Braintree, Lorn Newton of --- "The 30th Anniversary: An International Perspective" [2007] AdminRw 6; (2007) 58 Admin Review 33

• The 30th anniversary: an international perspective

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The 30th anniversary: an international perspective

The Right Hon. Lord Newton of Braintree OBE DL

Chairman, The UK Council on Tribunals

Noting that my contribution has been given the title ‘An international perspective’, it should first be acknowledged that the contents will not match the label. Instead, this paper offers some thoughts about issues and challenges from a British angle, particularly that of the Council on Tribunals—itself now approaching its 50th anniversary.

Before elaborating, something should be said of the Council on Tribunals and its connections with the Administrative Review Council.

It may be going too far to say that the British Council on Tribunals and the Australian Administrative Review Council are sister organisations, but they certainly have quite a lot in common—more, in fact, than I had myself fully appreciated until recently.

The British Council on Tribunals was created in 1959,^[1] following the publication, in July 1957, of the report of a Committee which had been asked to look at the working of tribunals and inquiries established under statute for the purpose of ministers’ functions. The Committee was chaired by Sir Oliver Franks and has been known ever since as the Franks Committee.

The Franks report was a significant development in the history of British administrative justice, establishing the principles of ‘openness, fairness and impartiality’ as watchwords for how tribunals ought to operate. The Council was given a very broad remit, which is, broadly speaking, to ‘oversee the constitution and working of tribunals’ with a view to ensuring that these principles of openness, fairness and impartiality were applied in practice.

So far as the Administrative Review Council is concerned, for its early history I am indebted to Professor Dennis Pearce and the lecture he gave on the occasion of the ARC’s 25th anniversary proceedings in 2001.^[2] What is clear from that—and even clearer from the earlier contributions today—is that the 1971 report of the Commonwealth Administrative Review Committee, the Kerr Committee, was at least as seminal in Australia as was Franks in Britain.

Professor Pearce observed, ‘The Kerr Committee was clearly influenced in its recommendation for the establishment of an ARC by the experience in the United Kingdom of the Council on Tribunals’. And, although the two organisations have somewhat different remits—reflecting the differing contexts in which they arose—there is undoubtedly a commonality of spirit in their approach to their work.

I note that the Hon. Attorney-General is reported to have said at the ARC’s first meeting that ‘It is important that this Council be seen by the public as the expert body designed to be a watchdog for the citizen, to ensure our system is as effective and as significant in its protection of the citizen as it can be’. Those are words which could have been uttered by many members of the Council on Tribunals about their own organisation over the years.

What is also clear from Dennis Pearce’s account is that our two organisations have had a variety of problems in common over the years. Both organisations have limited resources—a part-time membership and a small secretariat—which means that we must make careful strategic choices about where best to focus our energies. Indeed, we have both experienced times when secretariat staffing has fallen to a level that made it difficult for us to continue to function effectively.

Our relationship with government has also at times been a sensitive issue for both of us. Sometimes we have felt that government has not paid sufficient attention to our advice. And, as small organisations operating at arm’s length from government, we have been anxious to preserve the appearance, as well as the reality, of an appropriate degree of independence from the government departments that sponsor us, appoint us and pay for us.

We have both been concerned to find ways to ensure that the voice of the ‘user’ of the administrative justice system is heard in our deliberations, whether through the balance of the membership or through other forms of engagement or consultation—something which seems to have been very well developed here.

For all those and other reasons, I think many of us feel that there are particular synergies between the British and Australian administrative justice scenes that make it particularly worthwhile to keep up to date with developments in the other’s jurisdiction and look for lessons that might be useful at home.

Another experience we have in common is being ourselves the subject of review. The ARC was reviewed by a select committee in 1996–97. The Council on Tribunals was subject to a Cabinet Office quinquennial review program in 1991 and 1997. Then, most significantly, it was reviewed again in 2001 as part of the wide-ranging Review of Tribunals undertaken by Sir Andrew Leggatt at the request of the then Lord Chancellor, Lord Irvine of Lairg.

Sir Andrew visited Australia in connection with his review and was clearly both impressed and influenced by the work of the ARC—a rather neat return of the compliment paid by the influence here of the British experience some 30 years earlier.

It would not be appropriate here to describe in detail the many recommendations of the resulting Leggatt report. It was, however, the most important since Franks and led to the creation, earlier this year, of a Tribunal Service within the Department for Constitutional Affairs. It provides unified administration to the largest tribunals, thus bringing our structure somewhat closer to the model of Australia’s Administrative Appeals Tribunal, though with the significant difference that, for constitutional reasons, Australia’s AAT is seen as part of the executive whereas the British is seen as part of the system of justice.

The review also led to government plans to enable the Council to evolve into an Administrative Justice and Tribunals Council with a wider remit, to ‘review the relationships between the various components of the system (in particular ombudsmen, tribunals and the courts)’ in order to ensure that the system as a whole satisfactorily reflects the needs of users. This change is awaiting legislation to be passed by Parliament, but a Bill has been published in draft, and the Council has been developing its work in a way which will equip it to fulfil the intended wider remit. This will no doubt give it even more in common with the ARC.

Turning now to the future, rather than attempting to talk about the challenges in Australia, this part of the discussion will talk a little about the challenges we face in Britain, the issues we at the Council want to focus on, and the kind of organisation we should aspire to be.

Two major themes emerged from the Leggatt report that did not feature so prominently in Franks. First was the emphasis on the needs of users: the Leggatt report was in fact entitled Tribunals for Users.

