Introduction

Since their inception, the accountability of independent regulatory agencies has been of concern to scholars of public law and political science. Writing in the 1930s in the context of the United States, Landis observed that the literature ‘abounds with fulmination’ at the ‘inappropriate’ combination of legislative, judicial and executive functions within regulatory agencies and their lack of accountability.¹ Some eighty years later, a House of Lords committee commented, ‘The question of who regulates the regulators has not been answered and will not go away.’² In the interim, considerable energy has been spent by scholars on analysing what accountability is,³ and in developing frameworks of analysis, typologies of mech­anisms, and categorizations of goals.⁴ Accountability, it has been said, is an ‘ever expanding concept’.⁵ It is also a Goldilocks one: for accountability can be argued to be too little, too great, but rarely just right.⁶ So whilst there are observations that accountability demands are counter-productive or subverted, prevent the agency from performing its role effectively^[1265], or create cultures of blame,^[1266] others (usu­ally the majority) argue that accountability of independent regulatory agencies is deeply inadequate.^[1267]

This chapter does not attempt to evaluate the accountability of UK regulatory agencies across all the different dimensions of accountability, not least because it is not clear what success would look like.^[1268] Instead, it explores the current operation of the political mechanisms for calling independent regulatory agencies to account in the UK (or more specifically in England and Wales, where regulatory functions are devolved).

Problems of accountability are exacerbated by the fact that all UK regulators sit within the multi-level governance structure of the European Union. Significant elements of the regulatory requirements that they have to implement are written at EU level. EU Regulations and Directives can also contain quite prescriptive requirements on regulatory processes, for example the number of inspections that have to be performed in areas such as food safety, medical devices and environmen­tal regulation; they also in some areas stipulate the governance and funding struc­tures of regulatory agencies themselves, notably in the areas of telecommunications and energy regulation. In turn, those requirements can emanate from international regulatory bodies, which can themselves impose requirements as to the content of

356 Calling Regulators to Account: Challenges, Capacities and Prospects regulatory provisions and the nature of regulatory structures.^[1271] As a result, there can often be a mismatch between the national-level accountability structures and the EU or international-level locus of decision-making. And with neither national government nor regulators accepting responsibility for critical aspects of regulatory decisions (on the basis that those decisions are for the other to make, or for neither to make because they have been made elsewhere), trying to pin down responsibil­ity can be akin to trying to catch a will o' the wisp: an image of apparent solidity which recedes and dissipates as it is approached.

There are numerous ways in which discussions of accountability can be organ­ized — by goals, mechanisms, institutions — and each mode of organization serves a different purpose. The aim of this chapter is to explore accountability by looking at the significance of capacity and institutional position in an organization’s ability to call a regulatory agency to account, ie. to act as ‘accountor’. These concepts are explained in the first section. The second section builds on this analysis to explore some of the key challenges facing the accountors in performing their role. It also looks at some of the strategies regulators have adopted to manage their legitimacy, often ‘going beyond compliance’ with their formal accountability requirements. The third section then focuses on recent developments in the roles of the four main accountors in the political domain in turn (the core executive, Parliament, the National Audit Office (NAO) and consumer panels), exploring their relationships both with the accountees (the regulators) and with other bodies which are calling those regulators to account, noting throughout how accountability relationships can turn to blame games in times of crisis. The fifth section concludes.

B.