Rules, Rules, Rules, Rules: Multilevel Regulatory Governance.

Dutil, Patrice

Rules, Rules, Rules, Rules: Multilevel Regulatory Governance

Edited by G. BRUCE DOERN and ROBERT JOHNSON. Toronto: University of Toronto Press. 2006. Pp xi, 372 pp, bibliographical references.

Of all the functions of governments, the act of regulation has surely been one of the most neglected by Canadian scholars over the past twenty years. While this area has spawned countless studies, innovative journals, and research teams in Europe, South America, and the United States, our scholars have chosen to focus their attention elsewhere. The absence of the Canadian voice on issues of regulation is all the more regrettable because there was a time, in the 1970s and early 1980s, when it did speak well about this vital policy area.

One exception to the rule stands, however, in the work of the tireless Bruce Doern of Carleton University, who once again plays the role of impresario in bringing scholars together to focus on the issue. In this book, he and Robert Johnson gather research on the theme of multilevel regulatory governance. The end result is a laudable collection of insights that points urgently to the need for more study.

Doern and Johnson introduce their collection with a compelling chapter on some of the aspects of multilevel governance. They take as their starting point the reality that governance is inevitably a joint process, though it has hardly ever been acknowledged as such. There is no doubt that governments do impose strict bilateral arrangements with private and public enterprises (the book includes a chapter on federal "regulation" of the cities), but it is far more accurate to describe regulation as involving mostly two, if not more, levels of government and an increasing number of courts, tribunals, standard-setting NCOS and, last but not least, the public. This has led to a phenomenon that is undeniably Canadian: regulation by bodies asking for compliance and accountability on similar issues, but who do so in a disjointed fashion.

Many on all points of the political spectrum have been loud in denouncing the trend. For all it is worth, the so-called "New Public Management" has singularly failed to hold regulation in check. With its incessant demands for accountability, it has caused industry, NCOS and individuals to report on more activities to more authorities with more frequency than ever.

While the OECD has been seized with the importance of this issue for competitive economies, Canada has been slow to recognize it. As this book was being prepared for publication, the Government of Canada's "Smart Regulation" declaration was already a few years old, and yielding precious little fruit beyond calling on the federal public service's goodwill in seeking better consultation with industry and to organize itself more cohesively as it carries out its regulatory functions.

Doern and Johnson begin the book by defining what they mean by multilevel regulatory governance. None of the definitions they advance are particularly startling or innovative, and their cautionary advice that "while smart regulations legitimately attempt to reconcile its core logic with the values of economic efficiency, innovation, democratic accountability and other public interest purposes (health, environment, safety), it overlooks the inherent tensions and potential trade-offs that these entail in multilevel regulatory governance" (p. 8) is not likely to raise eyebrows. A good part of that introduction is devoted to the Report of the External Advisory Committee on Smart Regulation (2004), but its real value lies in providing a useful historic context to the renewed vigour around the debate especially in terms of competitiveness, the innovation agenda, the rapidly emerging knowledge-based economy, and technological change. Smart regulation goes far beyond notions of deregulation. It "sweeps into its conceptual arms many of the basic notions of incentive-based, flexible, and risk-benefit regulation." The editors conclude that smart regulation is not "replacing earlier concepts but rather is complementing them and/or layering itself on top of them" (p. 13). They return to this notion in their concluding chapter as they summarize the book and declare that smart regulation is a "difficult and contentious balancing act, especially when it is attempted in diverse concrete situations, cases, time periods and arenas of political-economic life" (p. 354).

Despite the intentions of the editors, however, it is not a clear picture of multilevel regulation that emerges from this book. A broad section on "Macro and Framework Regulatory Dimensions" includes a rather polemical piece on the need to accelerate Canada-us regulatory cooperation, an exploration of the potential for intergovernmental regulatory cooperation, a chapter on how local governments are regulated and municipal activities, and one on the voluntary sector. Most of the regulations described in this section are the work of governments, not the myriad of other players who have been given, or who have taken, responsibility, to govern.

