(Lacking in) Methodological Rigour, Human Rights and Devolution: IRAL’s challenge is one of process as well as substance
By Katie Boyle and Diana Camps (University of Stirling)
The Independent Review of Administrative Law (IRAL) manifests as an example of methodological research practice that is inherently flawed from the outset. We argue here that the review is unfit for purpose for two reasons. First, in terms of process, the methodology lacks rigour and risks undermining the reliability and validity of data generated. Second, in terms of substance, the review fails to engage with the human rights dimension of judicial review and ignores the complexity of devolution. Moreover, the scope of engagement fails to proactively address citizens, meaning that the key stakeholders impacted by any curtailment of judicial review (JR) are not included in the process.
Each of these issues merit close scrutiny and our detailed evidence is available here. We deal with each in turn here with a view to informing discussions around the process and substance of the review going forward.
Lack in methodological rigour and inherent bias
Good research design, which includes minimising bias and maximising the reliability of data, is particularly important in ensuring that the conclusions drawn from the research are valid. One must be able to demonstrate that a selected research method would produce similar results if the study were replicated under similar conditions, and that the results measure what they are supposed to measure. In the case of the IRAL, it is important to consider whether questions in the Call for Evidence (CfE) and the entailed survey are formulated in ways that meet the aims of the inquiry and that they are reliable and valid measures, as legitimacy in the outcome of the review will depend on legitimacy of the process/ methodology.
In essence, reliability is about the consistency of a measure and generally refers to the extent that results/ answers are consistent. In other words, if questions are consistent, results/ answers are consistent as well. Validity, on the other hand, is about the accuracy of a measure. The construct of validity is multi-dimensional, but for our purposes here, it will suffice to say that validity refers to the extent to which the measurements of a survey or inquiry provide the information needed to meet its purposes. Reliability and validity are thus valuable constructs in qualitative research to assess its quality and rigour.
A close examination of the CfE and the entailed survey in Section 1 (Questionnaire to Government Departments) raises questions about the methodological approach adopted for collecting evidence from key stakeholders. Although the Terms of Reference for the IRAL identify the areas for inquiry in a relatively open manner through the use of the word ‘whether’, the consultation document does not iterate this neutrality, but phrases questions in a manner that is unbalanced and inherently biased towards a particular position (i.e. that JR should be reformed, codified and curtailed). This is also a matter of concern in the questionnaire designed for government departments.
One of the advantages of the open-ended question format of the CfE and survey is that respondents can ‘follow their own thoughts and are not forced in the frame of reference of the researcher’. This only holds true, of course, if the questions meet the standards for good (survey) questions. A neutral and fair approach to open-ended questions requires clarity, must avoid ambiguity and, importantly, should avoid biased wording that could (a) evoke an emotional response, (b) is framed with a predisposition towards a particular perspective or (c) sets the respondent along a particular line of thinking.
The following extracts exemplify, however, that questions in the IRAL CfE are not designed according to best methodological practice and entail various types of bias. For example, one question in the section on codification (Section 2) asks if statute would “add certainty and clarity to judicial reviews”, rather than asking what the potential role for statutory intervention in the judicial review process might be. Likewise, the CfE poses whether costs in JR are “too lenient on unsuccessful parties” or “applied too leniently in the Courts” (Section 3). Instead, a neutral and fairly worded question might ask how appropriate costs are and how those rules are applied by the courts. A third example from the CfE asks whether remedies are “too inflexible” and if so, “does this inflexibility have additional undesirable consequences” (Section 3). Again this is a biased question that could be rephrased as ‘how flexible are the remedies deployed?’, rather than imposing a particular assumption which suggests not only that remedies are too inflexible, but furthermore that this might have undesirable consequences.
A lack of neutrality is also evident in the questionnaire prepared for distribution amongst government departments. Survey research methods are in themselves complex, and we provide a rudimentary analysis of the mode of data collection, the sampling methodology, the quality of questions and the method of data analysis in our evidence. These intersecting components of survey design all have the potential to affect the quality of the resulting survey data. In particular, the evidence of biased questions render the data generated from the survey as unreliable from the outset. For example, the questionnaire asks of government officials whether various aspects of JR ‘seriously impede the proper or effective discharge’ of their functions. This proposition suggests that JR seriously impedes decision-making processes, a proposition without evidence. Bamforth and others, in their response to the review, point out that the review is based on a number of assumptions that have no material evidence to support them, including for example, that codification of JR might ‘increase public trust and confidence in JR’.
