Revisiting the turn to ‘users’ in administrative justice

By Joe Tomlinson

In this post, Joe Tomlinson explores critiques of the current focus on ‘users’ of administrative justice and suggests that grasping the multiple conflicting understandings of ‘user’ can help to clarify the underlying concerns about user-focused design.

In UK administrative justice circles, it would be easy to get the impression that we are all ‘user-focused’ now. Particularly since the 2004 White Paper on Transforming Public Services, the parts of the UK government concerned with administrative justice (notably the Ministry of Justice and HM Courts and Tribunals Service) have consistently spoken of building tribunals and other administrative justice systems to fit user needs.

There is no sign of change here either. A policy document published in late 2016—Transforming Our Justice System—announced a huge investment in the justice system and set out, among other things, a vision for online tribunals. Part of this vision involves online tribunals being ‘specifically designed to meet user needs’ and systems ‘focused around the needs of individuals so that claimants can be more confident that their needs will be understood’. Government departments, including the Ministry of Justice, are even adopting ‘agile’ or ‘design thinking’ approaches, which use techniques premised on the value of user-focused design.

The approach runs far beyond Westminster too. User-focus is increasingly important in devolved institutions and at local government level.

Often, commentators have seen ‘user focus’ positively, and research institutes are building agendas around the idea of doing ‘user research’. ‘Being user-focused’—or, perhaps more simply, ‘user-friendliness’—could be said to now be a key value of administrative justice, and is often used as an aspirational normative standard. While there is a growing—if still small—body of academic literature on users, there has been little discussion about user-friendliness as a value, even though it is often used as such.

There is, in the first instance, the basic question of who is the ‘user’? This could be a lay user, a lawyer, some other professional user (such as a welfare advisor), or even a judge. Typically, the term ‘user’ relates to the lay user. But, putting that question aside and adopting its usual meaning of focus on the lay user for the sake of discussion, the concept of ‘user-friendliness’ can represent multiple different ideas. This was particularly evident in the recent UK Supreme Court (UKSC) decision in UNISON, which appeared to offer a critique of focusing on users.

UNISON’s critique of ‘user focus’

UNISON has some trademark features of an instant classic in public law—it being high-profile in mainstream media, carrying significant practical effects, and advancing in-vogue talk of common law constitutional rights. The legal issue at stake was relatively simple. Section 42 of the Tribunals, Courts and Enforcement Act 2007 provides that ‘[t]he Lord Chancellor may by order prescribe fees payable in respect of’ various tribunals, including the Employment Tribunal and the Employment Appeal Tribunal. In 2013, Chris Grayling, the then Lord Chancellor and Secretary of State for Justice, used the section 42 power to make the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893). The effect of that Order was—stated in a broad fashion—that most people who wished to make use of the Employment Tribunals had to pay fees where, previously, no such fees had been payable. This led to a dramatic and sustained drop in the number of claims lodged in Employment Tribunals. There are three ways to measure demand for employment tribunals: volume of cases, volume of claims, and volume of jurisdictional complaints. Demand fell significantly upon the introduction of the fees, whichever of these measures is used. Overall, claims dropped by nearly 80% with the introduction of fees. The core legal issue before the UKSC whether the Order was lawful.

UNISON argued successfully that the Order was unlawful (having failed to win in the High Court and Court of Appeal)—with their central argument being that the Order impeded access to justice and that the Lord Chancellor’s order-making power, granted by section 42 of the Act, did not extend to impeding such access. At the heart of the case, therefore, was a question of statutory interpretation. Given the nature of the claim, issues of fundamental constitutional principle were engaged as part of the interpretive exercise. The UKSC offered a clear, unanimous judgment. In delivering the judgment of the Court, Lord Reed, in a passage on the ‘constitutional right’ to access to justice, stated the following:

The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the ‘users’ who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings. The extent to which that viewpoint has gained currency in recent times is apparent from the consultation papers and reports discussed earlier. It is epitomised in the assumption that the consumption of ET and EAT services without full cost recovery results in a loss to society, since ‘ET and EAT use does not lead to gains to society that exceed the sum of the gains to consumers and producers of these services’.

