New accountability and democracy
One way to address the accountability challenge of regulatory capitalism - fragmented public, private and supranational regulatory governance - is to examine the variety of modes of what we might call new accountability that is of a kind that goes beyond traditional mechanisms. It is important here to consider how we should evaluate such modes. If we calibrate them by reference to the extent to which they are tied effectively to representative democratic institutions such as parliaments and related bureaucratic structures, we are likely to find many of them wanting. However, their proliferation and significance, together with the challenge of private and supranational regulation, persuades me that we should seek a wider democratic narrative in which to locate them, based in pluralist approaches (Krisch 2010: p. 264ff), with a focus on the ways in which governance processes that are more inclusive may also enhance accountability (Goodin 2008: pp. 33-34). For this wider narrative I deploy recent analysis of post-representative democracy, and in particular John Keane's concept of monitory democracy (Keane 2009) (Corkin 2013: pp. 654-655).
Keane's starting point in his history of democratic governance is the argument that whilst the establishment of representative modes of democratic government has been very important to the spread of democracy around the world in the twentieth century, there is something insufficient about representative democracy. This insufficiency is both descriptive and normative. Descriptively, representative democracy with its related bureaucratization of public action (Dowdle 2006: p. 7) increasingly fails to capture the ways in which people, the demos, participate in steering and holding to account those involved with governance. Normatively, there are weaknesses in the dependence on the ballot box and associated apparatuses through which elected governments are held to their mandates. In his monumental book, The Life and Death of Democracy (Keane 2009), there is a focus on the emergence of new modes for participating in governance that provide a basis for developing a post-representative theory of democracy in which the potential of a wide variety of opportunities for a more direct form of governance is evaluated. The analysis is not wholly optimistic and certainly does not suggest we have a reached a post-representative democratic nirvana. Similarly, Peter May's detailed analysis of accountability for performance in regimes delegated to private actors suggests that we could be confident in these arrangements only with an expanded accountability toolkit (May 2007). Such analyses are suggestive of the possibility that governance may be enriched through post-representative mechanisms. I examine this potential from the perspective of democratic accountability of regulation.
Keane refers to the wide range of trends towards new structures for monitoring and controlling power as 'monitory democracy'. It offers, in essence, a new theorization of diffuse accountability structures. The innovations highlighted by Keane date back a considerable period. Working from his list, and supplementing it, they include amongst public sector bodies integrity commissions, a more active judiciary, and workplace tribunals. I would add the expansion of public sector audit to value for money and performance (Lonsdale et al. 2011), the development of new grievance-handling machinery such as ombudsman schemes (Birkinshaw 1994), the establishment of consumer advocacy bodies (Black 2013: pp. 382-387), the use of disclosure instruments in public policy (Graham 2002) and, relatedly, the development of
'governance by indicators', which actually crosses public and private governance domains (Davis et al. 2012).
I would also add to the apparatus of monitory democracy regulatory agencies themselves. Regulatory agencies create sources of knowledge and authority that are partially independent of elected government and have capacity to promote transparency both of governmental and industry activity, and to challenge and hold elected governments to account in key areas of decision-making, sometimes through serial powers (in which either can veto) and sometimes through parallel powers (in which either can act without the other) (Gilardi 2008; Maggetti 2012). Such an analysis addresses a potential fault line in democratic accountability, in the observation that much regulatory doctrine is concerned with insulating regulators from the political sphere of elected government. This difficulty can be addressed by suggesting that independent regulators, under such a doctrine, are part of the apparatus of holding government to account in respect of regulatory policy domains (Scott 2014). The significance of regulatory regimes for such accountability has been enhanced by the proliferation of mechanisms including the establishment of industry and consumer panels, dedicated user councils, standing stakeholder fora, and the extension of financial oversight into 'regulatory audit' (Humpherson 2010).
The mechanisms of monitory democracy are not restricted to state activity, and there is much significant innovation amongst intergovernmental and private actors. Intergovernmental forms include the organization of fora, summits, the open method of coordination (OMC), peer review and surveillance (for example, OECD, APEC). I would include the International Labour Organisation (ILO) in respect of labour rights.
Equally significant is the capacity of non-state actors to use the apparatus of the state, for example through public interest litigation. Then there is an array of spontaneous private institutions and actions that includes the development of think tanks, engagement in vigils, blogging, and other media scrutiny. Scrutiny by the media is amongst the longest-running private modes of accountability, and its capacity to report actions and to contest orthodoxy is counted amongst the core aspects of democratic governance (Maggetti 2012: p. 142). More recent innovations include the idea of an investors' forum to offer more systematic oversight of the activities of companies (Kay 2012), many of which exert regulatory power over themselves and others, as well as mechanisms for more democratic internal governance, with capacity to support learning about both appropriate means and ends (Parker 2002; Bamberger 2006). Private transnational forms include practices of monitoring human rights compliance by organizations such as Amnesty International. Amongst well-established transnational private regulators, such as the major sustainability actors the Forest Stewardship Council and the Marine Stewardship Council, we have seen the emergence of the ISEAL Alliance as meta regulator setting down standards for credibility and impact of regulation and requiring regulators to draw up performance indicators and to report on these matters and have their reports audited (Loconto and Fouilleux, forthcoming). Professional and self-regulatory bodies, such as those for the legal and accounting professions and also the advertising industry, have increasingly engaged majority lay participation in at least some aspects of their key decision-making (for example, complaint handling in advertising). Such bodies have also committed to greater transparency, permitting the emergence of NGOs concerned with watching both public and private regulatory activities using blogs, and traditional and social media to disseminate their evaluations. The Global Competition Review, for example, publishes annual performance league tables of national competition authorities (http://globalcompetitionreview.com/, last visited 2 February 2014). Both public and private actors routinely deploy other kinds of reports and scorecards.
