Executive Perspectives on Balance in Oversight and Accountability
A working paper for a
discussion forum on achieving balance in accountability and oversight
By Marcel Chiasson and Alison Smith
2 Executive Perspectives on Balance in Oversight and Accountability Executive Summary
• Accountability has been a sustained focus of government for decades and in 2006 the Federal Accountability Act introduced a higher degree of
accountability than was previously in place at the federal level, including the creation of new Agents of Parliament and other independent guardians.
• Agents of Parliament and other independent guardians have made important contributions to oversight, but there are also some unforeseen or unintended consequences of their work
• Agents of Parliament have become more muscular since the FedAA.
• The reporting of independent guardians can be very confrontational; this
“gotcha” approach is sometimes said to have replaced good policy debate.
• Many departments note an imbalanced emphasis on reporting, which demands significant resources.
• Agents exercise their jurisdiction vigorously, which results in public service leaders and managers not being able to spend as much time on the mandates of their organizations.
• Agents are seen by some to be weakening and even de-legitimizing the parliamentary system, notably with respect to the role of committees and individual parliamentarians in the oversight of the government.
• Suggestions for more efficient and effective accountability and oversight include: working better with existing resources; improving coordination and planning; addressing relationships of independent guardians with the public service and with parliament; and periodically rethinking the roles and mandates of independent guardians.
3 Executive Perspectives on Balance in Oversight and Accountability Introduction
The Institute on Governance (IOG) is working to facilitate a dialogue on the evolving balance in accountability and oversight, reporting burden and the relationship between Agents of Parliament and the public service. The superstructure of rules, oversight and independent “guardians” has been growing since Program Review and HRDC’s grants and contributions controversy. Many of the resultant institutional arrangements and policy instruments are reaching a point of maturity.
Several years into this focus on public accountability, now is a good time to assess and reflect on the broad array of institutional arrangements in terms of their
contribution to good governance, the management of the public service and the practical impact of the reporting requirement.
A discussion of the cumulative effect and value of our systems of oversight and accountability is needed to review what has been achieved and what requires a renewed focus.
To contribute to the discussion, from February to April 2011, the IOG solicited the views and perspectives of high-level stakeholders on the cumulative effect and value of our systems of oversight and accountability. While the research design included representation from parliament, the public service and independent guardian
organizations, current leaders of independent guardian organizations were reluctant to participate. As a result, the actual interviews conducted included only a small number of current or former guardian leaders. Other participants included Officers of
Parliament, current and former deputies and associate deputies, members of Departmental and Agency Audit Committees and some academic specialists.
Interviews were done on a not-for-attribution basis.
The interview findings have been grouped into broad themes. Paraphrased quotes are included in the endnotes.
4 Theme Discussion
General
Accountability The Federal Accountability Act (FAA)i, introduced in 2006, introduced a higher degree of accountability than had
previously been in place, though accountability has been on the radar of government for a long timeii. The FAA has resulted in the introduction of a number of new Agents of Parliament (AoPs)iii; some contributors noted that the recent wave of minority governments has resulted in changes in how parliament does its work, and has encouraged the proliferation of independent guardians.
Knowledge and skills
Independent guardians have made a number of important contributions to the goal of federal accountability. They have made government departments very conscious of how they use resources. Additionally, there is greater knowledge amongst deputies of risk controls and audits. The skill-set of Deputy Ministers (DMs) has changed from being highly skilled in issue management to having more sophisticated
management skills.
Purpose and Mandate (Oversight)
The origins and purposes of guardians are not always clear, and many interviewees raised the question “who oversees the overseers?”iv Another concern was that there is no periodic review of the mandates of independent guardians.
Roles Clarity of mandates
While there are a number of roles served by independent guardians (see our companion working paper describing Independent Guardians in Canada), their overarching purpose is to hold the executive branch to account.
Many interviewees noted that Agents of Parliament and other guardians have become more muscular in recent yearsv. The roles of guardians, while somewhat defined, can be
interpreted differentlyvi. Some guardians were seen to be overstepping their stated mandates.
From
monitoring to As a consequence of their role of holding the executive to account, in a partisan, minority government period, some
5 challenging suggest that independent guardians have become weapons
(‘bats’) for the Opposition to use against the government.
