Chapter 3
Institutional and Public Administrative Aspects
of Voluntary Codes
G. Bruce Doern
Introduction
The purpose of this chapter is to examine selected institutional and public
administrative aspects of voluntary codes as an alternative to, or complementary feature
of, traditional regulation.1 Voluntary codes are a class of rules that are crafted by and
agreed to by private parties and organizations without being directly promulgated by the
State. The selected institutional aspects are examined in two ways, first conceptually and
then in relation to the case studies prepared for this volume.
The terms institutional and public administrative are used more or less
interchangeably throughout the chapter. They both evoke values and procedural concerns
rooted in democratic political institutions in Canada and deal with how public
bureaucracies function (or ought to function) in devising and implementing public
policy. Such an institutional focus is presented as a complement to the legal and political
economy perspectives provided in other chapters.
Five institutional and public administrative aspects of voluntary codes are
examined:
•
•
•
•
•
accountability to the democratic State and to the electorate, particularly in terms of
Cabinet-parliamentary government;
internal accountability and democracy regarding interest groups, associations and
firms, particularly since these are the arenas in which voluntary codes would be
developed and “administered”;
the nature of policy instruments (taxation, regulation, spending, persuasion) as
relates to implementing public policies and understanding the actual mix of
functions involved in regulation and the use of voluntary codes;
the impact of budget and personnel cuts and capacities in carrying out tasks both in
the State sector and the private associative democracy sector; and
the nature of overlapping regimes in regulation (e.g. social-versus-economic or
framework-versus-sectoral regulation), such as in the regulation of competition, the
environment and the services delivered by the professions.
Each institutional aspect is briefly sketched out and examined. Since each aspect
is complex and cannot be fully covered in the space available, the style of analysis has to
be basic and suggestive. Thus the approach taken is to compare and contrast, where
feasible and appropriate, each aspect as it applies to “normal regulation” compared to
voluntary codes. There are of course dangers in casting something as normal regulation,
1. Special thanks are owed to Kernaghan Webb, David Cohen and Derek Ireland for helpful comments on an
earlier draft of this chapter.
Kernaghan Webb, Editor, Voluntary Codes: Private Governance, the Public Interest and Innovation.
This chapter ©2004 G. Bruce Doern, pages 57–76.
Published by the Carleton Research Unit for Innovation, Science and Environment, Carleton University, Ottawa, Canada.
Voluntary Codes: Private Governance, the Public Interest and Innovation
since there are many kinds and degrees of regulation.2 However, it is necessary to do so
because, in broad terms, the use of voluntary codes is seen as a potentially better or
necessary alternative or complementary way of achieving certain kinds of “public
purpose.” Thus, for the purposes of this chapter, normal regulation implies that we are
dealing with more direct regulation by the State in which rules are promulgated through
democratic, elected institutions and implemented by State agencies and departments that
have reasonable staffs to enforce and ensure compliance. Voluntary codes, in contrast,
imply that rules are being crafted and implemented by private parties without the direct
presence of the State and its bureaucracies or with an extremely limited such presence.3
More specifically, voluntary codes can be defined as a set of non-legislatively required
commitments that are agreed to by one or more individuals, designed to influence, shape,
control or benchmark behaviour, and are to be applied in a consistent manner or to reach
a consistent outcome.4
Both the conceptual literature and decades of practitioner experience (by
regulators and the regulated) teach that there are numerous gray zones between normal
regulation and voluntary codes, hence the use of such potential or actual oxymorons as
“self-regulation,” “enforced self-regulation” or “symbolic regulation.”5 This means that
there are many shades of “publicness” and “privateness” and of government and
governance.6 The discussion of each institutional aspect will be alert to these realities but
for purposes of raising the issues and discussing the five institutional aspects, the section
will take normal regulation and voluntary codes to be stylized polar opposites. When we
apply the discussion of the five aspects to the selected case studies the gray zones of
reality reappear in at least some of the cases.
The voluntary codes discussed here will serve as a basis for commentary and
analysis rather than a full-scale comparative project.7 This is because the code analyses
undertaken in this volume were not explicitly written with this chapter’s five-point
institutional framework in mind and hence not all relevant information is available to fill
in all the analytical spaces. But the codes discussed in the volume do supply a rich base
for illustrative commentary. Hence, at the end of each section in the five-point
institutional framework, I will draw on these to illustrate key points and/or for further
complementary insight. However, the basic task is to highlight each aspect first, by
2. I. Ayres and J. Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (New York:
Oxford University Press, 1992).
