This chapter returns to the data to discuss in greater detail the broader concerns and challenges that emerged relating to competing discourses that marginalize those who experience violations of SR, thus pushing them further towards the margins and further away from social justice. We do this by drawing attention to various mechanisms, made visible through discourse, that we believe sustain the current framework and often facilitate injustice. We take inspiration from the work of Elana Shohamy1 and Nikolas Rose,2 who, each in their own way, provide ways of thinking and practical tools for empirically investigating the production and legitimation of knowledge and evaluating how laws and policy materialize in practice. Our discursive approach to policy includes a conceptual frame that directs attention to the social construction of knowledge.
This chapter identifies various dynamics across our data that interconnect with laws, policy and public services that create the daily realities of policy in action ‘on the ground’. It examines how policy mechanisms are situated between legal frameworks and broader ideologies in the public space and practice. Ideologies are expressed as wider circulating discourses, include myths, propaganda, coercion and stigma. Our data show how ideology and policy mechanisms transect with limitations of the legal framework for upholding SR. In combination, these different factors work together to sustain a highly complex and fragmented system, resulting in barriers to
The case studies in Chapter 3 provided ‘snapshots’ of wider issues across the social welfare landscape. Each of the case studies provides examples of processes and mechanisms that work together to constitute the current legal SR framework. We interpret these workings of governance for the provision of SR as the mechanics of a complex system with many interrelated components: humans, technologies, institutions, governments, NGOs and charities, as well as discursive and ideological currents embedded within a broader sociopolitical context.
As has been brought to the fore in the case studies, different constitutional arrangements under devolution result in different legal frameworks, contributing to an already fragmented system for the provision of social welfare. Laws and policies governing this arena are also influenced by broader ideological currents. The case studies we presented highlighted various contentious issues with respect to specific policies/legal cases in each of the jurisdictions, with evidence of poorly reasoned policies. We also identified challenges with respect to legal processes related to the inadequacy of complaints mechanisms, the adjudication of rights and limited funding. In contrast to neoliberal rationalities that underpin many of the workings of the operational welfare system, normative frameworks for international human rights are rooted in the protection and realization of rights, emphasizing the principles of equality and nondiscrimination, participation and inclusion. This means that every person has the right to participate in and access information relating to the decision-making processes that affect their lives and well-being.
In order for rights holders to access their SR and participate in the (legal) frameworks governing public services and social welfare, they need awareness, information, advice and advocacy. The data show that the services provided by practitioners, including welfare rights advisors, charities, legal practitioners, volunteers and activists, are absolutely essential. Unfortunately, the capacity of the third sector has been severely impacted by austerity measures, resulting in funding cuts and closures of advice centres and law centres. By way of an example, in the midst of the COVID-19 pandemic, five Citizens Advice Bureau (CAB) centres in Glasgow faced closure. Although they appear to have been saved from that fate, the centres faced significant funding cuts.3 The COVID-19 pandemic has highlighted some
Nikolas Rose’s work,5 expanding Foucault’s notion of governmentality, empirically investigates how different types of knowledge and expertise articulate with practical techniques in constructing ‘governable subjects’. Rose directs attention to how diverse elements, such as authorities, technologies and strategies, work together to create specific realities and particular subjectivities.6 In brief, these elements urge us to ask questions about who gets to define certain phenomena to be problems and to determine the criteria of proof required. Which kinds of tools are used to make judgements? Are there conflicts between different claims to authority? What kind of subjectivities are promoted and what kind of strategies are adopted? As we show in our analysis, tensions across the data alert us to relationships between various dynamics that articulate together in the current framework for the protection of SR.
Similarly, Elana Shohamy urges us to pay attention to different mechanisms that intersect with stated policy and impact on practice, creating and perpetuating ‘de facto’ policies. These overt and covert mechanisms are used mostly, but not exclusively, by those in authority, and the effects and consequences of these mechanisms, she says, often lead to violations of democratic processes and rights.7 Examples of such mechanisms might be strict rules and regulations or means of assessment and testing. Funding allocations can also serve as a policy mechanism that counteracts stated policies.8
Considering the influence of policy mechanisms and techniques helps us to recognize and identify the interrelated factors that impact on the day-to-day experiences of rights holders. Thus, examining how policy mechanisms intersect with legal provisions and practice helps us to better understand how policy is ‘both text and action, words and deeds, it is what is enacted as well as what is intended’.9
One of the clearest examples of how fragmentation of the (legal) framework for SR intersects with practice is the lock-change eviction policy in Glasgow (see the Scotland case study in Chapter 3). The notion of fragmentation is constituted not only in conflict between reserved and devolved law, but also in the outsourcing of public services. These mechanisms are also intimately linked to ideological conceptions, which become salient through discourse. The following analysis identifies different discourses that are foregrounded in the data.
The lock-change eviction policy resulted in a clash between Scottish housing policy and UK immigration policy, creating tensions that became visible in the competing dynamics and logics produced through discourse. Practitioners in Scotland advocating on behalf of asylum seekers challenged the policy on the basis that it contravened housing law in Scotland by failing to obtain a court order to authorize the evictions and failed to comply with human rights law. On a practical level, practitioners expressed that immigration policy curbed the powers of the Scottish government by preventing Scotland from acting in a way that adhered to its principles of ‘making things better’, which contrasts sharply with the racialized ‘hostile environment’ policy embedded by the UK government’s Home Office.
Constructing ‘failed’ asylum seekers
The tensions identified here make visible competing dynamics rooted in different rationalities and ideologies. The sentiment of making things better referred to commitments in Scotland to uphold human rights. This alignment with principles of human rights, as embedded in international human rights law, can be interpreted as a ‘human rights discourse’. We demonstrate in our analysis how the human rights discourse is promoted in other parts of the data, but first we discuss how it intersects in the Scottish case study with another dominant discourse that comes to the fore through a single idiom: ‘failed asylum seeker’.
We explain by drawing attention to the first line of the Ali judgment of the Inner House, Court of Session, which states: ‘The appellant is a failed asylum seeker.’10 Although this has become the default terminology used by the UK Home Office for describing individuals who have exhausted their appeal rights, it is by no means a neutral term. The practitioners we spoke to preferred not to use the term, favouring the designation ‘appeal rights
Also, describing those seeking asylum as ‘a person seeking asylum’ foregrounds the humanity of the person rather than their status. Although a person may be denied asylum, they may also submit a new case and be granted asylum in the future, meaning that the label of ‘failed asylum seeker’ is neither an objective nor a permanent category. Designations such as refugee, migrant and (failed) asylum seeker are merely determinations of status, granted by the authorities, which allow or restrict access to particular resources. These labels are generally not used in uniform ways, particularly in the media, often conflating terms and confusing meanings.11
Bridget Anderson reminds us that immigration and citizenship are ‘not simply about legal status, but fundamentally about status in the sense of worth and honour – that is, membership of the community of value. The debates around immigration are about the contours of the community of value as much as they are about trade-offs and economic impacts’.12 In relation to the realization of SR, it is important to acknowledge the importance of legal designations, as these political framings play a significant role in constructing the contours of who is included and who is excluded in collective imaginations of entitlement to justice.13 Our interest is in the (mis)framings that impede access to justice, both in terms of the constitutional framing of SR and of the framing of particular groups of rights holders and the consequential impact on the access to justice journey. On the latter point, those seeking asylum in the UK can be considered one such category of people whose ‘representation’14 delimits their ability to claim SR as they are consistently marginalized by the system.
Asylum-seeking processes themselves are difficult and highly contested procedures. For instance, there is a significant body of critical sociolinguistic research examining how discriminatory practices of using asylum seekers’
Interestingly, it is the post-Brexit devolved framework in NI that is providing routes to remedy for human rights incompatible primary legislation via the Windsor Framework, whereby the UK has committed to ensure there is no diminution of rights in NI. In the case of Dillon21 in February 2024, the High Court held that granting immunity from prosecution under the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 would constitute a diminution of rights (namely Article 2 ECHR procedural obligations) applying Article 2 of the Windsor Framework together with the section 7A of the EU (Withdrawal Act) 2018, both of which were engaged under the EU Victim’s Directive. Under the incompatible legislation, state actors would have been able to apply for immunity without the ECHR required backstop of amnesty operating alongside posthumous procedural protections (Articles 2, 3 and 6 ECHR and Articles 3, 4 and 7 of the EU
In the recent judicial review brought by the NI Human Rights Commission, the Illegal Migration Act 2023 was deemed incompatible with Article 2 of the Windsor Framework, including access to an effective remedy (Article 47 of the EU Charter of Fundamental Rights). The statute’s duty to disregard any claim of human rights breaches, refugee status, victimization through human trafficking or judicial review from any person who enters the UK without compliance with the requirements of immigration law was deemed a diminution of rights and therefore unlawful under the Windsor Framework (Article 2).23
As pointed out by Julie in the Scottish case study, the ability to make a successful claim to asylum is connected with access to advice, support and legal representation, a journey that is also fraught with difficulties. In fact, the high number of asylum cases overturned at the First-tier Immigration Tribunal (for further details, see the statistics in Chapter 4) suggests that, through its policies and procedures, the UK Home Office ‘constructs’ failed asylum seekers. It is a system of structural inequality. Persons suffer injustice as a result of structural inequality when ‘their group social positioning means that the operation of diverse institutions and practices conspire to limit their opportunities to achieve wellbeing’.24
The term ‘failed asylum seeker’, in particular, strips individuals of any legitimacy and imbricates them in a semantic web of varying meanings, placing them in complex societal structures through their relationship to other (il)legitimate groups.25 It is an ideological framing that is intimately linked to the UK Home Office’s ‘hostile environment’ policy and invokes wider discourses of fears relating to illegal entry/immigration, ‘bogus refugees’,26
We suggest that the ‘failed asylum seeker’ designation prevails with the UK Home Office because it fits the rhetoric and ideological framing of those seeking asylum in the UK and serves as a justification for not meeting people’s basic social needs. This is further exacerbated by other mechanisms, such as the outsourcing of public services and elements of street-level bureaucracy in the form of routinized low paid work.
