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Adler ADMINISTRATIVE JUSTICE 323

A Socio-Legal Approach to Administrative Justice*


MICHAEL ADLER

The rst part of this article outlines two complementary approaches to enhancing administrative justice. Internal mechanisms, which can be put into place by government departments and public bodies themselves, are contrasted with external mechanisms, which result in the imposition on government departments and public bodies of principles enunciated by courts, tribunals, and ombudsmen. Lawyers are all too familiar with the external approach but tend to be much less familiar with the internal approach. The article seeks to redress this imbalance. It emphasizes the importance of the internal approach, not as an alternative but, rather, as a complement to the external approach and develops a framework for analyzing administrative justice in terms of trade-offs between different normative models of administrative decision-making. The second part of the article demonstrates how this approach to the study of administrative justice has informed research on the impact of computerization on social security in the United Kingdom; on decision making in the Scottish prison system; on the assessment of special educational needs in England and Scotland; and on the computerization of social security in thirteen countries. The article concludes by attempting to show that this approach to the study of administrative justice satises all the dening characteristics of the socio-legal paradigm.

I. INTRODUCTION

The aims of this article are to develop a theoretical framework for analyzing administrative justice and to show how it has been applied in empirical research on administrative decision-making. The term administrative justice is used in the article to refer to the principles that can be used to evaluate the

* The author would like to record his considerable indebtedness to Roy Sainsbury, Brian Longhurst, Enid Mordaunt, Sheila Riddell, and Paul Henman, who not only collaborated with him in the research described in this article but also helped to clarify his thinking on administrative justice. He would also like to thank Denis Galligan, Neville Harris, and Simon Halliday for their very helpful criticisms of earlier versions of this article, and two anonymous referees whose comments forced him to sharpen up his arguments. Address correspondence to Professor Michael Adler, School of Social and Political Studies, University of Edinburgh, Adam Ferguson Building, George Square, Edinburgh EH8 9LL, United Kingdom. Telephone: 0044-131-650-3931; e-mail: michael.adler@ed.ac.uk. LAW & POLICY, Vol. 25, No. 4, October 2003 ISSN 02658240 Blackwell Publishing Ltd. 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK, and Blackwell 350 Main Publishing Street,Ltd. Malden, 2003 MA 02148, USA.

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justice inherent in administrative decision-making. This comprises procedural fairness, which is concerned with the process of decision making, that is, with the ways in which individual citizens are treated, as well as substantive justice, which refers to the outcomes of decision making, that is, to the benets or burdens that are conferred on individual citizens. The use of the term justice in this context has been questioned but, in light of the fact that the principles referred to above are normative principles that embody legitimate expectations, it is contended that this is an entirely appropriate use of the term. The article is in two parts. The rst part of the article outlines two complementary approaches to the enhancement of administrative justice an approach that emphasizes external forms of accountability and focuses on the small number of decisions that are the subject of an appeal or complaint and an approach that emphasizes internal forms of accountability and focuses on the much larger number of rst-instance decisions. External mechanisms of accountability are necessary for the achievement of justice in administrative decision-making but, on their own, they are not sufcient to ensure administrative justice. An argument is therefore made for the importance of internal mechanisms, not as an alternative but, rather, as a complement to external mechanisms. The article develops a theoretical framework for analyzing administrative justice in terms of the trade-offs between different normative models of administrative decision-making and, in the second part, demonstrates how it has informed empirical research on the impact of computerization on social security in the United Kingdom; on decision making in the Scottish prison system, on the assessment of special educational needs in England and Scotland, and on the computerization of social security in thirteen countries. It should be noted that most of the examples cited in the rst part of the article are British and that three of the four studies described in second part refer to Britain (the fourth study was explicitly comparative). However, the general approach to administrative justice outlined in the article undoubtedly has more general application. The article concludes by distinguishing four key modes of legal scholarship: law in action; doctrinal or black-letter law; legal, political, and social philosophy; and socio-legal studies and attempts to demonstrate that the approach outlined in the paper exemplies the sociolegal paradigm.

II. DEVELOPING A THEORETICAL FRAMEWORK FOR ANALYSING ADMINISTRATIVE JUSTICE

One orientation to administrative justice equates it with a set of principles that are imposed on government departments and public bodies by institutions that are external to them, in particular by the courts but also by tribunals and agencies like ombudsmen, as a result of individual challenges to

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Adler ADMINISTRATIVE JUSTICE 325 administrative decisions. Another orientation sees it as a set of principles that are put into place internally, that is, by government departments and public bodies themselves, as a result of some internal monitoring of their administrative decisions. The distinction is an analytic one, and, in practice, the two orientations are frequently combined. This makes a great deal of sense because the aims of the two approaches are, in many respects, complementary the former is backward-looking and is primarily concerned with providing individuals with a mechanisms for redressing any injustice they may have experienced while the latter is forward looking and aims to promote justice in administration for the benet of all and, although it is undoubtedly important that mechanisms for redressing injustice should exist, it is equally important that efforts should be made to prevent injustice from arising in the rst place.1 Each of the two orientations is considered in turn.
A. EXTERNAL ORIENTATIONS

1. Procedural Protection for Adjudicative Decisions As Harlow and Rawlings (1997:495) note, there has been a general tendency for the courts to model the administrative process in their own adjudicative image. Fuller (1978:353) has argued that the distinguishing characteristic of adjudication is to confer on the affected person a peculiar kind of participation in the decision, that of presenting proofs and reasoned arguments for a decision in his favor. This implies that, for a decision to be adjudicatory, certain procedural constraints must be placed on the decision maker. The model of procedure that facilitates the presentation of proofs and reasoned arguments is exemplied by the criminal and civil courts but is also found in other settings, such as tribunal proceedings, which share some of the same features. Actual decision making may have all or some or none of the characteristics of adjudication, and Harlow and Rawlings (1997:496) conceive of a sliding scale the closer to the ideal type outlined above, the more judicialized the process and the more the courts will insist on applying the rules of natural justice; the further away, the less judicialized the process and the less the courts will insist on applying such principles.2 Seventy years ago, the Donoughmore Committee on Ministers Powers (Great Britain 1932:74) sought to distinguish three categories of decision making, namely judicial, quasi-judicial and administrative decisionmaking, each of which was based on a different type of dispute; but its thinking was crude and its arguments circular. The Committees approach had some attractions for green light theorists, who assume that the state is the only effective guarantee for individual freedom, because it serves to insulate administrative decisions from legal scrutiny, and emphasize the role of legislation and regulation rather than the use of the courts. However, this approach has been criticized on the grounds that it is very difcult (if not

