Brexit and Administrative Justice: An Early Analysis (Part III – Redress and the Courts)
By Joe Tomlinson
In the previous two posts in this series, I have highlighted some key emerging trends in law and administration linked to Brexit. In this final post, I address the question of where redress procedures and the courts fit into the picture I have sketched so far. For the purposes of the present discussion, though a usually crude distinction and one that surely excludes other issues here, I will focus on Brexit’s impact on judicial review and wider system of administrative redress procedure.
There are a number of important impacts that Brexit may have on judicial review. There has, of course, already been Miller. I am unconvinced of the long-term significance (constitutional or otherwise) of that case, even if it—and the reactions to it—did reveal something about the contemporary anxieties and preoccupations in public law thought. Whatever is to be made of it, much more interesting judicial review activity tied to Brexit is surely yet to come. From one perspective, Brexit, which promises huge administrative change, comes at a point in public law history where the courts have developed (through the common law) and been provided with (through legislation and international treaties) a ‘thicker’ set of standards to apply in judicial review. One particular instance of where the combination of ‘thicker’ public law principles and Brexit-related activity seems a flammable mix is through the reliance the government is placing on statutory instruments. The courts have, in recent decades, moved towards developing more stringent controls on delegated legislation. At the same time, as discussed above, we are witnessing a pile up of Brexit statutory instruments. Added to this, there is a series of highly significant, complicated pieces of legislation going through Parliament which introduce new and broad concepts which appear almost to be an invitation to litigate/judicial headache in waiting. This all seems like a recipe for public law litigation likely to hold constitutional significance far beyond Miller.
It is also worth bearing in mind—especially if faced with the temptation of being carried away with thoughts of exciting public law cases—that just as recipes require cooks and ingredients, judicial review litigation requires lawyers, claimants, funding, and much more. From this ‘process’ perspective on judicial review, there are some interesting possibilities worth considering and monitoring in the wake of Brexit. For instance, there is a valid argument (which Tom Hickman and others have raised) that, as the principles applied in judicial review have been expanded in recent decades, the process itself maintains a low level of accessibility for multiple reasons, including its cost. Who, then, will bring these judicial review claims? Despite the lively academic discussion around the growth of public interest litigation in the UK, the sector has ultimately limited capacity. More broadly, the constituency of the general legal profession who are public lawyers experienced in judicial review claims is finite. If Brexit really is the public law litigation frenzy some are envisaging, it would not be surprising to see less experienced lawyers move in to the judicial review sector. Moreover, crowdfunding has so far been a key part of the story around Brexit litigation, and this is likely to continue.
If lots of claims are in fact generated, there are questions about how the Administrative Court—having now found workload stability since transferring the majority of judicial reviews to the Upper Tribunal—will cope with a possible surge in caseload. A similar concern will also be had for to the Upper Tribunal (Immigration and Appeals Chamber), which handles immigration judicial reviews. Immigration has long-constituted the vast majority of judicial reviews and, given that Brexit involves a fundamental shift in immigration law and policy, it would be surprising if immigration was not also the liveliest area of Brexit-related judicial review activity. If it is, it is likely that most of it will be bureaucratic complaints about alleged Home Office maladministration, not the ‘constitutional’ or ‘policy’ litigation that animates the majority of bloggers.
There is a final point it is important to make about judicial review in the post-Brexit administrative landscape. It is a basic fact that the task of judicial review is shaped, in practice, by what administration does. It seems to me that Brexit will likely produce the moment where the courts will have to begin grappling more properly with how public law principles apply to automated and partially automated administrative decisions. For instance, there is a risk, which I will address more fully below, that those unhappy with their Settled Status decisions will only have judicial review as an independent review of their decision. Given the amount of decisions to be made under that scheme and the automated components of that scheme, it would be surprising if some part of the technology does not get dragged into the courts at some stage. There has been some helpful analysis so far about how public law principles could apply to automated decision making. But it is not enough. I think it is a mistake to assume that contemporary judicial review principles, developed in reaction to the growth on administrative state rooted in human decision-making, will simply suffice as they are in the new digital age. Even if they did, the digitalisation of decision-making, and administration more broadly, presents new process questions, such as how evidence around complex technological issues—which may include code, algorithms, and big data—are to be handled. This is not an issue for administrative lawyers to leave for the technologists to sort alone.
