Week 5 - Administrative Justice System Design Flashcards
System Design
Digitalization
Access to administrative justice - Access to courts, how do you design a system with access to justice
Systemic administrative failures
What are some core questions for administrative justice system design
What should an administrative justice system look like
What choices have been made
What has been prioritized
What has been left out
What assumptions have been made about the users of the system
Asylum appeal procedure
- Makes sure everything runs more smoothly, and everyone has the same amount of papers
Lodge appeal
HO upholds evidence and reasons
The appellant upholds all evidence
Case management by legal officer
HO reviews the decision
Appeal listed for hearing
I, Daniel Blake
What happens to people who are digitally excluded
Adds to his stress real disadvantages from having it online
Disadvantage of digital
Trust and fear (Creutzfeldt et al, 2024)
Takes longer online
Loss of rapport, loss of non-verbal communication
Loss of connection (to hearing or appointment)
Loss of the face-to-face element - are witnesses less compelling?
Losing touch with certain client groups during COVID - Sectores of their client groups that use to come in, in persona ll the time went digital
Court closures - now much further to a psychical court
Impact on court users
Were concerned that court closures could have a negative impact on court users, including those:
- Form low-income households
-With disabilities or mobility issues
- With children or caring responsibilities
- From rural areas or those without access to a car
- Who owns a business - longer travel times may mean extra costs, such as overtime pay for staff
- Who rely on an interpreter - they’re not paid for their travel time so may be less willing to attend court
Some of these groups may not be best served by a remote hearing
Assumptions inherent in court closures
Local courts are too expensive and should be closed to save/generate money’
Digitalisation will make some of the physical courts unnecessary
Users will be able to access courts and justice procedures remotely and digitally
If they can’t, either this is a sacrifice worth making or someone else will help them
- Assumption that something is going to fix it
Digitalization of tribunals
The core question in the digitalisation of tribunals is whether the reforms will, in time improve both access to and the quality of administrative justice, or leave citizens in a worse-off position
There is very little evidence on the impact of digital procedures in the public justice system, and many views are therefore heavily grounded in speculation
Two Board views: Tomlinson
Justice is enhanced
Justice is weakened
Justice is enhanced
Quick resolution of simple cases
Less stress, cost and delay
Easier to submit and manage evidence
Easier communication
between the parties
More flexible deployment of judges
The redesign offers the opportunity to reduce the complexity
Justice is weakened
Online hearings are less effective
Lower success rate (if they reflect the pattern for paper hearings)
Harder to participate in remote hearings
Multiple visits to assisted digital centres
Digital assistance as potentially unregulated legal advice
Further to travel for in-person hearings
Use of gov,uk website appearing less independent
Depends on the system design - 8 key issues
Which appeals should go through the online process
How to maintain key values of the legal process and good administration
Platform design and accessibility
Safeguards for fair procedure
How to design digital exclusion
How to fit the digital system
into the wider administrative justice system
What data to collect, analyze and publish
Understanding efficiency and avoiding shifted costs
- How do you know how to get into a hearing to listen to it, or observe it for example
journalists - now they do have that knowledge but it is not readily available to the general public
What about algorithms
Predictive policing that uses historical data to predict where and when certain crimes could occur
Visa streaming algorithms which triage visa applications to help visa-issuing authorities decide who to investigate
Facial recognition tools that assess whether separate images depict the same person
The tracking automated government register
As part of PLP’s campaign for transparency around automated decision-making, we have developed an open register to share everything we know about secretive algorithms currently used by the UK government
This database has detailed information about tools used by departments like the Home Office, Department of Work and Pensions, and the Metropolitan Police, so users can clearly see everything we know in one place
Explore the register here to help lift the lid on how this system works and discover the risks for individuals who are affected by their decisions
What is access
Timely
Affordable
Reasonable distance
Understandable
What is justice
Effective remedy
Fair trial/accountability
Fair outcome
Equality
Legal advice, legal aid, legal
representation
Access to courts, procedures
The most important ‘right’
Indeed, the right of effective access to justice is increasingly being recognized as of paramount importance among the new individual and social rights, since the possession of rights is meaningless without a mechanism for their effective vindication. Effective access to justice can thus be seen as the most basic requirement - the most basic ‘human right’ - of a modern, egalitarian legal system which purports to guarantee, and not merely proclaim, the legal rights of all
Difficulties to define
Access to Justice as a phrase can be traced back to the 19th century, but as a concept it is a comparative newcomer to the political firmament, coming into frequent use only in the 1970s. Since then there has been no holding it. Hundreds of books, articles and reports have included it in their title, not to mention a swathe of initiatives from lawyer associations, politicians, governments, charities and NGOs around the world
Define descriptive and normative
Descriptive
- Describes what it is:
- ‘The extent to which citizens are able to gain access to the legal services necessary to protect and vindicate their legal rights
Normative
- Sets out how it should be
- ‘Every citizen should be equally able to protect their legal rights’
A narrower or broader conception
‘A person has access to justice when there are effective remedies available to that person to vindicate his or her legal rights and advance his or her legally recognized interests
On a narrow conception of access to justice, what matters is that the remedies exist and that the person is free as a matter of law to use them
However, a broader conception - which I consider is more appropriate - suggests that persons should be in practice be able to use those remedies without undue difficulty
Assumptions underpinning the system
‘Musch of the development of remedies that took place in the twentieth century was predicated on the assumption that disputes between citizen and state were better dealt with by bodies other than the ordinary courts. The second important assumption affecting administrative justice remedies was that citizens who were in disputes with the state could reasonably be expected to use such ‘alternative’ remedies themselves rather than rely on lawyer
But the system shifts over time
Increasing complexity of law - changing legal provisions, proliferating case law
Fewer non-layer advice services because of austerity
Huge gap in the middle of people who have a really low income and are allowed to get legal aid but then the people who can afford legal services, there are people in the middle who cannot afford legal services, but dont have a low enough income to be eligible for legal aid
A right to legal aid
The disparity in representation ‘could not have failed’ in this exceptionally demanding case, to have given rise to unfairness
Legal aid cuts
Legal Aid, Sentencing and Punishment of Offenders 9LASPO) Act 2012
Cuts to rates of pay
Cuts to the scope of legal aid - especially housing, immigration, and welfare benefits
No fee increases
Restrictied the amount of issues you can get advice for
System fragmentation
Increasing complexity of law - changing legal provision, proliferating case law
Fewer legal aid providers taking a narrower range of cases spillover of need
Fewer non-lawyer advice services because of austerity
But still, an assumption that citizens can use the remedies themselves
Appeal procedure
Headteachers decision
Governing body hearing or Governors Disciplinary Committee
First-Tier Disability Discrimination Tribunal
The independent review panel
Consequences of exclusion
Most excluded children must attend a Pupil Referred Unit (PRU) with other children who have been excluded. PURs overall have a poor record of educating children: an Ofsted report in 2007 found that one in eight PRUs were inadequate. Less than 1% of pupils at PRUs achieved 5 GCSEs at grades A-C in 2008, 2 and only 11.7% achieved at least one GCSE at A - C.3
Access to courts - Aarhus Convention
The Aarhus Convention is a new kind of environmental agreement. The Convention:
Links environmental rights and human rights
Links government accountability and environmental protection
Acknowledges that we owe an obligation to future generations
Establishes that sustainable development can be achieved only through the involvement of all stakeholders