Trends towards network modes of governance also have strong implications for accountability of regulators and for governance more generally (Slaughter 2001; Slaughter 2004; Goodin 2008). It is clear from Keane's modelling of monitory democracy that he sees it as creating networked or nodal forms of accountability (Keane 2009: p. 697). Both public and private regulators increasingly subject themselves to the discipline of participating in networks, sometimes for policy learning, and other times to facilitate operational cooperation (Levi-Faur 2011). In each case the development of such networks enhances the knowledge of others in their peer group as to what the others do and how they do it, generating a form of accountability (Corkin 2013). The OECD is perhaps the core example of such network governance, but its processes of surveillance and peer review are emulated also in the Open Method of Coordination within the EU (Schafer 2006). Various forms of networks of public regulators exist both within the EU - formal and informal (Eberlein and Grande 2005) - and also at national level in many jurisdictions (Levi-Faur 2011), and global networks (such as the international competition network) are becoming increasingly significant (Maher and Hodson 2012). Network modes of accountability extending beyond public actors may, under some circumstances, make up for deficiencies in public accountability of non-governmental organizations, constituting a form of 'discursive accountability' within their own networks of actors, but also 'mutual accountability' with other kinds of actors such as those of the state (Goodin 2008: pp. 182-184).
What we are witnessing is a proliferation of accountability mechanisms to match the varieties of regulatory institutions and practices (Beer 1966). Such a trend might most obviously be linked to concerns to demonstrate and enhance the effectiveness of regulation. But the trend can also be tied into contemporary thinking about reshaping governance to acknowledge the limited capacity of representative democracy to adequately underpin contemporary governance. Keane (2009: p. xii) argues that the significance of democracy lies in its control over power, to prevent rule by the few to ensure that 'the matter of who gets what, when and how should be permanently an open question'. This concern is equally important with regulatory regimes that may appear technical in nature. A recent study of global private regulation concluded that few regimes can avoid consequences for the interests of those directly and indirectly affected, and so they are all in that sense political (Buthe and Mattli 2011). A distinctive concern is to what extent the mechanisms of accountability can promote learning by requiring key actors to reflect not only policy solutions, but also on the definition of policy problems, with the potential for offering a wider array of outcomes that may command stronger support (Lenoble and Maesschalck 2010; Dorf and Sabel 1998; Sabel and Zeitlin 2008).
Contemporary trends in regulatory governance exemplify a wider challenge for the capacity of representative democracy to capture and legitimate diffuse governance institutions and practices. Traditional accountability narratives, emphasizing parliamentary accountability, judicial review and financial probity, struggle to address the challenge. The problem of post-representative democracy is common to public, private and supranational regulation. If we do not accept the merely technical nature of regulation, but increasingly cannot link regulation and its effects on interests to institutions of representative democracy, we have a problem. Within regulation we might have legitimacy concerns of both process and outcome types. Who governs and how good are they at it? Evidence of performance is increasingly important but raises significant challenges. How can we achieve greater transparency in performance and tie that transparency to capacity to use the knowledge for a substantive form of accountability, but perhaps also participation?
Keane argues that what I present as new accountability mechanisms have a wider significance for democratic governance than simply accountability and, in his arguments, have the potential to constitute a post-representative or monitory democracy. Transparency and the ability to access 'high levels of information' constitute one part of the model (Keane 2008). Linked directly to this is the capacity to collect and to disseminate 'a wide variety of viewpoints' about the way power is exercised. Drawing in the aspect of accountability that emphasizes that there may be consequences, Keane suggests that 'monitory mechanisms are geared as well to the effective public definition, public scrutiny and public enforcement of standards and rules for preventing corrupt or improper behaviour by those responsible for making decisions in a wide variety of settings' (Keane 2008: p. 12) (emphasis in original). Finally, the democratic qualities of these new mechanisms involve their capacity to capture diverse voices and choices of citizens, thus enhancing 'representativeness' (Keane 2008: p. 12)
In summary, Keane provides a narrative for drawing together diverse mechanisms of accountability. This way of thinking about the democratic challenge of accountability for regulation should encourage us to look widely for the mechanisms of holding to account. These are likely to be different for single companies, for trade associations, for standards bodies, for multi-stakeholder private regulators, for national public agencies and for supranational regulators. This analysis might encourage us to evaluate particular regimes by reference to the extent to which they are able to constitutionalize the mechanisms of representative and/or monitory democracy either themselves (in the case of private regulators (Black 1996)) or as part of wider governmental operations. Such a constitutionalization should extend beyond simply adopting familiar processes of administrative law (transparency, proce- duralization, giving of reason and so on (Kingsbury et al. 2005) - though these aspects may be helpful) and include considerations of governance structures more generally - who participates? Who has knowledge and capacity to oversee and to blow the whistle on unacceptable practices, and then to visit consequences?