Rules of the Game – Institutions as Restraints

There are a number of valid interpretations of the term “institution.” We include the following in our sense of the term:

  • Transactions between and among actors
  • A set of rules, conventions and practices established over time and tend to survive
  • An organizational structure of some sort
  • Place where special needs are addressed

Thus, for the purposes of this book, we will apply the following statements to the term institutions:

  • They are constituted by the transactions of those within them and by their rules, conventions, habits, patterns of thought and behavior
  • They encompass some actors and behaviors and not others
  • They address some issues and not others
  • They change over time but are still recognizable over time
  • They differ from each other in ways that have bearing on outcomes

Our job here is to identify the steps in research needed for assessing the character, scope, reach, lifespan and consequence of institutions for the fate of public issues

Institutions include:

  • Legislatures
  • Committees
  • Corporate board meetings
  • Committees within government and among departments
  • Public meetings
  • Expert and consultative committees
  • Councils
  • Task forces
  • Community and meetings
  • Public forums
  • Labour negotiations
  • Land claims negotiations
  • Co-management boards
  • Environmental and technology assessments
  • Standards bodies
  • Inquiries
  • Think tanks and research institutes
  • Conferences on policy matters
  • Regulatory bodies that hold inquiries
  • The media

In studying institutions, you focus on the constraints operating on actors; you learn what an actor can and cannot do and what it will and will not do by virtue of its institutional practices

Example one:  The agency that regulates broadcasting in Canada is called the CRTC. Its governing legislation does not limit participation in its deliberations to those with financial interests in the decision to be made.  Nonetheless, it has rules of procedure, long-standing policies and conventions about who appears in its hearings. It has evolved a style of reporting its decisions that entrenches a particular discourse about broadcasting issues, eschewing wide-ranging discussions of Canadian culture in favour of reporting and commenting on what the mainly industry participants in its hearings have argued. It has adopted policies for dispute resolution that place emphasis on the disputants, not the agency. It eschews acting like a court of law. Its legislation bears the hallmarks of the late 1960s when the agency was created, notwithstanding the major changes in broadcasting and technology since that time. Its deliberations always make reference to the problems of fitting the new world of communication to the values envisioned by the legislation. Indeed, one could argue that the agency was preoccupied with this task, thereby affecting its decisions on seemingly unrelated matters.

In the case of institutions, the research steps are best illustrated by the case studies. The accounts follow the steps outlined in the previous section of this chapter. They also provide useful background information on important institutions that you may know little about.

Definitions:

 Institution

A body is an institution if it engages in or hosts deliberation and/or decision making. It must have fairly stable norms, with fairly stable expectations about what it will do and how it will do it. An institution must be seen as having the right (legitimacy) to conduct its deliberations or make decisions about public issues

Example two: a Task Force is expected to consult widely, and to be attentive to the values of the government that mandated it. A Task Force is set up by a government department and is a legitimate place for deliberations.

Example three: not all conferences meet the test for being institutions. However, if it can be argued that a particular conference is expected to contribute to deliberations about actual decisions, it is an institution.

As the term is used here, institutions can be so ad hoc or informal that no formal record of their activities exists. This does not mean the information is unavailable, but only that it has to be inferred from available materials or obtained from interviews.

Example four: conferences have no official mandate and powers, but conference documents, carefully scrutinized, indicate the nature of the deliberations and intended audiences.

Example five: A community meeting is an institution, but one with no formal incorporation or list of members. Info about the mandate must be inferred fro press statements and publications. Reports and reporters from the community press are especially useful in this regard, as are the announcements of the meeting. The best information comes from actually attending.

Rules of the game

Refers to all formal and informal rules, to conventions and tacit understandings to procedures, manuals and practices.

Capture

Refers to situations where one or more of the participants in deliberations or decisions making has so much influence on the outcome that the views of other participants are not taken properly into account

Background Discussion:

Rules of the Game

To examine institutions is to lay bare the rules of the game for deliberations and decision making. The rules of the game:

  • Say how deliberations take place and how decisions are made by the institution in question
  • Indicate what information is used and which information about the eventual recommendations or decisions can be released to the public
  • Indicate requirements, formal and implicit, imposed on the institution by others
  • Say where money will come from to hold deliberations, and who has access to that money
  • Say who must be consulted
  • Say who makes the final determination and whether there is any recourse for those who do not like the current decisions
  • Say who has power to make which decisions
  • Sort out all the relations among the participants, including other policy institutions, in decision making
  • May indicate what aspects of an issue should be important or open for discussion
  • Indicate a general stance that must be reflected in decisions, a set of aims and purposes

