This book proposes a conception of social justice in the UK which corresponds with the state’s international obligations in relation to social rights (SR). SR comprise the essentials to a life with dignity, including the rights to housing, food, fuel and social security.1 The book addresses both the substantive violations of these rights and how they manifest, as well as the gaps that impede access to social justice. The chapters in this book are situated at the intersection of various related yet separate bodies of literature, including administrative law, access to justice, social justice and human rights discourses. In addition, we apply theoretical lenses which situate the contributions of these disciplinary perspectives against the backdrop of structural injustice, valuation discourses, hegemony and power narratives, critical sociolinguistic theory, deliberative democracy theory and critical discourse theory. We are interested in accountability for violations of SR and making social injustice visible. As a result, our interdisciplinary discussions pivot around these
Access to justice as a discipline is vague, indeterminate and disparate. In other words, it means different things to different epistemic communities (practitioners, rights holders, frontline services, decision makers and so on) and comprises different meanings in a number of different disciplines (immigration, criminal law, social security, administrative justice, public law and so on). Garth and Cappelletti (pioneers of the access to justice discipline) argued, at the conception of the access to justice movement, that ‘[f]irst, the system must be equally accessible to all; second, it must lead to results that are individually and socially just’.3 The literature and practice have made significant progress in terms of seeking to advance effective access to legal processes, including issues relating to advice, information, awareness raising, legal consciousness, legal capability, legal empowerment, advocacy, removing discriminatory barriers, identifying unmet legal needs, co-locating services, and demonstrating the social determinants of legal problems and the social impact when they go unaddressed.4 These advances are critical to ensuring
Barriers in accessing justice is a global phenomenon and social injustice is pervasive. The practical implications of the lack of SR enforcement manifest in a litany of SR violations across multiple areas that engage with our everyday lives. This book engages with those areas where SR violations are most keenly felt, and how the absence of access to justice and effective remedies exacerbates this. Those who experience violations of SR are those who are mostly likely to be excluded from hegemonic structures of power. They face intersectional structural injustice and barriers on the basis of immigration status, disability, gender, age, ethnicity and socioeconomic disadvantage, among other things. They may be at risk of homelessness, face significant debt, experience in-work poverty, be fleeing domestic abuse and so on. Clustered injustice recognizes that people in such positions often experience multiple synchronous clusters of legal problems for which the
We interviewed 26 practitioners across the UK, using a case-based approach that focused on real legal cases across the UK’s jurisdictions. The practitioners we interviewed ranged from street-level advisors (such as at food banks) to barristers representing rights holders in the Supreme Court. This cross-tier advice sampling methodology meant that we were able to understand more about the types of SR violations that end up reaching the courtroom as well as the ones that do not. The book’s theoretical approach (discussed later on) addresses critiques of SR adjudication drawing from principles of deliberative democracy theory.10 The approach to the qualitative data was framed using these principles to guide our semi-structured interviews. We then analysed and theorized our findings using a critical discourse lens. It became clear that there are insufficient routes to remedy for violations of the rights (as discussed in Chapter 4, the legal system is inept with a significant accountability gap, meaning that the UK is not meeting its international obligations). In addition, the empirical research demonstrated that exclusionary discourses further disenfranchise and marginalize those who experience SR violations. The research demonstrates the importance of reclaiming the narrative of SR as legal rights.
We propose framing access to social justice as a journey. This journey addresses some of the procedural barriers in accessing justice as well as the more substantive components and how to overcome them. First, rights holders must be aware of their rights in order to claim them (legal consciousness). Second, they must have sufficient legal, financial and emotional resources to navigate the system (legal capability). Third, the complexity of the system must be acknowledged and addressed – often people get stuck in ‘administrative mud’, meaning they cannot reach an effective and timely remedy. Fourth, the legal framework relies on single-issue lawyering rather than recognizing the nature of systemic and clustered injustice – this requires reconfiguring the system to enable judicial and nonjudicial routes to
These contributions sit alongside a deep critical theoretical lens that further deepens the review of the access to SR justice gap by identifying and addressing discourse that marginalizes and disempowers both rights holders and the practitioners that support them. The book comprises both practical and theoretical reframings that change the way we think about SR, administrative justice, access to justice and social justice, and what to do to address the gaps identified. These lessons apply to our UK case study and beyond – providing lessons for access to justice interventions globally.
The social rights accountability gap in context
The book situates traditional understandings of bureaucratic justice and administrative justice11 within the human rights sphere. In other words,
This contextualization is important because administrative justice continues to go through processes of reform (moving through the different typologies). It does so without necessarily applying a critical human rights lens – in other words, with some notable exceptions,15 there is a substantial absence of SR discourse in much of the vast literature that engages with administrative
Our project therefore requires addressing one of the key gaps in the literature and practice in the UK by providing alternative perspectives on an often neglected area of law domestically, where the national discourse is aligned with a narrative that assumes SR are nonjusticiable, cannot legitimately be enforced by the court, contravene parliamentary supremacy and are aspirational in nature.25 It may be helpful to note that from the outset, this position is outdated domestically, comparatively and internationally.26 SR law is often misunderstood and underutilized across the UK’s legal jurisdictions,27 something which the data demonstrates as evident in first-tier advice services all the way through to legal framings applied at times by solicitors and barristers working across SR issues. While public and administrative law, and in particular social welfare law, engage with SR across areas such as health, social care, education, social security, housing and social services, they do not traditionally embrace broader conceptual frameworks that encompass the full international human rights framework. When economic and social rights are addressed in the public and administrative law sphere, they tend to feature under the aegis of
While it may be unlikely that there is impetus for a paradigmatic shift in the constitutional framing of enforcing rights in areas of economic and social policy at the national level,30 it is not an impossibility. Indeed, while the Supreme Court has shown its reluctance to engage in merits-based review of SR enforcement, it has also accepted the legalization of international human rights law by way of incorporation,31 something that is already underway at the devolved level and that could ultimately rebalance the UK’s positioning on SR enforcement. The state’s reluctance to address the SR gap has meant that shifting sands beneath the surface are reorientating constituent parts of the UK towards a substantive rights-based model of the rule of law, while the national political discourse has been focused on the regression and diminution of existing protection. This includes the ‘to and fro’ discourse on retreating from the European Convention on Human Rights (ECHR) and repeal of the Human Rights Act (HRA) 1998, the last attempt at which was scrapped in 2023.32 Boyle has argued elsewhere that the regressive rights discourse and the threat of repealing the HRA ‘exhausts civil society in debates on retention of the status quo rather than progressive reform’, creating a chilling effect on the enjoyment of human rights across the UK.33 The devolved trajectories may ultimately compel the UK to address this normative gap or, alternatively, lead to greater state fragmentation in a fragile unitary state.34 The dominant narrative of rejecting SR as legal rights is subject to challenge at both the devolved level and emerging discourses
The practical implications of the lack of SR enforcement manifest in a litany of SR violations across multiple areas, as demonstrated in the qualitative data in what has become colloquially known as the ‘Daniel Blake phenomenon’.36 The project is primarily concerned with addressing gaps in access to justice for SR violations. When engaging with practitioners, there is often little distinction drawn between access to justice as constituting access to a legal process to address that violation and access to the social right provision itself. It may therefore help to reflect on the areas where SR violations are most keenly felt, and how the absence of access to justice and effective remedies exacerbates this.
The ‘Daniel Blake phenomenon’ has given rise to greater attention to the litany of issues in SR violations, some of which have been subject to judicial review and others which have featured as part of wider public discourse. The devolved jurisdictions regularly deploy ‘mitigation measures’ to counteract some of the most severe austerity cuts,37 but this has not bucked the poverty trend, with poverty in Scotland, Wales and England increasing year on year since 2016 (Northern Ireland has seen a slight decrease overall).38 Research indicates that there is a growing chasm in life expectancy for those from poorer socioeconomic demographics.39 In January 2024, research on the
This project therefore seeks to ask whether and how the access to justice gap for SR in the UK can be addressed. SR are underprotected in the UK legal system. There is no constitutional setting for rights, not least SR. Of course, SR are not beyond the reach of courtrooms, tribunals, ombudsmen or complaints mechanisms, but for the moment, their enforcement is entirely dependent on being made possible under the rubric of something else. The role of the court plays an important part in our reflections as an important accountability forum for resolving disputes around the provision of SR. This is not to say that the role of the court is necessarily the most appropriate forum. Alternative routes through the legislative and executive branches may be more appropriate – perhaps even leading to political impetus to better protect SR, as is evident in the UK’s devolved jurisdictions.41 And when accountability is required, the project considers whether this might happen through more immediate complaints mechanisms, tribunals, ombudsmen, alternative dispute resolutions or through the roles played by inspectorates and regulators as part of a wider accountability sphere.42 We recommend a more prominent role for each of these alternative routes to justice in resolving SR disputes drawing on both procedural and substantive standards, but we recognize this requires a clear statutory remit to do so.
