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Public Law

Public Law (4th edn)

Mark Elliott and Robert Thomas
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p. 39910. Good Governance—An Introductionfree

p. 39910. Good Governance—An Introductionfree

  • Mark ElliottMark ElliottProfessor of Public Law, University of Cambridge
  •  and Robert ThomasRobert ThomasProfessor of Public Law, University of Manchester

Abstract

This chapter explains the meaning of good governance and why it is important to uphold the standards of good governance, first discussing the standards of good governance, which include governing in the public interest; governing transparently; respecting the dignity, rights, and interests of individuals; and governing competently. It then turns to the concept and types of accountability, covering political accountability, legal accountability, and administrative accountability and audit.

1. Introduction

This part of the book focuses upon the practical arrangements by which government is held to account and the means by which government is required to adhere to the principles of good governance.

Good governance is essential if people are to accept, cooperate with, and recognise the legitimacy of the institutions of government—all of which are imperative to the existence of a peaceful, well-functioning, civilised, and productive society. Mechanisms must therefore exist that require, or at least encourage, those in power to adhere to the standards of good governance. Elections are clearly necessary, but they are not by themselves sufficient. Not all governmental institutions are under the direct control of elected politicians. In any event, infrequent elections constitute a crude, insufficiently granular form of scrutiny. Voters can do little more than pass broad judgement on the performance of the government as a whole.

Good governance, then, is integral to the legitimacy of government. The desirability of good governance is beyond dispute, but it is more difficult to define what it actually means and how to achieve it. There is no definitive set of standards of good governance upon which everyone agrees. Nonetheless, they are a set of core principles that, together, are widely regarded as comprising good governance, although their precise details vary and change over time. The notion of good governance is p. 400inseparable from that of democracy. Good governance ultimately reduces to the idea of government being conducted in ways that are acceptable to the (majority of) people—hence our point that good governance is necessary for the acceptance of government by the people.

The principles of good governance derive from—indeed, are constituted by—values that are widely held within society. Some such values are reflected in the sort of constitutional principles that we encountered in earlier chapters. This is unsurprising. One of the purposes of a constitution is to capture and institutionalise values that are deep-seated and enduring within the relevant society. The average person may not readily adopt the language of ‘separation of powers’ or ‘rule of law’. However, she would most likely subscribe to propositions inherent in those constitutional principles—for example, that politicians should not interfere in judicial proceedings. A government that sought to do this would have breached the standards of good governance.

The standards of good governance are not confined to ones reflected in fundamental constitutional principles. The concept encompasses a broader range of norms concerning how institutions of government should behave. They reflect expectations widely held by those subject to government. People expect the government, and the politicians running it, to act lawfully. But those in power should also behave in ways that are not necessarily, or not comprehensively, mandated by law. They should, for instance, act honestly, transparently, straightforwardly, competently, with integrity, and selflessly. Lawful governance is necessary, but is not a sufficient condition for good governance. Good governance is to be pursued not just through legal, but also through political, means.

This raises a fundamental question: are the political mechanisms responsible for upholding standards of good governance adequate? And, if not, should legal control of government be expanded? In other words, what is the right balance in this context between legal and political modes of constitutionalism? These are questions for later chapters. We now focus upon what good governance means.

Watch the authors discuss the key themes of this chapter in the following video.

2. What is Good Governance?

Given the lack of a definitive or universally accepted list of standards of good governance, we have to look at a variety of sources in order to locate what can be regarded as the prevailing standards of good governance. According to The Federalist Papers (1787–88): ‘A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; second, a knowledge of the means by which that object can be best attained.’1 More recently, in 2009, a parliamentary select committee identified five prerequisites for good government: good people, good process, good accountability, good performance, and good standards.2 The following p. 401discussion divides the standards of good governance into different categories in order to aid explanation. However, in practice, many of the standards are interrelated.

2.1 Governing in The Public Interest

Governments have no legitimate interests of their own, and nor, when acting in their official capacities, do the individuals who lead and work in governments. In a democracy, citizens elect a government to protect, advance, and serve the public interest. In normative terms, democratic governance presupposes that government acts as the servant—rather than the master—of the people. There are two dimensions to this notion that good governance means (among other things) governing in the public interest.

The positive dimension is that government should make decisions that advance the public good. The public good is a highly contestable notion. Concepts such as good governance and the public good are not objective yardsticks against which the legitimacy of governmental action can be determined. However, there must be mechanisms by which the wisdom of government policy and decisions can be measured and judgement pronounced. In a democracy, the ultimate question is not whether the government is acting in an objectively correct way (whatever that might mean); rather, it is whether it is governing in a manner that is regarded as broadly acceptable by the public. Elections are the pre-eminent means of doing this. The public can kick out the current government and elect a new one. But, elections are, taken on their own, insufficient. Government needs to be kept on a shorter leash than that supplied by the electoral process. There are a number of different ways that enable or require government to take account of the views and wishes of the people: the need to obtain parliamentary approval of legislative proposals; submission to scrutiny by Parliament, the media, courts, tribunals, and ombudsmen; and public participation in government decision-making (eg by consulting with the public).

