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- Author or Editor: Joe Tomlinson x
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Available Open Access under CC-BY-NC licence. Exploring how justice is delivered at a time of rapid technological transformation, Justice in the Digital State exposes urgent issues surrounding the modernisation of courts and tribunals whilst examining the effects of technology on established systems. Case studies investigate the rise of crowdfunded judicial reviews, the digitalisation of tribunals and the rise of ‘agile’ methodologies in building administrative justice systems. Joe Tomlinson’s cutting-edge research offers an authoritative and much-needed guide for navigating through the challenges of digital disruption.
In recent years, the United Kingdom's Home Office has started using automated systems to make immigration decisions. These systems promise faster, more accurate, and cheaper decision-making, but in practice they have exposed people to distress, disruption, and even deportation.
This book identifies a pattern of risky experimentation with automated systems in the Home Office. It analyses three recent case studies including: a voice recognition system used to detect fraud in English-language testing; an algorithm for identifying ‘risky’ visa applications; and automated decision-making in the EU Settlement Scheme.
The book argues that a precautionary approach is essential to ensure that society benefits from government automation without exposing individuals to unacceptable risks.
The administrative justice system is the mechanism through which government makes decisions about citizens’ rights and entitlements (in respect of, for example, social security, immigration and housing), and the processes through which people can challenge those decisions (for example, through judicial review, ombuds and tribunals). By scale, administration is by far the largest part of the state: it is where high-level policy discussions transform into the street-level coercion of citizens. Like many other areas of law, society and government, administrative justice is now beginning to see the impacts of rapid technological advances. Early attempts at ‘E-government’ and using ‘ICT’ are now accelerating towards the emergence of the digital administrative state, and the prophecies of futurologists are being put to the test. The essential promise of technology remains, as it always has done, of more and better for less effort. The fundamental concern also remains the same; that by using new technology, we alienate older methods – and their benefits – that we ought to be preserving. Looking at the present situation surrounding the developing digitalisation of administrative justice, it is clear that some new political dynamics are emerging as a result of recent changes. Activists are using online crowdfunding platforms to fund challenges to the policies of the government in the courts, advancing their campaigns through social media. At the same time, a Conservative government – pursuing a long-term programme of fiscal austerity in response to the global financial crisis of 2008 – is attempting the most ambitious digitalisation of courts and tribunals ever seen.
Judicial review is the system through which an individual ought to be able to go to a court and ask for a review of whether state action in respect of a certain issue is lawful. If the answer is no, there are various remedies the court can deploy to ensure government complies with the law. In performing this role, the courts are often said to be doing the job of upholding the Rule of Law. This simple account of judicial review is, as Harry Street once observed, ‘a nice idea … but we just don’t have it.’ This has been so for a range of reasons in recent history. Perhaps the primary failing of the present judicial review system is one of expense: judicial review is a ‘Rolls-Royce’ process that few can afford. This state of affairs was recently described as ‘public law’s disgrace.’ have started to use crowdfunding platforms to raise money in order to bring judicial review claims.4 Crowdfunded claims have included high-profile ‘public interest’ challenges on new policies relating to junior doctors’ pay and the triggering of Brexit under Article 50 of the Treaty on European Union. Although there is an increasing volume of crowdfunded judicial reviews, little has been said about this change – a shift which is, essentially, citizens using technology to gain access to an administrative justice processes in a way they may not have otherwise been able to.
In this chapter I explain how crowdfunding works and the changes in practice we have seen in recent years, particularly in relation to public interest judicial review cases.
As the role of technology steadily grows in justice systems around the world, the UK Ministry of Justice (MoJ) and HMCTS have taken the step of being global pioneers. They are now in the process of putting many court and tribunal processes – as well as court administration systems – on to a digital footing. Tribunals – which hear many more challenges to the decisions of public authorities than the courts do via judicial review – are a major focus of these changes. Reforms to tribunals are expected to involve tribunal appeals being lodged, and potentially determined, online, with the idea of parties coming into contact with each other and a judge at an earlier stage than before. The changes is a government drive to cut the running costs of the justice system. As such, new online procedures are being coupled with court closures and significant reductions in the amount of court staff. While there is hope that online processes may increase access to justice for many, there is also concern that some may be digitally excluded from justice. At the same time, there is a worry that new online processes will not compensate adequately for reduced service provision in respect of traditional processes. Overall, these reforms represent a major policy gamble by a government under pressure to reduce costs: the gamble that technology-based solutions can provide more access to justice for significantly less money.
Tribunal reform is starting in the Social Security and Child Support Tribunal (SSCS) and then moving on to the First-tier Tribunal (Immigration and Asylum) Chamber (FtTIAC).
The recent MoJ and HMCTS digitalisation reforms, discussed in Chapter Three, have been developed primarily as an operational project. That is to say that, despite the reforms representing a major change to justice processes, there is expected to be comparatively little by way of substantive changes to the law (at least in the foreseeable future). The existing law will instead be given new practical enacting frameworks. This approach means that responsibility for deliberating on and developing digital processes has been left largely with civil servants within HMCTS and the MoJ, with Parliament only providing a ‘drip-feed’ of legislative activity and oversight thus far. Other developments in the digitalisation of administrative justice – such as the increasing use of automated processes in public sector decision-making – have seen similar patterns. At the core of the story of how digital technology is impacting administrative justice is therefore civil servants, their approach to process design and the government’s own IT capabilities.
