*Editors’ note – this post is part of a series on ‘Contemporary Challenges for Constitutional Accountability’. The other posts in the series are available here.*

Political accountability plays a key role in the operation of the rule of law. This is the main claim I seek to defend through this blog post. My framework here is that the rule of law is just as concerned about the ethos of public officials as it is their actions. Political accountability acts as a mechanism through which the ethos behind public officials actions and decision-making can be monitored. As a result, political accountability plays a crucial part in the operation of the rule of law.

The argument will be split into two parts. I offer my apologies in advance to readers regarding Section One, which is predominantly theoretical and, due to the limits of a blog post, simply introduces ideas without much pause for respite or consideration. It is however necessary, as it sets up the groundwork for Section 2, which is focused on what role accountability plays within this framework of the rule of law. Section 3 will address some criticisms.

On Theory

It is a good thing to be governed by the rule of law, by which everyone is to observe and follow the law. That’s about the only thing that can be agreed upon in debate on the topic. Philosophical accounts tend to be centred around the actions of public officials; the rules that they produce and the way those rules are administered. This often results in theorists putting forward shopping lists of characteristics that they consider to encapsulate what the rule of law is all about – usually eight characteristics, but often a different eight each time. These are then crudely placed onto one side of a dichotomy, formal and substantive approaches, where formal conceptions of the rule of law discuss the structure that rules must take (be prospective, clearly written etc) and substantive conceptions place additional requirements on what the substance of those rules can be (they must abide by human rights, for instance).

I’m sceptical that any one laundry list can account for what we want from a government that abides by the rule of law. My reasons are similar to some of Martin Krygier’s reasons for wanting to move away from ‘recipes’; they’re static, unhelpfully rigid, and inspired by previous instances of wrongdoing instead of being forward-looking. It is better to approach the concept as Krygier does, by looking at what it is that adopting the rule of law seeks to avoid. This is typically thought to be arbitrary governance. This relationship could either be conceived as a sliding scale, with the rule of law at one end and arbitrary governance at the other, or simply two separate styles of governance. Regardless of which version of this relationship we subscribe to, there is clearly a relationship between the two; non-compliance with the rule of law indicates a greater compliance with arbitrary governance, and vice versa.

So what precisely do we mean by arbitrary governance? There are two conceptions which are compelling. One aligns the idea of arbitrary governance with unilateral governance, a single decision-maker who holds the capacity to be indifferent towards customs, regulations, or external checks on their decision making. The other suggests that governance is arbitrary if it is done with indifference to the correct purposes for how their power should be used. In identifying the correct purposes for public official action, I ground myself in Joseph Raz’s work. We must identify a “conceptual distinction between the rights and powers of governments and the rights and powers of private owners”. In doing so, officials must take consideration of the moral interests of all who are governed, and should not act in a way which wilfully violates those interests, or sidelines them in favour of the private interests of officials. This evaluation is different from determining whether a decision was made for a morally or practically good reason. A useful example here is laws in relation to national security, which may be introduced for the right reasons, which consider the moral interests of the governed (ie a tightening of security measures to ensure the safety of citizens following an attack) but may result in substantially bad outcomes (ie they may be excessive or immoral).

The above approach based on the intentions of officials appeals to me for a couple of reasons. Firstly, the unilateral approach is geared heavily towards those officials who have rule-making powers, rather than those officials who have rule-administering abilities, like police officers, those who process asylum and benefits applications, and social workers. This strikes me as far too narrow an approach to examine the conduct of public officials, especially as those who administer the rules are much closer to the everyday lives of people. The intention approach manages to apply neatly to both rule-making and rule-administering public officials. Secondly, it is not entirely clear why uncontrolled power alone would always necessarily be a cause for concern. Of course, we may prefer that rules are not decided simply by the whims of one leader, but only if those decisions are made with the wrong intentions. Consider the case of the benign dictator, who enjoys an uncontrolled ability to make rules at his pleasure, but always does so for the ‘right’ interests. This dictator would be compelled to make decisions in line with public interest considerations about coordination, autonomy, and security for example. Concerns about uncontrolled power ultimately revert back to concerns about public officials not acting in line with the right reasons. Of course, we would also hold legitimate concerns about the rejection of democratic norms, but this is a separate issue to rule of law concerns. The unilateral power conception is usually grounded in a much deeper concern that the official will use their unfettered power for malignant or arbitrary purposes.

Framing arbitrary governance and the rule of law as an intention-focused exercise aligns closely with the idea of public service being a form of civic duty, which encompasses expectations of the type of person who should hold that role. This to me suggests that the rule of law is about something broader and altogether less specific than a shopping list that governs the actions of public officials. If the rule of law is interested in the intentions of public officials when carrying out their legal duties as well as their actions, then this opens up some other avenues of discussion. The culture within which public institutions operate suddenly becomes important, and whether we expect a public official to abide by ethical standards. Overall, the vibes of how public officials operate are as important as their actions. This culture includes an expectation that public officials will act in line with the right reasons, and consternation when the wrong reasons are used in decision-making. It recognises the making and application of rules as a powerful tool, and insists that the governed are not to be treated as playthings whose interests are of no consequence.

