Use and effectiveness as a means of redress

The second dimension of effectiveness shifts our attention away from public bodies and towards those seeking redress for governmental action. It examines issues of access to accountability mechanisms, the extent of their use and individuals' experiences of these processes. This research, conducted by social policy scholars as well as empirical legal researchers, has looked mainly at tribunals and judicial review.

In terms of citizens' decisions about whether actually to use accountability mechanisms, the obvious point here is that we should be sceptical about the effectiveness of an accountability mechanism if citizens have difficulties in using them or are reluctant to do so. Adler and Gulland (2003) have helpfully conducted a review of research which has explored such barriers in relation to tribunals. More generally, we can usefully distinguish 'practical' barriers such as cost, physical accessibility, lack of general awareness and procedural complexity, from the 'attitudinal' barriers on the part of potential users, such as scepticism, fatigue, faith in the rectitude of rules, and satisfaction (Cowan and Halliday, 2003).

Closely related to issues of access, a number of researchers have examined patterns of use of accountability mechanisms. Sunkin, with various colleagues, has developed a considerable body of empirical work on the use of judicial review. Some of this work, which has been replicated in Scotland (Mullen et al., 1996) and Northern Ireland (Hadfield and Weaver, 1995), examined patterns of judicial review applications (Sunkin, 1987; Bridges et al., 1996; Sunkin et al., 2007). Whilst a general increase in applications for judicial review has been detected over the years, this finding has been qualified in a number of important respects. A dense concentration of activity in the south-east of England - in London in particular - skews that general finding. So, although judicial review litigation is now a routine experience for some public bodies, for most it remains a rarity (Sunkin et al., 2007). Equally, the judicial review case load is generally dominated by a very small number of policy areas, such as immigration, asylum and homelessness (Bridges et al., 1996; Mullen et al., 1996). Further, although applications for judicial review have been rising, the number of applications that get beyond the permission stage in England and Wales has been dropping (Sunkin and Bondy, 2008). In this sense, full judicial review hearings have not been on the rise. There is also evidence of considerable disparity of practice between individual judges in relation to permission decision-making (Sunkin and Bondy, 2008). Inevitably, in light of such findings, the empirical focus has turned to settlement practices in judicial review. In a recent study, Sunkin and Bondy (2009) suggest that, while applicants now face greater barriers in being granted permission to pursue judicial review, a greater number of claims are being settled in claimants' favour prior to the permission stage.

The third strand of research in this area has been to examine the experiences of those who manage to use accountability mechanisms. Some of this has explored quite specific questions such as how users respond to delays, formality of process and self-representation (e.g. Baldwin et al., 1992). Larger data sets have also been obtained to permit broad comparisons of perceptions and experiences between various groups of users. Genn et al. (2006), for example, have done so with a view to comparing white, black and minority ethnic citizens' experiences of tribunals. Among a broad range of findings, they note, for example, that South Asian and some other non-European users were consistently more negative than other ethnic groups in their assessments of tribunal hearings, but were less likely to be so if the tribunal panel is ethnically diverse. Such findings are important and can be set against the policy ambitions of various tribunal reforms. A repeated finding regarding the routine operation of accountability mechanisms (e.g. Genn, 1994) is that some kind of expert representation of citizens significantly increases their chances of success before tribunals and other accountability forums (Halliday and Scott, 2010).[1] In combination with the research above, such findings may cause us to question the extent to which the Franks (1957) and Leggatt (2001) ambitions of accessibility, freedom from technicality and user- friendliness have been achieved in the tribunals system.

  • [1] Adler's recent research, however, presents a more optimistic account of self-representation (Adler, 2010).
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