Accountability in the contemporary constitution

Turning now to the individual contributions, it should be stressed that the concern in this collection is not to investigate accountability from the perspective of political science, but rather to develop the idea in the context of constitutional and public law (UK constitutional and public law in particular).

In Part I, John Allison revisits the work of the nineteenth and early twentieth century theorist A V Dicey, presenting new arguments about Dicey's perspective concerning legal accountability, while Mark Tushnet explores accountability and the nature of judicial decision-making from the standpoint of a political concep­tion of law.

Allison^[35] seeks to explore the dichotomy between legal and political accountability by focusing in particular on Dicey's historically neglected focus on the legal spirit of the constitution, by which he meant the way in which the persons of the time looked on their institutions and expected them to work (Dicey thus believed the spirit of the English constitution to be legal rather than military or civil adminis­trative). Allison suggests that each possible spirit corresponded to a different idea of accountability. Legal accountability, corresponding to the legal spirit, was owed by officials to independent judicial authorities (rather than a specialist administrative court) acting according to due process and established rules and principles. While Dicey anticipated political accountability through constitutional conventions, its role was sidelined in his account, helping to entrench the legal/political dichotomy taken up by later scholars. Allison also suggests, though, that it is important to view Dicey's arguments in context. When Dicey was writing, university-level legal education was only just emerging in the United Kingdom, helping to explain what might nowadays be seen as his undue focus on the purely legal. Furthermore, his characterization of the spirits of different constitutions seems to involve understandings of the idea of national character which would nowadays be seen as artificial. Allison argues that over time, Dicey was forced to acknowledge the existence of certain civil administrative elements in the English constitution, but that the role of those elements was broader and far stronger than he was prepared openly to acknowledge.

Mark Tushnet's essay^[36] engages with accountability from a comparative and political rather than directly historical perspective. Tushnet's central question concerns how judges on the highest (apex) courts are made accountable as part of a constitutional system. The question is posed on the assumption that such judges wield political power, particularly when exercising discretion. This point in itself raises accountability issues which cannot easily be answered, because it is recognised that to make judges directly accountable might threaten to undermine their inde­pendence. As a result, Tushnet's essay not only provides an assessment of the effect on accountability of institutional features, including the control of judicial salaries, judicial tenure and the mechanisms for judicial appointment (including the case for election), but also analyses from a comparative standpoint how judges in the United States and other jurisdictions are made directly accountable to the law. Tushnet contributes to the debate concerning approaches to the judicial reasoning process with reference to recent decisions of the Supreme Court in order to better understand what legally restrains judges from making entirely personal judgments.

In this regard, there are direct links between Tushnet's account and the essays found in Part II—although in these latter essays, by Trevor Allan, Sandra Fredman and Jeff King, it might be suggested that arguments concerning the nature of law are slightly more implicit, the foreground concern being to offer an analysis of judicial accountability within the context of constitutional theory (in the essays found in Part III, in turn, a theoretical dimension is still important, but attention is concentrated still more visibly on the consequences of theory for judicial account­ability in practice).

Allan^[37] seeks to defend a legal constitutionalist view of accountability and legitimacy. He characterises the rival political constitutionalist view (associated with, among others, Mark Tushnet), which he rejects, as associating administrative legality with conformity to statutory standards. Legal constitutionalists, by con­trast, understand administrative legality or accountability to law as entailing the judi­cial enforcement of rule of law-based values of fair or just treatment. The debate between these schools, and between rival legal constitutionalist views, depends on our understanding of the concept of law, and in turn of executive accountability to law.

If, as Allan suggests, law is always an interpretation of the demands of legality, posi­tivist concerns about the sources of law are superfluous. From Allan's non-positivist perspective, accountability to law entails conformity to the constitution of a free society, different types of legal power being read in the light of that tradition. In supervising the legality of administrative action, a court must construct the character of the jurisdiction under review by reference to independent standards of legality as well as legitimate public purposes. Courts seek to find coherence within legislation and judicial precedent. Allan seeks, against this background, to interpret debate about the rule of law and about the role of the common law as opposed to legislative intent as the basis for judicial review of executive action. He suggests that the demands of legality are met by bringing common law principle to bear (via interpretation) on statutory functions, avoiding an unhelpful competi­tion between competing sources of law.

For Allan, judicial review of executive action is thus based on the principle of legality, which is closely linked to the political values of freedom and justice. Accountability to law means more than compliance with positive law: it informs and guides interpretation of the law, amounting ultimately to respect for law and legal process. Allan is thus seeking to tie his approach to judicial review and (more theoretically) accountability to law to his rejection of a positivist conception of the nature of law. This is connected in turn to the idea that government (and implicitly Parliament) is being made accountable to the idea and the ideal of legality, linked to the rule of law, and that the standards of judicial review reflect this.

