Public Accountability in a Minority Government
by Henry E. McCandless
(Reprinted from Canadian
Parliamentary Review, Autumn 2004)
Minority governments provide parliamentarians with a better
opportunity than majority governments to hold the executive effectively
to account. This article argues that the government will no longer
be able to rely on its majority in parliament to avoid adequate
answering for its actions. Nor will it be able to argue that that
accountability is too complex for Members of Parliament or that
citizens do not expect anything beyond the existing ritualized
processes in the House of Commons.
In their study on accountability Patricia Day and Rudolph Klein
defined it as "a tradition of political thought which sees
the defining characteristic of democracy as stemming not merely
from the election of those who are given delegated power to run
society's affairs ... but from their continuing obligation to explain
and justify their conduct in public.1
Explaining fully and fairly is implicit. In a minority government,
"accountable government" can now mean something - but
only if parliamentarians wish to understand what public accountability
means and does not mean, and they see that holding to account is
fully possible. If the combined opposition members require adequate
public accountings from the executive government they must be given
- unless the Prime Minister feels comfortable going back to the
polls, saying, in effect, "I wish to dissolve Parliament and
cause another election because I do not see the need for ministers
of the Crown to meet a standard of public answering that Canadians
have the right to see met."
The Duty to Hold to Account
Accountability, as the obligation to answer, flows automatically
from responsibility, the obligation to act. Public accountability
is the obligation to explain fully, fairly and publicly, before
and after the fact, how responsibilities that affect the public
in important ways are being carried out.2 This means explaining
before the fact intentions and the reasoning for them, and the performance
standards intended for the discharge of the responsibilities. After
the fact it means explaining results, as the accountable see them,
and the learning gained and how it was applied.
Holding to account means exacting and validating the answering
that is needed. It is critical for two reasons. First, it gives
elected representatives and citizens information they would not
otherwise have that helps them to make sensible decisions. George
Washington put it succinctly two centuries ago: "I am sure
the mass of Citizens in these United States mean well, and I firmly
believe they will always act well, whenever they can obtain a right
understanding of matters...." Holding to account is not an
attempt to straightjacket the cut and thrust of politics or ignore
the legitimacy of competing political aims. It is simply a nonpartisan
discipline that requires those with important responsibilities to
explain publicly and honestly their intentions and actions. Access
to information requests are no substitute.
The second reason for holding to account is equally important.
It imposes a self-regulating influence on those legitimately asked
to account. People required to report publicly and adequately on
their responsibilities will want to say something praiseworthy.
Since what they say about their intentions and results will be subject
to scrutiny and public validation by elected representatives and
knowledgeable stakeholder organizations, exposed lying brings high
personal cost. In the parliamentary context, as elsewhere, lying
can fairly be defined as any intentionally deceptive message that
is stated3 Holding effectively to account causes intentions leading
to harm or unfairness to be exposed. Thus exposed, they tend to
self-destruct.
Since accountability is nonpartisan, it cannot be labelled a political
policy initiative to be defeated. Members of Parliament have always
had the duty to hold the executive government fairly to account,
but in today's world they must recognize that they are also publicly
accountable themselves for their diligence in their scrutiny and
control roles, and for their intentions in interventions affecting
fairness in society. Moreover, once citizens understand the importance
to them of adequate public answering from authorities, they will
give no quarter to governments that do not account to a reasonable
standard of public answering.
As things stand, we see statutory annual financial reporting from
governments that is not the basis for legislators to make decisions
from among alternatives, and broad statements of government program
intentions through the Estimates processes. But we cannot expect
the intentions statements, reasoning and implications to be diligently
assessed when the government has a majority in the legislature and
controls the decision-making of all review committees.
The task for legislators is to hold to account effectively. An
opposition party with only a single member can publicly ask responsible
ministers for adequate accountings, and pursue those questions until
the media take notice and some kind of response is forced. The moment
that happens, the answering can be publicly validated for fairness
and adequacy by knowledgeable organizations related to the issue
or issues, and the self-regulating influence kicks in. But the right
accountability questions have to be asked. With a majority government,
a vote of confidence on the government's refusal to answer adequately
for its responsibilities would obviously fail.
To the extent that the legislature allows the executive government
to avoid accounting adequately, auditors general are forced to do
government's reporting job for it. They do this by assessing government's
performance direct, and reporting to the legislature failures and
weaknesses. But, like access to information requests, direct audit
covers only small parts of a government's responsibilities. And
without reasonable answering standards for government, the benefit
of the self-regulating influence is not achieved.
Elected representatives cannot pass the accountability buck to
their legislative auditors. Auditors general serve the accountability
relationship between government and the legislature, but stand outside
it. Their fundamental task is to act for the legislature in professionally
validating (attesting to) government's reporting on intended and
actual use of public money. But since public accountability is politically
neutral, their task is also to propose to the legislature the standards
for government's reporting for its responsibilities before and after
the fact that citizens are entitled to see met. It is then up to
the legislature to install in the law reasonable standards for full
and fair government answering, and to act to ensure that they are
met.
