Dysfunctional governance: Crisis, scandal, tragedy, emergency

Abstract

Our current age is commonly and widely understood as being beset by poly or pluri-crises. This means that terms such as crisis, scandal, tragedy and emergency—terms that were once understood as applying to exceptional circumstances—have become associated with normality. At the same time, questions have arisen about the ability of governments and practices of governance, to deal with the intertwining nature, volume and complexity posed by contemporary challenges. Once understood as sources of order occasionally punctuated by moments of dysfunction, government and governance are now more often interpreted as sources of dysfunctionality. Faced with governmental and governance failures to tackle the challenges that we face, not least because governments are seemingly in their own perpetual states of crisis, scandal, tragedy or emergency, liberal publics have reached for processes that promise to expose blunders and conspiracies, and remedy dysfunction. What is needed, we so often hear and say, is another public inquiry, more investigative journalism, better legal processes or democratic judgments, or some combination of all of these. However, as contributors to this special issue show, paying attention to these processes more often exposes how they privilege certain narratives over others, particularly in ways which mean that class, gender, race and other significant structures, are minimised or ignored. Moreover, each public inquiry or investigation will produce some form of judgment about government, processes and practices, and reform will be anticipated and expected. The question remains, however, as to why we end up with yet more dysfunction. To address this important question, contributors to this special issue embarked on an interdisciplinary dialogue about how and to what, crisis, scandal, tragedy and emergency, are being applied. We asked what these applications mean and entail for practices of governance, and how to best analyse its supposed dysfunctionality in an era of poly and pluri-crisis. The resulting articles explore in different, but complementary ways, what socio-legal studies can offer the study of dysfunction. All consider, to different extents and in different contexts, how legalistic practices and logics shape and are shaped by social, cultural, political and economic forces. Our special issue opens with Johnson et al. making the case that tragedy, scandal and crisis are the primary modes through which publics and political actors make sense of contemporary disorder and dysfunction. These three modes provide shared grammars and resonances which invite us to both interpret and respond to unsettling events and practices in particular ways. Applying this typology to the Grenfell Tower Inquiry, Johnson et al. show how, despite initial claims that the Inquiry would ‘leave no stone unturned’, the Inquiry's legalistic methods and mentalities prefigure its findings. The result is that blame is attributed solely to scandalous actors, whereas broader structural questions of class and race are ‘stones’ that remain very much unturned. The limitations of understanding injustices as scandals are also laid bare in Day et al.’s analysis of the lived experiences of victims and survivors affected by the UK Post Office Scandal. Their analysis shows how those caught up in the Scandal have been compelled by the circumstances to become agents of justice and activists for wider systemic reform. Despite some legal victories, however, Day et al. demonstrate how legal processes and logics have reinstated many of the norms that victims and survivors have tried to challenge. Their analysis alerts us to the importance of both survivor-led activism in bringing about systemic change, and the need to remain alert to how systems will protect themselves from such activism at the same time. How systems respond to challenges to their workings and authority are also taken up in McEvoy's article. Focusing on the 2024 Northern Ireland Troubles (Legacy and Reconciliation) Act, McEvoy highlights how legal challenges to military abuses of human rights during the Troubles came to be understood by as ‘witch-hunts’ that necessitated state protection for veterans. Truth-seeking, rather than violence, is the source of dysfunction. The Act's resulting legal amnesty, and closure of embarrassing investigations against British soldiers, has impacted the possibility for transitional justice for many victims and survivors. Despite these significant shortcomings, however, McEvoy argues that the law still has a vital role to play in a post-truth context where public discourse is awash with lies, moral relativism and information overload. Naeem's article returns us to the Grenfell Tower Inquiry. Here, the Inquiry is shown to have limited what it could make visible about the causes of the fire through its focus on acts of post-2010 deregulation. Dysfunction becomes regrettable but temporary. Naeem argues that this temporal bounding conceals a much longer history to the fire, in which a series of acts of omission by successive governments created a regulatory scene amenable to neoliberalism but antithetical to public safety. Although the Inquiry seeks to offer an authoritative account of the fire as an outcome of dysfunction, Naeem demonstrates