The prima facie benefits of legal accountability

The aim of this section is to present a non-exhaustive list of the most important prima facie benefits. It is helpful analytically to think of the key claims set out below as consisting of two broad categories.

1. Focus

Legal accountability prompts factual focus on the narratives of particular individuals and how some policy affects them or their rights, and legal focus on a distinct set of legal issues which is isolated in strong measure from the competing political pressures for time and attention. The right of petition, the right to reasons, and the duty to interpret and apply standards, all compel this outcome. This feature of legal accountability promotes respect for individual dignity (showing respect and concern for individuals), fairness and equality (considering legitimate grievances and claims to inconsistent treatment), and the rule of law (enabling challenges to alleged illegality). In respect of focus, legal accountability compares well with administrative, political and market-based options for redress. With administra­tion, the problem is typically inertia. Even sympathetic managers may be unable to address a case adequately.^[448] With the political process, the complaint must compete with other issues that take on grander importance on a crowded agenda. It is not a reliable working supposition that issues can be considered in isolation. And it is rare, in many countries, to resort to legal accountability to the exclusion of these avenues when they are in fact available.

Objections:

• Appellate litigation is usually about policy or abstract principles, not discrete issues and compelling narratives.

J eremy Waldron argues that this purported feature is largely a myth: ‘[b]y the time [a case] has reached the high appellate level, almost all trace of the original flesh-and-blood right-holders has vanished, and argument such as it is revolves around the abstract issue of right in dispute.’^[449] In some important cases this is true. Yet in many others it is false. There are many cases where factual narratives do provide important insight into the unjust impact of particular policies. These narratives are important, for instance, in cases concerning deportation when life-saving medical treatment is at risk,^[450] or measures that condemn late-claiming asylum seekers to total destitution,^[451] or national security measures that impose a Kafkaesque bureaucratic procedure upon those who have not been shown to have committed any wrong.^[452] Indeed, it is precisely the poignancy of tragic choices in health care allocation, and the susceptibility of the judicial process to such ‘flesh-and-blood’ narratives, that in Calabresi and Bobbitt’s view make adjudication improper for that purpose.^[453] Lord Steyn famously said that in law, context is everything.^[454] Even if that is an overstate­ment, it is a very long way from Waldron’s caricature. At any rate, the benefit of focus is not only about personal narrative. It is about picking out one policy and considering its legality in the light of relevant facts and legal standards and, where human rights are concerned, comparing its substance with other options in the light of comparative experience.

• Litigation is myopic

Myopic focus on the issues before the adjudicator is the more problematic objection. Judges may have a poor understanding of the dynamic or knock-on effects of their decisions,^[455] and courts are said to provide poor mechanisms for participation by those who are ultimately affected by decisions. One example of this is when a court adjudicates a heavily polycentric problem, meaning a problem that comprises an elaborate set of interconnected relationships where changes to one relationship affect many others throughout the network.^[456] Focus is needed for obvious reasons in individualized adjudications. Yet with review of broader policy questions, the costs of focus/myopia rise exponentially. This is a real problem, but there have been a host of interpretive doctrines that compensate for it. First, there are a variety of doctrines of judicial deference and restraint that apply in public law, both general and specific.^[457] In addition to a constant judicial preoccupation with deference to expertise, there is also a more or less recognized distinction between adjudicative facts and legislative (or social) facts,^[458] with a presumption that adjudicators exercise more restraint and caution when determining the latter. Second, there is increased specialization, both within the judiciary and among tribunals and ombudspersons. This increased expertise fosters greater awareness of the knock-on effects of particular decisions. Third, legal accountability offers a measure of remedial flexibility that can adjust to the nature of the problem. Judges can resort to declaratory relief or procedural rights, whereas ombudspersons can frame their recommendations to enable bureaucratic flexibility.

2. Principled reasoning

Adjudicators are generally required to advance interpretations of the public standards that are well-reasoned. If they fail to do so, they have failed in their professional duty. The reasoning must be principled in the sense that it presents proofs and reasons in support of a particular interpretation of the relevant sources and policy considerations, and valid arguments connecting all together in the text of the decision. It is principled in the sense of not merely an appeal to preferences (unless the community’s preferences are legally relevant), or to values or considerations that lie outside the sources to which it is proper to refer.

This has five important consequences that can be beneficial. First, it entails logical rigour. Adjudicators must consider all relevant considerations, observe consistency in their argument, and follow professional interpretive conventions. Second, it ordi­narily entails responsiveness to the submissions and relevant arguments, and thus treatment of counter-arguments. Third, it engenders professional scrutiny of the product, which reinforces the first two consequences. (This third item is particularly true of the higher decisions of the law courts; less so for lower courts and tribunal deci­sions). The form of professional scrutiny there includes hierarchical supervision, third-party intervention, academic commentary, comparative analysis by foreign courts, and occasionally public and political scrutiny. Common law adjudicators are in that sense extremely accountable for their decisions, even if not easily removable. Fourth, the process creates a good faith attempt at objectivity.^[459] Even if being objec­tive is impossible, trying to be objective and impartial delivers real benefits and reduces the extent to which law suffers from the vices of opportunism.

We have good reason for valuing these consequences. There is a range of decisions a political community may want to resolve through this type of reasoning process. Some such decisions may include jurisdictional disputes between levels of government, border disputes, criminal responsibility, certain questions of rights, deportation, and at least some aspects of the treatment of minorities and marginalized groups more generally. Furthermore, I would contend that this reasoning process is an essential precondition for the rule of law. The resort by individuals to courts would be largely pointless if there were no predictability or legitimacy to the process of reasoning used in the courts.

