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Legislating the Answering Obligation
As the Citizen’s Guide notes in Chapter 5:
When we are serious about people's rights and obligations, we
legislate them unless we can rely on the common law to ensure
them. Since we have no common law on public answering and shouldn’t
wait for it, we must install legislation requiring decision-makers
in authority to answer publicly and adequately for the discharge
of their responsibilities.
This means legislating minimum public answering standards for
those whose decisions affect the public in important ways. Thus
far, however, legislation applying to authorities is a collection
of powers, responsibilities and restrictions for specific people
and classes of people -- all having to do with the obligation
to act or not act. The requirement to answer, and to a standard,
has been missing. The public answering requirements that do exist
in legislation are usually confined to the production of after-the-fact
financial statements, which say nothing about fairness intentions
and results, and requirements for annual reports on the "activities"
or "affairs" of the organization. Activity is not necessarily
effort in the public interest, and effort is not accomplishment.
The Citizen’s Guide proposes the following standards
for legislating answering requirements:
- Legislatures formally state to the public their expectations
for public answering within their jurisdictions.
- Ministers of the Crown or their equivalent executive in other
types of executive governments, immediately they are sworn in,
each report to their legislatures (which means reporting publicly)
their interpretation of their statutory powers and duties and
their statutory and commonsense public answering obligations.
This is the first indicator for legislators’ confidence
in the minister.
- All executive bodies (ministers and governing boards) overseeing
departments, branches, corporations and agencies of government
and entities controlled by government, and those bodies overseeing
municipal and regional corporations and the entities they control,
regularly and publicly account for the discharge of their responsibilities.
- The accountability reporting obligation applies to all entities
and public bodies that receive, directly or indirectly, a significant
part of their funding from the public purse. There are no excluded
entities.
- The overseeing governing bodies meet standards of public answering
reasonable to expect for their responsibilities, which include
holding fairly to account all entities they oversee.
- Governing bodies answer for fairness, efficiency and compliance
with the law. (where fairness responsibilities include safety,
health, justice and the environment)
- When the precautionary principle applies in governing bodies’
responsibilities, their public answering includes their compliance
with intent of the principle. (Contaminated blood and water
in Canada are examples)
- Governing bodies' answering includes reporting the extent
to which they inform themselves for their decision-making. (This
means that governing bodies will manage their information to
a standard.)
- Governing bodies report what they plan to bring about, and
why, their specific achievement objectives and key performance
standards, their actual results as they see them, and the learning
they gained and how they applied it. When what they plan to
do would affect the public in important ways, they explain publicly
their reasoning for their intended action through equity statements
or their equivalent.
- Bills introduced in a legislature have attached to them the
sponsoring minister’s or legislator’s publicly-challenged
equity statement or equivalent, whenever stakeholders can reasonably
expect legislators to use such a statement for their decisions
on the Bill. This statement of explanation of the Bill’s
intention becomes part of the public record when the Bill becomes
law.
- For each Bill, the legislature’s auditor gives to the
legislature committee dealing with the Bill his or her opinion
whether the government’s reporting of the Bill’s intentions
and reasoning has met reasonable standards of disclosure in
public answering. The auditor also reports whether the Bill’s
provisions for public answering by those who would be given
important responsibilities under the Bill meet a reasonable
standard of public answering. (These are politically-neutral
matters.)
The Citizen’s Guide also gives an example of answering
obligations propsed for installation at the highest legislative
level: that of a national constitution:
An Example of Feasible National-Level Accountability Legislation
The highest level of legislated public answering is at the level
of a country’s constitution. A written constitution with
a clear structure for amendments makes it reasonably simple to
show what public accountability law might look like. Since the
Constitution of the United States fits the bill, we can use it
to illustrate an accountability amendment, and the reasoning for
it. The basic reasoning for a 28th Amendment to the Constitution
comes from America’s own George Washington, cited earlier
-- if citizens have a "right understanding of matters,"
they will make sensible decisions. "Right understanding"
can be obtained in large measure from adequate public answering.
The reasoning for the law can be set out in a preamble.
A Proposed Public Accountability Amendment
to the United States Constitution
Whereas:
- The Constitution of the United States is designed to serve
the interests of the people and sets forth the nation’s
fundamental laws.
- The Fathers of the Constitution in 1789 expected the needs
of the nation to change and thus envisioned Amendments. An example
is the 19th Amendment, ratified in 1920, giving women the right
to vote.
- Citizens must be informed for their civic duty to ultimately
oversee their elected representatives, administrators and judiciary
at every level who are responsible and accountable for regulating
fairness in society.
- The implications of legislative, administrative, judicial
and business power in today’s world require that those
in authority affecting the public in important ways inform themselves
adequately and make clear to the public the outcomes they intend,
for whom, and their reasoning. This allows citizens, through
due process, to commend, alter or halt authorities’ intentions.
- Public accountability is the obligation to answer publicly
for the discharge of responsibilities affecting citizens, and
holding to account means that citizens exact fair, complete
and timely answering from decision-makers in authority. This
leads to greater public trust in the authorities.
- Adequate public answering is of such importance in achieving
a fair society that the public answering obligation must be
made part of the law of the land, which means being embedded
in the Constitution.
- An Amendment to the Constitution establishing fundamental
rules for public answering would support the intent of the Constitution’s
existing provisions. For example, Article 2, requiring that
the President "from time to time give to the Congress Information
of the State of the Union," reflects early constitutional
accountability intent at the Presidential level.
- An accountability Amendment would complete the needed balance
of authorities’ powers, responsibilities and answering
obligations. Clarity of all three is necessary to judge the
diligence of those in authority. The Government Performance
and Results Act of 1993 is an example of a specific set of public
answering obligations for those directing departments and agencies
of the federal government.
- Those with the obligation to account are the identifiable
persons (elected or appointed) who constitute the directing
mind and will of the entity whose actions are subject to public
answering. It is therefore identifiable people who account,
not a "government" or a "corporation."
- Because the obligation to answer tells no one how to do their
jobs, yet exerts a self-regulating effect on the conduct of
people in authority, a public accountability amendment to the
Constitution could be expected to:
- reduce deception by authorities and reduce citizens’
time, stamina and funds spent on lobbying and fighting,
- limit legislation or executive orders benefitting only
a few,
- improve elected representatives’ understanding of
intended actions,
outcomes and means and, ultimately,
- improve citizen respect for and cooperation with authorities,
and the development and deployment of the nation’s
human resources.
Therefore, an AMENDMENT 28 could be drafted to read as follows:
Section 1. Citizens of the United States significantly
affected by the intentions and decision-making of persons in elected
and appointed authority have the right to full, fair and timely
disclosure by those persons, and have themselves the responsibility
to act fairly on answering given in good faith.
Section 2. Persons directing the affairs of any level
of government in the United States, or directing the affairs of
business enterprises operating in the United States, have the
duty, when the action they intend or control would significantly
affect the rights, safety or well-being of citizens, to publicly
disclose before the fact the outcomes they intend, for whom, and
the reasons; their performance standards for bringing about the
outcomes; and, later, the results of their performance.
Section 3. The Congress shall have the power to enforce
this Article by appropriate legislation.
A similar law can be drafted federally for Canada.
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