Joe Tomlinson: The Gap between Promise and Performance – Strong, Weak, Modest and Sham Systems of Administrative Justice

Administrative justice concerns how government makes decisions regarding, e.g., welfare and immigration, and how disputes arising from those decisions are dealt with, e.g., through tribunals, complaints processes, and judicial review. For many researchers interested in administrative justice systems, the ‘models of administrative justice’ have long held a dominant place in debate. The ‘models’ were developed initially in Jerry Mashaw’s seminal book on Bureaucratic Justice. They were subsequently challenged and modified by Michael Adler (Figure One shows the models with Adler’s amendments included). Other widely-cited attempts to model administrative justice have come from Robert Kagan, Simon Halliday, and Colin Scott. (For those less familiar with these ‘models’, Robert Thomas and I wrote a short primer for the UK Administrative Justice Institute—a more detailed overview is available in Buck, Kirkham, and Thompson.)

These models are, no doubt, very useful and have provided a sound basis for many insightful analyses and debates. Put simply: the models have helped administrative justice researchers have a better conversation. But the models only offer one way of thinking about administrative justice and it is important to keep thinking of new ways of talking about administrative justice: certain issues are not well-addressed by reference to the traditional models.

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Figure 1: Models of Administrative Justice

One of the other ways that administrative justice systems can be understood is as a distinct subset of constitutional law. It has long been observed that drawing a bold-line distinction between ‘the constitutional’ and ‘the administrative’ is a difficult—if not impossible—trick to pull off. But there are a range of reasons why thinking of administrative justice in constitutional terms may be helpful. For instance, administrative performance has been tied to constitutional performance. Moreover, the ability of a constitution to constrain administrative power is often a key touchstone for assessment of a constitution. Because of such links and overlapping concerns, frameworks developed in constitutional theory may provide some interesting insights when transferred to the administrative justice context.

In this short blog, I take a typology developed in constitutional theory and apply it to administrative justice. In its new context, it provides a useful framework for understanding and discussing the nature of administrative justice systems. In particular, it provides a framework for talking about the key issue of the gap between the promises of and the performance of administrative justice systems.

The framework that will be drawn upon is the ‘sham constitutions’ typology, constructed by David Law and Mila Versteeg. The purpose of the typology, the authors suggest, is to allow the gap between what constitutions proclaim to protect and the rights they actually protect in practice to be examined.  Their typology can be seen at Figure Two.

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Figure 2: Sham Constitutions Typology

Some explanatory notes must be added to explain how this typology works:

  • A sham constitution is defined as ‘the failure to perform upon self-imposed, publicly proclaimed commitments’.
  • Intention cannot be inferred from a sham constitution. It is possible that, in some instances, a more fitting name for a ‘sham’ constitution would be an ‘aspirational constitution’. The typology does not, however, seek to analyse intentions, just the space between promise and performance: the ‘focus is entirely upon observable behavior, and only the extent of constitutional compliance or violation matters’.
  • Some descriptively inaccurate constitutions are not fairly considered as ‘sham’ constitution as a country may uphold more rights in practice than it promises in its constitution. This justifies the distinction being drawn between constitutions that promise much and constitutions that promise little.
  • There is a spectrum quality to the typology. There may be, for instance, extreme sham constitutions and constitutions which are only just inaccurate enough to be considered sham.
  • Missing from this typology is the constitution that promises an average amount and delivers that amount (the ‘average constitution’). Such a constitution would sit at the centre of the quadrants.

In their article, Law and Versteeg applied the typology to world constitutions, drawing upon compliance data. The typology can, however, be transplanted with relative ease to discussions about administrative justice systems. Figure Three outlines the typology modified for such purposes.

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Figure 3: Sham Administrative Justice Systems Typology

Again, some explanatory notes must be added to clarify how this typology functions:

  • The typology has been amended but its core features remain intact. It offers a framework for talking about the gap between promises and implementation vis-à-vis administrative justice systems.
  • The model may be used at various ‘levels’ g. to categorise specific redress system in a particular policy sector or at the nation-wide level etc.
  • The possible deployment of this typology raises some questions. Most important are: (1) how do we establish what is promised of an administrative justice system; and (2) how can we assess the delivery of those promises? Answering these questions in precision terms may present analytical tangles. This is only to be expected: the world and the state is naturally not ordered neatly for the sake of analysis. But the same sort of (tricky) questions emerged for Law and Versteeg’s study of sham constitutions. There is no reason why—even if it is difficult—similarly thorny issues cannot be untangled in the administrative justice context.