The ‘hostile environment’ policy is powerful in the sense that ideology becomes practice through rules and regulations that marginalize a large group of people on account of their immigration status. Bearing in mind that the tribunal data demonstrate the construction of ‘failed asylum seekers’ at the decision-making level, asylum seekers whose applications are refused are stripped of any support as they have no recourse to public funds (NRPF), including social security and homelessness support. Any section 4 asylum support via an Aspen card is further constrained by not allowing cash access (see the Scottish case study).27 As evictions caseworker Abigail explained, asylum seeker possessions cannot exceed £1,000 in value. If the Home Office checks, asylum support is stopped. Of course, people may very well have possessions that exceed the designated limit due to generous donations, including electronics, but these items do not provide for the daily necessities of life.
Because if people don’t have jobs [asylum seekers do not have legal permission to work] like they want [laughs] they want to fill their time!
They just want to be normal people! Like they want to [laughs] feel good so they go and stay with their friends. And then you’re having to be like … ‘please make sure you’re going home’ … you shouldn’t have to say to someone like ‘you’re not supposed to be away from your home for six days’ because it’s, what’s the word, I don’t know, well it’s just so controlling. (Scotland, Abigail, Evictions caseworker, NGO for asylum seekers)
With the ‘positive moves-ons’, it’s like there’s quite a clear path, even though there’s lots of failings in that path as to what people will do once they’ve got status, but with the ‘negative move-ons’, it’s kind of like, ‘well they have to go and then, we don’t know what’. Like, no one knows what! … And so it’s this sort of vagueness and I think it’s really amplified by that language of ‘negative move-on’, it’s … sort of vague … but at the same time operational. (Scotland, Abigail, Evictions caseworker, NGO for asylum seekers)
Abigail’s examples illustrate the interdiscursive connections between the language of the UK Home Office and the operational language of housing providers. It exposes the more insidious side of the ‘hostile environment’ and valuation discourses, in the sense that the rules and regulations carried out in practice amount to the creation of particular subject positions and reflect operations of power at micro-levels of practice, including at the street level. Other scholars have drawn attention to how forms of expertise and disciplining activities function to construct particular ways of being, such as becoming employable workers28 or productive
What has been highlighted in these examples is not merely a difference in authority and decision-making power, but a clash in ideology made salient through discourse. The ‘hostile environment’ discourse pervaded legal proceedings in the Ali case when the judgment opened with the line ‘This is a failed asylum seeker’ – acting as a precursor to a decision that marginalized human rights when housing was provided by a private actor. Dennis Klinck’s writing makes it clear that the ‘us’ versus ‘them’ dynamic is not new, not even in the court of law. Klinck,30 reflecting on the contribution of influential English jurist Lord Denning (1899–1999), provides numerous examples of similar value-laden interpretations conveyed in court proceedings and judgments over his long career. Discourses thus make visible the ideological workings that often run below the surface.
Valuation discourses feature prominently across the various UK jurisdictions, not only with respect to immigration status, but also related to low income, disability, mental health challenges, addictions and criminal records. We will return to these discourses throughout our analysis, discussing them as they intersect with other discourses that are foregrounded in the data.
Accountability gaps: outsourcing government functions
In this section, we raise important considerations in relation to the various ways in which a lack of accountability is constituted through different and intersecting policy mechanisms. We continue the conversation around the Ali v Serco case, drawing out different issues, and extend our conversation to other connections across the data related to the outsourcing of medical assessments and the private housing sector.
Privatization and outsourcing are hallmarks of neoliberal rationalities, and the entailed lack of oversight and accountability was the biggest problem identified by practitioners. This concern was raised by various practitioners regarding the lock-change evictions. It also revealed unjust practices relating to the provision of services to those seeking asylum, including provisions for housing and asylum support.
Abigail explained that there was a common practice of harassment, with housing managers turning up at people’s homes and asking them to leave. Often, out of fear, people would leave, but they had nowhere to go. Due
Another important point is that becoming homeless makes it almost impossible to carry on with an asylum claim, so Serco’s eviction efforts not only undermined a person’s safety by thrusting them into destitution and homelessness, but also potentially prevented them from completing the asylum-seeking process to obtain refugee status and their right to remain in the UK.
Privatization and human rights
A major element of the Scottish legal case revolved around the outsourcing of public services to the private provider. Serco was found not to be a public authority for human rights purposes, because the court’s analysis prioritized Serco’s motivation to make a profit as a private company rather than looking at the functions it was performing. As highlighted in the case study, the judgment raised concerns for the practitioners we interviewed because of the prevalence of outsourcing in the delivery of public services and concerns that it could result in a two-tier human rights system. It creates the potential of inequity in service provisions: if services are provided directly by the government, they must comply with human rights standards, whereas if they are provided by a private company, there is less clarity about their obligations and this leaves the door wide open for injustice.
We explained in the case study that the Serco verdict has had a material impact that extends far beyond the conclusion of the case. More broadly, the failure to hold Serco to account does not encourage and advance a human rights-based approach in line with international human rights standards. Instead it opens the door to future injustice by creating a space for private companies to potentially shirk their human rights responsibilities, rather than increasing the capacities of ‘duty bearers’ to meet their obligations. It is clear that contradicting logics advance neoliberal rationalities over principles of human rights.
Section 6 of the Human Rights Act says that all public authorities, so all public bodies, must act in compliance with the European Convention on Human Rights. So that’s fine but then there’s a provision of that which says that … private bodies, when they are performing functions of a public nature, are also caught by the Human Rights Act … that’s to fulfil the principle that a state can’t contract out of its human rights obligations and that the principle is really like when you’re standing in the shoes of the state, then you also must comply with their human rights obligations. So I think that’s a fine line and relatively uncontroversial, but how that provision has been applied and interpreted over the years by the courts has been problematic … everything in the intention of parliament at the time when the Human Rights Act was going through is that you should look at the function. So it doesn’t matter if this company is a private company and if they’re for-profit and they have shareholders and essentially they look very much like a private entity, if they’re performing … a function, so in this case it would be the provision of accommodation and other support to asylum seekers, if that function is of a public nature then in exercising that function they are obliged to comply with the convention. (Scotland, Erica, Solicitor, human rights public body, emphasis added)
Although Erica believes that the intention of Parliament, at the time that the HRA was created, was to look at function, by means of the Serco legal proceedings, others have been able to produce meanings that recontextualize the ‘original’ text and allow for ideological repositioning. Processes of recontextualization transform discourses, thereby taking on new or different meanings. An ideology of fixed text – the perception that a text artefact is a stable, clear and precise semantic unit – underpins the construction of a space that allows different parties to produce legitimate entextualizations of the source text.32
There is close interaction between linguistic ideologies – the ideology of fixed text – and broader social and political ideologies.33 Blommaert states
These various tensions illustrate how mechanisms of law, policy, rules and procedures intersect with ideological conceptions of worthiness, expressed through ‘hostile environment’ and valuation discourses. The outsourcing of services and lack of oversight further exacerbated transgressions of human rights.
Prejudicial practices: privatized housing
Practitioners across the jurisdictions raised concerns regarding the private housing sector, particularly with respect to security of tenure and fitness standards. Our NI case study presents many of these challenges, so we will not reiterate them here. However, we would like to draw attention to the intersecting mechanisms in the privatized housing sector that the NI case study revealed. Concerns about the lack of a regulatory framework and inconsistent oversight and accountability for the private housing sector echo problems encountered by practitioners in the Scotland case study.
Josie, head of an NGO for housing in NI, expressed the increased vulnerability of people in the private rental sector, as there is no security of tenure. Even if someone has been a model tenant, she said, they can be asked to leave at any time under a ‘no-fault eviction’. In addition, high levels of harassment and illegal evictions combined with inadequate mechanisms of redress create precarious circumstances for people. There are clear legal processes related to eviction that call for a 28-day notice period followed by due process through the courts. However, Josie said that ‘a number of landlords for a variety of reasons choose not to operate that process and basically just illegally evict their tenants, so don’t give them required notice or harass them to such an extent that they’re forced to leave’.