While procedural reforms to give backbenchers more power have been
proposed and some have been implemented, accountability and holding
to account have not progressed. In a minority government situation,
the focus shifts from MPs asking rhetorical questions and shouting
at each other across the floor of the House to identifying and empowering
those MPs who will work effectively with members of other parties.
But collaboration needed to make government work does not replace
the need for formal and adequate public answering and the task of
exacting it.
Accountability Issues in Parliament
Accountability standards are needed in three key areas of parliamentary
scrutiny: management control within the executive government, proposed
government policy and regulations, and the passage of legislation.
There are of course other accountability areas, for example the
management of both houses of Parliament, and all can be encompassed
by a federal Government Accountability Act.
Accountability for management control in government. In
its simplest terms, management control means ensuring that what
should happen does happen, and that what should not happen, does
not. However, team members of an early 1990s Auditor General study
in management control in the federal government were told by a seasoned
MP that so long as backbench MPs felt impotent, they could not be
expected to attach importance to the issue of management control
in government. But much has happened since then that should cause
MPs to understand what constitutes reasonable standards of management
control at the minister and deputy minister levels. In recent years
federal and provincial executive government failures in management
control have produced national disgraces.
Tens of thousands of Canadians had their lives ended, truncated
or wrecked by hepatitis C and HIV Aids in the early 1980s because
the federal government failed to regulate (that is, control for
safety) the Canadian Red Cross Society that was distributing lethally-contaminated
blood and blood products. The federal executive government had both
the duty and legal power to regulate the Red Cross for safety. Despite
the fact that it was clear by late 1983 that there were feasible
tests for detecting hepatitis C in transfused blood, in 1998 every
government member in attendance in the House of Commons voted against
compensation for hepatitis C victims harmed before 1986 - even though
Justice Horace Krever had recommended it in his inquiry report.
Government attention to creating a credible replacement national
blood agency did not include standards for its public answering
for blood safety.
In 1992, twenty-six Nova Scotia miners were killed in the Westray
coal mine, described by a UK mining consultant in the inquiry as
an "absolutely unbelievable disgrace." The responsible
ministers of the Crown had failed to do their statutory control
duty for workplace safety. Then came Walkerton in Ontario.
In the federal $1 billion jobs-creation spending by Human Resources
Development Canada, labelled in 1999-2000 as a "scandal,"
the responsible ministers and deputy ministers failed to install
the degree of management control that ensured that the money would
be properly spent and represent value for money. Lack of federal
ministerial public accountability for control also allowed the federal
sponsorship spending disgrace that became a major issue in the 2004
federal election campaign, triggered by the Auditor General's February
2004 report on the spending.
A common denominator in all these cases was the failure of the
responsible ministers to report to the legislatures their management
control standards and why they thought their diligence standards
were adequate. The needed public accountings would have included
the extent to which they had informed themselves for their control
duties. Thus the public did not learn the risks to lives and public
money in time to act, and the failure of the legislatures to require
the responsible ministers to account meant that the self-regulating
influence of public answering was lost. The legislators then allowed
the ministers after-the-fact "plausible denial" ("I
didn't know.")
Deputy ministers have the same obligation to answer for departmental
control responsibilities at their level, but they too were not asked
to explain what they thought their control responsibilities were
and whether they thought they were discharging them. If ministers
do not know what their management control responsibilities are,
it is the job of their deputies to tell them.
If the deputies do not know, or do not know their own commonsense
control responsibilities, it is their job to find out. Management
control responsibility and accountability in government has been
ignored in recent years in part because civil servants have been
defining control as "command control," and therefore something
out-dated. Preaching "best practices" does not ask anyone
to meet a specific standard.
A Public Accounts Committee meeting twenty years ago offered a
good example of holding to account. Louis Desmarais, the Committee's
Vice-Chairman, had been the head of a major Canadian corporation.
He asked the newly-appointed deputy minister for the Canadian International
Development Agency, "What would you say are your most important
management problems, and what are you doing about them?" The
question is equally applicable to the responsible minister because
it deals with self-informing diligence (to prevent plausible denial),
ability to identify and rank problems, and diligence in management
control. The value of the Desmarais question is not just that it
was a nifty question. An official's response can be audited for
its fairness and completeness by those who know the organization,
including the Auditor General.
If citizens do not trust their institutions, society cannot work
properly. In view of the recent control failures in the federal
government, it is reasonable to expect opposition parties in Parliament
to exact from the executive government what the Prime Minister thinks
are the appropriate control and answering standards at the minister
and deputy levels, and assess them. The control and reporting standards
that result should then be in included in a government accountability
Bill. The legislative review process would include the Auditor General's
view of the adequacy of the standards proposed to Parliament, and
legislating them would allow the Auditor General to audit compliance
with Parliament's standards.
Accountability for policy intentions. It is a matter of common
fairness that those whose intentions would affect the public in
important ways should publicly explain their intentions and their
reasoning before the fact.
Citizens can then act to commend, alter or halt the intentions.
