Justice: seeking a guiding hand

The administrative justice system touches the lives of all citizens across Scotland. It does so far more than the civil and criminal justice systems – social security, mental health, school placements and exclusions, criminal injuries compensation, immigration and asylum, taxation, parking, valuation, employment disputes – yet is a policy area that receives significantly less attention than other areas of the justice system.

With the publication of a discussion paper on a principles-based approach to administrative justice, the Law Society of Scotland hopes that this will change. We are consulting through the autumn, and are keen to hear views from our members, and from across civic Scotland about whether there is the scope across this wide range of different areas for a shared set of principles.

Shared principles?

The scope of administrative justice is broad. It covers, in particular, the variety of different dispute resolution processes after a decision has been made, for instance tribunals, courts and ombudsmen. It can also include the processes and procedures by which initial decisions are actually made, and the review processes undertaken after that stage, such as the use of mandatory reconsideration in social security disputes. Indeed, in terms of first instance decision-making, there has been much focus in recent years around the need to get these initial decisions right first time, to avoid the time and cost of the processes that otherwise follow. An accurate assessment of a person’s eligibility for social security, for instance, avoids the time and cost of a further review process, or a tribunal hearing, and the cost and anxiety to the person affected by that decision.

There should be expectations for what interaction with the administrative justice system involves, so that people know how they will be treated if they raise an issue with a decision by a public body. The consequences of these decisions often have a significant impact on a person. We believe that it is crucial that this system has to be founded on principles, otherwise it risks lacking coherence, equity and fairness. However broad the system may be, we believe that an approach based on shared principles can be adopted.

The task may not be straightforward. The number of public bodies involved, and the way in which these bodies operate in either reserved or devolved areas, add significant complexity. Devolution means we have two distinct systems working simultaneously within administrative justice in Scotland. Our discussion paper focuses on devolved areas of competence, suggesting that a new, distinctly Scottish approach could be adopted.

The number of bodies involved in the administrative justice system is also huge. In order to operate effectively, these systems and organisations must work together in harmony, and that means there has to be clarity about the principles involved. Given the range of different interactions throughout the administrative justice system, and the different ways in which administrative justice disputes are resolved – from courts and tribunals to ombudsman services – ensuring that these principles are holistic will require creativity and innovation.

Trends

A principles-based approach will need to address current and future trends. The growing use of automated decision-making by public bodies, the move towards online applications and the outsourcing of key public services are among the many reasons why we need to be clear about the principles on which our administrative justice system is to work.

Because of the breadth of the system, embedding principles through cultural change or voluntary adoption is likely to be a difficult and necessarily gradual process. The Scottish Government, for instance, has looked to embed “right first time” principles into decision-making across public bodies, to ensure better quality decisions and to reduce the number of instances where people need to challenge or appeal these decisions. The benefit to the public and the cost savings for organisations are clear.

However, embedding principles across the administrative justice system may be helped by legislation. There have been examples of this in other jurisdictions, where principles of fairness and procedural standards have been implemented in law. There have also been examples closer to home, such as the principles-based approach taken for devolved social security in Scotland, recognising social security benefits and the entitlement to them as a human right and essential to the achievement of other human rights.

The Society’s Principles paper is aimed at kickstarting a discussion around the development of principles, and we look forward to hearing views. Our consultation is open until 21 November, the discussion paper is available online (access via the Society’s news page (26 September)), and views can be provided by email to policy@lawscot.org.uk or using our online survey.