4.3.3. Transparency and accountability

Although fundamental, the criteria of transparency and accountability are not constitutive of the democratic organisational form in the same way as the principles of representation and consent. Thus, the lack of transparency or accountability alone does not entail that a democratic polity lacks formal legitimacy (though it may cause it to lack the appearance of legitimacy, which is much the same thing in practice).

Rather, transparency and accountability are auxiliary precautions against the potential for the regression of democracy into hierarchical forms such as bureaucracy or oligarchy, which in turn may offer a mask for inefficiency and corruption.[1] The allegation of democratic deficit is most often levelled against organisations that although democratic in form, in practice lack transparency and accountability because their operations are closed to their constituents.

4.3.3.1. Transparency

Transparency has been described as the “distinguishing feature” of democracy by one author, who explains:

Only when a record becomes public are citizens in a position to judge it, and hence to exercise one of the fundamental prerogatives of any citizen in a democracy: the control of his rulers.[2]

In the context of the liberal state, transparency is often known as open government. Amongst the principal guarantees of transparency in government are freedom of information legislation, and regulations or policy providing for the open and accessible publication of public documents and ensuring public access to parliamentary, executive and judicial fora of deliberation.

The extent to which these institutions have in fact effectively exposed the liberal democratic process to public observation has been mixed. Clarke’s assessment of the state of access to information in Australia in 1999 was that access to “personal data has been becoming increasingly open, information held by corporations remains largely protected, and information held by governments is largely protected, but subject to some limited access provisions.”[3]

Thus as in the case of deliberative democracy in the liberal state, in which civil society plays a central role in the maintenance of a public sphere for deliberation, it is necessary to look outside government in order to find institutions to further its transparency. As again in the case of deliberative democracy, foremost amongst these is the mass media, supported by associated institutional guarantees of its independence such as freedom of the press.

The Internet also has an important role to play in increasing democratic transparency, by broadening the potential accessibility of information and reducing the cost of its provision. It has also played a secondary role in heightening public expectations of the transparency of their governments’ actions; for example, expectations of the free public dissemination of the law.[4] This may be traced to the principle of the hacker ethic, reflected in the culture of the Internet, that “information wants to be free.”[5]

The importance of transparency to democratic governance of course extends beyond the context of the liberal state to international and transnational governance fora also. Thus transparency is the first of seven critical variables identified by Young as contributing to the effectiveness of international institutions of governance,[6] and is also nominated by Picciotto as the first of four constitutive principles for democratizing globalism.[7]

Certain of the criteria by which the democratic transparency of the liberal state may be judged, the basic strategies by which it may be pursued, and the institutions by which it may be safeguarded, are equally applicable outside it. Examples include the maintenance of records of governance processes and outcomes, the provision of access to those records and to other documents developed in the pursuit of governance functions, and the facilitation of public access to deliberative processes by means such as the publication of agenda for open meetings.

However as the following section will illustrate, there are fewer established metrics for the assessment of the transparency of international or transnational fora of democratic governance, which renders problematic any endeavour to rate or compare the transparency of such institutions.

4.3.3.2. Accountability

Accountability is so called because it describes the process by which one exercising authority is required to account either to those by whom that authority was delegated for its use[8] (which can be called bottom–up accountability), or to another institution or another branch of the same institution exercising hierarchical oversight over it (that is, top–down accountability).[9]

For the liberal democratic state, the most basic guarantees of accountability are fair and regular elections, the separation of powers, and the rule of law. Of these, elections are a classic example of bottom–up accountability, in that not only do they fulfil the democratic principle, by ensuring that the government holds office with the consent of the governed, but they also publicly and regularly demonstrate the state’s fulfilment of that democratic principle. The separation of powers on the other hand is more of a mechanism of top–down accountability, designed to maintain mutual oversight between the legislative, executive and judicial arms of government (at least in Westminster systems of government).[10]

Finally the content of the rule of law (which intersects both bottom–up and top–down spheres of accountability) was classically defined by Fuller: that the laws should be cast in general terms, that they should be public, they should not be retrospective, they should be intelligible, they should not be contradictory, that they should not be impossible to comply with, they should be sufficiently stable to provide a guide for the citizen’s conduct, and that they should be administered as announced.[11]

The main limitation of the use of these three measures of democratic accountability is that they have limited application outside the context of the liberal state. For example, in a deliberative democratic forum, elections may not occur; the democratic principle may instead be satisfied by the representation of all affected viewpoints during an open and inclusive deliberative process. Similarly, within a democratic governance network there may be no need for separate legislative, executive and judicial functions, and neither would the rule of law assume much prominence within a network that lacks coercive power.

There are alternative models for accountability besides that of the democratic state, such as that of the domestic administrative agency, which may have closer application to governance networks in some respects. For example, this is the model which ICANN has employed, though somewhat haphazardly, by adopting the participatory democratic approach of open public comment before policy making and in institutionalising mechanisms of review.[12]

Other applicable mechanisms to ensure the accountability of government agencies that could be applied to democratic governance networks also include rules to combat corruption (for example by prohibiting bribery), and nepotism (by documenting objective selection criteria for appointments and contracts), the requirement to declare conflicts of interest, and submission to independent audits of dealings with assets or compliance with standards.

A strong civil society that lies outside the power of the state (or the network in this case) is another important influence upon a network’s public accountability,[13] and so too, once again, is an independent mass media (as ICANN, for example, has found).[14] Similarly, other networks or institutions that may be its competitors in the market for governance solutions, rather than its constituents or overseers, can provide what may be termed “peer-to-peer” accountability (in distinction to bottom–up and top–down).[15]

Even so, as previously noted when considering the most appropriate structure by which to implement deliberative democratic principles, it is difficult to lay down any universal prescriptions as to how accountability may be assured within a forum of democratic governance, since there is so much potential for variation amongst these in terms of their size, structure, culture and hybridisation with other forms of governance.