To show how this typology may work in practice, it is useful to look at some examples. Two examples will be offered here. Both relate to the ‘sham administrative justice system’ category. The examples illustrate in outline: (1) how the ‘sham’ category can be a useful discursive tool; (2) the spectrum quality of the categories; and (3) the application of the typology at different ‘levels’.

A clear-cut case of a sham administrative justice system at a nation-wide level can be found in John H. Herz’s astonishing 1946 account of bureaucracy under the Nazi regime, which provides an outline of that government’s approach to administrative law and redress. For present purposes, his account is worth quoting at length:

“The tendency under Nazism was to do away with as much of administrative law and administrative tribunals as possible. The regime was nevertheless not entirely successful in this endeavour, although what remained of administrative justice was more impressive on paper than in actual practice.”

He continues:

“While the protection of individuals, groups, and corporations against executive power was progressively whittled down, particularly in the more “political” sphere, certain legal procedures were upheld in the non-political sphere. As a matter of fact, Nazis could even boast of having provided Germany with that crowning piece in the system of administrative justice which pre-Nazi Germany had failed to create: a Reich Supreme Administrative Tribunal, to take the place of the various highest administrative courts of the member states. But here, as so often in Nazi institutions, reality and appearance differed, and the impressive facade of a unified system of administrative courts hid the actual non-existence of administrative law and jurisdiction. At the outbreak of the war, what had remained of the traditional functions of administrative courts was practically abolished. The lower administrative courts were done away with, and lower administrative officials were allowed to decide in their place. Against the decision of such, complaint was to be lodged with the next higher administrative authority, which only in exceptional cases (e.g., where a decision involved major legal problems) could at its discretion permit the case to be brought before an administrative tribunal on the higher level. It was thus the deciding agency itself which had to agree to submit its decision to further review. Since the decrees quoted above strongly urged the authorities to avoid unnecessary legal proceedings, it is not surprising that the practice of administrative jurisdiction, including that of the Supreme Administrative Tribunal, diminished in quantity as well as importance.”

As described by Herz, administrative justice in Nazi Germany offers a paradigm example of a sham administrative justice system: ‘the impressive facade… hid the actual non-existence of administrative law and jurisdiction’.

Herz’s account offers an extreme example but the relevance of a ‘sham’ administrative justice system can be much closer to the here and now in developed democracies too. In the UK, for instance, there are commonly systems that are characterised by strong promise followed by severe underperformance.

Last year, there was a high-profile public debate over a contract between the UK tax authority (HMIRC) and a contracted US company (Concentrix). The contracted service in question concerned tax credits. Tax credits are administered by HMRC and they are aimed at people on low incomes. For many of those in receipt of tax credits, they are critically important. In 2014, HMRC contracted with Concentrix for the latter to undertake tax credit compliance checks. The policy goal was to reduce the amount of error and fraud. Eventually, there was public concern about the nature of these checks and the approach of Concentrix. These developments were documented in detailed blogs by Robert Thomas and I (see here and here), as well a report from the Commons Work and Pensions Committee. To summarise, a series of severe failures were identified. They included that: claimants were targeted due to the fact that they shared some characteristics with unrelated fraud or error cases; targeted claimants were sent letters informing them their tax credits would be stopped unless they could prove within 30 days that they were entitled to them; claimants were treated as guilty until proven innocent; and claimants seeking to prove their eligibility were not informed of the full basis of the suspicions against them.

It is not difficult to suggest—at least on the face of it—that the Concentrix scandal was ultimately about the mask falling from a sham administrative justice system. Of course, the ‘sham’ system in question is a less clear-cut example than the one considered above, but the stated promises were still clear from the UK government and the actual performance was some distance from meeting them.

These are just two examples and the suggested application of this typology in administrative justice would need much more extensive analysis. But this framework—as well as other models in constitutional theory—may offer useful ways of talking about administrative justice systems.  They may also help frame debate that the oft-used ‘models of administrative justice’ may not easily speak to, such as the gap between promise and performance.

Dr Joe Tomlinson is a Lecturer in Public Law at the University of Sheffield School of Law (UK). His research focuses on administrative law and justice.

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