Trend of Agencification

Introduction

In the almost 800 years since the promulgation of the Magna Carta, there are a number
of events in English constitutional history that would serve as useful points of
commencement in the consideration of agencification and the related elements engaged
by the title question. The present paper will commence the examination of the issues with
reference to the well known 1976 commentary of Lord Hailsham concerning the
governance of post World War II Britain as that provided by means of an ‘elective
dictatorship’. The accuracy of this observation is considered in the context of both the
creation and the extension of the role of state agencies in modern society.

Agencification is next considered from the perspective of the basic purposes of
government. Agencies are often regarded as the vehicles through which the ‘real work’ of
government is conducted; the notion that agencies are broadly perceived by ordinary
citizens as the true face of modern government is also critically explored. In this context,
a number of concepts that are closely connected to the overarching principles of
governance are also discussed, including: governance as concept that is interchangeable
with regulation; the rise of the contemporary ‘Regulation State’; agencies and their
intended independence from policy making and political considerations; accountability.
Specific attention is directed to the notion of regulation as a means of providing structure
to society generally, as well as the role played by agencies in the regulation of internal
government processes.

The paper concludes with an examination of agencification and its particular
constitutional challenges; the impact of the Constitutional Reform Act and the current
debate concerning the desirability of a British Bill of Rights is also assessed in this
context. It is noted that while the present paper has a British agencification focus, the
sources relied upon to support the propositions developed here are drawn from a broad
range of British and international commentators.

For the purposes of the following analysis, agencification is defined as the delegation of
decision making power and institutional autonomy to public bodies. Alternatively, any
government decision to utilise or create state agencies or any other entity established by
government to further any type of public policy object will form a part of the
agencification process. As is noted below through the examples tendered for
consideration, the formulation of a definition of agencification is relatively easy;
understanding all of the parameters within which such entities now function in modern
government structures is difficult.

The definition of agencification in turn engages a number of related concepts; of special
importance are regulation, autonomy, accountability, and credibility.

Regulation has a range of possible meanings in an agencification context. At its
narrowest definition, regulation means formulating authoritative sets of rules and
establishing autonomous public agencies to monitor the relevant rules and to promote
their public compliance. In its broadest meaning, regulation may refer to any form of
state intervention designed to steer a society towards a particular public goal. In modern
governance, the concept extends to “how to regulate the regulators”, the mechanics of
managing intra-government systems and relations between agencies.

Autonomy in the present context is the degree of supervision that is exercised by a central
government branch or ministry over an agency or other publicly constituted body.
Autonomy must also be considered in contrast to the real or presumed independence of
the agency in question; as is discussed below in the context of the UK Food Standards
Agency, the relationship between the agency to government, the public at large and the
host of possible third party interests at stake make this dynamic very intricate.

Accountability is a term that has a strong political connotation that also carries
administrative overtones from the agencification perspective. As is further discussed
below, the autonomous and semi-autonomous modern regulatory agencies have
accountability not in vertical directions, but horizontally – to the government at which
they stand arms length, and the public to whom their efforts are intended to be directed.

The distinction between agency accountability and ministerial accountability must be
emphasised. Ministers of the Crown are responsible for the proper functioning of their
respective portfolios; a failure to discharge those duties in accordance with the terms of
office will often carry personal and political consequences for the minister and the
governing party. A breach of duty on the part of the operation of a publicly constituted
agency has only indirect consequences for the minister whose portfolio includes the
works carried out by the agency in question.

Credibility is a concept that is frequently considered in the agencification process. There
is broad support in the academic literature for the proposition that an independent and
properly structured agency is more inherently credible than a government ministry that is
vulnerable to the pressures of political expediency. This support is countered by the
observation that an agency may risk being influenced unduly by its client groups in the
execution of its duties.

Agencification and ‘Elective Dictatorship’

In 1976 the former Lord Chancellor, Lord Hailsham, offered a commentary on the state
of British governance. He suggested that parliamentary supremacy, a foundation of the
unwritten English constitution, had been turned on its head – the government now
controls Parliament, and not the constitutionally accepted reverse proposition that
Parliament was supreme. Lord Hailsham further stated that the power inherent in the
principle of Parliamentary sovereignty had been exclusively directed “to the
continuous enlargement and expansion of the scale and range of government itself”.
The checks and balances presumed by England’s constitutional structure were perceived
by Lord Hailsham as no longer functioning ands seemingly abandoned for an exercise of
governmental power that continuously expanded, subject to no external controls.