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impossible) in practice to separate these three types of functions, and because one effect of applying it would be to deprive large numbers of decisions of any procedural protection on the grounds that they are administrative. The Committees approach had little attraction for red light theorists, who assume that the state is a threat to the freedom of the individual and favor a strong role for the courts in scrutinizing the legality of administrative decisions.3 Exponents of exible protection claim that it provides a way around the problems of classifying decisions into those that are adjudicatory and those that are administrative and a way of applying the rules of natural justice only to the former while the latter are not given any protection at all. Mullan (1975:25) recognizes that different types of decision making have different procedural requirements and argues that the more closely they resemble straight law/fact determinations resulting in serious consequences for those concerned, the more legitimate is the demand for procedural protection; while the more closely they resemble broad, policy-oriented decisions, the less they are in need of such protection. Although this approach avoids the problems associated with a rigid division of decisions into two types and claims to recognize that different types of decisions require different forms of procedural protection, it operates with a model of administrative justice that provides no protection for decisions that involve the application of policy. A further problem is that the optimum degree of protection is not instantly recognizable and that a fair measure of discretion is required. This position has led Harlow and Rawlings (1997:510) to question how far it is the courts job to pursue the optimum form of procedure for different kinds of decision. They question whether judges have the information or the expertise needed to determine the particular form of procedural protection that is appropriate for different types of decisions and, even, whether such an activity is consistent with the rule of law. Leaving these normative issues aside, they claim (ibid.:516) that, in recent years, there has been a measure of increased judicial activism and of greater exibility of response. However, such developments still leave broad swathes of administrative decisions unprotected by the courts. Disputes between the citizen and the state are more likely to be heard by a tribunal than by a court and, in the 1950s, the Franks Committee (Great Britain 1957) enunciated three principles that apply to tribunal decisionmaking. According to Franks (ibid.: para. 42), these principles are openness, fairness, and impartiality: openness requires publicity for the proceedings and knowledge of the essential reasoning underlying the decision; fairness requires the adoption of clear procedures that enable the parties to understand their rights, present their case fully, and know the case that they have to meet; while impartiality requires freedom from the inuence, real or apparent, of departments concerned with the subject matter of their decisions. However, it should be noted that these principles apply to tribunals that hear appeals

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Adler ADMINISTRATIVE JUSTICE 327 from rst-instance, administrative decisions and not to the decisions themselves, and that, in any case, they represent good practice and are not enforceable. Although the role of the Council on Tribunals, set up under the Tribunals and Inquiries Act 1959, is to keep the constitution and working of tribunals under review, its powers are very limited. 2. Procedural Protection for Administrative Decisions The rst Parliamentary Commissioner for Administration (PCA) was appointed in 1967 to deal with grievances from individuals who felt they had suffered an injustice arising from maladministration by a central government department for which there was no available remedy. Maladministration was not dened in the Parliamentary Commissioner Act 1967 that established the PCA, although the Leader of the House of Commons, Rt. Hon. Richard Crossman, MP, described it as including: bias, neglect, inattention, delay, incompetence, ineptitude, perversity, terpitude, arbitrariness and so on (Great Britain 1966: col. 51). Subsequently, a Parliamentary Commissioner, Sir William Reid, elaborated on Crossmans list by giving more examples of what the term covers (Great Britain 1993: para. 7).4 Injustice was likewise not dened in the Act but, for a complaint to be upheld, the PCA must conclude that the individual suffered some kind of loss that would otherwise not have occurred. A number of other ombudsmen have subsequently been established to deal with complaints about services in the public sector that fall outside the PCAs remit. They include the Health Services Ombudsmen for England and Wales and for Scotland; the Commissioners for Local Administration (CLA) for England and Wales and for Scotland; the Housing Association Ombudsmen for England and Wales and for Scotland; and the Scottish Parliamentary Ombudsman.5 In addition, some public services, for example, the Inland Revenue; the Customs and Excise Department; the Police Service (in England and Wales, and in Scotland); the Prison Service (in England and Wales, and in Scotland); and the Driver and Vehicle Licensing Agency (DVLA) have set up procedures for investigating complaints of maladministration against them. There are also ombudsmen covering various private-sector services such as banking, broadcasting, building societies, estate agents, funerals, insurance, investments, legal services, and pensions but, with the exception of the Legal Services Ombudsmen for England and Wales and for Scotland and the Pensions Ombudsmen, they do not have statutory powers.6 Ombudsmen use inquisitorial methods to investigate allegations that maladministration has given rise to injustice. Although, in a given case, they may nd evidence of maladministration that has not given rise to any identiable injustice, their approach to administrative justice is, in effect, an instrumental one. Where a complaint that maladministration has given rise to injustice is upheld, they may impose remedial action on the organization that

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was the subject of the complaint; award compensation to the complainant; or instruct the organization to issue an apology.7 In addition to providing remedies for those who complain, ombudsmen may order the organization complained of to modify its administrative procedures. However, although an organization may wish to do so to avoid more complaints in the future, there is, in general, no systematic check on whether or not it has done so. Ombudsmen are independent of the organization against which the complaint is made; no legal (or other) representation is required, and complainants are not subject to any charges. Independence should, in theory, guarantee impartially, but this may be compromised in practice by the fact that the ombudsmans staff is often drawn from, and sometimes return to, the organizations against which complaints are made.8 In addition, there are often barriers that have to be surmounted before a complaint can be made to an ombudsman, and, except for the CLA in Northern Ireland, ombudsmens remedies are not legally enforceable (Himsworth 1985). In spite of these shortcomings, and in the absence of any systematic empirical evidence on the subject, ofcial reports indicate that the opportunity of complaining to an ombudsman has contributed, if only to a small extent, to enhancing the justice inherent in administrative decision-making. While most people have looked to courts, tribunals, and other forms of accountability, such as ombudsmen, which are external to the locus of administrative decision-making, as the means of achieving administrative justice,9 the available evidence does not suggest that this approach is particularly effective on its own. This is, in part, because few of those who experience injustice actually appeal to courts, tribunals, or ombudsmen; in part because court, tribunal, and ombudsman decisions have a limited impact on the corpus of administrative decision-making.10 As a result, as Ison (1999:23) points out, the total volume of injustice is likely to be much greater among those who accept initial decisions than among those who complain or appeal. There is, of course, considerable variation in the impact of different forms of external accountability on administrative decision-making. The more authoritative the judgments are, the more publicity is given to them, and the stronger the enforcement procedures are, the greater the impact they are likely to have and the more effective they are likely to be in achieving administrative justice.11 In considering the impact of judicial review, Halliday (2001) identies three sets of conditions for successful impact: the model of administrative justice enunciated in the judgment must be coherent and consistent with the existing body of law; decision makers (administrators) must be legally conscientious, that is, they must be committed to legality; and the decision-making environment must ensure that the model of administrative justice enunciated in the judgment is given priority over other models. More often than not, one or more of these conditions is not met, and it is for this reason that Mashaw (1974:776) has argued that additional safeguards, such as internal quality controls or quality assurance systems, are needed to enhance administrative justice.
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B. INTERNAL ORIENTATIONS

1. Mashaws Approach In his pioneering study of the American Disability Insurance (DI) scheme, Mashaw (1983:2122) detected three broad strands of criticism leveled against it: the rst indicted it for lacking adequate management controls and producing inconsistent decisions; the second for not providing a good service and failing to rehabilitate those who were dependent on it; and the third for not paying enough attention to due process and failing to respect and uphold the rights of those dependent on it. He claimed that each strand of criticism reects a different normative conception of the DI scheme, that is, a different model of what the scheme could and should be like. The three models are respectively identied with bureaucratic rationality, professional treatment, and moral judgment. Mashaw (ibid.:24) denes administrative justice (the justice inherent in routine day-to-day administration) in terms of those qualities of a decision process that provide arguments for the acceptability of its decisions. Two points of clarication are called for here: by acceptability, it should be assumed that Mashaw means something like legitimacy, and by decisions that he is referring to outcomes. Although one could infer from this that he takes an instrumental approach to administrative justice, this is not the case. On the contrary, his denition of administrative justice acknowledges that it can contribute to the acceptability of decisions or outcomes even when these decisions or outcomes are incorrect. The signicance of administrative justice is that it can legitimate such decisions. It follows from Mashaws denition that each of the three models he described is associated with a different conception of administrative justice. Thus, there is one conception of administrative justice based on bureaucratic rationality, another based on professional treatment, and a third based on moral judgement. According to Mashaw (ibid.:31), each of these models is associated with a different set of legitimating values, different primary goals, a different organizational structure, and different cognitive techniques. These are set out in the Table 1 below. Although this is very helpful, the association of fairness with one of the models (the moral judgment model), and the implication that the two other models are unfair, is unfortunate. In addition, Mashaws characterization of the three models reects an exclusively internal orientation to administrative justice in that it makes no reference to external mechanisms for redressing grievances. With this in mind, Table 1 has been revised. Table 2 renames the three models (it refers to them as a bureaucratic model, a professional model, and a legal model), alters the ways in which they are characterized,12 and highlights redress mechanisms that include external as well as internal procedures for achieving administrative justice. This is important because internal and external procedures should not be seen as alternatives,
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Table 1. Three Normative Models of Administrative Justice Original Formulation


