Accountability in the Shadow of Hierarchy

Transcription

1 The Horizontal Accountability of Agencies in the Netherlands Thomas Schillemans Paper presented at the EGPA Study Group on Governance of Public Sector Organizations workshop on The governance, control and autonomy of public sector organizations in a multi-level and multiactor setting, EGPA-conference of September 2007, INAP, Madrid, Spain Thomas Schillemans Tilburg School of Politics and Public Administration Tilburg University Faculty of Law P.O. Box LE Tilburg The Netherlands (Phone) (Fax) t.schillemans@uvt.nl

2 Summary In recent years, the fragmentation of states in general and the creation of agencies at arms length in particular, has brought forward a call for new (horizontal) forms of accountability for agencies. At least in the Netherlands, but also in other countries, new forms of accountability have been devised in order to tackle the accountability gap for agencies. This paper investigates new practices of accountability for Dutch agencies. It is based on qualitative research into 13 large agencies. The paper addresses three connected issues. First is provides insight into an inventory of 60 new mechanisms for accountability. Secondly, a reconstruction is offered of new, horizontal, practices of accountability. This reconstruction clarifies that the new mechanisms can not be understood as substitutes for ministerial responsibility. However, they have added value for the accountability of agencies because they stimulate learning processes. They are of a complementary nature. Thirdly and finally. the paper shows that the ensuing regime of multiple accountability with a series of vertical and horizontal accountability mechanisms is redundant. Different mechanisms address the same issues and the same documents, albeit with a different perspective. Different forms of accountability also interact with each other. All in all, the contributions of horizontal mechanisms of accountability are best understood to operate in the shadow of hierarchy. The performance of horizontal mechanisms is clearly influenced and conditioned by the shadow of vertical accountability. 2

3 1. Introduction: horizontal mechanisms of accountability and agencies at arms length In the Netherlands, as in many other OECD-countries, many public service organizations have in recent years been granted substantial formal and operational autonomy (see Van Thiel 2000; Thatcher and Stone Sweet 2002: Pollitt et al 2004; Pollitt and Bouckaert 2004). Crucial to agentification is that governmental organizations are placed more or less outside of departmental hierarchies. Agentification as a form of government reform is very much like penicillin: it is an antidote prescribed to remedy a wide array of administrative diseases. Disparate ills such as control deficits, inefficiencies, lack of public trust and customer dissatisfaction of public services have all been treated with this medicine. The purposes, types and forms of agencies differ between countries and between periods (Pollitt and Bouckaert 2004; Christensen and Laegreid 2006). One common element in different policies of reform however is that agencies are supposed to operate according to the model and the example set in the private sector (Flinders 2001: 235). They are urged to behave and perform more like companies in markets in order to enhance their responsiveness to clients, to improve their financial management and overall efficiency. The creation of agencies at arms length has caused widespread concern regarding the acclaimed lack of accountability for their operations. The fragmentation of responsibilities for public tasks limits the possibilities for ministerial control. This results in a much diagnosed gap in the accountability regime of arms-length governance (see Van Thiel 2000: 167; Flinders 2001: 41; Mulgan 2003: 74; Thomas 2004: 21). Ministerial responsibility is still the cornerstone for accountability in most western democracies, even though the regulations and meanings of the concept differ widely between countries. The doctrine has however become disputed for more reasons than only the creation of agencies at arms length. Many commentators have argued that the doctrine of ministerial responsibility has a number of practical shortcomings when applied to executive agencies. It is first of all said to blunt the voice of clients (Goetz and Jenkins 2001: 363). Their assessment of the quality of services can hardly be transported through democratic processes. In addition, the focus of ministerial oversight tends to be limited to political priorities and risks. Important aspects of the conduct of agencies remain therefore unaccounted for. More fundamentally, the growth in size and complexity of present-day public administration has lead to fragmented practices of control and administration that are ill adapted to hierarchical, Weberian models of accountability. Within the context of a shift from unitary government to a more pluralist governance (Pierre and Peters 2000; Salamon 2002) the doctrine of 3