Whilst there’s an offence of harassment and illegal eviction that requires the environmental health staff of the local council to prosecute the landlord, I could count on two hands the number of prosecutions that have ever been brought. And those that have been brought, if you look at what happens to the landlords, it’s pitiful and it’s insulting. And the environmental health know that … so they have a number of arguments for not taking action. One is that they don’t have the resources and they have other priorities. Two is that actually they think that by prosecuting landlords and by landlords seen to be getting maybe a £200 fine or something it’s actually not discouraging the practice … Why would that put you off? … I know quite a lot of staff who work in environmental health who are so frustrated by this. So in many cases they decide that it’s probably in everybody’s interests for them not to bring the prosecutions, because it’s just highlighting how inept and how inadequate the fines are. (NI, Josie, Chief Executive, NGO for housing, emphasis added)
Josie’s account illustrates how the absence of accountability and oversight facilitates unjust practices that violate people’s right to adequate housing. Josie thought that a landlord licensing scheme, akin to the one utilized in Scotland, could improve the situation in NI by having means to punish landlords with more appropriate consequences, such as losing their licence. Legal protections and mechanisms for redress are only accessible and useful when there is a culture of accountability. As Josie said, not only are consequences for private landlords rarely enforced, but merely promoting their enforcement would not be enough, as the penalties themselves are not an adequate means to change behaviour. Threatening landlords with a mere £200 fine both upholds appalling practices and undermines a rights-based approach to the provision of SR.
Other alarming practices related to housing in NI included the ‘no DSS (Department of Social Security) approach’, denying housing to those whose main income consists of social security benefits, as well as landlords asking for rental deposits for social housing. In addition, Josie raised concerns regarding a new recommendation that is going to be implemented in relation to applicants for social housing. Although this provision relates to social housing and not the private rental sector, we will raise it here because the new measure will target a specific portion of the population and relates to broader discursive currents that circulate across jurisdictions.
I’ve been talking to you about people who are actually coming through the statutory homeless route but this recommendation, this is a new proposal which the minister has given the go-ahead to, which is
now going to come into the system, but I think needs probably new regulations … and that is that if you’re an applicant for social housing and … you’re assessed and you’re on the waiting list waiting for your house, and you’ve x number of points and you’re basically waiting for your turn to come, that if you’re involved in any behaviour which, you know, is of a persistent nature which suggests, and I think this is really controversial [laughs], which suggests that you may not be a suitable tenant, then you can be deferred from the list. (NI, Josie, Chief Executive, NGO for housing)
What they’re obviously targeting is, well I can tell you because I kind of know the whole rationale behind it, they’re talking about people mainly, this is what it says, people who are temporarily housed in hostels who exhibit antisocial behaviour … their rationale is, these people are problematic, we don’t want them as our tenants, get them off the list … that’s where it’s coming from. But of course it doesn’t explicitly say this is about, you know, people living in hostels and antisocial behaviour. So there is that whole issue about, how do you define … what test has to be applied, what is the burden of proof, you know, is there no opportunity to kind of have it reviewed or revisited … I think it’s very controversial actually … obviously we’re saying you’d have to have comprehensive guidance on how this is going to be applied … if you’re going to leave this to individual decision makers to make such subjective decisions which have such enormous consequences for people’s future. (NI, Josie, Chief Executive, NGO for housing)
The data make it clear that subjective and discretionary decision making generally results in poor decisions with enormous negative consequences for individuals. Furthermore, once again we see intersections between mechanisms of procedure, outsourcing of functions and ideological instantiations of the valuation discourse that categorize people according to their perceived worth – for instance, those who receive benefit income as not being worthy candidates for private housing.35 This sentiment is perhaps
Assessments, automation and algorithms
An enduring theme across the practitioner interviews involved challenges related to the medical assessments required for benefits such as PIP and Employment and Support Allowance (ESA). We discuss here how assessments function as a technological tool used in the categorization and hierarchization of people, and are part and parcel of valuation processes. We argue that ideological conceptions and stigma of mental health result in systemic discrimination and difficulty in accessing benefits for certain rights holders. In addition, medical assessment services are contracted out to private entities, further fragmenting and obscuring the processes involved. Additionally, the data shows arbitrary and subjective decision making results in a high percentage of errors, as evidenced by the high number of PIP appeals that result in positive outcomes for clients (see statistical data in Chapter 4: around 75 per cent of PIP cases are overturned representing a high prevalence of unlawful decision making), raising further concerns about the adequacy of accountability structures and influences of ideological conceptions of mental health.
It is common practice that the medical assessment process is subcontracted to a private assessment provider, whose assessors carry out functional assessments to determine entitlement to benefits. Oliver, a solicitor, reported that an enquiry in NI found that the medical reports produced by the local contractor, Capita, was being audited and potential changes were made to reports without clients being made aware of them.36 There was evidence that an auditor would assess a report, identify quality issues and then make recommendations for change. Oliver warned that it is an ‘inequality of arms
In addition, auditing practices, which Nikolas Rose and Peter Miller39 call political technologies, are emblematic of neoliberal governmentality, reflecting practices aimed at identifying inefficiencies and improving quality, following market-type rationalities. It ‘governs people through a relentless pursuit of economic efficiency, deregulation, outsourcing, and privatization; it involves marketization and the privileging of competition over cooperation, as well as increasing emphasis on calculative practices aimed at promoting individualisation and responsibilisation’.40
A common concern expressed by practitioners was that claimants’ statements during their medical assessments are not always accurately represented in the final report. Some of the welfare rights advisors, who regularly accompany clients to their assessment appointments, experienced this themselves and reported that it was impossible to challenge the content of a medical report, as those appointments are not routinely recorded. This highlights a clear power imbalance in favour of the assessment provider, and by extension the DWP, because the textual output – the medical assessment report – cannot be challenged.
The absence of any recording means that a challenge to the contents of a report is reduced to the ‘word’ of the assessor versus the ‘word’ of the claimant, a dynamic that is highly unequal in power. The claimant is therefore unable to produce any ‘legitimate’ evidence to counter the ‘truth’
Privatization and the outsourcing of government functions thus create a legal accountability vacuum, meaning that individuals cannot access transparent processes to participate and challenge potentially unlawful or erroneous assessments. This lack of transparency and accountability is further impacted by the lack of legal normative human rights standards in the private space. In other words, the Serco decision potentially renders privatized public service provision beyond even the most basic human rights protections.
Disproportionate impacts on mental health
For me, there is some inherent discrimination against people with mental health problems within those tests, so trying to fit people with mental health problems into those tests is more difficult. It is often more straightforward if somebody has a physical disability to apply those rules to them. Now you know, the Government would say, ‘oh no, no, no, we’re not discriminating against people with mental health [issues]’, but over the years I’ve done my job I have seen that the way that they assess them … so the kind of evidence they require … so if somebody has got arthritis, often they’ll want to see x-rays, you know, they’ll often want to say, is there a record that someone’s had x-rays, and do the x-rays show that there is arthritis, yes or no … and with diabetes, there might be records of what somebody’s blood sugars are and things like that. So there’ll be easier ways, if you like, to confirm a level of someone’s functioning or disability. With mental health it is more difficult, to decide
whether that mental health really disrupts somebody’s functioning and ability to do certain activities, but I do find that they’re very loath to accept people’s own evidence, which is what you need to do with mental health. (Wales, Rose, Welfare rights advisor, local county)
Rose highlights two separate issues: first, that the medical assessments themselves are not designed for evaluating psychiatric disorders, making it difficult to slot into the pre-established criteria for physical illnesses; and, second, that because mental health challenges are often invisible, it is important to listen to individuals being assessed, as they know best how their illness impacts on their daily functioning. An additional challenge identified by practitioners is the difficulty in obtaining the required medical evidence, due to a lack of capacity (and funding) of mental health services, with reported wait times for a mental health diagnosis exceeding two years (England, Andrea, Welfare benefits advisor related to the Pantellerisco case).
Arbitrary and discretionary decision making
Rose’s comment about resistance to accepting people’s own evidence reflects wider discourses of mistrust and stigma around mental health. This distrust also translates into practice and poor decision making, as evidenced by examples from the data. For instance, Andrea, a welfare benefits advisor, recalled the story of a client who had a severe sight impairment related to a brain tumour. She was required to undergo a reassessment for her PIP and was denied on the basis that she was wearing lipstick and her hair was neatly combed (she wore a wig). Not only did this assessment process violate a person’s dignity, but the erroneous and subjective decision making resulted in an immediate halt of benefits, which led to rent arrears. The client was not able to use public transport and could no longer afford taxis. As a result, she became housebound, which affected her mental health. ‘The whole thing just started to snowball completely … we got it overturned but it should never have happened in the first instance’, Andrea noted (England, Andrea, Welfare benefits advisor related to the Pantellerisco case).