To take one specific example, it is a relatively uncontentious proposition that, when using public resources—especially public money—government should, so far as possible, seek to attain value for money. Government is largely funded by the public through taxation. Accordingly, the public can, in turn, rightfully expect that government should not waste its money. Instead, government should use public money wisely so that the public receives value for its money. Just because government ought to behave in a certain way does not mean that this necessarily always happens in practice. There is therefore a real need for mechanisms that scrutinise government.

Governing in the public interest has a second, negative dimension. Government must not act in a self-interested manner. Governments do not have any legitimate interests of their own. Self-interested behaviour by governmental institutions is a breach of the standards of good governance. For instance, it would be improper for an elected public body—whether the UK central government, a devolved government, or a local authority—to elevate political gain above the public good.

The proscription against self-interested governance also means that those involved in government must not act for improper personal gain. If, in our example, the Minister were choosing between two potential sites for a new airport and the arguments were p. 402otherwise evenly balanced, it would be improper (and, again, unlawful) for her to choose one site over the other if she would stand to gain financially by that decision.3 The impropriety of such behaviour is widely recognised.

The Committee on Standards in Public Life is the independent public body that advises the UK government on ethical standards across the whole of public life in the UK. It has drawn up a list of principles that encapsulate the standards expected of those involved in public life. Among these principles are the requirements that those involved in public life act with selflessness (acting in public, not private, interest), integrity (freedom from influence from outside interests), objectivity (making decisions on merit), and honesty.4 These principles are not legally binding. They have, though, come to inform public life and other codes of conduct, such as the Ministerial Code and the Civil Service Code, which are respectively applicable to government Ministers and civil servants. Politicians and officials who fall short of these standards deserve to be held to account and criticised.

2.2 Governing Transparently

It can be hard to distinguish the content of the principles of good governance from the mechanisms necessary to secure (or at least to incentivise) it. So it is with the requirement of transparency or openness—another of the principles articulated by the Committee on Standards in Public Life and upheld in a number of different ways, including via the Freedom of Information Act 2000. According to the Committee, openness requires that ‘[h]olders of public office should be as open as possible about all the decisions and actions that they take’, ‘should give reasons for their decisions’, and should ‘restrict information only when the wider public interest clearly demands’.

Transparency is arguably desirable in and of itself. It recognises that people are ‘grown-ups’. They deserve to be told what is being decided and why. But transparency is also a means to another, important, end. A government that is both open and transparent is likely to avoid acting in a way that is otherwise improper, and which may undermine the trust that people place in it. ‘Sunlight is said to be the best form of disinfectant.’5 Good governance therefore implies not merely that government pursues the public interest (and only the public interest), but also that it does so openly and transparently.

2.3 Respecting The Dignity, Rights, and Interests of Individuals

Good governance also encompasses the standards of the rule of law. Government must act lawfully. It is, for example, a long-established legal principle that government is obliged to adopt a fair process when it goes about the task of making decisions p. 403that affect individuals. Government must give affected individuals an opportunity to be heard—to put their side of the story—rather than simply make decisions without knowledge of, or regard to, such individuals’ circumstances and interests. The courts enforce this principle—known as procedural fairness—and other legal principles through judicial review. Under the Human Rights Act 1998 (HRA), government must respect individuals’ human rights.

2.4 Governing Competently

Many of the requirements of good governance are underpinned by or related to a further requirement—that of competence. Government is not merely a collection of government Ministers, but a very much larger enterprise. It comprises government departments and agencies that make and administer public policy. When members of the public interact with government, they rarely, if ever, do so by way of direct contact with the Prime Minister or government Ministers—they are much more likely to come into contact with front-line officials and public servants. Unlike government Ministers, these officials are neither directly elected nor accountable to Parliament; instead, they are appointed as full-time public employees on the basis of their knowledge and expertise.

The public rightfully expects that these officials and public agencies operate in accordance with the standards discussed so far—that is, they seek to further the public interest, are open and transparent, obey the law, and do not infringe human rights. The public also expects these officials and public servants to be competent in what they do. They should follow the basic principles of good administration. These principles require, among other things, that public servants advise individuals correctly and precisely on the detailed rules governing, for example, their tax liability or entitlement to welfare benefits, that they are customer focused, and that, when mistakes are made, these are acknowledged and corrected quickly and effectively.6

Furthermore, good governance often requires the potential for incompetence to be recognised and anticipated. This means that when an individual receives a negative decision from a government department (eg when an individual’s application for benefits has been refused), it is often appropriate that some form of redress is available via, for example, a complaints scheme, a tribunal, or an ombudsman. When a major issue of public concern has arisen because of some failing within government, the issue may need to be investigated independently by an inquiry. Institutions such as these—ombudsmen, tribunals, and inquiries—form the ‘administrative justice’ system. Finally, competent government requires that those in power are able and willing to learn lessons when things go wrong so as to prevent the recurrence of similar errors in the future.

2.5p. 404 Some Preliminary Conclusions

First, there is no comprehensive and definitive list of standards that together comprise good governance—nor, perhaps, could there be. The standards that define good governance are likely to vary and change in response to changes within public life itself. For example, the Committee on Standards in Public Life was itself established, in 1994, in the context of much concern about propriety in public life following the ‘cash for questions’ affair in which it was disclosed that some MPs had been asking parliamentary questions in return for financial payments. While basic lapses of probity were not, before that episode, regarded as acceptable, it placed such concerns centre stage, resulting in a renewed emphasis upon them. Likewise, the precise nature of the legal controls over governmental action imposed by the courts has, over recent decades, intensified often as a result of changes in the courts’ own perceptions as to the necessary demands of legality and of the (in)adequacy of alternative methods of scrutinising government. Furthermore, the recognition that openness and transparency within government are important standards that need to be secured was, after many years of persuasion, finally formally recognised by Parliament when it enacted the Freedom of Information Act 2000. The broader picture is, then, that the notion of good governance is dynamic, because it reflects contemporary and changing social, moral, and democratic mores.