Furthermore, sending the questionnaire to government departments is highly problematic, as these public bodies are the operational arm of the government. How can the government independently provide input on review of a legal process designed to assess the government’s compliance with its duties to the public? Without adequate balance to ensure all stakeholders have equal voice, the participation of government departments in the survey breaches the ‘independence’ aspect of the consultation process, constituting a conflict of interest.
Our recommendation is to revisit the methodology. IRAL should reconsider the process of engagement and involve an expert in research methods and survey design. In its current format, a methodological analysis suggests the review is flawed from the outset and potentially undermines the legitimacy of the outcome of the review. That is not to say data collection around the efficacy of JR would not be helpful. However, such an approach should build on existing evidence and should adhere to minimum standards of best practice to safeguard the validity and reliability of (survey) results.
The omission of human rights
JR is an important accountability mechanism for violations of human rights and any changes to the existing framework must include the genuine participation of citizens as right holders. Indeed, JR is a pathway to justice for violations of human rights and access to justice in and of itself constitutes a common law right in the UK.
The omission of the human rights dimension from the scope of the review will mean that important evidence does not come before the Panel for consideration. In particular, we ask the Panel to consider whether or not the review can proceed without ensuring genuinely deliberative and informed engagement with citizens. We recommend that the Panel consider how to engage with citizens to ensure their participation and suggest working with each of the national human rights institutions as a starting point.
As a research team, we are in the process of assessing the accountability gap in access to justice for violations of social rights across the UK (in particular right to housing, right to social security, and freedom from food and fuel poverty). This study is funded by the Nuffield Foundation and includes looking at JR as an important accountability mechanism as part of a framework that embeds and recognises social rights as legal rights (for a discussion on social rights as legal rights see here). The research highlights the importance of recognising access to justice as constituting a journey from initial advice to effective remedy as an outcome of the process. In other words, the field of enquiry must go beyond access to a court and consider the full adjudication journey, including assessing whether the violation is addressed and the remedy is effective. There are a number of outstanding gaps to be addressed across the adjudication journey, including: improving access to advice, advocacy support, increasing legal aid support, addressing the prohibitive costs of judicial review, further exploration of alternative administrative mechanisms, enhancing the grounds and intensity of review, better supporting group proceedings and effective remedies, including structural remedies to address systemic cases. Further, a review of case law has identified gaps in protection, including when public services are privatised, meaning accountability for violations of rights is undermined. Likewise, the recent example of the UK Parliament voting against the provision of free school meals to children in poverty over the Christmas holidays exemplifies how a gap in social rights protection in the law can manifest as a violation without a human rights compliant legal remedy.
Nonetheless, whilst there are gaps to be addressed, it is important to also note the efficacy of JR as an existing accountability mechanism. This cannot be fully assessed unless placed within the wider context of administrative law and justice. One important point to note from an international human rights law perspective is that whilst alternative (non-judicial) administrative remedies are welcome, it is important that JR is available (as a last resort) to satisfy the right to an effective remedy, in particular when human rights and equality issues are engaged.
Indeed, some form of judicial remedy is indispensable if human rights are to be made effective in practice. Whilst JR could be improved to make remedies more effective for social rights (as outlined above), it would be antithetical to the development of human rights practice across the UK to remove or hinder access to JR as an existing route to remedy for violations of rights. It remains a key cornerstone of accountability in reviewing the exercise of power by the state. As stated above, the CfE completely ignores this dimension much to the detriment of the process, which undermines legitimacy in the outcome of the review.