The literature has long dispelled common and pervasive misconceptions that economic, social and cultural rights are of lesser status than civil and political rights.49 In fact, the operation of economic, social and cultural
Our theoretical framework: deliberative democracy theory and critical discourse theory
Our approach to analysing the data is underpinned by our understanding that all meaning is created through discourse and, furthermore, that discourse and thought are mediated by power relations that are socially and historically situated.52 These tenets help us evaluate and better understand how certain groups in society are privileged over others, how to address change in terms of the mechanisms that undermine access to justice and effective remedies, as well as how to empower individuals to disrupt unjust practices. This approach builds on conceptions of rights as constructs of deliberative democracy53 and rights claiming as a performative act within a deliberative democracy.54 If rights claiming is an important component of citizenship, then genuine participation in a deliberative framework must address discourses that are constructed to marginalize and exclude. For this reason, deliberative democracy relies on a critical discourse lens. Such a lens illuminates how barriers to social justice are socially and discursively produced and, more importantly, how understanding these dynamics can inform
Critiques of social rights adjudication
Our theoretical approach addresses critiques of SR adjudication drawing from principles of deliberative democracy theory.56 The approach to the qualitative data was framed using these principles to guide our semi-structured interviews. We then analysed and theorized our findings using a critical discourse lens. From the outset of the research project, the theoretical framework recognized the SR accountability gap as an issue in both the literature and practice across the UK. Critiques of SR as legal rights are not unique to the UK jurisdiction and, in many respects, the critiques associated with SR adjudication appear throughout the literature and practice in jurisdictions that grapple with whether or not to constitutionalize or legalize SR as legal rights. We do not seek to (re-)rehearse arguments here in support or against the recognition of SR as legal rights subject to legal adjudication and judicial enforcement. These arguments and counter-arguments are made elsewhere in the literature, including a comprehensive overview of the critiques and the development of principles of deliberative democracy that counteract them.57 There would be ample opportunity within any book engaging with SR to spend a significant amount of attention addressing SR sceptics. Instead, we point to where these discussions are already rehearsed, and we do so unapologetically. For those engaged in SR research and practice, much time and resources can be exhausted on revisiting the basic foundational arguments and counter-arguments addressing the legal status of the rights. As this book demonstrates, exhausting time and resources at this level inhibits the progression of the discussion beyond those basic sceptical positions and risks perpetuating hegemonic discourses at the expense of new emancipatory perspectives and knowledge.
In brief, the critiques of SR adjudication can be understood as constituting four waves: (i) the anti-democratic critique (that SR are polycentric and the
While addressing these critiques requires careful consideration, they do not present as insurmountable barriers to effective SR adjudication. A response to the anti-democratic critique proposes that while courts should remain a means of last resort, they must perform a democratic function in holding other branches to account when violations of rights occur, and that democratic legitimacy is struck by balancing appropriate weak versus strong59 forms of review depending on the circumstances. In other words, sometimes courts should adopt deferential roles in the adjudication and development of remedies for breaches of SR, requiring states to justify their approach adopting weak review mechanisms, such as limited tests of irrationality, and ordering declarators that are deferential in nature rather than usurping the role of the legislature or executive. In other circumstances, particularly when there is a violation of a fundamental norm, or where the applicant’s dignity or a social minimum is breached, courts can perform more interventionist forms of review and enhanced forms of scrutiny, and can issue outcome-orientated orders. A moderate typology suggests striking a balance and using an aggregate of appropriate remedies as a means of responding to SR violations.60 This approach is familiar (although arguably underutilized) by the UK judiciary. For example, judicial review can act as an important safeguard in cases of destitution or risk to life, where an aggregate of remedies provides immediate interim relief, together with deferential orders to revisit the decision-making process in a longer timeframe, with courts performing a supervisory role.61
Responses to the indeterminacy critique propose that courts, along with other actors in a multi-institutional framework, should perform a role in
Responses to the indeterminacy critique also argue that courts must have clear instructions on their role, whether in the constitution or in enabling statutory frameworks, as well as having regard to appropriate sources in interpreting SR, including both international human rights law and comparative law, both of which can offer normative frames of reference when interpreting domestic law.68 Responses to the incapacity critique follow a similar vein; courts must equip themselves with the relevant expertise and evidence to assess compliance with SR, including the deployment of amicus curiae, as well as drawing on a broad range of sources. In addition, court procedures must adapt to better facilitate collective responses to systemic problems.
Principles of adjudication
The research suggests that principles of adjudication can offer responses to the critiques of SR. For example, the principles of accessibility, participation, deliberation and fairness can counteract the anti-democratic, incapacity and indeterminacy critiques.74 The principles of countermajoritarianism can guide responses to the pro-hegemonic critique through enhanced responses to systemic violations. And the principle of effective and appropriate remedial relief can countenance critiques relating to democratic legitimacy
Defining principles of adjudication
| ACCESS | Barriers of access to legal processes need to be removed, including prohibitive costs, access to legal aid, advice, advocacy, representation and sufficiently broad tests of standing. |
| PARTICIPATION | Rights holders are often unable to meaningfully participate in complex legal processes and are often excluded from decisions regarding the outcomes of those processes. Even in situations adapted for litigants in person, equality of arms concerns arise when rights holders are often entering into disputes with parties represented with legal representation at tribunal level or summary court. |
| DELIBERATION | For normative application of rights enforcement, adjudicators need to deliberate on rights with reference to appropriate sources, including international and comparative law in addition to domestic law, as well as between institutions horizontally (the executive, legislative and judicial branches) and vertically (local, devolved, national and international institutions). |
| FAIRNESS | Adjudication needs to draw on both procedural and substantive concepts of fairness, requiring a more intense engagement with the merits of decisions as well as the decision-making process. In the UK, this means expanding our conception of ‘reasonableness’ beyond irrationality or Wednesbury reasonableness. International human rights law suggests the adoption of proportionality-inflected reasonableness. |
| COUNTERMAJORITARIAN | Ideally adjudication processes facilitate collective responses to systemic SR violations, meaning processes are adapted to enable third-party, strategic litigation and class actions/multi-group proceedings in order to avoid the systemic problem falling as a burden on the individual. |
| REMEDIAL | Effective and appropriate remedies require a rethink in terms of both individual and collective relief, moving beyond individual compensation-based relief to guarantees of non-repetition and wider collective or structural remedies that draw on an aggregate of weak versus strong review and remedial relief. |
The principles of adjudication are one mechanism by which we have scrutinized the data produced (see Table 1.1). This project has also been influenced by the three-dimensional theory of justice.
Theoretically, we find value in Nancy Fraser’s three-dimensional theory of justice.75 Her point of departure is that the most general meaning of justice is parity of participation.76 Her view of justice as participatory parity goes hand in hand with principles of deliberative democracy. She says that on the one hand, the principle of participatory parity is an outcome notion, ‘a substantive principle of justice by which we may evaluate social arrangements: the latter are just if and only if they permit all the relevant social actors to participate as peers in social life’. On the other hand, Fraser says, participatory parity is also a process notion, which specifies ‘a procedural standard by which we may evaluate the democratic legitimacy of norms: the latter are legitimate if and only if they can command the assent of all concerned in fair and open processes of deliberation, in which all can participate as peers’.77 Embedded in this duality is an inherent reflexivity that allows us to problematize both substance and procedure. In other words, this approach can expose the unjust background conditions that skew decision-making processes and barriers to access to justice, as well as the unjust procedures that generate unequal outcomes. This aligns with Iris Marion Young’s theory of structural injustice that situates the role of societal structures and processes that marginalize and place groups in a position of disadvantage from which others benefit.78
Fraser’s theory of justice entails the economic dimension of distribution, the cultural dimension of recognition and the political dimension of representation.79 Fraser posits that overcoming injustice means dismantling institutionalized obstacles that prevent people from participating on a par with others, related to two particular types of injustice. On the one hand, full participation can be impeded by economic structures that deny people the resources they need in order to interact with others as peers, constituting distributive injustice or maldistribution. On the other hand, parity may be obstructed by institutionalized hierarchies of cultural value that deny them the requisite standing, in which case people suffer from status inequality
Another important element of Fraser’s theory is ‘the politics of framing’,81 which is closely tied to the dimension of ‘representation’. Framing is an exercise of boundary setting, of delimiting actions and interpretations; it centres on issues of membership and procedure, relating to matters of social belonging. We have already highlighted how questions relating to the justiciability of SR frame them in a particular manner and limit the ways in which these rights can be adjudicated. The data show that the politics of framing proceeds simultaneously on multiple levels; on one level, there are efforts to redress ‘first order’ injustices of maldistribution, misrecognition82 and political misrepresentation. On a second level, movements aim to redress ‘meta-level’ injustices of misframing by reconstituting the ‘who’ of justice.83 Our analysis teases out these injustices and we now direct our attention to discourse, which allows us to examine more closely the frames and misframings that sometimes impede access to justice.
Why discourse?
