witnessed a startling escalation in the role of central and local government. In philosophical discussion and in practical administration the State assumed a life of its own. It undertook to regulate a wide spectrum of activities, and increasingly to make direct provision for an increasing range of services. Political and jurisprudential theory embraced new categories of rights either to be immune from, or to be entitled to, the attentions of administrators. These in turn required procedures for adjudication. But the legal culture lagged behind. Stemming from the Separation of Powers, adjudication was assigned to the judges, and that meant the ordinary courts. Occasionally a Department established a specialist forum, such as the Railway and Canal Commission, and there were even some institutions which brazenly flaunted the name "tribunals" such as the Railway Rates Tribunals. But the Rule of Law was located within the courts which exercised the traditional jurisdictions. In 1929 the then Lord Chief Justice, Lord Hewart, published The New Despotism, arguing that there existed a conspiracy by the Executive to usurp the functions of the Legislature and the Judiciary. In part, it consisted of an attempt to divert to the administrators decisions which properly belonged to the Judiciary, and he perceived tribunals as part of that process. The resulting debate led to the appointment of the Committee on Ministers' Powers (the Donoughmore Committee) which reported in 1932. Their report was less dramatic than Lord Hewart's allegations. They even conceded that, in certain situations, tribunals could offer advantages over the courts. They listed cheapness, accessibility, freedom from technicality, expedition and specialist expertise. "But", they went on, "while we recognise these advantages we repeat that such Tribunals should be set up only in those cases in which the conditions

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beyond all question demand it. It is in the ordinary courts, higher or inferior, that justiciable issues, whether between subject and subject or between Crown and subject, ought as a rule t o be determined". Within a quarter of a century, the mood had changed. In 1955, following the Crichel Down scandal, the Government established the Franks Committee on Administrative Tribunals and Enquiries. Its report two years later accepted without protest the existence, and indeed the proliferation, of tribunals. They recognised the need for systematic thought on the subject, and made 95 recommendations, one of which was the establishment of a standing Council on Tribunals, to keep under review the constitution and working of tribunals and inquiries. That recommendation was duly implemented by the Tribunals and Inquiries Act 19581 (subsequently revised in 1971 and 1992). Its remit is to keep under review the tribunals specified in Schedule 1 to the Act, as amended from time to time, and to consider and report on matters relating to statutory inquiries.

The Council on Tribunals The Council is not a channel of appeal. It is no part of its function to secondguess the decision of a tribunal in an individual case, nor to influence the development of a particular jurisprudence. Nor is it an ombudsman. It is not concerned with complaints about dilatory or inefficient administration in individual cases. There may •well be a need for these forms of redress but the Council is concerned with whether the system is designed and adapted to function in accordance with the Franks principles of openness, fairness and impartiality, to which over the years there has been added a concept of userfriendliness. The Council's remit is an advisory one. It has no executive powers, and no right to expect that its advice will always be accepted. The Franks Committee was clear: "We consider that if a standing body of this kind is to be effective it should for the most part be advisory in nature and its advice should be given to a Minister or Ministers".2 Successive Tribunals and Inquiries Acts, in defining the functions of the Council, have used the formula "to consider and keep under review . . . and . . . report on . . .", or "to consider and report on". And they have provided that: "any report by . . . the Council shall be made to . . . the Lord Chancellor and the Lord Advocate". 1 Although the word "Inquiries" in the title of the Franks Committee was spelt with an "E", in the subsequent legislation this became an "I". 2 Paragraph 130.

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Consultation If then the Council were to confine itself to a narrow view of its statutory functions, any dialogue would have to be with the Lord Chancellor and the Lord Advocate. But even in 1958, so homogeneous a view of Government bore little relation to the facts. Many of the tribunals which were to fall within the Council's supervision were administered not by those two ministers, but by a variety of government departments. Discussions are in practice conducted with officials, and occasionally with Ministers, in the Departments responsible for establishing the tribunals, appointing members, issuing regulations and providing resources. Ministers are required by the Tribunals and Inquiries Act to consult the Council before promulgating procedural rules;3 in practice it is consulted on a much wider range of matters, embracing the establishment, the jurisdiction and the functioning of tribunals. Dialogue usually takes the form of correspondence but if there are issues to be resolved, it may entail conversations between officials, visits to a Council meeting, shared lunches, or discussions with Ministers. Relations are usually cordial, and there has developed a mutual trust that confidences will be respected.

Advice But the Council is no desiccated source of push-button responses. Sometimes it offers unsolicited advice, since it has developed various sources of information. It may feel strongly about the advice which it tenders, and it is not devoid of sanctions. It is required to report annually to the Lord Chancellor and the Lord Advocate, and its reports are presented and packaged in the expectation that they will be published. They are read and referred to in Parliamentary debates, by Select Committees, in academic publications and in the quality press. The Council may also issue Special Reports on specific matters, either on topics referred to it by the Lord Chancellor or the Lord Advocate, or on its own initiative. Within the recent past, it has carried out a review of public inquiry procedures at the request of the Lord Chancellor, arising out of the Scott Inquiry4 and produced a Special Report on its own initiative on the organisation and independence of tribunals. 5 In each case, after being presented to the Lord Chancellor, the report has been published. The Donoughmore Committee would have been horrified to learn that there are now 78 tribunal systems administered by numerous departments falling within the supervision of the Council. The citizen is six times more 3

Section 8. Copies available from the Lord Chancellor's Department; also Annual Report of the Council on Tribunals 1995/96, appendix A. 5 Cm 3744; also Annual Report of the Council on Tribunals 1996/97, appendix A. 4

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likely to encounter the judicial system as a party to tribunal proceedings than before the traditional civil courts. The tribunals range from Education Appeal Committees to the Meat Hygiene Appeals Tribunals and from Social Security Appeal Tribunals to the Crofters Commission. They include the Wireless Telegraphy Tribunal, which was established in 1949 and has never been convened. Inevitably, in view of the disparate issues on which they adjudicate, there is probably little to be gained by attempting to impose a uniform structural, compositional and procedural pattern on them all. Frequently the Council's advice relates to matters of detail which arise in relation to a specific tribunal, and it is often within the details that justice is vindicated or denied. But sometimes, the advice consists in emphasising general principles, or is distilled by the Council from the whole spectrum of its experience. Of course the Council's advice can be no more effective than the executive machinery which exists to implement it. Within Government there is no one executive body to which more general advice can effectively be tendered. Yet statutory bodies sometimes assume a life and culture of their own, and the Council occasionally permits itself to transcend the boundaries of its statutory functions. There are many areas where tribunal members, administrators and users would benefit from some imaginative co-ordination. Such ambitious aspirations as the provision of a common career structure for legal chairmen or tribunal clerks, or a common appeal structure for groups of tribunals, require more than the co-ordinating activities of an advisory body. Departmental empire-building and departmental inertia can be overridden only by a unit within Government. An office with a mandate to reflect on such issues, and with direct access to the Cabinet, is not within the subject of this paper, although we may all be excused an occasional flight of fancy.

Special Initiatives But the Council has demonstrated how much may be achieved within the existing structure. At the simplest level, it is not unusual to see one tribunal struggling to function in totally unsuitable accommodation, at a time when a hundred yards away a comfortable venue belonging to another tribunal system is unoccupied. In 1995, after some hard lobbying by the Council, there was established a Register of Tribunal Accommodation, where tribunals with occasional spare accommodation in particular areas may advertise the fact, and tribunals seeking an ad hoc venue may find what is available. Inevitably, there is a running-in period, but the feedback indicates that it is alleviating some administrator's headaches. In addition, it is worth reminding everyone of standards which are universally applicable. The Council has issued a Code of Practice for accommodating disabled people. The Council has also published Model Rules of Procedure for the

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guidance of those establishing or providing for tribunals, offering various options to provide for differing requirements, but hoping to achieve a degree of consistency. Training Training, of course, has frequently to be specific to each system, but there is sufficient common ground to justify courses on chairing skills, inter-cultural awareness, and discussion of common problems, such as the use of information technology, which are shared among a variety of systems, and the Tribunals Committee of the Judicial Studies Board is constantly exploring with the Council ways of improving access to training. Much may be achieved, too, by disseminating knowledge of best practice, in such mundane matters as simplifying appeal forms and supplying applicants with literature explaining in plain English the nature of the proceedings, and what will be required of them. The Tribunals Committee now publishes a periodical "Tribunals", which ventilates matters of general interest, and generates an "in-house" atmosphere among the tribunal family. At about two-yearly intervals, the Council convenes a meeting of tribunal heads to discuss mutual problems and initiatives, and this has led to proposals for an Association of Tribunal Heads. At present, this takes the form of consultation by correspondence, serviced by the Secretariat of the Council. But if this "bush telegraph" transpires to fill a need, these initiatives may develop further. The Council, therefore, can lay claim to having laid the foundation for establishing a tribunal culture, and sketching in the boundaries of a tribunal family.

Conclusions The members of the Franks Committee envisaged a Council which would tender advice to the Lord Chancellor. They may not have been amazed at the suggestion that such a body would inevitably engage in dialogues with other Government Departments. But if they had been told that when its advice was rejected it might make known to Parliament and the public the content of that advice and set out the alternative policy options, we can only speculate what their reaction would have been. And if it had been further predicted that the Council would develop and disseminate among tribunals a common agenda for action, they may have been divided between those who murmured of a Pandora's box, and those who rejoiced that they had sired so lusty an offspring. No institution charged with a monitoring function can expect to remain wholly free of controversy. It is there to bring not peace but a sword. Much of

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the Council's information is derived from visits made by members to individual tribunal hearings. There is no general statutory provision conferring a right to attend, although such a provision is often included in the statute establishing a specific tribunal or in procedural rules. Since most tribunals sit in public, it might be difficult to exclude members of the Council from the public hearing, but there is not always a statutory right to attend the stage where the tribunal is deliberating in private. Very occasionally a tribunal has objected to a member's presence at this stage. The Council sets great value on opportunities at the deliberation stage to observe whether the procedures have led to tribunal members being fully informed of the facts and arguments, whether all categories of members play a full part, and whether there is a case for further training in judicial skills. On occasion, the Council has been tempted to press for a general statutory right to be present at the deliberation stage, but has normally concluded that it is better to rely on the commonsense and goodwill which normally pervade its relations with tribunals. Similarly, its interface with Departments can lead to public debate on further legislation. When procedural regulations are promulgated which are required to be preceded by consultation with the Council, it has become customary to recite in the instrument the fact that the Council has been consulted. Since the outcome of the consultation is not set out, this may sometimes lead to an erroneous inference that the Council has expressed its satisfaction with the regulations. The Council has ventilated the possibility that when draft regulations are laid before Parliament, they should be accompanied by a memorandum setting out any reservations which the Council has expressed. So we have our moments of confrontation, but such irritations are rare. It would be a daring Minister or official who complained that the watchdog barks too frequently. A more likely criticism might have been that the Council were too compliant, had that been the case. And that is an observation rarely heard. Nevertheless, the Council is not entitled to expect that its existence and present remit will be taken for granted. It is about to undergo a Quinquennial Review by the Lord Chancellor's Department. The Council will learn what it is like to be "visited", and we look forward to seeing ourselves as others see us.

25 Monitoring Developments in Administrative Law: the Role of the Australian Administrative Review Council ALAN ROBERTSON SC Introduction Over the last 20 years, Australia has developed a federal system of administrative law that is comprehensive and integrated. The Administrative Review Council is part of that system. In the 20 years since its establishment, this administrative law system has increased government accountability and significantly improved the quality of government decision making, by requiring reasons to be given for decisions, by allowing unlawful, procedurally unfair or inappropriate decisions to be challenged without technicality and by giving the public access to government information. It has been accepted by citizens and, although not without intermittent scepticism, Government as an integral part of the country's democratic system.

The Australian Administrative Law System The key elements of the Australian federal administrative law system are: • judicial review by the High Court under the Constitution and by the Federal Court under the Judiciary Act 1903; • codified and simplified judicial review of the lawfulness of most statutory administrative decisions through the Administrative Decisions (Judicial Review) Act 1977 (the AD(JR) Act); • a requirement that reasons be given for administrative decisions covered by the AD(JR) Act; • merits review by an independent tribunal of many statutory administrative decisions;

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• an Ombudsman to investigate complaints of government maladministration; • broad rights of access to government-held documents, and a right for an individual to update or correct government-held personal information, under the Freedom of Information Act 1982 (the FOl Act); • regulation of the use and storage of information about individuals through the Privacy Act 1998 and the Archives Act 1983; • obligations of substantive and procedural kind to ensure there is accountability for subordinate law making which will be substantially enhanced with the passage of the Legislative Instruments Bill; and • the Administrative Review Council which oversees and monitors the whole system.1 In the Council's view federal administrative law plays two fundamental roles: • it improves the quality, efficiency and effectiveness of government decision making generally; and • it enables people to test the lawfulness and the merits of decisions that affect them. The federal administrative law system balances the provision of justice for the individual citizen against the need of government to implement the programmes and policies for which it has been elected. The administrative law system feeds useful information back into government decision making. For example, the Ombudsman can point out systemic problems in administration which should be addressed by government. The decisions of administrative tribunals and the reports and general work of the Ombudsman provide guidance to administrators as to good administrative practices and promote awareness of legal requirements. Such feedback promotes better decision making as well as better decisions in the individual cases involved. Information about what are correct and preferable decisions, how those decisions are best arrived at and what pitfalls administrators should avoid are all part of what is sometimes described as the normative effect of administrative law. This process results in better decisions at an earlier time in future cases, with benefits to the individuals concerned at that point. In this way, government policy can be implemented in an improved, more efficient and effective fashion. Today the administrative law system is responding to complex and more extensive needs than was the case 20 years ago. Changing demands on government have profoundly affected how government carries out its functions. A number of Australian government institutions have been commercialised, 1 The development of the administrative law system is described in more detail in Appendix B of the Council's Report No. 29, Better Decisions; Review of Commonwealth Merits Review Tribunals, AGPS, Canberra, 1995.

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corporatised or privatised over the last decade or so. Increasingly government services are delivered through innovative means. These changes challenge the administrative law system to remain effective and coherent, while maintaining its original purposes, namely, to increase government accountability and to improve the quality of government administration. The non-government delivery of traditionally governmental programmes raises questions about the formerly accepted distinction between public and private law and the applicability of public law remedies to consciously non-government activity.

The Role of the Council The Council's statutory charter it set out in section 51 of the Administrative Appeals Tribunal Act 1975. A copy of that provision is set out in Appendix 1. The statutory terms of reference have not been amended since the creation of the Council in 1975. They have become a little outdated as the work of the Council has changed. There is scope for amending section 51 so as to reflect more clearly the Council's current range of activities and in particular its emphasis on improving primary decision making. There may also be scope to amend the Act to prescribe a timetable for Government to respond to the formal reports of the Council. The Council's work programme is an evolving one. The Council performs a broad range of activities: • it provides advice to the Attorney-General in the form of project reports. These projects may be referred to the Council by the Attorney-General or initiated by the Council itself. Project reports are tabled in Parliament by the Attorney-General and then published. Before preparing the report, the Council undertakes extensive research and consultation that may, where appropriate, involve the preparation of an issues paper, discussion paper or exposure draft report. Some reports anticipate or respond to changes in methods of government administration. Examples include the Council's Report No 38, Government Business Enterprises and Commonwealth Administrative Law (the GBE's Report)2 and the Council's current project on contracting out of government service delivery. Other reports recommend changes to existing administrative law remedies and institutions. One example is the Council's recent inquiry into the Commonwealth merits review system. This resulted in Report No 39, Better Decisions: Review of Commonwealth Merits Review 2

A R McClean Printing Canberra, 1995.

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Tribunals (the Better Decisions Report)3 which advised on the effectiveness of the current system and made proposals about enhancing its operation and increasing its efficiency. Another example is the Council's Report No 40, Open Government: a review of the federal Freedom of Information Act 1982 (the FOl Report)4 which was undertaken in cooperation with the Australian Law Reform Commission (ALRC). • it provides letters of advice to the Attorney-General on administrative law issues arising across a very broad range of government activities (from superannuation to fishing quotas, and from corporations law to quarantine). • it continuously monitors administrative law and practice and identifies issues which require inquiry or other action. • it provides policy advice on administrative law matters through submissions to inquiries by Parliamentary committees and government • it provides comments on the Government's legislative proposals that have administrative law implications by providing co-ordination comments on recommendations to Cabinet. • it works informally with government agencies and decision makers to assist in policy development and to help improve government decision making generally. • it liaises with federal tribunals on matters relating to decision making and overall effectiveness. Examples include the holding of regular meetings between the President of the Council and the heads of the major federal tribunals and the regular Tribunals Conference organised by the Council. • it provides assistance, policy advice and training both to those who make government decisions and those affected by such decisions (for example, community organisations). • it promotes awareness of administrative review, which is an important priority for the Council. It does this by: Publishing the Admin Review bulletin a number of times each year. Admin Review summarises the current work of the Council, important Administrative Appeals Tribunal (AAT) and Federal Court decisions, activities of the Commonwealth Ombudsman, and general developments in the AAT and the specialist administrative review tribunals. • Members of the Council and its secretariat participate in seminars, conferences and lectures, and address groups interested in administrative review. • it acts as a resource on administrative law issues and advocates the values of administrative law to agencies and primary decision makers.

3 4

AGPS Canberra 1995. ALRC Sydney 1995.

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Membership of the Council The ex officio members of the Council and the qualifications for appointment of the other members are set out in sections 49 and 50 of the AAT Act. Those provisions are also reproduced in Appendix 1. The President referred to in section 49(1) (a) is the President of the Administrative Appeals Tribunal who is a judge of the Federal Court of Australia. Over recent years, the Government has appointed members both from the Executive government (very senior public servants) and from the private sector. The range of private sector expertise has included welfare rights, management consultants, senior Council of Trade Union officials, practising barristers and small business owners. There is also a Secretariat consisting of a Director of Research, 3 project officers and a clerical assistant who are permanent officers of the Public Service. These officers conduct the necessary research and prepare draft papers, reports and letters on behalf of the Council. The Council is funded from Consolidated Revenue through the Attorney-General's Department and its operating costs for the financial year ending 30 June 1997, were approximately $AUS l,009,607.5

The Benefit of a Separate and Permanent Administrative Law Advisory Body The Council was recently the subject of a parliamentary review conducted by the Senate Legal and Constitutional Legislation Committee. The Committee's primary term of reference was to consider the benefit of a separate and permanent administrative law advisory body. The Committee concluded that there was a continuing need for the Commonwealth Government to receive advice and recommendations on administrative review and decision making, and to promote a comprehensive, affordable and cost effective administrative law system. The Committee recommended that the Council should remain as a separate and permanent body, provided that it was making a significant contribution towards an affordable and cost-effective system of administrative decision making and review.6 The Council's submission to the Committee noted that the increasing complexity of government and consequent changes to the bureaucracy and the 5 This was made up of $AUS 457,002 for salaries and members fees, $AUS 383,052 for administrative expenses and $169,553 in property operating expenses. 6 Senate Legal and Constitutional Legislation Committee, Report on the Role and Function of the Administrative Review Council, June 1997, Department of the Senate, Parliament House Canberra. The Government's response to that Report was tabled on 1 April 1998.

