Administrative Justice

The Constitutional and Administrative Justice Initiative (CAJI)

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In October 2022, the Essex Law School launched the Constitutional and Administrative Justice Initiative (CAJI). This builds on and extends the work of the UK Administrative Justice Institute which was established in 2014 with funding from the Nuffield Foundation to kickstart the expansion of empirical research on administrative justice in the UK. Since 2018, the Institute has been funded by Essex Law School to progress the priorities set out in its Research Roadmap.

Establishing CAJI reflects the importance of connecting research and scholarship on administrative justice with Essex Law School’s broader public law scholarship on constitutional justice, judicial review, comparative public law, constitutional theory, social justice and human rights.

CAJI’s core team

Maurice Sunkin KC (Hon), Professor of Public Law and Socio-Legal Studies, is co-director of CAJI and a member of the team that originally established the UK Administrative Justice Institute.

Theodore Konstadinides, Professor of Law, co-director of CAJI.

Lee Marsons, CAJI’s research officer.

CAJI also has an advisory group comprising of colleagues from the Essex Law School as well as other departments of the University of Essex and external participants from academia and NGOs.

The importance of constitutional and administrative justice

Constitutional justice concerns matters critical to the relationship between the citizen and the state, including adherence to the principles of supremacy of law, accountability before the law and fairness in its application. At its core, it concerns state protection of our constitutional rights such as liberty, equal protection under the law and procedural due process. This requires decision-makers to respect their constitutional responsibilities: that the legislature legislates, and the executive governs according to established constitutional principles and that both branches are politically and legally accountable. Hence, constitutional justice is often discussed in the context of constitutionalism meaning that in serving the people the legislature and the executive are themselves governed by fundamental rules rooted in the consent of the people.

A commitment to the rule of law and avoidance of arbitrary exercise of power by the executive and those acting on its behalf are vital components of constitutional justice and good government. The decisions of independent courts demand respect and play a vital role in providing redress to those adversely affected by state action, constraining the unlawful exercise of state powers, and safeguarding fundamental constitutional values.  

The impact of the European Union and the Council of Europe and its advisory bodies such as the Venice Commission have become key in the globalisation of constitutional justice. This development entails the consolidation of constitutional principles common to their signatories and the maintenance of coherent standards of constitutional rights protection.  Recent threats to the independence of the judiciary in several European countries show that we cannot assume that appropriate constitutional standards are easily enforced.

At its core, administrative justice is about ensuring that those delivering public services act justly and make correct decisions and about what can be done when things go wrong. It encompasses matters of everyday importance that affect most of us at some point, such as education, health care housing, immigration, land use planning, social security and taxation.

We are interested in how public services are designed and delivered, how legislation is drafted, how people are consulted about laws and policies, how people can challenge decisions by public bodies, how redress bodies consider those challenges, and how learning from such challenges is used to improve delivery and decision-making in the first place. These matters are of vital importance to society.

Professor Theodore Konstadinides, CAJI co-director and Academic Lead for Public Law, stated:

“The CAJI is a research hub within the Essex Law School that builds on the legacy of the UK Administrative Justice Institute and pays tribute to all the amazing research that colleagues like Andrew Le Sueur and Maurice Sunkin have undertaken in public law and socio-legal studies.

CAJI’s research agenda is ambitious in that it draws on many issues pertaining to the exercise of public authority at all levels with the aim of improving the quality of decision making and access to justice in the UK and at international level.

While it is an active research hub of the Law School, CAJI embraces academics from multiple disciplines and  acts as a forum to discuss how we conduct research where the doctrinal meets the empirical.

CAJI is also interested in how academic research can contribute on the ground by advising public bodies and NGOs about pertinent issues of public life and commenting about complex topics in a way that is accessible to the wider public. Questions related to institutional independence, just government, states’ international obligations, modern living environments, provide exciting opportunities for interdisciplinary research and postgraduate research study. Our work dovetails neatly with the University’s research priorities in social deprivation, sustainability and health and wellbeing.

We therefore invite prospective visiting researchers and PhD students to contact us in order to discuss their ideas and potential opportunities for future collaboration.”

How to find us

CAJI is based in the Essex Law School at Wivenhoe Park.

As part of this change, UKAJI’s website – available here – will be migrated to a dedicated webpage on Essex Law School’s website. All original content will be protected.

UKAJI also has a Twitter account which will be maintained during this process.