Rules of the game matter. If no outsiders are allowed to participate, it would not be surprising if decisions were skewed towards the interests of the major stakeholders. If only scientists are considered experts, it is unlikely the institution will produce recommendations or decisions that place the Aboriginal or community interests at the center. If deliberations or decision-making take place behind closed doors, it is unlikely that even attentive people will know what is happening. If the debate is circumscribed in terms of what can be considered, obviously this will affect recommendations and decisions. If the threat of recourse to the law is realistic, all decisions will be made with an eye to those who have the capacity to undertake court cases.

Forum shopping

Contentious issues are almost always the focus of attention in ore than one institution. Rarely is any institution considered to be the only word in deliberations about controversial matters.

Example six: There was not one but many deliberations on the future of Canadian health care. There may be more yet. In the United States, there were legions of institutions, inside and outside government, involved in the reform of health care.

Example seven: In Canada, the “free trade” issue was debated, and recommendations were made in a Royal Commission. No one thinks that the then government’s view of free trade came from one Royal Commission alone. Trade issues are also the focus of attention in several institutions in the United States, and many more internationally.

Actors forum-shop. They seek out institutions most likely to be receptive to their message and to welcome their participation. Given their different concerns, resources, orientation and interests, actors press for deliberations to take place in different institutions. In theory, actors participate in all institutions open to their participation; in practice they do not. Access to resources is a crucial factor. Actors choose carefully where to focus their efforts, also taking into account how likely they are to be successful. They seek out many avenues of influence.

Example eight: An environmental assessment is not likely to be the only relevant deliberation about a proposed project. The shape of the assessment process is determined in a legislature; there will have been numerous interactions between the proponent and the government, some in forums that qualify as institutions, prior to the assessment. There will possibly have been meetings in First Nations council meetings and/or community meetings. There are many regulatory bodies likely to be involved, such as a water board. Finally, one or more of those implicated in the proposal may go to court about one or more of the issues connected to it. Actors often take their case to the media and some even lobby to establish new deliberative forums or decision making institutions.

Finally, to the extent that institutions are governmental, partnered with government or supported by government funds, government preferences matter. Governments will rely on some institutions and not others. Each government makes different choices about its favored institutions.

Example nine: Governments resort to expert committees or ignore this institution all together. They set up inquiries or shy away from them. Governments fund some conferences but not others. One government will emphasize the importance of full-scale environmental assessment while another one will cut back the amount of assessment being done and the opportunities for participation for those without financial or legal interests.

Capture

Regulation has attracted much attention concerning capture. Regulatory capture is usually understood to arise from the fact that those who are appointed as regulators are often drawn from the industry that is to be regulated. Alternatively, individual regulators may act with an eye to their future employment as lobbyists or with the industries being regulated.

When we use the term capture here, we mean more and less than the notion of regulatory capture as discussed. Let us deal with the more first.

  • Future employment opportunities for the individual decision makers is a good example of capture
  • Corruption is a kind of capture
  • Personal relationships can result in something like capture

All these fall outside considerations legitimately brought to bear on deliberation and decision-making.

Let is turn to the “less.” The personal bias of those who deliberate is not the same as capture. It could not be otherwise that personal views and predilections affect their decisions at least to a minimum degree.

Example ten: A judge is intended to be impartial. Legal procedures and judicial practices are designed to enhance and protect such impartiality. Impartiality here attends to the parties appearing in the court proceedings and to reliance only on the evidence brought before the court. That said, two judges, each properly impartial, may come to different decisions because one is preoccupied with law and order while the other believes crime is in part a response to social factors. Within the law, there is usually room for impartial judges to exercise discretion.

Deliberation versus decision-making

Think of institutions as falling on a continuum between exclusively deliberative at one end and formal decision-making at the other. An inquiry is a deliberative institution; a court is a decision-making one.

Interestingly, the institutions that lack final decision-making powers are often where more comprehensive discussions take place. Freed from the responsibility to make decisions, actors are less likely to be very guarded in what they say.