3. P. N. Grabosky, “Using Non-Governmental Resources to Foster Compliance,” Governance: An International
Journal of Policy, Administration and Institutions 8:4 (1995), pp. 527–550.
4. Office of Consumer Affairs and Regulatory Affairs Division, Treasury Board Secretariat (Canada), Voluntary
Codes: A Guide for Their Development and Use (Ottawa: Industry Canada and Treasury Board Secretariat,
1998), p. 2, available at <http://strategis.ic.gc.ca/epic/internet/inoca-bc.nsf/en/ca00880e.html>.
5. J. Braithwaite, J. Walker and P. N. Grabosky, “An Enforcement Taxonomy of Regulatory Agencies,” Law
and Policy 9 (1987), pp. 323–350.
6. P. Aucoin, The New Public Management: Canada in Comparative Perspective (Montréal: McGill-Queen’s
University Press, 1997); C. Hood, Administrative Analysis (London: Harvester Wheatsheaf, 1986), Chapter 3.
7. See the case study chapters in this volume, below, and those from the symposium on voluntary codes held in
Ottawa in September 1996, available in summary at <http://strategis.ic.gc.ca/epic/internet/inocabc.nsf/en/ca00880e.html>.
58 G. Bruce Doern
Voluntary Codes: Private Governance, the Public Interest and Innovation
discussing the institutional aspect in general, then by relating it to “normal regulation”
and, finally, by drawing out its implications and meaning for voluntary codes.
Public Accountability and the Democratic State
The first institutional aspect is public accountability. Accountability in its
broadest form under Westminster-based systems of Cabinet-parliamentary government
involves a set of processes whereby elected ministers are held accountable to Parliament
and officials are accountable to ministers.8 The Cabinet and its ministers are responsible
for policy and, in addition, ministers are accountable for all decisions made within the
ambit of such policies. Accountability for individual decisions is supposed to apply even
though officials have been the de facto decision makers in many individual situations.
Thus, in theory, ministers would resign over major errors of omission or commission.9
Accountability in the above system tends to centre on the notion of
“answerability” or having to account for what is being done. The occasions for giving an
account are numerous and can include parliamentary question period, scrutiny before
parliamentary committees, supplying information to the Auditor General or provincial
equivalents, internal reporting to the central fiscal and political agencies of the
government, and specialized reporting on matters such as language policy, human rights,
and privacy (to name only a few).10 Ultimately, however, these systems of accountability
are underpinned by the larger imperative that a government can be defeated if it does not
command the confidence of the House of Commons.11
In the above context, accountability is cast in terms of only one central
constitutional feature of Canadian government, parliamentary government.
Accountability, however, is further complicated by federalism and by the Canadian
Charter of Rights and Freedoms. But, in itself, this central parliamentary aspect of
accountability does not answer all the questions that many ask about the concept of
accountability.12 These questions include accountability to whom? accountability for
what? and accountability over what time frame? The question of to whom accountability
is owed? can elicit varied responses in that many players think that accountability should
also be to the citizens or interests most affected by a policy. The question of
accountability for what? raises difficult concerns about whether the “what” refers to
8. S. L. Sutherland, “Responsible Government and Ministerial Responsibility: Every Reform Has Its Own
Problem,” Canadian Journal of Political Science 24 (1991), pp. 91–120.
9. K. Kernaghan and D. Siegel, Public Administration in Canada, 2nd ed. (Toronto: Nelson Canada, 1991).
10. G. B. Doern and S. Sutherland, Bureaucracy in Canada: Control and Reform 1985 (Toronto: University of
Toronto Press, 1985); G. Osbaldeston, Keeping Deputy Ministers Accountable (London: National Centre for
Management Research and Development, 1988).
11. M. Atkinson, Governing Canada: Institutions and Public Policy (Toronto: Harcourt Brace Jovanovich,
1993).
12. P. Burton and S. Duncan, “Democracy and Accountability in Public Bodies: New Agendas in British
Government,” Policy and Politics 24:1 (January 1996), pp. 5–16; G. B. Doern, Political Accountability and
Efficiency, Government and Competitiveness Discussion Paper Series (Kingston, Ont.: School of Policy
Studies, Queen’s University, 1993), pp. 1–36; K. Kernaghan, “Reshaping Government: The Post-Bureaucratic
Paradigm,” Canadian Public Administration 36:4 (Winter 1993), pp. 636–645.
