Holding (Quasi-)Autonomous EU Administrative Actors to Public Account

Abstract:  This article addresses problems of accountability in relation to two specific kinds of administrative actors in the EU system of multilevel governance, namely comitology committees and EU-level agencies. With regard to both sets of actors, the accountability issue is often framed in terms of delegation from a principal to an agent. This article explores the delegation of powers discourse and the question whether this framing adequately covers accountability forums and mechanisms that are emerging as a matter of legal and institutional practice. The latter sub-constitutional level is particularly relevant given the high degree of institutionalisation of both categories of administrative actors. Using these two categories of administrative actors as case studies, this article suggests that a delegation model of accountability in a democratic sense is not adequate and only captures part of emerging practice. A looser conceptual framing, understanding public accountability as a process in which power is checked and balanced by various actors, fits better within a more constitutional perspective on holding EU executive power to account.     

Transparency Mechanisms: Building Publicness into Public Services

Recent changes in patterns of public service provision, sometimes associated with the 'regulatory state', have been said to have eroded citizenship and diminished accountability. This paper responds to these challenges by outlining a toolbox of four transparency mechanisms – information, choice, representation, and voice – as alternative devices that can be built into the architecture of public service regimes, to increase responsiveness and answerability. Using insights drawn from cybernetics and transaction cost analysis, this paper looks at the consequences of different choices of combinations of mechanisms in allocating authority in line with competing administrative doctrines of fiduciary trusteeship and consumer sovereignty. Attention is drawn to differences in 'cost profiles' between different public services that can facilitate or inhibit consumer choice as a basis for understanding the suitability of different combinations of mechanisms to specific public services. A contingency model determining the suitability of particular mechanisms to particular services of different 'cost-profiles' is presented. Given the variety of public services and among different public service architectures in the regulatory state, it is argued that this differentiated approach to transparency and accountability provides a more effective response to holding public services accountable than narrower traditional notions of political accountability.     

Bureaucracy, managerial disorganization, and administrative breakdown in criminal justice agencies

This article presents a novel way to explain managerial collapse in criminal justice agencies by analyzing traditional organizational perspectives. While recognizing the advances of human relations and contingency management theories, most criminal justice agencies in the twenty-first century remain hierarchical Weberian organizations characterized by mechanistic and formalistic operations, with specialized tasks and division of labor that create a narrow range of duties. Along with Weber, Fayol, and more recently, DiIulio and Wilson have argued that managerial quality determines organizational performance. This article extends that focus by using the theoretical perspective called managerial disorganization and administrative breakdown, hypothesizing that management is responsible for well-functioning and/or dysfunctional organizations. Through a series of examples from case studies where criminal justice agencies have failed, the article concludes that agencies experiencing administrative breakdown and managerial disorganization are not implementing their basic mission and inappropriately utilizing the organizational principles of division of labor, unity of command, span of control, accountability, hierarchy of authority, and communication.     

This Time,it's for Real: The Health and Social Care Act 2012

This article examines the Health and Social Care Act 2012 and associated reforms to the National Health Service in England. It focuses on the Act's policy of making the NHS market more ‘real’, by both encouraging and compelling NHS bodies to act as ‘market players’. The article considers whether the reforms are compatible with the constitutional requirements of accountability for the provision of a public service such as the NHS. It argues that the reforms threaten accountability for three reasons: they make the Secretary of State for Health's relationship with the NHS more complex, they create opaque networks of non‐statutory bodies which may influence NHS decision‐making, and (especially in relation to competition) they ‘juridify’ policy choices as matters of law. Taken together, these arguments suggest that there is force in the claim that the reforms will contribute to ‘creeping’ – and thus unaccountable – privatisation of the NHS.     

Promoting Accountability in Multilevel Governance: A Network Approach

Abstract:  This article addresses problems of accountability in the system of multilevel governance, organised around networks, as it exists in the EU. An 'accountability deficit' arises when gaps are left by the accountability machinery of the several levels of government, supranational and national. This article suggests a new evaluative framework based on the concept of 'accountability network', questioning the hierarchical and pyramidal assumptions that presently underpin accountability theory in the EU context. Using case studies of the Community courts and European Ombudsman, the article suggests that 'accountability networks' may be emerging, composed of agencies specialising in a specific mode of accountability, which come together or coalesce in a relationship of support, fortified by shared professional expertise and ethos. At present fragmentary and imperfect, these might ultimately be capable of providing effective machinery for accountability in network governance systems.     

