(How) Can Big Government Be Kept Accountable? – UK Constitutional Law Association

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

This project started from an experience that will be familiar to just about any law lecturer: persuading first-year students, bewildered in their first week at university, that your subject means something to them ― even if they don’t know that yet. In my case, one argument I came up with to sell my students on constitutional law was that government is a very big deal. I return to the question of just how big a deal it is presently. For now, suffice it to say that, although some public law rules (think of the Carltona doctrine, for instance) take this into account, on the whole, the size and also the shape of government go relatively unremarked upon in public law theory.

In this post I argue, however, that they matter for thinking about government accountability. They matter beyond this too, but accountability is my topic here. It is more difficult to keep a big government accountable than a small one. In particular, it is difficult and perhaps impossible to do so through political means. Political constitutionalists who want government accountability, primarily political control of government, and big government cannot have it all.

How much does the state weigh?

When small-government types (of whom, full disclosure, I am one) talk about government size, they often refer to government spending as a percentage of the jurisdiction’s economic output. This is indeed worth keeping in mind: depending on how exactly you count, the UK government spends close to 45% of GDP; this was somewhat less, around 40%, before the pandemic. This is less than many other European countries, and less than many readers would like, but it is still a lot. Before the Great War, the figure was less than 10% in peacetime.

But when thinking about government accountability, these figures are not all that interesting by themselves. If the government simply sends money to people pursuant to clear statutory direction, keeping it accountable should be simple enough. Other measures of government size are more telling.

One is the number of people and entities who make up “government” or, more specifically, the executive branch. The UK executive, not counting devolved administrations and local authorities, consists of 24 ministerial departments and 20 non-ministerial ones, as well as 423 “other agencies and public bodies”. It is overseen by 123 ministers of various ranks. If you are a public-spirited citizen who decides to read up on what each minister gets up to for just 20 minutes each week ― and that isn’t likely to keep you fully informed ― you will have a full-time job on your hands. It is worth noting that many of these agencies have been created to watch over others. But the watchers themselves need watching.

These people ― and, of course, the 650 MPs and nearly-800 members of the House of Lords ― are not idle. Every year, between them, they generate 30-odd Acts of Parliament and about 1000 to 1500 statutory instruments. These numbers are crude measurements of government size, to be sure: not all legislation, whether primary or secondary, is created equal; some would require more scrutiny, some less. But, imprecise as they are, they give one an idea of the prodigious amount of law that government generates.

It is worth noting that this legislative output has changed over time, albeit differently from public spending. In fact, the number of statutes enacted by Parliament has been in a steady secular decline. When Dicey was writing about Parliamentary sovereignty, in the decades prior to the Great War, Parliament averaged about 100 Acts a year, and sometimes passed more than 150. But I would not take the much-reduced legislative output as a sign of government being slimmed down. On the contrary, considering that it has coincided with expansion on other measures, it is evidently full steam ahead for big government, even as Parliament relaxes its grip on the tiller. Think of this as the shape of government changing, as well as its size.

One final point on the size and shape of government: these are, largely, a matter of broad consensus in the UK and indeed in other democracies. Of course, there are differences of opinion between political parties, especially regarding public spending and taxation. But, despite the significance they take on at election time, these differences are fairly narrow. No mainstream political party advocates, even as a distant ultimate goal, a return to a government similar to that which existed before 1914, let alone a Nozickian minimal state. (Nor do major political parties seem to advocate for a substantial expansion of government size ― or at any rate of public spending. Ambitious environmental and social policy may well require further expansion of the government’s regulatory activity.)

Does this matter?

The foregoing observations might be trivial. Unlike, perhaps, first-year law students, most public lawyers are at least generally aware of the government’s vast scope and prodigious output. Why dwell on this? The reason is that general awareness is not reflected in particular arguments. Consider how political constitutionalists describe their views. J.A.G. Griffith’s famous lecture calls upon us to “enlarge the areas for argument and discussion” in the political process ― as if they are not already large enough and as if it were possible to expand political discussion ad infinitum. Richard Bellamy insists that “[i]t is not arbitrary that governments possess a legislative majority to implement policy goals that have won the support of … an electoral plurality or majority in a free and fair election”. But can the policy goals that will warrant 150 statutes and 5000 statutory instruments during a Parliament’s term be discussed in an election? Graham Gee and Grégoire Webber sympathetically explain that “a political constitution is conceived as a direct expression of ordinary political activity operating within and across political institutions”. This could describe the political activity of Dicey’s times just as well as our own.

As my sceptical comments suggest, the size and the shape of modern government challenge the views of political constitutionalists who count on “ordinary political activity”, especially during election campaigns and/or in Parliament, to keep government accountable. There are two somewhat distinct perspectives from which we can see this, though they are ultimately no more than different ways of looking at the same facts.

The first is that of agency. That the government as a whole, and especially Parliament, is an agent of the electorate is a widely accepted idea. Bellamy, among others, endorses it explicitly. On the canned view of separation of powers, which holds that Parliament makes laws and the executive implements them, the executive branch is also Parliament’s agent. (However incomplete we know it to be, we need to hold on to at least some version of this view if we are not to slip into the Judicial Power Project’s vision of an executive supreme over Parliament as well as the courts.) Government accountability, then, involves (at least) these two principal-agent relationships: between the voters and Parliament, and in turn between Parliament and the executive.

Yet it stands to reason that the more the agent does, the more its principal will find it difficult to monitor its multitudinous activities. The principal’s attention span and the resources (starting with time) it can expend on monitoring the agent are limited. As the agent’s activities multiply, the principal must dissipate its monitoring to the point where each receives very little scrutiny, abandon scrutinising some of these activities altogether, or some combination of the two. This is true even if we assume away such things as the rational irrationality and ignorance of voters, as well as party discipline, which get in the way of political principals monitoring their agents. Even in an idealised political world of perfect rationality and public-spiritedness, big government is bound to escape scrutiny.

