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Chapter

Cover Public Law

18. Administrative Justice: Tribunals and Ombuds  

This chapter considers the main ways in which disputes between individuals and public bodies are resolved outside the court system in what is widely referred to as the landscape of ‘administrative justice’. The discussions cover initial decision-making; accessing the administrative justice ‘system’; and the two pillars of administrative justice—tribunals and ombuds.

Chapter

Cover Introduction to the English Legal System

6. The administrative justice system  

This chapter focuses on administrative justice. It reflects on the nature of administrative law and the role it plays in modern society, overseeing the relationship between the citizen and the state. Once again adopting the holisitic approach, the chapter discusses not only the role of the courts, but also the tribunals, ombudsmen, and other bodies and processes that together make up the institutional framework of administrative justice. It notes some of the key changes being introduced as a result of the Transformation Programme and the response to the COVID-19 pandemic. It also considers the particular responsibilities of Members of Parliament in holding the Government to account. In addition, it asks who has general oversight of the system and whether current oversight arrangements are adequate.

Chapter

Cover Administrative Law

12. Natural Justice and Legal Justice  

Sir William Wade and Christopher Forsyth

This chapter first discusses how the courts have devised a code of fair administrative procedure based on doctrines which are an essential part of any system of administrative justice. It then explains the concept of administrative justice and natural justice; natural justice in the common law; the European Convention and natural justice in administrative proceedings; and the curative effect of access to a court of ‘full jurisdiction’.

Chapter

Cover Wade & Forsyth's Administrative Law

12. Natural Justice and Legal Justice  

Sir William Wade, Christopher Forsyth, and Julian Ghosh

This chapter first discusses how the courts have devised a code of fair administrative procedure based on doctrines which are an essential part of any system of administrative justice. It then explains the concept of administrative justice and natural justice; natural justice in the common law; the European Convention and natural justice in administrative proceedings; and the curative effect of access to a court of ‘full jurisdiction’.

Chapter

Cover Administrative Law

12. Tribunals  

Panels, committees, tribunals, referees, adjudicators, commissioners, and other public authorities decide many thousands of disputes each year over (for example) entitlement to benefits, or tax liability, or political asylum, or the detention of a patient in a secure hospital. The massive array of agencies reflects the great variety of benefits and burdens that twenty-first-century government assigns to people. The array had no overall organization until 2007, when Parliament transformed it into a complex system. This chapter explains the benefits of integrating these decision-making agencies in the new system. The law needs to tailor their structure, processes, and decision-making techniques to the variety of purposes they serve. And the law needs to achieve proportionate process by reconciling competing interests in legalism and informality in tribunal processes.

Chapter

Cover Public Law

16. Administrative Justice: Tribunals and Ombuds  

This chapter considers the main ways in which disputes between individuals and public bodies are resolved outside the court system in what is widely referred to as the landscape of ‘administrative justice’. The Chapter explains the nature and importance of administrative justice, including the need to ensure good quality and just initial decision-making by public bodies; the challenges faced by those accessing the administrative justice ‘system’ to question initial decisions; and the two principal pillars of the administrative justice system tribunals and the use and role of public sector ombuds. It also contains a case study based on the Windrush scandal.

Chapter

Cover Public Law Directions

14. Challenging government action  

This chapter focuses on the administrative justice system. Administrative justice refers to the systems that enable individuals to resolve complaints, grievances, and disputes about administrative or executive decisions of public bodies, and to obtain redress. Grievance mechanisms exist to achieve redress and to ensure accountability and improved public administration. They include formal court action through judicial review, but range well beyond the courts to informal, non-legal mechanisms. Whereas a public inquiry may concern a grievance of a larger section of the public and can raise political issues, an inquiry by an Ombudsman concerns a grievance of an individual or small group, with a different fact-finding process. Meanwhile, tribunals determine rights and entitlements in disputes between citizens and state in specific areas of law, such as social security, immigration and asylum, and tax.

Chapter

Cover Public Law

16. Ombudsmen  

This chapter discusses the role and work of the Parliamentary Ombudsman (‘Ombudsman’). The Ombudsman investigates complaints of maladministration that members of the public allege they have received from government departments. The chapter beings by considering the constitutional position of the Ombudsman, explaining how originally the Ombudsman was seen as a servant of the House of Commons, filling a gap left by traditional forms of government accountability provided by MPs who taken together lack the capability to investigate thousands of individual cases. The chapter outlines the procedures of the Ombudsman as provided for the Parliamentary Commissioner Act 1967, including the MPs filter, and how meaning of maladministration has developed in recent decades into ‘principles of good administration’. If the Ombudsman finds that maladministration has occurred in a particular case, then they can make a recommendation as to what the relevant government department can do to remedy the situation. If the government department does not accept the Ombudsman’s recommendation, then the Ombudsman can bring the matter to the attention of the House of Commons by laying a special report. This reflects how ultimately, the Ombudsman is part of the political, rather than legal process.

