The merits of unelected accountability

This post introduces the concept of accountability as an important constitutional goal and sets up some of the key materials on the topic for more detailed reading. The post summarises some of the key arguments for non-majoritarian forms of accountability ie accountability outside the democratic process.

The importance of accountability

Given its impact on members of society, the exercise of public power must be conditional upon the successful delivery of public expectations if government is to be stable. In turn, this ongoing demand of the citizenry to be appropriately governed leads to a perpetual struggle for accountability.

Accountability might be said to include the pursuit of the following aims:

1. Prevention of abuse, corruption and misuse of public power;

2. Assurance that public resources are being used in accordance with publicly stated aims and that public service values (impartiality, equality, etc) are being adhered to;

3. Improvement of the efficiency and effectiveness of public policies;

4. Enhancing the legitimacy of government and improving public trust in politicians and political institutions;

5. Lesson learning and preventing the recurrence of past mistakes;

6. Providing a fulfilling or carthartic or healing societal function; and

7. Achieving clarity in terms of where errors occurred within complex policy networks. (M. Flinders (2008), Delegated Governance and the British State: Walking without Order, 169-70)

(For further discussion see Bovens, M., ‘Analysing and Assessing Public Accountability’, Eurogov Paper No.C‐06‐01 (2006); BOVENS, M., SCHILLEMANS, T. and HART, P. ’. (2008), DOES PUBLIC ACCOUNTABILITY WORK? AN ASSESSMENT TOOL. Public Administration, 86: 225–242; Mark Bovens, ‘Two Concepts of Accountability: Accountability as a Virtue and as a Mechanism’ West European Politics Vol. 33 , Iss. 5, (2010), 947-967).

 

The limitations of the political constitution

At the heart of liberal theories of constitutional law is a commitment to democracy. This commitment is the driving force behind advocates of a constitutional design approach that maximises the input of the political process (for a summary see this post). There is, however, a rich vein of constitutional theorising that is sceptical of the capacity of democracy, unchecked, to secure the best outcomes for a society (however we may conceive such outcomes), including the goal of accountability. The legitimate goals of a liberal democratic constitution are beyond the reach of this post, but consider this famous quote by James Madison in the Federalist papers (1788):

But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed: and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

The riddle Madison, and many others, have set out to resolve is how to control the exercise of public power. The limitations of the democratic process for this purpose is that it is driven by representative politics, designed to secure power for a dominant majority, or more often than not a dominant minority. For instance, see E. Rubin, 'The Myth of Accountability' Michigan Law Review, Vol. 103, No. 8, 2005, p. 2079.

[I]ntermittent, highly contested elections are simply very poor devices for holding a person accountable. Most electoral democracies present the voters with only two or three realistic choices, which means that a multitude of issues must map into a small decision set. This is the result of party politics, a feature of democracy that generally develops outside the constitutional structure but is just as central to its operation as the constitutional provisions. A small decision set means that even perfectly informed voters must make their choice on the basis of the few issues they regard as most important and then accept their representative's decisions on the other issues, whether they approve of her decision or not.

A political design which distributes power between the legislature and an executive helps tackle the problem of control in between elections by establishing a process and a political opposition with incentives to call power to account. But the ability of the legislature to call administrative action to account is inherently compromised by an inequality in knowledge, capacity, time and competence in favour of the executive (Bruce Stone, (1995) ‘Administrative Accountability in the ‘Westminster’ Democracies: Towards a New Conceptual Framework’ Governance vol.8(4) 505-526 ). These in built barriers to accountability exist even before the additional complications of political allegiances between the legislature and the executive are factored in.

The constitutional pursuit of unelected forms of accountability

[C]ontrolling bureaucratic discretion and enforcing political accountability are not problems that can be solved once and for all. Each new generation of scholars and practitioners is forced to grope for solutions appropriate to the ever-changing context in which the problem arises. (G. Majone, Controlling Regulatory Bureaucracies: Lessons from the American Experience (EUI working papers, SPS no. 93/3, 1993), p.1.).