4 ministerial responsibility is less and less applicable. As Scott concludes with some exaggeration: constitutional lawyers almost universally agree that traditional accountability on its own has become inadequate in present day public administration (Scott 2000: 42). In the context of this shift to a more fragmented practice of governance, new forms of accountability are on the rise as potential complements to traditional, hierarchical accountability (see Barberis 1998; Behn 2001; Bovens et al 2007). In the literature on accountability, many researchers note that the accountability regime of public organizations de facto becomes more and more divers. Very often this is interpreted as a positive development. Mulgan (2003: 189) rightly notes that most current authors prefer a multifaceted, pluralist approach to accountability. In particular for public service providers, direct forms of accountability to citizens are considered to be important additions to the existing mechanisms of accountability (Weber, 1999; Considine, 2002). However, also other shifts in accountability have been diagnosed, for instance forms of accountability that are directed towards independent regulators or professional peers. This rise of additional mechanisms of accountability has been described in different ways. In the Netherlands in particular, but also in other countries, many authors have coined new forms of accountability towards third parties outside of the primary principal-agent relationship between agency and ministry as horizontal forms of accountability (O Donnell, 1998; Scott 2000; Mulgan 2003; Bovens 2005). The adjective, horizontal, indicates an important distinction from traditional forms of accountability, where a subordinate usually reports to a superior (hence these can be coined vertical accountability). The concept broadly focuses upon forms of accountability that address other stakeholders and demands besides those of the hierarchical principal. Horizontal accountability includes for example demonstrating responsiveness to clients, independent overseers or professional standards. It is said to be a promising solution for the accountability-problems of agencies. Some authors have argued that these arrangements may substitute for ministerial responsibility and thus fill the accountability gap of agencies. Others claim horizontal accountability could be complementary to ministerial responsibility and thus a solution to practical shortcomings of the doctrine, because it focuses attention on the customers of public services or creates feedback information that stimulates learning processes. The rise of new forms of accountability has provoked many academic comments and some research. As it is a relatively new phenomenon, a phenomenon also that takes on different forms in different places, at least two questions needs to be elaborated more closely in order to understand the possible contributions of these new mechanisms to the accountability of agencies. First of all, the question what horizontal mechanisms of accountability are on the increase and how they actually work needs to be investigated. In order to understand their contributions to the accountability of agencies, actual 4

5 processes of accountability through new, horizontal mechanisms need to be studied. This requires an empirical approach to processes of horizontal accountability, directed towards the question how to evaluate their actual contributions. In addition, the second question that needs attention is: to what sort of multiple accountability regime does the addition of horizontal accountability lead? By definition a multiple accountability regime is created through the addition of new mechanisms. This propels the question of how this multiple accountability regime should and could be organised. Do the new mechanisms for accountability substitute for ministerial responsibility, complement by adding additional desiderata or do they perhaps interfere with existing practices and thus only complicate and confuse accountability in practice? The purpose of this paper is to address these questions. The paper is based on qualitative research on the horizontal accountability practices of thirteen large Dutch agencies. The paper will describe what mechanisms of horizontal accountability have been created for Dutch agencies, describe how they operate as a complement to ministerial responsibility and how they interact with vertical controls. The central argument of the paper is that the new mechanisms of accountability operate in the shadow of hierarchy. These new mechanisms derive their meaning from the complex ways in which they interact with hierarchical accountability. The paper addresses the following, consecutive questions: 2. What is horizontal accountability? 3. What are the dominant views in the literature on a multiple accountability regime for agencies? 4. On what research is this article based? 5. What forms of horizontal accountability can be found at Dutch agencies? 6. How do these forms of horizontal accountability work in practice? 7. To what sort of multiple accountability regime does the addition of horizontal accountability lead? 2. The concept of horizontal accountability Accountability is one of these alluring concepts that are like fine old wine. They are full of depth and complexity, they have a good feel, yet they are very difficult to define in a conclusive way (see Kumar 1993:376 for this argument about civil society ). In recent years, many authors have been struggling with the concept and coined accountability as for instance an icon (Dubnick 2005), a chameleon (Sinclair 1995), a hurrahword (Bovens 2005) and a euphemism for punishment (Behn 2001). Leaving the complexity aside, however, at a very basic level many authors agree upon a minimalist definition. Accountability in this narrow sense is understood to be a communicative interaction 5

6 between an accountor (person or organization) and an accountee 1, where the former s behaviour (in the broadest sense of the word) is evaluated and judged by the latter, in light of possible (and possibly serious) consequences (see Bovens See also Day en Klein 1987: 5; Orbuch 1997: 474; Roberts 2001: 1551). In this sense, accountability refers to answerability to someone for appropriate conduct and expected performance (Day & Klein 1987; Pollitt 2003). Accountability requires an actor with a duty to render an account and another actor with the power to judge and, usually, impose sanctions (White and Hollingworth, 1999). From an analytical perspective, processes of accountability normally involve three phases (Mulgan 2003; Bovens 2005). In the first phase, the accountor renders an account on his conduct and performance to a significant other, whom we may call the accountee. This is the information phase. In the second phase, accountor and accountee debate the account of conduct and performance. The accountee may ask for additional information and pass judgment on the behaviour of the accountor. The accountor will then provide additional information, will answer to questions and if necessary justify and defend his course of actions. This is the debating phase. In the third phase the debate is closed, the accountee voices his definitive judgment and may choose to deploy available sanctions. This is the sanctions phase. Sanctions may vary from formal disapproval to tightened regulations, fines, discharge of management or even the termination of the organization. Apart from formal sanctions, informal consequences may also follow from accountability. The voice of the accountee could be damaging to the reputation of the accountor or may activate other parties who actually do have sanctioning powers. There is in fact a hierarchy of sanctions. It emanates with the ability to shame, escalates to lighter weapons such as certificates or formal (dis)approvals and culminates in the nuclear weapon of liquidation (Hood et al 1999: 47. Also Kenney 2003: 64). If we adopt this perspective on accountability, we can infer that an accountability relationship is constituted by the elements highlighted in figure 1. This definition offers a general framework with which to analyze mechanisms of accountability. Of course, different accountability mechanisms can be further distinguished by, for instance, the types of available sanctions, the sorts of conduct or performance that are accounted for, the sort of expectations that are involved, etc. The above definition does not touch upon the many normative discussions on political and democratic accountability. Rather, this definition highlights the institutions and practices through which accountability as a process is effectuated. 1 See Pollitt 2003 for accountor and accountee. 6