As stated at the beginning of the chapter, analysing discourse is a pathway to understanding the power inherent in social and historical contexts. By using a methodological approach that allows power to ‘appear’, the project was able to recognize privilege (of those in power over others), a necessary precursor to remedies that challenge unjust practices, and how access to justice and effective remedies may need to dismantle power. Equally, the project aimed to centre and empower individuals. As identified by Karen Zivi, rights claiming can be a performative act in a deliberative democratic framework and an important component of citizenship: the democratic practice of rights claiming is important, not because it guarantees a certain legal, political or social outcome, but because it involves individuals in developing the skills of citizenship while also reimagining the contours of community and (re)defining who is included.84
Social actors produce and reproduce discourses in ways that correlate with a particular position within social and political structure. The notions of discourse and ideology are often conflated, as it is difficult to explicitly disentangle their close links. In other words, in the mobilization of discourses, certain ideological conceptions are concomitantly invoked, albeit unconsciously or implicitly. However, one benefit of directing attention to how particular discourses (representations) are articulated together in unique ways is that it helps to shed light on the (dis)alignments with specific ideologies. In this sense, ideologies function as ‘underlying’ conceptual frames that become salient in discourse.88 Similarly, discourse may be conceived of as a site of ideology89 or, more concretely, that discourse is the ‘most tangible manifestation of ideology’.90
The bifurcation of rights
We are interested, for example, in how the bifurcation of two separate treaties following the Universal Declaration of Human Rights94 saw civil and political rights enshrined in the International Covenant on Civil and Political Rights95 (ICCPR), and economic, social and cultural rights enshrined in the International Covenant on Economic, Social and Cultural Rights96 (ICESCR). This separation led to misconceptions and erroneous ‘truth claims’ about the lesser status of the ICESCR. As we indicated earlier, the literature has long since dispelled these myths,97 providing examples of economic, social and cultural rights that are treated as enforceable legal rights in different contexts across the world. Nonetheless, the trajectories of
A discourse analysis approach helps us to make visible discourses embedded in practice that are linked to structures of authority and executed through a variety of specific techniques, including those discourses that marginalize, undermine or are wielded in order to hinder SR protection. The data show that the realization of SR relates to the operational processes of determining entitlement and eligibility. In addition, there are also processes of valuation and categorization that sort people into predetermined categories by means of various tools and mechanisms. These processes are not neutral but value-laden, influenced by wider sociopolitical currents and, as the data show, (re)produce difference and embed inequalities. Furthermore, these practices are situated at the intersection of different sectors and scales of social structure. It is a fragmented system that interlinks governments, legal frameworks and the third sector. In the UK, there is an even greater level of fragmentation due to different constitutional arrangements and legal frameworks under devolution. The large-scale undertaking of providing public services is also dispersed, provided by nearly half a million civil servants across cities in England, Wales, Scotland and Northern Ireland. This governing ‘at a distance’99 is constituted in various apparatuses, programmes, documents and procedures to give effect to the goals and logics of government. In some instances the empirical data suggests that there are strong links between discourses mobilized by government actors and systemic structural injustice, meaning that violations of SR and the absence of accountability are socially constructed and reproduced deliberately. This formal and informal bureaucracy reflects a form of structural injustice developed by Mantouvalou, which is one in which there is state complicity. In other words, we identify ‘state actions that can be viewed as having a prima facie legitimate aim, but which create patterns that are very damaging for large numbers of people’.100 Our tribunal data discussed in Chapter 4 provide clear examples of decision
Street-level bureaucracy and governmentality
On an operational level, the system may be best described as ‘street level bureaucracy’,101 a term that encapsulates the challenges and often paradoxical reality of the provision of public services that calls for treating all rights holders alike in their claims on government and, at the same time, must be able to respond to individual needs. ‘Bureaucracy’ thus points to the entailed rules, procedures and structures of authority, while ‘street-level’ acknowledges that much of the decision making takes place away from a perceived centre of authority in more informal settings.102 Importantly for our discussion, the rights holders that are clients in street-level bureaucracies are customarily nonvoluntary. So even though potential welfare recipients ‘voluntarily’ apply for services, this can hardly be considered voluntary if they have no other means to meet their needs. The poorer the person, Michael Lipsky says, the more likely that person will be a nonvoluntary client of not one but multiple street-level bureaucracies.103
This resonates with our empirical data that show that rights holders seeking help in accessing a SR or challenging a rights violation generally have many intersecting problems suffering from clustered injustice.104 The inherent intersectionality of SR is one of the identified challenges in the current operational and legal frameworks, a point to which we will return. Moreover, the fact that an individual client in a street-level bureaucracy is a nonvoluntary participant creates a power imbalance, as they are also subject to potential sanctions and other punitive measures for noncompliance embedded in strict rules and regulations. In addition, our analysis shows that these power inequalities impact greatly on an individual’s capacity to create legitimacy for themselves in their fight for an effective remedy for a SR violation.
In order to explain the tensions and conflicts that emerge across the data, it is imperative to be cognizant of how contemporary neoliberal logics and practices have been instrumental in the promotion of new forms of
Governmentality and neoliberal rationalities
Despite the vastness of the concept of neoliberalism, it is still a useful analytical term for interpreting the tensions between the governance of the bureaucratic structure providing welfare rights provisions in the UK, on the one hand, and the realization of SR and access to an effective remedy, on the other hand. The neoliberal project represents a specific kind of valorization that is rooted in economics, also referred to as the ‘economization of democracy’.110 Neoliberal rationalities permeate social life in ways that are unconscious and internalized, shaping our norms and conduct. Neoliberalism has been instrumental in promoting new forms of identity and subject formation, moving from collective to individual subjectivities and cultivating individual responsibility.
From our perspective, the concept of governmentality also draws our attention to the ways in which power influences the ‘self’ by the internalization of specific discourses by individuals. We see this in the valuation practices and discourses across the data that frame the ‘worthiness’ of individuals and particular groups of people in particular ways. In turn, these valuation discourses are sometimes internalized by practitioners and rights holders. This echoes Foucault’s interpretation of governmentality as government’s approaches to shape human conduct by calculated means.113 Our data show how this manifests itself, which helps us to understand some of the recurring themes and various discourses that are foregrounded. In our analysis, we show that there are competing logics at play that become visible in local struggles and tensions around conceptions of entitlement, welfare, poverty and justice. Furthermore, we demonstrate how the various ways in which the systematic categorization and filtering of information and people is facilitated by different tools and mechanisms, impacting on the access to justice journey.
As discussed earlier, access to justice as a field of law and practice can often mean different things to different epistemic communities. This is in and of itself problematic because discourse around the field of study can draw on significantly varying definitions, potentially undermining a common understanding. We widen the access to justice lens to constitute a broader conception of social justice that includes substantive protection of SR, meaning we are interested in both the procedural and substantive components of the access to justice journey and, in particular, whether the outcomes of the journey can be deemed effective.
To borrow from discourse theory – ‘access to justice’ or ‘justice’ in and of itself, could be framed as an ‘empty signifier’, in that it is a pursuit rather than a prescriptive end.114 Justice, and the means of achieving it, can be understood and framed in different ways as an (impossible) ideal that societies seek to achieve – meaning that while the end is never fully realized, its absence compels an ongoing struggle to achieve it and, in that process, people prescribe different meanings to the end goal: ‘even if the full closure of the social is not realisable in any actual society, the idea of closure and fullness still functions as an (impossible) ideal. Societies are thus organized and centred on the basis of such (impossible) ideals’.115
This is of course equally applicable to the elusive terminology around ‘social justice’ as a ‘feelgood’ term to which everyone can subscribe without any concrete or shared definition as to what it constitutes.116 Miller warns that among those who support it, ‘it is not at all clear what the idea means. Often it seems little more than a rhetorical phrase ... People may be committed to social justice in the abstract, and yet disagree bitterly about what should be done’.117 Different disciplines lay claim to ‘social justice’ constituting a form of procedural justice,118 formal equality,119 substantive
It is the pursuit of the (ideal social) justice, including the means of accessing it, that gives rise to an empty signifier where different actors and epistemic communities impose their own meanings and connotations in realizing this ultimate aim, as evidenced in the empirical data. In the meantime, the overall direction of the literature and practice evolves in the context of seeking to achieve justice, giving rise to the access to justice discourse. Different conceptualizations may not be immediately familiar to those working within the access to justice field from different perspectives. There is therefore a conceptual difficulty in framing ‘access to social justice’.
There are two important lessons to be taken from this framing. The first is the pitfalls and dangers associated with different epistemic communities attaching different meanings to terminology that is understood and conceived of in different and sometimes opposing ways – potentially to the detriment of those whose marginalization means they are furthest from accessing (some form of) justice. By way of an example, what does access to justice mean for the person who experiences in-work poverty, relying on food banks and living in housing that is uninhabitable? The data reveal that various tiers of advice from street-level bureaucracy through to advice centres, lawyers and barristers each view these SR violations in distinct ways, none of which may ultimately address the complexity of the rights holder’s predicament.
The tensions in the qualitative data around how to prescribe meaning to SR and access to social justice are also evident in the literature. For example, scholars invoke both narrow and broad definitions that pertain to ‘access to justice’ and ‘effective remedies’. Mullen, for example, argues that a narrow conception of access to justice is when ‘remedies’ are available or exist, whereas a broader conception is about whether those ‘remedies’ can be easily accessed.127 ‘Effective remedies’, he clarifies, include tribunals, Ombudsman, complaint procedures and various hybrids, including public inquiry-based decision-making processes.128 Access to justice under this definition concerns the availability of easily accessible remedies to address wrongs.129 By remedies, Mullen is referring to legal processes rather than the efficacy or remedial relief offered as an outcome of such processes, and an ‘effective remedy’ is defined as a right to challenge in an independent forum that is truly accessible.130
A broader lens on access to justice includes effective access to legal processes that result in effective outcomes. According to Shelton, remedies are the processes by which arguable claims are heard and decided, whether by courts, administrative agencies or other competent bodies (aligning with Mullen’s account), as well as the outcome of the proceedings and the relief afforded the successful claimant (addressing Garth and Cappelletti’s second aim – leading to results that are individually and socially just).131 Our reconceptualization
The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent. It would also drastically curtail the capacity of the courts to protect the rights of the most vulnerable and disadvantaged groups in society.136
The UN Committee on Economic, Social and Cultural Rights (CESCR) has repeatedly urged the UK to give full legal effect to the ICESCR in its domestic law, asking ‘that the Covenant rights are made justiciable, and that effective remedies are available for victims of all violations of economic, social and cultural rights’.137 Examples of appropriate remedies
Shelton emphasizes the potential for remedies to provide compensatory or remedial justice, to play a part in condemnation of the violation or retribution, as a form of deterrence and as playing a part in restorative justice or reconciliation.139 Roach suggests that an effective remedy serves three functions: it places the applicant in, as far as possible, the same position as they were prior to the occurrence of the alleged rights violation, it enables ongoing compliance and it ensures that future violations of the right in question do not occur through (a) deterrence, or (b) an attempt at addressing the feature of a legal system that caused the violation in the first place.140
We suggest that adjudicators must be equipped to strike a balance and use an aggregate of appropriate remedies as a means of responding to SR violations, including both individual and collective relief.141 This aligns with calls in the literature and practice to rethink the role of remedies in economic, social and cultural rights cases: ‘The challenge of enforcing ESC rights may require some re-thinking of the traditional idea that remedies must be immediate and track the contours of the right and the violation, and that the courts can order one shot remedies that achieve corrective justice.’142
An oversimplified understanding of the remedies for civil and political rights as simple corrective remedies that have no distributive effects is a barrier to effective remedies for socio-economic rights. Many traditional political and civil rights require complex dialogic relief with distributional implications to be effective. Once this is recognised then the remedial process that is required to enforce socio-economic rights will appear much less anomalous, albeit no less complex.145
An innovative approach to remedies is therefore required to fully embrace the potential of SR adjudication.146 We include an examination of the role of structural remedies in Chapter 4 as an outcome associated with a successful access to justice journey.