“We live in an elective dictatorship, absolute in theory, if hitherto thought tolerable in
practice”. This conclusion as stated by Lord Hailsham has been selected as the point of
commencement to the present agencification analysis because it permits a consideration
of the reasons why agencies and other public entities have risen to particular prominence
in British governance. The relationship between agencies and the broader perception of
what government is and what it represents to the public is an important one. Further, a
careful examination of the role of agencies permits a critical evaluation of whether the
negative elements of ‘big government’ and executive dominance as referenced by Lord
Hailsham in 1976 are counter-balanced by the effectiveness of current government
endorsed agency structures as essential to effective and desirable modern governance.

Agencification – underlying factors

Government agencies and the extension of the modern welfare state are well understood
as companion concepts. As a general proposition, as the state expands its role in the lives
of its citizens to provide greater assurances of societal welfare, the state must create
extensions of itself to deal with citizen demand and the regulation of activities across the
broad spectrum of society. In this sense, agencification is organic – agencies have grown
in their influence upon the life of an ordinary citizen in proportion to the desire of
government to extend the range of its services. In theory, this extension has occurred with
the support of the public as evidenced through its democratic processes in electing
governments that enact such programmes.

It is plain that agencification has not occurred in Britain (or any other Anglo-American
jurisdiction) in accordance with a true master plan. A common observation is that
government agencies tend to “have very diverse functions and have not developed in a
coherent fashion there is a lack of consistency in their legal status, organisation,
funding and degree of autonomy”. The lack of apparent order may be offset to a degree
by the assertion that agencies are cost efficient, more nimble and more responsive to the
public needs than traditional government departments by virtue of their structure.

The legislative role (both actual and theoretical) of a Member of Parliament is well
defined in the understanding of the average citizen; the true extent of the powers and
influence of a particular board, tribunal, or agency is often not so clear to even an
informed citizen. As Banner noted, modern government is anything but monolithic. The
proliferation of state agencies has made government organisation very difficult to penetrate.
Banner suggests that the “decisional processes have become more opaque for ordinary citizens
who long for transparency”.

In this context, two issues may be usefully considered. The first is the agency as a
remedy, a key player in restoring public confidence in government where a systemic
failure in a particular government service has been identified. A prominent example, the
creation of the Food Standards Agency in the wake of the BSE (‘mad cow’) outbreak and
the subsequent political crisis in 1996, is examined below. A further example of the
agency as a tool to rebuild a particular institution in the public eye is the revamped
Judicial Appointments Committee (JAC). The JAC, a creature of the Constitutional
Reform Act, 2005, is intended to render the appointment of judges and certain tribunal
members transparent, removing the process beyond the influence of government
patronage.

The second issue to be considered is that of the agency as the true public face of modern
government. The typical citizen may not completely understand the nature and extent of a
particular agency powers, but there is no question that agencies exert the greatest
regulatory influence over day to day life. Regulation of both society and internal
government function cannot exist without agencies; agencification has taken on ever
increasing importance for these reasons.

The Regulation State

The ‘Regulation State’ is the term of art commonly employed by academics to describe
the modern relationship between government agencies and the public they are intended to
serve. It is contended that the traditional welfare state was constituted on a “command
and control model”, where public ownership and nationalization of certain public
resources was encouraged. In the welfare state model, responsibility for decision making
is somewhat more centralized; regulatory, operating, and policy making functions were
relatively integrated.

The Regulation State is a flatter, more horizontal government model than that of the
welfare state. It usually seeks to advance different government goals, chiefly those of
economic efficiency, the promotion of competition, and consumer protection.21In
essence, the Regulation State marks the crucial demarcation point between direct and
indirect governance, where autonomous agencies and single purpose government
organisations are essential to overall government function. It is the organisation and
regulation of the government apparatus itself that drives the Regulation State forward.

