1. The AJTC is crucial for ensuring the distinctiveness of tribunals from the common law judicial process
Tribunal judges use a non-adversarial, or managerial, approach that is meant to assist the parties with their submissions. Parties are frequently unrepresented and research has shown this has a large impact on success rates. The more interventionist judging model is crucial for meeting, at least half-way, the mounting calls for state-funded legal representation before the tribunals. The more tribunals are viewed as courts, the more unsustainable the restricted access to Legal Aid will become.
The administrative justice landscape was explicitly meant, in the new system, to move beyond adjudication, for reasons of economy and justice. This orientation is distinctive and requires specialist review and guidance.
2. The MoJ will not presently be able to perform the same function
This distinctive culture is likely to be overlooked at the MoJ without the benefit of the AJTC expertise. In our experience, understanding the administrative justice field requires being conversant in a body of empirical literature and/or field experience in public administration.
Presently, the AJTC brings together people with expertise and extensive experience in areas that include experience in law and social science, the civil service, the Parliamentary Commissioner for Administration, advice sector and elsewhere. It is doubtful the MoJ could replace this expertise. The Council reviews the rules and operations of the tribunals, inquiries and other areas of the “administrative justice system,” something intentionally broader than the tribunals service. The AJTC regularly reviews legislation and regulations, and there is a statutory obligation for Ministers to consult the Council before adopting new rules for listed tribunals (TCE Act 2007, Schedule 7, Part III). Furthermore, the AJTC has special knowledge of how administrative justice connects with devolution arrangements. Again, there is little evidence that the MoJ has the capacity to absorb all these functions without the benefit of AJTC guidance.
3. The AJTC provides excellent value for money, and it plays a role in reducing the costs of dispute resolution
Even if the MoJ could ultimately take on such a role, it would not represent any greater value for money. The AJTC budget is approximately £1 million a year, over £400,000 of which is paid to MoJ and Scottish Government staff seconded for that purpose. That is excellent value for money for the oversight of a system in use by probably a majority of the population at some point in their lives.
As noted above, a key theme in the history of tribunal adjudication and in the recent reforms was keeping costs low. The AJTC facilitates this by exploring cheaper, less formal dispute resolution options that involve a lower likelihood of appeals than would be the case in a more judicialised model. MoJ staff, lacking the range of expertise of AJTC staff, would not be able to do this.