The UK Supreme Court’s ruling in UNISON: casting judicial shadows on the design of justice systems?

I am currently based at Osgoode Hall Law School as a visiting researcher. During my time here I have seen the work of the Winkler Institute for Dispute Resolution. One of the key aspects of the Winkler Institute’s work is using design approaches to create innovative solutions to problems within the justice system (a brief outline of what ‘design thinking’ is can be found here). This work involves the Winkler Institute re-imagining and re-designing systems around users, with the broad intention of making them more effective.

The UK government has often emphasised the importance of the user perspective in reforming justice systems (and, in some places, the effectiveness of design approaches too). In my particular area of research—administrative justice—the government’s commitment to understanding and emphaising the user perspective has been consistently affirmed since the 2004 White Paper on Transforming Public Services. I gave a partial account of this emphasis in a recent blog on the UK’s plans to digitise tribunals. In that blog, I pointed to Lorne Sossin’s argument (made in the Canadian context) about why design thinking—which emphasises users—is good for administrative justice. His claim was that design thinking, and in particular user-centered design, has been ‘too often is missing in the design of administrative tribunals’. Instead, what has taken precedence is a ‘top-down’ policymaking process that serves the interests of a ruling government. The result, Sossin claims, is that the ‘administrative justice system in Canada at all levels of Government (federal, provincial, municipal, Indigenous) is generally fragmented, poorly coordinated, under-resourced in relation to the needs of its users and has multiple barriers of entry’. It is, to put it simply, not difficult to find those who think that emphasising the place of the user in the design of justice systems is a good idea.

Today, the UK Supreme Court handed down a widely-reported judgment in R (on the application of UNISON) v Lord Chancellor. The UKSC found that fees imposed by the Lord Chancellor in respect of proceedings in employment tribunals (ET) and the employment appeal tribunal (EAT) are unlawful because of their effects on access to justice. In the course of giving the lead judgment, Lord Reed stated at para. 66 that:

The constitutional right of access to the courts is inherent in the rule of law. The importance of the rule of law is not always understood. Indications of a lack of understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services to the “users” who appear before them, and that the provision of those services is of value only to the users themselves and to those who are remunerated for their participation in the proceedings. The extent to which that viewpoint has gained currency in recent times is apparent from the consultation papers and reports discussed earlier. It is epitomised in the assumption that the consumption of ET and EAT services without full cost recovery results in a loss to society, since “ET and EAT use does not lead to gains to society that exceed the sum of the gains to consumers and producers of these services”.

These remarks—and the subsequent paragraphs in the judgment—appear to be in  contrast to the championing of the user perspective: they seem to draw a link between understanding citizens as users of the justice system and a ‘lack of understanding’ of the Rule of Law.

I do not want to offer a comprehensive review of the judgment here—even though there is much in it for public lawyers to mull over (Mark Elliott has written a very useful analysis of the judgment). Instead, I want to offer some initial thoughts on Lord Reed’s comments at para. 66.

Two preliminary—yet not insignificant—points must be made at the outset. First, there is nothing, in principle, wrong with putting emphasis on users. It is a common complaint that justice systems are often built by lawyers for lawyers, and are difficult for lay people to understand. Care should be taken not to condemn—in a blanket fashion—the effects that emphasising ‘users’ can play in the UK’s justice system: such emphasis can also serve to increase access to justice (for such reasons, the UK Administrative Justice Institute, for instance, has sought to develop a research agenda around users). Lord Reed’s comments do not go as far as condemning the importance of the user perspective, but I would, respectfully, suggest that they could have been tempered. Second, it is easy to criticise the statement from the government, to which Lord Reed refers, that the ‘ET and EAT use does not lead to gains to society that exceed the sum of the gains to consumers and producers of these services’. Putting emphasis on users does not, however, necessarily lead to this position and it is therefore dubious to link the two together. Emphasising user needs does not necessarily lead to conceiving ‘bringing a claim before a court or a tribunal [as] a purely private activity’ nor does it entail the view that ‘claims provide no broader social benefit’ (para. 67) (indeed, the quote referred to by Lord Reed does not make that claim, instead it shows a balancing exercise where the broader social benefit has been recognised as part of a value judgment, even if it had not been given enough weight). Where reforms are carried out in the name of users that in fact run against user needs, then it is important to criticise those reforms on that basis. But, in such an instance, there would be no cause to lay fault on the notion of emphasising user needs within a justice system. Lord Reed is correct to say that ‘courts do not merely provide a public service like any other’ (para. 68), but they—and other justice systems such as tribunals—do still provide a public service of sorts, and that service has often neglected the user perspective.

