Administrative justiceThe "administrative justice system” is the overall system by which decisions of an administrative or executive nature are made in relation to particular persons, including: Procedures for making such decisions; under which such decisions are made; and Systems for resolving disputes and airing grievances in relation to such decisions.
ADR see Alternative Dispute Resolution.
Alternative Dispute Resolution (ADR): method of resolving a dispute involving an independent person to look at the problem and seek a solution. It may involve conciliation or mediation, adjudication or arbitration. It involves a number of different processes, some of which may be under a statutory framework e.g. under part VII of the Housing Act 1996 and Social Security Act 1998. Internal assessment is available before the matter goes before a tribunal.
Anchoring bias: This refers to the tendency to be unconsciously and irrationally influenced by ideas to which one has been previously exposed. See these three references:
A literature review of the anchoring effect. (2011) A.Furnham & Hua Chu Boo. Journal of Socio-Economics 40: 35–42.
The Last Word in Court--A Hidden Disadvantage for the Defense. Englich et al. (2005) Law and Human Behavior, 29: 705-722.
Thinking, Fast and Slow. Daniel Kahneman (Penguin)
Bodies under jurisdiction: describes public bodies under the jurisdiction of the SPSO. (BUJs – or ‘budgies’ to the SPSO).
Contempt prior to investigation. The phrase is commonly attributed to Herbert Spencer. However “Contempt before investigation” was actually written nearly a century earlier by the philosopher, William Paley, whose book Evidences of Christianity contains the following sentence: “Contempt prior to examination is an intellectual vice, from which the greatest faculties of mind are not free. Paley was writing about Romans who scoffed at early Christianity.
Creatures of statute (also known as creatures of the state) are legal entities, such as corporations, created by statute. Creatures of statute may include municipalities and other artificial legal entities or relationships. Thus, when a statute in some fashion requires the formation of a corporate body—often for governmental purposes—such bodies when formed are known as "creatures of statute." The same concept is also expressed with the phrase "creature of the state. (from Wikipedia)
Crossman catalogue: a list of examples illustrating the meaning of ‘maladministration’ (see below): bias, neglect, inattention, delay, incompetence, inaptitude, perversity, turpitude, arbitrariness and so on.
Duty of candour: As defined in Robert Francis’ report, candour is 'The volunteering of all relevant information to persons who have or may have been harmed by the provision of services, whether or not the information has been requested and whether or not a complaint or a report about that provision has been made.' It has been introduced more generally in the NHS.
Hanlon's razor is an aphorism expressed in various ways including "never assume malice when stupidity will suffice". It is said to have been named after Robert J. Hanlon.
Local Government and Regeneration (LGR) committee: One remit of this committee is questioning the SPSO about the annual report.
The LGRC is now the Local Government and Communities Committee
Maladministration: This is what the SPSO says of this:
While the SPSO Act does not give a definition of maladministration, we use the following as examples of the kind of failings that come under the heading of maladministration:unreasonable delay, rudeness, failure to apply the law or rules properly.
There may be other failings that are also ‘maladministration’ – the most quoted definition is that of a Cabinet Minister, Richard Crossman, who in 1967 who listed 'bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude and so on'. However, as a judge - Lord Denning - noted in 1979 'and so on would be a long and interesting list, clearly open-ended, covering the manner in which a decision is reached or discretion is exercised ...
Maladministration and Service Failures
For anyone complaining of these, for example to the SPSO, it is important to know what these terms mean. Misunderstanding them can sometimes result in the submission of invalid complaints.
The Ombudsman Act says that the SPSO can only investigate a complaint relating to maladministration or service failure, which a member of the public feels has caused them injustice or hardship.
The Act does not define 'maladministration'. A dictionary definition of the term is 'bad, inefficient or dishonest administration'. This can cover things like unreasonable delay, rudeness, or failure to apply the law or rules properly. Further examples (the so called 'Crossman' and 'Reid' lists) can be found in an Annex to the Scottish Executive document A modern complaints system: The new Scottish Public Services Ombudsman.
The term 'service failure' covers failure in a service provided or failure to provide a service that should be provided.
The Ombudsman Act says that the SPSO cannot question the merits of a decision taken without maladministration. This means we cannot look at a complaint just because somebody is unhappy about something a public body has done (or not done). There has to some evidence of maladministration or service failure. Also, although we can look at whether the law's been applied properly, we don't interpret the law; only the Courts can do that.
A Scottish Government web page gives examples:
Annex B Examples of maladministration
The term 'maladministration' is not defined in the Scottish Public Services Ombudsman Act 2002. Nor was it defined in previous Ombudsman legislation, e.g. the Parliamentary Commissioner Act 1967. When the 1967 Act was being taken through the UK Parliament, Mr Crossman, as Leader of the House of Commons, gave the following examples of maladministration:
'bias, neglect, inattention, delay, incompetence, ineptitude, perversity, turpitude and arbitrariness and so on'.
This is known as the 'Crossman catalogue'.
Additional examples of maladministration were quoted in the UK Parliamentary Ombudsman's annual report for 1993:
- rudeness (although that is a matter of degree);
- unwillingness to treat the complainant as a person with rights;
- refusal to answer reasonable questions;
- neglecting to inform a complainant on request of his or her rights or entitlements;
- knowingly giving advice which is misleading or inadequate;
- ignoring valid advice or overruling considerations which would produce an uncomfortable result for the 'overruler';
- showing bias because of colour, sex, or any other grounds;
- refusal to inform adequately of the right of appeal;
- faulty procedures;
- failure by management to monitor compliance with adequate procedures;
- cavalier disregard of guidance which is intended to be followed in the interest of equitable treatment of those who use a service;
- partiality; and
- failure to mitigate the effects of rigid adherence to the letter of the law where this produces manifestly inequitable treatment.
This annex is not intended to be a comprehensive definition of maladministration - it is simply a list of examples which have been used in the past. Further definitive guidance on matters which may be covered by the term maladministration may be produced by the Ombudsman in due course.
Mediation is where an independent third party helps the parties to reach a voluntary resolution of a dispute.
Presumption of honesty rule: The Netherlands ombudsman starts investigations presuming that complainants are likely to be telling the truth.
Querulous, querulent: words applied to complainants judged to be vexatious and unreasonably persistent.
SPCB: Scottish Parliamentary Corporate Body
SPSO: Scottish Public Services Ombudsman
Structural independence: a situation where officials are not called upon to criticize or judge present or former associates, colleagues etc. (See the Kevin Ruddy case—a landmark ruling that police complaints handling in Scotland had breached the European Convention on Human Rights because of a lack of independence. Recall also the public concern overFiona Woolf who resigned as the chairman of the UK government's child abuse inquiry).
Unconscious incompetence: incompetence resulting from unawareness of what one is ignorant.
Ultra vires - beyond one's legal power or authority.