The background to Sandra Fredman's essay^[38] lies in the debate between legal and political constitutionalists. Some commentators have tried to move beyond the sharply-delineated boundaries in this debate: for example, ‘dialogue theorists' have characterised certain pieces of legislation, including the Human Rights Act 1998 in the United Kingdom, as dividing the protection of individual rights between the legislature and the judiciary, each institution being offered opportunities to arrive at ‘inter-institutional comity designed to' safeguard such rights.^[39] Fredman seeks to move beyond pure dialogue theory, instead defending a ‘bounded deliberation' approach to decision-making and in turn accountability in human rights cases. In this regard, she seeks to use constitutional theory to explain her desired role for courts. Fredman begins by asking what unique contribution courts can make to the protection of human rights, and argues that majoritarian institutions such as legislatures do not fully encompass all models of democracy. In interest-governed decision-making, parties come to the table with fixed interests, their aim being to induce the other party to accept their claim rather than seeking to reason with them; deliberative decision-making, by contrast, requires that the parties articulate persuasive reasons and display a willingness to revise their own preferences and convictions. Fredman argues that while there is room for both approaches in a democracy, interest-based decision-making—more typically associated with leg­islatures—is not suitable for human rights. Nonetheless, she aims to move beyond charges of promoting any form of ‘judicial supremacism' by noting that courts must operate within the bounds of human rights viewed as the product of prior deliberative consensus.

Fredman suggests that both legislatures and courts should give deliberative accounts of their decisions concerning human rights. Judges should not substitute their opinion for that of the legislature, but neither should they defer. Decisions should be based on principle rather than the strength of the interests in play, and it is in this regard that courts can make a unique contribution to the democratic resolution of disputes concerning human rights. On this view, a Bill of Rights could make judges more rather than less accountable given that, like legislators, they too would have to justify their decisions against a background of values reached by a pro­cess of prior consensus. Litigation, under a deliberative approach, might encourage greater public participation. Fredman is not inflexible in her argument, however, accepting that where the judicial process is inaccessible or reinforces existing inequali­ties, reforms will be needed (indeed, one might argue that in practice aspects of her argument rely on the progressive experience of the South African Constitutional Court in opening up litigation to a wide range of citizens and interest groups, as well as a range of cases in which courts have dealt with claims involving socio-economic rights). She thus proposes that since a key aim of protecting human rights is to grant everyone a voice in society, litigation can often offer a better vehicle than the political process for wide-ranging participation in decision-making, not least when the latter process is dominated by interest groups. Deliberative judgments by courts are binding for the dispute in front of them, but the subject-matter may be revisited later via the legislative process. While Fredman acknowledges that the ‘bounded deliberation' approach begs certain questions, her argument can be seen as an attempt to strike a middle path between approaches which prioritize the roles—and thus the accountability obligations imposed upon—the legislature and the courts considered in wholly distinct terms.

Jeff King^[40] returns the focus to legal accountability by attempting to clarify the nature of the instrumental benefits—if any—which it offers. In possible contradis­tinction to Trevor Allan, he suggests that it is insufficiently precise merely to argue that legal accountability protects the rule of law, prevents the abuse of powers, or safeguards individual rights. When evaluating legal accountability, a focused def­inition must be used. King thus categorizes legal accountability as an institutional process involving an individual right of petition to an independent adjudicator for a remedy, the adjudicator being required to give a transparent and well-reasoned judgment and a final remedy for breach of the applicable standards.^[41] While a set of prima facie instrumental benefits can be identified as resulting from such a pro­cess, King argues, they must inevitably be weighed alongside more context-specific factors in determining whether expanded legal accountability is appropriate in an individual case. Furthermore, any instrumentalist argument about the benefits of legal accountability is necessarily context-dependent.

King goes on to suggest that to count as a prima facie benefit, something needs to be specific and concrete enough that it can be evaluated empirically and serve as a reference point that supporters and opponents of legal accountability can use as a measuring device. On this basis, prima facie benefits of legal accountability are that it prompts focus on the narratives of individuals, on a policy's effects on them, and on the distinct legal issues involved; that it entails the use of principled reason­ing; that courts have a special form of constitutional authority; that judges are independent and impartial; that legal adjudicators are good at rule-interpretation, and courts have real competence in respect of procedural fairness; that litigation can encourage the participation of the otherwise excluded; and that legal account­ability can express key principles, policies or other values in judicial decisions, and generate publicity or a political response for a cause, and can encourage the legisla­ture, executive and judiciary to work together to some extent. King also articulates a range of criteria which can be employed in practice by the courts in this context: something which may help illustrate how far support for legal accountability is associated with any theorist's basic vision of the ideal constitution. However, King's concern to find factors which all sides can recognize may also allow for a connection between theory and practical methodology when considering any defence of legal or political accountability.

