Concepts of accountability in the constitution
Ideas of accountability play a prominent role in contemporary discussions of constitutional law and practice, and politicians, judges and other actors tend frequently to claim, whatever the substantive viewpoint or proposal which they advocate, that more or better accountability is their end-goal.
Mark Bovens notes that ‘what started as an instrument to enhance the effectiveness and efficiency of public governance, has gradually become a goal in itself’, and ‘an icon for good governance’ on both sides of the Atlantic.[2] According to Elizabeth Fisher, ‘Accountability has become a cherished principle and its importance is [nowadays] being stressed in everything from the provision of public services to criminal justice to transnational governance regimes. It is the ultimate principle for the new age of governance in which the exercise of power has transcended the boundaries of the nation state. It is a pliable concept that can seemingly adapt to novel modes of governing while at the same time ensuring such modes are legitimate'.[3] Anne Davies is clear that ‘Accountability is a central value of modern constitutions'.[4] In relation specifically to the United Kingdom, Dawn Oliver has suggested that concerns about securing accountability ‘became an issue in politics' in the 1970s, focusing in particular on the government's accountability both to Parliament and to the electorate, and have maintained a central role since then.[5] Colin Scott suggests that from the mid-1980s, ‘public lawyers have paid more attention to accountability mechanisms going beyond the parliament and the courts, including grievance-handling, audit and internal review', but have subsequently been faced with greater challenges due to the impact on public administration of New Public Management, with its focus on strategy and economic impetus rather than constitutional constraints.[6] Carol Harlow takes this further, arguing that in the United Kingdom, ‘with its current reliance on regulation as a technique of administration, accountability has become something of a fetish'.[7] The most recent sense of accountability is dominated by ideas of audit (associated with New Public Management) and punishment: ‘the essential features of every administrative programme are reduced to numbers and evaluated, and every administrative action scrutinized with a view to allocating blame and censure. Transparency has been taken to extreme lengths, and has become a weapon with which the media presses incursions into private life, howling for punitive action and seeking exaggerated redress for the simplest of errors. With this has come a change in public-service values: from public service to management, economy, and efficiency, from trust and discretion to rules and regulation, and above all to quantifiable criteria'.[8]Against this background, Fisher's reference to ‘novel modes' could be felt to have particular resonance. Calls for greater or better accountability have seemingly been fuelled by the expanding opportunities presented by the development of the internet for rapid governmental responses to events, for inter-governmental cooperation, and for public discussion of politicians and government (a point related to the development—in the United Kingdom, at least until very recently—of an increasingly close relationship between politicians and other public servants and the broadcast and print media, coupled with occasional disquiet as to the actions and approaches of journalists8). Alongside the rise of New Public Management, the period since the late 1980s has seen the ‘hollowing out' of government activity in the United States and the United Kingdom, with central government focusing increasingly on overall policy formation while agencies or privately-owned contractors take responsibility for areas of its execution, sparking debate about how the emerging arrangements can operate in a properly accountable fashion.9 As Carol Harlow has observed, ‘The public wants to know how it is governed; it wants in particular to know how public money is spent and to receive assurances that it has been well spent'.10 This observation might be applied with equal force, in the contemporary constitutional landscape, to any level of government.
The notion that at least some constitutional actors should be accountable for their decisions and actions is nonetheless an old one.
While it may have been assumed, in an age of inherited headships of government, that individuals were accountable to the overlord or dynastic ruler currently in power, the Enlightenment brought with it the idea that legitimate government was conducted, even if not directly by the people, then nonetheless in their interest and ultimately for their benefit.11 The loose idea that government should properly be conducted in a fashion that was accountable to the general population emerged alongside the gradual extension of the franchise in northern and western countries, and it is hardly novel to employ accountability-related ideas in constitutional law, as well as in relation to the administrative and other legal liability of public bodies and to processes of political and public scrutiny of office-holders. As commentators note, however, ambiguity and uncertainty have long surrounded the meaning and reach of the term.12 Discussion of accountability begs the question concerning what it means to be ‘accountable', which parties an accountability relationship might or must exist between and in relation to which issues, and the sanctions which should be attached to an actor's failure to behave in an appropriate fashion, however this is defined.13 Furthermore, whether accountability should be policed through the law, through political channels, or through some combination of the two, can be a matter for debate both generally and from situation to situation.the incursion of accountability concerns into the private sphere: Fisher ‘European Union’, n 2 above, 499—500, 504; see also Scott, ‘Accountability’, n 2 above, 39-41.
