Holding Power to Account: Accountability in Modern Democracies

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Politics Comparative Politics; UK Politics; Politics and International Studies title: author: publisher: isbn10 | asin: print isbn13: ebook isbn13: language: subject publication date: lcc: ddc: subject:

Holding Power to Account : Accountability in Modern Democracies Mulgan, R. G. Palgrave Macmillan (UK) 0333987683 9780333987681 9781403943835 English Democracy, Representative government and representation, Responsibility. 2003 JC423.M783 2003eb 321.8 Democracy, Representative government and representation, Responsibility.

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Page i Holding Power to Account

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Page ii Also by Richard Mulgan ARISTOTLE'S POLITICAL THEORY DEMOCRACY AND POWER IN NEW ZEALAND MAORI PAKEHA AND DEMOCRACY POLITICS IN NEW ZEALAND

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Page iii Holding Power to Account Accountability in Modern Democracies Richard Mulgan Graduate Program in Public Policy, Australian National University

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Page iv © Richard Mulgan 2003 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2003 by PALGRAVE MACMILLAN Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N.Y. 10010 Companies and representatives throughout the world PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin's Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 0–333–98768–3 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Mulgan, R. G. Holding power to account : accountability in modern democracies / Richard Mulgan. p. cm. Includes bibliographical references and index. ISBN 0–333–98768–3 1. Democracy. 2. Representative government and representation. 3. Responsibility. I. Title JC423.M783 2003 621.8—dc21 2003051407 Printed and bound in Great Britain by Antony Rowe Ltd, Chippenham and Eastbourne

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Page v For Aurelia

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Page vii Contents List of Tables viii Preface ix 1 Issues of Accountability 1 2 Government Accountability: Political Mechanisms 36 3 Government Accountability: Audit, Judicial Review and Other Mechanisms 75 4 Government Accountability Compared with Accountability in the Private Sectors 115 5 Public Sector Accountability and New Public Management Reforms 151 6 Locating Accountability: One or Many? 188 7 Accountability and its Limits 226 References 241 Index 250

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Page viii List of Tables 3.1 Mechanisms of government accountability 109 4.1 Government accountability compared with accountability in the non-government sectors 149 6.1 Single and multiple accountability 224

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Page ix Preface The term ‘accountability’ has leapt to prominence in the last two decades, becoming identified with one of the core values of democratic governance in the English-speaking world. However, unlike other core democratic values, such as freedom, justice and equality, accountability has not yet had time to accumulate a substantial tradition of academic analysis. Many authors have been writing about accountability in a variety of contexts, political, legal and commercial, but there has been little agreement, or even common ground of disagreement, over the general nature of accountability or its various mechanisms. This book attempts an overview of accountability, concentrating on the public sector though also discussing accountability in the commercial and non-profit private sectors. It aims to synthesise current thinking about accountability within a coherent and workable framework, to assess the strengths and weaknesses of different accountability regimes, and to identify the practical and desirable limits to accountability. The scope is broad, covering a range of countries and constitutional systems, and inevitably involves a high level of generalisation. Better understanding of the basic principles and progress towards a common framework of analysis, it is hoped, will compensate for the lack of detail. References are given to the main secondary authorities but, in the interests of an uncluttered text, online primary materials such as legislation and official documents are left unsourced on the assumption that readers can readily find their way to the relevant websites. This book was written while I have been a member of the Public Policy Program at the Australian National University and I am grateful to successive Program Directors, Francis Castles and Glenn Withers, for their unfashionably collegial leadership and for not holding me too much to account. I owe an inestimable debt to the international network of learned scholars who have analysed various aspects of accountability and whose writings are referred to in the text and bibliography. In addition, I must thank a number of friends and colleagues who have helped me at particular points: Peter Aucoin, Stephen Bottomley, John Braithwaite, Anna Cook, Carol Harlow, Janet McLean, Beryl Radin, Colin Scott and John Uhr. They have saved me from significant error,

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Page x while I retain responsibility (and accountability) for remaining deficiencies. As ever, my wife Aurelia has been a constant loving support throughout. Richard Mulgan Canberra March 2003

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Page 1 1 Issues of Accountability The demand for accountability ‘Accountability’ and ‘accountable’ are buzzwords of our era. Government services break down but no one is prepared to take responsibility – surely someone should be held ‘accountable’. Officials make farreaching decisions behind closed doors and deny the public access to their deliberations – where is ‘accountability’? Politicians openly abandon their election promises without suffering any retribution – how can we make them more ‘accountable’? Company directors and executives reward themselves at the expense of their shareholders even when their companies fail – shareholders demand more ‘accountability’ from management. Churches cover up sexual abuses practised by their priests on defenceless minors – the church must be made ‘accountable’. ‘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 that members of the public assert their right to question the experts and exercise ultimate control over them. The mounting demand for accountability is a symptom of a growing public anger at individuals and institutions that are supposed to pursue the public's interests but refuse to answer the public's questions or accept their directions. In theory, a democratic society should be built on respect for the rights and interests of all citizens. In practice, however, citizens face a widening gulf between themselves and the powerful institutions that are meant to serve them. During the last thirty years or so, the demand for more effective accountability has been steadily increasing. Throughout the developed

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Page 2 world, governments have faced declining public trust in their honesty and effectiveness as well as growing pressure from their citizens for improved access to government decisions and decision-makers. In retrospect, the Second World War and its immediate aftermath represented a high point in public confidence in public institutions and political processes (Putnam, 1995). Governments demonstrated an admirable capacity to mobilise their societies and economies for wartime defence and then for peacetime nation-building. In return, their citizens were more prepared to accept a certain highhandedness in the exercise of executive power, as revealed, for instance, in governments' reluctance to release official information or to accept searching scrutiny of their decisions. However, as the experience of national unity in wartime receded, so too did trust in politicians and officialdom. The comparative lack of government accountability appeared increasingly paternalistic and unjustifiable during the peace and prosperity of the long post-war boom. Improved standards of education gave more people a better awareness of how their systems of government operated and encouraged scepticism about government claims to be acting in the public interest. Improved communications, especially television, made politicians and public officials more publicly visible and more vulnerable to personal criticism. Government failures to counter increased public risk in areas such as food safety and pollution placed pressure on governments to become more accountable for protecting their citizens. From the 1970s on, reformist pressures received added impetus from the various grass-roots movements for radical change such as consumerism, environmentalism and feminism (sometimes referred to as the ‘new social movements’), all of which placed a strong value on popular participation in decision-making and embraced democratic activism. Their leaders proved adept at using both the media and legal channels of protest, and constantly pushed governments into responding more openly to public criticism. In response, governments worldwide have been forced to accept new channels of accountability, such as official information legislation, more active parliamentary committee systems and new investigative agencies (such as ombudsmen and anti-corruption agencies). In addition, the media have increasingly ventured into areas of political and government activity that were previously considered off limits. More recently, the internet has become an instrument of both government accessibility and citizen protest. As the twenty-first century begins, holders of public office are subject to considerably more points of public accountability than fifty years earlier.

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Page 3 Pressures for increased accountability were also felt within the private commercial sector as the activities of companies, especially multinational companies, came under closer scrutiny. Members of the new social movements criticised mining and forestry companies for their damaging effects on the environment, drug companies for their exploitation of third-world markets and cosmetic manufacturers for their exploitation of animals. They organised media-savvy boycotts and demonstrations to capture public attention. They also bought shares in targeted companies in order to use the annual general meetings as platforms for confronting the companies' directors and for further publicising their own agendas. More recently, the opposition has been extended to the extension of international free trade. Gatherings of international financial and commercial leaders have been disrupted by angry protestors. The increased spread of share-owning among the general population also opened companies up to equally pressing concerns about the extent of company accountability to ordinary shareholders. Organisations representing small shareholders began pressing for more transparency and accountability from company boards and executives, making critical comments on executive remuneration and on other issues that had been of little obvious concern to larger, institutional shareholders. The spectacular collapse of certain high-profile corporations raised searching questions about the accountability of directors and senior executives to their shareholders and their employees. In the non-profit sector, a number of institutions, notably the mainstream churches, have been subjected to determined scrutiny from rank-and-file members seeking apologies and other remedies for past maltreatment and abuse which previously went unchallenged. Several major scandals have shaken public confidence in charitable and religious organisations. The demand for accountability is not confined to the richer democracies. Throughout the developing world, citizens increasingly question the unaccountable power of governments and multinational companies as well as that of traditional authoritarian institutions. Members of educated professional elites are challenging political, business and religious organisations to be more open in their procedures and to allow more scope for critical scrutiny and public debate. They are looking to strong institutions of accountability, such as effective political opposition, an independent judiciary and free media, as means of making their societies both more free and more prosperous. They see the lack of transparency and the potential for corruption as an affront to increasingly universal democratic values. Lack of accountability also detracts from

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Page 4 the ‘good governance’ which is considered to be necessary for social and economic development. The worldwide movement in favour of increased accountability thus reflects a growing democratic assertiveness, an unwillingness to accept previously tolerated standards of secrecy and unaccountability. Institutions and their leaders are no longer being allowed to escape public scrutiny for actions that might once have gone unnoticed. At the same time, this new mood of criticism and scepticism is also being fuelled by growing arrogance and unaccountability among its prime targets. Powerful governments and major companies have not meekly accepted the public's demand for increased accountability. Instead, they have fought back with new counter-strategies of their own, particularly the reduction in the size and scope of the public sector. Given that government institutions have generally been held to higher standards of public accountability than institutions in the private sector, one means of reducing levels of accountability has been to diminish the extent of government activity. Under strong prompting from their business sectors, governments have transferred the provision of many functions from public service departments to private contractors and have transferred the ownership of many public assets to the private sector. While the move to outsourcing and privatisation has been mainly justified in terms of improved efficiency and a strengthened private sector, an accountability agenda has also aimed to circumvent some of the intensive accountability standards applied to the public sector. Indeed, the superior efficiency of the private sector has been partly attributed to the absence of the public sector's obsession with following correct procedures, an obsession forced on it by the constant pressure to be publicly accountable. In this respect, accountability has been traded off for increased efficiency. More broadly, problems of accountability have been heightened by the growing of power of international business in relation to national governments. The liberalisation and globalisation of financial markets has reduced the scope for governments to pursue policies in opposition to the interests of international investors, including policies that impose unwanted accountability regimes on individual companies. While financial markets may welcome greater transparency of financial information and the enforcement of commercial law, they are much less sympathetic towards attempts to hold companies accountable in terms of environmental or other social goals. Governments have been the major agents of accountability in society, both by setting a higher standard of accountability for the public sector itself and also by being

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Page 5 the major enforcers of accountability on the other sectors of society. Trends that reduce the scope of governments and weaken their power therefore tend to reduce the overall extent of accountability. The globalisation of international capital thus threatens many traditional aspects of accountability and has introduced a new sense of urgency into worldwide campaigns to make powerful institutions more accountable (Braithwaite and Drahos, 2000). At the same time, international governmental institutions, such as the International Monetary Fund (IMF), the World Bank and the World Trade Organisation (WTO), exercise growing control over nation states and their policies but are far less accountable to ordinary citizens than the institutions of national governments, particularly in democracies. However, globalisation itself, understood as the greater interconnectedness of social interaction across national boundaries (Held et al., 1999, p. 2), is not entirely hostile to accountability. While, in some respects, it may weaken the capacity of national governments both to constrain private companies and to determine their own destinies, it also opens up new possibilities of communication and networking that can be used to expose and resist the activities of institutions. The new social movements have been quick to exploit the new international technology, including the internet, to bring pressure to bear on both governments and corporations. International monitoring bodies, such as Amnesty International and Human Rights Watch, have taken up the challenge of holding both governments and international agencies accountable. The contest between the powerful and those who wish to call them to account is being transferred to a new, larger and unpredictable battleground. The need for analysis Accountability is thus a highly controversial issue and the subject of considerable political conflict. At the same time, the concept itself remains unclear and contested. What is the meaning of ‘accountability’ and how does it differ from related terms such as ‘responsibility’, ‘control’ and ‘responsiveness’? Beyond questions of definition, lie disputed issues of institutional design. Is institutional accountability best achieved through centralised concentration of control or through dispersed power and delegated responsibilities? Does external scrutiny militate against professional trust and efficiency among the staff of an organisation? Do individual members of staff have accountability obligations that conflict with those of their organisations? On all such questions, linguistic and practical, the experts disagree.

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Page 6 Analytical confusion over the meaning of ‘accountability’ is partly due to the fact that ‘accountability’ has only recently become popular as a generic term for scrutinising and controlling authority. (It also has no obvious equivalent in other European languages (Dubnick, 1998, pp. 69–70; Harlow, 2002, pp. 7–8).) Twenty years ago or more, the term was much more limited in scope, being largely confined to the areas of financial accounting and audit (for example, Normanton, 1966). Since the 1980s, the widespread adoption of accounting and audit not only as techniques of financial oversight but also as general models for management processes, public as well as private (Power, 1994, 1997), has helped to project ‘accountability’ as the preferred name for processes of general scrutiny and rectification. But unlike other major political concepts, such as ‘democracy’, ‘representation’, ‘liberty’ or ‘responsibility’, ‘accountability’ has not yet had time to acquire an established tradition of academic analysis which could provide an agreed basis for further discussion and research. One of the aims of the present study is to help clarify present-day usage of the term and to argue for a core sense of ‘accountability’ which, it is hoped, will best serve the purposes of analysis. Problems of accountability tend to be longstanding issues in institutional practice and design which have been given a new twist by being viewed through a fresh conceptual prism. One of the potential benefits of the new vogue for ‘accountability’ is to relocate the study of government–citizen relationships within a wider context. Political scientists and public lawyers have tended to concentrate on the public sector, treating it as distinct and unique and neglecting the extent to which private sector organisations share similar characteristics. As the public sector adopts more management methods from the private sector and as the line between public and private becomes increasingly blurred (Oliver, 1999; Scott, 2000), such a strict intellectual demarcation has become indefensible (Parker, 2002, Ch. 1). The present study retains a public sector focus in that it begins by outlining the mechanisms of government accountability, concentrating on the institutions of national government (Chapters 2 and 3). But it then compares government accountability with accountability in both the private commercial sector and the private nonprofit sector, identifying points of similarity and difference (Chapter 4). This will provide a context in which to examine moves to extend private sector management practices into the public sector (Chapter 5) and to analyse certain problems of institutionalising accountability which are found in all sectors and are not, as sometimes thought, unique to the public sector (Chapter 6).

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Page 7 The scope of this study is comparative, drawing on experience from a number of English-speaking developed countries, principally Australia, Canada, New Zealand, the United Kingdom and the United States. Again the purpose is to enlarge understanding, by indicating how far the issues of accountability may be generic in modern democratic regimes and how much they depend on each country's unique historical experience. The coverage is admittedly restricted, concentrating on members of a common tradition with constitutional roots in eighteenth-century Britain, four of which, apart from the United States, are members of the loosely defined ‘Westminster’ family of nations. However, apart from the sharp constitutional divide between the presidential system in the United States, with its clear separation of the executive and legislative powers and the other parliamentary systems, significant differences also exist within the four Westminster-based systems. Australia and Canada, for instance, are federal systems, with legal sovereignty divided between the nation and its constituent states (Australia) or between provinces (Canada). New Zealand, on the other hand, is a straightforward unitary system while the United Kingdom, originally unitary, has ceded elements of sovereignty to the European Union and devolved powers to regional assemblies in Scotland and Wales. Moreover, the role of second parliamentary chambers is also different, ranging from the elected and almost co-equal Australian Senate, through the appointed United Kingdom House of Lords and Canadian Senate, to New Zealand's unicameral Parliament which lacks a second chamber. The extent of divergence has led some nationalistic analysts outside the United Kingdom to reject the description ‘Westminster’ on the ground that it implies a false coincidence of constitutional practice and cedes pre-eminence to United Kingdom precedents. In many areas of accountability, for instance, the United Kingdom has in fact lagged behind some of its historical offspring. None the less, ‘Westminster’ remains a convenient label for a group of countries which still share some common institutional practices, particularly the general conventions of ministerial responsibility which are central to government accountability. The core sense of ‘accountability’ and its rationale In the process of acquiring popularity and becoming a common term in everyday usage, ‘accountability’ has sometimes extended its meaning beyond the original core sense of holding someone to account and has taken over some of the linguistic work previously done by other cognate words. For instance, where previously people tended to talk of the

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Page 8 ‘responsibility’ of officials to the public or the ‘responsibility’ of ministers to Parliament, it is now more common to refer to types of ‘accountability’ (Mulgan, 2000a). Legal or constitutional constraints on governments and companies are now sometimes described as mechanisms of ‘accountability’, as are structures of market competition. ‘Accountability’ has come to stand as a general term for any mechanism that makes powerful institutions responsive to their particular publics. In the process, it runs the risk of becoming imprecise and loaded with rhetorical overtones. A study of accountability can therefore usefully begin with an analysis of the core meaning of the term and how it relates to other key terms, such as ‘responsibility’, ‘control’ and ‘responsiveness’. The core meaning of ‘accountability’ is best approached through everyday experience with delegated power. In many areas of our busy lives, we must rely on others to do things we cannot do for ourselves. Because we have neither the time nor the technical knowledge to perform the many tasks needed to get what we want, we must make use of skilled professionals to advise us or to act for us as our nominated representatives or agents. We need to call on doctors, lawyers, computer specialists, as well as banks, insurance companies and travel agents. We must also accept the coercive authority of government to provide the law and order and many other collective public benefits we cannot provide ourselves. Yet once we have entrusted other people or institutions to act on our behalf, what guarantee have we that they will pursue our interests rather than their own? How can we seek redress if they abuse our trust? The essence of delegation is to empower others to make their own decisions and to use their own judgment about how best to serve us. But, human nature being what it is, those who have been given such power tend to use it to favour themselves at the expense of their clients. What is more, they may turn the power back on those from whom it is supposedly derived. Government officials, when dealing with individual citizens they are supposed to serve, may treat them with insensitivity and contempt for their rights. Police officers, authorised to protect the public, may use their extensive powers to victimise innocent and defenceless minorities. Private utility companies, licensed and supposedly regulated by the community, may abuse their monopoly power to constrain the choices of consumers. In this way, the servant becomes the master and the master the servant. How is such a reversal of roles to be prevented? How can those who delegate (or ‘principals’) check the actions of those whom they delegate (their ‘agents’)? Total control is impossible, given the need to allow at

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Page 9 least some degree of discretion and personal responsibility on the part of the agent. We can never specify in advance every action that an agent will need to take. For this reason, the first line of protection is to depend on the agent's own conscientiousness and professional ethics. But such trust has its limits and must be supplemented and reinforced by other forms of control. One important means of protecting the interests of principals is the principal's right to call an agent to ‘account’. The original, and still important, type of ‘account’ is the financial account which involves a report on revenue and expenditure. An ‘account’ may also take other forms, such as a general report on performance or a response to a specific inquiry or investigation. The agent may be asked simply to provide information or may need to explain and justify what has been done in the light of public questioning. These scrutinising functions of seeking information, explanation and justification, understood as the capacity of principals to call their agents to account, help to make the agent's actions transparent and form the essential basis of accountability. But accountability implies more than the interchange of questioning and answering and the pursuit of transparency. Agents must not only be ‘called’ to account; they must also be ‘held’ to account. Accountability is incomplete without effective rectification. Where institutions or officials are found to have been at fault, there must be some means of imposing remedies, by penalising the offenders and compensating the victims. When this does not happen, for instance when no one is prepared to accept responsibility or when no restitution is forthcoming, we complain that there has been no accountability. Accountability thus involves an element of retributive justice in making the guilty pay for their wrongdoing. The principal must be able to have remedies or sanctions imposed on the agent as part of the right of authoritative direction that lies at the heart of the accountability relationship. Some analyses of accountability (for example, Jabbra and Dwivedi, 1988, p. 5) exclude the final component of rectification and sanctions, restricting themselves to the earlier stages of reporting, explaining, justifying and discussing. Certainly, these prior functions are basic to accountability. Forcing people to explain what they have done is perhaps the essential component of making them accountable. In this sense, the core of accountability becomes a dialogue between accountors and account-holders (Harmon, 1995, pp. 191–7), using a shared ‘language of justification’ (Day and Klein, 1987, p. 5). Moreover, there are some scrutinising procedures which are confined to information and explanation which we still count as accountability procedures. For instance,

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Page 10 legislative committees and ombudsmen investigate the activities of public servants and can make recommendations about suggested improvements. Though they have no power to enforce changes, they certainly provide accountability. However, sanctions are usually available elsewhere. For instance, the exposure of wrongdoing by auditors lacking power to enforce sanctions themselves can lead to rectification through the criminal justice system. Moreover, monitoring mechanisms operate within a broader political and constitutional framework in which the executive can be expected to respond positively to sensible and publicly acceptable recommendations for remedies and improvements. In many contexts, the simple act of being forced to disclose an improper action is sufficient to induce the offender to repent and to seek to repair any damage without any need to resort to formal penalties (Bovens, 1998, pp. 39–40). But this reflects the variety of means of achieving rectification and the flexibility of what can count as an effective sanction rather than any clear distinction between accountability and rectification. If scrutiny and transparency never resulted in remedial action, including, where necessary the punishment of those found responsible for improper action, the process of accountability would be seriously incomplete. The full core sense of accountability thus includes the right of the account-holder to investigate and scrutinise the actions of the agent by seeking information and explanations and the right to impose remedies and sanctions. Conversely, for the accountor, the agent, accountability implies the duty to inform and explain to the account-holder and to accept remedies and sanctions. Within this process, we may identify an inner core consisting of the prior rights of investigation and scrutiny, and the parallel obligations to inform and explain. Complete accountability, however, requires the addition of remedies and sanctions. Strictly speaking, the concept of accountability implies potentiality (accountability), the possibility of being called and held to account. Someone can therefore be accountable without actually being called to account. All that is necessary is that some account-holder has a right to call the agent to account, not that this right is actually exercised. Thus professionals in a position of trust, such as elected leaders or public officials, can say that they are accountable for everything they do, meaning that they are liable to be questioned about any of their actions and that there is no area of their behaviour that is free from public scrutiny. They do not mean that every action actually is questioned, only that every action might be. In similar vein, one academic analysis of accountability equates it with ‘the management of expectations’ whereby agencies and officials deal with various avenues of accountability to

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Page 11 which they may be subject (Romzek and Dubnick, 1987). Accountability is not so much being called to account as the expectation of being called to account. In practice, however, ‘accountability’ normally refers to the actual practice of calling and holding people and institutions to account. For instance, the demand for accountability is often a demand that someone should answer for their actions and accept the consequences. If no one answers we incline to say that no one is accountable, though we could also say that those who are accountable (that is, under an obligation to answer) are refusing to answer. The difference between the potential and actual senses of ‘accountability’ is usually clear from the context. Accountability is a relationship of social interaction and exchange involving complementary rights on the part of the account-holder and obligations on the part of the accountor. The relationship is unequal in that ultimate moral authority or priority lies with the account-holder whose rights and interests provide the rationale for accountability and to whom the obligations of accountability are owed. Without some recognition of such authority, accountability becomes mere grace-and-favour reporting or informing. Thus a head teacher giving information to school pupils or an army sergeant answering questions from a private are reporting and answering but they are not exercising accountability. Similarly, an independent organisation, such as a central bank, may choose to become more ‘transparent’ by publishing more information but it is not thereby becoming more accountable. Only if the people receiving the information have the right to demand it and to seek remedies, is the relationship one of accountability. Purely voluntary or grace-and-favour transparency does not amount to accountability. Moral authority, of course, does not necessarily entail actual power. The principal who holds rights of accountability is often in a position of weakness against his or her supposed agent. Such weakness, indeed, often provides the reason for accountability in the first place. But accountability normally implies the moral priority of the person or persons to whom the account is owed. Accountability is also possible between moral equals provided it is reciprocal, that is when several people are accountable to each other. Members of a professional partnership or marriage partners may consider themselves mutually accountable, in that each has the right to hold the other or others to account. In a constitutional system of separated powers, the executive, legislature and judiciary each hold the others to account. No one party is wholly superior or subordinate but rather each is equally both superior and subordinate, depending on whether rights are being asserted or obligations accepted.

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Page 12 But each accountability relationship itself is essentially unequal in that it entitles the account-holder to make demands of the person being held to account. The rationale for accountability is based on two broad types of justification. One involves rights of prior authority or ownership, as in the central defining case of delegated power. Because the account-holder grants authority to the agent or asks the agent to look after his or her property, the account-holder has the right to call the agent to account. Accountability is thus closely linked with the principles of democracy, understood as government which draws its authority from the people and is ultimately owned by the people (Day and Klein, 1987, Ch. 1). Democrats face the classic accountability problem of making elected governments and their agencies responsive to the wishes and interests of the people. The purest form of democracy requires everyone to participate equally in making decisions. But even in ancient Athenian democracy where many issues were determined in this way in the popular assembly, specialist officials and boards were needed to perform the many day-to-day administrative tasks. To prevent these officials from abusing their power or straying too far from the people's preferences, the Athenians instituted a system of regular scrutiny or accounting where officials had to account to the assembly for their handling of public funds and other decisions (Hansen, 1991, pp. 222–4). Accounting then, as now, consisted partly in the comparatively technical and objective certification of financial income and expenditure and partly in the more open-ended justification and discussion of actions and decisions. In modern representative democracies, little direct power remains to the people who must rely almost entirely on professional politicians and bureaucrats. Specialist institutions of accountability thus become increasingly important as means by which the public can try to keep their governments in line. Auditors and courts monitor compliance with financial and legal procedures while legislatures and the media subject government to constant scrutiny and debate. The ultimate accountability mechanism is the democratic election in which the incumbent government leaders are required to account for their tenure in office and face potential dismissal by the voters. By making governments answer to their ultimate owners, the people, accountability also encourages public deliberation and participation, key aspects of democratic citizenship. Accountability, the giving of an ‘account’, is grounded in language and communication, in information and argument (March and Olsen, 1995, Ch. 5). It involves not only

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Page 13 reporting and informing but also explaining, justifying and responding to criticism. Accountability forces members of the government into dialogue with their citizens and therefore contributes directly to the ongoing debate about the public good which advocates of deliberative democracy identify as the essential feature of a democratic society (Day and Klein, 1987, p. 244; Parker, 2002, pp. 37–8). A second justification for accountability involves the principle that those whose rights or interests are adversely affected by the actions of someone else have a right to hold that person to account for the manner in which they have been treated. Thus, a home-owner may hold a neighbour accountable for making excessive noise late at night or a township may hold a commercial company accountable for damaging the local environment. Such rights are often formally set out in legal regulations or legally binding contracts but they reflect and articulate basic social obligations in which members of society are required to recognise the value of each others' rights and interests. In a liberal society, these obligations are usually confined to the prevention of adverse effects or harm to others and do not extend to any general duty to accept direction from others. With respect to the rights of citizens against the government, this ‘principle of affected rights and interests’ supplements the ‘principle of ownership’ in justifying their rights to hold the government to account. Because the government has extensive coercive powers which can adversely affect the interests of its citizens, citizens need to be able to hold the government to account for the manner in which it uses these powers against them. Indeed, such rights apply not only to full citizens but to anyone who happens to be affected by a government's actions, for instance, to temporary residents or transient foreigners. The ‘principle of affected rights and interests’ is particularly important in justifying the wider social accountability of privately owned corporations. In such cases, accountability based on the ‘principle of ownership’ extends only as far as owners and shareholders and does not cover the community as a whole. In so far as private companies can adversely affect the rights and interests of citizens other than just their shareholders, they must expect to be held publicly accountable by the wider community. Such accountability is generally exercised by governments on the people's behalf through legal regulation. But the ultimate rationale for regulation is that private companies and individuals are answerable to the communities in which they operate. In an increasingly internationalised world, many privately owned commercial companies exercise more power than some individual nation states. Indeed, in modern

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Page 14 democracies, the problem of regulating large, multinational companies and holding them to account for breaches of laws and regulations is often even more pressing than the control of government power. This rationale for accountability, the need to keep powerful institutions from harming the interests of the public, clearly extends across all sectors of society and is not confined simply to the government sector. The extent of this justification, however, is more circumscribed, being restricted to the prevention of harm and not encompassing, like the principle of ownership, a general right to determine overall purposes and objectives. Ideally, in a perfect world, where all organisations and individual office-holders could be trusted not to abuse their positions of power, the need for accountability would be comparatively limited. Citizens might still wish to be informed about what the various parts of their government were doing and might also wish to engage in public discussion about the directions of government policy. Some reporting and debating mechanisms would therefore still be needed. Shareholders, too, might wish to share in discussions about their companies' directions. But, on the assumption that no leaders or officials would ever wish to abuse their position or bend the law in their own interest, other aspects of accountability would become redundant. There would be no need for watchdog functions such as checking for compliance with laws and regulations or rectifying mistakes or failures. Those in positions of power could be trusted to act professionally in the public interest without being subject to external scrutiny. We do not live in such a world. The need for extensive mechanisms of accountability is largely a consequence of the natural human propensity to place self-interest above the public interest. People with power have a well-documented tendency to use it for their own ends unless they are subjected to scrutiny and threatened with possible sanctions if they transgress. At the same time, extreme pessimism about human motivation is as implausible as extreme optimism. No society or individual organisation can operate successfully without a degree of interpersonal trust. Even people exposed to the temptations of high office can often be trusted to act voluntarily in the public interest. External scrutiny should not be relied on as the sole motivator of conscientious performance but is rather to be seen as supplementing and reinforcing the willingness of organisations and individuals to act properly without external prompting. Striking a balance between external accountability and trust in voluntary compliance is a key issue in designing accountability systems (Chapter 7).

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Page 15 ‘Accountability’ and ‘responsibility’ If ‘accountability’ is understood in its core sense of calling and holding institutions and officials to account, it needs to be carefully distinguished from several other types of related processes with which it has sometimes been equated (Mulgan, 2000a). First, it should be distinguished from a term of very similar and sometimes overlapping meaning – ‘responsibility’. The core sense of accountability implies a relationship between two parties, account-holder and accountor, in which the person or body held accountable (the accountor or agent) is subject to external scrutiny from another person or body (the account-holder or principal). Accountability therefore does not apply to situations where a person or body acts responsibly solely on the basis of personal judgement without concern for external scrutiny, for instance out of conscientious concern for the good of the public or out of respect for professional standards. ‘Responsibility’, in the sense of the capacity to act from free choice and with due concern for one's duties and obligations, is therefore to be distinguished from ‘accountability’, in the sense of being called to account for one's actions. ‘Responsibility’, in this sense, refers to internal aspects of action whereas ‘accountability’ implies external scrutiny from someone else. The two concepts are closely connected, in that holding someone to account usually implies (in the standard individual case where one person is the designated agent of another) that the designated person is personally responsible for his or her actions. One holds one's lawyer or doctor accountable for the decisions for which he or she was responsible. In the case of collective actions, however, accountability and responsibility may be distinct. The chief executive may be accountable though not personally responsible (Flinders, 2002a, pp. 11–12) (a distinction that can also be made in terms of role and personal accountability or responsibility (see below, Chapter 6)). Conversely, responsibility usually entails accountability but not always. One can act with free choice and responsibly without being called to account. This linguistic distinction between external ‘accountability’ and internal ‘responsibility’ is far from universally accepted. For instance, the term ‘responsibility’ has often been used to cover both aspects. ‘Responsibility’, like ‘accountability’, has its linguistic origins in an external relationship, the duty to ‘respond’ or answer to someone else. It developed its internal sense from the logical connection between being able to answer externally for one's actions and having freely chosen them. Acting ‘responsibly’ implies being liable to praise or blame and thus refers to actions one can call one's own (Lucas, 1993). While

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Page 16 this internal application of ‘responsibility’ has now become the dominant sense, the external application still persists. For instance, in the United Kingdom and other countries based on the same Westminster tradition, it is still common to talk of ‘ministerial responsibility’, meaning the obligation of ministers to answer to Parliament. The classic public administration debate in the United States between Carl Friedrich (1940) and Herman Finer (1941) over the respective importance of professional duty and external control was conducted in terms of the respective merits of two types of ‘responsibility’. Friedrich sought to emphasise the internal responsibility of public servants to their professional standards and values while Finer reasserted the primacy of responsibility to external political direction (that is, ‘accountability’ in the core sense). More recently, Mark Bovens, in his analysis of accountability in complex organisations, adopted a distinction between ‘active’ responsibility, the capacity to choose and act morally, and ‘passive’ responsibility, the capacity to be called to account (that is, ‘accountability’ in the core sense) (Bovens, 1998, pp. 26–31; see also Kernaghan and Siegel, 1999, pp. 369–70; Gregory, 2003). At the same time, ‘accountability’ has itself sometimes been given the dual role more commonly associated with ‘responsibility’, being extended, like ‘responsibility’ before it, from external answering to internal action. Thus, the Friedrich–Finer debate, originally framed in terms of different types of ‘responsibility’, is now commonly referred to as a debate over types of ‘accountability’ (for example, Harmon and Mayer, 1986, pp. 47–9; Romzek and Dubnick, 1987, p. 229; March and Olsen, 1995, pp. 165–7; Peters, 1995, p. 318). A number of recent analyses of accountability have included the pursuit of professional or personal values as types of accountability. For example, Patricia Day and Rudolf Klein describe actions based on professional values as exemplifying an ‘internalised’ sense of accountability (Day and Klein, 1987, p. 229; see also Leat, 1990; Sinclair, 1995; Corbett, 1996, Ch. 9). Professionalism and a concern for ethical values is described by Paul Light as ‘capacity-accountability’ (Light, 1993). Etymologically, the extension of meaning has a certain logic. Why should not ‘accountability’ follow the same route as ‘responsibility’, from externality to internality? If exercising judgment in line with professional values is a clear case of personal or professional ‘responsibility’, why not also call it an exercise of personal or professional ‘accountability’? The relative importance of external controls and individual values in making public officials democratically responsive is the subject of continuing debate which will recur throughout this study. The present

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Page 17 question concerns only the terminology in which the debate is to be framed. Is it a contest between two types of ‘responsibility’, between two types of ‘accountability’, or between ‘accountability’ and ‘responsibility’? In terms of the core sense of ‘accountability’ being adopted in this study, ‘accountability’ can stand only for external scrutiny and remedies, leaving ‘responsibility’ to cover actions taken freely from personal conviction. Such a division of linguistic labour between ‘accountability’ and ‘responsibility’ preserves the external aspect which appears central to the concept of accountability while recognising the well-established internal sense of responsibility (Uhr, 1993). In these terms, it still makes sense to talk of professional or personal ‘accountability’, provided that reference is being made to the external scrutiny to which individuals may be subject. Though professionals do exercise a high degree of personal discretion, they may also be accountable to others. For instance, doctors make many decisions on the basis of their own professional judgment yet they are also subject to professional disciplinary bodies and legal action. In this sense, they are accountable for everything they do because any action they take can be subjected to searching external inquiry. In the same way, public servants are accountable for the discretionary decisions they make because they can be required to account to their superiors or to outside bodies for anything they have done. Accountability, it is to be remembered, can sometimes refer simply to the possibility of being called to account (accountability). In this respect most professionals are highly accountable even if rarely called to account. What is more questionable, however, is the extension from this sense of personal or professional accountability, meaning the possibility of being called to account for individual decisions, to include a personal commitment to act responsibly in the absence of any external scrutiny, actual or potential. For instance, in the non-profit sector, volunteers for charitable organisations often act in the interests of others out of reasons of personal conviction or altruistic concern, with no likelihood that they will be required to account for their actions. Because they act responsibly and ‘take account’ of the interests of others, they may consider themselves as being accountable, an attitude that has been described as a form of ‘voluntary’ accountability (Leat, 1990). However, where the recipients of charity have no recognised rights to complain or demand redress or otherwise hold the volunteers accountable, such graceand-favour sensitivity by volunteers hardly counts as accountability at all. To describe it as such only serves to hide the lack of external scrutiny and remedies that pervades the non-profit sector (Chapter 4). Similarly,

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Page 18 when appointed board members or officials claim to be personally accountable to themselves or to their sense of duty (Day and Klein, 1987, p. 229), they do so because they are unwilling to admit that they are, in practice, not accountable to any external authority. Because ‘accountability’ has become such a strongly positive value, like ‘democracy’ itself, people who act responsibly in the interests of others wish to claim that they are therefore accountable to others. While such extensions of meaning are quite understandable, they dilute the meaning of ‘accountability’ and thereby undermine the importance of its core mechanisms. In this way, the choice of definitional boundaries becomes more than a merely linguistic decision and begins to reflect policy preferences. Those who wish to follow Friedrich in emphasising the importance of administrative discretion and professional values are more likely to favour an expansive sense of ‘accountability’ which encompasses acting purely out of personal conviction and professional judgment without any prospect of external scrutiny. On the other hand, those, like Finer, who are more sceptical of personal discretion and selfregulation and wish to emphasise the value of external checks, will tend to favour a narrower meaning which restricts ‘accountability’ to its core sense. The choice also tends to reflect the standpoint of analysis. A focus on internal management from the perspective of the public official or manager will encourage a softer view of accountability which includes such values as professional judgment, personal integrity and trust. Starting from the outside, however, from the position of an ordinary member of the public seeking answers from powerful organisations (Nader, 1980; Lewis and Birkinshaw, 1993) leads to a tougher concentration on external scrutiny and rectification. ‘Accountability’ and ‘control’ A second restriction on the scope of accountability follows from the fact that it is retrospective in operation. Accountability, in its core sense, involves inquiring into actions after they have occurred and imposing remedies or sanctions for past breaches of rules and instructions. Admittedly, the prospect of sanctions has an important deterrent effect on those held accountable. In this respect, accountability, like any enforcement procedure, can be seen as designed to influence the future as much as to judge the past. Accountability is generally ineffective if it acts as a ‘dead end’ (Day and Klein, 1987, p. 244; Power, 1997, p. 127), closing off further investigation without leading to improvements. However, in its actual implementation, accountability operates after the

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Page 19 event, as a means of investigating and, if necessary, penalising past breaches of rules or instructions (Normanton, 1966, p. 24). Like retributive justice, which it includes, accountability is essentially backward-looking. Accountability is therefore to be distinguished from the various forward-looking controls, including laws and regulations, under which different institutions and their members are required to act. For instance, government agencies are subject to legislative directions setting out their functions and determining the powers they may use in fulfilling these functions. Within each agency, public servants are required to follow the various administrative rules and guidelines established under the agency's legal authority. But such legal and administrative controls, though they may be important in making public servants more responsive to the interests of the public, are not themselves mechanisms of accountability. Accountability does not come into play until procedures are required for enforcing the rules and guidelines, for determining how public servants are to be made to answer for their conduct and, if necessary, made to accept sanctions. Similarly, all institutions, private as well as public, are constrained by a wide range of laws and regulations, covering such matters as the protection of life and property, the enforcement of contracts, the safeguarding of the environment and so on. Most laws and regulations also include mechanisms for their own enforcement whereby those who have failed to abide by them may be held accountable and receive appropriate sanctions. But the fact that people are accountable for alleged breaches of a law or failure to meet certain regulatory standards does not make the law or regulation itself an accountability mechanism. Some laws and regulations may be directly concerned with accountability, for instance those that require regular financial audits or prescribe freedom of information rules. Some regulatory bodies, such as auditors, are aimed primarily at making other institutions accountable through monitoring their actions and penalising breaches in regulations. But, for the most part, laws and regulations are aimed not at accountability as such but more at enabling and controlling the actions of individuals and institutions. Accountability is but one aspect of legal and regulatory control, which is concerned with reporting, investigating, justifying and rectifying after the event. It is an essential part of a functioning system of institutional control but it is not the whole of that system. Given the emotive value of the term ‘accountability’, there is a natural tendency to use it to describe all means of control whether or not these means include actually calling anyone to account. Thus, a move to restrict the power of multinational companies to pollute the environment or to

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Page 20 prevent them from moving jobs to low-wage countries might be seen as attempting to make them more accountable. Banning the use of genetically modified organisms might be thought to make farmers more accountable. Some analyses of government accountability include as ‘accountability’ mechanisms those institutional devices that limit public power, such as the separation of powers between executive, legislature and judiciary or the federal division of powers between national and state governments (for example, Downs, 1999). One can also add the key extra-governmental institutions of a democratically effective civil society which help to constrain governments, for instance competitive markets and interest groups, as instruments of accountability (Peters, 1995, pp. 300–1). In this way, all constitutional checks and balances and all politically influential social institutions come to count as means of making governments accountable and the term ‘accountability’ threatens to extend its reach over the entire field of democratic institutional design. ‘Accountability’, however, is more sensibly confined to its everyday sense of external scrutiny and sanctions. In this case, it refers to only one type of mechanism for controlling institutions, where managers or officials are actually, or at least potentially, called to account, made to answer for their actions and forced to accept sanctions. Laws and institutions that control institutions by clearly defining the functions of particular agencies, by dividing and constraining their powers or by subjecting them to regulatory supervision, may include accountability mechanisms as part of their procedures for enforcement. But they are not to be identified with these mechanisms and do not rely solely on them for their effect. Similarly, organised interest groups and other community organisations may exert pressure to limit a government's options but they are not thereby making the government more accountable. Accountability only arises when government members are induced to explain or justify their actions or to engage in debate and discussion with interested parties. A study of ‘accountability’ should not therefore be expected to cover all means of constraining powerful institutions or of forcing them to be more responsive to the public interest. Accountability, though vital, is only one part of the regulatory and controlling agenda. ‘Accountability’ and ‘responsiveness’ A third respect in which the scope of ‘accountability’ has sometimes been broadened beyond its core meaning is in its identification with

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Page 21 ‘responsiveness’. A responsive government or private company is one that takes care to act in ways that its citizens or customers prefer. Responsiveness is closely linked to accountability in that one of the key purposes of accountability mechanisms is to make sure that agents are responsive to the wishes and interests of their principals. That is, responsiveness is an end to which accountability is a means. However, accountability is not the only means of securing responsiveness (Thomas, 1998, pp. 378–9). For instance, in recent years much effort has gone into making the public sector more responsive to the needs of its citizens through making it adopt a stronger ‘client focus’ (Osborne and Gaebler, 1992). Some of these changes, admittedly, have come about through improved accountability mechanisms. For instance, service charters, which set out the agencies' obligations to the public, usually include more accessible complaints procedures. On the other hand, many of the improvements have been due to changes in corporate culture and to management incentives which emphasise the importance of being ‘customer-friendly’ without involving any improved scrutiny. To describe all such increases in responsiveness as increases in accountability (OECD, 1987, pp. 29, 126; Hughes, 1998, pp. 236–7; Considine, 2002) is therefore misleading. Similarly, in a competitive market, the main mechanism of responsiveness is consumer choice, that is the capacity of the consumer to decide between alternative providers. Businesses respond to customers' preferences in order to prevent their customers from purchasing from competing suppliers. But are businesses therefore being accountable to their customers? Certainly, a customer may hold a commercial company accountable in the case of a faulty individual purchase or contract, but he or she has no general right to demand that the private company offer services that meet his or her perceived needs. It is the power of the customer to go elsewhere (‘to exit’, in the social science jargon) that has the greatest impact. Accountability, on the other hand, is a ‘voice’ rather than an ‘exit’ option, in which agents have the right not only to leave but also to voice their complaints and seek redress. In the private commercial sector, accountability applies more to owners and shareholders, who can call the company's managers to account for the company's performance, than to customers whose main right is to exit by refusing to purchase. If ‘accountability’ is extended to cover all forms of responsiveness, these important distinctions between voice and exit, and between market choice and rights of scrutiny become obscured. Again, the extension of meaning may indicate a political preference. The equation of ‘accountability’ with ‘responsiveness’ tends to be favoured by those who place particular emphasis on the role of market

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Page 22 competition and who are critical of the extent of formal scrutiny to which government service providers are subjected (Chapter 5). How far ‘accountability’ extends in meaning is partly a question of linguistic convention but may also involve a judgment of institutional priorities. Reserving the term for the processes of external scrutiny and sanctions does, at least, seem nearer to everyday usage. Extensions of the meaning of ‘accountability’ to shadow that of ‘responsibility’, ‘control’ or ‘responsiveness’ have largely been the work of academic analysts rather than practitioners or the general public. When people demand ‘accountability’ they normally mean that they want to hold an institution (or a person) to account for what it has done by subjecting it to external scrutiny and, if necessary, sanctions. Moreover, an emphasis on external scrutiny and sanctions seems well placed. Subjecting institutions to investigation from citizens and engaging officials in the processes of reporting, explaining and justifying with the ultimate prospect of sanctions play a particularly significant part in fostering the democratic goals of responsiveness to the people's interests and popular participation. Such accountability mechanisms, admittedly, are not the only weapons in the democrat's armoury. Room must also be found for other devices sometimes included under ‘accountability’, such as the limitation and separation of constitutional powers, government regulation, professional integrity and public spiritedness among politicians and officials, as well as market competition. But the processes of external scrutiny and sanctions are of critical importance and, as such, are worth identifying and analysing separately under the label of ‘accountability’. The dimensions of accountability The simple model of accountability in which a single account-holder holds a single accountor to account for a clearly defined task may be sufficient to illustrate the essential principles underlying all accountability relationships. But it is quite inadequate as a means of understanding how the complex structures of accountability operate in a modern democratic society. Here, we need to be aware of the range of institutions and actors involved, the variety of functions they fulfil and the different means by which they are called to account. A useful way of outlining the complexity of accountability is in terms of four dimensions that occur in any accountability relationship and which provide a flexible framework of analysis. These dimensions are answers to four questions: (i) who are accountable? (ii) to whom are

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Page 23 they accountable? (iii) for what are they accountable? (iv) how are they accountable? (i) Who are accountable, that is the accountors or agents. As a general principle, the person held accountable is the person who is responsible, in the sense of being the person who can choose to act or not to act in the performance of certain duties and who is therefore liable for praise or blame. If praise or blame can be allocated, accountability can be demanded. The central and most straightforward case is where a single responsible person is held accountable, for instance a country's elected president faces the voters at an election, or an official is made to answer to a tribunal for an administrative decision. Analogous to individual accountability is the collective accountability of an organisation, such as a government agency or a company. Organisations are treated as corporate persons capable of reporting their own actions, being sued, paying compensation and so on. The typical large-scale organisation, whether in government or the private sector, is structured as a hierarchical pyramid and the task of exercising the accountability functions on behalf of an organisation usually rests with those placed in charge. The performance of such functions can be identified with role accountability or responsibility which is to be distinguished from individual or personal responsibility where individuals are held personally accountable for their own actions rather than speaking for their organisation (Hart, 1968, pp. 212–14; Shafer, 1999, pp. 9–10). Problems of locating who is accountable arise when collective actions are performed not by a single, tightly structured institution but by more loosely related sets of people or institutions with no clearly defined leader or coordinator. Such structures in which formally independent groups or individuals cooperate for shared purposes, often described as ‘networks’ (Rhodes, 1997, Ch. 2; Hay, 1998; Agranoff and McGuire, 2001), have become an increasingly common feature of modern governmental systems. Many aspects of government policy are now implemented by agencies not under direct government control, such as executive agencies, statutory authorities and non-governmental organisations cooperating in the joint provision of public services. Responsibility for collective outcomes is diffuse and often impossible to attribute to any one organisation, making the location of accountability correspondingly difficult (Chapter 6). In addition to the accountability obligations owed by an organisation (collective accountability), members of organisations are also individually accountable for performing their respective duties (individual or personal accountability). Such individual accountability usually reinforces the

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Page 24 exercise of collective accountability in that individuals are held accountable for carrying out their employment duties which may include assisting with collective accountability procedures, such as preparing a financial audit or responding directly to members of the public on the organisation's behalf. Individual officials can thus be held personally accountable for fulfilling the responsibilities of role accountability (Chapter 6). (ii) To whom the agent is accountable, that is, the account-holders or principals. In the simplified model of accountability there is a single account-holder, either an individual or a collectivity, who is seen as the owner or instigator of the activity. Thus, in the case of government, the ultimate account-holder is the people or the citizen body. However, the people are far from monolithic and incorporate a range of different groups and individuals. While the government is accountable to the people as whole through the election process, it also answers to sections of the public who engage in critical debate with politicians and officials on issues that affect their members. Government agencies are also accountable to the individual citizens with whom they deal directly. In the commercial world, a company is accountable primarily to its owners or shareholders while in the non-profit sector organisations are primarily accountable to their members (Chapter 4). Such organisations are also accountable to the public in so far as they have contractual dealings with them or adversely affect their interests. The range of account-holders to whom accountability is owed is to be distinguished from the more loosely defined concept of ‘stakeholders’. Stakeholders include all those who have a ‘stake’ or an interest in the activities of an institution. For instance, in relation to a particular service provided by a government agency, stakeholders include the beneficiaries of the service as well as the providers and expert policy advisers, in short all people whom the agency is expected to consult about the service. In the private sector, companies often include three groups of people as their stakeholders – their shareholders, their customers and their employees. Though it might seem that an organisation is accountable to all its stakeholders, the expectation of being considered or consulted enjoyed by some stakeholders is not necessarily the same as an expectation of accountability. Accountability implies rights to demand answers and obligations to respond whereas consultation may be simply a matter of grace and favour and entirely at the discretion of those choosing to consult. For instance, commercial companies may consult their customers as a means of being responsive to their wishes and securing their loyalty, but they are not thereby being accountable to

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Page 25 them in the same way as they are accountable to their owners or shareholders (Sternberg, 1998). Similarly, employers who consult and communicate regularly with their employees are not thereby being accountable to them if such consultation is entirely a managerial prerogative. On the other hand, where employers have consciously given their employees formal rights to scrutinise, criticise and demand changes from their managers, they have accepted genuine accountability. Members of the general public at large, whether collectively or individually, are not the only people who act as principals, calling institutions and officials to account. In a complex society, this function is delegated to a number of specialised institutions which act as accountability agencies on the people's behalf. The main such agencies are the various courts and tribunals belonging to the judicial system which, together with the police and other enforcement agencies, bring people and institutions in all sectors of society to account on behalf of the public for breaches to the laws. Other specialist regulatory bodies monitor a wide range of activities, such as commerce, transport, construction, food retailing and so on, holding firms to account for complying with regulations in the public interest. Indeed, the accountability of private sector organisations to the public is generally exercised through such agencies rather than directly to individual members of the public. Within the public sector, specialist review and audit agencies have the function of scrutinising other institutions and officials and of making them publicly accountable. Audit offices, ombudsmen, administrative tribunals and even the legislature itself, are examples of institutions which act for the public in holding other public agencies accountable. Thus, the public may be said to employ one set of agents to hold others to account. Some office-holders may take the role of both accountors and account-holders. For instance, elected political leaders are accountable as agents to the voters who are their principals. At the same time, politicians themselves act as principals and account-holders calling public servants to account to them on behalf of the public. A similar combination of roles occurs within government departments and indeed in any organisation, public or private, structured in terms of a hierarchical chain of command. At each level, individual officials are accountable upwards to their superiors above them in the hierarchy (that is as their superiors' agents) while holding to account the subordinates below them (as their subordinates' principals). Chains of accountability thus pass upwards through the organisation matching corresponding downwards (‘top-down’) chains of control.

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Page 26 Accountability can also be conceived as ‘downwards’, matching the ‘bottom-up’ view of institutional dynamics in which organisations are required to answer to those over whom they wield authority. For instance, the police are accountable directly to members of the public for their exercise of coercive powers and government officials are accountable to individual citizens seeking legal entitlements. In each case, the account-holders are ‘below’ the accountors because the latter have power over them. Similarly, when managers accept a degree of accountability to their subordinates, recognising the right of employees to seek information from their bosses and to judge their bosses' performance, they are exercising ‘downwards’ accountability to those who are ‘below’ them in the organisational hierarchy. Besides ‘upwards’ and ‘downwards’, other suggested directions for accountability include ‘vertical’, ‘horizontal’, ‘outwards’ and ‘inwards’, though as yet there is no clear consensus on usage (Stone, 1995; Corbett, 1996, Ch. 9; O'Donnell, 1998; Schedler, 1999; Scott, 2000; Considine, 2002). ‘Vertical’ can be a synonym for ‘upwards’, referring to accountability to superiors in a hierarchy, or it may also include ‘downwards’ accountability conceived of as being vertical in the opposite direction, with both vertical directions being in contrast to ‘horizontal’. ‘Horizontal’ and ‘outwards’ accountability are generally used synonymously, implying accountability to an authority of similar status, for instance the accountability of one government agency (a department) to another (a legislative committee or a court). Of these, ‘horizontal’ better captures the notion of equality of status whereas ‘outwards’ implies accountability to a separate, independent authority while leaving the relative status less defined. ‘Inwards’ accountability refers to the supposed accountability to oneself or one's conscience, a sense of accountability which goes beyond the core definition adopted in this study. The most recent directional label is ‘360 degrees’ accountability which signifies accountability in all possible directions, including upwards, downwards and horizontally, as when middle managers are accountable to superiors, subordinates and professional peers (Behn, 2001, pp. 197–207). Directional analyses of accountability differ over whether accountability of public agencies directly to members of the public is to count as ‘outwards’ or ‘downwards’ and over whether accountability to courts should be considered ‘upwards’ or ‘horizontal’. Such ambivalence suggests that the precise implications in the metaphor of spatial direction should not be pressed too far. The variable being illustrated is the extent of direct control and authority exercised by the account-holder to

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Page 27 whom accountability is owed. At one extreme, ‘upwards’ accountability implies accountability to a superior with clear and comprehensive powers of command and control, as in a hierarchical chain of command. At the other extreme, ‘downwards’ accountability refers to cases where the account-holder demanding accountability is comparatively powerless, for instance where a citizen seeks redress against a taxation office. In between, ‘horizontal’ and ‘outwards’ accountability indicate a relationship where the account-holder clearly has independent authority against the accountor but lacks the extent of control implicit in a hierarchical chain of command. Problems arise because the degree of control varies much more subtly than is implied by a simple threefold classification of upwards, outwards/horizontal and downwards. For instance, the courts certainly cannot control an organisation as extensively as can the organisation's board or chief executive. However, on those matters where the courts do exercise jurisdiction, their power to direct is actually more forceful than that of any manager. The nature of accountability to courts is thus not adequately captured either by ‘upwards’, which suggests a general, open-ended duty of obedience, or by ‘outwards’ or ‘horizontal’, which overlook the courts' extensive power. Moreover, to describe accountability to citizens or clients as ‘downwards’ may be to exaggerate the weakness of individuals who are, in some sense at least, independent agents with their own rights and privileges. Any relationship of accountability requires the recognition of some rights of authority on the part of the person to whom accountability is owed. Even an apparently powerless citizen demanding accountability against the police or against a faceless government bureaucracy is asserting rights of authority as a citizen against those institutions. An employee holding an employer to account for mistreatment is claiming the rights of employees to demand limits to the powers exercised by employers. While the notion of ‘downwards’ accountability may indicate the relative powerlessness of those claiming accountability, it may suppress the essential ingredient of authority implicit in any form of accountability. Without any element of authority, accountability degenerates into grace-and-favour responsiveness. In general, the networks of accountability that surround most major institutions are too complex to be accommodated within such a simplistic directional framework. The only reasonably clear and uncontroversial directions of accountability are ‘upwards’ and ‘downwards’ understood within the twodimensional metaphor of an organisational

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Page 28 chart to indicate accountability to superiors and subordinates respectively, though even ‘downwards’ in this sense can be slightly misleading. (iii) For what the agent is accountable, that is, the duty or function. Accountability is typically focused on the performance of some task or duty which the agent is required to perform and for which he or she is responsible. In contractual relationships, parties to the contract are accountable for the performance of conditions as specified in the contract. In the commercial private sector, the accountability of individual companies to owners and shareholders is usually specified in terms of ‘bottom-line’ performance in returning a profit and increasing share value. In the public sector, by contrast, the performance goals are often harder to specify and are a matter of continuing debate and adjustment. Accountability is often focused more on the more tangible issues of due process and whether the correct procedures have been followed (Chapter 4). Some accountability relationships are relatively open-ended with the accountor being generally obliged to act in accordance with the preferences or interests of the account-holder. The relationships between voters and governments or between managers and subordinates are of this unspecified kind, similar to those in ‘relational’ contracts, such as marriages or business partnerships (Chapter 5). Other relationships, however, may be much more specific with particular duties set out in clearly defined laws or agreements, such as ‘classic’ contracts, which then provide a standard against which performance can be measured and audited. For instance, when governments outsource the provision of particular service such as cleaning or catering to private contractors, the companies are usually held accountable in terms of detailed contracts or performance agreements. When members of the public seek to hold an institution to account, their concern may be confined to a decision made in their own particular case, such as a planning permit from a government department or the granting of a mortgage by a bank (particular accountability). Alternatively, they may seek to question or influence the institution's general policy or the general conduct of its business, for instance its treatment of women or its environmental impact (general accountability). The distinction between particular cases and general policies is not hard and fast because a particular decision in certain cases (such as the granting of a TV licence to a media company) may be tantamount to a general policy decision. None the less, the distinction is important because it affects the range of accountability options open to citizens. In both the public and the private sectors, individuals have certain rights to

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Page 29 complain and seek redress about decisions which affect them as individuals. But these avenues are not necessarily available to those wishing to complain about the treatment of other individuals or about the general policy of the agency or company. As well as being accountable for particular decisions and general performance, institutions are also accountable for complying with a wide range of government laws and regulations. These cover issues such as the protection of life and property, employment practices, financial reporting, fair dealing, planning and environmental protection. As already noted, most laws and regulations prescribe measures for their enforcement and for holding to account those who commit breaches of them, delegating the accountability function to specialist monitoring and enforcement agencies. These accountability agencies, such as courts, are themselves accountable for exercising their accountability functions, a form of compounded accountability where the account-holder is held to account for holding someone else to account. Accountability can be both positive and negative in emphasis, though negativity often predominates. In relation to general performance, accountors tend to report positively about their operations and their achievement of the organisation's goals, as for instance when government agencies report annually to the legislature or boards of directors report to general meetings of shareholders. But in relation to particular decisions and legal and regulatory compliance, external scrutiny focuses on exposing faults and breaches of laws and regulations. Indeed, the rectifying aspect of accountability, including the imposition of sanctions, applies only to faults or mistakes. Individuals typically complain only when they have received faulty service. Courts and other regulatory authorities are only empowered to take action when breaches have allegedly occurred in the relevant laws and regulations. Forums of political accountability, such as parliamentary debates or media interviews, tend to concentrate on issues that are unpopular or controversial. Overall, the thrust of accountability is towards criticising and punishing the powerful. A generally negative emphasis is therefore to be expected and welcomed. (iv) How the agent is accountable, that is, the mechanisms of accountability. A wide range of possible processes and procedures is available, including the presentation of financial accounts and other written reports, formal investigation and questioning through public hearings in a court or other legally established forum, open discussion in political debate, and private discussion and interrogation. Mechanisms of accountability cover all the various processes of accountability, which

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Page 30 can be conveniently classified into three stages, initial reporting and investigating (information), justification and critical debate (discussion), and the imposition of remedies and sanctions (rectification). These stages are only roughly separable, given that reporting often spills over into justification and dialogue and given that scrutiny may prompt immediate adjustment and compensation. Mechanisms of accountability also include the different institutional structures or avenues through which institutions and officials can be made accountable, whether directly to members of the public or indirectly through review and audit agencies. Collective accountability of governments and other large institutions is achieved through multiple channels and agencies rather than through a single chain of command. The individual or personal accountability of individuals within organisations is usually exercised through the internal chain of command whereby each individual is accountable to their immediate superior. On occasion, however, individuals may exercise their personal accountability against the chain of command, as when their professional conscience leads them to answer directly to the public by leaking confidential information or by whistle-blowing. Types of accountability Analyses of accountability, particularly in the public sector, often rely on typologies of accountability which distinguish a number of general types of accountability and which are then used to explicate the complexities of public sector accountability. Many different typologies have been advanced, using a variety of different criteria, but no one typology has yet emerged as standard or generally accepted. Some typologies are based primarily on the nature of the subject matter (for what). For instance, Patricia Day and Rudolf Klein (1987, pp. 26–7) distinguish between two types of issue for which those with delegated authority are answerable: actions where the criteria of judgment are contestable, which produce political accountability, and agreed tasks conducted according to agreed criteria of performance, for which accountability is managerial. The latter, managerial accountability, is further subdivided into fiscal/regulatory, process/efficiency and program/effectiveness accountability, according to the type of activity being monitored. A similar set of distinctions is used by Robert Behn (2001, pp. 6–10) who divides all accountability into three types, for finances, fairness (that is, process) and performance (that is, results). Other typologies are more institutional, being based on different account-holders (to whom) and mechanisms (how). Barbara Romzek and

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Page 31 Melvin Dubnick (1987) apply two criteria, the source of the accountability demand, whether external or internal to the agency in question, and the extent of control, whether high or low. This yields four basic types: legal (external with high control), political (external with low control), bureaucratic (internal with high control), professional (internal with low control). Dawn Oliver (1991) focuses more directly on different institutional directions of accountability: to ministers and Parliament (political), to courts (legal), to non-parliamentary bodies such as ombudsmen (administrative) and directly to the public (public/consumer). Several other Westminster-based typologies (for example, Sinclair, 1995; Stone, 1995; Pyper, 1996; Flinders, 2002a) begin with ministerial responsibility (political or parliamentary) and judicial review (legal or judicial) but add a variety of other types, including managerial (covering accountability through contracts and stated objectives) (Stone, Flinders), market (accountability through consumer choice) (Stone) and professional (Sinclair) as well as consumer/client (accountability directly to members of the public) (Pyper). Few typologies are sufficiently robust to be universally applicable. The most promising distinctions for cross-country or cross-sector use relate to varieties of subject matter. For instance, the distinction between general and particular accountability (see above), depending on whether the matter in question is a matter of general policy or refers only to a decision made in the case of an individual citizen, applies in many different contexts, regardless of constitutional type or sector (public or private). Similarly universal is a distinction between three common types of issue for which people and organisations are held accountable: finances and financial compliance, due process and procedure, and results or outcomes, though even here there is no clear consensus on terminology (financial/fiscal, process/fairness, performance/effectiveness and so on). However, typologies incorporating institutional differences tend to be particularly context-dependent. For instance, the institutional assumptions of the Romzek and Dubnick typology fit comfortably with those of the United States where the separation of powers gives agencies more independence. Agencies and their managers can plausibly be seen as ‘managing the accountability expectations’ of a range of external bodies, including the White House, Congress, the courts and other stakeholder groups, without being clearly subservient to any one of them (one of the hallmarks of political control, according to the model, being low levels of control). Political accountability can thus include accountability both within the executive branch to the president as well as to Congress and to sections of the public at large.

