Traditions of regulatory accountability
Changes in the ways both of thinking about and of practising regulation create a significant accountability challenge. If we think of the initial challenge of the regulatory state being concerned with providing reassurance that public power delegated to public actors, such as government departments and regulatory agencies, is exercised properly (legally, consistent with mandates, with respect for public finances and so on), the emergence of regulatory capitalism, with a wider range of actors and mechanisms, pushes a traditional public accountability to and beyond its limits. We cannot pretend that all power exercised by intergovernmental institutions, by firms or by NGOs is delegated by elected governments. Even if we could, we would find it very difficult to assert traditional public accountability mechanisms over such widely distributed and diffuse actors (May 2007).
The fragmented character of contemporary regulatory governance requires some further attention to concepts of accountability (May 2007) (Lodge and Stirton 2010). As Bovens has noted, accountability as an icon concept has received such diverse and intensive attention as to have become a dustbin idea requiring some work to salvage it as a useful analytical and evaluative concept (Bovens 2007: p. 449). The editors of this volume note that 'the concept of accountability is rather elusive' (Jordana et al. in this volume). As part of the salvage operation, Bovens offers what he refers to as the narrow definition of accountability, one that I, along with the editors of this volume, propose to adopt: 'Accountability is a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgement, and the actor may face consequences' (Bovens 2007: p. 450).
Working with this narrow definition of accountability, a key question is, what is the trigger or rationale for seeking mechanisms to hold actors to account? Arguably it is the fact of delegation that makes democratic accountability important for regulators. If delegation is the trigger, then we might expect only those exercising delegated power to be of concern, and only in respect of the powers delegated to them. Such concerns with independent regulators, for example, may be addressed by sharpening 'intra-executive' scrutiny, but also parliamentary mechanisms of accountability (Black 2013: pp. 367-382). Such an analysis might substantially leave private actors out of any analysis. Another view suggests that much economic capacity can also be regarded as derived from the state (in some modern version of concession theory, which once underpinned claims that companies were the product of state sponsorship or established only with state permission (Bratton 1989: p. 1475) (cf. Bamberger 2006)). Thus there might be consensus to the extent that it is the possession of power that requires some form of accountability, but it may be contested whether it is the delegation of public power, or some wider conception of power as deriving from state capacity, that requires the making of account. In his discussion of evaluative bases for accountability generally, Bovens identifies a third rationale, beyond democratic control and addressing power, characterized as enhancing 'the learning capacity and effectiveness of public administration' (Bovens 1998: p. 462). Only the first of these rationales suggests limiting the accountability quest to public bodies, while the latter two support the project of this volume in conceiving of accountability as being owed to citizens generally, whatever the precise character of power or detailed mechanisms of accountability. Further, whilst favouring the narrow definition of accountability generally, I remain attracted to the idea that relationships other than retrospective duties to account, and in particular the day-to-day interdependencies between actors who in some sense share power, may serve as functional equivalents to accountability that may sometimes be more effective than the more traditional relationships (Scott 2000). Thus I adopt the perspective of the editors of this volume, that we should be alive to the potential of accountability relationships that may be voluntary or mandatory and informal as well as formal (Jordana et al. in this volume).
As noted earlier, I have elsewhere argued that we can conceive of accountability upwards (to courts, legislatures and ministers), horizontal (notably to other agencies such as ombudsmen, supreme audit institutions and information regulators) and downwards (notably to reg- ulatees and to intended beneficiaries of a regime) (Scott 2000). As the editors of this volume note, it is with the horizontal and especially the downwards mechanisms that mandatory and formal properties of accountability relationships are liable to be loosest (Jordana et al. in this volume). Accountability mechanisms that are compliant with Bovens's definition extend beyond traditional parliamentary, judicial and administrative mechanisms (the last including ombudsman, audit and related mechanisms that, as Bovens notes, frequently lack direct hierarchical authority, but can inform parliamentary or ministerial actions at one remove or 'diagonally' (Bovens 1998: p. 460)) and extend also to various mechanisms of peer review and engagement and what Bovens terms 'social accountability: Interest Groups, Charities and other Stakeholders' (Bovens 1998: p. 457). Social accountability mechanisms are supplemented by market-type mechanisms in which, for example, users are able to hold actors to account through such processes as feedback, evaluation and generation of league tables (Mashaw 2005).
The editors of this volume, following (Bovens et al. 2008), extend their analysis, linking the upwards mode of accountability to democratic ideals of holding government to its mandates and the horizontal mode to constitutional ideals of ensuring that government acts in compliance with key financial and administrative norms, whilst downwards accountability engages governments with feedback and learning. Such an analysis is premised on representative models of democracy. The horizontal and upwards modes tend to overlap in their concerns with addressing delegated power, especially where the constitutional and the democratic issues are part of the same analysis, since in the horizontal sphere the vindication of democratic values requires funds to be spent for the purposes for which they are voted, on the one hand, while aspects of upward accountability, notably judicial review, are concerned with constitutional or meta values such as legality and compliance with human rights rules, which are not part of the immediate democratic mandate of particular governments. Following the editors, the joining up of these different directions into a model of 360-degree accountability (Behn 2001; House of Lords Select Committee on the Constitution 2004) enables us to think of a continuum in which different purposes of accountability may be fulfilled in whichever direction accountability is owed or acknowledged.
In this chapter my interest in the linkage between accountability and democracy lies in exploring how the more diverse downwards accountability mechanisms may support a richer and post-representative form of democratic engagement. The focus on learning is significant, but equally important is the interest in modes of oversight and accountability that are democratic in the sense that they foster participation by affected actors. Much private regulation is not well tied to representative government through accountability mechanisms of the traditional kind. Market forms of downward accountability may be more significant. Similarly, for regulators constituted through particular or general communities, including self-regulatory and NGO activities, we might expect horizontal or peer engagement mechanisms of accountability, such as surveillance and benchmarking, to have greater weight (Scott 2006). The challenge for accountability is to address technical weaknesses, such as the catastrophic economic consequences of the global financial crisis, while at the same time providing a narrative that bolsters the fragile democratic legitimacy of regulation. If this is a significant worry for public regulation, both problems - technical credibility and democratic legitimacy - are even more significant for private regulators, especially where there is a strong transnational dimension.