Accountability in the Regulatory State
| Published date | 01 March 2000 |
| DOI | http://doi.org/10.1111/1467-6478.00146 |
| Date | 01 March 2000 |
Accountability has long been both a key theme and a key problem in
constitutional scholarship. The centrality of the accountability debates
in contemporary political and legal discourse is a product of the diffi-
culty of balancing the autonomy given to those exercising public power
with appropriate control. The traditional mechanisms of accountability
to Parliament and to the courts are problematic because in a complex
administrative state, characterized by widespread delegation of discre-
tion to actors located far from the centre of government, the conception
of centralized responsibility upon which traditional accountability mech-
anisms are based is often fictional. The problems of accountability have
been made manifest by the transformations wrought on public adminis-
tration by the new public management (NPM) revolution which have
further fragmented the public sector. In this article it is argued that if
public lawyers are to be reconciled to these changes then it will be
through recognizing the potential for additional or extended mecha-
nisms of accountability in supplementing or displacing traditional
accountability functions. The article identifies and develops two such
extended accountability models: interdependence and redundancy.
© Blackwell Publishers Ltd 2000, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Law Department, London School of Economics and Political Science,
Houghton Street, London WC2A 2AE, England
Much of the data for this paper is drawn from two collaborative empirical projects on the reg-
ulation of the public sector (ESRC grant no. L124251015) and of the UK Office of
Telecommunications (funded by the Leverhulme Trust, the Centre for the Study of Regulated
Industries, and the Suntory and Toyota International Centres for Research in Economics and
Related Disciplines). I am indebted to my collaborators, in particular to Christopher Hood. I
am also grateful to the following for comments on earlier drafts of this article: participants in
a LSE Law Department staff seminar, May 1999, a LSE MSc Regulation programme semi-
nar, May 1999, and the Law and Society Association annual meeting in Chicago, June 1999;
and Julia Black, Martin Loughlin, Imelda Maher, James Penner, Richard Rawlings, and the
editors. I remain responsible for errors.
38
JOURNAL OF LAW AND SOCIETY
VOLUME 27, NUMBER 1, MARCH 2000
ISSN: 0263–323X, pp. 38–60
Accountability in the Regulatory State
COLIN SCOTT*
39
© Blackwell Publishers Ltd 2000
INTRODUCTION
The central problem of accountability arises from the delegation of author-
ity to a wide range of public and some private actors, through legislation,
contracts or other mechanisms. Debates over accountability have to grap-
ple with the uncomfortable dilemma of how to give sufficient autonomy to
these actors for them to be able to achieve their tasks, while at the same
time ensuring an adequate degree of control.1Trust in mechanisms of
accountability is thus a central precondition for the legitimate delegation of
authority. In light of this analysis the distinction sometimes drawn between
accountability and control – control implying ex ante involvement in a
decision, while accountability is restricted to ex post oversight2– is not par-
ticularly helpful. This distinction, often found in public law accounts,3
appears to neglect the observation that there is implicit in the capacity to
call to account some element of control capacity.4It seems better to see
control and accountability as linked concepts,5operating on a continuum.
If we were to redraw the distinction it might be in terms that managerial
control refers to the right to ex ante involvement in decision making, while
accountability-based control refers to ex post oversight.
Accountability has long been both a key objective and key problem for
the constitutional law analysis of the British state.6The ill-defined objec-
tives lying behind the accountability concerns include the holding of public
actors to the democratic will (through a concept of legality) and promoting
fairness and rationality in administrative decision making. Central to this
concern has been the concept of ministerial responsibility.7The problem
derives from an acknowledgement that traditional mechanisms of account-
ability within the British state are weak instruments for achieving these
objectives, and the problem is perceived to grow in scale the more state
authority is delegated.
1B. Smith and D.C. Hague (eds.), The Dilemma of Accountability in Modern Government:
Independence Versus Control (1971).
2P. Birkinshaw, ‘Decision-Making and its Control in the Administrative Process – An
Overview’ in Law, Legitimacy and the Constitution, eds. P. McAuslan and J. McEldowney
(1985) 152.
3Compare R. Baldwin and C. McCrudden who treat control and accountability as syn-
onyms: Regulation and Public Law (1987) 35–45.
4P. Day and R. Klein suggest that holding to account is always likely to be premised upon
some capacity to control: Accountabilities: Five Public Services (1987) 227–9. G. Craig,
a public lawyer, argues for the retention of a distinction between control and accountabili-
ty: Administrative Law (3rd edn., 1994) 88–9.
5B. Stone, ‘Administrative Accountability in the ‘Westminster’ Democracies: Towards a New
Conceptual Framework’ (1995) 8 Governance 505.
6Notwithstanding the importance accorded to the concept of accountability in contemporary
political and legal discourse, neither A.V. Dicey, An Introduction to the Study of the Law of
the Constitution (10th edn., 1959) nor I. Jennings, The Law and the Constitution (5th edn.,
1959) showed much interest in the accountability in these terms.
7 Stone, op. cit., n. 5, p. 506.
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