Introduction: the purposes of accountability in the UK constitution

In this chapter¹ I wish to develop a hypothesis about the purposes—or one of the purposes—of public accountability mechanisms as they operate in the United Kingdom. Discussion of accountability commonly revolves around ways in which public office-holders (including Members of the two Houses of Parliament and of the government, and other elected people—for instance in the devolved bodies and in local authorities, civil servants, local authority officers, police officers and others exercising public functions) are answerable to public bodies of various kinds or to the electorate: officials to the courts; ministers to Parliament and the elector­ate; civil servants to ministers; public authorities to ombudsmen; local authorities to their electorates.

We do not often ask exactly why a web of accountability mechanisms exists in a democracy such as the UK; what good the mechanisms are supposed to achieve; what evils they are supposed to avoid; or whether the wide range of established and approved accountability mechanisms have anything in common.

We know that election of members of the legislature and the executive is not enough to produce and maintain a well-functioning democratic system in which the rule of law is observed, human rights and civil and political liberties are respected, and it is accepted that no party or government has a monopoly of wisdom; ie. that authority is not enough and justifications for action may be expected^[1034]—these being the essential elements of a liberal democracy, in my view. Without appropriate (and appropriateness is crucial) accountability mechanisms, election alone could produce imprudent, partisan, sectarian, discriminatory, illegitimate, corrupt govern­ment that would be inconsistent with the very concepts of democracy and the rule of law. And access to the courts alone cannot protect us from bad government. Further mechanisms of accountability are required. I shall suggest that what most accountability arrangements in the UK have in common is recognition of the need to uphold two important constitutional principles: public bodies should seek to promote the general or public interest and not sectional or partisan interests (the public interest principle); thus, they should serve, altruistically, the public and not their own interests (the public service principle). These principles are elaborated in the next part of this chapter. While I am focusing on the UK system in this chapter, in fact these principles are commonly included in the constitutional texts of western democracies.^[1035]

Some concepts need to be clarified before we can proceed. First: accountability. I have sketched the meaning of accountability in the first paragraph of this chapter. In exploring the workings of accountability mechanisms in the context of the British constitution and the public service and public interests principles, we need to be aware that ‘accountees’ vary widely: many of them are expected, and consider their role to be, to promote public interests rather than sectional or sectoral interests.

Of course, politicians are liable to focus on short-term rather than long-term prob­lems and their solutions, or on winning or retaining votes in the next election. They may lack expertise where it is needed and they may panic in emergencies or when faced by heavy public pressure. The system in the UK therefore involves many non-party politi­cal or expert bodies—executive agencies and quasi-autonomous non-governmental organisations (Quangos)—which work under mandates (framework documents in the case of executive agencies, statutory or other legal mandates in the case of many Quangos) which spell out the public interests and how they should be weighed against one another, or against sectional interests. Given the inevitability of differences of opinion as to how conflicting public interests are to be weighed in particular instances, safeguards are to be found in the public servant's duties under the Nolan Committee's Seven Principles of Public Life —selflessness, integrity, objectivity, accountability, openness, honesty, and leadership^[1036]—and their ‘enforcement' via, for instance, rights of access to information under the Freedom of Information Act 2000, the possibility of judicial review (as is illustrated by some of the cases discussed below), and a whole range of other accountability mechanisms.

Thus, ministers are accountable to the Prime Minister, and the Prime Minister is responsible/accountable to the House of Commons in relation to his ministers' performance (since he alone can dismiss them).

The votes of the electorate at election time respond to the record of the incumbent government: elections are accountability moments. Individuals may exercise their votes in accordance with their own interests, but the assumption is that the aggregate of individuals' votes will reflect or promote the general interest and the public service principle. And—very importantly—sections of the public to whom informa­tion about the work of officials is disclosed, whether by the press or on freedom of information requests or in other ways—will articulate the standards they expect of public bodies: criticisms may well result in resignations—as when a number of MPs resigned or did not stand for re-election in the wake of the ‘sleaze' scandals of 1995 and the MPs' expenses scandals of 2009.^[1039]

It should not be assumed that the principal role of accountees is to criticize their accountors. They may need to support them. The National Audit Office is supported generally by the House of Commons Public Accounts Committee, though it may be criticized by government departments. The Parliamentary Ombudsman is supported by the House of Commons Public Administration Select Committee and criticized by ministers. Thus, if accountors are to do their jobs well, they may need the support of their principal accountees when faced with, for instance, public or political criticism.⁷ Thus, accountability is commonly owed to a number of accountees—in these examples to the Prime Minister, to Parliamentary Committees, to ministers, to individual complainants, and to the general public.

In the next two parts of this chapter I shall expand upon the elements of the public service and public interest principles and how they are ‘enforced’ and implemented, legally, politically, and socially in the UK. In Section D I shall discuss wrong kinds of accountability. My argument will be that if accountability mechanisms undermine rather than uphold these principles, the legitimacy of state bodies in the UK will be weakened and problems of corruption are likely to arise; and that such develop­ments undermine or destroy the workability of the UK’s constitutional system. The history of Northern Ireland during much of the twentieth century provides an illustration of this point.

In Section E I reflect on some of the implications of this line of argument and develop my hypothesis that the principles of public service and public interest are foundational in the UK, and in fact in other liberal democracies; more so even than what are often called ‘fundamental’ principles such as—depending on the country— a Bill of Rights, direct or representative democracy, parliamentary sovereignty; even legality. These principles, I suggest, have been developed in large part to promote the public service and public interest principles and not, as may be supposed, the other way round.

B.