Objections:

• Legal standards run out quickly, and then judging is mostly the application of judicial preferences.

The argument above is not blind to the rise and fall of the legal process school of jurisprudence in the United States,^[462] which advocated ‘neutral principles’ and the principle of institutional settlement.^[463] Neither is it ignorant of the insights from legal realism and critical legal studies. The claims asserted are meant to be comparative only, and furthermore subject to the important qualifications I make below.

The objection stated above would be false, if by it one means that judicial outcomes are chiefly determined by naked preferences. It amounts to a radical and outmoded form of legal realism.^[464] Judges' decisions are constrained by a range of legal stand­ards, and their conclusions within the interstices must be plausibly linked to those standards. This is reinforced by the requirements of reason giving, publication of decisions, and professional and academic scrutiny thereof.

It is true that judges will appeal to policy and moral arguments in settling legal disputes, and of course their sense of moral judgment and preferences will affect their evaluation of such arguments. However, even these arguments, to some extent unmoored from the legal standards, are subject to some important basic constraints. First, they must be generally acceptable forms of public reason. This does not mean that they command consensus, but it does commonly exclude certain types of arguments, such as (in many though not all liberal democracies) direct appeals to the law of God,^[465] appeals to radical theories of law and the state such as those found in Communist or fascist writings, the use of theories positing racial or gender superiority, and so on. Secondly, the moral views espoused must at the very least fit with the principles recognized by the legal system. It is not typically open to judges to apply exotic moral theories, and fit (and perhaps institutional conservatism) is largely the explanation. Third, there is a presumption that policy arguments in particular will be supported by evidence, whether of a legal or factual nature. Now, obviously all of these ‘requirements' are ignored from time to time in specific cases. However, when that occurs, judges are departing from their role as a judge. They become open to the criticism that they have breached professional norms of conduct. I take this much to be inherent in the nature of the reasoning process within the framework of legal accountability that I set out in Part B above. When the breach is persistent, we can consider the situation to be a crisis. But the very fact that that state of affairs would constitute a crisis confirms the appropriate­ness of the status quo outlined here.

No doubt, the stronger objection here is that these are very weak constraints on the application of judicial preferences. For some courts, depending on their docket, the constraints of precedent, and the nature of the legal questions submitted to them, this may well be true. However, for many others, which move incremen­tally, take strong account of academic views, have relatively low rates of dissent, and whose decisions are more predictable, this view is not accurate. And we must not commit the fallacy of equating apex courts with the entire system of legal accountability, or indeed, with the broader system of administrative justice. Their dockets are by their very nature made up of hard cases.

• Legislators and administrators are better than courts at principled reasoning, so nothing is gained by subjecting their decisions to legal reversal.

Constitutional review will often require courts to address the same principled arguments and evidence as has the legislature. Yet much of parliamentary debate is exemplary of principled reasoning. Legislatures have certain epistemic advantages as well, given the diverse range of inputs into the legislative process. The commit­tee system in the UK Parliament, for example, has augmented this capacity to a very impressive extent. Ideally, the process works best when government appoints experts to report on an issue, solicits viewpoints at the green and white paper stages, hears further views during drafting and later the committee stages of the legislative process. This happens frequently enough.^[466] However, it is common ground that legislatures are subject to pressures that distort principled reasoning in a number of ways, chief among them being party discipline. If committee votes are subject to party discipline, then independence is in fact lacking, and decisions on voting can and often are made before even hearing the evidence meant to inform the decision. Another pressure is time and priorities. Of course legislatures have more time than the courts do, but any bill comprises a massive range of matters, and parties must prioritize in ways that can marginalize even the rights-issues they sympathize with. Above all are the problems of inadequate representation of marginalized groups, and of a legislative process that fails to see the consequences of a certain enact­ment. All these failings and more are diagnosed and analysed by Rosalind Dixon in her insightful analysis of what she terms legislative ‘blind-spots' and ‘burdens of inertia.'^[467]

• Administrative agencies are better (indeed normally better) at principled reasoning, objectivity and assessment of evidence than courts.

This statement is largely true of some very important agencies, and it ties well with the original justification for the growth of agencies in the first place. Yet the objection merely justifies an appropriate level of judicial deference, and does not eliminate the prima facie benefit contended for here. Agencies are obviously better at saying whether global warming is imminent, or whether some drug is likely to be cost-effective. This objection is especially true when the issue under determination is highly complex, and the agency applies its collective expertise to it. And such judge­ments are not rare either. As a managerial matter, moreover, agencies are much better than judges at evaluating costs and adjusting to the costs and benefits for most larger programmes.^[468] This all justifies a strong measure of judicial restraint. However, judicial restraint is compatible with retaining general public law jurisdiction over agencies.

In fact this is necessary, as, quite apart from review of routine matters of statutory interpretation and procedural fairness, bureaucracies have their familiar flaws in the area of principled reasoning as well. Administrative behaviour suffers from unstoppable inertia, lack of resources for careful deliberation or reconsideration, and programming and political imperatives that interfere with the reasoning process.^[469] Bureaucrats adopt heuristics, which often lead to high error rates that the administration may be slow to acknowledge, and in some cases powerless to correct.^[470] The less routine the decision, the more political influence is liable to exert control. All these considerations work against blanket judicial deference to administration, and qualify the familiar case for judicial restraint. Thus the objection is an important qualification, one that justifies a central principle in public law, as it should.

