Responses to the Study Guide Questions for

Session A-9, Slides #11 & 12

Question 1

For implementing transformatory bills, consider the advantages and disadvantages of the three kinds of conformity-inducing measures:

Mavis: Punishment such as imprisonment is a time proven and  honoured way of enforcing laws and inducing conformity with laws. But it may not always be the best for all desired social change and thus the drafter should consider whether other measures may not be more desirable.

Roundabout measures change causes external to the actor i.e. the non-legal causes. They have nothing to do with punishment and thus may be an alternative to it.

Education is a good measure to use where the ideologies of implementing agencies and officials need change. Again it is another good alternative to punishment.

Christopher: Conformity inducing measures:

A.  Punishment. 

An advantage of punishment is that it may be applied in a consistent, predictable fashion.  It may be accepted in a culture if it reflects the values and sense of justice of the primary role occupants.

A disadvantage is that although it discourages undesired behaviors, it does not necessarily induce desired behaviors.  Furthermore, it is less effective than rewards.

Rewards and punishments tend to focus on individuals’ and collectivities’ perceived self-interest.

B.  Round-about measures. 

These measures change causes external to the actor.  These causes are identified by opportunity, capacity, communication, or process.  These methods aim to change the non-legal causes of the problematic behaviors.

An advantage of such measures is that they may be directed toward the causes of problematic behaviors, rather than merely addressing the actual behavior.

A potential disadvantage is that they do not directly address the behavior of the actor.

C.  Education. 

An advantage of educational approaches is that they may address the underlying causes of problematic behaviors.  They empower the individual to make better decisions, resulting in desired behaviors.

A disadvantage of education is that, despite knowledge, some actors may still elect to engage in problematic behaviors.

An integrated approach, incorporating rewards, round-about measures, and education would seem to be a more effective approach than relying solely on one conformity inducing strategy.

Rob: Advantages and disadvantages of the three kinds of conformity inducing measures.

Punishment

Most transformatory laws include provisions that prohibit behaviors. Whenever a law prohibits behavior there must be a consequence for non-compliance:  either a civil remedy or state-imposed punishment.

Punishment is one way, although not the only way, to address the “interest” factor in the ROCCIPI agenda. Transforming behavior by threat of criminal punishment presumes the existence of rational actors who will modify their behaviors in response to a state- imposed threat.  Criminal sanctions have worked well to change certain kinds of behavior. The prohibition against driving while impaired has been successful in many jurisdictions due largely to the threat of criminal punishment: loss of license, a fine, a criminal record, the embarrassment of being charged with a criminal offence, and the possibility of jail for repeat offences.

Criminal sanctions are less likely to be effective if the threat of detection remains low.   A low threat of detection decreases the deterrence factor which is criminal law’s major impetus as a conformity inducing measure.

Criminal sanctions are more likely to be effective where the prevailing behavior is already in accord with the goal of the legislation. If the prevailing behavior is not in accord with the goal of the legislation it is unlikely that criminalizing behavior will, in itself, adequately address the interest factor. In this situation the drafter will need to consider what other measures may be used to address the interest factor either in addition to a criminal sanction or in substitution of a criminal sanction. For example, if the bill seeks to reduce road accidents it may, in addition to criminalizing certain behaviors, reward good drivers with lower car registration fees. The legislation might also address the ideology associated with dangerous driving practices by including a public awareness campaign or other education initiatives. 

Round-about measures

Round-about measures are also referred to in the materials as “indirect measures”. Round-about measures encompass the largest category of conformity inducing measures. They are directed to the causes of the social problem identified by the categories:  “opportunity”, “capacity”, “communication”, and “process”.  It is difficult to discuss the advantages and disadvantages of such a large category of potential measures but the degree to which any given measure proves advantageous (or not) will depend on the extent to which the measure is rationally related to the ROCCIPI category it seeks to address.

Education

Educative measures address problematic “ideology”. The kinds of educational initiatives that may be undertaken to change subjective values and attitudes are unlimited. Sometimes the very existence of a new law may serve an important educative function that helps to change ideology. Educative measures will usually be used in conjunction with other kinds of conformity inducing measures directed to other kinds of causes. If a role occupant does not have the capacity to comply with a law, for example, there is nothing to be gained by soliciting compliance through education.

Question 2

How might you use the complex organization decision-making model to identify the kind of institution most likely to prove competent to implement your bill's detailed conformity-inducing measures?

Mavis: To use the model firstly a decision must have been made as to what kind of conformity inducing measures the agency will apply. A reverse ROCCIPPI analysis may help to determine whether an existing agency could do the job.

Marlyn: The complex organization decision-making model allows the drafts to identify the kind of institution most likely to prove competent to implement the bill’s conformity-inducing measures. There are four kinds of implementing agencies viz.