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Page 32 Within typologies developed for Westminster parliamentary systems, on the other hand, political accountability tends to be differently defined, being centred on the accountability of ministers to Parliament and the extensive control exercised by ministers over their public servants. To treat the accountability of public servants to ministers on an equal footing to their accountability to Parliament or to policy communities would appear puzzling, as would the description of political accountability as lacking in control. Westminster-based typologies usually begin with ministerial accountability, variously described as political or parliamentary, which covers both the accountability of public servants to ministers and of ministers to Parliament and the public. This central chain of accountability covers aspects of both political and bureaucratic accountability in the Romzek and Dubnick formulation. Further channels are then added, including legal/judicial, managerial, professional and so on, though with considerable variation. The popularity of managerial as a category among Westminster-based analysts reflects the recent challenge of contractual and business patterns of accountability to traditional Westminster conventions of ministerial accountability (Chapter 5). Each typology works well within its own constitutional context. The Romzek and Dubnick typology, for instance, though open to criticism on a number of details (for example, deLeon, 1998), has proved serviceable in analysing accountability within the United States bureaucracy (for example, Radin and Romzek, 1996; Romzek and Johnston, 2001; Radin, 2002). Similarly, the most recent United Kingdom typology, that of Matthew Flinders, distinguishes three main types, parliamentary, judicial and managerial, which are then usefully applied to the various accountability pressures on a key British government department, the Home Office (Flinders, 2002a). But neither typology can happily straddle the Atlantic divide. Similar variation is evident in many of the different suggested types of accountability when considered in isolation rather than collected into typologies. Political accountability, for instance, has sometimes been defined in terms of institutional relationships, such as the accountability of elected politicians to legislatures to electors or, in addition, as the accountability of public servants to elected politicians and legislatures. Thus, in some versions, only politicians can be politically accountable while, in others, the concept is extended to include appointed officials, provided that they are accountable to politicians. Alternatively, political accountability is defined in terms of a special type of debate and discussion where judgments and values are contested, in contrast to the more cut-and-dried issues associated with financial compliance or the

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Page 33 performance of detailed objectives or contractual obligations. ‘Political’ discussion and argument, in this sense, form a major part of the accountability activities engaged in by politicians but they do not constitute the whole of such activities. Politicians also regularly inform the public by releasing relatively uncontentious information, such as statistics or financial accounts. Nor is argument over values confined to the answers of elected politicians. It may also take place within the confines of government departments when officials debate political options with their political masters or with each other or when they promulgate official justifications of government policy. Legal/judicial accountability is comparatively straightforward, if understood as the type of accountability practised by courts. The hallmarks of such accountability are the application of specific legal rules and precedents to particular cases in accordance with strict rules of formal procedure. But even this apparently self-explanatory type of accountability is also subject to variations in definition, particularly in the range of bodies considered (Flinders, 2002a, pp. 19–20). Some accounts confine legal/judicial accountability to properly constituted courts belonging to the judicial system while others also include quasi-judicial bodies such as administrative tribunals which are constitutionally part of the executive. Other accounts are more expansive still and add institutions such as ombudsmen and freedom of information rights. Romzek and Dubnick define legal accountability even more broadly to cover external monitoring for compliance with legally established rules and mandates. Accountability by courts and court-like bodies counts as one type of such monitoring but by no means the paradigm case. Equally important are legislatures which mandate certain policies through legislation and then hold government agencies accountable for implementing them. Government auditors and other specialist regulatory bodies also engage in this type of legal accountability, as do government agencies managing external service providers through legal contracts. Legal accountability in this sense overlaps with managerial accountability, understood as accountability for specified outputs. The key elements are not so much the judicial process, with its emphasis on particular cases and judicial argument, as the broader use of law as an instrument of control and accountability. Again, such a broader sense of legal accountability is better suited to the United States where the legislature is an independent source of public policy as well as scrutiny and where the judicial process itself deals more openly with major matters of general policy. The narrower sense fits more with Westminster-style systems in which the legal roles of Parliament and the courts are more confined.

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Page 34 Different meanings are also given to professional accountability. This type of accountability, it is generally agreed, applies to situations where the officials or agents held accountable belong to a profession with specialist expertise, for example professional social workers or engineers. It can also be extended to public servants seen in the role of professional experts who use their discretion and judgment rather than bureaucratically applying rules and following set procedures. Analysts differ, however, over the precise implications of professional accountability. According to Romzek and Dubnick, professional accountability refers to the fact that professionals must be trusted with considerable personal discretion. Professionals can be held accountable for results but cannot be tied down by rules and procedures. Professional accountability is thus an accountability regime which allows for high levels of personal autonomy on the part of those accountable, in this respect being not unlike managerial accountability. However, another view of professional accountability (for example, Day and Klein, 1987) focuses on to whom rather than how professionals are accountable, referring to the practice of making them accountable to other members of their own profession. The clearest cases of such accountability are within self-regulated professions where individual members of the profession are accountable to disciplinary bodies drawn from the profession itself. In some instances, such as law and medicine, these disciplinary bodies may be established under legislation and thus have statutory backing to act on the public's behalf. In the public sector, public servants may sometimes be subject to internal procedures that require them to be accountable to fellow public servants for the maintenance of professional standards. More informally, members of professions in all sectors may find themselves answerable to each other through shared networks and collegial relationships. Such reciprocal accountability between peers, aptly described as ‘horizontal’ in direction, should be distinguished, however, from a further sense of professional accountability meaning action in acting in accordance with internalised norms and values of a profession (Sinclair, 1995). This sense, which excludes all reference to external scrutiny, extends beyond the core sense of accountability adopted in this study. Because of variations in contexts and perspectives, terms such as political, legal, managerial and professional, when used to describe different types of accountability, do not carry uniform connotations. They therefore cannot provide a firm basis for generalising about accountability across different sectors and jurisdictions. Such terms need not be avoided altogether and will often make good sense within a particular

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Page 35 setting. For instance, in relation to public servants in Westminster systems, a distinction between political accountability to ministers and legal/judicial accountability to courts and tribunals is clear and straightforward. Similarly, in the United States, the accountability of officials to the president and Congress is well described as political while their accountability to each other may be seen as bureaucratic or professional. In the following chapters a broad distinction is made between political mechanisms, which are centred on elected politicians and associated political processes, judicial mechanisms, including courts and tribunals, and other types of external review and scrutiny, such as audit and grievance procedures. To abandon all such characterisations just because they are ambiguous when taken out of context would be unnecessarily pedantic. None the less, the undoubted ambiguity of such terms invalidates any attempt to use them to construct precise typologies which can be applied across all accountability regimes. For this analytical purpose, reliance is to be placed on more general and universal structural characteristics of accountability, such as different dimensions (who, to whom, for what and how), stages (information, discussion and rectification), levels (collective, individual) and types of decision (general and particular; for processes and for results).

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Page 36 2 Government Accountability: Political Mechanisms Government accountability Governments are subject to complex and extensive mechanisms of public accountability, in many respects more stringent than those applying in other sectors. The rationale for this high degree of accountability lies in the distinctive nature and extent of government power in a liberal democratic society. Citizens in a liberal society need the power of government to protect them from each other but, at the same time, they need to be protected from the government itself. Governments have a monopoly of legally coercive power within a community, including the powers to arrest and imprison, to exact taxation and confiscate property, and generally to regulate the lives of individuals and institutions. The capacity of governments to seriously infringe the rights of citizens and damage their interests justifies correspondingly stringent guarantees of accountability to prevent governments from abusing their extraordinary powers. This liberal demand for accountable government, based on the ‘principle of affected rights and interests’ (Chapter 1), is reinforced by the assumptions of democracy derived from the ‘principle of ownership’ under which the ultimate authority and ownership of the state rests with the citizens. Members of the citizen body have unique rights to call their government to account simply because it is theirs and should therefore be pursuing their interests. In a plural society, however, what counts as the interests of the public is a matter of considerable dispute and disagreement between different groups and individuals with differing values and priorities. The goals of government policy are notoriously

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Page 37 complex and shifting. While some government objectives are comparatively clear and uncontested, for instance, the provision of basic public safety or effective infrastructure, most leave room for disagreement and debate. The contestability and fluidity of public policy place a premium on the rights of citizens, both individually and in groups, to have a say in the ongoing process of policy-making rather than having to wait until final decisions have been made and implemented. In the absence of clear agreement on objectives, we are less inclined to trust our elected leaders to act in accordance with our values and interests, just as the leaders themselves are cautious about delegating too much authority and discretion to their subordinates. We seek instead a continuous dialogue between the government and the public mediated through the various channels of political accountability provided by the legislature, policy communities, the media and so on. This dialogue in turn depends on the right to seek reliable information from government sources. Consultation and debate therefore require government agencies to be held constantly accountable not only for their decisions and policies but also for respecting the democratic processes by which these policies and decisions are made. Closely linked with the demand for democratic process is the value of fairness or equity in the conduct of government business. As ultimate owners of their government and its resources, members of the public are inclined to object if politicians or public officials give unfair advantages to particular individuals or sections of society. Thus, we expect appointment to positions in the public service or the letting of public contracts to be made on merit rather than through the personal influences of nepotism or cronyism. Showing favours to friends and family, which is tolerated, indeed expected, in the private sector, is condemned in the public sector. We also complain if public sector managers receive overgenerous salaries or other lavish material benefits at the taxpayers' expense. The protection of such values of equity and parsimony further underlines the need for public sector agencies to be transparent and accountable for the processes by which they make decisions. For such reasons, governments have developed their own unique structures of accountability, distinct from those applying in the private sector (Chapter 4). Legal systems have developed special public law principles of accountability which apply only to publicly owned institutions. The public's representatives in legislatures and the media expect to hold politicians and public officials to particularly high standards of accountability. The distinctiveness of public sector accountability and

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Page 38 the rationale on which it is based are certainly open to question. Like the liberal theory of the state of which they form a part, such views sometimes mistakenly assume that the only serious institutional threat to personal liberty comes from the state. The potential for coercion from private individuals and corporations is overlooked or downplayed. Indeed, if we were starting from scratch to design a system of accountability to control powerful institutions, there could be a case for treating government and nongovernment organisations similarly and for dispensing with the increasingly artificial distinction between public and private law (Oliver, 1997, 1999; Braithwaite, 1999). For the present, however, the accumulated weight of history cannot be ignored. Public sector accountability, for better or worse, happens to be distinctive and needs to be analysed and understood as a separate system before worthwhile comparison can take place. This chapter and the next therefore identify and analyse the various mechanisms which make up the system of government accountability before the issue of comparison with other sectors is taken up in Chapter 4. The concept of ‘government’ itself is elastic in meaning. Like ‘the public sector’ itself, ‘government’ can be taken to include all institutions in public ownership. In this sense, the government includes not only the institutions associated with the coercive powers of government, such as the political and administrative executive, the legislature and the judiciary, but also a range of other publicly owned institutions with broader, non-governmental purposes, such as public schools and universities, hospitals, libraries and museums and so on. Furthermore, non-government institutions in private ownership may be employed by governments to carry out public functions, for instance, industry-based regulators or charitable organisations contracted to provide social services. The boundaries between government and the private sector are becoming increasingly blurred as governments make greater use of nongovernment agencies for public purposes. As the courts have recognised, the key difference between public and private is sometimes functional rather than institutional, depending more on the purposes being pursued than on institutional structure and ownership (Cane, 1996, pp. 12–18). For this reason, many analysts now prefer the term ‘governance’ to signify the performance and control of public functions, whether carried out by public or private institutions (Rhodes, 1997, pp. 47–53; Shapiro, 2001; Flinders, 2002b). The emphasis in this study will be primarily on the central institutions of government, particularly the institutions of the executive, because these institutions most obviously carry out the business of governance.

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Page 39 Non-government institutions carrying out public functions on behalf of the executive are also relevant, especially in so far as they may be subject to different accountability requirements compared with government institutions (Chapters 4 and 5). The legislature and judiciary will be considered primarily as agencies of public accountability, holding the executive to account, rather than as subjects of accountability in their own right, though they too belong to the broader government sector and must also be held accountable to the public for the proper performance of their functions. Even when confined to the executive branch, the term ‘the government’ has both narrower and wider uses. In parliamentary systems, it sometimes means the ‘government of the day’, the politicians who lead the executive and can be voted out of office at an election. Thus, in parliamentary systems of cabinet government, ‘the Blair government’ or ‘the Howard government’ refers to the elected leaders and their political teams and advisers, the rough equivalent of ‘the Bush presidency’ in the United States. More broadly and more commonly, however, ‘the government’ includes not only the elected members of the executive and their appointees but also the government bureaucracy or public service which carries out executive functions under the overall direction of the elected government, whether a cabinet or a single president. In what follows, the term ‘government’ will be used to refer either to the elected executive or to the elected executive and the wider executive bureaucracy, depending on the context. Most attention will be given to the institutions of national government, though much of the analysis also applies to provincial, state and local governments as well as to international organisations which face similar demands for public accountability. Issues of accountability specially affecting federal systems are separately discussed (Chapter 6). The executive bureaucracy contains a variety of different types of agency, each of which is internally structured on hierarchical lines, with each member part of a chain of top-down command and upwards accountability. However, the relationship between the agencies and the elected leaders of the executive varies. Government departments of the core public service are under the direct control of ministers or the president. Other ‘arms-length’ agencies, including ‘executive agencies’ on the United Kingdom model, statutory authorities and other ‘quangos’, enjoy differing degrees of independence from political leaders. Their relationships with the leadership and with core departments can be characterised as ‘networks’, understanding ‘networks’ as structures of collective action and decision-making in which formally independent

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Page 40 groups or individuals cooperate for shared purposes (Rhodes, 1997, Ch. 2; Hay, 1998). Networks are commonly contrasted both with hierarchies, where the members are linked by formal control structures and in superior/subordinate relationships, and with markets, where self-interested parties are linked through formal agreements and contracts. Network members share the formal independence of market players while cooperating in shared values and objectives over a substantial period of time. Networks are a growing element in modern systems of ‘governance’ (to use a closely associated term) through the increased use of independent statutory bodies and non-government organisations to perform public functions as well as through the greater prominence of federal institutions (particularly in Europe through the European Union). They raise important issues of accountability (Radin and Romzek, 1996; O'Toole, 1997; Rhodes, 1997; Agranoff and McGuire, 2001; Romzek and Johnston, 2001) (Chapters 5 and 6). The accountability structure within which modern democratic governments operate is highly complex. Each agency and each official is accountable for various activities through a variety of different procedures and institutions. No one institution or procedure covers all activities of any one agency or official. Instead, individual agencies and officials answer to different bodies for different aspects of their operations. The division of accountability labour is neither neat nor logical, being the product of historical accretion rather than rational planning. Some matters are thoroughly covered by a number of different avenues of accountability whereas others escape any form of effective accountability. Indeed, to talk of a ‘structure’ or ‘system’ of accountability may be to exaggerate the extent of overall cohesion in a somewhat haphazard set of relationships. For this reason, analysis of government accountability requires a survey of the various institutional mechanisms through which governments are held accountable and an assessment of their respective contributions to government accountability. Once the key institutions and their interrelationships have been clearly mapped, analysis can proceed to more general, thematic questions, such as the comparative accountability of government agencies compared with private sector organisations or the effects of public sector reform on accountability. The prime accountability mechanism is the general election where the citizens can hold their government to account directly through the exercise of their vote. Between elections, much accountability activity is focused on the legislature which has the constitutional power to scrutinise the actions of the executive through various channels. More broadly, government agencies and officials are accountable to a range of stakeholders

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Page 41 both within and outside the public sector and are also held to account both through and by the mass media. These political mechanisms of accountability, involving elected politicians in various roles, are discussed in this chapter. The following chapter examines a range of other accountability mechanisms: specialised institutions which act as agents of public accountability, including courts, tribunals, government auditors, courts, ombudsmen and other types of government monitors and regulators; direct access for the public provided by various complaints and grievance procedures as well as by freedom of information rights; internal accountability within each agency, including the individual accountability of officials to their superiors. Each of these institutional mechanisms will be examined in turn using the key dimensions (who, to whom, for what and how) and their effectiveness then briefly assessed. Elections In a representative democracy, the core accountability mechanism is the general election, at which an incumbent government presents itself to the citizens and seeks a renewal of its mandate to govern. Elections compel governments to explain and justify their actions and give citizens the opportunity to listen and impose a verdict. Who? At an election, by definition, elected leaders and representatives are the people held to account. Elections do not directly affect appointed officials or other non-elected members of government. In parliamentary systems, the elections for the political executive and the legislature are combined. Voters normally use their vote to indicate a preference for a nationwide political party, making the election primarily a means of holding parties and party governments to account. At the same time, depending on the precise nature of the electoral system, a voter can express a judgment on local parliamentary candidates and thus use the election to hold individual representatives to account. In presidential systems such as the United States, the executive leader is elected separately from the legislature, thus allowing voters the opportunity to hold their president and their legislative representatives separately accountable. Elected politicians are held to account through elections only when they stand for re-election and face genuine competition from alternative candidates or parties. Without the need to campaign for reelection, politicians are under no pressure to justify their performance and do not face the sanction of defeat. Politicians who resign or retire, or who are barred from re-election (for instance, second-term United States presidents) are thus not fully accountable through the electoral process.

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Page 42 Nor, too, are politicians who are re-elected unopposed and thus escape the prospect of defeat. To whom? An election requires politicians to be accountable to the citizens as voters. Indeed, in a modern representative democracy, an election is the only accountability mechanism through which governments are accountable directly to the citizen body as a whole rather than indirectly through other agencies of accountability. Eligibility to vote in an election is usually restricted to adults and to citizens (or permanent residents), thus barring children and temporary residents from accountability rights. Each adult citizen's share in collective accountability is roughly equal, assuming that the electoral system is fairly constructed. For what? An election offers an opportunity to hold politicians accountable for their entire tenure in office and its result can therefore be interpreted as a collective judgment on a government's general performance. Individual issues or decisions may become the subject of electoral accountability, particularly if thought electorally relevant by identifiable sections of the electorate, for instance by members of a particular occupation or locality. But most actions taken by governments or individual politicians are not sufficiently salient to become the subjects of electoral accountability. Most election campaign debate is very broad and impressionistic, concentrating on a few general issues and leaving the great bulk of government actions unexamined. Individual voters, with only one vote to cast, tend to use their vote to express an overall opinion. How? In an election, incumbent governments are obliged to defend their records against opponents determined to expose their every weakness. Elections thus provide a classic instance of political accountability in which general political directions and values are debated throughout the community. In terms of the stages or processes of accountability, elections offer opportunities for both discussion and also rectification because incumbent governments must not only justify their records but also face possible removal from office. Information, on the other hand, is generally at a premium in electioneering. Electoral pressure from voters to hold their governments accountable is mediated through political parties. Political leaders are typically elected as nominees of political parties and therefore need to maintain the support of their party colleagues and the wider party membership. In most parliamentary democracies (though not, for example, in Canadian Liberal governments), the prime minister can be unseated by the party at any time, particularly if he or she seems to be leading the party to electoral defeat. In addition, individual members of legislatures

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Page 43 need to keep the continuing endorsement of the local party organisations which support them at election time. Parties act as important conduits for public opinion, keeping party leaders in touch with the concerns of the voters. Party leaders ignore rumblings of party rebellion at their peril. Influential party members can therefore use their access to the leaders to hold the government accountable in terms of whether it is enhancing the party's electoral prospects. The various levels of party organisation thus function as agencies of public accountability, working in tandem with the machinery of elections, holding the government to account on behalf of the voters. How effective? Nationwide election campaigns provide the most intensive periods of political debate and discussion in modern democracies. In the search for votes, politicians are obliged to step outside their secluded offices and intimate circles of advisers and to venture, in however stage-managed a manner, into direct contact with ordinary citizens. Campaigns engage the active attention of the media and force political issues further into the national consciousness than at any other time. Even if the mass of citizens do not actively participate in debate, electoral competition between candidates at least ensures that voters' concerns are aired and their support actively sought. The influence of elections spreads far beyond the election process through the indirect power of anticipated reactions. Fear of electoral retribution is a powerful motive that affects many government decisions, particularly those that are perceived to have a major impact on voters' choices. Though the vote is a single overall judgment it can be affected by any number of particular actions on the part of a government. In some respects, politicians never stop electioneering and many of their decisions are made with at least one eye on the next election. Forums where political leaders face public scrutiny, such as press conferences and legislative questioning, take on the aspect of a ‘continuous election campaign’ in which politicians engage in a ceaseless contest to improve their standing with the voters. Accountability through the party is also premised on the ambition to win electoral contests, forcing party leaders to take note of their supporters' views about the party's electoral prospects. Though elections are a key accountability mechanism in representative democracies and cast a long shadow over the behaviour of politicians and political parties, they also suffer from significant limitations. First, an election is not just an exercise in retrospective accountability. It is also, and perhaps more fundamentally, a procedure for choosing political leaders for the next period of office. In this respect, it is forward-looking as well as backward-looking, combining two different functions within

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Page 44 the single choice, which may complicate the voter's decision and compromise the outcome (Przeworski et al., 1999, pp. 44–9). On many occasions, no doubt, the accountability and selection motives coincide: the individual voter's desire to reward or punish an incumbent government typically confirms his or her choice of an incoming government. At other times, however, the two motives may conflict. A voter's intention to hold the incumbent government accountable, by voting it out of office, may be overridden by a judgment that an alternative government would do more harm than the present government if it were re-elected. Secondly, only a small minority of voters base their decisions on carefully informed judgments about either the future or the past performance of governments and politicians. Most voters have little knowledge of what governments do or of what individual politicians stand for and base their decisions on vague impressions or traditional loyalties. Moreover, in many democracies, many people who are entitled to vote do not exercise their vote. Thus, most citizens do not use the election as a means of holding governments or individual politicians accountable for their actions. Thirdly, election campaigns tend to be based on media marketing strategies manipulated by the candidates and their ‘spin doctors’ at the expense of genuine political dialogue between the citizens and their representatives. For the most part, candidates are able to control the questions they face and the messages they convey. In this respect, elections perform poorly as mechanisms for providing informed and constructive debate about government. Moreover, the advent of sophisticated market research and opinion polling has reduced the value of grass-roots political parties as a medium for conveying public opinion to governments. Party leaders now tend to place more reliance on their own pollsters than on the less scientific feedback from the party rank and file, thus further reducing the role of parties in political accountability. In spite of these qualifications, however, the accountability effects of elections are not to be underestimated. Countries which lack regular, free and fair elections certainly suffer a severe accountability deficit as a result. In the minds of politicians, at least, the election remains a powerful accountability mechanism which restricts their willingness to stray too far from what they perceive as popular opinion. Most election results turn on the movement of only a small percentage of votes, so that the disaffection of a comparatively few voters may have a decisive electoral effect. The election is thus important in fostering government accountability, particularly with respect to discussion, by generating

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Page 45 public debate about a wide range of policy issues, and with respect to rectification, through the threatened sanction of defeat. Elections set the outer limits of acceptable government behaviour and require politicians to account to the public through the electoral contest. At the same time, elections remain far too general and undifferentiated to serve the manifold needs of public accountability. If citizens had no other means of calling their politicians to account than periodic elections, their accountability rights would be very attenuated. Elections need to be supplemented by other mechanisms capable of securing reliable government information and of being focused more sharply on particular issues and decisions. Legislative scrutiny Many of the major mechanisms for holding elected governments accountable during their tenure of office operate through the legislature (Parliament in Westminster systems and Congress in the United States). In parliamentary systems, the executive and its extensive, specialised bureaucracy have the major responsibility for initiating and implementing government policy, leaving legislatures largely in the role of legitimators and scrunitisers of government activities. The executive needs the support of the legislature to authorise its expenditure and to enact its legislation. In return, the legislature subjects the executive to critical, public investigation and engages it in debate. In presidential systems such as the United States, the legislature shares power more equally with the executive and plays a more active role in the formulation of policy. In parliamentary system, too, legislatures may be actively involved in amending government legislation, particularly where the government does not command a clear parliamentary majority. Overall, however, holding the executive accountable through public inquiry and debate has become the dominant function of all modern legislatures. Who? All elements of the executive are in some way accountable to the legislature. All public agencies must formally report to the legislature. Public officials are liable to be summoned before legislative committees and to face questioning on their actions. In parliamentary systems, where ministers are members of the legislature, conventions of ministerial responsibility require ministers to answer questions put to them by their legislative colleagues. In presidential systems such as the United States, though the president is not directly interrogated by the legislature, his budget and other policies are subjected to extensive

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Page 46 legislative debate and scrutiny. Cabinet secretaries and other senior members of the executive appear before legislative committees. To whom? Legislatures typically consist of two houses or chambers, though single-chamber parliaments are not unknown (New Zealand has been unicameral since 1951). All legislatures contain a dominant, elected element, the lower (or sole) chamber always being chosen by the people, the second chamber sometimes being appointed (as in the United Kingdom and Canada) and sometimes elected (as in the United States and Australia, though for longer terms than the lower chamber). The elective character of the legislature gives it authority as an agency of public accountability chosen directly by the voters to act on their behalf and itself accountable to the voters for performance of this accountability function. In this respect, governments may be said to be accountable not just to the legislature but also through the legislature to the public. For what? Much legislative scrutiny centres on financial accountability. The executive requires the formal approval of the legislature for both the raising and the expenditure of public revenues. The legislature therefore has an obvious interest in making sure that funds are raised and spent as authorised. In addition, most non-financial activities of the executive are also subject to legislative scrutiny, though to differing degrees and through different mechanisms. Government officers and agencies provide the legislature with regular reports on their activities. Matters of general policy and performance are debated and criticised as part of the process of enacting legislation while more specific issues of government activity are subject to detailed committee scrutiny. However, in certain circumstances, the executive can claim the right to withhold information or to constrain public debate on grounds of ‘executive privilege’ or ‘public interest immunity’, longstanding rights deriving from the prerogative powers of the monarchy. How? Legislative accountability covers the earlier stages of accountability, information and discussion. Legislatures are the main public repositories of government information, through their statutory rights to receive reports from public bodies and their powers of independent interrogation and investigation. They also lay the foundation for much public debate, thus contributing to the broader public accountability of government. The proceedings of legislatures are generally open to the public and premised on the fundamental importance of publicity and deliberation in government. However, only in exceptional circumstances, such as a presidential impeachment or a vote of no confidence, do legislatures proceed beyond the information and discussion stages to

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Page 47 imposing formal remedies or sanctions on the executive. At the same time, their public inquiries and debates are often the key factor in provoking the executive into itself undertaking rectification. The legislature pursues its accountability functions through several different sets of mechanisms, including: official reports and accounts, ministerial responsibility (unique to parliamentary systems), committee investigations and constituency representation. Each of these will be analysed in terms of the key accountability dimensions: who, to whom, for what and how. (i) Accounts and reports The initial stage of accountability is to have access to reliable information. Legislatures play an important role in compelling governments to publish information about their activities, most notably through the obligation to report regularly to the legislature. Who? All government agencies and statutory officials which are part of the executive are obliged to report annually on their general performance and, in addition, may be required to report on certain specific matters. To whom? Most reports are presented formally to the legislature in open session and thus become public documents. Information may also be tabled in legislative committees acting on behalf of the full legislature. For what? The core of the annual report is the statement of annual financial accounts, approved by the government auditor. The legislature authorises all public expenditure and so exercises a right to ensure, on the public's behalf, that funds have been properly spent. Annual accounts are intended to give a general overview of income and expenditure summarised in broad categories of expenditure. Traditionally, public accounts were drawn up according to the principles of ‘cash-based’ accounting, recording funds as they came in and went out. More recently, however, accounting systems in most Westminster jurisdictions have followed the private sector in adopting forms of ‘accrual’ accounting which record income and liabilities as they are incurred and also include the value of assets held and record their depreciation. In keeping with changes in budgeting practice and a greater focus on results in public sector management (Chapter 5), expenditure is now more commonly listed under various programmes or outputs performed by the agency rather than categories of inputs or ‘line-items’, such as salaries, accommodation, equipment and so on. In addition to the statement of accounts, annual reports also provide information on the agency's performance, including matters such as

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Page 48 the agency's aims and objectives, statistical indicators of achievement, notable successes, management structures and staffing, compliance with various statutory requirements, such as implementation of equal employment opportunity targets, freedom of information rules and so on. Like the annual accounts, annual reports are very general summaries of performance. The subject matter of other specific reports varies widely. In the United States, for instance, the president is required to report to Congress on troop movements while in Australia, the Public Service Commissioner must report annually to Parliament on the statistical composition of the Australian public service. Accountability agencies, such as auditors, ombudsmen, information commissioners, have the power to report to the legislature on any matters relating to their terms of reference. How? Written on behalf of agency heads who formally submit them, reports are designed to represent the agency in the best possible light consistent within the demands of factual accuracy and the need to provide certain prescribed types of information. Most agencies engage public relations experts to assist with style and presentation. Guidelines for the content of annual reports are set out in considerable detail by central agencies with responsibility for supervising the public service, usually in consultation with one of the major legislative committees. (ii) Ministerial responsibility Ministerial responsibility (now sometimes described as ‘ministerial accountability’) is a central convention of Westminster constitutions. In terms of general principle, at least, ministerial responsibility is not unique to the Westminster tradition. The assumption that ministers are responsible to the legislature is to be found in most parliamentary systems where ministers are drawn from the legislature and must answer to it (though it is absent from presidential systems where the president is elected separately from the legislature). More broadly still, the general principle that the person in charge of an organisation should answer publicly for the collective actions of the organisation and for those of its individual members is a feature of hierarchically structured organisations in all systems of government and, indeed, in all sectors of society. Thus ministerial responsibility, though often formulated in narrowly legalistic terms as a technical constitutional convention, is best understood as a species of general organisational accountability where the obligations of accountability are located with the person in charge (Chapter 6). The accountability obligations of ministers are sometimes described by constitutional experts as principles of ‘individual ministerial responsibility’,

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Page 49 to distinguish them from ‘collective ministerial responsibility’ which refers to the requirements that the ministry as a whole should have the support of a majority in the lower house and that ministers should publicly support the collective decisions of Cabinet (for example, Woodhouse, 1994, Ch. 1). The distinction is somewhat misleading because the obligations to report, justify and rectify, though formally resting with individual ministers, have always been exercised in the collective context of Cabinet government. In practice, ministers are themselves accountable to their ministerial and party colleagues and to the prime minister as party leader as well as formally to Parliament. Major decisions are taken by the government as a whole and when ministers are in political difficulty their leader and colleagues typically rally to their support. Formally, however, when ministers are required to answer to Parliament, ministerial accountability is focused squarely on the individual. Who? Under ministerial responsibility, ministers are accountable to Parliament and the public for the departments under their direct control. As a corollary, public servants employed in government departments are generally expected to remain anonymous, allowing the minister to answer publicly on their behalf (or if they do speak out, they must take care to support the minister's authority). Accountability through the minister both reflects and reinforces ministerial control over the bureaucracy. Because the minister is in charge of a department, he or she has the major right to speak for it; in turn, because the minister speaks for the department and defends its actions, he or she has the right to expect loyal obedience from the head of the department and all its members. To whom? Ministers are accountable to Parliament, or more strictly, to the house or chamber of Parliament of which they are members. Questions asked of a minister by members of the other chamber are answered on the minister's behalf by a ministerial colleague who is a member of that other chamber. Because Parliament itself represents the people and is accountable to them, ministerial responsibility can be seen as making ministers accountable not only to Parliament but also to the people via Parliament. Moreover, as ministerial responsibility also includes the accountability of departmental public servants to their ministers, it creates a chain of accountability from the individual public servant, upwards through the departmental hierarchy to the minister, and through the minister to Parliament and ultimately the people. Ministerial accountability to Parliament also spills over into accountability to the media, because questions asked in Parliament will often be taken up by the media.

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Page 50 For what? Ministers are accountable not only for their own actions but also for most of the actions taken by their departments and departmental officials. If a departmental decision is to be questioned it is the minister's role to provide the public answers. The only exceptions are certain types of departmental decision usually quarantined from political interference, for instance the appointment of officials below the level of agency head or the award of some types of government contract. Full ministerial responsibility applies only to core government departments under direct ministerial control. Non-departmental public bodies, such as statutory bodies and government-owned companies, or semi-independent executive agencies within departments, have a more arms-length relationship with ministers (Flinders and Smith, 1999, Ch. 2). The formal distance between ministers and non-government agencies allows each to be held separately accountable for their own responsibilities, ministers for setting general policy and levels of funding, agencies for achieving given objectives. However, in many cases, the respective responsibilities and therefore accountabilities are blurred. Non-departmental bodies are often subject to covert or indirect political influence, particularly where they depend on government funding, and ministers may find themselves accountable for such influence. Members of the public still expect ministers to answer for the decisions of arms-length agencies, and ministers are not always able to avoid answering. In relation to executive agencies providing government services, such as the United Kingdom Next Steps agencies or the Australian Centrelink, ministers remain formally accountable to Parliament for decisions made within the agencies, in spite of the agencies' separate management structure (Chapter 5). How? As part of their accountability to Parliament, ministers are obliged to respond to questions about their portfolios, not only in immediate, oral answers to parliamentary questions posed without notice but also in more considered, written answers that are recorded in Hansard, the official parliamentary record (‘reporting or informatory responsibility’ (Woodhouse, 1994, pp. 29–30)). Ministers must also report regularly to Parliament on the activities of their portfolios, for instance through the formal mechanisms of annual reports and the tabling of other official documents. Oral questions and answers are used primarily in the cut and thrust of adversarial debate as means of attacking the government or provoking explanations of government actions (‘explanatory responsibility’ (Woodhouse, 1994, pp. 30–1)), while written answers provide a wealth of important evidence about government practice. A large premium is placed on answering truthfully, with ministers facing

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Page 51 compelling pressure to resign if found to have knowingly misled Parliament. However, ministers have the right to refuse to answer questions, and will not usually reveal matters that impinge on national security, are sub judice (that is, under adjudication in a court of law) or part of confidential discussions with colleagues or advisers. Ministers also become skilled at prevarication and turning the attack back on their opponents. None the less, an effective opposition, particularly if assisted by leaks from within the public service, is often able to extract information which is politically damaging to the minister and the government. In addition to reporting, explaining and defending their actions and those of subordinates, ministers are also expected to take remedial action when mistakes come to light (‘amendatory responsibility’, Woodhouse, 1994, pp. 31–3). In this respect, they often provide the final rectification stage to cap off the earlier information and discussion stages performed by the legislature. Though they may have been reluctant to reveal evidence of incompetence in the first place, once a fault has been publicly exposed, ministers usually move quickly to put it right. If they do not act immediately in response to strong public criticism, they face continuing public questioning in Parliament and the media. The more obviously unjustifiable the government actions, the greater the political costs of doing nothing and of attempting to ride out the storm of public disquiet and opposition criticism. Ministers presiding over areas of public scandal and controversy are under pressure from the prime minister and other party colleagues to resolve issues promptly and get them off the political agenda. Senior departmental officials will be equally quick to rescue the minister and the department from political trouble. In this way, the capacity to command obedience from departmental subordinates, together with the obligation to answer publicly for their departments, makes ministers effective trouble-shooters on behalf of the public. Rectification is correspondingly less straightforward in the case of non-departmental agencies not under direct, ministerial control. Though ministers may be asked questions about non-departmental agencies they tend to confine their answers to matters within their control or simply to relay information given to them by the agency's managers. Ministers can put such agencies under indirect pressure by public criticism or private admonition, particularly if the agencies depend on government funding and therefore require the minister's continuing goodwill. Ministers also sometimes have legal authority to issue formal directives or even change the stated objectives or composition of the agency. But not being free to intervene at will, ministers cannot impose remedies as readily as on their core departments.

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Page 52 Apart from imposing remedies and sanctions on subordinates, ministers are also sometimes expected to accept a sanction themselves, by resigning from office. However, though political opponents and members of the public regularly call on ministers to resign for their own and their department's mistakes, ministerial resignations are unusual. The determining factors are political, depending ultimately on the prime minister's judgment of whether the political damage from defending a beleaguered minister outweighs the claims of unity and loyalty. Matters most likely to lead to resignation include knowingly misleading Parliament and ethical or financial impropriety on the part of the minister. Resignation for purely departmental failings, where the minister shares no personal responsibility for the mistakes, is extremely rare, indeed arguably nonexistent (Woodhouse, 1994, Ch. 6; Dowding and Kang, 1998; Thompson and Tillotsen, 1999). The demand that ministers should resign when not personally at fault involves a confusion between role and personal responsibility (or between ‘accountability’ and ‘responsibility’) (Chapter 6). However, the view that ministers, like heads of other organisations that have performed badly, should carry the can and resign still has much public support. (iii) Committee investigation Much of the detailed work of legislatures is carried on outside the main debating chambers through legislative committees. Committees are involved in a number of legislative functions, including authorising expenditure, reviewing proposed legislation and investigating particular policy problems. Of most relevance for accountability is their role in the oversight and scrutiny of the government bureaucracy. Who? Ministers and senior bureaucrats, including senior executives of non-government agencies but excluding ministers' personal advisers, are all subject to committee investigation. Thus legislative committees are able to hold directly accountable a far greater range of public officials than can be questioned before the full legislature. In the United Kingdom, departmental public servants appear with the consent of their respective ministers who can, in exceptional circumstances, refuse permission for named individuals to give evidence before committees. In general, however, committees can interview any responsible public official and thus form the major avenue of direct accountability for bureaucrats who would otherwise remain faceless and anonymous. To whom? The system of committees to whom ministers and bureaucrats are accountable varies with the constitutional structure and conventions of the parent legislature. The most effective legislative committee

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Page 53 system is found in the United States. The separation of powers gives Congress independent legislative powers which it has used to develop a correspondingly powerful system of congressional committees and sub-committees (Aberbach, 1990). Membership of the key committees is keenly sought and is determined on the basis of party affiliation and seniority. In Westminster systems, on the other hand, the development of active parliamentary committees has been retarded by the executive's dominance of Parliament, together with commitment to the principles of ministerial responsibility which were held to require that all questioning of government departments should be via the minister directly to Parliament as whole. During the last third of the twentieth century, however, all Westminster systems greatly increased the role of committees in scrutinising government departments and other public agencies (for example, Drewry, 1989; Mulgan, 1997a, pp. 122–8; Uhr, 1998, Ch. 6; Kernaghan and Siegel, 1999, pp. 436–41). The membership of legislative committees is normally drawn from the government backbench and the opposition parties, thus excluding ministers or other members of the government's parliamentary team. In the United Kingdom, Canada and New Zealand, which lack elected upper houses, the committee systems have been based in the lower houses. Governments have ensured that the party balance of committee memberships reflects that of the lower house itself, thus usually securing government majorities in the individual committees. In Australia, on the other hand, the main committee system has been established in the Senate, the upper house elected by proportional representation. Because the non-government parties usually control a majority in the Senate and its committees, Australia has been able to develop a committee system which is somewhat more independent of government though no less partisan. For what? The historical origins of committee scrutiny of government administration are grounded in the financial scrutiny of government accounts, arising out of the legislature's function of financial authorisation. The United Kingdom House of Commons Public Accounts committee, for instance, dates back to the mid-nineteenth century as a means of implementing Parliament's concern that public revenues had been raised and spent in accordance with its authorisations. Other Westminster systems followed suit with similar, if less influential, accounts and expenditure committees. These committees scrutinised the financial performance of government agencies, sometimes moving beyond the verification of proper authorisation to consider matters such as inefficiency and government waste. In the United States, the powerful

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Page 54 specialist financial committees are involved more with determining the budget and appropriations than with auditing expenditure, a function performed more by the various sector-based committees and subcommittees. Westminster countries have also established systems of specialist standing committees responsible for overseeing the general implementation of government policies and programmes in designated sectors of government activity, such as defence, agriculture, education and so on. In parliamentary systems, the questioning of public servants is generally restricted to questions of ‘fact’ or ‘administration’ relating to their agencies, leaving accountability for ‘policy’ to elected ministers. In this way, public servants can be protected from having to comment directly on the merits of government policy and thus being drawn into open disagreement with ministers. Such distinctions are notoriously blurred and tend to be interpreted pragmatically according to the political realities of the occasion. In practice, ‘policy’ is taken to cover any aspect of agency activity in which the elected government or individual ministers are personally involved, thus leaving public servants free to comment only on matters where the government or minister cannot be directly implicated. In this way, the establishment of parliamentary committees has preserved the main purpose of ministerial responsibility, that ministers have the right to determine (and to be held accountable for) any matters within their departments. The limitations on public servants' candour are strictest in the United Kingdom, where government guidelines (the ‘Osmotherly Rules’ incorporated into Departmental Evidence and Response to Select Committees) prevent disclosure of advice given to ministers or interdepartmental communications, restrictions which have been interpreted very broadly to cover factual information on which advice has been based and which have successfully frustrated parliamentary inquiries into a number of government policy failures (Woodhouse, 1994, pp. 193–200; Flinders, 2002a, p. 51). Other countries are more relaxed. In Australia, for instance, officials are excused from giving opinions on matters of policy but they are allowed to give information about the factual and technical background to policy (Uhr, 1998, pp. 207–8). Even so, on politically controversial issues, public servants in all Westminster systems can be instructed by their ministers not to divulge certain information. How? Legislative committees have the right to seek information and explanations from members of the executive (information). They can also evaluate and make recommendations (discussion) but lack the final power of rectification, except indirectly through the force of publicity

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Page 55 and political pressure. In conducting their investigations, committees receive reports from the relevant agencies, interview ministers and public servants in connection with their annual reports and budgetary estimates, and initiate their own independent inquiries. They also receive useful information and opinions from interest groups and other nongovernmental organisations who use committees as a means of furthering their own agendas (Harlow, 1999). They are assisted by professional staff who gather information, organise hearings and draft reports. Indeed, given the other pressures on the legislators' time, the work of support staff is critical to the success of committee systems. The United States congressional committees also have access to staff of the General Accounting Office (GAO) and Inspectors General. In Westminster countries, the government auditors work closely with public accounts committees. Committees often encourage a less partisan atmosphere than is possible in plenary debate, though the claims of party and the interests of the governing majority are never fully absent. The extent to which agencies are accountable to committees varies from agency to agency and issue to issue. Core central departments that deal mainly with policy advice and coordination offer relatively few opportunities for committee scrutiny. By contrast, public servants in larger, line departments responsible for implementing major government programmes through elaborate structures of regional and local branch offices are more likely to take independent administrative action for which they can be held directly accountable. Similarly, officials employed in agencies such as statutory authorities which are not under formal ministerial control are less able than their counterparts in core departments to take refuge from direct scrutiny under the protection of refusing to comment on matters of government policy. Indeed, because ministers lack direct responsibility for statutory authorities and can therefore often avoid accountability for the actions of such bodies, legislative committees have emerged as a major mechanism for asserting public control and scrutiny over such bodies. (iv) Constituency representation In addition to their collective political activities, as contributors to debate or members of committees, legislators also have an important accountability role as individual representatives of their local constituencies. Citizens or organisations who face difficulties with some branch of the government often turn to their local member of Parliament or Congress for help in gaining information or redress.

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Page 56 Who? All agencies and officials in the executive branch accept an obligation to respond to individual legislators who approach them with constituents' problems. Their response may sometimes be little more than a polite restatement of existing policy or reaffirmation of a particular decision, but the right of legislators to raise questions on behalf of the constituents is unquestioned. Individual legislators, in turn, are accountable to their constituents for the manner in which they represent them. To whom? This form of accountability is aimed in the first instance to the individual legislators, in their capacity as a members of the legislature and elected representatives of the constituents concerned. Accountability also extends to the constituents via the legislators acting the part of accountability brokers or agents for their constituents. The accountability relationship with citizens is generally more direct and immediate than in other aspects of legislative accountability, such as debates or committee scrutiny, where legislators may believe themselves to be acting on their constituents' behalf but usually proceed without explicit instruction. In the typical case of constituency representation, however, the legislator is acting in response to a direct request. For what? Any aspect of government can be the subject of an approach by constituents to their local representative. Constituency representation is especially important as a mechanism of particular accountability, whereby individual citizens or organisations seek help in relation to a particular decision made in their case. But broader policy matters are also raised. Local interest groups or local governments with concerns about some aspect of central government policy which affects their members often look to their local MP or congressman to take the matter up with the key government decision-makers. How? Like other aspects of legislative accountability, constituency representation concentrates on the initial stages of information and discussion. Rectification is often sought and sometimes eventuates but the power to impose remedies and sanctions remains with other bodies. All individual members of the legislature have local offices, paid for by government funds, at which they and their staff are available for consultation. They can then take their constituents' problems up with the appropriate government authority or simply point complainants in the right direction. Particularly for citizens of limited means without access to their own skilled professional assistance, the local political representative is often the most convenient point of contact for dealing with the daunting and faceless institutions of government. To some extent the importance of local politicians as intermediaries between the public

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Page 57 and government has been reduced by the recent development of other avenues of particular accountability, for instance improved internal review procedures, service charters and ombudsmen (Chapter 3). None the less, access through the local member remains a vital channel of accountability, especially for ordinary citizens. Individual legislators place considerable emphasis on this aspect of their duties. A reputation for being approachable and helpful in dealing with constituents' problems will stand them in good stead with their local party organisation and thus cement their position as the party's candidate. It may also secure them more voter support at the election. While the personal vote for local candidates is not very large compared with the support they derive from their party endorsement, it may be enough to tip the balance, especially in close contest. Reported instances of off-hand or unsympathetic treatment of individual constituents seeking assistance can be very damaging. For this reason, individual legislators are generally held more accountable for their efforts on behalf of local constituents than for their contribution to the party's collective activities. Legislative scrutiny How effective? The overall effectiveness of legislative scrutiny, working through the various mechanisms of reports and accounts, ministerial responsibility, committee investigation and constituency representation, is open to both positive and negative assessment. From one point of view, legislatures are sturdy bastions of accountability, placing executives under regular scrutiny and forcing them to answer to the public. As executive power grows and appears beyond the control of the people whom it is meant to serve, legislators are particularly well placed to act as accountability agents on the public's behalf. Indeed, in so far as their role in actual policy-making is attenuated, legislators can with more credibility adopt an independent critical stance as the people's champions against government. On the other hand, legislatures in parliamentary systems often appear weak and irrelevant, excluded by the executive from discussion of the major government decisions and unable, or unwilling, to examine the great bulk of bureaucratic decision-making. Both judgments contain elements of truth. Legislatures certainly are essential to public accountability, compelling the publication of important information and facilitating the public deliberation of policy which is central to democracy. At the same time, governments certainly prevent them from reaching their accountability potential.

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Page 58 With respect to the initial information function, legislatures are responsible for placing much valuable information on the public record through processes such as formal reporting, ministerial answers to questions and committee investigations. Without such channels of information, public debate would indeed be much less soundly based. However, there are obvious deficiencies. Much material published by governments is deliberately self-serving, aimed at placing the executive in the best possible light. Outright lies are rare, given the severe political penalties for deliberate deception and the risk that disgruntled subordinates will unofficially ‘leak’ the correct version. But evasion and prevarication are endemic. All political leaders, ministries and government agencies employ extensive public relations staff whose task is to present a flattering image of the government and to deflect criticisms. In oral answers to parliamentary questions, ministers regularly avoid the main issue and resort to partisan point-scoring over their political opponents. Ministers are not formally obliged to answer questions put to them and can, if they wish, simply refuse to reveal potentially embarrassing information on general grounds such as the public interest or national security. The immunity of ministerial advisers to legislative scrutiny is also problematic as the size and political influence of ministers' offices steadily increase. In theory, such advisers act in their ministers' name as their ministers ‘eyes and ears’ with the implication that ministers are as personally accountable for their advisers' actions as they are for their own. However, a number of recent incidents in the United Kingdom and Australia (Daintith, 2002; Holland, 2002) have indicated that advisers are playing a significant, independent role in policy-making which should expose them to the same level of legislative investigation as public servants. By shifting responsibility on to their advisers who cannot be publicly questioned, ministers are able to avoid answering legitimate questions on politically awkward issues. Public servants too can be evasive. In Westminster systems, the conventions of ministerial responsibility have traditionally shielded public servants from direct public scrutiny. Though the expansion of committee investigations have exposed them to public questioning on matters of departmental administration and generally raised their public profile (Thomas, 1998, pp. 360–1), public servants are still constrained by the need not to appear openly critical of their ministers. Though public servants are careful to avoid openly misleading committees through false information, they can often obstruct inquires with imprecise and evasive answers. In Westminster systems, the convention that public

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Page 59 servants do not comment on matters of ‘policy’ which are the preserve of minister provides public servants with a convenient excuse for avoiding awkward questions. In relation to parliamentary accountability, ministerial responsibility is two-faced, both requiring governments to reveal information and also providing a rationale for executive privilege and secrecy (Flinders, 2000). Executives and board members from statutory authorities are deprived of this excuse because their arms-length relationship with ministers means that responsibility for individual decisions rests with the authority rather than the minister. They are therefore likely to be more forthcoming in answering questions from legislative committees. In the United States, secretaries of departments and other agency heads share a similar degree of relative independence. On the other hand, comparative freedom from political control can induce a resistance to the types of accountability taken for granted by core public servants. In particular, appointees from the private sector tend to resent what they see as impertinent questioning and can adopt uncooperative attitudes towards legislative scrutiny. Beyond the search for information, legislatures are also engaged in exposing governments to critical debate and scrutiny. Here, too, in the discussion stage, the verdict is mixed. Legislative discussion of government policy and its implementation, both in full plenary session and also in committees, clearly adds to public accountability. Issues are publicly aired and debated in the legislature and reported in the media. Committees investigate aspects of government administration in considerable depth and undoubtedly extend the accountability of the executive to the legislature and thus to the public. They also provide valuable points of access for interest groups and individuals wishing to question government policies and decisions. The power to interview public servants means that those responsible for administering government policies and programmes can be held directly accountable. The prospect of legislative scrutiny has a profound effect on the behaviour of government politicians and bureaucrats. In considering options, they must always consider how they would respond to subsequent questioning. The effectiveness of such scrutiny depends on the extent to which those scrutinised are directly responsible for the policies and programmes in question. Greater reliance by governments on nongovernment organisations through outsourcing and other types of contractual arrangements removes the service providers from direct legislative scrutiny (Chapter 5). In addition, in federal systems responsibility for programmes is often shared between different levels of government which

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Page 60 means that no one legislature is able to scrutinise all those who are responsible. Federal government members who are questioned by their legislature on a shared policy are always able to pass the buck to their counterpart in the states or provinces. Federal cooperation is conducted mainly at the intergovernmental level, distancing individual legislatures from the process of scrutiny (Chapter 6). Much legislative scrutiny is driven by the partisan motivation of the government's political opponents. The opposition's desire to embarrass the government by criticising its unpopular actions and exposing its blunders does much to hold the government accountable. In this respect, democratic systems which, in Arend Lijphart's terminology (Lijphart, 1984), are ‘majoritarian’ and incorporate a clear division between government and opposition, as do most Westminster systems, are more conducive to accountability than ‘consensus’ systems that emphasise power-sharing and compromise. An adversarial opposition party, wholly excluded from government and wholly dedicated to replacing its rivals, is a powerful engine of accountability to the public, however self-interested its motives. Even in the United States Congress, where the separation of powers allows the party lines to be more relaxed, the most aggressive scrutiny of the executive usually comes from the president's political opponents. Adversarial political debates may be unpleasantly confrontational but they are, arguably, a better safeguard of public accountability than the more polite and cosy exchanges typical between politicians seeking to maintain consensus. On the other hand, majoritarian systems may be less conducive to accountability if they allow a majority governing party to frustrate legislative accountability through its dominance of the legislature. In Westminster systems, for instance, governments have regularly used their parliamentary majorities to prevent parliamentary investigations of questionable decisions and to protect incompetent ministers from dismissal. Debates are often cut short and controversial decisions are taken when Parliament is not in session. Much depends on the robustness of parliamentary procedures in the face of the government's desire to avoid political embarrassment. For this reason, accountability is likely to be much more effective if the executive does not wholly control the legislature. Ideally, therefore, accountability is best secured by an adversarial party system operating within an independently powerful legislature. Such a result can be achieved in a presidential system such as the United States, if the party lines are clearly defined and the president's party does not control Congress. In parliamentary systems, similar guarantees

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Page 61 of strong legislative scrutiny can be provided by minority governments where the governing party or parties depend on the votes of other members of Parliament outside the government who are in a position to enforce accountability on the government. In Australia, the proportionally elected Senate provides a virtual guarantee that every government faces a potentially hostile majority in the upper house, thus turning the Senate into a powerful house of review. In New Zealand, the new proportional electoral system introduced in 1996 has made the major governing parties dependent on the support of minor parties and strengthened the accountability role of the House of Representatives. In the United Kingdom, the unelected House of Lords has emerged as an independent, critical voice of government, finding democratic legitimacy in its support of minority rights and popular causes. While the partisan motive encourages opposition legislators to scrutinise the elected leaders of the government, it also leads them to neglect most of the activities of the wider bureaucracy. In particular, legislative committees continue to disappoint as mechanisms for monitoring the performance of government agencies. Individual legislators, as ambitious party politicians, tend to be more interested in scoring partisan points through embarrassing their political opponents than in pursuing bureaucratic inefficiency (Aberbach, 1990, Ch. 8; Woodhouse, 1994, p. 256). Key accountability issues relating to the quality or cost of government performance in major areas of public expenditure are often neglected in favour of more politically sensational inquiries. Topics for investigation thus tend to be set by political rather than administrative agendas, undermining the expectation, probably unrealistic, that committees of politicians could act as professional and dispassionate scrutinisers of bureaucratic efficiency and effectiveness. Though some legislators seek to advance their careers through conscientious, non-political scrutiny of bureaucratic activity, they are exceptions to the norm. Thorough and systematic scrutiny of the bureaucracy tends to fall to less partisan agencies such as government auditors (Chapter 3). The performance of legislative committees is also affected by lack of resources. Committees whose membership is confined to a few hundred legislators can do no more than scratch the surface of bureaucratic activity. Legislators are usually provided with support staff but even in the most wellresourced legislatures, such as the United States Congress, staff numbers are insufficient for the tasks set for them and cannot match the resources available to the agencies they are attempting to scrutinise. Executive governments have a vested interest in keeping legislative committees understaffed and, to the extent that they control

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Page 62 the budget, can resist calls for increased resources. As only a relatively few topics can be considered in any depth, it is not surprising that partisan motives determine priorities. Finally, in relation to the final stage of rectification, the main role of the legislature is as an inducer rather than an enforcer. Particularly in parliamentary systems where the executive controls a parliamentary majority, the capacity of the legislature to force remedies or sanctions on the executive is minimal. Initiative for taking appropriate rectificatory action usually lies with the executive itself. Except for cases warranting judicial proceedings, ministers or officials found responsible for mistakes or blunders cannot be made to resign or otherwise penalised so long as they retain the confidence of their political leaders. Faulty policies or procedures cannot be changed unless the government decides to do so. On the other hand, the legislature, with the support of the media, can generate overwhelming political pressure which governments ignore at their peril. In the face of continuing and damaging incompetence or scandal, disgraced ministers and officials can be forced from office, policies can be changed, and decisions reversed. Rectification is particularly effective in relation to core departmental agencies under direct ministerial control where political pressure on ministers can provoke prompt remedial action (Mulgan, 1997b). The position is less clear with arms-length bodies such as statutory authorities where divided responsibilities can create opportunities for buck-passing (Chapter 6). Even here, however, most supposedly independent public agencies are dependent on continuing government support which makes them sensitive to informal political pressure. They will often choose to take remedial action as a means of maintaining their credibility with the government and the public. At the level of the individual citizen and organisation, particular issues can be settled in response to requests from local representatives. Largely unheralded, constituency representation provides many otherwise powerless citizens with satisfactory remedies to their particular complaints (Karikas, 1980). Government agencies often have more to gain than to lose from responding positively to requests from the public, particularly when the requests are backed by an elected politician. That legislators often see their advice on behalf of individual constituents as the most rewarding part of their work is evidence of its success as an accountability mechanism. Moreover, because unsatisfactory treatment of constituents may lead to possible loss of votes or disendorsement by the party, individual legislators are themselves particularly accountable for how they exercise this aspect of their accountability functions