Second, the nature of modern government makes good governance a more acute concern than ever before. While there are competing ideas about what government should and should not do, it has been said that there are four basic responsibilities that any legitimate government owes to its own citizens: protecting the safety if its own citizens; promoting the welfare of its citizens; enforcing justice by punishing crimes and resolving disputes; and promoting truth and knowledge.7

Exactly how governments discharge these responsibilities varies over time and between different countries. Perhaps the most noticeable development over the last 200 years or so in Western countries has been the growth in the scale and complexity of governmental action deemed necessary to fulfil these basic responsibilities. Modern government is an agglomeration of a multitude of large and complex organisations. If the public desires some change or other in society—for example, a better transport system, better provision of public services such as education and health, action to stop climate change—then it is usually government that is called upon to act. Government is often the only means by which the necessary resources can be collected, organised, and mobilised.

People cannot lead their lives without some element of governmental influence. If citizens wish to pursue collective goals, then they must generally agree to confer power on government to achieve these goals for them. Accordingly, government itself becomes very powerful. Governmental power may be used for either good or ill. And the notion of good governance seeks to ensure that such powers are used only for good, and that there are adequate systems in place to provide correction and redress p. 405if they are used for ill. Good governance is, then, a necessary corollary to the very powerful systems of government found in many countries, including the UK, today. However, it is not enough that good governance exists merely as an abstract idea. There must be practical and effective systems by which government is scrutinised. This leads us to the concept of accountability.

Test your understanding of this section by answering these self-test questions.

3. Accountability

3.1 The Concept of Accountability

In an ideal world, all governments and public office-holders would simply uphold the standards of good governance. There would consequently be little, if any, need to have other bodies to oversee government in order to check for compliance with these standards.

However, there is a constant risk that government will fail to live up to these standards or that it may seek to misuse its powers. No particular government—or even system of government—could ever be perfect or infallible. Those who hold public office often fall short of the standards expected of them. Various accountability mechanisms are therefore required. Such mechanisms seek to ensure that government is held to account, that it properly observes the standards of good governance, and that its activities are properly scrutinised. In this way, the standards of good governance are given real bite.

Over recent decades, the concept of accountability has increasingly come to prominence. Yet accountability is also an elusive concept. It has various meanings. We therefore need to take some care when considering it. In essence, the concept of accountability represents the response of democracies to the need to oversee government. As Mulgan has noted, accountability—the obligation to be called to account—is:

a method of keeping the public informed and the powerful in check. It implies a world which is at once complex, where experts are needed to perform specialised tasks, but still fundamentally democratic in aspiration, in which members of the public assert their right to question the experts and exercise ultimate control over them.8

Governments get things wrong—whether by deciding upon a bad policy, by using an inadequate means of implementing a good policy, by wasting public money, or by acting unlawfully. Part of the responsibility of a democratic constitution is to provide adequate and effective safeguards. The purpose of these safeguards is to uncover bad government, to lay blame and criticism where it is required on those in power, and in that way to seek to prevent bad governance while at the same time promoting good governance.

What, then, does accountability mean? At its most basic level, accountability can be understood as a relationship between an actor and an accountability forum.9 To be held to account, an actor (eg the government or a government Minister) is obliged p. 406to explain and to justify his or her conduct. The relevant accountability forum (eg Parliament or the courts) can ask questions and pass judgment. The actor may then face consequences. The accountability forum can either reward or punish the actor on the basis of the conduct or explanation given.

The precise identity of both the actor and the accountability forum can, of course, vary. The actor will normally be someone or something that has the ability to exercise public power and so will often be a government Minister, a civil servant, a government department or agency, or the government as a whole. Likewise, the accountability forum will assume different guises. It may be the public, Parliament (whether an individual Member of Parliament, a parliamentary select committee, or Parliament as a whole), a court of law, an audit agency, an ombudsman, a public inquiry, or a tribunal.

Depending on who or what the actor is and what the accountability forum is, the relationship between the two will differ. For example, the process by which Parliament holds a government Minister to account is very different from that adopted by a court of law. In the former instance, politically aligned parliamentarians will ask questions of the Minister either in Parliament or in a committee hearing; in the latter, an individual will challenge the legality of the Minister’s decision before an independent court. The nature of the actor and the forum will then influence both the operative procedure and the applicable standards of good governance.

3.2 Multiple Accountability Mechanisms

Government is held to account through a variety of different accountability mechanisms, each of which subjects government to a different type of scrutiny and accountability. Broadly speaking, there are three different types of accountability that recur over and over again.10

First, there is political accountability. This seeks to ensure that government is subject to democratic and popular control. This form of accountability is exercised by voters through elections and on their behalf by Parliament. Political accountability is primarily concerned with the policy choices facing government.