The selection of the type of institution will depend on:

For good governance, non-arbitrary decision-making is a pre-requisite feature. It requires that decisions be based on a clearly articulated process founded on reason  informed by experience in face of a rule of law. It is the process, which will establish the standard by which decision can be judged as non-arbitrary as it will be based on decisions by rule, participation, transparency and accountability, which are cornerstones of good governance.

A clear identification of the decision-making processes demanded by the new law will allow the drafter to determine which institution to select for implementing the conformity-inducing measures. Knowing what kind of decisions the agency will have to make will allow the drafter to select the appropriate agency using the complex-organization decision-making model as a guide.

Liz: Sometimes the problem itself defines who the implementing body will be. For example, if your role occupant is a government actor, it may be that another governmental body or actor is the only entity that could effectively monitor or implement the solution.

Christopher:  An institution is determined by the behaviors of the primary role occupants.  In the case of my proposed bill, these are the persons who promulgate and apply Medicare regulations.  The Medicare Act is intransitive.  The Medicare Act does not contain a comprehensive list of specific items or services eligible for Medicare coverage.  Rather, it lists categories of items and services, and vests in the Secretary the authority to make determinations about which specific items and services within these categories can be covered under the Medicare program.  That is, the Act allows Medicare to cover medical devices, surgical procedures, and diagnostic, but generally does not identify specific covered or excluded items or services. 

Authority to promulgate specific regulations is delegated to the Center for Medicare Services (CMS).  Failure to specifically include treatment of vertebral subluxation by chiropractors as a preventive service in the Medicare Act has resulted in the promulgation of rules and policies that exclude this service from coverage under Medicare.

The kind of institution to implement my bill has been defined by the Medicare Act: an administrative agency.

1. Courts and tribunals

2. Administrative bodies

3. Public corporations, and

4. Private sector organizations

In choosing an implementing agency, the drafter must be aware that the different classes of implementing agencies are suited to different tasks because of the way they typically gather and evaluate different types of information according to different decision making processes. For example, if the drafter determines that a bill requires a proactive approach to implementation the drafter will know that the reactive decision making process used by the court makes it an inappropriate choice for an implementing agency. Similarly, if the drafter determines that a bill requires a dispute resolution system, the drafter will know that a court or tribunal may, depending on the nature of the disputes, be better suited to the task than an administrative body.

Question 3

Assess the four kinds of implementing institutions -- courts and tribunals, a government agency, a public corporation, or a private sector institution -- to decide which seems most likely to effectively implement your bill's detailed measures.

Mavis: My bill deals with anti money laundering in St. Kitts and Nevis. An agency is necessary to watch over the financial sector and ensure that money is not laundered in the Federation and also to watch for new forms of money laundering, coordinate corporation with foreign agencies and also to draft or recommend amendments to the laws or subsidiary legislation.

A court by its nature would be unsuitable for the tasks outlined above. However the courts will be necessary to punish violators of the law.

A public corporation has the advantage of potential greater freedom from red tape as well as the potential flexibility for fostering entrepreneurial programs. Its major disadvantage is that the freedom from red tape could be seen as a licence for corruption. The advantages of a public corporation show that it will be unsuitable for my bill because it is not one aiming at fostering entrepreneurship nor is it one for which red tape would be a factor.

Private sector implementation is also unsuitable primarily because it would be motivated by   private and not public interests. Anti money laundering is by its nature one that requires the government to have a direct hand in it in order to ensure that the bill is implemented in ways that resolve the problem. Even the advantages of private sector implementation would not be of much use in my bill. The advantages include the fact that the private sector may already have the needed expertise as well as the necessary financial and human resources. For something as sensitive to a state’s security as anti money laundering, the advantages of private sector implementation are outweighed.

An administrative agency in the form of a separate government entity appears to be the best agency which can be adopted. The main advantage will be that it will be directly under the government’s control. Further, there is the flexibility of the bureaucratic form, the highly specialised expertise to be recruited and developed, the fact that the agency will have proactive powers to for example investigate money laundering and finally that the agency may form time to time introduce a legislative agenda to adapt to changing circumstances make it very ideal.

Marlyn: Of the few kinds of implementing institutions it seems that the Government administrative agency is most likely to effectively implement my bills detailed measure. The reasons being that the bill is aimed at addressing the problematic behavior of the officials of an existing institution and its primary role occupants in the implementation of new and improved housing schemes directed at targeted low income households. The majority of the measures proposed relate to the round about measures rather than punishments to induce the desired behaviors. As such it requires a framework involving actors, who will need to make decisions from the feedback, and conversion process, which is grounded in an agency, which is proactive rather than reactive. Courts and tribunals are reactive and  the measures are largely to do with punishments.