On Accountability

My aim here is not to mount a wholesale defence of this particular conception of the rule of law. Instead, presuming that this is a sensible way to approach the concept, what role, if any, does accountability play in this picture?

We could mean accountability in two senses. One prominent sense is legal accountability. This is long presumed to be a significant part of how the rule of law operates. The rule of law generally indicates that the rule of law subjects everybody, including public officials, to the law. If public officials breach their obligations under criminal or civil law, they are to be held to account in the same way as the average person. If a legislator or administrator of rules acts ultra vires, they too should be held accountable. Some lists also feature the maintenance of judicial review and the accessibility of courts as part of their rule of law desiderata.

The other sense of accountability, political accountability, is more interesting for our purposes. While legal accountability holds public officials accountable for their adherence to legal norms, political accountability holds public officials accountable for their adherence to non-legal norms. These processes take many forms. In the United Kingdom, (Prime) Ministers Questions, Select Committee hearings and investigations by the Parliamentary Commissioner for Standards are the most obvious forms of holding rule-making public officials accountable. Independent inquiries and internal HR processes judging behaviour against agreed standards of behaviour are common ways of holding administrators of rules to account, alongside media outlets and investigative journalism. Political accountability is tasked to challenge different wrongs to legal accountability; it assesses behaviour and culture against non-legal standards of conduct, and makes judgements on whether officials’ reasons for action were in line with the ethical standards they are expected to uphold.

These non-legal standards are vital for establishing the normative ethos of being a public official, from the Nolan Principles for Members of Parliament and other public officials, to Statements of Ethics in other public bodies. Public officials can be questioned to justify their actions and motivations, or monitored for those motivations to be reasonably inferred through their actions and reputations. Accountability should also invoke procedural demands for subjects of decisions to be able to know and understand the case against them, in order to defend themselves in an immigration or benefits claim, for instance. This is comparable to the ability of legal forums to infer motivation or intent of defendants in criminal trials, for example. There may be a high bar for proving any kind of misconduct, but we have seen these standards fail to be met recently in the United Kingdom, from former Prime Ministers breaching the Ministerial Code, to the Metropolitan Police being accused of having a misogynistic and racist culture. These examples demonstrate that, in clear terms, these individuals were not exercising their power with the appropriate reasons expected of a public official within this conception of the rule of law. If I am right in arguing that the rule of law demands public officials to act in line with particular reasons enshrined within expected ethical standards for public officials, then political accountability plays a key role in upholding this conception of the rule of law.

On Criticisms

I’ll end by engaging with a couple of counter arguments that could be raised by the expansion of accountability under this framework. First, different jurisdictions adopt different forms of political accountability – some do not subject political leaders to regular questioning for instance. Does this mean they are not abiding by the rule of law? This is an unhelpful way of approaching the relationship. There is no particular blueprint for how political accountability should operate within this framework; some forms may work better than others, and it is for individual jurisdictions to make these decisions. The basic tenet of the argument is this: public officials must be capable of being subjected to political accountability when it is normatively determined to be necessary. The operational significance of political accountability can be seen if we use the language of trusting public officials. Trust is important in an instrumental sense; citizens must be able to trust that officials will administer rules as stated in order to inject certainty and predictability into how rules will be applied. If not, they may, for instance, feel that police officers will not take allegations of sexual assault seriously if there is a reputation of misogyny within the police force. If these practices for accountability were not in place to challenge poor attitudes of public officials, then the ability of citizens to rely on officials to apply the law in congruence with their published duties is undermined. The operational ability of the rule of law to have the desired effect in the jurisdiction is undermined.

Secondly, why would we trust officials to tell the truth about their motivations? In instances where officials are genuinely likely to use inappropriate reasons for their actions, they are hardly likely to admit doing so, and therefore the entire accountability process is moot. I disagree. The same concern could be levied towards criminal courts tasked with identifying the mens rea of the accused in a crime. The response to this concern in the criminal justice system should not be to give up on determining the mens rea in courtrooms, but to adopt a similar approach in forums of political accountability. Motivations can be inferred by investigators who are given powers to examine communications and meeting minutes around particular decisions. Similarly, an exploration into the outside interests of decision-makers or administrations involved in particular decisions deemed worthy of investigation could determine whether there is the likelihood that the official has been swayed by private interests. These are all methods that can be utilised in political accountability forums in determining the motivations of public officials.

To summarise, the rule of law imposes demands on both the actions and ethical standards of public officials. If this is the case, the presence of political forms of accountability, which govern adherence to non-legal norms, is necessary in a jurisdiction, in order for those ethical standards to be monitored and infringements to be sanctioned. Without a system of political accountability in place, the operation of the rule of law is undermined.

My gratitude goes to Mike Gordon and Se-shauna Wheatle for their helpful comments on earlier drafts, and to those who hosted and contributed to the UKCLA Contemporary Challenges for Constitutional Accountability Conference. Further thanks go to George Letsas, Colm O’Cinneide, and Berihun Gebeye for helping me clarify particular points through conversations. All errors remain my own.

James Milton is a PhD Candidate and Graduate Lecturer at UCL

(Suggested citation: J. Milton, ‘Rule of Law, Political Accountability and the Importance of Culture’, U.K. Const. L. Blog (30th November 2023) (available at https://ukconstitutionallaw.org/))