An overview of UKAJI’s consultation paper
Since starting work nearly three years ago, UKAJI’s primary tasks have been to bring together researchers, research users, policy makers, practitioners, and others to encourage more empirically based research into administrative justice and to design an agenda for future research. This blog post summarises our consultation paper, which results from that engagement. Responses to the consultation will contribute to the research roadmap we will propose for future research needs in administrative justice.
Our key learning points are that coordination of research is needed, among researchers and research users and research funders and commissioners; that the current context brings new and untested pressures onto those who use and work within administrative justice; and that research should focus on overarching principles, including fairness, accountability and human rights. Our consultation paper identifies in particular the challenges of digitalisation and the priorities of principles, people, processes and information. We set out what we think these challenges and priorities are and invite robust and honest feedback to the consultation paper by 30 September 2017.
Section 1 – Where we’ve been
1.1 The importance of empirical research into administrative justice
This section of the consultation paper begins by explaining that the significance of research in this area is rooted in the scale, relevance and reach of administrative justice, all of which suggest the need for a proactive approach to research.
In terms of scale, administrative justice directly affects far more people than the criminal or civil justice systems. In terms of relevance, it concerns decisions affecting many areas of our lives – some relatively routine, concerning matters such as parking offences; others of vital importance to people’s living standards, such as social security, social care and health, schools and housing; and others concerning fundamental rights such as liberty, asylum and the right to information. In terms of reach, it extends beyond the court or tribunal systems and includes policy and its application, access to advice, and initial decision-making by central and local government departments and private-sector agents who deliver public services on their behalf.
Administrative justice is a way of looking at the interaction of people and the governments and other public bodies who make decisions about a wide range of aspects of everyday life. It incorporates thinking about system design. It is concerned with how policy is made and applied, with decision-making by public bodies, and with the ways that people can challenge those decisions. It is concerned with values of fairness, accountability, transparency and human rights.
Many of the features of the justice system, including those associated with the current reform programme such as digitalisation, online dispute resolution, and automated decision-making, are likely to have distinctive implications for administrative justice. For example, pilots trialed in one part of the system have implications for other parts; lessons learned from feedback on complaints can be translated across public services.
More broadly, administrative justice is about the way policy is delivered: the fairness and efficiency of the systems and whether they are delivering appropriate outcomes for people. Is public money being used to achieve the desired ends, for instance, and are people getting their entitlements? Are policy and its application designed to provide for a system that runs smoothly or to address the problems that people encounter, or both? Are decision-makers empowered to apply not just the law but also principles of fairness? These questions indicate that there is a need to evaluate and understand, through testing and empirical research, how systems work and how policy change impacts on different parts of the population: who may gain in the process and who may lose, and what the cumulative effects of this are.
Ours is not the first attempt to map research needs concerning administrative justice, and this paper may be placed in the context of previous work done. This section of the paper therefore describes the Nuffield Law in the Real World Inquiry in 2006 and the Research Agenda published by the Administrative Justice and Tribunals Council (AJTC) in 2013.
1.2 The road travelled so far
Our consultation paper looks at the empirical research in administrative justice that has been done in recent years. This overview gives an indication of the range and diversity of research in the field and helps to identify some of the challenges that we consider later in the paper. It includes research on system design, ombuds, users’ perspectives, access to legal aid and advice, initial decision-making, online justice, and feedback and learning.
Empirical research is ‘the study through direct methods of the operation and impact of law and legal processes in society, with a particular emphasis on non-criminal law and processes.’ Law in the Real World
Among the conclusions we reach about the road travelled so far are:
- Comparative studies within the UK, including research into the devolved tribunals operating in Scotland and Wales, are growing in importance as practice across the different UK jurisdictions diverges.
- Dispute system design is emerging as an area of research focus that underpins comparative analysis across approaches and systems.
- In order to design effective systems of redress, it is important to understand initial decision-making and administrative/internal review.
- Research tends to concentrate on the very small percentage of the population that makes use of tribunals, complaints procedures, judicial review and ombuds, and not on the vast majority of those who do not challenge decisions when they may gain by doing so.
