In December 2022, JUSTICE announced its Working Party, which will examine the impact of government outsourcing on administrative justice within the United Kingdom.
The Working Party’s first meeting took place on Tuesday 21 February 2023 and the work is expected to last around 12 months.
Around one third of all government public spending is now spent on outsourcing. Over the last few decades, governments of different political parties have increased the use of the private and voluntary sector to deliver public services, with the stated aim of greater efficiency through increased flexibility, expertise and competition.
However, there has also been significant criticism of certain outsourced contracts; with high-profile scandals, poor performance and clear examples where the rights of individuals have been breached.
Assessments and decisions relating to individuals access to state entitlements are now being carried out by private providers, often in areas that involve individuals with vulnerabilities and impact their human rights. The present legal framework around outsourcing is not working for these individuals. The contracts often do not contain basic safeguards for individuals, there is poor oversight and enforcement of contracts in any event and companies who repeatedly breach rights and/or administrative justice principles are often re-awarded key contracts.
There is a lack of transparency about who is involved in or marking decisions on behalf of government and individuals face considerable barriers to challenging the decisions or assessments of outsourced providers.
JUSTICE acknowledges that outsourcing is likely to play a considerable role in the delivery of key public services for the foreseeable future. The goal of this Working Party is therefore to make a series of practical recommendations for how outsourcing across all sectors could be done in a way that better upholds the public law principles at the heart of administrative justice and better protects individuals, particularly those in vulnerable circumstances.
The Working Party will look at all stages of the outsourcing process, including the initial decision to outsource, the contracting stage, how a contract can be better managed and enforced, and how outsourced decisions can be made properly accountable.
Through subgroups the Working Party will examine four distinct areas to identify examples of good practice, highlight where things have gone wrong and identify potential reforms which could be applied cross-sector. The sub-groups will focus on outsourced decision-making and assessments in the following areas: (i) benefits and social security; (ii) homelessness; (iii) prisons and immigration detention; and (iv) social care.
Chair: The Rt. Hon. Sir Gary Hickinbottom
Robert Allen, Partner, Simmons & Simmons
Richard Bonnar, Professor of Public Procurement Law, University of Leeds
Richard Craven, Senior Lecturer in Law, University of Sheffield
Tim Cummins, President of World Commerce and Contracting (‘World CC’) and Professor in School of Law at the University of Leeds
Eleanor Deeming, Scottish Human Rights Commission
Saara Idelbi, 5 Essex Court Chambers
Sophie Kemp, Partner and Head of Public Law, Kingsley Napley LLP
Dr Conor McCormick, Queen’s University Belfast
Shaheen Rahman KC, 1 Crown Office Row
Rick Rawlings, Professor of Public Law, University College London
Maya Sikand KC, Doughty Street Chambers
Diane Sechi, Senior Pro Bono Lawyer, Simmons & Simmons
Robert Thomas, Professor of Public Law, University of Manchester
Philip Armitage, JUSTICE (rapporteur)
We are grateful to Simmons and Simmons LLP for supporting this Working Party.