3. Constitutional authority

Courts have a form of constitutional authority owing to their historical constitutional role, their role in protecting the rule of law, and as a forum for asserting individual rights. They are thus accorded respect by political institutions and the public. Judges tend to have high intelligence, rigorous training, and follow transparent procedures. They play an extensive role in shaping and creating many rules governing private and public relations, most of them against a backdrop of moral considera­tions. Courts are regarded as having a constitutional responsibility to enforce and to some extent fashion these values. This constitutional authority is peculiar to courts, but other formal accountability mechanisms may eventually come to share this attribute.

This authority has four potentially valuable institutional consequences. The first is political responsiveness, namely, that government and the public ordinarily accord court rulings respect and take them seriously.^[471] The power to award enforceable remedies—ranging from fairly lax to quite intrusive—can in principle ensure politi­cal responsiveness, at least in the case at bar. The second important consequence is judicial confidence; namely, the willingness of judges to take a controversial stand on matters with significant policy or social ramifications. There are several cases involv­ing issues that rest significantly on this type of political confidence,^[472] constituting what Peter Cane describes as ‘high profile judicial review.'³⁸ A third valuable institu­tional consequence is that courts (though not tribunals or ombudspersons) have general jurisdiction.³ This helps to ensure that there are few holes in the regime of accountability, and that there is a general presumption of legal accountability in play that cannot be ousted easily or in piecemeal fashion. A fourth aspect is reme­dial flexibility. Judges can choose a broad range of remedial responses to problems of illegality, and the common trend in bills of rights is to give courts the power to award ‘appropriate remedies' or ‘just satisfaction.' This flexibility helps them adapt legal accountability to the needs of modern administration. All these features can and often do faciliate the attainment of the broad variety of ends identified in Part B.3 above.

Objections:

• These ‘benefits’ are actually detriments.

It is a fair charge that for all the above reasons, the blade of legal accountability cuts deeper into administration and politics than it ought to.⁴⁰ It is true that this ‘benefit' of legal accountability is ultimately dependent on whether the costs of judicial intervention are outweighed by the benefits. It is therefore admitted that the link between the feature of legal accountability and the desirable end is less straightforward than with some of the other benefits. The benefit here is more in the realm of a potential benefit. It is akin (to borrow a familiar example) to a blade that cuts well, but which can ultimately be used for good or bad. Its potential for good makes it a prima facie benefit. If so, a sceptic may ask, why not call it a prima facie detriment? The answer here is that in my view the evidence on the whole supports the view that the practice is generally beneficial.⁴¹ No critic of the judicial review of administrative action to my knowledge goes so far as to say that we can do without it.

• This argument overestimates the impact of legal accountability.

There are a range of studies about the impact of adjudication. Some focus on the impact of constitutional rights litigation in particular, and other forms of

Anism.inic v Foreign Compensation Commission [1969] 2 AC 147 (HL) (construction of ouster clauses); R v Secremry of State for Social Security, ex p Joint Council for the Welfare of Immigrants [1997] 1 WLR 275 (CA) (the vires of regulations that infringe on subsistence rights); R v North East Dev on Health Authority, exp Coughlan [2001] QB 213 (CA) (the enforceability of a substantive legitimate expecta­tions); A and others v Secretary of State for the Home Department [2004] UKHL 56 (detention without trial); Jones v Ministry of Interior Al-Mamlaka Al-Arabiya as Saudiya (The Kingdom! of Saudi Arabia) [2006] UKHL 26 (admissibility of torture evidence); R v Secretary of State for the Home Department, ex p Limbuela [2005] UKHL 66 (ministerial capacity to forbid support to certain indigent asylum seekers).

³⁸ Cane, ‘Understanding Judicial Review’, n 36 above at 18.

³⁹ At times courts will contract this general jurisdiction, either through doctrines of justiciability, or through procedural rulings such as the rule in O’Reilly vMackman [1983] 2 AC 237 (HL) that public law rights claims could only be raised through the judicial review procedure.

⁴⁰ J AG Griffith The Politics of the Judiciary (5th edn, London:Fontana Press, London 1997).

⁴¹ I consider these arguments in more depth in King, Judging Social Rights, n 22 above, ch 3. cause-lawyering.^[473] These studies are mostly American, and deal with a sub-set of legal accountability. In that literature, the tide has turned against (and indeed never swam with) a strong version of the ‘hollow hope' argument famously offered up by Gerald Rosenberg,^[474] an argument that largely overlooks (or relegates to a late chapter) the iterative relationship between law and politics that cause-lawyers have navigated with significant success over the years since the early days of the civil rights movement.^[475]

The UK studies focus on the impact of conventional judicial review.^[476] Halliday’s study of homelessness decision-making in London local authorities provides notable insight into the limitations of judicial impact. He shows that, in the authorities he studied, there were few applications for judicial review, little absorption of legal standards into local authority behaviour, and a problem of ‘creative compliance’ whereby authorities use their knowledge of the legal process to evade legal control.^[477] This literature is an antidote to quixotic notions of what legal accountability can deliver. It qualifies but does not refute the premise of political responsiveness, however. That responsiveness is evident in too much of judicial review, including several statutory amendments after cases taken under the Human Rights Act 1998 (HRA 1998) or won in Strasbourg, in the nearly one million tribunal cases disposed of annually, and in the near total rate of compliance with the recommenda­tions of the Parliamentary Commissioner of Administration (Ombudsman) and local government ombudsmen.^[478]

4. Independence and impartiality

The independence of the judiciary from strong political pressure is often offered as a leading argument in support of judicial review,^[479] and of course recourse to independent courts is a central feature of the rule of law. Independence here means functional (not formal) immunity from control or improper influence, and impartiality means the absence of bias in favour of one side to a dispute. Functional independence is compromised by political control of adjudicators, but also by effective control or influence by religious authorities, or private groups such as militias, nationalist or ethnic groups, threats by crime syndicates and so forth. Bias is often a byproduct of lack of independence, but it can be voluntary when adjudicators abandon professional norms of interpretation and show preference for a party. This may be done due to political or personal favouritism, or simple corruption.

