Brexit and Administrative Justice: An Early Analysis (Part I – A Framework)

By Joe Tomlinson

Brexit and Administrative Justice: An Early Analysis (Part I – A Framework)

In this series of three blog posts, initially prepared as an informal discussion paper for a Bonavero Institute of Human Rights seminar, I consider the relationship between Brexit, administration, and law. Each of these topics are vast. When put together, they are more than the sum of their parts. Things are made more complex by the fact that Brexit is a moving target and its implications for law and administration are only just emerging. With those reasons to be tentative in mind—but also keeping in mind the established value of general-level analysis of trends in law and administration—my focus here is on three simple questions that I think are of critical importance: (1) what is happening?; (2) what are the immediate implications of what is happening?; and (3) what will be the ‘new normal’ in law and administration once Brexit is complete (if it ever is)? In answering these questions, my focus is on novel trends closely linked to Brexit developments. Specifically, new trends we are seeing apparently because of Brexit or existing trends which are being accelerated or entrenched by Brexit. Putting all of this simply: I am interested here in speculating on Brexit-related trends and implications on law and administration, both short-term and long-term.

I start this series of posts by sketching out a broad framework for understanding and analysing administrative change after Brexit, identifying three key spaces where change will occur and through which we can structure an analysis of the overall changes we are witnessing. In the second post, I then consider some the key emerging trends in each of these areas. In the final post, I conclude by considering the place of redress processes, including the courts.

Why does Brexit entail administrative change? What type of change is likely?

Generally speaking, the administrative reform process in the UK is best characterised as a trade-off, determined principally by actors within the executive branch, between quality, on the one hand, and efficiency, on the other hand. This often means, at a less abstract level, that administrative reform is undertaken much like any policymaking exercise, and with practical pressures (e.g., delays, case backlogs, cost pressures) being highly relevant considerations in system design. It is within this broad context that much post-Brexit reform of administration will take place. The role for Parliament in relation to this reform process is, as is normally the case with administration in the UK, ultimately likely to be marginal in practice, with the occasional issue attracting political interest (e.g. the application fee to apply for Settled Status).

The post-Brexit reformation of administration and administrative law is inevitable. The relationship between EU administration and member state administrations is, as Deirdre Curtin has put it, one where the EU ‘tends to serve as a kind of intermediary between different national administrations.’ This has also been conceptualised as the EU being a ‘second order administration’ to member state administrations, or EU administration being ‘an administration composed of other administrations and interacting with them in a series of ways.’ This ‘composite administration,’ as Curtin describes it, emerges directly from ‘the very nature of supranational governance allied with the networked character of relations between various regional, national and supranational levels of administration in the EU.’ EU administration has also become more intertwined with other international levels of governance. The task for UK administration after Brexit is then, as one former Director General of the World Trade Organization put it, similar to ‘removing egg from an omelette.’

Of course, much of the detail of the extent of the change required is dependent on what is agreed between the UK and the EU, both during and beyond the Article 50 process. Whatever the eventual position is, it is clear that, barring some wholly unexpected political turnaround, full UK membership of the EU is off the negotiating table. Whatever the details of the future arrangements are, Brexit makes administrative reform effectively inevitable irrespective of the outcome of the negotiating process. The major reason for this is that there are many powers and functions, presently held and carried out by EU agencies, which the UK will likely have to assume responsibility for at the national level (and across the various layers of government within the national sphere). The assumption of additional administrative responsibilities on the national level will involve a complex and extensive re-organisation of legal powers. But beyond the technicalities of rearranging various powers, there will have to be some—potentially very large—changes in an organisational sense. When viewed from this perspective, Brexit has never presented merely a matter of shifting around the legal powers granted to various administrative agencies. Instead, it will involve the creation of new teams within administrative agencies (as well as, perhaps, new agencies), the re-distribution of budgets, and many other significant functional changes.