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political system ensured a continuing need for a considered debate about administrative law values, the role of administrative law and the need for changes and adjustments in the balance of rights and responsibilities for citizens and government decision makers. The Council's status as a separate and permanent body enhances its effectiveness in stimulating and contributing to this debate. The existence of a body that brings together a knowledge of public administration and specialist expertise in administrative law issues enables the Government to obtain high quality advice at a relatively modest cost. The Council's submission that it remain a separate and permanent administrative law advisory body was based on a number of grounds: • the specialist nature of administrative law and government administration; • the need to take a "systems overview" approach in advising on administrative law issues; • the need for a body which provides leadership and education on administrative law issues; • the need for a body which is flexible and can anticipate and respond to changes in methods of government administration; • the need to maximise the normative effect of administrative law; and • the need for a body which is perceived as independent and credible by government and by users of the administrative law system. Specialist Nature of Administrative Law Both government administration and administrative law are specialist areas. Administrative law has a unique position in Australian jurisprudence. Together with constitutional law, it constitutes a body of law that regulates the relationship between government and citizen. As a result, administrative law has to balance conflicting priorities and concerns. The unique nature of administrative law and, in particular, the changes wrought by the 1975 legislation, was recognised by the Council's first President, the then Justice Brennan, (now Chief Justice of the High Court of Australia) in the Foreword to the Council's First Annual Report 1977 7: The features of the new system are noteworthy: the judicial method, designed for the application of settled principles, is modified in the Tribunal to cope with the dynamic of administrative decision making; the lines of bureaucratic authority are intersected by the Tribunal or by the Ombudsman; the traditional reticence of the administrative decision-maker is replaced by his written expression of reasons; access to the Court is simplified and facilitated. The citizen is thus enabled to challenge, and to challenge effectively, administrative action which affects his interests. If that result is achieved in wide areas of governmental action, the administration will be answerable not only to government, but to individual citizens. Nice 7

AGPS Canberra 1977.

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adjustments will have to be made between the purposive orderliness of the bureaucracy and the expectations of the citizens whose interests are affected. Administrative law balances the broad interests of the government in achieving what is has been elected to do i.e. governing, with the interests of the citizen in being able to achieve individual justice in a particular case. Achieving that balance requires understanding and an appreciation of the priorities, pressures and aims of government and the administration. It also requires an awareness of and a sensitivity to the rights and expectations of citizens. The Council is uniquely placed to identify, evaluate and monitor the means by which this balance should be achieved from time to time. It brings together representatives of the public, private and community sectors in an impartial forum which facilitates the free exchange of views and experiences which in turn results in principled and pragmatic advice to government. That advice takes account of the interests and needs of all the stakeholders in the administrative law system. The expertise of the Council reflects its composition and its permanent and separate status. Because Council members are drawn from the public, the private and the community sector, they bring different expertise to bear in resolving policy problems. The presence of senior Commonwealth Government officers on the Council ensure that all members are aware of any bureaucratic implications of proposals that are under discussion. Clearly the Council needs to be pragmatic in its approach to problems and issues. The Council needs to ensure that administrative law does not unduly impede proper administration. At the same time the Council must ensure that government accountability is maintained and citizens' rights are adequately protected. The presence of the private and community sector members on the Council ensures that Council does not simply adopt, but questions, the views of government. While the mix of private, community and public sector members sometimes leads to lively debate, it ensures that the Council's policy advice adequately balances the rights of citizen and government. Members have generally been drawn from senior levels in business, law, government, academia or the community sector. Their experience in administration, knowledge of administrative law issues and their achievements and status have enabled them to make significant contributions to policy development in the administrative law area. Because of the breadth of its membership, the Council is able to import expertise from and harness the knowledge of universities, user groups, etc. It is unlikely that members of such calibre would be attracted if the Council ceased to be a permanent body. For example, if the Council's functions were taken over by a unit within a government department it is unlikely that public service involvement would be of the high level which the Council has consistently enjoyed.

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The Council's status as a separate and permanent body has also been an important factor in establishing relationships with tribunals and other administrative law bodies, departments and other government agencies, tribunal user groups, commentators and administrative law teachers. Council members and the Secretariat make and use various opportunities to support these networks. This enables the Council to draw on the experience of these bodies and individuals when comments are sought on proposals and a fruitful crossfertilisation of ideas occurs. Over the 20 years of its existence the Council has built up expertise and practical knowledge in both administrative law and government administration. Although both the Council's membership and Council staff change from time to time, the permanency of the Council allows it to act as a repository of collective and institutional wisdom, which can be drawn upon in solving new problems. This "collective wisdom" is constantly enriched by the contribution of its changing membership. The Council is able to draw on this bank of knowledge to respond quickly to urgent requests for advice and assistance. It also means that Council gives consistent advice, as appropriate, which results in a degree of certainty and equality of treatment for government agencies that seek its advice. The Council has been able to use this reserve of experience and knowledge to develop guidelines and principles of more general application. For example, it has developed and published guidelines for determining whether the exercise of a decision-making power is appropriate for external merits review. These guidelines represent one of the fundamental values of the Council—that decisions made in the exercise of a statutory decision-making power should be reviewable on its merits where that decision will or is likely to affect the interests of a person. They give the Council a structure by which to deal with larger more complex issues and represent the institutional, collective and corporate wisdom of the Council. The guidelines have been published in Council annual reports, most recently in the Seventeenth Annual Report 199293s (copy provided in Appendix 2) so that they provide guidance and assistance for agencies and departments in developing proposals. The Council's accumulated expertise, as reflected in these guidelines, is a quality that it brings to its deliberations and advice to government. It is a benefit that accrues from the Council's being a permanent body. A number of Council reports have set out guidelines and principles of more general application. For example, Report No 27, Access to Administrative Review: Stage One, Notification of Decisions and Rights of Review9 set out the Council's views on whether government agencies, when making decisions that are subject to review by the AAT, should be required to inform persons affected by the decisions of their rights to have those decisions reviewed. That report set out a code of practice for notification of reviewable decisions that 8

AGPS Canberra 1993.

' AGPS Canberra 1981.

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include principles concerning the form of notices, the content of notices and the use of plain English in notices. Report No 30, Access to Administrative Review: Provision of Legal and Financial Assistance in Administrative Law Matters,10 included an examination of the guidelines for the provision of legal and financial assistance. Most recently the Council's GBEs Report set but principles for determining the application of the Commonwealth's administrative law statutes to government business enterprises.

Systems Overview Many of the administrative law issues on which the Council provides advice require an understanding of the inter-relationship of the various elements of the administrative law system and the interaction between departments and agencies. It would be difficult for an ad hoc body established to examine a particular administrative law issue to take sufficient account of this interrelationship. Because it is a separate and permanent body, the Council is able to take a whole of government approach. It does not suffer from any parochialism which might make it particularly difficult for a unit within a government department to take a similar approach. Departments must function within the restrictions of the division of responsibilities outlined in the Administrative Arrangements Order. The width of its statutory charter enables the Council to take account of a broad range of practical and legal matters in formulating reform proposals, and thus contributes to the practicality and the credibility of its recommendations. Because the Council is a separate and permanent body, it can resist pressure to favour particular components of the system and it is able to analyse and build on the information it gains and to feed the results back into the system.

Leadership The Council sees itself as having a special role in promoting the values of administrative law to government agencies. The community expects administrators to act lawfully, fairly, rationally, openly and efficiently in their dealings with the community. Administrative law and administrative law mechanisms provide one of the essential means of ensuring that these expectations are met. The Council works both proactively and reactively in promoting these values. In its proactive role the Council prepares major reports on emerging issues in administrative law, such as its current project on contracting out of government service delivery. In its reactive role the Council provides 10

AGPS Canberra 1988.

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comments on the administrative law implications of proposed law reforms in letters of advice and in submissions to parliamentary committees and other bodies. The Council also acts as a resource for departments and tribunals and for universities which use Council reports as part of their syllabus in teaching administrative law. In exercising their leadership role, the Council liaises with those involved in the administrative law system. It monitors the work of departments, agencies and tribunals and work to improve primary decision making. Because the Council brings together administrators, institutions and users of the administrative law system it is able to collect, distill and disseminate information to all stakeholders in the system. Flexibility Another advantage of a permanent body is that it can anticipate and respond to new questions as they arise, and they do arise continuously. The volume of this aspect of the Council's work may be influenced by the fact of its existence, but its existence means that administrative law issues are less likely to go unrecognised and thus accumulate to the point where a major ad hoc review becomes unnecessary. These new questions can be examined on the Council's own initiative or can be referred to the Council by the Minister. In recent years, the Council has received two references from the Minister: a reference to review the operation of tribunals which resulted in the Better Decisions Report and a joint reference with the ALRC which resulted in the FOI Report.11 The Council is also able to be flexible in the way in which it responds to issues which arise as part of its on-going role to provide policy advice. The Council does this in two main ways. First, it is able to provide urgent advice on particular issues as they emerge, for example, by providing co-ordination comments as part of the Cabinet process. It can, and does, respond to issues raised by the Parliamentary Scrutiny of Bills Committee and the Regulations and Ordinances Committee. It provides submissions to other Parliamentary committees and to law reform inquiries which raise issues that involve administrative law. In doing so it can call on the varied expertise of its members. Secondly, it can make major reports responding to, or anticipating, changes in government administration which raises new policy questions. The Council's current work on contracting out is an example of this process.

" The Council did not agree with all the views of the ALRC in the FOI Report but where it did not agree, the report puts both views and arguments to assist the Government in making a decision on that matter.

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Maximising Normative Effect The administrative law system strengthens government administration by improving the quality of primary decision making. It increases the awareness of decision makers of the legal restraints under which they operate and the factors they should take into account when making decisions. It also promotes best practices in administration on matters such as good record keeping, appropriate provision of information and equality of treatment in like cases. The Council refers to this as the normative effect of administrative review. The outcome of a review of a decision on its merits may have an immediate effect, not only on the decision under review, but in correcting erroneous decision-making practices of highlighting misconceptions that arise within administration. In an incremental fashion, review can also produce more fundamental effects, such as higher quality decision making, increased commitment to reasoned decision making, improved program development, and administrative and legislative reform. The Council is strategically placed to be able to advocate the benefits of the normative effect and to encourage and assist agencies to structure their procedures to be able to take greatest advantage of the benefits of the normative effect. The Council dealt with the issue at some length in its Better Decisions Report. The Council can explore this important area and facilitate the exchange of ideas and experiences between agencies and tribunals without compromising their independence. As a separate body the Council is able to provide an independent forum at which Tribunals and agencies can examine ways of maximising the benefits of normative effect.

Independence and Credibility Administrative law regulates the relationship between the citizen and government. The Commonwealth Government will be a party in court and tribunal proceedings. It is government information that will be released under an FOI application and it will be government officers and practices that are the subject of investigation by the Ombudsman. The users of the administrative law system are many and varied. Although the value of the matters at stake may be comparatively small or large, each applicant's particular case is of vital importance to them. The administrative law system must be perceived by both government and non-government users to be fair, open and effective. Because the Council is separate from any department and because it is a permanent body, all users of the system can see it as an impartial and independent guardian of the system. The Council also provides a forum to which users of the administrative law

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system can present their concerns, and government agencies are also able to explain the constraints, operational difficulties and pressures against which they must balance the requirements of administrative law. The Council's independence from government and continuity of existence, combined with its unique mix of membership, means that it has achieved a high level of credibility amongst all the participants in the administrative law system. This means that its influence is maximised.

The Functions and Powers of the Administrative Review Council In it early years much of the Council's time was taken up in examining areas of government decision making to identify powers and discretions that were appropriate for review on the merits. It is perhaps difficult in 1997 to appreciate the enormous changes that the administrative law reforms of the mid 1970s made to the relationship between the citizen and government. Many of today's public servants were not in the work force before 1975 and would find it difficult to conceive of an environment which did not involve conscious regard to the lawfulness and procedural fairness of their decision making and to whether the decision they propose to make was the right decision. The Council was clearly conscious in its early days of the upheaval it was overseeing. In the First Annual Report 1977 of the Council the then President of the AAT, Justice Brennan, described the significant changes that the new administrative law system would make to the citizen's relationship with government and he saw the Council's role in terms of those changes: Changes of these kinds will not be effected without the development of tensions, but the tensions should produce constructive and critical examination of the new system. The importance of the institutions with which it is concerned warrants that examination. A monitor of the system is essential, and the Council will fulfil that function . . . . The changes which have been effected do not transform the citizens's interest in the exercise of administrative power into a legal right. Indeed, when the power is discretionary, the citizen's interest cannot be equated with a legal right in the ordinary sense. The changes do, however, confer upon the citizen whose interests are affected, a right effectively to question the methods and legality of the relevant exercise of power and, in cases falling within the Tribunal's jurisdiction, a right to participate in the making of the final decisions. The Council's duty is to observe whether that objective is achieved.12 A significant part of the Council's work is still taken up with ensuring that discretionary government decision making is subject to appropriate review, 12

Foreword to the First Annual Report 1977, AGPS Canberra 1977.

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both judicially and on the merits. The Council has reviewed a number of particular areas of public administration areas over the last 20 years13 as well as being involved on an ad hoc basis with particular decisions that are brought to or attract its attention, either through the Cabinet process, the Parliamentary scrutiny process or otherwise. While this work continues, most of the straightforward issues in identifying decisions for review have now been resolved by the Council.

The Changing Nature of Government The Council is increasingly having to consider issues more complex than the identification of the appropriate review rights that should attach to particular government decisions. Over the last 20 years the nature of government in Australia has changed considerably. No longer are government services necessarily delivered by government officers working within a traditional government department. What were once government statutory authorities have become government business enterprises. Government businesses have been corporatised and in some cases privatised. Increasingly government is looking to the tender process to select service providers to deliver government programs. Successful tenderers may be from either the public or private sphere and will be able to deliver government programs in the most cost effective manner. In Australia's federal system services will often be funded by the Commonwealth Government but delivered through a State government or by a contractor chosen by State government. These changes have meant that the Council has increasingly spent considerable time on the examination of the broader operation of the administrative law system and its place within the structure of government. The Council's most recent reports are the fruit of these labours and examine the changes that should be made to administrative law to respond to changes in administration. As part of this process Council has considered: • the operation of particular government programmes in Report No 37, Administrative Review and Funding Decisions (A Case Study of Community Services Programs)14 (the Health Housing Report); • procedural aspects of government and government administration in the Rule Making Report; • barriers to access to the administrative law system in Report No 34, Access 13 For example, Report No 16, Review of Decisions under the Broadcasting and Television Act 1942, 1982; Report No 20, Review of Pension Decisions under Repatriation Legislation, 1983; Report No 25, Review of Migration Decisions, 1985; Report No 31, Review of Decision under Industry Research and Development Legislation, 1988 and Report No 37, Administrative Review and Funding Decisions (A Case Study of Community Services Programs), 1994. 14 AGPS Canberra 1994.

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to Administrative Review by Members of Australia's Ethnic Communities15 (the Ethnic Communities Report); • the effect of new means of delivery of government service in the GBEs Report and in its current project on contracting out of government services; • the operation and structure of the merits review system as a whole in the Better Decisions Report. The Council's Health Housing Report examined programmes of the then Department of Human Services and Health and the then Department of Housing and Regional Development. These programmes presented a range of different challenges for the operation of administrative review including intergovernmental funding programmes, grants to private sector service delivery organisations and two-tier decision-making structures in which the first advisory tier is also the effective decision maker. The Ethnic Communities Report identified the particular barriers to the use of the administrative law system encountered by people from different cultural backgrounds and suggested new ways to overcome them. The Council's Rule Making Report arose from the Council's belief that subordinate legislation should be clear, certain and accessible, in the interests of the community and government alike. New law should be made by or under Parliamentary authority and subjected to Parliamentary scrutiny, as an essential regime for the making of delegated legislation, the principal elements of which were: • better guidance on matters appropriate for inclusion in Acts of Parliament and matters which can be included in delegated legislation; • improved practices to ensure high quality drafting for all Commonwealth rules; • mandatory consultation with the community prior to the making of important rules; • procedures for Parliamentary scrutiny and control which should apply to all rules; • sunsetting of all rules on a ten-year rotating basis; • the establishment of a Legislative Instruments Register in which all rules should be published, with rules unenforceable if not published in this way; and • special adaptations of these general procedures for rules of court and rules made under inter-government schemes for nationally uniform regulations. The Council's GBE Report provided the Government with principles for determining the application of the administrative law package to government business enterprises. The Council concluded as a general principle that the commercial activities of GBEs undertaken in a competitive market should not 15

AGPS Canberra 1991.

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be subject to statutory administrative law regimes. This was principally because the Council considered that, in that context, the objectives of the administrative law package are inappropriate, or they can be achieved as effectively by other more suitable mechanisms. The Council's Better Decisions Report focussed on the structure of the merits review system as a whole. It made recommendations that could be characterised as either assisting applicants, enhancing the independence and credibility of review tribunals or ensuring that review tribunal decisions are used by agencies to improve decision making generally. In addition the report made recommendations that went to the structure of the tribunals system in Australia. A recurring theme of the Council's most recent work is that the administrative law system improves public administration generally to benefit all Australians. Merits review, for example, not only assists the individual applicant. Where government agencies put in place systems to maximise the normative effect of tribunal decisions, primary decision making within that agency is necessarily improved.

Future Work of the Council The fundamental values of administrative law—lawfulness, fairness, rationality, openness and efficiency—remain the same and are equally relevant no matter how government chooses to deliver its programmes to its citizens. However the way in which those values are achieved, maintained and enforced may differ depending on the context of the particular government decision or service. The Council sees public administration as entering a new era. As the methods of government change new challenges and pressures impact on administrative law. In May 1996 the Council decided that its ongoing mission should be "to ensure that the administrative decision-making process of the Federal Government are correct according to law and accord with administrative law values, by working with all relevant interests—political, bureaucratic and community based". These values include fairness, honesty, transparency and ensuring that decisions are correct and preferable. The vision that the Council seeks to achieve is that decisions made in the administration of Commonwealth Government policies and programs should be of consistently high quality. The Council's vision and mission are consistent with the view that the Council took of its operation in 1975. They recognise, however, the changing face of government and that the administrative law system is now an accepted part of government in Australia. In the future the Council intends to concentrate on:

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• enhancing the accountability of government through improving the processes of primary decision making; • providing assistance, policy advice and facilitating provision of training to those who make government decisions and those affected by such decisions (for example, community organisations); and • monitoring the work of Ministers, agencies, tribunals and primary decision makers to ensure that their activities and approaches are consistent with the values of administrative law. The primary means of achieving the Council's mission will continue to be the provision of advice to the Attorney-General. However, the Council will also continue and expand its: • consultation with primary decision makers and community agencies; • monitoring the work and activities of other Ministers, agencies and tribunals; • monitoring the work of primary decision makers; • advocacy of values of administrative law to agencies and primary decision makers; and • contribution to the training of primary decision makers.

Final Word The Council wishes to maintain and add to its international contacts. It is always keen to share its experiences and learn from other experts in the fields of administrative law and public administration. The Council's Secretariat is pleased to answer queries and provide information and copies of the Council's publications. The Secretariat would be happy to include you on its mailing lists and to meet you should you ever find yourself in Canberra. The Secretariat's address is: Administrative Review Council Robert Garran Offices National Circuit BARTON ACT 2600 AUSTRALIA Ph 02 62505800 Fax 02 62505980 email: [email protected]

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APPENDIX 1 Administrative Review Council Membership, Functions and Powers Section 49 of the Administrative Appeals Tribunal Act 1975 provides for the composition of the Council as follows: (1)

The Council shall consist of: (a) the President; (b) the Commonwealth Ombudsman holding office under the Ombudsman Act 1976; (c) the President of the Law Reform Commission established by the Law Reform Commission Act 1973; and (d) not less than 3 or more than 10 other members.