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Page 63 (an instance of compounded accountability where someone is held accountable for holding someone else to account). In general, publicity and public criticism are the key weapons of accountability. Governments know that, once the truth is out, further resistance will often be politically impossible, though technically within their legal powers. For this reason, the effectiveness of the legislature in the earlier stages of information and discussion is of critical importance. That legislatures lack powers of redress is not necessarily a cause for regret. Their role is to publicise and debate. Efforts to improve the accountability performance of legislatures should be primarily directed at making the executive more open to legislative investigation and at reducing the capacity of government agencies and officials to conceal their actions. Policy dialogue Beyond the major public arenas of election campaigns and legislative debates and hearings, governments are engaged in constant political debate with members of the public over the conduct of policy. Such debate is largely fragmented, being carried on between sections of government, both politicians and bureaucrats, and sections of the public, typically members of organised interests. Though reports may sometimes find their way into the media, much discussion takes place behind closed doors. The main purpose of policy dialogue is forward-looking, concerned with the making of future government policy. Groups of citizens are seeking to influence government policy in accordance with their values and interests while governments are aiming to gain relevant information and build public consent for their policies. At the same time, such policy debate can also have a retrospective, accountability aspect. Along with making demands about future directions, interest groups may also seek information or engage in critical discussion about past or current government policies. Indeed, raising questions about the past and the present is often an essential preliminary to advocating new policies for the future. In response to such questioning, government representatives therefore find themselves held to account for previous actions. In this way, processes of policy consultation, though not wholly, or even mainly, directed at accountability, can incidentally contribute to government accountability. Who? Those called to account through such processes include all members of the government involved in policy consultation. Most prominent are political leaders, not just prime ministers and presidents,

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Page 64 but also their cabinet colleagues who are engaged in continual rounds of meetings with interested parties from the wider public. Senior public servants also play a part in such discussions, acting either alongside or on behalf of their political superiors. Managers of statutory authorities and other nondepartmental agencies, though less heavily engaged in policy-making, also sometimes consult with relevant groups, such as consumers' representatives. Rank-and-file public officials, on the other hand, are less likely to be held directly accountable for their agencies' policies, though they may be indirectly accountable for their contribution to policies through questions put to their superiors. However, the implementation of policy is sometimes devolved to local levels, giving local bureaucrats opportunities to interact with, and be accountable to, grass-roots community groups (Weber, 1999). To Whom? The groups and individuals to whom governments are accountable through policy debate are many and diverse. In all sectors of government, policy-makers must consult certain ‘stakeholders’ (Chapter 1) who claim a legitimate interest in a particular area and are recognised by government as having a right to be consulted. Thus, in health policy, for instance, recognised stakeholders include medical practitioners and other health professionals, private hospital owners and managers, health insurance companies, pharmaceutical companies, pharmacists, patient advocates and support groups and so on. Similar constellations of stakeholders surround each government portfolio and sub-portfolio, as parts of the relevant policy communities or policy networks whose members consult each other regularly on particular areas of government policy (Rhodes, 1997, Ch. 2). Beyond these ‘insider’ groups with regular access to government leaders, other ‘outsider’ interests also seek to influence government policy. Excluded from normal channels of confidential consultation because they are too radical, too poor, too electorally insignificant or too recently formed, they are often totally neglected. However, on occasion, usually by resorting to more public and sensational methods of gaining attention, they can force governments to listen and respond and can thus hold them to account. Though governments may not deal directly with such groups they do answer to them as part of their continuing public dialogue. Single-issue groups, coalescing around a particular cause such as an environmental issue or a victimised minority, have often been successful in pressuring governments to release information, reopen inquiries and extend compensation. For what? Accountability through policy-making processes deals with issues of general rather than particular accountability. The range of such

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Page 65 issues is as extensive and varied as the people who raise them, covering all the different areas in which government policy-makers engage in discussion with stakeholders. For the most part, the stakeholders themselves decide which issues to take up. While the government side in discussions will usually be concentrating on eliciting information and building consent, stakeholder representatives have an opportunity to raise questions about aspects of past and current policy which concern them. However, whether the questions are answered and discussion is allowed to take place depends ultimately on the discretionary judgment of those representing the government. As with ministers facing questions in Parliament, members of the government are entitled to refuse to answer. Reasons given for refusing to disclose or discuss are the standard justifications for government secrecy such as national security, which applies most commonly in matters relating to defence or police, or the confidentiality of internal government decision-making processes. Stakeholders have no enforceable right to information or discussion. Moreover, stakeholders with privileged access risk expulsion from the inner circle of insiders if they object too strongly to government stone-walling. On the other hand, refusal to answer can become a public issue and can involve the government in the potentially more embarrassing situation of appearing to have something scandalous to hide. The issues taken up thus include any matter that a section of the public wishes to pursue and which the government, knowing the political consequences of unjustifiable silence, is prepared to discuss. How? Accountability through the policy-making process operates mainly at the stages of information and discussion. Rectification may sometimes follow as a consequence of such information and discussion, and of the political pressure brought to bear on governments. But such remedial action cannot be forced on government and is separate from the accountability dialogue itself. The parties to this dialogue and the manner of their discussion are shaped by the structure of political institutions. Democratic governments in pluralist societies have all developed complex structures for engaging with the multitude of groups and interests that need to be listened to and accommodated. Some institutions are formally incorporated into the structure of government, for instance advisory councils or boards with representatives from both government and relevant interest groups. Other mechanisms include regular informal meetings between government members and interested parties, ad hoc meetings instigated by groups wishing to lobby over a particular issue, or even one-on-one contacts such as

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Page 66 telephone conversations or casual meetings at social functions. All are forums in which political negotiation takes place, including the particular types of political negotiation associated with accountability. Much of this discussion takes place in comparative secrecy, with non-government participants generally respecting the confidentiality of proceedings in exchange for privileged access and information. At the same time, the discussion contributes to public accountability because governments are answering to stakeholder representatives who, themselves, will need to answer to their rank and file. Though the stakeholder representatives can be counted on to be discreet about some detailed aspects of their discussions, they will usually need to give a general report of the government response to their membership or the media. Thus, when government representatives meet with leaders of disgruntled interest groups, such as tobacco companies complaining about advertising restrictions or farmers seeking protection against cheap imports, they know that the gist of what they say will be repeated outside the meeting. Such meetings therefore provide opportunities for holding governments publicly accountable even if they are not open directly to the public. Sometimes, the exchange of views will occur in full public view, particularly if the interested parties seeking to hold government to account are refused the privilege of insider access. For instance, more radical organisations, such as anti-globalisation protesters or environmentalists supporting direct action, aim their questions at governments across very public spaces, in the streets and in the media. Governments reply in similarly public fashion, justifying their actions and responding to criticism through the media, avoiding face-to-face discussion but none the less engaging in public dialogue with their critics. How effective? Dialogue through the policy process adds considerably to the government's general accountability, providing countless opportunities for holding governments to account across the whole range of government policies, minor as well as major, routine as well as controversial. Compared with other political channels such as elections and the legislature, even legislative committees, which can canvass only a limited number of issues, regular discussion of policy matters between government representatives and their respective publics greatly extends the scope of government accountability. Though government representatives are not formally obliged to answer in such forums, they are under powerful incentives to be forthcoming. For politicians, the electoral motive is always present, discouraging them from alienating significant sections of the electorate. For bureaucrats, meanwhile, the smooth running of government business requires the active cooperation

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Page 67 of relevant interest groups in their respective policy communities. Refusal to answer reasonable requests for information or to enter into discussion over the merits of government actions can damage valued working relationships. On the other hand, the processes suffer from some serious deficiencies. First, their accountability potential is weakened by the lack of formal obligations on government to respond to legitimate questions. Though the incentives to respond may be strong, they are far from overwhelming, leaving this form of accountability too often a matter of government grace and favour rather than obligation. Too easily, government representatives may refuse to answer, employing one of the convenient excuses for non-disclosure, such as ‘contrary to national security or the public interest’, ‘under discussion’, ‘commercially confidential’, ‘sub judice’ and so on. Each of these reasons has a valid basis and can be properly used to prevent or delay public discussion. However, they are also open to abuse by politicians and officials wanting to hide information for purely self-interested reasons, for instance, to avoid political damage or personal embarrassment. The fact that governments usually have the unchallengeable right to decide for themselves what to disclose and what to keep hidden from these forums loads the dice in their favour. Secondly, the extent of accountability achieved through dialogue with stakeholders depends on the openness of such dialogue, on how many people are admitted to the discussions and on how far these people, in turn, are themselves accessible and accountable to wider constituencies. Accountability within such networks can be closed and elitist, with only a few people or organisations being included in the meetings and the rest kept in the dark. Alternatively, discussion can be outwardly focused, where those who participate directly are expected and encouraged to share their information and insights with everwidening circles of colleagues and interested parties. Of particular importance is the degree of compounded accountability, the extent to which those holding government accountable in such settings are themselves accountable more widely for their performance as account-holders. For instance, representatives of particular groups or interests are much more effective in their role of holding government agencies to account if they have to face serious scrutiny or possible dismissal from their rank-and-file members (Chapter 6). Finally, the effectiveness of policy-making processes as mechanisms of accountability depends not only on the government's willingness to answer and the wide dissemination of such answers but also on the

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Page 68 capacity of non-government representatives to raise the important questions in the first place. Though, in theory, all issues of public concern have a chance of being pursued in some policy-making forum or other, in practice, some issues and some interests are much more likely to succeed than others (Marsh and Rhodes, 1992). The structures of interest group representation found in most modern pluralist democracies systematically favour certain groups and interests over others. More political influence is wielded by well-resourced groups than by poorly resourced groups and by those representing concentrated producers' interests than by those representing diffuse consumers' interests (Olson, 1965). These inequalities in political influence flow through into inequalities in the ability to call government to account. Thus, members of wealthy groups, such as directors of major companies, are more likely to be able to engage governments in critical discussion of government policy than can representatives of the homeless. Oil producers and car manufacturers are listened to before car owners and drivers. Accountability through political dialogue is multifaceted and wide-ranging but it is also biased in the direction of those who are already politically powerful. The media The mass media, primarily television, radio and print journalism, are integral to most mechanisms of government accountability. They provide the main means by which information and discussion about government activities are conveyed to a wider public. When governments respond publicly to inquiry or scrutiny, only a very few members of the public are physically present to hear what is said. If accountability is to be extended to any significant proportion of the public, the government's statements must be reported in the media. Indeed, much political accountability activity, such as election campaigning and legislative questioning, is conducted in the expectation that the media will report it. The media are therefore an essential element in political communication, including the dialogue of political accountability. But the media do not just deliver messages between government and the people. They also shape, and even initiate, messages themselves. They aspire to a role as the ‘fourth estate’, in the sense of being a distinct political force acting as the people's tribune or champion. For this reason, the media should be seen not just as conduits of accountability but also as independent agents of accountability who help to choose the activities for which governments are held accountable.

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Page 69 Who? While all members of the executive are potentially the subjects of media investigation, the spotlight of media publicity falls most especially on the most senior members, particularly the elected leadership. Elected leaders, by being the most powerful members of the government, are also the most intrinsically interesting and the most newsworthy. Media publicity is the lifeblood of politicians in their continuing search for popularity with the voters. Politicians therefore naturally tend to welcome opportunities to speak to the media. Moreover, because politicians are often formally in charge, whether of the government as a whole or of a particular agency, they are the most appropriate people to answer on behalf of the government or agency. This principle is enshrined in the conventions of ministerial responsibility under which ministers generally answer for actions taken within their departments not only to Parliament but also the media. Non-elected heads of agencies that are not under immediate political direction, such as heads of statutory authorities, also face media questioning about their agencies' activities, particularly if the activities are newsworthy. Chief executives of public broadcasting corporations, for instance, are frequently under close media scrutiny as are heads of central banks and directors of national museums. In general, however, such officials tend to make themselves less available to the media than elected leaders. Being less dependent on public popularity than elected politicians, they can therefore afford to take a more dismissive approach to the media. Moreover, because the purpose of establishing armslength agencies is usually to quarantine them to some extent from partisan political pressure, heads of such agencies are justified in adopting a more aloof approach to publicity. Career public servants in a subordinate role are the least likely to appear in the media. Respect for hierarchical authority in any type of organisation requires that subordinates should not appear to usurp their leaders' position by speaking out in public. Moreover, public servants are formally constrained by such mechanisms as Official Secrets Acts, oaths of secrecy and professional ethics from disclosing confidential information. Indeed, most public servants are only too happy to avoid the glare of publicity except when formally obliged to appear in public, as when appearing before legislative committees. They willingly cede the media spotlight and its attendant pitfalls to their political masters. In Westminster systems the near total anonymity of public servants has been loosened, in part by the parliamentary committee processes which have brought senior public servants more into the public eye.

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Page 70 Moreover, the influence of managerialist ideas in public sector management (Chapter 5) has given the heads of government departments more explicit responsibility for how they run their departments. As a result, ministers occasionally refer media questions about matters such as staffing levels or other more routine issues for the department head to answer. In addition, the increasing devolution of some government functions away from core departments to executive agencies and other types of semiindependent bodies has weakened the capacity of ministers to answer for all official actions. The armslength status of such agencies means that their heads are placed more in the role of heads of established statutory authorities and can be called on to answer directly to the public and the media. At the same time, however, the traditional conventions of ministerial responsibility still remain strongly entrenched and predispose senior public servants towards avoiding media publicity, regardless of any formal changes in their relationships with ministers (Chapter 5). To whom? The media to which governments are accountable are commonly divided into the print media, principally newspapers and magazines, and the electronic media, namely television and radio. The internet is another electronic medium of rapidly increasing political significance but so far it is more a literal medium of communication, like the post or telephone, than an independent source of investigation like television and radio. Most media outlets operate as commercial companies aiming to make a profit through sales and advertising, though a few broadcast media outlets are publicly owned and funded through government revenue, licence fees or donations. Government accountability is conducted primarily by journalists and editors as part of the task of reporting on politics and government, which is itself only one aspect of the media's activities. An elite corps of political journalists concentrate on the political leaders through membership of a formally organised group of accredited journalists, such as the White House press corps, the Lobby (United Kingdom) or the Press Gallery (Australia, Canada and New Zealand). Other journalists specialise in particular policy areas, such as health, defence, education and so on, depending on the resources of their media company. In smaller communities, where local media outlets cannot afford the degree of specialisation found in the national press, political reporting of regional or local government is often undertaken by generalist journalists. In addition to political reporting by front-line journalists, articles by editorial writers and commentators also hold government to account through critical discussion of particular policies or decisions. For what? The subject matter of media accountability is determined primarily by the interests of the target audience of readers, viewers or

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Page 71 listeners, as assessed by journalists and editors. Media outlets that satisfy their audiences will be profitable and flourish while those that do not will wither and disappear. Even publicly funded broadcasters cannot afford to ignore their ratings and audience share. As audiences differ, so do the issues covered. More specialised media outlets aiming at an exclusive professional audience hold governments to account in the more esoteric aspects of government policy. Mass-audience media such as free-to-air television and the tabloid press tend towards the more graphic and sensational. Some issues of government accountability engage a high degree of public attention in all types of outlet. For instance, the words and actions of elected leaders, such as presidents or prime ministers, usually make the news. With less important members of government, newsworthiness is not so easily guaranteed. The media will therefore concentrate on matters likely to be of interest to their audience. Political reporting tends to focus on conflict rather than cooperation and on personalities and scandals rather than abstract issues and general policies. The media are keen to expose disagreements within the government, for instance between different cabinet members and agencies or between politicians and public servants. Thus government politicians and officials are held especially accountable by the media for breaches in the appearance of government unity. Other types of activity likely to attract media attention are extravagant or improper expenditure of taxpayers' funds, for instance expensive junketing by members of the government or awards of government contracts to political cronies. The popular media also enjoy exposing bureaucratic incompetence or injustice when individual members of the public have been badly treated by government agencies. Thus, the media provide both particular and general accountability, the main criterion of their involvement being a journalistic judgment of what will interest their particular audience. How? Accountability by the media concentrates on information and discussion, leaving rectification to other mechanisms (though, as often, rectification is a direct result of earlier questioning and exposure). Information is sought through a variety of methods, including formal and public press conferences convened by government leaders or officials, interviews by a particular media outlet, whether on television, radio or by a print journalist. Journalists can also gain additional details from government sources in exchange for suppressing the name of their informant or avoiding direct quotation. Experienced reporters build up a network of reliable contacts in government, people on whom they can call for valuable, anonymous information. They also use freedom of

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Page 72 information procedures to secure copies of newsworthy documents. Journalists' access to information, however, is restricted through the public servants' obligations to observe confidentiality as well as by the various limits placed on freedom of information rights (Chapter 3). Media outlets are themselves liable to prosecution for publishing official secrets or making defamatory statements about politicians or officials. Critical discussion sometimes occurs directly between the government and the media, as when journalists use interviews to debate particular issues with government leaders. Press conferences, too, though they have a one-sided, question-and-answer format which lends itself more to the simple conveying of the government line, can also become a two-way interchange of opinion. Questions from journalists often imply a particular judgment or opinion which the political or official then proceeds to contest and rebut. Critical debate, however, is more often conducted at a distance. Journalists write articles or produce programmes criticising government actions. In response, government spokespeople issue press releases or make speeches which they hope will, in turn, be reported. In this way they present their alternative points of view and rebut the journalist criticisms. The rebuttal may be explicit, identifying the critics directly. More often, the approach is implicit and indirect, posing a positive alternative without condescending to mention the opponents specifically. The dialogue may not be face-to-face or even publicly acknowledged as such, but it is dialogue none the less, carried on at arms-length through the media. In this dialogue, significantly, the media not only provide one side of the argument. They are also the means of communication through which both sides carry on their discussion. How effective? The media clearly play a vital role in holding governments accountable. One need only compare the lack of accountability in countries without free and independent media to recognise the major contribution made by the media in functioning democracies. Citizens rely on the media to report and publicise the actions of government. Other channels of accountability, such as legislatures and courts, would be rendered largely ineffective if the media were unable to report their proceedings. Independent media investigations provide additional means of calling governments to account. Conversely, members of governments themselves, particularly elected leaders, know that the media are ready to pounce on any mistake or indiscretion. However, the media's accountability performance falls short in a number of respects. First, the media are often subject to undue restrictions on their freedom to publish. Legal restrictions have been particularly

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Page 73 severe in the United Kingdom where a draconian official secrets regime, though simplified and somewhat liberalised in the revised 1989 Act, places severe limits not only on public servants but also on journalists and publishers (Birkinshaw, 2001, Ch. 3). The government also operates an informal ‘D notice’ system under which media outlets agree to refrain from publishing certain types of information, particularly relating to defence, which governments consider should be kept confidential in the interest of national security. The United States, by contrast, has provided more legal protection for the media under the Constitution's First Amendment guarantee of free speech and a free press. United States defamation law allows for more robust levels of comment and criticism of people in public life. Secondly, governments can manipulate the media and deflect them from exercising their accountability role (Iyengar and Reeves, 1997; Street, 2001). The government's most important resource is its capacity to control the media agenda, by making news and issuing statements that cast the government in a good light and which the media are obliged to report. Supported by an army of press officers and media advisers, government leaders work hard to fashion the news in their own interests and to draw attention away from issues that might prove politically embarrassing. They avoid open-ended press conferences where awkward questions can be raised, preferring set-piece announcements or quick passing comments as they move in and out of buildings. Admittedly, governments cannot always manage the news. Unpredictable crises intrude and scandals develop their own popular momentum. Political oppositions can sometimes seize the initiative and put the government on the defensive, mobilising the media's interest in conflict and scandal as a means of attacking those in power. But, for the most part, the government's version of events tends to prevail. For hard-pressed journalists and their editors, it is always much easier to accept the tailor-made press release than devote time to investigating an issue which might not yield any publishable results. Finally, the media's capacity to act as agents of public accountability is constrained by their own priorities and imperatives. The preference for the sensational and the entertaining directs attention away from areas of government activity that are important and need scrutinising but lack audience appeal. Major policies that consume large amounts of public funds and have major impact on communities are not worth investigating unless they throw up a spicy story of graft or stupidity. The more humdrum failures associated with ill-directed funds or unachieved objectives tend to remain uninvestigated and unreported. Though some

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Page 74 elements of the media have a partisan agenda in favour of particular politicians or policies, overt political bias is less pervasive and damaging than the unceasing pressure to entertain. Politicians who are incompetent but boringly so attract less media attention than those with flamboyant private lives. Media accountability may often be effective against its chosen targets, but its choice of targets is made to suit the audience's interests rather than the public interest. Conclusion The accountability mechanisms outlined in this chapter – elections, legislatures, policy dialogue and the media – can all be seen as forms of political accountability, broadly understood. They tend to focus on politicians and elected leaders rather than non-elected officials (though the latter are not totally exempt). They also involve political debate in the sense of open-ended discussion about contestable values and policies (though, again, not without exception, some comparatively objective information being revealed, for instance, through annual reports to legislatures). The importance of politicians to these mechanisms underlines the centrality of elections to securing government accountability. The election itself provides an opportunity to hold elected leaders to account but its indirect effects extend much further. It is because politicians wish to secure electoral support that they can be induced to answer for their actions to the public and to the public's representatives in the legislature, policy communities or the media. Failure to answer adequately can lead to loss of popularity and risk of defeat at the ballot box. In this respect, the ‘continuous election campaign’ conducted by politicians acts as a spur to the public accountability of governments. But politicians only answer adequately under compulsion. Their natural instinct is to suppress unpopular truths and to present their own version of events rather than engage in genuine dialogue. The harnessing of the electoral motive to the purposes of public accountability depends on the maintenance of robust democratic institutions, including free and fair elections, an independent legislature, freedom of association and a free press. Even with such guarantees, however, political accountability falls short of its objective of making governments responsive to the interests of the public. Governments can still withhold information, resist scrutiny and unduly shape the agenda of public debate. Other mechanisms are needed to help reduce the accountability deficit.

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Page 75 3 Government Accountability: Audit, Judicial Review and Other Mechanisms External review and internal scrutiny As well as being held accountable through the major political processes, such as elections, legislative scrutiny, policy consultation and media debate, governments are also subject to a number of other accountability mechanisms which hold them to account in more direct and specific ways. These include specialised review bodies which scrutinise various aspects of government activity, for instance, law courts, tribunals, government auditors, regulatory bodies, ombudsmen and other types of government monitoring agencies. Members of the public also have direct access to government agencies through various complaints and grievance procedures and through the exercise of freedom of information rights. Finally, in addition to many different agencies of external accountability, public officials are also accountable individually, within their own organisations, both to their superiors through the chain of hierarchical command and also to other internal accountability agents such as internal auditors and inspectors. Judicial review Judicial review through the legal system and the courts is in some respects the most powerful form of external review of executive action. Judicial hearings increasingly require the government to disclose publicly what it has done and why; they allow members of the public the right to contest such government actions, and they can force the government into remedial action. Indeed, an effective, independent

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Page 76 judicial system is a fundamental prerequisite for effective executive accountability. Though the powers of courts are extensive, their scope is comparatively circumscribed. As a non-elected branch of government, they tend to defer to the legislature and the elected leaders of the executive, particularly in Westminster systems. However, the latter half of the twentieth century witnessed a general increase in judicial activism and a greater reliance on judicial solutions to public policy issues, trends that have enhanced the importance of courts as avenues of public accountability (Aronson and Dyer, 2000, Ch. 1). Increased use has also been made of court-like bodies such as tribunals, which, though constitutionally part of the executive rather than the judiciary, conduct hearings and review decisions in a quasi-judicial manner and can be considered as part of the general system of judicial review. Who? The courts can call to account any element of the executive, whether an agency or an individual official, elected or appointed. However, the extent to which particular agencies and officials are legally accountable varies greatly, depending on their constitutional position and functions. Heads of State, such as the United States president and the British monarch (or the monarch's representative in other countries, the Governor-General), are generally immune from having their actions reviewed in the courts. Political leaders, such as prime ministers and their cabinet colleagues, are only rarely challenged judicially, partly because they generally take care to act within the law and partly because the courts generally avoid adjudicating on matters of major policy. However, ministers who make decisions on particular cases, for instance concerning questions of immigration and citizenship, are frequently subject to legal accountability from both courts and tribunals. So too are departments and officials who deal directly with the public while administering government policies in areas such as social welfare, payments or taxation. On the other hand, departments devoted to giving policy advice to government are seldom subject to litigation, being more accountable through political channels. To whom? Judicial review is normally initiated by members of the public who instigate legal proceedings against the government. This form of accountability has thus a dual direction, requiring the government agency or official to answer first, and most directly, to the court or tribunal itself and, secondly, through the court or tribunal to the individual members of the public who have initiated the hearing and appeared in court. To be allowed to bring a case, a person or group must have a sufficient interest in the issue to be accorded ‘standing’, a judgment usually made by the court or tribunal concerned in accordance

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Page 77 with established legal rules. People with obvious standing include those to whom a decision applies directly, such as potential beneficiaries denied a welfare payment or local residents contesting a planning decision. More controversial have been the rights of taxpayers or consumers objecting to decisions which affect large sections of the population, or the rights of advocacy groups representing the interests of others. In most countries, following the lead of the United States, rules for deciding standing have been considerably relaxed in recent decades, opening the courts to interest groups wishing to pursue what amount to political campaigns against particular policies (Woodhouse, 1997, p. 141). In addition, because court proceedings are usually conducted in public and can be reported by the media if deemed sufficiently newsworthy, judicial accountability is also directed to the wider public at large as well as to the specific members of public appearing or represented in the hearing. The structure of the judicial system varies from country to country but all countries include a clear hierarchy of courts, culminating in a highest court of appeal. Federal systems include separate court systems for applying the law of individual states or provinces as well as federal law, with each system linked under a common court of final appeal, such as the Supreme Court in the United States and Canada and the High Court in Australia. In all Anglo-American jurisdictions, challenges to government decisions are heard in the ordinary court system, though often on appeal from more specialised courts or tribunals. Westminster systems rely extensively on administrative tribunals which have statutory authority to hear and decide appeals against executive decisions. Constitutionally, tribunals are part of the executive rather than the judicial branch of government and are not required to follow the same technical rules of evidence and procedure as courts. However, they hear disputes and decide between competing claims in a broadly judicial fashion, acting as independent and impartial arbiters between citizens and government agencies. Australia has made particularly extensive use of the tribunal format through its powerful Administrative Appeals Tribunal which hears appeals against a wide range of administrative decisions. The United States has followed a more legalistic route with a system of administrative law judges who are formally part of the executive but have developed procedures that are essentially similar to those of normal courts and are fully integrated into the judicial system. For what? The matters for which the executive can be held judicially accountable depend on the country's legal system. No public official or

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Page 78 agency is above the law and so all are legally accountable for supposed breaches of their system's particular legal obligations. Courts typically determine individual cases brought before them either by members of the public or by the government itself. However, the issues raised may be of a general nature, affecting matters of broad policy and not just the particular interests of the parties to the action in question. Thus, though legal accountability is more often concerned more with particular accountability for individuals in their dealings with government, it can also extend to general accountability for wider issues. All constitutions require the courts to determine whether the government has acted within the law, but the effect of such power varies greatly. At one extreme, the United States constitution defines and limits the scope of both Congress and the president and thus turns the courts into a forum for holding government generally accountable across a wide range of substantial policy issues. Claims that the executive has acted unconstitutionally have been used to challenge government policies in major areas such as commercial regulation, industrial relations, segregated education, control of firearms, abortion and so on (Wilson, 2000, Ch. 15). At the other extreme, the United Kingdom and New Zealand have no formally written constitutions. The courts have traditionally accepted that Parliament has an unlimited right to legislate and that ministerial responsibility to Parliament gives elected ministers the right to decide matters of executive policy. Opportunities to use the courts as mechanisms for holding government accountable for matters of general policy have therefore been much more limited (though, in the case of the United Kingdom, membership of the European Union has forced a more active reviewing role on to the courts). In between the extremes lie federal Westminster systems, such as Canada and Australia, which have always required judicial review to settle boundary issues between federal and provincial/state governments. They have thus accepted a degree of judicial intervention, while still subscribing to Westminster principles of judicial restraint. Canada adopted a Charter of Rights and Freedoms in 1982 which provides for judicial review of legislatures and governments and has moved much closer to the United States in the opportunities for legal accountability. One area of general policy where courts in all common-law jurisdictions have played an especial role is in defining the rights of citizens against the power of the state. Though democratic principles generally allow precedence to the policy decisions of elected governments, the courts have always been seen as champions of individual and minority rights against the abuse of state power. Even in the absence of

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Page 79 constitutionally entrenched bills of rights, courts in Westminster systems have relied on traditional common-law rights such as habeas corpus (which safeguards against arbitrary arrest) to protect the civil liberties of citizens. Individual citizens have therefore been able to use the courts to hold governments accountable for breaches of civil liberties, though the extent of such accountability is certainly greater in those jurisdictions which have justiciable bills of rights. While judges generally recognise the rights of the legislature and the executive to determine policy, the courts can be used by citizens to question the executive about whether existing policy has been properly applied and implemented. In particular, administrative law, the branch of law concerned with monitoring government administration of public policies, has developed several grounds on which the courts will intervene in government processes and decisions. In general, the courts have upheld three main requirements that all government actions should possess if they are to withstand legal challenge. The first, and most obvious, is that the government should have acted within the authority legally granted to it, whether by statute or under the common law. Where the actions of an agency or official exceed their legal authority (are ultra vires), the courts will declare such actions invalid. Secondly, government decisions should have been made fairly or in accordance with due process. The demands of fair procedure include the rules of ‘natural’ justice, such as the rights of interested parties to be heard and to have their case decided by an impartial judge. Due process may also extend to the right to be given reasons for a decision taken in one's case. Thirdly, some outer limits are imposed on the substance of decisions made by government officials when using the discretion allowed under the law, requiring that decisions should not be clearly unreasonable. The precise implication of these general principles is a matter of complex legal precedents, allowing considerable variation in the extent to which judges feel emboldened to override the executive. Different jurisdictions have evolved somewhat different approaches, with the United Kingdom and some other Westminster countries relying on judge-made common law while Australia has codified the principles in a statute. The United States has relied most heavily on the Constitution's requirement for ‘due process’. Overall, however, the tests of legality, fairness and reasonableness are generally applied by courts in all common-law systems. When finding a government agency in breach of these principles, the courts can impose corrective remedies, requiring the agency to undertake or abstain from specified action. Payment of

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Page 80 damages to compensate for economic loss can also be secured, most readily in the United States. Under English law, pursuit of damages usually requires an additional separate claim under the law of torts on separate grounds such as negligence. Matters covered by tribunals rather than courts tend to be government decisions where a wider range of experience and points of view is considered preferable to a more narrowly legalistic approach. Tribunals are found in many areas of government policy, particularly those in which the variety and complexity of individual situations prevent the development of unambiguous administrative rules, forcing reliance on wide official discretion in the application of policy principles to individual cases. Policy areas commonly covered by tribunals include social security and welfare services, immigration, industrial relations, planning and land use, taxation, transport licensing, liquor licensing and so on. Tribunals provide citizens with the opportunity to appeal to an impartial body against government decisions made in their case. The tribunals listen to evidence and then decide whether the original decision should stand or be overruled. As part of the executive, with a policy-making role, tribunals have the power to review and overturn an earlier decision on its merits and not just on legal grounds. For this reason, their membership usually includes people with expertise in the particular field. Their procedures are intended to be more flexible and informal than those of courts. However, tribunals are bound to follow the administrative law principles of legality, fairness and reasonableness, and their decisions are normally subject to judicial appeal to the courts on these grounds. How? Judicial review provides all major stages of accountability, not only information and discussion but also, most importantly, rectification. In being able to overturn decisions and enforce sanctions, courts and tribunals are able to go beyond the mere exposure and scrutiny of government actions by imposing remedies in their own right. Legal accountability, as provided by courts, is noted for its specificity and adherence to strict procedures. It focuses strictly on particular government actions and on the applicability of legal rules and principles to particular cases. Formal procedures must be followed, often involving a number of preliminary, investigatory stages before the full hearing is allowed to begin. The types of evidence and argument that can be raised by the parties for discussion are extremely circumscribed. Though matters of general policy may be touched on if relevant, a court will quickly overrule any attempt to turn a hearing into a more wide-ranging debate than is required for determining the precise issue at hand.

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Page 81 Discussion proceeds adversarially with each side presenting its own case and questioning its opponent's. Use of professional legal counsel helps each side to gain maximum advantage and to make sure that government is held fully accountable within the limits of the law. Tribunals and other similar inquiries are allowed, indeed encouraged, to take a more flexible approach and not to be tied down by legalistic procedures. They sometimes adopt a more inquisitorial style, in which the members of the tribunal or commission themselves inquire directly into the case, in contrast to the adversarial method of court proceedings where judges are required to rely on the arguments and evidence produced by the litigants. The emphasis is on reaching a reasonable conclusion in the light of all available evidence. At the same time, tribunals are subject to strong pressure to conform to judicial standards of procedure. Because their decisions are subject to further legal appeals on grounds of improper procedure, tribunals tend to adopt a more formal, court-like approach in their initial hearings. This tendency has been reinforced by the common practice of employing legal counsel to represent the parties involved. In general, administrative tribunals and their United States equivalent (agency hearings under administrative law judges), have not succeeded in offering a markedly more flexible and less legalistic alternative to the judicial process. How effective? Judicial review in all its various forms is clearly a fundamental aspect of executive accountability, particularly for insuring that governments have followed correct legal procedures. Without the possibility of legal intervention to restrain government illegality, citizens would have little chance of holding governments to account for breaking the law. What is at issue is not the basic principle itself, which is well established in the countries under discussion, but rather the extent and quality of its application. Is judicial review used as effectively as it might be? Is it, in fact, over-used, to the exclusion of other more-effective mechanisms? Judicial review of government bureaucracies certainly increased during the second half of the twentieth century. This expansion was a natural response to the greatly enlarged role of government itself, in areas such as social welfare and environmental planning, and to the perceived incapacity of legislatures to scrutinise the range of important individual decisions made by public agencies. Hearings before tribunals and other similar bodies offered a valuable combination of independent practical judgment and court-like fairness as means of calling faceless bureaucrats to account. In Westminster systems, the traditional underpinnings of judicial restraint, namely parliamentary sovereignty and

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Page 82 ministerial responsibility, lost some of their former allure as majority party governments rode roughshod over Parliament, and public servants remained anonymous and unaccountable (Chapter 1). Judges became more willing to take on the role of the public's champion against the other branches of government. Judicial review of administrative decisions on grounds such as fairness and due process has helped to ensure greater consistency in the application of government policies. The requirement that citizens be given the reasons behind decisions made in their cases has significantly increased the accountability of governments for particular decisions. Rights of appeal to tribunals, too, have offered important new avenues for particular accountability. At the same time, the expansion of judicial review has not been an unqualified success. Recourse to courts tends to be expensive and cumbersome. With lawyers come costs. Because legal representation has become necessary in order to receive a fair hearing, judicial accountability has been placed beyond the reach of many citizens, especially given the difficulty of securing legal aid for public law cases (Lewis and Birkinshaw, 1993, p. 210). Judicial processes are notoriously drawn out and subject to delays, often taking years to achieve accountability. Full-scale judicial review, including review by tribunals, has to be supplemented by other, less expensive and speedier mechanisms, such as ombudsmen and formal complaints procedures (see further below). Another weakness in judicial review is that administrative law has been premised on a sharp distinction between public and private law, with the requirements of administrative justice, such as fairness and reasonableness being applied only to public agencies. This restriction has left the courts unable to deal effectively with the increased use of private sector organisations to deliver public services under contract (Woodhouse, 1997, p. 111). Citizens wishing to hold private providers of public services, such as charitable organisations, legally accountable have been unable to apply for the same range of legal remedies as would be available in the case of public agencies providing a similar service. More broadly, judicial review is open to criticism for encouraging an excessively legalistic approach to government decision-making, emphasising formal rules and procedures at the expense of more flexible judgment (Wilson, 2000, Ch. 15). Wherever a decision has the potential to end up as the subject of a legal appeal, those making the initial decision are under pressure to impose law-like standards on their own processes and to act themselves in a legalistic manner, to avoid later recrimination.

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Page 83 Thus tribunals tend to become more legalistic and less flexible, as do front-line bureaucrats. The legalising tendency has gone furthest in the United States where whole areas of public policy, such as environmental protection, have been largely taken over by lawyers applying legally derived procedures. Whether the legalising of government decision-making is ultimately harmful or beneficial is a matter of perennial dispute. Good decisions often need to be based on complex overall judgments of unique situations, judgments that cannot readily be reduced to general rules or procedures. Legalism can thus be the enemy of sensible government, an argument which provided the original rationale for the use of tribunals rather than courts. On the other hand, the need to give public reasons for decisions and to justify why one person has been treated differently from another inevitably leads to the application of rules and precedents. In this respect, it is the demands of accountability itself, together with public expectations of consistency and fairness, which drive the bureaucracy into heavy reliance on rules and procedures. Lawyers and legal proceedings may increase the rigidities and intricacies of the rules but they are not the root cause of legalism. Accountability, with its emphasis on public justification, is the main driving force. Government auditors In addition to courts and tribunals, a range of other external bodies conduct reviews of government agencies and officials and hold them accountable, principally by inquiring into their activities and recommending courses of action but without having the power to enforce their preferred remedies. Government auditors are the most longstanding specialised agents of government accountability. In the United Kingdom, the position of ‘Comptroller and Auditor-General’ dates back to the 1860s when the function of auditing government finances was added to the older office of Comptroller-General (Normanton, 1966, p. 20). Strictly speaking, ‘control’ of finances refers to the administration and disbursement of public funds, while audit refers to the subsequent (ex post) checking of financial transactions. Audit, as retrospective scrutiny and verification, is therefore an accountability function, while control is more an administrative function. In the more complex modern state, financial control has largely passed to other agencies, leaving audit as the prime function but it lives on in the combined title, ‘Comptroller and Auditor General’ (modernised to ‘Controller and Auditor-General’ in New Zealand) and in the United States position of Comptroller

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Page 84 General, introduced in 1921. Australia and Canada have adopted the more straightforward title of ‘Auditor General’ (though Canada, for a time, had a separate Comptroller General). Who? The range of agencies who are accountable to governments auditors varies somewhat between countries. Core government departments are everywhere subject to full government audit, as are most statutory authorities. Government-owned business enterprises typically have their accounts audited by the government auditor, though, in the United Kingdom, government-owned companies are legally excluded from the Comptroller and Auditor General's purview under the Companies Act and, until recently, a significant number of other non-departmental government agencies were not audited by the Comptroller and Auditor General. To whom? Whatever the title, the position of government auditor is essentially similar in all jurisdictions. The government auditor is a statutory officer who is legally guaranteed a degree of independence from the executive government, operating more as an agent of the legislature. The legislature is usually involved to some extent in the auditor's appointment and in the choice of subjects for audit investigation. Audit reports are normally presented to the legislature rather than the executive. From this perspective, government auditors can be viewed as a specialised extension of the legislature's own accountability functions, conducting investigations on the legislature's and the public's behalf. Though audit reports are presented in the personal name of the government auditor, in practice audit investigations are conducted by teams of auditors under the official auditor's directions. Government auditors preside over an extensive audit office (for example, the National Audit Office (NAO) in the United Kingdom, the Office of the Auditor General in Canada, the Australian National Audit Office (ANAO), the Audit Office in New Zealand and the General Accounting Office (GAO) in the United States). Some auditing work is now contracted out to private sector auditors, though under the government auditor's overall direction and control. Government auditors also operate in other levels of government besides the central government. For instance, state or provincial governments in federal systems usually employ their own auditors-general or an equivalent. In the United Kingdom, there are separate government auditors for Northern Ireland, Scotland and Wales, while the Audit Commission is responsible for auditing local government and institutions belonging to the National Health Service (White and Hollingsworth, 1999).

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Page 85 For what? Government audits are generally of two types, financial and performance. Financial audit is based on the original, and still core, function of ‘compliance’ or ‘regularity’ audit (Normanton, 1966, Ch. 4) which is aimed at verifying whether government expenditure has been conducted in accordance with legislative authorisations. In earlier times, such audits sometimes involved the detailed checking of individual financial transactions. Up to the 1940s, for instance, staff of the United States General Accounting Office laboriously certified all expenditure vouchers issued by government agencies. Subsequently, however, compliance auditing has tended to focus on accounting practices and financial systems, on ensuring that agencies have correctly reported their financial position in their accounts and that they are operating their own adequate systems of internal audit. The objective remains the same, to check that financial transactions comply with all relevant legislation and government regulations, but the approach is more generalised and indirect. Financial auditing is concerned not only with technical accounting matters of accuracy and regularity but also with ethical issues of probity and propriety in the handling of government funds. It has also extended beyond mere compliance with legal rules and regulations to the consideration of efficiency in the use of resources. Government auditors have regularly criticised apparent waste and extravagance in the expenditure of public funds by governments and government agencies, particularly in the defence bureaucracies and armed services. While such comments were originally subsumed under the general heading of regularity auditing, in more recent years they have been formally recognised as part of a new category of auditing variously known as ‘efficiency’, ‘value for money’, ‘comprehensive’ or ‘performance’ auditing. This movement began with the comprehensive audits introduced by the United States General Accounting Office after the Second World War and has since spread to all other jurisdictions. Government auditors are now generally required to audit the performance of government agencies in terms of the ‘three E's’ – economy (that is parsimony in the use of resources), efficiency (the best ratio of outputs to inputs) and effectiveness (the achievement of government objectives). While regularity audits must be conducted on all agencies each year, performance audits are discretionary, being applied to areas or issues of particular concern, either at the initiative of the auditors themselves or at the request of legislators or even of the government. Performance auditing has greatly expanded the scope of government audit (Gray et al., 1993). Auditors are now free to comment not only on

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Page 86 strictly financial matters but also on whether government policies have achieved their stated goals. This extension of audit has been facilitated by the new emphasis on defining objectives which is a major feature of the new public management (Power, 1997, Ch. 3). In theory, once government has clearly specified the objectives it wishes to achieve through a particular policy, the question of how efficiently and effectively these objectives have been achieved is a comparatively technical issue that can be assessed by professional auditors and evaluators. In practice, however, ends and means are not so easily separated and objectives are often hard to specify unambiguously (Chapter 5). Questions of efficiency and effectiveness can involve contestable value judgments about the proper direction of government policy and therefore have the potential to lead auditors into politically controversial areas that are beyond their competence and legitimacy. In some jurisdictions, for instance the United Kingdom, government auditors are expressly prohibited from commenting on government ‘policy’. Even without legislative instruction, however, auditors in all Westminster systems tend to steer clear of politically sensitive matters in order to avoid an appearance of partisanship. They concentrate on matters of more routine implementation and administration where responsibility for inadequate performance is likely to rest with public servants and officials rather than elected politicians. In addition, auditors have engaged in ‘meta-regulation’, the monitoring of agencies' own accountability providers. For instance, considerable effort has been devoted to developing and supervising processes of internal audit within government agencies. Internal audit involves similar processes of independent monitoring applied within the organisation. It is usually centred on an internal audit committee which is separate from the main management structure and may include members from outside the agency. By cooperating closely with internal auditors, the government auditors are able to extend their influence much further into the inner workings of agencies. Moreover, in several jurisdictions, auditors have also been called on to scrutinise the accuracy and relevance of performance indicators adopted by individual agencies. Performance auditing has thus allowed government auditors to extend their traditional concern for financial probity and due process into a wider range of issues. Though normally required to focus on economy, efficiency and effectiveness of government activities, auditors also readily comment on matters of dubious propriety, such as conflicts of interest or unfair dealing in letting government contracts. As agents of the legislature, they criticise executive practices that reduce the accountability

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Page 87 of government agencies to the legislature and its committees. They act as general champions of public transparency and the public's right to know what is being done with its funds. In a period when the provision of public services has increasingly been contracted out to non-government organisations (Chapter 5), auditors have been outspoken in their demands that levels of public accountability should not fall below those expected of traditional public service providers. They have attacked the tendency of government to conceal the terms of contracts and other information held by contractors on the often spurious grounds of ‘commercial confidentiality’ (Chapter 5). Thus, somewhat ironically, while the new public management has encouraged a greater scope for audit as the checking of performance against objectives, government auditors have emerged as major critics of the reform movement, particularly of the attempt to reduce the transparency of management information and processes to external public audit (Mulgan, 2001). How? Auditors conduct inquiries and publish reports, thus engaging in information and discussion. Though they make recommendations, they do not exercise formal powers of rectification, leaving the imposition of remedies to other agencies, such as the police and the courts in cases of fraud or embezzlement or the government itself on matters of policy. As with several other accountability agencies, the power of adverse publicity is often sufficient to impel governments to adopt their recommendations. Auditors are generally allowed freedom to appoint their own staff and to decide their own priorities, though they are expected to work closely with the legislature and relevant committees. In the Westminster jurisdictions, auditors-general have a particularly close association with the Public Accounts Committee or its equivalent while the United States GAO reports to a range of congressional committees. Audit offices have traditionally been dominated by professional accountants. However, the expansion from financial auditing to performance auditing has called for new skills, particularly those associated with the broader evaluation of government performance. Performance evaluation was at one time seen as quite distinct from auditing and as the preserve of specialist evaluators trained in social sciences and employed under the general guidance of budgeting agencies rather than audit offices. In Canada, for instance, evaluation was the responsibility of the Treasury Board rather than the Auditor General, while in Australia it was sponsored by the Department of Finance. The enthusiasm for specialised programme evaluation, which began in the United States in the 1960s and spread elsewhere, for instance to Canada in the 1970s

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Page 88 and Australia in the late 1980s, has since waned. The hoped-for results in terms of better control and targeting of expenditure were slow to appear. In the meantime, auditors, with their professional emphasis on efficiency and frugality, have emerged as the leading proponents of performance evaluation, incorporating within their teams of investigators the broad range of social science skills useful for evaluation. However, they usually avoid the term ‘evaluation’, preferring ‘performance audits’ or ‘value for money audits’ which not only sound more tough-minded but also reinforce the right of auditors to maintain institutional control of the assessments. How effective? Government auditors clearly help to make the executive, and particularly the government bureaucracy, more accountable. Their annual financial regularity audits are important checks against carelessness or impropriety in the use of public funds. The wider brief allowed for performance audits enables auditors to draw public attention to inefficiency and ineffectiveness in the pursuit of government's objectives. Government auditors have often been responsible for uncovering scandalous examples of inefficiency or impropriety which have provoked major overhauls of administrative systems. In the United States the separation of powers enables the Comptroller General and the General Accounting Office, as servants of an independent Congress, to be much more outspoken in criticism of executive programmes. Even in Westminster systems, however, audit reports of administrative incompetence and inefficiency can severely embarrass governments. For example, the Australian Auditor-General's critical report on the whole-of-government information technology outsourcing policy (2000) discredited ministerial claims that the outsourcing had led to significant savings and prompted a major change in government policy. At a time when governments have been seeking to reduce their direct responsibility for public services, government auditors have stood firm for the values of transparency and due process. It was the GAO in the United States that first alerted Congress and the public to the problems developing in the savings and loans industry in the 1980s. In Australia, the infamous ‘sports rorts’ affair which brought down a minister and severely weakened the Keating Labor government, was sparked by an Auditor-General's adverse report on decision processes (Uhr, 1998, pp. 152–8). Such notorious incidents, while underlining the power of auditors, represent only a small fraction of the auditors' contribution to accountability. More important are the countless routine reports and inquiries that investigate government activities and financial transactions and

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Page 89 help to keep public servants honest. The external auditors' ultimate power to withhold approval of agencies' accounts and to comment adversely on their actions gives the agencies and their managers a powerful incentive to adopt the auditors' advice. Though auditors do not have the power to enforce their recommendations, most agencies will usually respond quickly to the exposure of obvious faults. Individual officials know that the discovery of fraud or embezzlement will lead to criminal prosecution. Government auditors and audit offices thus have a far-reaching capacity to hold government agencies and public servants to account. The effectiveness of audit accountability depends on the type of issue. The most thoroughly scrutinised area remains that covered by the traditional regularity audit of financial transactions. Though fraud and the otherwise improper use of public funds are not unknown, they are not major problems in the states under discussion, thanks largely to the universal reach of government audit. Inefficiency, extravagance and waste, on the other hand, are less easily detected. Performance audits remain optional and discretionary, to be embarked on by auditors with restricted resources and under harsh priorities. Though all auditors can point to significant successes in identifying government inefficiency, for instance in notoriously profligate areas such as defence and government accommodation, there is a sense that only the surface is being scratched. Still more problematic are evaluations of policy effectiveness where assessments must include judgments about social and political values and which may therefore be beyond the auditors' professional competence. On the whole, as already noted, auditors have tended to avoid such controversial topics, preferring to concentrate on matters where criteria of success or failure are comparatively unambiguous. In this respect, the results of performance audit may have disappointed the high hopes of its more committed advocates. Moreover, though the staffing resources of audit offices have been increased to deal with the demands of performance auditing, they are still not sufficient to deal more than a small proportion of possible subjects for investigations. Governments can therefore constrain the scope of audit by controlling the allocation of funds to audit offices. The natural caution of government auditors is not necessarily to be regretted if it maintains their undoubted legitimacy as scrutineers of government finances and discoverers of blatant waste or unquestioned failure. The more politically contestable issues are properly left to political processes. Indeed, a sensible division of labour has emerged,

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Page 90 with politicians and legislative committees searching out the more politically contentious issues and auditors concentrating on the more routine areas of bureaucratic behaviour. Each institution has been criticised for a narrowness of focus, legislative committees for not interesting themselves in administrative efficiency and auditors for not wishing to question government policy. However, each can be seen as making valuable, complementary contributions to an overall structure of government accountability. Investigation and monitoring Besides government auditors, there are many other types of investigative and monitoring bodies that almost defy classification in their multiplicity. One important group consists of ‘ombudsmen’ or ‘commissioners’, officials whose function is to investigate complaints by, or on behalf of, individual citizens. Another group includes inspectors and other monitoring or regulatory bodies which supervise the activities of government agencies and call them to account for their performance. Also to be included are ad hoc public inquiries or commissions of inquiry established to investigate particular issues or incidents. Who? Most such investigation is aimed at government departments and other non-departmental agencies and their public servant members rather than at the elected leadership. Politicians may be subject to investigation by electoral commissions which regulate the conduct of elections and the finances of political parties, or by anti-corruption commissions and anti-discrimination commissions, but are otherwise usually exempt from supervision by external investigatory and monitoring bodies. The entire spectrum of public agencies and officials, both departmental and non-departmental, is covered in different ways, depending on the powers given to the investigatory and monitoring bodies in question. In some areas, for instance the environment, building construction, transport and health, both public and private organisations can be subject to the same regulatory regime even where the private organisation is not engaged in providing a publicly funded service. In this way, monitoring and regulation bodies may straddle the public/private divide much more easily than traditional judicial review premised on a sharp distinction between public and private law. To whom? Investigative and monitoring bodies vary greatly, depending on such factors as their scope, powers, method of appointment and so on. The position of ombudsman, pioneered in Scandinavia and first

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Page 91 introduced into the common-law world in New Zealand, has proliferated worldwide in recent decades (Lewis and Birkinshaw, 1993, Ch. 7). Ombudsmen are now found in all levels of government as well as in the private sector. Canada and the United States have not adopted ombudsmen for the federal government, but ombudsmen have been established in all but one of the Canadian provinces and some states of the United States (Kernaghan and Siegel, 1999, pp. 350–2; Hill, 2000, pp. 4–6). The main characteristics of the so-called ‘classical’ ombudsman are independence from the executive guaranteed through appointment by the legislature, impartiality in investigations (that is, not taking the side of either the citizen or the government) and the lack of power to change administrative decisions. Exceptions to all these characteristics are found among so-called ‘ombudsmen’ and there seems little point in insisting on too rigid a definition. Alternative titles have sometimes preferred, most notably the United Kingdom's ‘Parliamentary Commissioner for Administration’ (now known as Parliamentary Ombudsman). Other Westminster countries have adopted the term ‘ombudsman’ for the all-purpose investigators of government on the Scandinavian model but have tended to use ‘commissioner’ for specialist investigators in areas such as human rights, children, privacy, prisons, local government and so on. Another long-established category of investigative officer is the government inspector which was first established to monitor publicly funded institutions such as schools and prisons. In the late 1970s, the United States established a system of Inspectors General, appointed by the president to each major department, with the main task of promoting efficiency and effectiveness in their departments, particularly through investigating and reporting on fraud and waste (Light, 1993). Governmentappointed inspectors are also found in other jurisdictions in a range of areas such as defence, security and taxation (Peters, 1995, pp. 312–13). Beyond ombudsmen and inspectors, a diverse range of bodies monitor and regulate particular government activities (Braithwaite, 1999; Moran, 2001, p. 25). Indeed, in many jurisdictions, the extent of government regulation has greatly increased in recent decades, producing an ‘audit explosion’ (Power, 1994; Hood et al., 1999). Partly responsible has been the new public management, which has encouraged the privatisation of public enterprises and competitive tendering of public service provision, and which has led to a proliferation of monitoring and regulatory bodies designed to safeguard standards in the absence of direct political control (Chapter 5). While most regulatory bodies are public bodies,

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Page 92 some are privately established but have been granted legal powers, for instance some consumers' associations and animal protection societies. Other private monitoring bodies have no legal mandate but operate more informally as observers and critics of government activities. These include a number of privately based international watchdogs, such as Greenpeace and Amnesty International and the financial ratings agencies Standard & Poor's and Moody's (Scott, 2002). Within the executive branch of government, monitoring and regulatory functions are also exercised by central agencies, for instance treasuries or public service commissions, which have responsibility for supervising certain aspects of other departments and agencies. In addition, various types of ad hoc formal inquiry are from time to time established by governments to investigate and report on particular aspects of government policy or particular decisions or incidents. Inquiries take a number of legal forms, some being set up under statutory authority while others are created by simple administrative order. In some areas, such as planning and land use, inquiries are routinely used as a method of investigating complex decisions and follow agreed, regularised procedures similar to those of tribunals. Other types of inquiry are more ad hoc, established to inquire into a particular problem in response to unusual political pressure. Like judicial review, some types of investigation are initiated by an aggrieved member of the public. For instance, ombudsmen and other complaints commissions normally investigate cases brought to them by individual citizens or organisations who are dissatisfied with their treatment at the hands of government agencies. In this way, government agencies and officials are accountable both to the investigating body and to the citizen client. (The United Kingdom Parliamentary Ombudsman is unusual in not taking cases directly from the public but instead requiring referral via a Member of Parliament.) In the case of monitoring and regulatory bodies, as well as ad hoc inquiries, the right to initiate usually lies with the bodies themselves or with the government acting on the public's behalf. In so far as the results of inquiries are made available to the public, accountability can be seen as also directed to the public. For what? Ombudsmen and other similar investigators usually hold governments accountable for the administrative decisions of bureaucrats rather than for the policies determined by elected politicians. This restriction is most emphatically expressed in the United Kingdom where the Parliamentary ombudsman's jurisdiction is confined to matters of ‘maladministration’. Elsewhere, the formal jurisdiction is

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Page 93 more broadly defined. The New Zealand Ombudsman, for instance, can investigate complaints that an administrative action was ‘unreasonable, unjust, oppressive or improperly discriminatory … or wrong’ (a formulation adopted by the Australian Commonwealth and some other ombudsmen). All ombudsmen, however, tend to avoid criticising ‘policy’ in the sense of policies to which the elected government is committed, reserving their comments for actions taken by officials in the implementation of such policies, assessing whether procedures have been fairly and efficiently applied. Also, either by legislative requirement or by convention, they generally steer clear of intervening in cases where the complainants have rights to redress under administrative law or some other legal procedure. They thus tend to complement, rather than compete with, the standard channels of political and judicial accountability. Their main focus is on decisions in individual cases, that is on particular accountability. Criticism arising from a particular incident may extend beyond the particular to cover general rules or procedures followed within an agency. Indeed, some (though not all) ombudsmen also have the right to report on general administrative practices on their own initiative. Given that the boundary between ‘policy’ and ‘administration’ is inherently unclear and depends on how far politicians wish to direct and endorse the actions of public servants, individual ombudsman use their judgment about which cases and issues to pursue and which to avoid. To retain the respect of politicians and bureaucrats, on which their effectiveness depends, they must be careful not to trespass into politically contentious areas. Rules or procedures which they criticise are usually ‘administrative policies’, that is rules and procedures formulated wholly by officials as means of implementing the policy objectives set by the elected government. ‘Classical’ ombudsmen have jurisdiction over all government departments and over most nongovernmental public agencies, though some of the latter are sometimes excluded. For instance, nationalised industries have been excluded from the jurisdiction of the United Kingdom Parliamentary ombudsman as have ‘contractual and other transactions’. International practice differs over whether ombudsmen can hear complaints against private organisations providing public services, an issue which has become important with the increased use of outsourcing. In some countries (for instance the United Kingdom), ombudsmen are able to investigate actions carried out by agents acting on the government's behalf, while in others (for instance the Australian Commonwealth), the ombudsman has jurisdiction over private service providers only when the contract specifically permits.