Although, as noted, the Council has always had the needs of users of the system in mind, Leggatt emphasised the need to put the needs of users at the heart of the system and at the forefront of the Council’s work. In response to this the Council has been making changes to its working methods. A User Issues committee of the Council was set up last year and that committee organised a series of workshops around the country for organisations that support the users of different tribunals. The main aim of these workshops was to consult on the abovementioned changes to government policy in relation to tribunals in order to provide feedback to the government. The workshops were also a deliberate attempt by the Council to work in a different way, to raise its profile in the advice sector, and to forge new relationships.

The second major theme to emerge from Leggatt was that of independence. Before the Tribunals Service was created, some of the largest tribunals were part of the departments whose decisions were the subject of the appeals the tribunals were hearing. Leggatt took the view that where such arrangements existed ‘every appeal is an away game’ for the user. It is, I may say, a view I have shared ever since I was the minister responsible for the social security appeal system some 20 years ago, and we made some initial moves to enhance that system’s independence.

The manifest independence of the judiciary—in particular, the arrangements for judicial appointments—has been another significant element of the independence theme. At the time Leggatt was writing, major reform of the judicial appointments system was under way. It led ultimately to the creation this year of the Judicial Appointments Commission, which now makes most tribunal appointments. Its remit is to select candidates for appointment to judicial office on merit, independently of government, through fair and open competition using the principles of openness, fairness and merit.

New themes for the Council to address also emerged from the government’s response to the Leggatt report. Government accepted the need for structural changes but wished to set them in the context of a wider strategy that it summarised as ‘proportionate dispute resolution’. It sought ways to help people avoid problems and legal disputes in the first place, to improve and simplify the decision-making processes that result in tribunal hearings, and to promote the development of a range of tailored dispute resolution services that avoid ‘the expense and formality of courts and tribunals where this is not necessary’. From discussions with the Commonwealth Ombudsman and others, it seems that this effort is relevant to Australia too.

The Council is only just beginning to tackle what is potentially a very big agenda. The ombudsmen and complaint handlers themselves are encouraging the Council to think more about their role in the administrative justice landscape. Some argue that the boundaries between complaints and justiciable disputes are not always clear cut and that the ‘ombudsman model’ may be better fitted to some of the disputes to which the traditional ‘tribunal model’ is currently applied.

Some ombudsmen are also critically commenting on where the ‘boundaries of the administrative justice landscape’ ought to be drawn. The position with regard to public sector ombudsmen seems clear enough; however, many feel that there should be a place for those in the private sector who are nevertheless part of the statutory arrangements for underpinning confidence in a particular industry. The same issues also seem alive in Australia.

As to the kind of organisation the Council should be, Sir Andrew Leggatt proposed in his report that the Council on Tribunals should become ‘the hub of the wheel’ of administrative justice. Although it wasn’t wholly clear what he meant by this, we frankly rather liked the phrase and have often repeated it.

The Council sees its facilitative role as increasingly important. It aims to bring together the interested community and has put a significant amount of its energy in recent years into conferences, workshops and events. The Council’s recently launched electronic magazine also provides a forum for news and the exchange of views. In that respect it is perhaps seeking to catch up with the ARC, which has been producing Admin Review for some years.

In addition, the Council has been developing the way in which our relationship with government operates. To an important extent, the current relationship is best described as ‘collaborative’. The Council was very supportive of the creation of the Tribunals Service. I sat on the government’s Programme Board to oversee the implementation process, while several members of the Council also sat on implementation boards for some of the transferring tribunals. The Council saw this as contributing to its function of providing advice to government, but in a rather more hands-on way than has historically been the case—recognising that ‘independence’ does not necessarily mean standing back and making comment from a distance and that influence can often be most effectively achieved by constructive engagement as policies and processes are in their formative stages.

The Council has adopted a collaborative approach with other organisations too, working in partnership with the Judicial Studies Board, the Disability Rights Commission, and currently with the British and Irish Ombudsman Association on various projects. It seems that this pattern is set to continue; partnership working of this kind is an excellent way to get things done and will become increasingly important in the Council’s intended wider role.

Another feature of work in recent years which will also be increasingly important is an emphasis on developing and articulating general principles. Several years ago the Council published a framework of standards for tribunals; more recently it updated its generic guidance on the drafting of procedural rules. This is another trend which is set to continue, and the Council expects to be seeking principles that can help fulfil its wider remit and ensure its advice is consistent and soundly based. It is already contributing to the work of the British and Irish Ombudsman Association on the principles of good complaint handling.

Whether or not this amounts to becoming ‘the hub of the wheel of administrative justice’, it at least gives a flavour of how the Council’s approach to its task is evolving in its British context.

I have been around long enough in government, and now in related areas of public service, to know that there is almost never an area in which institutions, processes and approaches can simply be picked up from one country, culture or jurisdiction and transplanted to another. But it is clear that these matters are much under discussion here in Australia, just as they are in the UK. ‘Administrative justice’, however defined in detail, is a topic that is not going to go quiet in either country. The interest of our citizens in what historically was called ‘the redress of grievances’—in the terminology used here earlier, ‘having a fair go’—will continue to grow.

I hope these reflections from the United Kingdom will have been of at least some interest. They certainly come with renewed congratulations to the ARC on its past 30 years and the warmest good wishes for its future—in which I hope that one feature will be the continued strengthening of the relationship between your Council and ours.

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^[1] Took office on 3 December 1958. First meeting on 14 January 1959.

^[2] Administrative Review Council 2002, Record of 25th Anniversary Proceedings, ARC, Canberra; Pearce, D 2001, ‘Administrative Review Council 25th anniversary presentation’, 6 December, p 17.