Functional independence and impartiality produce clearly valuable consequences, the most notable being those associated with the rule of law. It is a precondition for any effective judicial review (of the administrative law variety). It straightforwardly reinforces many of the benefits listed elsewhere in this essay, such as principled reasoning, constitutional authority and procedural fairness competence. And there is also little doubt that independent adjudication is a precondition for reliable contracting and thus efficient commercial relationships, which can produce economic growth.

Objection:

• Judges are political.

When people make this objection, they may employ the term ‘political’ in a narrow or broad sense. The narrow sense is the claim that adjudicators and especially common law appellate judges decide some cases primarily with the objective of achieving their personal policy preferences. There has been an extensive amount of increasingly sophisticated empirical analysis exploring this premise over the last sixty years, mostly in relation to American appellate judges.^[480] This literature deliv­ers a strong blow to the conventional view that law constrains judges. However, its conclusions are not straightforward support for the claim that judges act to further political ends.The leading studies focus on the atypical US Supreme Court, and the phenomena highlighted in such studies appears more acute in America than abroad.^[481]

Nonetheless, there is a broader sense of ‘political’ which is that adjudicators, even if they do not implement their political preferences directly, do so indirectly because of the inescapability of judicial discretion or judgement, especially when enforcing vague norms. Posner, for instance, is a critic of the narrow version of the argument that judges are political, but an advocate of this broader statement.^[482] Almost no one doubts, however, that a judge's view of political morality will influ­ence the decisions she renders.^[483] But that fact does not destroy an adjudicator's independence. Indeed, in many cases of adjudication (perhaps all) we wan t judges to apply their moral sensibilities in their assessment of what the law requires in a given case. Can we imagine a morality-blind family or tort law? The claim about legal accountability made here is that the adjudicators in healthy legal systems tend to be independent and impartial as between the parties, and that they make a good faith attempt at objectivity, not that they are wholly objective in their application of the law.

One might argue in agreement with Marxists and structuralist philosophers that the entire institution of law is so suffused with class or ideological bias that even the noblest of adjudicators cannot help but take the wrong side by exhibiting a systematic and pernicious class bias. Yet the historian E P Thompson, himself a Marxist, refuted these claims in his Whigs and Hunters, a study of the use of the Black Act 1723 to criminalize the encroachment by persons onto royal forests. He did so by affirming the very benefits set out here:

It is inherent in the especial character of law, as a body of rules and procedures, that it shall apply logical criteria with reference to standards of universality and equity. [...] Most men have a strong sense of justice, at least with regard to their own interests. If the law is evidently partial and unjust, then it will mask nothing, legitimize nothing, contribute nothing to any class's hegemony. The essential precondition for the effectiveness of law, in its function as ideology, is that it shall display an independence from gross manipulation and shall seem to be just.^[484]

Thompson showed how particular laws were tools for extending and protecting class interests, but also that a system of at least reasonably impartial legal accountability (the ‘rule of law') was more or less essential for the maintenance and legitimation of that system. That system to him represented a ‘cultural achievement of universal significance' and the rule of law an ‘unqualified human good'.^[485]

Now, to invoke Thompson in this way is not a mere appeal to leftist authority to settle the matter of the impact of class bias on the law. That would be a fallacy, and there are anyway many others who might be cited for a contrary proposition. However, as with the views of Harold Laski that I discuss in the next section, the fact that Thompson pushed back against this aspect of Marxist doctrine is tell­ing. It was, in my view, a rare moment of clarity and honesty within an industry of obfuscation. It is important to pin down the leftist objection, furthermore, to know whether it amounts to more than an evocative and ambivalent complaint about a defect in law. When those who advance the class bias argument actu­ally confront the spectre of unaccountable power by considering the option as a real legislative possibility,^[486] or see it in comparative historical perspective (as did Thompson, by comparison with other European states in the nineteenth century, and some obvious candidates in the twentieth), one is forced to be honest about the true significance of the claim. It states the limits of the benefit, rather than a negation of it. Those who press the point too far offer solace to tyrants.

5. Rule interpretation competence

Legal adjudicators are good at rule interpretation. The type of reasoning used in legal adjudication possesses several pertinent sub-features: it employs an elaborate set of interpretive cannons of interpretation;^[487] it provides a suitably forensic process and forum for considering competing interpretations of complex texts; the respect for consistency (an observable objective of all well-functioning legal systems) produces fairness between similarly situated persons, and predictability for legisla­tors; and the publication of decisions about interpretation, coupled with intense professional and appellate scrutiny, reinforces all the above and provides transparency and thus general accountability.

The greatest advantage of all the above is that it facilitates democratic government. The rule of law is an essential feature of a proper functioning democracy, and a body with rule interpretation competence is an essential feature of the rule of law. The rule of law is required in order for Parliament to be assured that its choices will be respected. A body with rule-interpretation competence of the sort described above protects such choices. When legislation is drafted, it is done consciously in awareness of the cannons of interpretation,^[488] and in the expectation that courts will pronounce upon compliance. Any new government inherits a large range of past political commitments embodied in legislation. The rule of law guarantees that the government of the day is legally accountable for such commitments, and requires that (apart from the constitutional judicial review of statutes) they only be undone through the same forum in which they were enacted.

