Accountability is a protean concept and one which can mean anything or nothing, depending on the approach taken. Organising a series of papers, and a resulting collection of essays, around the subject of accountability gives the editors a resulting broad scope for manoeuvre, which can often be welcome when trying to tie together 15 individual contributions coherently. It is a credit to Bamforth and Leyland that this collection does work; accountability has so many different facets that there is genuine scope for their impressive range of contributors to cover a lot of varied ground, although it is noticeable that by no means all the contributors define what they mean by accountability. In much the same way as in the editors' Public Law in a Multi-Layered Constitution (2003), public law readers will find much to stimulate thought and there are important contributions to constitutional debates.
A tension explored by a number of the essays is the degree to which legal accountability through the courts can be effective, or can legitimately be described as a particularly effective form of accountability. When considering whether legal accountability works, King's contribution in chapter 6 provides a valuable structure for evaluating claims of instrumental benefits to legal accountability, setting out 10 measures which are at least potentially susceptible to evidence gathering. Some are doubtless more easy to measure than others; one can assess, for example, the degree of publicity more readily than the quality of independence. But providing a framework is a helpful start, and a practical engagement. The utility of legal accountability under the Human Rights Act 1998 is the subject of discussion by Fredman (chapter 5) and by Young (chapter 7). Fredman argues that judicial decision-making is essentially deliberative in nature, based upon reason-giving, but that human rights are more complicated, with a primary role for the legislature. The role of the courts is to ensure that decisions are taken deliberatively within human rights-set constraints (p. 118), requiring government to reason their decisions as part of the legal justification exercise. What Fredman's analysis does not deal with is where a court seeks to take into account the degree of express deliberation a legislature has afforded to particular issue: see, for example, Hirst v UK (No.2) (2006) 42 E.H.R.R. 41 and Animal Defenders International v UK (2013) 57 E.H.R.R. 21. Young agrees that the 1998 Act introduces a culture of justification, which goes beyond mere procedure to some substantive control, particularly in the application of proportionality. The role of the court is as a secondary decision-maker, after the delineation of the rights has already taken place but in order to enhance the importance of that role the case law needs to resolve the confusion over whether executive views should be given weight in the proportionality analysis, or whether the stringency of review should be modified instead (p. 170). One strongly suspects that judges do not particularly engage with this type of distinction, as they have not tended to engage with debates around dialogue theory, because they see it as being one without a difference.
But of course more rigorous academic engagement is one method of holding the judiciary itself to account, and one which does not infringe judicial independence. As Tushnet (chapter 3) points out, other common forms of possible judicial accountability – budgets, appointments, discipline, threats of non-compliance – involve rather greater pressure on independence, and illustrates them with the sort of colourful examples which are, for better or worse, often easier to find comparatively than in the UK. Not that domestic examples might not have proved interesting discussion points; what do the recent judicial threats of litigation over their pension provisions, or the appointment straight from the Bar of Lord Sumption to the Supreme Court, or the Conservative Party's extreme dissatisfaction with all manner of Strasbourg decisions tell us about the fine line between judicial accountability and judicial independence? The question of parliamentary scrutiny of judicial appointments is touched on Le Sueur's fascinating chapter (chapter 9), which gives unsurprising praise to the considerable – but politically ignored (pp. 211–12) – ability of parliamentary Select Committees to engage with the judiciary about the judicial system generally as well as particular aspects of the judicial role. The increasing willingness of senior judges to appear before Committees (pp. 229–30) is testament to the care and propriety with which those investigations are undertaken, and the increased desire on the part of the judiciary itself to make information available also helps scrutiny. The general urge on the part of MPs to condemn judges who give decisions with which they do not agree as unaccountable does not sit happily with their total failure to exercise any scrutiny of the Office for Judicial Complaints (pp. 220–21). Accountability only works if the scrutineer bothers to properly carry out its functions.
Some of the contributions which focus on the non-judicial routes of accountability will be worth particular study. Elliott carries out a valuable discussion in chapter 10 of the importance of the tribunal system (which hears vastly more cases than the Administrative Court and considers the merits as well), the utility of the ombudsmen given the occasional need to use the courts to try and enforce their findings, and the particularly political role of public inquiries, as accountability mechanisms. Bamforth's analysis (chapter 11) of accountability of and to the legislature is perhaps a little dense, but contains useful material on parliamentary privilege. Oliver (chapter 12) revisits her discussion of constitutional psychologies (see [2010] C.L.J. 639) to argue the perhaps uncontroversial idea that if accountability mechanisms are undermined then the public service and public interest mechanisms of the constitution would be put at risk. More cynical readers might be concerned that this boils down to a constitutional theory that everyone should behave decently. Although any essay which opens talking about a “meta-narrative” (p. 310) ought ordinarily to be treated with considerable scepticism, Leyland's piece in chapter 13 is a helpful run-through of important, and oft-neglected by English public lawyers, developments in funding for the devolved parts of the UK, coupled with a comparison with the tightening financial grip of central over local government. Anyone working in the bizarrely varied field of regulation – and it is pointed out that the report which led to the bonfire of the quangos identified 900 public bodies in 2010 and still no one knows how many of those have regulatory functions, but there are 20 different farming regulators alone (pp. 359–60) – should read Black's discussion (chapter 15) of the considerable practical and legal difficulties faced by trying to ensure the accountability of regulators. Davies's article (chapter 14) is a good insight into the increased accountability problems under the Health and Social Care Act 2012, but the second half on local authority outsourcing would have been enhanced by discussion of the so-called “easycouncil” litigation in R. (Nash) v Barnet LBC [2013] EWHC 1067 (Admin); [2013] EWCA Civ 1004; [2013] P.T.S.R. 1457.
Finally, no collection of public law essays would be fully complete without contributions from Trevor Allan and Paul Craig. The latter (chapter 8) carries out a neat little comparative exercise between the development of issues in domestic judicial review with their parallels in EU administrative law, noting the analytical similarities between the growth of common law rights and rights as general principles of EU law, which is likely to extend into the role of the Charter of Fundamental Rights as opposed to the Human Rights Act. The former (chapter 4) carries out a theoretical essay arguing that accountability means compliance with the rule of law (p. 77 – what one might call “Allan in a nutshell”) with customary brio and no small amount of argument by assertion. Allan argues that, without the rule of law, we would be slaves (p. 83), but limited benign constraints imposed by legality as a political value otherwise allow Parliament to remain supreme over the making of new law (pp. 89, 95), which might be thought an odd form of supremacy if it is constrained by the principles of legality. The rule of law is a moral ideal (p. 81) but what the moral content might be remains like the jam the White Queen offers Alice: never something for today. However, there is always one essay which says something completely unexpected and new, and, in this collection, that prize goes to Allison's “The Spirits of the Constitution” (chapter 2), a masterly and fascinating discussion of Dicey's lost different visions of the constitution which also contains an excellent discussion of the impact of the wartime decisions on English administrative law, including the influence on Wednesbury itself (pp. 53–55). Most readers of Accountability in the Contemporary Constitution will find much to sustain their interest throughout the collection, but even those who never make it past chapter 2 will have had a more-than-worthwhile visit.