Other examples entailed a young man with severe mental illness whose application for ESA was turned down. This occurred because the General Practitioner (GP) mistakenly submitted medical evidence for another patient. Although it was blatantly obvious that the information received from the GP was a mistake (it referenced hip replacements the claimant had not undergone), the DWP ignored it and refused the application on the basis that the medical evidence did not support the claim. It took ten months, with the assistance of his welfare benefits advisor, for the young man to have his ESA benefits reinstated (England, Andrea, Welfare benefits advisor related to the Pantellerisco case).
Current medical assessment tools are constructed as instruments that unfairly categorize physical and psychiatric conditions in a hierarchy that places physical illnesses at the top. These instruments are unfair, unfit for purpose and must be adapted to adequately assess all types of illness in order to interrupt systemic discrimination against those with mental health conditions and provide access to SR and justice for all.
Automation, digitization and algorithmic decision making
Automation and digitization are hallmark features of neoliberalism and a common approach to governing a bureaucratic system, as standardized systems often increase productivity and reduce cost. However, practitioners raised several concerns ranging from digital exclusion to significant errors in decision making.
Online application processes entail barriers for those who do not have digital access. It is often assumed that in our digital age, people can access online platforms, but for a significant portion of the population, this is not so easy due to data and Wi-Fi limitations or a lack of computers and mobile phones. In speaking about some library closure legal cases, solicitor Matthew said that ‘people always think library cases are about books but they’re absolutely not about books’. He fittingly described how libraries (and schools) still serve important functions for people to access public services, employment and schooling. Their closure, felt acutely during the COVID-19 lockdowns, impeded access to digital platforms. In addition, when it comes to applying for social security benefits online, people often do not grasp the importance of the task as an application process to a legal entitlement and, without independent advice, mistakes are often made that result in a denial of benefits or take a long time to resolve. The importance of access to independent information and advice is highlighted once again.
Algorithmic tools are another form of technology in the categorization and sorting of information and people. Identified problems regarding the use of algorithms entail concerns of discrimination and unfairness, information protection and (lack of) opacity and transparency.43 The literature on
A recent review attempted to address some of these concerns, but acknowledged the well-established risk that algorithmic systems can lead to biased decisions.46 On the point of transparency in the public sector, the review recommends ‘a mandatory transparency requirement on all public sector organisations using algorithms that have a significant influence on significant decisions affecting individuals’.47
Although this appears to be a sensible recommendation, the repeated word ‘significant’ is vague and ambiguous, leaving a large space for multiple entextualizations/interpretations of what would constitute ‘significant influence’ and how ‘significant decisions’ are to be defined. The review recognized precedent of failures in large-scale (although not all algorithmic) decision-making processes that had impacted on a large number of individuals, citing fitness-to-work assessments for disability benefits and immigration caseworking. The authors of the review cautioned about the significant impact decisions made at scale by public sector organizations can have if they go wrong, urging for the highest standards of transparency and accountability.
For certain categories of cases where you knew that the decision the computer was needing to make was probably one that would need human oversight … you’d filter them out to an expert decision maker. And like none of those things really seem to happen … I mean, it would be both design and also training … you can see in the design of like their [DWP] flagship benefit Universal Credit that what’s happened is, in the room at the stage they designed their computer system you’ve got some policy people and you’ve got some programmers, and the policy people have at some point talked to lawyers and think they’ve understood what’s going on, but you haven’t got any lawyers in the room when they’re actually designing the system. And what you end up with is a system that’s not compliant with the rule of law. Like it doesn’t do the things that it would be required to do and it can’t from the ground up do those things because you’re sort of taking it back to the premise of design, it’s not designed to actually do the things that it’s supposed to do. (England, Miles, Welfare rights advisor, NGO to combat child poverty, emphasis added)
[W]here that happens, it does not in my view automatically follow the legislation was irrational … it cannot be the case that whenever imperfections in a legislative scheme are corrected by amendment in the light of experience of the original version is to be characterized as irrational on the basis that it should have been got right first time round.50
The Court adopted a deferential approach, referring the matter back to the DWP so that the test and learn philosophy could operate in practice. The data overwhelmingly suggest that this philosophy provided by the DWP’s witness statement is not something that operates well as a matter of practice. The Court of Appeal in Pantellerisco has left open the door for a finding of
Resource distribution: discourses of entitlement
We see recurring tensions across the data between the neoliberal concept of entitlements as commodities and human rights-based interpretations of rights. We saw in the case of asylum seekers in Glasgow that even basic food provisions were difficult to access due to restricted usage of the Aspen card and the disallowance of cash (see the Scottish case study in Chapter 3). An unwillingness to provide support in the form of cash was also raised in the Welsh case study in relation to the provision of food for children and young people. The conflict was particularly salient in a discussion with Eva around school meals and voucher programmes (Wales, Eva, Development Manager, NGO to combat child poverty).
Although people are happy with food parcels, vouchers and things on the whole, there’s always quite a significant minority whose needs aren’t met by those schemes of support so we really want to see cash first and so the option has been available to local authorities to provide cash payments. (Wales, Eva, Development Manager, NGO to combat child poverty)
The lack of interest [laughs], to say the least, in what people on the receiving end of the services think about, it is really shocking to me, because … I think that sort of mindset is like well, you know, beggars can’t be choosers really … we just need to do what’s operationally best for us at the local authority, it doesn’t matter if it’s not meeting people’s needs very well [laughs] … it’s not our top priority really and that’s quite hard I think in terms of who’s been wanting to hear … as an anti-poverty solution cash is best, but trying to communicate that or trying to advocate on behalf of people who were having problems with the system is really challenging. (Wales, Eva, Development Manager, NGO to combat child poverty)
For me it’s rooted in the stigma, it’s a discriminatory attitude towards people in poverty. It’s rooted in a belief that people in poverty are poor because they are incapable of managing money and they may be negligent as parents. So the idea that if you give people money it will be spent on something other than what it’s intended for. I’ve done research this year which absolutely disproves that … there are huge amounts of evidence, national, internationally in developing countries and across the UK that when you give people money, particularly when you call that money, you know, ‘child benefit’ or ‘child payment’, it gets spent on children or if you call it ‘free school meal money’, they spend it on food. And that’s what I found very much in the work I’ve done in the South Wales valleys. I asked parents what they used the cash payment they had for and they use it to buy food and then they were able to talk about how it had helped them budget more effectively with the remaining money that they had … so they could actually afford to buy better-quality meals, fruit and vegetables, things like that, they could eat themselves, they could buy learning resources for their children. So you know, all these benefits that just a box of catering supplies just doesn’t [laughs] provide at all. (Wales, Eva, Development Manager, NGO to combat child poverty, emphasis added)
It really sticks with me going to a consultation event for Welsh government. They were doing a review of their child poverty plan and it was kind of a stakeholder event just before the pandemic where we had a group of roundtables, people talking about what the welfare system for Wales should look like. And the amount of people who were really obsessed with fraud, they were really obsessed with making sure … there was no opportunity for people who didn’t really deserve it to get it … they were like [we] ‘must eliminate dependencies’, all these kinds of real myths not grounded in empirical evidence [laughs] not grounded at all in what it’s actually like and really discriminatory against people on low incomes, really stigmatizing attitudes towards families affected by poverty and really poor understanding of what the needs of those families are. But these were people, some of them quite senior, just talking in terms that actually I find quite offensive about casting aspersions on the kind of trustworthiness of people. And talking about how you need to design welfare systems to exclude or punish or control or coerce people [laughs] so that they stop being undesirable, you know, rather than seeing a kind of rights-based approach … we all have an entitlement and we need to work now to get it to as many people as possible. So that’s kind of a contrary thing but it’s just I’m really conscious of those stigmatising attitudes because it’s what we work against with the children and young people in our project the thing that makes their life so hard is that judgement on them and their parents. (Wales, Eva, Development Manager, NGO to combat child poverty, emphasis added)
In Eva’s narrative, the valuation discourse is expressed as distrust, a fear of people fraudulently making a claim on the welfare system. We can see clear interdiscursive links with the comments made by the former DWP Secretary Iain Duncan Smith regarding the benefit cap policy. Resistance to cash payments appears to be rooted chiefly in discrimination and misguided conceptions of welfare and welfare recipients. Furthermore, some policy makers present at the meeting felt the need to design welfare systems with punitive measures, focussed on exclusion, control and coercion. Once again, we see glimpses of social control tactics and discriminatory attitudes that stand in stark contrast to rights-based approaches that frame entitlements as rights for everyone, rather than commodities for some, at the behest of personal discretion.
Our intention here is not to say that all discretionary systems of resource distribution are inherently unequal and contravene human
Valuation discourses: constructing ‘worthiness’
An important element of achieving social justice is interrupting or countering disempowering and disenfranchising discourses. Our analysis in the previous sections shows how practitioners go to great lengths to advocate for their clients with the aim of meeting their needs and securing successful outcomes for SR violations. In this section, we show that even though practitioners may actively oppose and challenge dominant negative discourses, at times these discourses, or rather the dynamics that underlie them, are unwittingly reproduced. Moreover, the data show how rights holders themselves reproduce negative dominant discourse in efforts to create legitimacy for themselves. We illustrate this through a few examples, first showing how practitioners position themselves in relation to particular discourses. This positionality can be conveyed in the analytical concept of ‘stance’.52 Stance taking is instrumental in the drawing of social boundaries, a component integral to processes of differentiation and categorization. A closer evaluation of the stances taken up by the practitioners is valuable in terms of understanding the knowledge they draw on in their daily work and progressing SR for the clients they serve.
