Accountability

Delegated public bodies and P3s are the topic of an extensive literature concerning the accountability frameworks surrounding them. It is arguably fair to suggest that these bodies are viewed at best as democratically suspicious and, at worst, democratically illegitimate.

However, in terms of the traditional (upwards) approach to accountability through departments to ministers and then to a legislature it is clear that the delegation of tasks to organizations that have been explicitly created with a high degree of autonomy from mainstream departments is problem­atic. An organizational relationship has been adopted in which the direct link between minister and elements of the state bureaucracy has been severed.

In some ways the accountability of the delegated public bodies that operate at the boundaries of state structures is ensured, albeit in an awkward manner, by the fact that these organizations operate under the auspices of a parent department. There is generally a named secretary of state who can be called to account to the legislature about a particular concern or incident surrounding one of these organizations. In Westminster democracies in particular, such as Canada, New Zealand, Australia and the UK, the capacity for blame­shifting is bounded by the convention of individual ministerial responsi­bility, which provides a constitutional ‘back-stop’ in the form of a minister. If an issue becomes politically salient in the eyes of the public or MPs they will still look to ministers to provide an account or accept responsibility, irrespective of whether the policy is the responsibility of a state-owned company, an independent regulator or a quasi-autonomous agency.

However, for 3Ps a range of factors further complicates the issue of account­ability; as the Institute for Public Policy Research (IPPR) has recognized (2004: 4) ‘Public-Private Partnerships, like many forms of contracting for public services, disrupt traditional accountability structures.’ This issue is particularly significant in light of the fact that there have been several high profile problems, scandals and failures with 3Ps.

Each of these incidents has illuminated the problem of achieving clarity of accountability within complex webs. These concerns are especially prob­lematic if the public body responsible for managing the relationship with a private partner is not the same body that negotiated the contract in the first place. A change in political control at the local or national level may create a critical tension if the incoming government does not share the values and import enshrined in the partnership contract. This is likely to lead to confused accountability, possibly the emergence of blame-games between stakeholders within the partnership. However, while the introduction of partnerships may increasingly demonstrate the fault lines that have existed for a number of decades in the spheres of accountability it is also possible to suggest that some 3Ps may offer new forms of accountability and a degree of democratic potential. The IPPR (2002, 213) note:

partnerships create new challenges for public accountability. Devolving authority over decision-making and public expenditure to non-elected part­nerships creates the need for new and robust forms of accountability.

In Britain, for example, the Department of Health (2002) has vigorously claimed that establishment of a number of hospitals as public interest companies with an increased level of independent and autonomy from Whitehall will create ‘a new form of social ownership where health services are owned by and accountable to local people rather than to central government’. In terms of financial accountability some forms of 3Ps clearly build in a number of long-term and explicit safeguards relating to quality of service that can deliver a level of public accountability that could not be

delivered under conventional public procurement methods. Many contracts build in deductions for poor performance and reserve powers that allow ministers to take immediate control over the operation of services in certain circumstances. However, there is a question over whether the financial penal­ties applying to companies involved in P3s are adequate. Politicians have frequently been reluctant to apply their contractual rights in relation to financial penalties, and even termination, due to a fear of discouraging the private sector from entering future 3Ps. And yet this reluctance undermines the fundamental logic and benefits of entering into 3Ps in the first place.

Although there would appear to be an imbalance between the rewards for success and penalties for failure, there are many different types and models of accountability. It may be that some forms of delegated governance are best legitimated not through the traditional model that focuses on either local councillors or ministers. This would take the form of new models of demo­cracy involving the creation of new elected or indirectly elected forums. Some independent public bodies reserve positions on their board for members of the public, their role being to represent the public’s interest rather than a particular sectional group.

But two serious challenges confront those who advocate the construction of pluralistic accountability structures in relation to delegated governance. Firstly, from a conceptual position, reconciling the creation of ‘fuzzy’ or ‘multicentric’ accountability structures that reflect the increasingly diverse and fragmented state with a clear and effective bond of accountability between the governors and the governed is difficult. The great quality of the convention of individual ministerial responsibility, for example, was its clarity and focus. Therefore, promoting a pluralistic perspective also risks making the overall system weaker, vacuous and more complex. Secondly, from an empirical position the current framework for the use of 3Ps tends not to ensure transparency and openness in relation to the information that is required if the democratic potential of these forms of governance is to be realized. In many countries there are reduced powers for external audit to examine the use of public monies within 3Ps compared with the audit environment for most public bodies. In addition, freedom of information legislation rarely empowers interested parties to access even the most basic information, a ‘commercial confidentiality’ exemption often being unneces­sarily over-used in order to prevent the release of information (for a case study see the research of Auerbach etal.

However, the creation of new democratic arenas does raise questions surrounding those who will participate in them and how new state struc­tures may be able to encourage the politically estranged to get involved and prevent a small group of unrepresentative community activists wielding too much power. With a general trend towards falling electoral turnouts at the national and local level there is little evidence of an appetite for greater electoral engagement from the public. Many para-statals have experienced great difficulty in trying to recruit ‘public members’ for their boards. The rhetoric of progressive governance, social ownership and direct accounta­bility assumes that the public want to be involved in the running of new governance structures but there is little evidence for this assumption. For example, in the UK the boards of the first wave of hospitals with independent foundation trust hospitals were elected during 2004 on the basis of a derisory electoral turnout - the board in one case being elected by well-under 1 per cent of those eligible to vote (see Klein 2004).

A core belief of the ‘progressive governance’ enthusiasts across Europe is that it is necessary to redefine the structure and culture of state bureaucracies in order to increase efficiency, standards and choice while protecting the public sector ethos. As part of this agenda many governments have sought to challenge the traditional public-private distinction and develop a ‘third way’ in which the positive attributes of both the private and public sectors can be combined. The theoretical capacity of arm’s-length bodies and 3Ps to offer independence and control while at the same time marrying the public and private sectors make them a particularly attractive governance mechanism. The result of which has been a marked shift in the nature and contours of the state. A key reason for this shift relates to a belief in possibility and benefits of ‘depoliticization’ as a central tool of statecraft. This has clear implications for complexity and accountability as well as broader understandings of the concept of the state. This will be the topic of the next sub-section.