Summary and prospects
Although there is a far wider array of accountability actors than those considered here, calling regulators to account is a challenging exercise. As we have seen, the key challenges are five-fold: notably the scale and scope of the regulatory landscape; the number and relationship between the different bodies involved (and their propensity to blame-shift); the technical complexity and contestability of the regulatory task; the opacity of regulatory processes; and the willingness of the accountee to be called to account.
In addition, as we have seen, not only are the lines between independence, accountability and control often blurred, the roles of organizations which are acting as accountors can also be fluid. A consumer panel may play the role of engaged participant in the regulatory process as well as that of ex post accountor of that regulator’s activities; parliamentary involvement can demonstrate similar fluidity of roles, particularly if Parliament is determining the budget of the regulatory body. As noted at the outset, the difficulties in answering the question of ‘who guards the guardians’ are further compounded, if the ‘guardian’ is an active participant in the very processes it is seeking to guard.Moreover, the capacity of different actors to call regulators to account is highly variable. There has been no ‘grand design’ of the current political structures of accountability; rather, each has evolved and continues to evolve. Parliament, for example, has a strong institutional position as accountor, but its capacity is limited and it has struggled to organize itself in such a way as to perform a systematic and ongoing accountability function with respect to the ‘regulatory state’. In contrast, the institutional position of the NAO can at times seem confused, with both Parliament and the government arguing that the NAO is acting for it, but its capacity to engage in the forensic investigations and technical analysis which are the necessary bedrock of any accountability process is significant.
In an ideal world, the weaknesses in the institutional position and accountability capacity of one accountor would be compensated for in the strengths of another. But whilst there are some areas where this is so (such as the role of the NAO in supporting Parliament’s capacity to call regulators to account), gaps still exist.Other issues also remain: although there are signs that accountors are recognizing the significance of the EU in setting the agenda, and in some cases the structures and processes, of regulatory agencies, this recognition has been too slow in coming, and accountors risk calling regulators to account for decisions over which they have little control, or in finding that their role has been displaced by EU organizations.[1399] The lack of clarity over responsibilities for setting strategic objectives or for handling crises remains. The accountability problems raised both by ‘many hands’ and by ‘no hands’ can be acute. Concerns remain as to the ongoing effectiveness and impact of parliamentary mechanisms of accountability, despite some successes in Parliament’s reforms of its internal operations. As for accountability on behalf of consumers, there are real risks that the current proposals to reform consumer advocacy will prove to be yet another reform which is ill-thought through, ill-costed, will bring no real benefits, and indeed could severely weaken regulatory accountability to citizens and consumers.
However, regardless of how well-designed a system could be, or how capacities could be enhanced, the political accountability of regulatory agencies will always be complex and contested. Regulators operate in a broader context of multi-level and polycentric regimes in which responsibilities are widely dispersed, even at the national level. Furthermore, the core executive will continue to try to play a double game of delegation and control with respect to regulatory agencies, and to blur responsibilities whenever convenient to do so.
It will always be the role of accountors to police the boundaries between the independence of regulatory agencies and their control by either the executive or industry, for that is not something that can be left either to the government or the agency themselves, but in so doing the role of accountors can sometimes blur into one of engaged participant. However, it should not be surprising that accountability relationships that regulators have with their accountors are complex, that accountability can be challenging or difficult for both accountors and accountees; or that roles are shifting, that lines are blurred, and that values are contested and contestable. It is the nature both of the relationship and the task of accountability that these tensions will exist, and it is right that they do, at least up to a point. Unless those tensions start to have pathological effects on the agency itself, they need not be a bad thing. For without those tensions, both regulators and their accountors will become complacent, which will be to their detriment as well as ours.