Our approach to methods, analysis and theory
Analytically, we examine how the notion of justice as an ‘empty signifier’ is filled with various, often competing, meanings by employing a critical approach to discourse analysis. This criticality directs attention to the role of power, particularly in terms of outcomes and impact. Jan Blommaert says that: ‘The deepest effect of power everywhere is inequality, as power differentiates and selects, includes and excludes. An analysis of such effects is also an analysis of the conditions for power – of what it takes to organise power regimes in societies’.147 He urges us to focus on language as ‘an ingredient of power processes resulting in, and sustained by, forms of inequality, and how discourse can be or become a justifiable object of analysis, crucial to an understanding of wider aspects of power relations’.148
A variety of critical approaches address questions of inequality and (in)justice by examining the complexity and unfolding processes of a broad range of intersecting social issues and discourses. Research agendas have increasingly paid attention to the relationship between language/discourse and society and its links to social inequalities and injustice, power asymmetry, politics, social privileges and so forth. These areas of scholarly enquiry contribute to our understanding of how relationships of inequality are discursively (re)produced, enacted and organized by institutions and actors, through the mobilization of forms of knowledge, justifying and legitimating particular activities, and resulting in certain outcomes. Dominant narratives and discourses are also challenged by different social actors, showing evidence of resistance and resilience, and offering alternate ways to engage in order to promote social justice and address the needs and concerns of disenfranchised or vulnerable groups.149
For instance, ongoing work in critical sociolinguistics investigates the ways in which language and labour/work are intertwined with capitalism and social inequality.150 Various studies have looked at the role of language and training programmes, and the various tactics, logics and forms of expertise that govern processes of migration and migrant workers.151 Additional attention has been directed to processes of racialization and
A closer examination of how various discourses are intertwined provides greater insight into access to justice and the adjudication of SR. The aforementioned studies provide multiple tools and diverse theoretical and methodological angles for the analysis of multilayered phenomena. As such, our multidisciplinary approach is particularly suitable for examining the multifaceted nature of SR protection frameworks across the UK jurisdictions.
Approach to data analysis
Our approach to the qualitative data we collected was not designed with a predetermined aim to prove or disprove any particular hypothesis; rather, in keeping with a critical analytic approach, it developed from the bottom up. We are inspired by qualitative approaches that adopt a self-reflexive stance and recognize the data as (co)-constructed by the researchers and researched,161 rather than entailing a mere process of ‘discovery’.162 Reflexivity not only requires researchers to be transparent in the decisions they make in the research process, but also to be self-critical in their engagement with complex social phenomena,163 such as social justice, inclusion and exclusion, by closely reflecting on theory, knowledge (production) and practice.164 As is common in qualitative research, our data analysis was an iterative and recursive process, which began with a deductive thematic analysis, teasing out general themes from the interview responses.
In a deductive approach, the search for themes is theory-driven,165 in this case primarily centring on the aforementioned principles of adjudication with ‘access to justice’ framed as a journey (see Chapter 4). The benefit of this approach is that it can assess the access to justice journey in relation to SR, while maintaining the flexibility of thematic analysis which can identify important new lines of enquiry throughout the analysis process and provide in-depth insights into the case studies.166
In the first stage of analysis, all the interviews collected were coded and analysed individually, drawing on the ‘access to justice’ building blocks and principles of adjudication.167 In addition, the potential impacts from the COVID-19 pandemic were included in the analysis. The principles provided a framework for approaching the data with questions that could tease out how the various concepts materialize in practice. As outlined earlier, these questions informed our field guide and guided the data analysis. We formulated questions for each of the building blocks and principles, as presented in Table 1.2.
Thematic analysis
| ACCESS | How is accessibility imagined and implemented in relation to housing, social security and food/fuel poverty, and what does access to justice or access to a remedy mean when there are problems with the provision of these services? |
| PARTICIPATION | Can everyone participate in decisions that impact them when seeking to access justice? What enables participation? What are the barriers to participation? Are those most impacted by issues and/ or marginalized across lines of oppression able to participate? |
| DELIBERATION | Are there clear dialogues occurring within multi-institutional frameworks across the legislative, executive and judicial branches? Is there accessible information about these dialogues? Are they inclusive and do they lead to outcomes that meet people’s SR? |
| COMPLIANCE | How can the issues people face be legally challenged? Are there set mechanisms for doing this? Are these mechanisms satisfactory? |
| ENFORCEMENT | What does review and enforcement mean in practice in each of the four UK jurisdictions? |
| FAIRNESS | Are there suitable means to challenge unfairness in the system? |
| COUNTERMAJORITARIAN | Can the solutions to these issues, legal or otherwise, be utilized for everyone or only a select few? How can systems prevent elite-driven litigation? |
| ACCOUNTABILITY | How are institutions held to account? Are there adequate mechanisms for this? |
| EFFECTIVE REMEDIES | Are remedies implemented? Are these remedies effective? By whose standard are they effective? |
| COVID-19 | What impact has the COVID-19 pandemic had on practitioners and on the realization of SR? |
A critical approach to discourse and policy
After the thematic analysis was completed, the data were analysed again using a critical discursive perspective in order to draw out specific tensions and contestations. It is precisely at junctures of conflict and struggle that we need to engage with local realities and probe more deeply to uncover exactly what is at stake. A dynamic research approach facilitates examining the protections in place as they relate to SR and not only evaluate what is explicitly stated in legal documents but also consider how the mandate to protect SR is taken up and negotiated by different social actors across UK jurisdictions. This widens the focus from compliance or noncompliance and questions of accountability, which highlight the identified gaps, to a broader understanding of how these gaps are constituted in practice and what will be required to close them. Directing our attention to those specific moments where competing tensions are evident will help us dig deeper in order to better understand the processes that may lie underneath the surface.
in order to account for and analyse the multiple layers of … policy and its concomitant impact, we need to theoretically, methodologically, and empirically engage with policy in terms of both structure and agency, and this is made possible by applying various forms of critical and discursive analysis to … policy situations.168
Discursive approaches are valuable for analysing how laws and policy governing SR protections in the UK impact on rights holders because
Several concepts integral to discourse analysis would be helpful at this stage, including notions of entextualization, intertextuality and interdiscursivity. A discursive approach to analysis looks closely at language and how it shapes meaning and understanding. Foucault provides the conceptual frame for understanding how language is a socially constructed object and urges us to reflect on how discourse production is instrumental to social change. A useful tool for analysing discourse/ policy is entextualization, which refers to the process by which discourses are taken from one context and transferred to a new context, thereby creating a new discourse.169 However, in this process, an ‘ideology of fixed text’ interacts with discourse practices that may extend or alter the original text.170 These ‘reformulations’ (re)frame the text through other discursive practices and representations; they may be incomplete and open to interpretation. It is this space for interpretation or possible entextualizations inherent in the original text that gives it validity; any attack on its meaning may be framed as a misinterpretation or misrepresentation rather than a fault with the original text, which is seen as neutral (we provide an example of this in Chapter 3 through a closer examination of the interpretation of section 6 HRA). Policy texts emerge in a variety of political processes, and in this sense entextualization in policy documents represents a discursive trace of political debates. The resulting discourses that circulate are considered metadiscourse or, rather, discourse about the discourse, reflecting the social reality of how SR, in this case, should be perceived. Once again, ideologies become a salient factor in how discourses in policy texts are entextualized.
Thus, text and context must not be treated as mutually exclusive units, but rather must be seen as closely connected. This may be achieved by drawing on the concept of intertextuality,171 referring to the notion that each text is situated in relation to other texts and to the structures of language itself. Essentially, the words we use are already imbued with meaning and value because they have been used countless times before. Simply put, ‘intertextuality refers to the fact that whenever we speak we produce the words of others, we constantly cite and re-cite expressions, and recycle meanings that are available. Thus every utterance has a history
Therefore, our words are not neutral and intertextuality allows us to look beyond the immediate context to see how expressions relate to ways of use, including more implicit ways such as indirect speech.173 The use of language, constructing thoughts and ideas in specific ways, produces certain types of discourse. Interdiscursivity thus refers to the connections between discourses, such as types of discourses, register or style.174
What is important for our discussion here is that on account of inherent power relations and potential inequalities, access to contextual spaces, such as those characterized by professional and social status, are often curtailed. Although meaning making in communication is shared between the speaker and listener, it is not necessarily allocated equally or fairly due to disparities in power relations (we share examples of this in Chapter 3 in relation, for instance, to medical assessment procedures for certain social security benefits). The notion of context and the related term contextualization175 are also key concepts for understanding how meaning is created and how particular linguistic resources, including types of discourse produced, are particularly pertinent in situations where power asymmetries prevail. In this sense, the process of contextualization is not necessarily negotiable if ‘somebody [imposes] a particular contextualisation on somebody else’s words’.176 The recognition that not everyone is allocated an equal ‘voice’ is particularly pertinent in relation to the provision of SR. As the data show, the adjudication journey for SR is fraught with inequality and marginalization, and getting one’s voice heard can be very difficult. Discourse, as a social phenomenon, is thus often a site of contestation, where inequalities and differences become visible. Directing attention to discourse also helps to uncover the implicit ideologies that have become submerged in the experiences and practices of different actors, such as practitioners, rights holders and duty bearers.
The notion of ‘voice’, or rather a lack thereof, became salient in the ways that practitioners spoke about advocating for their clients and helping them address SR violations. In contemporary societies, Blommaert says, ‘issues of voice become all the more pressing, they become more and more of a problem to more and more people. Voice is the issue that defines linguistic inequality (hence, many other forms of inequality)’.177 The silencing of voices is an iterative theme across the data relating to the inability for certain social actors to claim a legitimate voice.178 Directing attention to discourse is therefore important in terms of gaining a better understanding of how being able to make oneself heard and understood may be prevented, or even purposely undermined, by other dominant discourses and mechanisms.