Accountability, Control and Independence: The Case of European Agencies

This article points at two problematic assumptions made in some of the contemporary European agency literature. It proposes a conceptual framework, integrating accountability, autonomy and control, and aims to demonstrate how this type of conceptualisation contributes to clarifying problematic aspects of the current European agency debate. Empirical evidence from interviews with high-level practitioners is provided to illustrate the relevance of the proposed framework. The empirical information reveals that, at times, the de facto level of autonomy displayed by some European agencies is below the autonomy provided by the formal legal rules as a result of ongoing controls exercised by one (or other) of the principals. The repercussions that flow from these empirical insights for the agency debate in general, as well as for our understanding of agency accountability, will be discussed at length.     

The Chinese Social Credit System: A Model for Other Countries?

Many countries know financial consumer credit ratings, and recent years have also seen a proliferation of rating systems in relation to online platforms and in the ‘sharing economy’, such as eBay, Uber and Airbnb. In the view of many Western observers, however, the emerging Chinese Social Credit System indicates a paradigm shift compared to these former rating systems as it aims for a comprehensive and uniform social rating based on penalty and award mechanisms. By contrast, this article suggests that the evolving forms of the Chinese system should be seen as a specific instance of a wider phenomenon. Thus, it develops a framework that compares different rating systems by reference to their drafters, users, aims, scoring systems, application, use of algorithms, enforcement and accountability; it identifies shortcomings of both low and high interventionist rating systems; and it discusses a range of regulatory approaches and emerging issues that law makers should consider.     

A little local difficulty: the management of difficult-to-place people in Oxford.

So far we have outlined the cloud rather than the silver lining; and it is true, for example, that instances of "shared care that worked" could be found. But in general, the situation appeared to be that a small number of people posed difficult problems, often linked with aggression, for a range of agencies. It was perhaps ironic that many of the most difficult problems were picked up by the voluntary sector, which might be characterized as "the only place left to go" when statutory agencies decided that individuals had become too difficult to cope with. Interagency action was certainly possible, and attempted; but structural problems in its organization and differences of perspective between psychiatric and other agencies led to problems of implementation and sometimes to bad feelings. Part of the problem seemed to be that agency workers, in identifying individuals' needs, talked about the kinds of organizations that would be able to cope with the individuals. This limited their horizons. Individual "packages" of measures, perhaps in the form of "shared care," seemed eminently suited to the situation, provided they could be flexible enough to cope with quickly changing needs and provided that many of the relatively trivial details were systematically attended to--such as ensuring that everyone involved in a "package" knew the others' holiday dates. But this would not, by itself, be enough. Developments on these lines would also require movement in two other directions: on the one hand, to institute "top down" measures in the sense that the heads of agencies agree on the ground rules within which they could happen, and on the other, the delegation of more authority to rank-and-file workers to accept or refer cases. In some ways, this is a question of rethinking the forms of accountability within our statutory agencies. There will probably always be, as we have noted, a "rump" of people who cannot be helped perhaps because they do not wish to be; but the possibilities of more effective help and support for the rest were there to be grasped.     

Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform

Current trends intensify the longstanding problem of how the rule of law should be institutionalized in the welfare state. Welfare programs are being redesigned to increase their capacities to adapt to rapidly changing conditions and to tailor their responses to diverse clienteles. These developments challenge the understanding of legal accountability developed in the Warren Court era. This article reports on an emerging model of accountable administration that strives to reconcile programmatic flexibility with rule-of-law values. The model has been developed in the reform of state child protective services systems, but it has potentially broad application to public law. It also has novel implications for such basic rule-of-law issues as the choice between rules and standards, the relation of bureaucratic and judicial control, the proper scope of judicial intervention into dysfunctional public agencies, and the justiciability of "positive" (or social and economic) rights.     

