Week 5 - Administrative Justice System Design

Question 1

System Design

Answer 1

Digitalization

Access to administrative justice - Access to courts, how do you design a system with access to justice

Systemic administrative failures

Question 2

What are some core questions for administrative justice system design

Answer 2

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

Question 3

Asylum appeal procedure

Answer 3

• 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

Question 4

I, Daniel Blake

Answer 4

What happens to people who are digitally excluded

Adds to his stress real disadvantages from having it online

Question 5

Disadvantage of digital

Answer 5

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

Question 6

Impact on court users

Answer 6

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

Question 7

Assumptions inherent in court closures

Answer 7

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

Question 8

Digitalization of tribunals

Answer 8

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

Question 9

Two Board views: Tomlinson

Answer 9

Justice is enhanced

Justice is weakened

Question 10

Justice is enhanced

Answer 10

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

Question 11

Justice is weakened

Answer 11

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

Question 12

Depends on the system design - 8 key issues

Answer 12

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

Question 13

What about algorithms

Answer 13

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

Question 14

The tracking automated government register

Answer 14

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

Question 15

What is access

Answer 15

Timely

Affordable

Reasonable distance

Understandable

Question 16

What is justice

Answer 16

Effective remedy

Fair trial/accountability

Fair outcome

Equality

Legal advice, legal aid, legal
representation

Access to courts, procedures

Question 17

The most important ‘right’

Answer 17

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

Question 18

Difficulties to define

Answer 18

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

Question 19

Define descriptive and normative

Answer 19

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’

Question 20

A narrower or broader conception

Answer 20

‘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

Question 21

Assumptions underpinning the system

Answer 21

‘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

Question 22

But the system shifts over time

Answer 22

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

Question 23

A right to legal aid

Answer 23

The disparity in representation ‘could not have failed’ in this exceptionally demanding case, to have given rise to unfairness

Question 23

Legal aid cuts

Answer 23

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

Question 24

System fragmentation

Answer 24

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

Question 25

Appeal procedure

Answer 25

Headteachers decision

Governing body hearing or Governors Disciplinary Committee

First-Tier Disability Discrimination Tribunal

The independent review panel

Question 26

Consequences of exclusion

Answer 26

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

Question 27

Access to courts - Aarhus Convention

Answer 27

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