(2)

The members referred to in paragraph (l)(d) shall be appointed by the Governor-General and shall be appointed as part-time members.

(2A)

The Governor-General shall appoint one of the members to be the President of the Council.

(3)

The performance of the functions or the exercise of the powers of the Council is not affected by a vacancy in the office of a member referred to in paragraph (l)(a) (b) or (c) or by reason of the number of appointed members falling below 3 for not more than 3 months.

Section 50 of the Administrative Appeals Tribunal Act 1975 sets out the qualifications for appointment as a member as follows: A person shall not be appointed as a member referred to in paragraph 49(l)(d) unless he or she has had extensive experience at a high level in industry, commerce, public administration, industrial relations, the practice of a profession or the service of government or of an authority of a government or has an extensive knowledge of administrative law or public administration. Section 51 of the Administrative Appeals Tribunal functions and powers of the Council as follows: (1)

Act 1975 sets out the

The functions of the Council are: (a) to ascertain, and keep under review, the classes of administrative decisions that are not the subject of review by a court, tribunal or other body; (b) to make recommendations to the Minister as to whether any of those classes of decisions should be the subject of review by a court, tribunal or other body and, if so, as to the appropriate court, tribunal or other

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body to make that review; (c) to inquire into the adequacy of the law and practice relating to the review by the courts of administrative decisions and to make recommendations to the Minister as to any improvements that might be made in that law or practice; (d) to inquire into the adequacy of the procedures in use by tribunals or other bodies engaged in the review of the administrative decisions and to make recommendations to the Minister as to any improvements that might be made in those procedures; (e) to make recommendations to the Minister as to the manner in which tribunals engaged in the review of the administrative decisions should be constituted; (f) to make recommendations to the Minister as to the desirability of administrative decisions that are the subject of review by tribunals other than the Administrative Appeals Tribunal being made the subject of review by the Administrative Appeals Tribunal; and (g) to make the recommendations to the Minister as to ways and means of improving the procedures for the exercise of administrative discretions for the purpose of ensuring that those discretions are exercised in a just and equitable manner. (2)

The Council may do all things necessary or convenient to be done for or in connexion with the performance of its functions.

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APPENDIX 2 Guidelines for Determining Whether the Exercise of a Decision-Making Powers is Appropriate for External Merits Review1 Introduction 1. The Council regularly advises the Minister of Justice whether decisions made under a particular decision-making power, or class of decision-making power, are appropriate for merits review by the AAT or other bodies. This advice, given in relation to both existing decision-making powers and those included in proposals for legislative reform, is provided in the discharge of the Council's statutory functions,2 which include: • to ascertain and keep under review the classes of administrative decisions that are not the subject of review by a court, tribunal or other body; and • to make recommendations to the Minister as to whether any of those classes of decisions should be the subject of review by a court, tribunal or other body and, if so, as to the appropriate court, tribunal or other body to make that review. 2. Merits review refers to the process whereby a person or body other than the original decision maker reviews a decision to determine what is the correct or preferable decision. Merits review differs from judicial review in that it involves a full reconsideration of the decision (including relevant facts), and the review body may substitute the decision with its own on the basis that the original decision was not the preferable decision. 3. The Attorney-General's Department, the Senate Standing Committee on Regulations and Ordinances and the Senate Standing Committee for the Scrutiny of Bills also have an active interest in the scrutiny of legislation for the appropriateness of decisions of merits review. 4. In the course of the Council's consideration of these issues over a number of years, certain principles have emerged. These principles are consolidated as 1

As published in Chapter 7 of the Council's Seventeenth Annual Report 1992-93 at pp. 70-77. References in the text to "this report" refer to that Annual Report. The Council began developing these guidelines in its early years. Considerations that the Council considered relevant were first set out in the Council's Second Annual Report 1978. The considerations were formalised as guidelines which the Council first published in its Eighth Annual Report 1983-84. 2 The Council's statutory functions are prescribed by the Administrative Appeals Tribunal Act 1975.

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guidelines and used by the Council in its consideration of whether merits review of decisions made under statutory powers is appropriate. The Council's Eighth Annual Report 1983-84 included an outline of the Council's guidelines. In the Eleventh Annual Report 1986-87, the guidelines were updated. Since that time, the Council has had the opportunity to consider the appropriateness of merits review of a variety of diverse decision-making powers, and in the course of doing so, has further amended and refined the guidelines. The Council has, therefore, considered it appropriate to publish its consolidated and updated guidelines in this annual report: The status of the guidelines. 5. Particularly as the guidelines are referred to by persons and bodies other than the Council, it is important that they be applied by the Council with consistency. However, the criteria have no legislative effect and are not binding upon the Council, the Minister for Justice or any other party. Moreover, development and refinement of the criteria is an ongoing exercise. The Prima Facie Test 6. The Council's prima facie test for determining whether a decision made in the exercise of a statutory decision-making power is appropriate for review on the merits is satisfied if the decision will, or is likely to, affect the interests of a person. 7. This prima facie test reflects the criterion for standing to appear before the A AT: section 27 of the Administrative Appeals Tribunal Act 1975 (the A AT Act) provides that persons whose interests are affected by a decision may apply to the Tribunal for review of that decision.3 8. The prima facie test is intended to be sufficiently broad to include, at least in the case of organisations, decisions that affect intellectual and spiritual interests, and not merely property, financial and physical interests. At paragraph 18 of a letter dated 9 November 1988,4 the Council explained why it takes this view: One reason why the Council takes a broad view in determining whether it should recommend a facility for review by the AAT of a decision is that the Council is looking at the decision making power concerned in the abstract. Unlike the AAT which, when considering the issue of standing to seek review, is looking at the 3 In Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) 3 ALD 74, 79-80 the AAT said, at pages 79-80, that while section 27(1) of the AAT Act did not use an adjective to describe the relationship between the decision and the interest, the provision required an applicant to demonstrate that an interest which attached to her or him was genuinely affected. 4 Reproduced as Letter 6 in the Council's Thirteenth Annual Report 1988-89.

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circumstances of a particular person in relation to a particular decision, the Council is unable to anticipate all the possible circumstances and effects surrounding the exercise of a power. Thus, it will generally make sense for the Council to err on the side of recommending a facility for review which few may have standing to activate rather than to take the risk of denying a facility for review in limine to someone who would clearly have standing if the facility existed. 9. However, decisions that are not directed towards the circumstances of particular persons, but which apply generally to the community, are considered inappropriate for review. These decisions are of a legislative nature, and should be subject to the regime of scrutiny and publication that applies to legislative instruments.5 Examples of legislative decision-making powers were identified in a letter dated 13 December 1991.6 In that letter, the Council identified the following decision-making powers in the Child Care Act 1972 as not being appropriate for merits review on the basis that they were of legislative character: • the power to make child care centre fee relief eligibility guidelines; and • the power to make child care fee relief guidelines. Factors that do not Displace the Prima Facie Test 10. In considering, the appropriateness of the decisions for merits review, the Council has considered many arguments for exceptions to the prima facie rule. The Council has rejected some, considering that the factors raised do not, of themselves, justify exempting a decision-making power from merits review: they are discussed below from paragraph 11. The Council has also identified a range of exceptions to its prima facie test, which are discussed below from paragraph 25. That the decision is made by an expert body or requires specialised expertise on the part of the decision maker 11. On several occasions, the Council has considered the appropriateness for review of decisions that are made by an expert body or that require specialist expertise, and has advised that the decisions are not for that reason inappropriate for merits review. 12. For example, in the Council's Report No 16, Review of Decisions under the Broadcasting and Television Act 1942, the Council rejected an argument that decisions of the Australian Broadcasting Tribunal were inappropriate for review on the merits because of the expertise of that Tribunal. At paragraph 51, the report noted: 5

The Council's views on what is the most appropriate regime for making of legislative instruments is contained in its Report No 35, Rule Making by Commonwealth Agencies. 6 Reproduced as Letter 2 in the Council's Sixteenth Annual Report 1991-92.

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It has long been argued that one of the weaknesses of a general administrative appeals tribunal is that an appeal would lie from an expert tribunal to a comparatively inexpert body . . . Such an argument does not place sufficient weight upon the need to review or check even the findings of experts or upon the ability to appoint experts to the Administrative Appeals Tribunal. Section 7(2)(d) of the Administrative Appeals Tribunal Act 1975 thus expressly states that a person may be appointed to that Tribunal by virtue of that person's special knowledge or skill in relation to any class of matters.

That the decision-making power is legislatively instructed 13. Occasionally, legislation prescribes only generally, or not at all, the factors that are relevant for consideration in the exercise of a decision-making power. However, the Council does not regard a decision as inappropriate for review merely because the decision-making power is legislatively unstructured. Although initially there might not be a clear principle to guide the exercise of the discretion, that will change over time as principles emerge from consideration of the discretion, the need to assign reasons for a decision, and from merits review itself.7 14. For example, in a letter dated 21 July 1992,8 the Council considered proposed changes to legislation in the immigration portfolio. One proposed change was to exclude determinative merits review of decisions whether or not to grant a special assistance visa or special humanitarian visa. These visas have relatively undefined criteria, allowing the decision-maker a larger degree of discretion than is usual under the Migration Act 1958. Nevertheless, the Council considered that the decisions were appropriate for merits review, noting at paragraph 13: The mere fact that the discretions are relatively unstructured does not provide any argument that they are inappropriate for merits review. Either the discretions can be given an appropriate structure or principles can be left to emerge through the process of review. In either case, the certainty of the law would be increased and exercises of discretion thereby made more consistent. That the decision maker is of a high status 15. The status of the primary decision maker is not regarded by the Council as a factor that, of itself, will make decisions of that person inappropriate for merits review. For example, the fact that the decision maker is of high status, such as a Minister of the governor-general, is not of itself relevant to the question of the appropriateness of the decision for merits review. It is the character of the decision-making power, namely its capacity to affect the 7 8

See the Council's Eleventh Annual Report 1986-87 at paragraph 230. Reproduced as Letter 2 in Part Two of this report.

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interests of individuals, and not the character of the decision maker, that is relevant to that question.9 16. Policy decisions that involve consideration of matters of the highest consequence to government or major political issues may be regarded as inappropriate for merits review: this exception is discussed below. That exception focuses upon the nature of the decision, not the status of the decision maker, although it will usually not apply unless the decision is made personally by a Minister. That the decision involves matters of national sovereignty or prerogative power 17. The fact that a decision-making power involves matters of national sovereignty (such as the question of who is admitted to enter the country) or prerogative power does not of itself make decisions made under that power inappropriate for merits review. In the Council's Report No 25, Review of Migration Decisions, the Council noted at paragraph 102: The Council recognises that it is an attribute of national sovereignty that a nation has the power to determine who is admitted to that country and what the composition of its population should be. But the Council does not consider that this power is incompatible with the existence and availability of remedies to ensure that administrative decisions taken in the exercise of such a power are lawful and correct within the context of the legislative and policy framework in which they are made. The enactment of the Migration Act 1958, which confers specified powers on the Executive with respect to migration, is itself a recognition by the Parliament that powers with regard to migration are not absolute or unlimited but are subject to legal limits. That the exercise of the relevant statutory discretion is circumscribed by government policy 18. The fact that the exercise of a decision-making power is circumscribed by government policy does not, of itself, make decisions made under that power inappropriate for merits review. This is subject to the operation of the high policy exception, which is discussed below at paragraphs 25-28. 19. This principle is reflected in decisions of the AAT and the courts. When the AAT is reviewing the exercise of discretionary power it should, although is not bound to, apply government policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances.10 9 See the Council's Report No 3, Review of Import Control and Customs By-Law Decisions, at paragraph 20. See also the letter dated 13 December 1991, reproduced as Letter 2 in the Council's Sixteenth Annual Report 1991-1992. 10 See Ansett Transport Industries (Operations) Pty Ltd v Commonwealth of Australia (1977) 139 CLR 54, per Mason J at 83; see also Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

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That review might lead to the publication of confidential reports on employees 20. The fact that merits review of decisions made under a decision-making power might potentially lead to the publication of confidential information concerning employees does not of itself make merits review of such decisions inappropriate. This is because the AAT is empowered to protect against the publication of confidential evidence. Section 35 of the AAT Act provides that hearings must generally be in public, but that in appropriate circumstances it may conduct the hearing or part of the hearing in private, and give directions restricting the publication of evidence given before it. 21. In a letter dated 11 February 1988, n the Council considered whether decisions of a Minister to licence, or to revoke, cancel or suspend the licence of, casino employees were appropriate for review on the merits. In making these decisions, the Minister might have cause to consider confidential police reports on the applicant or employee. Nevertheless, the Council did not consider merits review of these decisions to be inappropriate, and referred to the powers of the AAT under section 35 of the AAT Act. That the place where the decision is made, or where review must or should take place, is geographically isolated. 22. In the letter referred to in the preceding paragraph, the Council also considered whether it was appropriate to provide review of certain decisions made under an Ordinance of an external territory (Christmas Island). The Council considered the geographical isolation of the island and the practical difficulties that this would cause in providing review, but considered that these difficulties could all be overcome. At paragraph 20, the Council noted: The most appropriate forum for review, in the Council's view would be the AAT. If practical problems caused by the geographic isolation of Christmas Island were seen as making review by the AAT difficult, it ought to be possible to appoint as a parttime member of the AAT a magistrate who sits in the Magistrates Court of the Island. If necessary, more than one magistrate could be so appointed. There would not appear to be anything in the AAT Act which would prevent such appointments being made. That large numbers of persons might take advantage of the availability of review 23. The Council does not consider that the potential for a relatively large number of persons to seek merits review of decisions under a particular 11

Reproduced as Letter 10 in the Council's Twelfth Annual Report 1987-88.

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decision-making power justifies excluding those decisions from merits review.12 Rather, there are other, more preferable methods for containing the potential costs and delay of a high appeal rate. These include ensuring that primary decision making is of a high standard (merits review will assist in achieving higher standards), and creating an intermediate level of review that can operate speedily and informally. That there is potential for inconsistency between the decision of the A AT and another adjudicative body, such as a Court 24. The Council does not consider that a decision is inappropriate for merits review merely because the matters that arise for determination on merits review might also be relevant in court proceedings, and that the view of the A AT and the court on those matters may differ.13 Exceptions to the Prima Facie Test 25. As already noted, there are several exceptions to the prima facie test. That is, in the case of a decision-making power falling within an exception, the Council considers that the exercise of such a power is not suitable for merits review notwithstanding that the interests of a person may be affected by the decision. The exceptions are: Policy decisions having high political content 26. On occasions, the exercise of a decision-making power will involve consideration of issues of the highest consequence to the government. The Council regards such decisions as inappropriate for merits review. 27. Only rarely will decision-making powers fall within this exception; and it is unlikely that a decision-making power not vested in a Minister personally would fall within the exception. Examples of decisions likely to fall within it include: decisions of broad policy concerning the Australian economy, decisions that affect Australia's relations with other countries, decisions concerning national security and decisions that concern major political controversies. 28. For example, in its Eleventh Annual Report 1986-87, the Council noted at paragraph 243 that decisions of the Minister under section 9 of the World 12

See, for example, the comments on paragraph 18 of a letter dated 16 August 1990, reproduced as Letter 2 in the Council's Fifteenth Annual Report 1990-91. 13 See, for example, the letter dated 1 October 1992 and reproduced as Letter 6 in Part Two of this report.

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Heritage Properties Conservation Act 1983 to give or refuse consent to the doing of certain acts might fall within the exception. The Council noted that if such decisions were subject to review, it may well have resulted in the political controversy between Tasmania and the Commonwealth over the building of the Franklin Dam being argued out in the AAT. 29. Where this exception applies, it will usually apply to a small number only of the total number of decisions made under the particular decisionmaking power. If review of all decisions under the power were excluded on that basis, many decisions not having high political content would be inappropriately made ineligible for merits review. The Council therefore considers it preferable for decisions made under such a power to be subject to merits review, but for a mechanism that provides for excluding from review those decisions that fall within the exception. For example, the Council has recommended a system under which a Minister may issue a certificate on a case-bycase basis excluding particular decisions from merits review because it is in the public interest (due to, for example, considerations relating to Australia's defence or international relations) that responsibility for the decision should remain with the Minister. 14 Extensive inquiry 30. This exception is intended to extend to decisions that are the product of processes that it would be difficult (having regard to the time and cost that would be involved) to justify repeating on review. These processes include public inquiries and public consultation processes that involve the participation of, or consultation with, many persons. If AAT review of these decisions were undertaken, the nature of the review process would be removed from the normal adjudicative decision-making process of the AAT. 31. For example, in a letter dated 9 November 1988,15 the Council advised the Attorney-General that decisions made under the Australian Heritage Commission Act 1974 to enter, or not to enter, a place in the Register of the National Estate would become inappropriate for external merits review if the Act were amended to provide for those decisions to be made by a process that involved public hearings. Polycentric decisions 32. 14

Decisions that relate to the allocation of a finite fund or resource, against

A mechanism of this nature was recommended in relation to decisions concerning permission to import and export prohibited goods in the Council's Report No 23, Review of Customs and Excise Decisions: Stage Two. 15 Reproduced as Letter 6 in the Council's Thirteenth Annual Report 1988-89.

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which all potential claims for a share of that fund or resource could not be met, are generally considered inappropriate for merits review. This is because a decision to make an allocation affects the amount available for distribution to other claimants; if that decision is altered, then so is the basis of all other decisions. Decisions of this nature are referred to as polycentric decisions. An example of a polycentric decision is discussed in a letter dated 6 December 1990,16 where the Council considered the appropriateness of AAT review of National Health and Medical Research Council decisions whether to recommend that a grant from the Medical Research Endowment Fund be made to an applicant. The Council considered that AAT review of such decisions was inappropriate, because they were polycentric decisions. That is, the fund was limited and only a proportion of applications could be funded: therefore, a decision on one application affected decisions on others. Other categories of decision considered inappropriate for merits review 33. The Council has had occasion to identify several other categories of decision that are exceptions to the prima facie test. 34. The first category covers decisions of a preliminary or procedural kind, having no substantive effect. This exception extends to decisions that facilitate the making of, or which lead to the making of, a substantive decision. The object of the exception is to prevent the proper operation of the administrative decision-making process from being unnecessarily stymied.17 35. The second category covers decisions of such a kind that no appropriate remedy may be given by the reviewing body. This exception would extend to a decision that is effective for only a limited period of time, the effect of which decision would be spent by the time the AAT made a decision or review. 36. An example of decisions for which there is no appropriate remedy or review was discussed in a letter dated 1 October 1992,18 in which the Council considered (at paragraphs 20—22) decisions under section 72(4) of the Customs Act 1901 to sell or dispose of goods. The Council noted that there would be no practical scope for review by the AAT once the goods had been sold by the Australian Customs Service and purchased by a third party in good faith.

16

Reproduced as Letter 8 in the Council's Fifteenth Annual Report 1990-91. For an example of the application of this exception, see the Council's Report No 28, Review of Customs and Excise Decisions: Stage Three—Anti-Dumping and Countervailing Duty Decisions. 18 See footnote 118. 17

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37. The other categories of decision that are exceptions to the prima facie test are: • decisions made under a decision-making power that involves the exercise of a discretionary power to determine a penal sanction;19 and • decisions of a law enforcement nature. 20 19

See, for example, the discussion of the Council's recommendation on the review of decisions under the Aliens Act 1947, at page 17 of the Council's Fourth Annual Report 1980. 20 For an example of the application of this exception, see the letter dated 1 October 1992 and reproduced in Letter 6 in Part T w o of this report, where the Council discussed the appropriateness of review of Australian Customs Service decisions to withhold authority to move goods into home consumption for a certain period.