Book

Cover Public Law

John Stanton and Craig Prescott

With its fresh, modern approach and unique combination of practical application and theoretically critical discussion, Public Law guides students to a clear understanding of not only the fundamental principles of constitutional and administrative law, but how they are relevant in everyday life. Topics include: the UK Constitution; the institutions of government and the separation of powers; the rule of law; parliamentary sovereignty; the European Union; and Brexit. It also looks at the Crown and the royal prerogative; central government; Parliament; and devolution and local government. Next it presents a number of judicial reviews in the following: illegality, irrationality and proportionality, and procedural impropriety. Finally, it considers administrative justice, the European Convention on Human Rights and the Human Rights Act, and human rights in the UK.

Book

Cover Public Law

Andrew Le Sueur, Maurice Sunkin, and Jo Eric Khushal Murkens

Public Law: Text, Cases, and Materials offers a fresh approach to the study of constitutional and administrative law. It provides clear and insightful commentary on the key institutions, legal principles, and conventions, and blends this with a carefully selected and diverse range of materials and case studies. Part I covers the fundamentals of the constitution. Part II examines the executive function including protecting rights, government and accountability. Part III looks at the legislative function including primary and delegated legislation, European Union treaties, and legislative processes. Part IV considers judicial and dispute resolution functions in terms of the judiciary, tribunals, the ombuds human rights, and constitutional change. Part V examines the European Union, including the institutions of the European Union and joining and leaving the Union.

Book

Cover Public Law

Andrew Le Sueur, Maurice Sunkin, and Jo Eric Khushal Murkens

Public Law: Text, Cases, and Materials offers a fresh approach to the study of constitutional and administrative law. It provides clear and insightful commentary on the key institutions, legal principles, and conventions, and blends this with a carefully selected and diverse range of materials and case studies. Part I covers the fundamentals of the constitution. Part II examines the executive function including protecting rights, government and accountability Part III looks at the legislative function including primary and delegated legislation, European Union treaties, and legislative processes. Part IV considers judicial and dispute resolution functions in terms of the judiciary, tribunals, the ombuds human rights, and constitutional change; Part V examines the European Union, including th institutions of the European Union, joining and leaving the Union and European Law in the UK courts.

Chapter

Cover Public Law

15. Tribunals  

This chapter discusses tribunals and their role within the administrative justice system. It considers the purpose of tribunals, their advantages over the courts and the difference between tribunals and judicial review. The chapter than outlines the structure of tribunals, focusing on the two-tier system introduced by the Tribunals, Courts and Enforcement Act 2007, and the roles of the First-tier Tribunal and the Upper Tribunal. The ability to appeal from the First-tier Tribunal to the Upper Tribunal is then outlined together with the possibility of making an onward appeal on a point of law to the Court of Appeal and potentially direct to the Supreme Court. The chapter also analyses the development of ‘Cart judicial reviews’, which is when the Upper Tribunal is itself reviewed by the High Court, and scrutinises proposals to abolish this procedure. Different aspects of tribunal procedure, including oral or paper-based hearings, and different approaches to conducting oral hearings are also discussed. The chapter concludes by considering potential reforms, including the move to holding tribunals online.

Chapter

Cover Public Law

17. Public inquiries  

This chapter outlines the role of public inquiries within the broader context of administrative justice. The focus of this chapter is ad hoc inquires established under the royal prerogative or the Inquiries Act 2005 to consider a matter of public concern. Such inquiries fulfil several purposes, and supplement other forms of accountability. The chapter then discusses the key features of public inquiries, including the importance of the terms of reference which establish the remit of the inquiry. The next important question is the choice of chair or panel, and in particular as to whether a senior judge should be used to chair the inquiry. There are some circumstances when the use of a judicial chair is perhaps less appropriate, including when the inquiry is likely to veer into matters of political controversy. Other considerations include whether inquiries should sit in private or public, and the impact of an inquiries report once it has been released to the public.