Second, there is the legal accountability. This ensures government according to law. This form of accountability is undertaken normally, although not exclusively, by the courts. The purpose is to maintain the rule of law and guard against the abuse of power by protecting the legal rights and interests of individuals adversely affected by governmental action. In addition to judicial review by the courts, tribunals determine appeals against administrative decisions.

Third, there is administrative accountability. This type of accountability operates both within government itself and is also undertaken by independent audit agencies. p. 407This type of accountability is concerned with ensuring that government is both effective and efficient in administering and implementing public policy. Administrative accountability is concerned with neither the political desirability of government action, nor with its legality. Instead, administrative accountability is concerned with ensuring that government effectively implements the desired policy goals, that is, that government gets the job done.

3.3 Political Accountability

In democracies, the most important type of accountability is political accountability. Government is politically accountable to both the public and the legislature that represents the views of the public, for its policies. The rationale for political accountability reflects the nature of public power in a democracy. In a democracy, power rests with the people. It is they who decide to delegate power to government to achieve common goals. Government is legitimate only if it acts in the name of the people via the power they have conferred upon it. Accordingly, the people have the right to call government to account. The people are thereby equipped to exercise a form of control over those in public office by expressing their own views as to what the public interest requires. Since, as we noted earlier, there is no objectively correct definition of what the public good requires, political accountability forms an imperative connection between the views of the public at any given time and those in power who are charged with pursuing the public good.

The most conspicuous form of political accountability is the election. Elected politicians are accountable to the electorate. By voting for elected representatives, the public delegates power to them. In the UK, the electorate votes, among other things, for MPs to be returned to the House of Commons and members to the devolved legislatures. This, in turn, determines who forms the government. If voters disapprove of the government’s policies, they can elect a different government at the next general election.

Virtually all Western democracies owe a huge intellectual debt to ancient Greece, which is where the concept of democracy originates.11 According to Aristotle, democracy meant direct democracy in which all citizens were to rule and be ruled in turn.12 The function of elections is usually just to determine the composition of the political executive—which political party should form the government—and therefore the broad direction of government policy. But, elections are limited mechanisms for holding government to account. First, elections are infrequent. In the UK, general elections to Parliament are usually held every five years.13 Consequently, the involvement of voters in the governmental process is not continuous, but intermittent. Second, there are many decisions that government must take that are neither discussed during elections nor upon which the public has any direct involvement. Third, there is a huge p. 408gulf between ordinary voters and politicians. Also, the media and lobbying groups can often exert more influence than voters. Elections are then inherently constrained in the extent to which they enable government to be held to account. They must be supplemented by other mechanisms.

In the UK, this is achieved, in part, by making government Ministers accountable to Parliament through the doctrine of ministerial responsibility. This doctrine requires Ministers to provide an account of their actions and conduct in a variety of different ways.14 In Parliament, Ministers are asked questions, policies are queried and debated, and specialist parliamentary select committees scrutinise the work of government. Such committees regularly produce (sometimes highly critical) reports on aspects of government policy and administration. Meanwhile, public inquiries investigate matters of grave public concern15—and thereby supplement parliamentary scrutiny.16

The effectiveness of the sanctions that may flow from such forms of political accountability is not always clear. Parliament may criticise a particular government policy. Whether such criticism will prompt the government to think again will often depend not only upon the cogency of that criticism, but also upon whether sufficient MPs are prepared to vote against the government. In a parliamentary system, there have long been concerns that the process of political accountability is not as effective as it should be. Parliament is rarely successful in overturning government decisions because it is dominated by the government of the day that exerts control over its own MPs. Equally, if a public inquiry contains excoriating criticism of government, there is no guarantee that anything in particular will happen as a result.

This is not to say, however, that the absence of coercive power robs inquiries and parliamentary forms of accountability of any teeth. Given the right political circumstances,17 government may, in effect, have no choice but to take whatever corrective action Parliament or an inquiry demands.

3.4 Legal Accountability

Legal accountability is a central aspect of the rule of law. Government must follow the law. However, the nature of the legal relationship between government and individuals is of a completely different nature from that between one individual and another. Private law regulates those forms of activity that anyone can undertake (such as entering into contracts). By contrast, public law embodies distinctive rules and principles that regulate the activity of governing. The most fundamental principle is that of legality. Whereas individuals can do anything that is not unlawful, the general principle is that government can do only that which it is legally authorised to do. p. 409If government undertakes unauthorised tasks, or undertakes authorised tasks in an improper way, it acts unlawfully. Unlawful governmental acts are invalid (of no legal effect) and, as such, can be struck down by the courts via judicial review.18

The rationale behind legal accountability is that anyone whose legal rights or interests have been adversely affected by government has the right to test the lawfulness of action before an independent and judicial procedure. Government can use its extensive and coercive powers to harm people. Special arrangements are therefore needed to protect individuals against the excessive or abusive use of those powers. Legal accountability is primarily concerned with protecting the rights and interests of individuals against the government. The courts do this by examining whether decisions taken by government comply with general principles of public law. These principles are:

legality: government can only act within the scope of its legal powers;

procedural fairness: government must adopt a fair decision-making process;

rationality: government decisions must be rational or reasonable; and

proportionality: government must not infringe human rights unless such infringements are proportionate to the desired end.

