Administrative Justice in the 21st Century

by Harris, Michael; Partington, Martin

• ISBN13: 9781901362664
• ISBN10: 1901362663
• Format: Hardcover
• Copyright: 1999-02-19
• Publisher: Hart Publishing

Summary

The idea of administrative justice is central to the British system of public law, more embracing than judicial review, or even administrative law itself. It embraces all the mechanisms designed to achieve a proper balance between the exercise of public and quasi-public power and those affected by the exercise of that power. This book contains revised versions of the papers given at the International Conference on Administrative Justice held in Bristol in 1997. Forty years after the publication of the Franks Committee report on Tribunals and Inquiries, the conference reflected on developments since then and sought to provoke debate about how the future might unfold. Participants included policy makers, tribunal chairs and ombudsmen, other decision-takers as well as academics - a formidable combination of expertise in the operation of the administrative justice system. Among the themes addressed in the papers are the following: the effect of the changing nature of the state on current institutions; human rights and administrative justice; the relationship between decision taking, reviews of decisions, and the adjudication of appeals; and the overview of administrative justice, taking into account lessons from abroad. The new millenium provides an opportunity for the reappraisal of the British system of administrative justice; this volume presents an indispenable repository of the ideas needed to understand how that system should develop over the coming years. Contributors: Michael Adler, Margaret Allars, Dame Elizabeth Anson, Lord Archer of Sandwell, Michael Barnes, Julia Black, Christa Christensen, David Clark, Gwynn Davis, Godfrey Cole, Suzanne Day, Julian Farrand, Tamara Goriely, Michael Harris (Ed), Neville Harris, Tony Holland, Terence Ison, Christine Lally, Douglas Lewis, Rosemary Lyster, Aileen McHarg, Walter Merricks, Linda Mulcahy, Stephen Oliver, Alan Page, Martin Partington (Ed), David Pearl, Jane Pearson, Paulyn Marrinan Quinn, John Raine, Andrew Rein, Alan Robertson, Roy Sainsbury, John Scampion, Chris Shepley, Caroline Sheppard, Patricia Thomas, Brian Thompson, Nick Wikeley, Tom Williams, Jane Worthington, Richard Young.

Author Biography

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. Martin Partington is Professor of Law, Pro Vice-Chancellor and Director of the Centre for the Study of Administrative Justice at the University of Bristol.

