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Historically, it was possible to consider the UK state as a unitary set of institutions headed by ministers accountable to Parliament.  In a modern context, however, in a state fragmented by devolution, the creation of new regulatory authorities and private provision of public services, law must play a greater role than politics in holding the state to account.

Discuss.

Introduction

Consideration of precisely how the UK in a contemporary context differs from the past in its approach to holding ministers accountable to Parliament demands the discussion of certain relevant philosophical approaches, laws and regulations, as well as an examination of the practical implications of the devolution on regulatory authorities and public services. This essay assesses the cogency of centralisation or decentralisation in the United Kingdom at large. Close scrutiny must be given to the differences between the de jure and de facto powers of the various institutions in order to properly take into account the territorial political system of the United Kingdom. Under a British context, the lack of a codified and established constitution may give more significance to the aforementioned differences. What is evident in this essay is that there co-exists a high level of formal centralised power with extensive practical sub-national autonomy in the UK. On the other hand, certain powers devolved by law are enfeebled because unintentional or informal limits on their exercise have been imposed.
By way of structure, this essay will first focus on the traditional British Constitution; second, it will, as a prepatory exercise, briefly discuss devolution in relation to the Westminster Model; third, I will discuss if devolution was a centralising or decentralising force in the United Kingdom, fourth; I will discuss the impact accountability to elected institutions as a result of devolution; fifth, I will discuss, the role of central government and central institutions in devolution; and finally I will propose legal obligations and principles to help improve the functioning and impact of public authorities in the UK.

Background: The Traditional British Constitution

With political power converging in the national Parliament and Government in London (respectively ‘Westminster’ and ‘Whitehall’), the United Kingdom has become renowned in history as ‘among the most centralised of the major industrial countries in the world’[1].Up until the 1990s, the United Kingdom was referred to as having the quintessential ‘power hoarder’ constitution instead of a ‘power sharing’ one,[2] which made the state a ‘centralised union’ although not purely unitary[3]. According to Tsebelis, the political system of the United Kingdom encompasses only a sole ‘veto player’ in the form of the incumbent party based in Westminster.[4]

Devolution: Beyond the Westminster Model?

Directly-elected legislatures and distinct executives were made for three-fourths of the United Kingdom (Northern Ireland, Wales, and Scotland) between 1997 and 1999.[5] Attempts to institute elected regional assemblies for the nine regions of England were made, although only a weak form came to fruition exclusively in London (as a result, we do not take note of subnational government within England in this essay). The modifications made (called “devolution” under a British political context) ensured an important breakthrough in the centralist ways of the United Kingdom and came to be defined as ‘the most radical constitutional change this country has seen since the Great Reform Act of 1832’.[6]

Initially, devolution was created as a unionist programme to address the hazards of nationalism (especially in Scotland) on the ground that the creation of subnational governments would ‘not only safeguard but also enhance the Union’ (Scottish Office 1997, para. 3.1). From the beginning, safeguards were established in the new territorial constitution to protect against unrestrained decentralisation. More specifically, crucial features of the pre-devolution constitution were preserved, including an integrated civil service, parliamentary sovereignty, and the centre’s control of taxation.

In practice, however, there are two reasons why these particular points may not always act as a crucial centralising influence. First, the national government may decide not to employ established systems to curb subnational autonomy: indeed, it is an important principle of British ‘territorial politics’ that the centre often ensures it is free from excessive involvements with ancillary affairs.[7] Second, notable restrictions from the centre are lessened due to the enjoyment of an elevated level of political legitimacy and de facto entrenchment by new subnational institutions (having been established after popular referendums). The result is that agenda-setting functions are bestowed on subnational governments that leads them to question the centre in ways the United Kingdom government may not have foreseen.

Thus, a dynamic balance for the British constitution is forged between pre-devolution centralised formal power and dynamic decentralising political progressions brought about by devolution. The unsettled antagonism between these two aspects of British territorial politics has become more pronounced since 2007 when the Labour Party’s reign all over the country ended. Nationalist parties—dedicated to the separation of the United Kingdom—are now incumbents in Belfast, Cardiff, and Edinburgh and all have released programmes involving the reformation of the power struggle between centre and periphery. Elsewhere, the United Kingdom government has launched its own ‘Britishness’ programme designed to offset any tendency to devolve, as well as signifying a readiness to reassess some parts of devolution while endeavoring to lessen expectations of radical change across the board.[8]

I will now take a look at certain characteristics of the British territorial constitution, with an emphasis on the fact that although the centre has preserved significant formal power for itself, the practical effect on subnational autonomy is less important.