- Legal needs surveys are costly and time consuming and have to be carried out regularly to understand change over time.
- On digitalisation, research has been relatively scarce, especially considering the significant impact of the reform programme.
- Collection of, and access to, data on the different forms of dispute resolution furthers understanding and enables comparisons to be made. There is increasing recognition, however, that lack of consistent data hampers comparisons and evaluation.
- Empirical research on ombuds shows particular interest in the diverse range of practices and standards among ombuds and complaint-handling schemes.
- In relation to tribunals, the government’s commitment to scope, develop and implement clear, evidence-based funding and fee models for tribunals has not been realised.
- Learning from mistakes, and using that learning to improve initial decision-making, has been a key concern of oversight bodies, yet research on this has been scarce.
Section 2 – Where we are now
2.1 The changing context
Events in 2017, not least the wide-ranging implications of Brexit, highlight the fast-changing context within which administrative justice issues arise. In this section of the consultation paper we summarise what we see as the primary contextual factors that impinge on research priorities and planning, including austerity, devolution, privatisation, and court and tribunal reform. We also consider the lack of an oversight body to influence the use of research evidence in the development of administrative justice.
The current programme of court reform raises significant research needs and opportunities, including those around the user experience, digitalisation and online dispute resolution (ODR). Our work with stakeholders illustrates that those involved in the reform programme recognise the value of robust, empirically based research to help inform the process of reform and to test its effectiveness.
Court and tribunal reforms may have led to greater coherence in the system especially in relation to appeals; however, in many ways the administrative system as a whole is becoming increasingly diverse and fragmented. An obvious example is in relation to the ability of devolved administrations to take different approaches with devolved powers. Devolution is a constantly changing process, not a single moment in time, and it offers unique opportunities to develop distinctive initiatives.
The increasingly porous divide between public and private poses a number of questions about accountability and transparency. There are also concerns about value for money and ultimately the impact on those who are subjected to privatised decision-making.
Universities must increasingly demonstrate that their research has impact beyond academia; most funders now expect this as well. The requirement for impact is likely to have stimulated interest in empirical research and incentives for researchers to work across disciplines and also more directly with practitioners and policymakers. However, it may also have increased competition for funding and shifted resource away from work that is not directed at achieving impact, making it more difficult for lone researchers or early career researchers who have yet to achieve a track record in empirically based funded research.
2.2 Challenges and obstacles
In this section of the paper, we set out the effects of several contextual and systemic challenges. These include capacity and expertise, funding of empirical research, and access to data from central and local governments and from ombuds and other redress mechanisms.
While there are healthy signs in the range of research on administrative justice, there is a growing need to increase capacity to undertake work that crosses disciplinary fields and responds to changing research needs, including in developing areas of research, such as the effects of digitalisation. Drawing a wider range of researchers into work related to administrative justice remains a challenge in part because many academics in fields such as education, social policy, government, economics and computer science do not identify as administrative justice researchers although their work is clearly part of that landscape.
Research is not only being conducted in universities but within government departments, non-governmental organisations (NGOs), redress mechanisms (e.g. ombud schemes) and by practitioners. These groups bring valuable expertise and insights but may welcome input on methodologies and awareness of potential funding sources.
Capacity and funding are linked. Undertaking empirically based research is likely to be costly both in terms of time and financial resource, and securing adequate funding is a constraint, in particular for early career researchers. The decline in central government funding for research of direct importance to government departments represents a key change in the funding landscape.
The role of funders in setting the research agenda – which in turn provides the agenda for universities to follow – is another necessary piece in the capacity jigsaw. More needs to be done to persuade a broader range of potential funders to champion administrative justice research as a priority area. Increasing funding opportunities may help attract a wider pool of researchers. Funders also need to be more agile in the consideration of applications to allow for large-scale and small-scale projects and to allow for quicker projects that respond to urgent needs.