The relevance of rule-interpretation competence extends well beyond the inter­pretation of statutes. The legal regime governing a modern bureaucracy is also interlaced with regulations, guidance, circulars, precedent and stated policy. These standards pervade and structure the discretion of officials throughout government, and in Kenneth Culp Davis' view, their proliferation was crucial for promoting the rule of law in bureaucracy.^[489] The profusion of such written standards, coupled with legal accountability, means that government must operate in a reasonably transparent and consistent manner, treating like cases alike and providing real remedies for those adversely affected by executive conduct that diverges from the stated policy. This accountability empowers persons by conferring real rights on them (whose enforcement admittedly depends on the health of access to justice), by providing recourse to a system that formally demands a consistent interpretation and applica­tion of such standards. A further byproduct of the system is the preservation of the rationality and consistency of the entire scheme, which not only furthers respect for rule of law values (eg. predictability) but is also important for the effective delivery of policy and maintenance of clear lines of political accountability.

Objection:

• Judges have a poor track record with statutory interpretation.

The dangers of overzealous adherence to ‘extravagant’ notions of the rule of law are well known.^[490] There is a voluminous critical literature, particularly in the United States, on what the correct approach to the interpretation of statutes ought to be — particularly agency statutory interpretation — replete with strong criticisms of existing and past approaches.^[491] Early workers’ compensation and industrial legisla­tion in Britain was often interpreted in conservative ways that impeded statutory objectives.^[492] One can agree with many of the criticisms found in such literature while also maintaining that rule interpretation competence is a prima facie benefit of legal accountability. The tenor of the criticisms here again speaks to the need for judicial restraint, not in total denial of benefit. This nuance is best exemplified in the position of the political theorist and public intellectual, Harold J Laski, who sat on the Donoughmore Committee that reported in 1932 on the appropri­ate types of accountability that might accompany the rapidly expanding role of administrative discretion and delegated legislation in the new British welfare state. Laski set out a separate opinion in an addendum to the Report of the Committee, commenting on the issue of whether to oust the jurisdiction of the law courts from the interpretation of statutes:^[493]

I wholly concur in the conclusion of the Committee that it is undesirable to transfer the interpretation of statutes which define and control the administrative process (whether local or central) to special Courts. No gain which might result therefrom in flexibility of construction seems to me to counterbalance the value of the independent assessment of statutory intention which is now afforded by the ordinary Courts. The historical principle of the rule of law cannot, I think, be better protected than by making ordinary judges the men who decide the legality of executive action.

Laski was quick to add, however, that ‘this is not to say the methods of interpreta­tion now used by the Courts are satisfactory.'^[494] The bulk of his note illustrated the potential dangers of judicial interpretation, outlining a critique of legal formalism in the United States and Britain that few liberals would disagree with today.^[495] His concluding remark on interpretive doctrines fits with the conclusions of this essay.

6. Procedural fairness competence

The courts' competence in respect of procedural fairness is reflected well in their history of fashioning and protecting the rules of the paradigm of procedural jus­tice, namely, the judicial process. This is reflected in the two principles of natural justice (ie. that an adjudicator must be impartial and hear both sides). Furthermore, judges have devised and evolved procedures concerning the admissibility of evidence, and procedures for pleading, notice to opposing parties, transparent reasons etc. These practices reflect a cultivated institutional memory concerning basic proce­dural fairness for parties to a dispute. The role for courts in giving such protection has been recognized around the world in both administrative and constitutional law.^[496] Procedural fairness secures a range of ends, including individual dignity for the affected person, equal treatment of similarly situated persons, and accuracy in administrative and judicial decision-making.

Objection:

• The judicial conception of procedural fairness is inappropriately dominated by the model of the trial.

One concern is that judges may seek to impose the paradigm of the judicial process upon a complex bureaucracy that can ill-afford the procedural luxuries observed in the criminal and civil courts. Bureaucracies can groan under the weight and expense created by extensive oral hearings for items such as the termination of welfare benefits. This is the crux of Mashaw's argument in Due Process in the Administrative State (and his particular target was constitutional due process rights in the welfare state, a particularly difficult issue). ^[497] Mashaw felt that judges did not understand the dynamic impact that was created by their judgments, and they were powerless to reverse changes they promoted that turned out to be dysfunctional. This can be connected more broadly with Vermeule's concern that judges cannot see the dynamic effects of their judgments, and that they should therefore employ a type of formalism that embraces strong judicial restraint.^[498]

These are potent warnings, but none of the above suggests any more than a qualification to the claim that procedural fairness is one benefit of legal account­ability. Mashaw, notwithstanding his criticism, ultimately saw an essential role for legal accountability: ‘Individualized hearings, before independent decision-makers with demands for proof and judgment on the record are a major bulwark against state oppression.'^[499] Furthermore, the evolution of procedural rights in public law has proceeded at a glacial pace in the United Kingdom, a special light-touch review applies to fair trial rights in the administrative process (both in the UK and in the relevant Strasbourg authority under the ECHR),^[500] and the American phenomenon of regulatory ossification is largely confined to that country.