Non-Electoral Accountability in Global Politics: Strengthening Democratic Control within the Global Garment Industry

This article challenges the widespread view that democraticaccountability is unattainable in global politics because ofthe impracticality of establishing global elections. Instead,it argues that global democratic accountability can potentiallybe achieved by instituting non-electoral mechanisms that performequivalent accountability functions through more workable institutionalmeans. This argument is defended at a theoretical level, andfurther illustrated by analysing an empirical case study ofthe institutions through which labour standards in the globalgarment industry are determined. The article first explainswhy electoral mechanisms are no longer a viable means for achievingdemocratic accountability in political contexts such as theglobal garment industry, that are characterized by the decentralizeddispersion of public decision-making power among a range oforganizationally disparate state and non-state actors. It thenidentifies the key democratic function of electoral accountabilityas that of ensuring a reasonable degree of public control overpublic decision-making, and argues that this normative functioncan, in principle, be legitimately performed through non-electoralas well as electoral mechanisms. Finally, it elaborates thekey institutional features of a legitimate framework of non-electoralaccountability – public transparency and public disempowerment– and illustrates how these functions could potentiallybe achieved in practice, with reference to the example of theglobal garment industry.     

Biology, childhood trauma, and murder: rethinking justice

This article reviews recent findings in the developmental neurophysiology of children subjected to psychological trauma. Studies link extreme neglect and abuse with long-term changes in the nervous and endocrine systems. A growing body of research literature indicates that individuals with severe trauma histories are at higher risk of behaving violently than those without such histories. This article links these two research areas by discussing how severe and protracted child abuse and/or neglect can lead to biological changes, putting these individuals at greater risk for committing homicide and other forms of violence than those without child maltreatment histories. The implications of these biological findings for forensic evaluations are discussed. Based on new understanding of the effects of child maltreatment, the authors invite law and mental health professionals to rethink their notions of justice and offender accountability, and they challenge policymakers to allocate funds for research into effective treatment and for service delivery.     

Citizen Redress in Public Contracting for Human Services

This article examines from a regulatory perspective the legal position of citizens in respect of contracted out human services. It argues that the inadequate protection of individual interests and the public interest here is a reflection of increasingly complex relationships between the state and independent sectors, expressed in the essentially hybrid character of contemporary public service organisation. Accordingly a hybrid reform strategy, rather than one that attempts to extend or develop private or public law in any particular direction, is most likely to be successful in addressing associated legal governance problems. The attainment of improved redress for service recipients, and increased accountability of contractors and other parties engaged in human services networks, requires the careful tailoring of remedies to the conditions prevailing in particular sectors. The goal of responsive law should be to foster qualities of good administration and respect for fundamental public interest values within the whole range of regulated agencies and bodies performing public service functions.     

Mind the Gap: Lacunae in the International Legal Framework Governing Private Military and Security Companies

Abstract

This article examines the common claim that there are gaps in international law that undermine accountability of private military and security companies. A multi-actor analysis examines this question in relation to the commission of international crimes, violations of fundamental human rights, and ordinary crimes. Without this critical first step of identifying specific deficiencies in international law, the debate about how to enhance accountability within this sector is likely to be misguided at best.     

Personal loyalty to superiors in criminal justice agencies

Public workers in general, and criminal justice workers in particular, have a problem understanding the concept of loyalty at the workplace—to what, to whom, and at what price. Despite the fact that rules and regulations almost never mention loyalty to superiors, this unexamined practice has been sacrosanct regardless of how unworthy, inefficient, or immoral these superiors may be. Furthermore, the obligation of loyalty to persons rather than principles can encourage corruption, promote mediocrity, and demoralize the workers. Ironically, if both workers and superiors were loyal to departmental values, they would, by natural association, be loyal to one another. In criminal justice agencies the selection of loyalty objects can be as intriguing as the fear of being accused of disloyalty is real. This article discusses the arguments for and against personal loyalty to superiors, the risks to public service inherent in such relationships, and the organizational dangers involved in such pacts. As an alternative to personal loyalty to superiors, this article proposes a professional model based on organizational identification and individual accountability in which dutiful supervision is strengthened while superiors are appreciated as philosopher kings, role models, and mentors.     

