Let’s talk about “Let’s Talk Federal Regulations”

Canada’s Treasury Board Secretariat recently launched an online consultation platform called Let’s Talk Federal Regulations (“Let’s Talk”). The platform collects and moderates comments on proposals for system-wide regulatory reform from businesses and industry associations and, to some extent, the general public.

There have been three consultations so far: the first on “breaking down inter-jurisdictional regulatory barriers,” a second seeking feedback on a proposed Competitiveness Assessment Tool for federal agencies, and a currently open consultation on the development of a “blue economy” framework covering Canada’s multiple marine industries.

Let’s Talk answers domestic and international business demands for a clearer window onto government operations and a means of affecting Canadian regulatory decisions before they have been finalized. The platform is the latest in a string of regulatory “modernizations” aimed at making economic, environmental, and other regulations more responsive to the needs of business.

With its concepts and techniques pulled from the wider world of participatory policy-making (PPM), Let’s Talk could potentially help democratize, rather than corporatize, public policy choices. However, a closer look at Treasury Board’s recent consultation on the Competitiveness Assessment Tool finds the platform’s democratic credentials lacking.

This is worrying given the wide-ranging implications of this proposed tool, which will further skew public protections in a more corporate-friendly and less precautionary or community-focused direction in Canada.

How the Let’s Talk Federal Regulations platform works

Let’s Talk Federal Regulations is a consultation platform run and moderated for the Treasury Board Secretariat (TBS) by the U.S.-based firm Granicus. The firm’s proprietary EngagementHQ software allows users—from government or the private sector—to collect “community” input and moderate online discussion on a given project or issue. TBS has experimented with the software to run three regulatory consultations so far, including one on a proposed Competitiveness Assessment Tool (CAT).

Granicus’s EngagementHQ software offers users the following tools for “better online engagement.”

• forums + ideas: online spaces where participants can create posts, comment on other people’s posts, and upvote/downvote posts or comments (the ideas tool disables downvoting on posts and all voting on comments)
• guestbook + stories: participants create posts but do not comment or vote on other people’s posts (the stories tool allows for longer comments)
• surveys + polls: participants answer structured questionnaires or multiple-choice polls
• questions: participants ask questions and moderators reply publicly
• places: participants drop pins on a map then attach a comment

In the Competitiveness Assessment Tool consultation, TBS seems to have used the ideas, surveys, polls, and questions tools, while other projects have used different combinations of tools and most appear to include either forums or ideas. Discussions using these tools are lightly moderated, and moderators seem to engage relatively often to answer questions and ask people to elaborate on their ideas.

Let’s Talk Federal Regulations is not widely advertised beyond posts to the Canada Gazette and government social media accounts, and through emails to people on existing regulatory policy stakeholder lists. However, anyone who finds their way to the platform can register to participate (with the option to register anonymously), and anyone can read the ongoing discussions without registering.

According to TBS, once a project is closed, the results of the discussions are analyzed and used to draft a “roadmap” for implementing the regulatory reform. Some projects commit to posting a summary of the feedback and discussions, which nonetheless remain publicly visible after the project has closed. TBS has not yet posted summaries of the two concluded projects.

Let’s Talk Federal Regulations as participatory policy-making?

The Treasury Board’s objective in adopting such interactive consultation systems is to help the government make more “effective” and “responsive” regulatory decisions, i.e., policies and rules that respond to the realities faced by so-called regulated parties. As such, Let’s Talk Federal Regulations could be described as a type of participatory policy-making (PPM).

As the name suggests, PPM brings the public directly into the policy-making process. Many PPM models exist—from online petition-signing to participatory budgeting to various other kinds of direct democracy—offering varying degrees of control and decision-making power for the public. Most PPM models, especially recently, are built on the idea of “deliberative democracy,” whereby citizens come together to consider problems, propose and discuss ideas, and agree on solutions.

Many academics, public administrators, and activists see PPM as a way to make better decisions, empower marginalized voices, rebuild public trust in government, bridge partisan divides, or pose a radical alternative to representative democracy that returns power to the people.

Despite numerous attempts at PPM in Canada, studies on these models have found a number of problems that have kept them from realizing their democratic potential. These problems include shallow engagement, limited participation, vague feedback on how input is used, using processes in only one stage of the policy cycle, limited process scope, exclusive government control of the process, and a lack of impact on policies.

