Trend of Agencification

Trend of AgencificationIntroductionIn the almost 800 years since the promulgation of the Magna Carta, thither ar a numberof events in English constitutional history that would serve as useful points ofcommencement in the consideration of agencification and the related elements engagedby the title question. The correspond base will commence the examination of the issues withreference to the well k at one timen 1976 commentary of Lord Hailsham concerning the organization of post World War II Britain as that provided by means of an electeddictatorship. The accuracy of this observation is considered in the context of both the domain and the extension of the role of state agencies in modernistic society.Agencification is next considered from the location of the basic conclusions of presidential term. Agencies ar often regarded as the vehicles through which the real work ofgovernment is conducted the nonion that agencies are tolerantly perceived by ordinarycitizens as the align face of modern government is in addition critically explored. In this context,a number of concepts that are closely connected to the overarching principles ofgovernance are to a fault discussed, including governance as concept that is interchangeablewith regulation the rise of the contemporary Regulation State agencies and their mean license from policy making and political considerations accountability. particular attention is directed to the nonion of regulation as a means of providing structureto society popularly, as well as the role played by agencies in the regulation of internalgovernment processes.The paper concludes with an examination of agencification and its particularconstitutional challenges the impact of the Constitutional Reform sour and the currentdebate concerning the dynamism of a British Bill of Rights is also assessed in thiscontext. It is noted that while the present paper has a British agencification focus, thesources relied upon to support the proposa l of marriages developed here are drawn from a broad(a)range of British and international commentators.For the purposes of the following analysis, agencification is defined as the delegation ofdecision making power and institutional liberty to existence bodies. Alternatively, anygovernment decision to utilise or create state agencies or any some other entity established bygovernment to upgrade any type of public policy object will form a part of theagencification process. As is noted infra through the examples tendered forconsideration, the formulation of a definition of agencification is relatively easy arrest all of the parameters within which such entities now utilisation in moderngovernment structures is difficult.The definition of agencification in human action engages a number of related concepts of specialimportance are regulation, autonomy, accountability, and credibility.Regulation has a range of possible meanings in an agencification context. At itsnarrowest defini tion, regulation means formulating crucial sets of rules andestablishing supreme public agencies to monitor the relevant rules and to promotetheir public compliance. In its broadest meaning, regulation may refer to any form ofstate intervention knowing to steer a society towards a particular public goal. In moderngovernance, the concept extends to how to regulate the regulators, the mechanics ofmanaging intra-government systems and relations between agencies.Autonomy in the present context is the degree of supervision that is exercised by a centralgovernment branch or ministry over an substance or other in public constituted body.Autonomy must also be considered in contrast to the real or presumed independence ofthe agency in question as is discussed below in the context of the UK Food Standards position, the relationship between the agency to government, the public at large and thehost of possible third party interests at risk of exposure make this dynamic very intricate.Acc ountability is a term that has a strong political connotation that also carriesadministrative overtones from the agencification perspective. As is further discussedbelow, the autonomous and semi-autonomous modern regulatory agencies haveaccountability not in vertical directions, but horizontally to the government at whichthey stand arms length, and the public to whom their efforts are intended to be directed.The distinction between agency accountability and ministerial accountability must beemphasised. Ministers of the Crown are responsible for the proper military operation of theirrespective portfolios a failure to discharge those duties in accordance with the terms ofoffice will often carry personal and political consequences for the minister and the brass party. A breach of duty on the part of the operation of a publicly constitutedagency has only indirect consequences for the minister whose portfolio includes theworks carried surface by the agency in question.Credibility is a concept that is frequently considered in the agencification process. Thereis broad support in the academic literature for the proposition that an independent andproperly structured agency is more inherently credible than a government ministry that isvulnerable to the pressures of political expediency. This support is countered by theobservation that an agency may risk being influenced unduly by its client groups in theexecution of its duties.Agencification and Elective DictatorshipIn 1976 the antecedent Lord Chancellor, Lord Hailsham, offered a commentary on