8 Most recently in the United Kingdom, see An inquiry into the culture, practices and ethics of the press: report (London:The Stationery Office, 2012), chaired by Lord Justice Leveson.
9 See eg. D Oliver and G Drewry Public Service Reforms: Issues of Accountability and Public Law (London: Pinter, 1996), ch 1; Scott, ‘Accountability’, n 2 above, esp.
44-60; D Woodhouse, ‘The Reconstruction of Constitutional Accountability’ [2002] 73 Public Law.10 Harlow, Accountability n 6 above, 2. Note also Scott’s critique of arrangements at domestic level: ‘Accountability’, n.2 above, 44-8.
11 See, generally, Bovens, ‘Analysing and Assessing’, n 1 above, 448-9; Scott, ‘Accountability’, n 2 above, 39; Harlow, AccoHntability, n 6 above, 14-15.
12 Eg. Oliver and Drewry, Public Service Reforms, n 9 above, 3; Bovens, ‘Analysing and Assessing’, n 1 above, 448, 449.
13 See esp. Scott, ‘Accountability’, n 2 above, 41-2 ff; Bovens, ‘Analysing and Assessing’, n 1 above, 450-5; Fisher, ‘European Union’, n 2 above, 497-8.
At a conceptual level, Oliver has suggested that accountability is associated with responsibility, transparency, answerability and responsiveness, that it is ‘explanatory and amendatory' insofar as it is associated with ‘being liable to be required to give an account or explanation of actions and, where appropriate, to suffer the consequences, take the blame or undertake to put matters right if it should appear that errors have been made',[9] and that it is an ingredient of good governance.[10] Since decision-makers are not infallible, they are required in a liberal democratic polity to justify their acts, provision being made for redress when things go wrong. Oliver argues that accountability ‘furthers important objectives. It is supposed to promote openness, effectiveness, and public participation, and it is part of the system for safeguarding an uncorrupt system from corruption'.[11] Accountability mechanisms are central to such concerns,[12] and Oliver distinguishes between four types of mechanism in constitutional terms.[13] First, political accountability is owed to politicians, encompassing ministerial accountability to Parliament (in the United Kingdom) or local authority accountability to central government and Parliament. Under this mechanism, accountable actors and bodies are exposed to possible political censure and electoral risk, with political costs sometimes being exacted at a personal level (for example, via the forced resignation of a minister) if performance falls below the expected standard.[14] Secondly, public accountability is owed to the general public or interested sections of it.
Most obviously, elected national and local politicians are politically obliged to explain and justify their actions to electors, with political penalties to be paid at the ballot box if an adequate account is not offered (indeed, the widest sense of accountability might be thought to be linked to the electoral process).[15] Thirdly, public bodies are legally accountable to the courts as an aspect of the rule of law, being obliged to demonstrate a legal justification for their actions if sued and to make amends if they are found to have acted unlawfully.[16] Carol Harlow has also associated legal accountability, in the European Union context, with proportionality review (given that it requires administrative measures to be appropriate as well as necessary to achieve the desired objectives) and, within limits, with requirements of due process (given that these encourage transparency in decision-making).[17] Fourthly, public bodies are sometimes accountable to non-political governmental bodies such as ombudsmen and public sector auditors, to whom explanations must be provided for their conduct.[18] As Elizabeth Fisher perhaps unsurprisingly notes, a ‘resulting impression from reading these categories... is that accountability is a series of tools and to make any governing system “better” requires identifying and utilizing the right types of accountability'.[19]Although Anne Davies has suggested that the fact that government acts on behalf of others ‘is closely linked to the particular emphasis placed in public law on the concept of accountability',[20] Colin Scott argues that public lawyers have generally drawn ideas of accountability somewhat narrowly, relating them to the duties formally owed by one specific set of public bodies/actors to another specific set.[21] Whether or not this is correct, Richard Mulgan, a specialist in public policy rather than public law, has advanced the most visibly narrow definition of relationships which concern accountability, warning that ‘accountability threatens to extend its reach over the entire field of constitutional design' if its ambit is not properly controlled.[22] Mulgan characterises the ‘central sense' of accountability as ‘external scrutiny', this being ‘only one type of institutional mechanism for controlling governments and government officials'.[23] Other types of control exist—constitutional constraints and legal regulations—but these should not be described as accountability-related.
