What do ordinary people mean by procedural fairness (and why should we care)?

By Simon Halliday - Posted on 21 February 2024

Administrative law sometimes gets a bad press. Some students deem it dry, while others find it technically challenging. Even the Honourable Antonin Scalia, former Justice of the United States Supreme Court, once joked during a public address on Judicial Deference to Administrative Interpretations of Law, advising his audience to "lean back, clutch the sides of your chairs and steel yourselves for a pretty dull lecture".

The inherent appeal of administrative law may be up for debate. Personally, I believe its alleged dullness is greatly exaggerated. However, the more pressing matter concerns its significance to society. On this front, there is no doubt: administrative law holds immense importance. When considering the encounters ordinary people have with the law, administrative law ranks among the most frequent. Few of us (if we're fortunate) have much interaction with the criminal justice system or the law of delict, but we all navigate the realm of administrative law on a daily basis.

Administrative law concerns the day-to-day operations of government, including the provision of public services. Despite sceptical assertions, the UK welfare state is alive and kicking, with public service delivery at its core. The scale of this activity is vast, and the countless decisions made each day regarding people's entitlements, needs, and responsibilities are pivotal to societal well-being.

Every time ordinary citizens engage with public administrative systems—whether filing a tax return, applying for social security, seeking planning permission, applying for social care, responding to a public consultation, or lodging a complaint about bin collection—they instinctively gauge the quality of the process they experience.

The core of administrative law revolves around the quality of these processes that shape the public's direct interactions with the state, often discussed in terms of procedural fairness or due process. Traditionally, doctrines of procedural fairness have been crafted—whether by the courts or legislatures—without sufficient consideration of public perceptions of what constitutes good process. This oversight also extends to the development of public policy, where frontline processes are devised and implemented by government officials.

There are compelling reasons to view this disregard for public opinion as a failure of good governance. Political theorist, David Beetham, has argued that the legitimation of power partly hinges on how well it aligns with societal norms. In essence, if public power is exercised in a manner at odds with societal expectations, its legitimacy is diminished. Public sentiment regarding procedural fairness is crucial for governmental validity.

Research in policing repeatedly underscores this point: everyday interactions with police officers shape perceptions of the law’s legitimacy. These perceptions, in turn, influence compliance with the law. The procedural fairness of routine interactions with law enforcement thus carries considerable significance beyond the immediate encounters.

Likewise, it's reasonable to expect similar dynamics in citizen-state interactions outside the realm of criminal justice. Yet, research in this area lags behind. Our understanding of how the public perceives procedural fairness in non-criminal contexts is limited, as is our knowledge of how their experiences influence attitudes and behaviours towards government.

To address this research gap, I am undertaking a project to explore public perceptions of procedural fairness in the social security domain. Collaborating with colleagues from the University of Strathclyde (Gillian Macintyre), the University of York (Jed Meers & Joe Tomlinson), and the University of Kent (Ben Seyd), our focus will be on examining how adults with disabilities perceive procedural fairness in the context of applying for disability-related benefits. Additionally, in partnership with the Scottish Commission for People with Learning Disabilities, we will incorporate the perspectives of adults with learning disabilities into our study.

Understanding how social security claimants evaluate procedural fairness in benefit application processes is crucial, particularly in the realm of disability-related benefits. Experiences of fairness or unfairness during these procedures may significantly impact individuals' willingness to disclose information about their conditions, report changes in their circumstances, or feel confident in lodging complaints when they feel something has gone wrong. Each of these factors can profoundly affect their ability to access their full entitlements.

This research project, slated to commence in April 2024, has received generous funding from the abrdn Financial Fairness Trust.

Simon Halliday, Professor of Socio-Legal Studies