There are some inherent limitations as to how legal accountability by courts operates. First, the courts do not have a free-roaming mandate to rule upon the legality of any government decision. The jurisdiction of the courts is only engaged if they have been called to adjudicate upon a legal dispute in which an individual or other body wishes to challenge a government decision. Second, the courts can only determine whether a government decision is unlawful. They cannot decide whether a public decision is right or wrong or substitute it with a decision of their own. The courts therefore need to be careful when reviewing the legality of a public decision to ensure that they do not themselves lapse into error by telling the government whether or not a particular policy or decision is a good one. If the courts were to do this, then they would be intruding into the realm of political accountability.

While legal accountability is subject to these constraints, it does possess a particular strength: the effectiveness of its sanctions or remedies. Legal remedies against government are legally binding. Government must comply with court rulings.

But the courts are not the only or even the most frequently used form of legal accountability. In many instances, individuals can appeal against government decisions (eg refusal of a welfare benefit) to independent, judicial tribunals. Tribunal appeals are heard and decided by specialist judges and are more informal than the courts so that people can appear without legal representation. Furthermore, unlike courts, tribunals can substitute their own decision for that of the government department concerned.19

3.5p. 410 Administrative Accountability

Administrative accountability is concerned with ensuring that government ‘gets the job done’—that it implements policy effectively and efficiently. It is concerned with the performance of government and its ability to deliver policy on the ground. It is one thing for a government to have a policy, but putting that policy into practice is a different matter entirely. Indeed, implementing policy is where most of the real challenges faced by government arise.20 Administrative accountability therefore focuses upon the organisation and management of government. It is concerned with whether government agencies are well organised, staffed by competent and honest people, and able to perform and deliver public services effectively and efficiently.

On one level, administrative accountability operates internally within government. It is a means by which government exercises control over itself. Given the scale of modern government, the Prime Minister cannot hope to exert much effective control over the operations of the governmental machine. She therefore appoints Ministers who, in turn, are able to instruct their civil servants and officials as to how they ought to operate. The Civil Service itself is made up of different grades, and civil servants work within different government departments and agencies. To ensure coordination and control, higher-level officers are able to issue instructions to lower-level officers. Such instructions can take a number of different forms, such as rules, policies, and guidance that lower-level officials need to follow and apply. These factors—hierarchy of authority, specialisation, and a system of rules—are the basic characteristics of public administration.21 Given the essentially administrative nature of modern government, it is necessary to design mechanisms of administrative accountability to ensure that government departments and other administrative agencies work effectively and efficiently.

A noticeable form of administrative accountability over recent decades has been the setting out by government of the targets and plans that individual government agencies are tasked with achieving. By doing so, government can then monitor performance against these targets to determine how well they are doing in terms of implementing government policy. In this way, departments and agencies can be called to account for their activities.

Officials and civil servants are not subject to direct political accountability in Parliament, but they are accountable to Ministers, who are in turn accountable to Parliament and the public. Mechanisms such as targets and business plans seek to establish objective yardsticks by which the performance of departments and agencies, and the individuals within them, can be monitored.

Administrative accountability does not operate solely within the government machine itself. There are various other bodies that have been established in order to oversee government and to hold it to account. The National Audit Office (NAO) oversees how the UK government spends public money and whether it provides value for money in the delivery of public services.22 The NAO is neither a judicial nor a legislative body. It is itself an administrative body established by Parliament. Its purpose is to inspect the p. 411government’s accounts and to examine the economy, efficiency, and effectiveness with which government agencies use their resources when discharging their functions.

There are other public bodies that oversee government. For example, ombudsmen investigate citizens’ complaints of maladministration—bad administrative practice—by government.23 Ombudsmen investigate individuals’ complaints against government. If they find that there has been ‘maladministration’ resulting in injustice, ombudsmen can make recommendations to government, for example, that it reorganise its processes and administrative systems in order to prevent similar injustices reoccurring. Ombudsmen can also recommend that government compensates individuals who have suffered loss as a consequence of such maladministration. Unlike audit agencies such as the NAO, ombudsmen are not concerned with either auditing government accounts or promoting value for money; rather, they are concerned with promoting adherence to the principles of good administration by government to ensure a better quality of government.

A distinctive feature of bodies such as the NAO and ombudsmen is that they provide expert and non-political oversight of government. They are generally accepted to be credible and trustworthy mechanisms for holding government to account, and their reports often become topics of political and public comment. At the same time, this type of accountability has its limitations. Unlike the courts, neither audit agencies nor ombudsmen can impose legally binding sanctions or remedies upon government. Nonetheless, their recommendations are, more often than not, accepted and acted upon by government.

It is also important to recognise that accountability systems do not exist in complete isolation from one another. Administrative accountability often feeds into political accountability. For example, reports by the NAO are often followed up by parliamentary select committees—in particular, the House of Commons Public Accounts Committee. Likewise, when the government refuses to comply with a recommendation of the Parliamentary Ombudsman, the House of Commons Public Administration and Constitutional Affairs Select Committee often conducts an inquiry to assess whether or not the government’s refusal is justified—and, if it thinks not, this may put the government under additional pressure to comply. In this way, different accountability mechanisms—and, indeed, different forms of accountability—overlap with and complement one another.

Test your understanding of this section by answering these self-test questions.

4. Pulling it Together

It is now appropriate to pull the preceding discussion together. Table 10.1 presents the three accountability regimes and their various dimensions.

