Governance and Constitutionalism

Law, Politics and Institutional Neutrality

Bogdan Iancu, Elena Simina Tănăsescu, Bogdan Iancu, Elena Simina Tănăsescu

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781351798945
• Edition: 1
• Topic: Law
• Subtopic: Administrative Law
• Index: Law

This collection studies the rise of neutral bodies as a challenge to the constitutional paradigm of the nation state. Administrative entities such as commissions, agencies, councils, authorities or 'independent agencies' as they are sometimes known, are relatively autonomous from majoritarian democratic control and by their institutional design fall outside the classical triad of powers or branches of government. They may even fall outside the confines of the nation state itself as with the EU Commission.

The book is divided into theoretical-historical and empirical parts. Part I approaches the phenomenon through the rigorous normative conceptual lens of constitutionalism and constitutional law, questioning the implications of political neutrality on inherited normative categories, both at national and supranational level. Part II comprises case-studies reflecting the full spectrum of theoretical frameworks and concerns developed and explored by the theory-oriented chapters in the first part. The work explores a wide range of issues including the balance between autonomy, legitimacy and accountability, the taxonomy of agencies, the role and limits of expertise as a paramount justification for independence, 'agentification' as a result of internationalisation, and 'agentification' as a reflex and consequence of transnational polity-building within the EU.

Part I

Administrative Autonomy and Democracy

1 Government and governance

The constitutional politics of institutional neutrality

Bogdan Iancu¹

1.1 Introduction: the taxonomy of agencification

The proliferation of politically autonomous bodies is a contemporary phenomenon. The general development is pervasive enough to have been described in a recent work as a global “rise of the unelected” and a new form of separation of powers that challenges familiar understandings of representative democracy.² In a similar vein, Bruce Ackerman’s 2000 piece on the new separation of powers argued that the conditions of contemporary constitutionalism would require thinking outside the proverbial box and imagining structures and concepts beyond the horizon of Montesquieu’s triad. In his argument, the new separation of powers could integrate an “integrity branch” (an early nod to the then-emerging anti-corruption crusade) and a “regulatory branch” (an ecumenical notion integrating both the unfolding EU and older American experiences with administrative autonomy).³

“Agencification”, a contemporary term used primarily in the political science literature as shorthand for the rapid spread of various types of neutral agencies is a loose conceptual placeholder. Like all umbrella terms, it holds an analytical and taxonomical currency inversely correlated with its broad descriptive usefulness. Although it may be factually true that this general institutional form has developed in various settings over the past decades, typologies vary wildly, and so do the practical reasons for the creation of neutral bodies, the constitutional status of such agencies (including the meaning and reach of autonomy from “standard” politics), and the justificatory narratives undergirding each particular template.

In what concerns typology, various forms are encompassed by the notion of “independent agency”,⁴ ranging from ombudsmen to utility regulatory commissions, standardization bodies, human rights tribunals, non-discrimination commissions, electoral commissions and telecommunications councils. A legal basis for their creation and skeleton regulation of some autonomous structures are provided in the constitution, whereas others are created by organic or ordinary legislation. In some cases, special constitutional conditions, generally formulated, must be met for the creation of autonomous administrative authorities. For instance, the Romanian constitution provides – Art. 117 (3) – that “autonomous administrative authorities” can only be established by organic law. The British case is idiosyncratic, insofar as agencies proliferated as a general development or phenomenon, to the point of accounting for one-third of central government expenditure, although no attempt was made to streamline the practice into a constitutionally coherent pattern or framework.⁵ Hundreds of QUANGOs (quasi-autonomous non-governmental organizations) or NDPBs (non-departmental public bodies) were created, with various institutional degrees of autonomy. As to the reasons for creating such bodies, they may be endogenous (legal transplant and a trend toward deregulation may explain the appearance of the French autorités administratives indépendantes),⁶ exogenous (the case of autonomous data protection conditionality in the EU),⁷ or a mixture of internal and external determinations (integrity commissions of various sorts).⁸ The nature of the political (including party) system will also affect typologies and well as degrees of independence and will have a direct bearing on the institutional framework. In a presidential, two-party system such as that of the United States, autonomy translated structurally in the form of collegiate bodies with bipartisan membership. In parliamentary or semi-presidential systems the independence of such bodies will usually be weaker⁹ ; structurally, colleges or councils will typically comprise appointees reflecting wide spectrums of stakeholders (institutions, civil society, etc.).¹⁰