Table of Contents

Foreword	v
Preface	xv
List of Contributors	xvii
Table of Cases	xxi
Table of Statutes	xxx
Table of Statutory Instruments	xxxiv
Introduction	1	(1)
Michael Harris
Martin Partington
Background to the conference	1	(3)
Themes and issues	4	(13)
Conclusion	17	(4)
Part 1 Initial Decision---Taking, Review and Appeals: General Issues
Administrative Justice: Is it Such a Good Idea?	21	(21)
Terence G. Ison
Introduction	21	(1)
Primary adjudication	21	(3)
Democracy	24	(1)
The undermining of collective interests	25	(1)
The impairment of efficiency	26	(4)
Political realities	30	(2)
System reform	32	(4)
Proposals	36	(4)
Conclusions	40	(2)
The Place of Formal and Informal Review in the Administrative Justice System	42	(13)
Michael Harris
Introduction	42	(1)
Matters of terminology	43	(3)
The objections to formal review	46	(5)
Observations and conclusions	51	(4)
Immigration and Asylum Appeals and Administrative Justice	55	(11)
Judge David Pearl
Introduction	55	(1)
International law	55	(2)
Domestic law	57	(1)
The initial decision	57	(2)
The present system and its defects	59	(2)
Adjudicators' response	61	(1)
The broader questions	62	(2)
Conclusion	64	(2)
Sliding Scales of Justice at the End of the Century---A Cause for Complaints	66	(19)
Linda Mulcahy
Introduction	66	(2)
What are complaints?	68	(2)
Top down and bottom up approaches to complaints	70	(5)
Whose standards?	75	(1)
The sliding scales of natural justice	76	(1)
Is there a Plimsoll line?	77	(1)
Recognition of other models	78	(1)
Developing responsive principles	79	(2)
Conclusion	81	(4)
Part 2 The New Administrative Law: The Citizens Charter, Ombudsmen and Other Developments for the Resolution of Complaints
The Citizens Charter and Administrative Justice	85	(14)
Alan Page
Introduction	85	(1)
The Charter	86	(2)
Standards	88	(3)
Complaints procedures	91	(4)
Systems improvement	95	(3)
Conclusions	98	(1)
A Question of Numbers: Managing Complaints Against Rising Expectations	99	(13)
Tom Williams
Tamara Goriely
The development of complaints handling	99	(3)
Trends since 1983: managing rising expectations	102
Conclusion	100	(12)
Regulating Open Government: A Comparative Study of the UK and Canadian Regimes	112	(21)
David Clark
Jane Pearson
Introduction	112	(1)
The discourse and practice of open government	112	(6)
The ombudsman and open government	118	(9)
The institutional design of FOI: the lessons of the Canadian experience	127	(6)
The Ombudsman and Administrative Justice	133	(23)
Michael Harris
Introduction	133	(3)
The ombudsman as ``tomorrow's court'' [Holland]	136	(1)
Ombudsman or tribunal? The ombudsman as an adjudicative mechanism [Farrand]	137	(4)
Defining the relationship between the courts and a public sector ombudsman [Thomas]	141	(3)
Private sector ombudsmen and the public interest [Merricks]	144	(3)
Quis custodiet ipsos custodes? The problem of proliferation [Barnes]	147	(4)
What makes an ombudsman work? [Quinn]	151	(5)
New Procedures	156	(10)
Michael Harris
Introduction	156	(1)
Internal review [Scampion]	157	(3)
The role and function of the adjudicator's office [Rein and Lally]	160	(3)
The independent monitor model [Anson]	163	(3)
Complaint Handling by Solicitors: Practice Rule 15---Waving or Drowning?	166	(45)
Christa Christensen
Suzanne Day
Jane Worthington
Introduction	166	(4)
The research	170	(5)
The findings	175	(18)
Conclusions and recommendations	193	(12)
Appendices	205	(6)
Part 3 Collective Administrative Justice
Separation of Functions and Regulatory Agencies: Dispute Resolution in the Privatised Utilities	211	(35)
Aileen McHarg
Introduction	211	(4)
The place of dispute resolution in utility regulation	215	(9)
Internal separation of functions---US proceduralism and UK pragmatism	224	(8)
Dispute resolution procedures---the current position	232	(11)
Conclusions and recommendations for reform	243	(3)
Talking About Regulation	246	(35)
Julia Black
Introduction	246	(1)
Forms of conversation	247	(11)
The reasons for conversations	258	(3)
Justifying conversations: conversations and responsiveness	261	(2)
Problems with conversations	263	(4)
Structuring conversations	267	(9)
Conclusion	276	(5)
Part 4 Recent Research
Child Support Appeal Tribunals: The Appellant's Perspective	281	(15)
Richard Young
Nick Wikeley
Gwynn Davis
Introduction	281	(1)
Research methodology	282	(1)
Review and appeals under the Child Support Act 1991	283	(2)
Child support appeal tribunals	285	(1)