7 Figure 1: Elements of accountability 2 A relationship qualifies as a case of accountability when: Information phase 1. There is a relationship between an accountor and an accountee 2. In which the accountor is obliged 3. To explain and justify to the accountee 4. His conduct (in the broadest sense). Debating phase 5. The accountee can pose questions, 6. Then pass judgment 7. In light of explicit or implicit expectations. Sanctions phase 8. The accountor may face consequences, through formal or informal sanctions. According to the above definition, an institutional relationship qualifies as a mechanism of accountability when a person or group is empowered to be informed about organizational conduct or performance, and has some authority to pass judgement. Public administrations feature a wide variety of accountability mechanisms and practices. Different authors have classified these into different categorisations. Romzek (1996) for instance differentiates between political, hierarchical, professional and legal accountability. Behn (2001) differentiates between accountability for results, process and finances. And Koppell (2005) notes five different meanings to the concept of accountability. These different categorisations are all based on different central distinguishing features. In this paper, different mechanisms of accountability are categorized on the basis of the type of relationship between the accountor and the accountee. In traditional forms of accountability, a superior demands accountability from a subordinate. This is based on the principle of ownership (Mulgan 2003). Hence these could be called vertical accountability. In order to categorize a mechanism as a case of horizontal accountability, the accountee needs to be independent from both the agent and the principal, and, not be hierarchically superior to the agent. Horizontal accountability can also be understood as accountability to third parties. It is based on the principle of affected rights and interests (Mulgan 2003). See figure 2 for examples of vertical and horizontal accountability. 2 This box is taken from Bovens 2006:12. The box is extended with one element. Bovens does not list the seventh element expectations. Of course, one could say, judgment is not possible in an evaluative void. Judgement at least analytically presupposes a standard of expectations. My empirical research suggests that these expectations are crucial in accountability processes. When controversy arises between accountor and accountee, this is usually not so because they have different appraisals of performance but rather because they dispute the legitimacy of standards of judgement. 7

8 Figure 2 Vertical and horizontal accountability Voters Parliament Minister Departement Accountor Board Partners Professional peers Evaluation committee Customers Interest groups Media 3. Perspectives on a multiple accountability regime The introduction of horizontal accountability has as a consequence that agencies are confronted with an accountability regime in which many different accountees demand accountability. This is in accordance with many academic commentators who have observed that agencies and other public service providers have to account to a wide variety of parties (Hood e.a. 1999: 34; Dunn en Legge 2001: 86; Posner 2002: 524; Besley en Ghatak 2003: 10; Koppell 2005: 94). The total sum of all accountability mechanisms of an agency may be called its accountability regime (Scott 2000: 55; Bovens et al 2007). Other available shorthands are accountability environment (Behn 2001: 199), accountability plan (D. Dunn 1999: 298) or accountability system (Broadbent e.a. 1996: 270). The advantage of regime above the other options is that it does not infer from the outset that the total sum of relationships is orderly. As Mulgan rightly notes (2003: 40): To talk of a structure or system of accountability may be to exaggerate the extent of overall cohesion in a somewhat haphazard set of relationships. For state agencies the ministerial responsibility is still the central point of departure for accountability. The question for new mechanisms is then how their role is defined in contrast or addition to ministerial responsibility. In the literature on the subject, there are grossly speaking two central issues. For each issue two possible positions have been indicated. The first issue regards the possible contribution of horizontal accountability, the second the source of coherence of the accountability regime. 8