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Page 94 Specialist ombudsman-style investigators are also established for particular areas of government. Some cover particular institutions, such as prisons or universities. In the United Kingdom, the Health Service Commissioner investigates complaints against the national health service, while Local Commissioners are concerned with local government. Other specialist investigators cover particular aspects of administration, hearing complaints against individual officials or agencies across the whole public sector in relation to certain specified issues, for instance privacy, access to information, gender or other forms of discrimination. Many jurisdictions have established human rights or equal opportunity commissions to hear complaints about discrimination on the basis of gender, religion, ethnicity, sexual orientation and disability. Some of the Australian states have permanent anti-corruption commissions which investigate cases of possible corruption by politicians or public officials (Fleming, 2001). Inspectors and monitoring bodies, by contrast, are concerned more with holding government agencies accountable for general performance (general accountability) than for treatment of individual cases (particular accountability). They conduct investigations on their own initiative, or sometimes at the request of the government, rather than at the instigation of aggrieved members of the public. They operate in all areas and aspects of government activity but have recently become notably more prominent in the state-funded social services (Day and Klein, 1987; Moran, 2001), such as health, education and social work. Suspicion of ‘provider capture’ by unaccountable professionals has led to a distrust of professional self-regulation and to greater reliance on external monitoring and performance assessment (Chapter 5). The scope of inquiries, as that of ad hoc inquiries, is set by the terms of reference and powers with which they operate and by the resources made available to them, both of which factors vary widely and defy generalisation. The United States Inspectors General, for instance, have a very broad remit to promote the economy, efficiency and effectiveness of their departments by means of audits and investigations. Sector-specific regulators for institutions such as prisons and schools usually apply particular standards stipulated in legislation or regulations. The scope of accountability to central agencies is specified according to these agencies' particular functions, thus for financial management to departments of finance, for employment practices to public service commissions and so on. Governments generally set their own standards of how much surveillance is warranted, with high-risk activities, such as complicated medical

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Page 95 procedures, air travel or movements of dangerous goods, being subject to particularly stringent accountability requirements. If mistakes occur and lives are lost, governments will be held accountable for any slackness in oversight. Politically sensitive areas such as public schooling and prisons also attract high degrees of regulation in response to public anxieties. Other more low-risk and low-profile activities are generally monitored in a more relaxed and hands-off manner. The subject matter of ad hoc inquiries is also wide-ranging, the decision to establish an inquiry usually being a political judgment by the government that a particular issue needs independent and authoritative investigation. In many cases, an inquiry is a response to public demand for accountability, where the possible failure of government agencies or regulations may have caused loss of life or serious injury. For example, the Challenger space shuttle disaster in the United States (1986) and the Canadian tainted blood scandal (1996) were both extensively examined by commissions of inquiry. An inquiry may be forced on the government as a means of dispelling continuous and politically damaging criticism from their political opponents, for instance the Scott Inquiry (1996) in the United Kingdom which was set up to look into the allegedly illegal export of arms to Iraq (Bogdanor, 1996). How? The main method by which investigating and monitoring bodies hold government agencies and officials to account is through the search for evidence and the publication of reports and recommendations, that is through the prior stages of information and discussion. They usually have no formal powers of rectification, relying instead on the moral and political authority of their recommendations to persuade or shame governments into taking remedial action. Ombudsmen usually have extensive legal powers to obtain evidence through interviews and access to written documents. Their inquiries are conducted in private, leaving scope for more informality in their procedures and for reaching immediate resolution of straightforward grievances. Their findings are usually dealt with confidentially, though an ombudsman may have the power to report further, to a prime minister or Parliament, in the case of unreasonable resistance from the agency. Annual reports to the legislature provide a further opportunity to publicise difficult cases or intractable issues. The case load handled by ombudsmen varies greatly, from the few hundred undertaken by the United Kingdom Parliamentary ombudsman to the tens of thousands dealt with (many very cursorily) by the Australian Commonwealth Ombudsman. Ombudsmen are expected to adopt an independent, neutral stance, acting neither as advocates of public complainants nor as defenders of

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Page 96 the government's actions. If they get too close to government, they lose the confidence of the public in their capacity to call the government to account. On the other hand, if they always take the complainant's side and are never sympathetic to the pressures placed on bureaucrats, government agencies are unlikely to cooperate with their inquiries or to accept their recommended remedies. Other monitoring and regulatory bodies have their own statutory powers of investigation and of seeking information. Typically, they have the right to demand regular reports on relevant agency activities, including detailed performance information in terms of stipulated performance indicators. Monitoring bodies may also have the right to conduct active inquiries, sending their own inspectors or investigators into the agencies concerned. They may also have the power to recommend sanctions, as with the United Kingdom Office for Standards in Education (OFSTED). The United States Inspectors General conduct inquiries and issue reports but have no power to enforce remedies (though they do report to Congress as well as to the president). Central agencies have powers of direction over other departments and agencies while some commissions, for instance some anti-discrimination commissions, operate like courts and have the power to issue binding decisions. Ad hoc public inquiries, including ‘Royal’ commissions in Westminster countries, can have the same rights as courts to demand evidence and summon witnesses and may conduct some of their hearings in public. Most such bodies of inquiry, whatever the variations in their scope and procedures, are restricted to seeking information and explanations from government agencies and to making recommendations. How effective? Generalisation is again difficult over such a wide range of institutional and procedures. In principle, external investigation and monitoring must aid the cause of accountability if they succeed in making government actions subject to independent scrutiny and publicity. Most of the accountability agencies in this category do have a positive impact. Ombudsmen and other similar investigative bodies have generally proved a most useful addition to the channels of redress available to individual complainant against government. They are more accessible and cheaper than courts and have better access than individual legislators to government agencies. The majority of complaints which they consider worth taking up are resolved to the complainant's satisfaction. Yet ombudsmen have not always fulfilled their promise. In some cases, they have failed to achieve sufficient independence from the executive to act effectively as the public's watchdogs. In the United States, in particular, many specialist ombudsmen (sometimes called ‘executive’

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Page 97 ombudsmen as distinct from ‘classical’ ombudsmen (Hill, 2000, p. 5)) have been established by government agencies themselves, often for public relations reasons. Their first loyalty tends to be to the agency that employs them rather than to the public and they may be better categorised as instances of internal complaints procedures rather than external investigators. Even when independence is assured, as it is for most ‘classical’ ombudsmen, the limits to their jurisdiction are often subject to criticism. For instance, in the United Kingdom, restriction of the Parliamentary ombudsman's jurisdiction to matters of ‘maladministration’ (as well as the requirement that access must be through the local Member of Parliament) has long been seen as stunting the office's potential. Even ombudsmen with somewhat wider powers to comment on the merits of individual cases are normally constrained from criticising general policy even when it leads to obviously unacceptable decisions. More widely, the clout of all ombudsmen is obviously weakened by their inability to compel agencies to accept recorded remedies. Agencies subject to investigation may generally consider it prudent to accede to an ombudsman's recommendations. But on other occasions they may simply refuse to budge, being prepared to weather any adverse publicity for the sake of upholding a cherished decision or rule. To some extent these criticisms miss the mark. Some individual ombudsmen are no doubt unduly constrained by their governing legislation or by the lack of respect in which their office is held. But criticism on the grounds of incapacity to question major policy or to enforce remedies amounts to criticism of the basic principle of the office itself and may undermine the very foundations on which it is built. The successful ombudsmen, for instance the system-wide, ‘classical’ ombudsmen in New Zealand and Australia, depend on values of informality and trust which allow them to have ready access to officials and to be seen as reasonable and relatively unthreatening investigators of individual complaints. By keeping clear of major policy, they avoid embroiling officials in damaging political controversy. Lacking power to enforce, they can invoke a more open and cooperative response. Not for the first time, an accountability mechanism is criticised for failing to cover issues which it is ill-equipped to handle, instead of being appreciated for the positive contribution it can make within its chosen sphere. More damaging are deficiencies that arise within that defined sphere. A common complaint is that governments keep their ombudsmen starved of resources, thus limiting the number of complaints they can successfully deal with. Like most other public investigating and

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Page 98 monitoring bodies, they depend on the executive for financial support, particularly in parliamentary regimes where the executive effectively determines the budget. The government therefore has power to constrain the extent to which its administrative decisions are open to challenge. A related criticism is that lack of resources and fear of attracting an intolerable burden of cases discourage ombudsmen from forcefully promoting their services to the public at large. Many citizens in need of assistance may be unaware that the ombudsman could help. Similar criticisms are also made of specialist investigating bodies, such as human rights (anti-discrimination) commissions and commissions for children. Their remit is so broad and their resources so limited that they are forced to ration their investigations, with consequent limits on their effectiveness as agents of public accountability. The effectiveness of general monitoring and inspection bodies depends on factors such as the extent of their legal powers and their terms of reference, in addition to the level of their resources. In most cases, like ombudsmen, inspectors may have the power to report and recommend without being able to enforce their recommendations. Lack of enforcement powers has adversely affected the role of Inspectors General in the United States. While the more sensational discoveries of waste and fraud have provoked immediate remedies, many wide-ranging recommendations for system-wide improvement have languished unimplemented (Light, 1993; Behn, 2001, pp. 54–5). On the other hand, some inspectors and regulators, like auditors and ombudsmen, have achieved a considerable impact through the force of publicity. For instance, publishing ‘league tables’ of comparative performance for schools or hospitals can induce a marked rectificatory response. The effectiveness of regulators generally depends on a range of factors, including the degree of independence from the regulatees, whether they exercise a regulatory monopoly and the extent to which regulators are themselves accountable for their performance (Chapters 4, 5 and 6). Direct public access For the most part, the accountability of government agencies and officials is administered indirectly by specialised institutional agents of accountability, such as legislatures, courts, auditors, ombudsmen and so on, all acting on behalf of the public. However, citizens also have rights of direct access themselves, especially in relation to decisions made in their own individual cases. They can complain about unsatisfactory treatment from an agency, using the agency's formal complaints procedures

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Page 99 without having recourse to an external investigator, such as an ombudsman. Indeed, ombudsmen and other external bodies will usually require that internal channels of redress have been exhausted before agreeing to take on a case. Under freedom of information (FOI) provisions, citizens also have the right to demand access to personal information that governments hold on them, as well as to information on matters of general policy. The United States has the oldest and most extensive FOI legislation, dating back to the mid-1960s, which was adapted to Westminster constitutions by Canada, Australia and New Zealand in the early 1980s. The United Kingdom has been more hesitant, enacting a series of piecemeal reforms culminating in a Freedom of Information Act (2000) (Birkinshaw, 2001). Who? The sections of government accountable under complaints procedures are those that deal directly with members of the public. They include taxation departments, social security and other welfare agencies, health and educational institutions, police and prisons, customs and immigration, passport and consular services and so on. Complaints may be laid either against the agency or government as whole or against the behaviour of an individual official or officials. These agencies usually have reasons to collect personal information about members of the public and may therefore be required to release such information under FOI rules. In addition, all branches of government employ public servants and are accountable to their employees for the accuracy of information they hold about them. Most government agencies are also accountable for releasing documents on general policy. To whom? Such mechanisms provide accountability directly to members of the public. Complaints, procedures and requests for personal information are restricted to those who are individually involved and can claim a direct personal interest. General information, on the other hand, is available to all members of the public as citizens. In practice, this channel is used more by organisations with policy agendas, such as interest groups, political parties or the media, than by individual citizens. For what? Complaints procedures are primarily concerned with individual cases (particular accountability) which can cover either the substance or ‘merits’ of a decision but sometimes also the process by which a decision has been made, for instance if there has been undue delay or if individual officials have been rude or obstructive. Grounds for possible complaint have recently become much more formalised through the development of service charters, beginning with the United Kingdom's Citizen's Charter (Falconer and Ross, 1999) and since followed in most

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Page 100 other countries as part of a movement to improve service to the public (Chapter 5). Service charters specify the standards of service that citizens can expect from a particular agency, for instance, the time taken to process applications, the information that applicants have a right to receive, and requirements of privacy and confidentiality. Charters also specify how a complaint may be lodged if the service standards are not met. They may also indicate the further, external avenues of redress, such as an ombudsman or tribunal, which may be approached if the internal complaints procedure does not provide satisfaction. The matters available under freedom of information vary slightly between countries but follow similar general criteria. Freedom of information legislation is based on a presumption that, in a democracy, government information belongs to the people and should therefore be available to the people unless non-disclosure can be shown to be in the public interest. A normal range of exemptions is applied, for example if disclosure will harm national security or relations with other governments, will breach matters of commercial confidence or law enforcement, or will expose confidential advice to government. Within such limits, individuals are guaranteed access to their personal files along with the right to correct any factual misinformation that they discover. Citizens can thus hold agencies accountable for the accuracy of information they collect about them. At the same time, privacy legislation aims to prevent agencies from misusing such information or improperly disclosing it to unauthorised third parties. Freedom of information also allows people to seek information about general government activities (general accountability). Requests for such information must be reasonably specific, thus preventing inquirers from embarking on generalised ‘fishing expeditions’ which would be very time-consuming for officials to answer. In practice, those making requests usually know what they are looking for in the sense that they know what data or documents they want even if they are ignorant of the precise contents. By forcing governments to reveal some of the evidence and argumentation on which their decisions are based, freedom of information increases government accountability across a wide range of policy areas, subject always to the significant exemptions imposed by the allowable exemptions. How? Complaints procedures cover all stages or processes of accountability, not only the search for detailed information and discussion about the case in question but also rectification through the imposition of remedies. Freedom of information, on the other hand, though more extensive in the areas covered is more restricted in accountability

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Page 101 processes, being confined to the prior stage of information and justifying, without offering opportunities for critical discussion or rectification (except in the case of correcting personal misinformation). Complaints procedures usually involve recourse to someone other than the frontline official who has made the initial decision. That person may be simply an official's immediate superior in the administrative hierarchy or he or she may be a designated complaints officer, such as an executive ombudsman. Such procedures are expected to be well advertised so that citizens are fully aware of their rights to complain or seek information. Indeed, one of the aims of the service charter movement has been to publicise opportunities for complaints. While complaints and grievance procedures are free of charge, fees are regularly charged for meeting freedom of information requests, partly in order to recoup some of the costs of compliance and partly to discourage frivolous requests. Fees may vary for different types of applicant. In the United States, for instance, requests for information for commercial purposes are charged the actual cost of staff time and photocopying while fees are waived for educational and other noncommercial organisations as well as for the news media. Though such procedures allow members of the public to deal directly with governments without the assistance of other accountability agencies, the support of other agencies is needed in case the government fails to deal properly with complainants or applicants. Thus effective complaints procedures need to allow appeal to other external channels, such as ombudsmen, tribunals or courts. All freedom of information regimes allow for appeal to an independent arbiter who can decide whether government refusals to disclose information are fair and reasonable within the legislation. In the United States, this function is fulfilled solely by the courts, whereas in Westminster regimes the first line of appeal is either to the Ombudsman (Australia and New Zealand) or the Information Commissioner (Canada and the United Kingdom), followed in some cases by the right of appeal to a tribunal and, in all jurisdictions, by the right of judicial review. How effective? Well-run and accessible complaints and grievance procedures are clearly the lynchpin of an effective system of particular accountability. Disgruntled members of the public need to be able to get quick and satisfactory answers and remedies from the agencies themselves without having to invoke the much more cumbersome assistance of external review bodies and investigators. The effectiveness of these front-line procedures obviously varies (Lewis and Birkinshaw, 1993, Ch. 8). Common criticisms are the lack of publicity given to

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Page 102 existing procedures, the length of time taken to hear complaints, the personal bias or rudeness of those hearing complaints, the inadequacy of explanations given for decisions. In spite of continuing deficiencies and variations in levels of performance, a general improvement is discernible over the last twenty years. The new emphasis on client or customer service encouraged through such reforms as the service charter movement and the articulation of service standards has been one of the more definite benefits of the new public management (Oliver and Drewry, 1996, Ch. 7). Accountability to the client, through improved feedback and complaint mechanisms, is integral to this attempt to instill a new culture of customer-focused service in public service providers. At the same time, external investigators such as ombudsmen act as watchdogs over the effectiveness of internal complaints procedures. As ombudsmen take up individual cases only after complaints have exhausted all internal avenues, they are in a good position to judge whether internal procedures are working well. Indeed, in their published reports they regularly comment on the quality of particular agencies' complaints procedures, thus helping to keep agencies up to the mark (Woodhouse, 1997, p. 73). In this way, one of major benefits from the introduction of ombudsmen has been improvements in how agencies deal with complaints. Freedom of information legislation has also forced governments to disclose much information they have gathered on citizens and organisations as well as the data and advice on which decisions are based. It has been particularly successful in the United States where the courts and the legislature have been able to impose a genuine culture of openness on much of the bureaucracy. At the same time, freedom of information always promises more than it delivers. The wide exemptions on the grounds of public interest or national security, while necessary for secure and efficient decision-making, also allow governments to conceal much information merely for reasons of political convenience or partisan advantage. Other procedural barriers are also placed in the way of citizens seeking information. The costs of making requests can act as a disincentive as can the need to specify what is being sought. Agencies are able to defeat the purpose of disclosure by postponing answers to requests and by stringing out a series of appeals, thus delaying the release of information until it is too late, for example until after an election has been held. Governments complain about the costs and inconvenience of meeting requests for official information but the amounts are tiny compared with the resources governments pour into manipulating public

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Page 103 information for political and bureaucratic self-interest. Overall, freedom of information legislation, while valuable, has not fundamentally altered the information imbalance between governments and citizens. Individual accountability Collective government accountability is generated outside the agency concerned, through the citizens themselves or through specialised accountability agencies, such as legislatures, courts or ombudsmen calling the executive to account. But accountability also operates at an individual level within the executive. All individual members of the executive are accountable for acting within the law and with professional propriety. Individual officials are also accountable to their superiors or to specialist auditors or inspectors within their agencies. Agency heads are accountable to the political leaders of the executive. These individual accountability relationships dovetail with collective avenues of accountability, in that individuals are often held accountable for contributing to the accountability of their organisations and, by the same token, collective accountability could not operate without the individual accountability of organisation members (Chapter 1). Who? Individual government accountability applies to all members of the executive. Most members are in a subordinate relationship to a superior to whom they are directly accountable. Thus within any given agency, all officials are accountable to their immediate superiors. Heads of agencies are also normally accountable, though in differing ways depending on the constitutional status of their agency, for instance whether it is a core department, under direct political control or an arms-length statutory body. Heads of the executive, such as presidents and prime ministers, are also personally accountable. Because they usually answer on behalf of the government with which they are identified, their individual accountability tends to overlap with the collective accountability of their governments. In addition, however, they are individually accountable for their own personal conduct. To whom? Conversely, individual accountability is owed to members of the executive who have subordinates working under their direction, beginning with the president or prime minister and working down through the administrative hierarchy to the lowliest section head. All these people have at least one subordinate who is accountable to them. While the president is not accountable to any one in the executive but only to Congress, prime ministers are accountable, at least in theory, to the cabinet as a whole. Ministers are also individually accountable to

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Page 104 the legislature, as are senior departmental officials. Elected politicians are also accountable to their political parties who support their candidacies and have a right to question their activities. Departmental heads are accountable primarily to their ministers but also to central agencies as well as to the collective institutions of the cabinet as a whole represented by the prime minister or other agency heads (Polidano, 1998). Heads of statutory authorities, by contrast, are not directly accountable to presidents or ministers. Some are accountable to independent boards of directors or trustees as well as to the legislature. Agency heads in the United States are typically accountable to both president and Congress. All public servants and politicians are accountable to the courts and certain other regulatory bodies, such as anti-discrimination commissions, while officials who provide services to members of the public are accountable directly to the people they deal with. In addition to accountability according to formal lines of authority, public servants are accountable to their colleagues, a form of ‘horizontal’ or ‘professional’ accountability between peers. If they are involved in cross-agency task-forces or networks they may be accountable to colleagues in other agencies or outside the public sector altogether. Accountability can also be exercised downwards to subordinates if subordinates have the right to demand answers from their managers or to report formally on their managers' performance, as in systems of ‘360 degrees’ accountability (Chapter 1). Accountability in such other directions, however, is always circumscribed by the contrary demands of ‘upwards’ accountability which are grounded in the obligation to follow the agency's political direction or legal mandate as relayed through the hierarchical chain of command. At the same time, the professional code of public servants usually recognises a residual accountability to the general public which may, in extreme circumstances, justify direct accountability to the public in opposition to the normal channels. The right of public servants to disclose information they consider to be illegal or improper through whistle-blowing is now recognised in several jurisdictions, notably in the United States through the federal Civil Service Reform Act (Bovens, 1998, pp. 201–6). For what? Individual politicians and public servants are accountable for complying with the law and acting with professional propriety, as set out in ethical guidelines or codes of conduct, as well as for following instructions from their political and bureaucratic superiors and generally meeting their role responsibilities (Chapter 1). The organisational accountability of subordinates to superiors is generally open-ended, covering all aspects of their work, including meeting targets, keeping

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Page 105 within the law, following set procedures and upholding corporate values. It is a form of accountability typical of relational contracts (Chapter 1) where the tasks required are too manifold and unpredictable to be specified in advance and where the parties agree to abide by certain general procedures, in this case, for example, the general obligation of the subordinate to accept directions from the superior. Within government bureaucracies, great importance has always been placed on following established rules, and individual officials have been particularly accountable for complying with correct procedures. More recently, under the influence of the new public management, more emphasis has been placed on achieving desired results and accountability for performance in terms of specified objectives and targets (Chapter 5). Most government employees are now held accountable in terms of individual performance goals or objectives agreed between themselves and their supervisors. Moreover, in some jurisdictions, notably New Zealand, agency heads themselves have been personally accountable for delivering specified collective outputs from their departments. How? The organisational accountability of subordinate to superior covers all stages of accountability, information, discussion and rectification. The standard employment relationship obliges the employee to work under the direction of a manager or supervisor who has the right to demand reports and issue instructions to the employee and who regularly assesses their performance through a formal appraisal process. For politicians, personal appraisal is generally less formalised, being more a matter of ongoing scrutiny by the media and by political colleagues and voters with the power to unseat them. For most public servants, accountability upwards through the administrative hierarchy remains the single most important accountability relationship. Though they may be held to account through other avenues of accountability, for instance to a legislative committee, to an ombudsman or directly to a member of the public, they normally do so under the direction of their organisational superiors to whom they remain accountable for their exercise of these other accountability tasks. Exceptionally, however, they may whistle-blow, for instance by leaking confidential information to the media. Agency heads themselves are under more complex accountability pressures. Departmental heads in Westminster systems are comparatively constrained, being largely focused on reporting and deferring to their particular minister. But they must also be prepared to answer to the prime minister and senior cabinet officials as well to heads of other central agencies. In the United States, the separation of powers places department secretaries in a more independent position which requires

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Page 106 them to ‘juggle’ competing accountability demands from the White House, Congress and other stakeholders (Radin, 2002). Heads or directors of statutory authorities are called on to report regularly and to justify their decisions in public. But beyond the constraints of their enabling legislation and any other formal remits, they are not subject to overt political direction and so are not individually accountable to the same extent as other members of the executive. Like the judiciary, who form another arms-length branch of government, they are deliberately protected from direct political control and accountability (though, unlike the judiciary, they are subject to legislative oversight and scrutiny as part of the executive branch). How effective? Elected politicians are exposed to constant media publicity and scrutiny over their individual performance and so, in many respects, are highly accountable to the public and their party sponsors. That some individual politicians are caught from time to time in various forms of improper or scandalous activity can be taken as evidence that accountability is effective, at least in relation to the initial stages of bringing matters to public attentions. Problems, however, arise with rectification in that guilty politicians are not always penalised for their indiscretions (Fleming and Holland, 2001). In considering sanctions, political leaders tend to assess the relative political damage of letting the miscreants go compared with keeping them on. Their first instinct is often to tough things out and to hope that the scandal dies down and is forgotten, thus protecting their colleagues from full accountability. The upwards chains of accountability between elected leaders and their subordinates are also generally effective. Department heads report fully to, and take direction from, their political masters. Within bureaucratic agencies, in turn, most officials work under close supervision of their immediate superiors, reporting regularly to them and taking detailed instructions from them. Public servants know that any action they take can become the subject of questioning from above. One mistake which causes political damage to their masters can spell the end of ambitious career prospects. Career incentives for public servants reward caution and compliance to superiors and penalise risk-taking initiatives. Indeed, some critics have complained that upwards departmental accountability is too effective because it undermines attempts to involve public servants in cross-departmental, whole-of-government initiatives. The United Kingdom government has recently placed considerable emphasis on ‘joined-up’ government in which teams of public servants have been formed from different departments to work on major social problems such as improving health and preventing crime. One of the continuing stumbling blocks faced by the strategy is that public servants

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Page 107 give prior loyalty to their own departments and remain primarily accountable to their departmental superiors and ministers (Flinders, 2002b). Public and parliamentary scrutiny still tends to concentrate on individual departments and their ministers, giving individual public servants strong incentives to retain their departmental focus, however constricting such ‘silos’ may be for the development of broader public policy. On the other hand, accountability within the upwards chain is far from complete. Though open defiance is rare and risky, more subtle forms of resistance, such as delay and prevarication, are more common. At all levels, individual bureaucrats or sections of the bureaucracy have sometimes been reluctant to follow instructions out of institutional self-interest, principled disagreement or the sheer inertia of large organisations. They can be slow to offer information or advice which might disturb their own priorities and place impediments in the way of unpalatable directions from above. For instance, in Westminster systems, career public servants heading government departments have regularly been accused of entrenched resistance to ministerial direction, the Yes Minister syndrome much exaggerated by critics but not without some basis in fact (Dowding, 1995, Ch. 4). In the United States, presidents have notorious difficulties in imposing political direction on the federal bureaucracy because of its size and fragmentation, because of the length of time taken to fill presidential appointments and because of the recurring distrust between political appointees and career public servants (Light, 1995). Recent reforms to government bureaucracies, however, such as the introduction of formal performance appraisal and the reduction in the security of tenure of senior public servants, particularly in Westminster systems, have helped to strengthen upwards accountability. Individual accountability tends to be weaker for those not subject to political direction, such as members of appointed boards and other quangos or elected members of local bodies with minimal electoral accountability. Day and Klein, in their study of accountability in various types of British local authority (Day and Klein, 1987), found that most authority members were not directly accountable to anyone for many of their decisions. In compensation, individual members fell back on a vague sense of accountability to the public or the community. Such sentiments of conscientious public-spiritedness, laudable though they may be, do not qualify as accountability strictly understood unless backed by external scrutiny and the possibility of sanctions. The more that governments rely on semi-independent or arms-length agencies instead of core departments to provide public services, the more attenuated the individual accountability of service providers is likely to become (Chapter 5).

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Page 108 Another source of potential weakness in individual accountability is when conflicting and overlapping accountability demands may result in the overall frustration of accountability. Thus the different accountability pressures on United States agency heads from the White House and Congress and elsewhere provide them with opportunities for playing one side off against the other and remaining comparatively unaccountable (Chapter 6). Similarly, rank-and-file officials who are accountable both upwards to political masters and directly to individual members of the public are not in a position to be fully accountable to either. The increasing use of interdepartmental teams and informal networks which bypass or cut across individual agency hierarchies can also weaken the ties of individual accountability, as can the involvement of individual officials in several levels of government at once. For the most part, multiple accountability pressures in the public sector tend to reinforce and complement each other but the lack of a single, overriding line of accountability can sometimes allow individuals to escape proper scrutiny (Chapter 6). Finally, the individual exercise of accountability in cases of alleged illegality or impropriety is often hampered by the lack of institutional support for whistle-blowers. Indeed, the extent to which public servants are justified in departing from the obligations of internal accountability and obedience is fiercely contested, with elected leaders and senior government officials displaying little tolerance towards dissidents and conducting frequent campaigns to stamp out leaks and punish whistle-blowers. Such widespread disapproval within the senior ranks of government agencies tends to undermine the effectiveness of legal safeguards for whistle-blowers by informally damaging the career prospects of those who break ranks. On the other hand, those who benefit directly from the dissidence of public servants, such as the government's political opponents and the media, are always keen to defend such acts in terms of the public's right to be informed. Government accountability: some conclusions A number of conclusions may be drawn from this brief survey of the various accountability mechanisms applied to executive governments (see Table 3.1). First, accountability is dependent on constitutional structure. In Westminster systems, where executive and legislative powers are combined, the chain of ministerial accountability is predominant, with other supplementary mechanisms generally subordinate to the overall obligation to answer through ministers and Parliament. In the United

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Page 109 Table 3.1 Mechanisms of government accountability

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Page 110 Table 3.1 (Continued)

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Page 111 States, by contrast, the separation of powers leads to a parallel separation of accountability channels in which no single channel clearly takes precedence over the others. Similarly, federal systems also complicate accountability by dividing responsibilities and therefore accountability between different levels of government (Chapter 6). Where no one government is responsible for a particular policy, no single accountability mechanism, whether an election, legislature, court or auditor, has the capacity to scrutinise the policy as a whole. Secondly, though systems of government accountability vary in the extent of central direction and cohesiveness, all are fundamentally pluralist, consisting of a complex set of accountability relationships which apply differently to different sections of the executive and to different types of issue. For instance, accountability varies according to the institutional status of the particular agency or individual officeholder within the executive. Thus, elected leaders are especially subject to political accountability through elections and the media, whereas career bureaucrats are more accountable to legislative committees and government auditors. Within government departments, department heads are accountable directly to the political leadership while rank-and-file officials are more accountable to superiors in the administrative hierarchy. Compared with departmental heads, heads of independent non-departmental agencies are less accountable to political leaders but more accountable to legislative committees and the media. In addition, accountability varies with the type of government function. Agencies and officials concerned more with general policy advice are primarily accountable politically through the chain of political and administrative command and through policy dialogue and media debate. Those providing services to the public, on the other hand, are more likely to be held accountable through other, non-political types of external scrutiny, such as judicial review and investigation, which are better geared to hearing individual cases and adjudicating on matters of legal compliance and due process. The same variety applies from the point of view of citizens seeking to hold governments accountable. Members of the public taking issue with the government on matters of general policy (general accountability) turn to political channels, for instance working through interest groups or communicating directly with government ministers or officials in policy dialogue. They may approach the media or use their vote to express an opinion. On the other hand, those with a grievance about how they have been treated as individuals (particular accountability) turn instead to other channels of external scrutiny such as complaints procedures,

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Page 112 ombudsmen, tribunals and courts. If they wish to have recourse to elected politicians, they are more likely to approach their constituency representatives rather than government leaders. Thirdly, while some accountability mechanisms include all the major stages of accountability, from information, through discussion to rectification, most mechanisms cover only some of the stages. The provision of information is almost universal, with elections being the sole exception. Election campaigns may yield some very general (and often unreliable) information about a government's future plans, but they provide little or no new evidence about previous government actions. Otherwise, however, all accountability mechanisms offer opportunities for gaining relevant information. Similarly, most mechanisms also provide for discussion by facilitating some type of critical discussion and debate between members of the public (or their representatives) and members of the government. Exceptions are those mechanisms, such as government reports and freedom of information, which simply release information without allowing any possibility of further debate (though the information itself may contain justifications and arguments which contribute to public debate). Comparatively few mechanisms, however, include the final stage of rectification. Rectification, including the imposition of remedies and penalties, is an essential part of judicial review by both courts and tribunals. In addition, elections allow voters to punish or remove an incumbent government. Otherwise, in Westminster systems, the main channels for remedial action are internal to the executive itself, through ministerial responsibility and the chain of administrative command. The legislature, which is the focus of much executive accountability, usually lacks the power to force the government to act in response to criticism. In the United States, Congress has more capacity to coerce executive agencies, particularly through its control of the budget and legislation, and shares the power of non-judicial rectification with the executive. However, in all cases, other channels of political accountability such as political dialogue and the media are confined to seeking information and engaging in debate. In addition, many of the major external scrutinising agencies, such as government auditors, ombudsmen and inspectors, can do no more than investigate and recommend. The lack of rectifying power does not totally cripple the effectiveness of an accountability agency. In a great many cases, public exposure and criticism of executive action are sufficient to prompt the relevant government office-holders into taking remedial action on their own initiative. Indeed, the mere threat of such exposure and criticism is often enough.

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Page 113 None the less, the reliance on self-correction is risky, particularly in aspects of executive activity which attract comparatively little media and public attention and where officials can therefore be more cavalier in their responses to external criticism. Rectification is especially weak in the more politically independent non-departmental agencies such as statutory authorities which are less subject to direct political control and are therefore less subject to public pressure relayed through the elected leadership. Finally, in summarising the overall effectiveness of the structure of government accountability, we may note the recurrent theme of a glass which is both half full and half empty. The structure certainly provides many opportunities for the public to hold their governments to account. The extent of such opportunities becomes obvious in comparison with other countries which lack basic democratic institutions, such as free and fair elections, an independent legislature and judiciary, freedom of political association and a free press. Moreover, in the countries under consideration, a dominant complaint from business critics of government has been that governments are too accountable, particularly to the voters who force politicians into short-term populism, and particularly for due process which makes public officials inefficient and risk-averse (Chapter 5). Certainly, comparison with the private sectors reveals that governments are more accountable than other sectors in most respects (Chapter 4). At the same time, government accountability is seriously impeded in a number of respects. The executive branch itself remains over-dominant and too easily able to escape proper scrutiny, not only in the final stage of rectification, but also in the earlier stages of information and discussion. Executive governments can use a number of excuses to avoid divulging potentially embarrassing information, for instance, protecting national security, safeguarding relations with other governments, concealing confidential advice or commercially sensitive information and avoiding comment on cases before the courts. Each of these reasons has a justifiable rationale in that it refers to occasions when information should properly be withheld in the public interest. The problem lies not so much in the reasons themselves as in their application. For the most part, the government itself is allowed to determine when information can justifiably be withheld. Ministers and public officials can simply refuse to answer questions, whether in the legislature, during policy discussions or from the media, without the grounds of their refusal being open to independent scrutiny. Admittedly, freedom of information rules do allow for legal appeal against non-disclosure of certain types of

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Page 114 information but otherwise the decision of the government is final. Moreover, even where freedom of information rules apply, appeal against non-disclosure is a costly and discouraging process. Short of outright refusal to disclose information, a government has other methods of avoiding, or at least reducing, public scrutiny. It can use its own extensive public relations and media apparatus to manage the flow of government information and to help deflect unwelcome public attention from areas of potential weakness or scandal. It can resort to delay, claiming the need for time to collect the relevant information and thus postponing disclosure until after the immediate political crisis has passed and the information has lost its relevance. The executive can also use its influence over the budget to constrain the resources available to scrutinising agencies, such as legislative committees, government auditors and ombudsmen, none of whom have sufficient support staff to perform their accountability functions to their own satisfaction. Executive resistance and recalcitrance are not the only impediment to the free flow of information and debate. Persistent biases in other public institutions and in the wider society work to shield certain types of issue and institution from adequate scrutiny. For instance, legislative scrutiny is dominated by the partisan concerns of the elected government's political opponents, to the neglect of the more humdrum but equally important activities of the bureaucracy. Judicial review, because of the major costs involved, is effectively beyond the reach of most members of the public. Policy dialogue is also skewed in favour of the wealthy and well organised. The media, which have so much influence on the accountability agenda, tend to favour the dramatic and the sensational over the routine and the boring. Finally, the sheer size of modern executive government, with its many large departments, as well as non-departmental agencies and private contractors providing public services, tends to outrun the capacity of accountability mechanisms to scrutinise its activities. External accountability agencies must always set priorities and make choices, leaving large areas unexamined. Within each agency, the span of internal control and upwards accountability is inevitably limited by the number of levels and the complexity of individual functions at each level. Individual officials, though potentially accountable through many different channels, both external and internal, are actually called to account for only a fraction of their actions.

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Page 115 4 Government Accountability Compared with Accountability in the Private Sectors Comparing sectors In several important respects, the processes by which governments are held accountable are unique to the government sector. For instance, certain key government accountability mechanisms, such as the legislature, policy dialogue or freedom of information, have no direct equivalent in the non-government sectors. The distinction between public and private law marks out a significant difference in the way that the courts handle legal claims against government and private institutions. However, many other aspects of government accountability, such as elections, audit and media scrutiny have equivalents or close parallels in the non-government sectors. Some aspects of the law apply equally to all sectors. Moreover, the general rationale underlying accountability, the need to hold the powerful to account, is common across all sectors. So too are some of the problems to which accountability gives rise, for instance the difficulty of allocating responsibility and accountability within large organisations (Chapter 6). This chapter compares accountability within the three main sectors – public, commercial and non-profit – in order to identify the main differences and similarities. In all sectors, organisations are held accountable for actions taken in their name. In the public sector, such collective accountability typically attaches to the executive government as a whole, though sometimes to particular agencies, especially if these agencies are independent statutory authorities. In the non-government sectors, collective accountability applies to particular legally constituted entities, such as companies, trusts or charities. In addition, individual members of organisations, whether public officials, company employees or volunteer members of charities,

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Page 116 can be held individually accountable for their own actions. These two aspects of accountability, collective and individual, will be discussed separately. Collective accountability: who is accountable? Because of the wide range of organisations involved, comparison across the sectors involves an inevitable degree of generalisation and simplification. In the commercial sector, businesses vary widely, ranging from small one-person or family businesses, through larger, privately owned companies or partnerships, to public companies or corporations owned by many thousands of shareholders owning shares traded through stock exchanges. Accountability requirements differ accordingly. The law relating to companies, variously known as ‘Company Law’ (the United Kingdom, Canada and New Zealand), ‘Corporate Law’ (the United States) and ‘Corporations Law’ (Australia), generally sets more stringent standards of accountability for public companies and corporations with tradeable shares while relaxing requirements for smaller companies or those whose shares are subject to restricted rights of transfer. Companies listed on the stock exchange must also comply with the rules set down by the stock exchange. The present comparison will focus mainly on public companies and corporations on the ground that they are most closely analogous to government agencies. The non-profit sector is even more heterogeneous. Strictly speaking, the sector includes not only organisations directed primarily at helping other members of the community but also self-help organisations, such as cooperatives, industrial unions and other mutual societies, aimed exclusively at the benefit of members. In practice, the term ‘non-profit’ is mainly associated with the ‘community’ sector consisting of other-directed, charitable organisations whose purpose is to protect or improve some aspect of public welfare. These organisations themselves vary greatly in historical origins, size, legal status, internal organisation, dependence on government, relationship to organised religion and so on. At one end of the scale are the large, well-established institutions such as the Red Cross or churchbased charities such as the worldwide society of St Vincent de Paul Society, which have multimillion dollar budgets, professional staffs and several layers of institutionalised management. At the other end are smaller, more informal community-based associations, such as neighbourhood centres and community legal centres, which rely more on voluntary labour and small government grants. The legal status of community sector organisations also varies, including charitable trusts, incorporated and unincorporated associations,

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Page 117 charitable companies (or companies ‘limited by guarantee’) and so on (Cracknell, 1996; Cairns, 1988, Ch. 4; Dal Pont, 2000, Ch. 13). Charitable companies are registered under the relevant provisions of company law and, in most legal respects, apart from their charitable purpose and tax-exempt status, are similar to commercial companies. Trusts, on the other hand, have a less elaborate structure and are subject to fewer legal requirements in the conduct of their business. In many respects, the smaller, more informal organisations represent the core values of the community sector in their emphasis on voluntary service and on the compassionate and flexible response of individuals to the needs of others. These values are not always easily accommodated into larger, more bureaucratic organisations, thus creating tensions and potential problems for accountability. For this reason, while the larger and more established charities provide the closest and most obvious parallel with government agencies and public companies, they are not such adequate representatives of their sector. Reference also needs to be made to the smaller and less highly organised groups. Collective accountability: to whom? Both the subject matter (for what) and the mechanisms (how) of the collective accountability of organisations vary according to the account-holders to whom accountability owed and their relationship with the organisation. In the public sector, the government owes accountability to its citizens and its citizens' representatives for two broad reasons. First, the citizens are the ultimate source of government authority and, indeed, the owners of the government and therefore have an owner's right to determine and scrutinise its directions. Secondly, because government actions have considerable power to affect the public for good or ill, the public have a right to safeguard their interests by holding governments to account. These two lines of justification, based respectively on the principles of ‘ownership’ and ‘affected rights and interests’ (Chapter 1), are well-established foundations for the principles of democratic accountability. In relation to government, it can be assumed that the owners and those affected are one and the same group, that is the citizens. By contrast, however, in the non-government sectors, the class of owners is usually significantly different from the class of those affected. A commercial company is owned by its shareholders but its actions affect the wider community within which it operates, including not only its customers but also those it employs and those on whom it otherwise impinges. A non-profit charity is ‘owned’ (in some sense) by its members

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Page 118 or trustees but it affects a much wider group of people, including donors, recipients and taxpayers. These differences affect the standpoint of comparison for assessing accountability in the different sectors. From one point of view, the most appropriate point of comparison is between the different rights of owners to hold to account those who manage the organisation on their behalf. The rights of the owners or shareholders of a company can be readily compared with those of citizens in relation to their government. Indeed, there is a long tradition of looking at companies as quasi-states, with their own constitutions and their own division of powers between sovereign shareholders, in the role of citizens, and their elected directors, in the role of elected representatives (for example, Eells, 1962; Pound, 1993; Bottomley, 1997). The burgeoning field of ‘corporate governance’ takes much of its conceptual apparatus from constitutional law and public administration. From this perspective, private sector organisations are considered to be divided into two parts, a small group of directors or office-holders who manage the organisation and a wider groups of owners to whom the managers are accountable. The division closely parallels that between a government and the citizens who elect it and whose interests it is meant to serve. Comparison can therefore be made in terms of the respective accountability rights of owners, whether citizens or shareholders, in relation to those who run the organisation on their behalf. The larger non-profit organisations can also be viewed in the same way, with rank-and-file membership and accountable office-holders or managers. However, the concept of ‘membership’ itself is not always clear in the non-profit sector. Members certainly include those who have formal rights to participate in annual meetings, by virtue of an annual subscription or other such contribution. In addition, however, those who work for non-profit organisations, either as volunteers or as paid professionals, often consider themselves to be integral parts of the organisation and therefore fully entitled to determine its direction, as indeed they are in the smaller, more cooperatively based organisations. In larger, company-style organisations, strictly speaking, workers should be accountable to the management and the subscribing members. But their level of personal commitment to their organisations and their organisation's purposes, especially in the case of volunteers but also in the case of many paid professionals, casts them more in the role of full members who share in the ownership. The second point of comparison is accountability owed to the affected community, as distinct from accountability to owners, which in the private sector is a much wider group. Private organisations are subject

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Page 119 to government regulations imposed on them by the wider community within which they operate and whose interests they affect. The community may not own them but it certainly wishes to regulate and monitor their activities. Some government regulations are simply exercised in the interests of owners, enforcing the rights of shareholders or members through relevant legislation. But other regulations aim to protect the general public from adverse consequences of commercial or charitable activity. Private organisations are therefore accountable to the community and its institutions, such as the courts, sundry regulatory bodies and the media. The accountability of charities to donors, who contribute financially without being either trustees or members, should be seen in this light. From one point of view, the position of a donor might appear analogous to that of a taxpayer in the public sector who contributes his or her funds to the government and therefore has a right to a say in what the government does and how it performs. However, the accountability required seems to fall short of that associated with the ownership of citizens or shareholders. It is more a right of information owed to the public at large so that members of the public may know where their donations are going, should they decide to contribute. Donors themselves do not usually purchase any additional accountability rights with their donations. Collective accountability to ‘owners’: for what? In a general sense, those who manage organisations on the owners' behalf are accountable to the owners for all aspects of their performance. This performance can be identified and assessed in varying ways, according to the goals and values that owners expect their organisations to deliver and respect. Expected goals and values differ significantly between the three sectors. The public sector is noted for the complexity and fluidity of its goals which place a premium on political negotiation between different groups with different values and interests and which incorporate strong demands for equity and due process (Chapter 2). Government performance is therefore judged in terms of not only the goods and services provided for society but also the processes by which these results have been produced. In the commercial sector, by contrast, the aim of companies is generally much simpler and more straightforward. The boards and chief executives who manage companies on behalf of their shareholders aim to enhance shareholder value in terms of returns to shareholders through dividends and capital gains. Admittedly, private sector managers themselves report

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Page 120 that their goals are complex (Rainey and Bozeman, 2000). The concept of shareholder value is itself not totally ambiguous or uncontested. For instance, the relevant time frame may be disputed. Should a company aim to increase its share price over the short, medium or long term? Some shareholders are seeking immediate capital gains while others are more interested in substantial dividends or long-term capital growth over several years or even decades. But allowing for some slight variations on this score, the interest of the great majority of shareholders can be assumed to be served by a strong share price. Though directors (and executives) sometimes talk of their accountability to all ‘stakeholders’, including not only shareholders but also their employees and customers, their major overall obligation is clearly to the interests of shareholders who own the company. Such concentration on shareholder benefits is a particular feature of companies in the English-speaking Anglo-American world (de Jong, 1996). Concern for the interests of other stakeholders is normally adopted instrumentally, as a means of benefiting shareholders, rather than for its own sake. Similarly, attempts to introduce a ‘triple bottom line’, incorporating social and environmental values in addition to financial profit, have generally been unsuccessful. Companies can be legally coerced into respecting non-commercial values as part of their accountability to the general public and may see the adoption of social responsibility as helping their corporate reputation and therefore as good for business. But company boards and their shareholders are most unlikely voluntarily to forego future earnings for the sake of social or environmental benefits. In particular, the investment funds and other institutional shareholders, who control the bulk of company shares, are sharply focused on the single bottom line of shareholder value as reflected in the share price. The comparative clarity of commercial objectives for which company directors and executives are accountable is matched by a relatively lower degree of accountability for the processes by which decisions are made. Provided that the company delivers adequate returns and a strong ‘bottom line’, shareholders are less concerned about how these results are obtained. Compared with the public sector, rank-and-file owners do not usually seek to contest the direction being taken by the company or to have access to company information. Moreover, they do not usually raise considerations of equity in such matters as appointments or contracts. Cronyism and nepotism, viewed as corrupt practices in the public sector, are unquestioned norms in the commercial sector. Directors and managers are expected to do deals with their friends and to find jobs for their relations,

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Page 121 provided always that such actions do not damage the company's profitability. In the nonprofit sector, objectives tend to vary depending on the nature of the organisation. Some nonprofit organisations have reasonably straightforward objectives on which all members are agreed, such as the provision of meals on wheels or the protection of swimmers from drowning. Managers or officeholders can then be readily held to account for their contributions towards the organisation's expected performance. In other cases, however, the goals may be much more open-ended and contested among the membership. Environmental groups such as Greenpeace, or civil liberties groups such as Amnesty International, are constantly debating their directions and priorities. Churches in which ministers are accountable to their congregations engage in continuous dialogue about their religious doctrine and mission. Compared with the private sector, the non-profit sector as a whole is much less narrowly focused than the commercial sector, making performance harder to measure and accountability for results potentially more contentious. As in the public sector, the lack of clarity in objectives is sometimes compensated for by a similar concern for process, particularly among cooperative or self-help organisations. Deciding matters fairly and democratically with full participation is often seen as independently valuable, quite apart from the groups' main rationale. Office-holders therefore find themselves accountable for consulting widely before making decisions and for avoiding any suggestions of favouritism in the way they carry out their tasks. Collective accountability to ‘owners’: how (mechanisms) In the public sector, governments are accountable to their citizens through a range of mechanisms, such as elections, legislatures and the courts, as described in previous chapters (Chapters 2 and 3). In the commercial sector, immediate responsibility for the day-to-day management of companies belongs to directors who act as the shareholders' representatives and accountability agents, holding management to account for safeguarding the interests of shareholders. Non-executive directors, who are not otherwise employees of the company, are particularly important in this monitoring role on behalf of shareholders. Directors are subject to legal penalties if they fail to act in good faith or with due care and diligence in the interests of shareholders (for example, Davies, 1997, Ch. 22). The formal rights of shareholders are set out in the company's constitution or articles of association which must accord with the legal

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Page 122 requirements of company law as well as with rules imposed by stock exchanges on publicly listed companies. Direct accountability to shareholders is exercised through general meetings at which votes are allocated to shareholders in proportion to the number of shares held. Not all shareholders are eligible to vote, some categories of shareholders sometimes being excluded, for instance those holding preference shares or other forms of non-voting equity (Davies, 1997, pp. 563–4). Shareholders need not attend in person to vote but may authorise an agent or ‘proxy’ to vote in their behalf. The consent of general meetings can be legally required for certain major company decisions, for instance changes to the company's constitution, the issue of new shares or the conversion of existing shares, directors' remuneration and the removal of individual directors. The most important general meeting is the annual general meeting, at which directors report on the year's activities and present annual accounts and financial statements which must be certified by independent auditors. Companies listed on the stock exchange are also required to issue six-monthly reports on performance. Though directors themselves need not be elected by shareholders, company law gives shareholders the power to remove any particular director and, at many companies' annual general meetings, incumbent directors are required to face re-election on a rotation basis. Shareholders also have the right at annual general meetings to ask questions of the directors and management, though directors are not required to divulge commercially sensitive information relating to particular company decisions. In addition to the annual general meeting, other special or extraordinary general meetings may be called from time to time, either by the directors themselves, seeking approval for a decision that needs shareholder consent, or by other shareholders wishing to contest a board decision. Requests to call a meeting must be made by shareholders holding a stated proportion of shares with voting rights (for instance, 10 per cent in the United Kingdom, 5 per cent in Australia) or, in some jurisdictions, by a stated number of individual shareholders with voting rights (for instance, 100 in Australia). Apart from direct shareholder participation and representation through directors, the other main mechanism of commercial accountability, particularly for companies listed on the stock market, is the sharemarket. The share price reflects the judgment of investors about the company's current performance and its future prospects and provides continuous feedback to management and directors about how well they are protecting the interests of shareholders. In this sense, the

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Page 123 sharemarket operates as an accountability mechanism, monitoring and reporting on company performance. Its effectiveness depends on the free flow of accurate information about company performance and policies. Companies are required to publish regular accounts, approved by independent auditors. To help avoid insider trading, where those privy to certain information gain an investment advantage, companies are obliged to inform shareholders and the investing public about any significant matter potentially affecting the company's prospects. The sharemarket is able to keep a continuous spotlight on both management and directors which compensates for the relative lack of direct shareholder influence on company decision-making. Larger companies, or companies with potential for expansion, are also subject to scrutiny from investment analysts and business journalists with access to inside information. Poor performance or other major irregularities are likely to be reported in the media, thus further increasing accountability. In the non-profit sector, ‘ownership’, and therefore accountability rights, are less uniform, varying with the different legal structures. The closest parallel to commercial companies are charitable companies or incorporated associations managed by boards or committees of office-holders who report to an annual meeting of members. Here, the members have a similar ownership role to that of shareholders, with similar accountability rights. Other charitable organisations have a more restricted accountability structure. For instance, trusts are usually managed by a small group of trustees, whose compliance with the terms of the trust may be subject to legal challenge, but who are otherwise largely unaccountable and often self-perpetuating. The church-owned charities, which include some of the largest non-profit organisations, are accountable only to the parent church. On the other hand, some community-based organisations have a strong commitment to involving all members in collective decision-making and their elected office-holders are highly accountable to the ordinary membership. Non-profit organisations lack the equivalent of a share price to measure their performance. Even when they have highly formal and regulated institutional structures, for instance as private companies, their objectives are usually more open and ambiguous than those of commercial companies, being required merely to fall within the standard general categories for charitable purposes, such as the relief of poverty, the advancement of education or religion, or other purposes beneficial to the community (Cracknell, 1996, Ch. 1). In this respect they are not subject to monitoring and accountability through a market. Moreover, they are also less subject than commercial companies to external analysis

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Page 124 and scrutiny, except when they enter into contractual arrangements with governments or commercial companies to provide specified services. Collective accountability to ‘owners’: how effective? The accountability to owners across the three sectors can be compared in terms of the three main stages of accountability, information, discussion and rectification. With respect to the initial stage, access to information held by an organisation, rank-and-file members of non-profit organisations are the least favourably treated, having little more than the information required in an annual report and whatever answers may be forthcoming from office-holders at an annual meeting. Shareholders receive additional information from more frequent reporting as well as from the right to be consulted on major decisions such as mergers and new share issues. Such information is generally accurate, though collusion between managers, directors and even auditors can sometimes conceal a company's true position. In neither non-government sector is there an equivalent to freedom of information laws allowing the ordinary shareholder or member the right to seek information about general company policy. Moreover, shareholders and members do not have access to the answers to questions that their representatives pose to management. Company directors and trustees, supposedly acting on behalf of shareholders and members, have extensive rights and opportunities to seek information about their respective organisation's activities. However, such information is rarely passed on to the rank and file. In the government sector, on the other hand, questions from legislators are answered in the public forum of the legislative chamber or the committee room and regularly reported in the media, thus allowing the public to benefit directly from their representatives' questioning. At the same time, because the legislators conduct their scrutiny in public, they have a stronger incentive to side with the public as the public's representatives rather than identifying with management and its interests, as is common among board and committee members in the non-government sectors. One area where the commercial sector does offer the rank-and-file superior accountability information, is the mechanism of the share price. Because the published share price provides a continuous and generally reliable report on the performance of directors and managers, business executives can rightly claim that they are, in this respect, much more accountable than their counterparts in other sectors where there is no equivalent measure. For this reason, shareholders may have less need to insist on rights of direct accountability, such as the right to

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Page 125 be informed about the day-to-day actions of managers and directors. They can rely instead on movements in the share price as an accurate indication of performance, provided always that the market is provided with the relevant information. Businesses can adopt a ‘tight–loose’ management structure in which the clarity and specificity of objectives allows managers to be given comparative freedom in deciding how to achieve them. By contrast, the comparative ambiguity and contestability of objectives in the other sectors means that access to other types of information becomes more important. Members who want their interests to be considered have no guarantee that their representatives will not prefer some contrary view of their interest. In order to safeguard their own interests, they therefore need to be able to hold decisionmakers accountable while decisions are being formulated (a ‘loose–tight’ structure). Thus information relevant to accountability for general policy and performance tends to focus on different aspects of policy and performance. In the commercial sector, owners are generally content to be informed about the result or bottom line. In the public and non-profit sectors, on the other hand, citizens and members are more concerned to know what is happening during the decision-making process. From this perspective, the non-profit sector emerges as deficient in comparison with the public sector. Governments are subject to a considerable degree of investigation into their decision-making processes, through an active and open legislature and other procedural watchdogs, including the media. Most nonprofit organisations, however, operate with little public scrutiny and media inquiry. Overall, then, in terms of rights of access to information, the non-profit sector comes off worst. It not only lacks the discipline of a published share price or some other unambiguous measure of results but is also comparatively free of direct external inquiry, relying principally on the integrity of its members. Its management structure is typically ‘loose’ in relation to both ends and means, a combination which poses particular problems for accountability (deLeon, 1998). Similar factors are evident when the sectors are compared in relation to the discussion stage of accountability. Non-government organisations are generally subject to much less open debate about their activities than are governments. Opportunities for rank-and-file shareholders or members to engage management in critical discussion are extremely limited. Annual general meetings provide for open discussion about company policies and decisions, but their power is limited by the principle

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Page 126 that responsibility for most business decisions lies with directors not shareholders' meetings. Moreover, most annual meetings tend to be carefully stage-managed by office-holders with little of the cut and thrust typical of legislative proceedings. Increasing activism among shareholders' associations representing small shareholders has led to more open conflict at some company annual meetings. Disgruntled shareholders have increasingly raised issues such as the remuneration of directors and chief executives and have openly criticised directors for poor company performance. Activist shareholders with non-profit objectives, such as environmental protection or the rights of foreign workers, have used annual meetings as forums to publicise their objections to company policies. However, the principle of one share/one vote, together with the practice of delegating proxy votes to directors, is usually sufficient to guarantee approval for the board's preferred motions. On issues other than those for which shareholder consent is formally required, boards and management are not obliged to take any notice of shareholders' criticisms and complaints. At the same time, the fact that management and directors must at least answer their critics in public and risk potentially adverse media publicity does increase the level of accountability. Directors and chief executives are thus in an analogous position to a parliamentary government with a secure majority. They may have the votes but they must at least face public scrutiny. The difference between business and government executives, in this respect, is more a matter of degree. Company board members need to face only the occasional meetings and can usually expect the membership to be docile. A government, particularly in a parliamentary system, is subject to continual scrutiny from a legislature that is in session for weeks at a time. Moreover, a government must deal with a hostile parliamentary opposition dedicated to exposing its every weakness and to replacing it at the next election. By contrast, company meetings, though occasionally heated, rarely reveal that level of organised opposition. Indeed, in the non-government world, there is no clear equivalent of a ‘loyal opposition’, a group of elected representatives with their own designated leader whose recognised role is to criticise and discredit the incumbent leadership. Nor is there a clear equivalent to the legislature itself, an elected institution largely devoted to holding the executive publicly accountable through scrutiny and debate (Mulgan, 2000b). Company auditors, though legally obliged to give independent scrutiny to company accounts, tend to avoid open criticism of the type offered regularly by government auditors. Usually appointed by the companies

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Page 127 themselves, auditors have a clear interest in pleasing their auditees and try to head off difficulties before they emerge, thus saving companies from public embarrassment. Indeed, recent company collapses, such as Enron and WorldCom, have revealed systematic failings in auditing systems. Conflict and opposition certainly occur in private organisations. But they tend to be kept more concealed in the interests of presenting a united front to the public. Accountability to shareholders and members is therefore more likely to be exercised indirectly by elected representatives on boards and committees scrutinising management behind closed doors. Such accountability, though not wholly ineffective, has obvious weaknesses when compared with the accountability of government leaders and their officials. Board and committee members, operating in secret, are not themselves publicly accountable to shareholders for the exercise of their accountability functions. Legal enforcement of directors' obligations to shareholders is notoriously lax. Without effective external scrutiny of their own activities, directors and committee members can too easily succumb to the management point of view, blunting their criticism for the sake of a more comfortable consensus. Indeed, where directors are also employed as company executives, there is a clear identity of interest between directors and management. Nonexecutive directors, who are expected to exercise independent scrutiny over management, often fail to be sufficiently critical and, even when they do exert pressure, are loath to reveal their concerns to investors and the public. The emphasis on presenting a united management front can too easily become an excuse for resisting legitimate accountability to the rank and file. Once again, the vital importance to accountability of open, critical opposition is underlined (Parker, 2002), as is the value of compounded accountability (the accountability of account-holders themselves). Again, the lack of public discussion in the non-government sectors is potentially more serious in the nonprofit sector. As in the public sector, the absence of agreed and easily measurable objectives in the nonprofit sector places a premium on debate and on open decision-making processes. Decision-making in these sectors is often more a matter of negotiation and discussion between different standpoints than a calculation of the most efficient means towards an agreed end. Multiple points of access and multiple avenues of accountability are therefore needed to make sure that all standpoints are included in the process. The closed nature of decision-making in many organisations in the non-profit sector reduces the extent to which office-holders are accountable to the

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Page 128 rank and file. Smaller organisations which are based on principles of participation and mutual cooperation certainly offer greater opportunities for internal accountability between members. But directors and managers of the larger, more bureaucratic charitable organisations are often a law unto themselves. With respect to the final stage of accountability, rectification, the direct rights of owners are limited in all sectors to the removal of office-holders in elections. Overall, the process of elections offers more opportunities for accountability in the political sphere than in business or the nonprofit sector. While contested elections and competitive campaigning are the norms in government, they tend to be exceptional in the non-government sector. Indeed, initial election is not always legally obligatory under company law for the appointment of company directors, though it is usually required for incorporated associations. Even where election or re-election is stipulated, most directors and committee members who wish to continue at the end of their term of office can expect to be returned unopposed at their annual general meetings. In this respect, most organisations in the non-government sectors are selfperpetuating oligarchies with little direct accountability through the electoral process. By contrast in the public sector, except for some areas of local government where uncontested elections are not uncommon, the electoral contest is a pervasive feature of government activity, and elected political leaders face the real prospect of electoral defeat as a penalty for unpopular performance. Rectification can also be induced indirectly as a voluntary response by directors and managers to public criticism or to the exposure of incompetence. The extent of such reaction depends on the degree of public information and debate, with organisations subject to constant scrutiny and publicity being under more pressure to respond than those whose activities are rarely reported or evaluated. In the commercial sector, for instance, exposure to judgment through the share price regularly stimulates management into taking remedial action. In the non-profit sector, on the other hand, such reactions are much more rare, because of the lower levels of scrutiny. However, remedies can be provoked on the exceptional occasions when religious leaders or employees of charities are found to have acted corruptly or scandalously. Organisations are usually under pressure to act quickly and decisively to restore public confidence. Whether remedies extend to directly penalising or forcing the resignation of those held personally responsible is another matter. As in the public sector, public calls for resignation in response to demonstrated

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Page 129 failure or impropriety are frequently resisted. Chairpersons or chief executives of companies whose incompetent decisions have cost shareholders millions in investment or head teachers of church schools that have harboured paedophile teachers regularly refuse to accept responsibility by resigning from their positions. This is another instance of the intractable problem of ascribing personal responsibility in large organisations which also underlies the vexed question of ministerial resignation for departmental failures (Chapter 6). Pressure to resign is more easily resisted in the non-government sectors where individual leaders are subject to less continual questioning. A chairman or chief executive may simply have to endure a single shareholders' meeting or press conference whereas a government minister faces repeated pillorying from political opponents in Parliament and the media. Weathering the storm of unpopularity may therefore be easier in the less exposed worlds of business and charity than in politics. None the less, campaigns to force resignations in the non-government sectors are sometimes successful, though the reason for resignation may not be openly acknowledged. A director or manager who has been under sustained attack for incompetence and whose credibility has been seriously damaged will often, after a ‘decent’ interval, resign for supposedly unrelated reasons, such as ill health. In this way, while the resignation itself may bring some satisfaction, the refusal to publicly link the departure with the criticised actions to some extent frustrates the demand for full accountability. Overall, then, accountability to owners in the non-government sectors tends to be less than in the government sector because of the lower levels of public scrutiny. In particular, the absence of any effective non-government equivalent to the legislature and the lack of an organised and publicly outspoken opposition mean fewer opportunities for public information and debate about organisational policy-making. The greater capacity for keeping conflict hidden from general view reduces media interest and further weakens accountability to the rank and file. On the other hand, in the commercial sector the acceptance of a generally agreed objective as measured through the mechanism of a share price provides a much more accurate assessment of company performance than is available in other sectors, allowing company directors and managers to be more readily held accountable for results than their counterparts in other sectors. The non-profit sector, subject to neither the degree of scrutiny levelled at government nor the discipline of the market, emerges as, in general, the sector least accountable to its owners or members.

