Accountability is both an attractive and an elusive concept.
Understood narrowly, it refers to the practice of ‘giving account' to another, providing an explanation or justification of conduct. In its broad sense, accountability expands to incorporate a normative dimension.
A body that can be held to account for its actions is more legitimate than one that is not accountable; any practice that enhances accountability thereby enhances legitimacy.1 Mark Bovens defines accountability in its narrow sense as ‘a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgement, and the actor may face consequences.'2 Understood in this sense, human rights adjudication is but one means through which public authorities can be held to account for actual and potential human rights abuses. In its broader sense, conceptions of accountability have been used to provide a justification of human rights adjudication. This is most clearly seen in the concept of the ‘culture of justification' found in the work of Etienne Mureinik, David Dyzenhaus, and Murray Hunt.3The extent to which the Human Rights Act 1998 (HRA 1998) has enhanced accountability in the narrow sense has been extensively discussed in the academic literature, particularly concerning the way in which dialogue may operate to balance legal and political mechanisms of control of human rights, particularly as regards control over legislation.[534] I have argued earlier that accountability may not be enhanced due to the way in which courts have a tendency to defer when defining Convention rights, as opposed to defining a right and using s 4 declarations of incompatibility. To use deference in this manner weakens the scrutiny of the court over human rights whilst also removing further political scrutiny following a declaration of incompatibility.[535]
This chapter will focus upon accountability in the normative sense, examining in particular the way in which ‘accountability’ has been used to justify judicial review and, more specifically, the extent to which the ‘culture of justification’ provides an account of a specific theory of human rights adjudication.
It will argue that difficulties arise as to the way in which these theories of adjudication apply in practice. Far from providing the transparency required by a culture of justification, the argument is made that current case law fails to provide sufficient certainty, undermining accountability. This chapter will argue that these difficulties are not merely caused by practical problems. There are also conceptual problems arising from a mismatch between theories of proportionality and of deference. The chapter will firstly provide a brief overview of the HRA 1998 and its relationship to mechanisms of accountability. Secondly, it will explain how the culture of justification is used to legitimize human rights adjudication and how the current case law does not appear to provide sufficient clarity, before explaining these possible weaknesses and suggesting possible modifications to enhance accountability.A.
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