I think a lot of people just don’t know where to turn … I think services often struggle to be there when people need them because people typically get to a place of crisis, so they’re living in vulnerable circumstances and they’re dealing day to day with extreme multiple extremely stressful life events that are pushing them to that point where they are at risk of destitution. And if they’re not engaged with agencies, and we’re seeing this a lot in the pandemic, these aren’t people who are problems you know [laughs] to society. So, they don’t have a social worker, they might not be working or getting any help from mental health service providers and so on. You have to be quite ill to meet the threshold to be allowed to even get support from those teams so lots of people just aren’t on the radar. (Wales, Eva, Development Manager, NGO to combat child poverty, emphasis added)
Eva clearly aligns herself with the position that the people she is referring to are not ‘problems’ to society. What is implicit is that her comment sits in dialogical relation to other discourses that do characterize certain people as problems to society. This is by no means a critique of Eva, a dedicated advocate; the example merely makes visible how our words often signal other discourses. Here it makes salient the interdiscursive connections to broader circulating discourses, in this case valuation discourse, which creates opposing categories with people who are characterized as problems at one end of the spectrum and those who are not at the other end. We share this example as a note of caution, because in her efforts to oppose the valuation discourse, Eva in fact reproduces the binary distinctions that fuel the constant drive for legitimation to prove one’s worthiness. Rights claiming, we argue, can help reshape the narrative and empower rights holders.
I’m lucky in that everybody I work with in my team – it’s a small team – but everybody is very dedicated and very committed to the ethos of our team, which is to do all we can to maximize people’s income and to do that in a sort of nonjudgemental way. I think that what sometimes creeps in from management above us is that they do actually want us to be more judgemental. People don’t always use the term, but what they’re getting at is there’s a sort of deserving and an undeserving poor and so sometimes what they want us to do is to do more work with pensioners that they see as deserving, because there’s
quite a paternalistic view of poorer pensioners. It’s not that I don’t think poorer pensioners need advice, I definitely think they do and I think they miss out on benefits as much as anyone else, but there’s … heroin addicts with mental health problems that I was talking about earlier, they miss out on benefits a lot, but in the views of some people they’re not as deserving, whereas I do my job because I think it’s crucial that people aren’t judgemental and that people approach work like that and think this is somebody in need. I’m not gonna put them in a pecking order of whether I thought they brought some of this on themselves or not. And invariably, I think once people start going down that road, I think so many of the people I deal with, when you ask them about their upbringing, their family, so many have been in care or been abused as children or have very difficult family circumstances … it’s not surprising sometimes that people then have ended up with addictions or living on the street or alcohol or whatever … they’re all in a bit of a circle or a pattern, if you like. And so, for me, that’s why I think it’s so important to be able to offer services to those that present themselves, rather than deciding that actually this group of people is maybe more fashionable to help … so that to me is changing some of the perceptions of the people above and certainly those who make decisions about funding, etc etc. (Wales, Rose, Welfare rights advisor, local county, emphasis added)
Rose’s example shows how the valuation discourses can sometimes be very visible in the steering from upper management – for instance, reproducing categories of worthiness that differentiate between poor pensioners and poor heroin addicts. One cannot challenge the valuation discourse by articulating convincing arguments that the heroin addict or person seeking asylum is worthy of help. The only way to subvert the prevalent valuation discourse is to not engage in the processes of categorization it calls for, and instead adopt a human rights-based discourse.
Very often … the claimant will feel a sense of injustice, of unfairness, but also … you get claimants who feel undeserving and then the way in which they articulate their sense of justice is by distinguishing themselves from what they see as the general undeserving case. So they totally accept that entitlement to social rights aren’t rights, that’s how they think about it, they think it’s a privilege. Like, you deserve this if you’re good and then they try to distinguish themselves into that group … I mean that’s very divisive amongst claimants. So when you get a claimant go, ‘yeah I know most people are faking this but I’m not, I’m genuine. If it wasn’t for all the fakers they would have believed me right’. So their entire way in which they see their case is like through hostility to other claimants and I mean this is really interesting for a welfare rights advisor who sees a hundred of these people who all think that their case is the fair one but everyone else’s is bad. I mean it’s quite often I’ll have to explain to someone, a person who doesn’t make that transition, who just doesn’t feel worthy at all, I have to explain ‘well look, what the law says is if you meet those conditions you get it and you do meet those conditions, it’s just they haven’t believed you. Do you not think this is true about yourself? Yes, it is true, well, there you’re entitled’. And you get people who are incredibly grateful for being assisted in a case and you have to say ‘all I did was assist you to show that you meet the conditions, you haven’t got anything special from me other than satisfaction of your legal rights’ and I think people often appreciate that but they don’t move to thinking that way in general. (England, Miles, Welfare rights advisor, NGO to combat child poverty, emphasis added)
That’s how services, these services, are presented in the media … that’s the dominant way in which these things are discussed. There’s two ways of dealing with it when you’re actually one of those people: you can either accept the dominant way and then make yourself an exception … which is an easier thing to do than reject the entire way in which it’s discussed and I think for a lot of people the first route is easier. You have to disagree with less, but rather than disagreeing with the whole way in which something is in general discussed you’re saying ‘oh yeah, yeah, that’s all correct, it’s just I’m different’, it’s an easier option than saying ‘actually benefit claimants are humans, maybe they should be treated like humans’. (England, Miles, Welfare rights advisor, NGO to combat child poverty)
Miles points to dominant discourses in the media as one of the drivers of benefit claimants’ perceptions of themselves and others. The internalization of the valuation discourse may also serve as an example of governmentality and its capacity for power to influence the self and shape human conduct.54 The power of producing particular ‘representations of the world’, or discourses, resides not in the words themselves, but in the perceived legitimacy of the person, government or other entity uttering them. Bourdieu’s notion of ‘symbolic violence’ and Gramsci’s concept of ‘cultural hegemony’55 are also relevant in expressing the ideological-hegemonic aspect of power that operates covertly below the surface. In their work they aimed to explain how and why subordinate groups accept as legitimate the power of the dominant.
Susan Gal explains: ‘The capacity of language to denote, to represent the world, is not considered transparent and innocent … but is fundamentally implicated in relations of domination … Control of the representation of reality is not only a source of social power but therefore also a likely locus of conflict and struggle.’56 We shared these examples to draw attention to the power of discourse and the ways in which it can be used to perpetuate and (re)produce inequalities, but can also be harnessed to counter dominant disempowering discourses.
In our data, elements of fragmentation include different constitutional arrangements under devolution and, to a lesser extent, Brexit.57 Challenges related to devolution include intersections between reserved and devolved law, including limited decision making power (see the Welsh case study in Chapter 3), as well as different case law and legislation between jurisdictions and related tensions and conflicts. Fragmentation of the framework governing SR also comes to the fore through the outsourcing of social services and housing, automation/digitization and discretionary funding schemes. One of the enduring elements of power is complexity and fragmentation.
Miles notes that social welfare systems are ‘tremendously complicated … a feature of all social welfare systems everywhere’.. He goes on to explain: ‘they’re designed to cater for poverty in its diverse forms and to manage poverty in its diverse forms and therefore they need to be complicated to alleviate poverty just enough, in just the right way, and just the right places’. The competing pressures within the state, he believes, are to cut costs on the one hand, but have a complex system on the other, and they do not fit. The way he sees it, the government tries to simplify the running of this complex bureaucratic system by removing expertise from their decision makers. He says that ‘if you get like lowest grade of civil servant, largely computerize their job and then present them with a complex system, it doesn’t work’ and does not produce the intended results. We asked him how to mitigate this problem and he replied that ‘they [the government] could spend more on administration, like significantly more’ (England, Miles, Miles, Welfare rights advisor, NGO to combat child poverty).
This complexity, and its management, is one of the overarching themes across the data, which is constituted in manifold policies and procedures, difficult and lengthy application processes, frequent changes to rules and regulations, obscurity, poor visibility of available services and programmes, complicated and lengthy complaints procedures, and a lack of cognisance of the interrelationship of SR and people’s needs.
We briefly highlighted the complexity of Universal Credit, which came to the fore during the COVID-19 pandemic when the government promoted Universal Credit as a resource, but failed to make it clear that there are
The complex and fragmented governance system for realizing and upholding SR in the UK warrants that access to information, advice and advocacy, as well as legal representation is made readily available. Our conversations with practitioners already highlighted the shortage of lawyers across jurisdictions to address SR violations. This was noted not only by legal practitioners, but also by welfare rights advisors, as the burden is acutely felt by those on the frontlines of providing support.