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Page 130 Collective accountability to the public: for what? Private sector organisations are also accountable to the wider public who are adversely affected by their activities. For instance, commercial businesses can have a major impact on their communities by employing labour, consuming public services, constructing buildings, attracting investment, damaging the environment, engaging in monopolistic practices and so on. Non-profit organisations also affect their communities through the facilities they operate, the donations they solicit and the services they provide. The community therefore has a right to regulate and monitor such organisations, to question their activities and to hold them to account for any damage that they cause. The types of activity for which private organisations are publicly accountable in this way include, firstly, the conduct of their own affairs. Thus, companies are monitored for possible breaches of the provisions of company law, for instance where directors or managers have acted fraudulently or have concealed vital information from the investing public. In the non-profit sector, charitable organisations are also subject to regulatory oversight to ensure that they have complied with the terms of their respective trusts or articles of association and that they have not been fraudulent in soliciting donations from the public. Organisations in both sectors are subject to regulatory supervision over how they treat their employees in matters such as minimum working conditions, occupational health and safety, and equal opportunity. These legal controls to some extent help to compensate for the comparative inability of owners or members to enforce retribution on private organisations. Private organisations are also accountable for their wider effects on the economy and society. For instance, competitive markets do not operate effectively in the interests of consumers and the public unless individual companies are constrained from behaving anti-competitively or deceptively. Another growing area of regulation is protection against the harmful effects of corporate actions on the environment, for instance through land degradation, pollution of water and air, destruction of flora and fauna. In addition to meeting general society-wide obligations, organisations operating in particular sectors of the economy or using particular types of technology are also subject to specific regulations and held accountable accordingly. For example, transport industries are heavily regulated in relation to the handling of passengers and cargo, the qualifications of drivers and operators, and the maintenance of equipment. The agriculture industry is regulated and monitored for matters such as quarantine and

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Page 131 disease control, the use of chemicals and the treatment of animals. Food manufacturers are required to observe standards of hygiene and nutrition while producers and operators of machinery must meet safety standards. Private sector organisations are accountable to the public only for those matters where the public may be adversely affected by their actions. Other aspects of their activities are their own business for which they are not required to answer to the public. They are private organisations with their own private purposes which they are free to pursue as they think fit. The public's right to intervene therefore needs to be carefully delineated and spelled out in specific laws and regulations. In the public sector, by contrast, the whole rationale is to serve the public and the public interest. Governments and government agencies have no ‘business of their own’ in which the public has no legitimate concern. Investigation and accountability can be less confined and more open-ended because they are conducted in the interests of owners and not just those adversely affected. Collective accountability to the public: how? The accountability of private organisations to the public is administered largely through government agencies. The task of monitoring compliance and investigating instances of possible breaches in regulations is undertaken partly by government departments and partly by separate regulatory agencies. In some cases, the relevant department or agency may also have the legal power to impose penalties on offenders. Alternatively, cases may be referred to the courts for adjudication. For instance, in the United Kingdom, oversight of corporate governance is the responsibility of the Investigations and Enforcement Division of the Department of Trade and Industry whereas in the United States and Australia it is covered by specialist regulatory bodies, the Securities and Exchange Commission (the United States) and the Australian Securities and Investments Commission (Australia). In the non-profit field, however, the United Kingdom employs an independent regulatory agency, the Charity Commission, while other countries tend to use existing government departments or statutory officers. Environmental regulation is also conducted by a range of different types of bodies, including government departments, statutory authorities, executive agencies and parliamentary officers. Some industries, such as the various forms of transport and telecommunications are subject to international as well as national codes and regulators.

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Page 132 Individual industries and professions also sometimes establish their own regulatory bodies to monitor standards and codes of conduct without having recourse to government or legal enforcement. In this way they seek to maintain the reputation of their members by safeguarding the public from the effects of inadequate service while deflecting the imposition of more stringent government controls and sanctions. Stock exchanges, which set rules for companies wishing to be listed, provide a notable example of regulation by non-government bodies. The media and advertising industries, which are particularly opposed to government intrusion into freedom of speech and communication, frequently operate their own monitoring bodies to which members of the public may appeal. Indeed, historically, the origins of state-based regulation in many areas are to be found in earlier attempts at self-regulation by particular industries or professions (Braithwaite and Drahos, 2000, pp. 479–85). In so far as industrybased bodies can hold individual companies accountable to the public for breaches of community values and standards, they can be counted as genuine agents of public accountability, even though they lack the backing of legal authority. In the case of some professions, such as lawyers and doctors, where the public interest in competent performance is particularly pressing, independent professional bodies have been given legal powers to enforce professional standards. Some regulatory bodies operate in both private and public sectors, producing a degree of overlap between the sectors. Where government agencies engage in the same type of activity as private sector organisations, they are regularly subject to the same regulations and monitored by the same bodies. Such areas include employment practices, occupational health and safety, building codes, management of educational institutions and hospitals, telecommunications, treatment of animals, protection of the environment and so on. The extent of cross-sectoral regulation is growing as private sector organisations are increasingly drawn into the public domain, providing public services under contract alongside publicly owned institutions. Apart from such cases of overlap, however, many more regulatory bodies operate exclusively in the private sectors. For instance, some areas of regulation, such as that relating to the management of private companies or charitable bodies, apply, by definition, only to privately owned organisations. Many other areas of activity, such as food production, manufacturing and retailing, where designated regulatory bodies proliferate, are in practice exclusive to the private sectors. In general, the institutional structure of accountability in the private sector tends to be more specific and differentiated while that of government

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Page 133 accountability is more wide-ranging. Because each intervention into the affairs of private organisations needs a special justification, private organisations are held accountable by a large number of separate public agencies each responsible for monitoring compliance with a comparatively restricted set of rules or regulations. By contrast, governments are called to account by a few powerful accountability bodies, such as the legislature or government auditors, which have open-ended rights to investigate and explore the performance of government agencies and officials in line with the ownership rights of citizens. At the same time, the use of specialist external regulatory bodies in the public sector has expanded considerably as the new public management reforms have attempted to bring government accountability arrangements closer to those of the private commercial sector (Chapter 5). Collective accountability to the public: how effective? The more restricted focus of private sector regulation is clearly reflected in the information and discussion stages of accountability. Members of the public have no rights of access to company information similar to the freedom of information provisions applying to public institutions. Whereas government agencies usually accept an obligation to respond constructively to public criticism, private organisations commonly refuse to acknowledge any general right of private citizens to question the effect of their policies on the community. Companies may be interested in consumer attitudes and often seek to rebut criticism from disgruntled customers in relation to particular transactions. But they usually ignore public critics or protests. Admittedly, the need to foster good relations with a community can sometimes pressure private organisations into participating in public dialogue, either through the media or by meeting community representatives. The prospect of government intervention may prompt a more conciliatory approach. On other occasions, inquiries conducted by regulators may prompt wider public debate, for instance in relation to the pros and cons of particular industry mergers or the environmental impacts of proposed developments. Companies contesting the decisions or recommendations of regulators can then be drawn into public discussion in the media. For the most part, public accountability of private companies is a response to government regulation, actual or potential, rather than directly to the public itself. It is the regulators who can demand information, evaluate performance and impose remedies on the public's behalf. The effectiveness of such accountability in securing rectification varies considerably. As elsewhere, much depends on the level of resources

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Page 134 applied to monitoring and enforcement which, in turn, relates to the perceived importance of the standards being monitored. At one end of the scale, activities which are clearly life-threatening if not properly performed, such as aircraft maintenance or the handling of dangerous chemicals, tend to be very closely monitored. Companies are required to account for their actions in great detail and face regular on-site inspection and investigation. If found guilty of non-compliance they will be forced to suspend operations and may be liable to severe financial penalties. In extreme cases, individual members of companies can face criminal charges, though securing convictions against individuals rather than companies is notoriously difficult (Fisse and Braithwaite, 1993). In these strictly regulated areas, the standard of compliance is at least as high, if not higher, than that applying to many public sector agencies. At the other end of the scale, some regulations and standards are policed very leniently, if at all, and offenders are rarely identified, let alone penalised. For instance, the fiduciary duties of directors on behalf of shareholders have proved very resistant to investigation and enforcement (Davies, 1997, Chs 22–3). One area of notably lax accountability is the regulation of charitable organisations where few resources are allocated to administering standards that are themselves relatively meagre. Even the United Kingdom Charity Commission, often cited as an exemplar in the area of non-profit accountability, can adequately scrutinise only a very small fraction of the nearly 200,000 charities on its books and has been subject to sustained criticism from Parliament and the National Audit Office. In practice, accountability in the non-profit sector is more likely to be in response to complaints from disgruntled members of the public than at the initiative of regulatory agencies. However, one aspect of charitable activity, namely fund-raising, is subject to more searching scrutiny, usually from the police or other antifraud agencies, because of the risk to the public that donations may be solicited under false pretenses. A perennial complaint about regulatory agencies, particularly in the United States, is that they become too close to the industries or organisations that they are supposed to regulate and are thus unable to represent the interests of the public with sufficient independence and determination (Baldwin and Cave, 1999, Ch. 2). Their independence from government often drives them into the arms of their respective industries and professions (Behn, 2001, p. 53). Particularly in areas of specialist regulation, those individuals employed by regulatory agencies have usually acquired their expertise by working in the relevant industry. They are

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Page 135 therefore likely to have many close personal contacts and acquaintances in the industry and may be unduly sympathetic to the industry point of view in their approach to potential problems. Moreover, industrial companies themselves have a vested interest in lenient regulation and naturally try to cultivate friendly relationships with regulatory agencies and individual regulators, sometimes crossing the line into outright corruption. Wealthy corporations and lobby groups can also use political pressure and campaign donations to influence the elected politicians who frame regulatory regimes. An important factor is the extent of compounded accountability, that is the extent to which regulatory agencies are themselves publicly accountable for the manner in which they exercise their accountability functions. Agencies that are likely to suffer severe public criticism if guilty of lax regulation have stronger incentives to be conscientious in holding private organisations to account. Again, where the matter is one of obvious public concern, such as in the monitoring of health or safety standards, regulators are more likely to be held fully accountable. In addition, the accountability of regulators is more readily enforced where evidence of non-compliance is unambiguous, as in a major accident caused by failure to observe prescribed maintenance standards. In the subsequent investigation into such an accident, searching and embarrassing questions will be asked of the regulator about the adequacy of their monitoring and enforcement. On the other hand, where failure to comply is less clear-cut, for instance in relation to certain commercial activities such as predatory pricing or anti-competitive behaviour, it is more difficult to hold the regulator to account. Because the standards themselves are more contestable, the diligence and independence of the regulator is less easily assessed (another instance of how ambiguity of objectives can impede accountability). The great variety of regulatory regimes in the private sectors and their varying effectiveness defy generalisation and therefore invalidate any attempt at overall comparison with the public sector. At the same time, some general parallels and contrasts may be discerned. Many types of regulation, with their corresponding accountability rights and obligations, for instance building and safety regulations, apply equally to institutions in each sector. Similar difficulties in enforcing accountability also occur in each sector, for instance problems of defining standards and of penalising those personally responsible for collective faults. Perhaps most fundamentally, both private and public sectors share a similar basic rationale for making organisations publicly accountable, the need to protect the public from the adverse impact of powerful

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Page 136 institutions. However, the public and their representatives have stronger and more direct accountability rights with respect to governments and government institutions than with respect to private organisations. This reflects the public's dual role as both ultimate owners of government as well as being affected by government action. By contrast, in relation to privately owned organisations, the public are merely an affected community and lack any rights of ownership. The greater public accountability of government is commonly justified by the fact that governments have unique powers of legitimate coercion and the claim that ordinary citizens therefore need especial protection against the abuse of such power. Traditional liberal constitutional theory, enshrined in the legal system and in the distinction between public and private law, has assumed that the state is the only institution directly threatening the rights and freedoms of citizens. However, this assumption was always dangerously mistaken, and is no less so in an age of global capitalism. Private organisations, particularly major corporations, have extensive powers from which the public needs protection. Indeed, the reduced range of available controls and accountability mechanisms makes the private sector potentially more harmful than the public. Private corporations may lack the government's powers of legal coercion but they are also free from many of the constraints under which governments must exercise those powers. If public accountability is concerned with the protection of the public from the abuse of institutional power, it cannot be confined to the public sector alone but must be extended also to the private sectors. Improving the public accountability of private organisations may indeed be the most pressing item on the accountability agenda. Collective accountability to particular individuals or organisations Besides being accountable to owners and the general public for their overall policies (general accountability), organisations in all sectors are accountable to individual organisations or to individual members of the public for the provision of particular goods and services (particular accountability). Governments provide the public with goods and services such as licenses and welfare benefits, while commercial businesses sell goods and services in return for payment, and non-profit organisations offer various kinds of support to people in need. In each sector, the recipients of services are sometimes dissatisfied with the treatment they have received and wish to hold the relevant organisations accountable, by querying the decisions made in their case and seeking restitution or compensation.

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Page 137 The legal status of those seeking particular accountability differs from sector to sector. Those receiving government services are able to exercise the rights of citizenship as defined in legislation. In the nongovernment sectors, customers who deal with commercial companies enter some form of contract which generates rights of accountability and redress while those receiving assistance from non-profit organisations must usually rely on the goodwill of the organisation concerned. These differences are sometimes reflected in terminology. The term ‘client’ can be applied in all sectors, but traditionalists tend to prefer ‘citizen’ for the public sector as an indication that members of the public have special legal and constitutional rights and entitlements in relation to their government. ‘Customer’ is normally restricted to the commercial sector, to mark the commercial relationship of purchaser to seller, though it has sometimes been introduced into the public sector by reformers wishing to import commercial standards of customer service into government agencies (Chapter 5). Clients in the non-profit sector are sometimes described as ‘beneficiaries’, to mark their status as recipients of other people's generosity. The relationship between welfare organisations and those they assist is not one of either civic entitlement, as between citizens and government, or of parties to a contract, as in the commercial sector. It is more a matter of grace and favour where the organisation has the right to determine the level of welfare given and the client or beneficiary is expected to be gratified but has no rights to demand a certain level and or to complain if the service is perceived as unsatisfactory. Indeed, a relationship where claimants lack such rights may also lack accountability, in the strict sense of the obligation to account to someone who has a right to demand an account (Chapter 1). Admittedly, many sections of the non-profit sector are attempting to move beyond the patronising paternalism associated with traditional charities of an earlier, less egalitarian age. Benefactors are more sensitive to the dangers of presuming that they know best what their clients need and want. Many of the more recently founded organisations have a strong commitment to principles of equal participation and consultation, not only internally among themselves but also in relation to the clients they are attempting to assist. Those who work for non-profit organisations, whether as volunteers or paid professionals, clearly feel a sense of personal and often professional responsibility to those they aim to help. The claim that they are not accountable to their clients, when they consult them and take note of their preferences, may appear to deny this sense of commitment and responsiveness. For this reason, non-profit

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Page 138 members have been said to exhibit a form of ‘voluntary’ accountability (Leat, 1990, p. 148), implying that they choose to accept an obligation to answer to their clients. Alternatively, their personal commitment and moral responsibility for their clients' welfare is itself described as a form of accountability (Kearns, 1996; Ott and Dicke, 2000). On the other hand, it may be questioned whether genuine accountability exists when the holder has no independent right to demand accountability and must instead rely on the willingness of the giver to give an account. Certainly, this is an extension beyond the core sense of ‘accountability’ which requires that the person to whom account is given has authority and rights over the person held accountable. Nonprofit workers may be accountable to each other and to their organisation, and religious believers will see themselves as also accountable to God, but they are not usually, strictly speaking, accountable to their clients. Indeed, the very use of the term ‘client’ may be misleading if it wrongly implies that users or beneficiaries of non-profit welfare services have rights or entitlements which apply only in the other sectors. Collective accountability to particular individuals or organisations: for what? In the government sector, agencies are accountable for providing services stipulated in legislation and in other types of regulation. In the commercial private sector, rights of particular accountability are grounded in the essence of the commercial transaction itself which involves a bargain or agreement under certain terms between the seller and the purchaser. If the terms are breached, the aggrieved party has the right to call the other party to account and to seek restitution. These accountability rights of customers are legally enforceable as part of private law, that part of the law which regulates the mutual dealings of individual citizens or corporations. The law of contract can be used to enforce the terms of an agreed contract while elements of the law of torts, particularly the law of negligence, allow customers to sue for dangerous or defective products and services. In addition to such common-law rights, disgruntled customers may also have recourse under statutory provisions, for instance fair trading or consumer protection legislation which provides for damages where companies engage in conduct that is misleading or deceptive. Most such legislation, however, is aimed at regulating commercial activity in the public interest, with charges being brought by governments on behalf of the public rather than at the suit of individual customers.

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Page 139 Private sector companies operating under private law are not normally held to the same standards of reasonableness and fairness which the courts impose on government agencies under the public law principles of administrative law. On occasion, the United Kingdom courts have been prepared to apply such principles to private organisations exercising quasi-public power, for instance, in dealing with disputes over expulsion from clubs or political parties and in relation to the rules of incorporated associations (Oliver, 1997). Overall, however, the distinction between public and private law, though under pressure at the margins, remains intact, shaping a fundamental contrast between the rights of citizens against governments and the rights of customers against companies. Customers have access to the private law of contract and torts, the application of which to governments and public agencies is severely circumscribed, while citizens must rely on the public law principles of administrative law. With respect to non-profit organisations, the rights of clients or beneficiaries are more tenuous, given the grace-and-favour origin of much charitable service. The absence of an agreed contract means that clients lack any equivalent to the contract-based remedies which provide the core of customer accountability in the commercial sector. However, non-profit organisations are not totally unaccountable to those they serve. For instance, they are accountable under the civil law of torts for damages due to negligence and the lack of necessary care and can also be prosecuted under the criminal law for matters such as violent assault or sexual abuse. Collective accountability to particular individuals or organisations: how? The mechanisms for particular accountability in the different sectors vary in accordance with the nature of the legal relationship between client and provider. Citizens dealing with government agencies have access to a range of complaints procedures as well as various legal and political avenues of redress (Chapters 2 and 3). In the commercial private sector, as with government, the first point of complaint for the dissatisfied customer is the company itself from whom the purchase has been made. Large-scale trading companies which deal with substantial numbers of customers, for instance banks or department stores, normally have well-established internal procedures for customer complaints and redress, including designated review officers and codes of acceptable practice. In this respect, their practice is closely parallel to that of public sector agencies with their service charters and complaints procedures.

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Page 140 Smaller companies, though they may not be able to afford a formalised procedure or specialist complaints staff, still recognise the right of the customer to complain and to have faulty products repaired or replaced. Customers also have the right to pursue remedies through the courts, under the various relevant provisions of contract, torts and consumer legislation. However, as in the public sector, the pursuit of legal remedies in the commercial sector can be cumbersome and expensive and beyond the resources of many disgruntled customers. Less elaborate procedures of adjudication are also employed, such as voluntary arbitration, where the parties agree to submit their dispute to an independent arbitrator, and small-claims courts or tribunals which have the power to hear disputes over comparatively small sums (Nader and Shugart, 1980, pp. 78–86; Oughton and Lowry, 1997, pp. 74–7). In addition, some particular industries or even individual companies have also established their own independent investigators to hear complaints and to recommend or impose remedies. These investigators perform a role similar to that of ombudsmen in the public sector and, indeed, have often been given the title ‘ombudsman’. Industry ombudsmen are most common in the financial sector, covering areas such as banking, insurance, superannuation and financial advice, but are also found in other service sectors such as real estate, building and legal services. Their powers vary, with some allowed the right to make determinations while others can simply recommend (though recommendations are usually accepted, as in the public sector and for similar reasons). Some industry ombudsmen are confined to dealing with particular cases while others have the right to make recommendations about general policy. Not all industries, however, have endorsed the independent ombudsman concept. In general outline, then, the commercial sector exhibits somewhat similar accountability mechanisms to those available to individual citizens in the public sector, beginning with internal complaints procedures and backed up by independent investigators and legal proceedings. The main procedural difference is the lack of political remedies in the private sector. Disgruntled commercial customers have no right similar to that of the citizens' right to ask their local legislative representative to act as an advocate or go-between on their behalf. In the non-profit sector, accountability mechanisms are generally less well developed. Thus, internal complaints mechanisms have not been the norm among charitable organisations, nor is the sector given to encouraging external ombudsman-style investigators. However, some legal remedies, such as personal damages, are available for those claiming to have been harmed by charitable organisations and their workers.

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Page 141 Many churches, and church-based charities, have recently been establishing internal complaints procedures in response to public disquiet over the failure to deal adequately with sexual and other forms of abuse by clergy. Other non-profit organisations in receipt of public funding, such as churchowned hospitals or schools, regularly operate formal complaints procedures, often as a condition of receiving government subsidies. At the same time, the non-profit sector nurtures values that are inimical to the establishment of normal accountability regimes. Individual members of the sector often interpret their mandate in a particularistic way, giving immediate attention to particular individuals who present themselves in need and showing less concern for applying general standards of equitable treatment across the whole range of people with similar needs. Public servant welfare providers, by contrast, know that they will be called on to justify their preferential treatment of one case over another and so are forced to adopt strict rules of equity, even at the possible risk of lowering average standards of welfare (Lipsky and Smith, 1990). The comparative lack of accountability to clients in the non-profit sector is underlined when non-profit organisations contract with governments to provide public services and find themselves being forced to adopt new accountability regimes (Chapter 5). In this way, they may compromise their traditions of community service which, particularly when performed by volunteers, depend more on personal and spontaneous attention than rule-following (Taylor, 1996, p. 67). Collective accountability to particular individuals or organisations: how effective? When comparing particular accountability across the three sectors, the non-profit sector, as usual, emerges as the least accountable, relying more on the personal commitment of its members and relationships of trust and less on mechanisms of external accountability to clients. Arrangements in the public and the private commercial sectors are more closely comparable, especially for those parts of the commercial sector which have well established complaints procedures and independent investigators. Because most individual complainants want remedies for unsatisfactory services, the effectiveness of particular accountability is mainly to be assessed in terms of rectification. Information and discussion are important but the emphasis is on concrete results. Legal remedies differ according to the contrasting approaches of public and private law but share the same problems of complication and expense that place them beyond the reach of most citizens and

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Page 142 consumers. Less formal legal procedures, such as public sector tribunals and small-claims courts, meet some of the objections made against full-scale litigation but without making the legal pursuit of remedies attractive to the average person. Small-claims courts, for instance, tend to be used much more by businesses seeking payment from consumers than by consumers seeking redress from businesses (Nader and Shugart, 1980, pp. 80–1; Oughton and Lowry, 1997, p. 75). Overall, most people with a complaint about service resort to non-legal channels. Here, the public sector has a record of providing both internal and external accountability mechanisms more uniformly across all areas of service. For instance, government ombudsmen tend to have service-wide jurisdiction, and governments typically impose the obligation to establish service charters and complaints procedures on all agencies serving the public. In the commercial sector, provision of formal procedures is more patchy. The best-served industries, for instance banking and insurance, offer their customers sets of accountability mechanisms little different from those available for their public sector equivalents, such as taxation offices. Other industries are less well served, with customers often having to rely on a direct approach to the individual company or contractor. Complainants in the commercial sector also lack an equivalent to assistance available from local legislative representatives to constituents who are in strife with government agencies. Legislators are encouraged to be particularly assiduous in this role (Karikas, 1980; Nader, 1980, pp. 20–2), thus confirming the comparative inadequacy of advocacy for commercial consumers. On the other hand, in contrast to government agencies, commercial enterprises have the added stimulus of market incentives encouraging them to treat their customers well. For instance, retailers have a generally good record of agreeing to customers' demands for a refund or replacement of defective goods purchased, though problems over defective services may be more intractable (Ramsey, 1981). Market incentives may compensate, to some extent, for the comparative lack of formal complaint mechanisms. By the same token, the possibility of transferring custom to an alternative supplier offers the commercial customer an ‘exit’ option as an alternative to the ‘voice’ strategy of seeking accountability for unsatisfactory goods or services. Such an option is most attractive, however, where the goods or service in question is small and inexpensive and where the losses from starting afresh with a new supplier are relatively minor. Consumers are naturally less prepared to walk away from defective treatment over a major purchase such as a house or car and must therefore rely on sometimes defective accountability mechanisms.

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Page 143 Overall, then, the range of accountability mechanisms available for citizens dealing with government agencies is more extensive and comprehensive than for customers making commercial purchases. At the same time, market competition provides commercial businesses with an added inducement to be sensitive to customer needs and to respond positively to complaints made directly to them by dissatisfied customers. In the public sector, the fact that most agencies dealing with the public are monopoly suppliers of sought-after services means that officials lack the spur of competition to motivate them into placating dissatisfied citizens. For this reason, in spite of efforts to introduce more competition into public service provision and to inculcate a stronger customer or client focus (Chapter 5), accountability in the public sector must rely more on external complaint mechanisms and independent investigators. Unless citizens have recourse to an independent authority, they are less likely to receive satisfaction. By contrast with both the public and the commercial sectors, the non-profit sector offers its clients fewer formal opportunities for expressing complaints or grievances. Those working for non-profit organisations are often committed to consultation and take pains to identify the needs of those who seek their help and to rectify inappropriate treatment if it comes to light. But such responsiveness remains a matter for the staff and volunteers to initiate and does not derive from any right on the part of recipients to demand redress. The sector remains open to the criticism of giving undue weight to its own middle-class values and its own views about what is good for others (Brown, 1998). Indeed, the unique strengths of the non-profit sector in meeting social needs flow in part from the capacity of its members to assist individuals freely and flexibly, without the constraints of either legal entitlements or market transactions and their attendant rights of particular accountability. At the same time, the absence of formal accountability procedures places an added premium on the integrity of those working in the sector and on the personal trust built up between giver and recipient. When this trust is abused, for instance in cases of paedophilia or other forms of sexual exploitation, the community's demand for accountability is all the more vehement. Such crises of confidence in the non-profit sector, together with the sector's increasing dependence on government contracts, can be expected to lead to an increase in accountability and a reduction in the gap between this sector and the others. Individual accountability: to whom? The final aspect of accountability to be compared is that of individual members or employees working within the different sectors (individual

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Page 144 accountability). Organisations with formal management structures are found in all sectors, whether government departments, commercial companies or major charities. In any such organisations, individual employees generally work under the direction of managers or owners and are accountable upwards through a hierarchical chain of command. To this extent, their individual accountability to their superiors dovetails with the collective accountability of the organisation to its wider constituencies and they can share in the collective obligations while answering to their immediate superiors. On occasion, however, individual members and employees may perceive a divergence between their internal, upwards accountability through the chain of command and their accountability obligations to other groups, such as the general public, particular clients, their professional peers or even to the organisation itself whose interests they may believe are being betrayed by their superiors. For instance, certain trained professionals, such as lawyers, doctors or social workers, owe professional accountability both to their professional peers and to their clients which may lead them to act independently of any obligation to their management superiors. Professional values and accountability obligations provide a common source of conflict for medical professionals in hospitals, for lawyers in commercial legal partnerships and for state-employed welfare workers. Similarly, whistle-blowers who disobey orders and break confidentiality obligations in order to expose allegedly illegal or improper behaviour within their organisations are exercising accountability over the heads of their immediate superiors either directly to the organisation's leaders or to the public (Bovens, 1998, Ch. 11). Individual accountability: for what? Some areas of individual accountability are common across all sectors. For instance, individuals members and employees are everywhere accountable for complying with various legal prohibitions, such as laws against theft or malicious damage in relation to their organisations. Moreover, as already noted, all employees are personally accountable to their superiors internally within the organisation for the performance of set tasks, including their appropriate contribution to the organisation's collective accountability to its owners and clients and to other external scrutinising bodies. At the same time, personal values and commitment to the goals of the organisation may encourage individuals to be accountable to owners and the public for pursuing their own interpretation of what these goals require as well as for reporting cases of alleged illegality or impropriety, even against the instructions of their superiors. The

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Page 145 extent to which individuals regularly prefer their own judgment over that of their superiors varies between the sectors, with the most leniency found in the non-profit sector. Individual accountability: how? The individual accountability of particular members within organisations thus involves accountability to superiors through a management hierarchy, supplemented and potentially constrained, by accountability to other groups such as colleagues and the public. Each sector sets its own balance between these competing claims. In the private commercial sector, accountability to superiors is paramount. Those in charge of a company are either its owners or directly responsible to its owners and therefore entitled to enforce their view of the owners' interests. Individual managers may be allowed a relatively large degree of discretionary judgment in their daily work, particularly in comparison with public sector managers who are more severely constrained by set rules and procedures. At the same time, however, they are held highly accountable in terms of measurable results demanded by their superiors. Resistance by employees to directions issued by managers is not tolerated. Whistle-blowers are likely to face dismissal as well as attempts to discredit their evidence and their characters. The public sector, though placing similar weight on upwards accountability, is slightly less uncompromising in its attitude towards resistance (Chapter 3). Public servants see themselves as serving the public interest and as ultimately accountable to the public and taxpayers. They generally accept the right of elected leaders to determine the public interest and to impose their views via the administrative hierarchy. None the less, they often retain a residual right to resist or expose what they consider to be illegal, improper or seriously damaging to the public, for instance through leaking confidential information to the media. The rights of whistle-blowers to expose government illegality and corruption with impunity are sometimes formally protected in legislation. By contrast with both public and commercial sectors, the community sector is marked by a comparative lack of internal accountability, particularly upwards accountability (Schwartz, 2001). Community organisations vary greatly in their management structures, from major bureaucracies to informal cooperatives, and the extent of management hierarchy and internal accountability differs accordingly. However, in all types, hierarchical control and upwards accountability tend to be generally weaker than in comparable organisations in other sectors. Directors and

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Page 146 management committees can often be inexperienced amateurs with little time or expertise to devote to supervising the organisations nominally under their control (Taylor, 1996, p. 61; Gibelman et al., 1997). Legal requirements on boards and committees are often minimal, while accounting and management standards are relaxed in comparison with the other sectors. Compounding and building on this weakness in leadership, individual charity workers, whether volunteers or employed professionals, tend to rely very heavily on their individual judgment of what actions should be taken and are reluctant to accept direction from supervisors or managers. Volunteers contribute their services freely out of a conviction that they are doing good works which entails a presumption that they can define for themselves what works are good. Employed professionals have their own expertise which gives them the confidence to reject the instructions of amateurs in positions of formal authority. Because such professionals often earn less than they would in the public or private commercial sectors, they too enjoy a sense of vocational commitment which strengthens confidence in their own judgment. The result is typically a collection of strongly committed individuals each confident in his or her own personal mission. Collective cohesion depends on shared values and trust rather than centralised control (McDonald, 1999, pp. 13, 17). Members may see themselves as ‘accountable’ to their own values (Taylor, 1996, p. 68), but, again, this is to confuse a sense of responsibility with genuine accountability. Perhaps the strongest type of internal accountability within community sector organisations is horizontal rather than vertical, that owed to colleagues and fellow professionals rather to superiors. Individual welfare workers will often recognise the rights of fellow workers to question their actions, demand explanations and perhaps even impose collective remedies and redirection, particularly on matters of process if not of actual outcome. Such accountability is found in all sectors, but is particularly strong in the non-profit sector because members of this sector, in comparison with their counterparts in government or the commercial sector, are less likely to defer to the authority of boards of management or senior executives. Their sense of personal commitment also encourages a willingness to blow the whistle on fellow members found to have betrayed their organisations through illegal or improper behaviour. They thus exercise the mutual accountability typical of networks which provide strong internal accountability between members but often to the exclusion of those outside (Chapter 6).

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Page 147 Individual accountability: how effective? When the effectiveness of individual accountability is compared across the sectors, the public and the commercial sectors emerge as generally stronger than the non-profit sector in relation to the claims of upwards accountability. In both public and commercial sectors, the internal accountability of individual subordinates to superiors, though always involving a necessary degree of slippage, is underpinned by strong institutional norms which legitimate the authority of leaders. The non-profit sector, by contrast, does not always accord the same moral authority to those nominally in charge. The sector lacks a clear objective comparable with the commercial sector's profitability and shareholder value which clarify the accountability of commercial leaders and underwrite their authority over subordinates. Compared with the public sector, where the objectives are similarly imprecise and disputed, the sector lacks the counterpart of the publicly contested election where alternative candidates expose themselves and their policy directions to public scrutiny and from which the winners can be said to derive a mandate to govern. It is this democratic mandate that underlies the right of political leaders and senior public servants to impose centralised administrative solutions on public sector agencies and their right to challenge the individual public servant's own interpretation of what the public interest requires. Even in the government sector, an election-based mandate may sometimes be missing or at least attenuated, as, for instance, in some areas of local government where elections are either rarely contested or attract little public attention and where the authority of elected leaders over their permanent staff is similarly weak. Similarly, in the case of most non-profit organisations, boards are either self-appointed or elected unopposed and can claim little moral authority over those who work for them. Thus, a lack of external accountability of leaders to a wider public encourages a corresponding lack of internal accountability within the organisations. On the other hand, the exercise of individual accountability to resist and expose institutional illegality and impropriety appears more fully developed within the public and non-profit sectors than the commercial sector. Whistle-blowing of any type tends to exact severe financial and psychological costs from those who embark on it, placing strong disincentives against speaking out and thus weakening what is potentially one of the most potent avenues of public accountability. Certainly, the personal commitment of non-profit volunteers and workers provides them with a powerful motive to denounce organisational corruption while the rights of public sector whistle-blowers are accorded the most

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Page 148 formal legal support. An equally compelling case can be made for defending the rights of whistleblowers in the commercial sector, given the tendency of directors and managers to keep ordinary shareholders in the dark and given the potentially damaging effects of some commercial decisions on the community. However, the interests of company boards and managers in defending the commercial confidentiality of their information have discouraged the establishment of equivalent legislative protections in the private sector. Conclusion When all aspects of accountability are considered together, a number of general conclusions may be drawn (see Table 4.1). First, of all sectors, the public sector tends to be subject to the most extensive regime of accountability, in terms of public access to institutional information, the exposure of leaders and officials to public scrutiny and the avenues of personal redress open to the disgruntled citizen. For instance, the private sectors have no equivalent to freedom of information laws or to legislative scrutiny and its attendant publicity. Procedures for individual complaint and redress are more uniformly effective in the public sector. Whistle-blowing to the public remains more acceptable for government than private sector employees. Though systems of government accountability are clearly defective in certain respects (Chapter 3), their comparative strength helps to place their deficiencies in context. A rationale for placing extra accountability demands on the public sector can be found partly in the democratic ownership of the sector by its citizens which leads them to demand standards of fairness and due process as well as requirements for consultation which are not placed on other sectors. Moreover, the extent of government's powers and its impact on the community also call for strong accountability measures. However, the exclusive force of this rationale is weakened by the fact that private sector organisations, especially large companies, can also have major effects on the community and should also be subject to similarly searching accountability. The agenda of accountability reform is arguably most pressing in relation to the non-government sectors, particularly the commercial sector and its accountability to the general public. Secondly, the non-profit sector consistently emerges as significantly deficient in accountability, whether to its supposed owners, to the wider community or to its clients. However, this accountability deficit is not wholly to be regretted but may, in fact, facilitate the sector's successful operation. The greater trust accorded to employees and volunteers by

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Page 149 Table 4.1 Government accountability compared with accountability in the non-government sectors

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Page 150 their organisations and the community tends to support them in their commitment to altruistic service. Moreover, the comparative absence of complaints procedures and general public scrutiny allows for more flexible and compassionate treatment of those in need. Admittedly, the sector's reliance on trust is open to abuse by unscrupulous workers or clients, and may be in need of tighter accountability standards in such matters as accounting and redress for maltreatment. But part of its strength stems from its comparative freedom from accountability and its greater reliance on personal trust. The nonprofit sector, therefore, provides the clearest illustration of the need to limit accountability for the sake of other values (Chapter 7). Thirdly, the markedly greater clarity of objectives adopted by commercial companies sets this sector apart from the other two. Owners of commercial companies can delegate more freedom and discretion in decision-making to managers at various levels because the managers' performance can be more readily measured and monitored. More effective accountability for results allows correspondingly more relaxed accountability for the processes by which results are achieved. Both the public and the nonprofit sectors, by contrast, have imprecise and contested objectives which place a premium on consultation and discussion in the framing of decisions and militate against the clear articulation of objectives and performance measures. The public sector, in particular, has tended to place especial emphasis on making governments accountable at different stages of the decision-making process and on constraining the discretion of public officials, and has been comparatively weak in accountability for performance. From this point of view, it is the public sector which is comparatively defective and may need to adopt practices from the commercial sector. Whether the public sector should adopt a more results-oriented system of accountability on commercial sector-lines is explored further in the following chapter.

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Page 151 5 Public Sector Accountability and New Public Management Reforms The public sector reform movement From the mid-1980s, public service bureaucracies in almost all countries underwent processes of substantial restructuring as part of an international movement for public sector reform, a movement that has had a significant impact on public sector accountability. The reform programmes were variously named, sometimes as ‘managerialism’, more commonly now as ‘the new public management’, terms which mark a new emphasis on the role of management and managers in government. The reformers followed somewhat different paths in different countries, according to their particular constitutional traditions and ideological leanings. None the less, the reforms shared sufficient common themes and common remedies to be counted as a single movement and not just a haphazard collection of isolated changes. The broader context for reform was provided by the worldwide ideological shift away from a more extensive role for the state in the economy and society and towards a greater role for markets and private sector organisations. Examples of this change can be found in a range of policies almost universally adopted, for instance financial deregulation, trade liberalisation, privatisation of publicly owned enterprises, outsourcing of government services, reductions in welfare entitlements, greater reliance on the private sector in health and education, more private sponsorship of sports and the arts and so on. A common assumption underlying all such changes is that governments tend to be less efficient than competitive markets in stimulating economic activity and providing social goods. Governments and laws may be necessary for law, order

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Page 152 and national security, and for a minimum of other public goods that markets will not provide. But levels of taxation and government expenditure should not be so high as to discourage individual initiative and crowd out entrepreneurial investment. The general antagonism towards governments encouraged criticism of the traditional public service bureaucracies through which governments have performed their tasks. These bureaucracies have shared certain characteristics, classically analysed by the German sociologist Max Weber, such as strict hierarchy, the impartial application of laws and rules, merit appointment, professionalism and security of tenure. The Weberian bureaucracies were radical innovations when first established in Europe in the nineteenth century, providing a welcome antidote to government unreliability, jobbery and corruption. But they now appeared inefficient and ill-adapted to a rapidly changing environment. Hierarchical control, it was argued, has fostered over-centralisation, with time-consuming referral of decisions to more senior levels, reluctance to take risks and insensitivity to local conditions. The emphasis on rules and precedents has further encouraged inflexibility and red tape. Bureaucrats have been obsessed with following due processes and correct procedures to the neglect of achieving the outcomes desired by the community. Their security of tenure has made them a law unto themselves, concerned more for their own privileges than for the public interest and able to capture and dominate their supposed political masters. By contrast, private sector companies were seen as much more focused on achieving bottom-line results for their owners. They accorded their managers at all levels of greater autonomy in deciding how results should be achieved, including the right to hire and fire staff as needed. Some large-scale commercial enterprises, such as banks and major manufacturing companies, also acquired bureaucratic tendencies, becoming over-centralised, inflexible and inefficient. But market competition forced them to adopt flatter managerial structures and to devolve decision-making in the interests of efficiency and survival. Similar pressures needed be brought to bear on public bureaucracies to make them less inefficient (New Zealand Treasury, 1987; Osborne and Gaebler, 1992; OECD, 1995a). The overarching theme of the new public management was therefore to reform the public sector along modern, private sector lines. The earlier assumption that management of the public sector (usually described as ‘public administration’) is fundamentally different from business management has been discredited. Instead, management is seen as a set

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Page 153 of generic skills and mechanisms applicable across all sectors, with business management providing the leading examples (or ‘best practice’ in the managerialist jargon). Business management consultants have become the main purveyors of reform, with public administration academics cast in the residual role of conservative sceptics. Given that business management itself is subject to shifting trends and fashions, the content of the new public management is itself somewhat fluid. None the less, certain general strategies have recurred. First, the public sector is to be ‘marketised’ by the introduction of market-style processes, such as the corporatisation and privatisation of government enterprises, the competitive tendering and outsourcing of government services and the introduction of user charges for government services. Secondly, managerial autonomy is to be increased (‘let the managers manage’) by the devolution of decisionmaking, by relaxing central controls over matters such as personnel and accommodation and by encouraging agencies engaged in delivering public services to be more responsive to individual clients and local communities. Thirdly, emphasis is placed on managing for results, for instance through strategic planning, results-based budgeting and reporting, and the use of formal contracts to stipulate performance targets for external contractors and senior managers (‘make the managers manage’). Fourthly, in the interests of clarifying objectives, multipurpose departments are disaggregated into smaller, more focused agencies, by separating the purchasing and providing functions, for instance by creating separate executive agencies to deliver government services and by establishing separate monitoring agencies to review government performance. From this menu of private sector inspired reforms, some policies have been universally favoured, for instance outsourcing, strategic planning, and performance measurement. Others, however, have been adopted in different combinations in different countries (Hood, 1995; Kettl, 1997; Massey, 1997; Aucoin, 2002). For instance, the original New Zealand version (Boston et al., 1996) placed particular emphasis on clarifying and specifying objectives through performance contracts between ministers and agency heads and through disaggregating government departments while giving less attention to client responsiveness. Australia and Canada favoured managerial autonomy within large departments while the United Kingdom created numerous separate executive agencies and emphasised standards of service to individual members of the public. The United States paid less attention to strengthening top-down control but stressed devolution, the empowerment of lower-level bureaucrats and client responsiveness.

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Page 154 While the main rationale of the new public management reforms has been to increase value for money (efficiency) and to improve the quality of outcomes (effectiveness), some weight has also been given to accountability, both as a value in its own right and as a means of improving efficiency and effectiveness. From the perspective of the private business sector, public sector accountability is clearly deficient, particularly in terms of achieving measurable results. The relatively clear and quantifiable ‘bottom line’ objectives enjoyed by commercial companies (Chapter 4) allow them to be held highly accountable for their performance and provide incentives to further improvements in performance. By contrast, the goals of public sector agencies are typically imprecise and unarticulated. Because public servants have been unconcerned about reporting their achievements in terms of measurable results, they have lacked incentives to improve efficiency and effectiveness. Moreover, government departments have often been called on to fulfil several conflicting roles, such as advising on policy as well as implementing policy and monitoring performance, which further confuses their objectives and blurs their accountability. If objectives remain obscure and agencies are not held accountable in terms of clear performance criteria, government agencies are not only encouraged to be inefficient and ineffective but are also less easily subjected to political control. Elected leaders have difficulty in imposing their own policy directions and authority on the professional bureaucracy unless they can secure their officials' commitment to clearly articulated objectives. Lack of clear objectives and performance criteria therefore encourage bureaucratic capture of policy-making and compromise the democratic accountability of governments to the legislature and the public through the authority of elected politicians (New Zealand Treasury, 1987). One of the aims of managing for results has been to strengthen political control over bureaucracies and reduce bureaucratic influence over government policy (Campbell, 2000). Another accountability deficiency claimed for the public sector in comparison with the business sector has been in the level of responsiveness to the members of the public who must deal directly with government agencies (for example, OECD, 1987; Osborne and Gaebler, 1992). The absence of market competition and incentives encourages an attitude of high-handed indifference to the public and makes ‘street-level’ public servants less accountable than their commercial counterparts to their respective ‘clients’ or ‘customers’. How far such market-led responsiveness to the needs of customers is to be counted as ‘accountability’ is a matter of dispute (Chapter 1). While advocates of private sector

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Page 155 models tend to classify all such responsiveness as accountability, the present study has adopted a stricter approach, confining particular accountability (that is, accountability for individual treatment) to ‘voice’ mechanisms, whereby the client or customer can actually call the organisation to account. Responsiveness based simply on the capacity of the customer to take his or her business elsewhere is not included in accountability. Even with this restriction, however, the criticism can still be levelled at public sector agencies that their monopoly position has allowed them to be less scrupulous in the exercise of their accountability obligations. Competitive commercial companies, in comparison, lose custom if they do not answer customer complaints quickly and fairly. If the public sector appears deficient in providing accountability for results and accountability to individual members of the public, it is also thought to suffer from excessive accountability in other respects. For instance, the accountability of political leaders to the public for all actions of their departments and officials gives them and their senior officials the reciprocal right to intervene at any point in departmental decisions through the hierarchical chain of accountability and control. According to managerialist critics, such political interference with the detailed application and administration of government policies can curb the proper autonomy of managers and frustrate the purposes of sound policy-making. The new public management is thus highly ambivalent about political control and accountability. Though it seeks to assert political direction over an apparently wayward bureaucracy, it also wants to liberate bureaucratic managers from political interference. For this reason, it prefers independent regulators rather than elected politicians as protectors of the public interest. Regulators, having little incentive to intervene for short-term electoral purposes, are seen as more likely to keep to their stipulated brief. In addition, the stultifying bureaucratic emphasis on due process and rule-following is, in part, a problem of too much accountability for the wrong things, for processes and inputs rather than outputs and outcomes. Public servants are most likely to be called to account for supposed breaches of procedure or for spending on certain types of expenditure, such as travel or employing high-paid consultants. The prospect of such accountability, particularly from point-scoring legislators and the media, makes bureaucrats unduly cautious and risk-averse and therefore contributes to inefficiency. The simplest and most radical method of changing the accountability regimes of public agencies has been to transfer them wholly to private ownership. In this way, privatised organisations and their managers, at

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Page 156 least in theory, are exposed to the rigours of competition and commercial ‘bottom-line’ accountability while at the same time being released from the more restrictive aspects of public sector accountability. Any residual public interest concerns are to be enforced through arms-length regulatory bodies with clearly defined terms of reference rather than by open-ended political control. The remaining public sector, though it cannot be fully privatised, can still be brought closer to a more business-like accountability structure with managers given more freedom to achieve measurable results. An accountability agenda therefore suggests itself as an integral part of the new public management reforms: first, with respect to the subject matter of accountability (for what?), agencies and their managers should be held more accountable for results in terms of clear and measurable objectives set by their political masters, while becoming less accountable for inputs and processes; secondly, with respect to the channels of accountability (to whom?), agencies and their managers should become more accountable to individual members of the public and to independent regulators, while becoming less accountable through the normal channels of political accountability. Reform advocates have sometimes described this agenda as designed to increase the accountability of government as well as its efficiency and effectiveness. However, such a description obscures the extent to which accountability is in fact to be reduced, particularly through the reduction in political accountability to politicians and legislatures as well as in accountability for inputs and processes. The reforms should more accurately be described as an attempt to reconfigure public sector accountability along business lines and so to remove, or at least radically reduce, the contrast between accountability in the two sectors. Accountability in terms of objectives As with new public management itself, all countries have experienced the main elements of the accountability reform agenda, though the particular emphasis has varied from country to country. The New Zealand approach, for instance, stressed upwards hierarchical accountability through tightly drawn contracts whereas the United States sought to foster devolved accountability to customers and clients. The key component on which all have agreed is the need to make the public sector more accountable in terms of clear and measurable objectives. All countries have embraced this accountability-by-objectives strategy as part of a broader movement to make government agencies and officials more goal-oriented. This strategy has been extended beyond core government

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Page 157 departments to cover statutory bodies, including many publicly funded organisations, such as schools, universities, hospitals and police forces, which had hitherto relied much more on professional selfregulation. It is now standard practice for all public agencies to adopt statements of general purposes and values, known variously as ‘missions’, ‘visions’, ‘values’, ‘goals’ and so on. Within the framework set by these general goals, agencies are commonly required to specify more precise targets or outputs as well as performance indicators by which their progress can be measured. The articulation of specific targets and performance indicators in turn facilitates monitoring by specialist review bodies, such as government auditors and other regulators. These bodies can assess performance in terms of given objectives without appearing to trespass on the government's task of setting goals. Central financial and coordinating departments everywhere have devoted great effort to establishing guidelines and designing structures intended to reorient agencies towards specifying and measuring objectives. The new emphasis on objectives has often been linked with reforms to budgeting and financial reporting frameworks (OECD, 1995b, 1997; Peters, 1995, pp. 263–70; Guthrie et al., 1997; Wanna et al., 2000, Chs 7 and 8). Managing for results has encouraged results-oriented budgeting in which funds are allocated for particular programmes or purposes. A change in budgeting also normally entails an equivalent change in annual accounts and reporting whereby agencies report to the legislature on their expenditure in terms of the new results-based categories. The earliest instance of results-based budgeting antedated the new public management reform movement by several decades. ‘Program budgeting’ was introduced in the United States during Second World War and greatly expanded in the 1960s as the Planning, Programming, Budgeting System (PPBS) (Peters, 1995, pp. 264–6). Under programme budgeting, funds are allocated to particular programmes, understood as collections of policies designed to achieve given objectives. Ideally, each programme is to be justified against alternative programmes which are also costed in terms of results expected from given inputs. Programmes that have been funded are then expected to report on their performance, providing clear measures of how far their policies have met their given objectives. Programme budgeting was also attempted by most United States state governments as well as by Canadian governments but it met with varying degrees of success. Its full provisions proved over-ambitious and it largely fell out of favour in the 1970s (Kernaghan and Siegel, 1999, pp. 624–9). Results-based budgeting and reporting have been revived and refined as part of the new public management, often using the concepts of

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Page 158 ‘outcomes’ and ‘outputs’. ‘Outcomes’ refer to the desired impact of government activities on society (for instance improved literacy) while ‘outputs’ are the goods and services produced by government agencies to assist in the achievement of outcomes (for instance a school reading programme). In the New Zealand system introduced in the late 1980s, for instance, elected ministers accountable to Parliament and the electorate chose desired outcomes and agreed to purchase certain outputs from government agencies as means towards these outcomes. Agencies and their chief executives are then accountable for producing the outputs as specified. The intention was to clarify the accountability of chief executives and their departments by restricting it to matters for which they were fully responsible, that is the actual goods and services they produced. To hold them accountable for the social impact or outcomes of their policies would introduce too many complications and imponderables and allow them to escape accountability. As part of the annual budgeting process, therefore, departments provide a statement of objectives, listing the outputs to be produced for the following year and the performance criteria for assessing the achievement for each class of output, including information about their quality, quantity, cost and delivery times. The annual report includes a retrospective report of actual performance, using the same format and criteria. In practice, the separation of responsibility and accountability for outcomes and outputs has proved unrealistic and unworkable (Schick, 1996). Ministers and legislators naturally take an interest in the details of government programmes while public servants cannot avoid being concerned about the wider social impact of their activities. Some output-based budgeting and reporting systems have therefore not sought to separate accountability for programmes and the effects of programmes. The Australian Commonwealth, for instance, operates a financial reporting framework which requires officials to consider both outcomes and outputs. While specifying desired outcomes remains the responsibility of ministers, agencies and their heads are accountable not only for particular outputs but also for the contribution these outputs make to the specified outcomes. When reporting, agencies list their outputs, assessed under a number of specified output indicators relating to quantity, quality and price. In addition, they are also required to assess the effectiveness of these outputs in terms of how far the outputs have met their agreed outcomes, again using a number of agreed effectiveness measures. A results-based performance structure, with goals, targets and performance indicators, need not be fully integrated with the budget but can

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Page 159 coexist with a system of appropriating funds on a quite different basis, including traditional line-item budgeting. Canada and the United Kingdom both developed departmental performance statements independently of the formal budget during the 1990s. In the United States, too, emphasis during the 1990s was placed primarily on developing strategic goals and measurements of performance alongside existing budgetary frameworks. The Government Performance and Results Act 1993 required agencies to develop a strategic plan over five years as well as annual performance plans and annual programme performance reports. Performance plans and reports were to include relevant indicators and provide a basis for comparing results with performance goals (Radin, 1998; Schick, 2000, pp. 262–6). The full integration of planning and financial systems has remained an ultimate goal for reformers of bureaucracies everywhere, and Canada, the United Kingdom and the United States have all moved in this direction. Only when every objective or output can be separately costed and measured, it is argued, will managers be able to exercise the degree of financially based control that is standard in the commercial sector. The precise details of reform may vary from country to country, depending on the political agenda and opportunities for reform available to governments and senior public servants. The overall thrust, however, is similar: to make government more accountable for results and to introduce a greater degree of ‘bottom-line’ accountability in terms of specifiable, measurable and costed objectives. A common method for specifying desired objectives is through a formal agreement or contract. For instance, when services are outsourced to the private sectors, contracts form the basis of agreements between governments as purchasers of services and the external organisations who are to provide the services. Governments, whether through elected ministers or officials, spell out what they want from the contractors and then hold the contractor to account for performance in terms of the contract. Because the government is dealing with independent organisations, it needs to be more specific about its requirements than with public service departments under its day-to-day control. Contracting out can therefore improve accountability for results by encouraging more specifiable and measurable results. The benefits of contracting between purchasers and providers have also been sought internally, within the government sector. For instance, competitive tendering for the provision of public services does not always lead to outsourcing from a private provider. In some cases, in-house bids have been allowed from within the government, typically from the

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Page 160 agency section previously responsible for providing the service. Thus, an agency's cleaners or its information technology section may tender for the agency's business in competition with outside providers. Where such bids are successful, the government ends up purchasing from a section of itself, but at least the section has been forced to identify its cost structure and specify its intended output in advance. Because the government is not legally able to contract with itself, such internal agreements do not have the full legal force of normal contracts and are not enforceable in a court of law but instead rely on executive direction for implementation and enforcement. None the less, they offer benefits similar to those of formal contracts by encouraging accountability for performance on the basis of the service providers' prior commitment to deliver agreed outputs. More extensive use of internal contracting has been applied to executive agencies, separate service delivery agencies created within the executive branch of government. The term ‘executive agency’ applies most aptly to agencies such as the United Kingdom ‘Next Steps’ agencies or the Canadian Special Operating Agencies which have been established within the existing departmental structure but with considerable managerial autonomy. Other countries, such as New Zealand and Australia have preferred the statutory authority (or ‘crown entity’) structure under which agencies are formally created by legislation. Canadian ‘service agencies’ are similarly established under legislation (Zussman, 2002, p. 59). The United States, too, has established a number of ‘performance-based organizations’ under separate statutes (Roberts, 1997). Whatever the institutional format, the rationale is the same – to create separate agencies focused on providing specified services – and the generic term ‘executive agency’ is therefore not inappropriate. Executive agencies are based on the same principle of dividing the functions of purchasing and providing which also underlies outsourcing and competitive tendering. The relationship between the two sides, the purchasing government or department and the providing agency, is regulated in the same way by a formal agreement or contract. In terms of accountability, the institutional structure is designed to achieve the same improved results as outsourcing and for the same reasons. Institutional separation places a greater premium on formal agreements as means of coordination, while the greater clarity of function allows greater precision in specifying desired objectives or outputs. In theory, at least, ministers and purchasing departments will be held accountable for matters of general policy and funding while service delivery agencies will be accountable for detailed decisions taken to provide the services

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Page 161 for which they have been funded. Thus, it is argued, accountability for results will be improved not only through the need to reach a formal contract or agreements but also through the narrowing of the respective spheres of responsibility for each party (Molander et al., 2002, Ch. 6). The extent to which outputs are specified varies with the nature of the service and the type of contract entered into. Some activities which are clearly specifiable, such as cleaning or rubbish collection, are typically dealt within classic contracts which spell out all the necessary conditions in advance and provide clear standards for measuring satisfactory performance (Chapter 1). Other services, however, are more complex and open-ended and require the contracting parties to engage in ongoing adjustment to unforeseen future contingencies. Contracts therefore tend to be of the relational type, sometimes described as ‘partnerships’ (Glendinning et al., 2002) or ‘alliances’ following private sector usage. The parties agree to work together under certain terms and conditions, which may include specification of periodic purchase agreements, but leave many of the details open, to be worked out later according to agreed procedures. Relationships between the parties are thus closer to networks, in which partners cooperate for shared objectives, than to market-style dealings where the parties pursue their own selfinterest through clearly specified agreements (Chapter 2). Accountability is achieved not only through performance of agreed outputs but also, as in networks, through the commitment of the parties to communicate and deliberate with each other. Common examples of partnership contracts are contracts to supply a continuing corporate service to a government agency, for instance information technology or personnel services, and contracts to provide a long-term community service, such as nursing home care or welfare assistance. Internal contractual relationships, including accountability for specified results, have also been applied between ministers and agency heads within the core executive itself. In New Zealand, for example, departmental chief executives signed annual formal ‘performance agreements’ with their portfolio ministers in which the goals and standards expected from chief executives were set out under a number of headings, including departmental performance, personal performance and reporting requirements. This document provided a basis for the chief executive's conduct to be monitored by both the relevant minister and the State Services Commissioner, a senior public servant with overall responsibility for the management of the public sector. The performance agreement was also linked to the department's ‘purchase agreement’, another formal agreement between departments and financial ministers in which each

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Page 162 department agreed to provide certain goods and services as specified and funded in the annual budget. Similar performance agreements between ministers and agency heads have been instituted in some of the Australian states and territories. Again, such agreements are not justiciable contracts and their force derives primarily from the right of elected ministers to issue instructions to their department heads and not, as in the case of a true contract, from the fact that both parties have agreed to the stated terms. The contractual format merely provides a graphic way of spelling out the government's desired objectives and of underlining the public servants' professional commitment to pursue these objectives and their readiness to be held accountable for achieving them. Quasi-contractual ‘agreements’ have also formed an important part of the United Kingdom's public sector reform programme. Public Service Agreements (PSAs) were established for all major departments and for a number of important cross-departmental objectives. Each PSA includes statements of general aims and objectives, broken down into more specific targets, with performance measures and ‘milestones’ to measure progress. This structure was later supplemented by the addition of Service Delivery Agreements (SDAs) intended to concentrate more directly on improving the efficiency and effectiveness of departmental performance. The language of agreements in such cases is largely metaphorical, to signify commitment to specific objectives. A similar purpose can be met by simply setting out the objectives required from an agency or an individual and then holding the agency or official to account in terms of whether they have achieved the stated objectives. Indeed, this more straightforward format, without the additional trappings of a contract or agreement, has been adopted in other jurisdictions. For instance, the United States Government Performance and Results Act (1993) simply requires each government organisation to develop annual performance plans with annual performance goals and indicators to measure performance, a format also adopted for the Canadian Departmental Expenditure Plans. Similarly, the Australian Commonwealth government's ‘outcomes and outputs’ framework also makes departments state their objectives and how their performance will be measured. The widespread use of contractual language, however, even when it is not strictly applicable, reflects a determination to hold public servants accountable in terms of precise objectives of which they have full knowledge and which they are obliged to deliver. If results-based accountability is to increase accountability to the public, objectives must be clearly articulated and performance clearly

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Page 163 measured. Unless outputs and outcomes can be precisely defined and accurately measured, agencies cannot be effectively held accountable for results and the attempted reform will founder. The institutional advocates of reform, such as finance departments and government auditors, have devoted considerable effort to helping agencies identify accurate indicators of performance. Indeed, many areas of government activity do lend themselves reasonably well to quantitative measurement. Service delivery agencies can be expected to quantify and publish their outputs, such as numbers of passports issued, complaints handled or students graduated. Unit costs can be estimated and compared, for instance in the construction of infrastructure (cost per kilometre of building a freeway), the management of public hospitals (cost of intensive care per patient per day), the processing of tax returns (cost per return processed) and so on. In the past, such information was not always freely available and, indeed, was often not even collected by government agencies. Quantitative measures on their own, however, are usually inadequate and need to be underpinned by assessments of quality. Assessing quality entails relying on the judgment of those with relevant knowledge and experience. In some cases, such experts will be fellow professionals called on to review the work of their peers. In areas such as health and education, professional review bodies have proliferated as part of the demand for increased accountability of state-funded professionals. Alternatively, the appropriate judge is the end-user for whom the service is intended. Thus, ministers and agency heads are asked to evaluate the quality of the policy advice they receive from their advisers. Members of the public dealing with government agencies are surveyed in order to assess their levels satisfaction with the quality of service offered. The new emphasis on objectives and performance has certainly helped to make government bureaucracies more accountable in certain respects. The very process of attempting to formulate goals and directions provides a framework in which agencies and officials are required to direct their activities towards goals formally endorsed by their political leaders. In so far as articulating objectives and performance indicators has made bureaucrats more subject to explicit political direction through the hierarchical chain of command, political accountability has been improved. In addition, accountability to other external monitoring bodies, particularly government auditors and other specialist regulators, has been facilitated by the publication of detailed performance information. In general, public accountability has benefited from

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Page 164 greater awareness of what governments are intending to achieve and of how well they have achieved it. However, reformers have not succeeded in refashioning public sector accountability on business lines, with objectives as comparatively unambiguous and measurable as those in the commercial private sector. Performance in the public sector often cannot be measured with the degree of accuracy which is regularly achievable in business (Day and Klein, 1987, p. 28; Savoie, 1995; Behn, 2001, pp. 107–10). Not that the objectives of individual businesses are always unambiguous and uncontested (Chapter 4). But their objectives are usually sufficiently clear and their results sufficiently measurable to allow owners and investors to judge them adequately in such terms. Commercial managers can be given comparative autonomy in the choice of means because there will be little doubt about whether they have achieved the desired ends. In the public sector, however, objectives tend to be politically contested and policy-making is more a matter of ongoing negotiation and adjustment between competing values than the setting of clear targets with unambiguous criteria of success. Most government agencies are required to react to complex and shifting political imperatives which makes their objectives impossible to specify in advance, except in very vague and imprecise terms, such as ‘furthering the nation's health’ or ‘protecting the environment’. If the objectives are often contestable so too are the indicators of successful performance. Qualitative evaluations entail judgments of value which, again, are subject to dispute. What is to count as good quality health care? Indeed, whose opinion should be sought, the patient's or the health professional's? Who should judge the quality of a policy report, the government, the opposition, journalists or the public? All can make a legitimate claim to be heard. In the face of intractable disagreements over quality, recourse is sometimes made to supposedly more objective quantitative indicators. Hospitals are assessed in terms of patient throughput or length of waiting lists rather the quality of care. Schools are ranked by performance in standardised national tests rather than through a more nuanced judgments of the quality of education provided. But holding public agencies accountable in terms of such partial, inadequate measures can lead to goal displacement and perverse incentives (James, 2000; Moran, 2001, pp. 30–1; O'Neill, 2002). Public service providers are encouraged to concentrate on scoring highly on the stated indicators at the expense of other, less tangible objectives, thus distorting the goals of their organisations. Increased accountability in terms of misleading measures can be worse than no quantifiable accountability at all.