Each of the essays found in Part III focuses on a specific practically-focused aspect of constitutional accountability, but in doing so engages theoretical approaches to accountability. Alison Young focuses on the nature of the judicial role when con­sidering deference and accountability in United Kingdom Human Rights Act 1998 case law, while Paul Craig relates debate about the constitutional role of courts to specific questions in European Union and English domestic law, building analogies between the two. Meanwhile, Andrew Le Sueur seeks to investigate the evolving accountability of the judicial system in the United Kingdom before Parliament.

Alison Young^[42] draws on Mark Bovens' definition of accountability (discussed above) and on a broader view of accountability as incorporating a normative dimen­sion via the notions that a body which can be held to account for its actions is more legitimate than one which cannot and that any practice which enhances account­ability enhances legitimacy. She claims that both senses are applicable within human rights adjudication. Young is concerned to explore—in relation to the interpretation and application of the Human Rights Act 1998—the implications of judicial deference for transparency and the facilitation of a ‘culture of justifica­tion', an idea associated with accountability's normative dimension in the human rights context. Young contrasts legal and political accountability mechanisms at both national and European levels, which she argues create ‘chains of accountability'. In particular, she considers the assessments of the Westminster Parliament's Joint Committee on Human Rights as to the compatibility of proposed legislation with European Convention rights—a form of political accountability—and the deter­minations of domestic United Kingdom courts concerning the compatibility of enacted legislation.

Young argues that problems may arise where courts defer too generally to the legislature when Convention-compatibility has been discussed during the passage of legislation, for this may gloss over context-specific issues relating to enacted legislation of the type ideally suited for judicial determination. Furthermore, courts have not been coherent in their understandings of deference, failing as a result properly to promote accountability. For example, courts have elided constitutional issues focusing on authority and legitimacy (in relation to which deference may be owed to a legislature because it is democratically elected and democratically accountable) with institutional issues focusing on relative expertise and knowledge; have failed to understand the appropriate parameters of deference on a case-by- case basis; and have confused deference with justiciability. Young argues that these problems reflect uncertainties concerning the roles of the legislature and the courts in relation to the protection of and accountability concerning human rights. By contrast, the ideal of a ‘culture of justification' stipulates that restrictions of human rights must be proportionate and that deference should not exclude judicial assessment of the reasons offered for the decision under scrutiny, promoting transparency and accountability. However, this would entail a greater focus than is currently the case on holding the legislature and the executive to account for the way in which they reach conclusions regarding the restriction of human rights. At a theoretical level, Young therefore offers a clear demonstration of the inter-relationship between judicial and political accountability in relation to human rights adjudication. A significant aspect of her argument would appear to be the suggestion that the real issue in relation to accountability is the need to require justification for the decisions of both the legislature and the executive (in this sense there may be commonalities with the arguments concerning the importance and role of justification advanced by Fredman and King).

Adopting a clearly comparative approach between domestic English domestic law and European Union law, Paul Craig's focus^[43] is on the role and legitimacy of judicial review as one among a range of accountability mechanisms. He seeks to compare, as devices for understanding and assessing judicial review within each system (insofar as the two may be viewed as distinct), debates concerning the con­ceptual foundations and legitimacy of, as well as the hierarchy of norms and the role of rights within, the review jurisdiction as a basis for facilitating accountability.

In relation to conceptual foundations, Craig argues that judicial review in both systems has been fashioned pursuant to the rule of law, notwithstanding express authorization for judicial review at European Union level in the original Treaty of Rome. He also suggests that any particular accountability mechanism must be ana­lysed with reference to the legitimacy of the detailed precepts which it uses when holding others to account, but refutes the view that review of executive action at either European Union or domestic level rests on an unduly general/normative and illegitimate basis. Craig argues that judicial intervention, whether in public or private law, has instead rested on the identification of a particular reason for intervention, the fashioning of general categories of liability to be applied within the area involved (something which may be associated with more general values within the law), and the determination of more detailed aspects such as the standard of liability and the availability of justifications or defences. The most basic ration­ale for judicial review, viewed historically, was the need to render public power accountable. While this idea was associated with legitimacy, the development of legal liability at both domestic and European Union levels has occurred in accord­ance with the general pattern and by analogy with other areas of law. In relation to the hierarchy of norms, Craig notes that divergent choices have been made in national and European Union law concerning the permissible objects of review, something which is significant when assessing judicial review as an accountability mechanism within each system. This affects, in turn, the ambit of judicial power when it comes to the protection of rights, a field of review which is nonetheless developing within each system.