Drawing on these analyses and examples of promising PPM models from around the world, we can evaluate the deliberative democratic potential of the Let’s Talk Federal Regulations platform, using the Competitiveness Assessment Tool consultation as a case study. Before that, we should summarize what this new “tool” seeks to achieve.

A new business screen on public protections

Since the late 1960s, governments in pretty much all of the world have come under pressure from their citizens for stronger economic, environmental and public health rules to protect people and the planet from corporate excess and wrongdoing. A common sense set in that if the safety of a product or service could not be assured, it is wisest to act with precaution by strictly regulating it or banning it outright.

Fearing for their profits, big business waged a massive and hugely successful counter-offensive against “big government.” In this alternate common sense, opponents portray regulation as a burden on business that, in its worst form, stifles innovation and encourages entrepreneurs to take their money and ideas elsewhere.

Governments in the U.S. and Canada have, since the early 1980s, attempted to reconcile these two claims to common sense through administrative reforms that aim, in part, to depoliticize public policy choice around public interest and economic regulation. However, by and large the “tyrannophobic” view prevails, as Jodi Short points out in the U.S. context, even if it paints itself as “responsive” or “efficient” regulation.

Elite dialogues at the Organization for Economic Cooperation and Development (OECD) have produced an increasingly technical understanding of “good regulatory practice” that minimizes democratic deliberation in the rule-making process. Targeted stakeholder (or “regulated community”) engagement, use of cost-benefit analysis, and an emphasis on pro-competitive or least-trade-restrictive regulations are its mainstays.

Canada’s Treasury Board Secretariat is responsible for regulatory policy across all government departments and agencies, and it coordinates Canada’s various interprovincial and international regulatory cooperation efforts. The secretariat oversees the Cabinet Directive on Regulation, which includes enforcing the one-for-one rule (departments must eliminate one existing regulation for each new rule introduced) successfully demanded by big business.

The proposed Competitiveness Assessment Tool fits comfortably into the realm of “good regulatory practice,” but it is essentially a direct response to corporate lobbying for more business-friendly regulation. According to TBS:

As regulators are developing or updating regulations to meet the objectives of the individual regulations (e.g., protecting the environment, health and safety), the CAT outlines considerations to limit unintended impacts on the competitiveness of Canadian businesses.

The tool is a five-part checklist for regulators in departments like Health Canada, the Canadian Food Inspection Agency, or Environment and Climate Change Canada. After listing the objective of the regulation and which sectors it will impact, regulators must systematically do the following:

• Consider whether the Canadian requirement or approach can be harmonized with the United States, European Union, or with similar provincial approaches.
• Consider whether the new regulation is “innovation friendly and future-proof,” including such questions as, “have you conducted horizon scanning or foresight to anticipate disruptive innovation within your regime?”, and “does the regulatory program limit innovation incentives by imposing stricter requirements on first-movers than on subsequent entrants? (or vice versa).”
• “Establish an accessible, predictable, and efficient regulatory environment that is business and investment friendly.”
• Consider whether the regulation supports competition, e.g., by limiting the number of suppliers in a certain sector or putting limits on advertising their products or services, or whether the rule “fundamentally changes information required by buyers to shop effectively.”

The first thing to note about the checklist is that its language will be inaccessible to anyone not steeped in business jargon or “good regulatory practice” mantra. But it should be clear enough that the test requires regulators to spend a lot of time worrying about what is best for Canadian business, and even, perhaps, what is best for U.S. and European business, while setting new public protections. This creates a significant burden—one which is placed on public regulators, not business.

Evaluating the Competitiveness Assessment Tool consultation

Notwithstanding the less-than-democratic aspects of Treasury Board’s Competitiveness Assessment Tool, the Let’s Talk platform, in building on participatory policy-making strategies, may create opportunities for citizens to shape regulatory policy. We can evaluate the platform’s democratic potential on five major dimensions as a PPM model:

1. Deliberative character
2. Degree of “publicness”
3. Scope
4. Degree of direct democratic control
5. Impact on public policy

Deliberative Character

First, the use of the forums and ideas tools makes Let’s Talk relatively deliberative, and in some of the regulatory consultation projects to date, participants can be seen to build off of each others’ ideas with comments or new ideas. Deliberations are also relatively free-form, and discussions can evolve to cover related topics, but this evolution is somewhat bounded by the requirement to keep discussions related to the project’s main themes. Overall, Let’s Talk seems to have the potential to facilitate the productive dialogue, collective reasoning, and consensus discovery that are mainstays of deliberative processes.

