The Citizen and the State in a Small Place
At the end of The Bookshop, a novel by Penelope Fitzgerald set in late 1950s small-town East Suffolk, England, the main character, Florence Green, is defeated by a lack of administrative justice. She has worked hard against local opposition to establish a bookshop in the Old House, a small historic building that has been empty and mould-ridden for years. Despite her modest success in enlivening the reading habits of the residents of Hardborough, and despite the shop also being her home, Florence is faced with a compulsory purchase order from the District Council, an action made possible by a Private Bill ushered through Parliament by the MP nephew of a powerful local resident determined to oust Florence and her shop. Advised by her lawyer that ‘there can’t really be any legal grounds for challenging an administrative decision’, and that because ‘[v]arious Town and Country Planning Acts’ rule out compensation in cases where a building’s dampness makes it uninhabitable, Florence is left with no choice but to sell her stock to pay off her loan on the Old House and, now homeless, to leave Hardborough with only a suitcase.
Not long before Florence Green opened her bookshop, the Franks Committee on Administrative Tribunals and Inquiries completed its inquiry into the ways of challenging government decision making (including on compulsory purchase). The Committee’s Report, published in 1957, described the task it had undertaken as one of finding a reasonable balance between what it saw as competing conceptions of ‘administrative’ and ‘judicial’ procedures and conflicting interests of Ministers and administrative authorities, on the one hand, and ‘the rights and feelings of individual citizens who find their possessions or plans interfered with by the administration’ on the other—and indeed a third conflicting interest, the public interest in good administration.
Franks was part of that post-war social democratic moment which emerged against a background of shared faith in the activist state, economic planning and large-scale public investment. Speaking of the ‘apogee of the European state’ in the 1960s, historian of post-war Europe Tony Judt has remarked, ‘The state, then, was a good thing; and there was a lot of it’ (Judt 2005: 360, 361). Administrative justice is deeply implicated with those post-war concerns, with the democratic construction of the public realm, with public trust and public meaning. It is implicated too with many of the most pressing social concerns of the modern democratic state and, as a result, with human rights, especially of a social or ‘relational’ kind, to do with health, social care, education and social housing.
It is in the small places of ordinary daily life, like those of The Bookshop, that human rights and administrative justice matter most, and where they share common roots as a political response to the post-war social democratic moment. Their scope and reach are much larger therefore than any narrow identification with the legal process. Their primary focus is nothing less than the relationship between the citizen and the state, between citizen and citizen, and the social meaning of democratic values rooted in the principle of equality. Their future, as this book seeks to show, is unavoidably demosprudential, in the sense that they are concerned with making response to citizen grievance more democratic and with embedding legal change in the broader culture.
The Seductive Embrace of Neoliberalism
Human rights and administrative justice are unfamiliar partners. Whereas human rights have connotations of gravity and fundamental value and the backing of international conventions, administrative justice evokes a sense of dusty proceduralism, in the shadows and with merely contingent significance. They occupy different territory: human rights are associated with substantive civil and political entitlements and with rights enforcement in courts; administrative justice is concerned with the bureaucracy of the state and with procedural fairness.
This book aims to reunite these separate concepts and enhance both as instruments of social justice. It does so by challenging the assumption that they occupy different territory and instead prioritising alternative characterisations of each: social rights, instead of exclusively civil and political rights; administrative justice as a set of principles for shaping humane relationships between citizen and state, instead of the more narrow conception of procedural fairness in decision making. It reconsiders both human rights and administrative justice in relation to response to grievance by proposing that investigation, not adjudication, is the vehicle for a set of practices that are in themselves democratic and that also foster democratic values in the relationship between citizen and state. By rediscovering human rights in the small places of social rights promotion and protection, the book aims to reimagine administrative justice and its democratic reach.
The reference to ‘small places’ in the title evokes Eleanor Roosevelt’s speech to the United Nations in 1958, in which she stated that the origins of human rights can be found in those small, forgotten places, close to home, which do not appear on any map yet which are the world of the individual person and her striving for equal justice, equal opportunity and equal dignity without discrimination. These small places are not for the most part the scene of international politics and law, of war and peace, or of crime and punishment. Instead, they are the small places of social rights entitlement and, in the words of social reformer William Beveridge, the places where the struggle is fought against the social evils of want, disease, ignorance, squalor and idleness. They are the small places also of administrative justice, far away from the court system and the majesty of the law, and instead located at or near street-level—the school, the Job Centre, the hospital. In these small places, as Eleanor Roosevelt astutely observed, the central value is equality. Administrative justice and human rights, properly construed, emphasise egalitarian rather than libertarian values, and they are relational more than individualistic. It is their egalitarian and relational character that invests them with their democratic credentials.
The potential connection between human rights and administrative justice has not passed entirely unnoticed. Too often, however, its importance has been marginalised. Grenfell, Windrush, Hillsborough—these and other tragedies bring into sharp focus the necessary partnership of social rights and the actions of the state. In the wake of national tragedy or public scandal, human rights are invoked and the lack of administrative justice remarked upon, but only after the event and with a sense of surprise. In its investigation into the human rights implications of the 2017 Grenfell Tower fire, for example, the Equality and Human Rights Commission is exploring whether a duty on government to have due regard to the socio-economic impact of its decisions, had it been in force, would have made any difference to what happened, and whether a stronger socio-economic duty is required. Administrative justice institutions, such as ombuds, tribunals and mediation, from time to time emphasise their role as part of the national human-rights structures, but rarely very loudly or for very long. For the most part, human rights and administrative justice are ships that pass in the night.
This book seeks to explain this sense of alienation and to propose a remedy. It does so by identifying administrative justice as the product of what Tony Judt identified as the post-war ‘social democratic moment’, closely implicated with that moment’s largely positive evaluation of the state, prioritisation of equality (at least in theory) and celebration of the public realm. At that time, from the late 1940s into the 1960s, a political and cultural consensus emerged that stands in stark contrast to the neoliberal epoch which has largely prevailed in the West sinc...