Accountability in Public Administration: A Comprehensive Overview

Accountability of Public Administration A presentation I gave in support of my speech titled O pojęciu rozliczalności (accountability) administracji publicznej at the conference for Responsibility of and in Public Administration in Łódź on November 21, 2012. dr. hab. Jerzy SupernatInstitute of Administrative Studies University of Wrocław

Accountability The Bible Revised Standard Version. The Gospel according to John, 1, 1: In the beginning was the Word, and the Word was with God, and the Word was God.

Accountability • a standard of conduct in public life • a standard by which administrators are to be judged • an organizing principle of public administration • one of the core values of democratic governance • a truly/key democratic value • an universal democratic principle • a sign of growing democracy assertiveness • a serious step in progression towards democratic government • the ultimate manifestation of democracy • a legitimating principle of contemporary governance system • a good governance principle/tool/value

The term accountability is equivocal (ambiguous) one!!

Accountability • A political concept in which representative government and political responsibility (key elements of democratic legitimacy) are combined • the vocabulary of counting, accounting and accountancy • public audit and the mediaeval office of Comptroller and Auditor-General • financial accountability and public audit • constitutional (limited) government and formal public accountability in financial affairs • public administration as a system • of public management • audit as a centerpiece of the machinery by which accountability • is established • By linking accountability to audit and public management, the term is made more objective, while at the same time its field of operation is extended from the realm of politics into financial affairs and public administration. Responsibility and accountability. Odpowiedzialność i odpowiedzialność? Odpowiedzialność i rozliczalność? One can single out an element of subjectivity in the term responsibility, whilst the term accountability may be read objectively as referring to narration: the obligation to give an account of events. accountability = rozliczalność

Accountability Accountability and the European Union dr. hab. Jerzy Supernat

Accountability The European Union is a polity in which political ideas must be blended. It has by and large to accommodate the traditions of its members and to proceed so far as possible in accordance with the general principles common to the laws of the Member States. Yet languages as French, German,Spanish, Portuguese, Dutch and Polish have no exact equivalent of ‘accountability’ and do not distinguish semantically between ‘responsibility’ and ‘accountability’. If there is growing familiarity with the term ‘accountability’ then this is due to experience with the Anglo-Saxon tradition. Is ‘accountability’ an Anglo-American arriviste on the political-legal scene without resonance in other European systems? Accountability is a portmanteau word into which is packed a bundle of notions pertinent to modern systems of government. When borrowed or transplanted, the word may acquire new and unexpected meanings. Pierre Avril sees the term ‘accountability’ as borrowed by the French to encapsulate a cluster of ideas contained within the notion of ‘responsabilité devant le peuple’; this would lend the term the dual meaning of ‘accounting for’ one’s actions and ‘taking into account’ or responsiveness to the people’s view. And the French word ‘responsabilite” combines political accountability with legal liability, lending a further dimension to the term. dr. hab. Jerzy Supernat

Accountability • Damian Chalmers, Adam Tomkins,European Union Public Law, Cambridge 2007 • Accountability in the European Union • Accountability is concerned with subjecting the decisions and actions of institutions (and, usually, executive institutions such as the Commission and the Council) to ex ante and ex post scrutiny. (…) it comprises three main elements: • the institutions must explain what they are doing/or what they are seeking to • the institutions must make themselves politically liable for what they do and propose to do • the institutions must take responsibility for what they do • The first element is a calling to account; the second and third a holding to account. • D. Ch., A. T.:Neither the institutions being called or held to account, nor those to whom they are accountable, need necessarily be democratic. There is therefore no necessary link between accountability and democracy. They may overlap, for sure, but the securing of accountability within the European Union will not necessarily make the European Union more democratic. dr. hab. Jerzy Supernat