One key trend in administrative justice design in UK central government is that it is increasingly influenced by ‘agile’ or ‘design-thinking’ approaches. This method is underpinning how many online administrative justice systems, including online tribunals, are being constructed, and is being widely promoted by leading technologists in government. Although many lawyers will not be familiar with it, design thinking is now a well-established field of study in its own right. The premise is that design as a cognitive process – a ‘more interpretative, intuitive mind-set that characterizes the arts and creative professions’ – does not have to focus on products alone but can be extended to other fields.
Digitalisation in the context of the administrative justice system presents a wide variety of issues. The case studies in this book have demonstrated that. It is essential that the ongoing incursion of digital technology into administrative justice is not seen as some distinct field of interest and activity, but as part of the core business of those concerned with public law and administrative justice. There will be no satisfying overall answer or theory that can be developed in response to this incursion. In administrative justice, generalisations are often unhelpful and rarely true. Different instances of digitalisation – whether they are imposed as part of public service provision or arise organically from technological innovation – need to be considered in their particular institutional and political contexts.
Given this, this book has sought to provide a framework for analysing unfolding developments in the digitalisation of administrative justice, and not an overarching prescriptive theory. It has argued that analysis must reflect on how developments with digital technology fit into the central and long-stranding administrative justice concerns of evidence, politics, models and design. It has highlighted the urgent need to study closely the empirical consequences of technology and revisit, and maybe even abandon, existing frameworks for understanding how administrative justice operates. By outlining this path forwards, I am essentially re-stating what Richard B. Stewart wrote at the end of his famous 1975 essay, ‘The reformation of American administrative law’, considering the role of administrative law in the context of a changing US state and polity: ‘[g]iven “the undefined foreboding of something unknown,” we can know only that we must spurn superficial analysis and simplistic remedies, girding ourselves to shoulder, for the indefinite future, the intellectual and social burdens of a dense complexity.’
The Home Office – the main UK public authority responsible for immigration – is keenly interested in identifying ‘sham’ marriages which are designed to game the immigration system.1 Since at least 2015, the department has used an automated system to determine whether to investigate a proposed marriage.2 Marriage registrars across the country transmit details of proposed marriages to the system via ‘data feeds’. The system applies eight ‘risk factors’ to assess the risk that a couple’s marriage is a sham. These risk factors include the couple’s interactions before the registrar, ‘shared travel events’, and age difference. The system allocates couples either a ‘green’ rating, indicating that no investigation is warranted, or a ‘red’ rating, indicating that an investigation is warranted to identify possible ‘sham activity’. This algorithm processes a large number of marriages each year. In a 12-month period across 2019 and 2020, the Home Office received 16,600 notifications of marriages involving a non-European national, of which 1,299 were subsequently investigated.
At dawn on 30 June 2014, Raja Noman Hussain awoke to find about 15 immigration and police officers raiding his house.1 Raja, a 22-year-old Pakistani man, had arrived in the UK several years earlier to study. Now he was being accused of cheating in an English language proficiency test approved by the Home Office, which he had sat in 2012 to meet a condition of his visa. After confirming his ID, the officers told him to grab some clothes, handcuffed him, and took him into immigration detention. Raja spent the next four months in detention, during which time he estimates he met over 100 other international students who had also been detained on the same basis. What followed was six years of legal battles over the cheating allegation, which disrupted his studies, estranged him from his family, and cost him around £30,000. Finally, in early 2021, Raja succeeded in clearing his name and confirming his right to be in the UK.
Raja was one of the tens of thousands of students whose visas were revoked or curtailed – and studies disrupted or ended – after the Home Office accused them of cheating in a government-approved English language test. This scandal eventually hit the headlines. The ensuing appeals and judicial reviews – which became known as the ‘ETS cases’ – have cost the government millions of pounds.2 What is less appreciated about this debacle is that much of it centred on a failed automated system: a voice recognition algorithm which the government used to identify suspected cheats. This chapter explores that side of the story.
Richard Bertinet is a chef who has lived in the UK since 1988.1 He runs a well-known and popular cookery school in Bath and has penned several award-winning recipe books. A significant portion of the UK’s population is made up of people like Richard – people who migrated from EU Member States and made the UK their home. There is still no exact, official count of how many EU citizens are resident in the UK by virtue of free movement rights, but we now know it to be more than four million.2 That group is embedded within communities across all walks of life. Some have been in the UK for decades, while others arrived more recently. Following the leave vote at the June 2016 Brexit referendum, the status of this group quickly became uncertain. Quite apart from negotiating the rules that would apply, there was the immense challenge of how the new rules would be administered fairly and effectively at the speed required by the Brexit process. In response to this challenge, the Home Office adopted a novel process, known as the EU Settlement Scheme, which included a combination of online applications, partially automated decision making, and cross-departmental data-sharing arrangements. For people like Richard, it was, in the words of then Home Secretary Amber Rudd MP, meant to be ‘as easy as setting up an online account at LK Bennett’.3 Many applications were processed quickly and successfully.