As Craig acknowledges, assessment of the efficacy of judicial review as an account­ability mechanism in the systems he considers is very much a work in progress. When considered in terms of accountability mechanisms in general, however, the importance of his essay may lie in its articulation of concrete criteria by reference to which efficacy can be measured, and its deployment of those criteria on a compara­tive basis in relation to judicial review in domestic English and European Union law.

While Mark Tushnet's study (see above) explored the relationship between accountability and independence of the judiciary in more general and theoreti­cal terms, Andrew Le Sueur discusses^[44] judicial accountability specifically in the United Kingdom context. The replacement of the Appellate Committee of the House of Lords with a United Kingdom Supreme Court, together with a radi­cal overhaul of the system of judicial appointments in England and Wales, were among the most significant constitutional reforms undertaken by the Labour government in office between 1997 and 2010. The Supreme Court, while envis­aged as a national institution of and for the whole of the United Kingdom— with jurisdiction over devolution issues as a key aspect of this—was not given authority to strike down primary legislation passed by the Westminster Parliament (save, of course, where directly effective rules of European Union law are in play). Nevertheless, Le Sueur recognises that there has been a significant increase of judi­cial power and refers to an ‘accountability toolkit' covering the variety of mecha­nisms at Parliament's disposal to provide oversight. For example, one of the more controversial issues in recent years has concerned the frequent appearance of judges before Parliamentary committees (particularly Departmental Select Committees whose primary function it is to provide executive oversight) and whether there should be an element of Parliamentary oversight of senior judicial appointments. Benefits of greater Parliamentary scrutiny of the administration of justice have included greater transparency concerning administrative performance, with the publication of infor­mation about conviction rates, sentencing decisions and spending in general.

Le Sueur concentrates on the lines of demarcation between Parliament and the courts in relation to accountability, including which aspects of the judicial system members of the legislature should be able to inquire into and the effective­ness of such inquiries. Clearly, judges are accountable for their decisions through the appellate process, Parliamentary standing orders discourage intervention by MPs in the core aspects of the judicial system, and in extremis judges may be removed by Parliament. At a general level, Le Sueur nonetheless reiterates the special importance of provisions concerning the governance of the judiciary. The Constitutional Reform Act 2005 imposed a statutory duty upon the Lord Chancellor and other Ministers of the Crown to uphold the independence of the judiciary, modifying the pre-existing constitutional position. At the same time, under the ‘soft law' concordat agreed by the then office-holders in 2004, the Lord Chief Justice stepped into the shoes of the Lord Chancellor as the head of the judiciary, with responsibility for representing judicial views to Parliament and to the government. This change, coupled with the reconfiguration in departmental responsibility for the administration of justice, has impacted directly on account­ability to Parliament under the convention of individual ministerial responsibility. Not only did the formation of the Ministry of Justice in 2007 involve respon­sibility for prisons and the courts being combined under the same departmental heading for the first time, but the Lord Chief Justice now has responsibility for maintaining an adequate annual funding settlement for the courts and the judi­cial system. Le Sueur argues that the lack of a proper legislative footing for the position of Lord Chief Justice has led to uncertainty about the office-holder's performance before Parliament. Issues of this type have added to the appearance of uncertainty surrounding the accountability arrangements for the judiciary in the United Kingdom, perhaps begging the question how far such arrangements can be free from political intervention in a system based only upon statute and common law.

The essays in Part IV, by Mark Elliott, Nicholas Bamforth, Dawn Oliver and Peter Leyland, consider the interplay between the legislature, executive and (where relevant) judiciary in contemporary constitutional accountability arrangements. In focusing on ombudsmen, tribunals and inquiries, Mark Elliott engages in an analysis of accountability mechanisms which fall outside the remit of the courts, even while they possess an investigative or quasi-judicial function and are in no sense party political. Nicholas Bamforth contrasts political and non-political mechanisms for holding legislators and legislatures to account, as well as justifications for excluding legislatures from the ordinary scope of legal review: something which serves to underpin arguments for a zone of political-only accountability, even if such accountability is in practice tinged with legal elements. Dawn Oliver inves­tigates the public service principle in relation to government, Parliament and the separation of powers. Peter Leyland focuses in particular on financial accountability in the context of devolution and the relationships, legal and political, between the various ‘layers' within the domestic constitution.