Understanding Administrative Law in the Common Law World: a Conversation

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Earlier this year, in March 2022, the Law School’s Public Law Cluster held a fascinating meeting to discuss Prof. Paul Daly’s book Understanding Administrative Law in the Common Law World, published by Oxford University Press.

Prof. Daly (Faculty of Law, University of Ottawa) talked about the fresh framework his book offers for understanding the core features of contemporary administrative law and distinguished guests commented on the book’s contribution:

Prof. John Bell (Emeritus Professor of Law, University of Cambridge) identified several questions that a comparative lawyer interested in European legal systems might have in reading this book.

Prof. Peter Cane (Senior Research Fellow of Christ’s College, University of Cambridge and Emeritus Professor, Australian National University College of Law) remarked that ‘divergence is just as important as convergence when it comes to either explaining or understanding administrative law across the common law world’. He pointed out that Prof. Daly has done an excellent job in tracing the convergences. 

Prof. Giacinto della Cananea (Bocconi University) described Prof. Daly’s work as ‘a healthy antidote to the recurring view that administrative law is no more than a deviation from the (supposedly) orthodox rules of law’. He made a series of useful points on Prof. Daly’s comparative approach to Common Law jurisdictions and continental European legal systems.

Prof. Daly’s response to the comments of the esteemed scholars can be accessed on the webpage of the British Association of Comparative Law here.

UKAJI’s ‘Emotions in Administrative Justice’ Blog Series – Call for Contributions

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Lee Marsons, PhD Candidate, School of Law, University of Essex

In this post, the UK Administrative Justice Institute (UKAJI) invites contributions to a new series of blogs on the theme of ‘Emotions in Administrative Justice’. Designed to explore and extend the growing but nascent research in this area, the objective is for the series to be developed as a special issue of a journal at a later date. Among other things, contributions might explore the emotions and emotional concerns experienced by various actors and participants in the administrative justice system, what emotions and emotional processes are of particular relevance to administrative justice and why, and how public administration can be reformed to lessen negative, and enhance positive, emotional impacts.

Emotions in administrative justice

As Lisa Flower (2018) has eloquently put it: “The law is a peculiar paradox of unemotional emotionality. Whilst the involvement of emotions in law…is so obvious as to make its articulation seem almost banal…the centrality of emotions is often stifled, overlooked or rejected in order to lift the rationality of law (p. 16-17).”

In spite of the often claimed aspiration of administrative justice to ‘humanise the state bureaucracy’ and despite a comparatively healthy literature on emotion in alternative dispute resolution, as a whole administrative justice scholarship is little more nuanced, subtle, and sophisticated in its approach to emotions than legal scholarship generally. Indeed, with exceptions like Sharon Gilad’s research on ‘emotional labour’ in the Financial Ombudsman Service, emotions and administrative justice are not phrases commonly seen, understood, or analysed together.

That is a pity. It is not difficult to imagine the potentially salient and powerful connections between the two. As UKAJI has explained:

“Administrative justice concerns how we interact as individuals when the government, or those working on its behalf, act in ways that appear wrong, unfair or unjust. It encompasses matters of everyday importance to all of us, such as housing, education, health care, immigration, planning, social security and taxation.”

Thus, administrative justice can be the difference between whether someone is housed or not, receives social security payments or not, is forcibly expelled from the country or not, or gains justice after state maladministration in healthcare or not. For at least this reason, emotion lurks beneath the surface of administrative justice, and is perhaps at its core, whether or not it is at the forefront of professional analysis.

In initiating this blog series, the purpose is to link together administrative justice and the area of socio-legal scholarship known as ‘law and emotion’, which focuses on how law and its actors, procedures, and institutions are, could be, or should be related to human emotions. As a genre, this was originally devised by Susan Bandes in her edited volume, The Passions of Law.

To give a basic overview of what is meant by emotion, Lindquist et al (2013) suggest that:

“[E]motion refers to some change in subjective experience, autonomic responses (e.g., heart rate, respiration, electrodermal activity), physical action (or an increased likelihood to perform an action, such as facial muscle movements, skeletal muscle movements, etc.), as well as some perception, thought, or judgment of the surrounding world.”

It is this complex, multi-dimensional, multi-level process at the frontier of psychology and biology, that may produce commonly known ‘discrete emotions’, such as anger, anxiety, frustration, happiness, sadness, guilt, fear, and so on. Nevertheless, there are many theories and definitions of emotion, hailing from a variety of theoretical, philosophical, scientific, and methodological perspectives, and it would not be sensible to forestall debate on what emotion might mean in the administrative justice context at this stage. For now, the key question is: if emotion exists in administrative justice processes – like it exists in all other human processes – what, if anything, do we do about it?