Difficulties in accessing data hamper empirical research. Over the years, numerous research projects (e.g. on immigration, mediation, court scheme pilots, judicial review) have been conducted with essential support from government departments. More recently, while there remain examples of excellent cooperation between departments and academics, many researchers have experienced obstacles undertaking research involving government departments. Some of these are structural; others are about resources or organisational cultures.
Section 3 – Where we need to go
Where has all this led us? This section of the consultation paper addresses the question of where we need to go in two ways: an overall look at the needs of the system, in terms of design and institutional approach, and the specific priority areas for research.
3.1 A fresh strategic and institutional approach
One of the key learning points from our work in the past three years is that coordination and oversight are needed in order to take a holistic and forward-looking perspective of research needs and priorities. Without a body capable of ensuring that the research agenda keeps pace with change, there are inevitable risks that new and emerging research needs will not be met. A fresh strategic and institutional approach to research on administrative justice is needed.
During our work we have seen the value of research, but we have also seen a variety of situations where research has been less effective than it might have been and situations where opportunities, including those available to government departments, to evaluate reforms, have been missed. One of the lessons drawn is that data collection, evidence gathering (including piloting), and evaluation should be built into system design and planning rather than be left for post-hoc research.
We have considered whether, in order to promote these goals, there is a need for a body with appropriate research expertise and overview of ongoing research to provide information and access to resources (such as those as currently provided by UKAJI) and to enable policymakers, practitioners and academics to meet and liaise on research related issues. We set out what functions such a body might fulfil as part of this consultation.
3.2 Future research priorities
In collaboration with researchers, ombuds, advice networks and government, we have identified priority matters that have particular importance across administrative justice and that warrant special attention in research planning. We have grouped these under the following headings: principles, information, people, and processes. In this section we sketch out very briefly the issues that we see as being raised under these priority headings, including proposed research questions.
Inevitably there are many overlaps between these priority areas – e.g. exploring the impact of using data to shape system design, or studying the experience of users when human rights principles are applied to redress mechanisms. The synergies and overlaps illustrate the rich potential that exists for collaborative, multi-perspective and multi-disciplinary approaches to empirical research in administrative justice. Digitalisation and the challenges we have noted relating to digital justice and delivery of public services feature in all four priority areas. It is clear that this is a subject requiring coordination of research so that aspects of digitalisation are not investigated in an ad hoc, disconnected way.
Consultation questions and how to respond
The consultation paper includes specific consultation questions on the proposed issues and priorities. It also includes a question about additional comments and suggestions.
We welcome your views and feedback. The consultation paper includes a link to an online survey with our consultation questions. All responses to the survey will be anonymous. Note that there is no obligation to provide your email address in order to complete the survey.
Please respond by 30 September 2017. We look forward to hearing from you!
Why hasn’t the research carried out by Disabled People Against the Cuts been mentioned? They have much material and focus from a point of view of how the citizen is affected by government policy – in many cases the effect has been lethal. There is also no mention of the inquiry by the UNCRPD of the systematic violations of disabled people’s rights, and questions should be asked as to why/how did the UK’s administrative justice system fail to protect the most vulnerable in society since the coalition came into government. Then again, it is plain to see that this site views “administrative justice” as simply a tool for the implementation of government policy. There is no perceptive (and therefore research) from the citizen’s point of view at all, their experiences and what impact first instance decisions are having on their lives. Same attitude as the Administrative Justice Forum, being the MOJ that attitude is predictable, the Nuffield Foundation, allegedly inspired by AJTC, should have been different. Another organisation needs to be set up that examines “administrative justice” from the perspective of protecting the citizen from unfettered executive power, and which reexamines that old chestnut, which has become unfashionable in academic circles: the separation of powers.
Very important points, Robert, and ones we agree with. Thank you for highlighting the important research that isn’t mentioned in the paper – we know it’s only an indicative overview of what’s been done and many things that should be aren’t there – yet. The value of a consultation paper is to get this kind of valuable feedback to improve the roadmap. And your point about the need to examine administrative justice from the perspective of people is one we tried to capture but must highlight more clearly. You’ll see from our blog posts over the years that we’re interested in just the sort of re-imagining of admin justice that you suggest.