By way of background, a key aspect of the development of political accountability in the United Kingdom is reflected in the evolution of the constitutional conven­tion of ministerial responsibility in response to changes in the shape and functions of the state. Sir Ivor Jennings arguably captured the post-war consensus when he described the administrative machine as exercising three sorts of function: ‘the police functions and general external functions of the old “executive”; the regulatory functions of the Board of Trade, the Home Office, and the Ministry of Transport; and the public services provided by a collection of Ministries now too numerous to mention specifically, and the subordinate authorities connected to them'.^[45] Having explained that the law and practice of the civil service existed outside the juris­diction of the courts, Jennings was able to state that the system as a whole rarely led to serious political difficulties because of the overriding, accountability-driven constitutional convention of ministerial responsibility, which regulated the whole of the civil service. The point was that ‘Each minister is responsible to Parliament for the conduct of his department. The act of every civil servant is by convention regarded as the act of his minister'.^[46] By the start of the twenty-first century, by contrast, Geoffrey Marshall pointed out that ‘Certainly any future Dicey, record­ing the progress of the rule of law in twentieth-century Britain would be bound to conclude that the constitution underwent significant and accelerating change in the period from I960 onwards. At the midway point British constitutional arrangements could still be described as embodying a bundle of traditional doc­trines. They could be summed up as parliamentary sovereignty, crown prerogative, legislative privilege and administrative discretion. At the close of the century all of these had been subjected to a prolonged process of questioning based on the principle that no power can be absolute or unreviewable or immune from challenge in the light of rights-based principles such as fairness, equality, rationality, proportionality and perhaps some form of separation of powers'.^[47] More specifically, there has been a significant ideological shift towards economic liberalism in the period following the election of Margaret Thatcher's government in May 1979, which has resulted—whatever the official political ideology of subsequent governments—in ‘The market creed [being] extended deep into public administrations as the collect­ivist welfare state was remodelled as a market in democratic goods and the notion of choice became a fetish'.^[48] The consequences have been dramatic in relation to the structure of government, with important implications for notions of accountability. Some of these points are captured in the essays in Part IV.^[49]

The starting point for Mark Elliott^[50] in exploring accountability beyond the courts is to recognise that there needs to be an appropriate balance between legal and political control of government. He thus focuses on what might be seen as bod­ies which are charged with filling a particular ‘gap' in the accountability ‘market' in the United Kingdom. When it reported in 1932, the Donoughmore Committee rejected the idea of a system of administrative courts for England and Wales but rather sought to lay down principles for the allocation of ‘judicial' and ‘quasi-judicial' functions between courts, administrative tribunals and ministers.^[51] Further, as Sir John Whyatt put it some thirty years later in envisaging a role for a Parliamentary Ombudsman,^[52] the office holder was intended neither as a watchdog for the public nor as an apologist of the administration, but rather as an independent upholder of the highest standards of efficient and fair administration and as a guardian of good practice rather than a mere judicial combatant.^[53] It follows inexorably that any definition of accountability in relation to such an office-holder must be broad, reflecting the diversity of accountability institutions, with tribunals, ombudsmen and inquiries all performing important but somewhat different functions. In so far as it is possible to reach a definition of accountability, Elliott recognizes that it must be calibrated and its different senses identified by considering three sets of related issues which connect back to the nature of accountability: namely, the subjects that may form the focus of an accountability inquiry, the criteria or standards by reference to which such an inquiry may proceed, and the purposes that might be served by such an inquiry.

Elliott evaluates the contribution of tribunals in providing accountability in the light of the Leggatt reforms,^[54] which since their implementation have strongly emphasized the independence of tribunals. The tribunal service is now system­atized and self-contained as part of an executive agency falling under the Ministry of Justice operating at some distance from (in nearly every case) the department being held to account. It is also significant that the tribunal service, as a two-tier appellate body presided over by tribunal judges, has become more judicial in character despite being less subject to external judicial oversight. Notwithstanding this change in emphasis towards judicialization, tribunals remain distinct from ordinary courts (and the administrative court) as oversight bodies because they must deliver mass administrative justice and are capable of routinely dealing with the merits of cases as they arise. By contrast, ombudsman systems have been designed to deliver a distinct form of accountability, involving as they do an independent ‘outsider’ with investigative powers capable of uncovering routine maladministration as well as systemic failures. Elliott argues that the Parliamentary Commissioner for Administration (or ‘Parliamentary Ombudsman’), now supported by the Public Administration Select Committee, makes an important contribution to accountable government and that the non-enforceable nature of its recommendations has generally not undermined its effectiveness. Indeed, the findings of the Parliamentary Ombudsman have generally been accepted as a matter of course. Finally, the special role of inquiries (in particular judicial inquiries) is examined both in relation to their contribution to the public decision-making process and as mechanisms capable of investigating events in depth after they have taken place.