The Division of Competences: A Centralising or Decentralising Force?

In 1998, laws were passed in Northern Ireland, Wales, and Scotland to establish the segregation of legislative and executive responsibilities between the national and subnational levels of government. While crucial distinctions were created among the three devolution settlements, certain policies were set up in particular legislation where subnational institutions were not included. These so-called ‘reserved powers’ consisted of the constitution; broadcasting; energy strategy; asylum and immigration policy; social security; regulation of businesses,[9] consumer protection and the labour market; macroeconomic affairs; and foreign relations and defence. Aside from that, the United Kingdom government held on to its control of the civil and criminal justice systems, except for Scotland.

Policies providing for ‘exclusive competences’ of the national government are commonly found in federal or other kinds of decentralised political governments. However, it is important to take note of the reserved powers in the British government. The United Kingdom has nearly monopolized taxation and the social security system—the creation of which is meant to preserve the country’s standing as a ‘single economic and social space’—and the fact that this is uncommon anywhere else in the world results in much dissension in the United Kingdom.

Accountability to Elected Institutions

For the purpose of examining accountability to elected institutions, I will be utilising the works of M. C. Dorf and C. F. Sabel. Both contend that their system preserves democratic accountability by ensuring that the elected officials stay involved.[10] Accountability is not the same as hierarchical principal-agent bodies on which traditional models generally depended. Sabel has, together with Simon, rebuffed the traditional, backwards-looking treatment of accountability by the law as “a matter of pedigree”,[11] and, instead, posited that learning-by-monitoring gives an efficient and crystal clear check on the exercise of delegated power. Reporting and benchmarking give the fundamental answer to the natural opacity of decentralised bodies, providing the means and the driving force for determining and aiming for best practice. This “officialises and subjects to public discipline the process of resolution of ambiguity rather than, as traditional judicial practice, treating is as an insider’s secret.”[12] Through this, the “dynamic accountability becomes the means of controlling discretion where the control cannot be hardwired into the rules of hierarchy.”[13]

The point is that democratic experimentalism unifies a normatively legitimate system of checks and balances with a realist conception of practical governance. Instead of hierarchical control, peer review is the controlling system for imposing discipline among decision-making units. By being involved in the mutual collation and sharing of information by the pertinent structures, learning outcomes are yielded which stand for a kind of internal network discipline. There is legitimacy from a fundamentally social system of mutually fortified network norms.

However, Dorf and Sabel also put importance on the participation of central government in all stages of the system. The central bodies all play a part in protecting both substantive and experimentalist values. For example, the legislature may exclusively favor experimentation when certain key factors of public value and complexity are met. The supervision of the process is also mandatory to guarantee that the required level of reporting and benchmarking takes place. This may entail, as an example, taking away assistance from units that utilise fruitless means or yield unsatisfactory results. In this way, the democratic organs of the state supply and protect the mutual process of practical learning.

On top of that, there is a supplemental and discrete part for the central bodies in guaranteeing the minimum level of individual rights and public goods mandated by the constitutional order. Dorf and Sabel foresee a part for the judiciary, for example, in “policing government and safeguarding rights.”[14] This gives secondary support for the argument’s apparent democratic legitimacy.

The Role of Central Government

By taking a close scrutiny of the role of central government in the UK under each system, evaluation of the previous section is reinforced. Democratic experimentalists see the accountability furnished by a strict and state-supervised peer review system as the chief procedure of legitimising the model. However, proposals of the Coalition Government do not appear to provide for any sort of governmental benchmarking or peer review. For example, The Localism Act 2011 authorises tasks to be moved to another unit should there be any expression of interest, but it does not contemplate any system for overseeing the operation of the pertinent task after the transfer has taken place. The Act does not also provide detailed legislative guidelines that would permit the government or courts to go over the association’s activities. It appears as though it is the state’s responsibility for facilitating monitoring-by-informed-choice but has decided not to perform such monitoring itself. As a result, the government sees a considerably more constrained role for central government which would not be the case under a democratic experimentalist system. The central government is assumed to utilise the data acquired to reform the activities of other bodies, be it through sanction, instruction, or incentives. The faith of this supposition in the practical capacities of disaggregated actors is thus substantial but not entirely absolute:

“[I]f local knowledge and simultaneous engineering are indispensable to government under diverse and volatile conditions, there is no reason to assume and many reasons to doubt that they are sufficient.”[15]

On the other hand, this essay depicts the UK’s central government in considerably more passive and minimalist terms. The part of the state is “redefined as overseeing core standards and entitlements.”[16]

Neither is the state the guardian nor the engine of better governance. It can smooth the way, but it cannot impede, instruct, or punish licensed operators lest it choke innovation or add unwarranted expenses.