I think the most original chapters in the book are those in the second section on "Sectoral Regulatory Realms and Dynamics" that bring into focus how governments are trying to come to terms with ensuring the safety of food and pharmaceutical products, forests and the oil and gas industry, and investment and trade. In this section, scholars depict sectors where a harmonized multilevel regulation happens by chance, not by choice. Grace Skogstad's chapter on food safety chronicles the evolution of regulation as science evolves dramatically, both in terms of altering genetics but also in terms of surveillance and inspection. She points to many instances of convergence and notes the rise of the private sector in regulating the industry, and her account demonstrates that multilevel regulation in a highly complex area is possible, at least in theory. High-level politics still matter in this technical field; and she notes that the divide between "risk-averse" and "risk-tolerant" political communities is likely to slow food-safety policy for a long time yet.

Geoffrey Hale and Christopher Kukucha offer a rich chapter on investment and trade regulations. Juxtaposing international, regional, and national regimes, they also depict a complex policy area where competing regulators are still searching to establish their legitimacy. Their account points to the relative success in integrating important regulatory mechanisms in trade, but blame politics and unshakable economic interests in stifling serious progress in regulating the investment community.

The search for mutual understanding in a complex field of activity is also brought to light in Keith Brownsey's chapter on the Alberta oil and gas industry, where at least fourteen regulators, ranging from the North American Free Trade Agreement stipulations to the Calgary city council, compete to fulfill their separate mandates in a context where the public voice is also being heard. Brownsey details a regulatory regime moving from fairly standard economic concerns to what he calls a "multilayered social regulation regime focused on issues of security, public and worker safety and the environment" (p. 302). He portrays a regulatory regime that is as "contradictory" as it is expensive.

Joan Murphy's chapter on the health sector also provides a fascinating example of a sector already subjected to multilevel regulation now discovering that its stakeholders want a "greater voice in how regulations (and policies) are developed, implemented, evaluated, and reformed" (p. 306). Her chapter is strengthened by the inclusion of a brief case study of the regulation of cox-2 inhibitors as it emerged in 2004 when an American study showed that there was evidence that this therapy could have serious side effects. That study prompted Merck, the pharmaceutical company, to withdraw its brand Vioxx from the market, and soon its competitors did the same. Suddenly, decisions made in Washington resonated around the world, the product of a globally networked regulatory mechanism. More interesting still has been the reaction since the removal of cox-2 inhibitors from the shelves as patient groups that had benefited from this medication argued that it was unfair for a government agency not to assess the risk for tolerance among users of this product. The regulation of health products, food, petroleum products, and investments and trade vividly demonstrate that the process is complex, grounded in political positions and scientific processes, and all too often defies attempt at harmonization of regulation.

Governments appear ready to assume their responsibilities by legislating and monitoring a host of regulations, but are equally reluctant to cede authority and reticent to create new structures that would effect truly multilevel regulation. Similarly, the authors present sectors where mechanisms and protocols for regulatory collaboration range from the structured to the negligible, but where technical committees work with various degrees of formality to share information and reach a consensus on what regulation is needed. Judging from the portrait that emerges from this research, efforts to use, or encourage, the development of information and communication technologies to integrate regulation are few and tentative at best. Remarkably, none of the scholars venture to evaluate the few mechanisms that exist.

Multilevel regulation, as many writers concede, is hardly a new concept. What makes it different in modern governance is that it has become a policy objective. Both the private and the non-profit sectors are increasingly impatient that governments get their regulatory houses in order, making this issue a priority for many of them. Multilevel regulation that is not "joined-up" adds up to a lot of time, expense, and sometimes redundant and even conflicting mies. This book, more descriptive than analytical, proves useful in drawing a portrait of the complexities of regulating a number of important sectors, and also gives a clue as to why progress has been so frustratingly slow.

Patrice Dutil is associate professor in the Department of Politics and Public Administration at Ryerson University.