The justifications of autonomy, meaning the overarching discourses advanced in ­constitutional jurisprudence, politics, and academic literature in order to uphold this departure from classical constitutional orthodoxy, are equally eclectic. Expertise features largely in the panoply of agencification, the main line of argument being that of specialization: politicians either would need, as a “second-order decisional strategy”, to rely on specialized, expert knowledge or to delegate sectorial problem solving entirely to experts.¹¹ A variation on this theme is somewhat circular, where expertise is said to be both intrinsic in the nature of the decision or in the field to be regulated and fostered or bolstered by the delegation of powers to politically autonomous bodies. In this latter hypothesis, a leap of faith is implicitly required, to the effect that expertise is hoped to be the end result of relative remoteness from majoritarian political control (and thus also from democratic accountability). Impartiality is another mainstay of the neutrality paradigm, where insulation from politics is predicated upon the need to ensure neutral decision-making in politically sensitive fields, such as human rights abuses (and/or non-discrimination policies), investigations into politically sensitive cases, the repressive combatting of political corruption, the implementation of preventive anti-corruption policies, the monitoring of elections and campaign finance regulations, etc. In the case of some bodies, both rationales are presented as apposite. For example, in the field of telecommunications, autonomous councils or commissions are usually endowed with both technical attributions (licensing, allocation of spectrum frequencies) and the enforcement of content regulation (rating, prohibition of obscenity or defamatory language in the media, enforcement or viewpoint discrimination rules or political pluralism norms in televised debates). To wit, the remit of the first independent agency to be created at the national level, the American Interstate Commerce Commission, included both rate setting for interstate freight transportation and locomotive safety standards and inspection.¹²

A more foundational account of the need for insulation from majoritarian politics in modern democracies is the argument advanced by Juan Linz. According to Linz, the main underlying justification for creating non-majoritarian institutions in modern democracies is the time-constrained character of political action and political “attention spans.” Simply put, representative democracy functions in a temporally constrained paradigm, decisions being made and changed or reversed in lockstep with election cycles, whereas, according to Linz, many policies must be pursued for longer time horizons. This is sometimes true due to the nature of the decision (monetary policy immediately comes to mind). Sometimes, the need for consistent policymaking or implementation over time results from various exogenous commitments. In the latter respect one need only think of environmental regulation, where treaties generate long-term regulatory obligations. In order to ensure policy consistency and credibility, politicians must delegate decision-making powers to non-majoritarian public bodies.¹³ It should be pointed out, however, that Linz’s argument piggybacks normatively on the older rationales of impartiality and expertise. His thesis proceeds from a core, established example of autonomy from politics (the bank and monetary policy, which must be kept separate from electoral imperatives) and generalizes to other fields, where claims of expertise or need for impartiality are much more nebulous (i.e., contentious) and must be established separately, on the merits of each discrete case.

In what remains of this chapter, I will attempt a brief genealogy of neutral bodies in constitutional law. A first juncture of the argument will locate the scope of institutional autonomy in the classical architecture of separation of powers. A second part inquires into the appearance and evolution of independent agencies in US constitutional law. The American precedent is unavoidable, insofar as “agencification” as a contemporary development is usually related to the American practices, the often unstated implication being that subsequent evolutions could be considered examples of constitutional transplant.