26 Filling the Gaps: a Standing Administrative Conference for the United Kingdom DOUGLAS LEWIS

T

HIS paper will be a little different from most of the others in this collection given that the theme of "administrative justice" suggests a concentration on the judicial process, or at least some informal variant of it. My argument here, which has been something of an obsession with me for almost twenty years, is for the establishment of a body whose remit would be "oversight" of the machinery of government, broadly-conceived. This would, of course, embrace the concept of administrative justice, but would range much more broadly.

A Brief History In his Reith Lectures for 1983, Sir Douglas Wass called for a Standing Royal Commission (the nomenclature is unimportant) which would have a roving brief to conduct an "independent and statesmanlike investigation of issues of public importance".1 In 1986 Ian Harden and I argued for a Standing Administrative Conference "to consider areas of policy with a view to giving advice on how to improve the institutional and procedural framework of policy analysis".2 In 1988 the Justice-All Souls Committee on the reform of administrative law called for a British equivalent of the Australian Administrative Review Council, and attendant upon the emergence of Charter '88 there was a renewed call for a Royal Commission on the Constitution. 1

See Norman Lewis, "The Case for a Standing Administrative Conference", 60 Political Quarterly, pp.421-432 (1989). 2 Ian Harden and Norman Lewis, The Noble Lie: the British Constitution and the Rule of Law, Century Hutchinson, London 1986; Sir Douglas Wass, Government and the Governed, RKP, London 1984; and see Justice-All Souls, Administrative Justice: Some Necessary Reforms, OUP 1988.

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Although I believe his prescription is wrong, Robert Alexander has recently joined the bandwagon in proposing the creation of a Constitutional Commission, drawn largely from the Commons and the Lords, that would report regularly, and turn on the "red light" to proposals that threatened our constitutional well-being.3 Since the early 1980s, nothing has happened to diminish my enthusiasm for the establishment of such a body. In 1989 I remarked that there is nothing so powerful as an idea whose time has come. Intellectually, there seemed no reason to contest this argument, but the politics of the time were perhaps unconducive to persuading the central executive to share some of its powers. Whether the current commitment to power-sharing has altered the climate sufficiently for such ideas to take root remains to be seen. In 1996 I asserted before the Public Service Committee of the House of Commons that "the establishment of a SAC would constitute the single most important value-formoney initiative in our public life".4 Not only do I continue to hold to that view, but the logic is becoming more widely accepted, even within Parliament itself. The Select Committees of the House of Commons have, in recent times, played a vital role in shedding light on aspects of the machinery of government and yet they have been forced to admit that they do not possess the time or resources to conduct the kind of inquiries which a Standing Conference could undertake. For example, the Public Services Committee have suggested the appointment of [unspecified] "Parliamentary Commissions" which could play a role in uncovering events which the limitations of Select Committees do not permit. Lord Howe, for instance, spoke of the current difficulties of following "issues effectively to their end point". Others argued, before the Committee, for non-Parliamentary committees to undertake such tasks.5 Earlier, the Trade and Industry Committee, in its investigations into Export Licensing and BMARC, had argued powerfully for broad-ranging "Parliamentary Investigations".* Thus we have an idea whose time has indeed come, though I doubt whether this particular task is one which should be performed by Parliament itself. Rather, it should be a distinguished body, independent of Parliament, which would, nevertheless, reinforce Parliamentary authority through the provision of a body of research and information which could provide valuable means of holding the Executive to account.

3 The Voice of the People: a Constitution for Tomorrow, Weidenfield and Nicholson 1997. 4 Ministerial Accountability and Responsibility, 2nd Report Vol. Ill, Minutes of Evidence, Session 1995-96, p. 136. 5 Second Report, Session 1995-96,313.1, paras. 131 et seq. 6 Session 1995-96 HC 87-1, paras. 171 et seq.

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Why Do We Need a New Body? The authors of The Federalist, No. 51 understood the dilemma of modern government with a clarity rare in history when they wrote: In framing a government which is to be administered by men over men, the great difficulty lies in this; you must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is, n o doubt, the primary control on the government: but experience has taught mankind the necessity of auxiliary precautions.7

Britain, does not, as we know, have a Ministry of Justice.8 The Lord Chancellor's Department has the lion's share of the responsibility for the legal system, but does not enjoy the comprehensive brief that many would like it t o have. It supervises the only body remotely laying claim to having oversight of administrative justice in the United Kingdom, viz. the Council on Tribunals. The Council does not, however, begin to approximate to the Australian ARC, the Law Reform Commission of Canada, or a number of important New Zealand models. Much of the work of these bodies has no counterpart in the UK, and we are, I believe, the poorer for it. I shall return to the general issue shortly, but something should be briefly said about the pace of change in our political and administrative institutions of late; change which has left enormous accountability gaps. In any event, the kind of body which I envisage would range beyond issues of administrative law and rove over the heart of the constitution too, which includes much political machinery. This is not a task for a Ministry of Justice, for a Law Commission, or indeed, as I shall argue, even for Lord Nolan's Committee. The pace of change has indeed been extraordinary, and it is abundantly clear that we do not possess the institutional apparatus to assess and monitor this change systemically. Leaving aside, for the moment, the problems of ministerial responsibility/accountability, we have seen the development of Next Steps Agencies, New Public Management (NPM), privatization, markettesting, contracting out, the Private Finance Initiative and so on. This is quite apart from the influence of our membership of the European Union, and the strains thereby placed on our system of public law. These changes have largely taken place without legislation and, therefore, to a considerable extent, without due public deliberation. Present proposals for devolution, Freedom of Information, incorporation of the ECHR and much else besides depend upon various committees and commissions sitting with varying degrees of public input into their reflections. It is true that 7

Emphasis added. Quoted ACUS, Federal Administrative Sourcebook, Washington DC, 1985, p.v. 8 And see When Citizens Complain. Reforming Justice and Administration, Norman Lewis and Patrick Birkinshaw, Open University Press, Buckingham 1993, pp. 62-3.

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consultation trawls in recent years have been deeper and wider than formerly, but there is nothing that could rival a high-esteem, standing, deliberative, body with a research capacity and a proven track-record of professionalism and detachment as an aid to these insider exercises. Let me turn, however, to the issue of administrative justice first. All the ancient arguments about democracy and the rule of law presuppose some notion of due process. A modern state with a modern bureaucracy and a healthy concern with constant reappraisals of public policy needs a system of due process writ large. If we make a cultural claim to due process, it ought to be reflected throughout the range of our "public" institutions, broadly defined. This would not represent a threat to Westminster styles of government, but should be seen as an element of pluralism reawakening expectations of healthy debate and rigorous analysis: an aid to Parliament itself. In speaking of due process writ large I refer both to the systemic redress of individual grievances and to making consultation in the policy-process (so far a Citizen's Charter promise not yet delivered) broader and deeper. I shall return to this below. I shall have more to say about the Administrative Conference of the United States shortly, but one thing might be noted here; viz. that during its period of existence it was able to dampen conflict by removing procedure and process issues from the political arena. Like its counterparts elsewhere, it enjoyed the ability to examine those issues which went beyond the practical reach of other institutions and was able to meld the expertise and perspectives of government agencies, the private sector, the practising bar and members of the judicial and academic community.

From Recipe to Menu The lack of a genuine, open, reflective forum for examining the machinery of government, including administrative justice, is a serious omission in our constitutional arrangements. There is a machinery of government division in the Cabinet Office, but it has been traditionally re-active and defensive, and no wise is an open congress. I am going t o assume that this is a defect which will be widely regretted and seek to further my argument by setting out an indicative shopping list or menu on currently active issues and debates which should illuminate the case for something resembling a SAC. • To begin with something which should not be controversial; viz. the matter of registering grievances by members of the public. I shall not seek to defend the necessity of a coherent grievance system. Suffice it to say that the present mosaic is less than ideal and requires re-assessment from first principles and constant monitoring thereafter; a task eminently suitable for a Standing Conference. Under this heading I would include ombudsman systems in the belief that Conference would buttress, support and augment the valuable work of the Select Committee on the PCA.

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• The problems with determining a "public" from a "private" law issue are well-known to all administrative lawyers and, of course, the Law Commission, among other bodies, has addressed the issue from time to time. It is a resistant problem which requires constant re-addressing. However, the problem is larger than one of the appropriate reach of judicial review. It concerns the shifting boundaries between the public and the private sectors, particularly in the past dozen years or so when contracting out, privatization and market testing have occurred on a large scale. The government's own thinking on this matter is, at best, controversial.9 However, we have recently seen a proliferation of partnership agreements between government and the private and voluntary sectors in the planning and execution of both social and economic policy.10 Self-regulation has also seen something of a resurgence recently and may be genuinely desirable, but it poses important questions about the nature and extent of the public, the constitutional, sphere. Not only do these issues pose important questions about the adequacy of parliamentary procedures for accounting, value for money and the like, but they also invite questions about the desirability of opening up government advisory committees as well.11 • The whole field of government contracts is ripe for examination. We occasionally have glimpses of the processes at work through the Public Accounts Committee, but it is a heavily overworked and under-resourced body which has neither the time nor the membership to conduct the kind of broad-ranging investigation which is clearly necessary. There are precious few pre-contract formalities in UK law, save for those required by EU procurement directives. The cement of the constitution—secrecy—is still the dominant theme in this area. • Regulatory theory and practice has become enormously important and controversial in recent times, especially in the case of the public utilities.12 The DTI is currently conducting a review of this area, which is greatly to be welcomed. However, input from a body charged with the duty of supervising the whole set of our constitutional arrangements would no doubt greatly improve the final product. Compare the Australian Administrative Review Council's (ARC) investigations into areas which the government is also examining, for example, the issue of contracting out, to which I refer later. • The whole policy-making area is one which is massively under-developed in the UK. 9

See e.g. HM Treasury, Competing for Quality: Buying Better Public Services, Cm. 1730, London, HMSO and Public Bodies, HMSO 1996. 10 See e.g. Government by Moonlight: the Hybrid Parts of the State, P. Birkinshaw, I Harden and N. Lewis, London Hyman Unwin 1990, and Meeting the Challenge of Change: Voluntary Action into the 21st Century, NCVO 1996. 11 Democratic Audit of the United Kingdom, Behind Closed Doors: Advisory Quangos in the Corridors of Power, Stuart Weir and Wendy Hall, 1995. 12 See Tony Prosser, Law and the Regulators, Clarendon Press, Oxford 1997.

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This is not the place to develop the criticisms voiced about both the efficiency and the accountability of policy-making in the UK, save to say that it will be the subject of increasingly tense debate after the present Government's proposed White Paper on Freedom of Information (FOI). Even so, there is a substantial literature which suggests that the development of NPM has helped to disguise the significance and the importance of the policyprocess. Be that as it may, the salient concern of the public or administrative lawyer is the overall lack of structure for public consultation. My views on this matter have changed little over the years: It has long seemed to me that it is this area which exhibits administrative law in Britain at its weakest. We have little in the way of formal procedures for the purpose of structuring discourse and ensuring that economic and social policy analysis are both rational and participative. To some extent the area of land-use planning represents an exception. It is an exception which does not always manage to get things right, but it is an attempt at giving rational shape to the process. Elsewhere the world of British policy formation is a world of bargaining and ex parte discussions which make no obvious attempt at ensuring that the fullest range of information is available to the policy-maker . . . It is exceedingly rare for whatever information is at the base of policy thinking to be subjected to structured testing and contradiction. It is no use claiming that this is Parliament's job, for only an innocent believes such stories. Nor is it any use arguing that White and Green Papers and position papers will do the trick. They, of course, have their value but too often they appear when views have hardened and where it is impossible to dent assumptions in any rational forum.13 My o w n belief is that the US Federal system provides the best example of effective consultation and accountability, but that is less important than the fact that an SAC should address the issue and monitor it at regular intervals. While mentioning the policy process, however, it is important to persuade politicians that the proposals are not directed at second-guessing outcomes, at replacing "politics" by "law" but rather to ensuring that contending views are taken into account and seriously addressed on the evidence. This has always been, in my view, the essential legal virtue and if the modern state has moved whole-scale into the policy-making process then the legal system should go with it.

The Role of the Civil Service and Ministerial Responsibility/Accountability Ever since the establishment of the Next Steps Executive Agencies, concern about the efficacy of ministerial responsibility as the primary focus of democratic accountability has heightened. Although the NPM reforms have increased the information available to the public and, at certain levels, 13

Op cit, above n. 1 at p. 426.

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increased overall accountability, they have shown up severe limitations. The accountability black holes became more obvious; it was a crisis waiting to happen and it happened in the form of the Scott Report on Arms to Iraq.14 Although the Government of the day deflected the attacks launched from all sides by virtue of its slim Parliamentary majority, the damage was done and nothing will ever be the same again. We have five volumes of proof of what scholars have been saying for most of the century: viz. that the doctrine of ministerial responsibility in its present form is a busted flush. When the Public Service Select Committee sat to hear evidence on Ministerial Accountability and Responsibility, traditionalists behaved like mediaeval schoolmen counting the number of angels on pinheads. The Committee's Report was refreshing, given the limitations under which it laboured, but it never came to grips with the underlying problems. There are two reasons for this. The first is that party politics reared its ugly head. If the Committee had accepted the evidence of almost all noncombatants, the Report would have been truly radical..Most of the non-stained evidence all pointed in one direction. However, the desire to achieve consensus (one of the strengths and weaknesses of the Select Committee system) meant that the critique was seriously muted. The second problem is that parliamentarians tend to take themselves far too seriously; there are always, they seem to hope, parliamentary solutions to the problems of the democratic deficit. The reality is that they are trapped inside the most luxurious prison in the British Isles. They are uncomfortable outside and do all they can to get put back inside again. In the meantime, to the outside world, they remain a closed order whose rituals make little sense outside the walls of Westminster. Ministerial responsibility here is shorthand. There is a raft of associated problems that urgently requires considered, reflective, scholarly deliberative attention. Thus, there has no been no root-and-branch assessment of the impact and effects of the Next Steps Agencies; state functions have been increasingly hived off and contracted out without any rational assessment of the irreducible areas of the state, i.e. what is "core" state and what peripheral? The Treasury and Civil Service Committee picked up this hot potato a few years ago and promptly dropped it again. Yet it is an issue that will not go away. And what is the essence of the Civil Service? Do we need it, or can everything be performed in the private sector with Parliament having an annual general meeting to award the contracts, as one Tory MP famously urged in the early 1990s? Is there also a case to be made out, for example, for a Civil Service Act? The former Treasury and Civil Service Select Committee, contrary to the initial views of the Government of the day, thought so, although it remained coy about its contents. 15 14

Report of the Inquiry into the Export of Defence Equipment. . . .to Iraq, HMSO, 1996. " The Role of the Civil Service, Fifth Report, Session 1993-4, HC 27-1.

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Most importantly, is there any single body with the authority and the capacity to take these issues on board, consult with the nation, and tender advice? This is obviously a rhetorical question and will remain so in the absence of a body similar to the Australian ARC or the former Administrative Conference of the United States. It is worth repeating, in passing, that the former body has been engaged in a constant re-assessment of the problems of government by contract16 in response to the Government's concern for a "systematic review" of activities occurring under this rubric.17 I have barely mentioned the role of the courts, the desirability or otherwise of a General Administrative Tribunal, or other reforms of administrative law in the strict sense; not because they are unimportant, but because they have been so exhaustively covered elsewhere. Even so, the issues which are thereby raised are too large for the Law Commission; they are not merely "Lawyers law", "black letter law" but go to the heart of things. Thus in the same way, it is unhelpful to treat the legal nature and responsibilities of our political parties as merely contractual. I find it remarkable that they, in law, resemble gentlemen's clubs and are constrained by no higher levels of responsibility, in spite of the fact that they are the conduit-pipe through which passes our whole system of executive government. Other people will have their own hobby-horses, but what is important is that the central expressions of our collective beliefs should be subject to a continuous process of reexamination and review. I am naturally not advocating a body with executive power: merely one with the moral responsibility to heighten debate about our system of government.

The Overseas Experience18 When scholars address the issues being examined here, the two bodies most frequently cited are the ARC, based in Canberra, and the former ACUS in Washington D.C. The latter was abolished amid informed uproar in 1995, not on account of its failure but for the rather grubby reasons which suited the anti-government stance of Newt Gingrich when he became Republican Leader of the House of Representatives. Economy, even false economy, was the battle-cry and one of Washington's greatest success stories bit the dust, in spite of attracting support from a host of dignitaries, both home-grown and foreign. Although ACUS was abolished (though not the Act under which it was established) in 1995, attempts had been made to remove its funding from 16

See Ian Harden, The Contracting State, Open University Press, 1992. See e.g. Sue Bromley, "The Contracting Out of Government Services", 48 Administrative Review, (1997) pp. 37, et. seq. 18 For an outline of the powers and jurisdiction of the ARC and ACUS see Lewis and Birkinshaw, op. cit, above n. 8 pp. 55-59. 17

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at least the late 1980s.19 Its achievements remain for all to see, and a library of original scholarship lies in the archives waiting for successive generations of students of British public law and administration to mine. For present purposes, it is important to state that its demise was a fiscal and political act rather than being based on an assessment of its manifold achievements. Even so, it is important to note that "over the years ACUS effected major alterations in the federal administrative process".20 At various times support for ACUS against those who were cheese-paring the federal budget including the Director of the OMB, the Vice-President of the United States, and leading figures in the academic community, the judiciary and the private bar. Neither ACUS nor the ARC fully covers the ground which I have advocated should be covered here. I, and others, have explained this elsewhere. Even so, the ARC remains the model for many British admirers of a machinery-ofgovernment oversight system, and understandably so. Quite apart from its many achievements on the ground, and its outpouring of thoughtful and provocative scholarship, it is responsible for the widely-read and admired Administrative Review which is vital reading for UK administrative lawyers, covering, as it does, both focus articles, regular reviews and updates, and the essential Administrative Law Watch. It may be invidious to single out individual achievements among so many, but when Patrick Birkinshaw and I were writing When Citizens Complain we were especially impressed by the ARC's Multicultural Australia Project in 1992. This was directed at examining whether the ethnic communities were experiencing difficulty in accessing the administrative justice system. Part of the Report dealt with the relationship between the ARC, the Commonwealth Ombudsman and the whole culture of citizen/government relations. This seemed to us particularly helpful, since it not only highlighted the utility of such supervisory bodies as the ARC, but recognised the role of other institutional partners in ensuring that constant attention is paid to the whole of the state justice system. This is a lesson which we, in the UK, would do well to heed. There is little more that I need to say about a body which has received such widespread academic comment, save that it is important to situate it within the whole corpus of the "New Administrative Law" of the 1970s. This includes the way it complements the functions of the Attorney-General's Department and the Senate Standing Advisory Committee on Regulations and Ordinances, especially as to legislation which is silent on a new jurisdiction being subject to review on the merits; and therefore outside the jurisdiction of the Australian Administrative Appeals Tribunal. These interlocking relationships speak to two things; one, the unity of the system of the machinery of government and, two, the necessary complementarity of Parliamentary and extra-Parliamentary systems of oversight. 19 See especially Gary J. Edles, "Lessons from the Administrative Conference of the United States", 2 European Public Law (1996), pp. 571 et. seq. 20 Ibid, p. 584.