Who are the appellants before child support appeal tribunals?	286	(2)
Tribunals as an area to resolve disputes between parents	288	(1)
Maintaining order at appeal hearings	289	(4)
Advice and Representation	293	(2)
Conclusion	295	(1)
The Developing Role and Structure of the Education Appeal System in England and Wales	296	(30)
Neville Harris
Introduction	296	(2)
Education reform and redress of grievance	298	(2)
Education appeal committees	300	(18)
The special education needs tribunal	318	(6)
Conclusion	324	(2)
Parking Adjudications: The Impact of New Technology	326	(11)
Caroline Sheppard
John Raine
Introduction	325	(1)
Parking adjudicators	325	(1)
The role of IT	326	(3)
The impact of an IT-oriented adjudication system	329	(4)
Conclusions	333	(4)
Part 5 The Influence of Human Rights on Administrative Justice
Human Rights, Ukases and Merits Review Tribunals: The Impact of Teoh's Case on the Administrative Appeals Tribunal in Australia	337	(39)
Margaret Allars
Introduction	337	(2)
Merits review prior to Teoh's case	339	(10)
Teoh's case	349	(7)
Application of Teoh's case	356	(11)
Infiltration of human rights: beyond Teoh's case	367	(8)
Conclusion	375	(1)
The Effect of a Constitutionally Protected Right to Just Administrative Action	376	(21)
Rosemary Lyster
Introduction	376	(1)
The South African consitutional provision	377	(2)
The need for constitutional protection: South African administrative law in decay	379	(2)
What is administrative action?	381	(1)
The right to just administrative action	382	(9)
Administrative justice and ``promoting an efficient administration''	391	(2)
Privatisation and judicial review	393	(2)
Conclusion	395	(2)
Human Rights and Hand-Rolling Tobacco: The Right to a Fair hearing	397	(10)
Stephen Oliver QC
Introduction	397	(1)
The case of Mr Hodgson	397	(4)
General observations	401	(6)
Part 6 Management and Training
Maintaining Judicial Standards in the Independent Tribunal Service	407	(10)
Godfrey Cole
Introduction	407	(1)
Background	408	(1)
Training	408	(5)
Evaluation	413	(1)
Monitoring	413	(2)
The future	415	(2)
Recruitment, Training and the Monitoring of Quality in the Planning Inspectorate	417	(7)
Chris Shepley
Introduction: the planning inspectorate	417	(1)
Recruitment	418	(1)
Initial training	419	(2)
Continuing training	421	(1)
Monitoring	422	(1)
Conclusion	423	(1)
The Selection, Training and Monitoring of Lay Tribunal Members (With Special Reference to the Independent Tribunal Service)	424	(21)
Michael Adler
Introduction	424	(2)
Justifications for lay participation in tribunal decision making	426	(5)
Selection, training and monitoring in 1988 (Scottish Consumer Council study)	431	(6)
Training in 1995	437	(3)
Conclusion	440	(5)
Part 7 Future Developments
The Reform of Social Security Adjudication	445	(18)
Roy Sainsbury
Introduction	445	(1)
Current models of adjudication and appeals	446	(4)
The case for change	450	(1)
The proposals for reforming appeals	451	(2)
Evaluating the reforms	453	(8)
Discussion and conclusion	461	(2)
Administrative Justice: Towards the Millennium, Towards Integration?	463	(22)
Brian Thompson
Introduction	463	(1)
Mapping the terrain	464	(5)
Emerging trends	469	(6)
An integrated system for administrative justice?	475	(5)
Conclusion	480	(5)
Part 8 System Monitoring and Overview
The Role of the Council on Tribunals	485	(6)
Lord Archer
Introduction	485	(1)
The Council on Tribunals: consultation, advice, special initiatives and training	486	(3)
Conclusions	489	(2)
Monitoring Developments in Administrative law: The Role of the Australian Administrative Review Council	491	(28)
Alan Robertson
Introduction	491	(1)
The Australian administrative law system	491	(2)
The role of the Administrative Review Council	493	(2)
The benefit of a separate and permanent administrative law advisory body	495	(7)
The functions of the council	502	(1)
The changing nature of government	503	(2)
Future work of the council and final word	505	(2)
Appendix 1	507	(2)
Appendix 2	509	(10)
Filling in the Gaps: A Standing Administrative Conference for the United Kingdom	519	(13)
Douglas Lewis
A brief history	519	(2)
Why do we need a new body?	521	(1)
From recipe to menu	522	(4)
The overseas experience	526	(2)
Back to the UK	528	(2)
Conclusions	530	(2)
Conclusion
Future Developments	532	(15)
Martin Partington
Appendix: Standing Conference on the Resolution of Citizens' Grievances, A Proposal	539	(8)
Bibliography	547	(24)
Index	571