5 February 2010

MacAskill: street-level bureaucrat

Michael Lipsky coined the phrase ‘street-level bureaucrat’ in his classic treatment of Street-Level Bureaucracy: Dilemmas of the Individual in Public Services (1980). Although Lipsky had in mind particular agencies of the American public life (from which he hails), the ideal type of character he imagines is far more general. Examples include judges, social workers, members of the police force. As opposed to mere shufflers of papers, suggests Lipsky, these street-level bureaucrats are distinguished, firstly by operating ‘in the field’ with a high range of discretion when making their decisions. Secondly, and perhaps most importantly, street-level bureaucracy is not faceless. It may be brutalising, a site of symbolic violence against the people who apply for assistance. Working methods and the mismatch between lofty goals and brute functions may reduce the well-intentioned caseworker to a listless, alienated character. But importantly, not one who can hide in the dusty bowels of an administrative building. ‘A defining facet of the working environment of street-level bureaucrats is that they must deal with clients’ personal reactions to their decisions…’ (Lipsky 1980, 9)

This literature came to my mind this morning when I was reflecting on the controversial facework Kenny MacAskill engaged in with Al Megrahi. This approach to decision-making was explicitly denounced in Holyrood’s Justice Committee’s report on the process of the Cabinet Secretary’s decision on compassionate release, published today. Although we could return to many issues, I wanted to linger a bit on this one. Why is facework problematic? What is the basis for the judgement that humanising paper exchanges is inappropriate? As you may recall, MacAskill visited the prisoner in person. At the time, this stirred up some complaints and suggestions that it was an inappropriate venture. As perhaps was to be readily anticipated, the Committee don’t approve either. Bill Aitken, Robert Brown, Bill Butler, Cathie Craigie and James Kelly (also known as the members of the committee who don’t happen to be SNP MSPs…) believe that the prison visit ‘was inappropriate’. Subsequently, it is listed among issues of process about which the Committee is ‘extremely concerned’ [66].

They give their further reasons in paragraph [40]. All emphasis in subsequently quoted text is my own. What I’m aiming at here is the why and the wherefore. If the process if felt to be unacceptable or unjust, what arguments about the nature of procedural justice are made – which qualities of the process are relied upon to provide arguments for the acceptability of the decision? In short, what are the qualities of meeting Kenny MacAskill that makes his final decision (allegedly) problematic? Four basic points are made. What will become apparent, however, is that nowhere is facework itself impugned as a problem. Structural features are referenced, formalistic accounts of the decision-process are cited, but nowhere are the more difficult issues posed by interactions between applicant and ministerial decider dived into. The critique remains at an implicit level.

“These members are clear that Mr MacAskill was under no obligation in terms of the PTA process to offer a prisoner a face-to-face meeting, citing both the Cabinet Secretary’s own evidence on 1 December and Jack Straw’s evidence to the Joint Committee on Human Rights (that the obligation was only to offer an opportunity to make written representations).”

Obligation here denotes formalistic legal necessities. Why it is immediately a basis for criticism is concretised in the subsequent paragraph.

“They are unconvinced by Mr MacAskill’s own explanation that he felt obliged to meet Mr al-Megrahi for consistency with the meetings (face-to-face or by videoconference) that he had already held with US Government representatives and relatives, given that these latter meetings were also his choice and not a requirement of the process.”

Unstitch this. Not convinced? So what do they imagine he was about? Notice, the language of being convinced, to my mind, implies a different set of considerations than the ordinary sense of disagreeing with the Cabinet Secretary meeting Megrahi in person. MacAskill here was clearly making a mixed point. On one level, he was referencing the possibility of judicial review, and thus touches on the jurisprudence of lawfulness in administrative law, which he is bound to observe as a minister of state. On another, MacAskill was making a particular claim about the nature of procedural justice which is separable from the legal argument. He was saying, in brief, that this was about “giving the applicant a fair opportunity to fully participate in the process of adjudicating whether the right exists or is to be denied” (Halliday 2004, 119). Functionally, the method by which he gave effect to this goal of procedural fairness was by giving Megrahi the opportunity of access on the same terms.