Lacking such a uniform set of expected institutional protections, or in most cases any direct vertical accountability to national parliaments, it is perhaps no wonder that, as noted above at Section 3.2.4, transnational governance networks are left with “at best, weak or obscure mechanisms of accountability.”[16] In criticising Slaughter’s enthusiasm for government networks, Alston complains that:

It implies the marginalisation of governments as such and their replacement by special interest groups, which might sometimes include the relevant government bureaucrats. It suggests a move away from arenas of relative transparency into the back rooms, the emergence of what she [Slaughter] terms a “real new world order” in which those with power consolidate it and make the decisions which will continue to determine the fate of the excluded, and the bypassing of the national political arenas to which the United States and other proponents of the importance of healthy democratic institutions attach so much importance.[17]

Slaughter’s response is that the use of soft power (characterised by persuasion rather than coercion) as is typical in government networks differentiates them normatively from the hierarchical arrangement of democratic institutions, and that therefore “[w]e may need to develop new metrics or even new conceptions of accountability geared towards the distinctive features of power in the Information Age.”[18]

Kingsbury, Krisch, and Stewart have taken up this challenge and begun to sketch the outlines of a new global administrative law designed to provide

structures, procedures and normative standards for regulatory decisionmaking ... that are applicable to formal intergovernmental regulatory bodies; to informal intergovernmental regulatory networks, to regulatory decisions of national governments where these are part of or constrained by an international intergovernmental regime; and to hybrid public–private or private transnational bodies.[19]

Similarly, Mathur and Skelcher have begun to develop metrics of accountability and transparency of governance networks in order for the extent of their democratic deficit to be assessed, and thereby more methodically addressed. They describe two approaches to this exercise. First, they present a universalist approach whereby such metrics are devised by a priori reasoning from theory.[20] A limitation of this approach is that it may not produce very specific and measurable criteria. In contrast, the second approach is to undertake an empirical exercise to identify specific best practices within similar existing organisations,[21] though this may fail to identify any shortfall between current best practice and theory.

Primarily utilising the second approach, Skelcher, Mathur and Smith have developed 27 criteria to assess the democratic deficit of certain types of governance networks (specifically, domestic public–private partnerships), grouped into four categories of public access (which is largely synonymous with transparency), internal governance (which concerns matters of structure such as the quorum of the executive committee), member conduct (such as the declaration of conflicts of interest by executive committee members) and accountability (which focuses on financial and top–down accountability).[22]

These criteria are incomplete, and not necessarily all directly applicable to transnational governance networks, any more than the criteria applicable to liberal democratic states or to domestic administrative agencies. However a similar approach can be taken when eventually assessing the accountability of the IGF in Chapter 6, by surveying best practices of the most closely analogous other institutions and networks, and then determining by reference to more general principles of democratic transparency and accountability whether these leave any gaps that remain to be filled by top–down, bottom–up or peer-to-peer mechanisms.

Notes

[1]

Warren, Mark E, Controlling Corruption Through Democratic Empowerment: Market-Style Accountability Revisited (2006); Aristotle, Politics (1943)

[2]

Bobbio, Norberto, Democracy and the International System (1995), 36

[3]

Clarke, Roger, Freedom of Information?: The Internet as Harbinger of the New Dark Ages (1999)

[4]

Greenleaf, Graham, Mowbray, Andrew, King, Geoffrey, Chung, Philip, & Austin, Daniel, AustLII—Changing the Nature of Public Access to Law (1998)

[5]

Clarke, Roger, Information Wants to be Free .. (2000); Levy, Steven, Hackers: Heroes of the Computer Revolution (2001) , 40

[6]

Young, Oran R, The Effectiveness of International Institutions: Hard Cases and Critical Variables (1992), 176

[7]

Picciotto, Sol, Democratizing Globalism (2001), 344

[8]

Ranson, Stewart & Stewart, John, Management for the Public Domain: Enabling the Learning Society (1994), 4

[9]

Rundle, Mary, Beyond Internet Governance: The Emerging International Framework for Governing the Networked World (2005), 17

[10]

de Montesquieu, Charles, Cohler, Anne M, Miller, Basia C, & Stone, Harold S, Montesquieu: The Spirit of the Laws (1989), 157

[11]

Fuller, Lon L, The Morality of Law (1969), 39

[12]

Weinberg, Jonathan, ICANN and the Problem of Legitimacy (2000), 225–226

[13]

Keane, John, Democracy and Civil Society (1988), 237

[14]

See http://www.icannwatch.org/.

[15]

Mueller, Milton & Klein, Hans, What to Do About ICANN: A Proposal for Structural Reform (2005), 3

[16]

Held, David, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (1995), 139

[17]

Alston, Philip, The Myopia of the Handmaidens: International Lawyers and Globalization (1997), 440; and see Barr, Michael S & Miller, Geoffrey P, Global Administrative Law: The View from Basel (2006) , 17.

[18]

Slaughter, Annie-Marie, Governing the Global Economy through Government Networks (2000), 195

[19]

Kingsbury, Benedict, Krisch, Nico, & Stewart, Richard, The Emergence of Global Administrative Law (2005), 5

[20]

This is an equivalent approach to that of Habermas in devising the conditions of deliberation within the public sphere.

[21]

Mathur, Navdeep & Skelcher, Chris, The Democratic Performance of Network Governance: Conceptual and Methodological Issues (2004), 8

[22]

Skelcher, Chris, Mathur, Navdeep, & Smith, Mike, The Public Governance of Collaborative Spaces: Discourse, Design and Democracy (2005), 584