Example eleven: One often hears the Senate in Canada dismissed as being mainly irrelevant to what governments do. However, Senate committees are important deliberations (see case study in chapter seven). The constituent interest groups and many experts will have spoken, often more frankly than they might in a body more likely to be influential in decision making.  The issues will have been canvassed, as well as sometimes the options for governmental response. The various members of the Senate committee represent political parties and thus, in their interactions and questions, Senate committee hearings provide a good sense of the issues underlying parliamentary debates. Discourse is shaped in these committees.

Expectations versus reality       

It is commonplace to think of institutions as having greater power or scope of action than they do. You should pay attention to expectations as a separate issue from that of mandate, powers, activities and participants. Expectations confer legitimacy on institutions regardless of their participants, activities and outcomes. Expectations also lead to disappointment and cynicism about institutions and their capacity to act.

Example twelve: An environmental assessment panel is widely thought to include an assessment of the necessity and desirability of a particular project or is thought to be a place where the governments’ energy, water or trade policies can be discussed. Rarely is this the case. The terms of reference for an environmental assessment indicate which issues are on the table. Often they are very limited.

Example thirteen: Disappointment often follows closely upon the final report of an inquiry, even though its assessment was only intended to produce recommendations. People expect inquiries to deliver solutions to major problems, such as police attitudes, the overall regulation of all health practices or the general orientation of government economic policies. Inquiries might discuss and even make recommendations about such broad issues, but recommendations that deal with pragmatic issues are much more likely to be adopted, and indeed to be seen as viable.

Steps in research

  1. Create a list of institutions!
  2. Narrow the list to something manageable. Eliminate institutions without mandate or powers in relation to your public issue, jurisdiction and timeframe. Step two puts you in a position to choose the institutions you will study in great detail. You will likely only be able to study one in depth, but hopefully that single institution will help you to identify the network of institutions involved without needing to look closely at all of them.
  3. Step three focuses on the formal aspects of the institutions you have chosen. For example, maybe you are interested in the legal framework that governs its operations, as indicated in legislation or documents of incorporation. Collect any rules of procedure, staff manuals and the organization chart for the institution. Identify executive members, directors and sponsor organizations, as well as staff. Note the budget and collect available records of how money has been spent. Collect any agendas for conferences, lists of publications and records of participation etc. Interviewing is useful when all other avenues for collecting info are exhausted, as interviewees will have access to material you need that may not be publicly available.
  4. Focus on the participants. Once you determine the kind of participants included or excluded, examine closely the ones involved. Think of them as actors, and follow through the usual questions you ask about actors, their character, modes of operation, access to resources etc.
  5. Focus on the history and evolution of the institution(s) you have chosen. Collect any histories. Books and news will provide a degree of history. Look at mandates and procedures and compare funding and participants from previous time periods and compare them to those of the time period you have chosen
  6. Focus on constituent interest groups, assessing their power and the degree to which they seem influential. Is capture a useful way to describe to situation?
  7. Focus on deliberations. You want to follow the course of the discussions and note which issues are and not raised. Scrutinize how participants are dealt with, the level, scope and amount of discussion, the formality of discussion, and the manner in which debate is closed off in order to reach decisions.
  8. Focus on recommendations, decisions and outcomes. Note that this is a separate consideration. You want to exercise caution that you do not leap directly from, for example, a discussion of the participants to conclusions about outcomes. To be sure, participation, interaction, formal rules, deliberations and capture all have an impact on outcomes; but none is fully determinant.

Example fourteen: A panel considering an action by the police may be comprised of people with no experience of racial profiling. It could be that such a panel was acutely sensitive to issues of race, class and gender and of the implicit and formal profiling actions often taken by the police

  1. The last step is interviewing!

 


Case Studies

Public inquiries

 Public inquiries go by different names.  In Canada, they might be called Royal Commissions, inquiries or special task forces among other names.  The differences between, say, a Royal Commission and a special task force are not important in this context, as there is no Canadian Administrative Procedures Act (although there is an Inquiries Act, but not all “inquiries” are officially designated as inquiries). In other countries, inquiries go by yet other names, and in some cases, there are more formal rules of the game. In the United States, for example, an “independent counsel” or a specially mandated judiciary or Senate committee might be asked to conduct an inquiry.

The task of an inquiry is to investigate an issue, controversy, conduct or policy, and to arrive at advice about how to handle it. Inquiries produce reports, and they issue recommendations. It is up to the mandating government to decide how to follow through on the recommendations, or whether to ignore some or all of the recommendations.