Model Legitimating Values Accuracy and Efciency Service Primary Goal Structure or Organization Hierarchical Interpersonal Cognitive Technique Information Processing Clinical Application of Knowledge Contextual Interpretation

Bureaucratic Rationality Professional Treatment Moral Judgment

Program Implementation Client Satisfaction Conict Resolution

Fairness

Independent

Source: As set out by Mashaw (1983:31).

Table 2. Three Normative Models of Administrative Justice Revised Formulation


Model Mode of Decision Making Applying rules Applying knowledge Asserting rights Legitimating Goal Accuracy Expertise Mode of Accountability Hierarchical Interpersonal Characteristic Remedy Administrative review Second opinion or complaint to a professional body Appeal to a court or tribunal

Bureaucratic Professional

Legal

Legality

Independent

Source: Based on Adler and Longhurst (1994:44).

and it is important to recognize that, for good reasons, they are frequently combined. Mashaw (1983:23) contends that each of the models is coherent, plausible, and attractive and that the three models are competitive rather than mutually exclusive. Thus, they can and do coexist with each other. However, other things being equal, the more there is of one, the less there will be of the other two. His insight enables us to see both what trade-offs are made between the three models in particular cases and what different sets of trade-offs might be more desirable. His approach is a pluralistic one, which recognizes a plurality of normative positions and acknowledges that situations that are attractive for some people may be unattractive for others. Mashaws pluralism can be contrasted with the communitarian version of pluralism adopted by other writers on justice, most notably by Walzer. Walzer (1983:6) accepts that the principles of justice are themselves pluralistic in form [and that] different social goods ought to be distributed for different reasons, in accordance with different procedures, by different agents. However, he also claims (ibid.:89) that the meaning of the goods in question determines their distribution and argues that if we understand what it is, what it means for those for whom it is a good, we understand how, by
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Adler ADMINISTRATIVE JUSTICE 331 whom, and for what reasons it ought to be distributed.13 Although Walzer accepts that social meanings are historical in character and that what is regarded as just and unjust changes over time, he nevertheless assumes a degree of normative consensus in a given community, which stands in stark contrast with Mashaws assumption of normative conict. The trade-offs that are made, and likewise those that could be made, reect the concerns and the bargaining strengths of the institutional actors who have an interest in promoting each of the models, typically civil servants and ofcials in the case of the bureaucratic model; professionals and street level bureaucrats (Lipsky 1980) in the case of the professional model; and lawyers, court and tribunal personnel, and groups representing clients interests in the case of the legal model. These trade-offs vary between organizations and, within a given organization, between the different policies delivered by that organization and between the different stages of policy implementation. They also vary over time and between countries. In the case of the (American) DI scheme, Mashaw concluded that, in the early 1980s when he carried out his study, bureaucratic rationality was the dominant model and, notwithstanding variations within and between countries, it is at least arguable that bureaucracy is, and always has been, the dominant model as far as the administration of social security is concerned. However, the professional model may be dominant in other policy elds, for example, in the delivery of health care. Although the legal model is clearly of greater importance in countries with a strong rights culture, it has rarely supplanted the dominant bureaucratic and professional models. Mashaws approach is a very attractive one. Although, Bayles (1990:163 89) and Galligan (1996:25) both recognize that a uniform set of procedural principles does not apply across the board and that the appropriateness of any set of procedural principles depends on the characteristics of the decision-making process in question, their approaches to procedural fairness are less sophisticated than Mashaws in that they assume that the different forms of decision making are sui generis. The great strength of Mashaws approach is his recognition that different models of decision making coexist with each other and that each of them is associated with a different conception of administrative justice. The administrative justice of any given instance of decision making is not represented by the procedural principles associated with the single model that best describes that form of decision making but, rather, by trade-offs between each of the models for which there is some evidence. Mashaws approach has been subjected to a number of criticisms. Although he contends that the three models described above, and only these three models, are always present in welfare administration, this claim can be disputed. The bureaucratic, professional, and legal models have, in many countries, been challenged by a managerial model associated with the rise of new public management (see Hood 1991, 1998), a consumerist model that focuses on the increased participation of consumers in decision making (see
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Clarke & Newman 1997) and a market model that emphasizes consumer choice (see Johnson 1995). A second criticism is that, in assessing the relative inuence of the three models, Mashaw ignores their absolute strengths. Consider two situations in which the strengths of three models are given weights of 30, 20, and 10 units and 3, 2, and 1 units although they are identical in a relative sense, they are quite different in absolute terms and clearly refer to what are, in reality, very different situations. Strong balances are very different from weak balances in ways that Mashaws analysis does not bring out very well. A third criticism is that Mashaw takes the policy context for granted.14 However, just as different orientations to administration, that is, to how programs should be run, can be understood in terms of a number of normative models that are in competition with each other, so different orientations to policy, that is, to what programs aim to achieve, can also be understood in this way. As shown below, Adler and Longhurst (1994) have demonstrated that Mashaws approach can be applied to competing models of policy as well as to competing models of administration. Each of several competing models of policy may, in theory, be combined with each of several competing models of administration. The resulting two-dimensional model is necessarily more complex than a one-dimensional model but its characteristics are similar in that it not only makes it possible to understand the trade-offs that are made between different combinations of policy and administration in particular cases, but also makes it possible to see what different sets of trade-offs might be more desirable.15 Since, applying the terminology used in this article, the models of policy refer to outcomes while the models of administration refer to process, the two-dimensional model provides a way of combining procedural fairness with substantive justice. 2. Developing Mashaws Approach In light of the criticisms above, some modications of Mashaws analytic framework are clearly called for. First, it is important to recognize that, in addition to the bureaucratic, professional, and legal models identied by Mashaw, some additional models of administrative justice need to be considered. Three such models are a managerial model, a consumerist model, and a market model, although they are not necessarily all present in every administrative system. Second, account needs to be taken of the absolute as well as the relative strengths of these models. Third, the approach can be applied to competing normative models of outcomes, that is, to substantive justice, as well as to competing normative models of process, that is, to procedural fairness, and used to analyze the interactions between them. An extended analytic framework, involving six normative models of administrative justice, is set out in Table 3 below. A brief explanation of this extended analytic framework is called for. During the postwar period, most public welfare services in the United Kingdom were shaped by the bureaucratic
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Table 3. Six Normative Models of Administrative Justice
Model Mode of Decision-Making Applying rules Applying knowledge Asserting rights Managerial autonomy Consumer participation Legitimating Goal Accuracy Expertise Mode of Accountability Hierarchical Interpersonal Characteristic Remedy Administrative review Second opinion or complaint to a professional body Appeal to a court or tribunal (public law) Publicity Voice and/or compensation through Consumer Charters Exit and/or court action (private law)