9 The first issue regards the possible contribution of horizontal accountability. The question here is whether horizontal accountability could be a substation for full ministerial responsibility or whether it is an addition that serves a different purpose. The literature tends to favour the second position. More specifically, authors have claimed that accountability to all sorts of stakeholders can be beneficial from a learning perspective. Many authors have specified that accountability can create feedback information with which public organisations may learn how to improve their conduct and performance (e.g. Hood e.a. 1999: 13; Ebrahim 2005; Bovens et al 2007). Accountability forces power-holders to reflect upon their behaviour and this could stimulate their learning capacities. Learning in this respect means the revision of cognitions and beliefs as a result of the transformation or recoding of information based on the observation and interpretation of experience (Hemerijck and Visser 2003: 4-5). From this perspective, additional mechanisms for accountability contribute in a positive sense if they generate lessons (Aucoin and Heintzman 2000: 52-54). From this perspective, the basic questions regarding horizontal accountability are whether it creates richness of information in the information phase of accountability, critical reflection in the debating phase and whether it signals possibilities for improvement in the sanctions phase. A minority of authors is of the other opinion that horizontal accountability should be judged from the question whether it enhances democratic control on the execution of public duties. This position implies that horizontal accountability is regarded as an extension of the democratic chain of controls on bureaucracies. It is favoured by a few authors in the literature (Paul 1992; McCandless 2001; Smulovitz and Peruzzotti 2003). From this perspective, the major evaluative question is whether horizontal accountability is informative to democratic accountees and directs the accountor to courses of action favoured by democratically legitimized principals. The second issue regards the source of coherence of the accountability regime. Here the question is whether the accountability regime is neatly organized in a model of functional segregation in which each mechanism covers its own, unique terrain, or whether the regime is overlapping and redundant. In the literature, many authors tend to favour the first position. Paul for instance implies this perspective in his historicist approach to the advent of different accountability mechanisms. He states that the growing complexity of government historically went hand in hand with the addition of new forms of accountability to the political-administrative system (Paul 1992: 1048). New forms of accountability are then contemporary extension of the regime of accountability, adding new objects of accountability. The inherent logic of this perspective is that every accountability mechanism has a specific and unique role in a comprehensive regime of accountability. This perspective implies that a balance is struck between the different mechanisms for accountability (e.g. Barberis 1998: 464; Behn 9

10 2001: 125). The obvious advantages of a functionally segregated accountability regime are that the chances of inconsistencies in outcomes and gaps in reach are minimized. The obvious disadvantages are the heavy costs of coordination and the huge challenges the creator of the comprehensive regime faces ex ante when devising a balanced and coherent system. In contrast, other authors have stated that redundancy is a powerful and better adapted source of coherence for a fragmented and multi-layered accountability regime (Scott 2000: 52; Smulovitz en Peruzzotti 2003: 7; Hood e.a. 2004: 176-7). In a redundant regime of accountability, the same objects are (possibly) covered in different accountability processes. Also, the different accountability processes may possibly interact with each other. This enhances the chances of uncovering unwanted conduct. Besides, the mobilization of different accountees is in accordance with the variety of legitimate expectations public organisations face in contemporary public administration (see Klingner et al 2002). The advantages and disadvantages of this perspective furthermore are the exact opposite of the prior position. Figure 3 summarizes the different perspectives on the possible added value of horizontal accountability and the sources of coherence of the ensuing multiple accountability regime. Figure 3 Contributions and coherence of multiple accountability regime Issue Contribution of horizontal accountability Source of coherence of accountability regime Substitution for ministerial responsibility: horizontal accounttability strengthens democratic control of agencies Functional segregation. Each accountability mechanism covers specific object Positions Complement to ministerial accountability: horizontal accounttability enhances learning processes Redundancy. Accountability regime is redundant, different mechanisms address the same issues and tend to interact In this paper, the contributions of horizontal mechanisms of horizontal accountability in the Netherlands is assessed in order to investigate which of the above positions is most fit to describe the factual multiple accountability regime of these agencies.. 4. On the research In the rest of this paper, the horizontal accountability mechanisms of the Dutch agencies are described and analyzed in order to test the expectations described above. Before proceeding, however, a short elaboration on the research design and methods is required. 10