From my perspective, you know, law is for the people and our courts are for creating accountability and addressing and fixing problems that happen. And your procedures, your processes, should probably be ones that are fitted around what we know about how people are, so their level of literacy, the barriers they face, the time that they have off work to do things, you know, how much it might cost to start a case, how much it costs to continue a case, if you are needing them to show up for 20 hours over the course of a year. Our justice system is not designed like that and I see very little that is written about redesigning it in that way. The discussions we have about our justice system are about saving money. They’re about efficiency, they’re about people … this government dangerously talks about people wasting time in the justice system and they’re looking to reduce the volume of cases. It’s seen as an infrastructure cost and the value of justice is not taken into account. (Scotland, Julie, Solicitor specializing in asylum/immigration, NGO for legal services)
appeals processes, while giving the outward appearance of being inclusive and democratic, often act as filtering mechanisms which deter disadvantaged people in areas like … welfare… [Appeal processes] are often arduous, time-consuming, stressful and costly. It therefore follows that those who possess the resources to fully engage with such processes stand a chance of greater success than those who do not – this is an example of a structural class barrier.58
If we succeed in incorporating economic and SR in Scotland … and there are remedies, then slowly, over time, human rights lawyers like me and [name of another practitioner] will chip away, will use that as a tool [laughs] to chip away, but it will always be using the stick. It will always be defended by governments, so they will have to defend those cases and the gains will be limited. The right way round is the other way, is to re-evaluate what we do, but it’s Byzantine and anyone who has been through the justice system or has a friend who’s been through the justice system, will be astonished and surprised at how inaccessible it is. (Scotland, Julie, Solicitor specializing in asylum/immigration, NGO for legal services)
Julie highlights an important point – also raised by other practitioners – that merely garnering legal status for SR is not enough without a) adequate accountability structures, and b) changing the conversation. One of the prevailing insights from our work is that reclaiming the narrative for SR is essential in terms of effecting enduring change to how SR are perceived and understood, and thereby create pathways for securing effective remedies when violations occur.
Conclusions
We approached the data with a critical discursive lens to locate moments of conflict and contestation that expose competing tensions. These tensions were evident in intersecting discourses, as well as in the deployment of different tools and mechanisms that intersected with law and policy. The data also showed how reproduction of the valuation discourse undermined practitioners’ efforts in promoting SR and resulted in rights holders themselves internalizing valuation discourses in an effort to create legitimacy and distinction for themselves.
The project team set out to investigate empirically how SR are realized in practice, and how legal frameworks across UK jurisdictions protect SR
Interwoven with legal analysis, this book presents our empirical findings from data collected through individual semi-structured interviews with a variety of legal and nonlegal practitioners across the four UK jurisdictions. We adopted a combined legal and discourse analytic approach to better understand conceptions of justice and address gaps in the current legal framework. A critical discourse lens highlighted how barriers to social justice are socially and discursively produced and, more importantly, how understanding these dynamics can inform practice and chart ways forward to create legitimacy for SR in the UK.
In our analysis, we have shown how competing logics and discourses were made visible in local struggles and tensions relating to conceptions of entitlement, welfare, poverty and justice. The processing and sorting of information and people through various strategies of valuation creates hierarchies that are organized according to the perceived worthiness of individuals, further marginalizing those who already struggle to access and participate in the ‘system’. In this sense, we see competing rationalities in relation to the notion of ‘entitlements’, framed on the one hand as (scarce) resources or commodities that must be carefully managed and rationed by the state and being made available to some according to discretion, and, on the other hand, as social/human rights that are universal and entitle all human beings to the basic right to an adequate standard of living, which includes food, housing, health, social security, education and employment.
The increased outsourcing of public services raised significant concerns relating to gaps in accountability, often resulting in contraventions of human rights. This was made salient in the Ali case concerning the recontextualization of section 6 HRA. Technological tools such as medical
Reclaiming the narrative
Across all dimensions of the analysis, one enduring and resonating element has been the silencing of voices. This points to the inequality embedded in a system that structurally, and often intentionally, undermines the voices of its people. Our analysis examined how the systematic categorization and filtering of information and people is facilitated by various mechanisms61 that have a disproportionately negative impact on certain groups of people, including women, children, lone parents, minority ethnic groups, persons seeking asylum and persons with disabilities (including mental health issues and learning disabilities). These processes intersect with wider discursive currents relating to immigration, austerity, Brexit, sectarianism and COVID-19 to name but a few, often resulting in the (re)production of stigma, prejudice and exclusion. These discursive factors are, as Zinaida Miller62 cautions, not to be treated as separate from our enquiry, but as closely entangled with how laws and policy provide the contours of the SR protection frameworks across the UK and the access to justice journey.
These dynamics are enmeshed with how SR are provided and the goals and procedures of the UK welfare system, based in law and policy.63 Fragmentation of the system and governing ‘at a distance’ complicates embedding adequate mechanisms for consistent and appropriate oversight and accountability, but is of the utmost importance for upholding SR. Concerted efforts must be directed to reclaiming the narrative for SR: a) as legal rights in and of themselves; and b) in ways that mobilize counterdiscourses that subvert the dominant valuation discourse along the axis of deserving and nondeserving.
Though rights claiming may not end social and political practices that many find objectionable, though it may not guarantee protection against grievous harm or ensure the desired degree of freedom from external forces, and though it may challenge majoritarian decision making, it is, nonetheless, a practice through which we come to be democratic citizens. Rights claiming, understood as a performative practice of persuasion, provides an opportunity for individuals and groups to form and share ways of seeing the world; to shed light on and reimagine ways of thinking, being, and doing; and to take an active role in the political life of a community.65
Rights claiming is a strategy of ‘giving voice’; an attempt to make visible and disrupt dominant mechanisms of power and privilege that serve to marginalize. It is clear from the data that not having a voice is not a question of skill or ability; it is a question of power. Our analysis clearly shows that remaining silent is often the product of being silenced, not having a platform on which one’s voice is heard or taken into consideration. Practitioners relayed story after story of people getting worn down by a system that often provides no legitimate ways to make one’s voice heard (for instance, the inability to challenge errors in medical assessment reports). Blommaert reminds us that in bureaucratic practice, centring institutions play an important gatekeeping function by regulating access to contextualizing spaces and having the power to assign people particular bureaucratic identities, such as ‘an asylum seeker’, ‘an urgent case for social welfare’ or a ‘criminal’.66 These ascribed social identity categories are not necessarily negotiable and, as the data on asylum seekers have shown, certain labels and identities are infused with dominant racialized and gendered perspectives that delegitimate particular voices.
However, it is essential that rights claiming goes hand in hand with addressing the complex structures and processes that produce suffering and entrench existing power relations. Advocacy and raising legal consciousness are meaningless without efforts to address the structural inequalities
We relayed earlier that as a research team, we adopt the stance that rights claiming and giving voice is best facilitated by efforts to integrate oppressed and marginalized voices into dominant discourse, as well as making visible the policy mechanisms and practices that perpetuate an unequal system.67 Discursive currents mobilized ideological conceptions of human rights, as well as discourses of valuation and categorization. The data also showed how the reproduction of the valuation discourse can undermine practitioners’ efforts in promoting SR and result in rights holders themselves internalizing and reproducing valuation discourses in order to create legitimacy and distinction for themselves. The practitioners’ (unconscious) reproduction of binary categories of worthiness and unworthiness potentially undermines the work they undertake to empower rights holders. We raise awareness of this to avoid unwittingly participating in practices of ‘othering’, essentializing or categorizing that reproduce dominant valuation discourses. The only way to subvert dominant valuation discourses centred on notions of (un)worthiness is to base entitlements in rights, not contrasting categories of worth.
In terms of facilitating agency,68 we reimagine the relationship between rights holders and practitioners in which everyone recognizes the performative, interdependent and contextually bound nature of voice. In other words, practitioners can and, as the data show, do encourage the agentive powers of the individual rights holder by providing a context or environment in which the person feels they have something to say and the
Reshaping the narrative for SR is also an attempt to reconstruct the frames, in an effort to democratize the processes by which frameworks of justice are drawn and revised. If access to justice for SR is to be realized in the UK, attending to both structural injustice as well as a keen understanding of social and discursive barriers is necessary. The ways in which SR have historically been made invisible has to be overcome by reclaiming the narrative for SR, by recognizing and addressing the tools and mechanisms that block the access to justice journey, and by embedding SR as legal rights in the UK. This will provide pathways to justice for SR that include not only ‘access’ but also meaningful ways of participating in frameworks that can lead to social justice and effective remedies.
Transformative movements challenge injustice not only by making salient areas that warrant change or improvement, but also by challenging the very assumptions on which dominant frames are based. They push the conversation towards more democratic arenas to entertain arguments about the frame. At the UK level, the frame for the protection of SR is monopolized by outdated conceptions that assume SR are nonjusticiable, cannot legitimately be enforced by the court, contravene parliamentary supremacy and are aspirational in nature. Transformative movements thus challenge the metapolitical activity of frame setting,70 calling for institutionalized parity of participation to include additional voices in deliberations and decisions that construct notions of ‘who’ is entitled to justice.