the stateof British governance. He suggested that parliamentary supremacy, a foundation of theun pen English constitution, had been turned on its head the government nowcontrols Parliament, and not the constitutionally accepted reverse proposition thatParliament was supreme. Lord Hailsham further stated that the power inherent in theprinciple of Parliamentary sovereignty had been exclusively directed to thecontinuous enlarge ment and expansion of the scale and range of government itself.The checks and balances presumed by Englands constitutional structure were perceivedby Lord Hailsham as no longer functioning ands seemingly abandoned for an exercise ofgovernmental power that continuously expanded, subject to no external controls.We live in an elective dictatorship, absolute in theory, if hitherto thought tolerable inpractice. This conclusion as stated by Lord Hailsham has been selected as the point ofcommencement to the present agencification analysis because it permits a considerationof the reasons why agencies and other public entities have risen to particular prominencein British governance. The relationship between agencies and the broader sensing ofwhat government is and what it represents to the public is an authoritative one. Further, acareful examination of the role of agencies permits a critical evaluation of whether thenegative elements of big government and executive laterality as referenc ed by LordHailsham in 1976 are counter-balanced by the effectiveness of current governmentendorsed agency structures as essential to effective and enviable modern governance.Agencification underlying factorsGovernment agencies and the extension of the modern welfare state are well understoodas companion concepts. As a general proposition, as the state expands its role in the livesof its citizens to provide greater assurances of societal welfare, the state must createextensions of itself to deal with citizen demand and the regulation of activities across thebroad spectrum of society. In this sense, agencification is organic agencies have grownin their influence upon the life of an ordinary citizen in proportion to the desire ofgovernment to extend the range of its services. In theory, this extension has occurred withthe support of the public as evidenced through its democratic processes in electinggovernments that enact such programmes.It is plain that agencification has not occur red in Britain (or any other Anglo-Americanjurisdiction) in accordance with a true master plan. A common observation is thatgovernment agencies tend to have very diverse functions and have not developed in acoherent fashion there is a lack of consistency in their legal status, organisation,funding and degree of autonomy. The lack of unpatterned order may be offset to a degreeby the assertion that agencies are cost efficient, more nimble and more responsive to thepublic needs than traditional government departments by virtue of their structure.The legislative role (both actual and theoretical) of a Member of Parliament is welldefined in the understanding of the average citizen the true extent of the powers andinfluence of a particular board, tribunal, or agency is often not so clear to even aninformed citizen. As Banner noted, modern government is anything but monolithic. Theproliferation of state agencies has make government organisation very difficult to penetrate.Banner suggests that the decisional processes have become more dusky for ordinary citizenswho long for transparency.In this context, two issues may be usefully considered. The first is the agency as aremedy, a key player in restoring public confidence in government where a systemicfailure in a particular government service has been identified. A prominent example, thecreation of the Food Standards Agency in the wake of the BSE (mad cow) outbreak andthe subsequent political crisis in 1996, is examined below. A further example of theagency as a tool to rebuild a particular institution in the public eye is the revampedJudicial Appointments Committee (JAC). The JAC, a creature of the ConstitutionalReform Act, 2005, is intended to render the appointment of judges and certain tribunalmembers transparent, removing the process beyond the influence of governmentpatronage.The second issue to be considered is that of the agency as the true public face of moderngovernment. The typical citizen may not complete ly understand the nature and extent of aparticular agency powers, but there is no question that agencies exert the greatestregulatory influence over day to day life. Regulation of both society and internalgovernment function cannot exist without agencies agencification has taken on everincreasing importance for these reasons.The Regulation StateThe Regulation State is the term of art commonly employed by academics to describethe modern relationship between government agencies and the public they are intended toserve. It is contended that the traditional welfare state was constituted on a dictationand control model, where public ownership and nationalization of certain publicresources was encouraged. In the welfare state model, responsibility for decision makingis somewhat more alter regulatory, operating, and policy making functions wererelatively integrated.The Regulation State is a flatter, more horizontal government model than that of thewelfare state. It usually seeks to advan ce different government goals, chiefly those ofeconomic efficiency, the promotion of competition, and consumer protection.21Inessence, the