There are many normative standards which operate—implicitly or explicitly—in the assessment of how administrative justice systems perform. It is common to hear calls for “fair processes” in administrative justice. But defining what “fairness” requires is no easy task, nor is assessing whether particular systems can actually be described as fair. One way of managing this complexity is by measuring the performance of administrative justice systems by reference to the declared aims of the designers and operators of the relevant system. In this way, administrative justice systems are assessed on the gap between their promises and performance, rather than by some other imposed standard.
I explored this idea of the gap between promise and performance in administrative justice in an earlier post on this blog, which focused on sham administrative justice. There, I constructed a typology—based on work on “sham constitutions” by David Law and Mila Versteeg—to frame this gap (table 1). I explained in my previous blog why I think this framework can help us understand sham systems as particular phenomena, but I also claimed that the framework can help us think of new ways of approaching administrative justice. Here, I want to introduce another idea which can be derived from this typology: fair labelling.
Table 1: Typology on promise and performance in administrative justice
The key idea with fair labelling in administrative justice is that users of a system should be given some clear indication of the quality of administrative justice they will receive in relation to a decision-making or appeals process. Thus, instead of promising and declaring that all administrative justice systems are fair (as is the norm in many jurisdictions), system designers and operators are upfront about the genuine quality of the system. Fair labelling would, by reference to the typology at table 1, mean that any “sham” system is transformed into a “weak” system. The crucial distinction is honesty: the system designers and operators are realistic about the system (the better name for the practice may therefore be “accurate labelling”).
Can fair labelling work in the administrative justice context? There are good reasons to think there is potential in this idea. Procedural fairness is context-dependent. You expect a lesser process when you get a parking ticket than when your liberty is at stake, and this is surely correct. Is there, then, not a case for designers and operators of systems being more explicit about the quality of justice that different systems provide? Often, system-users can have inflated expectations of what justice can do and their expectations clash with the reality of the processes they experience. Perhaps fair labelling can help close this expectation gap. At the same time, many users can lack confidence to pursue further appeals that are open to them when they have been rejected in previous decision-making and appeal processes. Being aware a system is fallible could embolden such users to pursue challenges.
There are, however, also reasons to be anxious about the possible use of fair labelling in administrative justice. It could be said to be closing the user expectation gap in the wrong direction: it could be argued that the priority should be that systems are adjusted to work better, rather than adjusting user expectations. For those who would prefer to see a principled approach to fairness in administrative justice, fair labelling may be a step too far towards a pragmatic acceptance on non-optimum systems. There are also practical questions which would need to be addressed, such as how fair labelling is monitored and enforced.
This is only a brief and tentative initial survey of why the use of fair labelling may be useful in administrative justice and some of the possible associated risks, but there is certainly scope for more much thinking in this area.
Joe Tomlinson is a Lecturer in Public Law at the University of Sheffield and Research Director at the Public Law Project. I am grateful to Dr Richard Kirkham for comments.