By Joe Tomlinson and Tim Sandars
On 1 September 2017, the University of Sheffield hosted a workshop, supported by UKAJI, on work on administrative and social justice by early career researchers. Joe Tomlinson and Tim Sandars provide an overview of the workshop and the papers presented.
The New Voices in Administrative Justice Workshop was organised to provide an opportunity for early career researchers in the field of administrative justice to present papers to senior academics, practitioners and representatives from HM Courts and Tribunals Service (HMCTS). The structure of the workshop allowed for feedback and comment and the chance to link themes with the varied range of topics.
Jason Latham and Ian Rowe, of HMCTS, provided a helpful presentation to the workshop on how academics and government can best cooperate in order to further their respective research agendas. Among the questions explored were:
- How to support academics to shape topics with sponsorship in departments – does the system work?
- How can the system of transparency and statistical releases keep pace with reform?
- What topics is the academic community interested in researching?
Many of the papers presented at the event are to be published in a range of places. There will also be a themed issue of the Journal of Social Security Law in 2018, which will carry some of the papers that were presented (further details of this issue will be posted on the UKAJI website).
The UKAJI New Voices in Administrative Justice Prize was awarded to Dr Zach Richards of Keele University for his paper on legal consciousness and stories from the Australian Refugee Review Tribunal.
Overview of papers presented:
Jed Meers: The Palliative Effects of Discretion in the Welfare Reform Agenda: A Case Study of Discretionary Housing Payments
This paper provided a detailed assessment and critique of the function played by ‘discretionary housing payments’ – a form of local authority administered financial assistance – in the welfare reform agenda. The paper provided an overview of how the scheme has evolved, before critiquing a series of assumptions the courts have made about their operation. It went on to argue that discretionary housing payments are tied to a problematic localised form of austerity.
Dr Tatiana Tkacukova: Communication Challenges of Litigants in Person in View of Digital by Default Government Policies
This paper discussed language and communication-related challenges experienced by litigants in person throughout individual stages of legal proceedings. The main focus was on exploring opportunities and challenges online courts may potentially introduce. The paper argued that effective communication processes benefitting the end user should be incorporated into the digital system design from the very beginning.
Stephen Daly: Public Law in the First-tier Tax Tribunal and the Case for Reform
This paper sought to make the case for reform in respect of the claims which can be heard before the First-tier Tax Tribunal. The paper, first, demonstrated that the restriction around the hearing of public law issues in the Tribunal is unjustified. It further set out the benefits of loosening the restriction and proposed reforms necessary to bring the desired changes about.
Dr Zach Richards, Legal Consciousness and Administrative Justice – Stories from the Australian Refugee Review Tribunal
This article combined sociolegal legal consciousness and administrative justice scholarship to explore intersections between public officials’ attitudes towards legality and fairness. It presented a model depicting these relationships, which, whilst deductively derived, was illustrated through an empirical study with forty former members of the Refugee Review Tribunal Australia. The article concluded that it is when moving responsively ‘with the law,’ prioritising substantive and procedural justice simultaneously, that officials best embody the features of responsive governance for the promotion of just administration.
Dr Joe Tomlinson: Designing Digital Tribunals: Foundations for a Research Agenda
This paper explored the government’s current moves to introduce online tribunals. It outlined four important contexts that the reforms will be assessed against: the digital government context; the administrative justice and tribunals context; general developments in online dispute resolution; and the wider HMCTS reform agenda. The paper also outlined a range of issues which may require further research during the design and implementation of online tribunals.
Elizabeth O’Loughlin: Content Analysis of Judicial Decision-making
The focus of the paper – co-written with Dr Richard Kirkham – was on designing an empirical methodology to interrogate how judges make decisions, upon what grounds, and using which strategies; in short, the doctrinal strategies that judges employ in their decision-making. The study in question relates to a discrete area of case law: judicial review of ombudsman decisions. The aim of the broader research is to test a hypothesis that in the judicial review of ombuds decisions the courts are generally deferential to the work of ombuds, though they sometimes employ a distinct ‘institutional design’ interpretation of their role. In outlining the methodology for this research, the paper additionally presented a broader claim – that, with a few exceptions, there is currently a dearth of empirical research on judicial decision-making in UK academia.
Dr Huw Pritchard: Building a Welsh Jurisdiction through Administrative Justice
This paper considered the development of devolved tribunals in Wales, especially in light of statutory changes in the Wales Act 2017. Even though justice is not a devolved function, there are several aspects of administrative justice that operate on a devolved level and where the National Assembly for Wales and the Welsh Government have powers and functions. The paper highlighted the increased impartiality of and improvements to the administration of tribunals, appointments to tribunals, and making procedural rules, and considered how this may lay the foundations for further devolution of justice functions.
Byron Karemba: Judicial Scrutiny of Surveillance Warrants and the Incorporation of Judicial Review in the Investigatory Powers Act 2016
This paper examined the model of judicial scrutiny of surveillance warrants introduced by the Investigatory Powers Act 2016. It suggested that the mode of scrutiny is compromised by the incorporation of ‘judicial review principles’ in each part of the Act making provision for judicial involvement in this process. In addition, the paper contended that the incorporation of judicial review in the 2016 legislation represents a broader identification of juridical forms of accountability with the process of judicial review.
David Vitale: Political Trust as a New Language for Social Rights Fulfilment
This paper offered the concept of political trust as a valuable new lens or ‘language’ for the study of constitutional social rights fulfilment in contemporary social democracies. It contended that, given the well-established instrumental value of political trust to such democracies, there is a good argument (especially in light of the current global economic climate) that political trust should factor into our conversations about constitutional social rights fulfilment. Employing the relevant social science literature on the concept of political trust, it was explained what this type of lens or language would ultimately entail.
About the authors:
Dr Joe Tomlinson is a Lecturer in Public Law at the University of Sheffield and Research Director of the Public Law Project.
Tim Sandars is an MA Law student at the University of Sheffield and a Research Assistant on a Nuffield-funded project concerning procedural fairness in ombuds systems, led by Dr Richard Kirkham. He assisted with organising the workshop.