Nicholas Bamforth focuses^[55] specifically on the role of Parliament (within the United Kingdom system) and legislatures more generally. Underpinning his ana­lysis is the argument that theories concerning the roles of courts and legislatures, and more specifically legal and political constitutionalist accounts, entail certain assumptions about or explicit views concerning accountability within a democratic constitution. While public attention has recently focused on the accountability of Members of Parliament to their electors, this is only one of a range of important accountability relationships in play in connection with the legislature, and the priority one accords to each of these different relationships will tie directly to one’s background approach to legal and/or political accountability. A traditional political constitutionalist would thus prioritize accountability of the United Kingdom government to the Westminster Parliament over judicial review, whereas a legal constitutionalist would focus pre-eminently on the role of the courts.

Nonetheless, all theories about accountability rest on certain assumptions. Jeremy Waldron's work explicitly demonstrates the role of assumptions about the efficacy of legislative scrutiny when asserting the priority of the legislature over courts as an agent of accountability; once questions are raised about Waldron's assumptions, his argument looks more vulnerable to challenge.^[56] Equally, though, Ronald Dworkin's notion of (judicially-protected) ‘rights as trumps' over the actions of the legislature expressly presupposes a commitment to an anti-majoritarian conception of democracy and rights.^[57] If such presuppositions are challenged, the prioritization of judicial accountability appears more open to question. To take some practical examples, arguments supporting the placing of prerogative powers and constitutional conventions on a statutory footing presuppose the efficacy of formal rules (sometimes formal rules alone) as agents for guiding the executive, legislators and courts, whereas other theories assume that more informal techniques of guid­ance and ‘correction', where there has been an error, will work more effectively and/or desirably.^[58] Other theorists have become committed to ‘dialogue' theories of accountability. Bamforth favours such a stance, and seeks to explain debate about the accountability arrangements prevailing in relation to the Westminster Parliament—that is, arrangements surrounding ministerial responsibility and/or accountability, constitutional conventions more generally, the role of Members of Parliament in relation to their constituents, and scrutiny of executive power exercised via the prerogative and statute—by reference to it. In particular, he argues that the combination of judicial and political scrutiny of legislative proposals and exec­utive action in the anti-terrorism context provides a key—and centrally-focused— illustration of the correlation between the promotion of effective accountability and the existence of judicial and political methods working in tandem.

Dawn Oliver^[59] is concerned to examine a set of foundational principles relating to public service which underpin important aspects of constitutional conduct and which at the same time promote accountability. She defines accountability in similar terms to those used in her previous work (and discussed above), an approach which supports the idea that there is more than one single mechanism for promoting accountability and that there needs to be an appropriate balance between different mechanisms. Oliver argues that at one level, what most accountability arrangements in the United Kingdom have in common is a recognition of the need to promote a general or public interest which is seen firstly in a public interest principle and secondly in a public service principle. The latter proposes that public officials and politicians should altruistically serve the public, rather than their own interests.

A crucial point is that this form of accountability is understood as something distinct from partisan standards. One question might be how relevant public service standards are to be defined, and how they might be reconciled with the underlying political considerations which inevitably are of concern to politicians. Oliver believes that these are largely consensual standards which might be regarded as extending across governmental organisations and other public bodies. For example, the public service principles first set out by the Nolan Committee amounted to a commitment to certain values that have since been reinterpreted in codes of practice which have come to be applied in many areas of public life.^[60] The application includes recognizing the importance of ‘soft law' codes in setting out standards which might be enforced through political means (for example, by requiring the resignation of political actors). Equally, it is possible to find common law deci­sions where the courts have been prepared to uphold general duties on public decision-makers to act fairly and impartially rather than through favouring any sectional political interest. Such principles might be thought to have something akin to a constitutional flavour in so far as they promise to transcend a narrow conception of the rule of law and can come to be recognized as a set of positive principles containing the liberal democratic values of a morally unified collectivity, thereby restraining the processes by which governmental powers are exercised by constitutional actors.^[61]