Post-Brexit administrative reform, as well as being inevitable, is likely to be fast-paced and wide-ranging. It is likely to be wide-ranging as there will be many legal and administrative gaps to plug within administration. Reform is likely to be fast-paced due, principally, to how Article 50 works. As is now well-known, after ‘notification’ there is a two-year window within which the exiting Member State and the EU are able to make an agreement. Given the extent of what has to be negotiated, this is a very short amount of time. A transitional framework may ease the pressure here. Nonetheless, such restrictive timeframes—especially when seen in the light of the government’s pledge to give ‘Parliament the opportunity to debate and scrutinise the changes’ promises high-tempo administrative reform. In the absence of quick changes, so-called ‘Brexit day’—whenever it arrives—presents not just an international trade ‘cliff-edge’ but also a domestic administrative one.

How can we understand and analyse administrative change resulting from Brexit?

In a recent article with Liza Lovdahl-Gormsen, I put forward a simple framework which can assist in understanding and analysing administrative change during the Brexit process. This framework, which categories areas where reform ‘challenges’ may fall, has three parts:

• The first type of challenge facing administrative bodies after Brexit relates to internal organisation. By this it is meant questions of how administrative bodies structure their own procedures, resources, staff, etc;
• The second type of challenge for administrative agencies relates to external coordination. External coordination challenges are those concerning how the administrative body works with other bodies, both at the EU and UK levels; and
• The third type of challenge are substantive legal issues. Much of administrative reform takes place under the rubric of ‘operational change.’ That is to say, change does not involve reforming legislation or other laws but, instead, amending how something is done in practice. Occasionally, however, ‘hard’ legal norms do structure responses to administrative reform. One response is to work around the legal norm. Another is to seek to change it.

Among the three categories we set out, there will be tensions. We suggested these tensions exist at main two levels: within the categories and between the categories.

In respect of tensions within each area, the idea that designing (or reforming) administrative bodies is a task riddled with unresolvable tensions was observed by Teubner. He argued that almost all legal and political institutions are placed under the competing demands of efficacy, responsiveness, and coherence. That is to say, citizens and others demand administrative bodies to be successful in managing their role, to be responsive to the public will, and to be aligned with the foundational normative commitments of society. Teubner contended that any design or re-design of an administrative institution that sought to improve its performance in one of these three respects would almost certainly have negative effects on at least one of the other two. As Mashaw put it, this can be read as painting a picture of the task of ‘structuring and controlling administrative institutions’ as a ‘perpetually unsatisfactory project of institutional design’, which even has ‘a certain fatalistic hue.’ In other words, ‘from one or another perspective, every institution will fail, or be seen as partially failing.’ This nature of administrative institutions, of course, transcends issues created by Brexit. Administration existed in these conditions before Brexit. At the same time, the scale and speed of the administrative reforms that Brexit will likely prompt is an exceptional instance where many of these tensions that already exist within administrative bodies will be thrust forward and debated. Similarly, there are regularly tensions about external co-ordination and substantive law in administrative bodies. These two issues will likely often be dragged into focus by Brexit.

We will also see tensions not just within issues of internal organisation, co-ordination, and substantive law, Brexit will also raise tensions between these areas. For instance, the preferred internal organisation of an administrative body may be compromised by the preferred external coordination strategy, such as maintaining a close working relationship with EU administration. Again, these types of tension are not new, but Brexit highlights and unsettles them.

Ultimately, these tensions—both within and between each of the categories outlined—will get resolved at some point, even if only by the absence of action. They may be determined by administrative bodies themselves, of by external forces beyond their individual control. The overall result, made up of the many different instances where such tensions will arise, will be the creation of what we called the UK’s ‘new post-Brexit administrative settlement.’ In the second part of this series of blog posts, I will consider emerges trends in each of these areas.

Dr Joe Tomlinson is Lecturer in Public Law at King’s College London and Research Director at the Public Law Project.

I am grateful to the Bonavero Institute and its team for the continuing forum they provide to reflect on Brexit, and particularly Kate O’Regan, Oliver Butler, and Annelen Micus. I am also grateful to Jeff King, Lorne Neudorf, and Jack Simson Caird for lively discussions on statutory instruments. I am particularly indebted to Alexandra Sinclair and Byron Karemba, both research fellows at PLP who are focusing on Brexit. Views expressed here, and any errors I made while expressing them, are my own.