Separation of Accountability and Control: The Agency and the Regulatory State

Abstract

The structure of western government has undergone a transformation over the past century. A large portion of public administration previously done by departments embedded within the core of government has been shifted to administrative units - so-called ‘quasi-independent’ bodies referred to in this paper as “agencies ”- that are legally and organizationally separate and outside the constitutional core of government. Unlike the classical models of Responsible and Republican government which achieve a balance between the executive branch’s control powers and accountability obligations over the administration, the ‘agency, accountability and control are treated as separate and distinct rather than mutually dependent concepts. The effect of this separation of accountability and control, it will be argued, is that the classical formula of ‘equilibrated powers’ underlying both the classical models has been neglected - either by design or inadvertence - under the agency model. It follows from this that, even though a great deal of attention has been directed towards questions surrounding the accountability of agencies to the traditional branches of government, comparatively less research has been devoted to examining executive branch accountability in respect of the exercise of its powers to control agencies. The disequilibrium in the relationship between the executive’s legal and political powers to control agency action, on the one hand, and its accountability for the exercise of these control powers, on the other hand, that has gone largely unnoticed and is the subject of this paper.

This paper threads together the foregoing themes in four parts. The first part of the article examines the ideas and problems of accountability and control and then lays out the background of the problem - namely, the increasing sense of an empowered unaccountable executive and the coinciding rise of the agency. The second part sets out an historical account of how accountability and control were developed in two distinct traditions: the American and the Commonwealth and then analyses the historical narrative through a legal lens examining the two constitutional models which these traditions reflect, the Republican and Responsible Government models. It identifies how accountability and control were built into the structures of both constitutional models. The third part examines the rise of the Regulatory State and the legal forms of the agency. The final part provides a synthesis of the discussion and an answer to the rise of the increasingly unaccountable executive.