Accountability 1 Committee of Independent Experts First report on allegations regarding fraud, mismanagementand nepotism in the European Commission, March15, 1999 1.5.4. The rules of conduct which are part of the common core of 'minimum standardsin public life' (…) may be defined as follows: (…) - behaving (…) in accordance with the principles of accountability and openness to the public, which implies that, when decisions are taken, the reasons for them are made known, the processes by which they were taken are transparent and any personal conflicting interests are honestly and publicly acknowledged. Only by respecting those standards will it be possible for holders of high office to have the authority and the credibility enabling them to offer the leadership which they are required to give [compare with the 'Seven principles of public life' as set out in the first report on Standards in Public Life of the UK Nolan (now Neill) Committee]. dr. hab. Jerzy Supernat

Accountability 2 9.3.3. The principles of openness, transparency and accountability (see above, para. 1.5.4.), are at the heart of democracy and are the very instruments allowing it to function properly. Openness and transparency imply that the decision-making process, at all levels, is as accessible and accountable as possible to the general public. It means that the reasons for decisions taken, or not taken, are known and that those taking decisions assume responsibility for them and are ready to accept the personal consequences when such decisions are subsequently shown to have been wrong. • objective accountability – explanations must be made if things go wrong • subjective accountability – personal acceptance of responsibility • sanctions – acceptance of personal consequences • For the first time in EU public administration the term accountability was used in its true Anglo-American sense and presented as a standard by whichadministrators are to be judged. dr. hab. Jerzy Supernat

Accountability 3 9.4.25. The responsibility of individual Commissioners, or of the Commission as a body, cannot be a vague idea, a concept which in practice proves unrealistic. It must go hand in hand with an ongoing process designed to increase awareness of that responsibility. Each individual must feel accountable for the measures he or she manages. The studies carried out by the Committee have too often revealed a growing reluctance among the members of the hierarchy to acknowledge their responsibility. It is becoming difficult to find anyone who has even the slightest sense of responsibility. However, that sense of responsibility is essential. It must be demonstrated, first and foremost, by the Commissioners individually and the Commission as a body. The temptation to deprive the concept of responsibility of all substance is a dangerous one. That concept is the ultimate manifestation of democracy. dr. hab. Jerzy Supernat

Accountability • Mismanagement/Maladministration • Committee of Independent Experts • Mismanagement (…) refers in general to serious or persistent infringements of the principles of sound administration and, in particular, to acts or omissions allowing or encouraging fraud or irregularities to occur or persist. Such infringements may be committed intentionally but will consist, more frequently, in negligent behaviour, or lack of care, in the exercise of public functions. • The European Ombudsman • Maladministration means poor or failed administration. This occurs if an institution fails to do something it should have done, if it does it in the wrong way or if it does something that ought not to be done. Some examples are: • administrative irregularities • unfairness • discrimination • abuse of power • lackor refusal of information • unnecessary delay. dr. hab. Jerzy Supernat

Accountability 1 European Principles for Public Administration,Sigma Papers 1999, No. 27, OECD Publishing. Although the expression and concepts of administrative law (…) differ from one national system to another, it is possible to agree upon a common definition of administrative law as being the set of principles and rules applying to the organization and management of public administration and to the relations between administration and citizens. (…) These administrative principles are not simply ideas based on goodwill; they are embedded in institutions and administrative procedures at all levels. Actors in the public sphere are legally obliged to comply with these legal principles, which must be upheld by independent control bodies, systems of justice and judicialenforcement, parliamentary scrutiny, and by ensuring opportunities for hearing and redress to individuals and legal persons. dr. hab. Jerzy Supernat

Accountability 2 Particularly important principles set forth in thejurisprudence of the European Court of Justice are, among others: the principle of administration through law; the principles of proportionality, legal certainty, protection of legitimate expectations, non-discrimination, the right to a hearing in administrative decision-making procedures, interim relief, fair conditions for access of individuals to administrative courts, non-contractual liability of the public administration. If we attempt to systematize the main administrative law principles (…) we could distinguish the following groups: 1) reliability and predictability (legal certainty); 2) openness and transparency; 3) accountability and 4) efficiency and effectiveness. Other principles can be derived from these. dr. hab. Jerzy Supernat