While there are many accountability-related issues posed by and associated with the constitutional arrangements governing devolution to Scotland, Wales and Northern Ireland (most obviously, in relation to Scotland, the so-called ‘West Lothian Question'), one often-overlooked aspect is the tension between the general formulae applied to the allocation of funds to all devolved parts of the United Kingdom and the fund-raising powers which may now be granted to Scotland under the Scotland Act 2012. Peter Leyland investigates^[62] what this development means in terms of accountability both in regard to the functioning of traditional mechanisms for constitutional oversight at Westminster and devolved levels, and more specifi­cally in relation to the financial relationship between sub-national government and Westminster. It is suggested that the financing of sub-national government reveals an important and somewhat contradictory meta-narrative. When viewed from the standpoint of financial allocation the devolved governments have been granted a relatively high degree of autonomy as the block grant system has guaranteed funding levels above those in England and allowed each devolved administration to spend in accordance with its own priorities in policy-making. English local government, on the other hand, has been heavily constrained in its spending by repeated central government intervention through statutory rate-capping regimes and more recently under provisions requiring referendums to control rises in council tax under the Localism Act 2011.

Leyland argues that notwithstanding the ‘asymmetry’ of devolution and the absence of an ‘English’ level of democratically elected government, each sub-national system has been relatively successful in creating new forms of politi­cal and legal accountability which apply to the devolved parts of the United Kingdom. In particular, the devolved institutions have developed increased emphasis on access and participation in relation to law-making and have introduced mechanisms of rigorous executive oversight at sub-national level. At the same time, the secure funding parameters for devolution have not only provided an adequate base for its introduction, but the so-called ‘Barnett Formula’ for the block grant system has (although maligned in other respects) largely prevented the kind of haggling which remains a feature of many systems of federal, devolved and regional government around the world. Nevertheless, in the absence of both an explicit needs-based element and special oversight procedure at Westminster to provide scrutiny there have been many calls for the replacement of the current system. The Scotland Act 2012 promises to partly address such concerns by introducing a significant element of locally-raised income tax in Scotland. However, Leyland argues that a fundamental weakness of the financing of both devolution and English local government has been a failure to provide a clear relationship between the raising of revenue and the spending of revenue at sub-national levels of government.

While the three essays in Part V are focused on distinct topics—‘New Public Management’ in the case of Anne Davies, regulatory accountability in the case of Julia Black, and accountability mechanisms in relation to socio-economic rights in the case of Colm O’Cinneide—each takes earlier, more general, debates further and makes its own contribution to them. In particular, each essay deals with how accountability issues have arisen in identifiable areas of public affairs involving an interaction between established institutions and the implementation of particular policy agendas.

Anne Davies investigates^[63] accountability issues posed by ‘New Public Manage­ment’, applied by the Thatcher, Major, Blair, Brown and Cameron governments to issues demarcated as concerning ‘governance’ (a term itself linked to the mindset con­cerned). Officially, this initiative was concerned with minimizing the direct role of government by the use of private law contracts as a tool for policy delivery across the public sector, alongside the provision of efficiency and value for money for the tax­payer. In this regard, it has consequences for accountability-related arrangements such as ministerial responsibility, albeit from a different perspective from that provided by traditional defences of those arrangements. Davies agrees with the view that account­ability entails an actor taking account for his or her activities, not least when these are conducted on behalf of another. From this standpoint, an accountability mechanism in the context of New Public Management normally has to set standards against which performance can be judged, collect information about that performance, and apply incentives for good performance or sanctions for poor performance. A potential problem from the outset of New Public Management was that the contracting-out of services to the private sector severed the direct link in the chain of account­ability as it had previously existed between the department, governmental agency or local authority responsible for commissioning a service and the private/inde- pendent sector organization under a contractual duty to deliver it. The division of roles and blurring of boundaries created scope for the shifting of blame from one party to the other: something which has been highly important in terms of accountability.

Davies argues that New Public Management has continued to evolve into what she terms ‘deep NPM' and ‘post NPM' forms, and that as it has done so its var­ieties (particularly under the post-May 2010 coalition government) are becoming more complex and present a distinct set of accountability problems. Against the current background of budget cuts, New Public Management in its revised forms has involved attempts to meet objectives in innovative ways at lower cost. Davies illustrates the transition to ‘deep NPM' in the contracting-out of govern­ment purchasing tasks through a case study focusing on the use of management consultants in the National Health Service as Clinical Commissioning Groups assume a purchasing role. She suggests that accountability problems may arise here because private sector firms will be involved at all stages of the process and may end up deciding what services are going to be provided to patients. Further, potential conflicts of interest arise because the same firm that provides commis­sioning support might already be providing health care services. Davies illustrates ‘post NPM' with a case study focusing on the Localism Act 2011 and attempts to progressively remove services from local authorities and transfer them to citizens, community groups and businesses so as to provide more responsiveness. This, she argues, promises to have equally far-reaching implications for accountability, for it is likely to transform the traditional role of elected local government while simultaneously consolidating the position of central government in relation to the allocation of local government finance for such services as remain. Davies's essay thus demonstrates the importance of empirical analysis to conceptual argument concerning ideas of accountability in a jurisdiction's practices of government.

