Richard Henderson: Vulnerable pay price for loss of scrutiny

Millions of people are subjected to decisions that radically affect their lives but which are effectively beyond scrutiny.

The administrative justice system touches on the everyday lives of many. In a wide range of areas, including social security, immigration and asylum, education and health, people frequently find themselves accessing the administrative justice system, which has undergone many changes in recent years. Often these changes have had significant impacts on some of the most vulnerable.

The number of tribunal cases in recent years exceeded the combined caseload of the civil and criminal courts and is an area that deserves much greater attention. Welfare benefits, immigration and social care are of particular, but not exclusive, concern.

Increasing controversy around UK Government decision-making in the areas of benefits entitlement, including the sanctions regime and immigration, has highlighted issues with both the quality and consistency of initial decisions, and problems facing those seeking independent review.

There are also issues around how the system should be funded. Employment tribunal fees in 2013 had a deep impact on access to justice and current Government proposals would increase immigration and asylum fees fivefold. Yet, despite evidence to show inadequate standards in decision-making, the body specifically created by the 2007 Tribunals, Courts and Enforcement Act – the Administrative Justice & Tribunals Council and the associated Scottish Committee (ACTJ) – was abolished in 2013.

The ACTJ’s principal functions included reviewing the overall system by which decisions of an administrative or executive nature are made.

We want a similar body reinstated – something should sit at arm’s length from government and be sufficiently resourced to allow it to exercise meaningful supervision. The need for effective Scottish-based oversight increases as the Scottish Parliament and Government take on further powers under the new Scotland Act.

As a number of systems reserved to the UK Government will be devolved, now is the time to ensure we have the necessary mechanisms to run the new business we will be getting.

The legal profession should also take a greater interest in these matters because of the impact they have on individual citizens, often the most disadvantaged. Core principles should underpin people’s rights in how they interact with the state and in the Law Society’s priorities document for the 2016 elections, we urge all parties to commit to these principles and, where required, legislate to ensure they are observed:

• The needs of those who use the justice system, including adequate representation where necessary, must be a central consideration

• Processes and procedures must be independent, open and accountable

• Problems must be resolved quickly and comprehensively

• Coherent and consistent outcomes must be well-reasoned, lawful and timely

We believe any policy aimed at achieving cost savings for the Scottish Courts and Tribunals Service should include a full assessment of the impact on access for users. The consequences of the current system are significant – we are seeing people without access to a fair disposal of their rights.

• Richard Henderson is Administrative Justice Committee Convener with the Law Society of Scotland. More information : www.lawscot.org.uk/priorities2016