Accountability 3 Generally, accountability means that one person or authority has to explain and justify its actions to another. So in administrative law it means that any administrative body should be answerable for itsactions to other administrative, legislative or judicial authorities. Accountability also requires that no authority should be exempt from scrutiny or review by others. It can be effected through many different mechanisms, including review by the courts, appeal to a superior administrative body, investigation by an ombudsman, inspection by a special board or commission, and scrutiny by a parliamentary committee, among many others. Accountability is instrumental in showing whether principles like the rule of law, openness, transparency, impartiality, and equality before the law are respected. Accountability is essential to ensure values such as efficiency, effectiveness, reliability, and predictability of public administration. A particular characteristic of accountability in the domain of administrative law is that it is ensured througha complex array of quite formal procedures. There is not an abstract accountability but very concrete andlegally defined matters to account for, through a set of very specific procedures. dr. hab. Jerzy Supernat

Accountability OECD is by no means the only international organizations to concern itself with accountability and good governance. The World Bank (other examples are the International Monetary Fund – IMF and the World Trade Organization – WTO) has also played a leading part in establishing accountability as a good governance principle, adopting the concept as one for evaluating the quality of governments. It views the accountable administration of public funds and an independent auditor responsible to a representative legislature as essential components of good governance. dr. hab. Jerzy Supernat

Accountability UK dr. hab. Jerzy Supernat

Accountability Colin Turpin, Adam Tomkins,British Government and the Constitution, Cambridge 2007 The authors list accountability alongside democracy, parliamentary sovereignty, the rule of law and separation of powers as one of the ideas central to the British constitution. They stress the dual link with democracy and the rule of law: A link with democracy in that people are given power not for their own ends but for the public good; and a link with the rule of law, which demands that those to whom power is granted should not exceed the limits of their authority. Accountability for the use of power is supportive of both democracy and the rule of law and we may claim it as a leading principle of our constitution even if it is only imperfectly realised in practice. dr. hab. Jerzy Supernat

Accountability • Keith Syrett, The Foundations of Public Law. Principles and Problems of Power in the British Constitution, Palgrave, Macmillan 2011. • Accountability may be defined as answering for, explaining or justifying one’s actions or decisions, usually to some external body which is independent of the original decision maker/actor. This can take varying forms, some of which may be pursued concurrently. • political (the primary mechanism through which this form of accountability is realised in the British constitution is by way of the doctrine of ministerial responsibility to Parliament) • legal (the focus is upon explaining that the action or decision is in compliance with the law) • financial (demonstrating compliance with principles of financial probity) • administrative (justification of actions or decisions in terms of principles of good administration) • managerial (internal form of accountability based upon quality assurance within the organisation) • or it may relate to values such as efficiency (demonstrating that resources have been spent in a manner which offers value for money to the public) dr. hab. Jerzy Supernat

Accountability Political accountability and the doctrine of ministerial responsibility. Is there a difference between accountability and responsibility? The Public Service Select Committee of the House of Commons in a report issued in 1996 rejected the distinction stating that: (…) it is not possible absolutely to distinguish an area in which a minister is personally responsible, and liable to take blame, from one in which he is constitutionally accountable. Ministerial responsibility is not composed of two elements with a clear break between the two. Ministerial Code, Cabinet Office, May 2010 (the document sets out the principles of Ministerial conduct) draws no distinction between accountability and responsibility providing that: Ministers have a duty to Parliament to account, and to be held to account, for the policies, decisions and actions of their departments and agencies. dr. hab. Jerzy Supernat

Accountability Ministerial Code, Cabinet Office, May 2010 Annex A. The Seven Principles of Public Life Selflessness. Holders of public office should act solely in terms of the public interest.They should not do so in order to gain financial or other material benefitsfor themselves, their family, or their friends. Integrity. Holders of public office should not place themselves under any financial orother obligation to outside individuals or organisations that might seek toinfluence them in the performance of their official duties. Objectivity. In carrying out public business, including making public appointments,awarding contracts, or recommending individuals for rewards and benefits,holders of public office should make choices on merit. Accountability. Holders of public office are accountable for their decisions and actions tothe public and must submit themselves to whatever scrutiny is appropriateto their office. Openness. Holders of public office should be as open as possible about all thedecisions and actions that they take. They should give reasons for theirdecisions and restrict information only when the wider public interest clearlydemands. Honesty. Holders of public office have a duty to declare any private interests relatingto their public duties and to take steps to resolve any conflicts arising in away that protects the public interest. Leadership. Holders of public office should promote and support these principles byleadership and example. dr. hab. Jerzy Supernat