Nonetheless, as I argue in the third juncture of this argument, the “rise of the unelected” in other jurisdictions is by and large not a matter of imitation or transfer. Constitutional concepts and institutions do migrate. In the contemporary age of “Ikea constitutionalism” many examples can be given of constitutional engineering by adopting foreign models perceived as efficient or prestigious and thus worthy of emulation (judicial councils, constitutional adjudication, rights provisions, etc.). The autonomous agency is however not such a case, especially as this model has fallen into oblivion and perhaps even disrepute in the jurisdiction of origin. The creation of such structures in other jurisdictions must be accounted for by reference to different lines of causation. An important determinant, I argue, is the rise of governance, namely, of alternative modes of regulation predicated upon the belief in ostensibly apolitical standards and criteria, whose implementation requires the creation of putatively apolitical institutions. In this respect, the creation of neutral bodies in the European Union is an apposite case in point. A few EU-related examples of governance-driven agencification will be provided to substantiate this claim.

1.2 Neutral institutions within the constitutional state: the triad of powers

Modern constitutionalism arose in the wake of the Glorious Revolution in England. The practices of limited government (separation of powers and rights) were later consolidated and entrenched in the written constitutions adopted in the aftermath of revolutions in France and the United States. Whereas the normative constitution has been replicated ever since with idiosyncratic variations, the normative justification of separation of powers is still heavily indebted to the classical seventeenth- and eighteenth-century blueprint of the triad.

The conceptual paradigm of the horizontal separation of powers presupposes an institutional equilibrium between constrained majoritarian politics, embedded in the legislative and executive branches, on the one hand, and political neutrality, on the other, as represented by the judiciary. Political neutrality (the courts of law) offsets majoritarian democracy embedded in the legislative and executive branches of government. This balance finds its analytical, normative exposition in the famous metaphor by which Montesquieu describes the judicial power as “amounting to nothing”: in the general logic of Montesquieu’s justification for the triadic arrangement, the reason for judicial insulation is the politically irrelevant function of adjudication. Judges are the mouthpieces of the law; they can neither make the rule nor diminish the force and rigors of its application. The judge of the Spirit of the Laws is in a sense a Weberian “paragraph automaton” avant la lettre.

From a historical point of view, the independence of the courts (from the executive but not from parliament) was statutorily provided in English constitutional practices with the 1701 Act of Settlement. The US federal constitution of 1787 later gave the principle fundamental law imprimatur, guaranteeing not only the “tenure during good behavior of federal judges” but also judicial salaries. Marbury, affirming the principle of judicial review, took the practical application of independence one step further in what concerns constitutional adjudication and completed thus the logic of the normative constitutional arrangement.

In terms of separation of powers, the autonomy of the individual judge, protected in the exercise of his functions by legislative (as in England) or constitutional (as in federal American constitutional law) guarantees of secure tenures, still represents the only pocket of constitutionally recognized and entrenched political neutrality. This is not to deny the crucial role of an independent judiciary for constitutionalism, but to point out that the neutrality of courts within the architecture of separated powers is exceptional in terms of justification and functionally circumscribed by a number of caveats.

To be sure, other forms of neutrality from majoritarian democracy and autonomous institutions have crystallized at the level of practices. The Bank of England was instituted shortly after the revolution of 1688. Its founding was contemporaneous with the statutory guarantees of judicial tenures and the rationale for the bank’s neutrality was also somewhat analogous to that of judicial independence. Otherwise put, the need for impartiality and predictability in monetary policies (so that future kings could not seize, like Charles I, the bullion from the Mint) is comparable to the need for impartial judges, appointed during good behaviour (so that future kings would not replace wantonly undesirables, as James I did in the case of Edward Coke, removing him summarily from the Court of King’s Bench and the Privy Council). But the bank was not a power in the constitutional sense and, indeed, was not even initially built as a public institution. Up to now, constitutional recognition of central banks independence is an exception; although central banks usually enjoy a wide degree of functional autonomy in practice,¹⁴ constitutional provisions referring to such institutions (the case of the German Grundgesetz) or providing a framework for their functioning (se...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Contents
• Notes on contributors
• Introduction
• PART I Administrative Autonomy and Democracy
• PART II Case studies
• Afterword: The Need for independent regulatory authorities in the perspective of contemporary constitutionalism
• Index