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Page 165 The goal of financial reformers, that public service managers would be able to use integrated financial and performance information as a guide to management decision-making, has often proved illusory. Performance-based accounting tends to be implemented by financial officers as a separate, after-theevent exercise, while political leaders and senior managers make their decisions as before, in response to a complicated and changing political environment. Legislative committees and government auditors frequently complain that much of the new financial reporting is too imprecise, consisting of vague objectives backed up by uninformative performance indicators. The attempt to remodel government financial accountability on the means/end format typical of business financial planning, though yielding some benefits, has been oversold by its proponents. Nor has the strategy of disaggregating public institutions into smaller, more sharply focused agencies produced the hoped-for clarification of objectives. In theory, for instance, the purchaser–provider split was intended to make each agency more clearly accountable for a more specific objective, either purchasing or providing, in place of the more blurred goal of a traditional department which combines both policy-making and policy-implementation. However, the fact that most purchaser– provider relationships depend on relational or partnership contracts rather than classic contracts indicates that the respective goals of the two parties cannot be clearly separated. Partnerships entail cooperative action for common goals where responsibility for outcomes is shared rather than divided. Moreover, the new emphasis on inter-agency cooperation and ‘joined-up’ government to deal with major policy problems is extending the reliance on partnerships and networks at the expense of single agencies with distinct objectives and clear lines of internal accountability. Within such a comparatively fluid structure, accountability for objectives becomes even more problematic (Flinders, 2002a). Accountability needs to rely more on ongoing political and professional judgments than on strict reporting against predetermined objectives (Romzek and Johnston, 2001). The public and their representatives are far from uninterested in the results of government policies or in holding governments to account for results. When results are clear, tangible and relevant, particularly in the case of adverse results, public calls for accountability are loud and insistent. If welfare payments are delayed or emergency services are slow to arrive, people want to know why, and the government's political opponents often lead the charge. Reports of clearly inefficient and ineffective programmes, such as an expensive drugs crack-down which

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Page 166 fails to lower the availability of drugs or a new weapon systems which never works, are often widely publicised and force governments into taking remedial action. Public catastrophes such as the mad cow disease outbreak in the United Kingdom or the tainted blood supply in Canada provoke prolonged and searching inquiries in the name of public accountability. However, such unambiguous outcomes are the exception, not the norm. For the most part, the results of government action are unclear and their value is contested. The reformers' holy grail of a bottom line for governments and public agencies remains a delusion. Reducing accountability for inputs and procedures For the reformers, a reorientation towards results is not in itself sufficient to guarantee the improved efficiency of government agencies. It must also be accompanied by a relaxation of the supposedly crippling controls over inputs and procedures. Again, the model is the commercial private sector where managers are subject to much less scrutiny than their public sector counterparts over how they allocate funds or the procedures they follow in making company decisions. In terms of resources or inputs, the key issue in the private sector is the total amount expended to achieve a given result, an amount that helps to determine the level of efficiency (defined as the ratio of inputs to outputs). Managers are required to return a certain level of output or profit but are given a relatively free hand in deciding how to achieve it, a ‘tight–loose’ model of delegation in which the ends or objectives are tightly controlled but the choice of means towards these ends is largely left to the manager's discretion (Chapter 4). There is less concern over individual items of expenditure, such as amounts paid to consultants or stock options for executives, so long as the bottom line of profitability is guaranteed. Only if the company's fortunes and its share price begin to decline do shareholders begin to criticise levels of executive remuneration. In the public sector, on the other hand, the public and their representatives tend to take a keen interest in individual payments, alert to any apparent extravagance in the expenditure of public funds, regardless of its effect on outputs or outcomes. Similarly, before reaching decisions, government bodies are often obliged to consult widely among relevant stakeholders, such as industry associations and community groups. Appointments to government positions or the awarding of government contracts are expected to be open to every qualified citizen on equal terms. Favours for friends and relations, which occur as a matter of course in the private sector, count as corruption if committed by public servants. To protect these values of democratic equity and consultation,

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Page 167 government bodies are subjected to a large array of rules and procedures which inevitably tend to slow up the process of decision-making, increasing costs and thereby reducing efficiency. Thus, the move to increase government efficiency has involved an attempt to trade-off accountability for inputs and processes in return for improved accountability for results. One area where accountability for inputs and process has been reduced is in employment conditions which have been made more flexible and less rule-bound. For example, in many jurisdictions, responsibility for making appointments and setting salary levels in the public service, previously determined by a central public service board or commission, has been largely devolved to individual agencies. Rights of appeal against appointment and promotion decisions have been reduced, along with security of tenure. Greater autonomy and flexibility have sometimes been accompanied by greater secrecy about the terms of employment contracts, particularly at the more senior levels. In addition, the introduction of programme budgeting or outputbased budgeting typically requires an end to budgeting and reporting in terms of inputs or ‘line items’, such as staffing or buildings. Members of the public and legislators who wish to hold governments accountable for the amounts they spend on particular types of input, for instance on salaries or accommodation, now often find that information unavailable. The intention is deliberate, to wean legislators and the public from what is seen as an unhealthy obsession with inputs which, in turn, feeds a similar emphasis among public servants. In the interests of efficiency and effectiveness in public services, both sides are being encouraged to focus more on outputs and outcomes. Accountability for inputs and process is most clearly reduced when the provision of public services is outsourced to the private sector. Private contractors are primarily held accountable in terms of results, for providing certain outputs at a certain cost, whether specified directly in the contract or to be negotiated according to agreed procedures. How they go about meeting these obligations is usually left to their discretion, far more than when the service is provided by a public agency. Information held by private organisations is not available to the public and its representatives in the same way as information in public agencies (Bunker and Davis, 1998). For instance, once a service is outsourced, the amounts of money paid to individual members of the outsourcing contractor become commercially confidential to the contractor and beyond the range of public inquiry. Indeed, they also tend to fall outside the range of public curiosity. In Australia in the late 1990s, the Commonwealth government adopted a policy of compulsorily

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Page 168 outsourcing the information technology requirements of all Commonwealth government agencies. When the Auditor-General subsequently reported that expected savings had not been forthcoming, the policy came under sustained public criticism. In public debate, much was made of the sums earned by a consulting firm employed by the government to oversee the outsourcing policy. But no interest was taken in any salaries or fees enjoyed by the successful contractors in the course of carrying out their contracts. The extent to which contractual arrangements between governments and private contractors should be kept confidential has been the subject of considerable debate. The rationale for secrecy is that contracts contain commercially sensitive information which, if revealed, could damage the interest of the contractors in relation to their competitors. Private contractors, it is argued, will be less willing to tender if they know that the terms of contracts will be published, thus reducing the benefits to be gained from outsourcing to the private sector. This argument is commonly abused in practice. Contracts have often been kept confidential simply because private contractors are not in the habit of revealing commercial information, regardless of whether it is potentially damaging. At the same time, governments willingly suppress information that could be used against them by critics and opponents. The claim of ‘commercial-in-confidence’ has thus often been a spurious cover for ‘politically embarrassing-inconfidence’. Complaints from accountability bodies such as legislative committees and government auditors have pared back the confidentiality of outsourcing contracts (Freiberg, 1999) and have generally succeeded in establishing that private sector companies must accept a higher degree of public scrutiny if contracting with governments. None the less, public interest in contractors' activities is confined more to outputs and outcomes than to inputs and processes. Disputes over commercial confidentiality tend to centre on access to information about what governments have done, over how much they have paid to whom and for what. What contractors themselves decide to spend in fulfillment of their contracts is assumed to be their own business and not a matter of public concern, even though taxpayers' funds are involved. Outsourcing removes the public spotlight not only from how much is spent but also from who is employed. All positions in the public service are subject to principles of merit appointment, meaning that applicants must be assessed fairly in terms of relevant criteria without the influence of cronyism, nepotism or sexism. Once the function is transferred to a private contractor, however, such expectations are removed. For instance,

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Page 169 few object if the private cleaners contracted to clean a government building are all from the same ethnic group or even from the same family. On the other hand, if the same cleaners had been appointed as government employees such an outcome would be considered scandalous. In relation to outsourcing, concerns about merit certainly enter into the contracting process itself. Ministers and officials are still accountable for awarding contracts to the most deserving and for avoiding cronyism and other corrupt influences. However, as with the details of contracts, the emphasis is on the government rather than the contractor. Once the contract is let, the employer is generally free to follow private sector instead of public sector standards. Admittedly, private employers do face some restrictions on appointment practices, for instance under anti-discrimination legislation, and some further equal employment conditions can also be written into contracts. But, overall, the restrictions are fewer than in the public sector (Rainey and Bozeman, 2000, pp. 457–9). Indeed, freedom from public employment conditions is one of the main sources of savings from outsourcing, particularly in the less skilled functions such as cleaning, gardening and rubbish collection. Appointing one's friends and relations is much cheaper and quicker than advertising, taking up references and holding interviews. In addition, pay rates and other conditions of employment at the lower end of the scale tend to be less generous in the private sector and thus allow for considerable savings in the provision of unskilled services. Thus, outsourcing clearly reduces the overall extent of public concern over how public money is spent and correspondingly restricts the levels of accountability for inputs and processes. The public still want contractors to be held accountable for results but they are less interested in the means by which these results are achieved. However, in the remaining government sector, hoped-for reductions in input and process accountability have been less forthcoming. Even when decisions have been devolved to lower levels of management, public questions continue over politically sensitive input issues such as levels of payment to individuals. Though legislative committees have generally welcomed the new emphasis on results, particularly when it delivers meaningful information and not just empty platitudes, they have been reluctant to surrender their traditional concerns over inputs and processes (Polidano et al., 1998, pp. 283–4). In Australia, for instance, Commonwealth departments have been required in their annual reports to list details of expenditure on external consultants, a provision that reflects suspicion of extravagant and uncontrolled use of taxpayer funds, though it cuts across the

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Page 170 new results-focused philosophy. Government auditors, in some ways the most comprehensive monitors of public agencies, continue to pursue financial irregularity and impropriety as their major priority. Indeed, auditors are often on firmer ground when pursuing faults of process rather than criticising results because questioning outcomes can more easily lead to charges that they are trespassing on policy and overstepping their mandate (Mulgan, 2001). To the disappointment of many reformers, the incentives for most bureaucrats still encourage the correct application of procedures ahead of risk-taking to improve outcomes (Behn, 2001, pp. 27–30). In these respects, government institutions are not so much stuck in their own entrenched traditions as following the continuing demands of the public. Private sector critics may look on the bureaucratic concern with process and red tape as the perverse abuse of a monopoly position. But bureaucrats and the political masters are simply responding rationally to their political incentives (Savoie, 1995). Public opinion, as reflected in the media and among legislators, still places a high premium on values such as fairness, propriety and parsimony in the conduct of government business. Relaxation of standards may be acceptable when functions are transferred to non-government organisations but less so among public servants. Continuing support for procedural values of fairness and due process in the public sector has been reinforced by the growing importance of administrative law and other quasi-judicial types of individual remedy (Chapter 3). In many respects, the values of administrative law are at odds with those of the new public management, the legal approach stressing process while management concentrates on results (Zifcak, 1997). Public officials whose actions are subject to potential scrutiny from courts, tribunals or ombudsman cannot afford to be cavalier about following correct procedures or keeping strict records. Public sector managers may sometimes be able to get away with adopting a few of the more free-wheeling practices of their private sector counterparts. But the public, on the whole, do not appear to welcome a trade-off of due process and equitable treatment for the sake of lower costs or improved outcomes. Indeed, the reform movement itself, somewhat perversely, has led to an increased concern for certain types of process (Hood etal., 1999, Ch. 3). Exchanging internal political control for external regulation has meant that agencies must now report to a wider array of external bodies. Even if the information demanded is related to the agencies' outputs and outcomes, the initial collection of such information depends on careful

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Page 171 attention to record-keeping and on following correct procedures in assembling the required information. Reporting on results requires a mass of new form-filling and bureaucratic red tape. From this perspective, many public service managers have been overwhelmed with more paperwork rather than less, making the goal of increased managerial autonomy and flexibility a cruel irony. Thus, aside from the effects of transferring functions to the less accountable private sectors, the shift in values sought by the reformers has largely failed to eventuate. Increasing accountability to independent regulators and to clients/customers Another important aspect of the reform accountability agenda has been to shift the focus of accountability by increasing the accountability of government agencies in two directions, first, to independent monitoring or regulatory bodies and, second, directly to members of the public. The recourse to independent regulators is closely linked to the withdrawal of governments from direct responsibility for providing public services, the change from ‘rowing’ to ‘steering’ (Osborne and Gaebler, 1992). When public functions are transferred to the private sector, regulation takes the place of government control as a means of imposing public-interest concerns on independent providers (Rhodes, 2000). The use of independent regulators to safeguard the public interest is standard practice in the private sector and is naturally extended to newly privatised companies. For instance, in the case of wholesale privatisation of public utilities such as railways or telecommunications, specialised regulatory bodies have been established to which the newly private companies are accountable. Accountability to regulators is also applied to institutions remaining in public ownership, particularly to arms-length bodies, such as executive agencies and statutory bodies providing public services (James, 2000). Indeed, the recent expansion of public regulation has been more marked in the public sector than the privatised sector (Hood et al., 1999, Ch. 2; Moran, 2001, p. 25). New regulatory bodies have been established to monitor newly established executive agencies in areas such as prison services and social work. In addition, traditionally semi-independent publicly funded institutions such as hospitals, schools, universities and police forces face a new array of government regulators. In part, the extension of regulation is a response to general calls for greater government accountability quite unconnected with the public sector reform movement. In the United Kingdom, for instance, much of

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Page 172 the growth of regulation has been imposed by the European Union which has resorted to regulation in the absence of other resources of control (Majone, 1996). The main impetus overall, however, has come from key drivers of reform, particularly politicians and central bureaucrats distrustful of large government ‘line’ departments and state-funded professions. Monitoring by independent review bodies offers external scrutiny and control uncontaminated by the vested interests of providers. It thus complements the strategy of separating purchaser and provider which is similarly premised on distrust of political interference and professional capture. The ‘audit explosion’, as it has been dubbed (Power, 1994), builds on the reformer's faith in articulating clear goals and devising meaningful measures of their achievement. Once goals and performance indicators can be determined, an independent monitor, at arms-length from both opportunist politicians and self-serving providers, is more likely to give an unbiased assessment. The spread of independent regulation has been most marked in areas of government outside direct central government control, such as executive agencies and other statutory authorities as well as local government (Hood et al., 1999, Ch. 3). Even so, core departments have not been totally exempt, particularly from the wider range of performance audits conducted by government auditors. The expansion of government regulation has not been without its critics, particularly from members of the state-funded professions who complain of heavy compliance costs and perverse incentives due to inappropriate performance indicators (O'Neill, 2002). Where the boundaries should be set between external scrutiny and trust in professional integrity is a perennial issue in accountability design (Chapter 7) and one on which professionals themselves are far from unbiased judges. In the case of privatised industries, regulation has sometimes proved an ineffective substitute for direct political control and political accountability as a means of enforcing public interest concerns. As with private sector regulation generally (Chapter 4), regulators can become too easily captured by those they regulate and too unaccountable themselves for how vigorously they defend the public's interest (Baldwin and Cave, 1999, Ch. 20). But here the objection is more to the loss of other avenues of accountability, particularly political accountability through elected leaders and legislatures which is entailed by transfer to the private sector, rather than to regulation in itself. When regulation is considered on its own, rather than as a substitute for political accountability, its effects appear less questionable. Performance auditing of government departments by government auditors, for instance, has

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Page 173 proved a valuable supplementary mechanism of public scrutiny. Indeed, in the public sector, external regulation has often been introduced not as replacement but as a supplement to existing avenues of accountability. The other direction of accountability given increased emphasis is accountability directly to individual members of the public. The intention is to emulate the customer focus typical in the private sector where businesses are forced by market pressures to vie with their competitors in attracting and retaining custom. Thus, one rationale for the purchaser/provider split and the establishment of executive agencies is that local managers and street-level bureaucrats will be freed from day-to-day, ‘top-down’ interference from political leaders and central managers and will therefore be able to answer directly to their individual clients. Similarly, private organisations providing public services under contract, whether commercial or non-profit, will apply their accustomed sensitivity to the needs of customers or clients. Even if there is no actual competition for customers, the public sector will benefit from the private sector's culture of service. ‘Outwards’ or ‘downwards’ accountability (Chapter 1) will be improved, even if ‘upwards’ accountability through the hierarchical chain of command is somewhat reduced. As the analogy with the private sector suggests, the emphasis is on particular accountability, that is the accountability to members of the public as consumers of individual services. (Lodge, 2001). A number of mechanisms already exist for this purpose in the public sector, such as assistance from individual legislators (Chapter 2) or appeal to ombudsmen, tribunals or courts (Chapter 3). The advocates of reform, however, place especial weight on the initial stage, the approach made by the disgruntled client or customer directly to the service provider through internal channels such as the agency's own complaints procedures (Chapter 3). Strengthening complaints procedures is an important component of the broader thrust to improve the quality of service by emulating the customer focus of the private sector (Osborne and Gaebler, 1992, Ch. 6). A notable pioneer in this aspect of reform has been the United Kingdom Citizen's Charter (Falconer and Ross, 1999). As part of the Charter policy, government agencies have been required to publish and monitor standards of service to the public and to make themselves accountable to the public for maintaining these standards. Effective complaints procedures are seen as integral to the success of the Charter in improving the quality of service and in generating public confidence (Woodhouse, 1997, pp. 50–1). Similar charters have been adopted elsewhere for government agencies dealing with members of the public, often serving

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Page 174 more as a restatement and publication of existing rights rather than heralding major innovation. The Australian Commonwealth government, for instance, has made service charters mandatory for all agencies providing services directly to the public. Charters must include not only the standard of service that clients can expect but also clients' accountability rights, such as their right to review and appeal, their right to seek access to information (under freedom of information) and the various complaints procedures available to them. Whether the charters require the creation of new complaints procedures or simply greater publicity for existing procedures, they can be seen to have strengthened accountability to individual users. The language of charters is itself sometimes contractual, suggesting that the government is entering into an agreement with the citizen to provide a certain level of services and can be held to account if it fails to live up to its commitments. In this respect, the charter movement incorporates the contractual assumptions underlying much of the new public management. Alternatively, the charter may simply outline the agency's accepted standards of service and indicate how citizens can complain if they consider the standards have not been met in their case. As with some other instances of the new contractualism, such as purchase agreements between purchasing ministers and executive agencies, the contracts are not justiciable. In practice, the ‘contract’ between government agency and individual citizen is little more than a metaphor for a more general political and legal obligation to deliver services of a certain standard. In this respect, the parallel with the private commercial sector breaks down. Private businesses do enter into genuine, legally enforceable contracts with their customers through a commercial exchange or purchase. On the other hand, government agencies providing a state-funded service do not thereby contract with individual citizens, though they may be liable to legal redress. Where service provision is contracted out to a private organisation, though a genuine contract does apply, it is between purchaser and provider rather than between provider and client, as in the commercial sector. An agreement by a service provider to uphold a service charter including complaints procedures is part of a contract with the government as purchaser. The individual client is not a party to this contract and has no contractual rights of redress under it. Perhaps for this reason, the more contractually explicit versions of the new public management, such as New Zealand's, have tended to avoid introducing quasi-contractual relationships between governments and individual clients. Contracts are reserved for formal agreements between funders

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Page 175 and providers, leaving service to clients as a contractual obligation of the provider to the purchaser rather than of the provider directly to the client. The reformers' focus on service to clients, including the development of service charters, has not only improved the quality of public service but has strengthened the accountability of service providers to individual clients, particularly when the providers of service remain within the public sector. Some critics, however, have objected to the emphasis on the rights of clients or customers, arguing that it is intended to reduce, or even to supplant, other equally important aspects of public sector accountability (Moe, 1994; Savoie, 1995; Woodhouse, 1997, pp. 52–8; Thomas, 1998, p. 378; deLeon and Denhardt, 2000). The private sector language of customer service, it is argued, downplays the broader rights of citizens to hold governments accountable for the general direction of public policy. In the private sector, after all, accountability for general policy is a matter for owners and shareholders, while customers can complain only about individual service. Members of the public are thus being induced to content themselves with particular accountability, the right to question decisions in their own case, while being excluded from general accountability, the right to question the general direction of government policy. Moreover, their rights of particular accountability are also being cut back through reduced capacity to complain through their legislative representatives and political channels. For these reasons, the terms ‘customer’ and ‘client’, with their implications of individual particular service, are seen as dangerously restrictive in comparison with the more expansive ‘citizen’. The extent to which other avenues of political accountability are being reduced is discussed in the next section. For the present, two points can be made in partial response to the critics. First, terminology can be significant but is not necessarily crucial. Whether the rights of individuals in receipt of public services are ascribed to ‘customers’, ‘clients’ or ‘citizens’ in itself makes little difference. The United Kingdom Charter, which has been accused of downplaying the role of citizens, is not saved from that criticism simply by being formally described as a ‘Citizen's Charter’. More important is whether the new emphasis on particular accountability, however named, actually reduces the general accountability rights of citizens. Secondly, there appears to be no inherent reason why attempts to strengthen complaints procedures and other rights of particular accountability should inevitably lead to a corresponding reduction in the right to hold government accountable through other channels. Adding

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Page 176 service charters and customer rights can be a means of strengthening particular accountability without necessarily reducing the effectiveness of other rights of general accountability which can remain substantially intact. Citizens' representatives in the legislature can still investigate the direction of government policy and, in parliamentary systems, hold ministers to account for both general and individual decisions. Disgruntled citizens may still complain to ombudsmen and tribunals. Members of the public stand in the role of both citizen/owners and citizen/customers in relation to government and the two roles can be seen as complementary rather than mutually exclusive. If the new and newly publicised complaints procedures simply extend the range of available accountability channels for citizen/customers there can be little objection. However, if the new channels are intended to imply a parallel reduction in the rights of citizen/owners the changes become more questionable. Reducing political accountability As already indicated, most reformers aiming to increase accountability to regulators and directly to members of the public have also attempted to reduce other channels of accountability, in particular political accountability through elected politicians. The capacity of political leaders to intervene in the day-to-day administration of government departments has been seen as a major cause of government inefficiency. Ministers and their immediate advisers, it is argued, should confine themselves to setting the general policy directions and providing the necessary resources, leaving managers free to decide how to meet their given objectives in the most efficient and effective manner. Excessive political interference, particularly in matters of detailed administration, diverts managers from their proper task and may lead to bad decisions (Oliver and Drewry, 1996, pp. 36–9). Accountability for individual decisions is better handled directly to the public while accountability for general performance can be left with independent regulators. Politicians themselves have not been adverse to institutional changes which might absolve them from responsibility for unpopular actions (Chapter 6). Such an intended curb on political interference goes beyond the concern to reduce accountability for inputs and procedures in favour of accountability for results. The aim is also to reduce political accountability for outputs and outcomes, assuring managers that not every decision they make will be subject to questioning through the political process (Moe, 1994). The surest method of reducing political accountability is

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Page 177 outright privatisation which severs all links between governments and providers, forcing reliance on other avenues of control such as legislation and regulation. Attempts to limit political accountability have also been evident where governments have retained overall responsibility but have formally decoupled the provision of public services either by outsourcing or by the creation of executive agencies. The split between governments as purchasers and other institutions as providers, which underlies both outsourcing and executive agencies, implies a clear diminution in political control and accountability. In particular, private organisations contracted to provide public service are not subject to the same degree of government control as government departments. Though managers and employees may be required to report to and take instructions from government representatives, they stand in a fundamentally different relationship to the government compared with their counterparts in the public service. Their main obligations are to their own organisation and its owners who employ them rather than to the government. Because the government has less power to control and the contractors have less obligation to obey, upwards accountability through the hierarchical chain of command is significantly reduced. Some advocates of outsourcing, keen to avoid the opprobrium of supporting any decrease in public accountability, have denied that outsourcing entails loss of government accountability for public services. The Australian Industry Commission (now Productivity Commission), a government-funded economic research organisation, argued, in a comprehensive and influential report on Competitive Tendering and Contracting Out by Public Sector Agencies (Industry Commission, 1996, p. 86), that accountability was not diminished by contracting out. Governments might devolve responsibility to other contracting organisations but they still remained ultimately accountable for how public funds were spent. However, this argument ignores the fact that the government's authority is limited to the terms of the contract and that it cannot intervene at will in the affairs of the contractor. The government can only be held accountable for those matters under its control. Because government leaders do not have overall authority over an independently owned contractor they cannot be held to account for every action of that contractor. Indeed, most advocates of outsourcing correctly recognise the reduction in upwards political accountability and view it positively as an aid to greater efficiency (Mulgan, 1997c). Executive agencies, too, are designed to reduce accountability to political leaders. Official statements accompanying the policy of disaggregating government departments into separate purchasing and

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Page 178 providing arms claimed that it would clarify accountability through a clearer demarcation of roles (UK Efficiency Unit, 1988). Ministers and their advisers would be able to concentrate on setting general policy while agency heads and their staff could devote themselves wholeheartedly to delivering specified services. The hierarchical chain of command and accountability between political leaders and rank-andfile bureaucrats was meant to be broken, with responsibility and accountability divided between two separate institutions with their different managers and distinct chains of command and accountability (Mulgan, 2002a). Under Westminster systems accustomed to ministerial responsibility, the theory suggests a system of accountability similar to that applicable to statutory authorities, an institutional form sometimes adopted for executive agencies (though not in the United Kingdom). On the statutory authority model of accountability, ministers are to restrict themselves to issues of general policy, referring questions about operational matters to the authority and its management. In the United Kingdom, where executive agencies remain within government departments, executive agency heads are directly and separately responsible to their ministers, without answering through the normal chain of command. In the early days at least, under the Thatcher-Major government, ministers tended to adopt a more ‘hands-off’ attitude towards agencies than their departments, usually referring detailed questions for agency heads to answer, thus leaning towards a statutory authority model rather than a departmental model of accountability (Woodhouse, 1997, pp. 8–15). In practice, a number of problems have arisen over the division of accountability between contracting parties and the attempt to reduce the accountability of purchasing politicians (Rhodes, 1997, pp. 54–8, 101–3). First, the division of responsibility between purchaser and provider is often unclear, particularly in relational or partnership contracts where goals are shared and both parties are expected to work cooperatively towards common objectives. In such network relationships, where responsibility is not easily attributed wholly to one party or the other, each party has an incentive to behave opportunistically, claiming responsibility and accountability for successful outcomes but passing the buck to the other party when things go wrong (Woodhouse, 1997, p. 11) (Chapter 6). Thus, in the early days of the Next Steps agencies, ministers sometimes distanced themselves from unpopular decisions (O'Toole and Chapman, 1995), while agency heads, when under attack, attempted to transfer the blame to government. The notion of a clear division of responsibilities and distinct areas of accountability appears to recycle the discredited distinction between

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Page 179 policy and administration (Gregory, 1987; O'Toole and Chapman, 1995). The distinction may be workable so long as it is applied flexibly and pragmatically, on the understanding that political leaders can take responsibility for any matter as required, leaving other less controversial matters of routine ‘administration’ in the hands of officials (Chapter 2). However, attempts to institutionalise the distinction and to decide in advance which issues will be ‘policy’ and the responsibility of political leaders, and to sequester these issues from other matters that are solely the responsibility of officials or service providers, always lead to difficulties in practice (Polidano, 1999). The long and contorted history of the United Kingdom nationalised industries provided a graphic illustration of the practical and political problems of trying to separate responsibility and accountability for policy and operations (Woodhouse, 1994, pp. 20–2). Other jurisdictions, too, have experienced confusion and controversy over the extent to which ministers should exercise control over, and take responsibility for, supposedly independent authorities such as public broadcasting corporations or state-owned railways. The same difficulties and ambiguities, wholly predictably, have recurred with executive agencies. Once the concept of relational or partnership contracts is endorsed as appropriate for regulating the relations of purchasers and providers, the goal of a clear separation of responsibilities and accountabilities is fatally compromised. In many cases of faulty administration, even though the major part of the blame lies within the agency, some element of fault may lie with the general policy or the level of funding for which the minister is more directly responsible and which is beyond the agency's control. For instance, in the case of the troubled United Kingdom Child Support Agency, whose chief executive was forced to resign in 1995, much of the blame lay with the policy itself which was unpopular and imposed ruthless economising priorities on the Agency (Barberis, 1998; Harlow, 1999). To require the Agency and its head to accept total responsibility appeared unreasonable and an illegitimate attempt by the minister to escape proper accountability. In general, the notion that the responsibilities and accountabilities of ministers and executive agency heads could be kept wholly distinct appears naively optimistic. Secondly, even where responsibility can be clearly separated and the political leadership is apparently blameless, the public do not take kindly to ministers who attempt to avoid all accountability and pass all requests for information and rectification to the agency (Chapter 6). Particularly when major mistakes or failures occur, the public expect ministers to front up and take responsibility, at least to the extent of

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Page 180 exercising the classic functions of ministerial responsibility – answering questions, undertaking any necessary inquiries and imposing remedies. Ministers who succumb to the temptation to wash their hands of administrative failures are likely to be punished politically. Michael Howard, the United Kingdom Home Secretary in the Major Conservative government, was fiercely criticised for holding the Prison Service Agency and its Director-General, Derek Lewis, accountable for prison escapes, even though the fault lay squarely with operational and management errors (Barberis, 1998). Similarly, in the Cave Creek tragedy in New Zealand, where fourteen people died as a result of a faultily constructed viewing platform, the minister initially distanced himself from the accident, as he was fully entitled to under the purchase agreement with his chief executive (Gregory, 1998). Again, the political reaction was severe, and the minister's position became ultimately untenable. The New Zealand public has generally refused to accept that ministers are not accountable for the actions of supposedly arms-length ‘crown entities’. In the wake of the prisons fiasco under the previous Conservative regime, the incoming Labour Home Secretary, Jack Straw, prudently committed himself to accepting full responsibility for the management of prisons and other services in his portfolio in the traditional ministerial way (Barberis, 1998, p. 459). When controversy arose in 1999, over excessive delays in the issue of passports by the passport agency, Mr Straw, as responsible minister, was careful to accept responsibility and to present a united front with his executive head. Overall, the Blair government, in its strategy of exercising more centrally coordinated control over the public service, has drawn back from some of the devolution of responsibility implicit in the original Next Steps structure (Molander et al., 2002, pp. 114–19). New Zealand, too, has been forced to bring the more politically sensitive crown entities back under greater ministerial control. Similar pressures on politicians to take responsibility occur with outsourcing to private contractors. For instance, though the controversial Australian refugee detention centres are managed by a private company, the Minister of Immigration regularly answers for the daily conduct of staff in the same way as if the contracted staff were departmental public servants. Attempts to pass the buck to the company, though not illegitimate in terms of the contract, have not been well received. Ministers at the state level have also been unable to avoid taking responsibility for private prisons (O' Faircheallaigh et al., 1999, Ch. 16). Though contracts are often open-ended and described as ‘partnerships’, they are not true partnerships in the sense of agreements between equals. Governments,

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Page 181 as the ultimate controlling power, remain the dominant party (Teisman and Klijn, 2002), a fact reflected in public calls for them to take responsibility. Thus public expectations and political realities force politicians to accept responsibility and accountability as before (Kernaghan, 1994). At the same time, the providing contractors are usually happy to acquiesce in a more anonymous role. Managers of private companies are not accustomed to the constant glare of public scrutiny that surrounds politicians. The natural tendency of private sector managers is therefore to continue as normal and to avoid answering to the public through the media or other channels. For their part, too, heads of executive agencies are likely to keep their heads down and their ministers out of trouble. Though sometimes accorded a higher profile than public servants of the past, they are generally careful to defer to their ministers, both in public and private, thus preserving the conventions of ministerial responsibility. Significantly, many of the open clashes between ministers and agencies occurred with agency heads imported from the private sector who have taken too literal a view of their new roles. Seasoned public servants, on the other hand, are more accustomed to dealing with ambiguities. The extent to which traditional ministerial accountability can survive under a formal executive agency structure is demonstrated by the example of Centrelink, the Australian Commonwealth's social delivery agency. Though established in the institutional form of an independent statutory authority with its own board and chief executive, it operates in practice very much like a traditional government department. The board and chief executive remain largely anonymous, leaving ministers to answer questions about detailed decisions (Mulgan, 2002a). Any split between purchasers and providers involves at least some degree of accountability loss through political channels. Thus, even in the case of a highly controlled and politically sensitive agency such as Centrelink, ministers have been able to deflect questions on some issues about internal staffing and administration on to the board itself and the chief executive. However, the introduction of executive agencies in Westminster systems has not fundamentally transformed accountability practices. As long as service providers are public servants and part of the executive branch, the hierarchy of executive command remains the dominant structure of control, along with its corresponding chain of upwards hierarchical accountability to the elected leadership. Some routine administrative matters can be clearly devolved to agencies and their managers, but politically controversial issues will almost always demand the attention of ministers, and prudent chief executives will attempt to keep their ministers out of political trouble. With outsourcing,

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Page 182 on the other hand, politicians generally exercise less overall control than they do over executive agencies, and are less accountable for the actions of contractors. While some contracts stipulate more opportunities for political supervision and intervention than others, all impose significant limits on the right of political leaders and their departmental officials to intervene in the activities of contracting organisations. Apart from its effect on upwards accountability, outsourcing also restricts accountability through other channels. Most non-government organisations tend to be beyond the jurisdiction of specialised public accountability agencies, even when they are providing public services at public expense. For instance, legislative committees usually cannot interrogate private contractors in the same way as they can interrogate public servants. Government auditors normally do not have the right to investigate the finances and general performance of contractors, but must confine their inquiries to the government side of the contract, examining such matters as the tendering and contracting processes and the monitoring of contractors' performance. Ombudsmen, too, are sometimes prevented from investigating complaints against non-government providers nor does Freedom of Information legislation normally apply. The extent of such limitations varies according to the political sensitivity of the outsourced function, with some functions, such as private prisons, attracting a high degree of public regulation (Harding, 1997, Ch. 4) while most others are comparatively unregulated. The limitations on the accountability of private sector contractors are in marked contrast to the accountability regimes applied to executive agencies. Executive agencies, though formally at arms length from the political leadership, are still subject to the normal range of government accountability mechanisms, including legislative committees, government auditors, ombudsmen and so on. Private sector organisations contracting with governments are certainly required to accept more rigorous accountability regimes than apply to their normal activities. Non-profit organisations, in particular, find themselves forced to comply with new and often uncongenial levels of reporting and monitoring as they are brought more closely into the government's orbit. Indeed, many in the non-profit sector fear that their distinctive role as critics of government policy is threatened by becoming too closely integrated into government networks and too dependent on government funding (Lipsky and Smith, 1990; Schwartz, 2001). But, judged by the standards applying in the public sector, the exposure of contracting agencies to public accountability still tends to be significantly less than that of government agencies.

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Page 183 Overall, then, the public sector reform movement can be seen to have reduced some aspects of public accountability, particularly the accountability of those engaged in the delivery of public services and operating outside the core areas of government. The political accountability of service providers has been decreased by constraining the capacity of political leaders to exert control over their day-to-day decisions, while also removing service providers from the jurisdiction of other agencies of public accountability. The reduction has been greatest in the case of outsourcing to non-government organisations but some decrease is also evident in relation to executive agencies. How far this reduction is counter-balanced by improved regulation and improved accountability to customers is open to question (Christensen and Laegreid, 2002). Certainly, independent regulators can often provide a more expert and more systematic method of monitoring the performance of public service providers. Greater managerial autonomy can also facilitate greater attention to local conditions and to the needs of individual customers, thus improving efficiency and effectiveness. Some advances have been made in particular accountability, such as through improved complaints procedures. But these changes hardly make up for the loss of accountability through political channels. Particularly in parliamentary systems, ministerial accountability through the hierarchical chain of command is a potent mechanism of citizen redress. In presidential systems, too, recourse to elected representatives provides citizens with a valuable point of access for complaints against government. Though the immediate focus of complaint may be individual treatment in a particular case, complaining through political processes provides citizens with the opportunity to question those responsible for the general policy as well as those who have applied the policy to a particular situation. Discussion is broader and more open-ended, embracing both particular and general accountability. Closing off such opportunities therefore significantly reduces citizens' rights of complaint about both individual cases and wider policy. Critics who complain about the potential loss of citizen rights through outsourcing therefore make a substantial case. It is not just a matter of terminology, of whether members of the public are being described as ‘customers’ or ‘clients’ rather than ‘citizens’. More importantly, citizens are being deprived of traditional rights of inquiry and complaint in the interests of supposedly cheaper and better service. The extent of the accountability deficit varies with the nature of the contract and with how many accountability requirements it includes, but some reduction is inevitable and should be openly acknowledged.

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Page 184 Conclusion The new public management accountability reform agenda has attempted to reorient the focus of public sector accountability away from inputs and processes and away from political accountability for detailed decisions and more towards accountability for results and accountability directly to customers and through regulation. The reforms have met with mixed success. Accountability for results has certainly increased as agencies and individual officials have been required to articulate their objectives and to report their progress in terms of performance indicators. Elected leaders and ministers have been able to exercise greater strategic control over government bureaucracies, thus strengthening the indirect accountability of bureaucrats to the public via the chain of delegated political authority. The public themselves and their legislative representatives can sometimes gain a much clearer idea of what their governments are trying to achieve and how well they are achieving it. In addition, as part of the move to devolve decision-making and encourage the responsiveness of rank-and-file bureaucrats to the public, the rights of individuals to complain about the quality of services they receive have been strengthened as well as more widely promulgated. A larger role for independent regulators has improved levels of public scrutiny. Hoped-for reductions in accountability have also occurred, particularly through the contracting of service provision out to private sector organisations which are held to less stringent accountability standards over inputs and processes and over their daily activities and can therefore deliver services more cheaply. In other respects, however, change has been less forthcoming. Public expectations of due process and fairness in the use of taxpayer-funded resources, as reflected in the agendas of legislators, government auditors and the media, have not notably diminished. Nor do the public appear willing to accept a clear division of responsibilities, with political leaders accountable only for general policy, leaving officials or contractors to answer for detailed decisions. Without much more significant reductions in accountability levels for inputs, processes and detailed decisions, the whole enterprise of refocusing managers towards results and service becomes seriously hamstrung. Such a revolution would require managers to be freed from continual scrutiny of their every move so that they could concentrate more single-mindedly on achieving their given objectives with maximum efficiency and effectiveness. In so far as public managers remain under the same scrutiny as before, the reforms have succeeded only in grafting new accountabilities on to existing

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Page 185 accountabilities and have not replaced one accountability regime with another. One continuing stumbling block has been the difficulty of specifying objectives and measuring achievement in many of the key aspects of government activity. In some areas, admittedly, desired results can be clearly stipulated and satisfactory performance can be easily verified. These areas lend themselves most readily to outsourcing through classic contracts because contracts can be made sufficiently specific to carry the main weight of accountability even when the contractors are otherwise beyond government control. However, in many of the remaining core areas of government, objectives are much less precise for reasons that are by now familiar: policy goals are complex, being made up of shifting and conflicting values, and are contested by different groups with competing interests. Attempts to capture public policy goals in a simple formulation typically lead to vague and porous objectives sufficiently broad to cover all likely developments but without the rigour needed to provide clear direction or generate unambiguous measures of success or failure. Such aspirational objectives may help to motivate staff and to assist in organisational development. But without meaningful content, vague objectives do not contribute to accountability and, not surprisingly, receive little serious attention either from managers themselves or from legislators. The imprecision of most objectives and the inadequacy of many performance measures tends to force accountability in other directions. Thus government financial management and accountability still place prime emphasis on monitoring and controlling inputs, on how much was spent by whom and when. New budgeting systems may attach inputs to outputs and seek to measure levels of efficiency through the ratio of outputs to inputs, but it is the inputs on their own that often remain most tangible and measurable. It is usually easier to understand and criticise how much has been spent on a given programme or policy, such as improving national parks or fostering closer relations with a neighbouring state, than how effectively the funds have been spent. Moreover, the public still maintain a strong interest in due process, both as a means to participating in continuing political debate and as a safeguard for principles of equity and fairness. Equity is sometimes seen as solely a process value, in contrast to performance or results-based values such as efficiency and effectiveness (for example, Behn, 2001). This identification can be misleading if it obscures the extent to which results and objectives can themselves incorporate equity goals, for instance the reduction of poverty or the lowering of unemployment.

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Page 186 None the less, it is true that a concern for equity inspires continuing demands for accountability in how government resources are spent regardless of the policy outcome and thus undercuts attempts to focus more exclusively on results. Equity issues such as due process in the letting of government contracts, appointment on merit instead of nepotism, cronyism or ethnic favouritism, and moderation in government salaries all give rise to accountability requirements. Behind every time-consuming rule and procedure lies a public objection to a perceived injustice or impropriety on the part of politicians or public officials which the rule or procedure was created to avoid (Behn, 2001, p. 208). The public may be prepared to tolerate such questionable actions from non-government personnel but not from government employees. Thus, the attempted transfer of private sector standards of accountability to the public sector is frustrated not only by the difficulty of formulating objectives in the public sector but also by the different public expectations placed on governments. These expectations, in turn, place public officials under unique constraints and incentives which foster the cautious, risk-averse behaviour to which the reformers object. Some reorientation towards objectives and outcomes can certainly reduce the bureaucratic obsession with rules and due process. The creation of separate executive agencies can also encourage a greater focus on customer service. But to look for the degree of managerial autonomy in the pursuit of stated objectives found in the private sector is unrealistic. The public and their representatives are not prepared to tolerate the ‘tight–loose’ structure of control favoured by the reformers because it lets too many aspects of government activity avoid public scrutiny and accountability. Also unrealistic is the hope of some reformers that accountability could be clarified and simplified by a clear demarcation of roles between elected leaders and public servants or between purchasers and providers. Roles and responsibilities remain blurred and so too must accountability. In practice, the greatest impact on accountability has been achieved not by reshaping the structure of government accountability, which remains largely unchanged, but by reshaping the structure of government itself, especially by transferring government functions to the private sector. Once a given activity formerly performed by a government agency is handed over to a private sector organisation, whether through outright privatisation or outsourcing, accountability practices and expectations alter significantly. The service providers are no longer under direct government control and are no longer subject to all the requirements of government accountability, though they may be subject to new forms

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Page 187 of regulation. The degree of change varies with the extent of government decoupling. Most radical is full privatisation when functions and assets are transferred wholly from government to the private sector. Outsourcing, where funding remains a government responsibility but provision is privatised, also affects accountability though to varying extents depending on the nature of the service and the terms of the contract. Private organisations involved in providing politically sensitive or controversial services may increasingly find themselves forced to adopt new and unfamiliar levels of accountability. However, the extent of accountability imposed falls well short of that still expected from publicly owned agencies.

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Page 188 6 Locating Accountability: One or Many? Singularity versus plurality Accountability for collective actions gives rise to a recurring problem of whether accountability should be concentrated or diffused. Is such accountability more effective when it is clearly located with one person or body, such as a president, a minister or chief executive, who can speak on behalf of the collectivity? Or should accountability be dispersed among the various individuals and groups, including rank-and-file officials, who have contributed to the collective action and should therefore be held directly accountable? Views about the respective merits of single and plural accountability also have a bearing on issues of basic constitutional and institutional design. Should institutions be structured with strong centralised control in order to facilitate single-line accountability? Or should a more fragmented structure be encouraged with the purpose of facilitating a more pluralist form of accountability? The issue goes to the heart of debates over parliamentary versus presidential government and over unitary versus federal systems. Do the separation of powers and constitutional checks and balances, as built into the United States constitution, help or hinder government accountability? Does the sharing of functions between different levels of government make governments more or less accountable? Similar questions also arise over trends to devolve and dispersal of government power away from monolithic departments to semi-independent bodies linked to government by contracts and partnerships (Chapter 5). Does the replacement of hierarchies with networks improve or damage accountability?

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Page 189 The case for a single point of accountability was classically stated by J. S. Mill: As a general rule, every executive function, whether superior or subordinate, should be the appointed duty of some given individual. It should be apparent to all the world who did everything, and through whose fault anything was left undone. Responsibility is null and void when nobody knows who is responsible. Nor, even when real, can it be divided without being weakened. To maintain it at its highest, there must be one person who receives the whole praise of what is well done, the whole blame of what is ill. (Considerations on Representative Government 1861 [1964], p. 332) By contrast, most recent accounts of accountability (for example, Day and Klein, 1987; Romzek and Dubnick, 1987; Finn, 1993; Fisse and Braithwaite, 1993; Stone, 1995; Barberis, 1998) have favoured a more multifaceted, pluralist approach. A more diverse range of accountability points, it is argued, provide a better guarantee of accountability than any reduction in the inadequate structures of hierarchical accountability. The question takes one of two forms, depending on the institutional context. First, it concerns where best to locate accountability within a given institutional setting, such as an individual agency or a government system. For instance, should all accountability be directed through the person in charge, as Mill recommended, or should different members or sections be able to answer to the public? Here, the possibility of choosing between a concentrated and dispersed system of accountability implies a particular type of organisational structure, with a centralised authority capable of assuming overall accountability and with other elements capable of sharing that accountability. In such a setting, it makes sense to ask whether accountability should be concentrated or dispersed because the institutional structure allows for the possibility of either option. Secondly, the issue arises in relation to alternative institutional structures, some of which, such as hierarchical organisations, allow at least the possibility of centralised accountability and others, such as federations and networks, which rule out such a possibility. For instance, does a federal system provide more effective accountability than a unitary system? Are networks more accountable than hierarchies? Here, the choice is not so much between alternative accountability structures within a given institutional structure as between alternative institutional structures each of which allows different accountability possibilities. In both cases,

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Page 190 however, the question turns on the relative merits of single and plural accountability structures. The link between systems of accountability and institutional structures is both close and reciprocal. Institutions and their designated structures of authority set limits to the type of accountability mechanisms that can be applied to them. Thus, federal structures, lacking a clear central authority, cannot support a single, centralised structure of accountability. At the same time, accountability mechanisms can have an impact on patterns of authority and the structure of institutions. For instance, opening up a hierarchically structured institution with a single point of accountability to a more plural system of accountability can have the effect of decentralising authority within the institution. Conversely, making one person accountable for the activities of a loosely coordinated network of organisations can induce a greater degree of central control and coordination. Institutions define the possibilities for accountability but accountability options, in turn, affect the structure of institutions. Single or plural: the dimensions The contrast between monolithic and pluralist models of accountability has a number of different dimensions corresponding to the different aspects of accountability (who, to whom, for what and how). The issue that raises most difficulties concerns who is accountable for collective action (the accountor), whether it is to be one person who should answer on behalf of the collectivity, for instance a minister or agency head, or whether accountability should be provided by a range of different people who share in collective responsibility, for instance the relevant officials at different levels as well as the person in charge. But single and plural approaches can also apply to the account-holder to whom a given person or organisation is accountable. Thus, an agency head or whoever else is accountable, might be accountable either to a single authority, such as a legislature, or to a range of accountability agencies, including colleagues, courts, auditors, policy communities and so on as well as to the legislature. Under parliamentary systems, for instance, government departments tend to be accountable primarily to ministers and the cabinet, a more concentrated line of accountability than in presidential systems such as the United States where accountability to the president is counter-balanced by a more substantial accountability to Congress. Differences in the number of account-holders to whom an official or agency is accountable are also reflected in the mechanisms (how) of

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Page 191 accountability which can similarly range between singularity and plurality. Mechanisms are singular when the person accountable is accountable through only one channel. For instance, a financial officer might be accountable for proper accounting procedures only through an audit process. More usually, however, such a person would be accountable through a variety of procedures, including not only audit, but also publication of accounts, questioning by external bodies such as central agencies, court proceedings and so on. Being accountable through a range of different procedures and mechanisms usually implies being accountable to different bodies or groups of people. The number of mechanisms (how) is therefore closely linked to the number of account-holders (to whom) and raises similar issues. The question of singularity versus plurality in these two dimensions, how and to whom, can therefore be discussed together. A further distinction also arises in the subject matter (for what) of collective accountability which may be either whole or divided. Those accountable, whoever they are, may be accountable for all actions of the relevant collectivity or only for some. Thus a minister can be accountable for policy decisions while the bureaucratic head is accountable for personnel decisions and the financial officer for the integrity of the accounts. Similarly, within an overall system of government, responsibilities and accountabilities may be allocated to a smaller or larger range of agencies. Thus, in the United Kingdom and New Zealand, a single department, the Treasury, is responsible for managing both government expenditure and economic policy, whereas, in Australia and Canada, the functions are divided between two distinct agencies. More broadly still, federal systems allocate certain different functions clearly to separate tiers of government (for instance, foreign affairs to the central government and criminal law to state governments) and therefore have a more divided structure of responsibilities and therefore more pluralised accountabilities than a more centralised, unitary system. The arguments for and against dividing or concentrating accountability in this respect turn mainly on the respective merits of dividing or concentrating particular powers and responsibilities rather than on any considerations specific to accountability itself. Each institution or level of government with a discrete function or set of functions, however broad or narrow, is subject to similar issues of accountability within its own setting. Where issues of accountability arise more forcefully is in contexts where responsibility is shared rather than neatly divided. Thus, federalism becomes specifically relevant to accountability when responsibility for a particular function, say health or welfare, is divided

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Page 192 between federal and state governments. It is then a pertinent question whether such overlapping jurisdictions improve or blur public accountability for those functions in comparison with the more centralised form of control possible when these functions are the responsibility of only one level of government. But these potential problems caused by federal overlap relate to who should be accountable, whether one level of government or several, and need to be analysed as part of that question rather than in terms of for what each level of government should be accountable. Where responsibilities can be clearly divided and overlap avoided, accountability is similarly divided without controversy. It may be an important question whether sole responsibility for, say, automobile registration should rest with federal or state governments but accountability as such is not a key factor. The main sites of debate over single and multiple accountability are thus twofold: first, who, one or many, should be held accountable for collective action; secondly, to whom, one or many, and how, through one or many mechanisms, accountability should be offered. Of these, the first question, who should be accountable, one or many, is more controversial and requires fuller discussion. Who should be accountable: one or many? The question of who should be held accountable, whether one person or several persons, arises where more than one person shares in responsibility for actions done by, or in the name of, an organisation such as a government or a particular government agency. The general principle is clear: accountability should follow responsibility, in the sense that those responsible for performing a particular action should also be those who are held accountable for that action (Chapter 1). But when responsibility is shared among members of an organisation, who should be accountable? For instance, who should be accountable when a government agency fails to make welfare payments on time to needy citizens? Who should be accountable for the success or failure of a military campaign authorised by political leaders, designed by professional strategists and conducted by military personnel. Who should be accountable for a housing programme funded by central government but implemented by state or local governments? In each case, many individuals, and indeed, individuals from several different institutions, may have contributed to these policies and their implementation. But who is to be held accountable? Behind the question of which individuals should be held accountable lies another, more fundamental, issue. Should accountability for collective

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Page 193 action be ascribed to the collectivity or organisation itself, to the particular agency or to the government as a whole, rather than to any individual members? Or, are individuals the only agents capable of being held accountable on the ground that action is the sole prerogative of individual persons because only individual persons are capable of thinking and acting responsibly? Without going into all the philosophical intricacies of these issues (see, for example, Fisse and Braithwaite, 1993, Ch. 2; Bovens, 1998, Chs 2 and 5), we may simply note that organisations are regularly, and sensibly, treated as collective or corporate ‘persons’, capable of acting and being held accountable for their actions. For instance, companies and corporations can enter into contracts and be held legally liable for breaches of contract, made to pay fines or forfeit privileges. Governments and public agencies can collectively adopt policies, make and receive payments, and be held accountable for their decisions, for instance by paying compensation for damages caused. At the same time, all collective action requires the actions of designated individuals within the collectivity. In this sense there can be no collective action that is not made up of individual actions. But the individuals who perform such actions are acting in capacities defined by their roles in the organisation and these actions only make sense in terms of organisational structures and purposes. A chief executive regularly acts for and on behalf of the organisation, as does its finance officer or its media spokesperson. In these cases, their individual actions amount to actions of the organisation, and in so far as their actions involve activities associated with accountability, such as giving information or discussing organisational policies, the actions can be understood as instances of the organisation being held collectively accountable. When we ask who should be held accountable for collective action we are often asking which office-holders should exercise these accountability functions on behalf of the collectivity as part of their organisational role. In performing such accountability functions, an office-holder is therefore exercising role accountability rather personal accountability (Chapter 1). At the same time, the office-holder is personally accountable for how he or she exercises these functions. Collective accountability is thus dependent on the actions of individuals exercising various role responsibilities associated with their particular roles or functions in the organisation. These individuals may, in turn, be held personally accountable for the manner in which they have carried out their role responsibilities, including their contribution to collective accountability. The question of who should be accountable, whether one person or many people, applies both to role responsibility and to personal

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Page 194 responsibility and accountability. It raises the issue whether one person or several people should exercise the collective accountability obligations of an organisation and the role responsibilities associated with these obligations. The question also concerns who should be held personally accountable, particularly for collective failure. Indeed, public debate often centres on the latter question of personal blame and penalties. When things go wrong, who should be called to account and made to suffer sanctions or penalties, one person on behalf of the organisation or all responsible members of the organisation? But the imposition of sanctions on individuals is merely the final stage of accountability. The issue of who should be accountable also applies to all the preceding stages of accountability, and to issues of role responsibility as well as personal responsibility. Who should answer questions from the public and provide information about the organisation? Should several people be authorised to make statements and release information about the organisation's activities? Or should all requests be channelled through the one source? Who should enter into public debate and discussion about the organisation's policies and decisions? Should all those involved in a particular policy or action be able to speak publicly about it? Or should public discussion be limited to one spokesperson? When things do go wrong, who should be responsible for rectifying mistakes and imposing remedies. Should all those involved in the failure undertake to do what they can or should some one person take charge? Finally, if, in addition to collective sanctions, individual blame and sanctions are also appropriate, who should receive them? All those who share in responsibility or only some people or just one person on behalf of the whole organisation? Where accountability functions are located in a single person, that person is typically the head of the organisation. The concentration of accountability for collective action in a single person usually assumes that the single person exercises a degree of supervisory control over those responsible for the actions concerned. Without such control, the accountor would be unable to extract relevant information from those personally responsible or to impose remedies on them. Such single accountability assumes at least some degree of hierarchy within the organisation concerned and locates accountability at the top of the hierarchy. Single accountability may sometimes rest with a governing group rather than with an individual, for instance with a board of directors or a cabinet of ministers acting as a single collectivity. On occasion, the head of the organisation or its governing body may be represented by a designated spokesperson, such as the White House

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Page 195 spokespersons who speak on behalf of the president, or media officers who speak on behalf of boards. However, such people act purely as mouthpieces of their employers and their contributions do not reflect any significant dispersal of accountability. Where accountability rests with a group as governing body, the group's chairperson or convener, such as a prime minister or board chairperson, often acts as public spokesperson and, as leader, carries more weight than a mere media officer. None the less, they too are usually careful not to allow any distance to open up between themselves and their governing bodies. Accountability is genuinely dispersed only when other members of an organisation besides its leaders are questioned about their own contribution to collective actions or give their own slant on collective actions. Examples of such dispersal are where public servants are scrutinised directly by legislative committees or by government auditors about government policy and how it is being implemented. Here, not only the political leadership but also the official administrators are being held accountable for overlapping responsibilities. Similarly, both front-line bureaucrats as well as their agency heads and political leaders can be held accountable for particular decisions in relation to individual members of the public. In addition, freedom of information legislation allows access to the inner workings of agencies as distinct from the official version presented by the leadership. Instead of having to address all inquiries to a single point in the organisation, usually the leader or the leader's representative, members of the public and their representatives can directly examine other agency members who share responsibility for the agency's actions. Whistle-blowers, too, provide the public with alternative points of access and alternative accounts that challenge the leadership's versions. The case for establishing a plurality of accountability points is based on the obvious principle of strength in numbers. The more people who are able and willing to answer to the public, the better chance the public have of holding an organisation accountable. If several people are accountable, an organisation is less able to conceal information and resist demands for public scrutiny. Moreover, on the assumption that certain individuals in an organisation have less to lose than others from disclosure of the organisation's collective actions, a plurality of accountors is more likely to throw up someone who is willing to give an open and honest account. However, plurality can have the disadvantage, as Mill argued, that, if many people are accountable, no one is accountable. Where no one person is clearly obliged to answer to the public, each person can pass the buck and shift the blame to someone else.