Table 10.1 Accountability regimes for UK central government

Accountability regime

Who is accountable?

To whom?

Accountability criteria

What are they accountable for?

Accountability processes

What effects?

Political accountability

Ministers

Civil servants

Citizens

Elected representatives

Political choices

Policy

Elections

Parliamentary scrutiny

Criticism

Resignation or dismissal from office

Legal accountability

Ministers

Civil servants

Affected individuals

Legal rules and principles

Legality

Courts—judicial review

Tribunals—appeals

Judicial remedies

Appeals—allowed or dismissed

Administrative accountability

Ministers

Departmental Accounting Officers

Civil servants

National Audit Office (NAO)

Commons Public Accounts Committee (PAC)

Ombudsmen

Effectiveness Efficiency

Value for money

Maladministration

Policy implementation

Performance and delivery

Internal monitoring within government

Inquiries by NAO

PAC hearings

Ombudsmen investigations

Reforms within government

Compensation

Figure 10.1 presents an overview of the structure of accountability of central government. It can be seen that at the core of the figure is the UK’s central government. It is surrounded by the various accountability processes, which subject government to different types of accountability.

Figure 10.1 The accountability structure in the UK constitution for central government

p. 412p. 413Figure 10.1 may seem complicated, but it is in fact a simplified presentation of the basic accountability processes. The figure only covers UK central government. It excludes other levels of government that exist in the multilayered constitution. The following chapters will examine these accountability processes in detail.

5. Conclusion

The public has a variety of different expectations as to how government should conduct itself. The standards of good governance are not fixed or static, but fluid and dynamic. These standards reflect some of the most basic standards of a political system. At the most basic level, however, good governance requires that government acts for the public good, that it acts lawfully, and that it is both effective and efficient in performing its assigned tasks. In order to ensure that government adheres to these broad standards, it is necessary that it is held to account by different bodies in different ways.

Yet, we encounter a paradox: the imposition of extensive and complex webs of accountability upon government may present its own risks. Government may spend so much of its time being held to account that its capacity to govern effectively is undermined. Too much accountability may be just as problematic as insufficient or deficient accountability. As Bovens has noted, public institutions are frequently faced with the ‘problem of many eyes: they are accountable to a plethora of different forums, all of which apply a different set of criteria’.24 Furthermore, there may often be p. 414tensions between different accountability processes. For instance, excessive political accountability may prompt Ministers to seek short-term political gains by interfering in administrative matters in a way that has disruptive longer-term consequences. Likewise, a high volume of legal challenges against government decisions may well make it more difficult for government to implement policy efficiently and speedily.

At the same time, accountability is necessary to fulfil the ideals of good governance. The crucial issue that arises is then the operation and effectiveness of particular types of accountability. Examining the operation of the different accountability mechanisms that function in the context of the UK is the task of the chapters that follow.

Expert Commentary

Good Governance, Accountability, and The Constitution

Jeff King, Professor of Law, University College London

This chapter rightly shows that ‘good government’ is essential in a modern democracy. It also shows that accountability is multifaceted and integral to good government. Yet two concerns remain that are worthy of further exploration. First, is good, efficient, and expert administration in irresolvable tension with the forms of accountability that may interfere with it? Is the latter corrosive of the former, in other words? Second, why ought we to think of this subject as a distinctly constitutional rather than merely public policy concern?

Let me begin with the second of these two general concerns. I agree with the tenor of this chapter and its position in this book that good governance has constitutional dimensions. The authors demonstrate that the principles of government include governing in the public interest rather than in self-interest, transparency, economic efficiency, impartial administration, and respecting the basic rights of individual citizens. Those values are also good public policy. But when we consider the institutions many countries have established to secure these values, their constitutional character becomes evident. Consider the Civil Service. The emergence of the modern Civil Service in Britain dates to the Northcote-Trevelyan Report of 1854, which recommended the creation of a unified civil service appointed by competitive examination, organised along clear hierarchical lines, and in which promotion is based on merit rather than patronage. Though the organisation of the Civil Service was left historically to management under the royal prerogative powers, its constitutional character has been recognised by convention and more formally of late in chapter 7 of the Cabinet Manual and in Part I of the Constitutional Reform and Governance Act 2010.

In France, the establishment of patronage appointments under l’Ancien Regime was a major source of aggravation prior to the revolution of 1789. It was one of the major motivations for Art 6 of the Declaration of the Rights of Man and Citizen 1789, part of which provides that ‘all public positions and occupations’ be open to citizens ‘without distinction except that of their virtues and talents’. Similarly, Art 33 of the Basic Law of Germany (1949) requires constitutionally that laws relating to the public service show ‘due regard [for] the traditional principles of the professional civil service’. Indeed, according to the website of the Constitute Project (a database of the world’s written constitutions), 53 countries around the world address civil service recruitment in their written constitutions. This constitutional preoccupation with good administration extends beyond the civil service, however. Over 100 constitutions provide for some form of state auditing procedure, and over 80 refer to some form of ombudsman. Freedom of information and transparency will likely be the next big wave. In my view, the fundamental and non-partisan character of these concepts and institutions has made them apt objects for constitutional regulation, and hence for discussion in this book.