On the back of these observations, Lord Reed went on to explain ‘the importance of the rule of law, and the role of access to the courts in maintaining the rule of law’, and why, in his view, ‘the idea that bringing a claim before a court or a tribunal is a purely private activity, and the related idea that such claims provide no broader social benefit, are demonstrably untenable’. He furthered explained that ‘courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced’ and that function ‘includes ensuring that the executive branch of government carries out its functions in accordance with the law’. This function of courts was said to entail the requirement that ‘people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade’. That, he explains, is why ‘the courts do not merely provide a public service like any other… [a]ccess to the courts is not, therefore, of value only to the particular individuals involved’ and ‘[t]hat is most obviously true of cases which establish principles of general importance’. Lord Reed’s comments seem to suggest that focusing on users does not lead us to a better justice system, but to one where the UKSC feels the need to reprimand the executive and provide a Rule of Law 101.

At the heart of Lord Reed’s critique of the government is that, in their assessment of whether tribunal fees were a good idea, it focused too much on users as consumers of legal services and did not focus enough on the wider role that a user may play as a citizen in the maintenance of a good political community (through, in this instance, bringing a claim to a tribunals). Such an underlying mode of thought is apparent in multiple comments—perhaps most notably where he criticises the alleged ‘assumption [on the part of the government] that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the ‘users’ who appear before them’. As a somewhat technical aside, Lord Reed’s critique seems to be unduly sweeping in this case. The quote of the government referred to by Lord Reed—that ‘ET and EAT use does not lead to gains to society that exceed the sum of the gains to consumers and producers of these services’—does not make the claim that the employment tribunals ‘provide no broader social benefit’. Instead, it shows a balancing exercise where the broader social benefit has been recognised as part of a value judgment. Even if it had not been given enough weight in Lord Reed’s view, it would be too far to suggest the government did not recognise the social benefit the justice system can provide. Furthermore, a key element of the UKSC’s judgment is that tribunal fees had the effect of disadvantaging users accessing justice or, in other words, hampering users. It therefore seems that a more accurate criticism would be that the government pursued a policy on a misunderstanding of user needs, or in denial of negative impacts on users. However, that point aside, Lord Reed’s comments—when placed next to the generally positive way user-focus has been perceived in many quarters—presents some obvious tensions within the value of ‘user-friendliness’.

The two faces of user-friendliness

The problem appears to be that when ‘user-friendliness’ is deployed, it can represent multiple—and contradictory—understandings. There are at least two understandings which are commonly adopted. The first is that user-focus is a way of denying citizens active participation in the decision-making processes of the state by conceiving the justice system as something that is consumed as if were a private product. We can call this the ‘consumerist’ understanding. The second understanding is that the system should be convenient, accessible, and simple for lay users. We can call this the ‘accessibility’ understanding. Clarifying and drawing a distinction between these two aspects of the notion of being user-focused—by articulating its more specific meanings—may assist the administrative justice debate.

This distinction, by way of continued example, can help us make sense of Lord Reed’s comments on the perils of user-emphasis in UNISON. As explained above, Lord Reed’s comments present a tension. On the one hand, many concerned with administrative justice have championed ‘user focus’ as a means of improving access to justice. In this light, Lord Reed’s critique aimed towards ‘user focus’ would seem odd. It would seem especially odd given that the critique was offered as part of a wider discussion of the importance of the constitutional right of access to justice. But if we recognise that the concept of user-friendliness represents more than only the accessibility understanding, Lord Reed’s comments can be clarified. Specifically, they can be read as concern about the consumerist understanding of ‘user focus’. This reading is support by numerous points of the judgment. Lord Reed denounces the idea that ‘bringing a claim before a court or a tribunal is a purely private activity’. He also speaks about ways in which court cases—such as the landmark tort case of Donoghue v Stevenson—are not only ‘of value… to the particular individuals involved’ but also to the wider community. He directly speaks of the role of citizen in forming the law which regulates the community, that being said to be ‘most obviously true of cases which establish principles of general importance’. All of those comments map onto a concern about ‘user-friendliness’ in its consumerist sense. Understanding Lord Reed’s judgment on those terms therefore allows us to reconcile his critique of ‘user focus’ with the fact that the critique is situated in a discussion about the constitutional right of access to justice.