11 The empirical research for this paper consists of three steps. First, an inventory has been made of all the institutional mechanisms of a subset of Dutch agencies 3 that qualify as mechanisms for horizontal accountability. This lead to an inventory of 60 existing mechanisms for 82 agencies. Secondly, the interaction between accountor s and accountee s within a subset of these mechanisms was studies through interviews and document analysis. The major part of the research was conducted into the thirteen mechanisms for horizontal accountability of six agencies 4. In addition, the arrangements of seven other agencies were studied in less detail in order to broaden the reach of the research 5. The content, outcomes and influence of communicative interactions between accountors and accountees have been reconstructed on the basis of documentation. These included agenda s and minutes of meetings, the most important official documents of the organisations, such as annual reports, strategic (mid term) plans, audits and evaluations and, finally, policy documents of the ministries, reports and letters to parliament. Thirdly, interviews were held with senior officials of the agencies, members of executive boards, clients, other stakeholders and senior officials of the ministries involved. In total 90 interviews were held with 70 respondents. Data were gathered from May 2005 until September In these semistructured interviews, the following leading questions were asked: How are arrangements for horizontal accountability set up? How does horizontal accountability function in practice?, What are the main topics of interest and discussion?, What, if any, are the effects of horizontal accountability on organizational policies?, How does horizontal accountability relate to governmental (vertical) steering?. During the interviews, respondents were constantly asked to elaborate further on the answers they gave with follow-up questions such as: can you give an example? what do you mean? and can you please explain this further? The information obtained through the interviews was contrasted with formal documents, such as agenda s and minutes of meetings, annual reports, strategic plans, audits and evaluations. Through these methods, reconstructions have been made of the operations of all horizontal accountability mechanisms, the content and conclusions of every single mechanism, and the impact of the mechanisms on policy decisions. The descriptions hereafter will be stated in generalized terms. It would, in the confines of this paper, be impossible to describe the investigations of all accountability mechanisms in full detail. Besides, the research produced many remarkable similarities. It is on these that I will focus in the following section, leaving many more subtle differences aside. 3 The subset of agencies consists of agencies that are a) monopolists, are b) based on public law and were c) not involved in a merging process in The six investigated agencies are: Cadastre and Public Registers Agency (Kadaster); Centre for Work and Income (CWI); Forest Authority (Staatsbosbeheer); Netherlands Vaccine Institute (NVI); Pension and Benefit Board (PUR); Social Security Agency (UWV). 5 The seven additional agencies are Accreditation Organisation of The Netherlands and Flanders (NVAO); Agency for student grants (IBG); Air Traffic Control (LVNL); Authority on vehicles (RDW); Central Funding of Institutions Agency (CFI); Netherlands Forensic Institute (NFI); Statistics Netherlands (CBS). 11

12 5. Mechanisms of horizontal accountability in the Netherlands With the definition of accountability specified before, 60 mechanisms of horizontal accountability can be found in a subset of 82 public agencies in the Netherlands (see for the full research Schillemans 2007). These 82 agencies can be divided into two different constitutional types. The minor part are contract agencies (in Dutch: agentschappen ). For these agencies, the full ministerial responsibility remains unchanged, but they have been granted some operational autonomy. The major part of these agencies are autonomous administrative authorities (in Dutch: zelfstandige bestuursorganen ). They have some formalized legal autonomy from ministerial responsibility, although the boundaries of this autonomy are more or less permanently disputed. The ministerial responsibility for these agencies is restricted to the authority explicitly assigned to the minister in the law that establishes the partial autonomy of the agency. As a rule of thumb it can be said that the bigger and the more autonomous the agency is, the more third party accountees it has to account to. In total there are 14 boards of overseers, 16 boards of stakeholders, 5 boards of experts, 11 independent evaluation committees ( visitation ) and 14 internal ombudsmen. They will be described shortly hereafter. 1. Horizontal accountability to a board of stakeholders. Sixteen agencies periodically debate (aspects of) their performance with a board of stakeholders. One agency reports to two different boards, focussing on different aspects of their task. The stakeholders represented on these boards differ in many respects. Often they represent organizations that are in some way a client of the agency. In some instances they represent real citizens that are affected by the policies of the agency or are financially dependent on allowances from the agency. And, in still other cases they represent public institutions such as schools, water boards or municipalities. 2. Horizontal accountability to a internal board of overseers. Fourteen agencies periodically debate (aspects of) their performance with a board of internal but independent overseers. Such boards are made up of persons who typically have a wealth of experience in the policy area of the agency. The overseeing boards abound with former ministers, MP s and (former) senior civil servants. Most of these boards have been empowered with strong sanctions towards the agency. For instance, they have to approve of the most important managerial decisions and they are often interlocutors of the minister. Apart from this formal position, the internal overseers are appointed by the minister and are often tied to him (or her) through networks and party affiliations. Apart from this tie to the minister, these boards have to perform their task independently. They have the responsibility to evaluate the agency s performance and they don t have to account to others as to how they execute this responsibility. They only carry responsibility for their own actions (or lack thereof), not for the agency as a whole. 12

