Constitutionalising regulatory governance: the case of the Victims’ Commissioner

Commissioners sit at the heart of multi-level governance in England and Wales in providing regulatory links between identifiable policy constituencies and government. They are public scrutiny bodies that seek to set and uphold standards for a wide range of public services but, in practice and by design, have very few powers to enforce those standards. This article explores the varying powers of what we term “special interest” commissioners. It focuses on the constitutional nature and powers of the Victims’ Commissioner contrasting these with those of other commissioners. Drawing particularly on Black’s innovative analysis of ways of constitutionalising regulatory governance frameworks, and with reference to the literature on “guarantor institutions”, it highlights inconsistencies within the constitutional position of the Victims’ Commissioner. While these are not unique to this body since, as we will demonstrate, there is no one constitutional arrangement for a special interest commissioner, they are of particular significance given current debates on victims’ rights, the call for a more robust code of such rights and Parliamentary consideration of the Victims’ and Prisoners Act 2024. They also speak to a wider implementation gap within prevailing multi-level governance mechanisms. This article suggests that this could be addressed, in part, by strengthening commissioners’ ability to enforce standards as well as to exert influence, and by ensuring that, following Black, commissioners’ work is more closely aligned with constitutional values and norms. The Victims’ Commissioner would then have a clearer role on behalf of, and for, victims and ensure respect for constitutional norms in the criminal justice system.