The alternative perspective, also suggested by Bellamy, is that of public reason ― that is, the “necessary qualities of public reasoning on political issues”. These are openness and transparency, public spiritedness, regulation by a set of public rules, reasons and conventions, a focus on the public good, public accessibility, public participation, and mutual acceptability. Bellamy argues that the democratic process embodies these qualities well ― far better, he is adamant, than adjudication. But even assuming this is true of debates on some few defining issues in an electoral campaign or salient pieces of legislation, it is an implausible claim if applied to the work of scores of ministers and hundreds of public bodies on dozens of bills and thousands of statutory instruments. Again, even assuming away any bad faith, sheer numbers overwhelm any aspiration to transparency, publicity, and participation. Government may be public-spirited and rule-bound, but the governed could not possibly be sure of this.

This is because political accountability, whether in Parliament or, especially, in election campaigns, is close to a zero-sum matter. Institutions and groups devoted to it ― select committees, ombudsmen, special interest groups, and journalists ― ultimately compete for an inelastic supply of Parliamentary time and voter attention. More often than not, they succeed at turning Parliament’s or the public’s gaze on one government failure that calls for accountability at the expense of others flying under the radar.

And these problems of size are made worse by the changing shape of government. The voters will find monitoring the performance of both Parliament and the executive more difficult if crucial issues are not debated and decided in Parliament and recorded in laws, but left to the elaboration by myriad officials and countless statutory instruments, public service instructions, and policies. Another way of saying this is that, whatever the public reason virtues of elections, the administrative state epitomises public reason vice.     

What is to be done?

Political constitutionalists who support big government ― which is to say, the kind of government the UK and other Western democracies have had for decades ― which, in turn, is to say pretty much all political constitutionalists (in addition to those mentioned above, Jeremy Waldron comes to mind) ― are thus in quandary. Although they do not recognise this, they are on the horns of a trilemma. (Imagine a triceratops-shaped trilemma, and you will see that it is quite a serious predicament.) They desire a government to have three traits: to be accountable; to be subject to political rather than legal control; to be big. They can only have two.

They can, maintaining their commitments to political constitutionalism and to big government, accept the sacrifice of accountability that will inevitably result. To be clear, I do not mean to condemn this position out of hand, although I do not share it. No political ideal is ever fully realised: not democracy, not the rule of law, not respect for human rights. Accountability is no different, and one can accept to have less of it for the sake of having more of something else. After all, if, or to the extent that, the critiques that Griffith, Bellamy, and others direct at legal constitutionalism and indeed at judicial review of administrative action are valid, they do not stop being valid just because the politics of big government does not live up to their expectations as to its capacity to deliver accountability.

Those who, however, think that the political process, whatever its virtues, simply isn’t enough to hold big government to account can reject or renounce pure political constitutionalism and turn to the courts for additional accountability. This may take somewhat different forms: one might, for example, accept the UK’s current arrangements combining fairly robust judicial review of administrative decisions with weak-form review of legislation. Or one might wish to go further and advocate for strong-form judicial review of legislation.

Either way, on this view, the development of public law accountability mechanisms over the last 60 years or so is a way to restore the balance between the government’s ability to act and the citizen’s ability to hold it accountable. It does so by allowing a citizen or even ― depending on the rules of standing ― a special-interest group to challenge a government decision without the need to generate political consensus about both the merits of the challenger’s view and its sufficient importance to take up space on the overall political agenda. This is, of course, a slow and resource-intensive endeavour; but so is political advocacy. Despite the difficulties involved in holding government accountable through the courts, the route can be open to more individuals and groups than the quest for political attention. It is especially likely to be more open to those without the political clout to command the attention of voters or politicians on their own, or to offer favours to potential political allies. 

In this way, the expansion of legal accountability sacrifices the primacy of politics to the preferences for improving accountability, while allowing the preservation of big government. To be clear, it need not denigrate political accountability (in the way political constitutionalists sometimes denigrate adjudication), and does not seek to do away with the existing avenues for it. It merely holds that something more is necessary to deal with big government.

But there is also, logically, a third possibility. Instead of accountability having to be limited or political constitutionalism sacrificed, big government itself can be put on the chopping block. A government of a size familiar to Dicey, or better yet, smaller still, could more plausibly be directed and held to account by Parliament and by the voters than what has developed in the last century and more. At the extreme, government might conceivably be reduced to functions that would not be fit for legal accountability at all, such as foreign affairs. But, even short of that, the fewer programmes it undertakes, the fewer people it employs, the less it relies on comparatively obscure secondary legislation, the easier government is to monitor and to subject to public debate.

Many readers will be tempted to reject this third approach to reconciling government accountability and political constitutionalism. Fair enough. They may wonder whether unaccountable private power will replace imperfectly accountable public power, and while this will by no means always be the case ― a policy of open borders, say, very much doesn’t involve the creation of a private immigration regulator ― this concern is worth discussing at greater length than I could possibly do here. My purpose in this post is not to make the case for small government ― that is obviously a much larger project. But sceptical readers should recognise that their preference for big government is neither the only option nor free from trade-offs. Satisfying it makes it more difficult to ensure government accountability, and indeed impossible to reconcile a robust approach to accountability with political constitutionalism. The trade-offs in favour of big government might be worth making, but only if they are understood and acknowledged.

Leonid Sirota, Associate Professor in Law at the University of Reading

(Suggested citation: L. Sirota, ‘(How) Can Big Government Be Kept Accountable?’, U.K. Const. L. Blog (16th November 2023) (available at https://ukconstitutionallaw.org/))

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