Bureaucratic Professional

Legal Managerial Consumerist

Legality Efciency gains Consumer satisfaction

Independent Performance indicators Consumer Charters

Market

Matching supply and demand

Prot making

To owners or shareholders

and professional models outlined above, although the trade-off between them varied from one policy domain to another. However, by the mid-1980s, the pattern of administration had come under attack. It was variously criticized for lacking neutrality and being biased against certain groups; for its failure to contain the growing demand for cost savings; for having a vested interest in the maintenance and expansion of existing structures and not promoting the public interest; and, as a monopoly provider, for being insulated from competitive pressures to become more efcient and more responsive to the demands and preferences of consumers. New and better forms of management were championed as the most appropriate response to these criticisms. Managerialism, as this approach came to be known, challenged the powers and prerogatives of bureaucrats and professionals in the name of managers who demanded the freedom to manage the attainment of prescribed standards of service. It gave priority to achieving efciency gains, introduced different forms of nancial and management audit to assess how well the prescribed standards of service had been met, rewarded staff who performed well, and, in theory at least, sanctioned those who did not (see Clarke & Newman 1997). Perhaps inevitably, the introduction of these new managers frequently led to struggles for power and control within welfare organizations. Managerialism can thus be characterized in terms of managerial autonomy, the pursuit of efciency gains, the use of performance indicators to assess accountability, and the possibility of drawing attention to the fact that prescribed standards have not been met as a means of putting pressure on management to improve their standards.
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Consumerism has, likewise been a central reference point in the drive for public sector reform from the mid-1980s onwards (ibid.: chap. 6). Like managerialism, it has been taken up as a response to criticisms of the bureaucratic and professional, and the reshaping of welfare services around consumer choice has been visible in a number of reforms, in particular in the introduction in the UK of the Citizens Charter (Great Britain 1991; Page 1999). Consumerism embodies a more active view of the service user, who is seen as an active participant in the process rather than a passive recipient of bureaucratic, professional, or managerial decisions. It can thus be characterized in terms of the active participation of consumers in decision making, consumer satisfaction, the introduction of consumer charters, and the use of voice (Hirschman 1970), together with the possibility of obtaining compensation where the standards specied in the charter are not met as available remedies. Markets constitute the nal model in the extended analytic framework and have many of the characteristics of the managerial and consumerist models (although the reverse is not necessarily the case). Decision making in the market involves the matching of demand and supply and is made with reference to the price mechanism. Individuals are viewed as rational economic actors who choose the producer who best satises their wants or preferences. The legitimating goal of the producer organization is prot-making, while the prevailing mode of accountability is to the owners or shareholders. In contrast to consumerism, where the consumer can use voice as a remedy, and can obtain compensation through consumer charters if the specied standards have not been met, markets provide the possibility of exit (ibid.). In addition, an aggrieved individual may be able to raise a court action for compensation where he or she suffers some measurable loss from an administrative decision. Internal or quasi-markets (Le Grand 1991; Le Grand & Bartlett 1993) have some but not all of the characteristics of the market model just outlined. In a recent book, Halliday (2003) argues that the managerial, consumerist, and market models of administrative justice elaborated above are better understood as components of a single model, which he associates with the new public management (see Hood 1991, 1998). However, I think this formulation obscures more than it reveals. This is because each of the three models has its own internal logic and because these three models are competitive in the sense that Mashaw uses this term to describe the relationship between the bureaucratic, professional, and legal models in his account of administrative justice. It follows that the managerial, consumerist, and market models of administrative justice can be, and frequently are, combined. When they are combined, the combination does provide a good account of the new public management. However, they need not be combined in this way, and each of the models is sometimes encountered on its own, that is, not in combination with the others. It may seem a little strange to refer to some of these models, in particular, the market model, as models of justice. After all, markets are often regarded
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Adler ADMINISTRATIVE JUSTICE 335 as threats to justice, which undermine its achievement in practice. This strangeness is more apparent than real and results from equating the concept of justice with substantive justice rather than with procedural fairness. In seeking to demonstrate that procedural fairness is an important component of overall justice and that the idea that everyone should receive what is due to them (Miller 1976:20) applies just as much to procedures as to outcomes, this article adopts a very different starting point. However, how people should be treated is very dependent on context, and, as the discussion above tries to make clear, different conceptions of procedural fairness are associated with different types of decision making. Consider the case of a lottery. Everyone who takes part has a legitimate expectation that they will be treated in exactly the same way (without any reference to their personal circumstances or characteristics) and that they will have exactly the same chance of being selected as everyone else.16 Some lotteries stipulate that an individual can only be selected once, while others permit multiple selection, thereby enabling an individual who has already been selected to be selected again. However, in both cases, the outcome is (or ought to be) completely random and determined only by chance. If lottery outcomes are judged in terms of any of the familiar principles of distributive justice (need, desert, rights, or strict equality), or any combination of these principles, they will no doubt be considered unjust. However, this is not the case for lottery procedures, which should incorporate the principles of chance and equality that form the basis of the legitimate expectations referred to above. A similar argument applies to markets. In a market, consumers can legitimately expect to have the opportunity to express their wants in terms of their preferences and the freedom to choose.17 Likewise, producers can legitimately expect to be able to respond to consumer choice and produce goods and services up to the point where the value to the consumer of his (her) marginal purchase just exceeds the cost of supply beyond that point the consumer will not be interested in purchasing the service, and it will not pay the producer to go on producing it. The price mechanism stabilizes as well as controls these transactions (where there are shortages, higher prices act as an incentive to economize, but, where the market is ooded, prices will fall, and this will encourage consumers to buy more), while the prot motive should make supply responsive to demand, and encourage technological innovation and progress. Competition should lead to greater efciency successful producers will thrive (and make big prots) while unsuccessful ones will go to the wall. However, since market theorists tend to treat the initial distribution of resources as an exogenous variable, assessing the nal distribution of resources in terms of any of the familiar principles of distributive justice, or any combination of principles, will usually conclude that, like the lottery, they are not just.18 But, although market outcomes are very rarely just, and it follows that markets do undermine attempts to achieve substantive justice, market procedures may incorporate the principles underlying the legitimate expectations referred to above
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and may thus be fair.19 It is in this sense, and only in this sense, that it makes sense to talk about the market as a model of justice. 3. Normative Theorizing One of the attractions of Mashaws approach is that it makes it possible to understand the trade-offs that are made between different justice models in particular instances and to see whether another set of trade-offs might be more desirable, not merely for those institutional actors who have an interest in promoting each of the models in play but for all concerned, that is, in some overall sense. However, the attempt to arrive at a better balance between the different models in play and identify a different set of trade-offs that will enhance the public interest raises a number of problems. Since there is no magic formula, this exercise necessarily involves the exercise of judgment. However, this does not make it an arbitrary exercise. It is one that can, and should, be informed by empirical data. In this connection, performance measures of various kinds and audit data are important, and, to the extent that the primary justication for public services is that they should serve the public, it can be argued that the results of user surveys and public opinion data are especially important.