how the fire is in fact better understood as the outcome of a fully functioning neoliberal system. This is revealed when the fire is placed in a wider historical, social, economic and regulatory context. Johnson's article similarly highlights the importance of broader relations and structures of power. Through an analysis of the characterisation of the Horn of Africa as a place of crisis, tragedy and emergency, Johnson shows how this framing leads to a narrow focus on present day government incompetence or corruption, obscuring the significance of colonial rule and its legacies in facilitating present-day challenges. This facilitates international interventions that normalise the idea that dysfunction emanates from the region and that external governance is therefore necessary to tackle it. Johnson argues for alternatives grounded in African epistemologies of governance that are far more likely to address the deep-rooted social, political and economic problems colonialism produced, and produces, in the region. Taking the idea that justice must be seen to be done seriously, Morgan's article considers recent trends around court secrecy and their implications for the functioning of democracy and democratic ideals pertaining to justice. By conceptualising these trends as ‘respective’ and ‘barricade’ secrecy, Morgan shows how forms of secrecy that more readily benefit and enhance state power (barricade) have come to be understood as more valid and necessary, whereas forms of secrecy often used to protect individual and family rights to privacy and dignity (respective) have been reduced in service of enhancing open justice. Increasing barricade secrecy has frequently been justified as a means of responding to and resolving disorders and crises of national security. Morgan's analysis highlights how the associated growth of barricade secrecy not only offsets open justice gains provided by a decrease in respective secrecy but also extends executive power in ways that reconfigure the balance between executive and legal power, and the (dys)functioning of democracy. Where Morgan's paper considers how secrecy travels between and through different institutions of governance, Cowan and Marsh trace crisis, and specifically the ‘housing crisis’, as a discursive narrative that not only shapes policy processes but also permeates legal systems. Their analysis highlights how courts, and their attendant practices, have embraced the notion of crisis and reproduced it in ways that restrict the rights of those most affected by homelessness and inadequate housing by narrowly interpreting the duties and responsibilities of public administrators who are having to deal with a ‘housing crisis’. The narrative of crisis locates dysfunctionality to some extent outside of the control of these administrators making it more difficult for those who need to access social housing to do so. Crisis is also central to Alcock's analysis which draws on the scholarship of Karl Polanyi to examine Trump's global tariff agenda as an example of a contemporary crisis, itself situated within the even broader crisis of climate break-down. The argument is that Polanyi's understandings of the double movement provides us with a basis for a better appreciation of the idea of crisis. This notion of a self-regulating market and its paradoxical restriction means that functional governance is impossible; but Alcock goes further arguing that Trump's tariff agenda ‘is a crisis that conforms to Polanyi's interpretation of how the logic of liberal economics descends into fascist forms’. Finally, Gyurko and Macleod's article raises important questions about the differential effects that governmental responses to an emergency can produce. Focusing on the UK Government's Vaccine Damage Payment Scheme in the wake of the Covid-19 pandemic, their analysis reveals how many vaccine-injured individuals and communities have come to understand their injuries and health problems as tragic, and governmental responses to these as inadequate, and therefore scandalous. Gyurko and Macleod highlight how very different understandings of dys/functional governance can emerge when some people and groups experience harms by which the wider population are largely unaffected. They also show the importance of resonance in meaning-making around dysfunction, with many vaccine-injured individuals drawing comparisons between their efforts to gain recognition and compensation with that experienced by those affected by the Post Office scandal, the Windrush scandal and the Infected blood scandal. Taken together, these articles highlight the need to consider how what is framed as dysfunctional governance may actually be governance functioning all too well. They push us to ask what framing something as a crisis, scandal, tragedy or emergency might mean for the lived experiences of those seeking justice or simply rights. Some authors are critical of the law and legalistic practices and logics, suggesting that they are sources of dysfunctionality and injustice. Others point to the vital role that the law must still play in arbitrating truth in a context of poly-crisis. What we hope is that our interdisciplinary conversation prompts new ways of thinking and avenues for research at a time when the core assumptions of what can be considered normal, orderly and functional are in flux.