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A number of commentators take the view that the New Administrative Law was a phenomenon of its time and that, had the opportunity to establish it not been grasped immediately, it would have remained permanently out of reach. Not only was there "a tide in the affairs of men" but they were "taken at the flood", in that a set of ideas already existed to fill a timely political vacuum. In the UK, constitutional reform of sorts is currently on the agenda. Let us hope that ideas from this Conference, including the ideas for a SAC, can play a role similar to those which captured the imagination so effectively in Australia. Although the ARC remains the most obvious ad rent body of its kind worldwide, other jurisdictions have much more extensive systems of oversight for administrative justice than does our own. One example will suffice, viz. the New Zealand Legislation Advisory Committee which has extensive powers to report on the "justice" impact of proposed legislation, and also to advise the Minister of Justice on general and specific topics of public law where the Minister refers them.21 As we shall see, the new Parliament in the UK is planning to re-examine its procedures, not least to make them more open and accountable. Even so, this should not preclude us from insisting on the need for "auxiliary precautions", which include a Standing Administrative Conference.

Back to the UK Some progress has been made in giving extra-Parliamentary scrutiny to certain aspects of our public life since Sir Douglas Wass first made his plea. Importantly, the Nolan Committee has been established and has already done important work. The Committee on Standards in Public Life, to give it its formal title, was set up after an announcement in the House of Commons by Prime Minister Major on 25 October 1994. It is constituted as a standing body with its members appointed for three years in the first instance. Its terms of reference are To examine current concerns about standards of conduct of all holders of public office, including arrangements relating to financial and commercial activities, and make recommendations as to any changes in present arrangements which might be required to ensure the highest standards of propriety in public life. Public office is broadly defined, but the Committee may not investigate individual allegations of misconduct. It has set out seven principles of public 21 Legislative Change, Guidelines on Process and Content, Revised ed, Report No.6, Legislation Advisory Committee, December 1991. However, some take the view that the Section of Reports and Studies of the Conseil D'Etat as the "think-tank" of the Council does similar work in being able to "diagnose common trends and structural failings"; see Nicole Questiaux, "Administration and the Rule of Law: the preventative role of the Conseil D'Etat" [1995] Public Law 247.

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life, including accountability and openness, which have been widely welcomed. Its membership is broadly-based and highly respected. At the time of writing it had completed three major studies; on Members of Parliament, Ministers and Civil Servants and National Quangos, Local Public Spending Bodies and Local Government.22 It also issued a consultative document on the misuse of public office in 1997 which proposed the new offence of "misconduct in public office". Its First Report was the one which perhaps struck a chord with the public in proposing a Parliamentary Commissioner for Standards and a new Public Appointments Commissioner to ensure the highest standards in appointments to quangos. The Report was accepted by the Government and has already begun to have beneficial effects. Even so, the Committee is in the process of monitoring and evaluating progress in these fields: an admirable initiative. The Committee has also developed a structured approach to its work; a consultative paper is published, written submissions invited followed by an informal meeting with practitioners and experts and formal hearings open to the public. It is a model of openness and accountability. The terms of reference are relatively clear, though it is less clear whether the Committee has a roving brief. It would normally accept references from Government, although it has apparently told the new Labour Government that it was too busy to accept one of its suggestions. The Secretariat takes the view that they may conduct investigations within their terms of reference on their own initiative. Members are, unfortunately, appointed by the Prime Minister. Nolan (now Neill) is hopefully here to stay and no new body need duplicate its work. Even so, the terms of reference are relatively narrow and go nowhere near many of the areas which I have argued should be open to investigation by a SAC. Nor would widening its terms of reference be a satisfactory alternative. The model is wrong for a SAC which should follow the Australian pattern by having a research arm which conducts the inquiries and an executive which oversees the programme of work and receives and approves the reports. An executive body which, to a considerable extent is also the research arm, which Nolan/Neill is, does not strike the right note. Nor is the Nolan/Neill membership what is required of a SAC. A UK Standing Conference would, ex hypothesi, have a permanent existence and institutional autonomy and curiosity. It would need to have a roving brief: to examine issues of importance according to its own judgment, its own timescale and its own resources. It might be valuable to follow the former ACUS policy of establishing a number of subject committees which would report to the full Council or Executive. The issues which it would 22 Standards in Public Life—First Report of the Committee on Standards in Public Life, Cm. 2850, Standards in Public Life—Local Public Spending Bodies, Cm 3270 and Standards in Public Life—Standards of Conduct in Local Government in England, Scotland and Wales, Cm. 3702, 1995, 96 and 97 respectively.

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probably wish to examine seem to me to fall into three broad categories; systemic administrative problems which have been with us for some time, issues of special contemporary significance, and finally, matters which challenge deeper institutional assumptions. The three may be exemplified by contemporary re-assessments currently taking place in the early days of the new Government, viz. problems of regulating the public utilities, the citizen's charter and the "better government" initiative. All are important and all require detailed national scrutiny. However, their scrutiny ought not to be solely conducted by the executive itself, as is presently the case. In each of these instances, a Standing Administrative Conference—if it had not already initiated such investigations itself—would provide the requisite ballast. Let me take but one instance relating to the regulation of the utilities. This is not the place to analyse regulatory successes and failures, but one leading example of outstanding practice is provided by the Office of Telecommunications under its present, but sadly soon to depart, Director-General, Donald Cruickshank.23 The D-G's experience of administrative law in Washington D.C. left an understandably lasting impression on him. Quite apart from his general flirtation with US rule-making procedures, he has adopted the Federal concept of the evidential "record". Thus, all consultative communications to him are logged in a publicly available record. Information claimed to be "commercial-in-confidence" can be withheld with the proviso that it will carry less probative weight than other views, since it cannot be "cross-examined", so to speak. Someone needs to run this experiment through the whole of public administration for the purposes of adjudicating on its feasibility and suitability. The Cabinet Office is unlikely to do this. An SAC could, and most likely would.

Conclusions It is difficult to oppose the idea that some extra-Parliamentary body should assist in shoring up our system of government. Dispute there may be about its form, nomenclature and composition, but we are currently looking at a function without a prime mover. The essential legal virtue which lies at the heart of the common law is, to my mind, concerned with providing an avenue and an opportunity for institutional rational discourse. Sadly, our legal and constitutional order has lagged behind the ancient genius of the common law. Were our greatest judges, through Coke, Mansfield, Atkin and their ilk to address our present concerns they would seek to create a new political equity. Of that, I have no doubt. But as modern public lawyers, we know that due process writ large is about more than the courts of justice. Legal autonomy 23

On this point see the present author's evidence to the Public Service Select Committee on the Citizen's Charter, 3rd Report, 1996-7, HMSO HC 78—11, pp. 57-59.

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can take many forms, as witness, for example the rise and shine of the ombudsman office. Rational discourse, the heart of the common law, must assume modern forms and a body such as the proposed SAC would represent its contemporary expression. There is currently a vivid debate about the relationship between law and politics, expressed most forcefully in the concern to repatriate human rights. When it comes to the oversight of the machinery of government, "traditional" parliamentarians, the natural heirs of Michael Foot and Enoch Powell, always seek to expel intruders who seek to enrich the national debate. This is an outmoded stance. For the first time in many years there is an excitement about reformed Parliamentary procedures. The Select Committee on the Modernisation of the House of Commons published two Reports in July 1997 for increasing the opportunity for pre-legislative scrutiny and consultation, including suggestions that Bills might be referred to Select Committees between publication and Second Reading.24 I am as excited as anyone about the possibilities, but I am certain that they need to be supported through both legislation and external gadflies. Freedom of Information legislation falls into the former category and can only help to re-enfranchise a depleted House of Commons. A SAC fails into the latter category. It is not an alternative to an improved Parliamentary maturity, but an essential partner. It remains the single most pressing reform needed to our system of administrative justice. 24

First Report on the Legislative Process, HC 190 and First Special Report on Work of the Committee: First Progress Report HC 191, HMSO, 1997.

27 Conclusion MARTIN PARTINGTON

Introduction

A

T THE END of what is already a substantial volume, the reader may be surprised at the need for yet another chapter. However, in designing this volume as a record of the proceedings of the Bristol Conference, I consider it important to end the book by bringing together a number of loose threads: first by referring to a number of papers presented at the conference, which are not included in this book; secondly by setting out and making a few observations about issues which arose during the course of the conference but which are not reflected in the published conference proceedings; and thirdly by considering the next steps needed to maintain the momentum that we hope this collection will have created for examining and reforming the processes of administrative justice into the 21st century.

Papers Not Included Notwithstanding the range of papers we have managed to incorporate into this volume, there was a number of other papers presented at the conference, which have not been included in this volume (in most cases because their authors—for a variety of perfectly understandable reasons—did not want them included) but which nonetheless deserve recognition. It is worth listing them and saying a brief word about each. General Issues Administrative Justice: The Role of the Government Legal Service Gavin Drewry1 and Charles Blake2 raised interesting issues in their paper which was reflecting on the changing role of the professionally qualified 1

Professor of Social Administration, Royal Holloway College, University of London. Bar Council, formerly Solicitor, Department of Social Security. His paper was written in a purely personal capacity. 2

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lawyer employed in the Civil Service. Historically, they argued, government lawyers had been perceived as "specialists" operating within a "generalist" culture. However, the growing importance of European law (including Human Rights law) and judicial review had arguably enhanced their status. Nevertheless there were important questions to be discussed about the relationship between the ethical standards set for public servants as a whole, and more specifically legal professional standards, values and norms. In the specific context of discussion at the conference and in the papers appearing in this book, they asked whether there were particular responsibilities on members of the Government Legal Service to advocate and protect fundamental principles of administrative justice. The Citizens' Charter and the Handling of Complaints Jill Beckingham, then working in the Citizens' Charter (now Service First) Unit attached to the Cabinet Office, informed the conference about the new Government's relaunch of the Citizens Charter concept and related this to the Government's work which is now leading to the White Paper on Better Government—originally promised for the summer of 1998, but now thought likely to be published in Spring 1999. The focus of the new Charter would be on increased responsiveness and redress to drive up service delivery standards, particularly for the socially excluded; increased monitoring of compliance with Government directives relating to service delivery and related complaints-handling mechanisms; and, where possible, moves towards "onestop-shops" for those who wish to make complaints or otherwise seek redress. At the time of the conference, the Government was still only in the early stages of developing these ideas; but they are likely to achieve greater prominence in coming months. The Impact of judicial Decisions on the Work of Tribunals and other procedures: Case Studies in Mental Health and the Social Fund One of the principal issues to emerge during the conference was the extent to which various types of review/appeal procedure could provide feedback to other tiers in the decision-making process, aimed at improving the quality of that decision-making. Maurice Sunkin3 and Genevra Richardson4 gave an outline of their research, at the time of the Conference only at a very early stage of development, into one specific area of feedback, that of the impact of court decisions on the work of the two named decision-making processes. This work is still on-going but promises important new insights into the implications for official decision making of appellate and review procedures.

3 4

Professor of Law, University of Essex. Professor of Law, Queen Mary and Westfield College, University of London.

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Prison Discipline Finally in this category, Brigid Hadfield5 examined the procedures for adjudicating disputes relating to prison discipline in Northern Ireland, which are still heavily reliant on the use of judicial review. This paper, also part of a larger study, raised questions about the suitability of the use of judicial review in this context, and other possible alternatives for dispute resolution. Social Security Modernising Social Security Decision Making: Improving the Appeals System One of the issues which has dominated the administrative justice world during the last two years has been the Government's proposed changes to social security decision making. Sally Field, a civil servant,, then working on the Department of Social Security's team dealing with these changes—the subject of other papers in this volume6—sought to set the Government's proposals into their policy context. Again the focus was on delivering an improved standard of service to the clientele of the Benefits Agency. She acknowledged that there were difficult issues about getting the balance right between the need for independence and the need for accountability in the use of resources, particularly in appeals, but argued that it was important that these issues be debated. She also suggested that it was important that when a dispute arose, there should be an appropriate remedy available in the system. And she accepted that more attention might be given to seeing how the appeal service could contribute to improving first tier decision taking. This policy area has moved forward rapidly since the Conference, with the enactment of the Social Security Act 1998, and the stated intention by Government to introduce new procedural rules during 1999, with the new appeals system coming into being in April 2000. Commentators will in due course no doubt wish to evaluate the impact the changes will have had against the Government's stated objectives. Social Security Appeals: What do the Claimants Want? Richard Berthoud7 spoke to a paper already published,8 but which explicitly raised issues about the place of the individual in the administrative justice system that were mostly implicit in other papers. 9 This paper drew attention 5

Professor of Law, Queen's University, Belfast. See, in particular, Roy Sainsbury, "The Reform of Social Security Adjudication"; the issue is also considered in the papers by Michael Harris, "The Place of Formal and Informal Review in the Administrative Justice System", and by Godfrey Cole, "Maintaining Judicial Standards in the Independent Tribunal Service." 7 Professor in the Research Centre on Micro Social Change, University of Essex. 8 Richard Berthoud and Alex Bryson, "Social Security Appeals: What do the Claimants Want" (1997) 4 journal of Social Law 17-41. 9 Exceptions in this volume are Richard Young, Nick Wikeley and Gwyan Davis, "Child 6

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to the fact that there were substantial differences between what claimants wanted and expected from an appeals system and what "experts" thought claimants were hoping for. This raised intriguing questions about the design of appeal, review (and other complaints) procedures, and whether the voice of the citizen should be more clearly heard in the design process. Taxation The Tax Law Review Committee's Report on the Tax Appeals System One of the tribunal systems currently under review is the tax tribunals system. John Avery Jones 10 reported on the work carried out so far by the Tax Law Review Committee. He summarised the principal points of the Committee's Interim Report on Tax Appeals which had been published in November 199611 and on which comments had been sought by the end of April 1997. He outlined the nature of some of the responses to the initial paper—in particular resistance from the General Commissioners for more professionally qualified chairmen—and the areas on which the Committee would be doing further work. He hoped that the final report would be published in 1998. In the meantime the Lord Chancellor's Department has announced that it will also be undertaking a study and evaluation of the current tax appeals system, taking into account the Tax Law Reform Committee report.12 Tax Appeals and Control of the Revenue Department's Exercise of Discretion This is one of the matters on which the Tax Law Reform Committee was doing further work, and was the subject of a separate paper by Sarah Lane13. She noted that the courts were very unwilling to disturb decisions by the Revenue Departments to grant either individual or generic concessions on the basis that the Revenue's powers of care and management entitled them to do this. However, the result of this was that the practice of Revenue departments had become as important in many respects as the rules laid down in the Codes of tax law themselves. She argued that the right balance had yet to be struck between the three main mechanisms of control of discretion: appeals to tax tribunals, judicial review, and the extra-legal remedies afforded by the Adjudicator's Office.14 Support Appeal Tribunals: The Appellant's Perspective", above chapter 13 and Caroline Sheppard and John Raine, "Parking Adjudicators: The Impact of New Technology", above chapter 15. See also Christa Christensen, Suzanne Day and Jane Worthington, "Complaint Handling by Solicitors", above chapter 10. 10

Solicitor, and now Chair of the Tax Law Review Committee. " More recently supplemented by a special report National Insurance Contributions Disputes, published on behalf of the Committee by the Institute of Fiscal Studies, February 1998. 12 Ibid., para 14. " Solicitor. 14 This is the subject of discussion by Andrew Rein and Christine Lally in the chapter (edited by Michael Harris) "New Procedures", above chapter 9, these issues are also discussed in Julia Black's paper "Talking about Regulation", above chapter 12.

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Regulation of Tax Professionals in the United Kingdom Sue Green 15 reported on the outcome of a major study she had undertaken into the regulation of tax professionals in the UK.16 This group—distinct from both accountants and lawyers—had developed in recent years. There was considerable public misunderstanding about the qualifications which tax advisers might or might not have. Her research revealed much good practice, but also cases where things had gone badly wrong. Her report ended with recommendations about the steps that might need to be taken to improve standards and protect the public. Given the fact that many parts of the administrative justice system provide opportunities for advisers other than the professionally qualified to give advice or provide representation,17 this report seems to offer ideas that may need consideration in other contexts as well.

Issues Not Included Notwithstanding the variety of issues and institutions that were the subject of discussion at the conference, there were still many gaps. First, and as explained in the Introduction, there was (deliberately) very little consideration of the part played by judicial review in the modern administrative justice system. For many this would have been a serious omission in the scope of the conference; but we were anxious to keep the primary focus of the proceedings on issues other than judicial review. Secondly, a number of institutions that might have been invited to be present were not in fact at the conference. Thus there was no direct participation by any of the regulators of the privatised service industries.18 There was no consideration of the role financial auditors now play in the modern administrative justice system. Nor was there a place for a number of other complaints-handling and other trouble shooting procedures which have been developed in particular contexts, for example Social Security. Finally, there was no direct consideration of the practical and theoretical problems created for any system of administrative justice by the enactment of legislation which provides rights and entitlements to citizens (e.g, to housing, or housing benefit, or provision of educational or other social service facilities) is

Lecturer in Accounting, University of Bristol. Regulation of Taxation Advisers in the UK, TaxAid Research Report, (TaxAid Charitable Trust, London, 1995). 17 This issue has recently been raised in another context by the Lord Chancellor's Advisory Committee on Legal Education and Conduct, Improving the Quality of Immigration Advice and Representation: A Report (ACLEC, London, 1998). 18 The papers by Aileen McHarg, "Separation of Functions and Regulatory Agencies: Dispute Resolution in the Privatised Utilities", and by Julia Black, above n 9, relate to these issues. 16

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but does not directly link such entitlements to the resources that may be needed to deliver on those entitlements. No doubt readers will have noted other topics which might have been embraced in such a conference.

Next Steps: Reviewing Administrative Justice? There was, however, considerable support for the proposition that some longer term result might flow from the conference, that it should not just be a "one-ofP occasion. A number of papers raised this issue: for example Farrand called for a merging of the Council on Tribunals with the British and Irish Ombudsmen Association.19 Robertson gave a full account of the work of the Australian Review Council.20 Lewis, too, argued that the time was now ripe for the creation of a Standing Administrative Conference for the United Kingdom.21 Geoff Hoon, then Parliamentary Secretary at the Lord Chancellor's Department strongly supported these ideas when he addressed the conference, and indeed a major consideration in the minds of those within the LCD involved in providing subsidy for the conference was that it should have some longer-term impact on the development of policy in this area. Reflecting the mood of delegates, a small steering committee was formed to consider these possibilities further. Following a series of meetings, the group has now produced a Discussion Paper setting out its proposals for the establishment of a Standing Conference on the Resolution of Citizens' Grievances.21 The fundamental difficulty that it now faces is this: where and how can the argument go from here? The Steering Committee felt that, to get something effective off the ground, creating a body which would be from the outset self-financing from subscriptions from members—both individual and corporate—would, in these days of tight budgets and value for money, not be achievable. Private foundations might be willing to fund a discrete part of the proposal, but again they would not have the resource to fund it all. Although the legal profession has always been willing to support pro bono activity, we do not have in the UK bodies such as the American Bar Foundation or the Law Foundation of New South Wales that might support such an initiative. And any comprehensive overview mechanism cuts across so many government departments that it is easy, without a strong political commitment or a strong lead department, for one department to play itself off against another. 19 See chapter 8, above. (A notable feature of the conference w a s the participation of representatives from a number of bodies in Ireland, both North and South). 20 See Chapter 25. 21 Chapter 26. 22 T h e text of the steering group's proposal is set out as an annex to this Chapter. See also, M Partington, "Restructuring Administrative Justice? T h e Redress o f Citizens' Grievances", (1999) 5J Current Legal Problems (forthcoming).