As was made clear in our analysis, the UK Home Office’s ‘hostile environment’ policy, at a national level, is instrumental in the construction of ‘who’ is entitled to justice, which specifically excludes those seeking asylum in the UK. This dominant discourse, and the concomitant conception of who has a right to claim rights in the UK, has a direct impact on the frameworks that protect and govern SR provisions. We see similar problems on framing in relation to the social security regime where the frame is incentivization to work, efficiency and cost-cutting; however, on the ground, laws, policies and their implementation routinely marginalize women, children and those with disabilities in contravention of their SR (as accepted by the court).
Recommendations
SR are legal rights, but, as our analysis shows, are often not recognized as such in the UK. As part of its international human rights obligations, the UK is required to provide access to an effective remedy if there is a failure to meet these obligations The lack of legal recognition in the UK causes significant challenges for accessing justice for violations of SR. It is clear that SR narratives must be reshaped on multiple scales to facilitate transformative change and the redistribution of power. The evidence for legally embedded SR is compelling. At the very least, as discussed earlier, without recourse to SR as a matter of law, practitioners have to tie themselves in knots making legal arguments to try and secure SR for their clients. This gap in and of itself represents the case for the added value of embedding a normative framework for SR. It would mean that the relevant evidence and law would be open to scrutiny in cases involving SR violations.
We therefore conclude with number of recommendations which, if implemented by the relevant decision makers, could begin to address the accountability gaps that restrict effective SR adjudication in the UK, facilitating a rights-based approach and broadening the scope of ‘who’ is entitled to justice.
Greater emphasis should be placed on practitioners and rights holders reclaiming narratives around SR as legal rights to enable new discourses to emerge that are focused on redistributing power. Reclaiming the narrative is about transformative and incremental change over time by reclaiming the power and voice to challenge a system laden with structural injustice that is not functioning in a way that upholds SR. All remedies should be exhausted – political, legislative and judicial. Parliament and government should scrutinize legislation and policy in order to understand the impact on SR. And when there are blindspots, inertia or violations of SR, the court should not abdicate its role in scrutinizing (non)compliance. Ideally, in a multi-institutional setting, all those exercising state power, including the regulatory and administrative spheres, should be guided by SR standards as part of an everyday accountability framework. It would be helpful to develop (discourse) training and education programmes on reframing narratives that marginalize and develop empowering narratives that SR are legal rights.
Devolution of areas of economic and social policy has created divergence on SR provision and compliance. Processes of progressive human rights
Legal incorporation of international human rights law can enhance accountability for violations of SR. There are different processes of incorporation occurring across each part of the UK. At the national level, examples of civil society and political counterdiscourses are emerging claiming SR as legal rights. This provides an opportunity for evidence-led research to continue to inform national discussions. As part of the recommendations relating to discourse and narrative, we further recommend that civil society organizations, practitioners, rights holders and other stakeholders who are engaged in SR campaigns use the language of SR to make these claims. The objective is to ensure that evidence on SR compliance can be interrogated and scrutinized according to SR normative standards – rather than people and practitioners trying to find solutions under the rubric of something else.
Privatization and outsourcing of decision making (where the state delegates the decision-making process to a private body) creates an accountability gap for SR violations that needs to be addressed (for example, it is very difficult to challenge unlawful decisions by privatized benefit medical assessments). The outsourcing of services creates an accountability gap for SR violations that has to be addressed. Both the state and the private service provider should be accountable for human rights violations.
Digitization of decision making creates an accountability gap for SR violations where algorithms are not designed to account for SR compliance (either deliberately or inadvertently overlooked as part of the planning process). Algorithms should be adopted using inclusive rather than exclusionary frameworks.
We encourage a reconceptualization of access to justice as an area of study and practice that moves beyond an understanding that is primarily concerned with equal access to legal processes to a definition that includes effective substantive remedies as a result of those processes. While removing barriers that impede access to legal processes is of fundamental importance to access to justice, the discipline should also engage with the normative framework and the outcomes of these processes in terms of adequacy and efficacy. This is a significant gap in both the literature and practice. We use normative SR standards and the concept of effective remedies derived from international human rights law to bridge this gap, including the use of structural orders to respond to systemic violations.
People face multiple obstacles on the route to access justice. Each of these needs to be addressed to ensure accountability for violations of SR.
Legal consciousness presents as a significant gap in enabling access to justice. There need to be awareness-raising campaigns in the public sphere identifying SR as legal rights and providing people with information and education on their rights and how to claim them, including highlighting where there are gaps in provision – that is, informing the public discourse if legal avenues are available and also, when they are not, if SR protections fall short.
The justice system should provide the resources needed to access justice for SR, including:
- a)Access to first-tier advice in a place that is accessible. Funding and support for first-tier advice across all SR, ideally co-located in physical premises where rights holders already engage (such as GPs, food banks, CAB, schools, places of work and libraries).
- b)Recognize the psychological and emotional burden, including fear of retribution, required to pursue a case and address the individual burden, enabling and promoting collective complaints and collective remedies wherever possible.
- c)Provide people with advocacy services to ensure they are able to meaningfully participate in their case.
- d)Provide access to legal aid. Fund legal aid for violations of SR through properly funded legal aid schemes and salaried expert lawyers in social welfare law.
- e)Provide access to legal representation. Ensure lawyers specialize in SR areas of law and are located across jurisdictions, including in rural areas. Enhance law curriculums in law schools to ensure adequate training in SR. The justice system cannot rely on partial funding – lawyers should be paid for the time spent on the case. Consider expanding salaried law centres that do not rely on case-by-case applications for funding. Change the objective of the funding – funding should not be solely dependent on a realistic prospect of financial gain, but a realistic prospect of SR compliance.
- f)Facilitate collaboration between different sectors of advice (street-level/first tier/lawyer/barrister) – a joined-up approach to support rights holders in participating and navigating the complexity of avenues.
- g)
Recognize and respond to clustered injustice – legal issues cannot be siloed into standalone problems. SR violations are often clustered and the violation of one right can impact on the protection and enjoyment of another, creating a snowball effect. The justice system needs to adapt to recognize and respond to clustered injustice. - h)Recognize and respond to the different needs of different groups. The preceding steps are not a ‘one-size-fits-all’ approach and more research is needed to respond to the collective needs of specified groups.
Alternative routes to justice including internal complaints and appeals should not unduly delay access to a remedy for a violation of a SR (for example, mandatory reconsideration under the DWP system is not working in practice). Decisions at the tribunal level and other administrative accountability mechanisms must be fed back into decision-making processes (a feedback loop) to improve these processes and prevent ongoing and systemic unlawful decision making. The administrative and regulatory sphere should be recalibrated to embed SR scrutiny as part of the remit of ombudsmen, complaints mechanisms, regulators and inspectorates. Each of these routes to a remedy should be assessed according to whether genuine effective remedies are possible. Ideally the remedy providers should work more closely together to understand and address complexity in the system when multiple routes to remedy coexist simultaneously, including exploring opportunities for referral between providers to enhance routes to justice. Each of these alternative routes to justice could adapt to recognize issues such as clustered injustice and systemic problems, as well as learn from lessons regarding effective remedies and structural responses.
We encourage exploring routes to justice (via parliamentary committees, direct to the government or the responsible minister, or engaging directly with civil servants) while recognizing that these routes do not sufficiently ensure accountability when things go wrong, meaning other accountability mechanisms are essential and courts should be available as means of last resort. Legal routes to remedy should be configured to adjudicate SR issues. Courts are often reluctant to engage in matters of economic and social policy; however, by failing to engage with the content of rights and the means of enforcing them, the court risks abdicating its role as an accountability mechanism.
We recommend an enhanced understanding of what constitutes an ‘effective remedy’ for a violation of a SR. Effective remedies should be accessible, timely and affordable, and should lead to effective outcomes. To the extent possible, remedies should also ensure nonrepetition. At the moment, even those applicants who are ‘successful’ in reaching a legal remedy do not necessarily receive an effective one (meaning the violation goes unaddressed or is inadequately addressed).
Overall, what we have sought to do here is to reframe the justice journey for those who experience violations of SR. In so doing, we hope to make social injustice visible in a way that challenges dominant discourses and provides practitioners with the tools to address systemic structural injustice. We dedicate the book to the three individuals who bore the brunt of seeking justice in a system unfit for purpose. It is with them in mind that we urge others to explore the social justice gap in the UK, drawing on novel, interdisciplinary and disruptive methods for social change. Future research, we hope, will deploy interdisciplinary and critical theoretical lenses that seek to create new routes forward to deliver effective remedies for violations of social rights and counter discourses that marginalize.
Elana Shohamy, Language Policy: Hidden Agendas and New Approaches (Abingdon: Routledge, 2006).
Nikolas Rose, Powers of Freedom: Reframing Political Thought (Cambridge: Cambridge University Press, 1999).
Ruth Suter, ‘Five Glasgow Citizens Advice Bureaux Saved from Closure’, Glasgow Times, 17 September 2020, https://www.glasgowtimes.co.uk/news/18728745.five-glasgow-citizens-advice-bureaux-saved-closure/
Barry Black, Paul Pearson and Jo Ferrie, ‘Human Rights in Health and Social Care in Scotland: Where We’ve Been and the Journey Ahead’, The ALLIANCE, 2023, https://www.alliance-scotland.org.uk/policy-and-research/wp-content/uploads/2023/02/The-opportunity-is-now-human-rights-in-health-and-social-care.pdf
Rose (n 2).