Conversely, others have suggested that independent guardians influence opposition partiesvii to advance their respective agendas.
Consistency There is inconsistency in the rules of engagement and their application by independent guardians, with the most
formalized being those of the Auditor General.
Reporting (Adversarial)
Style Interviewees often highlighted the confrontational nature of much of the reporting of independent guardiansviii. Some suggest that guardians feel the need to justify their existence by finding problems and shining the spotlight on them. While they agree it is important to expose wrongdoing, it was noted that this can go overboard and big public issues can be made out of small, relatively normal problems.
Work-effort and Cost
Many departments note that there is an imbalanced emphasis on reporting that uses significant resourcesix. There is overlap in some cases, and there can be an endless “to-do loop”
when it comes to reporting and follow-up action plans.
Treasury Board Secretariat is seen as adding to the continuation and duplication of this burden when they are obliged to implement changes system-wide. This can result in energy being taken away from the actual mandate of an
organization, or from the ability to innovate, as so much time is being spent fulfilling multiple reporting requirementsx.
Reception of guardian reports
Not all guardians have a committee to whom they typically provide reportsxi, though they do have access to MPs and Senators.
Consequences
Risk aversion Many individuals commented that guardians often serve a
“gotcha” role, that is, exposing wrongdoing in a very public wayxii. This has a number of consequences, such as
deepening risk-aversion in the public service.
Distraction from Guardians are seen to exercise their jurisdiction vigorously,
6 departmental
and agency mandates
and as a result Deputies often feel they must pay attention to each independent guardian all the time. It can therefore be difficult for public service leaders and managers to focus on the mandates of their departmentsxiii.
Changes for
Deputy Heads The role of Deputies is changing, with senior officials now accountable to parliament for the administration of their
respective departmentsxiv. They are called on much more often to appear before Parliamentary Committeesxv than they were when under majority governments. While this has reportedly resulted in a behavioural change at the DM level, this cultural change has not permeated deeper into the departments.
Public Policy Implications Reduces policy
debate
The “gotcha” approach is said to have replaced good policy debate. The high degree of checks and balances does not address broader public policy challenges and in fact has the effect of blurring good public policyxvi.
Public service neutrality
There is a sense that the public service is no longer seen as neutralxvii and professional but instead needs to be overseen from the outside to make sure things are being done correctly.
Independent guardians get more media and public support and attention than public servants.
Institutions of Parliament Infallible
‘outsiders’? There was a great deal of discussion about how guardians fit, or do not fit, with Canada’s parliamentary system. Agents of Parliament in particular are seen by many to be weakening and even de-legitimizing the parliamentary systemxviii. In effect, the work of parliament has been outsourced to Agents who, in the eyes of many in and out of government, speak the truth and are in some way infallible.
Parliamentary system
vulnerable?
Some interviewees commented that the existence of many of these independent guardians expose a profound
misunderstanding of the parliamentary model of government.
In this sense, guardians can be seen to be in conflict with the interest of parliamentxix.
Over-reliance Committees are not seen to be doing their jobs, particularly
7 on guardians with respect to holding the government to account. There is a
great deal of reliance on independent guardians and, as a result, committees are losing their skills and corporate
memories. Some suggested that independent guardians are compensating for poorly resourced or poorly operating committees.
Weakness in
direction The lack of leadership on committees was also addressed, and some interviewees suggested that committees are taking direction from independent guardians as opposed to driving the proceedings themselves. This has led some to conclude that guardian oversight has replaced committee oversight, creating fragility in the systemxx.
Increased scrutiny, tension
Many public servants suggested that they are prepared for a close and critical examination of departmental estimatesxxi, for example, but that this does not take place. The interactions between senior public servants and committees have become more frequent, as noted above, as well as tenser. In some cases, committee members reportedly treated public servants very disrespectfully.
Suggestions Committee use of research resources
To begin, a simple suggestion is to work better with existing resources; for example, Parliamentary Committees could better use their funds and powers. Committees should also consider reforms that would make them strongerxxii, for while they do have significant resources at their disposal that they do not yet use, they could be strengthened on an institutional and leadership level as well.