Institutional and Public Administrative Aspects of Voluntary Codes 59
Voluntary Codes: Private Governance, the Public Interest and Innovation
precise and measurable performance criteria, or criteria related to democratic processes,
or to some combination of both kinds of criteria. The issue of the relevant time frame is
important because accountability time periods can be annual or even monthly and thus
short-term accountability reporting regimes may distort accountability simply because
many policies are by their nature long-term in their consequences and in the time needed
to achieve mature implementation.
One does not have to ask too many basic questions before it is realized that in
practice there are many “accountabilities” within the overall Canadian or other versions
of the Westminster model of Cabinet-parliamentary government.13 What happens, then,
when we add the dual questions central to this chapter, namely, how does this
institutional element relate to normal regulation and to “voluntary codes”?
With regard to normal regulation, it is apparent from both the literature and
from practice that there are at least three kinds of regulatory mode in which basic
accountability systems differ: the regular department as regulator headed by an elected
minister; the independent multimember commission as regulator; and the designated
statutory person as regulator.14 Arguably, the first of these can be seen to be located
closely within the core traditions of the parliamentary model, in that regulators such as
the Department of the Environment or the Department of Agriculture and Agri-Food
carry out their tasks under such a basic system.
The commission and statutory person models are, by definition, at least one step
further removed in the accountability continuum. They are given forms of independence
from the minister and from Parliament. Thus, the National Energy Board is a regulatory
commission independent from the Minister of Natural Resources, and the Commissioner
of Competition functions under the Competition Act in a manner that gives him
independence from the Minister of Industry.15 The independence is never total but it is
more established than it is for the regular department. And the more distant these
arrangements are from ministers, the more likely it is that the regulator, and the
regulated, will see accountability as a broader democratic concept with accountability
owed as well to those being regulated or to those citizens and interests that are the
beneficiaries of the regulations.
The greater the distance from the central parliamentary concepts, the more that
accountability is less clear and perhaps the more difficult it is to know who to blame
when things go wrong or, indeed, who to praise when things go right. The greater the
distance the less that accountability is also a system of control. But this argument can
only be taken so far, in that many commentators have been critical for decades of the
“pure” accountability claims of parliamentary government.16
13. Kernaghan and Siegal (footnote 9); P. Day and R. Klein, Accountabilities (London: Tavistock Publications,
1987).
14. M. Hill, The Choice of Mode For Regulation: A Case Study of the Canadian Pesticide Registration Review
1988–1992, unpublished doctoral thesis (Department of Political Science, Carleton University, Ottawa, 1994);
G. B. Doern, M. Hill, M. Prince and R. Schultz, Changing The Rules: Canada’s Changing Regulatory Regimes
(Toronto: University of Toronto Press, 1999).
15. G. B. Doern, Fairer Play: Canadian Competition Policy Institutions in a Global Market (Toronto:
C. D. Howe Institute, 1995).
16. Kernaghan (footnote 12); Obaldeston (footnote 10).
60 G. Bruce Doern
Voluntary Codes: Private Governance, the Public Interest and Innovation
In principle then, the development of voluntary codes to deal with some aspect
of public concern moves the accountability circumference one step further from basic
views of elected parliamentary government. Indeed, it may have no connection
whatsoever in terms of anything like what normal accountability occasions to elected
ministers or members of Parliament. Accountability regimes will almost by definition be
seen, under a codes regime, not as relationships that go “upward and inward” towards
parliamentary government and executive authorities but rather radiate in a broad
“downward and outward” direction to interests, communities, clients and the like.
Whether this is good or bad, or merely inevitable, further depends on how we assess the
other institutional aspects that follow.
My reading of the case studies suggests that at least half of them undoubtedly
involve some form of traditional basic accountability, but these cases also show that the
accountability chains are quite diverse in both the “upward and inward” and “downward
and outward” directions. For example, the hockey helmet case and its comparison with
bicycle helmets17 seems to be a relatively simple case in that over a two-decade period,
the safety concerns of hockey helmets were dealt with as a regulation under the
Hazardous Products Act. Amendments occurred over the years through a process led by
the Product Safety Branch of the then-Department of Consumer and Corporate Affairs
and hence with a direct line of accountability to the minister of that department. But
clearly, this case also involved a considerable parallel and complementary use of an
independent standards-writing organization, the Canadian Standards Association, which
in turn involved a broader stakeholder committee in its processes. The Canadian Hockey
Association (formerly the Canadian Amateur Hockey Association) also became a crucial
player through its own reinforcing rules. Looking back, the case seems to be one in
which reasonable success was achieved among several stakeholders but in a situation in
which no significant voluntary codes as such were involved. The case (or the consumer
product involved) was also one that was relatively simple compared to other cases of
consumer product safety that might occur in consumer regulation.