Ibid.
Shohamy (n 1).
Diana Camps, ‘Restraining English instruction for refugee adults in the United States’ in E. M. Feuerherm and V. Ramanathan (eds), Refugee Resettlement in the United States: Language, Policy, Pedagogy (Multilingual Matters 2016), p 67.
Stephen Ball, Education Reform: A Critical and Post-structuralist Approach (Buckingham: Open University Press, 1994), p 10.
Ali (Iraq) v Serco Ltd [2019] CSIH 54.
It is beyond the scope of this chapter to discuss the legacy of legal distinctions between (types of) migrants and citizens. Moreover, challenges around legal status, labelling and framings are not unique to the UK context. See, for instance, Emily Feuerherm and Vaidehi Ramanathan, Refugee Resettlement in the United States: Language, Policies and Pedagogies (Bristol: Multilingual Matters, 2016).
Bridget Anderson, Us & Them: The Dangerous Politics of Immigration Control (Oxford: Oxford University Press, 2013).
Nancy Fraser, Scales of Justice: Reimagining Political Space in a Globalizing World (New York: Columbia University Press, 2009).
Ibid.
See, for example, Jan Blommaert, ‘Language, Asylum and the National Order’ (2009) 50(4) Current Anthropology, pp 415–441. Diana Eades, ‘Testing the Claims of Asylum Seekers: The Role of Language Analysis’ (2009) 6(1) Language Assessment Quarterly, pp 30–40.
‘Nationality and Borders Act 2022’ (UK Parliament).
‘Illegal Migration Act 2023’ (UK Parliament).
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda for the provision of an asylum partnership to strengthen shared international commitments on the protection of refugees and migrants (UK-Rwanda) (signed 5 December 2023) CS No 1/2023; Safety of Rwanda (Asylum and Immigration) HC Bill (2023–24) [414].
OHCHR, ‘UK Illegal Migration Act: UN Refugee Agency and UN Human Rights Office Warn of Profound Impact on Human Rights and International Refugee System’ (Geneva, 18 July 2023).
R (on the Application of AAA and Others) v Secretary of State for the Home Department [2023] UKSC 42.
Dillon [2024] NIKB 11.
The ECHR judgment in McKerr and Others in 2001 (McKerr Group [28883/95] and McCaughey Group [43098/09]) remains under supervision. See https://hudoc.exec.coe.int/eng
NIHRC and JR295’s Applications for Judicial Review [2024] NIKB 35.
Iris Marion Young, ’Structural Injustice and the Politics of Difference’ in Kwame Anthony Appiah, Seyla Benhabib, Iris Marion Young and Nancy Fraser (eds), Justice, Governance, Cosmopolitanism and the Politics of Difference: Reconfigurations in a Transnational World (Berlin: Humboldt-Universität zu Berlin, 2007), p 82.
Feuerherm and Ramanathan (n 11).
The term ‘bogus refugee’ is ‘nonsensical’, because the status of refugee is only conferred after completing a successful application; see Costas Gabrielatos and Paul Baker, ‘Fleeing, Sneaking, Flooding: A Corpus Analysis of Discursive Constructions of Refugees in the UK Press, 1996–2005 (2008) 36(1) Journal of English Linguistics, pp 5–38, p 31.
Immigration and Asylum Act (1999), s 4(11).
Alfonso Del Percio, ‘Engineering Commodifiable Workers: Language, Migration and the Governmentality of the Self’ (2018) 17 Language Policy, pp 239–259; 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).
Alfonso Del Percio, ‘The Governmentality of Migration: Intercultural Communication and the Politics of (Dis)Placement in Southern Europe’ (2016) 51 Language & Communication, pp 87–98.
Dennis Klinck, ‘This Other Eden: Lord Denning’s Pastoral Vision’ (1994) 14(1) Oxford Journal of Legal Studies, pp 25–55.
A smaller project catered to women, but did not have its own premises, so it entailed finding spaces in people’s homes (Scotland, Abigail, Evictions caseworker, NGO for asylum seekers).
Jan Blommaert, Discourse: A Critical Introduction (Cambridge: Cambridge University Press, 2005), p 187.
Ibid, p 201.
Ibid, p 202.
The authors recognize that there is also a financial component to decision making due to a reduced housing benefit under Universal Credit.
Peter Coulter, ‘PIP Disability Benefit: Concerns Raised over NI assessments’, BBC News, 11 November 2017, https://www.bbc.co.uk/news/uk-northern-ireland-41918936
Northern Ireland Public Services Ombudsman, Own Initiative Follow up: PIP and the Value of Further Evidence (Belfast: NIPSO, 2023), https://www.nipso.org.uk/sites/default/files/2023-09/PIP-Follow-up-report.pdf
Ibid.
Nikolas Rose and Peter Miller, ‘Political Power beyond the State: Problematics of Government’ (1992) 43(2) British Journal of Sociology, pp 173–205.
Alfonso Del Percio, ‘Audit as Genre, Migration Industries, and Neoliberalism’s Uptakes’ in C Chun (ed.), Applied Linguistics and Politics (London: Bloomsbury, 2022).
Blommaert (n 32), p 186.
Recent developments suggest potential improvement following recommendations by the Work and Pensions Committee to record all medical assessments as standard: Work and Pensions Committee, Health Assessments for Benefits (HC 2022–23, 128).
Lilian Edwards and Michael Veale, ‘Slave to the Algorithm? Why a “Right to an Explanation” Is Probably Not the Remedy You Are Looking for’ (2017) 16 Duke Law & Technology Review, pp 18–84.
Lorna McGregor, Daragh Murray and Vivian Ng, ‘International Human Rights Law as a Framework for Algorithmic Accountability’ (2019) 68 International & Comparative Law Quarterly, pp 309–343.
Ibid, at 313.
Review into Bias in Algorithmic Decision Making (London: Centre for Data Ethics and Innovation, 2020).
Ibid, ch 9 (emphasis added).
Pantellerisco v SSWP [2021] EWCA Civ 1454, 90 (Underhill LJ).
Pantellerisco v SSWP [2020] EWHC 1944 (Admin) 88 (Graham J).
Pantellerisco (n 48).
Ibid.
Alexandra Jaffe, Stance: Sociolinguistic Perspectives (Oxford: Oxford University Press, 2009), p 3.
Sukhwant Dhaliwal and Kirsten Forkert, ‘Deserving and Undeserving Migrants’ (2015) 61 Soundings: An Interdisciplinary Journal, pp 49–61.
Michel Foucault, Dits et Écrits IV (Paris: Gallimard, 1994), p 237.
Pierre Bourdieu and Loïc J. D. Wacquant, An invitation to reflexive sociology (Cambridge: Polity Press, 1992); Antonio Gramsci, Selections from Political Writings (1921–1926); with Additional Texts by Other Italian Communist Leaders (London: Lawrence & Wishart, 1978).
Susan Gal, ‘Language and Political Economy’ (1989) 18 Annual Review of Anthropology, pp 345–367, p 348.
The impact of Brexit did not feature prominently in the data, but was raised in the context of direct impacts on EU and other foreign nationals (Julie), as well as in relation to loss of funding, such as EU structural funds (Sam). For a detailed overview of the various risks to economic and SR protections in the UK due to Brexit, see Katie Boyle, Economic and Social Rights Law: Incorporation, Justiciability and Principles of Adjudication (Abingdon: Routledge, 2020); and Tobias Lock, ‘Human Rights Law in the UK after Brexit’ (2017) vol. Nov Supp (Brexit Special Issue), pp 117–134.
Darren McGarvey, The Social Distance between Us: How Remote Politics Wrecked Britain (London: Penguin, 2023).
The UK ratified the International Covenant on Economic, Social and Cultural Rights in 1976.
UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 9: The domestic application of the Covenant, E/C.12/1998/24, 3 December 1998; International Commission of Jurists, ‘The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, January 22–26, 1997’ (1998) 20 Human Rights Quarterly, pp 691–704.
Shohamy (n 1).
Zinaida Miller, ‘Effects of Invisibility: In Search of the “Economic” in Transitional Justice’ (2008) 2 International Journal of Transitional Justice, pp 266–291.
Ibid, at 274.
Karen Zivi, Making Rights Claims: A Practice of Democratic Citizenship (Oxford: Oxford University Press, 2012), p 115.
Ibid.
Blommaert (n 32), p 206.
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 414.
Christine Ashby, ‘Whose “Voice” Is It Anyway?: Giving Voice and Qualitative Research Involving Individuals That Type to Communicate’ (2011) 31(4) Disability Studies Quarterly.
Zach Rossetti et al, ‘“I Like Others to Not Try to Fix Me”: Recognizing and Supporting the Agency of Individuals with Developmental Disabilities’ (2008) 46(5) Intellectual and Developmental Disabilities, pp 364–375.
Fraser (n 13), p 26.
