Regulation inside government

Throughout the years, public administration in the UK has gradually developed, partly due to factors such as the fragmentation of central government, privatisation and the infusion of private sector notions into the public sector. The last 40 years have seen a similar expansion in mechanisms for citizens to complain against government departments and other public bodies. This is necessary to ensure that rules are properly applied, and that checks are made on the use of power so that individuals who are subjected to decisions of these bodies are safeguarded, and do not become 'submerged by bureaucracy'1.

This essay will consider how this function is performed by internal reviews and tribunals, internal complaints mechanisms and ombudsmen, and regulation inside government. It will analyse each of these mechanisms in turn, and in doing so take into account their effectiveness in providing remedies for citizens with grievances, and consequently securing administrative justice. One method for checking administrative decision making is through the use of tribunals. Largely emanating from the development of the Welfare State, the original function of the tribunal service was to resolve disputes that would otherwise go to the courts.

An important advantage of the tribunal is its specialised nature, as many members of the panel will be experts on the subject matter they are reviwing. Although considered a viable court alternative, there are several limits to their effectiveness. This is apparent from a report by the Franks Committee in 19572, in which tribunals came under review for the first time. It claimed that the tribunal system had various advantages over courts, mainly cheapness, accessibility, speed and expert knowledge, however this is not necessarily the case.

Although the lack of fees is an important principle in encouraging applicants, it can also result in ill-founded claims. Further research has also found that tribunals are not particularly quick, and vary in degrees of formality. Many individuals find that tribunals are more formal than they originally expected3, and those without representation are often at a disadvantage. This creates an unfair balance between parties, and an increase in difficulty for people to represent themselves, especially in more complex areas of law.

Limitations also exist in relation to independence: many tribunals are administered by the departments whose decisions are being disputed, and the fact that most clerks of tribunals are provided by these departments lead some to believe they have a significant influence over the decisions made4. A lack of openness is another weak factor of the tribunal system. Some tribunals are held in private, leading to suspicions about the fairness of their decisions. In addition, the reasons for these decisions are not always given, although some tribunals are obliged to provide a statement of reasons under the Tribunals and Inquiries Act5.

Other problems include the haphazard way in which the tribunal system has evolved, resulting in wide variations within practice. Another form of complaint mechanism which relates to the tribunal system is internal review, which occurs when the decision maker or the administrative body represented takes a second look at an issue. Harris accurately describes this as a 'continuation of the primary administrative decision-making process6', and in relation to tribunals it occurs as a way of reviewing a decision which the complainant is not satisfied with.

In high volume areas internal review acts as a filter, ensuring cases are resolved speedily and cheaply, which is especially important for claimants who want a quick resolution of their appeals. Although internal review seems effective in practice, many individuals fail to take up their right to administrative review of a decision. Cowan and Halliday7 researched the reasons for this failure, and found that the main causes were lack of awareness, scepticism and applicant fatigue. For example, some applicants do not read the letters they receive, or have problems with reading or understanding them.

Others are sceptical and assume it will be the same person reviewing the decision again. Finally, Sainsbury8 argues that applicant fatigue, when claimants grow too weary or stressed to pursue the complaint any further, is also a contributing factor, although this has been disputed9. Another way of ensuring the citizen is not submerged by bureaucracy is through the ombudsmen scheme. Since its introduction to Britain in the late 1960's, the concept of the ombudsman has gradually developed to become a fundamental aspect in both public and administrative law.

The Crichel Down Affair of 1938 prompted demand for a new complaints procedure, to handle disputes of this nature which fell between the courts and the political system10. This led to the creation of the Parliamentary Commissioner for Administration (later known as the Parliamentary Ombudsman and Health Service Ombudsman), who's role is to investigate complaints from members of the public who claim to have sustained 'injustice as consequence of maladministration'11, from action taken by a government body or department.

The classic formulation of the meaning of maladministration is the famous 'Crossman catalogue': 'bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude, arbitrariness and so on 12'. This was further updated in the Commissioners 1993 Annual Report. The ombudsmen act as an informal alternative to the courts – there is no need for lawyers and no case to prove. Due to the small number of complaints, the ombudsmen also have a highly personal nature, and it is possible for the holder of the office to supervise each case personally.

