5 - Regulatory accountability and legitimacy

Summary

Introduction

The previous chapters have explored how and why regulation emerges, how it is deployed and how it works on the ground. They have established that the scope of regulation both conceptually and practically goes substantially beyond a narrow view of formal legal control of private actors. The expansion of the meaning of regulation and its practical impact is closely associated with a flourishing debate about regulatory legitimacy and accountability. Legitimacy, according to Jody Freeman, is when the public accepts decisions without having to be coerced (Freeman 1999), or as Rob Baldwin puts it, the legitimacy of an administrative process can be seen in terms of the persuasive power of the arguments made in its favour (Baldwin 1995). Accountability is, more concretely, ‘the duty to give account for one's actions to some other persons or body’, in Colin Scott's words (Scott 2000). The changes in the scope of regulation that the preceding chapters have charted have led to significant challenges to acceptance of regulatory regimes and calls for those who control them to account for decisions made under them. Indeed, commentators often refer to a ‘crisis’ in the regulatory state, as the myriad complex forms of controlling behaviour which it has developed make it increasingly difficult to trace the lines of responsibility for public decision-making, especially when things go wrong. Moreover, regulatory regimes often create institutions that are at least partially independent from directly elected political decision-makers, yet make politically sensitive decisions.