Talking about emotions without talking about emotions

In their research on Swedish judges and defence lawyers, Bergman Blix and Wettergren (2018) argue that legal professionals develop means of ‘talking about emotions without talking about emotions’ (Stina Bergman Blix & Asa Wettergren, Professional Emotions in Court: A Sociological Perspective (1st edn, Routledge 2018 p. 7). That is, professionals are prepared to invoke suspiciously emotion-like, emotion-related, and quasi-emotional concepts (like intuition and empathy), but rarely, if ever, use the word emotion per se. There is a similar trend in administrative justice.

Even a modest attempt at research reveals that, irrespective of whether the exact word emotion is used, things sounding suspiciously like emotions have been attracting considerable attention in the world of public administration and administrative justice in recent years. This attention has operated at a range of levels. Some has focused on the macro-societal level of the country at large. Since 2015, for instance, the Office for National Statistics has produced data about nationwide personal well-being, which attempts quantitative measurement of experiences like happiness and anxiety in the general population. In addition, in a report for the Carnegie UK Trust, Julia Unwin explored the role that kindness might play in public administration, ranging from social security, to healthcare, to education, to housing.

Other attention, however, has focused on much smaller levels of analysis, down to the micro-level of individual administrative actors. The then Secretary of State for Communities and Local Government, for instance, declared in March 2018 that the Grenfell Tower Inquiry Chair, Sir Martin Moore-Bick, should manage the process with ‘empathy’ (House of Commons Hansard, 22 March 2018, Vol. 638 Col. 411).

Between the macro- and micro-levels, some scholars have focused on the meso-level of particular organisations or institutions of government. Nicola Glover-Thomas (2019), for instance, has investigated how the system of mental health tribunals could be made more therapeutic for mentally vulnerable persons, including through empathetic practice. And Kit Collingwood-Richardson, Deputy Director of Universal Credit at the Department for Work and Pensions, has argued that: “[W]e need to develop our empathy, both individually and at organisational levels. Higher-empathy policymaking practice leads to better policy, which leads to better services, which leads to efficiency and cost savings, as well as happier people out there in the real world.”

Similarly, the Local Government and Social Care Ombudsman now expressly describes one of its values as being: ‘Listen carefully with respect and empathy.’ Anna Bradley, chair of Healthwatch England, has encouraged the use of compassion in LGSCO complaints-handling: ‘Compassion is key to good complaints handling, remembering that those affected are people not case files.’ One of the few commentators to – almost – use the word emotion without obfuscation include the current Parliamentary and Health Service Ombudsman, Rob Behrens, who told the PACAC in January 2019 that: ‘We have to be more emotionally intelligent to deal with…cases on a daily basis.’

It is this growth of ‘talking about emotion without talking about emotion’, combined with its potential salience to administrative justice as mentioned above, that prompts UKAJI to initiate this call for contributions in this under-developed, but potentially fertile, field.

Questions to consider and research outputs

Abrams & Keren (2010) suggest that law and emotion scholarship has three key potentials: “to illuminate the affective features of legal problems;…to investigate these features through interdisciplinary analysis; and…to integrate that understanding into practical, normative proposals.” (p. 2002).

With this in mind, UKAJI encourages contributors to illuminate, to investigate, and to integrate emotion in administrative justice. UKAJI’s primary focus has always been on developing and using research to understand how the systems of administrative justice operate and to put forward sensible and robust proposals for reform based on this understanding. In this vein, this series offers an opportunity to advance and improve our knowledge of the role of emotion in administrative justice, a field hitherto under-acknowledged, under-developed, and under-explored, but potentially critical. In addition, the series offers the chance to develop reform proposals, whether modest or radical, in light of this new knowledge. The medium-term end goal would be to develop the contributions as a special issue of a socio-legal journal.

Without being prescriptive or proscriptive, readers may wish to consider the Table below, which outlines potential analytical approaches to contributions in the series:

Possible analytical approaches to emotion and administrative justice. This has been adapted from Maroney’s (2006) taxonomy of law and emotion scholarship (p. 126).

Further information

Please find UKAJI’s format and style guidelines here. To express interest or for further information on the series, please contact Lee Marsons on lm17598@essex.ac.uk.

This post is originally appeared on the UKAJI’s blog and is reproduced here with permission and thanks.