This example does not capture all of the kinds of broader political, legal and
marketplace accountability that exist. For example, the practice of voluntary codes
involves potential review under the Competition Act by the Competition Bureau and the
Commissioner of Competition. This would arise if such codes in their particular design
were deemed to be anti-competitive in their intent or effect. Legal accountability
concerns can arise out of the limits of delegated authority in the government’s
endorsement of code arrangements.18 As for broader marketplace accountability, the
EcoLogo and Gap Inc. code cases suggest that ultimate consumer reactions are the true
disciplining factor.19
17. See Andrew Morrison and Kernaghan Webb, “Bicycle Helmet Standards and Hockey Helmet Regulations:
Two Approaches to Safety Protection,” Chapter 11, below.
18. See Kernaghan Webb and Andrew Morrison, “The Law and Voluntary Codes: Examining the ‘Tangled
Web’,” Chapter 5, below.
19. See Kathryn Harrison, “Promoting Environmental Protection Through Eco-Labelling: An Evaluation of
Canada’s Environmental Choice Program,” Chapter 10, below; Gregory T. Rhone, John Stroud and Kernaghan
Webb, “Gap’s Code of Conduct for Treatment of Overseas Workers,” Chapter 7, below.
Institutional and Public Administrative Aspects of Voluntary Codes 61
Voluntary Codes: Private Governance, the Public Interest and Innovation
In general, the discussion above of accountability concepts suggests that the use
of voluntary codes pushes the accountability circumference further and further away
from the State and its branches. However, it also shows that even in the realms of
traditional regulation these accountability chains had already become extremely varied
and elongated. The analysis also suggests that accountability regimes deal with crucial
questions regarding accountability for what? and not just to whom? Since there are many
aspects of such substantive performance criteria, it follows that voluntary codes can aid
in ensuring that particular kinds of performance are carried out in ways that more
traditional kinds of regulation may not.
Accountability in Interest Groups, Firms and Associations
The second institutional element to be highlighted is the parallel issue of
accountability within and among interest groups, firms and associations of many kinds. If
the State is not to directly regulate but rather some set of “private” or “non-State”
institutions are to be the location for the development and implementation of voluntary
codes, then one key issue is what kinds of democratic accountability, if any, do such
associations have within any given organization and also between and among them?20
Freedom of association is itself a democratic right and a principle of great importance but
there are many conceptual and practical issues involved in the overall world of
associative democracy and politics.21
Accountability in this realm must first be seen in terms of long-argued beliefs
about the nature of a broader representative democracy that goes well beyond
parliamentary democracy. A recent analysis concludes that advocates of such extended
forms of political organization see three principles as being central:
•
•
•
that voluntary, self-governing associations gradually and progressively become the
primary means of democratic governance of economic and social affairs;
that power should as far as possible be distributed to distinct domains of authority,
whether territorial or functional, and that administration within such domains should
be devolved to the lowest level consistent with the effective governance of the
affairs in question — these are the conjoint principles of State pluralism and of
federalism; and
that democratic governance does not consist just in the powers of citizen election or
majority decision but in the continuous flow of information between governors and
the governed, whereby the former seek the consent and cooperation of the latter.22
20. S. Phillips, “How Ottawa Blends: Shifting Government Relationships With Interest Groups,” in F. Abele,
ed., How Ottawa Spends 1991–92 (Ottawa: Carleton University Press, 1991), pp. 183–227; M. Taylor,
“Between Public and Private: Accountability in Voluntary Organizations,” Policy and Politics 24:1
(January 1996), pp. 57–72.
21. P. Pross, Group Politics and Public Policy (Toronto: University of Toronto Press, 1986); P. Hirst,
Associative Democracy: New Forms of Economic and Social Governance (Cambridge: Polity Press, 1994).
22. Hirst, ibid., p. 20.
62 G. Bruce Doern
Voluntary Codes: Private Governance, the Public Interest and Innovation
There can be no denying that these long-held beliefs are a crucial part of the
accountability and implementation of many current policies of government (regulatory
and non-regulatory), but they also raise several issues about the exact nature of
governance regimes and of what constitutes “effective governance.”