7. Participation

A number of rights advocates claim that legally enforceable rights will provide a much-needed avenue of participation for those marginalized and vulnerable groups which are effectively excluded from legislative or executive decision-making.^[501] On a more pedestrian level, trials and hearings give people the right to complain about the decision affecting them, and the enforceable power to be heard. Even a lost hearing is more satisfying than no hearing at all. The take-up rate of this right to a hearing is in fact very low, an issue driving extensive studies in legal needs.^[502] However, the influence of law is felt well beyond the courtroom, in settlement activity, often made possible by the ultimate recourse to judicial remedies.^[503] Expanded rules on standing and intervention have facilitated greater means for participation and representation.^[504]

Objections:

• People are alienated by the judicial process and have little say in hearings.

This claim is no doubt partly true, but often overstated. (Access to justice is particularly jurisdiction-specific, so I have chosen the UK as my home jurisdiction in the dis­cussion that follows). In Hazel Genn's Paths to Justice, broad surveys of civil justice revealed, for instance, that courts and tribunals were considered more stressful and alienating than resolution by agreement.^[505] Yet while eighty-five percent of tribu­nals and court users said they would definitely or probably repeat the process, only sixty-seven per cent of those using mediation said the same.^[506] Most interestingly, the most common response of claimants disappointed with how they resolved their justiciable problem was that they did pursue sufficiently formal means.^[507] This is not an incoherent set of results. Standing up for one's rights can be both fright­ening and ultimately rewarding.

What about lawyers, then, who do much of the standing up? Of those court and tribunal users represented by lawyers, ninety-three per cent of represented respondents said that they would not have been better off at the hearing without representation, and ninety-two per cent thought they were represented either very well or fairly well.^[508] Sixty-five per cent said they had a chance to get across everything they wanted to say at the hearing, and another ten per cent said they got most of what they wanted to say across. About ninety per cent said they under­stood what was going on at the hearing. While it is wise not to be romantic about civil justice in the courts, we sell legal accountability short by understating its value for most citizens.

• Only the rich have reasonable access to courts.

That is quite a common claim, but the true picture is far more complex. According to Genn's study, over a quarter of those respondents who incurred legal costs in Britain were legally aided.^[509] Other recent studies have found that judicial review is actually higher in London boroughs that are more marginalized and poorer.^[510] Indeed, the poor in Britain are actually more likely to consult a lawyer in a grievance against the government than are the wealthy or the middle classes.^[511] This phenomenon is not only explained by the UK's relatively generous legal aid system, though that is no doubt relevant. Herbert Kritzer consolidated comparative studies on legal needs covering eight countries.^[512] His findings were ‘remarkably consistent' in showing that ‘income has relatively little impact on decisions to seek the assistance or advice of a lawyer.'^[513]

• Judicial review in fact disrupts a more meaningful mechanism for participation; namely, voting.

This objection is ordinarily only true of the subset of cases involving the review of legislation for its constitutionality. The objection amounts to the following argument: the remedy given to the person who comes before the court invalidates a statute adopted in a procedure that gives more meaningful participation to every­one equally. Those whose decision is represented in the statute are not represented in the hearing at which their interests are effectively decided. In that sense, the ‘participation' of one person or group in court is the negation of many others' participation at the ballot box. This argument is true in a formal sense, but its sig­nificance depends on (1) the quality of a claimant's participation in the legislative process, and (2) the adequacy of the representational role played by counsel for the state in such hearings. As to the first, John Hart Ely presented the most sustained analysis of how judicial review might compensate for the representative deficiencies of the majoritarian legislative process. As for the second, we must recall that the non-participation of the aggrieved voter in the legal process does not mean that she is not represented in the process. The state and judges alike both represent that public interest. And unlike the marginalized claimant in the political process, the average voter is well-represented in the legal process to the point of being presumed correct until an onerous burden is met in showing otherwise. In my view, nevertheless, this objection has enough to it to merit the adoption of a theory of constitutional judicial review that gives strong prominence to the issue of representation in judicial review.^[514]

• The administrative and legislative processes are far better at facilitating inclusion. People can participate in the legislative and administrative process by responding to consultation exercises during the green and white paper phases of the legisla­tive process, or submitting observations to parliamentary committees, or lobbying parliamentarians by post, in the flesh at the constituency surgery, or by e-petition. In the United States, the Administrative Procedure Act 1946 provides for a quite elaborate notice-and-comment procedure for much rule-making. Advocacy groups need no lessons on the availability and limitations of these channels. The important point is that there is no reason to think that these various avenues of participation are incompatible with using adjudicators as well. Legal accountability offers individuals the right to lodge claims about compliance with public standards (law), not merely an additional view to be added to the heap.

8. Expressiveness

Legal accountability can play an expressive function in law by applying key principles, policies or other values in the text of published decisions. These values become part of the fabric of public discourse, and can have an impact in subtle ways. In Genn's study, nearly three quarters of respondents agreed that ‘[c]ourts are an important way for ordinary people to enforce their rights.'^[515] Scholars also recognize the expressive function of law in enshrining values and providing a norma­tive framework for moral debate, particularly with respect to legislation.^[516] This is doubtless a key part of adjudication, in both private and public law, which employs a range of normative concepts such as fairness, reasonableness, discrimination, good faith, equity and so on. There is a range of important things that society cannot do without judicial or quasi-judicial hearing: child custody and child protection, criminal conviction, deportation, eviction, and many others. Our basic understand­ing of courts is that they ought to provide not just dispute resolution, but justice. As Owen Fiss stated: ‘The judicial role is limited by the existence of constitutional values, and the function of the judiciary is to give meaning to those values.'^[517] Variants of this view are also advanced in the work of Ronald Dworkin, T R S Allan, and Robert Alexy.

