Accountability Ersatz

The Court Challenges Program shows accountable government is no substitute for a small government

Over at TheCourt.ca, Nicholas Hay offers a qualified and nuanced defence of the Court Challenges Program, which recently relaunched by the federal government. I have criticized the Program here and elsewhere, as have others ― for example the National Post’s editorial board (which mentions some of my arguments). Mr. Hay responds to one of my criticisms by arguing that the Program would benefit “an expansion to include all Charter rights” ― but this only meets my concern that it plays favourites with the constitution half-way, if there, because it would still be objectionable for the government to indicate that it values the enforcement of Charter rights more than that of the federal division of powers. In any case, in this post, I will not re-argue that. Rather, I’ll make a different point, which isn’t only about the Court Challenges Program alone, but which Mr. Hay’s argument brings to mind.

Mr. Hay argues that “the very crux of the Program is government accountability”. To allow, and even to help, citizens challenge unconstitutional government action means making the government answer for its decisions. Unfortunately, Mr. Hay adds, the Program risks being implemented in a way that pays insufficient heed to concerns about accountability within its own functioning. He argues that there is a “need for an enhanced, accountable selection process that will appoint disinterested members” to the expert panels that choose the cases the Program will fund. In addition “the Program should be open to regular review by the Auditor General, and the files should be open to the public under the Access to Information Act”. And when it comes to making the actual decisions about which cases to support, “the Program needs a robust method of allocating subsidies, and tighter spending rules, to ensure support for those truly in need, regardless of what side of the issue they’re on”.

It is hard to disagree with these recommendations, if one accepts the premise of the Program’s existence. But they show, I think, an additional reason for why that premise is worth challenging. Mr. Hay’s argument is, in effect, that the Program, a necessary or at least a most useful form of government accountability, generates demands for further accountability mechanisms in order to secure its own legitimacy. The watchers must be watched. And then, those who watch the watchers must, presumably, be watched in their turn. It’s not enough for an “accountable selection process” for the Program’s expert panels to exist: someone needs to keep an eye on what results it produces. It’s not enough for the Program’s expenses to be audited: someone needs to read the reports. It’s not enough for the Program to be subject to the Access to Information Act: someone needs to put in those requests. Of course this isn’t a flaw of the Program as such, or of Mr. Hay’s proposals to improve it. The same goes for any government accountability mechanism. And, you might think, accountability all around is good; we want as much accountability as we can get, don’t we?

But there can be too much of a good thing. Who will have the time to dig into the reports on the selection of expert panels, the Auditor General’s reports, and the further reports on the selection of cases the Court Challenges Program funds? The Program is a tiny sliver of the federal government’s total spending; most people are probably unaware of its existence; even those who, like journalists, are aware of it have bigger fish to fry. More accountability mechanisms means more things to keep an eye on, more work, more resources consumed. And the time and resources of the relatively few people or organizations with the expertise to keep an eye on the Program may well be better spent on doing other things. At some point, the margin accountability returns on additional accountability mechanisms are likely to become nil or even negative.

My point is not that we should reject Mr. Hay’s proposals for improving the accountability of the Court Challenges Program. It is, rather, that we should be skeptical of the  Program itself, and of any other mechanism that creates the need for an accountability ratchet that is likely to become counterproductive if not self-destructive. Accountability mechanisms that are part of government are still part of government, and they deserve as much skepticism as any other part of government. Their multiplication, like the growth of any other sector of government operations, creates potential for abuse, and makes government more difficult to oversee and to control. Sometimes, like other government functions, accountability mechanisms are necessary and beneficial. But it is always useful to ask ourselves whether any given one really is, and perhaps even to start with a presumption, albeit a rebuttable presumption, against government intervention. The reasons I once outlined for having such a presumption in the case of government provision of goods and services mostly apply to accountability mechanisms too.

If you have borne with me this far, you probably want to ask: isn’t this whole argument counter-intuitive to the point of absurdity? Mustn’t the government be held to account, whatever the problems attempts to do so engender? Given the government’s scope and power, aren’t accountability mechanisms a necessary safeguard against abuse? But here’s the thing: I don’t think we should accept the government’s scope and power as a given. The fewer things government does, the fewer issues there are to hold it accountable on, and the more readily external accountability mechanisms ― whether the media or citizens suing the government on their own, without its assistance ― are able to deal with it. Instead of having a Court Challenges Program to hold government to account when it legislates, and then additional accountability safeguards to make sure the Program works as intended, how about we have a government that legislates less, and thus is in less need of being held to account? As Ilya Somin says, smaller government is smarter. Or, as one might also say, an accountable government is no substitute for a small government. It is, at best, an ersatz.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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