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Page 196 Single accountability, by contrast, exhibits the converse benefits and risks. On the one hand, it provides the public with a clear point of access and with a designated person obliged to undertake the functions of accountability and can thus reduce the opportunities for buck-passing. On the other hand, single accountability allows for much tighter control of information and makes it easier for those in power to frustrate public accountability. Neither approach is always the more successful. Which arguments carry greater weight depends on the context and circumstances, such as the type of issue and the level of public interest, as well as the particular institutional structure. The balance of advantages and disadvantages also varies with the particular stage of accountability, with different considerations applying to the earlier information and discussion stages compared with those relevant to rectification. Who should be accountable: information and discussion With respect to the initial stage, that of providing information, there are obvious advantages in a plurality of accountability points. Governments have regularly abused the principle of centralising accountability in one person, using it as a pretext for restricting the public's right to know. In Westminster systems, for instance, the conventions of ministerial responsibility have been employed to resist parliamentary access to certain officials and to restrict the types of information that can be made available (Flinders, 2002a, p. 51). In the United States the concept of executive privilege has played a similar gagging role. Given the determination of governments to limit the extent of information and to control its content, the public have a clear interest in opening up as many points of access as possible. Procedures such as committee scrutiny, government audit and freedom of information which allow access to middle-ranking officials were all fiercely resisted by governments at the time of their introduction because they threatened to undermine the leadership's monopoly control of government information. All have since become accepted as valuable additions to public accountability. Exposing a greater range of officials to direct scrutiny increases the chances that information potentially embarrassing to some members of the government will be disclosed by other members who have little to lose, and may even hope to gain, by disclosure. Moreover, the willingness of individual public servants to divulge information on their own initiative through leaking or whistle-blowing adds further valuable access points for the public.

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Page 197 Similar considerations apply to the discussion stage of accountability. Indeed, there is no clear line between simply informing the public and engaging in public discussion or debate about government policy (Chapter 1). A proliferation of points at which government policy can be discussed certainly facilitates this aspect of accountability. If the leaders are the only people available to debate the merits of existing policies or the direction of future policies, opportunities for debate are necessarily restricted. A busy leader or chief executive has only limited time to spend on such matters. Moreover, those who enjoy a monopoly of public argument are in a strong position to impose their own slant and preoccupations on the topics under discussion. Indeed, public ‘debate’ is more likely to become a form of managed government persuasion than the two-way discussion necessary for genuine public scrutiny. Allowing different people on the government side to speak publicly provides opportunities for more extended discussion and for the expression of more diverse points of view. For instance, legislative committees can explore an issue with departmental officials much more thoroughly and critically than is possible in, say, a one-sided media conference with the leader. Similarly, officials engaging in policy dialogue with interest group representatives as part of policy communities are required to expose themselves to searching and continuing scrutiny of government policies. A plurality of discussion points makes it much harder for leaders to control the direction of public debate on a particular issue or to foreclose debate altogether. Such a plurality also reflects the fact that government policy is not a monolithic set of top-down instructions which officials implement more or less automatically. Instead, policy is often best seen as an accumulation of practices to which all levels of government contribute (Hill, 1997, Ch. 6). In so far as other levels of government are themselves responsible for determining important aspects of government policy, shielding them from direct inquiry can leave their activities seriously under-scrutinised. Many policy areas depend heavily on the input of trained professionals, such as engineers, medical practitioners and social workers, whose expertise goes well beyond the general directions of their political and bureaucratic masters. Such experts should be directly engaged in open discussion with members of the public or their representatives in order to encourage genuine public debate about the merits of particular policies or decisions. From this perspective, all sections of government should be engaged in public discussion of their activities because all are at least partly responsible for determining what governments actually do.

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Page 198 On the other hand, a plurality of points of contact and sources of debate can leave the way open to buck-passing, particularly when government is on the defensive. When no one person is clearly accountable or in charge, the awkward and embarrassing task of answering to an angry public is much more readily avoided. Questions can be readily deflected on the ground that someone else is more responsible and in a better position to answer. Subordinate officials can duck for cover while their superiors can disclaim knowledge of matters outside their immediate concern. Members of the public seeking information from political leaders are redirected to making freedom of information inquiries which are then refused on the ground of national security or some other excuse. By contrast, having a single point of accountability can bring certain benefits. First, buck-passing becomes less problematic. A single accountable person with clear and unambiguous accountability obligations associated with the role of leader finds it much harder to avoid answering to the public. Political leaders, in particular, are expected to front up to the public in times of crisis and they face strong public criticism if they refuse to comment. In this respect, accountability is compounded because politicians are themselves personally accountable for carrying out the accountability obligations associated with their role. They may be reluctant to accept personal blame (see further below) but they are usually more forthcoming with information and justification. The public and the public's representatives naturally turn to their leaders for answers. Leaders, for the most part, accept their expected role. A second justification for requiring a single designated leader to answer on behalf of a collective organisation relates to the importance of maintaining top-down, centralised control in securing certain aspects of accountability. Though restrictions on the accountability of subordinate officials have often been imposed for the purpose of blocking legitimate public inquiry and debate, some such restrictions are justified in that they protect the political accountability of elected leaders to the voters. Elected governments cannot be held accountable for government policies unless the policies are theirs to determine and unless bureaucratic officials are willing to accept the authority of their leaders. Discussion involves justification which, in turn, implies ownership. Officials who freely and openly debate the pros and cons of government policies can become identified with those policies, leaving elected leaders in a weaker position and less able and willing to accept accountability themselves (Barberis, 1998, pp. 452– 3). Constraining the right of subordinates to answer directly to the public helps to reinforce political control. Their anonymity underlines their

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Page 199 commitment to upwards accountability through the hierarchical chain of bureaucratic command. Even limited exposure of public servants to public questioning about the routine activities of their departments can begin to identify certain decisions with departmental officials rather than with their elected leaders, giving leaders an excuse to deny responsibility and accountability. As defenders of a ‘top-down’ approach to policy-making have argued, the ‘bottom-up’ strategy of making rank-and-file bureaucrats directly accountable for decisions can undermine the political accountability of governments through the elected leadership (Hill, 1997, p. 111). In so far as responsibility for government action should be sheeted home to elected leaders, a case can be made for constraining the capacity of subordinates to discuss the merits of such action and for leaving the main burden of publicly justifying government policies with elected leaders. Overall, however, with respect to seeking information about government activities and discussing the merits of government policies, a plurality of points of access has clear advantages over a single point of access because it expands the range of available information and the scope of discussion. Arguments for concentrating the information and discussion functions at a single point, though carrying some weight, need to be treated with scepticism and caution. A single point of accountability is open to abuse from leaders who refuse to answer. Hiding behind a veil of ministerial responsibility or some other form of executive privilege can seriously restrict legitimate public scrutiny. A balance needs to be struck which will catch the undoubted benefits of plural accountability in providing multiple sources of information and debate without undermining the equally important obligation of leaders to answer to the public. One such compromise is the adaptation of ministerial responsibility to allow the direct questioning of officials. In answering to legislative committees or to the public, public servants avoid commenting on the merits of government ‘policy’ understood to cover matters to which government ministers are personally committed and for which they are therefore accountable to Parliament (Chapter 2). Public servants confine themselves to issues of ‘administration’ where the minister is not directly involved and where the responsibility clearly lies with departmental officials. At the same time, ministers retain an obligation to answer Parliament on any departmental matter, including matters of ‘administration’. They also retain the right to intervene in any administrative matter. For similar reasons, government auditors and ombudsmen are also expected to confine their investigations to matters of ‘administration’

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Page 200 and ‘implementation’ which involve the actions of officials rather than ministers. Such partially overlapping accountability, whereby ministers remain accountable for everything while officials become accountable for some things, requires subtle and flexible handling. The lines are drawn somewhat differently in different jurisdictions. The United Kingdom, for instance, has been the most protective of the authority of ministers and the anonymity of officials, leaving its governments most open to the charge of restricting accountability in the name of ministerial responsibility. However, if the balance is struck too far in the other direction, inviting officials to become more openly known and directly accountable, the way is left open for ministers to avoid answering altogether, thus depriving the public of their most accountable agents of accountability. Ideally, ministers should be required to retain their overall accountability obligations, including the obligation to inform the public about their departments' activities, while allowing the maximum exposure to subordinate officials consistent with such overall obligations. There is thus a case for maintaining sufficient focus on the accountability of political leaders to prevent them from disowning government actions or avoiding their obligations to answer to the public. Opening other levels to public questioning should be seen as supplementing rather than supplanting the accountability obligations of political leaders. To this end, access to officials should not be so unrestrained that it undermines the politician's right to determine policy and so encourages political leaders to pass the buck to subordinates. However, arguments for limiting the right of subordinates to reveal information of interest to the public should be treated with considerable scepticism. They often tend to be self-serving and to have more to do with protecting reputations and suppressing potentially awkward information than with maintaining a legitimate chain of democratic accountability. A plurality of access points is an essential aid to government transparency and public dialogue. Who should be accountable: rectification The rectification stage of accountability involves the making of suitable responses to collective failures and mistakes. Such responses usually require a public admission that a mistake or failure has occurred, followed up by an explanation of how and why it occurred and the imposition of appropriate remedies, such as compensation for victims and penalties for those found personally responsible. Here, the issue of

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Page 201 single versus plural accountability arises on two different levels. One concerns the exercise of role responsibility, whether a single person or many people should be given the role of performing the various tasks of rectification, such as the admission of collective guilt, the search for culprits, the imposition of penalties and the prevention of future mistakes. The second question relates to personal responsibility and the allocation of personal praise and blame for collective failure: Should one person be blamed and punished on behalf of the organisation or should sanctions be shared among all who share responsibility? With respect to the broader tasks of rectification associated with role responsibility, there are considerable advantages in locating them with a single person holding authority within an organisation. When things go wrong, such a person is under a clear obligation to answer to the public on behalf of the organisation and to accept the fact of collective failure. Moreover, if that person is in charge of the organisation, he or she should have the capacity to conduct internal inquiries and authorise any other remedies, including compensation and sanctions. Because these obligations are such an accepted part of the leadership role, leaders who fail to keep them are obvious targets for public condemnation. By contrast, where no one person is clearly accountable or in charge, the awkward and embarrassing task of answering to an angry public is much more easily avoided. While a designated leader can be expected to assume collective responsibility, someone without such overall responsibility has neither the incentive nor the capacity to answer for the whole. Buck-passing, a natural human reaction to unwelcome scrutiny, is much easier when there is no one with whom the buck clearly stops. Admittedly, self-interested buck-passing is not the only possible reaction to external criticism. Where a culture of collaboration and common goals can be established between the different individuals who contribute to collective action, for instance among committed social welfare providers, responsibility for imposing remedies can also be shared. Each party can support the other in an attempt to respond to criticism and improve the quality and efficiency services provided (Braithwaite, 1997, pp. 332–3). In such cases, dispersing responsibility for rectification among a number of partners can produce better outcomes than might be achieved through a designated leader or manager. For the most part, however, those involved in collective mistakes and failures tend to seek their own self-protection. The degree of cooperation and shared responsibility possible between committed welfare providers is not typical of public agencies and officials generally. Locating the

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Page 202 responsibility for rectification with a single designated authority is more likely to ensure an adequate response. Besides, collective failure is often followed by public demands for penalties and sanctions as well as commitments to improvements in future performance. The imposition of sanctions from within an organisation, for instance the demotion or dismissal of incompetent staff, is difficult to achieve without a single authority and a managerial chain of command. Much depends on the extent to which leaders can be forced to live up to public expectations of their accountability role. Private sector leaders, for instance, are typically less exposed than public sector leaders to public scrutiny and media questioning. They can usually expect to limit their public appearances to a few carefully stage-managed occasions, unless a major scandal breaks and public interest is aroused (Chapter 4). In the public sector, elected politicians are under particular public pressure to provide remedies and are open to severe criticism from political opponents if they appear to shirk their duties of rectification. Accountability is, again, compounded. Locating role responsibility for rectification with elected politicians is therefore generally the most satisfactory option. By the same token, delegating such responsibility to appointed heads of statutory authorities and other arms-length public bodies is generally less effective. Being less exposed to political pressure and less publicly accountable (Chapter 2), they tend to be less reliable as agents of rectification on the public's behalf. The pressure on political leaders to impose remedies does not depend on their being held personally responsible for government actions. Indeed, the pressure is often more effective in cases where the leader's own personal fault is not an issue. Once a government mistake or failure is exposed which is clearly outside the personal responsibility of the political leader, the leader has much to gain by seeking to identify the culprits and to compensate the victims and has an equally strong disincentive against appearing to do nothing. Being assured that the blame will not attach to himself or herself, the leader can afford to engage in a thorough investigation. When Arab terrorists attacked the United States on 11 September 2001, President George W. Bush could commit himself to a full review of existing security procedures without fear of incriminating himself because the procedures had been established under his predecessors and he had had no previous call to amend them. Political incentives pointed overwhelmingly to decisive action against his own agencies rather than inaction. Similarly, on much smaller and more routine issues, political leaders can gain electoral credit by acting to correct administrative decisions made in relation to individual

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Page 203 members of the public. When the leader has not been involved in the original decision, he or she suffers no political damage by admitting the individual concerned was wrongly treated and he or she can gain credit for intervening to put the matter right. As often, accountability, including rectification, is more effective when exercised by someone who is not directly involved in the activity under scrutiny and who does not stand to lose from the disclosure of failure (Braithwaite, 1997, pp. 334–40). Allocating personal responsibility blame and imposing sanctions for collective failure is one of the most important aspects of role responsibility for rectification and at the same time one of the most intractable issues in accountability. The basic principle is again reasonably clear: personal blame and sanctions should follow personal responsibility (Bovens, 1998, pp. 28–31). Indeed, the concept of personal ‘responsibility’ is usually defined in terms of being liable for praise and blame (Chapter 1). However, though the general principle may be clear, its application is highly problematic. Attempts to identify and penalise those individuals who actually are personally responsible for collective failure typically run into the problem of ‘many hands’, the fact that in most cases where governments make major mistakes or fail to deal adequately with emergencies, the fault turns out to be shared among a large number of different people and systems (Thompson, 1980; Bovens, 1998, Ch. 4). When calamities occur, such as the 1986 explosion of the space shuttle Challenger in the United States (Romzek and Dubnick, 1987), or the tainted-blood supply in Canada (Shafer, 1999) or the 1995 Cave Creek viewing platform collapse in New Zealand (Gregory, 1998), extensive public inquiries established to discover the causes of tragic loss of life regularly conclude that no one person is wholly to blame. Instead, fault lies with the actions of several different individuals and groups. These individuals and groups, in turn, are working within structures that are themselves the responsibility of many other people both within and beyond the organisations directly concerned. For example, in the Challenger case, responsibility lay with a breakdown of communication between engineers, contractors and administrators facilitated by an inappropriate accountability structure. In the Cave Creek case, the platform had not been built in accordance with sound building practice, a mistake to which many levels of management, as well as management procedures, could be said to have contributed. Tragic incidents on this scale are no doubt untypical in the extent of harm and suffering caused. But the complexity they reveal about the activities of organisations under stress differs only in degree, if at all, from the complexity of more routine and less catastrophic events.

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Page 204 Multiple causality is the norm rather than the exception for significant collective action. In almost any act of government or a government agency, one can distinguish separate contributions of those who took the immediate action, those who supervised or monitored their work, those responsible for funding and otherwise resourcing the agency concerned, those sections of the public placing demands on government and so on. It may be possible to identify those who are primarily responsible for a given action and who should carry most of the blame when things wrong. But they are most unlikely to be the sole culprits. It is this complexity that renders the allocation of appropriate penalties so problematic. A number of different approaches are possible but none is free of difficulty. The fairest solution, in theory, would be to penalise all who have shared in causing the failure in proportion to their contribution. However, given the ramifications of collective responsibility, such an aim is generally impractical. Too many people bear some share of the responsibility to allow all of them to be successfully identified and penalised personally. The degree of responsibility exercised by each individual is often insufficient to justify the imposition of guilt and sanctions. Anyone accused with complicity can usually excuse themselves on the grounds that their contribution was marginal and that their actions were not unreasonable in the circumstances (Bovens, 1998, Ch. 8). This is one reason why, in the commercial sector, very few corporate executives are ever successfully prosecuted for corporate wrongdoing. The amount of evidence that can be mounted against any one individual is rarely sufficient to prove personal criminal liability (Fisse and Braithwaite, 1993, p. 8; Bovens, 1998, pp. 78–85). Because every guilty party cannot readily be punished, the result is often that no one ends up paying any personal price, even for major public tragedies and loss of life. Fairness operates to exonerate the guilty equally, rather than to incriminate them equally. As in Agatha Christie's Murder on the Orient Express, where all share the guilt, all get off (Parsons, 1998). The absence of personal sanctions in such circumstances not only reduces disincentives to collective failure but also frustrates the public's need for retributive justice. When institutions fail badly, affected members of the public demand accountability in the form of personal punishment of those responsible, whether through a fine, imprisonment or resignation from high office. Collective penalties, such as fines, can be imposed on the organisation as a whole, but justice also requires some personal sacrifice by those responsible. ‘Heads must roll!’ is the common response to major failure. Too often, after the dust has settled, all heads remain in place.

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Page 205 Given the impracticality of penalising all those who hold some responsibility for collective failure, another option is to identify the person or persons most responsible for the failure and to single them out for punishment. For instance a rank-and-file staff member may be most culpable for an accident through having forgotten to check a faulty piece of equipment, even though he or she had been inadequately trained and the equipment was part of a low quality, bulk purchase. To punish that staff member would meet the public expectation that someone, at least, should be seen to pay and would at least attempt to match the penalty to personal guilt. However, such a person could complain that he or she was unfairly being made a scapegoat in order to allow other people who shared the blame to escape scot-free. In particular, scapegoating is widely condemned when it enables the person's superiors to avoid punishment, even where the degree of direct responsibility held by the superiors is comparatively attenuated. In Canberra, in 1987, the government of the Australian Capital Territory, needing to demolish an obsolete hospital building, decided on the spectacular method of implosion to which the public were invited. The implosion was badly bungled and a schoolgirl, picnicking with her family at what was thought to be safe distance, was killed by a piece of flying metal. Subsequent inquiries found that the major responsibility lay with the shot-firer who actually laid and fired the demolition charges along with the contractor who employed him. However, criminal charges against the shot-firer and contractor were subsequently dropped. The rumoured reason was that no jury would find against them when responsibility for the botched implosion was also shared with their superiors, including not only the project directors but also the chief minister's advisers and the chief minister herself whose insatiable appetite for publicity set the tone for the whole enterprise. In other words, the public would not take kindly to any attempt to scapegoat a subordinate, however glaring his personal negligence, if it meant exonerating those ultimately in charge and also partly responsible. As a result, no one was made to accept responsibility and the family of the killed schoolgirl complained that accountability had been denied them. If anyone is to be singled out for blame and punishment and if the charge of unfair scapegoating by superiors is to be avoided, the fairest solution is therefore to penalise the most senior person (or persons) of those who share personal responsibility. This principle assumes a hierarchical structure in which seniority or superiority is readily discernible, as it is in most standard organisations and certainly most government

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Page 206 organisations. Within such an institutional context, the principle carries considerable weight. The senior person responsible is the only individual, at least in theory, who had the power to anticipate the mistake by making sure that all procedures were followed and preventive action is taken. Moreover, the senior person or persons exercise other aspects of accountability, including accepting public congratulations for successes brought about by the collective efforts of their organisations. If they can accept public praise, they should therefore also be prepared to accept the public blame for collective faults and not unfairly pass the buck to their subordinates. The principle that blame and punishment should be attached to the most senior person responsible is not the same as demanding that the person in charge take the blame regardless of personal fault. It requires that at least some significant contribution can be sheeted home to that person, whether it is responsibility for setting a general direction, for providing a given level of resources, or for making certain appointments that can be said to have contributed to the outcome. Where no such contribution is apparent, all that is required is for the leader to identify the most senior person further down the organisation who can then be penalised for presiding over failure. Again, the distinction between role responsibility and personal responsibility needs to be borne in mind. The role of leaders usually implies a responsibility to exercise the collective functions of accountability, including rectification and the imposition of remedies and sanctions. But sanctions do not need to be applied to the leader unless he or she is also personally responsible for the failure, at least to some extent. The notion that leaders should personally accept blame for actions where they bear no personal responsibility still survives, for instance, in mistaken conceptions of ministerial responsibility which supposedly require ministers to accept ‘vicarious responsibility’ and resign over purely departmental failures. This view of ministerial responsibility, in spite of being rarely if ever acted on, still maintains a powerful hold on the popular imagination. Opposition politicians ritually call on blameless ministers to resign and media commentators, just as predictably, deplore the ministers' refusal to resign as evidence of the death of ministerial responsibility (Mulgan, 2002b). In practice, however, ministerial responsibility does not oblige ministers to resign for matters where they are not personally at fault (Chapter 2). In such cases, they are merely required to undertake appropriate remedial actions, including the identification of those personally responsible, in other words to exercise the accountability obligations of their leadership role.

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Page 207 Genuine public anger at ministers who refuse to resign or who pick on subordinates as scapegoats is usually reserved for ministers who are thought to be personally culpable, at least to some extent, and who therefore come under the principle that penalties should be borne by the most senior person among those personally responsible. The obligation to undertake all necessary steps to secure satisfactory rectification should therefore not be confused with the obligation to accept personal blame for collective fault. The two may coincide, as when the person in charge also shares some of the personal responsibility, but they need not do so, particularly in large organisations where much happens that is beyond the reasonable responsibility of those in charge. For the leader to adopt personal responsibility for matters that are clearly the fault of others in the organisation can, paradoxically, produce a form of spurious accountability aimed at protecting those actually responsible. Thus, in the early stages of the Watergate crisis, President Nixon took personal responsibility for the actual break-in, rejecting what he called the ‘cowardly’ option of imposing blame on those to whom he had delegated responsibility for running the campaign for his re-election (Thompson, 1980, p. 907). The effect of such a stance was that the actual culprits were protected from scrutiny and punishment while the leader hoped to gain some public kudos for assuming a guilt which properly belonged to others (Shafer, 1999, p. 13). On such occasions, elected leaders are trading on the popular confusion between role responsibility and personal responsibility, implying that their own assumption of blame as leader will somehow assuage the public's demand that the guilty should be punished. But President Nixon's attempt to take the blame for the break-in himself was unsatisfactory precisely because he was clearly not personally culpable for the initial break-in and because he was thereby foreclosing proper exposure of the guilty parties. (The subsequent cover-up, of course, was another matter. For this, Nixon was held personally responsible and eventually forced to resign.) The principle that any penalties should be borne by the most senior person or persons responsible may be widely supported by the general public in their search for vindication and retribution. But it is itself not unproblematic. Like all attempts to allocate personal penalties for collective failure, it requires the application of criteria for personal blame well beyond those enforceable in a court of law or even current in normal moral discourse. Leaders who preside over institutional failure are not only seldom brought to trial but are also not usually condemned on a personal level for having acted improperly. Their own individual

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Page 208 involvement is often too remote and indirect for them to be considered personally culpable. Among their acquaintances they are more likely to be the object of sympathy rather than of disapproval, like someone who has accidentally killed a pedestrian while driving home from an office party. If they are forced to resign or to pay some other type of penalty, they will be seen to have suffered personal misfortune rather than to have received their just deserts. Even though the victims of collective failure and the wider public may be baying for their blood, their immediate colleagues and friends, as well as other powerful people who are equally exposed and vulnerable, will urge them to keep their nerve and ride out the storm. After all, they can persuasively argue, you can do more good by staying on and helping the organisation in its hour of crisis than by a quixotic and fruitless gesture of resignation. Moreover, where leaders do share in the personal responsibility for collective failure, if only indirectly and remotely, they often seek to deflect blame away from themselves in order to avoid the resulting political damage and loss of reputation. Politicians are adept at using a variety of arguments to avoid personal blame (Bovens et al., 1999, p. 128; Hood, 2002, pp. 16–17). Buck-passing, though harder under a centralised structure of authority than when authority is dispersed, is far from impossible. Even if leaders cannot avoid having to give some sort of answer to the public, they may use their role as designated spokesperson to pass the blame to subordinates, picking on them as scapegoats or using them as ‘lightning rods’ to take the flak of unfavourable publicity on their account (Ellis, 1994). Alternatively, they seek to deflect responsibility for politically unpalatable decisions to other institutions that are beyond their formal control and immediate responsibility, one of the motivations behind the move towards outsourcing and privatisation (Chapter 5). However, politicians are generally wary of the potential public backlash that results from attempts to deny responsibility by passing the buck to subordinates. Among the arguments in self-mitigation, they are more likely to resort to claims that the action in question was actually justified in some way or did not, in fact, take place. They are less inclined to admit failure and offer excuses designed to avoid personal responsibility for it (McGraw, 1990). Indeed, even when decisions have been clearly devolved to officials or to other arms-length agencies, politicians may still be blamed when things go wrong (Hood, 2002, pp. 24–5). Experience with outsourcing and executive agencies is that decoupling service providers from direct political control does not necessarily

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Page 209 reduce the extent of political accountability as much as reformers might hope or critics might fear (Chapter 5). Whatever the precise institutional arrangements between politicians and service providers, public expectations force politicians to remain accountable for public services and to accept their share of the blame if any share of personal responsibility can be reasonably attributed to them. The problem of allocating personal accountability for collective failure thus remains legally, morally and politically intractable. The fairest method is to allocate accountability strictly in proportion to personal responsibility, an approach that tends to dilute personal accountability to the extent that no one is publicly penalised. The alternative is to single out one person or a few people to accept accountability on behalf of the institution. But this may require either the scapegoating of subordinates or the sacrifice of the most senior person responsible, each of which may be personally undeserved. The public preference appears to be for the latter option, the resignation or dismissal of the senior person responsible. This demand is particularly strong in matters of tragic or massive failure, where accountability is unsatisfied unless senior heads are seen to roll. But even this solution creates difficulties. It requires a level of personal sacrifice above the normal call of moral duty and legal responsibility and may appear unduly harsh to administer either on oneself or one's colleagues. Role responsibility for rectification, as distinct from personal responsibility, is certainly best concentrated in a single person or body, particularly an elected politician or group of elected politicians. Assuming that the single persons or bodies have general powers of control, they have the capacity to impose remedies and sanctions and can be readily identified by the public as the people from whom such responses are expected. In particular, if they are elected politicians, they will be subject to considerable political pressure to meet the public demand for rectification, thus demonstrating the advantages of compounded accountability. By contrast, where responsibility for rectification is divided and dispersed among several people with different roles, each can more easily avoid their responsibilities and pass the buck to others. Just as shared responsibility for collective failure complicates and blunts the search for personal responsibility and punishment, so too shared responsibility for exercising the very functions of accountability can impede the search for satisfactory remedies. As Mill rightly argued, the person in charge is more easily held accountable for exercising accountability than are several people with shared or overlapping responsibilities.

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Page 210 Who should be accountable: conclusion Overall, the question whether accountability obligations should be concentrated in a single leader or dispersed among several spokespeople and different groups of officials does not admit of a clear or easy answer. In all stages, there are advantages in locating these obligations with a single person who has clear authority to act and is clearly expected to act. On the other hand, if such a person is for some reason unable or unwilling to be held accountable, the public have no other points of access. Conversely, dispersing accountability within an organisation provides the benefit of multiple points of access and multiple sources of information but at the possible cost of facilitating buck-passing from one person to another. Dispersed accountability is generally preferable for the initial stages of information and discussion in that it allows more chances for vital information to be disclosed, especially by people who are not directly involved or implicated and have less to lose through disclosure. On other hand, dispersed accountability is less satisfactory for the final stage of rectification, for identifying those responsible and imposing remedies. When things go wrong, those involved want to save their own skin and blame someone else. Evasive behaviour is easier when no one is clearly required to take responsibility. Moreover, the chances of satisfactory remedial action are greater if a single accountable public authority has the power and duty to act than if this responsibility is shared among a number of different power centres. It is therefore advantageous to combine elements of singularity and plurality for different purposes, to open up government institutions to inquiry and discussion at as many points as possible while still retaining a single point of political authority, such as a president, a cabinet or individual minister, for rectification. This objective can be discerned in moves to expose government officials to direct inquiry or scrutiny without trespassing on the rights of presidents or ministers to issue executive directions. In this way, the public become much more informed about the activities of government but the task of putting things right is left with political leaders acting in response to public pressure. None the less, tension remains between the two tendencies and the respective roles of the various parties are not always easily kept in the ideal balance. Thus, too much reliance on the sole authority of leaders may close off legitimate avenues of public inquiry, as in the frequent abuse of ministerial responsibility or executive privilege as an excuse to protect departmental officials from scrutiny. Conversely, too much opening up of officials to direct scrutiny can encourage the leaders to exonerate

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Page 211 themselves from responsibility and thus frustrate rectification. Thus, if public officials are placed in the position of justifying the merits of politically controversial government decisions, they may find themselves left to carry the can when the decisions lead to unpopular consequences and the public may be deprived of an effective agent of rectification. Though discussion has focused mainly on government officials agencies, similar conclusions clearly apply to non-government institutions. For instance, in relation to who is accountable, commercial companies tend to concentrate accountability at the top, as a means of controlling the outflow of potentially embarrassing information and of safeguarding the internal chain of command, the same motivations used to support top-down accountability in government agencies. The comparative absence of alternative points of access works against the shareholders' and the public's capacity to find out what companies are doing or to debate company policies. At the same time, the reliance on monolithic topdown accountability can also deliver the expected dividends in rectification. When companies perform badly, chief executives are often under pressure to answer to the public and have both the power and the incentive to take remedial action. However, the same problems arise of pinning personal blame for collective mistakes on to senior managers. They can often manage to escape any personal penalty, either by buck-passing or by hiding behind the complexities of shared responsibility. Multiple accountability: accountability without hierarchy – networks Discussion so far has concentrated on the comparative merits of single and multiple accountability within government institutions or institutional systems that incorporate some degree of hierarchical control. Typically, a particular government department or agency, or the executive branch of government taken as a whole, is under the general direction of a politically appointed leader. The issue of who should be accountable, one or many, centres on how far the leader should be relied on as the sole point of contact with the public. Should other members of the organisation be confined to internal accountability to their superiors or should they be directly accountable to the public and other accountability bodies? The question in this form assumes the existence of a hierarchical command structure that can play a more or less exclusive role in accountability. But the issue of single versus multiple accountability also arises in connection with non-hierarchical institutional structures

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Page 212 such as networks where formally independent groups or individuals cooperate for shared purposes (Chapter 2). Networks arise, for instance, when responsibility for public service provision is shared between core government departments and independent agencies (Chapter 5), or between different levels of government, as in federal systems. Because networks lack a unified chain of control they cannot sustain an effective single point of accountability. Here the issue is not so much whether to opt for single or multiple accountability but rather whether the inevitability of multiple accountability in such structures is a source of strength or weakness. In general, the same conclusions apply. Networks lack the characteristic advantages associated with single accountability based on a single chain of control. No one person or organisation is accountable for the outcome as a whole, thus removing the possibility of engaging in debate with someone who clearly owns a policy and can be expected to take decisive action in response to discussion. When things go wrong, buck-passing becomes much more likely because responsibility is divided among different parties each of whom can plausibly pass the blame on to others. On the other hand, institutional structures with more than one focus of authority are able to exhibit the characteristic virtues of multiple accountability. By supporting several power centres they can provide a variety of points of access to members of the public or their representatives who are seeking information about government decisions or wishing to debate the merits of such decisions. Some of the accountability problems implicit in purchaser–provider networks have already been mentioned (Chapter 5). Where objectives are blurred and responsibility shared through partnerships and relational contracts, buck-passing is encouraged. When mistakes are made, purchasers blame providers for faulty implementation while providers blame purchasers for inadequate direction of resources. The absence of hierarchy and direct political control reduces the reach of political leaders and therefore reduces political accountability. Non-government service providers are less accountable through political channels than are departmental officials under direct political control. Independent government agencies, though more susceptible than non-government bodies to informal political controls, can also be less easily called to account through pressure on political leaders. The loss in accountability is particularly significant in Westminster systems, where conventions of ministerial responsibility are firmly entrenched and where any barrier to ministerial intervention closes off a potent channel of public accountability. But in all jurisdictions, the absence of clear leadership

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Page 213 and hierarchical control poses problems for traditional expectations of accountability (Agranoff and McGuire, 2001). Admittedly, when networks are used for delivering services to members of the public, they can offer increased flexibility in the treatment of individual cases and have the potential to provide improved accountability directly to the public (at least in relation to particular accountability for individual cases)(Chapter 5). Moreover, in relation to general accountability, networks can also provide some of the familiar advantages of pluralism. The coexistence of different members in a network and their relative independence from one another can offer extended opportunities for public debate and discussion of government policies. Network relationships, with their commitment to negotiation in the pursuit of shared objectives, involve mutual accountability obligations under which each party is obliged to account to the others about progress made towards common goals. For instance, accountability through policy dialogue (Chapter 2) operates largely through policy networks of groups and individuals who share a common interest in a particular policy area and who join in mutual exchange of information and argument. Similarly, purchaser–provider interaction in areas such as social policy requires professionals to keep each other informed and to justify their actions to each other. From this perspective, networks can be viewed as social groupings where a division of responsibilities helps the respective parties to watch each other and keep each other honest, an extension of the separation of powers theory advocated by James Madison and others (Braithwaite, 1997, pp. 310–13, 340–4). On the other hand, the closeness of network members and their commitment to mutual cooperation can easily lead to cosy collusion and prevent the tough questions from being asked. A network of committed professionals in a common programme can operate as a flexible learning organisation becoming more responsive to the public's needs through ongoing feedback and shared experiences (Considine, 2002). But responsiveness and commitment should not be equated with accountability (Chapter 1), however tempting that equation may be to the professionals themselves. Unless formally answerable to the public or its representatives and subject to direct public scrutiny, such providers are largely unaccountable. The central defining characteristic of networks is trust (Rhodes, 2000; Rummery, 2002), a value which, in some respects, is the antithesis of accountability or at least in tension with it (Chapters 1 and 7). People or groups who trust each other and value harmonious relations are less likely to hold each other to account, particularly when things go wrong and blame needs to be apportioned and remedies imposed.

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Page 214 The critical issue is how far the accountability internally within the network between individual network partners is translated into external accountability to the wider public. Much depends on the nature of the membership and the degree of openness in a particular network. Network members representing diverse social and economic interest groups are often expected to relay information and arguments back to their respective constituencies. They act as conduits and facilitators for a broader public debate, a role which forces them to distance themselves to some extent from other network partners and to maintain some critical detachment. Network members drawn from non-profit organisations are especially committed to civic consultation and grass-roots feedback (Considine, 2001, pp. 160–1). On the other hand, networking between government officials and favoured experts or between governments and commercial companies tends to be shrouded in confidentiality and sequestered from the public. If the participating members themselves accept no obligation to answer to the public, then the public is effectively shut out of the dialogue. Transparency and participation for a chosen few can come at the expense of lack of transparency and participation for the rest (Shapiro, 2001). Though networks may in theory offer opportunities for more widespread public participation and discussion, in practice they often remain restrictive and exclusive (Rhodes, 1997, p. 58). Again, a key factor is the level of compounded accountability, that is the extent to which individual network members are accountable for exercising their accountability obligations. Where members are individually required to answer publicly for at least their own share in the joint activity and can be held to account for failing to provide satisfactory answers, a higher degree of overall accountability can be achieved. Interest group leaders and non-profit representatives may be answerable to their rank-andfile members, though not as comprehensively as politicians are to the public. Commercial companies and independent statutory authorities are generally even less accustomed to facing the public and even less open to criticism if they remain silent. Thus service delivery networks consisting of politicians, officials and commercial contracting organisations are less accountable overall because some of their members are themselves less accountable. Multiple accountability: accountability without hierarchy – federations Multiple accountability is also a familiar feature of federalism which is a species of network. In federal systems legal authority is constitutionally

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Page 215 divided between more than one level of government. Responsibility for particular government policies is regularly shared between the different levels of government, a pattern of overlapping responsibilities known as ‘cooperative federalism’ (Galligan, 1995, Chs 2 and 8). If each government function were clearly allocated to only one level of government, as suggested in the ideal theory of ‘coordinate’ federalism (for example, Wheare, 1946), specific issues of accountability would not arise. Each government would be accountable for its own policies and decisions without reference to other governments. That is, each government would operate like a unitary government within its own sphere of responsibility. In practice, however, federal systems tend to be ‘cooperative’ rather than ‘coordinate’, with a high degree of shared and overlapping functions, and it is these overlaps that give rise to issues of multiple accountability. For instance, federal (national) governments typically raise more revenue than they need for their own purposes and transfer the balance to state (or provincial) governments. In many cases, such funds are ear-marked for specific state programmes and must be spent according to nationally determined guidelines, though state governments are free to decide on the interpretation and application of such guidelines. The result is that final responsibility for outcomes is shared between both federal and state governments. Such cooperative arrangements are common in the areas of major social spending such as health, education and welfare as well as in environmental protection and the provision of infrastructure. Even when there is no such transfer of funds, for instance in the areas of criminal and commercial law, governments and agencies at different levels frequently cooperate in order to integrate the policies of individual states into a nationwide perspective. Such sharing of responsibility among legally independent levels of government helps to open up more avenues of accountability. In comparison with the single line of command typical of unitary systems of government, the federal division of powers means that members of the public with an interest in an area of shared policy have two elected governments that they can approach in search of information, explanation or remedies. If rebuffed at one level, they can turn to the other and perhaps find a more receptive point of contact. Where federal and state governments are in the hands of opposing political parties, as frequently occurs, an individual or group with partisan affiliations can be assured of a sympathetic hearing by one government or the other. Moreover, recourse to a constitutional court with power to determine the limits of each government's jurisdiction provides an additional forum for citizens to hold governments accountable. The duplication of

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Page 216 accountability agencies, such as government auditors and ombudsmen, also helps to strengthen government accountability. In Australia, for example, the Commonwealth and state auditors-general have been able to provide dual scrutiny of shared policies in fields such as health care and indigenous welfare. In addition, accountability is also fostered by the natural rivalry and antagonism endemic between federal and state governments even when run by politicians from the same party. Different levels of government tend to monitor each other and are quick to voice public criticism if they perceive policy weakness or failure in each other (Painter, 1996, pp. 87–9). Thus, federal systems, with their multiple points of accountability, can certainly help to make government as a whole more responsive to a wider range of public views both national and regional. Again, however, responsiveness as such is not necessarily to be equated with accountability (Chapter 1) and the greater responsiveness of federal systems is partly due to other factors besides the increased number of accountability points. For instance, the wider range of elected politicians and the diverse contributions of both national and local bureaucracies help to make federal systems more representative of national and local interests without any input from additional mechanisms of accountability as such. Similarly, the fact that federal systems divide and disperse constitutional powers, and thus reduce the capacity for government institutions to ride roughshod over the rights of citizens, is not, in itself, an instance of superior accountability. Holding power accountable is only one means of constraining power and is to be distinguished from other means, including constitutional checks and balances (Chapter 1). None the less, even when ‘accountability’ is restricted to its core meaning, federalism can still be said to offer considerable accountability dividends. At the same time, federalism has also been subject to criticism on the ground that it lacks the characteristic virtues of single, centralised accountability. Where no one government is fully responsible for a given policy and decisions, no one leader or agency can be called on to answer for the policy as a whole. If funds for a particular policy are raised by a federal government but spent in ways determined by state governments, which government can be held accountable for the policy outcomes? The federal government, having no direct control over how the funds are spent, can hardly be held accountable for the outcome. The state government, on the other hand, may be severely constrained by the level of funding which is beyond its control. When the policy comes under criticism, each level government can blame the other, often with good reason. Where no government is prepared to

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Page 217 accept ownership of the policy, members of the public are frustrated in their wish to debate the policy's merits with those responsible or to see remedies imposed for policy failure. ‘Vertical fiscal imbalance’, whereby federal governments raise more than they spend themselves and make substantial transfer payments to state governments, has been frequently criticised on the ground of reduced accountability. True fiscal accountability, it is argued, requires that each government should raise the revenue needed for its own policies so that governments can be held accountable by the voters whose taxes they are spending (Walsh, 1992; Kernaghan and Siegel, 1999, p. 466). If the link between paying taxes and receiving services becomes blurred, governments can act irresponsibly and avoid just retribution from the voters. These arguments all rely on the advantages of accountability exercised by a single authority possessing control over the outcome, particularly the advantage of the reduced risk of buck-passing. Lacking a single line of control, federal systems are more prone to blame shifting than are unitary systems. A similar argument concerns the relative lack of legislative oversight over federal decision-making. The task of managing intergovernmental relations between different levels of government is largely carried out by the executive branches of the various governments operating at arms-length from their respective legislatures (a system known as ‘executive federalism’). All federal systems have evolved an elaborate structure of intergovernmental councils, committees and consultative networks covering areas of overlapping jurisdiction and providing forums in which political leaders and their bureaucratic representatives can negotiate and implement shared policies. The policies and decisions that emerge from these negotiating processes usually need to be endorsed by the respective governments. Where enabling legislation is required, approval from the respective legislatures must also be sought. However, because responsibility for the joint action lies beyond any of the individual governments, none of the legislatures concerned are able to question those fully responsible for it. Normally, on matters exclusive to their own jurisdiction, legislators would expect to hold members of their respective executives accountable. In these intergovernmental cases, however, those collectively responsible are beyond the legislatures' immediate purview and are thus shielded from direct legislative scrutiny. The accountability deficit is particularly striking in parliamentary systems where members are accustomed to questioning ministers who have the power to determine government policy. The devolution of such power to other bodies beyond the reach of

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Page 218 parliamentary scrutiny is keenly felt, as it has been, for instance, in relation to the intergovernmental institutions of the European Union (Harlow, 2002, pp. 79–92; Wallace, 2002). In this respect, political control and therefore political accountability are definitely reduced through a federal division of powers. As with networks generally, the extent of such reduction depends on the degree to which accountability is compounded. Federal government networks which consist of elected leaders from different levels of government or their official deputies, tend to be comparatively accountable because each member is individually subject to significant public scrutiny and faces political damage if he or she refuses to answer to the public. Information and discussion at least are more forthcoming even if rectification is sometimes deficient. In this respect, traditional national federations such as the United States, Canada and Australia, where leaders at all levels are directly elected and publicly accountable, offer more accountability than the European Union where the central executive bodies of the Council and Commission are not directly elected or accountable. The European Parliament has been able to exert a degree of control over the Union's executive institutions but much less than that possible for normal legislatures (Harlow, 2002, Ch. 4). Negotiation between national governments is carried out according to the traditionally closed and non-transparent processes of international diplomacy which are grounded in the royal prerogative and executive privilege (Shapiro, 2001). To whom and how should accountability be owed: to one or many? Quite apart from whether one person or many should be held accountable, the issue of single or plural points of accountability also arises in connection with the number of bodies to whom governments and government agencies should be accountable. Should those who are accountable be accountable to one or to many bodies. For instance, should elected leaders be accountable only to the voters or should they be accountable to a range of groups and bodies, including the legislature and the courts? Should public officials be accountable only to their immediate superiors or also to other institutions, such as the legislature, government auditors, specialist regulators and ombudsmen? Is a multiplicity of accountability avenues (to whom) and mechanisms (how) preferable to one or only a few? Here there are clear advantages in a plurality of accountability directions. The more people and bodies that an agency or official must

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Page 219 give an account to, the more pressure that an agency or official will be under to reveal important information, to engage in public discussion and to accept redirection. Where agencies and officials need answer to only one or even just a few monitoring or regulating bodies, they are more able to present themselves in a favourable light and to avoid thorough scrutiny. Conversely, a variety of account-holders is more likely to guarantee a range of relevant perspectives and interests which will help to illuminate different aspects of the accountors' activities. A circle of spotlights uncovers more than is revealed by a single spotlight, however strong that single light may be. This is the rationale behind the movement for multidimensional, 360 degrees accountability, a concept pioneered in business management and then transferred to the public sector (Behn, 2001, pp. 197–207). Internally, within organisations, it is argued, individuals should be accountable not just upwards to superiors but also downwards to subordinates, as well as horizontally to colleagues and fellow team members (though some of these directional metaphors are to be treated with caution (Chapter 1)). Externally, agencies should be subject to scrutiny from as many different quarters as possible. In some cases, different accountability mechanisms may concentrate on different types of activity. For instance, auditors concentrate on financial compliance while appeal tribunals are restricted to investigating the reasonableness and fairness of individual administrative decisions. But if the multiplication of accountability mechanisms is no more than dividing different types of activity among different accountability agencies, the main advantages of diversity are missed. The scrutiny may be more specialised and expert but each activity is still being held scrutinised by only one authority. The main value of using a variety of accountability mechanisms comes from applying different perspectives to the same activity, as when a particular government policy is discussed in the legislature, the media, policy communities and election campaigning, or a particular decision is reviewed by an internal grievance procedure, an ombudsman and a court or tribunal. As is implied in the concept of 360 degrees accountability, assessing a person's overall performance from a range of different angles will yield a comprehensive and balanced judgment. A diversity of viewpoints can also occur with networks of independent institutions each of which is exposed to its own set of regulatory and monitoring agencies. For instance, in federal systems, each level of government is scrutinised by its own legislature, judiciary and auditors. Individual members of the public or particular interest groups who are unable to gain satisfaction at one level of government can then have

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Page 220 recourse to another. Similarly government agencies and non-profit organisations jointly involved in providing a public service are each accountable through different channels. In this way, the range of accountability mechanisms is enlarged, increasing the possibility that those responsible for shared policies and decisions will come under critical scrutiny. Though the dispersal of responsibility in networks can sometimes make it harder to call decision-makers to account (see above), an increase in available accountability mechanisms can help to offset such difficulties. Allowing multiple mechanisms of accountability increases not only the range and diversity of perspectives but also the chances that organisations will be exposed to scrutiny from people with no interest in concealing improper actions. Monopolistic regulators can too easily become dependent on those they regulate and often have more to lose than to gain by disclosing questionable activities (Chapter 4). A proliferation of scrutinising bodies increases the likelihood of effective accountability because at least some of the scrutinising bodies may have no vested interest in the activities concerned and may indeed enhance their reputations by honest enforcement. Moreover, with a plurality of bodies examining the same activities, the integrity of each body's scrutiny is itself subject to checks from the others. Accountability agencies, whose function is to prevent the abuse of power in other institutions, are themselves not exempt from the temptation to abuse their own powers (the familiar ‘who will guard the guardians?’ paradox). A legislative committee covering the same ground as an auditor helps to keep the auditor honest and vice versa. An inspector and an ombudsman scrutinising the same institutions, as for instance prisons in the United Kingdom (Hood et al., 1999, Ch. 6), will critically review each other's investigations. There are thus advantages in a system of institutional pluralism where different accountability agencies with overlapping functions are able to monitor each other's performance as agents of accountability. Indeed, explicit competition between rival accountability agencies can be encouraged as a means of sharpening their performance (Hood et al., 1999, pp. 215– 19). Providing a framework for different accountability agencies to examine each other critically helps to create a virtuous circle of compounded accountability in which each agency is subject to scrutiny from at least one other agency (Chapter 7). Admittedly, pluralism and diversity are not automatically beneficial. Much depends also on the effectiveness of individual accountability agencies, including the extent of their formal powers and their determination to use them. The proliferation of accountability agencies with

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Page 221 overlapping jurisdictions, while sometimes acting as a spur to improved overall accountability of individual institutions, can also produce the opposite result. Each individual accountability agency can sometimes leave the more intractable or low-profile issues for some other agency to take up, with the consequence that such issues fall between the cracks and remain unexamined. Some accountability tasks are too costly, in terms of either the resources required or the political risks, for an agency to embark on them willingly when there is a prospect that some other agency may do so. In business regulation, for instance, illegal or improper actions sometimes go undetected because regulatory bodies with overlapping responsibilities mistakenly rely on each other. In Australia, a major insurance company (HIH) was allowed to collapse in 2002, in part because neither of the two main regulators kept an effective eye on its operations. This is yet another instance of the buck-passing dilemma raised by pluralising the points of accountability. Wherever formal responsibilities are shared, in this case the responsibility for holding particular people or institutions accountable, there is a risk that no one will undertake them and accountability will be frustrated. Moreover, a plurality of accountability agencies and mechanisms can provide opportunities for the person or institution being held accountable to avoid the level of accountability normal under a more monolithic structure of accountability. In the commercial private sector, where companies operate in several jurisdictions or can move jurisdictions, they can ‘forum-shop’, searching out the accountability regime that will offer the greatest leniency for themselves and therefore least protection for the public (Bratton et al., 1996). In the international arena, where regulatory regimes are fluid and still evolving, powerful governments can behave in the same way, ‘forum-shifting’ particular issues between alternative regulatory regimes to suit their national interests. The United States, for instance, had discussion of intellectual property moved from UNCTAD to the GATT which was a more sympathetic forum (Braithwaite and Drahos, 2000, Ch. 24). Similar flexibility over which account-holder to respond to can also occur within national governments. In the United States, federal government agencies are accountable to both the president and the Congress while being controlled by neither, a structure that opens the way for the agencies to play one side off against the other (Wilson, 2000, pp. 236–7). They are able to achieve a degree of independence from political control which would be unusual in the more centralised executives of parliamentary systems. By being able to ‘juggle’ their commitments to each particular master, they are in position to resist what they

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Page 222 consider to be the more unpalatable aspects of political accountability from any particular source (Radin, 2002, Ch. 5; Radin and Romzek, 1996, p. 58). One reason for the lack of accountability of international agencies such as the World Trade Organisation and the International Monetary Fund is that they are accountable to a range of constituent governments, none of which is clearly responsible for the outcomes (Woods and Narlikar, 2001). Where lines of accountability are unclear, the decision-makers concerned have more freedom to choose which interests to prefer and which to ignore. Multiple avenues of accountability can often be experienced more as a burden than as an opportunity to escape accountability. Officials are asked to face in different directions, to elected leaders, specialist accountability agencies and directly to the public they serve. Government social workers, for instance, are frequently torn between their duty to satisfy individual clients, who may require the most generous and sympathetic response, and their duty to follow the policy of the elected government, which often calls for strict application of mandated policies. They may be drawn to a bottom-up view of government policy implementation which gives priority to street-level bureaucrats and their dealings with local citizens and plays down the relevance of generalised policies issuing from a distant political centre. On the other hand, elected governments and the head-office officials who serve them can claim their own accountability to the electorate and a corresponding top-down right to insist that rank-and-file officials answer to them. From the public's point of view, each avenue of accountability has a valid role to play and the conflicting pressures placed on officials are necessary to ensure adequate accountability of complex government structures with contested values. Nor is such tension reserved for the public sector alone. Even in the private commercial sector, where the greater clarity of overall objectives removes some of the ambiguity in accountability, members of firms may still be subject to cross-pressures from managers, regulators, professional associations and customers. The scope of these different mechanisms inevitably overlap in certain respects, thus giving rise to conflicts over which mechanisms should be given priority and over who should be listened to and replied to first. The potential conflict between competing accountability demands can be mitigated by establishing clear priority between them. For instance, individual employees are expected to give priority to their legal accountability to the courts for compliance with the law. All codes of conduct recognise the right and duty of employees to disobey an

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Page 223 unlawful instruction. Moreover, within the confines of legality, most institutions usually assign overall priority to top-down accountability, requiring individuals to answer through the hierarchical chain of command ahead of their obligations to answer directly to the public. In the exercise of their professional discretion, government officials will normally give precedence to the need to justify their actions to their superiors, treating other channels as supplementing, rather than overriding, their obligations to their superiors. In Westminster systems especially, deeply entrenched conventions of ministerial responsibility guarantee the priority of top-down accountability and reduce the scope for bottom-up independence. In the United States, on the other hand, the division and separation of powers allows more room for bureaucratic discretion and thus encourages a greater degree of tension between competing accountability demands. Even so, such balancing of accountabilities is a feature of all government systems, Westminster systems included. Ministerial responsibility itself is not monolithic, given the need for senior officials to be accountable to the government as whole, including the prime minister, as well as to their own particular minister (Chapter 3). Moreover, the supplementary channels themselves, such as accountability to Parliament or to members of policy networks, give rise to their own tensions, for instance over who should be privileged with what information at what time or who should be allowed priority in debating government policy. Any such confusion is a necessary consequence of supporting a multiplicity of accountability mechanisms that focus their spotlights on the same activities from different angles. Conversely, attempts to clarify structures of accountability by seeking to remove all overlap among competing accountability demands will be detrimental to the public's interest in holding its governments and corporations to account. To whom and how should accountability be owed: conclusion The respective strengths and weaknesses of single versus plural accountability which apply to who is accountable thus also recur in relation to those to whom accountability is directed (see Table 6.1). A plurality of mechanisms and accountability agencies, on the basis of strength in numbers, generally increases both the range and depth of scrutiny to which governments are subject. On the other hand, where there are risks of buck-passing or where remedies need to be imposed, a single designated accountability agency can deliver certain advantages. Just as

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Page 224 Table 6.1 Single and multiple accountability

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Page 225 a plurality of accountors allows for more openness at the cost of blurred responsibility and blunted rectification, so too a plurality of account-holders, though providing more openness and transparency, can sometimes imply a weakening of centralised control. The solution, again, may be to provide as many mechanisms and directions of accountability as possible while not undermining the overriding responsibility of a single accountability agency. Again, an important factor is the extent to which accountability can be compounded by holding accountability agencies themselves accountable for performing their accountability obligations. In this respect, a plurality of accountability agencies has the advantage that the different agencies, quite apart from their scrutiny of government, can also watch each other and keep each other up to the mark. At the same time, the main strength of a single accountability agent lies in the fact that, having clearly designated and exclusive obligations, such an agent is less able to avoid responsibility for exercising such obligations. Particularly when elected politicians are placed in this central role, they can be held publicly accountable for the exercise of their accountability obligations.

