Accountability: The Value of Courts in Light of the Alternatives
38 Pages Posted: 8 Nov 2007
Date Written: June 18, 2007
This paper evaluates, largely in the context of UK public law, the claim that courts offer a generally poor mechanism for holding public power to account, and the concomitant implication that they are bad institutional choice for protecting welfare interests. The general conclusion is that these arguments succeed as a call for sobriety but not defeatism about the role of courts. Much of the literature raises highly relevant and important concerns that nonetheless fail to support the pessimistic conclusion generally derived from them.
This argument is developed as follows: I first identify a working definition of 'accountability' (tailored to the needs of a prospective welfare rights claimant) to clarify the normative criteria by which the various options can be assessed (Part B). I then outline what are commonly viewed as some of the main competencies and positive attributes of courts - that is, what courts have to offer to a claimant (Part C). I then proceed to consider three strong criticisms of the role of courts in law and administration: that they offer a hollow hope to a claimant, that judicial review has little impact on administrative behaviour, and that rights-discourse creates a harmful pathology of legalism (Part D). These criticisms are enlightening but fail to eliminate a measure of optimism for the value of judicial redress. I next turn to evaluating other alternatives for achieving administrative justice, commonly grouped in the literature into two general streams: external and internal mechanisms (Part E). It emerges that tribunals and ombudsmen stand out as particularly promising mechanisms for attaining the goals of administrative justice, not least of all because they emulate some of the accountability advantages of courts. The remaining options show some promise, but are no substitute for external control. The final section, Part F, remains in rough form. It offers preliminary observations on how we can improve the coordination between courts and their alternatives so as to maximize the attainment of administrative justice for welfare rights claimants, and ultimately improve the accountability of the state.
Keywords: accountability, bureaucratic impact, judicial review, welfare rights, social rights, tribunals, ombudsmen
JEL Classification: I39, K10, K40, K41
Suggested Citation: Suggested Citation