Justice in the Digital State: a must read

Joe Tomlinson, who combines posts at the Public Law Project (PLP) and King’s College London, has done us a double favour. He has written Justice in the Digital State: assessing the next revolution in administrative justice, which takes forward thinking about the impact of the web on aspects of litigation funding, tribunal services and administrative justice. He also demonstrates the value of an organisation like the PLP which combines academic analysis with a public interest perspective. You can get the booklet as a digital or a paper production from its publisher. 

It is difficult not to read this short book and cry out for a longer version because the author raises so many key and interesting questions. But, the essence of the pamphlet is as a report from a rapidly developing front where not everything is yet clear and it is as important to line up the questions to be asked as much as to proceed to answers. He divides his basic approach around ‘four interrelated central issues’ relating to administrative justice. The first is the need for evidence (where he quotes and echoes a recent call by the President of Tribunals that ‘the judiciary much … support, promote and commission research’). The second might seem more controversial: politics. He does not mean party politics. He says, ‘It has long been recognised that administrative justice systems are, to an extent, artefacts of political belief’. The third seems related – the models or concepts behind administrative justice. Finally, he raises the question of design: ‘administrative justice systems give rise to myriad questions of institutional design’.

His first area of enquiry is the crowdfunding of litigation through sites like CrowdJustice.com and the Good Law Project. This is such a fast moving field that issues have emerged even since the book was written. His general judgement is undoubtedly true: ‘crowdfunding … has the potential to generate unforeseen circumstances by disrupting relatively stable patterns and practices of public interest judicial review litigation’. Crowdfunding’s appeal to high profile political issues undoubtedly does that and, for example, the crowdfunded litigation against UK politician Boris Johnson for lies during the Brexit campaign (ultimately dismissed) raises very acutely the issue (also at the heart of the current Reith lectures by conservative Supreme Court judge Lord Sumption) of the boundaries between what is to be regarded as political and what legal/constitutional.

We then move to the core of the book which concerns the imminent digitalisation of tribunals in England and Wales. This is a piece of excellent analysis and merits a thorough read. He calls it ‘a gamble’ and it is hard to see it as otherwise. He has eight detailed points about the design of the project. But the great value of this chapter is that it links the work of the tribunals, particularly on social security upon which he concentrates, with the underlying administration of the benefit. Tribunals adjudicate only after the Department of Work and Pensions has made an initial determination; there has been a mandatory with relatively low success rates; and can appeal is finally made which, currently has success rates of over 70 per cent. Tribunals were only recently brought within the court administration: they were formerly seen as the responsibility of the department whose services they were monitoring. It would be a weakness of this reform if it loosened the active feedback to the administrative department. My own view would be that they should never have been transferred to the predecessor of the Ministry of Justice without a ‘polluter pays’ provision that awarded costs to the tribunal (and possibly appellant) if the DWP loses. That really is the only way in which the DWP will seriously sit up and take seriously its adjudicative responsibilities. 

The author’s main recommendation for tribunals are ‘a coherent scheme of data collection’ and more research. This is the only occasion where I thought the recommendations were a bit feeble. We need decisively to underline the supervisory role of tribunals like those in social security, immigration and asylum. We can do that by adjusting out fundamental understanding of the purpose of administrative justice in this field (one of Mr Tomlinson’s initial points). The concept of a court arbitrating, at least in political theory, between two equal parties is frankly not adequate for tribunals mediating between individuals and the state and, indeed, undoes some of the excellent consequences of reform undertaken in the early 1980s.

Mr Tomlinson ends with an interesting discussion of administrative justice and design – a marriage which would be foreign to some of the great exponents of public law and administrative justice of the past. So, all in all, if you are interested in – or have an interest in – this field, buy the book. You can get it in digital or physical form. That you have to pay will be a bit of disincentive and rather contrary to the ways of the net. But it is worth it.

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