The second issue is the perennial concern that good and efficient administration is being obstructed rather than enhanced by accountability devices such as rules and oversight, sometimes with a sanction of some sort. Most students considering the issue afresh will soon come to the view that some combination of leeway and oversight is necessary. Otherwise we will have both abuse of power and wayward organisation leading to inefficiency, if not outright crisis. How can one run a complex organisation such as the National Health Service or army without a lot of rules and oversight? The wisdom of this truth has long been recognised.

Among Max Weber’s many contributions to social thought was his distinction between three ways in which political authority was given legitimation in complex societies: charismatic authority (leading by dint of personality), traditional authority (relying on customs and institutions having long-standing acceptance), and rational legal authority (legitimacy based on rules, statute, and hierarchical bureaucratic organization).25 Weber modelled the third idea on the emergence of modern bureaucracy in Western, particularly European civilization. He also acknowledged the major role played by Roman law thinking. According to Weber, then, modern bureaucracy and law are joined together both conceptually and genealogically. The organisation of bureaucracy is loosely similar to the organisation of a legal system, with abstract rules setting out hierarchical relationships, and rational and clear allocation of duties and rights. Administering officials are appointed on merit and are conferred a degree of institutional independence from government to enable the dispassionate application of the rules and honest advice or counsel. This account describes the justice system nearly as well as it does the broader civil service, and this is no accident. Weber’s account, which is dominant, illustrates a high degree of unity between the very ideas of modern bureaucracy and law rather than any tension between them.

This is not to deny that conflicts between administrative government and formal oversight are real and very important. I mentioned the NHS and army above as requiring rules and oversight, yet both are notoriously free (at least until recently) from deep intrusion by courts of law. And Weber’s account is an ideal-type view of how bureaucracy functions. Writers on administrative justice have explored the relationship between administration and accountability in great depth. They distinguish, loosely, between internal and external forms of accountability.26 The internal controls concern things such as internally administered audit, managerial control, internal review, quality assessments, and so on. Jerry Mashaw’s Bureaucratic Justice27 is a masterful illustration of the comparative merits of internal oversight. External controls concern political accountability (local council, ministerial, or parliamentary), and legal accountability in courts and tribunals, and through administrative justice institutions such as ombudsmen. Getting the right mix of rules, discretion, and accountability is the holy grail of administrative justice. It requires constant experimentation and review, and varies over time and between communities. It is thus unfortunate that the UK government decided to abolish the Administrative Justice and Tribunals Council in 2013. Nonetheless, the following lessons have emerged from the post-war experience of administrative justice in the UK.

One relates to the role of ‘rules’ and policies in administrative decision-making. In America, Kenneth Culp Davis argued that administrative discretion is crucial but generates problems that judicial review alone can hardly control.28 He advocated structuring discretion through open policies, plans, and processes. Others such as Robert Baldwin and Keith Hawkins, echoing earlier observations from the social policy scholar Richard Titmuss, countered that this idea of rule-governed administration and its attendant ‘rights’ would constrict the exercise of beneficial discretion, and become like the ‘red-tape’ we all know and fear. It is interesting to note in this connection, however, that an ever-increasing number of state functions are being outsourced to private companies. So, care for the elderly, the running of prisons, and even ‘work capability assessments’ determining eligibility for core social security benefits are now frequently outsourced. The argument that rules are unnecessary and that public-spirited discretion should guide is not tenable in such situations. Furthermore, the types of rule are themselves variable. In practice, government departments tend to issue statutory guidance for carrying out statutory functions. Such guidance is not legally binding, but it may be unreasonable (and hence unlawful) to depart from it without cogent justification. This illustrates the potential for guiding standards short of binding rules, and how even courts of law can give weight to such standards without adopting an attitude of strict enforcement.

Another site of discussion is the role for legal accountability in complex administration. The administrative justice landscape has been shaped in the UK by the historical perception that courts were for the wealthy and that judges were biased, emerging from an elitist Bar. As the welfare and regulatory state blossomed, so too did the idea that administrative tribunals could provide adjudication that is cheaper, more accessible, and staffed with lay members to counteract bias and provide subject matter expertise. And as administration grew to behemoth proportions, the need for ombudsmen to investigate and report on maladministration became undeniable. Ombudsmen are cheap, accessible for complainants, and investigate poor administration rather than patent illegality. But the perception that law courts were pro-capital and anti-poor, whereas the new non-judicial accountability substitutes were somehow non-legal, continued to perpetuate misguided belief that legality was inherently neoliberal or conservative and that tribunals and ombudsmen should resist any change that might be seen as ‘juridification’.

In reality, the political complexion of the judiciary has changed enormously, and the political hostility to public law has shifted from left to right in organised politics. Indeed, the majority of judicial review is taken by marginalised groups or people resisting deportation in the immigration system. Bondy, Platt, and Sunkin estimate that, in their sample years taken prior to deep legal aid cuts in 2012, around 70 per cent of judicial review claims were funded through legal aid.29 The legal nature of tribunal decision-making is clearer than ever after the reforms initiated under the Tribunal, Courts and Enforcement Act 2007, and the ombudsman role has in my view grown into a component of rather than an alternative to the justice system. The danger here is that we risk letting the ghosts of the past rule the future of the constitution.