What has happened in the period of time since Madison and Montesquieu argued for a separation of three key institutions of the state is that both the scale of government and our expectations of government have increased. Accordingly, the constitution and the institutions within it have had to respond to retain the ‘allegiance of the public’ (E. Carolan, The New Separation of Powers: A Theory for the Modern State, (Oxford: OUP, 2009, 11). One aspect of this process has been the creation of a series of accountability institutions operating with significant degrees of autonomous power. At the same time, less hard-edged and context dependent standards, such as good governance and ethical behaviour, have become common-place in constitutional discourse.

This process of constitutional design has been captured by the fire watcher/ fire fighter analogy. Thus  the political branches, aware of their limitations, have been incentivised to build into the administrative process a series of procedural safeguards which, along with the input of civil society, create the possibility of ‘fire-alarms’ going off to alert politicians of the need for action and/or facilitate alternative remedial processes such as judicial review. Such processes use multiple forms of fire watchers (unelected watchdogs, private citizens, businesses and public interest groups) to highlight problems in administrative action. In turn these processes reduce the need for the legislature to invest considerable energy in carrying out active surveillance of the regulatory state and arguably more accurately identifies problems (Matthew D. McCubbins and Thomas Schwartz, ‘Congressional oversight overlooked: Police patrols or fire alarms,’ (1984) 28 American Journal of Political Science 165).

The use of fire-watching tactics goes further than allowing the political process to take advantage of the rule of law, with additional accountability processes being built into governance regimes. A series of generalised linked rationales for accountability institutions can be identified.

First, the independent review of contentious government decisions or actions is often essential to satisfy demands from the public for the veracity of any ex-post account of the event under scrutiny and the appropriateness of any conclusions drawn. In such circumstances, unlike either the legislature or the executive, where an accountability institution is established autonomously it is capable of building up the degree of credibility and independence necessary to secure such a satisfactory objective factual account.

Second, for the legislature to place reliance upon judicial review or alternative legal processes as the only ‘fire alarm’ mechanism to identify wrongdoing in the public sector, leaves open the risk that there is no realistic possibility of anyone bringing the case (or raising the fire alarm) in the first place. This suggests the residual need for some form of permanently established process of oversight if control is to be effective, a function for which the legislature will not always be best placed or equipped to fulfil.

Third, the judicial review process is not always one which is well equipped to undertake a rigorous scrutiny of an issue within which the underlying facts are disputed or uncertain. For instance, in the UK the judicial review process has been largely confined so as to resolve legal questions and not to interrogate or uncover facts. Alternative scrutiny routes may, therefore, be required to establish an independent account of the facts.

Fourth, and linked, in terms of scrutiny the courts are compromised by the constitutional expectation that they should not enter into policy based discretion and hence largely confine their investigation to matters of law. Where the dividing line should be drawn is unclear and the subject of much debate (see this post). Nevertheless, such pressures tend to create for conditions of deference towards the political branch. Yet the practical impact of policy is capable of being evaluated by other non-legal means eg tested against financial or good administration standards. Provided that ultimate decision-making authority rests in the political branch of the constitution, these other means can provide valuable insights into the operation of government that assist political decision-making and scrutiny.

Fifth, there is a limit to the physical capacity, including time, knowledge, skill and possibly inclination, of both the courts and the legislature to undertake all aspects of the scrutiny process. By contrast, accountability institutions can be established with the relevant resources and expertise to perform certain functions of scrutiny which are difficult for either the legislature or the courts to perform.

Finally, not restricted by the boundaries of the legal technique, other fora may have more appropriate skill sets with which to undertake scrutiny than either the courts or the legislature. These skill sets may include different techniques and superior knowledge of relevant background information and applicable standards. Given sufficient encouragement, the added insight that accountability institutions can bring through their access to different skill sets and investigative capacity can add to the scrutiny and development of good policy making ex ante as well as controlling it ex post.