Regulatory agencies operate in their assigned sphere through the exercise of delegated
powers. It has been noted that many regulatory agencies have features that are both the
product of a statute (The Judicial Appointments Committee noted earlier is such an
example), as well as elements of an incorporated entity. This particular structure creates a
regulatory body that is neither directly elected by the public nor is it directly accountable
to Parliament. These free standing agencies are therefore potentially accountable to a
range of government and public bodies where the relationships are circular, and not linear
or hierarchical.

It is in this context that a key strength of the agency as opposed to the centralized power
inherent in the former welfare state model is revealed. Agencies constructed to advance a
single public policy or designed to deal with a single issue can, at least in theory, acquire
agency specific knowledge and operational expertise to function efficiently. If one were
to coin a mantra to attach to the agencification that supports the Regulation State, it might
be “Better regulatory performance and efficiency without impacting adversely upon
either democratic principles or political control”.

Agencification at work – BSE and the Food Standards Agency

The ‘mad cow’ scare that first shocked the British public in 1986 was a public scandal
that continued to resonate in 1997 and beyond. Revelations were made in 1997
concerning the degree of knowledge that certain government officials may have
possessed at the time of the initial outbreak concerning the severity of the risks posed by
Bovine Spongiform Encephalopathy (BSE) to human health.

The James Report and other specialized investigations were undertaken to determine
how to best prevent a similar animal disease outbreak. As a result, the UK Food
Standards Agency (FSA) was created by act of Parliament. In a parallel development, the
Council of Europe established a similar body, the European Food Standards Agency.

It is not the fact of the mad cow scare and the resulting political crisis that is central to the
present analysis. It is the governmental mandate that has been provided to the FSA that is
instructive on a number of fronts; the principles of agency independence and
accountability discussed earlier in this paper are of particular relevance.

The FSA reflects a movement in the regulation of all aspects of food production that
mirrors the trend away from the order-command centralized structure of welfare state
styled government to a broadly based system of risk regulation in food. However, what
the BSE scare illustrated was that risk management was not the entire public concern.
The James report identified a broad based lack of public confidence in British food
production that emanated from the BSE scare.

The FSA was created to regulate the production of British food from “plough to plate”.
However, the public health mandate driven by the BSE crisis was accompanied by
agricultural industry concerns regarding the feared decline of this aspect of the British
economy. The FSA was plainly tasked to deal with two different issues within one
agency framework. This duality raises the important question of whether the FSA is truly
independent if there exists the prospect that in regulating one aspect of its mandate
(public health) it may hinder the other (British agriculture). It is contended that the FSA’s
overly broad responsibilities run counter to the effective, single issue styled bodies that
are a hallmark of modern agencification.

Constitutional challenges

Lord Hailsham’s criticism of British government in 1976 remains one that bears
consideration in the agencification era. It is contended that there is a public perception
that government is now amorphous, a construction with seemingly infinite tentacles
influencing all aspects of modern life, yet not subject to the direct control of any one
institution. Government may be seen as an entity that exists for itself, as opposed to
clearly articulated public purposes and objectives, no matter how its roles are stated by its
members.

Recent developments concerning constitutional reform, including the ongoing debate
concerning the implementation of a British Bill of Rights also bear upon the role played
by agencification in modern government. The proponents of wholesale constitutional
reform that include a written Bill of Rights seek to ensure that a balance is struck between
the emphasis on individual rights that has been featured in English jurisprudence in the
wake of the Human Rights Act and the increasing influence of European Human Rights
Convention case law, and an appreciation by every citizen of a corresponding set of
individual responsibilities.

It is submitted that the merits of a written Bill of Rights make for an interesting academic
debate. It is equally plain that in the devolutionary system that is inherent to
agencification, the primary concern of the ordinary citizen is for good and effective
governance – a Bill of Rights has little effect on how that fundamental aspect of
citizenship is achieved.

A final brief observation – a Bill of Rights that is intended to forge a linkage between
citizen and modern government is misconceived. The diverse governmental mechanisms
that have been spawned by agencification require a different approach. As agencies
continue to be created to address specific societal interests, government will continue to
become more indirect. The appreciation of the appropriate rights held by individual
citizens that may properly coexist in this diffuse governmental structure cannot be cast in
stone. An unwritten constitution remains the most effective companion to agencificationdriven
governance.