Accountability and accountability institutions

1. Accountability

Accountability is a protean concept: it is pressed into service in a wide array of circumstances; and, depending on the context, it may carry radically different meanings.

First, then, what do, and should, accountability institutions examine? There is a wide range of possibilities here. The subject-matter of the inquiry might be an administrative measure—which could be a specific decision affecting one individual, or a broad policy potentially affecting large swathes of the population. Or the inquiry might be concerned with the competence, credentials, effectiveness or good faith of a given administrative actor or institution. Or the inquiry might be broader still: it might, for instance, be concerned with systemic issues such as how different institutions relate to one another.

Second, it stands to reason that if there is a broad range of matters capable of forming the subject-matter of accountability inquiries, there is also likely to be an array of criteria, or standards, by reference to which the object of the inquiry may be evaluated. It is also likely that there will be a relationship between these factors: that the appropriate evaluative criteria will depend, in part, upon the type of matter that is under investigation. The applicable criteria might, then, be legal ones, such as statutory restrictions upon the powers of the body being held to account, prin­ciples of good administration developed by the courts in exercise of their judicial review jurisdiction, or fundamental rights such as those protected by the Human Rights Act 1998 (HRA 1998).

Third, accountability inquiries can be, and are, undertaken for a number of purposes. The notion of accountability is often equated with the attribution of responsibility or blame. But just as ministerial accountability is about far more than the circumstances in which ministers should resign, so may accountability inquiries be conducted for ends other than the delivery of a scalp. The objective of an accountability inquiry might, then, be to secure the reversal or cancellation of administrative measures if they fail to meet the benchmark against which they fall to be assessed; the improvement of the quality of future administrative conduct; reform on the policy level; the learning of lessons; catharsis by authoritatively estab­lishing what actually happened; or simply the promotion of transparency—that is, putting information into the public domain in order, inter alia, that the demo­cratic process might be augmented by equipping the electorate to make informed judgments about an elected public body. And of course several of these purposes may be served by a single accountability process. Judicial review of a ministerial decision might, for instance, result in judicial annulment of an unlawful administra­tive measure, but might also bring to light wider failings within a bureaucracy that may in turn result in operational or policy changes,^[744] or affect public perceptions (and so the electoral prospects) of the government of the day.

2. Accountability institutions

Any effective accountability institution must possess two general characteristics.

These two characteristics are found most readily in the courts. Of all public institutions, courts can most plausibly claim that they are independent of gov­ernment, judicial independence being, in the UK, the most ample manifestation of an otherwise ambivalent commitment to separation of powers. Meanwhile, doubts about the integrity and effectiveness of the wider political system mean that accountability institutions such as ombudsmen and inquiries, whose outputs sound ultimately in the political rather than the legal realm, may be perceived as the poor relations of judicial bodies with the capacity to issue binding remedies.

The possibility therefore arises of the judicial model of accountability being regarded as a form of paradigm, in the sense that it most obviously and abundantly possesses the basic prerequisites of an effective accountability mechanism. But, for two reasons (among others), the judicial model should not be placed on a pedestal. Firstly, it creates a risk that judicial review will be perceived as a sort of panacea that can substitute for other accountability models that less amply possess the two characteristics mentioned above. That risk must be avoided because, important though the courts' role is, judicial review is self-evidently capable of supplying only a subset of the forms of accountability sketched in the previous section.

Secondly, treating judicial review as a paradigm may be symptomatic of an underlying misapprehension: namely, that the judicial model furnishes the only, or the best, way of securing the general characteristics required of an effective account­ability institution.

Against this background, it will be argued that non-court accountability mechanisms have a valuable and distinctive role to play in the contemporary accountability system. In developing this argument, particular attention will be paid to each mechanism's relationship with court-based accountability, in which regard it will be contended that certain discernible tendencies to view that model as a paradigm should be resisted. Throughout the chapter, the focus will be on holding the UK government to account and, therefore, on those accountability institutions that are particularly relevant to that endeavour.

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