Timothy Endicott, Administrative Law, Oxford 2009 • The constitutional principles of administrative law: • System principles: • separation of powers • subsidiarity • comity • the rule of law (legality, due process, access to justice, legal certainty) • Principles of accountability The two types of principles of administrative law are interwoven for various reasons: partly because adhering to the system principles makes government more accountable, and partly because non-legal forms of accountability can support that especially famous system principle, the rule of law. • Good government – Responsible government – Accountable government • An accountable government faces up to people. Accountability is a fundamental requirement for responsible government, because officials cannot be trusted to act responsibly if they don’t have to face up to anyone. (…) effective government accountability depends on much more than just law. It depends on party politics, on participation by voters, on independent and critical media, and on the commitment and integrity of Members of Parliament and other representatives. Accountability dr. hab. Jerzy Supernat

Accountability • Timothy Endicott, Administrative Law, Oxford 2009 • Accountability and open government: • Open government is only partly new (…). But the principle that administrative information in general is to be open (subject to exemptions) really is a radically new principle, which has developed since the 1990. It is of constitutional importance. • The value of transparency is partly that it can contribute to political control of government (…). • It can also contribute to the rule of law (…). • But it has a more basic importance, because it makes the government face up to people: it is in itself an accountability technique. dr. hab. Jerzy Supernat

Timothy Endicott, Administrative Law, Oxford 2009 Accountability needs to take diverse forms in a complex 21st-century state. Parliament imposes certain forms of political accountability on government and the courts impose certain forms of legal accountability, but accountability has to reach far beyond the courts and Parliament. Auditors hold public authorities to account for their finances, and their decisions may be backed by massive financial penalties for officials involved in corruption. Rewords (such as promotion processes) provide a form of accountability. Other accountability techniques are effective because they create publicity that has crucial political effects. Some are effective merely because they are embarrassing to the individuals involved who make decisions on behalfof public authorities. Public authorities ought to be accountable in a wide variety of ways to a wide variety of people and institutions – to ombudsmen, to public inquiries, to public investigations, to school inspectors, to a variety of tribunals, to the voters, to the media, to the courts, to the institutions of the European Union, to the states that are party to the Geneva Conventions, to the United Nations… (…) Legal accountability is neither more nor less important than other forms of accountability. (…) Parliament and the courts each have distinct supervisory functions over the government. So the political and legal processes serve as complementary accountability techniques. Accountability dr. hab. Jerzy Supernat

Accountability mark bovens richard mulgan dr. hab. Jerzy Supernat

Accountability Mark Bovens,Public accountability, [in:] E. Ferlie, L. Lynne, C. Pollitt (eds), The Oxford Handbook of Public Management, Oxford 2005 • Accountability entails three main elements: • Giving an account (in the attenuated form of narration). • Questioning or debating the issues. • Evaluation or passing judgment. Accountability is in this definition essentially retrospective. This is to exclude from the definition the popular participation in policy-making seen by proponents of direct democracy as an essential element in accountability to the people. This is also a thin definition of accountability. As understood by the modern media and in popular parlance, accountability invariably contains a fourth element of sanction: ‘heads must roll’ for accountability to be sufficiently thick. M. Bovens thinks that sanction is likely to exclude from the list of accountability forums some of the most effective forms of redress: those, such as ombudsmen, who do not have the authority to sanction formally, but who can nevertheless be very effective in securing redress or reparation. M. Bovens treats accountability in terms of social relationships, where the actor may face consequences which may on occasion only be implicit or informal such as the very fact of having to render account in front of television cameras, or the disintegration of public image and career as a result of the negative publicity generated by the process. dr. hab. Jerzy Supernat