Expressiveness is not merely empty rhetoric, but it does have an uncertain relationship to consequences; a point that threatens its value as an instrument. The expressive elements of published legal judgments do not tend to generate large and sudden changes to institutions. Yet they may have real and valuable effects. For one, they can be of immediate and profound psychological importance to petition­ers, for whom a declaration alone can constitute just satisfaction even of a human rights violation. More importantly, expressiveness about basic values can reinforce systemic values (eg. the rule of law, good administration) that buttress a complex system of politics. For example, the principle of the rule of law in the United Kingdom was developed first by the courts of law, expounded by some doctrinal writers, and later recognised by both Parliament and government as being a cardinal constitutional principle.^[518] If Dicey were believed, most of the civil liberties the English came to cherish (and ultimately export) also arose this way.^[519]

Objection:

• Symbolic legality is of limited valued⁹

This objection is true, but consistent with what has been said above. Symbolism and expressiveness are of some value on an ethical level. Suppose that midway through some human rights or sexual harassment litigation, the respondent offers to settle by giving the claimant all that he or she seeks (including an apology). Would the claimant still have a good case for taking the claim forward, or should the court dismiss the case for mootness? The answer is that the claimant has a right not just to claim compensation, but justice. Legal accountability offers authoritative resolution, publicity, and an affirmation not just of wrongdoing or mistake, but of illegality and injustice. A symbolic end still counts as a real end, as it is connected with the well-being of individuals who have legitimate interests in obtaining that type of satisfaction.

I have already noted the way in which expressiveness can have important systemic consequences. Many thought Brown v Board of Education had this effect, though there is much evidence to the contrary.^{[520] [521] Important cases can reinforce an attitude of respect for rights and the rule of law. These influences may be weak, but they are not negligible. And as Sunstein notes, expressiveness can also have important immediate consequences.[522] The common law facilitates its own growth by grand statements of expressive principle. Today's obiter dicta become tomorrow's ratio decidendi.}

9. Publicity

Legal accountability can generate publicity and political salience. Litigation can become a locus for political action and can form an instrumental part of a political campaign. This is the key observation being returned from legal mobilization studies in law and politics, which document a certain symbiosis between legal and political avenues for change used by litigators seeking policy reform.^[523] Episodes of political activity are followed by legal cases, which may lead to fruitful political outcomes even when cases are lost. Even awful judgments can lead to legislative amendment.^[524] Controversy surrounding judicial rulings or court activity often ignites the public consciousness, media and political process. The interplay between courts, parlia­mentary committees, advocacy groups, and Parliament itself can mean that court battles actually invigorate the overall political process by focusing its attention on rights-issues, and by providing narratives that give living colour to general social problems. In this respect, even lost cases can represent political victories, as the exposure of poignant stories can create sympathy and increase the costs of political interference or apathy.⁹⁴

Objection:

• Assuming legal episodes do create publicity and political salience, it can be as negative as it is positive.

The legal mobilization studies have shown that advocates do use legal battles in iterative combination with political campaigning to achieve their objectives. However, there are other case studies as well, demonstrating the phenomenon of backlash. Anyone familiar with the tabloid press in Britain will know that the salience of the HRA 1998 on its pages is no triumph for legal accountability. The back­lash phenomenon in parts of America has been much worse. It has occured when groups mobilize in reaction to litigation, but in the effort of reversing the effects of the court judgment—sometimes violently (as in the case of reactionary racist groups in southern America after Brown), sometimes by means of agitating for con­stitutional amendment (as in many American states on the issue of gay marriage), or by mobilizing to advance a political agenda (such as libertarianism) through the courts and legislature, or by politicizing the judicial appointments process to an undue extent.⁹⁵ This phenomenon is less familiar to Commonwealth countries, but the experience in Britain is that the influential tabloid press has succeeded in generating considerable political opposition to human rights legislation.⁹⁶

This is admittedly an area in which there is evidence that cuts both ways. I have elsewhere argued that the backlash phenomenon is both disputed in the United States and at any rate is a phenomenon that may be peculiar to that country in particular.⁹⁷ The argument that anti-human rights publicity generated by legal accountability

and with whether private care companies ought to be regarded as public authorities under the HRA 1998 (Health and Social Care Act 2008, s 145 reversing YL v Birmingham CC [2007] UKHL 27).

⁹⁴ This effect is often doubted, but it was what occurred, for instance, in the famous R v Cambridge Health Authority, exp B [1995] 1 FLR 1056 (QB); 2 All ER 129 (CA) case (see C Ham, ‘Tragic choices in health care: lessons from the Child B case' British Medical Journal (1999) 319: 1258). The same occurred in the protracted dispute concerning the Chagos Islanders, as recounted in the judg­ment of the House of Lords in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61. Vanhala, Making Rights a Reality? n 92 above, also documents a number of such cases.

⁹⁵ On civil rights and the backlash more generally, see Klarman, above note 43, ch.7. More gener­ally, see R Post and R Siegal, ‘Roe Rage: Democratic Constitutionalism and Backlash' Harvard Civil Rights-Civil Liberties Law Review (2007) 42:373.

⁹⁶ As noted with great concern in Equality and Human Rights Commission, Human Rights Inquiry: Report of the EHRC (London:EHRC2009).

⁹⁷ King, Judging Social Rights, n 22 above, ch 3.

can be politically regressive has little support in the United Kingdom. It is true that human rights cases have generated the ire of the press, but the agitation is for a return to the status quo before the adoption of the HRA 1998. That cannot be considered regress unless the HRA 1998 is considered progress. The argument is therefore self-defeating.