The hostile members of the committee, however, do not engage with him at that level, nor do they make the argument that according to the broad goals of procedural fairness, MacAskill might have a point. Notice the subtle shift in terms of obligation being effected here. The committee is talking the letter of the law, MacAskill making reference to its broad, administrative spirit in the context of fair procedures, where one’s ability to contribute equally is substantively important. Rather, they ignore that altogether, insisting on formal legalistic standards, concrete obligations. For that reason, I read this denunciation as on the extremely weak end of plausible criticism of the visit. There is something very limp about saying we don’t believe your sense of obligation, you didn’t have to meet the American families of the victims of Lockerbie either. Particularly since there isn’t a breath of criticism of doing so in the main report, according to the majority’s formalistic standards of fair process.

“They argue that this approach has created an inappropriate precedent, which may be relied upon by other prisoners in the future.”

Relied upon to what purpose? And, presumably, relied upon somewhere. In court? Or perhaps in rhetorical appeal to the adjudicator’s sense of procedural balance? Again, notice that it is not being suggested, at the level of the decision itself, that an oral encounter is inherently problematic. That argument is never made. The theme is returned to in para [62], where "…the Committee takes the view that such an issue need never have arisen if the matter had been considered on the basis of written representations in the normal way." This strikes me as another, much weaker claim. Categorically not that the process employed is inherently inappropriate, that a visit ought to be out of the question, but that normality was infringed, that substantive fairness is of no significance, and thus Kenny was flying a procedural kite.

“They also point to a lack of balance between the meetings with relatives, at which they were told that their views were being considered only in relation to the PTA application, and the meeting with Mr al-Megrahi, which also encompassed the compassionate release application.”

In part, see argument two above. And notice that now the committee dips a toe in the substantive point about fair procedures. Needless to say, the toe is fairly rapidly removed. None of these positions, in my view, makes clear what is opaque – what sort of reasons problematise discussion in person, as opposed to sanctionable encounters merely conducted by papery exchanges. Much of this highlights for me the problems of attempting to reconstruct highly discretionary decisions, based on straightforward formulae. Dispositive, brightline rules are not engaged here. There is also another thread, woven through the arguments made above. It relates to a question left unasked – what sort of data might derive from a meeting in person which could not be captured on paper? Ordinary experience should tell us that a human, in the flesh, is transformed from the abstract categories of relations implied by textual exchanges.

The nagging doubts about the meeting, I’d suggest, relate to ambivalent positions in our public life about discretion as such. While, in the persons of street-level bureaucrats, discretion – with its capacity for human affectivity – are familiar and regular state activities, that does not correlate with a clear, unproblematic justification for decisions taken on that basis. Echoing my discussion on justice and mercy from the time of the compassionate release, begging for clearly expressed, categorical reasons is inviting to be deceived. Choices don’t work like that – particularly choices predicated on a loose, affective notion like compassion or mercy. Post hoc rationalisations can invariably be couched in a language of compliance with mandatory edicts and formulae.

The rest of the parliament's Justice Committee report on the release of Al Megrahi can be read here.


  1. So the accusation of 'inappropriate' is baseless (while "the critique remains at an implicit level").

    And the committee require just that baselessness to be an enforceable procedural maxim...?

    It strikes me we're not getting value for money here, even from a kangaroo court.

    It is maybe inevitable the majority would conclude on the terms that reflect their wider political impotence - but at least they might care to put a shift in when they do!

    Aitken and the rest think it doesn't matter if you hand in some shabby undergrad stuff as long as you've got the majority on the committee.

    Why should anyone be interested?