More important than those preliminary points is that this judgment raises a key question about how justice systems are designed and who gets to design them. A policy document published in late 2016—Transforming Our Justice System—announced a £700 million-plus investment in the justice system. A large share of this budget is to be spent on the pursuit of a digitisation agenda. While there is clear ambition on display in Transforming Our Justice System, there is only a broad-brush picture painted. This should be no great surprise and it is difficult to criticise this: the document is meant as a starting point and ought to be read in that light. But the upshot is that we know little detail of what is to come. What is clear is that the reform process is going to require lots of judgments to be made as to how the new systems will look (judgments of the sort under the spotlight in UNISON). The government has indicated that the user perspective will be a key aspect of how these reforms are carried out. In Transforming Our Justice System, there is talk of tribunals being ‘specifically designed to meet user needs’ and systems ‘focused around the needs of individuals so that claimants can be more confident that their needs will be understood’. This, as noted above, is simply an extension of a long-held government view. The concerns that Lord Reed appears to state about emphaising the user could cast a long shadow of legalism during the emerging reform process (this, of course, may be a good thing).

Within the specific context of the digitisation reform agenda, Lord Reed’s comments must also be understood as one of multiple judicial shadows looming. In the recent Upper Tribunal (IAC) case of SM and Qadir (ETS – Evidence – Burden of Proof) [2016] UKUT 229 (IAC) [104], it was said, in relation to out of country tribunal appeals in the immigration context, that:

We are conscious that some future appeals may be of the “out of country” species. It is our understanding that neither the First-tier Tribunal nor this tribunal has experience of an out of country appeal of this kind, whether through the medium of video link or Skype or otherwise. The question of whether mechanisms of this kind are satisfactory and, in particular, the legal question of whether they provide an appellant with a fair hearing will depend upon the particular context and circumstances of the individual case. This, predictably, is an issue which may require future judicial determination

This was then followed up in R (on the application of Mohibullah) v Secretary of State for the Home Department (TOEIC – ETS – judicial review principles) [2016] UKUT 561 (IAC) [90], where it was said, on the same topic, that:

Experience has demonstrated that in such cases detailed scrutiny of the demeanour and general presentation of parties and witnesses is a highly important factor. So too is close quarters assessment of how the proceedings are being conducted – for example, unscheduled requests for the production of further documents, the response thereto, the conduct of all present in the courtroom, the taking of further instructions in the heat of battle and related matters. These examples could be multiplied. I have found the mechanism of evidence by video link to be quite unsatisfactory in other contexts, both civil and criminal. It is not clear whether the aforementioned essential judicial exercises could be conducted satisfactorily in an out of country appeal. Furthermore, there would be a loss of judicial control and supervision of events in the distant, remote location, with associated potential for misuse of the judicial process.

In both of these judgements, we can see clear concern about the deployment of new technologies in the justice system. Reasoning out from such views, we can imagine how, for instance, the introduction of digital tribunals—and the online procedures they will entail—may prompt further judicial concerns.

Put in the broader context of the ongoing reforms, Lord Reed’s comments on users in UNISON seem to be a further indication that we are in the early stages of a much bigger story that is unfolding around the design of modern justice systems. That story—or at least a key part of it—will centre on this question: how much is the design of justice systems the province of government and how much is it the province of the courts? In an analysis of the use of videoconferencing in the Canadian justice system, Lorne Sossin and Zimra Yetnikoff suggested that how ‘the courts resolve these challenges may represent the next frontier of administrative law’. It will be interesting to see if the UK courts go to this frontier and, if they do, how they shape it.

I suspect that the courts will go to that frontier. A good starting point for any analysis of what they do (or do not do) I would suggest is empathy for different perspectives. In particular, empathy for both legal and governmental (or internal) perspectives on system-design (these two perspectives were outlined in a recent report by Robert Thomas and I on Current Issues in Administrative Justice). Lawyers have–quite naturally–a tendency to adopt a legalistic perspective. As I have argued elsewhere on the topic of ouster clauses, the legal analysis is helpful but if offers only part of the picture. There is also a need to take account of the internal perspective of government officials (including Ministers and administrators). The importance of understanding this internal perspective has long been highlighted in the administrative law context (from Bruce Wyman’s The Principles of the Administrative Law Governing the Relations of Public Officers through to Jerry Mashaw’s Bureaucratic Justice). As we move towards new frontiers in the justice system, producing a detailed analysis–based on an understanding of both legal and internal governmental perspectives–of the trade-offs involved in the tough task of designing justice systems will be a more productive use of time than simply forming opposing camps.

Note: the picture on this blog is the cover of Beautiful Users by Ellen Lupton (Princeton Architectural Press, 2014), which explores the changing relationship between designers and users. 

 

 

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