This could account for their cooperative and non-coercive approach. However, some limitations of the ombudsmen system exist which reduce their effectiveness. Presently, lack of enforcement powers mean that even if the ombudsmen find maladministration causing injustice, they cannot order the department to halt, delay or speed up action. To report on the result of the investigation seems to be the extent of the ombudsman's power, and this inability to enforce his decisions or to act on his own initiative causes some to question the value of the office.

Another drawback of the office of Commissioner is that individuals have no right of direct access to the Parliamentary Commissioner. This is because complaints have to be made through the appropriate Member of Parliament, known as the MP 'filter'. This MP filter is almost unknown in other ombudsmen systems (e. g. Health Service Commissioner), and acts as an obstacle to the Commissioner effectively promoting his services. It also means that it depends on the view of the constituency MP whether or not an individual's case is referred. It is also important to note here the use of internal complaints mechanisms.

The procedure of Internal complaints mechanisms was emphasised in the Citizens Charter 1991, which has been influential in leading to more effective internal procedures. Since this time, internal complaints mechanisms have proliferated. More people use internal complaints mechanisms than other methods, such as courts or ombudsmen, as they provide an informal, cheap and speedy resolution to challenge an administrative decision. They also have an advantage in that they ration access to the ombudsmen, leaving them to deal with the more serious cases.

One problem however is the lack of independence of the reviewer from the decision maker, which also seems to be apparent in other methods of complaint. A final mechanism in ensuring administrative justice is regulation inside government. The present day society is described by some as a 'regulatory state', meaning it puts heavy emphasis on rule-making, monitoring and enforcement 13. The task of regulation inside government itself is spread across a number of different types of bodies including audit agencies, inspectorates, reviewers and quality checkers.

Hood and Scott define regulation inside government as linking the regulatory state and the new public management state, and describe it as satisfying three main criteria: one public organisation is attempting to shape the behaviour of another public organisation; there is some form of arm lengths separation between the two; and the regulating body has some formal authority for its regulatory oversight14. Although regulation of government has become more formal, complex and specialised in many of its domains, there are still limitations to its effectiveness.

This is apparent from the four forms through which regulatory activity is said to be mapped: oversight, competition, mutuality and contrived randomness15. Perhaps the central element in regulating government activity is oversight. In recent years the practice of oversight has gradually increased, with regulators adopting a more confrontational approach towards their charges. However, it seems there is no common set of principles which applies to regulators within government. Hood et al16 found that external reviews were rare, and those that did take place tended to be on a case by case basis.

Another form of regulation within government is competition. Overseers often aim to promote competition between departments, agencies and colleagues, mainly over factors such as funds and promotions. Although regulators frequently employ competition as a means of improving performance amongst their charges, research shows that competition between the regulators themselves is infrequent. In fact, due to the overlap among them many regulators often collaborate rather than compete.

A third way in which regulatory activities inside government are mapped is through mutuality. However, it seems that within government there is an absence of communication between bodies doing related work. This is emphasised by the fact that regulators in government do not discuss practice across the various domains of regulation. The final form of regulation inside government according to Hood et al's description is contrived randomness. Regulators in government vary widely in the extent to which they consciously use random checks.

Although randomness is used by some supervisory bodies, for example the Prisons Inspectorate which uses a policy of unannounced prison inspections and visits, it does not seem to be generally applied across all areas of government. In conclusion, various mechanisms have been developed in order to check the decision making of the expanding administration, however, the way in which this function is performed is not entirely effective. The evidence that tribunals are cheaper and more accessible seems to have been overturned in future research, and in fact they now occupy much the same position as the courts.

The ombudsmen scheme is highly personal in nature but is not easily accessible, and regulation inside government has severe limitations. It seems that the process of internal reviews and complaints mechanisms are more effective than external procedures, as at present they provide a cheaper, informal alternative to other forms of review. Therefore, perhaps the aim should be to improve public awareness regarding these internal rights, and to create a more coherent system of practice across all areas of the complaints procedures and government.