III. APPLYING THIS THEORETICAL FRAMEWORK IN EMPIRICAL RESEARCH ON ADMINISTRATIVE JUSTICE

The approach to administrative justice outlined above has informed four pieces of research undertaken by the author over the last fteen years. These comprise research on the impact of computerization on social security in the UK, on decision making in the Scottish prison system, on the assessment of special educational needs in England and Scotland, and on the computerization of social security in thirteen countries. In each case, an attempt was made to specify a number of different models of administrative justice and to collect data that would enable the strength of these models to be assessed. A brief account of each of these pieces of research is set out below.
A. THE IMPACT OF COMPUTERIZATION ON SOCIAL SECURITY IN THE UK

The three main aims of the Operational Strategy (Great Britain. Department of Health and Social Security 1982:1), the massive program to computerize the entire social security system that the UK government attempted to put into place in the 1980s, were: to improve operational efciency, reduce administrative costs, and increase the exibility of the operational system to respond to changing requirements;
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Adler ADMINISTRATIVE JUSTICE 337 to improve the quality of service to the public, for example, by treating customers in a less compartmentalized benet-by-benet manner and more as whole persons with a range of social security business, and to improve the provision of information to the public; to modernize and improve the work of social security staff. Of these aims, the rst reected the interests of the government, the second reected the interests of the claimant, and the third reected the interests of the staff. By 1989, the Operational Strategy had run into deep trouble the costs had escalated so steeply that, unless improvements in quality of service were taken into account, it was clear that the future of the program was in doubt. Against this background, the Department of Social Security (DSS) commissioned some research on quality of service and, in particular, on the whole person concept (Adler & Sainsbury 1990). Using a consultative procedure known as the Delphi Method (Adler & Sainsbury 1996), four panels of experts (drawn from DSS staff; welfare rights ofcers; representatives of pressure groups, academics, and researchers; and persons with backgrounds in other organizations or from overseas social security systems) were invited to comment on the desirability and feasibility of a number of different conceptions of quality of service and of the whole person concept, and on a number of different models of organization. In addition to these questions, the research attempted to investigate the effects of computerization on administrative justice, that is, on the justice inherent in routine day-to-day administration (Adler & Sainsbury 1991a, 1991b). The research assumed that the three normative models of administrative justice set out in Table 2 above were all present in the administration of social security but claimed that the Operational Strategy would further strengthen the dominance of the bureaucratic conception of administrative justice at the expense of the two competing conceptions. Thus, it was likely to lead to an even more bureaucratized system rather than one that was more sensitive to the needs and circumstances of claimants or one that made it easier for them to assert their rights. The main reasons for this were that the DSS adopted a top-down orientation to computerization that gave priority to the interests of the government rather than a bottom up orientation that would have given priority to the interests of claimants or staff; and that the aim of the program was to make administrative savings rather than to improve quality of service (whatever that might mean). The study concluded that the overall effect of the program was certainly to alter but not necessarily to enhance the procedural fairness of administrative decision-making in social security.
B. DISCRETIONARY DECISION-MAKING IN THE SCOTTISH PRISON SYSTEM

During the late 1980s, a program of research on day-to-day administrative decision-making in the Scottish prison system, focusing on adult, male,
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long-term prisoners, who constituted the largest and, arguably, most problematic of the various groups that made up the prison population, was undertaken (Adler & Longhurst 1994). Using a mixture of documentary analysis, observation, and interviews with a wide range of individuals inside and outside the Scottish Prison Service (SPS), the research investigated a number of important areas of decision making, associated with classication, transfers, regimes, and accountability, in detail.20 In each case, it sought to establish what decisions were accomplished; why the existing system operated in the way it did; what problems were created by existing practices; for whom they were problematic; to what extent they gave rise to pressures for change; what alternatives to the present system were being canvassed; and what their implications for day-to-day decision making would be. The same methods were used to study the policymaking process by carrying out a detailed examination of a series of policy documents that were published by the SPS during the period of our research. The period was one of great turbulence for Scottish prisons a spate of violent disturbances had given rise to a vigorous debate about what prisons were for and how they should be run. Although some people argued that this was a bad time to study Scottish prisons because so much was changing, and it was far from clear what the eventual outcome would be, it actually turned out to be a very good time, because the arguments advanced by powerful interests were forcefully expressed and easily accessible, and because their struggles for control were overt and visible. This enabled us to see the processes at work particularly clearly, and made it easier to construct a theoretical framework than it would have been in more settled and less turbulent circumstances. Using an iterative procedure based on wide reexive equilibrium (Rawls 1971:4653), a mutual adjustment between this theoretical framework and the empirical reality that was the focus of our research was achieved. While the research on the Operational Strategy had utilized the three normative models of administrative justice set out in Tables 1 and 2 above, the turbulence of the prison system resulted in the calling into question of the various normative models of substantive justice as well, and this suggested that they also needed to be considered. Each of the justice models was associated with a distinctive discourse and ends discourses, which are concerned with what prisons are for, were distinguished from means discourses, which are concerned with how prisons should be run. The discourses in play are set out in Tables 4 and 5 below. The ends and the means discourses were combined to produce a discourse matrix that summarizes the discursive structure of the Scottish prison system at the time, and the individuals, groups, and institutions whose discourses were associated with each of the cells in the matrix were identied. This is set out in Table 6 below. The research was based on the twin assumptions that groups in particular settings produce discourses that reect their interests, and that discursive struggles lie at the heart of the power struggles that are endemic in every
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Table 4. Characteristics of Three Competing Ends Discourses
Rehabilitation Discourse Source of legitimacy Improving the individual Normalisation Discourse Prevention of negative effects of prison; treating prisoners like individuals in the community Normal individual Minimum security; contact between the prisoner and his or her family; improved living conditions Control Discourse Control of disruption; smooth running of establishments Disruptive individual Good order and discipline; protection of prison staff

Focus Dominant concerns

Deviant individual Socializing the prisoner back into society through the provision of training and treatment

Table 5. Characteristics of three competing Means Discourses


Bureaucratic Discourse Source of legitimacy Focus Dominant concerns Rules and regulations On the system Uniformity, consistency, delity to the rules Professional Discourse Knowledge based on experience On establishments Leadership, experience, judgment, enhancing the institutional ethos Negotiated Legal Discourse Rule of law On individual prisoners Respect for prisoners rights

Accountability for decisions

Internal

External

Table 6. Discourse Matrix for the Scottish Prison System


Rehabilitation Bureaucracy Professionalism Legality Parole Board Barlinnie Special Unit Left realist academics, SCCL Normalization HQ Administration Division Most governors Rights-orientated governors, SACRO Control HQ Operations Division SPOA Judges and courts

setting. However, although they always exist, they are particularly evident in periods of ux. The importance of external and contextual factors is that they structure the power relations between internal interest groups and shape the outcome of the power struggles between them. By applying the theoretical
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framework outlined above to various areas of decision making and to the policy process, the research was able to demonstrate that the struggle for control between the interest groups represented in the discourse matrix had profound implications for procedural fairness and substantive justice. In addition, a new form of managerial discourse was identied (Adler & Longhurst 1994:23638), which, at the end of research, had assumed a position of dominance in Scottish penal policy.
C. THE ASSESSMENT OF SPECIAL EDUCATIONAL NEEDS IN ENGLAND AND SCOTLAND