It also prompted our own reflections as researchers about what it means to ‘give voice’ to others. Bogdan and Biklen define giving voice as ‘empowering people to be heard who might otherwise remain silent’.179 Christine Ashby urges us to question whether we are really giving voice, if it is ours to give, and asks who benefits from the telling.180 She offers several critical points of reflection on how we, as researchers, engage with a process of ‘giving voice’. She cautions that the practice of giving voice may in fact ‘reinforce the very systems of oppression that it seeks to redress’.181 By the nature of our positions as academics, lawyers and researchers, hierarchies of power and privilege are re-inscribed when we presume to give voice to someone else, regardless of our intentions. Reflexivity means recognizing that as researchers we occupy multiple spaces of privilege and power,182 bringing our own perspectives to bear on the data. In Kathryn Woolard’s words, there is no perspective from ‘nowhere’,183 meaning that the voices we present to be heard by others are not objective truths, but are mediated and interpreted in the process of our research and analysis.184
Structure of the book
This chapter has set out our field of enquiry, situating it at the intersection of various disciplinary perspectives and critical theoretical lenses. The next chapter looks at the international legal framework with a particular focus on the ICESCR and the rights to housing, food, social security and fuel. The purpose of this overview is to equip those new to the international legal framework with the necessary tools to lay claim to social rights as legal rights. Chapter 3 explores our empirical data by setting out what we learned from our various case studies across the UK and the themes that began to emerge in our analysis. Chapter 4 builds on this analysis by reframing access to social justice as a journey from rights violation to effective remedy, drawing on our empirical evidence and international human rights law as a normative framework. Our final chapter deepens our theoretical analysis as we weave strands of emerging data to provide greater clarity on the gaps in accessing social justice in practice and the power dynamics that inhibit progress in this space. We provide recommendations to close this gap and point to future research agendas to continue the discussion. Ultimately we urge those engaged in the field to reclaim the narrative of SR as legal rights in order to counteract discourses that marginalize and exclude those who carry the heaviest burden in the protracted access to social justice journey.
Social rights form part of the international human rights framework and in particular are derived from the International Covenant on Economic, Social and Cultural Rights: UN (General Assembly), International Covenant on Economic, Social and Cultural Rights (ICESCR), Resolution 2200A (XXI) of 16 December 1966. Economic, social, cultural, civil and political rights are indivisible in nature according to the international human rights framework. In this book, our focus on social rights was prompted by the recurrence of social rights issues identified in Ramona Franklyn et al, The Legal Problem and Resolution Survey for England and Wales (LRPS) (Ministry of Justice Analytical Series, 2017), together with the prevalence of issues in the recommendations of the UN Committee on Economic, Social and Cultural Rights (CESCR), ‘Concluding Observations on the Sixth Periodic Report of the United Kingdom of Great Britain and Northern Ireland’ (2016) E/C.12/GBR/CO/6. We secured funding from the Nuffield Foundation to research further into access to justice gaps for the social rights to housing, social security, food and fuel across the UK. It is this research which forms the substance of this book. It may be helpful to note that the language used when engaging with social rights sometimes refers to ‘economic, social and cultural rights’, ‘socio-economic rights’, ‘economic and social rights’ or ‘international human rights’. Sometimes this terminology can be used interchangeably.
Jean Lave, Apprenticeship in Critical Ethnographic Practice (Chicago: University of Chicago Press, 2011), pp 36–37.
Bryant Garth and Mauro Cappelletti, ‘Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective’, (1978) 27(2) Buffalo Law Review, pp 181–292, p 188 (emphasis added).
See, for example, the groundbreaking work of Hazel Genn, Pascoe Pleasance, Nigel Balmer, Lisa van Halla, Jacqui Kinghan, Alan Paterson and others who have been instrumental in building and progressing the access to justice literature, albeit without addressing the substantive and normative social rights dimension of social justice. The vast literature on issues on effective access to (procedural) justice includes Hazel Genn, Paths to Justice (Hart Publishing, 1999); Hazel Genn and Alan Paterson, Paths to Justice Scotland: What People in Scotland Do and Think about Going to Law (Oxford: Hart Publishing, 2001); Hazel Genn et al, Understanding Advice Seeking Behaviour: Further Findings from the LSRC Survey of Justiciable Problems (London: Legal Services Research Centre, 2004); Lisa Vanhala and Jacqui Kinghan, ‘The “Madness” of Accessing Justice: Legal Mobilisation, Welfare Benefits and Empowerment’ (2022) 44(1) Journal of Social Welfare and Family Law, pp 22–41; Hazel Genn, ‘When Law Is Good for Your Health: Mitigating the Social Determinants of Health through Access to Justice’ (2019) 72(1) Current Legal Problems, pp 159–202; Lisa Vanhala and Jaqui Kinghan, Using the Law to Address Unfair Systems: A Case Study of the Personal Independence Payments Legal Challenge (The Baring Foundation, 2019); Lisa Vanhala and Jaqui Kinghan, Literature Review on the Use and Impact of Litigation (Public Law Project, 2018); Lisa Vanhala and Jaqui Kinghan, Using the Law for Social Change: A Landscape Review (The Baring Foundation, 2018); Marjorie Mayo et al, Access to Justice for Disadvantaged Communities (Bristol: Policy Press, 2015); Ellie Palmer et al, Access to Justice: Beyond the Policies and Politics of Austerity (Oxford: Hart Publishing, 2016); Organisation for Economic Co-operation and Development (OECD), Legal Needs Surveys and Access to Justice (New York: Open Society Foundation, 2019).
Future research on access to justice requires ‘revisiting our substantive conception of justice as well as the means of accessing and achieving it’: Katie Boyle, Economic and Social Rights, Incorporation, Justiciability and Principles of Adjudication (Abingdon: Routledge, 2020).
Pascoe Pleasence et al, ‘Access to and Quality of Justice’ in Praia City Group, Handbook on Governance Statistics (London: Governance Statistics, 2020).
OECD (n 4), p 24.
Luke Clements, Clustered Injustice and the Level Green (Legal Action Group, 2020); Pasco Pleasence, Causes of Action: Civil Law and Social Justice, 2nd edn (London: The Stationery Office, 2006).
Clements (n 8), p 2.
Boyle (n 5) develops principles derived from deliberative democracy to address the critiques of SR adjudication.
Jerry Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (Yale University Press, 1983). See also Michael Adler, ‘Understanding and Analysing Administrative Justice’ in Michael Adler (ed.), Administrative Justice in Context (Oxford: Hart Publishing, 2010); Robert Kagan, ‘Varieties of Bureaucratic Justice’ in Nicolas Parrillo (ed.), Administrative Law from the Inside Out: Essays on the Themes in the Work of Jerry Mashaw (Cambridge: Cambridge University Press, 2016); Marc Hertogh, ‘Through the Eyes of Bureaucrats: How Front-Line Officials Understand Administrative Justice’ in Michael Adler (ed.), Administrative Justice in Context (Oxford: Hart Publishing, 2010); Simon Halliday and Colin Scott, ‘A Cultural Analysis of Administrative Justice’ in Michael Adler (ed.), Administrative Justice in Context (Oxford: Hart Publishing, 2010); Joe Tomlinson and Robert Thomas, ‘Administrative Justice: A Primer for Policymakers and Those Working in the System’, UK Administrative Justice Institute, 2016, https://essexcaji.org/2016/09/09/administrative-justice-a-primer-for-policymakers-and-those-working-in-the-system. For a brief discussion of these approaches, see Paul Daly, ‘Thinking about Administrative Justice: The Power of Mashaw’s Models’, Administrative Law Matters, 2019, https://www.administrativelawmatters.com/blog/2019/11/01/thinking-about-administrative-justice-the-power-of-mashaws-models
For a discussion on the different models of administrative justice, including Mashaw’s bureaucratic justice and subsequent typologies developed by Adler, Kagan, Scott and Halliday, Sabel and Simon, see Jerry Masha, ‘Models of Administrative Justice’ in Marc Hertogh et al (eds), The Oxford Handbook of Administrative Justice (Oxford: Oxford University Press, 2022).
Trevor Buck, Richard Kirkham and Brian Thompson, The Ombudsman Enterprise and Administrative Justice (Abingdon: Routledge, 2010).
International human rights law recognizes that effective remedies may be secured through administrative mechanisms and need not always require a judicial remedy. Indeed, administrative remedies can provide adequate and appropriate effective remedies if configured to do so. Nonetheless, and particularly in the absence of SR standards informing administrative law, the CESCR confirms that if a right cannot be made fully effective without some role for the judiciary, judicial remedies are necessary. See CESCR, ‘General Comment No. 9: The Domestic Application of the Covenant’ (1998) E/C.12/1998/24, [9].
For example, Jeff King, Judging Social Rights (Cambridge University Press, 2012); Stefano Civitarese Matteucci and Simon Halliday (eds), Social Rights in Europe in the Age of Austerity (Routledge, 2017) – see in particular Jed Meers’ chapter on the UK; Michael Adler (ed.), A Research Agenda for Social Welfare Law, Policy and Practice (Edward Elgar, 2022); Katie Boyle, Economic and Social Rights Law: Incorporation, Justiciability and Principles of Adjudication (Routledge, 2020); Mark Simpson et al, ‘Legal Protection Against Destitution in the UK: the Case for a Right to a Subsistence Minimum’ (2023) 86(2) Modern Law Review, pp 465–497; Mark Simpson, Social Citizenship in an Age of Welfare Regionalism: The State of the Social Union (Bloomsbury, 2022); Koldo Casla, ‘Economic and Social Rights in the UK: Between Pessimism of the Intellect and Optimism of the Will’ (2024)(1) European Human Rights Law Review, pp 23–30.
Robert Thomas and Joe Tomlinson, ‘Mapping Current Issues in Administrative Justice: Austerity and the “More Bureaucratic Rationality” Approach’ (2017) 39(3) Journal of Social Welfare and Family Law, pp 380–399.
Katie Boyle and Diana Camps, Response to IRAL Call for Evidence (University of Stirling, 2020).
Naomi Creutzfeldt and Richard Kirkham, ‘Understanding How and When Change Occurs in the Administrative Justice System: The Ombudsman/Tribunal Partnership as a Catalyst for Reform?’ (2020) 42(2) Journal of Social Welfare and Family Law, pp 253–273.
Jackie Gulland, ‘Social Justice and Administrative Justice’ in Marc Hertogh et al (eds), The Oxford Handbook of Administrative Justice (Oxford: Oxford University Press, 2022).
Gulland (n 19).
