On 26 September 2022, the Law Society of Scotland (LSS) launched a discussion paper and consultation seeking views on proposed changes to the administrative justice system in Scotland. The paper outlines a principles-based approach to administrative justice, which the LSS has been developing since its 2018 general review of the administrative justice system. It also follows a previous discussion paper on the same topic in 2019.

The breadth of bodies and organisations involved in delivering administrative justice services is wide – indeed, it is likely that everyone will have involvement with the administrative justice system at some point in their life. It is important that public bodies and all those who undertake work on their behalf understand what the proposals by the LSS entail and have an opportunity to participate in the consultation process as, if overriding principles are adopted, they will become an integral part of working practices in first-instance decision-making, adjudicative processes and beyond. The LSS consultation and paper also represent an attempt to streamline a very complicated system and distil the most fundamental aspects into a framework that will hopefully assist in directing focus to the right areas in administrative decision-making.

We take a look below at the detail of the LSS proposals.

Overview of the paper

The paper recommends that a principles-based approach to administrative justice is adopted in Scotland via an Administrative Justice (Scotland) Act. It acknowledges that introducing principles could be done through cultural change or voluntary adoption but concludes that legislation would be a quicker and easier means of achieving this.

One of the drivers identified by the LSS for the adoption of a new approach is the impact the COVID-19 pandemic has had on administrative justice. Inevitably, the pandemic has brought significant implications for decision-making, reviewing and challenging processes, including in the justice system, and changes to these processes necessarily had to be made quickly – perhaps in some cases without thorough consideration of potential consequences. The pandemic has also increased the likelihood of individuals becoming involved with the justice system (particularly in the administrative justice sector) whilst in tandem posing difficulties for the system's ability to respond.

However, focus has now shifted to recovery from the pandemic and the LSS has taken the view that there is now an opportunity to take stock of lessons learned and fundamentally reimagine the administrative justice system.

What is administrative justice?

Part 1 of the discussion paper describes the 'administrative justice system', which covers a huge range of processes, bodies and areas such as immigration, employment, housing, social security and tax. This broad scope, combined with its scale and complexity, means it is difficult to pinpoint the parameters of the administrative justice system.

The LSS adopt the definition that was set out in the Tribunals, Courts and Enforcement Act 2007 (though that has since been repealed), which is that an administrative justice system is:

"the overall system by which decisions of an administrative or executive nature are made in relation to particular persons including…the procedures for making such decisions…the law under which such decisions are made, and…the systems for resolving disputes and airing grievances in relation to such decisions". (Schedule 7, para 13)

However, the paper notes that the above definition is not yet necessarily reflective of policy and practice in the UK. This definition of administrative justice is one element of the consultation on which stakeholders and members of the public's views are sought.

What would a principles-based approach look like?

The paper goes on to consider various aspects of what a 'principles-based approach' would look like and to consider where principles would be drawn from. In doing so LSS refers to principles developed by the Administrative Justice and Tribunals Council (AJTC) in 2012 and considers how the landscape has changed since then.

Equality and human rights

It is suggested that several principles may be drawn from across the equality and human rights framework in the UK. This includes the Human Rights Act 1998, the Equality Act 2010 and public law generally. Some of the principles the LSS suggest could be taken from the framework are: respect by the administrative justice system for human rights; ensuring practical and effective access to fair and public hearings and respect for protected characteristics. Other suggested principles are that decisions by public bodies within the law, follow the required procedures and be reasonable – reflecting the grounds for judicial review.

A comparative approach

Another aspect of the paper from which the LSS suggest principles could be taken is the comparative study they have conducted of principles-based approaches to administrative justice systems in other jurisdictions. Some key elements of such approaches they identified include procedural propriety, effective adjudication, a focus on the needs of users of the administrative justice system and a need for continuous improvement on the basis of lived experience.

Other aspects of the proposals

It is stressed by the LSS that, for an administrative justice system to be sustainable, first-instance decision-making has to be effective as well as adjudicative processes. They refer to the 'Right First Time' approach which has been recognised by the Scottish Government and describe it as "an example of the leadership required to drive this approach across public bodies". The LSS also suggest that, given the breadth, complexity and importance of the administrative justice sphere, scrutiny is needed to ensure this approach is followed, such as via audit processes.

Other recommendations include that a principles-based approach should encompass formal hearings in courts and tribunals, as well as informal or alternative dispute resolution mechanisms such as ombudsmen processes, and that the approach should cover all public services regardless of whether these are provided by public bodies or outsourced to private undertakings. The paper also suggests that a mechanism is needed to ensure duties under the principles are carried out, even if this is not directly enforceable in court.

Conclusion

Overall, if the LSS's proposals were adopted we could expect to see principles of the type described above set out in statute, aiming to ensure across bodies carrying out public functions, respect for equalities and human rights legislation, reasonable and procedurally proper first instance decision making and effective access to fair adjudication – whether formal or informal. Reflecting on the changed landscape in administrative justice, including the divide created by the increase in digital access to services and the use of automated decision-making or artificial intelligence in administrative processes, the paper designates the development of this system as "a more immediate challenge". The LSS consider that this approach would "transform administrative justice in Scotland as part of the renewal process in the wake of the current pandemic".

The consultation is open until Monday 12 November at 12 noon. To share your views, email [email protected].

Contributors

Christine O'Neill KC

Chair & Partner

Emily Tarbet

Trainee Solicitor