The assessment of special educational needs is a very complex process that can be divided into a number of discrete and overlapping stages and involves input from a large number of individuals, including educational psychologists, education ofcers, head teachers, class teachers, medical practitioners, social workers, named persons, parents, and children. This process was structured by a statutory Code of Guidance in England (Great Britain. Department for Education 1994)21 and by a non-statutory Manual of Good Practice in Scotland (Scottish Ofce Education and Industry Department 1998). The outcomes of the assessment process were extremely signicant for those involved, in particular for children and their parents, since they had a direct interest in the type of education the child received and the resources that were made available for this purpose. However, as with many decentralized decision-making processes, there are wide variations in outcomes between and among (local) educational authorities in England and Scotland.22 Although the Code of Guidance and, to a lesser extent, the Manual of Good Practice have undoubtedly led to a degree of standardization, there are still wide variations between authorities in the procedures used to assess special educational needs in the two countries. The research on the assessment of special educational needs involved an empirical study of the fairness of the different procedures used in England and Scotland (Riddell, Adler, Mordaunt & Farmakopoulou 2000; Riddell, Wilson, Adler & Mordaunt 2002). It aimed to describe the range of practices that constitute statutory assessment in England and in Scotland and to analyze the nature of the justice inherent in them. Documentary analysis was supplemented by interviews with key informants, including politicians, civil servants, and representatives of professional organizations, volunteer organizations, and pressure groups. A postal survey was administered to (local) education authorities in England and Scotland to elucidate variations in the ways in which children are assessed, statemented (in England) or recorded (in Scotland), and outcomes were investigated through the secondary analysis of ofcial statistics. However, the main thrust of the research consisted of a more detailed exploration of assessment at a local level. We examined the roles of the key players, the extent to which parental preferences were congruent with professional identications of need and ofcial
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Adler ADMINISTRATIVE JUSTICE 341 determinations of policy, and the ways in which outcomes were negotiated. The postal survey of (local) education authorities in England and Scotland enabled us to identify variations in process north and south of the border and provided a basis for selecting four contrasting (local) education authorities (two in England and two in Scotland) for in-depth eldwork. In each of these authorities, sixteen case study pupils with a range of special needs were selected. The sample of sixty-four children included contested as well as noncontested cases.23 Case papers for these children were analyzed, meetings were observed, and interviews were conducted with most of the key actors (i.e., educational psychologists, education ofcers, head teachers, SENCOs,24 class teachers, medical practitioners, social workers, named persons, parents, and, where appropriate, children). The research adopted an analytic framework that can be represented as a half way house between those set out in Tables 2 and 3 above in that it comprised four models of administrative justice it incorporated the consumerist but not the managerialist or market models of administrative justice.25 The interviews with expert informants and the postal survey revealed a wide variety of practices between and within the two countries. In Scotland, it was clear that professionalism, strongly supported by bureaucracy, was the dominant conguration. The legal model was very weak in that the assessment and recording process was not seriously constrained by legal norms, while the consumerist model, as manifested by parental participation, was only marginally stronger.26 In England, the dominance of the professional model was more effectively challenged by the bureaucratic, legal, and consumerist models, all of which were stronger than in Scotland. The Code of Guidance not only embodies bureaucratic norms but is legally binding; its provisions confer strong procedural as well as substantive rights on parents. The legal model was strengthened by the establishment of the Special Educational Needs Tribunal (SENT), which can hear appeals against a wide range of local education authority decisions,27 while the consumerist model was given a boost by the establishment of Parent Partnership Ofcers whose existence enhances parental participation. There were no equivalents of the SENT or Parent Partnership Ofcers in Scotland. The in-depth eldwork in the four contrasting education authorities yielded some very rich accounts of the ways in which different trade-offs between the competing normative models of decision making structured the relationships between parents, professionals, and ofcials in different ways (some examples can be found in Riddell, et al. 2002). To the extent that administrative justice results from a trade-off between the features of competing normative models of decision making, the position in England is clearly more complex than in Scotland because more models are currently in play. In considering the possibility of alternative trade-offs, it is evident that Scotland might learn from England by strengthening those models that would shift the balance of power towards parents and children, who are currently in a rather weak position. For example, a more robust appeals system might be introduced; Records of
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Needs might specify the resources to be provided; assessment procedures, including timescales, might be tightened; the provision of advocacy and mechanisms for enhancing parental participation might be strengthened; and public access to information improved.28 Conversely, England might learn from Scotland by seeking to nd fairer ways of allocating resources and better ways of balancing individual preferences and collective policy goals.
D. THE COMPUTERIZATION OF SOCIAL SECURITY IN THIRTEEN COUNTRIES

The most recent of the four pieces of research described in this article is a comparative study of the use of computer technology in social security in thirteen OECD countries, comprising ten Western European countries, Australia, Canada, and the United States. Data were generated by two expert informants in each country by means of electronic mail.29 They were asked to complete a structured questionnaire, and, if their responses were unclear or incomplete, they were asked to provide supplementary information. Preliminary ndings were distributed electronically, and informants were invited to correct and comment on them. In this way, we were able to obtain valuable feedback and to check the accuracy of our ndings and the validity of our conclusions. One of the aims of the study was to assess the impact of computerization on administrative justice in a systematic manner. Two indicators have were selected for each of the six models included in Table 3, and respondents were asked to rate them on a 15 scale (where 1 = generally very important; 2 = generally important; 3 = important in some areas; 4 = not very important; 5 = unimportant). They were then asked whether computerization had made each of them more or less important. A 15 scale was used here, too (where 1 = greatly increased importance; 2 = increased importance; 3 = much the same; 4 = decreased importance; 5 = greatly decreased importance). The scores for the two expert informants from each country were averaged. The twelve indicators are listed in Table 7 below. The use of two expert informants for each country was intended to provide a check on the accuracy of the data generated by the study. Nevertheless, doubts concerning its validity and reliability will still be raised. However, early results (Adler & Henman 2001), based on an analysis of data from ten countries, indicated that, with one exception, bureaucracy was the dominant model of administrative justice in social security in the countries included in our study, and that computerization had reinforced its dominance. Computerization appears to have had a very signicant effect in promoting the managerial model of administrative justice, which in many countries is now the second most important model. In contrast to this, there is little evidence of the professional model, and there appears to have been a tendency for computerization to reduce its importance. There is likewise little evidence of the market model and computerization has had a minimal effect so far on the ability of users to choose their preferred service provider the two exceptions here are Belgium and Finland where employers and employees can
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Table 7. A Framework for Assessing the Impact of Computerization on Procedural Fairness in Social Security
Indicator Model Importance Rating (on a 15 scale) Impact Rating (on a 15 scale)

In making decisions about entitlement to benet, social security institutions apply well-established rules Dissatised customers can complain to a professional body The government purchases social security services from nongovernmental service providers Social security institutions are expected to meet performance targets Social security institutions are expected to abide by customer charters Claimants can check and correct personal records Dissatised customers have their cases reviewed internally Indicators are used to assess staff performance In making decisions to benet entitlement, staff exercise administrative discretion Claimants can choose between more than one social security institutions Claimants participate actively in decision making Dissatised customers appeal to an independent court or tribunal

Bureaucracy

Professionalism Markets

Managerialism Consumerism Legality Bureaucracy Managerialism Professionalism Markets Consumerism Legality

choose which social security fund should provide statutorily dened social security benets.30 While the importance of the legal model of administrative justice appears to be stronger in some respects than in others, computerization appears to have had a minimal effect on it. Finally, the importance of consumerism differs from country to country, and computerization has had a mixed response on it.31 Among these broad shifts, computerization appears to have had little effect on the availability of appeal procedures but has had a greater effect on the procedures for determining entitlement to benet. In particular, the assessment of entitlement has become increasingly automated, involving an increased reliance on rules and a correspondingly decreased use of discretion. This has been supported by an increased reliance on the managerial model, in particular on performance measures, to bring about improvements in the delivery of
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social security benets. However, there is little evidence that this top-down type of accountability is being matched by an increased emphasis on the legal and consumerist models of administrative justice that embody bottom up orientations. The validity of these conclusions assumes both that the indicators of each of the six models of administrative justice are appropriate ones and that the assessments made by our expert informants are accurate. However, it is already clear that computerization has had an impact on the trade-offs that are made between the six different models of administrative justice outlined above in that it alters the ways in which decisions are made, the ways in which they can be challenged, and the ways in which individuals are treated by social security institutions. Although many similarities were observed among the countries in the study, some differences between these countries were also apparent.