Paul O’Connell, ‘Human Rights: Contesting the Displacement Thesis’ (2018) 69(1) Northern Ireland Legal Quarterly, pp 19–35.
Margaret Doyle and Nick O’Brien, Reimagining Administrative Justice: Human Rights in Small Places (London: Palgrave Pivot, 2020).
Michael Adler, ‘Book Review: Reimagining Administrative Justice: Human Rights in Small Places’ (2021) 30(4) Social & Legal Studies, pp 669–681; Simon Halliday, ‘[Book Review]: Reimagining Administrative Justice: Human Rights in Small Places by Margaret Doyle & Nick O’Brien (Palgrave Pivot, 2020)’ (2021) 28(1) Journal of Social Security Law, pp 71–76.
Chris Hodges, ‘Delivering Justice’ (2019) 1 International Journal of Procedural Law, pp 149–177.
Boyle (n 5), p 2.
Boyle (n 5); Katie Boyle, ‘Models of Incorporation and Justiciability of Economic, Social and Cultural Rights’, Scottish Human Rights Commission, 2018, https://www.scottishhumanrights.com/media/1809/models_of_incorporation_escr_vfinal_nov18.pdf.
Paul Hunt, Social Rights Are Human Rights – But the UK System Is Rigged (Sheffield: Centre for Welfare Reform, 2017).
Katie Boyle and Edel Hughes, ‘Identifying Routes to Remedy for Violations of Economic, Social and Cultural Rights’ (2018) 22 International Journal of Human Rights, pp 43–69.
Ibid.
See the recent decisions from the Supreme Court raising a red flag that the court should not intervene in such areas such as R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, where Lord Reed at [162] draws a line on the role of the court intervening in what is perceived as failed political campaigns.
REFERENCES (Bills) by the Attorney General and the Advocate General for Scotland – United Nations Convention on the Rights of the Child and European Charter of Local Self-Government (Incorporation) (Scotland) [2021] UKSC 42.
Following the Independent Human Rights Act Review Report, available at https://www.gov.uk/guidance/independent-human-rights-act-review#the-panels-report, the UK government introduced the Bill of Rights Bill to repeal and replace the Human Rights Act and subsequently scrapped the Bill after first reading.
Boyle (n 5), pp 102–103.
Ibid, p 136.
At the national, level examples of counterdiscourses that are emerging are indicative of movements claiming SR as legal rights. See, for example, recent statements by David Lammy (Labour) on incorporation of SR and the link with accountability for SR violations, such as Grenfell and Windrush: David Lammy, ‘Human Rights Are an Integral Part of Labour’s Mission’, Institute for Public Policy, 7 July 2021, https://labourlist.org/2021/07/human-rights-are-an-integral-part-of-labours-mission-lammys-speech/
Nick O’Brien, ‘Administrative Justice in the Wake of I, Daniel Blake’ (2017) 89(1) Political Quarterly, pp 82–91.
For example, while those who have had their claim for asylum refused in England are no longer eligible for support (no recourse to public funds), in Scotland additional mitigation measures are taken to ensure that everyone, including those whose immigration status is precarious, can access healthcare on the same basis. The Scottish government has stepped in to ensure that the bedroom tax is not applicable in Scotland through the deployment of discretionary housing payments and that the benefit cap is mitigated through measures such as the Scottish Child Payment. Likewise, in Northern Ireland, additional mitigation social security packages have been introduced to mitigate the severity of UK austerity policies, such as the bedroom tax and the benefit cap. Similar calls for devolved social security in Wales are now taking place.
Joseph Rowntree Foundation, UK Poverty 2023: The Essential Guide to Understanding Poverty in the UK (York: Joseph Rowntree Foundation, 2023), https://www.jrf.org.uk/events/uk-poverty-2023-the-essential-guide-to-understanding-poverty-in-the-uk
Denis Campbell, ‘Life Expectancy Gap in England “A Growing Chasm” Exacerbated by Covid’ The Guardian (London, 10 October 2021).
Peter Goldblatt, Health Inequalities, Life Cut Short (London: Institute of Health Equity, 2024).
The legal constitutionalization and adjudication of rights can help support pathways to social justice, among other avenues. See Conor Gearty and Virginia Mantouvalou, Debating Social Rights (Oxford: Hart Publishing, 2011); and O’Connell (n 21). In addition, it should be noted that the end result of other avenues may indeed lead to the legalization of SR – for example, where civil society pressure coalescing with political impetus results in human rights reform that embeds SR as legal rights (such as is evident in Scotland and Wales).
For a discussion on accountability in this space, see the leading work of Tom Mullen, ‘Access to Justice in Administrative Law and Administrative Justice’ in Ellie Palmer et al (eds), Access to Justice: Beyond the Policies and Politics of Austerity (London: Bloomsbury Publishing, 2016); O’Brien (n 36); Doyle and O’Brien (n 22); Nick O’Brien and Mary Senevirante, Ombudsmen at the Crossroads: The Legal Services Ombudsman, Dispute Resolution and Democratic Accountability (London: Palgrave Macmillan, 2017); Mashaw (n 11); Michael Adler, ‘Social Security and Social Welfare’ in Peter Cane and Herbert Kritzer (eds), The Oxford Handbook of Empirical Legal Research (Oxford: Oxford University Press, 2010); Robert Thomas and Joe Tomlinson, Current Issues in Administrative Justice: Examining Administrative Review, Better Internal Decisions, and Tribunal Reform (London: Economic and Social Research Council, 2016); and David Barrett, ‘The Regulatory Space of Equality and Human Rights Law in Britain: The Role of the Equality and Human Rights Commission’ (2019) 38 Legal Studies, pp 247–265.
Housing Ombudsman Service, ‘Housing Ombudsman Urges Zero Tolerance Approach on Damp and Mould’ (Housing Ombudsman Service Press Release, 2021).
Drawing upon the standards on what is considered to be a decent home, including the Department for Communities and Local Government, A Decent Home: Definition and Guidance for Implementation (Department for Communities and Local Government, 2006) and the Homes (Fitness for Human Habitation) Act 2018.
Housing Ombudsman Service (HOS), Systemic Framework (Liverpool: Housing Ombudsman Service, 2021).
HOS, Spotlight on: Damp and Mould, It’s Not Lifestyle (Liverpool: Housing Ombudsman Service, 2021), pp 2 and 53.
Ibid, p 4.
Ibid, pp 5–7.
Boyle (n 5), ch 2; Philip Alston and Gerard Quinn, ‘The Nature and Scope of States Parties’ Obligations under the ICESCR’ (1987) 9(2) Human Rights Quarterly, pp 156–229.
For a discussion on this, see Boyle (n 5).
Hunt (n 27).
Joe Kincheloe and Peter McLaren, ‘Rethinking Critical Theory and Qualitative Research’ in Norman Denzin and Yvonna Lincoln (eds), Handbook of Qualitative Research, 2nd edn (London: Sage Publications, 2000), p 291; Jan Blommaert, Discourse: A Critical Introduction (Cambridge: Cambridge University Press, 2005).
For example, see the competing conceptions of rights formation under proceduralism or substantive deliberation in different constitutional settings; Seyla Benhabib, ‘Reason-Giving and Rights-Bearing: Constructing the Subject of Rights’ (2013) 20(1) Constellations, pp 38–50.
Karen Zivi, Making Rights Claims: A Practice of Democratic Citizenship (Oxford: Oxford University Press, 2012).
Michel Foucault, The Archaeology of Knowledge (A.M. Sheridan Smith, trans.) (New York: Harper & Row, 1972), p 49.
Boyle (n 5) develops principles derived from deliberative democracy to address the critiques of SR adjudication.
Boyle (n 5).
For a discussion on the vast academic literature examining the waves of ESR critiques, see Boyle (n 5), ch 1.
Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton: Princeton University Press, 2008), p 23.
César Rodríguez-Garavito and Diana Rodríguez-Franco, Radical Deprivation on Trial, the Impact of Judicial Activism on Socioeconomic Rights in the Global South (Cambridge: Cambridge University Press, 2015), p 10.
By way of example, see QH v Secretary of State for the Home Department [2020] EWHC 2691 (Admin).
Kathrine Young, Constituting Economic and Social Rights (Oxford: Oxford University Press, 2012), p 8.
Frank Michelman, ‘Socioeconomic Rights in Constitutional Law: Explaining America Away’ (2008) 6(3) International Journal of Comparative Constitutional Law, pp 663–686, p 683.
The research team acknowledges that marginalized/minoritized groups are not homogeneous and that the nature of challenges, as well as barriers to accessing justice, may differ significantly. Although our empirical data (practitioner interviews) foreground particular groups of people facing certain (unique) challenges, these accounts merely provide glimpses of insight; it is beyond the scope of the project to address the diversity of needs/hurdles of specified groups in a structured and comprehensive manner.
R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26.
Ibid.
Tushnet (n 59).
See the South African Constitution, https://www.constituteproject.org/constitution/South_Africa_2012
Jeff King, Judging Social Rights (Cambridge: Cambridge University Press, 2011); Colm O’Cinneide, ‘The Constitutionalisation of Economic and Social Rights’ and Frank Michelman, ‘Constitutionally Binding Social and Economic Rights as a Compelling Idea: Reciprocating Perturbations in Liberal and Democratic Constitutional Visions’ in Helena García et al (eds), Social and Economic Rights in Theory and Practice, Critical Inquiries (Abingdon: Routledge, 2015), pp 261–262 and 279–280, respectively; Aoife Nolan et al, The Justiciability of Social and Economic Rights: An Updated Appraisal (Belfast: Human Rights Consortium, 2007); Virginia Mantouvalou, ‘Structural Injustices and the Human Rights of Workers’ (2020) 73(1) Current Legal Problems, pp 59–87.
David Landau, ‘The Reality of Social Rights Enforcement’ (2012) 53 Harvard International Law Journal, pp 190–247.
See the potential of class actions discussed by Michael Molavi, Collective Access to Justice: Assessing the Potential of Class Actions in England and Wales (Bristol: Bristol University Press, 2021).
Landau (n 70); and Rodríguez-Garavito and Rodríguez-Franco (n 60).