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Page 226 7 Accountability and its Limits Transcending boundaries A number of recurring themes emerge from the foregoing survey of accountability. The first, and overarching theme, is that accountability is context-dependent. It varies according to the institutional setting, the type of activity, and the respective interests and capacities of the parties to the accountability relationship. The logical dimensions of accountability may be common (who, to whom, for what and how) but what they designate defies simple categorisation and cannot be adequately captured in a simple typology or a finite set of accountability models. In the first place, structures of accountability differ according to the perspective from which they are analysed. The starting point can be the individual citizen, and accountability can then be described in terms of the various avenues open to the citizen in trying to hold governments accountable, whether for general policy or particular decisions. This approach was adopted in the analysis of government accountability in Chapters 2 and 3 and in the comparison between the sectors in Chapter 4. Priority is then given to direct mechanisms, such as elections, complaints procedures, judicial review and approach to legislative representatives, followed by the more indirect mechanisms such as audit and the media. Alternatively, one can begin on the inside, say with the individual agency or government bureaucrat, and map the different accountability pressures to which they are subject. Here, as in some influential studies of accountability in practice (Day and Klein, 1987; Romzek and Dubnick, 1987), other aspects of accountability become more salient, including internal accountability within the bureaucratic chain of command and professional accountability to colleagues. More attention is given to the choices made by individual office-holders and less to those

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Page 227 made by members of the public. Such differences of standpoint also spill over into the definition of accountability itself, with insiders more sympathetic to definitions that include professional responsibility and responsiveness and which are not restricted to external scrutiny and sanctions. Each particular starting point has its own validity depending on the intended focus. However, the variety of possible perspectives negates any chance of constructing a comprehensive structure of government accountability, one that could be reduced to a two-dimensional flow chart of accountability and control. Such charts may usefully illustrate some major aspects of accountability in particular institutional settings (for instance, Day and Klein, 1987, p. 11; Mulgan, 1997b, p. 30; Flinders, 2002a, p. 22) but they cannot map all the complexity of accountability pressures within a government system. Secondly, government accountability structures differ according to the constitutional and legal framework, with clear and significant differences between parliamentary systems grounded in Westminster principles and a presidential system such as the United States. Westminster systems base their political accountability on the central chain of ministerial accountability that may be supplemented by other mechanisms but which is never superseded as the key link between government and the public. Political accountability in the United States, on the other hand, is fundamentally pluralist with government agencies owing divided loyalties to the president and Congress as well as to stakeholding interests. These differences help to explain why analyses of government accountability are normally confined to one constitutional system or the other and do not attempt to straddle the two. A third set of complicating differences distinguishes public sector accountability from accountability in the private sectors, both commercial and non-profit. Each sector operates under a distinct legal framework supported by differing public expectations of accountability. Government organisations are subject to continuous legislative scrutiny in a way that has no parallel in the private sectors. Elected politicians are required to make themselves available to a much higher level of media questioning than is common in non-government activities. Legal remedies in public and private law derive from divergent legal principles. Again, the sharp differences between the sectors have encouraged analysts to specialise, with expert discussion of accountability usually restricted to either the public or the private sectors. The differences in accountability systems deriving from basic contrasts in legal status and constitutional structure are important and

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Page 228 pervasive and the analytical division of labour is readily understandable. At the same time, one of the purposes of the present study has been to break down some of the barriers that have separated the different fields of accountability analysis. In this way, the commonalities across different systems and sectors begin to emerge, while the differences can be understood more clearly. For instance, combined analysis of Westminster parliamentary systems and the United States presidential system helps to identify certain underlying features common to accountability in all government systems. For instance, elections are universally blunt instruments of accountability. The agenda of legislative committees everywhere is driven more by the partisan agendas of legislators than by any disinterested concern for efficiency and effectiveness in government. Government auditors have followed a common path towards performance auditing with similarly mixed results. Policy communities in all systems are similarly biased in favour of certain well-established interests. Reliance on a plurality of accountability agencies is not unique to a system of separated powers any more than hierarchical accountability is unique to Westminster systems. Equally important has been the attempt to bridge the divide between accountability in the public and private sectors. Though the overall focus has been directed more towards the public sector, sufficient explicit comparison between the sectors has been provided to indicate the main elements of private sector accountability and to offer evidence of certain basic similarities. First, and most obviously, a number of accountability mechanisms operate in all sectors. For instance, important elements of the common law, such as criminal law and the civil law of torts and contract, can be applied to both public and private sectors, if less extensively to the public sector. Both government organisations and nongovernment organisations are subject to a range of similar regulatory supervision in areas such as construction, land use, occupational health and safety and so on. More broadly, the rationale for accountability is similar across all sectors. The need for the powerful to be called to account is not unique to governments but applies equally to non-government institutions, both commercial companies and non-profit organisations. The ‘principle of ownership’ applies to all large organisations where those in charge are exercising delegated power on behalf of those whose interests they represent, whether citizens (in the case of governments) or owners (in the case of private organisations). In addition, the principle that those who harm the public should be accountable to the public (the ‘principle of affected rights and interests’) applies as much to the non-government

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Page 229 sectors as to the government sector. For the person harmed, the question whether the injury has come from a publicly or privately owned organisation is often immaterial. The two main principles, ownership and affected rights and interests, may apply differently between the sectors. In particular, ownership covers the whole community in the case of democratic governments but only sections of the community in the case of private organisations. None the less, the basic principles are not unique to any one sector. Moreover, a number of general features of accountability are found in all sectors. For instance, the tension between single and multiple accountability, which was discussed primarily in relation to governments (Chapter 6), is found equally in non-government sectors, as is the problem of ‘many hands’ and the allocation of collective responsibility. Awareness of such underlying similarities helps to place the undoubted differences between the sectors in a more balanced perspective and justifies an approach to analysing accountability which is sufficiently flexible to embrace all sectors as well as governments based in different constitutional traditions. Accountability compounded (guarding the guardians) A major factor in the success of any accountability regime is the extent to which accountability is compounded. In a complex social and political system, the enforcement of public accountability is of necessity allocated to public representatives such as politicians and to specialist agencies of accountability, such as auditors and courts. How well they perform their function as agents of public accountability depends very heavily on how accountable they are themselves for their own performance. How well are the guardians themselves being guarded? For example, elected politicians, apart from being accountable for their own policies and decisions are also accountable for holding their subordinates in the government bureaucracy to account for actions done by these subordinates. Because political leaders depend on voter support and because their political opponents are poised to highlight any perceived weaknesses, they have strong incentives to use the bureaucratic chain of command to inquire into bureaucratic actions and to impose appropriate remedies. Thus, in the United States, the president, and the senior officials who act in his name, are regularly called to account for the manner in which they have answered the public's questions and imposed any necessary remedial action. Admittedly, political leaders frequently prevaricate in response to questions about their own dubious actions. However, when the personal responsibility is clearly

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Page 230 not theirs and they are acting as the public's agents of bureaucratic accountability, they have much more to gain from open admission of collective failure and from energetic pursuit of those responsible. Attempts to stall and cover up are far more risky, given their constant exposure to legislative and media criticism. Political leaders are thus being themselves held highly accountable for holding others accountable. Similarly, elected politicians in the legislature who engage in scrutiny of the executive in legislative debates, in committee investigations or in inquiries on behalf of local constituents, are also themselves accountable for how effectively they have performed their scrutinising role. Local party officials and local media outlets observe and report on their campaigns on behalf of their constituents. Conscientious and effective action is likely to be rewarded at the ballot box while ineffectual advocacy may be punished. Again, the guardians are being guarded and accountability compounded. Similar results can also be found in the more open types of interest group organisations with effective grass-roots participation. Representatives who know that they will themselves be under scrutiny from their rank-and-file members are more likely to keep the policy-makers on their toes and accountable to stakeholders. By contrast, where representatives operate as part of a self-appointed elite and are not held accountable by their members, their performance as agents of accountability can become slack. In the commercial private sector, boards of directors, who are the counterparts of elected politicians and are similarly obliged to protect the interests of shareholders by holding the management accountable, are themselves much less publicly accountable for how well they perform their accountability role. They are not subject to the same degree of relentless partisan criticism and scrutiny as politicians. Though directors are formally elected by shareholders, most elections are uncontested and the extent of accountability through the electoral process is limited. Apart from the general imperative on the board as a whole to deliver a satisfactory return on investment, the performance of individual directors is largely unseen and not subject to shareholder scrutiny. Other external oversight, through auditors and corporate regulators, has also been exposed as far from adequate. One of the reasons for the higher levels of accountability in the public sector is thus the greater accountability of elected politicians acting in the role of agents of accountability. Compounded accountability, where those holding others to account are themselves held accountable for how they exercise accountability, is also an integral characteristic of most systems of legal accountability. In practising judicial review of government agencies, most courts and

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Page 231 tribunals are part of an appellate structure in which the decisions of one body can be appealed to a higher level. Judges and tribunal members are thus regularly held accountable by judicial colleagues with superior authority. Indeed, the chain of accountability can start before recourse to the formality of judicial review, when the decisions of internal complaints procedures or external reviewers such as ombudsmen are appealed against. In all such cases, those involved in making accountability decisions are aware that they themselves can be held to account by someone else. Admittedly, such chains of legal accountability formally end at a certain point beyond which further appeal is impossible. However, most legal proceedings, even those before courts of final jurisdiction, are conducted in public and the courts' judgments and the reasoning behind them formally published. Judgments that are clearly unreasonable or outlandish will be subject to intense public criticism and will bring judges and the law into disrepute. The transparency of the legal process means that courts are highly accountable in terms of information and discussion which are the prior and, in many ways, most important aspects of accountability. Nor are the highest courts totally beyond rectification, given that the legislature can move to change the law in the light of unacceptable judicial decisions. The ultimate accountability of courts to the public through the legislature illustrates another form of compounded accountability which relies on reciprocated, mutual accountability (Chapter 1). In such a structure, two or more parties are accountable to each other, rather than each being accountable to a different party, as in a linear chain of accountability. The legislature and the judiciary, as well as holding the executive to account, are also accountable to each other. Courts can hold legislatures accountable for adherence to the law, including the basic rules of the constitution, while legislatures can hold the judiciary to account for reasonable application and interpretation of existing law. Outright intervention of one branch into the activities of the other is comparatively rare. But both conduct their proceedings in public and are carefully observed and monitored by each other as well as by general public debate. In this sense, their mutual accountability helps to keep them up to the mark in their exercise of accountability over the executive. Similarly reinforcing effects through mutual accountability are found in other instances where accountability agencies exercise overlapping jurisdiction over the same activities. Government auditors and legislative committees, ombudsmen and inspectors, interest groups and media commentators, regulators of similar functions at different levels of

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Page 232 government all evaluate and question each others' performance as watchdogs and keep each other up to scratch. The same function is also performed by non-governmental monitoring groups, such as human rights or environmental organisations, which not only look out for abuses of their particular values but also keep an eye on the efficacy of government regulators in the same areas. By contrast, sole regulators of a particular activity or institution, whose activities are not matched or monitored by anyone else, are liable to become slack and too close to those they are supposed to hold accountable (Chapter 6). Mutual scrutiny thus compounds accountability by making accountability agencies accountable to each other. The reciprocal nature of such accountability also helps to solve the potential infinite regress implicit in linear chains of accountability. If the only way of making one body accountable for how it holds others accountable is to establish a further agent of accountability to watch how this body holds others accountable, then this further agent itself will need to be held accountable by someone else and so on ad infinitum. The problem of how to guard the guardians thus leads to the search for further guardians to guard existing guardians, a search that must be ultimately fruitless in the absence of a final guardian who does not need guarding. However, once the possibility of mutual accountability is accepted, the single straight line can be turned into a circle, or a criss-crossing pattern, in which every member is accountable to at least one other, or possibly several others (Braithwaite, 1999). Clarity versus complexity Another recurring theme is the value of clarity in accountability systems and the frequent difficulty of securing such clarity because of the complexity of circumstances. Clarity has obvious benefits for all dimensions of accountability in several respects. First, there are advantages in being able to identify clearly who is accountable, not only in the simplest case where one person or body accepts sole accountability but also in cases of multiple points of access. Those wanting to hold an organisation to account have an interest in being able clearly to identify those whom they can approach. Secondly, accountability is facilitated if those who are accountable have a clear idea of those to whom they are accountable. Officials need to know to whom they must report, both inside and outside their organisations. Accountability charts, showing who accounts to whom, are an essential feature of all wellrun organisations in all sectors. Without such clarity, an organisation will fail to

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Page 233 meet its obligations to its owners and the public. In addition, each organisation needs to know which external bodies have the authority to call it to account. Similar considerations apply, thirdly, to the mechanisms (how) through which accountability takes place. Each party to the accountability relationship needs to know clearly not only whom to deal with but how they are expected to deal with each other. Finally, the subject matter (for what) of accountability needs to be set out as clearly as possible so that those accountable know what they will be questioned about and those questioning know what to focus on. Accountability often works best, as for instance in the core case of financial accountability, where results can be reported as unambiguously as possible. Clarity, however, is not always achievable and may not even be desirable. The previous chapter demonstrated the value of having multiple points of access (who) and multiple accountability agencies (to whom). Such multiplicity almost always involves an element of potential confusion caused by overlapping responsibilities, on the part of both accountors or account-holders. To some extent, the problems of overlap can be reduced by dividing responsibilities, allocating different roles to different office-holders or agencies. On the other hand, the benefits from multiplying both accountors and account-holders depend on having more than one perspective on the same activity. Thus, some degree of complexity and even ambiguity in who is accountable and to whom they are accountable is an inevitable element in any satisfactory system of accountability. Another area where clarity is sometimes hard to achieve is the subject matter (for what) of accountability. Many of the performance objectives for which institutions and individuals are held accountable tend to be vague and open-ended, thus making it difficult to pin down precisely what has been achieved and whether performance falls short of what was exported. Such imprecision is notoriously characteristic of political objectives which typically involve issues of quality rather than quantity and are subject to continuing debate as values and interests clash and circumstances shift. But open-ended expectations are found in all sectors, private as well as public, for instance in employment relationships and other forms of relational contracts, such as partnerships and alliances. Accountability in such settings needs to focus on dialogue and discussion which are the appropriate methods for dealing with imprecise and open-ended issues. The more straightforward elements of accountability, such as the reporting of unambiguous information or the rectification of obvious failures and mistakes, are usually out of place.

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Page 234 In response, accountability often tends to gravitate to those tasks that are more readily specifiable. In the public sector, for instance, the well-known concern for procedure ahead of results is partly due to the fact that breaches of due process are much more readily identified and rectified than are deficient outcomes. Accountability agencies such as auditors and courts can often focus more effectively on determining whether the right procedures were followed rather than venture into the more contestable issues of whether the ‘right’ decisions were made. Amongst outcomes themselves, more attention is given to fulfilling clearly identifiable tasks and avoiding obvious mistakes, for instance in the payment of set entitlements, rather than to more elusive goals such as improved client satisfaction (Power, 1997, p. 130). It is for this reason that the specification of clear performance indicators in areas such as public health and education tends to displace emphasis on vaguer but no less important objectives (Chapter 5). For similar reasons, legislators conducting committee inquiries are more likely to ask about something to which they can get a definite answer, such as how much was spent by whom on what. Officials know that clearly defined tasks attract particularly effective scrutiny and they modify their behaviour accordingly. The degree of clarity possible in a particular area therefore profoundly affects the extent and type of accountability that is possible. The greater clarity of objectives in the commercial private sector, for instance, allows commercial companies to be held more accountable for results than is generally possible in the public and non-profit sectors (Chapter 4). As a consequence, shareholders need fewer rights of access to information and discussion of policy than their counterparts in the other sectors. If the end is clear and readily accountable, more leeway can be allowed over the means. The same rationale for tight controls over ends and looser controls over means applies to some types of professional expertise, such as engineering and legal advice, that occur in both public and private sectors. Where the criteria of success and failure are transparently obvious, for instance the proper functioning of a machine or the avoidance of legal penalties, more scope can be given to the professionals in determining how to achieve success and avoid failure. Conversely, where objectives are imprecise and contested, decision-makers need to be kept on a shorter rein and exposed to continuing scrutiny and debate by those to whom they are accountable. Open processes of decision-making become more important as mechanisms of securing accountability and decision-makers need to be held more

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Page 235 accountable for consulting widely and following due process. Part of the rationale for the public sector's emphasis on accountability for due process (apart from public concerns over equity and fairness and the greater ease of identifying mistakes) is that due process is necessary to provide adequate public debate and discussion over the outcomes of government actions. In order to guarantee the effectiveness of such accountability, however, the procedural requirements themselves need to be clearly specified and readily enforced. People need to know how to seek information and ask questions. Accountability agencies need to monitor processes and enforce compliance with agreed procedures. Clarity of process, and consequent ease of accountability for process, can thus help to compensate for imprecision of objectives and the relative difficulty of accounting for objectives. Thus, effective accountability requires a reasonable degree of clarity at the level of either ends or means. If the ends are clear, accountability for means can be relaxed (a ‘tight–loose’ management configuration). If the ends are not clear, accountability for means needs to be correspondingly tightened (‘loose–tight’). If neither ends nor means are clearly definable (‘loose–loose’), accountability tends to be problematic (deLeon, 1998). Such deficiencies are endemic in the non-profit sector where goals are often fuzzy and procedures largely informal and ad hoc (Chapter 4). Similarly, networks involve loose relationships between separate independent institutions and often lack clear objectives as well as clear methods of inviting scrutiny and imposing rectification. The lack of clarity in networks poses problems for accountability and suggests that the shift from hierarchy to networks implicit in the new ‘governance’ may entail an accountability deficit. Admittedly, hierarchies themselves, though involving a clear line of command and a clearly accountable head, are by no means free of difficulties and can frustrate as well as facilitate accountability. The comparison between hierarchy and networks in relation to accountability is not clear-cut but again depends on the context, including the stage of accountability in question and the degree to which account-holders are themselves accountable (compounded accountability) (Chapter 6). In general, networks are superior in generating information and discussion while hierarchies are better at rectification, particularly if those at the head of the hierarchy are fully accountable. For this reason, ministerial responsibility continues to offer a valuable mechanism of political accountability, provided that it is supplemented by other avenues of accountability, particularly for the purposes of information and discussion. A hierarchical structure of control, politically responsive to the public, is an effective means of guaranteeing

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Page 236 a response to public concern. By contrast, networks offer useful opportunities for interchange, dialogue and mutual accountability between members. But their informality and lack of structure tend to make them impenetrable to outsiders and thus impede external accountability to the wider public. They can be made more accountable through widening the circle of participation and by making participants answer to the broader public. Their activities can also be monitored by independent regulators and rectified by judicial processes. But without a chain of command that can be mobilised by elected leaders they lack the capacity to respond promptly to public pressure. The limits of accountability The case in favour of accountability has been repeatedly emphasised throughout this study, both explicitly and implicitly. It rests on the right of principals to control their agents and assets (the ‘principle of ownership’) and the right of the public to protect themselves from the adverse consequences of the actions of others (the ‘principle of affected rights and interests’). The need for accountability to protect these principles rests, in turn, on the robust assumption that those entrusted with power cannot be trusted to comply with the law or to respect the rights and interests of others unless they are subject to effective external scrutiny. However, accountability is not an unqualified good to be maximised at all costs. It must always be subject to reasonable limits in the light of other conflicting values, including practicality and cost. Accountability always imposes costs, both on the accountor and the account-holder. Preparing answers for legislative committees, drafting letters for leaders in response to queries from the public, assembling performance information for external monitoring bodies, briefing counsel for legal hearings, all take time away from the core activities of an agency. In addition, sustaining a wide range of public regulators and accountability agencies imposes a major and ever-increasing cost on the taxpayer (Hood et al., 1999, pp. 28–33). At some point, accountability must begin to yield diminishing returns and become counterproductive. Moreover, some limits to accountability are unavoidable. Someone accountable for a particular task must always be allowed a degree of individual choice and discretion in deciding how to carry it out. It is not possible to bring every decision under an externally imposed rule or to subject every action to complete external control. In government, appointed officials must be allowed to make their own judgements based on their professional expertise and their own sense of the public

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Page 237 interest. The same applies to the actions of elected politicians who cannot be brought totally under the direction of those who elect them. In non-government contexts, managers are inevitably faced with choices about how best to meet their given objectives. Any agent in a principal–agent relationship must exercise a degree of independent discretion beyond the knowledge and control of the principal. Nor is it desirable to reduce this individual discretion to the smallest practicable scope. Requiring an individual or an organisation to submit to constant investigation and to report and justify every single action, however trivial, will be excessively costly. Someone who is endlessly required to record, report and explain what he or she is doing will have little time left for anything else. Meeting accountability obligations consumes scarce resources and diverts people from their primary functions. Moreover, if every moment is open to scrutiny, decisions will not only be more costly but also, on occasion, less effective. Excessive accountability, particularly through judicial review, can encourage a legalistic, process-driven approach to decision-making. Members of organisations that are taking collective decisions need to be able to communicate freely with each other without fear of public exposure. If frank discussion is inhibited, important factors may be overlooked and unnecessary risks undertaken. Decision-makers who cannot guarantee that their confidential deliberations remain undisclosed will be prevented from reaching satisfactory decisions (Chapter 3). In addition, over-zealous assessment of officials in terms of externally imposed standards and targets implies excessive and unwarranted distrust in their professional integrity which in turn can undermine that integrity (Gregory and Hicks, 1999). At some point, the demand for accountability needs to be constrained in the interests of efficiency and effectiveness. Nor is accountability the only means of inducing power-holders to act responsibly in public interest. Voluntary compliance, where power-holders act appropriately without threat of exposure or punishment, plays a central role in any just and effective organisation or society. The present study has concentrated on accountability, understood in a comparatively narrow, core sense of external scrutiny and rectification. In the interests of conceptual clarity, current tendencies to conflate ‘accountability’ with other related terms such as ‘responsiveness’ and ‘responsibility’ have been deliberately eschewed (Chapter 1). The restricted focus, however, is not intended to deny the importance of other less costly, and often more effective, methods of securing compliance which are covered by these more expansive definitions.

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Page 238 For instance, market-based incentives can be extremely effective in making people responsive to the public and the public's interests without any need for external scrutiny or enforcement. Businesses trying to survive in a commercially competitive environment have their own self-interested reasons for seeking to satisfy their customers. Dissatisfied customers will simply exit to an alternative supplier and the businesses will fold. Moreover, desire to protect a corporate reputation may also encourage them into socially responsible actions on behalf of the wider community (Chapter 4). Accountability mechanisms are needed in order to underpin the operation of effective competitive markets and to prevent otherwise recalcitrant companies from adversely affecting the public's rights and interests. But the great bulk of publicly responsive commercial actions occur unprompted by any external monitoring or compulsion. Competition also operates beneficially within the public sector both at a collective and an individual level. Agencies with overlapping jurisdictions compete with each other in order to protect their turf. Individual officials compete for the good opinion of peers and superiors in order to advance their careers (Horn, 1995, Ch. 5). A reputation for protecting and benefiting the collective interests of the agency and the government as whole will mark a public servant out for promotion and other rewards (Hood et al., 1999, pp. 14–15, 191–2). In addition, many people in positions of power freely choose to act in the public interest out of a sense of professional responsibility or public-spiritedness which is induced neither by external scrutiny nor by self-interest. Disinterested concern for the public welfare is a hallmark of public service values, mainly because market incentives have little place in relation to the monopolistic power of governments. But similar motivations occur also in the non-government sectors. The non-profit sector, in particular, depends heavily on the goodwill of its members, but commercial operators, too, are often unselfishly concerned to comply with the law or to serve their customers well. Within networks and partnerships particularly, the dominant value is trust (Chapter 6), indicating the importance of being able to rely on others to cooperate voluntarily. Again, however, voluntary compliance usually needs to be underpinned by ultimate accountability to an external authority. People's willingness to act properly and professionally is reinforced when they know that they could be called to account (that they are accountable) for their actions. But the dominant motive may be a desire to do the right thing. Indeed, voluntary compliance is often a more effective method of law enforcement than punishment or the threat of punishment (Fisse and Braithwaite, 1993).

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Page 239 Accountability and voluntary compliance may appear as alternative and sharply distinct routes towards the lawful and responsive exercise of power but they are, in practice, intimately related. Voluntary compliance, like all ethical behaviour, depends on the support of professional groups and social networks committed to key values, such as personal integrity, concern for the public and so on. Such groups and networks exhibit comparatively soft forms of accountability, where professional colleagues or network partners answer to each other for their conduct. Commitment to shared values and the willingness to put them into practice is further reinforced by the detection and punishment of those who, from time to time, fail to comply. Instances of such accountability, in the sense of the full imposition of sanctions, may be rare but they function as exceptions that prove the rule. Most doctors or lawyers never fall foul of their professional associations and few public servants are convicted of forgery or censured for improper conduct. Yet the occasional enforcement of such penalties serves publicly to reaffirm and reinforce the values that have been breached. Thus, various forms of accountability can be said to underwrite or underpin the practice of voluntary compliance. Moreover, accountability involves much more than just the enforcement processes of detection and punishment. Equally important are the prior stages of informing, justifying, criticising and discussing which make up the dialogic elements of accountability. People in positions of authority are in frequent communication with those to whom they are accountable. Politicians debate their policies in legislatures, press conferences, party forums and policy communities, constantly seeking to account for what they have done as they try to build support for the future. Officials, too, frequently enter into discussions with the various groups and individuals to whom they are accountable, as do most people with accountability obligations. Parallel with these continuing communications are the consultations about their responsibilities which colleagues have with one another, as for instance when fellow judges discuss a case, cabinet ministers consider the wording of report, or rank-and-file bureaucrats plan how to deal with a complicated individual appeal. Such conversations do not, strictly speaking, belong to the accountability dialogue, because they are conducted between partners linked by common interests rather than by mutual obligations of accountability. However, they merge with such dialogue, as colleagues move into more formal roles of superior and subordinate or communicate their prepared statements to a wider public audience. In turn, behind the informal discussions of friends and partners, lie the internal

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Page 240 deliberations that responsible individuals have with themselves as they consider how best to act in accordance with their values. Thus, in practice, voluntary action by responsible individuals is seamlessly connected with collegial conversations about how to act responsibly which are in turn linked to the exercise of accountability obligations through the exchange of information and argument. Compliance with the law and responsiveness to the public's interests are achieved by a spectrum of social mechanisms, ranging from purely individual and public-spirited decisions, through loose informal networks and voluntary accountability dialogue to the formal enforcement of accountability, including penalties and sanctions. Every structure of delegated power certainly needs a system of accountability to keep a check on those placed in positions of authority. But the external scrutiny of accountability will never be sufficient on its own to guarantee that power will be properly used. Some reliance will always need to be placed on the voluntary goodwill and professionalism of those in authority. A balance must always be struck between accountability and trust. Given the convergence of objectives, it is not surprising, therefore, that ‘accountability’ should often become merged with the personal value of ‘responsibility’ or with the broader goals of ‘responsiveness’ and ‘control’ or even with democratic values such as ‘participation’ and ‘dialogue’. All are directed to a similar end, helping to make the powerful respect the rights and interests of others. However, insistence on restricting ‘accountability’ to a core sense of external scrutiny and sanctions is grounded in the conviction that these functions are particularly valuable for the powerless public and that public calls for more ‘accountability’ have these functions primarily in mind. The recent prominence of ‘accountability’ in the vocabulary of democratic governance reflects a widespread public desire to hold the powerful to account. External scrutiny and the imposition of appropriate sanctions are certainly not the only mechanisms of democracy. But they remain fundamentally important and ‘accountability’ provides a useful organising concept for analysing their impact.

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Page 241 References Aberbach, J. D. (1990), Keeping a Watchful Eye. The Politics of Congressional Oversight (Washington: Brookings Institution). Agranoff, R. and McGuire, M. (2001), ‘Big questions in public network management research’, Journal of Public Administration Research and Theory 11 (3), 295–326. Aronson, M. and Dyer, B. (2000), Judicial Review of Administrative Action (Sydney: LBC Information Services). Aucoin, P. (2002), ‘Beyond the “new” in public management reform in Canada: catching the next wave’, in C. Dann (ed.), The Handbook of Canadian Public Administration (Don Mills, Ontario: Oxford University Press), pp. 37–52. Baldwin, R. and Cave, M. (1999), Understanding Regulation. Theory, Strategy, and Practice (Oxford: Oxford University Press). Barberis, P. (1998), ‘The new public management and a new accountability’, Public Administration 76, 451–70. Behn, R. (2001), Rethinking Democratic Accountability (Washington: Brookings Institution). Birkinshaw, P. (2001), Freedom of Information. The Law, the Practice and the Ideal Third edition (London: Butterworth). Bogdanor, V. (1996), ‘The Scott Report’, Public Administration 74, 593–611. Boston, J., Martin, J., Pallot, J. and Walsh, P. (1996), Public Management. The New Zealand Model (Auckland: Oxford University Press). Bottomley, S. (1997), ‘From contractualism to constitutionalism: a framework for corporate governance’, Sydney Law Review 19, 277–313. Bovens, M. (1998), The Quest for Responsibility – Accountability and Citizenship in Complex Organisations (Cambridge: Cambridge University Press). Bovens, M., 't Hart, P., Dekker, S. and Verheuvel, G. (1999), ‘The politics of blame avoidance. Defensive tactics in a Dutch crime-fighting fiasco’, in H. K. Anheier (ed.), When Things Go Wrong. Organizational Failures and Breakdowns (Thousand Oaks, California: Sage), pp. 123–47. Braithwaite, J. (1997), ‘On speaking softly and carrying big sticks: neglected dimensions of a republican separation of powers’, University of Toronto Law Journal 47, 305–61. Braithwaite, J. (1999), ‘Accountability and governance under the new regulatory state’, Australian Journal of Public Administration 58 (1), 90–7. Braithwaite, J. and Drahos, P. (2000), Global Business Regulation (Cambridge: Cambridge University Press). Bratton, W., McCahery, J., Picciotto, S. and Scott, C. (eds) (1996), International Regulatory Competition and Coordination (Oxford: Clarendon Press). Brown, D. (1998), ‘Professionalism, participation and the public good: issues of arbitration in development management and the critique of the neo-populist approach’, in M. Minogue, C. Polidano and D. Hulme, Beyond the New Public Management (Cheltenham: Edward Elgar), pp. 132–55.

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Page 242 Bunker, M. D. and Davis, C. N. (1998), ‘Privatized government functions and freedom of information: public accountability in an age of private governance’, Journalism and Mass Communications Quarterly 75 (3), 464–77. Cairns, E. (1988), Charities: Law and Practice (London: Sweet and Maxwell). Campbell, C. (2000), ‘Democratic accountability and models of governance: purchaser/provider, owner/trustee’, in R. A. Chapman (ed.), Ethics in Public Service for the New Millennium (Aldershot: Ashgate), pp. 141–64. Cane, P. (1996), An Introduction to Administrative Law (Oxford: Clarendon Press). Christensen, T. and Laegreid, P. (2002), ‘New Public Management: puzzles of democracy and the influence of citizens’, Journal of Political Philosophy 10 (3), 267–95. Considine, M. (2001), Enterprising States. The Public Management of Welfare-to-Work (Cambridge: Cambridge University Press). Considine, M. (2002), ‘The end of the line? Accountable governance in the age of networks, partnerships and joined-up services’, Governance 15 (1), 21–40. Corbett, D. (1996), Australian Public Sector Management Second edition (Sydney: Allen and Unwin). Cracknell, D. G. (1996), Cracknell on Charities (London: Pearson Professional). Daintith, T. (2002), ‘A very good day to get out anything we want to bury’, Public Law Spring, 13–21. Dal Pont, G. (2000), Charity Law in Australia and New Zealand (Oxford: Oxford University Press). Davies, P. L. (1997), Gower's Principles of Company Law Sixth edition (London: Sweet and Maxwell). Day, P. and Klein, R. (1987), Accountabilities: Five Public Services (London: Tavistock). De Jong, H. W. (1996), ‘European capitalism: between freedom and social justice’, in Bratton, McCahery, Picciotto and Scott (eds), International Regulatory Competition and Coordination, pp. 185–206. deLeon, L. (1998), ‘Accountability in a reinvented government’, Public Administration 76, 539–58. deLeon, L. and Denhardt, R. B. (2000), ‘The political theory of reinvention’, Public Administration Review 60 (2), 89–97. Dowding, K. (1995), The Civil Service (London and New York: Routledge). Dowding, K. and Kang, W.-T. (1998), ‘Ministerial resignations 1945–97’, Public Administration 76, 411– 29. Downs, W. M. (1999), ‘Accountability payoffs in federal systems? Competing logics and evidence from Europe's newest federation’, Publius 29 (1), 87–110. Drewry, G. (1989), The New Select Committees Second edition (Oxford: Oxford University Press). Dubnick, M. (1998), ‘Clarifying accountability: an ethical theory framework’, in C. Sampford and N. Preston (eds), Public Sector Ethics (London: Routledge), pp. 68–81. Eells, R. (1962), The Government of Corporations (New York: Free Press of Glencoe). Ellis, R. J. (1994), Presidential Lighting Rods. The Politics of Blame Avoidance (Lawrence, Kansas: University of Kansas Press). Falconer, P. K. and Ross, K. (1999), ‘Citizen's charters and public service provision: lessons from the UK experience’, International Review of Administrative Sciences 65 (3), 339–51.

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Page 243 Finer, H. (1941), ‘Administrative responsibility and democratic government’, Public Administration Review 1, 335–50. Finn, P. (1993), ‘Public trust and public accountability’, Australian Quarterly 65 (Winter), 50–9. Fisse, B. and Braithwaite, J. (1993), Corporations, Crime and Accountability (Cambridge: Cambridge University Press). Fleming, J. (2001), ‘Conduct unbecoming: independent commissions and ministerial adversaries’, in Fleming and Holland (eds), Motivating Ministers to Morality, pp. 129–44. Fleming, J. and Holland, I. (eds) (2001), Motivating Ministers to Morality (Dartmouth: Ashgate). Flinders, M. (2000), ‘The enduring centrality of individual ministerial responsibility within the British constitution’, Journal of Legislative Studies 6 (3), 73–92. Flinders, M. (2002a), The Politics of Accountability in the Modern State (Aldershot: Ashgate). Flinders, M. (2002b), ‘Governance in Whitehall’, Public Administration 80 (1), 51–75. Flinders, M. V. and Smith, M. J. (1999), Quangos, Accountability and Reform (London: Macmillan). Freiberg, A. (1999), ‘Commercial confidentiality and public accountability for the provision of correctional services’, Current Issues in Criminal Justice 11 (2), 119–34. Friedrich, C. J. (1940), ‘Public policy and the nature of administrative responsibility’, in C. J. Friedrich and E. S. Mason (eds), Public Policy (Cambridge: Harvard University Press), pp. 3–24. Galligan, B. (1995), A Federal Republic (Cambridge: Cambridge University Press). Gibelman, M., Gelman, S. R. and Pollack, J. D. (1997), ‘The credibility of nonprofit boards: a view from the 1990s and beyond’, Administration in Social Work 21 (2), 21–40. Glendinning, C., Powell, M. and Rummery, K. (2002), Partnerships, New Labour and the Governance of Welfare (Bristol: Policy Press). Gray, A., Jenkins, B. and Segsworth, B. (eds) (1993), Budgeting, Auditing and Evaluation (New Brunswick and London: Transaction). Gregory, R. (1987), ‘The reorganisation of the public sector: the quest for efficiency’, in J. Boston and M. Holland (eds), The Fourth Labour Government (Auckland: Oxford University Press), pp. 111–33. Gregory, R. (1998), ‘Political responsibility for bureaucratic incompetence: tragedy at Cave Creek’, Public Administration 76, 519–38. Gregory, R. (2003), ‘Accountability in modern government’, forthcoming in B. G. Peters and J. Pierre (eds), International Handbook of Public Administration (London: Sage). Gregory, R. and Hicks, C. (1999), ‘Promoting public service integrity: a case for responsible accountability’, Australian Journal of Public Administration 58 (4), 3–15. Guthrie, J., Olson, O. and Humphrey, C. (1997), ‘Public management changes in OECD nations’, in L. R. Jones, K. Schedler and S. W. Wade (eds), International Perspectives on the New Public Management (Greenwich and London: JAI Press), pp. 255–69. Hansen, H. H. (1991), The Athenian Democracy in the Age of Demosthenes Translated by J. A. Crook (Oxford: Blackwell).

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Page 244 Harding, R. (1997), Private Prisons and Accountability (Buckingham: Open University Press). Harlow, C. (1999), ‘Accountability, new public management and the problems of the Child Support Agency’, Journal of Law and Society 26 (2), 150–74. Harlow, C. (2002), Accountability in the European Union (Oxford: Oxford University Press). Harmon, M. M. (1995), Responsibility as Paradox (Thousand Oaks: Sage). Harmon, M. M. and Mayer, R. T. (1986), Organization Theory for Public Administration (Boston: Little, Brown). Hart, H. L. A. (1968), Punishment and Responsibility (Oxford: Oxford University Press). Hay, C. (1998), ‘The tangled webs we weave: the discourse, strategy and practice of networking’, in D. Marsh (ed.), Comparing Policy Networks (Buckingham: Open University Press), pp. 33–51. Held, D., McGrew, A., Goldblatt, D. and Perraton, J. (1999), Global Transformations (Cambridge: Polity Press). Hill, M. J. (1997), The Policy Process in the Modern Capitalist State Third edition (London: Prentice-Hall). Hill, L. B. (2000), ‘Institutionalizing a bureaucratic monitoring mechanism: the first thirty years of Hawaii's Ombudsman’, The International Ombudsman Yearbook 4, 3–58. Holland, I. (2002), Accountability of Ministerial Staff? Research Paper 19, 2001–2 (Canberra: Department of the Parliamentary Library). Hood, C. (1995), ‘The “new public management” in the 1980s; variations on a theme’, Accounting, Organizations and Society 20, 93–109. Hood, C. (2002), ‘The risk game and the blame game’, Government and Opposition 37, 15–37. Hood, C., Scott, C., James, O. and Travers, T. (1999), Regulation Inside Government: Waste-Watchers, Quality Police and Sleaze-Busters (Oxford: Oxford University Press). Horn, M. (1995), The Political Economy of Public Administration (Cambridge: Cambridge University Press). Hughes, O. E. (1998), Public Management and Administration Second edition. (London: Macmillan). Industry Commission (1996), Competitive Tendering and Contracting Out by Public Sector Agencies (Melbourne: Australian Government Publishing Service). Iyengar, S. and Reeves, R. (1997), Do the Media Govern? (Thousand Oaks: Sage). Jabbra, J. G. and Dwivedi, O. P. (eds) (1988), Public Service Accountability: A Comparative Study (West Hartford, Connecticut: Kumarian Press). James, O. (2000), ‘Regulation inside government: public interest justifications and regulatory failures’, Public Administration 78 (2), 327–43. Karikas, A. (1980), ‘Solving problems in Philadelphia: an ethnography of a congressional district office’, in L. Nader (ed.), No Access to Law (New York: Academic Press), pp. 345–7. Kearns, K. P. (1996), Managing for Accountability (San Francisco: Jossey-Bass). Kernaghan, K. (1994), ‘The emerging public service culture: values, ethics and reforms’, Canadian Public Administration 37, 614–30. Kernaghan, D. and Siegel, D. (1999), Public Administration in Canada Fourth edition (Toronto: ITP Nelson).

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Page 245 Kettl, D. F. (1997), ‘The global revolution in public management: driving themes, missing links’, Journal of Policy Analysis and Management 16 (3), 446–62. Leat, D. (1990), ‘Voluntary organizations and accountability: theory and practice’, in H. K. Anheier and W. Seibel (eds), The Third Sector: Comparative Studies of Nonprofit Organizations (Berlin: Walter de Gruyter), pp. 141–53. Lewis, N. and Birkinshaw, P. (1993), When Citizens Complain. Reforming Justice and Administration (Buckingham and Philadelphia: Open University Press). Light, P. L. (1993), Monitoring Government (Washington: Brookings Institution). Light, P. L. (1995), Thickening Government (Washington: Brookings Institution). Lijphart, A. (1984), Democracies. Patterns of Majoritarian and Consensus Government in Twenty One Countries (New Haven: Yale University Press). Lipsky, M. and Smith, S. R. (1990), ‘Nonprofit organizations, government and the welfare state’, Political Science Quarterly 104, 625–48. Lodge, M. (2001), ‘Regulatory accountability: towards a single citizen-consumer model’, in K. Dowding, J. Hughes, and H. Margetts (eds), Challenges to Democracy (London: Palgrave), pp. 205–19. Lucas, J. R. (1993), Responsibility (Oxford: Clarendon Press). Majone, G. (1996), Regulating Europe (London: Routledge). March, J. G. and Olsen, J. P. (1995), Democratic Governance (New York: Free Press). Marsh, D. and Rhodes, R. A. W. (eds) (1992), Policy Networks in British Government (Oxford: Clarendon Press). Massey, A. (1997), ‘In search of the state: markets, myths and paradigms’, in A. Massey (ed.), Globalization and Marketization of Government Services (London: Macmillan), pp. 1–15. McDonald, C. (1999), ‘Internal control and accountability in non-profit human organisations’, Australian Journal of Public Administration 58 (1), 11–22. McGraw, K. M. (1990), ‘Avoiding blame: an experimental investigation of political excuses and justifications’, British Journal of Political Science 20, 119–42. Mill, J. S. (1964), Utilitarianism, Liberty and Representative Government Everyman's Library (London: Dent). Moe, R. C. (1994), ‘The reinventing government exercise; misinterpreting the problem, misjudging the consequences’, Public Administration Review 54 (2), 111–22. Molander, P., Nilsson, J.-E. and Schick, A. (2002), Does Anyone Govern? The Relationship Between the Government Office and the Agencies in Sweden Report from the SNS Constitutional Project (Stockholm: Government Office). Moran, M. (2001), ‘The rise of the regulatory state in Britain’, Parliamentary Affairs 54, 19–34. Mulgan, R. (1997a), Politics in New Zealand Second edition (Auckland: Auckland University Press). Mulgan, R. (1997b), ‘Processes of accountability’, Australian Journal of Public Administration 56 (1), 25– 36. Mulgan, R. (1997c), ‘Contracting out and accountability’, Australian Journal of Public Administration 56 (4), 106–16. Mulgan, R. (2000a), ‘''Accountability": an ever-expanding concept?’, Public Administration 78, 555–74. Mulgan, R. (2000b), ‘Comparing accountability in the public and private sectors’, Australian Journal of Public Administration 59 (1), 87–97.

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Page 246 Mulgan, R. (2001), ‘The role of auditors-general: cuckoos in the managerialist nest?’, Australian Journal of Public Administration 60 (2), 24–34. Mulgan, R. (2002a), ‘Public accountability of provider agencies: the case of the Australian “Centrelink”’, International Review of Administrative Sciences 68 (1), 45–59. Mulgan, R. (2002b), ‘On ministerial resignations (and the lack thereof)’, Australian Journal of Public Administration 80 (2), 121–7. Nader, L. (ed.) (1980), No Access to Law (New York: Academic Press). Nader, L. and Shugart, C. (1980), ‘Old solutions for old problems’, in L. Nader (ed.), No Access to Law (New York: Academic Press), pp. 57–110. New Zealand Treasury (1987), Government Management (Wellington: Government Printer). Normanton, E. L. (1966), The Accountability and Audit of Governments (Manchester: Manchester University Press). O'Donnell, G. (1998), ‘Horizontal accountability in new democracies’, Journal of Democracy 9 (3), 112– 26. OECD (1987), Administration as Service: the Public as Client (Paris: Organisation for Economic Cooperation and Development). OECD (1995a), Governance in Transition (Paris: Organisation for Economic Co-operation and Development). OECD (1995b), Budgeting for Results (Paris: Organisation for Economic Co-operation and Development). OECD (1997), Modern Budgeting (Paris: Organisation for Economic Co-operation and Development). O'Faircheallaigh, C., Wanna, J. and Weller, P. (1999), Public Sector Management in Australia Second edition (Melbourne: Macmillan). Oliver, D. (1991), Government in the United Kingdom: the Search for Accountability, Effectiveness and Citizenship (Milton Keynes: Open University Press). Oliver, D. (1997), ‘Common values in public and private law and the public/private divide’, Public Law 1997, 630–46. Oliver, D. (1999), Common Values and the Public–Private Divide (London: Butterworths). Oliver, D. and Drewry, G. (1996), Public Service Reforms. Issues of Accountability and Public Law (London: Pinter). Olson, M. (1965), The Logic of Collective Action (Cambridge, Mass: Yale University Press). O'Neill, O. (2002), ‘Called to account’, third lecture in BBC Reith Lectures 2002. A Question of Trust (London: British Broadcasting Corporation). Osborne, D. and Gaebler, T. (1992), Reinventing Government (Reading, Mass: Addison-Wesley). O'Toole, L. J. (1997), ‘Treating networks seriously: practical and research-based agendas in public administration’, Public Administration Review 57 (1), 45–52. O'Toole, B. J. and Chapman, R. (1995), ‘Parliamentary accountability’, in B. J. O'Toole and G. Jordan (eds), Next Steps. Improving Management in Government? (Aldershot: Dartmouth), pp. 118–41. Ott, J. S. and Dicke, L. A. (2000), ‘Important but largely unanswered questions about accountability in contracted human services’, International Journal of Organizational Theory and Behaviour 3, 283–317. Oughton, D. and Lowry, J. (1997), Textbook on Consumer Law (London: Blackstone).

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Page 247 Painter, M. (1996), ‘Federal theory and executive federalism’, in J. Halligan (ed.), Public Administration under Scrutiny (Canberra: Centre for Research in Public Sector Management, University of Canberra), pp. 77–96. Parker, C. (2002), The Open Corporation (Cambridge: Cambridge University Press). Parsons, W. (1998), ‘Fuzzy in theory and getting fuzzier in practice’, in A. Hondeghem (ed.), Ethics and Accountability in a Context of Governance and New Public Management (Amsterdam: IOS Press), pp. 87–107. Peters, B. G. (1995), The Politics of Bureaucracy Fourth edition (White Plains: Longman). Polidano, C. (1998), ‘Why bureaucrats can't always do what ministers want: multiple accountabilities in Westminster’, Public Policy and Administration 13, 35–50. Polidano, C. (1999), ‘The bureaucrat who fell under a bus’, Governance 12, 201–29. Polidano, C., Hulme, D. and Minogue, M. (1998), ‘Conclusions: Looking beyond the new public management’, in C. Polidano, D. Hulme and M. Minogue (eds), Beyond the New Public Management (Cheltenham: Edward Elgar), pp. 278–93. Pound, J. (1993), ‘The rise of the political model of corporate governance and corporate control’, New York University Law Review 68, 1003–71. Power, M. (1994), The Audit Explosion (London: Demos). Power, M. (1997), The Audit Society (Oxford: Oxford University Press). Przeworski, A. et al. (1999), Democracy, Accountability and Representation (Cambridge: Cambridge University Press). Putnam, R. (1995), ‘Tuning in, tuning out: the strange disappearance of social capital in America’, P.S. 29, 474–80. Pyper, R. (ed.) (1996), Aspects of Accountability in the British System of Government (Eastham: Tudor Business). Radin, B. (1998), ‘The Government Performance and Results Act (GPRA): hydra-headed monster or flexible management tool?’, Public Administration Review 58 (4), 307–15. Radin, B. (2002), The Accountable Juggler. The Art of Leadership in a Federal Agency (Washington: CQ Press). Radin, B. and Romzek, B. (1996), ‘Accountability expectations in an intergovernmental arena: the National Rural Development Partnership’, Publius 26 (2), 59–81. Rainey, H. G. and Bozeman, B. (2000), ‘Comparing public and private organizations: empiral research and the power of the a priori’, Journal of Public Administration Research and Theory 10, 447–69. Ramsey, I. (1981), ‘Consumer redress mechanisms for poor-quality and defective products’, University of Toronto Law Journal 31, 117–52, reprinted in I. Ramsey (ed.), Consumer Law (Aldershot: Dartmouth), pp. 391–426. Rhodes, R. A. W. (1997), Understanding Governance. Public Networks, Governance, Reflexivity and Accountability (Buckingham: Open University Press). Rhodes, R. A. W. (2000), ‘The governance narrative: key findings and lessons from the ESRC's Whitehall programme’, Public Administration 78 (2), 345–63. Roberts, A. (1997), ‘Performance-based organizations: assessing the Gore plan’, Public Administration Review 57 (6), 465–78. Romzek, B. S. and Dubnick, M. J. (1987), ‘Accountability in the public sector: lessons from the Challenger tragedy’, Public Administration Review 47, 227–38. Romzek, B. S. and Johnston, J. M. (2001), ‘State contracting, social service networks and effective accountability: an explanatory model’, paper prepared

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Page 248 for presentation at the American Political Science Association Conference, San Francisco, August– September 2001. Rummery, K. (2002), ‘Towards a theory of welfare partnerships’, in Glendinning, Powell and Rummery (eds), Partnerships, New Labour and the Governance of Welfare, pp. 229–45. Savoie, D. J. (1995), ‘What is wrong with the new public management?’, Canadian Public Administration 38 (1), 112–21. Schedler, A. (1999), ‘Conceptualizing accountability’, in A. Schedler, L. Diamond and M. C. Plattner (eds), The Self-Restraining State (Boulder, London: Lynne Rienner), pp. 13–28. Schick, A. (1996), The Spirit of Reform (Wellington: State Services Commission). Schick, A. (2000), The Federal Budget Revised edition (Washington: Brookings Institution). Schwartz, R. (2001), ‘Managing government-third sector collaboration: accountability, ambiguity and politics’, International Journal of Public Administration 24 (11), 1161–88. Scott, C. (2000), ‘Accountability in the regulatory state’, Journal of Law and Society 27 (1), 38–60. Scott, C. (2002), ‘Private regulation of the public sector: a neglected facet of contemporary governance’, Journal of Law and Society 29 (1), 56–76. Shafer, A. (1999), ‘A wink and a nod: a conceptual map of responsibility and accountability in bureaucratic organisations’, Canadian Public Administration 42 (1), 5–25. Shapiro, M. (2001), ‘Administrative law unbounded: reflections on government and governance’, Indian Journal of Legal Studies 8 (2), 369–77. Sinclair, A. (1995), ‘The chameleon of accountability’, Accounting Organizations and Society 20, 219–37. Sternberg, E. (1998), Corporate Governance (London: Institute of Economic Affairs). Stone, B. (1995), ‘Administrative accountability in the ‘Westminster’ democracies: towards a new conceptual framework’, Governance 8, 505–26. Street, J. (2001), Mass Media, Politics and Democracy (Basingstoke: Palgrave). Taylor, M. (1996) ‘Between public and private: accountability in voluntary organisations’, Policy and Politics 24, 57–72. Teisman, G. R. and Klijn, E.-H. (2002), ‘Partnership arrangements: government rhetoric or governance scheme?’, Public Administration Review 62 (2), 197–205. Thomas, P. G. (1998), ‘The changing nature of accountability’, in B. G. Peters and D. Savoie (eds), Taking Stock: Assessing Public Service Reforms (Montreal: McGill-Queen's University Press), pp. 348–93. Thompson, D. (1980), ‘Moral responsibility of public officials: the problem of many hands’, American Political Science Review 74, 905–16. Thompson, E. and Tillotsen, G. (1999), ‘Caught in the act: the smoking gun view of ministerial responsibility’, AJPA 58 (1), 48–57. Uhr, J. (1993), ‘Redesigning accountability’, Australian Quarterly 65 (2), 1–16. Uhr, J. (1998), Deliberative Democracy in Australia (Cambridge: Cambridge University Press). United Kingdom Efficiency Unit (1988), Report to the Prime Minister: Improving Management in Government; the Next Steps (London: Efficiency Unit). Wallace, H. (2002), ‘The Council: an institutional chameleon?’, Governance 15 (3), 325–44.

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Page 249 Walsh, C. (1992), ‘Federal reform and the politics of vertical fiscal imbalance’, Australian Journal of Political Science 27 (Special issue), 19–38. Wanna, J., Kelly, J. and Forster, J. (2000), Managing Public Expenditure in Australia (Sydney: Allen and Unwin). Weber, E. P. (1999), ‘The question of accountability in historical perspective’, Administration and Society 31 (4), 451–94. Wheare, K. C. (1946), Federal Government (Oxford: Oxford University Press). White, F. and Hollingsworth, K. (1999), Audit, Accountability and Government (Oxford: Oxford University Press). Wilson, J. Q. (2000), Bureaucracy: What Government Agencies Do and Why They Do It New edition (New York: Basic Books). Woodhouse, D. (1994), Ministers and Parliament (Oxford: Oxford University Press). Woodhouse, D. (1997), In Pursuit of Good Administration (Oxford: Oxford University Press). Woods, N. and Narlikar, A. (2001), ‘Governance and the limits of accountability: the WTO, the IMF and the World Bank’, International Social Science Journal 53 (170), pp. 569–83. Zifcak, S. (1997), ‘Managerialism, accountability and democracy: a Victorian case study’, Australian Journal of Public Administration 56 (3), 106–19. Zussman, D. (2002), ‘Alternative service delivery’, in C. Dunn (ed.), The Handbook of Canadian Public Administration (Don Mills, Ontario: Oxford University Press), pp. 53–76.

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Page 250 Index accountability collective 23, 30, 103, 115–16, 144, 192–3 comparison of public and private sectors 6, 37–8, 115–50, 154–6, 165, 166, 182, 202, 227–9, 234–5 compounded 29, 63, 67, 127, 135, 198, 202, 209, 214, 225, 229–32, 235 consumer 31 and control 5, 8, 18–20, 240 core sense of 8–10, 15, 34, 138, 237, 240 demand for 1–5 and dialogue 13, 37, 63–8, 74, 114, 197, 213, 239–40 dimensions of 22–30, 35, 226 directions 25–8 downwards 26–8, 173, 219 financial, fiscal 30, 31, 46, 233 general 28, 31, 64, 71, 78, 100, 111, 136, 175–6, 183, 213 horizontal 26–8, 34, 104, 146 individual 23, 30, 103, 116, 143–4, 145, see also accountability, personal inwards 26 and justice 19 legal, judicial 31, 32, 33, 34, 35 managerial 30, 32, 33, 34 and markets 21–2 meaning of, disputed 6, 7–8, 15–22, 227, 237 multiple, see accountability, plural for objectives 119–20, 129, 154, 156–66, 169, 171, 184–5, 232, 234–5 outwards 26, 173 particular 28, 31, 56, 57, 64, 71, 78, 93, 99, 111, 136, 141, 154, 173, 175–6, 183, 213 personal 15, 17, 23, 30, 52, 193, 201, 203, 206–9, see also individual plural 188–225, 227, 229, 232 political 30, 31–3, 34, 35, 41–74, 155, 163, 176–83, 184–225, 236 potential (accountability) 10–11, 17, 238 for process 119, 120–1, 155, 156, 166–71, 184, 185–6, 234–5 processes of, see stages of professional 17, 31, 32, 34, 104, 144, 226 rationale, for 7–14, 36–8, 115, 136, 148, 228–9, 236 and responsibility 5, 6, 8, 15–18, 22, 146, 192–3, 203, 227, 237, 240 and responsiveness 5, 8, 20–2, 137–8, 154–5, 213, 216, 227, 237, 240 role 15, 23, 52, 104, 193, 201, 202, 203, 206–9 and sanctions 9–10 single point of 188–225, 229, 232 stages of 30, 35, 42, 46, 51, 112, 124, 133, 196, 210, see also discussion, information, rectification 360 degrees 26, 104, 219 and transparency 3, 4, 9–11, 214 types of 30–5 upwards 25–8, 39, 49, 104, 104–8, 114, 144, 146, 147, 156, 173, 177, 182, 199, 219 ‘voluntary’ 17 accounts, financial 47, 53, 122, 126, 191 affected rights and interests, principle of 13, 36, 117, 118–19, 228, 236 anti-corruption agencies 2, 90, 94 audit 24, 35, 83–90, 172, 191, 196

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Page 251 auditors, company 126–7, 230 auditors, government 19, 25, 55, 75, 83–90, 98, 111, 112, 114, 127, 133, 134, 163, 165, 167, 168, 170, 172, 182, 184, 195, 199, 216, 218, 219, 220, 228, 229, 231 see also audit Australia 7, 46, 50, 53, 54, 58, 61, 70, 77, 78, 79, 84, 87, 88, 93, 95, 97, 99, 101, 122, 131, 153, 158, 160, 162, 167, 169, 174, 177, 180, 181, 191, 205, 216, 218, 221 blame-shifting, see buck-passing buck-passing 62, 180, 195–6, 198, 201, 208, 209, 211, 212, 216–17, 221, 223 budgeting 47, 55, 157–9, 167, 185 Bovens, M. 16 Bush, G. W. 202 Canada 7, 42, 53, 77, 78, 84, 87, 91, 95, 99, 101, 153, 157, 158, 160, 166, 191, 203, 218 charters, service 21, 57, 99–100, 102, 173–5 Christie, A. 204 client focus, see customer focus commercial confidentiality 67, 87, 100, 113, 168 commissions 81, 90–8 see also inquiries complaints procedures 35, 82, 98–102, 139–43, 148, 173, 174, 183, 219, 226 contracts 37, 38, 50, 59, 87, 124, 137, 138, 139, 141, 159–62, 168, 169, 174–5, 177–82, 184, 185, 187, 188, 214 classic 28, 161, 165 relational 28, 105, 161, 165, 178, 179, 212, 233 courts 3, 25, 27, 29, 31, 33, 35, 38, 39, 41, 50, 72, 75–83, 87, 92, 98, 101, 106, 111, 112, 113, 114, 119, 121, 131, 139, 140, 141–2, 170, 173, 191, 215, 219, 222, 226, 227, 228, 229, 230–1, 236, 237 customer focus 21, 102, 137, 153, 154, 156, 171, 173–6, 183, 184, 213 Day, P. 16, 30, 107 democracy 1, 3, 4, 5–7, 12–13, 16, 18, 20, 22, 36–7, 40, 41, 57, 60, 65, 68, 72, 74, 78, 100, 113, 117, 121, 147, 148, 154, 166, 200, 229, 240 directors, company 3, 118, 119–24, 126–30, 134, 147–8, 229 discussion 30, 42, 44, 46, 51, 54, 56, 59, 63, 65, 71, 72, 80, 87, 100, 101, 105, 112–13, 124, 125, 133, 141, 196, 197, 210, 231, 235 Dubnick, M. 31, 32, 33, 34 elections 40, 41–5, 68, 74, 111, 112, 113, 121, 128, 147, 219, 226, 227, 228, 230, 237 European Union 7, 40, 78, 171, 218 executive agencies 23, 39, 50, 51, 70, 153, 160–1, 171, 172, 177–83, 186, 208–9, 212–13 federalism 20, 39, 59–60, 77, 111, 188, 189–90, 191–2, 212, 214–18 Finer, H. 16, 18 Flinders, M. 32 forum-shifting 221 forum-shopping 221 freedom of information 33, 48, 71–2, 99–103, 112, 113–14, 148, 174, 182, 195, 196, 198 Friedrich, C. 16, 18 globalisation 5 grievance procedures, see complaints procedures Howard, M. 180 Human Rights Watch 5 information 30, 42, 46, 51, 54, 56, 58, 63, 65, 71, 80, 87, 100, 101, 105, 112–13, 124, 133, 141, 196, 210, 231, 235 inquiries 81, 90, 92, 94, 95, 96

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Page 252 inspectors 55, 91, 94, 98, 112, 220, 231 interest groups 20, 55, 59, 63–8, 166, 197, 214, 219–20, 231 International Monetary Fund (IMF) 5, 222 internet 2, 5, 70 judiciary, judicial review, see under courts Klein, R. 16, 30, 107 legislatures 25, 37, 38, 39, 40, 41, 43, 45–63, 68, 69, 72, 74, 84, 86, 95, 98, 103–4, 121, 124, 126, 129, 133, 148, 167, 184, 217–18, 219, 223, 227, 229 constituency representation 55–7, 62–3, 112, 140, 226, 229 legislative committees 2, 52–5, 58–61, 66, 90, 105, 111, 114, 165, 168, 182, 195, 196, 197, 228, 229, 231, 234, 236 Lewis, D. 180 Lijphart, A. 60 local government 39, 56, 70, 84, 91, 94, 128, 147 ‘many hands’, problem of 203, 229 markets 40, 122–3, 130, 142–3, 153, 154, 238 media 3, 29, 37, 49, 51, 59, 66, 68–74, 111, 113, 114, 119, 124, 132, 184, 195, 197, 202, 219, 227, 229, 231 Mill, J. S. 189, 195, 209 ministerial advisers 58 ministerial responsibility (accountability) 7, 16, 48–52, 69–70, 112, 129, 178–81, 183, 196, 199–200, 206–7, 223, 227, 235 nationalised industries 179 networks 39–40, 68, 161, 188, 189–90, 211–14, 235–6, 238, 240 new public management 86, 91, 105, 151–87 new social movements 2, 3, 5 New Zealand 7, 46, 53, 61, 70, 78, 83, 91, 93, 97, 99, 101, 105, 153, 156, 158, 160, 161, 174, 180, 191, 203 Nixon, R. 207 nonprofit sector 3, 6, 17, 24, 115–50, 182, 214, 220, 227–9, 235, 236, 238 ombudsmen 2, 25, 33, 41, 57, 75, 82, 90–100, 101, 102, 112, 114, 140, 142, 173, 176, 182, 199, 216, 218, 219, 220, 231 ‘Osmotherly Rules’ 54 outsourcing 4, 38, 59, 88, 93, 151, 153, 159, 167–70, 177, 180–3, 184, 185–7, 208–9 ownership, principle of 13, 36, 117–18, 228, 236 policy communities 37, 68, 197, 219, 228 political parties 41–5, 60–1, 229 private sector 3, 6, 13–14, 24–5, 28, 38, 115–50, 154–6, 172, 174, 175, 182, 204, 211, 214, 222, 227– 9, 230 privatisation 4, 151, 153, 155–6, 171, 172, 177, 186–7 purchaser/provider split 159–60, 165, 172, 173, 174–5, 177–81, 186, 212–13 see also contracts, outsourcing rectification 30, 42, 45, 47, 51, 54, 56, 61, 62, 65, 71, 80, 87, 100, 101–1, 105, 106, 112–13, 124, 128, 133, 141, 196, 200, 209, 210, 231, 235 regulation(s) 29, 130–6, 170, 177, 182, 183, 184 regulatory bodies 75, 90–8, 119, 131–6, 155, 156, 163, 171–3, 218–21, 230, 232, 236 Romzek, B. 30, 31, 32, 33, 34 Scandinavia 90 scapegoating 205–7, 209

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Page 253 shareholders 3, 24, 29, 117–27, 129, 134, 147–8, 211, 229, 234 stakeholders 24, 40, 64–8, 120, 166, 227 statutory authorities 23, 39, 50, 51, 55, 59, 61, 62, 64, 69, 84, 104, 157, 160, 171, 172, 178, 202, 214 tribunals 25, 33, 35, 41, 75–83, 100, 101, 112, 142, 173, 176, 219 trust 2, 143, 150, 213, 238–40 United Kingdom 7, 16, 32, 46, 50, 52, 53, 54, 58, 61, 70, 73, 76, 78, 79, 83, 84, 91, 92, 93, 94, 95, 96, 97, 99, 101, 106–7, 122, 131, 139, 153, 159, 160, 162, 166, 171, 173, 175, 179, 191 United States 7, 16, 31, 32, 39, 41, 45, 46, 53, 55, 59, 60, 61, 73, 76, 77, 78, 80, 81, 83, 84, 85, 86, 87, 88, 91, 95, 96, 99, 101, 104, 105–6, 107, 108, 112, 131, 134, 153, 156, 157, 158, 160, 162, 188, 189, 196, 203, 218, 221, 223, 227, 228, 229 Weber, M. 152 Westminster systems 7, 16, 32, 33, 45, 48, 53, 54, 58, 60, 69, 76, 78, 79, 81, 86, 87, 88, 99, 101, 105, 107, 108–9, 112, 178, 181, 196, 212, 223, 227, 228 whistle-blowing 30, 104, 105, 108, 144, 145, 147–8, 195, 196 World Bank 5 World Trade Organisation (WTO) 5, 222

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