All inquiries have at least some discretion about how they choose to inquire, and almost all establish their own rules of procedure, notwithstanding whatever legislation and legal precedent may apply. Inquiries have legal counsel of their own, that is, lawyers hired to conduct the investigation. The legal counsel is very important. Indeed, lawyers have input on every aspect of its activities and deliberations. Lawyers ask questions at public hearings and monitor cross-examination, if there are any hearings. Lawyers prepare the draft report and recommendations. Many inquiries are similar to court proceedings, inasmuch as nothing will be considered to be fact until it has been tested through cross-examination. Legal standards exist about who is considered expert.

Some inquiries also have research staff, and sometimes inquiries issue lengthy research reports or discussion documents. If inquiries will hold public hearings, there will be a transcript of the hearing proceedings.

Each inquiry has its own rules about access, that is, about who is entitled to participate, but if funding is needed, and not available to participants, participation is obviously limited to those who have or can secure it. The length of time required for participation also determines the character of an inquiry, as many actors simply cannot maintain a constant presence over the life of the inquiry. Inquiries often schedule different kinds of participation opportunities: formal hearings, community hearings, public meetings, private consultations, focus groups, hot-lines, websites asking for input or requests for letters.  Not every kind of possible participant will be welcome in each case. In most cases, potential participants must have a demonstrable interest, that is, a financial and legal interest, in the issues under consideration. Community meetings (also called hearings in some cases) may be scheduled to allow for participation of those without significant financial or legal interests.

 Example fifteen: The examples of two inquiries dealing with proposed developments in the northern regions of Canada will illustrate the significance of different modes of consultation. The Berger inquiry was unique in that it not only solicited participation from Aboriginal people, but it spent time acquainting them with the issues to be discussed before holding informal, in-community hearings. The Bayda inquiry also solicited and valued participation from Aboriginal people, but it did not conduct the same intensive preparatory sessions in each community. The result was two reports that different dramatically in how they approached their recommendations and also in their outcomes.

Mostly, an inquiry depends on those who have interests and opinions to find their own way to participate. If major trade associations or corporate policy actors or departments of government choose not to participate, there is little the inquiry can do to require them to do so short of formal legal measures.

Participation in inquiries is sequential. Opportunities for policy actors to interact with each other are found only outside the inquiry proper. If there is to be compromise among policy actors, it is fashioned by the inquiry in its report and recommendations. Negotiations and bargaining may well go on in the back corridors, but an inquiry is not set up to encourage them, unlike a stakeholders consultations for example.

Aside from the issues outlined in the mandate, two other themes run through almost all inquiries.  The first theme is related to “wrong-doing”. As noted, although Commissioners will go to great lengths to distinguish inquiries from courts and to indicate that blame will not be assigned, the fact is that issues of legal negligence, guilt, due diligence and legal liability are always just below the surface. The second theme arises from the fact that inquiries often investigate matters where government institutions are involved. They put “the state on trial” for its neglect, conduct, or policies that produced controversy or problems. However, all involved with an inquiry are mindful of government expectations. Political considerations are always factored in, because those conducting the inquiry want their recommendations to be accepted. Often there is much consultation behind the scenes between the inquiry and the government that originally mandated this seemingly independent investigation.

Everyone who participates in an inquiry likely couches their contribution in terms of values and broad principles. Few inquiries permit wide-ranging discussion about broad general issues, however. To the extent that lawyers are actively involved in inquiries, the scope of discussion tends to be quite narrow.

It is worth repeating that an inquiry can only recommend. An inquiry has no capacity to secure compliance with its recommendations and obviously no powers of enforcement. It is therefore not surprising that many inquiries go to great lengths to justify the recommendations they produce, publishing lengthy research studies, detailing reasons for recommendations and especially making transcripts of the proceedings available. They usually produce extensive reports detailing the rationale for their recommendations. Most inquiries produce a transcript.

Inquiries are important, even if many people dismiss them because they believe, wrongly, that inquiry recommendations are not adopted by government.  To be sure, they are costly, but so too is inaction on the part of governments. Inquiries, especially if there are successive inquiries on related topics, provide a channel for the development of particular understandings of the issues and thus of the options for decisions related to them. Even with their limitations, inquiries open the door to wider participation than most of the usual deliberations by and within government. Inquiries often bring research into play in a manner that resource-poor departments are not likely to do. They bring research into the public debate, helping, at least a small bit, to support informed public debate.  And of course, the fact that an inquiry is called raises the public profile of an issue, making it likely that governments will feel impelled to respond.

 

     

 

 

 

 

 

 

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