Guardian – public service relationship
Addressing the relationship between independent guardians and the public service would be usefulxxiii, as well as the relationship between guardians (particularly Agents of
Parliament) and parliament. Working arrangements should be well defined and codified. Interviewees said that re-
instatement of trust, better inter-guardian coordination and planning would be very beneficialxxiv. Guardians and the public service require some common goals along with reasonable expectations that would be properly scoped so agents could better understand what the public service can do in response to their recommendations.
8 Periodic
reviews of guardian functions
Some interviewees suggested that there might be too many independent guardiansxxv, and rethinking their roles and mandates periodically would be useful for their overall effectiveness.
Endnotes:
i The FedAA codified accountability for government. One of its intents was to address the need for a clearer accountability for deputy heads. As a result, all Treasury Board policies were revised via the Treasury Board Secretariat (TBS) Policy Suite Renewal. The
Accountability Officer model was implemented and most recently, in 2010, the Financial Administration Act was amended to reflect the accountability of Chief Financial Officers across the federal government.
ii The emphasis on accountability started before the 2006 Federal Accountability Act (FedAA).
Before that, government had started thinking about having an increased focus on
management, using 360-degree feedback to feed into DM appraisals, and culturally seeking and emphasizing ‘people management’. Good management was already being seen to be as important as policy ability in good deputies, and a properly functioning department should be able to self-police.
iii These include the Public Service Integrity Commissioner (2007), the Conflict of Interest and Ethics Commissioner (2007), the Commissioner of Lobbying (2008) and the Parliamentary Budget Officer (2008). Several new policies were added as well, to bolster particular files like Official Languages (2005), Information (2007, 2008), Values and Ethics Code for Public
Service, and Protection of Privacy (2008). This broadened the range of oversight significantly with each agent having clear mandates without too much overlap, and may have buttressed the accountability movement that had already been already taking place prior to 2006.
iv Some frustration was expressed that Government seems hesitant to do a periodic review of the mandate of any of these organizations. It is unclear inside and outside the public service who is looking at the performance of agents.
v The Auditor General’s role is seen as demanding for departments but has recently taking a positive approach by meeting and coordinating with Departmental Audit Committees (DACs) and considering their advice.
vi Even if the roles of the Agents are clear, different individuals, occupying the same role, might well take different approaches to a similar mandate.
9
vii Agents are seen to use their roles to influence opposition parties to get at policy issues. In turn, MPs get at government (the Executive) through grilling of central agencies like TBS at Standing Committees.
viii These reports tend to focus only on problems. Some say there is a need to find a way of getting beyond that, as a means of saying ‘this isn’t all that matters’. While we should uncover wrongdoing, we should realize there is a degree of normality to mistakes.
ix For some, the added burden of oversight has not staunched or arrested impropriety to any degree and thus they wonder if the additional oversight is working. But even if we know that it is not working, we react by tightening things even more. We are now in a conundrum because one cannot just say that Agents of Parliament should no longer exist, because that won’t work.
x One interviewee gave three examples for why the reporting burden has accelerated so quickly; first, the Federal Accountability Act has created new standards; second, the minority parliament has created a negative environment in the committees; and third, if citizens see something like the case of the Public Integrity Commissioner, they think there must be
something wrong. For this person, the entire reporting environment has created a culture that results in an imbalance in reporting and accountability.
xi All Agents’ reports are tabled in the House of Commons and Senate and reviewed by Committees. Committee members can further explore the key concerns of Agents in the course of their work.
xii Every time a Commissioner finds a problem, the “Parliamentary Posse” swoops down after the battle to shoot the wounded. Instead of managing to zero mistakes, we should manage to the optimal number; it is very hard for an MP to say this.
xiii While the creation of these functions was intended to address accountability, there has been a cumulative impact on deputies, senior officials and departments. The additional oversight has changed the way senior officials interact with Agents and with Parliamentary Committees. As one person said: “It must be difficult for leaders/managers in the public service to focus on their core mandates while feeding the oversight infrastructure”.