The first issue to note is simply the wide variety of mechanisms adopted
internally in each associative realm. The internal governance systems of labour unions,
churches, corporations, business and social interest groups, and voluntary organizations
vary enormously. Some have processes for annual accountability and others for more
frequent avenues of joint decision making with member or delegate voting. Some interest
groups are continually polling their members for their views while others scarcely know
who their members are. Some have their democratic governance determined quite
extensively by the State through laws or regulations while others are more truly “selfregulating.”
A second feature of the associative or interest-group realm is that such entities
have diverse internal dynamics regarding the extent to which they exist, a) to deliver
practical services to their members (magazines, travel discounts, information) or b) to
lobby the State for favourable laws and policies. The rest of the State-centred political
system may well see them largely in terms of the second or lobby role whereas the larger
portion of their members may see them in more day-to-day, service-oriented terms.23
Often this is because the capacity to extract membership dues from the attentive but not
passionately attentive adherent turns on quite utilitarian views of value for money by
individual members. These choices of relative emphasis within the association vary
widely across the economic versus social clusters or groups but each association faces
them to some extent.24 Accordingly, the potential addition of more voluntary code
activity by an association will be filtered through a dual lobby-versus-service role lens
not just through the singular lens of a lobby role.
A third issue flows inexorably from the first two. If policy efficacy is a concern,
then the nature of the association’s own bureaucracy will be of considerable import.
Bureaucracy here has a dual meaning. It means first the staff of the association (if there is
a staff) and its particular kinds of expertise and experience. But bureaucracy also means
its capacity to develop procedures and records for the exercise of discretion (either on its
own or in some shared manner with other associations). This point is important because a
world that puts greater reliance on voluntary codes will be a world with possibly less for
the State to do but not a world of less bureaucracy in both of the above senses. When
there is discretion, there is bureaucracy, because without it, discretion becomes only
random or arbitrary power.25 And however “voluntary” a “code” might be, it is
presumably not being agreed to so that it can “be administered” arbitrarily.
In what other ways does a stylized world of traditional regulation versus
voluntary codes relate to these brief points about associative democracy and
accountability? Traditional regulation has certainly had to encompass all of these realities
to some degree at least. When assessing written briefs for change in laws and regulation,
23. Pross (footnote 21); Taylor (footnote 20).
24. P. Dunleavy, Democracy, Bureaucracy and Public Choice: Economic Explanations in Political Science
(London: Harvester Wheatsheaf, 1991).
25. Hood (footnote 6).
Institutional and Public Administrative Aspects of Voluntary Codes 63
Voluntary Codes: Private Governance, the Public Interest and Innovation
regulators must constantly assess the degree to which they think various groups are
representative and legitimately “speak” for their members. Most regulators, moreover,
are saved enormous amounts of work in information gathering and compliance simply
because there are interest groups they can work with or through. Regulatory compliance
and inspection activity is crucially dependent upon the professionalism and
“bureaucracy” of the corporation or the union, since it often does the larger part of the
real inspecting of the behaviour that regulators want to control or promote.26
A world of greater reliance on voluntary codes is therefore not a world that is a
full or sharp break from normal regulation. But it is likely to put a new, more focussed
searchlight on exactly what associational, corporate and intergroup democracy and
accountability really involve. Indeed, the above discussion has been mainly about
accountability within associations rather than among them.
The case studies vary in the degree to which some of these issues are examined,
but glimpses of their importance are nonetheless present in some of them. One such case
is certainly the chemical industry’s Responsible Care program, as examined by Moffet,
Bregha and Middelkoop.27 The Canadian Chemical Producers’ Association (CCPA)
introduced its environmental Responsible Care program in the early 1980s and its
member companies must commit formally to it if they are to be members of the
association. Accordingly, several features of the CCPA’s internal democracy and
accountability arise.
It is not clear from the case exactly what internal, real trade-offs were made
behind the scenes among member companies as to what Responsible Care principles or
standards were tolerable or feasible among its members. The differences between big and
small firms are hinted at in the case but, despite some consultation processes, it cannot be
said that the processes of arriving at this private form of public policy are as open as they
might be under direct government auspices.
Moffet, Bregha and Middelkoop’s account of the association’s other internal
accountability mechanisms centres on three mechanisms: reporting, a compliance
verification process and public involvement. While the authors commend progress on
each of these mechanisms relative to the previous period prior to the program, they also
raise issues about the inadequacies of each mechanism as well. These concern such
issues as whether the reporting information on member firms deals with particular
pollutants as opposed to some overall environmental performance. Concerns about
whether third-party involvement through advisory committees and other mechanisms are
adequate for sustained pressure on the industry are also raised.