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In short, the idea is currently on the table for debate and discussion. But there is at present no indication of whether and if so how it might be taken forward. And there is, in truth, a significant danger that in the present heady climate of constitutional change and reforms to the machinery of government, the interests of the individual may be lost. While recognising the difficulty of making "administrative justice" the stuff of the big political headline, I do think that it is critical that it be firmly on the reform agenda. I would, therefore, end by expressing the hope that the "leap of faith" which is now needed to take this idea forward may be taken by an appropriate funding consortium. Only with that commitment will the ideas and issues considered in this book inform the development of Administrative Justice in the 21st Century. It is an opportunity that should not be lightly passed up.

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APPENDIX Standing Conference on the Resolution of Citizens' Grievances: A Proposal This paper sets out a proposal for the creation of a new body: the Standing Conference on the Resolution of Citizens' Grievances (SCROCG).

Background "Administrative Justice" is an extremely elusive concept. It embraces a complex web of institutions and processes, including: judicial review; tribunals and inquiries; Ombudsmen; complaints procedures and service standards implied by the Citizens' Charter; statutory processes for the protection of consumer interests in privatised industries and the professions. Arguably all official/public decision-taking should be regarded as within the scope of "administrative justice". In addition, "administrative justice" implies complex sets of values, not always mutually consistent: natural justice, participation, democracy, efficiency, fairness, cost-effectiveness among others. Notwithstanding all its institutional and conceptual complexity, the administrative justice system is of the greatest practical importance. Each day the lives of hundreds of thousands of the citizens of this country - indeed, in some cases, those not yet citizens of the UK - are affected by decisions taken within the system. Despite its daily significance, however, there is no single body charged with keeping the whole system of administrative justice under review. As a consequence, it has developed in a highly fragmented fashion.

International Conference on Administrative Justice A first step in developing a more holistic vision of administrative justice was taken in 1997 when, to mark the 40th anniversary of the publication of the Franks Committee report, Administrative Tribunals and Inquiries, a major International Conference on Administrative Justice, sponsored by the Lord Chancellor's Department and organised by the Centre for the Study of Administrative Justice at the University of Bristol, was held in Bristol. The purpose of the conference was to consider what had been happening to the system of administrative justice over those 40 years; to reflect on the values which underpin it; to contemplate the challenges currently facing the system, and to consider how it might develop into the 21st Century.

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The Conference The Conference Programme highlighted a wide range of matters which included: • the range of institutions in the administrative justice system is now far more extensive than in Franks' day. There are: new tribunals (whose numbers have grown dramatically since Franks) and inquiries, Ombudsmen covering areas of both the public and private sectors, the Citizens' Charter concept with its new mechanisms for the resolution of service complaints, and other new procedures for the resolution of disputes relating to services provided by the public utilities and arising from the provision of professional services. • New procedures have been introduced including those which utilise the latest information technology. • There is a new emphasis on the use of review - both formal and informal as part of the dispute resolution process. • There is much change in prospect. For example, many individual tribunal systems are under review within government, including social security, immigration, taxation, and local government. • There are new challenges to be met arising from the impact in the UK of developments in Europe. The incorporation of the European Convention on Human Rights, notably Article 6, into UK law will have a palpable effect on the processes of administrative justice. • There is a quite new emphasis on training for those undertaking functions in the administrative justice system and quality control of their performance.

General Issues Discussion at the Conference revealed many other issues: • While those working in particular parts of the administrative justice system by definition have a detailed understanding of how their part of the system works, they are often ignorant of what is going on elsewhere and how their bit of the system relates to other parts. This results in a lack of shared perceptions about key issues; those working on the redress of grievance often feel isolated from others performing similar tasks. • Policy makers are equally unaware of developments in areas outside their particular range of expertise. • Research relating to administrative justice has a tendency to suffer from "tunnel-vision".

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• While many had a sense of the values on which the administrative justice system was based, there was a lack of consensus about those values and a lack of appreciation of the tensions between different asserted values. • Although parts of the system were kept under review, for example by the Council on Tribunals or the British and Irish Ombudsman Association, they had neither the statutory powers nor the resources to survey the entire field. • Many elements of the system were not subject to any oversight at all. With the changing nature of the state and the rise of new agencies for the delivery of public services, there was a need for a clear overview of the system as a whole. • There was a lack of understanding about the nature of "disputes" or "complaints". Some might complain about the outcome of a decision - that there had been a failure to apply rules or to exercise discretion properly; others might complain that the process by which a decision had been reached had been in some way unfair or incompetent; yet others might complain that the policy underlying a decision was unjustified and should be changed. A better understanding of the nature of complaints and disputes would lead to more appropriate ways of dealing with them. • The views of the users of the administrative justice system are difficult to capture. While Government departments do consult representative groups widely, for example when new policy initiatives or new regulations are in contemplation, this does not always adequately reflect the direct front-line experience of the professional and lay people who advise and represent the public. Nor does this reflect the views of the citizens who are the apparent object of much Government policy. More awareness of these perspectives would provide important additional insights on the working of the administrative justice system. • There was a lack of hard and comprehensive information about the actual levels of work undertaken by bodies working within the administrative justice system and the true costs of operating those systems. While data is available in the annual reports of the Council on Tribunals, and in the annual survey Public Bodies, there are significant discrepancies between these two data sets. In addition, many tribunal systems now provide their own data, in annual reports or other contexts. There is no single place where all this material is brought together, nor any proper means of evaluating the quality of that data. • There was in many areas an almost total lack of feedback to those taking initial decisions of the outcome of appeal/review processes, which, had it occurred, might have had an impact on the ways in which initial decisions were taken. • The focus of good administrative justice should be on the initial decisiontaking stage; if procedures and outcomes at that point were satisfactory, the

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need for further appeal and review might be diminished. It is customary in British public administration to look at ex post facto controls and redress mechanisms but not at the manner in which grievances either arise in the first place or are disposed of at the operational level. • This aspect of administrative justice raises major questions about the training and disposition of decision makers. Recent examples of consultation papers about proposed changes to immigration appeals structures and to child support suggest that, on these occasions, inadequate attention was paid to the administrative justice implications of mechanisms that are costly and do not appear to be fulfilling their intended purposes. • There was a need to ensure that those who put forward policy changes were made more aware of the overall environment in which they promote their ideas and the standards against which they may be tested.

The Wider Context The Conference and the issues it raised should also be set into a wider political context. First, there is much talk of Constitutional Reform and changes to the Machinery of Government, as well as to the legal system. There is a danger that change at the "macro" level may divert attention from what is actually happening at the "micro" level to individual members of society. It is essential that as changes take place in the overall structures of Government, the impact of those changes on the individual also be kept under close scrutiny. Second, the civil justice system is also undergoing major change following the publication of the Woolf Report and the commitment of government to reform of the civil justice system. There is much to be learned from the administrative justice system; at the same time, the review of civil justice should be encouraging a similar review of the administrative justice system. Third, there is a new commitment to "joined-up government" — improved service delivery resulting from a greater degree of service integration; the administrative justice system would benefit greatly from being incorporated into such an initiative. Fourth, there is a determination to explore the potential for the use of new technologies in both service delivery and dispute resolution.

Standing Conference on the Resolution of Citizens' Grievances In the light both of the debates provoked at the Conference and these more general considerations, a proposal was made - strongly supported by Geoffrey Hoon, MP, Minister of State at the Lord Chancellor's Department, who

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addressed the Conference, and enthusiastically endorsed by the delegates that a new organisation should be created to continue the work begun at Bristol, which could address the issues identified above. This has been the subject of further development by a small steering group, composed of a number delegates from the Bristol Conference, together with officials from LCD and from both the Citizens Charter Unit and the Machinery of Government Division of OPS.

Preliminary Recommendations of the Steering Group Name The group spent a great deal of time searching for a name which summarises the potential for the new body. At least as a working title, it recommends that the new body be called the Standing Conference on the Resolution of Citizens' Grievances (SCROCG). Responsibility for SCROCG. The group also considered who should take prime responsibility for advancing this initiative. Given that the primary focus of SCROCG's work will be the resolution of citizens' grievance, one view was that it should be developed wholly within Government. However, the enormous potential scope of the work this body may make it hard for any one government department to take sole responsibility for such an initiative. The preliminary recommendation of the Steering Group, therefore, is that - initially at any rate — the initiative should be led by a partnership between private bodies and individuals and Government Departments. Aims and Objectives The primary aims of SCROCG are that its work must be of practical benefit both to policy makers and service deliverers, and to enable developments to occur across the field which would be unlikely to be achieved in the current organisational framework. The Work of SCROCG - the first tasks With this in mind, the group recommends that a preliminary list of tasks would include: • utilising new IT mechanisms (e.g. WWW pages) to create a "map" of the administrative justice system, so that citizens with a particular grievance or complaint could receive better sign-posting to the range of bodies which might be able to deal with their problem; • ensuring that such a "map" could be accessed in public libraries, used by agencies such as the CABx network and be available in other locations, such as hospitals, educational facilities and so on;

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• utilising IT to bring together in a single location essential management information about the use and costs of the administrative justice system, including information showing developing trends, to be used in forward planning by service providers. Such data should provide not just a "snapshot" of the system at particular points in time, but should be presented in such a way as to show historic trends, from which future predictions might be made; • organising and sponsoring workshops, seminars and other means to discuss ideas for the development and implementation of good practice and innovation in service delivery and service management. (Initial topics might include: delivery of a quality service; best practice in recruitment; practical issues arising from the impact of the European Convention on Human Rights; arranging "feedback" between different layers of decision takers to improve standards of decision-taking; procedures and the participation by the citizen in decision-taking; access to administrative justice - the geography of administrative justice.) • developing a better understanding of the range and nature of the grievances that arise in our complex world and to develop practical ideas for developing procedures — including enhanced use of IT - which should be in place to deal with them; • in general, assessing the potential role of the use of new technologies in the administrative justice system to enhance good quality service delivery; • providing a regular forum for policy makers and service deliverers to consider new ideas and proposals about the development of administrative justice, to encourage the spread of good practice and thereby to make a significant contribution to the development of policy and practice into the new millennium. (Although bodies such as the Council on Tribunals and British and Irish Ombudsmen Association do promote some such activity, in their specific fields of interest, there is at present no single body which can take a look at the whole of the activity falling within the scope of administrative justice); • developing clear criteria for the evaluation of the costs and benefits of the administrative justice system to all those with an interest in that system; • assembling baseline data - both statistical and bibliographic — about the administrative justice system so that information - currently widely scattered — can be brought together in a form useful to policy makers and other interested in the development of the administrative justice system; • encouraging a better understanding of how similar issues are dealt with both in Europe and in other parts of the world; there would be a specific involvement of those responsible for the development of administrative justice in Ireland;

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• identifying research needs relating to the development of the administrative justice system. The Way Forward. The group is of the opinion that, if these ideas are to be taken forward, it is essential to establish an organisation with sufficient resource and also sufficient authority to enable it to make progress. Although the group is of the view that, once in place, SCROCG will more than justify its existence, the group accepts that initially there must be an element of faith in the outcome. For this reason, it recommends that steps be taken to assemble a package of funding sources to launch SCROCG and to prove itself. The initial commitment should be limited to 3 years, with the possibility of extension to 5 years. (In the longer term, a range of possibilities could be contemplated: SCROCG might become wholly self financing, relying on subscriptions from its members - corporate and individual, and other commercial/conference activity; these functions might be wholly taken over by the Central Government; or SCROCG might be superseded by the creation of a more permanent Institute of Administrative Justice.) Initial staffing Even this objective cannot, however, be achieved without the resource to permit the following appointments to be made: Chief Executive/Administrator whose principal tasks would be to: • undertake the planning and implementation of the first programme of work set out above; • identify and appoint the support staff needed to undertake this initial work programme; • identify and appoint the members of the advisory board (see below); • consult with the stakeholders in the administrative justice system about their priorities to be the basis for the further development of the work programme; • plan and organise the first conferences and workshops on issues arising in the Administrative Justice system; • commence the production of a regular newsletter providing information about the work of SCROCG; • launch an initial membership (both Corporate and Individual) campaign and establish a membership data base; • make appropriate financial arrangements for the receipt and expenditure of income.

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Administrative Assistant to assist the chief executive with the above. A Researcher able to develop the baseline data collection activity mentioned above. An IT specialist able to take forward the "mapping" initiative and other IT related work. Advisory Board. It is also recommended that SCROCG be supported by an advisory board, able to oversee the work of the Standing Conference, to advise the Chief Executive and to whom the Chief Executive would report on a regular basis. Such a board would give extra authority to the work of SCROCG.

Funding: A Consortium Approach The level of resource required to get this project off the ground will not be insignificant. It can, in the view of the Steering Group, only realistically be achieved if a consortium of potential funders can be brought together to make the investments required. Indicative figures are set out below. It is hoped that both Government departments and private Foundations and others interested in the development of a modern Machinery of Government can be persuaded to join in this important initiative, which complements other developments currently being introduced.

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Index Abuse of power by inaction 220 particularised 221-2 private sector 29,134 ABTA 100,104-5 Accessibility 71-2,122,145,464 as Complaints Task Force standard 78, 92 Access to Justice 71,72, 136-7, 152 adversarial process and 134,136-7 complaints systems and 71 no win no fee 136 Ombudsman and 134, 135,136-7, 152ff, 154 Accountability 5,478 and budgets 31 Citizens Charter 86 courts, role of in 77 efficiency and 393 FOIandll5 inadequacy of traditional methods of 67 ministerial responsibility 520, 521, 524ff of ombudsmen 139, 140, 147 of regulator 212, 218 Accuracy/quality (see also effectiveness/value for money) 455,455-7 as Citizens Charter standard 88 due process and 76 participation and 81,459,465 pressures against 30-31 trade off with speed 457 Adjudicators (Complaints procedures) 156-7, 160 Chipperfield recommendations 470 Citizens Charter Complaints Task Force, and 93-^ decision-making style/process 161-2 mediators/inquisitors 162-3 meetings 162 independence of 93, 162-3,468, 470 Inland Revenue Adjudicator 93, 160-163, 468 Internal Complaints Procedures and, 161, 472-3 origins redress available/sanctions 162 regulated departments, approach of 162 reporting practices 161 role of 160-1 scope 93 Adjudicators/Tribunal members administrative law judges 225

advertisements 300,432 approaches of 289 contrasted role of chair/wing members 410-11 ethnic minority, from 319-320 expertise/specialisation, need for 11—12, 60, 456 impartiality, capacity of internal decisionmaker for 80-81,177, 201 interviews 431—2, 433 judges as 60 judicial task outlined 61 lay members arguments for 14-15, 63-4, 138, 425, 425-30 contrasted with lawyers 426-8 and informality 427,429 legitimacy conferred by 138,300, 427,429 suitable roles for 63-4 legal qualifications 60,311, 313, 314-5, 318, 450,456 LEA members 300, 317,322 monitoring 413-5,440-1 nominations 431,432 numbers 138 recruitment 300-1, 319,425,430, 431-3, 440 remuneration 60 status of majority of 72 impact of frequent sittings 409 see also under training Administrative appeals tribunal (Australia) merits review: scope of 339-340, 479, 509-517 and government policy 338—9, 513ff as non-binding consideration 338—9 conflicting with human rights 358—361, 365-6 criteria for disregarding 340,358—361, 366, 515ff human rights, and 338-340,345-6, 347-350,349-351 misinterpretation 346-7, 347—50 not to be inflexibly applied 368-370 promotion of consistency, and 340 Administrative appeals tribunal - UK proposal for 479-480,481,522,526 Administrative behaviour-models of 262 Administrative conference of the US 17,322, 326-7 Administrative/judicial distinction 21—23, 61-62,71,79,281,285

572

Index

Administrative/judicial distinction (com.): excuse for poor primary decision-making 22-3 rationing Judicial Review 22,71,77 Administrative Justice a system? 66 adversary systems favoured by 26,34 and deregulation 25 and homogenisation of decision-making structures/procedures 26ff and legal approach to FOI114-5,118 and need for a complainant 32 and need for efficiency 29 and place of LCD/law offices 35-6 and rule of law/democracy, incompatible with 24 and system design 32-33 barriers to 72 complainant's perspective 445,454-5 definition of disputed 2 focus on procedural equality 76 Franksian 2, 8,15,16 natural justice model and 76 traditional rights based model of 2,15, 87 legal ideal type of FOI and 114ff legislative approach a barrier to responsive system of? 56-7 Mashaw's definition 151 413 meaninglessness of at low level 79-80 models of 16,453ff, 461-2 one value among many 462 place of charter standards in 88—89 primary adjudication and 2,5 (see also under procedural fairness when required) reviews and 157 theoretical/multi-disciplinary perspective, need for 81 "Administrative justice system" administrative process, part of 54,81 calls for/trend to integration/rationalisation of 16,67, 137,141,146,231 Citizen's Charter, relationship to 463 Citizen's Charter's distinctively systemic approach 85ff, 95ff, 98 context of constitutional change, and 3, 477, 521, 492-3 current system outlined/features of 6, 464—9, 475 demarcation between courts and other procedures 66 diversity of 67, 140-1 fragmented 91 informalism, trend to 74 justification for 74 landmark developments in/early origins 453-4,463-4,485-6 low profile of 70 multi-tiered models 447,452

need for research into 480-1 proposed new integrated system 16,464, 475, 480-1 public law, part of 16,477 purposes of/principles guiding 16,134—5, 477-8, 505 rationalised grievance system, calls for 67, 522 role of Judicial Review within 477 systemic approach 95-98,135 trend to informalism 74 under pressure 97-8 See a/so-oversight bodies Administrative Justice system (Australia) 491-3, 496, 527-8 Administrative Review Council (Australia) 17, 519,523,525,526,527-8 areas reviewed by 498-9 as part of new administrative law 491, 527-8 benefits of 495ff "Better Decisions" 492, 500, 501, 505 breadth of oversight 499 contracting out 399,503, 508,523 enhancing normative effect of administrative law system 499 expertise of 495,497 flexibility/immediacy of response 499-500, 501 funding of 495 guidelines issued by 503ff independence/credibility 496-9,498, 500 leadership 499-500 membership of 495 mixed public/private/community 495,497 multicultural Australia project 527 notification of rights of review 498—9 on administrative law and government business enterprises 498-9,503,504ff provision of legal/financial assistance role of 493,499-500 future role of 503, 505 scope for amendment of 505 scope of merit review 498, 509ff secretariat 495 Senate Legal And Constitutional Legislation Committee review of 495-6 specialisation 497ff training by 500 work done by 493, 502ff Adversary/inquisitorial 11,16,17, 136-7, 138, 158, 288-9 adversarial as gold standard 69,78 adverse effects of adversarial systems 11, 26ff, 134,136-7 choice between 64 costs 27, 134 and choice of legal/lay members 428,430

Index and control of procedure 289ff and credibility 27 and delay 134 as part of homogenised Administrative Justice model 26, 34 inquisitorial appearance masking adversarial reality 464-5 lawyers interests in 136 link between adversarial procedures and Natural Justice/Franksian model 16,78-9 Ombudsman 134,136-7,138,152 ordeal 51 parties, role of 459 2 parties and 288-9 price controls and 227-8 tendency to gravitate to adversarial model 78-9 Wade and Forsyth on 138 Allocation to process administrative/judicial 22 avoidance of referrals 38 case screening 24, 451, 455-6 filters 71-72 of cases displaced from courts, need to attend to 82 of the disempowered 74 reliance on grievance 5, 23 Amici Curiae/Presenting Officers 64, 286-8 Appeal: right of 55-6, 59, 226-7, 228-9 abuse of power 35 accommodation of interests 35 bias between appellants 35 importance of 5, 59, 284-5 importance of notification of right of appeal 53 not exercised 72-3 (See also (oral) hearings: right to) Appeals de novo 43,61-2 model of 21-22 policy-making nature of appellate decision making 35 reviews, contrasted with 43 Appellate system/appeals body 38 more complex than planned 60 need to be resourced principles to govern 62 purpose of 63 for error correction 38, 57 not effective? 58 to establish consistency/fairness 59 tiered? 62, 63 Appellants/Complainants advantaged over non-complainants 23, 30 age of 103 characteristics of children as 312,318,324,321-2 ethnicity 309, 320