Publicness

Let’s Talk has a fairly non-public character, given the fact that Treasury Board’s primary intention is to engage “stakeholders” like businesses, industry associations, and academics, rather than the public at large. While anyone can register to participate and discussions are visible without registering, the platform is not heavily promoted, and only regular readers of the Canada Gazette or groups directly invited by TBS would be aware of the consultation’s existence.

Probably as a result of this low profile, most projects see relatively limited participation compared to similar PPM models. For comparison, the Competitiveness Assessment Tool project’s ideas section saw 26 ideas and eight comments from 11 users, while a similar open registration PPM platform in Finland received 500 ideas and 4,000 comments from 700 users, and had 7,000 visitors. Finland has one seventh the population of Canada.

This low level of engagement is likely to undermine the potential for vibrant deliberations on the platform. The intentionally low profile and narrow target audience limit the platform’s potential to facilitate true public engagement and even its ability to gather meaningful insights from its intended target audience.

Scope

Despite the broad agenda implied by Let’s Talk Federal Regulations, the Treasury Board’s new consultation tool actually has a highly limited scope: how to make regulation more effective and responsive to business and other “regulated” community stakeholders. This is not a space for political debate and disagreement about precautionary versus competitive rule-making, for example. It does not allow members of the public to propose new ideas but is there for the government to “gather views about systemic issues” with Canada’s regulatory practices.

Democratic Control

The fact that Let’s Talk is managed entirely by TBS, with assistance from Granicus, means the platform is not subject to any direct democratic control. Deliberations on the platform must be associated with an existing project, and TBS and other government departments and agencies are solely responsible for initiating and determining the agenda and scope of new projects.

As a federal agency, TBS is subject to control by the President of the Treasury Board, who in turn answers to cabinet and Parliament. Through these formal mechanisms, the government and TBS are ultimately—at least on paper—accountable to the preferences of voters. However, the lack of the sort of direct public control that exists in some other PPM models keeps Let’s Talk squarely within the bounds of representative democracy, which limits its potential as a truly deliberative democratic process.

Impact on Policy

While only a few projects have been launched so far on the Let’s Talk platform—and none have finished yet—their impact on public policy is questionable. Feedback from the government on how input from public engagement is used by decision-makers is often vague or entirely absent, making it difficult to evaluate whether and how such processes actually impact public policy.

In Canada, these concerns have led some scholars to deride public engagement as tokenistic. Even when reporting is done, “What We Heard” reports are frequently vague, leave participants without any clear indication that policy-makers considered their input, and leave observers with the impression that public engagement is inconsequential.

While lack of impact is a longstanding problem with many PPM models, some recent cases have become more institutionalized, and some governments, such as Taiwan’s, are even attempting to give their results binding legal authority. Ultimately, while it remains to be seen whether or how Let’s Talk projects will impact public policy, the lack of any mandate for the government to abide by or even clearly explain how they used the results of deliberations does not bode well.

Turning democratic potential into reality

Overall, the use of the Let’s Talk platform so far falls short of meaningful participatory policy-making. However, open registration and transparent discussions, and especially the introduction of new (to Canada) deliberative tools are, in themselves, promising steps in a more democratic direction. Continued attention should be paid to Let’s Talk and to any broader use of the EngagementHQ software or similar deliberative platforms by Canada’s public administration.

Participatory forms of policy-making have strong democratizing potential and we should encourage moves in their direction from government. Academics and advocates of deliberative democracy would do well to turn up the pressure, and those concerned with greater public control of the state and a more egalitarian society ought to take note of this growing movement and look for opportunities to advance it.

At a more worrying level, the government’s preoccupation with enforcing competitiveness-focused regulation by federal departments degrades options for drafting more precautionary rules, in particular in areas of high urgency and heightened public concern such as environmental protection, food standards, and consumer safety.