10. Inter-institutional collaboration

The process of legal accountability, and its reasoned interpretive output, in my view is better understood to be in a collaborative relationship with the other branches of government, than functioning as a mere ‘check’ or ‘veto’ upon them.^[525] Are pro­cedural fairness rights best understood as an impediment or a contribution to efficient administration? Does requiring agencies and ministers to act within the powers set out in their empowering statute interfere with effective government? Should the orders of the Information Tribunal to disclose information be regarded as fundamentally punitive, or ultimately as measures that can improve administration by rendering it more transparent? We could in each case frame the relationships as those of warden and delinquent. However, it is more accurate to understand them as akin to that between a free press and a well-functioning government. To say they are fundamentally ‘opposed’ is to misunderstand the relationship. The relationship is tense at times, but good government in fact depends on a free press, just as it depends on a healthy respect for the rule of law. When the government does its job the press helps it get the message out to the public. When it does not do its job or is evasive, it exposes the lapse in the hopes for correction.

In my view, each of the branches essentially collaborates (at a respectful distance) with the others in the implementation of key public goals, for example respect for human rights, allocative efficiency, environmental protection, public and work­place safety, the best interests of children, and many others. Parliament scrutinizes government on the implementation of these goals, and opens it up to challenge in myriad ways. Parliamentary committees offer important guidance and criticism on a range of matters considered by both the executive and the courts. The House of Lords Constitution Committee and the Joint Committee on Human Rights, though obviously attractive to lawyers, are nonetheless exemplars in this regard. Both engage in bill scrutiny and draw upon principles expounded by courts as well as other non-legal sources of constitutional principle and policy. The execu­tive, for its part, also engages in considerable work at promoting and giving effect to the aforementioned principles. While it takes the lead with respect to the envi­ronment, efficiency, and regulation of the workplace, it also plays a strong role in promoting respect for human rights principles. Ministers must carry out compliance research before issuing statements of compatibility under s19 of the HRA 1998.

The government also creates and/or funds bodies that are vigilant in addressing human rights issues, such as the Equality and Human Rights Commission and Citizen's Advice. Furthermore it has issued a considerable amount of guidance to its own departments and to local authorities on the topic of human rights.^[526]

This type of collaboration is a phenomenon, but it is also a prima facie benefit offered by courts because they have institutional features that can further it. In particular, general jurisdiction, an inherent law reforming power, and remedial discretion allow adjudicators, especially in public law, to complement the system of accountability by adjusting the scope of review and range of substantive remedies to shifting demand over time. For example, in the early days of the welfare state, when there was a perceived need for courts not to impede the practice of demolish­ing housing deemed unfit for human habitation, the House of Lords refused to extend to an aggrieved landlord a right to an oral hearing, and a right to see the report of the inspector that formed the basis for the closing order.^[527] By 1964, the House of Lords decided in Ridge v Baldwin that there could be a duty of procedural fairness in respect of ordinary administrative decisions as well as those by judicial or quasi-judicial bodies.^[528] Thirty years later, what was announced as possible in 1964 was confirmed as always applicable in exp Doody, but with the caveat that the requirements of fairness were to be particularly flexible and depend entirely on the circumstances.^[529] In all three cases, the courts adjusted to the needs of modernizing administration and administrative justice. The development is not always a matter of increased judicial scrutiny, either. For example, there has been an increased recent emphasis on the importance of deference to tribunal expertise,^[530] which is something of a departure from the formal approach taken in cases such as Anisminic v Foreign Compensation Commission.^[531]

When the comity between institutions is healthy, it is possible for the inher­ent flexibility of public law principles and remedies to be adjusted as needed to suit evolving needs for accountability in the contemporary state. The remedy of declaratory relief, in particular, offers the possibility of facilitating this type of collaboration by giving the executive latitude by way of response. A declaration of incompatibility under s 4 of the HRA 1998 offers similar latitude to Parliament in respect of primary legislation found incompatible with the European Convention. This flexibility and adaptability breeds comity and collaboration, which in turn

allows legal accountability to meet the ebb and flow of demand for it. Since accountability in modern government promotes fairness, individual dignity, the rule of law, and respect for democratic accountability, its ultimate value is or at any rate can be quite positive.

Objection:

• Legal accountability is comparatively quite rigid.

Adjudication initially appears to be quite rigid. It must be triggered by a petitioner. There is a limited range of remedies. The court cannot make recommendations or insist on apologies, or (generally speaking) call large meetings to thrash things out and compromise. It is also constrained doctrinally in all the ways mentioned above. And there are strong limits on what kind of further research judges can do when an issue is raised in litigation. They cannot (in the common law world) visit the site of the disturbance and knock on the neighbours’ doors.

This is all true, but these limitations flow from the same features that give legal accountability its hard edge, its relative degree of autonomy, and its constitutional authority. Its working methods are not as flexible as those of a minister or inspector, but neither is the judge removable. And judges cannot change their minds from one day to the next, but nor should they when their decisions are reported and relied upon. The fact is that legal accountability is flexible enough to facilitate adaptation and collaboration over time, but its flexibility is suited to its character as a potent form of relief. Furthermore, different potential forms of legal accountability show different potential for flexible approaches. The Parliamentary Ombudsman shares many important attributes with legal accountability. Yet the ombudsman also has investigative powers, has fashioned principles of good administration, and com­monly makes policy recommendations that aim to improve administration. While there are occasional areas of friction,^[532] her role is essentially complementary rather than entirely antagonistic to parliamentary politics.

D.