Accountability in the Regulatory State

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 difficulty 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 discretion to actors located far from the centre of government, the conception of centralized responsibility upon which traditional accountability mechanisms are based is often fictional. The problems of accountability have been made manifest by the transformations wrought on public administration 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 mechanisms of accountability in supplementing or displacing traditional accountability functions. The article identifies and develops two such extended accountability models: interdependence and redundancy     

Police authority and reform in Augustan Rome and nineteenth-century England

This paper examines the police reforms of Augustan Rome and nineteenth-century England against the back-ground of the sociohistorical conditions within which they occurred. It reveals that the localism of reforms in Rome and the centralizing reforms of England were part and parcel of the traditional and modern societies from which they developed. Although this analysis offers few, if any, unequivocal historical lessons concerning the local autonomy and public accountability of modern law enforcement, it does reveal one of its basic dilemmas. Today's police work rests upon a legal rational system of social organization. It is, nevertheless, carried out within the exigencies of local communities of which it is though to be responsive. This dualism between universalistic and particularistic principles underlies current discussions of crime control and order maintenance. Attempts to dissolve this dilemma by focusing upon crime control or order maintenance to the exclusion of the other are inadequate inasmuch as the dilemma belongs to the very structure of society. Consequently, solutions such as external review boards and monitoring agencies or civilian monitoring organizations seem more appropriate as a means of maintaining the presence of universal norms while at the same time increasing levels of public accountability.     

C. Wright Mills and higher immorality: implications for corporate crime,ethics, and peacemaking criminology

During the past decade, there was a resurgent tendency in criminology to explain emerging patterns of crime within the United States by referring solely to dysfunctional families or dysfunctional individuals. Other criminologists questioned these latter approaches as detaching individuals and crime from the social institutions that envelope them. In light of this recent attempt to link crime to social institutions, it seems fruitful to revisit the work of one of the most astute analysts of institutional structure: C. Wright Mills. Hence, this article begins with an overview of Mills’ sociological perspective and then shows how it provides useful insights into institutional sources of illegal behavior. The article also illustrates ways the Millsian perspective can be directly applied to an analysis of corporate crime in relation to other forms of crime emanating from the structure of contemporary U.S. society. After that, the article explores how the Millsian perspective can broaden understanding of the growing decline of ethics within America’s leading industries, governmental agencies, and the justice system. The article concludes by addressing policy implications, particularly in regard to the prospects of linking the Millsian perspective with basic tenets of peacemaking criminology.

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The effective design,implementation and enforcement of socio-economic equality duties: lessons from the pupil premium

Abstract

The UK has extremely high levels of socio-economic inequality, which are predicted to rise over the next five years. Traditionally, equality law was seen as inappropriate to address socio-economic inequality but in the last decade, a growing number of equality duties have been introduced to address this persistent form of inequality. There is, however, little research on the principles that underpin these duties. This article seeks to address this gap through the use of data from interviews conducted with primary school personnel implementing the pupil premium. The article explores understandings of socio-economic inequality by individuals in schools; policy conflicts; the wider context of action to address socio-economic inequality; different decision-making processes; and accountability mechanisms. On the basis of the findings of this study, broad principles are outlined to inform the design, implementation and enforcement of socio-economic equality duties in the future.     

Analysing and Assessing Accountability: A Conceptual Framework1

Abstract: It has been argued that the EU suffers from serious accountability deficits. But how can we establish the existence of accountability deficits? This article tries to get to grips with the appealing but elusive concept of accountability by asking three types of questions. First a conceptual one: what exactly is meant by accountability? In this article the concept of accountability is used in a rather narrow sense: 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. The second question is analytical: what types of accountability are involved? A series of dimensions of accountability are discerned that can be used to describe the various accountability relations and arrangements that can be found in the different domains of European governance. The third question is evaluative: how should we assess these accountability arrangements? The article provides three evaluative perspectives: a democratic, a constitutional and a learning perspective. Each of these perspectives may produce different types of accountability deficits.