Chapter

Cover Public Law

14. Introduction to Judicial and Dispute Resolution Functions  

This chapter provides an overview of the themes covered in Part IV of the book. Chapter 15 examines the constitutional position of judges within the United Kingdom, looking in particular at judicial independence and at the process by which judges are appointed. Chapter 16 looks at redress mechanisms outside the court system—a terrain often referred to as the landscape of ‘administrative justice’. Chapters 17–19 examines judicial review of the legality of actions taken by public authorities; Chapter 20 examines the use of human rights arguments against these authorities.

Chapter

Cover Administrative Law

4. Due process  

This chapter explains the overlapping ideas of natural justice, procedural fairness, and due process, and discusses the importance of comity between judges and administrative agencies. The elements of process are outlined: notice and disclosure, oral hearings, waiver, reconsideration, and appeals. Proportionality is presented as a general principle of the procedural duties of public authorities, and the chapter explains the three process values: procedural requirements can improve decisions, treat people with respect, and subject the administration to the rule of law. The chapter explains the irony of process: the law must sometimes require procedures that impose disproportionate burdens on administrative authorities, in order to protect due process. The chapter concludes with an explanation of discretion in process and of the potential dangers involved in administrative processes.

Chapter

Cover Public Law

16. Introduction to Judicial and Dispute Resolution Functions  

This chapter provides an overview of the themes covered in Part 4 of the book, consisting of Chapters 16 to 20. Chapter 17 examines the constitutional position of judges within the United Kingdom, looking in particular at judicial independence and at the process by which judges are appointed. Chapter 18 looks at redress mechanisms outside the court system—a terrain often referred to as the landscape of ‘administrative justice’. Chapter 19 examines the grounds on which the courts will judicially review the legality of actions taken by public authorities; Chapter 20 examines the use of human rights arguments against these authorities.

Chapter

Cover European Union Law

6. General principles of law and the Charter of Fundamental Rights  

This chapter discusses the overarching principles of the Union legal order, e.g. subsidiarity, proportionality, sustainability and equality; fundamental human rights in the Union (Court of Justice jurisdiction over Member State acts and rights against Union institutions or agents); and principles of administrative justice and good governance (legal certainty, non-retroactivity and legitimate expectations, rights of process and natural justice, transparency and legal professional privilege).

Chapter

Cover Constitutional and Administrative Law

16. Tribunals, inquiries, and the ombudsmen remedy  

This chapter begins by distinguishing between tribunals and inquiries. A tribunal is a permanent body that sits periodically, while an inquiry is something which is established on an ad hoc basis. Tribunals are empowered to make decisions that are binding on those parties subject to their jurisdiction; inquiries generally do not have formal decision-making powers. Tribunals are concerned with matters of fact and law, whereas inquiries are concerned with wider policy issues. The discussion then turns to the reform of the tribunal system; the former Administrative Justice and Tribunals Council; the origins of ombudsmen; the Parliamentary Commissioner; ombudsmen of devolved institutions; the Health Service Commissioner; the Local Government Commissioners; ombudsmen and the courts; and proposals for a unified Public Service Ombudsman service.

Chapter

Cover Administrative Law

19. Ombudsmen  

Mark Elliott and Jason Varuhas

This chapter examines the role of the ombudsmen in the administrative justice system. It first traces the origins of the ‘public sector ombudsmen’, including the Parliamentary Ombudsman, in the UK. It then considers the need for and the functions of the ombudsmen, along with the place of the ombudsmen in a changing administrative landscape. It also discusses bodies and matters subject to investigation by the Ombudsman based on the Parliamentary Commissioner Act 1967, including ‘maladministration’, and the Ombudsman's discretion to investigate. Finally, the chapter reviews the conduct and consequences of the Ombudsman's investigations, paying attention to judicial review of the ombudsmen's conclusions, and institutional matters pertaining to the ombudsman system.

Chapter

Cover Cases and Materials on Constitutional and Administrative Law

13. Statutory Tribunals  

This chapter examines the rationale for giving the task of resolving disputes to statutory tribunals rather than courts. It also describes the structure and organization for most tribunals and how they conduct dispute resolution adjudication. The hearing technique of redress is considered alongside administrative review, particularly the use of mandatory reconsideration in social security to illustrate the advantages and disadvantages of different methods of dispute resolution. Their place in a staged approach, proportionate dispute resolution, is outlined and the possible benefit of conceiving administrative justice as a system with a focus on users is raised as well as some of the issues raised for users by the adoption of digitalization. An outline is given of the oversight activities conducted by the non-statutory Administrative Justice Council.