Procedural authoritative instruments

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Procedural authority-based instruments typically involve the exercise of government authority to recognize or provide preferential access or treatment to certain actors – and hence to fail to recognize others – in the policy process, or to mandate certain procedural requirements in the policy-making process in order to ensure it takes certain views or perspectives into account. These instruments perform a wide variety of network management functions (Agranoff and McGuire 1999), very often in order to gain support or marginalize policy opponents but also to ensure certain standards and standard practices are followed in policy choices (Goodin 1980; Saward 1992).

Policy network activation and mobilization tools

In terms of network management activities, many procedural authoritative tools are involved largely in the ‘selective activation’ of policy actors and/or their ‘mobilization’ through the extension of special recognition in a policy process. The key use of authority is in the extension of preferential access to decision-makers or regulators for certain views and actors and not others, or at least to a lesser extent (Doerr 1981).

Procedural authoritative tools attempt to ensure efficiency and effectiveness of government actions through activation of policy actor support. Networks may be structured, for example, through the creation of various advisory processes which all rely on the exercise of government authority to recognize and organize specific sets of policy actors and give them preferential and O’Toole 2004). These include advisory councils, ad hoc task forces and inquiries, consultations, and public hearings (Hall and O’Toole 2004). Phillips and Orsini (2002) list the types of policy process activities which advisory committees undertake (see Table 6.4).

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Several distinct types of authoritative network management tools can be identified. Prominent ones include the following.

Advisory councils

Advisory councils are the best example of procedural authoritative instruments and are very common in market and corporatist governance arrangements. These are more or less permanent bodies established to provide advice to governments – either political-executive or administrative – on an ongoing basis. They are often established on a sectoral (e.g. industry specific such as an automobile trade advisory committee) basis, but also can be topical (e.g. biomedical ethics) (Gill 1940; Brown 1955; Smith 1977). These committees play a major role in many areas but are especially prominent in areas of new technologies where they play a significant role in linking governments to various kinds of expert or ‘epistemic’ communities (Haas 1992; Jasanoff 1998; Heinrichs 2005; Dunlop 2009).

The archetypal advisory council is a more or less permanent body used to institutionalize interest group members in government deliberations (Heinrichs 2005). They are at least partially if not fully co-optive in nature and intended to align the ideas and actions of the regulated group and the government ministry to which they are attached. However, they can also be more standalone and independent sources of expert advice to governments such as science and technology councils, councils of economic advisors, and others (Phidd 1975; Doern 1971).

Smith (1977) and Brown-John (1979) identify eight main types of advisory committees commonly found in modern liberal-democratic governments. These are set out in Table 6.5.

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Brown (1955) lists several purposes of such bodies which stress their network nature (see Table 6.6).

These boards are generally very inexpensive and almost invisible. They can be precisely targeted and enhance the automaticity of government. They are also viewed, generally, as non-intrusive. As a result they have proliferated in all governments in recent years. This proliferation has led in some countries to the passage of legislation to control and standardize the number of advisory example, specifies membership and guidelines and standard operating procedures for these types of committees (Brown 1955; Cronin and Thomas 1970; Brown 1972; Smith 1977; Heinrichs 2005) (see Table 6.7).

Public consultation, stakeholder and consensus conferences

In addition to more permanent bodies, governments can also organize short-term and long-range mechanisms to provide input and legitimate government policy-making (Leroux et al. 1998). Increasingly, the role of the public in these processes has been expanded to include participation in the design of the consultation process as well as in making policy recommendations to government (Abelson et al. 2003; Dryzek and Tucker 2008). Sometimes mandated by legislation, appropriate levels of government will often elicit public involvement in administrative activities such as regulatory monitoring and environmental impact assessment.

Abelson et al. (2003) has noted that these participation efforts can be classified by looking at the procedures, representation, and information involved and by looking at their outcomes. Key issues in the design of consultative processes are (1) who is involved and who is not (for example, whether elites or the public are involved; or whether only stakeholders rather than the public, per se, are consulted);2 (2) who makes this determination, for example, government or representative groups (Howlett 1990); (3) what resources they have, such as access to funding; access to staff; access to politicians; access to information; or access to witnesses (Salter and Slaco 1981); and (4) whether or not their recommendations are binding (Webler and Tuler 2000; Margerum 2008). Dion lists these several of these design criteria on several conjoint continua in Table 6.8.