Regulation might be thought to provide a particular illustration of a tension relating to accountability seen in many areas of constitutional study: namely, how the possibility of conflict between accountability as something designed to protect and serve the individual citizen or other actor and as a vehicle for implementing controls over them is to be managed. Governments of different political complexions have argued that regulation is bad for business and that progressive deregulation should be promoted, while also believing that the enforcement of regulation in a positive sense will help to protect consumers, businesses, workers and the environ­ment. Regulation has been identified as the target of some policy objectives by contemporary government and as a key instrument for achieving others. In what Carol Harlow and Richard Rawlings have identified as the rise of a ‘regulatory state', regulation is regarded as being of first importance in the functioning of the economy, and with the economic failings of recent years regulatory failure has

become a topic of contentious political debate.^[64] Julia Black's essay^[65] thus considers accountability against the background of shifting priorities within the regulatory landscape. She focuses on the political mechanisms for calling independent regu­latory agencies to account in order to assess regulatory accountability—or what she calls the conflicting logics of different accountability demands—more generally. She suggests that accountability is now embedded in a multi-stage process involving day-to-day interactions between regulators and those subject to regulation, but also with scope for Parliamentary involvement. The picture relating to regimes of regulation is often one of considerable complexity. Not only has the core execu­tive established overlapping regulatory bodies, incidentally begging the question of who regulates the relevant regulators, but also, given the European Union dimension in the domain of regulation, the framework of accountability has to contend with the demands of multi-level governance.^[66]

Colm O'Cinneide^[67] is concerned with the role of law in promoting social justice, and more particularly with the limited extent to which legal accountability mechanisms currently make it possible for individuals and groups to seek social justice through public law. In common with Allison, O'Cinneide traces the growth of legal accountability in the twentieth century, and furthermore draws attention to difficulties now facing classic political accountability mechanisms due to phenomena such as globalization and privatization. While legal accountability does not compensate for the deficiencies in political accountability, he suggests that there is at least now an expectation that public bodies will be subject to a range of legal controls.

O'Cinneide concentrates on the ‘corrective' rather than the ‘distributive' function of legal accountability. He suggests that its reach is thought to be curtailed in the area of social justice, being concerned to ensure that existing rules are adhered to rather than a fair outcome secured. In practice, courts and tribunals play a consider­able role in relation to social welfare, housing and education, but such interventions tend to focus much more on matters of procedure than on those of substance. There is considerable evidence, seen in the drafting of primary and secondary legislation, of Parliamentary concern to limit judicial involvement. The courts themselves have also been deferential in cases involving socio-economic issues, including in relation to defining the scope of any rights recognized as being in play in an individual case. As O'Cinneide points out, however, there have been limited counter-examples in which litigation has proceeded successfully, one area in which legislation has made provision for legal challenges being in relation to the positive equality duty imposed on public bodies.

O'Cinneide concludes by suggesting that current public law orthodoxy fails to offer convincing reasons for the general exclusion of scrutiny by courts of resource-allocation decisions. Courts are regularly and inevitably involved with such decisions across a range of areas, making it impossible convincingly to argue that they should aim to steer clear of these within public law. The wholesale judicial determination of budgetary questions may be illegitimate, but that is a different mat­ter from questions of individual rights where resource implications are relatively well-defined. The argument that such issues are polycentric and thus unsuitable for judicial resolution is also undermined by judicial intervention in polycentric issues in areas such as tax law. In addition, the general exclusion of social justice issues leaves members of marginalized groups, generally those who are most in need of support, without a means of resolution in complex cases or without a remedy in the face of bureaucratic wrongdoing. The arguments in favour of retaining the official status quo—that is, in maintaining political rather than legal accountability in decisions affecting social justice matters—is thus increasingly questionable, and may come under still greater pressure due to the influence of the European Union Charter of Fundamental Rights.

In discussing these issues, O'Cinneide returns us to many of the questions considered by Fredman and by Allan, among other contributors to this collection. At a more general level, all three essays in Part V raise questions about the proper role of law in relation to accountability: answers to which, as noted earlier, must depend upon one's underpinning theories of democracy and rights.

C.