573

imbalance between parties 24,76, 79,138—9, 152-3,189,460 motives of 68,143-^t, 286-8,450,454,459 perceptions of process 81,145,287ff, 313, 329ff, 417 place of their perspective in design of system 72-3, 445, 454-5 reluctance to appeal 72-3,308-9, 330-1 socially excluded as 82 those unlikely to complain 23,103, 286-8 with conflicting interests 285,287, 288 (see also under legal profession: Internal Complaints Procedures: complainants) Asylum status determinations 5-6 aims of 57 appeals 59 background reports 64 Canadian model 58 criticisms of 57,58 current system 57, 59ff decision/makers decision-making criteria 62—4 domestic law 55 fusion of immigration and asylum systems 62-3 human rights/international law norms 55, 55-6,57 impact of quality of on appeal system 59 importance of 59,61 importance of 55 inquisitorial or adversarial 62,64 issues not present to 58—9 judicial nature of role 61,62 judicial/legal background of 59-60 jurisprudence of other countries 64 lay members, place for 62,63-4 more complex than planned 60 not to be sole means of error correction 58 oral hearings 63,64 pay 60 policy 55 principles to be considered in system design 55,62 primary adjudication 57 procedure: minimum standards of 56 purposes of right of appeal 57,61, 62 systemic function 59 rate of appeals no guide to quality of 58 reforms needed 62ff need to introduce case management 62 representation 65 resources 62 resources need for 57—8 right to merits review/appeal requirements for 55-6, 62 should not be dejudicialised 61 ff specialisation 60,62

574

Index

Asylum status determinations (cont.): training 64 two-tier system or judicial review 62-3 who by? 58 Audit/self-starting power 32, 90-91,131-2, 134 (see also under Independent Monitor) complaints systems, of 106, 470, 471 managerialism, and 7, 113 regulators' adjudicative powers, and 233 Basle Committee on Banking Supervision 256 Benefits Agency and Citizens Charter 85 Budgets fixed 31, 157-8 Baldwin, R 246,268 Banking Ombudsman J00,107,140 Building Societies Ombudsman 100,107, 109-110,140,471 Case Management approach 62, 415 Child Support Adjudication 11,281-295,449 automated 284 change of circumstances 290 decision making criteria impact of poor Internal Complaints Procedures on CSATS 291 interface of Internal Complaints Procedures and CSATS 283 appeal/review system outlined 283-286 need for right of appeal 284 value for money 283 Child Support Appeal Tribunals appeals submissions 285—6 appellants 286 chairmen 288 change of circumstances 290 control of proceedings289ff different approaches of 289ff expectations of 287—8 imbalance between 10, 288-9 independence/relations with CSA 285-6, 295 inquisitorial/adversarial 288—9 motives of 286-8 non-attendance of 287 need for 10, 293 and need for advice 293 non-attendance 287, (and informality) 293 Parliamentary Commissioner report on 96 Primary decision-making, nature of 283—4 procedure 285-6 Reviews 42, 44, 44, 46,48,50, 52,284-5 interface with tribunals 283 administrative/adjudicative 285 contrast with tribunal 286

role of presenting officer 10, 286-88 shortage of 293-4 Social security decision-making systems, modelled on 281, 287 training 288 two party situation, in 11,288-9 2-party situation, distinctive effects of 283, 287,288,291-3 Children's Panels monitoring 436-7 recruitment 432-3 training 434—5 Citizens Charter 6-7, 17, 65-98,68, 77,299, 463 Charter Standards 6, 88-91 Citizen's Charter Unit 87-8 complaints procedures 6, 85 enforceability of 89-90 guidance on 89 importance of formulation of 91 independent monitor and 163 lack of audit of 90-1 lack of consultation on 90 National Audit Office recommendations 90-91 National Consumer Council's views on 90 PCA's approach to 88-9, 469 Public Service Committee Approach to tribunals/courts, for 91 Complaints Task Force {see under Complaints systems) executive self-regulation, as form of 6, 85, 86-7 FOI, and 114,117 implementation 87ff Independent internal review mechanisms as mechanism of Administrative Justice (distinctive approach) 6, 85 setting standards 6, 85 non-legal nature/not rights-based 6, 86, 89-90, 90-94 origins 86, 89 private sector 102 principles of public service 88-91 PCA's attitude to 88-89 purposes 6-7, 86, 89, 94-5,102 redress, Treasury guidance on 89, 94, 96 scope 86 schools, impact of 299 stimulus to complaints 102 systemic approach 89-90, 94-5 Citizenship 113 Civil Service Reform/Continuity and Change Initiative (see also Citizen's Charter) 521, 524 normalisation 117 PCA reaction to 97 two key disciplines of 89

Index Commission for Local Administration 99 and work on internal complaints systems 111,467 Chipperfield review 469-471, 480 CLA as monitor of complaints 470,471 direct access 101,465-6 enforcement 471-3, 466-7, 480 exhaustion of internal complaints systems, and 471-3, 480 government reaction to 470 guidance to Local Authorities 467 overlapping jurisdiction 135,141-144 not a surrogate appeal 142,476 Whetnall review 471-3,474-5 workload 101, 105-6 Committee on Standards in Public Life 528ff Competitions Law-EU-enforcement 252—255, 264-5, 267, 269, 271, 274 Complaints systems 7,66-82,91-96,99-111, 467-8 "adjudication" 178 and access to justice 71, 71-2 and Complaints Task Force 68,77ff, 92ff, 166 principles of complaints handling 68, 77-8, 92, 467 persuasive approach 89 recommendations 95 encouraging systemic/organisational learning approach 68, 89-90, 94-5,110 external review 93—4 good practice guide 93—4 as barrier to administrative justice 95 as Citizen's Charter requirement (see further under CC) 85, 87, 91-2,467-8,480 Audit Commission interest in 106 basis on which established 69—70, 95 complainants' purposes 68 complaints defined 68, 69, 92-3,177 complaints explosion/complaints culture 67-8, 99,102-3,166-7 encouraged by citizen's Charter 68,166, 195 increased volume of complaints documented 101-111 origins 99-102 defined 69 disciplinary process 70, 203-4 evaluation of 119 gap between paper and real procedures 110, 203 guidelines, lack of 68, 79 immediate access 69 impact on PCA 93, 94 independence of? 93-4,467-8 jurisdiction, breadth of 92 levels of complaints 99—111 long-term relationship with complainant 101

575

"low level" 70-2 minimum standards 77 natural justice model appropriate? 66ff, 75ff, 78-9 ombudsmen, and 469—473 planning inspectorate approach to 422 police complaints and 468 procedure suited to 75ff, 80 purposes 102,110 Sarat Grossman hypothesis on tested 104-111 status with public lawyers 68-9,73—4 statutory footing for 470 styles of complaints handling 91-3, 99-101 trends 103-104 uniformity 95-7 variety of 69-70 (See also under Legal Profession: Internal Complaints Procedures) Consistency 64,139, 249,264, 340 Consumerism 299,454 and FOI114 Contributions Agency customer charter 90-1 Council on Tribunals 17,141,485^»9O advice from 487-8 and citizens charter 91 consultation by 487 detailing pressure on tribunal systems 97 education appeal committees, views on 300, 303-4,310, 311,314, 316-7, 324 implementation of 487, 489,490 lack of Cabinet access 488 Model Rules of Procedure 232,489 more systemic approach? 97—8 not an oversight body for administrative justice system 478,521 on Pensions Ombudsman 138 on procedure 487—8 pending quinquennial review 490 possible Memoranda to Parliament on 490 proposed Association of Tribunal Heads 489 Register of Tribunal Accommodation 488 regulators, views on 217-8, 232, 238 reports 97,487, 488 research capacity, lack of 481 role of 141,485ff not an appeal body/Ombudsman 486 advisory 486 expanded 17 social fund reviews, criticism of 158 special educational needs tribunal, accommodation and 321 special initiatives 489 training 441, 489 tribunal charters, views on 91 Tribunal organisation and independence 97, 139,487

576

Index

Council on Tribunals (cont.): Tribunals Committee of Judicial Studies Board 489 visits 489-490 Courts and Citizen's Charter 86-7 Complaints Procedures, contrasted with 69 desire to be omnicompetent 79 normative/radiating effect 70-71,73,492, 501,505 Ombudsmen, contrasted with 124,135, 139, 143 or specialist Tribunal? 61 relationship with complaints procedures 78, 146, 153 Tribunals, contrasted with 61 (See also Judicial Review) Criminal deportation AAT attitude to 341 Australian policy on 341 critical of AAT 343-4 dealing expressly with human rights 341, 342,344-5 deterioration of 343 government response to AAT decisions in relation to 342, 342-2 outlined 341-5,354-5, 355-6 Damaska 75—6 ideal types of state 75 Data Protection Registrar/Tribunal 128 Decision-making criteria 38, 80 appeals submission 285—6 background reports (asylum decisionmaking) 64 change of circumstances 290, 450,456-7 complex/simple and automated process 24, 29-30,284 desirability of adjudicative manuals 37-8 guidance released pursuant to FOi code 125 inappropriate considered at first tier 75 jurisprudence of other countries 64 merits 61-2 policy considerations 55,63—4, 226, 227-8, 273-4 as a relevant consideration 346, 347-9 misinterpretation of policy and error of law 346-7,347-8 publication of internal manuals etc 64, 250 secret 32 suited to primary adjudication 23,24 (See also Human rights) Delay 455, 457-8, 244-9 and adversarial system 227 and Citizen's Charter 78, 88, 92 causes 457-8 contextuality 28

impact on credibility 27 Canadian FOI regime, approach to 129-30 Disability benefits adjudication 23-4,27, 96 reviews 42,44,48,50-1,54 Education — complaints procedures 69,102, 299 Education Appeals Committees 11—12 Judicial Review of 143 Local Government Ombudsman review of 143

Education Appeals Committees: admission appeals 296ff, 30O-7,324 chairman's qualifications and training 301, 303-4,307 clerks 304, 305,307 Council on Tribunals concerns 300,303-4 decision letters 303-4 failure to adjourn to consider new evidence 305 failure to consider all and only relevant considerations 305 governors as 300 impact of 305-6 importance of right of appeal 306,307 inadequate reasons for decisions 304 independence/impartiality 304, 305,306, 307 introduction 298ff, 300ff lack of disclosure 305 lack of independence 304,305 lack of training 305 LEA members 300-301,306 LGO criticisms 303 membership 300,303,306 multiple appeals 302-3,304 need to know case to answer 305 prehearing contact with parties 304 proposals for reform 306-307,324 shortage of clerks 304 training 304 two-stage decision-making process 302—3, 303-4,304,305 workload 296 Education Appeals Committees and hearsay evidence 314 appeals from 324 appellants 309, 313 as subject of Judicial Review proceedings 310,296,314 call for a national body (monitoring, training) 318 Chairmen/Members: LEA 317 clerks 314,315,318 Council on Tribunal's plan to transfer jurisdiction to SENT 297-8,316-7, 324 decision-making criteria, limited relevant 313 ethnicity 309

577

Index exclusion appeals 296, 297-8,304, 307ff failure to inform of right of appeal 313 governors appeals compared with others 309-310 governors/headteachers right to make representations 311 hostility to 315 importance of 316,311,318 importance of speed 311—2,316, 317,324 judicial v case conference approach 311 lack of objectivity 313, 314 LEA role 311 legal background 311,313,314-5,318 LGO reviews of 310 need for informality 313 parents' difficulties in obtaining access to the record perceptions of process 313 policy 310 pre-hearing contact with parties 308, 311, procedural rules 311 procedural shortcomings 313-4 procedure 312 reasons for not pursuing cases 308—9 reasons for decisions 314-5 representation 310, 311, 313,318 right to know case to answer 312 roleofchild312,318,324 success rates 309,315 support for 315 teachers as 316 two-stage decision-making process 310 workload 296,307-8 Empowerment 82, 86, 113, 152-3 Executive Self regulation 85, 115ff Financial Services regulators 134,137,138, 140, 229,256,268,271,273 Franks Committee 1-2, 2, 15, 16-17, 46,141, 453-4,458, 463, 485-6,489, training in Franksian Principles 419 Freedom of Information/Open Government 7-8,17 administrative model adopted 7, 115-6,117, 117-8 Canada 7-8,112,117-8,122, 123, 127-132 Charges 116, 126 Office of Public Service supervision of 116 Codes of Practice on 7, 112, 115ff confidentiality 123-4 Effectiveness of 117ff Campaign for Freedom of Information test 125-6 exemptions under the Code 116,122,124-5 Cabinet papers 122-3 public interest 119,124-5 public interest override 122

ideal types 7,113-117 importance of political leadership 132 information/documents 116, 123 interaction with statutory exemptions 116 legalistic approach of government departments to 126—7 minister as final arbiter 115—6 PCA's role 116-7, 118ff accessibility 122 authority 123-4 competence 123 independence 121 in practice 124-7 mandatory use of internal complaints procedures 122 political nature of 121 powers/jurisdiction 117, 122-3 resourcing 123 visibility 119-121 why chosen 118-9 workload 120,127 political nature of 7,112-3 South Africa 377 "Your Right to Know" (Cm3813) 118 Galanter on rule avoidance 73 radiation effect of courts 70—71,73 Gas Consumers Council 101, 108-9 Grievance/complaint 145 airing of 289-230 defined 68 identification of 92-3, 177 not pursued 5,23, 71, 72 service/right 475-6 Harlow and Rawlings (red light/green light) 7, 69,76,78-9,115,381,429 Health Service Commissioner 99,101, 471 Housing Benefit adjudication 49-50, 449 Housing Complaints procedures for public sector tenants 69, 102,142 HATOS 471, 474 Human Rights (see also (oral) hearings, right to) 6,12-14,17,61,65, 401, 477, 521 as non-binding relevant considerations 345-6,369-71,372-5 effect of 338,345-6, 350 infiltration UK 12,337,375 Australia 337-375 legitimate expectations, as source of 349, 350-1 excludable? 352,353,355-6, 361, 371ff misinterpretation of 338—9,347-9 norms 338 Teoh's case 12-13,349ff

578

Index

Impartiality 79, 80-1,138,192, 200-201, 217-8,222ff, 307,322,456,458 meaninglessness of 79, 230 (See also under separation of powers) Independence 18, 56,59, 62, 93, 97-8,121, 147, 149, 162,192ff, 226, 273-4, 295,300, 397, 319,409, 414,455,458-9,468, 470-1, Independent Monitor 157, 163-165 hybrid nature of 165 method of working 163-4 origins 163 ' random sample 163,164 reporting practices 164,165 systemic effect 164,165 training 164 value for money of 164-5 Independent Tribunal Service 408ff mission statement 409 monitoring practices 413-5,436-7,440 President of 408 recruitment 431-3,440 role in training 407ff, 433-5, 437ff Informality 61,137,143, 264, 313, 464 and lay members 427, 429 avoidance of jargon 37 dangers of trend to informal procedures 74 excessive focus on 82 Information Technology/Computerisation 12, 64 [See also under Parking Adjudicators) Inland revenue Adjudicator (see under Adjudicators, Inland Revenue Adjudicator) Citizen's Charter and 88, 93 complaints procedures 93,161 rule-application 250-2, 269, 270, 273-^» Insurance Ombudsman Bureau 100,104, 105, 139-140 Insurance Ombudsman of Ireland 151-155 Judicial Review (see also right of appeal and South Africa Constitution) 468-9 AAT application of the principle 356-8, 362ff and departure from AAT decision 343 and human rights instrument 337-375 and FOI 58, 60 and judicalisation 79 and Ombudsmen 464 and reasons for decisions 25 and right to a hearing, adequacy in respect of 400-401 and variability of decision-making structures/procedures 34 anti-democratic 24, 379-381 as a check 400 bars to access 22 basis for 75, 76-7 change in approach 67

contrasted with Ombudsman 143—4 exclusion of 352, 353,355-6, 361ff, 371 exclusion of human rights considerations 361ff exhaustion of other remedies 22,296, 464 harmful impact of 22,24,30,34 how constructed 76 human rights instruments as 345—6,363-5, 370-1,372-3 impact of 57,70-71, 73 impact on decision-making systems, judicial regard for 34 impact on public 71-2 individual v collective interest, and 25ff leave stage 468-9 meaningless of for low level procedures 79ff misinterpretation of human rights instrument 347—9 misinterpretation of policy 346-7 natural justice jurisdiction 76 non-fettering of discretion 361ff or appellate tribunal? 63, 54 privative clauses 63 public/private divide 393-5,468 public/private interest, balance of 24—25 remedies 468,469 rigid application of policy 368-370 role of 76-7 standing 468-9 "Justice" 58, 60, 63, 64, 463 Legal aid (see also representation) 137,142, 146, 286, 293, 321,434 LA franchise and complaints procedures 171,176, 180, 203 Legal profession/lawyers contrasted with lay persons 236-8 internal complaints procedures 8—9,166—207 complainants to 207 complaints handlers 177 culture of attitudes towards 9,169-170, 175, 181,194-0 development of 166-170,179-180,193ff expectations of 170, 186-7, 204 failing to address substance of complaint 183, 187, 190-1 falling short of Natural Justice 200-201 gap between paper and real procedures 9, 171,175-7,182,203 how perceived 184-5,186,187, 191 identification of 188,202-3 impartiality/bias 177,178,183-4,191,192 inarticulacy of 191 information supplied to client 182-3,187, 205 lack of knowledge/understanding or process 187-8,191 matters complained of 184, 185, 186,205, 207

Index need for greater assistance from Law Society 9,196-7 need for specialists/compliance officer 192, 201-2 need for training 196, 198,199-200, 201 ongoing relations with 183, 185,191 perceptions of 170, 174,198-9 PR 15/client care 169, 169-170 and 166-207 passim private/commercial clients as 9,185,187, 189,192 satisfaction of 189-90,198, 207 solicitor complained of, attitudes of 178-9,181 status of 172-3,177-8, 202 styles of complaints handling 178—9,183Ff, 190 systemically, failing to function 176-7, 183,194,203 their perceptions 170,185-6,189-190, 192, 195, 198-9 to be distinct from disciplinary procedures interest in complexity 36 legalism 428,429-430 place of complaints handling 167,170, 193-198 self-regulation of 167 wedded to adversarial system 26,78, 136 Legal services ombudsman 140, 168-9, 180 and public/private divide 101 Legal versus political reasoning 35 Lord Chancellor's Department/law offices 60, 486-7,521 Citizen's Charter and 91 interest in Ombudsmen 146 role of in decision-making systems 35-6, 40 solicitors complaints procedures, and 168 Magistrates Courts monitoring 436, 437 recruitment 433 training 434, 435 Mashaw 79-80, 413 Mass decision-making efficiency, and Monitoring members 14,38,440—1 Children's Panels 436-7 ITS 413-5 __ Magistrates Courts 436,437 Planning Inspectorate 422—423 regulation 276 Social Fund Reviews 159 SSATs 436, 437, 440

