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Independent Oversight and the Rule of Law

Wednesday, January 9, 2019
Scott Fulton, President

Scott Fulton

President, Environmental Law Institute

There has been a good deal of focus of late on the role of independent oversight in the administration of government operations. Sometimes oversight mechanisms are created in an ad hoc manner in response to particular issues, as with the appointment of an independent counsel. More often it proceeds under the established system of checks built into law to help ensure transparent, effective, and ethical effectuation of government authorities and duties.

The offices of inspector general that are attached to, but independent from, the various departments and agencies of the federal government serve as one key element of that architecture, along with the Standards of Conduct for Executive Branch Employees developed by the Office of Government Ethics that provide a consistent baseline of expectation, and a yardstick against which the IG community does its work. There is, I believe, consensus support for these mechanisms, and their state law counterparts, as vehicles for preventing or redressing fraud, waste, and abuse in government programs, but I thought I might reflect a bit on the importance of independent oversight in formation of rule of law.

Rule of law has been defined within the United Nations system as the “principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.” 

Rule of Law

This definition contains three related strands: the idea that law be consistent with fundamental rights; the notion that law be inclusively developed and fairly effectuated; and the importance of accountability not just on paper but in practice, such that the law becomes operative through observance of, or compliance with, the law. The three strands are best seen as interdependent: when law is consistent with fundamental rights, and is inclusively promulgated and even-handedly implemented, then the law will be respected by the community. Conversely, if the law is neither respected nor observed, then the societal values and objectives reflected in law will prove elusive. Ultimately, rule of law reflects a transformation of words on paper into action in the sense that the law, in effect, comes to “rule” or govern, as manifested by the conforming behavior of the regulated community.

Experience to date in the environmental setting permits a more granular understanding of the conditions necessary for formation of rule of law, as reflected by the consensus declaration contained in UN Environment’s 2013 Governing Council Decision 27/9. This decision recognized that for environmental rule of law to emerge, key “mutually supporting” governance features need to be in place, “including information disclosure, public participation, implementable and enforceable laws, and implementation and accountability mechanisms including coordination of roles as well as environmental auditing and criminal, civil and administrative enforcement with timely, impartial and independent dispute resolution.” 

If this formulation generally looks familiar, there is a reason for that: it is based strongly on the U.S. experience and reflects a set of messages that our government has for decades been propagating to the rest of the world based on our conviction that these are indeed the key ingredients. Notably, “environmental auditing” as used here refers to the function of auditors general, inspectors general, and other organs of government dedicated to stemming fraud, waste, and abuse in government programs. Behind this text was the recognition that, for many countries, corruption remains a major issue both generally and in the environmental context. Corruption compromises and masks environmental decisions, manipulates public awareness, clouds understanding not only of environmental conditions but also the efficacy of corrective measures, and distorts compliance assessment and commitment. So, even more than the absence of law, and more than the absence of resources, the lack of public integrity stands as the primary barrier to formation of rule of law and achievement of environmental quality around the world.

When we consider the remarkable improvements that we have achieved in this country, let’s give due credit to the system of rules and oversight mechanisms that help guarantee integrity. It’s certainly true that when you work in government, oversight can at times feel intrusive, distracting, and unwelcome. But wherever would we be without these checks?

Public integrity through independent oversight may well be the secret sauce in our rule-of-law formula, and is one of the key difference-makers around the world in advancing environmental quality.

[This piece originally appeared in the November-December 2018 issue of The Environmental Forum® and is reprinted with permission]