Given the nature of the intervention activities the bill will be designed to foster private sector implementing entities will not have the resources to implement improvement measures for the low income groups who must be given subsides in order to increase their affordability for the housing scheme packages.  i.e. the development of housing schemes for low-income households requires massive capital outlay for infrastructure and services, as well as large tracts of land resources on which to develop housing schemes for individual plot allocation to targeted households.

Private sector companies cannot afford to design and implement housing schemes for low-income households, with high level of subsidies, as they are not in the business of supporting social welfare programme. Rather they are driven by the profit motive and as such will intervene in the housing and land markets in areas where target group(s) will afford the options based on the characteristics of the market.

Christopher: Implementing agencies:

A.  Courts and Tribunals.  In the case of my proposed bill, the Medicare Act has not provided for direct access to a court or tribunal.  Regardless, such institutions are reactive, slow, and complex.  Furthermore, they do not correct the cause of the underlying problematic behavior: the discretion and delegated authority vested in the administrative agency, CMS (Center for Medicare Services).

B.  Administrative agencies.  As described above, the Medicare Act delegates authority for the administration of Medicare benefits to CMS.  My bill seeks to limit the discretion of CMS by specifying the inclusion of chiropractic wellness services (treatment of vertebral subluxations) in the statute.

C.  Public corporations.  Public corporations offer greater potential freedom from “red tape.”  They provide potential flexibility for empowering individuals to establish “entrepreneurial” programs.

The use of a public corporation to administer Medicare benefits, perhaps using a Health Savings Account style model, is an interesting an attractive alternative to the existing bureaucracy.  Pragmatically, this would require a complete redesign of the Medicare Act.  The scope of such a sweeping change is far beyond my proposed bill.

I’m already asking for a major change in the philosophy and administration of the program.  Attempting to redesign a public corporation to replace the entire administrative infrastructure is too ambitious.

Question 4

What factors should you consider in deciding whether to assign an existing agency or propose a neew one to implement your bill's detailed conformity-inducing measure?

Mavis: The main disadvantage to consider will be that it is usually more expensive to create a new agency than to assign new duties to an existing agency. However the advantages to look at include the opportunity to recruit new, enthusiastic officials and the opportunity to avoid the existing bureaucratic ideologies, existing patterns of behaviour and existing rules that may hinder an agency from taking on new tasks.

Marlyn: Factors to be considered in deciding whether to assign an existing agency or proposed a new one to implement the bill’s conformity- inducing measures are as follows:-

Christopher: A new agency has several attractive advantages:

            a)  The potential of recruiting new, enthusiastic officials; and

            b)  Avoiding existing bureaucratic ideologies, patterns of behavior, and culture.

As stated above, creating a new agency would be an arduous task, and a much “harder sell” than using the existing agency.  Its creation would incur significant expenses.  A result would be two different administrative agencies, which could lead to inconsistency in applying the chiropractic benefit vs. other benefits.

1. Whether there exists a class of agency with decision making processes that seem appropriate for the new measures.

2. The likelihood that a new policy can be effectively implemented by an existing agency given the problematic behaviors identified by the ROCCIPI agenda in existing processes.

3. The start up and operational costs associated with a new agency.

Question 5

What criteria and procedures should your bill include to ensure that the implementing agency carries out its tasks in conformity with the principles of good governance?

Mavis: Some of the questions which should be asked include whether the agency should be reactive or proactive, how the personnel to man it will be selected, what the officials’ powers and duties will be, what the decision making procedures and criteria will be what kind of conversion processes the bill will provide and finally what the accountability provisions will be.

Marlyn: What Criterion and Procedures should the bill include to ensure that the implementing agency comply with the principles of greed governance?

The bill should include criteria and procedures for :

Christopher: The criteria for good governance include transparency, accountability, and inclusion of stakeholders in decision making.  With my proposed bill, my responsibility is to ensure that the statutory language providing for preventive chiropractic services does not compromise stakeholder access to existing administrative prvisions providing for good governance.

Rob: Good governance is effective government that employs non-arbitrary decision-making. The four elements of non-arbitrary decision making are: governance by rule, participation, transparency and accountability.

Drafting in accordance with the principles of good governance requires the drafter to consider how the specific decision making processes of the implementing agency will conform to the principles outlined above.

Governance by rule requires first and foremost that there be a set of rules governing how decisions are made.  This applies both to decisions about the structure of the implementing agency (for example, how personnel are appointed, with what qualifications, and for what period of time), as well as decisions that relate to inducing the primary role occupants to behave as the law prescribes. In so far as possible the drafter should limit discretion by providing criteria for how decisions are made.  The drafter must ensure that input and feedback processes allow for appropriate participation by those affected by the agency’s decision. Ensuring that the decision-making process is transparent has implications for the way deliberations are conducted as well as how decisions are communicated. Drafting for accountability includes the requirement that an agency’s decision be subject to review.