IV. CONCLUSION

By adopting a relativistic orientation to administrative justice, Mashaws approach, and the approach adopted in all four of the studies outlined above, both challenge the view that there are any invariant principles of administrative justice that apply in all contexts.32 This may, at rst, seem surprising but, on reection, should not be since it is generally agreed that this is true of social or distributive justice. Administrative justice is no less a contested concept than social justice in that, although it can be dened in a relatively uncontroversial or uncontentious way (as a proper balance between competing claims to procedural protection), the terms in which it is dened (i.e., what constitutes a proper balance and even what are to count as claims) are the subject of considerable disagreement. Like social justice, it is an essentially contested concept (Gallie 1964). Compared to the external focus on mechanisms of redress, two of the great merits of an internal orientation are that it focuses on the myriad of rst-instance decisions rather than the much smaller number of decisions that are the subject of an appeal or complaint and that it analyzes them directly rather than at one remove and through a legal prism. This is not to deny the important contribution that external redress mechanisms undoubtedly make to the promotion of administrative justice. The point is that external modes of redress promote particular conceptions of administrative justice and may have a limited impact on the justice inherent in administrative decision-making. They need to be combined with the internal orientation that has been outlined and illustrated in this article. In terms of the framework for analyzing administrative justice, the attempt to assess the impact of computerization on social security in the UK in terms of the three normative models identied by Mashaw was undoubtedly the simplest. By contrast, the study of decision making in the Scottish prison system was perhaps the most ambitious. With its focus on the discourses of procedural fairness and substantive justice and on the discursive struggles
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Adler ADMINISTRATIVE JUSTICE 345 between the individuals and groups who were the carriers of these discourses, it was able to give a dynamic account of the dramatic changes that were taking place in the Scottish prison system at the time. Although this study anticipated the rise of managerialism as another normative model of administrative justice, it was only later that this was fully elaborated. The study of the assessment of special educational needs in England and Scotland utilized a framework based on four normative models of administrative justice and yielded a rich account of the different forms that procedural fairness can take and the different responses to them of each of the parties concerned. As noted above, it has been used to indicate how administrative justice could be enhanced in both countries by some different trade-offs between the competing models. An extended framework comprising six models was used in the comparative study of computerization in the social security systems of thirteen different countries and has enabled us to understand the impact of computers on the trade-offs between the different normative models of administrative justice. However, in this case, the advantages of a systematic approach will inevitably be offset by concerns about the reliability and validity of the data. Although all of the studies have their limitations, it is contended that, considered together, they demonstrate the power of a particular approach to studying administrative justice and the validity of the assumptions that underlie it. It is also contended that they satisfy each of the three dening characteristics of the socio-legal paradigm they all adopt an external perspective to legal process that seeks to analyze administrative justice in terms of concepts and categories that are derived from the social sciences; they all focus on routine, rather than leading, cases; and they are all informed by philosophical analysis.33 Whether or not they are successful is for others to judge.
michael adler is Professor of Socio-Legal Studies in the School of Social and Political Studies at Edinburgh University. He has recently completed a review of research on the experiences, perceptions, and expectations of tribunal users for the Lord Chancellors Department and, with nancial support from the Nufeld Foundation, is currently carrying out a developmental study of administrative grievances, exploring the problems people experience in dealing with government departments and other public bodies, the advice they seek, whether or not they challenge the decisions in question and the impact of these problems on their lives. He hopes that this will lead to a national survey of the administrative grievances people experience and the effectiveness of the available mechanisms for challenging decisions that are experienced as unjust or unfair.
NOTES

1. A similar argument applies in respect to health care preventative medicine aims to improve levels of health in the community while health-care systems are set up to treat episodes of illness that individual members of the community experience. One is not more important than the other, and there is a strong case for combining the two. 2. The rule against bias asserts that decisions must be made by an impartial judge and may be set aside where there are grounds for reasonable suspicion of bias;
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3. 4.

5.

6. 7.

8.

9.

10.

the right to a hearing requires that each party should have the opportunity of knowing the case against him (or her) and stating his (or her) own case. For a full account of red light and green light theories, see Harlow and Rawlings (1997:29 66, 6790). The further examples were rudeness (though that is a matter of degree); unwillingness to treat the claimant as a person with rights; refusal to answer reasonable questions; neglecting to inform a complainant on request of his or her rights or entitlement; knowingly giving advice that is misleading or inadequate; ignoring valid advice or overruling considerations that would produce an uncomfortable result for the over-ruler; offering no redress or manifestly disproportionate redress; showing bias, whether because of color, sex, or any other grounds; omission to notify those who thereby lose a right of appeal; faulty procedures; failure by management to monitor compliance with adequate procedures; cavalier disregard of guidance that is intended to be followed in the interest of equitable treatment of those who use a service; partiality; and failure to mitigate the effects of rigid adherence to the letter of the law where that produces manifestly unequal treatment. Under the Scottish Public Services Ombudsman Act 2002, a single Scottish Public Services Ombudsman has now taken over the work formerly carried out by four separate ombudsmen: the Scottish Parliamentary Ombudsman, the Scottish Health Services Ombudsman, the Scottish Local Government Ombudsman, and the Housing Association Ombudsman for Scotland. For a very comprehensive account of public sector ombudsmen in the UK, see Seneviratne (2002). For a more general account, see Harlow and Rawlings (1997:391422, 42355). Remedial action involves correcting the injustice caused by the maladministration and reversing the decision made because of it; compensation can cover direct and indirect losses resulting from maladministration; and an apology would normally come from the head of the organization complained of. Note that remedial action is not always feasible while compensation may be appropriate when remedial action is not. However, where the losses caused by maladministration are psychological rather than material, it may be difcult to put a monetary value on them. Sometimes an apology may be all that the complainant wants. A recent British study of regulatory bodies in government (Hood et al. 1999:60 65) indicates that, compared to other types of regulator, a relatively small proportion of the staff working for the PCA, the Health Service Commissioner, and the CLA have experience of employment in regulatee organizations (ibid.: Table 3.2). Using terminology developed by Black (1975), their relational distance (RD) was placed in the lowest of three categories. The RD of Housing Association Ombudsmen was placed in the middle category while that of the Prisons Ombudsman was placed in the highest category. However, it should be noted that the measures of RD used in this study are relative to the other regulators in the study and are not absolute measures. As Halliday (2001) reminds us, in addition to its impact on the individual who petitions the court, judicial review can have an impact on government policy or legislation as well as on routine decision making within government. This applies equally to other external forms of accountability like tribunals and ombudsmen. For a more general discussion of the impact of judicial decisions on public administration, which highlights the lack of empirical evidence, see Richardson and Sunkin (1996). For an up-to-date discussion, based on an empirical study of the impact of judicial review on three local government homeless persons units, see Halliday (2003). The few empirical studies that have been carried out indicate that judicial review has a limited impact on administrative decision-making in the United Kingdom.