In logic, ‘being accountable for alleged breaches of the law does not mean that compliance with the law is also an act of accountability or that the law itself is an accountability mechanism... in the core sense. The main body of the law, which most public servants follow as a matter of normal practice' is, according to Mulgan, ‘an instrument for controlling their behaviour but not for holding them accountable'.[24] Accountability need not include every mechanism—for example, judicial review, the separation of powers, federalism or the rule of law— which helps control government power. Instead, legal accountability ‘is confined to that part of the law which lays down enforcement procedures’, with the main body of law serving as an instrument for controlling the behaviour of public servants rather than for holding them accountable.[25] On Mulgan’s narrow view, only institutions such as audit offices, ombudsmen and administrative tribunals are properly described as institutions of accountability, given that their ‘primary function is to call public officials to account’.[26] Other institutions, including legislatures, may adopt an accountability role, but it is not their exclusive or primary purpose (within a legislature, accountability is associated with Select Committee inquiries and the questioning of ministers, but legislatures also perform other central functions, including passing legislation). Similarly, while holding government officials to account for their actions is one important function of courts, it is not necessarily a defining role of the legal system or of courts in general.Debate thus exists about the range of relationships which should properly be categorised as concerning accountability. A separate but related issue concerns which form(s) of accountability should be prioritized. Dawn Oliver notes that ‘[t]he question of to whom accountability is owed is often crucial, as is the design of the mechanisms of accountability, to the good working of the constitution. Choices have to be made about the balance between the different forms of accountability—whether legal accountability is to be preferred to political accountability, or whether a number of forms of accountability can operate in parallel’.[27] Anne Davies associates political accountability with the government’s accountability to Parliament for the merits of decisions, and legal accountability with the standards applied by courts to test the legality of such decisions. She also emphasizes the importance, in the constitutional setting, of accountability to the public, whether through the ballot box or participation in the decision-making process.[28] Different forms of accountability—accountability being tied (on this view) to the promotion of the public interest and the justification by public bodies of their actions, to the modification of policies which turn out not to have been well-conceived, and to the making of amends where there have been mistakes or misjudgements— may have advantages and disadvantages in different contexts,[29] even if the term ‘accountability’ might at the most general level be associated with matters of institutional design relating to the ‘rule of law’ values involved in democratic government. Debates about the meaning of accountability are crucial to furthering such values at both macro- and micro-levels and thus play a large role in many of the essays in the present collection, as does the distinction between different forms of accountability.
Nonetheless, as is evident from Richard Mulgan's arguments, some theorists are concerned about the potential looseness of accountability language, and have called for proper controls to be imposed upon its usage. Mulgan himself notes that it is ‘now a commonplace' that ‘ “accountability” is a complex and chameleon-like term' which ‘crops up everywhere performing all manner of analytical and rhetorical tasks and carrying most of the major burdens of democratic “governance” (itself another conceptual newcomer)'.[30] Mark Bovens suggests that accountability ‘is one of those golden concepts that no one can be against', while being ‘a very elusive concept because it can mean many different things to different people'.[31] It is ‘one of those evocative political words that can be used to patch up a rambling argument, to evoke an image of trustworthiness, fidelity and justice, or to hold critics at bay.... As an icon, the concept has become less useful for analytical purposes, and today resembles a dustbin filled with good intentions, loosely defined concepts and vague images of good governance'.[32] Carol Harlow talks of its ‘current catch-all meaning',[33] the practical implication being that accountability might be seen, alternatively, in an all-things-to-all-people sense, in narrowly audit-focused terms, or by prioritizing the political.[34]
Given the range of contexts in which the term ‘accountability' is now used, concerns of the type just articulated may to some extent be inevitable. Nonetheless, it is clearly important—in order to avoid undue ambiguity in constitutional analysis—to keep them fully in mind when considering how ideas of accountability are defined and applied, and when asking whether they play a valuable role. This point certainly applies when considering the essays in the present collection.
B.