Two Recent Papers on Accountability

I was particularly taken by Julia Black's recent Calling Regulators to Account: Challenges, Capacities and Prospects:

Since their inception, public lawyers and political scientists have fulminated at the lack of accountability of regulatory agencies. But, though it may surprise their critics, regulatory agencies do not go out of their way to be unaccountable. The difficulties of accountability, this article argues, lie in large part elsewhere: with the institutional position and accountability capacity of the accountors, and with the particular nature of the challenges that face them. The article focuses on developments in the roles of the four main accountors in the UK political domain in turn: the core executive, Parliament, the National Audit Office and consumer bodies, exploring their relationships both with the accountees (the regulators) and with other bodies which are calling those regulators to account. It examines their capacity to call regulators to account, and to meet the five core accountability challenges that face them: viz the scale and scope of the regulatory landscape, the number of organizations involved in any one regulatory domain, the complexity of their relationships 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. These challenges produce deep-rooted tensions which are not easy to resolve, and create opportunities for blame- shifting which both accountors and accountees can, and do, seek to exploit. Moreover, the roles of accountors themselves are fluid, moving from accountor to participant to controller, bringing further complexity to the accountability relationship. However, 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. For without those tensions both regulators and their accountors will become complacent, which will be to their detriment, as well as ours.

Accountability is a vast concept, and its application is often difficult. Black talks of accountors: bodies which hold regulators to account. She emphasizes the need to look at (1) their institutional position, including the amount of respect they attract and (2) their accountability capacity, in terms of resources. These, it seems to me, are two very helpful axes for charting the concept of accountability in different contexts. For example, one could say as a general matter that courts have a strong institutional position but limited capacity for holding others to account. Therefore, we must sometimes look to extra-judicial bodies.

In that regard, Mark Elliott's recent Ombudsmen, Tribunals, Inquiries: Re-fashioning Accountability Outside the Courts is also worth noting:

Courts play a prominent and significant role in holding public bodies to account in the UK, most obviously through the exercise of powers of judicial review. However, the accountability 'system' extends far beyond the courts, encompassing (among other institutions) tribunals, ombudsmen and inquiries into matters of public concern. This chapter argues that accountability is a protean concept, and that the accountability system must therefore exhibit appropriate diversity if accountability in all its relevant senses is to be secured. This raises questions about the balance and relationship between legal and political mechanisms for supplying accountability. It is argued that an increasing tendency to view the legal-judicial model as a paradigm places other accountability institutions at risk of inappropriate judicialisation. That trend, it is contended, must not continue unchecked if the accountability system is to remain suitably diverse.