The wider network of administrative redress systems—the patchwork of internal review systems, tribunals, ombuds etc.—appears so far to be something of a Brexit afterthought. For those interested in government and politics, managing mistakes of administration trails behind devising overarching policy aims and administering their initial implementation. For those interested in law and justice, substantive principles, courts, and civil justice are dominating the agenda. Administrative redress becomes, as it long has been, something of a ‘Cinderella.’ The neglect of redress pathways around Brexit should be a cause of concern. In recent years, we have seen drastic changes in what redress is offered to citizens. I have argued elsewhere with Robert Thomas, that the current trajectory in recent years is towards a system of lower-quality avenues of redress. If Brexit administration continues with this existing trend, that will be an unfortunate but expected starting point.
While care should be taken not to generalise too much across policy areas, the immigration administrative justice system offers a good example of the kinds of issues which may arise. At a recent conference organized as part of an ongoing project between the Bonavero Institute, Liberty, and the Public Law Project, Charlotte O’Brien captured the essence of the need for effective redress mechanisms, outside the courts, around post-Brexit immigration schemes. Errors of administration, which often go undetected, were observed to include Home Office simply getting things wrong, parts of the system itself being framed in a way that leads to mistakes, and a tolerance of practices of poor administration (e.g. delay). O’Brien argued tht legal transitions can make these administrative problems more acute and, in this respect, Brexit poses multiple challenges. Other concerns can, no doubt, be raised.
The approach of the Home Office so far to providing effective redress in the immigration context has not been the most promising. When the long-awaited Immigration and Social Security Co-ordination (EU Withdrawal) Bill appeared in December 2018, it was a skeletal piece of legislation and it included no tribunal appeal right for those making applications under the EU Settlement Scheme. Yet, a commitment to this appears to be in the Withdrawal Agreement. The Bill therefore creates a ‘no deal, no appeal’ situation: if there is a withdrawal agreement, and an associated Withdrawal Agreement (Implementation) Bill inclusive of an appeal right, then applicants under the EU Settlement Scheme will have access to a tribunal appeal; if there is not a deal, inclusive of an appeal right, then applicants under the Settled Status Scheme will only have access to administrative review in some instances and judicial review (which offers only a narrow legality review not a substantive reconsideration of the decision). Administrative review is a process whereby another Home Office official review the initial decision for errors. Though it may have some advantages (e.g. it is very quick), there are concerns this process is substandard when compared to appeal to a tribunal. Before access to the First-tier Immigration tribunal was severely restricted by provisions in the Immigration Act 2014, around 49% of appeals were successful. Whereas, over the same period in 2015/16, the success rate for administrative reviews conducted in the UK was 8%, falling to just 3.4% the year after. The Independent Chief Inspector of Borders of Immigration has been critical of these processes and the Law Commission is set to review them. I have recently argued with Byron Karemba and the Public Law Project that the present approach is unsatisfactory as it generates unnecessary uncertainty but also seems to suggest the quality of justice provided will vary depending on the agreement of a deal.
If the approach to administrative redress in the immigration context turns out to be representative of the wider approach—and if the experience with administrative redress processes in recent years is indicative—then public lawyers concerned with unfairness inflicted upon individuals will need to pay particular attention to the quality of redress offered around Brexit-related process.
Brexit noise and the new normal
Across this series of blog posts, I have offered here a tentative analysis of some emerging trends and the possible implications of Brexit for law and administration. This discussion has, largely, left open the third important question I raised at the start: what will be the ‘new normal’ in law and administration because of Brexit? It is too early to tell. It would be surprising, however, if an event as seismic as Brexit in UK politics and government does not change patterns of how administrative power is structured and exercised. Key trends will continue to emerge over time. Perhaps the key lesson of the analysis that can be offered at this stage, however, is that it will be important not to let the day-to-day noise of Brexit distract us entirely from also observing and analysing the emergence and reshaping of paradigms in law and administration.
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.