Gaurav Mukherjee, ‘Effective Remedies & Structural Orders for SR Violations, Nuffield Access to Justice for SR, Addressing the Accountability Gap’, Access to Justice for Social Rights, 2022, https://www.nuffieldfoundation.org/wp-content/uploads/2019/11/Boyle-Effective-Remedies-Briefing_18MAY2.pdf
For a discussion on how principles of deliberative democracy help address the critiques of SR adjudication, see Boyle (n 5), ch 1.
Nancy Fraser, Scales of Justice: Reimagining Political Space in a Globalizing World (New York: Columbia University Press, 2009), p 16.
The research team acknowledges Fraser’s monistic viewpoint, framing justice around the principle of parity in participation. We do not preclude other conceptualizations of justice. For a theoretical critique, see Christopher F. Zurn, ‘Review: Scales of Justice: Reimagining Political Space in a Globalizing World by Nancy Fraser’ (2012) 38(1) Social Theory and Practice, pp 165–172.
Fraser (n 75), p 29.
Iris Marion Young, Responsibility for Justice (Oxford: Oxford University Press, 2013).
Fraser (n 75), p 16.
Fraser (n 75).
Young (n 78), p 22; Deborah Tannen, Framing in Discourse (Oxford: Oxford University Press, 1993).
See also Bourdieu’s notion of méconnaissance (misrecognition); Pierre Bourdieu, Language and Symbolic Power (Cambridge: Polity Press, 1991).
Fraser (n 75), p 25.
Zivi (n 54).
Susan Gal, ‘Language and Political Economy’ (1989) 18 Annual Review of Anthropology 345; Judith Irvine and Susan Gal, ‘Language Ideology and Linguistic Differentiation’ in Paul V. Kroskrity (ed.), Regimes of Language: Ideologies, Polities, and Identities (Santa Fe: School of American Research Press, 2000).
See, for instance, Dell Hymes, ‘Inequality in Language: Taking for Granted’ (1992) 8(1) Working Papers in Educational Linguistics, pp 1–30.
Blommaert (n 52), p 71.
Kathryn A. Woolard, Singular and Plural: Ideologies of Linguistic Authority in 21st Century Catalonia (Oxford: Oxford University Press, 2016), p 16.
Blommaert (n 52).
Jan Blommaert and Jef Verschueren, ‘The Role of Language in European Nationalist Ideologies’ in Paul V. Kroskrity and Kathryn A. Woolard (eds), Language Ideologies: Practice and Theory (Oxford: Oxford University Press, 1998), p 26.
Alistair Pennycook, Critical Applied Linguistics: A Critical Introduction (Abingdon: Routledge, 2001).
Foucault rejected the concept of ideology, preferring the term ‘discourse’; Michel Foucault, ‘Truth and Power’ in Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972–1977 (Colin Gordon, ed.) (New York: Pantheon Books, 1980).
Foucault (n 92), p 118.
UN (General Assembly), Universal Declaration of Human Rights (UDHR), Resolution 217A (III) of 10 December 1948.
UN (General Assembly), International Covenant on Civil and Political Rights (ICCPR), Resolution 2200A (XXI) of 16 December 1966.
UN (General Assembly), International Covenant on Economic, Social and Cultural Rights (ICESCR), Resolution 2200A (XXI) of 16 December 1966, United Nations, Treaty Series, vol. 993, 3. The UDHR, the ICCPR and the ICESCR are collectively known as the International Bill of Rights.
See Boyle (n 5), ch 2; Alston and Quinn (n 49), p 159; Sally-Anne Way, ‘The Myth and Mystery of US History on Economic, Social, and Cultural Rights: The 1947 United States Suggestions for Articles to Be Incorporated in an International Bill of Rights’, (2014) 36(4) Human Rights Quarterly, pp 869–897; Daniel J. Whelan and Jack Donnelly, ‘The West, Economic and Social Rights, and the Global Human Rights Regime: Setting the Record Straight’ (2007) 29(4) Human Rights Quarterly, pp 908–949; Daniel Whelan, Indivisible Human Rights (University of Pennsylvania Press, 2010); Mathew Craven, The International Covenant on Economic, Social, and Cultural Rights: A Perspective on Its Development, (Oxford: Clarendon Press, 1995).
Mónica Feria Tinta, ‘Justiciability of Economic, Social, and Cultural Rights in the Inter-American System of Protection of Human Rights: Beyond Traditional Paradigms and Notions’ (2007) 29(2) Human Rights Quarterly, pp 431–459, p 432.
Nikolas Rose and Peter Miller, ‘Political Power beyond the State: Problematics of Government’ (1992) 43(2) British Journal of Sociology, pp 173–205, p 181; see also Nancy Fraser’s discussion on Postfordist modes of regulation: Fraser (n 75), p 118.
Mantouvalou (n 69).
Michael Lipsky, Street-Level Bureaucracy: Dilemmas of the Individual in Public Services (New York: Russell Sage Foundation, 2010).
Ibid, p xii.
Ibid, p 54.
Clements (n 8).
Michel Foucault, ‘Governmentality’ in Graham Burchell et al (eds), The Foucault Effect: Studies in Governmentality (Chicago: University of Chicago Press, 1991).
It is not possible in the context of this report to do justice to the vast literature and research on neoliberalism, globalization, political economy and governmentality. However, we felt it necessary to acknowledge that our discussion on SR is inextricably embedded in the political project of neoliberal globalization, as it results in particular rationales being mobilized in discourse around the notion of SR and the adjudication journey.
Mark C.J. Stoddart, ‘Ideology, Hegemony, Discourse: A Critical Review of Theories of Knowledge and Power (2007) 28(1) Social Thought and Research, pp 191–225.
Alistair Pennycook, ‘Language Policy and Docile Bodies: Hong Kong and Governmentality’ in James W. Tollefson (ed.), Language Policies in Education: Critical Issues (Abingdon: Routledge, 2002).
Alfonso Del Percio et al, ‘Language and Political Economy’ in Ofelia García et al (eds), The Oxford Handbook of Language and Society (Oxford: Oxford University Press, 2017).
Wendy Brown, ‘Who Is Not a Neoliberal Today?’, Tocqueville 21, 18 January 2018, https://tocqueville21.com/interviews/wendy-brown-not-neoliberal-today/
Guy Skinner, Paul Bywaters and Eilis Kennedy, ‘The Cost-of-Living Crisis, Poverty and Child Maltreatment’ (2023) 7(1) The Lancet Child & Adolescent Health, pp 5–6.
Mary O’Hara, Austerity Bites: A Journey to the Sharp End of Cuts in the UK (Bristol: Policy Press, 2015).
‘[C]onduire des conduites’ [conduct of conduct]; Michel Foucault, Dits et Écrits IV (Paris: Gallimard, 1994), p 237.
Although the fullness and universality of society is unachievable, its need does not disappear: it will always show itself through the presence of its absence; Ernesto Laclau, Emancipation (London: Verso, 1996), p 53.
David Howart et al (eds), Discourse Theory and Political Analysis: Identities, Hegemonies and Social Change (Manchester: Manchester University Press, 2000), p 8.
David Piachaud, Social Justice and Public Policy: A Social Policy Perspective (Bristol: Policy Press, 2008), p 33.
David Miller, Principles of Social Justice (Cambridge, MA: Harvard University Press, 2001).
John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971).
Rawls (n 118); Ronald Dworkin, ‘Keynote Address: Justice for Hedgehogs’ (2010) 90(2) Boston University Law Review, pp 469–477.
Sandra Fredman, ‘Substantive Equality Revisited’ (2016) 14(3) International Journal of Constitutional Law, pp 712–738.
Emil Israel and Ammon Frenkel, ‘Social Justice and Spatial Inequality: Toward a Conceptual Framework’ (2021) 42(5) Progress in Human Geography, pp 647–655, p 647.
Nancy Fraser and Alex Honneth, Redistribution or Recognition? A Political-Philosophical Landscape (London: Verso, 2003).
Young (n 78).
Fraser (n 75); Amartya Sen, The Idea of Justice (Cambridge, MA: Harvard University Press, 2009).
Martha C. Nussbaum, ‘Capabilities as Fundamental Entitlements: Sen and Social Justice’ (2003) 9(2–3) Feminist Economics, pp 33–59; Chris McInerney, ‘Exploring the Meaning of Social Justice’ in Challenging Times, Challenging Administration: The Role of Public Administration in Producing Social Justice in Ireland (Manchester: Manchester University Press, 2014); Carlos Andrés Pérez-Garzón, ‘Unveiling the Meaning of Social Justice in Colombia’ (2018) 10(2) Mexican Law Review, pp 27–66.
Joanne Schulze et al, ‘An International Social Justice Agenda in School Psychology? Exploring Educational Psychologists’ Social Justice Interest and Practice in England’ (2019) 29(4) Journal of Educational and Psychological Consultation, p 394; Katherine Abbott, ‘Social Justice’ in Alex C. Michalos Encyclopedia of Quality of Life and Well-Being Research (New York: Springer, 2014).
Tom Mullen, ‘Access to Justice in Administrative Law and Administrative Justice’ in Ellie Palmer et al (eds), Access to Justice, Beyond the Policies and Politics of Austerity (London: Bloomsbury Publishing, 2016), p 70.
Mullen (n 127).
Ibid.
Ibid, p 71.
Dinah Shelton, Remedies in International Human Rights Law (Buckingham: Open University Press, 1999), p 7.
CESCR (n 14), [9].
Remedies should be effective ‘in practice as well as in law’: Council of Europe, ‘Guide on Article 13 of the European Convention on Human Rights, Right to an Effective Remedy’, European Court of Human Rights, 31 August 2021, para 44, https://ks.echr.coe.int/documents/d/echr-ks/guide_art_13_eng
For example, Article 2(3) ICCPR provides for an effective remedy determined by judicial, administrative or legislative authorities. UN General Comment No. 9 (see n 14) provides administrative remedies may be adequate with an ultimate right of judicial appeal.