xiv The traditional ‘neutral’ role of public servants, where bureaucrats advised in anonymity (fearless advice) and ministers took accountability for their own decisions was raised. This role is morphing now as Agents raise issues and then Committees draw the previously anonymous and neutral public servants into Committee deliberations that question the senior officials, not the ministers. While ministers are still accountable for their policy decisions, senior officials are clearly now accountable for their departments. Thus, the current situation with Agents has not only created formal systems of accountability, it has changed the responsibilities of public service deputy heads.
xv To respond to the additional level of scrutiny, deputies require new skill sets. Most deputies spent their early careers in majority governments when deputies rarely appeared before
10 Committees. Then, they sent lower level officials. Now, they see themselves as having
relatively little experience in facing agent and committee challenges. The Canada School of the Public Service is now putting on courses to assist deputies and assistant deputy ministers to prepare for these sessions. Where before deputies could be policy ‘wonks’ and succeed, now deputies need tools to support them to prepare for the cut and thrust of Parliamentary Committees pursuing findings of Agents of Parliament.
xvi Such rigour in checks and balances is not asking the broader policy questions. The multiplicity of oversight is high, the compliance burden is onerous and the focus is in the wrong place.
xvii The officials in government are more risk-averse and public service is in a position now where, cumulatively, it is no longer seen as a ‘neutral’ service. The public service has moved from being values-based and quite autonomous to being burdened by multiple government oversight lenses: political, administrative and parliamentary.
xviii The creation of these Agents has introduced a new creature into the ecology of
governance. In a model where parliament is responsible to ensure good government, this role has in effect been outsourced to specialized bodies that are acting as ‘free agents’. The problem is that the government has created Agents versus using the existing framework, resulting in a proliferation without a rational fit in the democratic system. In this sense, Agents de-legitimize the role of parliament. Parliament depends on them because parliamentary committees have insufficient staff. Even though not an official Agent, the PBO acts as a foil to the Department of Finance. Rather than having a well-resourced Finance Committee, we have set up an oppositional arrangement between two bodies, creating tension in and weakening the credibility of the system.
xix Rather than assist parliament, associated with the executive, we create Agents, which in turn creates fragility in the system – vulnerability. While the accountability and oversight intentions are correct, the designers did not intend this result.
xx One view is that parliamentarians are not doing as much of their own reviewing as in earlier times. Instead, they are relying on reports from Agents and in so doing may be losing their own ‘corporate memory’ and subject-matter expertise. Parliamentary committees often appear to be following the lead of Agents rather than setting the agenda based on their own observations.
xxi Some say they would welcome a parliamentary committee ready to discuss their main estimates in depth. One interviewee recalls talking to colleagues in Australia where they use two to three days, up to three times a year, to discuss departmental estimates. In Canada, given the quality of documents departments have prepared, the realization that
parliamentarians aren’t taking it seriously is seen to be saddening and unfortunate.
xxii Some suggest that rather than have an increase in agents, the inverse is needed; whereby parliamentary committees would have larger staff, or could better access and use their existing resources, to support their research into issues, creating more interaction with the
11 public service, professionalizing their views and making their determinations less partisan and more evidence-based. In the future, increased support for parliamentary committees might attenuate the need for the watchdog model, which is by definition one that makes public servants ‘look over their shoulders’ and implies something needs to be guarded (because it isn’t being done well by the public service). By properly resourcing committees, parliament would no longer have to delegate their responsibilities to agents.
xxiii A more systematic formalization of the relationship between agents and the public service
will get them out of this “gotcha” role that agents are made to play. There should be a
different type of relationship, one that does not fetter the independence of the agents, but one that is more systematized to how reports are done (for example, departments can see AG reports and fact check, whereas they can’t see PBO reports and can therefore be caught off- guard). The public service should have a professional relationship with the agents, e.g. the AG, where they are able to disagree. But this requires political support from ministers and mature parliamentarians. Understanding the role of agents might be helpful: are they there to police senior officials, to improve understanding of parliamentarians, or to facilitate dialogue in given areas? Would agreements on protocol with Agents limit their achievement of their goals?
xxiv There should be more, not less, information flow, among agents and between agents and departments; consistent protocols for fact checking of reports; and ways of dealing with and resolving differences outside of the courts and media.
xxv Even parliamentarians are finding it difficult to ‘keep track’ of who all the Agents are and what they are doing.
