FOS Litigation Group

Paper Overview

The Constitutional Legitimacy of Statutory Adjudication: Institutional Knowledge Asymmetry, Transparency and Democratic Accountability.

Examines an increasingly important constitutional question: how should the legitimacy of specialist statutory decision-makers be assessed in a modern administrative state?

The paper argues that when Parliament delegates adjudicative authority to specialist institutions, it inevitably creates a corresponding concentration of institutional knowledge. Over time, those institutions develop a unique understanding of how their statutory powers are exercised—knowledge that is not fully available to Parliament, the courts, regulators, practitioners or the public.

This paper explores the constitutional implications of that informational imbalance, introducing the concept of *Institutional Knowledge Asymmetry* as a framework for understanding the relationship between delegated authority, transparency and democratic accountability. It argues that transparency should not be viewed simply as an aspiration towards openness, but as a constitutional mechanism that enables meaningful external scrutiny of public power.

Drawing upon principles of constitutional and administrative law, the paper examines how accountability depends upon access to information, distinguishes between institutional activity and institutional behaviour, and considers whether existing approaches to transparency are sufficient to sustain public confidence in systems of statutory adjudication.

Using the *Financial Ombudsman Service* as a practical case study, the paper applies this broader constitutional framework without advancing institutional criticism, instead asking whether current transparency arrangements provide the informational foundation necessary for meaningful constitutional accountability.

The paper is intended for lawyers, academics, policymakers, regulators, parliamentarians and anyone with an interest in constitutional law, administrative justice and the future development of statutory adjudication.