  2. I don't know if you've been over at the Scottish Round Up pages LPW, but you were voted best blog newcomer of 2009, fifth best political blog and no 6 in the top 100 overall
    The awards are based on nominations so well done!

  3. After posting the above I noticed your posting on the subject -- oops!

    congrats nonetheless!

  4. ratzo,

    This seems to me the case. The idea that a human encounter is problematic is relied on - must be relied on - if MacAskill is consistently to be criticised. Yet at every point where the committee might do so - they veer off, making weaker points. This suggests, if nothing else, that the thinking underwriting their commentary is exceedingly 'undergraduate', as you put it. A low 2:1 at best, due to the absence of critical engagement with their own position.

    If you are anorakish like me, interested in how these ideas find expression in public life - their slim and divided pamphlet may be of some curiosity. In terms of illuminating the issues really at stake - you are dead right. The report is an intellectual dud and sheds little light on what might have rendered the process problematic or how it might be improved.

  5. Thanks for mentioning it bigrab - Actually I'm rather tickled and surprised at how folk seem to have voted, particularly on the newcomer front. In praise of Duncan Stephen's efforts at mapping out the Scots blogosphere and introducing me to new material - political and otherwise - I intend to compose a quiet and brisk gloat tomorrow morning (...as a cultural contribution to overcoming the Scottish cringe, you understand...)

  6. The committee does mention one element that caused me some concern - that at the face to face meeting there was mention of compassionate release and the PTA. My problem with the meeting stemmed from this conflation. The two processes were distinct and should have been treated separately. In the former there was clearly no requirement for meeting (and potential implications for other compassionate release applications in doing so: if the decision is to be based on the medical evidence and other factors on risk of reoffending, reports from the prison service &c then meeting - when the person making the decision is no expert in these issues - adds nothing). In relaton to the PTA I can see the argument for meeting (although that argument was made explicit very late in the day, and the minister had given the impression his formal requirement stemmed from the UK government when the written evidence given to the Westminster committee at the time was quite clear - examination of MacAskill's original statement, his news interviews, and then later clarification of the issue suggest that he and his team did not appreciate that clarity onthe meeting was crucial, despite the initial media furore over why he'd gone to the meeting in the first place). At the time of the meeting saying "I have met X and met Y under the PTA and now to be fair to the priosner I require to meet Megrahi to allow him the same courtesy extended to others" would I think have disarmed the argument.

    I think handling was problematic. There was no requirement to have both matters dealt with at one time.

    The delay in decision on the PTA (which could not be actioned pending the abandoning of all appeals in the case, Crown and defence) meant that both processes were together. Should they have been dealt with by separate ministers (a recommendation to that effect from the committee would have addressed the key procedural problem)?

    Both processes being together meant that clarifying the position in relation to the PTA (where appeals had to be dropped) could be confused/conflated with advice regarding compassionate release (where the appeal did not need to be dropped). To those looking for conspiracies that is not helpful.

    PS Sorry this is a bit muddled. I was thinking of posting something myself and ma getting thoughts together given an ongoing personal interest in the Lockerbie case (and this is a first case of noting some of them). I very much enjoyed the post though, and warmly welcomed your good showing in the blog awards. For me this has been far and away the best new blog of the past year - always readable and thought provoking (even, or especially, when I disagree) so it's very pleasing to see that I'm not alone in that judgment.

  7. Actually, I had you somewhere in the back of my mind when I was writing up this post, Love and Garbage. I seem to remember in August that you mentioned reservations you had about just this aspect of proceedings - but I couldn't find the reference. Thanks for filling out a bit of the detail.