Accountability • Richard Mulgan,Accountability: an Ever-expanding Concept?, Public Administration 2000, nr 78 • One sense of accountability, on which all are agreed, is that associated with the process of being called to account to some authority for one’s actions. Indeed, this sense may fairly be designated the original or core sense of accountability (…) Such accountability has a number of features: • it is external, in that the account is given to some other person or body outside the person or body being held accountable • it involves social interaction and exchange, in that one side, that calling for the account, seeks answers and rectification while the other side, that being held accountable, responds and accepts sanctions • it implies rights of authority, in that those calling for an account are asserting rights of superior authority over those who are accountable, including the rights to demand answers and to impose sanctions. dr. hab. Jerzy Supernat

Accountability • Richard Mulgan, Accountability: an Ever-expanding Concept?, Public Administration 2000, nr 78 • Accountability recently has increasingly been extended into areas where the various feature of core accountability no longer apply. • the sense of individual responsibility and concerns for the public interest expected from public servants (professional and personal accountability; internal accountability); an internal sense which goes beyond the core external focus of the term • a feature of the various institutional checks and balances by which democracies seek to control the actions of governments (accountability as control) even when there is no interaction or exchange between governments and the institutions that control them • the extent to which governments pursue the wishes or needs of their citizens (accountability as responsiveness) regardless of whether they are induced to do so through processes of authoritative exchange and control • the public discussion between citizens on which democracies depend (accountability as dialogue), even when there is no suggestion of any authority or subordination between the parties involved in the accountability relationship dr. hab. Jerzy Supernat

Accountability Accountability and open government dr. hab. Jerzy Supernat

Accountability Open Government Declaration,September 20, 2011 As members of the Open Government Partnership, committed to the principles enshrined in the Universal Declaration of Human Rights, the UN Convention against Corruption, and other applicable international instruments related to human rights and good governance: We acknowledge that people all around the world are demanding more openness in government. They are calling for greater civic participation in public affairs, and seeking ways to make their governments more transparent, responsive, accountable, and effective. We recognize that countries are at different stages in their efforts to promote openness in government, and that each of us pursues an approach consistent with our national priorities and circumstances and the aspirations of our citizens. We acceptresponsibility for seizing this moment to strengthen our commitments to promote transparency, fight corruption, empower citizens, and harness the power of new technologies to make government more effective and accountable. Countries that endorsed the declaration as of September 20, 2011: Brazil, Indonesia, Mexico, Norway, Philippines, South Africa, United Kingdom, United States. dr. hab. Jerzy Supernat

Accountability UK Ministerial Code, Cabinet Office, May 2010 It is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister. Ministers should be as open as possible with Parliament and the public, refusing to provide information only when disclosure would not be in the public interest which should be decided in accordance with the relevant statutes and the Freedom of Information Act 2000. Ministers should similarly require civil servants who give evidence before Parliamentary Committees on their behalf and under their direction to be as helpful as possible in providing accurate, truthful and full information in accordance with the duties and responsibilities of civil servants as set out in the Civil Service Code. dr. hab. Jerzy Supernat

Accountability Bogusław Banaszak, Michał Bernaczyk, Konsultacje społeczne i prawo do informacji o procesie prawotwórczym na tle Konstytucji RP oraz postulatu „otwartego rządu”, „Zeszyty Naukowe Sądownictwa Administracyjnego” 2012, nr 4 (43), s. 16 i n. Państwo, które opiera swe funkcjonowanie na dostępności informacji o swej działalności i na wsparciu obywatelskiej partycypacji, to państwo realizujące koncepcję tzw. otwartego rządu (open government) (s. 17). Elementy koncepcji otwartego rządu (s. 19): dr. hab. Jerzy Supernat

Richard Mulgan: Accountability has become a commonplace of the public administration literature. A word which a few decades ago was used only rarely and with relatively restricted meaning (and which, interestingly, has no obvious equivalent in other European languages) now crops up everywhere performing all manner of analytical and rhetorical tasks and carrying most of the burdens of democratic governance. dr. hab. Jerzy Supernat

Concluding Remark If it is dangerous to suppose that government is always right, it will sooner or later be awkward for public admini-stration if most people suppose that it is always wrong. John Kenneth Galbraith dr. hab. Jerzy Supernat

Accountability in Public Administration: A Comprehensive Overview