While democratic experimentalism considers it as a beneficial part of the system, I do not deem it as a necessary evil. As a result, neither objective expertise nor elected central government can possibly give the necessary checks and balances for the mitigation of accountability or legitimacy fears connected with the devolution project. Consequently, the remaining section of this part will examine whether the other facets of the Big Society[17] system in its present form might sufficiently tackle the aforementioned questions.

The Role of Central Institutions

As a result of devolution, there rises an issue as to the kind of standards which ought to be established concerning such entities. The last paragraph contemplated this issue from a democratic point of view. However, good government is not only about openness or productivity. To be more specific, governmental legitimacy has an intensely normative facet that mandates adherence to a certain set of values and guidelines.

While this essay considers the need for equality, it depends on a particularly poor idea of equality. More specifically, both substantive and procedural values in ensuring a normatively legitimate government are ignored. Apparently, the adoption of a specific theory of just[18] or legitimate[19] government is beyond the scope of this paper. Under this section, observing how the developed principles of normative government accept the need for governance to exceed utilitarian notions of optimising user needs is enough.

This calls attention to a serious flaw in the Big Society Model, although that is not to say that this essay completely ignores this issue. In some examples, it calls for an examination on how accountability under the system might be enhanced, whether it is through consumer champions, local government, Ombudsmen, or voiced mechanisms. Nevertheless, in each instance, it continues with an idea of accountability as user preference, and with an obvious unwillingness to utilise established centralised systems of legitimation. Discourse on how Parliament, the courts, or the law might play a part in the proposed system is scant, if any.

This is true despite that fact that these entities both have experience and status to achieve a normatively significant contribution to disaggregated governance. This was conceded to by Dorf and Sabel in their acknowledgment of the value of including Congress in design and oversight, and in maintaining courts as the protectors of constitutional standards and fundamental rights. Explicit deliberation must be made to how Parliament, Cabinet, and the courts will participate in a reform system of service provision.

A fusion of the following methods is worthy of consideration. The accountability of service providers to Parliament and, to be precise, to parliamentary committees, should be maintained. Reporting guidelines should be set up so that disaggregate actors will not be over-burdened but will permit Parliament to apprise itself to a certain level about the way public services are supplied in various areas.

Naturally, with numerous and diverse service providers, it is unreasonable to make each entity report directly to Parliament—or indeed, expect parliament to take into account all the information of each individual report. As result, there may be an advantage in the setting up of systems for supervising disaggregated actors in a way that is efficient, and which will smooth the way for Parliamentary examination off the system at macro-level. Choices may include the founding of a Department with a certain set of functions for public service supply, or a system of regional or sectoral oversight. In addition, the answerability of regulators and Ombudsmen to Parliament would be a welcome complement. From a legal point of view, preservation of the role of the courts as a forum for evaluating the rights-compliance, proportionality, and reasonableness of the functions exercised by disaggregate actors is needed. This would obviously require the participation of all the entities involved in the supply of public services within the scope of the Human Rights Act 1998.

Proposals for Legal Reform?

While adherence to substantive rights is a crucial factor of legitimate governance, it is also the case that considers values have an important part in guaranteeing government legitimacy. Furnishing a system that ensures a level of fairness,[20] reasonableness,[21] or non-arbitrariness[22] to individuals in their transactions with government is an imperative factor of a normatively acceptable system. Several principles of administrative law partly attain this obligation.

Principles of reasonableness or proportionality, the levying of a duty to give grounds and the safeguarding of lawful suppositions are all fit of being understood as facets of a general obligation on administrative entities to act with equality[23] in their transactions with the public, which responsibility is overseen and imposed upon by the courts.