By way of example, the efficacy of JR as an important accountability mechanism, can be framed as follows:
- it provides a means through which to ensure parliament’s will is given effect to (see here for a discussion on this);
- it can ensure that Ministers, government departments and public authorities act lawfully (see the recent cases of Johnson and Pantellerisco where the court found that the algorithm used by the Department of Work and Pensions (‘DWP’) to calculate social security eligibility was unlawful resulting in destitution for those impacted);
- it can address ‘blind spots’ in legislative processes meaning rights that are inadvertently missed in legislative drafting or those concerning minority groups can be addressed (in O’Donnell the court found that the Pension Act (Northern Ireland) 2015 was incompatible with the ECHR in excluding a bereaved father and his children from bereavement support because his deceased wife was unable to work before her death as a result of severe disabilities – something the legislative process had missed, inadvertently resulting in disability discrimination);
- and finally it can act as a life-saving safety net for those facing destitution or a risk to life (see the recent case of QH where the court intervened to provide interim relief to a vulnerable mother and baby who had been inappropriately placed in accommodation that was unclean, dangerous, cold and meant the mother, recovering from surgery, was unable to access necessary medical care).
Rather than seek to curtail JR our recommendation to the Panel is to consider how administrative justice mechanisms, including JR, can better serve citizens, including as an accountability mechanism for social rights protection.
Human rights and devolution
A final word before we close is to draw the attention of the reader to the issue of devolution. The CfE simplifies the complexity of the devolved dimension. It suggests that the review will focus on UK-wide policy with only ‘minor and technical changes to court procedure in the Devolved Administrations’. Devolution means different things in each of the devolved jurisdictions. For example, employment law and equality law is largely reserved in Scotland, whereas both are largely devolved in Northern Ireland. Scotland and Northern Ireland’s devolved powers include the administrative law system in each jurisdiction, including courts and court processes, meaning any review or proposed reform relating to Northern Ireland or Scotland engages with devolved matters by default. Wales, on the other hand, does not have devolved competence over the legal system (see para.8(1)). However, there is a process underway to consider further devolution of the justice system in Wales.
The idea that devolution means the same thing in each jurisdiction ignores the complexity and huge jurisdictional divergences between each devolved settlement.
Finally, it should be noted that devolved administrations are on more progressive human rights trajectories than the regressive trends at a national level. The Conservative Government has promised that the Human Rights Act 1998 (‘HRA’) may be repealed or amended, insists that the Internal Market Bill reduce the rights of ordinary citizens to ensure the legality of decisions (or in this case Regulations) on human rights grounds, thus undermining the rule of law, and Parliament has now passed the Overseas Operations Act introducing immunity from prosecution for some violations of the ECHR.
Meanwhile, in Scotland the UNCRC Incorporation (Scotland) Bill incorporates children’s rights into domestic law and there is a National Task Force implementing the recommendations of First Minister’s Advisory Group on Human Rights Leadership to incorporate economic, social, cultural and environmental rights into domestic law. In Wales, there are proposals to incorporate the right to adequate housing into domestic law, which builds on existing legislation embedding international human rights into decision-making processes (See here and here). And finally, in Northern Ireland an Ad Hoc Committee on a Bill of Rights for Northern Ireland is considering the means through which rights protection might be enhanced in accordance with the commitments of the peace agreements. JR forms a key accountability mechanism under each of these devolved legal regimes. Any reduction or inadvertent tampering with the rights regimes in the devolved context may undermine access to effective remedies for violations of human rights as they currently stand or as they may develop under these emerging human rights frameworks. In other words, devolved progress may expand JR as a human rights accountability mechanism rather than curtail it.
Our recommendation is that the review must not curtail JR processes at the devolved level. Indeed, we recommend in relation to Northern Ireland and Scotland in particular that bespoke processes would be required given that JR itself is a devolved matter in each jurisdiction.
By way of conclusion, we would urge the Panel to consider the methodological rigour of the approach. To do so will ultimately help engender legitimacy in the outcome. We also urge the Panel to consider how the review can engage citizens. Again, to fail to do so will render the outcome of the review less persuasive than if genuine inclusive and participative engagement formed part of the process. JR is a pathway to justice for violations of human rights – any review of JR must account for the full complexities of this dimension and, as it stands, this dimension is missing from the CfE. Finally, the Panel must take account of the complexities of devolution, and the progressive devolved trajectories for human rights reform. The IRAL faces challenges in terms of both process and substance. The efficacy of JR as an accountability mechanism merits close scrutiny, however the success of such an assessment will depend on both methodological rigour as well as a clearer understanding of the constitutional dimension of human rights and devolution.