Alston and Quinn (n 49); Hans Kelsen, Pure Theory of Law M. Knight (trans.) (Oakland, CA: University of California Press 1960/1967), pp 125–126; EW Vierdag, ‘The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights’ (1968) 9 Netherlands Yearbook of International Law, pp 69–105.
CESCR (n 14), [10].
Concluding observations of the UN Committee on Economic, Social and Cultural Rights’s (CESCR) UNCSECR’s Forty-second session, 4–22 May 2009 Consideration of reports submitted by States parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), United Kingdom of Great Britain and Northern Ireland, the Crown Dependencies and the Overseas dependencies, 12 June 2009, E/C.12/GBR/CO/5, para 3.
UN General Assembly, ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law: Resolution’, adopted by the General Assembly, 21 March 2006, A/RES/60/147.
Shelton (n 131), pp 10–15.
Kent Roach, Remedies for Human Rights Violations: A Two-Track Approach to Supra-National and National Law (Cambridge: Cambridge University Press, 2021), pp 2–5.
Rodríguez-Garavito and Rodríguez-Franco (n 60).
Kent Roach, ‘Crafting Remedies for Violations of Economic, Social and Cultural Rights’ in John Squires, Malcolm Langford and Bret Thiele (eds), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (Sydney: University of New South Wales Press, 2005), p 111.
Dinah Shelton, ‘Remedies and Reparation’ in Malcolm Langford et al (eds), Global Justice, State Duties: The Extraterritorial Scope of Economic, Social and Cultural Rights in International Law (Cambridge: Cambridge University Press, 2013), p 380.
Ibid.
Kent Roach, ‘The Challenges of Crafting Remedies for Violations of Economic, Social and Cultural Rights’, in Malcom M. Langford (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge: Cambridge University Press 2008), p 58.
Roach (n 140, n 142 and n 145), Shelton (n 143) and Boyle (n 5).
Blommaert (n 52), p 2 (emphasis in original).
Blommaert (n 52).
Ibid, p 8.
Cf. Elisabeth Barakos, ‘Language Policy and Governmentality in Businesses in Wales: A Continuum of Empowerment and Regulation’ (2016) 35(4) Multilingua; Elisabeth Barakos, Language Policy in Business: Discourse, Ideology and Practice (Amsterdam: John Benjamins Publishing Company, 2021); Alfonso Deldel Percio, ‘Language, the Political Economy and Labor’ in James Stanlaw (ed.), The International Encyclopedia of Linguistic Anthropology (Chichester: Wiley, 2020); Mi-Cha Flubacher, Alexandre Duchêne and Renata Coray, Language Investment and Employability: The Uneven Distribution of Resources in the Public Employment Service (London: Palgrave Macmillan, 2018).
Cf. Diana Camps, ‘Restraining English Instruction for Refugee Adults in the United States’ in Emily Feuerherm and Vaideho Ramanathan (eds), Refugee Resettlement in the United States: Language, Policy, Pedagogy (Bristol: Multilingual Matters, 2016); Alfonso Del Percio and Sarah van Hoof, ‘Enterprising Migrants: Language and the Shifting Politics of Activation’ in Mi-Cha Flubacher and Alfonso Del Percio (eds), Language, Education and Neoliberalism: Critical Studies in Sociolinguistics (Bristol: Multilingual Matters, 2017); Beatriz Lorente, Scripts of Servitude: Language, Labor, Migration and Transnational Domestic Work (Bristol: Multilingual Matters, 2018)
Tina Shrestha, ‘Learning English, Speaking Hindi: The Paradox of (Language) Integration among Nepalis in the United States’ in Feuerherm and Ramanathan (eds) (n 151).
Beatriz Lorente, ‘The Making of “Workers of the World”: Language and the Labor Brokerage State’ in Alexandre Duchêne and Monica Heller (eds), Language in Late Capitalism: Pride and Profit (Abingdon: Routledge, 2012).
Doris Warriner, ‘“The Days Now Is Very Hard for My Family”: The Negotiation and Construction of Gendered Work Identities among Newly Arrived Women Refugees’ (2004) 3(4) Journal of Language, Identity and Education, pp 279–294.
Cf. Monica Heller (ed.), Bilingualism: A Social Approach (Basingstoke: Palgrave Macmillan, 2007).
Blommaert (n 52), p 10.
Cf. Flubacher and Del Percio (eds) (n 151); Monica Heller and Marilyn Martin-Jones (eds), Voices of Authority: Education and Linguistic Difference (New York: Ablex Publishers, 2001); Francis Hult, ‘Nexus Analysis as Scalar Ethnography for Educational Linguistics’ in Marilyn Martin-Jones and Deirdre Martin (eds), Researching Multilingualism: Critical and Ethnographic Perspectives (Abingdon: Routledge, 2017); Marie Källkvist and Francis Hult, ‘Multilingualism as Problem or Resource? Negotiating Space for Languages Other than Swedish and English in University Language Planning’ in Maria Kuteeva, Kathrin Kaufhold and Niina Hynninen (eds), Language Perceptions and Practices in Multilingual Universities (London: Palgrave Macmillan, 2020).
Cf. Adrian Blackledge, ‘The Discursive Construction of National Identity in Multilingual Britain’ (2020) 1(1) Journal of Language, Identity & Education, pp 67–87; Leonie Cornips and Ad Knotter, ‘De Uitvinding van Limburg: De Territorialisering van Geschiedenis, Taal en Identiteit’ in Albert Knotter and Willibrord Rutten (eds), Studies over de Sociaal-Economische Geschiedenis van Limburg LXI (Zwolle: WBOOKS/Sociaal Historisch Centrum voor Limburg, 2016); Ruth Wodak, ‘Discourses about Nationalism’ in John Flowerdew and John E. Richardson (eds), The Routledge Handbook of Critical Discourse Studies (Abingdon: Routledge, 2018).
Cf. Diana Camps, ‘Legitimating Limburgish: The Reproduction of Heritage’ in Pia Lane, James Costa and Haley de Korne (eds), Standardizing Minority Languages: Competing Ideologies of Authority and Authenticity in the Global Periphery (Abingdon: Routledge, 2018), p 66; Alexandra Jaffe, ‘Minority Language Movements’ in Heller (ed.) (n 155); Bernadette O’Rourke and Sara Brennan, ‘Regimenting the Gaeltacht: Authenticity, Anonymity, and Expectation in Contemporary Ireland’ (2019) (66) Language & Communication, pp 20–28.
Christine Ashby, ‘Whose “Voice” Is It Anyway? Giving Voice and Qualitative Research Involving Individuals that Type to Communicate’ (2011) 31(4) Disability Studies Quarterly, https://doi.org/10.18061/dsq.v31i4.1724
Lucy Pickering and Helen Kara, ‘Presenting and Representing Others: Towards an Ethics of Engagement’ (2017) 20(3) International Journal of Social Research Methodology: New Directions in Qualitative Research Ethics, pp 299–309.
Simone Plöger and Elisabeth Barakos, ‘Researching Linguistic Transitions of Newly-Arrived Students in Germany: Insights from Institutional Ethnography and Reflexive Grounded Theory’ (2021) 16(2) Ethnography and Education, pp 402–419, p 405.
Phillippa Wiseman and Jo Ferrie, ‘Reproductive Justice and Inequality in the Lives of Women with Intellectual Disabilities in Scotland’ (2020) 22(1) Scandinavian Journal of Disability Research, pp 318–329.
Alastair Pennycook, ‘Introduction: Critical Approaches to TESOL’ (1999) 33(3) TESOL Quarterly, pp 329–348.
Jennifer Fereday and Eimear Muir-Cochrane, ‘Demonstrating Rigor Using Thematic Analysis: A Hybrid Approach of Inductive and Deductive Coding and Theme Development’ (2006) 5(1) International Journal of Qualitative Methods, pp 80–92.
Lorelli Nowell, Jill Norris and Nancy Moulesothers, ‘Thematic Analysis: Striving to Meet the Trustworthiness Criteria’ (2017) 16 International Journal of Qualitative Methods, pp 1–13.
Boyle (n 5).
Elisabeth Barakos and Johann W. Unger, Discursive Approaches to Language Policy (London: Palgrave Macmillan, 2016).
Blommaert (n 52).
Ibid, p 201.
Mikhail Bakhtin, The Dialogic Imagination: Four Essays (Austin: University of Texas Press, 1981).
Blommaert (n 52), p 46.
Norman Fairclough, Analysing Discourse: Textual Analysis for Social Research (Abingdon: Routledge, 2003).
Blommaert (n 52), p 72.
We draw on John Gumperz’s seminal concept of ‘contextualization’, which accounts for the ways in which people make sense in interaction, as well as a recognition of the links between language form and social/ cultural patterns; cf. John Gumperz, Discourse Strategies (Cambridge: Cambridge University Press, 1982); John Gumperz, ‘Contextualization Revisited’ in Peter Auer and Aldo Di Luzio (eds), Contextualization of Language (Amsterdam: John Benjamins Publishing Company, 1992).
Blommaert (n 52), p 45.
Blommaert (n 52), p 5.
Jo Ferrie and Philippa Wiseman, ‘Interrogating the Body: Exploring What It Means to Live with Motor Neurone Disease Using Phenomenology’ (2020) SAGE Research Methods Cases.
Robert Bogdan and Sari Biklen, Qualitative Research for Education, 3rd edn (New York: Allyn & Bacon, 1998), p 204.
Ashby (n 160).
Ibid.
Plöger and Barakos (n 162), p 411.
Kathryn A. Woolard, ‘Language and Identity Choice in Catalonia: The Interplay of Contrasting Ideologies of Linguistic Authority’ in Kirsten Süselbeck, Ulrike Mühlschlegel and Peter Masson (eds), Lengua, nación e identidad. La regulación del plurilingüismo en España y América Latina (Madrid: Iberoamericana, 2008).
Joe L. Kincheloe and Peter McLaren, ‘Rethinking Critical Theory and Qualitative Research’ in Norman Denzin and Yvonna Lincoln (eds), Handbook of Qualitative Research, 2nd edn (London: Sage Publications, 2000), p 291.
Plöger and Barakos (n 162), p 414.