Conclusion

This essay has shown that there is a need to guarantee that disaggregated actors comply in their dealings to the same process values. This can be partially attained by guaranteeing that such entities be put through judicial scrutiny in the same way. Nevertheless, deliberation can be made on the launch of a general legislative commitment to equal processes. This can be performed as part of the government’s reform system and would expose all public service entities to adhere to a set of minimum guidelines of procedural equality. A balance between oversight and interference in the design of such a law would once again have to be achieved. Proposed theories might involve a responsibility to give grounds for conclusions, a duty to consider the needs of concerned users, certain methods to be complied with before a service is withdrawn, or maybe a duty to be mindful of certain identified public values (such as equality of access).

 

Bibliography

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Bogdanor, V, Devolution in the United Kingdom (Oxford: Oxford University Press, 2001).

Bowers, P, ‘Government of Wales Bill 2005: a note on the Bill’s progress’ (www.parliament.uk 2006) <www.parliament.uk/commons/lib/research/notes/snpc-04098.pdf> accessed 9 April 2013

Bradbury, J., ‘Territorial politics in the United Kingdom after devolution and regional reform: whither relative tranquillity and the suspended revolution?’(www.Rose-Hulman.edu 2007) <www.parliament.uk/commons/lib/research/notes/snpc-04098.pdf> accessed 9 April 2013

Bulpitt, J, Territory and Power in the United Kingdom, an Interpretation (Manchester: Manchester University Press, 1983).

Cabinet Office, ‘Building the Big Society. (Cabinet Office, 2010) < http://www.cabinetoffice.gov.uk/sites/default/files/resources/building-big-society_0.pdf [Accessed April 20, 2013].; White Paper on Open Public Services (Stationery Office, 2011).

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Hazell, R, ‘The Future of the Union’ (www.ucl.ac.uk 2008) <www.ucl.ac.uk/constitutionunit/ files/events/2008/Keynote_Address.pdf> accessed 8 April 2013.

 

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[1] Kilbrandon Commission [Royal Commission on the Constitution]. Report on the Constitution, Cmnd 5460 (London: The Stationery Office, 1973).

[2] King, A, Does the United Kingdom still have a constitution? (London: Sweet & Maxwell, 2001).

[3] Rokkan, S. and D.W. Urwin, Economy, Territory, Identity: Politics of West European peripheries (London: Sage, 1983).

[4] Tsebelis, G, Veto Players: How Political Institutions Work (Princeton University Press, 2002).

[5] Syrett, K, The Foundations of Public Law: Principles and problems of power in the British Constitution. (Palgrave Macmillan, 2011).

[6] Bogdanor, V, Devolution in the United Kingdom (Oxford: Oxford University

Press 1999).

[7] Bradbury, J, ‘Territorial politics in the United Kingdom after devolution and regional reform: whither relative tranquillity and the suspended revolution?’(www.Rose-Hulman.edu 2007). <www.parliament.uk/commons/lib/research/notes/snpc-04098.pdf> accessed 9 April 2013.

[8] Alder J, Constitutional and Administrative Law (15th, Maxwell, London 2011).

[9] Prosser, T, Regulation and Legitimacy in Jowell and Oliver, eds., The Changing Constitution, (7th ed, 2011), 315.

[10] Dorf S and Sabel C, ‘A Constitution of Democratic Experimentalism’ [1998] Colum. Law Review. 262, 29.

[11] Ibid, 233.

[12] Sabel, C, and Simon, W, ‘Accountability without sovereignty’ in G. de Burca and J. Scott (eds), Law and New Governance in the EU and the US (Oxford: Hart, 2006).

[13] Ibid.

[14] Dorf and Sabel, “A Constitution of Democratic Experimentalism” (1998) 98 Colum. L. Rev. 267, 340.

[15] Ibid.

[16] Open Public Services: White Paper, Cm.8145 (2011).

[17] Cabinet Office, ‘Building the Big Society ‘ (Cabinet Office 2010) <http://www.cabinetoffice.gov.uk/sites/default/files/resources/building-big-society_0.pdf> accessed 9April 2013.

[18] Rawls, J, A Theory of Justice (Boston: Belknap, 1971).

[19] Mashaw L, Greed, Chaos & Governance (Yale University Press, 1997).

[20] T. R. S. Allan, Law, Liberty and Justice (Oxford: Clarendon, 1993), 164–170.

[21] Mashaw, J, Greed, Chaos & Governance (Yale University Press, 1997), 67–68.

[22] Bressman L, ‘Beyond Accountability: Arbitrariness and Legitimacy in the Administrative State’ [2003] 78 NYU Law Rev 461.

[23] Craig P, ‘Legitimate Expectations: A Conceptual Analysis’ [1992] 108 L.Q.R. 79.


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