Regulation State marks the crucial demarcation point between direct andindirect governance, where autonomous agencies and single purpose governmentorganisations are essential to overall government function. It is the organisation andregulation of the government apparatus itself that drives the Regulation State forward.Regulatory agencies operate in their depute sphere through the exercise of delegatedpowers. It has been noted that many regulatory agencies have features that are both theproduct of a statute (The Judicial Appointments Committee noted earlier is such anexample), as well as elements of an incorporated entity. This particular structure creates aregulatory body that is neither directly elected by the public nor is it directly accountableto Parliament. These free standing agencies are therefore potentially accountable to arange of gove rnment and public bodies where the relationships are circular, and not linearor hierarchical.It is in this context that a key strength of the agency as opposed to the centralized powerinherent in the former welfare state model is revealed. Agencies constructed to advance asingle public policy or designed to deal with a single issue can, at least in theory, acquireagency specific knowledge and operational expertise to function efficiently. If one wereto coin a mantra to attach to the agencification that supports the Regulation State, it indexbe Better regulatory performance and efficiency without impacting adversely uponeither democratic principles or political control.Agencification at work BSE and the Food Standards AgencyThe mad cow scare that first shocked the British public in 1986 was a public scandalthat continued to resonate in 1997 and beyond. Revelations were made in 1997concerning the degree of knowledge that certain government officials may havepossessed at the time of the initial outbreak concerning the severity of the risks posed byBovine Spongiform Encephalopathy (BSE) to human health.The James Report and other specialized investigations were undertaken to determinehow to best prevent a similar animal disease outbreak. As a result, the UK FoodStandards Agency (FSA) was created by act of Parliament. In a parallel development, theCouncil 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 thepresent analysis. It is the governmental mandate that has been provided to the FSA that isinstructive on a number of fronts the principles of agency independence andaccountability discussed earlier in this paper are of particular relevance.The FSA reflects a movement in the regulation of all aspects of food production thatmirrors the trend forth from the order-command centralized structure of welfare statestyled government to a broadly based sys tem of risk regulation in food. However, whatthe 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 foodproduction 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 tended to(p) byagricultural industry concerns regarding the feared decline of this aspect of the Britisheconomy. The FSA was plainly tasked to deal with two different issues within oneagency framework. This duality raises the important question of whether the FSA is trulyindependent 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 FSAsoverly broad responsibilities run counter to the effective, single issue styled bodies thatare a hallmark of modern agencification.Constitutio nal challengesLord Hailshams criticism of British government in 1976 corpse one that bearsconsideration in the agencification era. It is contended that there is a public perceptionthat government is now amorphous, a construction with seemingly infinite tentaclesinfluencing all aspects of modern life, yet not subject to the direct control of any oneinstitution. Government may be seen as an entity that exists for itself, as opposed toclearly articulate public purposes and objectives, no matter how its roles are stated by itsmembers.Recent developments concerning constitutional reform, including the ongoing debateconcerning the implementation of a British Bill of Rights also bear upon the role playedby agencification in modern government. The proponents of wholesale constitutionalreform that include a written Bill of Rights seek to envision that a balance is struck betweenthe emphasis on individual rights that has been featured in English jurisprudence in thewake of the Human Rights Act and the increasing influence of European Human RightsConvention case law, and an appreciation by every citizen of a corresponding set ofindividual responsibilities.It is submitted that the merits of a written Bill of Rights make for an interesting academicdebate. It is equally plain that in the devolutionary system that is inherent toagencification, the primary concern of the ordinary citizen is for good and effectivegovernance a Bill of Rights has little effect on how that fundamental aspect ofcitizenship is achieved.A final brief observation a Bill of Rights that is intended to make a linkage betweencitizen and modern government is misconceived. The diverse governmental mechanismsthat have been spawned by agencification require a different approach. As agenciescontinue to be created to address specific societal interests, government will continue tobecome more indirect. The appreciation of the appropriate rights held by individualcitizens that may properly coexist in this d iffuse governmental structure cannot be cast instone. An unwritten constitution remains the most effective companion to agencificationdrivengovernance.