13 3. Horizontal accountability to a board of experts. Five agencies periodically debate specific aspects of their duties with a board of experts. These agencies all perform complex tasks, mostly in specialized research. The board of experts usually has a limited but influential position regarding policy decisions because they determine the working agenda for the agencies: their research programs. This position is influential because their claim to expert knowledge more or less isolates their decisions from the control of departmental overseers. 4. Horizontal accountability to an independent evaluation committee ( visitation ). The performance of eleven agencies is periodically evaluated by an independent review commission. This encompasses that the agencies first produce a self-evaluation, the committee then conducts a review of the activities of the organization and draws up its report on the basis of some 20 interviews, the self-evaluation and many other documents. Reports are published and sent to relevant stakeholders. The public character of the process and the character of the final report have given this process considerable impact. The process is called a visitation, because the evaluation committee pays a visit to the organisation. 5. Horizontal accountability to an internal ombudsman or commission for complaints. Fourteen agencies have assigned a mediating role to third parties in procedures for complaints or objections to decisions. In these instances, an independent organ or person weighs up the evidence and in this way ensures that complaints are assessed objectively. Almost all of these mechanisms for objective assessment were observed in public agencies whose clients are public organizations, such as social housing corporations or municipalities. In all of the above mechanisms, there is no (full) hierarchical relationship between accountor and accountee. In most cases, the agency is legally obliged to account to a third party. In a minority of cases the agency has introduced the accountability relationship of free will. In all instances, the third party has been given rights to information about organizational conduct and performance, and the task to question and evaluate the agency. Sometimes the third party is also awarded the possibility to sanction poor performance. This is specifically the case with overseeing boards. Apart from these common features, there are many differences between these new forms of accountability. The legal setting, the types of persons or organizations that are called upon, the institutional trajectory and the type of conduct that is scrutinized, all vary considerably between different types. What binds these different forms together, however, is that a third party is called upon to give (at least) voice on the performance or conduct of the agency. This voice may have consequences, as we will see in the next section. 13

14 6. Horizontal accountability-in-action Three of the aforementioned types of horizontal accountability are described in this section: overseeing boards, boards of stakeholders and visitations (independent evaluation committees). First, some important formal aspect of the mechanisms will be described. Then, a gross overview will be given of how processes of horizontal accountability actually evolve. The analysis will highlight the most noticeable aspects of the information-, debating and sanctions phases of the studied mechanisms. Through this reconstruction the question can be answered in what ways these new mechanisms contribute to the accountability of agencies. Formal aspects of horizontal accountability In what follows, boards of overseers, boards of stakeholders and visitations are treated together. This is possible because there are many similarities in how they operate in practice. However, there are some important formal differences between these three mechanisms. To begin with, the role of boards of overseers is prescribed in the founding legislation of the agencies. The constitutive laws describe what if any authority is given to the boards and describes in general terms how it is to operate. In most cases, the board has been assigned strong rights to information and the duty to evaluate the performance or specific decisions of the agency. Boards address all major operations and organizational strategies, just as boards of commissioners do in the two tier system of the private sector. Boards are placed in a hybrid position. In some respects they represent the minister (and they are appointees of his), but at the same time, they are also supposed to further the interests of the agencies and to be independent in their judgments. Important powers that normally reside with the minister have been partially transferred to boards. These sometimes include budgetary powers, the appointment of management and tariffs. It is however only a partial transfer of powers, because the minister still has to approve of the important decisions that the boards or overseers have to take. Boards meet formally with agency-management 4 to 7 times a year. Then, the boards of stakeholders. They give voice to customers of public services and are often held in high esteem in policy documents. Apparently they symbolize a shift to a more direct form of democracy. Their role is usually defined in terms of reflecting upon the quality of services from a customer perspective. They meet around 4 times a year with agency-management. Boards of stakeholders have been on the increase in the Dutch public sector since the last decades of the twentieth century. Their high normative status oddly contrasts with the low estimations of their actual performances and their lack of formal powers. These boards have no real powers of enforcement. They only have the power of voice. The third type of horizontal accountability that is examined is the voluntary evaluation procedure of a conglomerate of large agencies. It is referred to as a visitation and combines aspects of peer review 14

15 with independent external scrutiny. The visitation follows from a code of public accountability with which the participating agencies seek to bring their accountability in accordance with their partially autonomous status. Once every four years an independent evaluation committee visits the agency and assesses its performance. It does this on the basis of a self-evaluation of the agency and some 20 interviews with concerned parties. The voluntary visitation procedure of the agencies is a part of their broader strategy to operate as transparent, responsive and customer-oriented organisations. The legal terms by which the different accountability mechanisms have been created are, on most issues, not very specific. They are often unclear about important questions such as what exactly the contribution of the accountee is expected to be for the governance of the organisation? Or what the organisation is expected to do with the voice it receives? The lack of clarity in the regulations leaves much room for role-interpretation by the three involved parties (principal, agent and accountee). This may lead to conflicting interpretations and possibly opportunistic action. In what way, to give an example, should an agency be influenced when the law only states that the mechanism serves as an appropriate checks and balances but does not specify what is meant by appropriate? This unclarity of regulation leaves much room to accountor and accountee to devise their interactions according to their needs. The question then is: how do they do this in practice? Information phase To begin with, in the information phase of horizontal accountability processes, the different accountees are mostly informed about the conduct of the executive agencies through the same documents that are also presented to the principal. These generally cover the most important strategic aspects of agency-activities. Documents such as annual reports, mid-term plans and policy documents about services are all discussed with the ministry, boards and board of stakeholders, and they are embodied in the visitation procedure. The agendas of the meetings show that they generally focus on the big strategic decisions the agency takes. Accountees comment and give advise on documents such as mid term strategic plans, plans to reorganize the organization, the annual report, new tariffs, and relevant legal and political developments. The (re-)use of the same information in different accountability processes is generally considered as a positive feature or at least as something very practical. As one respondent notes: It is true we discuss the same documents with the ministry, the board of overseers and the board of stakeholders. Luckily, I should add. Otherwise it would be an enormous task providing all the information. Most respondents indicate that the topics that are covered in the information phase can be loosely divided into two categories. One respondent indicates that the inner world of the general strategy of the agency is the first important issue. This also regards to issues such as communication with 15

