A UNIVERSITY VIEW

THE new First Minister, Mark Drakeford AM once said that his “first principle of social justice in Wales” is that “good government is good for you”.

A little known, but hugely important, means of ensuring good government is through a system of administrative justice. This is the name given to the law that governs public body decision-making, the methods available to people to resolve disputes with public bodies, and how public bodies learn from disputes to improve their services.

People wrongly tend to assume that no responsibility for “justice” has been devolved to Wales because there is combined England and Wales system of courts and judges.

However, with a growing body of law now made by the National Assembly for Wales, the Counsel General Jeremy Miles AM has argued that devolution of responsibility for justice and the creation of a separate Welsh legal jurisdiction will be “inevitable”.

Our research at Bangor Law School finds that this isn’t only a future development, but that it has already occurred in relation to the Welsh system of administrative justice.

Given its subject matter, administrative justice developed mainly alongside the growth of the welfare state after the Second World War. The more the state provides in terms of education, health, social housing and other services, the more we need law to govern how decisions about rights and entitlements are made, and how people can seek redress if they think public decisionmaking is poor or just plain wrong. Much of this law is now made by the National Assembly and Welsh Ministers.

Administrative justice is described as the “Cinderella” justice system as people don’t usually realise the law, dispute resolution mechanisms, advice and advocacy services, and learning from disputes to improve public services, actually form a system of justice (like civil or criminal justice).

To see administrative justice as a justice system we have to move away from the view that only courts dispense justice. For most people their first opportunity to complain about a public body’s decision will be through the body’s own complaint or review procedure; many of these procedures are now regulated by devolved Welsh law.

If a person remains dissatisfied after an internal procedure, they can usually appeal to a court or tribunal. Although the courts in Wales are administered by Her Majesty’s Courts and Tribunals Service England and Wales, there are growing differences in how some courts based in Wales operate and special rules that apply only to cases against public bodies in Wales.

There are also devolved Welsh tribunals that are judicial bodies administered by Welsh Government or by local authorities, handling disputes in areas such as education, mental health and agricultural land. Outside courts and tribunals there are other institutions such as the Public Services Ombudsman for Wales (investigating complaints) and Welsh Commissioners who champion better public decision-making in the areas of children’s and older people’s rights and the rights of future generations, or who regulate compliance with Welsh Language Standards.

This system of law, dispute resolution and championing better decision-making has developed haphazardly, making it sometimes difficult for people to understand what their rights are, and how they can complain, which can lead to lengthy disputes that are largely funded by taxpayers.

Our research, previously funded by the Economic and Social Research Council and currently funded by the Nuffield Foundation, aims to improve this situation by developing more coherent, accessible and fair laws and dispute resolution mechanisms. We encourage the National Assembly and Welsh Government to adopt a clear and principled approach to reforming the law applicable to public bodies and to public services, local government and devolved Welsh tribunal reform. We also recommend that the Assembly takes a greater oversight role, ensuring that haphazard development of law and redress does not continue.

Clear and accessible routes to challenge public body decisions give us a means to express our dissatisfaction with the state other than through the ballot box. As such good administrative justice goes hand-inhand with democracy and rights. With the Counsel General’s recognition that administrative justice can contribute to the goal of “a more equal Wales”, and with the expected new First Minister’s support for good administration as central to social justice, now is an exciting time to take our proposals for the Welsh administrative justice system forward.

■ Dr Sarah Nason, Lecturer in Law, School of Law, Bangor University