The Paradox of Procedural Justice

The old adage goes, you can bring a horse to water, but you can’t make it drink. Likewise, you can register someone to vote, but you can’t make them to turn out on election day. Or send a survey, but can’t make them fill it out. Or even hold a protest, but can’t make every affected individual or group attend. Efforts towards inclusion in civil society and policy-making can only go so far. At some point the responsibility for achieving justice is transferred to citizens who choose to vote, respond, march – or not.

No matter the attempts at genuine participation or the influence afforded those participating, there will be always be some who stay at home. And they might be people who never participate, who belong to marginalised groups, who have values, experiences, rights and needs that are often ignored. This can result in policies being perpetuated that are not only procedurally unjust, but also result in the misrepresentation of these groups, maldistribution of interventions intended to help them, and ongoing exclusion.

But what can one do? Elected representatives, local government officers, or neighbourhood activists can all try to make policy and govern justly, but cannot justly force people to get involved. Therein lies the paradox of procedural justice. It is limited by not only the level of participation offered, but also who decides to participate.

Nonetheless, it is too easy to blame apathy and hide behind the excuse that an opportunity was offered but ignored. Decision-makers can take responsibility for offering multiple ways to participate at multiple levels of involvement. Variety will increase inclusion by virtue of the likelihood that different techniques will attract different people who will feel more or less comfortable getting involved at that intensity.

‘Consultation’ is one of the most traditional techniques for involving individuals and groups, which we have found referred to again and again in our analysis of policy documents in Bristol and the UK for the ITEM project. Yet even this technique can be applied in various ways. Publishing and advertising policy in a ‘consultation draft’ on a website with pre-set questions or headline objectives and asking the extent to which respondents agree offers neither a high level of participation nor is likely to attract a high number of participants.

Instead, consultation on the 2020 Joint Local Transport Plan strategy for the West of England combined authority (WECA) used multiple different media – social media, websites, paper, in person – to solicit feedback on the policy in a variety of ways: a survey; an interactive tool to prioritise policy; and during discussions at stakeholder workshops. There were also opportunities for open answers, to raise concerns or suggestions that may have been excluded.

This multiplicity of techniques can enhance procedural justice, but that potential is diminished by focusing on the response to the policy-makers’ pre-set questions over more open responses; generalising the reported response so individual participants have little influence; and not paying attention to who did not respond or was otherwise missing.

Despite the paradox previously described, state-centric decision-makers and even society-centric grass-roots organisers should take responsibility for finding out who doesn’t participate and, ideally, why, without making assumptions. This is challenging at scale, so proposals in the city’s Bristol Transport Strategy or WECA’s Future Mobility Zone application focus on the smallest geographic scale when proposing more procedurally just techniques – co-design and co-production.

From neighbourhood plans to proposals for mobility hubs as local community assets, at this scale, reaching out to a greater number of individuals from more diverse groups through more channels is more possible, having more of them respond is more likely, and enabling their response to influence the decisions made is more manageable. Our next step is to find out if this has actually happened.

Either way, not everyone will get involved nor will the policies implemented meet every need, desire or expectation. The paradox still persists and procedural justice may not be fully achieved, but at least such an approach, if carried through, improves the chances of social justice.

Policy, what policy?

I have recently started a new research project which involves analysis of the social justice aspects of policies and policy-making for electric mobility.

I was also recently accused, in relation to a different project, of unhelpfully conflating guidance and policy.

Personally, I would refute that I was mixing the concepts up, but I do understand why it was seen as unhelpful.

The inconsistency in our respective perspectives appears to have derived from their narrower focus on policy as formally adopted strategic principles. Yet I believe policies are also inclusive of the more detailed descriptions of potential ways to implement those principles, even if agreed at a different level. For example, the road user hierarchy with pedestrians at the top and private cars at the bottom is an example of a strategic policy. But I would say that design guidance for the layouts of roads that put pedestrians first, or the sections of the highway code that indicate who has priority at a junction are also policies.

And yet, strategic policies often gain widespread, multi-level approval more easily, whereas ‘the devil is in the detail’. Pointing out such details could be seen as unhelpful if there is limited power to apply or implement the policy concerned.

Still, just in case, I thought I’d look up the dictionary definition of ‘policy’.

The source of inconsistency was immediately clear. Policies are defined as ‘principles of action’, ‘ideas or a plan of what to do’. Policies should systematically both ‘guide decisions and achieve rational outcomes’. So are they principles and ideas to guide decision-making or are they actions and plans that achieve something called outcomes? Policies are also defined as being adopted by or agreed to in some official manner by a particular group or organisation. Yet there are as many ways to officially agree to something as there are groups or groups of groups who might do the agreeing.

These questions also partially explain the why the academic literature on policy processes and design is contested, as it struggles to make sense of the discontinuity, ambiguity and uncertainty inherent in a process now generally accepted to be non-linear. Allocating agency and unpicking power relations is also tricky, as policies are not the same as politics, and individuals can be actors in their own right as a ‘policy entrepreneur’, for example, or buried in an ‘advocacy coalition’ or a ‘target population’. The terminology reflects the challenge of defining the policy process in a rational and consistent manner.

All this may be why many transport studies include a section on ‘policy implications’, usually of the effectiveness of certain ideas or principles, without engaging with policy makers or the process of how policy is made. Yet if transport planning wants to achieve goals of social justice, economic prosperity, and environmental sustainability, policy implications must consider not just statements of principle or indicators to measure outcomes, but also all the steps in between. And that means engaging with multiple elements of the policy process, even if the idea of distinct, linear policy stages has been criticised as overly simplistic.

This is particularly important for a project that aims to assess social justice, which also has multiple aspects. Transport research and planning tends to focus on distributional justice, measuring policy outcomes like accessibility. Yet there is also procedural justice, which is all about who is involved in policy design and decision-making, and the recognition aspect of justice, relating to who decides what is a problem that needs addressing and so sets the policy agenda.

In conclusion, policy is complex and contested. That is part of what makes policy what it is – and makes it only more likely that some will argue about what it isn’t.