 

Conceptualising the constitutional position of unelected institutions

There are strong arguments, therefore, that it is insufficient to conceive of accountability as an enterprise in upholding politically inspired values and the law alone, for not all the standards publically sought after fall comfortably within the political and legal realms (Buck, Kirkham and Thompson, (2011) The Ombudsman Enterprise and Administrative Justice (Ashgate), ch 2 (available electronically through the library website)). Further, bodies such as audit offices, ombuds, electoral commissions, information commissioners are employed to verify independently the fulfilment of widely agreed constitutional expectations of government that are not best or completely protected through narrow versions of the rule of law and the courts. The distinct importance of this function has led a series of observers to conceptualise their collective role as an integrity branch of the constitution (Spigleman, J. ‘The Integrity branch of government’ Australian Law Journal, Vol. 78, No. 11, p. 724, 2004; Field, C. ‘The Integrity branch of government’ Lecture to La Trobe University).

An alternative approach is simply to map existing governance regimes in order to comprehend what appropriate control mechanisms might be required to cover those arrangements. This approach understands the existing governance set-up as composing of a series of complex networks of power implementation and power control (eg Scott, C. ‘Accountability in the Regulatory State’ JOURNAL OF LAW AND SOCIETY, VOLUME 27, NUMBER 1, MARCH 2000, pp. 38–60. (Available through the library website); Harlow and Rawlings, Law and Adminsitration 2009).

The placement of accountability institutions within this model is an inexact science, as such accountability institutions operate to a large extent autonomously yet simultaneously require the support of the wider network, including the executive, the legislature and the courts. There are risks in this approach. In particular, unless properly designed significant gaps might occur in a network and, paradoxically, there could be excessive overlap in scrutiny leading to the pursuit of effective governance being overwhelmed or inhibited by the pressures of multiple accountability pressures. Overall, compared to the tripartite model, the risk is that the network approach to accountability is weaker, vacuous and more complex. (See for instance, M. Flinders (2008), Delegated Governance and the British State: Walking without Order, 169-70;Flinders (2011) ‘Daring to be a Daniel : The Pathology of Politicized Accountability in a Monitory Democracy’ Administration & Society 2011 43: 595; Schillemans, T. ‘Redundant Accountability: The Joint Impact of Horizontal and Vertical Accountability on Autonomous Agencies’, (2010) 34 Public Administration Quarterly, 300–37; J. Black ‘Constructing and contesting legitimacy and accountability in polycentric regulatory regimes.’ (2008) 2 Regulation & Governance 137.)

 

Challenges in legitimsing unelected accountability

Four key constitutional concerns shape the manner in which we comprehend the the work of accountability institutions.

The first constitutional concern is one of the most obvious when it comes to accountability institutions; how can the power of the institution be legitimated when it lacks a democratic mandate and if the institution operates with an extensive degree of autonomy from the core institutions of the state? Such a status takes the operation of such bodies well outside the comfort zone of standard representative theories of liberal democracy. This problem needs to be addressed satisfactorily if the accountability institution is to be successful. Unless the legitimacy of an unelected institution is properly secured it is unlikely to achieve significant results and its place in the constitutional order will be permanently under threat.

An important aspect of confirming the legitimacy of an accountability institution will be providing a proper legal framework for its operation, a task which should include interlinking its work alongside the operation of other constitutional agents. This second constitutional challenge may be termed ‘setting it right’. Unless attention is given to the detail of such arrangements then there is a risk that gaps will appear in the overall system, duplication may occur and opportunities to enhance output are missed.

A third core constitutional standard that needs to be properly dealt with is the familiar ‘who guards the guardians?’ question. Adopting a network approach to accountability means that it is inadequate to conceive of the answer as only accountability back to its sponsoring constitutional core institution. A realistic conception of accountability must cast its net much wider.

Part of the process of demonstrating accountability and legitimacy will include the ability to demonstrate the impact of the accountability institution investigated. This fourth constitutional concern is an enormously difficult challenge to undertake, yet somehow it is one that must be addressed. ‘[T]he democratic legitimacy of non-majoritarian institutions depends on their capacity to engender and maintain the belief that they are the most appropriate ones for the functions assigned to them’ (Majone 2002, 389). 

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