    I can see the points that you are making. In particular, it is a fair point that two procedures with rather different consequences - particularly for the appeal – and conflation could generate misunderstanding on all sides in a way that does not serve justice. Equally, its not really that complicated. At least, I hope I’m not demeaning what legal competence I possess to say that the proverbial ‘ordinary man’ or woman could, with only a bit of headwork, tell the difference. On compassionate release, I suppose it depends how we (and the law) defines it. It looks to me to be a pretty major discretionary exercise, under the relevant third section of the Prisoners and Criminal Proceedings (Scotland) Act 1993. Save for statutory consultees, how do we define compassion? On a normative level, couldn’t we regard some sort of interpersonal context with the would-be beneficiary of compassion as a relevant consideration? Although in formalistic legal terms the value of this may be difficult to formulate – but aren’t people always slagging off faceless bureaucracy that relates to people via categories with little or no significance to them? This is certainly arguable. I suspect the position you mind yourself in respect of it might well depend on whether or not you render this statutory account of compassion in terms of justice, with regard not just for the individual case, but rely on arguments of equality across cases where compassionate release is applied for and considered.

    Although limiting his meeting to the PTA might seem to be a fix - I’m not so sure. Probably fairly, the popular analysis isn’t terribly amenable to accepting legalistic divisions. Either way, they’d see the two men in the room and write their stories accordingly. Moreover, given the committee’s – to my mind, odd but at least consistent – reference to the absence of a requirement to meet the families under the PTA, and the formalistic idea that what you have to do represents the justice of a procedure, it seems likely that they would have smacked MacAskill with the gavel in either case, whatever his justification. They are unconvinced, after all.

    P.S. I'm glad to have diverted (and frustrated!) you over the course of the last year. That is what I'm here for.

  8. Hi Lallands,

    Clearly a case where "much may be said on both sides". Thank you for putting the side of humanity.

    There is something terribly wrong with our democracy at the moment where absolutely every mass media outlet in Scotland seems to consistently and constantly villify every move and decision of the SNP Government. While I have no legal training I felt instinctively that the compassionate release was the correct thing to do and that in meeting al Megrahie, Kenny was simply maintaining an even playing field with the other participants. This was surely,if anything, good, and not bad. I certainly had no impression of him doing something "wrong".

    The subsequent torrent of abuse, much of it international,left me somewhat surprised at its intensity and at the time left me with the overwhelming impression of just how horriblly inhumane and confused some politicians must be in reality. A sort of unintentional lifting of a corner of the carpet, showing what horrors lie concealed beneath.

    Subsequently most of the opposition seemed to focus on the meeting. Even Scott, whose blog I follow avidly, and who is usually very even handed, seemed to be presenting a courteous but somewhat ethereal case against. His contribution above tends to confirm that impression.

    In the meantime, thank you for your valuable contributions to the blogosphere and congrats on your well deserved Scotblog rankings.


  9. Thanks for the hearty comment, Rab o' Ruglen.

    My hunch is that at the root of all of this, as I tried to articulate in my post, are the tensions posed by discretion and compassion in a democratic setting. While the charismatic, sceptred monarch can (relatively unproblematically) dispense mercy - if we have an account of law which is exhausted at the level of justice, which seeks reasons, uniformity, precision - both discretion and mercy become problematic virtues.

    While I suggested at the time that our debate about whether to release Megrahi was becoming lost in a conflation of mercy with justice - in a sense, in this review, we've simply seen that conflation replicated in the 'ethereal' focus, as you rightly put it, of our ideas of lawful procedure. As a relatively unlegalistic soul - albeit burdened with a legal background - I don't have an acute sensitivity to the idea of such procedural proprieties - I'm not sure to what extent they are valuable or significant. I trust Scott will forgive me for this - or if not, I beg pardon - but my guess is is that his own theoretical orientations cleave much more closely to a legalistic spirit, accounting for a justice-centric, proceduralist critique of what MacAskill got up to. In this sense, it isn't so much about being even-handed - but is instead a question of having multiple polarities at work, founded on basic disagreement about our basic judgements, our premises.

    Being a shallow, unselfcritical piece, however, the Committee report is leagues and leagues away from addressing these vital, interesting considerations which largely set the subsequent debate in motion.