I would sum up these preceding views in the following way. Good government has important constitutional dimensions. Good bureaucracy operates on the application of rules, and requires a type of rationality, consistency, transparency, and responsibility that has legal-type characteristics. At the same time, its rules are mostly administered internally, and broad administrative discretion is an essential feature of good government. The rules and discretion of administration generate a demand for accountability. Accountability begins internally to the administration through hierarchical management, quality assessment, periodic reviews, and internal complaints procedures. External accountability arises where there is a special need for independence from the initial decision-maker, usually due to the potential for abuse of power, inertia, bias, or systemic incompetence. Where the conduct at issue is significant or at ‘macro’ level, political institutions will be well adapted to provide oversight. Where it concerns the breach of binding rules, fairness to individuals, or the basic rights of potentially marginalised groups, legal accountability is an attractive and often necessary option. The essence of legal accountability, in my contention, is the conferment upon individuals of a legal right to complain to an official body that is empowered to apply public standards and determine on the record in reasoned fashion whether such standards were breached.

Now, looking at the whole of this, we can say that some of these internal and external accountability features would be required to make any administration fair. But all of them are required to make any administration good.

p. 415p. 416p. 417Further Reading

  • Bovens, ‘Analysing and Assessing Accountability: A Conceptual Framework’ (2007) 13 European Law Journal 447
  • This paper discusses a conceptual framework for understanding accountability.

  • Mulgan, Holding Power to Account: Accountability in Modern Democracies (London 2003)
  • This book provides an overview of the concept of accountability in modern democracies.

    Online Resources

    Test your understanding of this chapter by answering the end-of-chapter questions here.

    Notes

    • 1 Hamilton, Madison, and Jay, The Federalist [1787–88] (Washington DC 1992), no 62.

    • 2 House of Commons Public Administration Select Committee, Good Government (HC 97 2008–09).

    • 3 eg if she owned land consisting of part of one of the potential sites, such that choosing that site would increase the value of that land.

    • 4 See www.public-standards.gov.uk. The other principles are accountability and transparency (which we address later) and leadership (meaning that ‘[h]olders of public office should promote and support [the other] principles by leadership and example’).

    • 5 Brandeis, ‘Other People’s Money’, Harper’s Weekly, 20 December 1913.

    • 6 See, eg Parliamentary and Health Service Ombudsman, Principles of Good Administration (London 2009).

    • 7 Mulgan, Good and Bad Power: The Ideals and Betrayals of Government (London 2006), pp 44–58.

    • 8 Mulgan, Holding Power to Account: Accountability in Modern Democracies (London 2003), p 1.

    • 9 Bovens, ‘Public Accountability’, in Ferlie, Lynn, and Pollitt (eds), The Oxford Handbook of Public Management (Oxford 2005), pp 184–5.

    • 10 See Day and Klein, Accountabilities: Five Public Services (London 1987), pp 4–29; Flinders, The Politics of Accountability in the Modern State (Aldershot 2001); Mashaw, ‘Accountability and Institutional Design: Some Thoughts on the Grammar of Governance’, in Dowdle (ed), Public Accountability: Designs, Dilemmas and Experiences (Cambridge 2006), pp 120–2; Bovens, ‘Analysing and Assessing Accountability: A Conceptual Framework’ (2007) 13 Eur LJ 447, 462–4.

    • 11 Dunn, Setting the People Free: The Story of Democracy (London 2005).

    • 12 Aristotle, The Politics (Harmondsworth 1962).

    • 13 Fixed-term Parliaments Act 2011.

    • 14 For more detail, see Chapter 11.

    • 15 The decision in 2003 to go to war in Iraq—which has been the subject of several public inquiries—being an obvious example.

    • 16 On inquiries, see Chapter 18.

    • 17 eg if the report of an inquiry or parliamentary committee captures public attention and harnesses public anger, the government may find itself backed into a corner.

    • 18 Judicial review is considered in detail in Chapters 1215.

    • 19 On tribunals, see Chapter 17.

    • 20 See, eg Bacon and Hope, Conundrum: Why Every Government Gets Things Wrong—And What We Can Do About It (London 2013).

    • 21 Blau and Meyer, Bureaucracy in Modern Society (New York 1987).

    • 22 See further Chapter 11.

    • 23 See further Chapter 16.

    • 24 Bovens, ‘Analysing and Assessing Accountability: A Conceptual Framework’ (2007) 13 Eur LJ 447, 455. See also Bovens, Schillemans, and Hart, ‘Does Public Accountability Work? An Assessment Tool’ (2008) 86 Public Administration 225, 227–30.

    • 25 Weber, ‘Politics as Vocation’, in Gerth and Wright Mills (translated and edited), From Max Weber: Essays in Sociology (New York 1946), pp 77–128 [originally published 1919]; Weber, Economy and Society: An Outline of Interpretive Sociology, eds Roth and Wittich (Berkeley, CA 1968), vol 1, Pt I, ch III; vol 2, ch XI [originally published 1922].

    • 26 Adler, ‘A Socio-Legal Approach to Administrative Justice’ (2003) 25 Law and Policy 323.

    • 27 Bureaucratic Justice: Managing Social Security Disability Claims (New Haven, CT 1985).

    • 28 Discretionary Justice: A Preliminary Inquiry (Baton Rouge, LA 1969).

    • 29 Bondy, Platt, and Sunkin, The Value and Effectiveness of Judical Review: The Nature of Claims, Their Outcomes, and Consequences (London 2015), pp 8, 48.

    © Mark Elliott and Robert Thomas 2020