16 customers and quality controls. The second major issue is, according to the same respondent, the outer world of relationships with political principals and societal stakeholders. This last finding is a little surprising, as most mechanisms for horizontal accountability formally have to contribute to the quality of services and stability of the agencies. But in addition to that, all of these horizontal accountees have a keen interest in the politico-strategic issues with which agency-management has to deal. They therefore demand to be informed about all major developments in this respect. It is important to note that there is a supply-driven information provision in the information phase that distinguishes horizontal accountability from traditional forms of vertical accountability. In vertical accountability, agencies have to provide government, inspection services, Ombudsmen, Auditor- General and judges with all the information they require. They have multiple legitimate masters (Posner 2002), with far reaching prerogatives. The exchange of information is then usually driven by the demands of the overseer. In horizontal accountability, accountees mostly benefit from freedom of information clauses. Therefore, the accountee is more or less dependent on the information that is provided because it hardly has any powers to demand for specific information. Besides, most accountees usually have very limited time at their disposal and have little knowledge of what information is available and is useful for them. There is a large information-asymmetry between accountor and accountee. When asked, however, non of the members of the different boards found this problematic. They were convinced that they received all the information they needed, on the grounds of their warm relationships with agency-management. Many respondents stressed that they deliberately invested in the quality of this relationship. This investment was thought to be beneficial, as the accountees expected to be better informed and also be more influential. Debating phase In the debating phase, the dialogue between accountors and accountees generally covers the most important aspects of the inner world and outer world of the agencies. Generally, the style of discussion is described as cordial and friendly, with one exception (one board of stakeholders). All accountees have the dual task of assisting and advising the organisation on future action and evaluating past activities and performance. In practice, the former task prevails. Accountees do not concentrate their scrutiny on breaches of standards for performance. Rather, their focus is generally reflective and future-oriented. Accountees more or less pose the question: what can we learn from this? When asked, most respondents describe the role of the different boards and visitations in terms that clearly suggest reflection. Their role in practice is to look ahead, one observer notes. Others add that they operate as sparring partners to management over major strategic issues, that they abound in difficult questions on new policy decisions and that their role is to enhance critical reflection. 16

17 This reflection-enhancing role presupposes a bond of trust between accountor and accountee. It is a form of accountability wherein the social distance between accountor and accountee is minimal. This is what Roberts calls a form of face-to-face accountability that can have socializing effects (Roberts 2001: 1567). The repeated dialogue between the two parties fosters trust and cooperation and may challenge explicit or implicit policy assumptions through dialogue. Over time, this could stimulate learning processes. In comparison to traditional forms of accountability, it is noteworthy that there is a less fixed format in the debating phase of horizontal accountability. Political and legal forms of accountability have explicit rules for debating the performance of public service organizations. These rules usually entail opportunities for these organizations to explain and justify their policies and conduct. There is generally no fixed format for debate about policies and performance of agencies in horizontal accountability. There are little guiding rules. Accountor and accountee are relatively free to mould their interaction according to their needs. As they cooperate in this together, the accountability process evolves in a relatively safe environment. As one respondent notes: It is not similar to meetings with the ministry, where I always go with a slightly increased level of adrenaline. It s not like that when I meet with the board. However, the dialogue in horizontal accountability processes is not totally devoid of tension either. Both parties know and notify this in the interviews that the principal is a silent listener to some of the discussions between accountor and accountee. In some instances, minutes of the meetings are sent to the minister and screened by his civil servants. In other instances, members of boards sometimes meet formally or informally with the minister or senior officials of his. In these circumstances, boards can serve as important ambassadors to the cause of the agency. Or, in a less positive fashion, function as snitch, as one respondent said. And in still other instances, the outcomes of horizontal accountability can and will be used by departmental personnel as monitoring information. This fact does indeed put some extra tension on the dialogue between accountor and accountee in horizontal accountability. As one respondent puts it: I always listen carefully to what the board has to say, because you know that the opinions [of board members] are likely to recur later on. Sanctions phase In the sanctions phase, all boards and visitation committees concentrate on giving voice. What is the general thrust of the voice of these accountees? All in all, four issues prevail. When it comes to strategic questions, all accountees attach high value to the quality of products and procedures and the adaptability of services to specific and changing consumer demands. The concrete phrasing of the argument changes from situation to situation, but the general thrust of the argument always points in the same direction. Accountees urge agency-managements to be more innovative, responsive and 17