These consultations can cover an extraordinarily wide range of topics – from constitutional issues related to voting systems and the like (Kogan 2010) to much more mundane ones such as city zoning changes. They are typically organized by private government agencies, although in some jurisdictions, like Australia, consultants specializing in the organization and delivery of private consultation exercises have become much more prominent in recent years (Hendriks and Carson 2008).

Conclusion

The evolution of regulation as a key policy instrument in the toolbox of modern government is a well-known story. From the development of the principle of delegated legislation in the early years of the evolution of the modern state (Page 2001; Gilardi 2002; Thatcher and Stone-Sweet 2003) to the first creation of specialized quasi-judicial independent regulatory commissions in the United States after the Civil War (Huntington 1952; Eisner 1994a; 1994b), the gradual development of bureaucratic expertise and capacity in the social and economic realms is a defining characteristic of the legal and corporatist modes of governance found in many policy sectors and a central feature in many policy designs (Berg 2000; Howlett 2002; Howlett 2004; Scherer 2008).

Debates about the merits of this development continues in many areas, however, especially those sectors which could be organized along market lines. For example, a large literature exists on whether or not regulations serve the public or the private interest (Posner 1974; Stigler 1975) and whether or not they contribute to economic efficiency by correcting market failures (Croley 2007) or instead create new government failures (Wolf 1979 and 1987; Le Grand 1991; Zerbe and McCurdy 1999). The discussion has generated a plethora of studies about the merits of particular types of regulation over others (Hawkins and Thomas 1989; Williams 2000; Ringquist et al. 2003), the problems of regulatory capture (Laffont and Tirole 1991) and the difficulties of legislative and judicial oversight of regulatory activities (de Smith 1973; Angus 1974; McCubbins and Schwartz 1984; McCubbins and Lupia 1994; Gilardi 2005a).3

The early 1980s was a turning point in the debate on regulation in many countries, as the idea that regulations were conceived and executed solely in the public interest came under heavy attack from a wide range of critics. Much of this criticism relied heavily on works by authors and economists of the Chicago (Stigler 1971; Peltzman 1976; Becker 1983) and Virginia (Posner 1974; Landes and Posner 1975; Buchanan and Tollison 1984; Tollison 1991) schools of political economy who argued that many regulations were inefficient as well as inequitable. Governments led by right-wing politicians in many countries, like Ronald Reagan in the USA and Margaret Thatcher in the UK, but also Labour governments in New Zealand and elsewhere, further fanned popular sentiment against regulations by putting deregulation and the search for alternatives to traditional ‘command and control’ regulation at the centre of policy reform agendas designed to address declines in productivity and persistent inflation and high unemployment present at the time (Howlett and Ramesh 2006). Many governments began at this time to experiment with forms of ‘voluntary regulation’.

Many ‘deregulation’ measures, however, are commonsense reforms intended to iron out shortcomings, anomalies and obsolescence in existing regulations rather than a response to any particular systemic pressure (Wilson 2003). The nature and extent of problems change, as do solutions available to deal with them (Frischtak 1995). The campaign for removal or at least weakening of such regulations is often led by businesses which find complying with them in new technological environments to be onerous. Their efforts find ready support among voters who have their own reasons for disaffection with outdated, inappropriate and seemingly meaningless regulations which can impose costs on them for various services – like telephony – which seem unwarranted. The regulators’ frustration with the costs of their implementation further reinforces the calls for reform.4

However, it must also be noted that at the same time that some deregulation has occurred, re-regulation of many sectors has also taken place. And, as the discussion in this chapter has shown, an explosion of the use of procedural authoritative implementation tools has also occurred. While some of this activity can be traced to attempts to shift governance modes in various sectors, it is also the case that changes have occurred as policy design ideas have changed, given different configurations of costs and other instrument attributes in some sectors.

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