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Public law litigation is in the process of going digital and, as a result, we are on the brink of a possible paradigm shift. A rather short (16-page) and anodyne-looking 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. The document sets out, among other things, a vision for tribunals to include online hearings, traditional in-person hearings, and a mixture of the two. It states there will be a new—simpler—online procedure, with the aim of assisting lay users through the system. It tells us that, for those uncomfortable with or unprepared for digital, there will be support offered. Its vision also introduces the notion of ‘continuous dispute resolution’—where judges can determine the right point, in terms of the extent of the evidence gathered, to decide a claim.
While there is clear ambition on display in Transforming Our Justice System, there is only a broad-bush 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 we do know is that the digitisation work on tribunals will be initially developed and piloted in the Social Security and Child Support Tribunal, and work has already begun in that respect.
This new age of tribunals brings with it new political and policy dynamics, which bear on the design process and, ultimately, the resulting system. It is important that these new dynamics are recognised and understood. In this blog, I draw attention to one relatively new and increasingly important policy approach which is exerting growing influence in administrative justice: design thinking.
What is design thinking?
Though many administrative lawyers will not be familiar with it, ‘design thinking’ is now a well-established field of study in its own right. Initially emerging in the 1960s and 1970s (e.g. from Simon’s The Sciences of the Artificial and McKim’s Experiences in Visual Thinking), the notion of design as a ‘way of thinking’ was fleshed out by landmark works in the 1980s (e.g. Lawson’s How Designers Think). While there is debate about the exact nature of design thinking and the methods associated with it, the gist of the approach is to place emphasis on quick prototyping, frequent testing, and the user-perspective. This is often expressed in the five-part, non-linear design process of empathising with users, defining the problem, ideating, prototyping, and testing.
A wide range of specific methods—such as journey and stakeholder mapping—have now been associated with and developed in accordance with the design thinking approach. Alongside the development of design thinking as a mode of thought, there has been the contemporaneous application of it to a diverse range of pursuits: architecture, business, and management, to name only a few. Stanford University has a department dedicated to this work (the d.school), which now incorporates a Legal Design Lab led by Dr Margaret Hagan. As its influence continues to expand, design thinking now appears to be knocking on the door of administrative justice.
How is design thinking affecting administrative justice and the digitisation of tribunals?
There are many examples of how design approaches are infiltrating government bodies, including those with responsibility for designing key systems of administrative justice. Here, I will focus on just one example relevant to tribunals digitisation.
After Transforming Our Justice System, the Government Digital Service (GDS) is now an important new designer within the administrative justice system. GDS is a part of the Cabinet Office and its task is to be the centre of excellence for the digital ‘transformation’ of government. The digitisation of tribunals is a large-scale IT project. This means that GDS’s cross-government team work directly on the project, providing not only technical know-how but also influencing approaches to digital tribunal design. As part of their remit, they have a clear stake in controlling the outcome of the project.
There are clear overtones of the design thinking philosophy here and GDS has a conscious strategy of adopting design approaches. For instance, GDS holds cross-government ‘design meetings’ every eight weeks, where the government ‘design community’ (for which there is an assigned manager within the civil service) come together to find out what other departments are working on, share stories, and meet each other face to face. This is only ‘one of the many rituals that bring government designers together’. In February 2017, a design meeting attended by more than 100 senior government officials focused on how design cultures can be built. The meeting included presentations from designers in government, a workshop on design culture, and talks from external speakers ‘to provide some inspiration and an outside government, commercial perspective’ (the company concerned was Deliveroo).
The GDS example is just one aspect of the early stages of a cross-government effort to build a policy culture based on design thinking. The epicenter of this push within government is Policy Lab—a small team within the Cabinet Office established in 2014. The remit of Policy Lab is to support policymakers to transform their approach to policymaking by demonstrating new tools and techniques, generating new knowledge and skills, and facilitating a long-term shift in policymaking practice. Though the core team is relatively small, Policy Lab works with a range of ‘partners’ within government and sees its work as pushing for design-led change within the policymaking community. It has a mandate to engage policymakers across departments in order to explore what new tools and techniques they could adopt. Policy Lab has occasionally integrated directly with various HMCTS and Ministry of Justice projects, and its methods have widely filtered down more generally (including through the work of GDS).
It is difficult to be clear, without empirical investigation, about the extent to which design approaches are consciously being adopted across the administrative justice work of the Ministry of Justice and HMCTS, but there already seems to be a serious level of commitment to such approaches (see, for instance, the posts on the Inside HMCTS blog). Regardless of who or what the driving forces are, it is apparent that design thinking methodologies are being used in the process of tribunal digitisation and form one aspect of the emerging political and policy dynamics surrounding this new phase of administrative justice.
Is design thinking good for administrative justice?
As the details of the tribunals digitisation project emerge, it will be necessary to flesh out a much fuller analysis of the potential risks and benefits attached to those developments. This presents an immense challenge for researchers. The point made in this blog is that, as part of that project, we must develop a critical understanding of the new political and policy dynamics surrounding digitisation. So, for instance, we must ask: is the expanding use of design thinking approaches good for tribunals and for administrative justice?
In a recent article, leading Canadian administrative law scholar Lorne Sossin states his belief that ‘design frameworks will transform how we think about 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’. In the places where design has been more deeply considered, Sossin claims this has been done principally in a ‘legal’ sense—raising questions relating to, e.g., the clarity of statutory mandates, protections of tribunal independence, and the procedures and rules by which a tribunal will function. Sossin claims that, on a design thinking approach, ‘operational’ issues such as staffing and resources are integrated with conventional ‘legal’ questions of statutory authority etc.—it being ‘neither possible nor desirable’ to separate them out. His ultimate claim is that the application of design thinking, with its ‘bottom-up’ philosophy, will lead to overall better systems.
Sossin’s argument offers good reasons why design thinking is good for administrative justice. But some fundamental questions remain. The existence of these questions does not necessarily undermine the case in favour of the approach. Instead, they are issues which need further investigation. One important question, for instance, is how far design thinking can be realistically incorporated within current design processes. Very little information is available about how administrative justice systems are designed, and not much research has been undertaken on this (Le Sueur and Bondy’s work on this topic being a rare exception). A clear and comprehensive answer to this question requires an understanding of the internal processes of the relevant administrative bodies. But, broadly speaking, it is questionable how far design thinking can be realistically implemented and whether it will simply be overridden by traditional policy concerns, such as system-costs. There are also concerns that have been expressed about design thinking itself. For instance, it could be suggested that it represents the further encroachment of neoliberalism and the logic of the market on the public sector.
For my own part, I think that the application design thinking—for the reasons set out by Professor Sossin—could be useful, so long as it is implemented appropriately and with integrity. In many respects, the adoption of design thinking is indicative of the government’s commitment to understanding the ‘user-perspective’—which has been consistently reaffirmed since the 2004 White Paper on Transforming Public Services–being taken more seriously. Whatever one’s view on its merits, design thinking is increasingly important within the administrative justice sector, and forms part of the new political and policy dynamics emerging with the digitisation agenda. It therefore warrants further investigation and scrutiny.
Dr Joe Tomlinson is a Lecturer in Public Law in the School of Law the University of Sheffield and is currently a Visiting Scholar at Osgoode Hall Law School. The author thanks Brian Thompson for discussions around this topic. He is also grateful for input from Jeff King.
(Suggested citation: J. Tomlinson, ‘The Policy and Politics of Building Tribunals for a Digital Age: How ‘Design Thinking’ Is Shaping the Future of the Public Law System’, U.K. Const. L. Blog (21st Jul 2017) (available at https://ukconstitutionallaw.org/))