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See, e.g., Mullen, Pick and Prosser (1996:11334) and Halliday (2000). Likewise, research indicates that tribunals also have a limited effect on rst-instance decision makers. In a study of decision making in social security (Baldwin, Wikeley and Young 1992), just over half (52.6 percent) of adjudication ofcers claimed that, in making rst-instance decisions, they were not at all inuenced by a tribunals likely response to an appeal. This compares to a quarter (25.0 percent) of ofcers who claimed that tribunals had a procedural effect in that the prospect of an appeal led them to be more thorough and document their decisions more fully. There is likewise considerable variation between countries with different legal systems. Generally speaking, the impact of higher courts is greater than that of lower courts, and the impact of courts is greater than that of tribunals. It is more difcult to generalize about ombudsmen since there is so much variation between countries in their scope and standing. Note that the third model is characterized in terms of legality rather than fairness. For a discussion of legality, which is a synonym for the rule of law, see Selznick (1980:1118). Agreement on the principle of justice that should determine how the goods in question are distributed may not be the end of the matter since there may be considerable disagreement about how to operationalize the principle in question. For a full discussion, see Elster (1992). See, e.g., the reviews of Mashaw (1983) by Boyer (1984) and Maranville (1984). There are, of course, many views about what different sets of trade-offs between competing models of policy and competing models of administration might be more desirable. These are associated with different political ideologies and reect different conceptions of what would be in the public interest. In ascertaining which trade-offs might be more desirable, Rothstein (1999) points out that it is important to ensure that those who are affected should regard the policy as just and its implementation as fair. However, what is desirable is not necessarily feasible. The trade-offs that are made in practice reect the power and the interests of different groups of institutional actors who are attached to, sponsor, and promote the different models of administrative justice. Like other methods of distribution, making decisions by lot can be used to distribute burdens as well as benets. In the rst case, we frequently refer to someone drawing the short straw; in the second case, to someone having the winning ticket or having the winning number. For a discussion of the advantages and disadvantages of lotteries, see Duxbury (1999). For an illuminating discussion of the ethics of markets, see Sen (1985). Unless, however, it is argued that the initial distribution of resources accurately reects preexisting property rights or that the nal distribution reects the producers right to enjoy what they produce. The best account of the argument based on prior entitlements can be found in Nozick (1974) and of the argument based on producers rights in Bauer (1981). Both arguments are very effectively criticized in Sen (1985). Unlike perfect procedural justice, where there is an independent criterion for determining how benets and burdens should be distributed and a procedure that is certain to have this result can be specied, and imperfect procedural justice, which has only the rst of these features (there is an independent criterion for determining what the outcome should be but no way of specifying a procedure that will always produce this outcome), pure procedural justice has neither of these features. However, although there is no independent criterion for determining what the outcome should be, there is a correct or fair procedure and the consequences of applying it, whatever they may be, should be regarded as just, provided that the procedure has been properly followed. In this kind of

11.

12. 13.

14. 15.

16.

17. 18.

19.

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20.

21. 22.

23.

24. 25.

26.

27.

procedural justice, the justice of any outcome is founded on the fairness of the institutional arrangements from which it arises. For a fuller discussion of perfect, imperfect, and pure forms of procedural justice, see Rawls (1971:8586). Rawls makes it clear (ibid.:27074) that markets exemplify pure procedural justice, and it is clear that lotteries do as well. These included the initial allocation of prisoners to establishments, transfers between establishments, security categorizations, the allocation of work and educational placements, the distribution of privileges, the handling of requests and grievances, appeals to the domestic courts, the PCA and the ECHR, and the activities of the Prisons Inspectorate. In 1999, the government circulated a number of proposals in a consultation document that led to a revised code that came into effect in the school year 20002001. The percentage of pupils who are statemented in England (2.9%) is higher than the percentage of pupils who are recorded in Scotland (1.9%), but there are wide variations between authorities in both countries. Among pupils who are statemented or recorded, a higher proportion of pupils attend mainstream schools in England (58%) than in Scotland (37%). In Scotland, some special school pupils do not have records of needs, although all special school pupils in England are statemented. In spite of this, the percentage of the age group who attend special schools is higher in England (1.2%) than in Scotland (1.0%). The gures relate to the years 1996, 1997, or 1998, and the comparisons are therefore not strictly correct. We were unable to achieve the 50:50 split between contested and noncontested cases that we had hoped to. This was because there were very few contested cases in two of the authorities. Most of the contested cases were resolved before they reached the point of legal challenge. In England, Special Educational Needs Co-ordinators implement the schoolbased stages of assessment and coordinate reviews for all children with special educational needs. Unfortunately, the eldwork and the development of our analytic framework did not go hand in hand. In the early stages of our research, we thought of managerialism as an advanced form of bureaucracy rather than as a sui generis mode of decision making. Moreover, after considerable debate, we concluded that the market could be best understood as an exogenous variable, i.e. as an aspect of the external environment in which administrative decision-making takes place, rather than as a form of decision making in its own right. Although we changed our position on these two issues in the course of the project, this change occurred too late for it to have any major effect on our research design, on the conduct of our research or on our research ndings. However, we were rather quicker to appreciate the distinction between consumerism, manifested in terms of user participation in decision making, and legalism, expressed in terms of challenges to ofcial decisions and/or the manner in which they are reached. Thus, the analytic framework that informed the study incorporated the consumerist but not the managerialist or market models of administrative justice. Despite the fact that parents were actively deterred from adopting the role of a consumer, there were fears among some local authorities that the process was becoming too adversarial, prompting an attempt by the Association of Principal Educational Psychologists to persuade the Scottish Executive to abolish the process of recording. The SENT was set up in 1994 and heard its rst cases in 1995. Parents have the right to appeal to the SENT in relation to: an LEAs decision to make and maintain a Statement; an LEAs decision to make a statutory assessment; the school named on the Statement; the assessment of the childs SEN; the measures proposed

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by the LEA to meet the childs SEN. For a very thorough evaluation of the SENT, see Harris 1997. There is, as yet, no equivalent of the SENT in Scotland. Many of these proposals would, no doubt, be strongly opposed by the Association of Principal Educational Psychologists. See note 25 above. At the outset, we assumed that there would be a number of advantages to this procedure. We thought that it would constitute an efcient method of data collection and an effective means of understanding the detailed operation of policies and procedures in different countries, i.e., that it would reduce the danger of misunderstanding the situation in a particular country, overcome language barriers, and provide a useful source of informed advice on research design and the interpretation and analysis of the information provided. In practice, it sometime proved to be extremely difcult to identify informants with the necessary expertise and persuade them to take part, and we received fewer comments on our preliminary ndings than we had expected. The main effect of computerization on the market model appears to have been to increase the extent to which governments purchase the delivery of social security from nongovernmental organizations. An analysis of the data from all thirteen countries in the study conrms these ndings (see Adler & Henman forthcoming). Some followers of Mashaw, e.g., Sainsbury (1992), have attempted to develop a less relativistic conception of administrative justice. Adopting the perspective of the individual citizen, Sainsbury argues that administrative justice, dened as those qualities an administrative decision ought to exhibit, which provide arguments for the acceptability of its decisions, has two invariant components. These are, rst, accuracy and, second, fairness, the latter comprising promptness, impartiality, participation, and accountability. According to Habermas (1992), participation is a means of advancing rational discourse and, as such, plays an important role in legitimating the rule of law and the role of the state. See MacCormick (1994). A similar characterization can be found in the Economic and Social Research Councils (ESRC) review of socio-legal studies (ERSC 1994).
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