The size of the possible gap between these two faces of the same concept—‘user focus’—is evident in two articles by O’Brien, published in The Political Quarterly in 2012 and 2017 respectively. In the former article, O’Brien reflects on the 2010-2015 Coalition Government’s proposal to abolish the Administrative Justice and Tribunals Council (AJTC). At times, he casts the value of ‘user focus’ in a positive light. In the following passage, for instance, it forms part of his regret about the demise of the AJTC and ‘its vision of a transformed, and transformational, future’ that was to be ‘consigned to the Whitehall archives’:

The Coalition government’s decision to abolish the Administrative Justice and Tribunals Council (AJTC) in its Public Bodies Bill (now the Public Bodies Act 2011) brings to an end a brief period during which administrative justice had seemingly come of age. The previous government’s 2004 White Paper Transforming Public Services: Complaints, Redress and Tribunals for the first time in more than a generation had set out a vision for administrative justice that aimed to give it parity with civil and family justice: it spoke ambitiously of an administrative justice ‘system’ that would comprise not just courts and tribunals, but ombudsmen and departmental first-instance decision makers, too; it proposed as the guiding principle for the construction of this ‘system’ the principle of ‘proportionate dispute resolution’, in effect applying to administrative justice a ‘horses for courses’ philosophy; and it elevated the ‘user’ of the system to a position of pre- eminence at the expense of judges and administrators, for whose benefit other parts of the judicial system seem so often to have been organised.

In the same article, there is also worry about the notion of ‘user focus’:

The price, so far as administrative justice in particular is concerned, has been the adoption of a predominantly consumerist approach to justice that, whatever its merits in other fields, in the arena of public law diminishes the status of the actors, both individual citizen and state, by reducing them merely to the purchasers of dispute resolution services. The idea that there might be a public interest in the relationship between state and citizen that eludes the easy categories of a consumer transaction and that invites solutions that are not rigorously instrumental or pragmatic is in this, as in so many other areas of once ‘public’ life, largely alien to the zeitgeist. The consecration of ‘the user’ as part of the ‘new public management’ ethos has no doubt introduced a welcome re-balancing of priorities in favour of an element of ‘customer focus’, but the possibility that the word ‘customer’ might in this instance be a metaphor seems not to have much currency.

In his 2017 article, O’Brien revisits similar themes via a review of the Ken Loach film I, Daniel Blake (2016). The film follows the character of Daniel Blake and depicts his troubled interactions with the Department for Work and Pensions, concluding with his death from a heart attack as he waits at the door of a delayed tribunal hearing. In the film’s final scene, a passage written by Blake is read out at his funeral:

I am not a client, a customer, nor a service user. I am not a shirker, a scrounger, a beggar nor a thief. I am not a national insurance number, nor a blip on a screen. I paid my dues, never a penny short, and proud to do so. I don’t tug the forelock but look my neighbour in the eye. I don’t accept or seek charity. My name is Daniel Blake, I am a man, not a dog. As such, I demand my rights. I demand you treat me with respect. I, Daniel Blake, am a citizen, nothing more, nothing less. Thank you.

Drawing upon this impassioned message of rage against bureaucratic despair, O’Brien suggests it—and the message of the film more generally—provides cause to pursue a ‘reimagined sense of citizenship’ in the administrative justice sphere. He argues that Daniel Blake’s manifesto is:

[S]trong in its insistence that ‘citizenship’ must supersede other ways of characterising the relationship between the individual and the state, especially those informed by the language of the market-place: the depiction of the individual as ‘client’, ‘customer’ or ‘service-user’ is as a result to be abandoned.

In these passages and across both articles, O’Brien wrestles with the tensions within the value of being user-focused. He ultimately engages with both of its contradictory understandings: his apparent desire to welcome its recognition of accessibility concerns are coupled with a deep-seated reluctance to acquiesce to what he sees to be the implications of the consumerist dimensions of ‘user focus’.

Conclusion

Overall, I think we need to be careful with ‘user focus’ talk in administrative justice. The concept is a placeholder for at least two sharply contrasting meanings. The strongly contradictory understandings of ‘user focus’ outlined above demonstrates the imperative to be specific in articulating the underlying concerns when the concept is used. The notion of ‘user focus’ is, however, just one instance of where the grammar (that is, the words and phrases) surrounding administrative justice values lacks clarity. I develop a discussion on this wider theme in a recent article on ‘The Grammar of Administrative Justice Values’, which is available here.

About the author:

Dr Joe Tomlinson is a Lecturer in Public Law at the University of Sheffield and Research Director at the Public Law Project.