This article examines questions of constitutional accountability arising from the privatization of British Rail in the mid-1990s, but I would like to declare a personal interest in this issue at the outset since the manifest shortcomings in rail performance have affected me as one of the many thousands of commuters who rely on trains to get to work each day.
Rail privatization in the United Kingdom (U.K.) was a complex affair that involved taking a single industry and breaking it up into distinct parts. It also required separate regimes of statutory regulation to oversee the general operation of the railways, the bidding process for franchised routes, and safety. The entire enterprise lacked a clear rationale. Not only did the proposals appear flawed from the outset, but the policy was pursued by an unpopular government in the face of strong opposition from the rail industry and trade unions, opposition parties in Parliament, and the public at large. After a relatively short time it became obvious that standards of service were declining alarmingly on the entire rail network, and later, the cause of serious rail accidents indicated that passenger safety was being compromised through neglect of the system.
The difficulties encountered by government in responding to what had rapidly turned into a crisis raise important legal and constitutional questions. This article begins by explaining the constitutional relationship of Parliament and the executive by mentioning the important convention of individual ministerial responsibility. Secondly, it provides a narrative of the British Rail episode that discusses [End Page 435] the main features of nationalization, privatization, and statutory regulation. However, this narrative is narrowly focused in order to concentrate attention on the main institutional failings and successive attempts to repair the damage. It will be suggested that the deep-rooted problems encountered in regulating a fragmented, loss-making railway expose the limits of regulation, and perhaps the limits of the privatization project in the United Kingdom. The Labour government continues to declare its commitment to public/private partnerships and free market principles, but we will see here that in a number of key respects, the levers of control are reverting back to government.
I. Political Accountability and Ministerial Responsibility
When considering regulation and accountability in this context, it is important to remember that the fundamental underlying issue is the protection of an important public interest which can be identified in distinct ways. This interest can be defined in terms of the preservation of a railway that serves the public and forms an important part of the nation's transport infrastructure. And obviously, the public interest requires the efficient and safe operation of the rail network. In addition, large sums in public subsidy have been and continue to be spent on the railways. Finally, there is a public interest in the control of a monopoly power. In an important sense we are concerned with the capacity of government and of Parliament to safeguard the public interest defined in all these ways.1 In the United Kingdom, the convention of individual ministerial responsibility is the constitutional mechanism for establishing accountability between political decisionmakers and professional civil servants responsible for implementing policy. Further down the policy chain, accountability extends in varying degrees to "next steps" agencies as reconstituted administrative units within the civil service; nondepartmental governmental bodies, including regulators; and to certain aspects of policy to devolved government and local government.
In a nation that functions without a codified constitution, individual ministerial responsibility has developed as part of an evolutionary process into an important [End Page 436] constitutional convention.2 A.V. Dicey, writing in the nineteenth century, noted that "the point of defining, scrutinising and controlling public power was not to further responsiveness, representativeness and participation. Rather, the aim was to establish predictability in the exercise of power and to limit the scope of political decisions."3 In essence, a model of the constitution was conceived that sought to accommodate the existence of discretionary public power by the device of ministerial responsibility, and this "complemented harmoniously, without altering in essence, the Dicean concept of the rule of law. While the courts policed the boundaries of ministerial...