Thus for intended government policies, the responsible ministers
should adequately explain to Parliament whose needs or wants they
intend to honour, and whose they do not. This can be done through
a standard-form "equity statement" that sets out for debate
the intended fairness trade-offs. Ministers' accountings would include:
- who would benefit from what they intend, how, and why they should
benefit, and who would bear what costs and risks, and why, immediately
and in the longer term
- whether their intended action complies with their mandate, the
intent of the law and, whenever applicable, the precautionary
principle
- the extent to which they have informed themselves for their
responsibilities and decisions
- their planned achievement and intended performance standards
- who would answer publicly, for what responsibilities, if their
action or authorization intentions were to go ahead
After the fact, it is reasonable that the responsible ministers
explain to Parliament:
- the results and impacts from their effort, as they see them,
and why they were different from those intended, if that is the
case
- the learning they gained and how they applied it
Again, it is not difficult in minority governments for legislators
to collectively exact this public accounting to produce both the
needed public information and the self-regulating benefit. If MPs
must collaborate on acceptable policy, they can certainly collaborate
on nonpartisan accountability obligations. Public interest organizations
related to the policy issues can then go beyond their usual forms
of alerts to citizens and publicly validate government's assertions
made before and after the fact.
Because accountability is nonpartisan, the Auditor General does
not express an opinion on the merits of political policy. But she
or he can validate important government assertions to the extent
that commonsense interpretation of the AG's statutory mandate suggests.
As with control responsibilities, the duty of ministers to meet
a reasonable standard of answering in their public accounting of
intended policy should be legislated in an accountability Act.
Accountability provisions in legislation. Existing legislation
usually lays out powers, responsibilities and restrictions for specific
people and types of people. These all have to do with the obligation
to act. The requirement to answer publicly for responsibilities,
and to a standard, has been missing in the law. The answering requirements
that do exist in legislation are usually confined to after-the-fact
financial statements or other types of reports on activity (which
doesn't mean accomplishment) that say nothing about fairness intentions
and results.
An umbrella Government Accountability Act can require that each
Bill introduced into Parliament, whether for safety regulation,
policy, justice, environmental stewardship or administrative tasks
that affect the public in important ways will contain a standard
accountability reporting section.
The heading can be as simple as "Public Accountabilities."
The section would set out who is to answer publicly, how, and when,
for the discharge of the responsibilities explicit or implicit in
the Bill. The same public accountability section would also be standard
in regulations under the Acts.
For example, those given important statutory responsibilities should
regularly report whether, in their view, they have met reasonable
performance standards. These would include informing themselves
for their decision-making, to a reasonable standard of self-informing.
They should also report the performance standards for those they
oversee, and report whether these are being met.
Whistleblower protection legislation will be ineffective if it
does not require the responsible ministers and deputies to publicly
assert whether their processes for protection and prevention of
retribution actually work and why, and if the legislation does not
require independent validation of these assertions.
A duty that can be reasonably expected of the Senate of Canada
is to specifically assess the adequacy of the accountability sections
in Bills coming before it. The happy fact of public accountability
as a society imperative is that it is politically neutral and does
not tell people how to do their jobs. Thus, in my view, a Governor
General could withhold consent of a Bill that clearly affects the
public in important ways but lacks the accountability provision
stating who will answer to the public, and to what standard, for
the discharge of the powers and duties the Act would confer.
Summary
MPs in the new parliament can work together on the important issue
of accountability, and legislate during the parliament a comprehensive
federal Government Accountability Act to buttress the public accountability
standards they agree on. The issue of the public accountability
of legislators themselves is beyond the scope of this article, but
is an issue that must also be addressed.
Having adequate and audited public answering from authorities is
a basic human right. It belongs in our constitution and in the UN
Declaration of Human Rights. But as a current practical first step,
our own elected representatives in all jurisdictions can install
in law the public answering obligation of authorities and the basic
standards for their accountability reporting. There is no reason
why Canada cannot be a model of effective public accountability
for the world. Moreover, Canada could show how the UN could take
on the important role of developing reporting standards for nations
to publicly account to each other for their intentions and reasoning.
The UN could also take on the role of validating the reporting,
to the extent possible. This would help install a self-regulating
influence for greater fairness across the planet.
Notes
- Patricia Day and Rudolf Klein, Accountabilities: Five Public
Services, London, Tavistock, 1987, pp.6-7.
- The 1975 Report of the Independent Review Committee on the Mandate
of the Auditor General of Canada defined accountability as the
obligation to answer for a responsibility conferred. It therefore
means reporting on the discharge of responsibilities, and to be
useful in a parliamentary context it requires explaining both
intentions and results.
- Sissella Bok, Lying: Moral Choice in Public and Private Life,
Vintage Books 1989 (Pantheon 1978).
Henry E. McCandless, MBA, CA is the author of A
Citizen's Guide to Public Accountability: Changing the Relationship
Between Citizens and Authorities (Trafford, 2002), and is
the General Convenor of the Citizens' Circle for Accountability
(www.accountabilitycircle.org). From 1978 to 1996 he was a Principal
in the Office of the Auditor General of Canada, serving for part
of that time as Parliamentary Liaison Officer for Auditors General
James Macdonell and Kenneth Dye. He has written extensively on public
accountability and on holding to account.
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