Monopolies and Mergers Commission 216, 218, 222, 274 National Consumer Council

579

(on complaints procedures) 72, 90,100,168 NHS Complaints 73, 74,102,204,473 GP complaints systems 69,102 Wilson Committee 69, 473 Office for the Supervision of Solicitors 167, 168,169,192,193-4,197,198, 202, 203, 204 Office of Electricity Regulation 211, 212, 216, 217,218,220, 221, 223, 227,234, 235, 236, 237,238,239, 240, 241,243 Office of Fair Trading 100, 101 OFGAS 211, 212, 216, 217,218, 220, 229,232, 233, 234, 235, 236,237,238, 240, 241 Office of Telecommunications/Telecommunications Regulation 108,211, 212, 216,217, 219, 219-220,222, 223, 227,232, 233,234,235, 236, 237, 238,239, 240, 241, 242,244,274-5 Office of Water Services 211, 216,217, 218, 223,232, 233, 234, 235, 236,237, 238, 239, 240,241,243,244 Ombudsmen {see also specific bodies and under complaints) access/filters 122,136-7,145, 150ff, 150,152, 465-6 accountability 121,130,140,147 annual reports 139, 151,154-5 appropriate roles for/curial role 17—18, 118-9,134-5,136-7,137,143-4, 146,149, 465 bodies regulated, relations with 135, 139, 151-2,145,153-4,154-5 conciliation/mediation, and 119, 134, 137, 138,152,153 consistency 139 consumerism and 135, 154 controlling proceedings 139 cost 119,144 courts, as alternative to 8, 134,135, 136-7, 142ff, 145,153 courts, contrasted with 119,124,126-7, 139, 142-4,152 criteria for recognition 149—151 decisions 151 distinguished from tribunals 137—140 effectiveness 7, 135-6,144,145,152 how assessed 119 enforceability 140,144,151 enforcement, and 119, 140, 144,466-7, 474-5 expansion 140,146—7 free to complainant 119,135, 143,145,152 government oversight 146—7 how funded 145, 151 independence 121,135-6,145,149-150, 151-5, 154,155 jurisdiction 100, 465

580

Index

Ombudsmen {cont.): links/referrals to courts 137,140,144,145, 467,473-5,480 Lord Chancellor's Department interest in 146 model of 143,152 need for publicity for 94, 119-121,154,466 non-adversarial nature/inquisitorial nature of 134,136-7,138,143,152 numbers of 133-4 openness of 153 oral hearings 138—9 origins 99ff, 101, 133-4 overlapping jurisdiction (with courts/tribunals) 135,141-144,145,152, 464, 473-5 perceptions of 153 performance indicators 148 personalised role 138,146 Private sector ombudsmen 7, 8, 135, 151-155 public interest role of 135,143—4 reporting of 139 reviewability 140 reviews, contrasted with 136 role of British and Irish Ombudsman Association/oversight body 135,140-1, 147-151, 155 select committee role 121,124, 466,522 speed/delay 99, 100,127, 144,467 standards expected of/performance indicators 119,144,147-151,153 support staff 138 used in court proceedings 145,153 whose interests? 145-6, 152-3 wide discretion of 139 (Oral) hearings adequacy of Judicial review 400-401,403 Adjudicator's "meetings" 161 article 6 of ECHR 226-7, 230-1, 397-403 Canadian Criminal Injuries Compensation Board 34-5 "Civil rights and obligations" 399,400,403 context sensitive nature of 34-35 criminal charges, and 399—400 daunting 139 different powers of Courts/Tribunals in respect of 401-2 exacerbating imbalance between parties 139 non-attendance 287,452,459-461,464 non-reviewable question of fact, and 226-7, 228-9,400-401 participation, and 465 right to 37, 55,64,76 "Oversight bodies" 17,40-41,140-1,146,470, 478, 519ff (see also Standing Administrative Conference, Ombudsman role of British and Irish

Ombudsman Association and under specific bodies) Parking Adjudicators 325-334 accessibility knowledge of right to appeal 329,330,334 postal appeals 329, 331,334 reasons for not appealing 330-1 access to past decisions 327—8 allocation of cases 326,328 and use of IT 325-334 case management 326-7 Chief Adjudicator 326,327 contracted out functions 329 costs 330-1,334 management information/statistics 328-9 monitoring 327—8 reasons for not pursuing appeals 330-1 right to a hearing 326 staffing levels 329 standard letters 327 training 327-8 user perceptions 329ff Parliamentary Commissioner for Administration 99 accountability to parliament 131 capacity to develop authoritative caselaw 124 Changing approach 96-7 more systemic 96 new Crossman catalogue 96 The Ombudsman in Your Files 96 Special reports 96-7 Charter standards - attitude to 88-9 courts, compared with 119,126—7 enforcement 119,123-4, 466-7 FOI (see under FOI) 116-7,118ff house style 7,120,126-7 Impact on of Citizen's Charter attention to complaints 93, 94,469 independence 121-2 investigation of OFWAT 233 investigative focus 122-3 jurisdiction 122,123 MP filter 100, 122, 465-6 origins 99, 463 over regulators 241 thoroughness 99, 127 why chosen as dispute-resolution mechanism 119 workload 100, 101 (See also under Ombudsmen) Participation 18, 81, 82,115, 246-7,262,264, 265, 266,271ff, 459-461,465 by children 312, 318,324 Citizen's Charter commitment to choice and consultation 87, 90 guiding principle, as 81

581

Index Pensions Ombudsman 101, 137-8, 471 Performance Indicators (see also Citizens Charter standards) for SSAT 413 Planning Inspectorate Advisory Panel on Standards 422 allocation of work 420—421 commitment to Franksian principles 418 Franksian principles, on 419 internal Quality Assurance Unit 422 isolation of 419 monitoring 422-423 purpose of 422 recruitment practices 418-419 role of complaints 422 specialism 421 staff 418 structure 418, 420 training 419-421 working from home 418,419, 422 work of 417-418 Primary Adjudication 17 applicability of Natural Justice model, and 79-80 appropriate decision making criteria for 23—4 as part of administrative justice system 54 contentious issues bypassing 58-9 expertise of primary adjudicator/front line departments 36 fixed budgets, and 31 impact of appeal system on 30, 501 impact of review systems on 39,51,52 impact on appeals system 23-4 importance of 5, 57,58,73,74,159 interaction with review process, and (see under review) level of appeals as index to 58,73 necessary level of discretion 23, 30 need to be appropriately resourced/trained 57ff outline definition/model 21, 22—3 poor process: costs of 23-4, 74

causes of 22-3, 24,39,74-5 quality of 22-3,74-5 weakness of 74—5 who by? 22, 23,30,58, 283-4,458-9 by Secretary of State or Adjudication Officer 37, 283-4 {see also under courts: radiating/normative effect of) Prisons Ombudsman 138, 468 Procedural Fairness/due process (See also under South Africa, constitution) 66, 115 Administrative Procedure Acts 213—4, 224ff adversary model, and 26,78—9 change in approach 67 complaints process, suitability to 66,68,75,

79,80 effectiveness/compliance, and 220-221, 223, 229 expense/possible costs of 134 FOI,andll5 how justified 75-7,75, 79-80,220-1, 263, 272 legitimacy conferred by 223, 267 meaninglessness of at low level 79—80 minimum standards 56, 59,76,77 most important at primary/lower level 23, 73,74,75,76-7,79 Natural Justice model 66,76,79, 273 applicability to low level process 66 a bar to experimentation 79 content 76ff policy process, and 524—5 primary adjudication, and 22-23,73,74,

75 rule making/adjudication distinguished, in 213, 214-5 solicitors internal complaints procedures, and 204

when required 223, 225, 227 need for a grounded/contextual approach 80 need for oral hearing 64 sliding scale of 76—7 trade off with efficiency/effectiveness 23, 29, 284 Procedure appeals submissions 285-6 confidentiality 271-2 control of proceedings 289ff evidence/argument, separation of 27—8 hopeless cases, for 15,450, 451,456 importance of speed 451 in absence of appellant 287,293,452 individualised or generalised process 221-2 lack of evidence/disclosure 7,76 need to know case to answer 27,56, 59,76 pre-hearing contact with party 225 presenting officers 286 pre-trial: where no grounds of appeal 291 rules of evidence 37, 76 telephone 249 third party rights 221-2, 247, 250, 253, 254-5, 262, 264,265,272 Proliferation of decision-making bodies 67-8, 135, 147,481,487-8 Public Administration Select Committee (see under Select Committee on the PCA) 117, 124 Public lawyers limited focus of public lawyers 2-3,5,66, Public lawyers (cont.): 68,70,70-1,73--», 75, 81-2,214-5 role of public lawyers 67, 81 public/private divide 101,393-5,403, 523

582

Index

public/private interest administrative justice and 24, 25, 35 and system design 275-6 balance of 17, 24,76, 266,272, 445,497 Reasons for decisions 56,64, 76,491, 496 and FOl/legal model 115 impact of availability of Judical Review 25 legal/non-legal decision makers, by 314-5 press reporting of 73 reporting (Canadian Federal Information Commissioner, impact of) 129 reporting (Complaints Handlers) 110 reporting (EU Commission competition law) 254-5 reporting (independent monitor) 164-5 reporting (Inland Revenue) 251 reporting (Ombudsman contrasted with tribunal) 139 reporting (Takeover Panel) 250 role of 71,117 use in training 327—8, 407 Redress (under Citizen's Charter) 88, 89, 90, 94-5, 95, 299,467 release of DSS guidance on ex gratia compensation 125 Treasury guidance on 89, 94, 96 "Regime" 112-113 Regulation/Deregulation (see also under Rules) 9-10, 25, 523 accountability of regulators 212-3 and bias/independence 217-218, 222-223, 226, 230 and regulators as consumer partisans 222—3 benefits of resultant compliance approach 218,220,222 lack of distinction between standard setting/dispute resolution functions 220, 226,227-8 by self-written rules 255-6,258-9 capture 31, 35, 228, 264 Council on Tribunal's calls for supervision over 217-8 criticisms of Helm 218 Veljanovski 218, 219-220 current powers 215—7 current procedures appeals/reviews 241—2,226-7 attention to Natural Justice 237 conciliatory approach 234-5 disclosure 229, 237 distinction between rule-making and rule-application 239ff, 244 desirability of mixed functions 10,211-243 different models of procedural justice suited to different functions 213, 220—1 dispute - resolution powers of regulators

215-223,232-242 distinctive treatment of domestic customers (role of consumer representatives) 235-6 avoiding oral hearings 238 and use of internal complaints procedures 234 formality/informality 237—8 influences on 232-2 information gathering and 217, 237 judicial or institutional approach 236-7, 232-4 reasons for decisions 237, 240 reporting/publicisation of decision-criteria 239,240 third party rights 229, 232, 238-9 variety of 23l,233f effect of individualised/generalised process 221-2 enforcement 26-7,159, 265 independence/capture 222, 265-6, 276 lack of attention to 214—5 legislative functions of (outlined) 212-3 models of enforcement procedures 28ff, 257, 259 need for codes of procedure specific to different functions 214-5 notice and comment procedures 35 procedures 213—4 proposals for reform of current practice 10, 243-5 benefits of consistency 10, 231,243-4 to be based in current practice 243 need for a procedural code 10, 229,231, 244-5 soft-law regulation of politico-administrative procedures 117,127-8 support for 218-220 through conversations 256-7,259 US approach to 217, 218,224-227 UK approach to avoiding defects of US approach 228-229 Foster's views 228-9 recommendation to comply with Natural Justice 228 recommendation for appeals 228-9 minimal procedural standards 228,232ff Representation/advice and assistance absence of 293-5, 320 increasing need for training 409—410 increasing volatility of proceedings 286, 292-3 imbalance of 138-9,310 leading to inappropriate questioning 313 Immigration Advisory Service/UKIAS 65 need for 57-89, 293-^*, 460 primary adjudication, in 57—8 Registration Scheme for immigration

Index advisers 65 right to (Natural Justice model and) 76 Responsiveness and Reflexivity 67, 81, 86,159, 213, 214, 247, 255-6, 257, 258, 261-3, 264, 267, 270-271, 377 hampered by legislative approach 86 Review/Reconsideration 42—54 and impact on appeals/as bar to appeal 47, 48ff, 53-4 and impact on first tier 5,38—9,52 and impact on policy development 52 and oral hearings 51,157,158, 460 and use of new evidence 38—9 appropriate decision-maker for 5, 44,45,50, 52 appropriate governing principles 46 appropriate role for 39, 46,51-2, 48, 54, 159-160, 284-5 classified as administrative/adjudicative 44, 45,46,51,285 cost of 159 Council on Tribunals attitude to 46, 47,48 definition/outline of 43,158 desirability of/capacity to provide administrative justice 51-52, 157 distinguished from appeal 43,47, 48,458 formal review defined 42, 44,45, 51,52 grounds of review 44, 285,448 independence of 48,52, 93,136 inquistorial 158 introduction of reviews 42,48 non-lawyers 159, 160 rationales for 5, 44, 45, 45, 51-2 replacing appeals/tribunals 47 required before appeal 5, 39,42-54,74, 448 Social Security Bill 1997 accountability of 157,159-160 cheapness 51 expertise of decision makers 159 lack of fuss 48 ownership of primary adjudicators 5,51 proposals 15-16,44-45,415-6,424-5, 441,445ff responsiveness of 159 speed 44, 45, 51, 458-9, 485-6 strengths of 51-2, 55, 451 systemic role of 5,52, 159 triggers 44,52-3 Social Security decision making Rule of law/democracy and administrative Justice (incompatible with) 24 and judicial review/appeals on a point of law 379-381 impact on balance of public/private interest 35 non-Diceyan model 24 privative clauses 24 rule of law values 266-7, 273 Rules 266

583 as language 260-261 by bilateral conversation 10, 246-7 defined 247-8 doctrine of legitimate expectations and 251 dynamic nature of 276—7 guidance/waiver distinguished 252 hearings 249-250, 254 pre-transaction 249, 250-251, 270, 274 principles to govern 247, 263, 267—8, 277 access 264, 265, 268,271-2, 274-5 authority 264, 272-5 commitment 264, 264, 268ff trust and accountability 264,265, 268ff problems with duality in rule-application 263-4 failure to meet rule of law values 266 lack of legitimacy 264,265-6 lack of participation/openness 264,265 openness/publication 253,254-5, 276 third party rights/participation 250, 253, 254-5, 272 uncertainty 264—5, 273 problems with rules 259—261 purposes 220,246, 248-262 rule-application process 248-55 rule/discretion 23, 24,29-30, 246-7 soft/hard 264

Sainsbury, Roy 15,42-3,46-51,75, 80 Select Committee on the Parliamentary Commissioner for Administration 89, 94, 96,117,469 Separation of Powers 211-245 benefits of fusion 28, 228-230 desirability of fused powers 10, 28, 218-220 disciplinary/complaints procedures 70, 203-4 investigative/adjudicative 28 rule-making/adjudication 211—243 Social Fund reviews 44, 49,52, 156, 157-159, 449 accountability/responsiveness of 149 background 157-8 criticism of 157, 158 features of 158 monitoring 160 non-lawyer decision makers 159,160 strengths of 159-160 systemic approach 149 Social Security Appeal Tribunals monitoring 436-7, 440 recruitment 432,433, 440 (see under training ITS practice) South Africa "administrative action" defined 381—2, 386 Constitution 13-14,376-396 South Africa (cont.)

584 impoverishment of Judicial Review under apartheid 377,380, 382ff audi alteram pattern 387 delegation 384 irrelevance 384-5 jurisdictional fact 383-4 ouster 385 reasonableness 385-7 ultra vires 382-3 public/private divide and 393-5 rights conferred under 13,377,395-6 to efficient administrative action 391 ff "efficiency" defined 391-2 balanced with accountability 392—3 balanced with equity 392 substantive judicial review 377, 393 to lawful administration 378, 382 to procedural fairness 378, 387-9,394 legitimate expectations 387—9 investigative action 388-9 to reasonable administrative action 378 delegated legislation 386-7 to written reasons 378,390-1 scope 390 administrative cost 391 role of judges (creative/political/theories of) 379-381,395-6 Special Educational Needs Tribunal 11—12, 296-324 accessibility (complexity) 323 accommodation 321,323 adversarial 323,326 appeals 318,322-3 appellants: ethnicity 309,320 child's role 321-2, 323,324 clearance rates 319,323 constitution 318 enforcement 322 exclusion appeals, and 297-8,316-7,324 formality 320-1, 321 independence 319,322 listing 321 mediation, and 320 members 319 commitment 319 ethnicity 319-320 lawyer chairmen 318, 319 LEA background 319,322 training 319 President 318,319 representation 320-321 running order 321 settlement 320 staffing 319 success rates 322 workload 297 Staff/Clerks 138,249-250,304,307,315,418 Standing Administrative Conference/general

Index administrative oversight body (proposal for) 17 bodies that are not alternatives to it: 522 Cabinet Office machinery of government committee 522 civil service 524-5 Committee on Standards in Public Life 521, 528-9 contracting out 525, 526 Council on Tribunals 521 government contracts 523 grievance systems 522 Law Commission 526 Lord Chancellor's Department 521 calls for/support for 519-520 characteristics/constitution of 529 why needed 521-2,530-1 proposed role for: 522-6,529-30 need for a general administrative appeals tribunal 526 policy-making 523-4, 530 public/private divide 523 regulation 523, 530 Select Committees/Parliamentary bodies 520, 531 System design 247 as aspect of "regime" 112—3 balance of public v private interest 24, 20 based on empirical research 32,33-4, 40-41, 53-54, 277 contextual 29, 30-31, 80 economy/speed 29-30,57 empovcrished current approach to 40 models of open government and 113ff questions to be considered 33, 36ff, 40, 55-6, 57 simple or complex 36 The Take-over Panel 248-250, 269, 273 Trading Standards Department complaints and 102-3 Training 14-15, 64 Council on Tribunals role 441, 489 Education Appeal Committees, for 303-4, 305, 307 importance of 64 Independent Monitor, by 164 ITS Practice: 14,407-416,425-6,431,433, 435,437ff areas in which training needed 410,439-440 changes pending 415—5 complexity of task 409-410,437-8 compulsory? 412, 433 distinctive for lay/legal members 425, 430, 441 evaluation of 413,439 focus on chairmen 410-1 format of 411-2,434

Index passive v active training distinguished 407 review of ITS training 408ff, 425,437-440 training chairmen and members apart or together 411,438 use of videos 412 who should train? 409, 438-9 legal profession, concerning complaints procedures 198,199ff links with recruitment and selection 440—441 pre-service 417ff Special Educational Needs Tribunal, for 319 staff/clerks, of 304,315 Transport — London Underground complaints procedures 69 Tribunals accommodation 321,488 adversarial/inquisitorial 138,465 administrative or adjudicative? 426,429 annual reports 139 balancing public/private interests 24 Citizen's Charter, and 91 contrasted with courts 61, 63 464-5 contrasted with Ombudsmen 137-140 de novo appeals 465 early attitudes to 485-6

585 fragmented structure of 91, 488 Franksian virtues 464,486 Human Rights Bill, and 401 oral hearings 134,464 presidential systems 139 pre-trial procedure 139 support services 138 uncritical support for 70 under pressure 97 value for money of 461 wing members 3 member or 1 member 138, 415-6,424-5,450,451,455-6

VAT and Duties Tribunals 397-403 Value for money/the three Es. 24, 29-30,47-8, 55,57,74,78,91,97, 111, 147, 243,264, 392,445,455,461 as Citizen's Charter principle 87 Wilson Committee 69 Woolf — Access to Justice/Civil justice reform 3, 16,17,62, 66,74, 82,135,137,140, 144,323,463-^, 467,473-5,480-1 Workman's Compensation Board (British Columbia) 26-7