It is not every day that a film about administrative justice wins a BAFTA. Ken Loach's success with I, Daniel Blake, a film in part about the protagonist's tragic encounters with the welfare-benefits system, breaks the mould.
Perhaps not surprisingly, on its release the film evoked starkly contrasting political reactions. For Jeremy Corbyn it was an apt portrayal of the “institutionalised barbarity” of the benefits system; Damien Green, then Work and Pensions Secretary, by contrast, thought it “monstrously unfair”.
I argue that I, Daniel Blake invites deep reflection on the relationship between the individual and the state, and, more particularly, on the role of administrative justice in restoring a re-imagined sense of citizenship.
“I am not a client, a customer, nor a service user”
At the end of the film, the implication is that the tribunal might at last provide closure and thereby constitute a welcome counterweight to the arbitrary bureaucracy that has caused Daniel Blake to suffer.
As Blake's testimony daubed on the wall of the job centre proclaims:
“I am not a client, a customer, nor a service user. I am not a shirker, a scrounger, a beggar nor a thief. I am not a national insurance number, nor a blip on a screen. I paid my dues, never a penny short, and proud to do so. I don't tug the forelock but look my neighbour in the eye. I don't accept or seek charity. My name is Daniel Blake, I am a man, not a dog. As such, I demand my rights. I demand you treat me with respect. I, Daniel Blake, am a citizen, nothing more, nothing less. Thank you.”
It is clear enough, however, that Daniel Blake's manifesto is far from merely a cry for better ‘customer care’ that has arguably been the focus of much bureaucratic interaction. On the contrary, it should be read as a sustained plea for a re-imagined sense of ‘citizenship’, civic pride and dignity.
To meet such an ambition, administrative justice must be recognised as an overarching set of principles and values, rooted in a framework of human rights and with a reinvigorated public-sector ombud-institution at its centre.
How the administrative justice system can be repositioned as an agent of institutional reformThe active state, as recognised in the 1950s and 1960s, can hardly escape ‘the problem of bureaucracy’ altogether: retreat to pre-bureaucratic familial, religious and charitable provision is not a just alternative.
The humanisation of state bureaucracy and the restoration of trust remain, however, a realisable goal, and in the light of the administrative justice and human rights tragedy which is ‘Grenfell Tower’, one whose realisation is demonstrably critical.
Recent developments in administrative justice
If the high watermark of administrative justice as a system was the UK government's White Paper, 'Transforming Public Services: Complaints, Redress and Tribunals', published in 2004, and the subsequent establishment of a new integrated Administrative Justice and Tribunals Council (AJTC) in 2007, the swift abolition of the AJTC by the coalition government in 2012 signalled its rapid demise.
Since then the oversight function for administrative justice as a whole has rested less securely and less influentially with the Administrative Justice Forum convened by the Ministry of Justice (MoJ). Now, in 2017, that Forum has also been abandoned, with aspects of its role devolved to an emerging partnership between the MoJ and the campaigning body, JUSTICE.
Meanwhile, the UK Administrative Justice Institute (UKAJI), funded by the Nuffield Foundation and based at the University of Essex, has since 2014 partially, but valiantly, held the fort, operating as a successful focal point for related multi-disciplinary research. UKAJI proposes an ‘overriding set of principles and values’, with which the administrative justice system might achieve renewal and a certain measure of repositioning towards the ‘restoration of trust’, ‘dignity’ and human rights.
Yet UKAJI's funding by Nuffield and has now ceased and its home within Essex University is secured only until later this year. .
Reviving the ombudsman
What then might be some of the resources for a ‘repositioning’ exercise? How might a progressive agenda for administrative justice begin to take shape?
Part of the answer lies in repositioning at the heart of the administrative justice system the ombud-institution at its most ambitious and most progressive. Far from the Ombudsman falling prey to the advances of judicialisation, the ombud and its technique should more boldly inform the practice of administrative decision-making more generally, including by tribunals and courts.
There are four re-emphases that such reinstatement might encourage, including a renewed commitment to overarching values and principles, as advocated by UKAJI.
The re-emphases are, in turn, concerned with the need to promote a more deliberative and less adversarial process of fact-finding; to recover as goal the importance of institutional reform and shared public benefit, rather than narrowly individual dispute resolution; to advance remedies that are restorative not just compensatory; and finally, to take a second look at human rights as a source of positive democratic value, as much associated with egalitarian social rights entitlement as with individual libertarian protections.
Nick O’Brien is Hon. Research Fellow, School of Law and Social Justice, University of Liverpool.
This article is adapted from a longer piece in the Political Quarterly journal.