18 adaptive. Secondly, the stakeholder councils in particular place much value upon respectful communication with, and reliable treatment of, clients. Large bureaucratic agencies have a weak reputation in this domain, and for some of the agencies in this research this is not without reason. It is therefore not surprising that the way customers are treated is an important issue for these accountees. Thirdly, the internal overseeing bodies in particular focus a great deal of attention upon the strategic position of the agency. For instance, they react strongly to negative publicity in the media or when members of parliament speak unfavourably about the agency. In addition and without exceptions, all of these accountees are supporters of an assertive external strategy of the agency. The board of stakeholders of UWV for instance, an agency whose core business is administration and payment of benefits, for instance lobbies intensively for the organization to invest in the additional task of preventive measures in companies. Thereby aiming to decrease the chance of persons becoming unemployed. The board thus tries to broaden the scope of activities of the agency. Another example includes the board of overseers and advisory council of clients of the Forest Authority. They made a strong case for the agency to use the timber from its forest to sell on the commercial market, even though this is politically disputed and collides with many legal constraints. In these instances, and many more could be named, the horizontal accountees presses on agencies to acquire new tasks and behave entrepreneurially. So all in all, in the studied mechanisms for horizontal accountability a first series of signals indicate improvements in actual services, communications or systems of management that are required, according to the accountees. A second general signal regards the relationships with external stakeholders such as clients, partners and the ministry. All accountees stress that it is important to encounter other parties as equal partners. Does the voice of the accountees have consequences for the accountor? To begin with, on a limited number of concrete agency-decisions horizontal accountability has had some influence. Processes of horizontal accountability generally have a clear, but nevertheless clearly modest, influence on the decisions of agencies. For most of the mechanisms that were examined, it was possible to find decisions that were influenced by horizontal accountability. Influence was acknowledged to exist when two independent respondents together with evidence from formal documents, such as minutes of meetings, pointed in the same direction. For boards, most instances of influence concerned improvements to systems of management or the relationship with the ministry. For board of stakeholders, instances of influence were mostly concerned with specific aspects of their services, and particularly communications with clients. The influence of visitations is at first primarily directed towards transparency and responsiveness to stakeholders. From thereon, visitations address all major aspects of policies. 18

19 Figure 4 presents an overview of issues that were influenced by horizontal accountability, based on interviews and formal documentation. The amount of influence of horizontal accountability on each issue is unknown. Figure 4 Decisions that were influence by horizontal accountability New chapter is added to long term strategic plan Changes in policies for whistle blowers External accountant is contacted Governance-code Assessment of qualityy of scientific outputs Investigation in added value of organisation Inventory of real estate Check on bureau-costs in international benchmark Communication magazine A new and improved complaints policy Analysis of media-sensitive issues Consultation with unions Changes in ICT-policies Veto on a specific estateaquisition Termination of an expensive and voluntary service Many changes in brochures, communications and formal letters to clients A bureau for customer services is set up Clients who were negatively affected by conflicting regulations were helped Improvements in accessibility of telephone services Changes in format of research on customer satisfaction Changes in regulation of board of stakeholders Increased organizational transparancy Boards of overseers and stakeholders were connected with each other Board of stakeholders was connected to organisations of local stakeholders Changes in policies regarding integrity The length of this list perhaps falsely suggests that horizontal accountability was found to be very influential on the decisions of agencies. But that is not the case. Most listed items are decisions that can be taken without further consequences for the general policies of the agency. They are important to the system or aspects of quality care, but may be taken or not without further ramifications. And some respondents add that the overall direct influence of horizontal accountability is only modest. The modest outcomes for horizontal accountability concur with most other research on accountability. The literature is, as Keohane (2002: 14) rightly notes, notable for its gloomy assertion of a disjunction between the ideal of accountability and actual practice in modern democracies. There are a number of reasons for the modesty of results. Firstly, the modesty of influence is a consequence of the fact that the investigated mechanisms all ascribe very limited punitive authorities to accountees. In the second place and more importantly, all accountees prefer to engage in a cooperative dialogue with management and they are generally supportive of its strategic choices. Boards and councils use their position primarily to strengthen and improve existing policies. They have little inclination to change them in more fundamental ways. In addition to the above it must be cleared that accountees prefer not to use even their limited powers to sanction. They always prefer more informal ways to influence agencies. This does however not mean that the process is toothless. Exit and voice take the place of formal sanctions. In traditional forms of accountability, the accountee usually has considerable sanctioning powers. Parliament can force a minister to resign, judges may fine public service organizations or revoke their decisions. In horizontal accountability, accountees have little or no formal capacity to sanction poor performance. 19