With respect to voluntary codes and accountability within and among interest
groups, firms and voluntary associations, the most basic overall conclusion is that this is
the realm that we know least about. In terms of basic capacity to act as a surrogate State
or series of mini-governing realms, these associations have some strengths and many
weaknesses. While voluntary codes are often seen as a way to reduce the role of
26. J. Clifford and K. Webb, Policy Implementation, Compliance and Administrative Law (Ottawa: Law Reform
Commission of Canada, 1986); G. B. Doern, The Road To Better Public Services: Progress and Constraints in
Five Federal Agencies (Montréal: C. D. Howe Institute, 1994).
27. John Moffet, François Bregha and Mary Jane Middelkoop, “Responsible Care: A Case Study of a Voluntary
Environmental Initiative,” Chapter 6, below.
64 G. Bruce Doern
Voluntary Codes: Private Governance, the Public Interest and Innovation
bureaucrats, they are unlikely to be avenues that reduce the need for bureaucracy in the
sense of having reliable procedures and competences to underpin the administration of
the codes.
The Nature of Policy Instruments and de facto
Implementation
The third institutional element involves the actual interplay among the practical
nature of implementation (including enforcement, compliance and service delivery),
basic policy instruments (such as regulation, spending and persuasion) and the actual mix
of functions that an agency carries out. For the purposes of this section, policy
implementation can be portrayed as the overarching activity of operational agencies of
government within which there is a continuum of actions variously viewed as
compliance, enforcement and service activities.28 Implementation is the process of
carrying out and realizing the intent of public policy established by laws and the
decisions of elected politicians. Accordingly, it involves the values and processes
through which laws and programs are carried out through discrete decisions on “cases”
(firms, individuals, projects) involving action and decisions not to act. It inevitably also
involves the exercise of detailed decision making and discretion by both officials and
private citizens and interests. And it involves processes through which that discretion is
subject to review, grievance handling, appeal and actual redress by governmental
agencies or the courts.
The notion of compliance, enforcement and service provision being a subset of
implementation can be seen through any reasonable understanding of the basic policy
instruments available to government to get things done.29 Such instruments are variously
categorized and sub-categorized but usually in the aggregate include outright State
ownership, regulation, taxation, spending and persuasion. Clearly, how compliance,
enforcement and service realms are viewed depends upon how agencies and their
programs are nested amidst a specific set of instruments and attitudes towards their use.30
For example, Clifford and Webb’s study for the Law Reform Commission of
Canada demarcates the “compliance” realm of implementation.31 Compliance “refers to a
measure of private action or inaction, insofar as it conforms to a standard of conduct
requested or commanded by government.”32 Thus, compliance implies some direct
coercion, but the rest of the study then goes on to show how, within the compliance
spectrum of activities, there are many service-oriented elements. This is so simply
because persuasion, education and information gathering are key aspects of what is
28. See Hood (footnote 6); Doern (footnote 26); A. Ogus, Regulation: Legal Form and Economic Theory
(Oxford: Clarendon Press, 1994).
29. G. B. Doern and R. W. Phidd, Canadian Public Policy: Ideas, Structure, Process 2nd ed. (Toronto: Nelson
Canada, 1992), chapters 7 and 12; S. Linder and G. Peters, “Instruments of Government: Perceptions and
Contexts,” Journal of Public Policy 9:1 (1989), pp. 35–58.
30. Linder and Peters, ibid.
31. Clifford and Webb (footnote 26).
32. Ibid., p. 10.
Institutional and Public Administrative Aspects of Voluntary Codes 65
Voluntary Codes: Private Governance, the Public Interest and Innovation
involved in the compliance-implementation process. In other studies of implementation,
enforcement is used as a term that directly involves sanctions or the harder edge of the
State’s powers and authority. Often, of course, enforcement and compliance are used
together.33
Because of these key features, most studies of implementation show that the real
nature of implementation is “relational” and thus “stands in sharp contrast to the discrete
isolated incident approach to law or to there being a distinct public and private sector.”34
Clifford and Webb’s three-part framework shows compliance as consisting of relations,
instruments and activities. Compliance implementation is relational because the parties
involved include administrators, “administrés” and third parties. Instruments refers to the
basic command-penalty, incentives and persuasion choices already noted above. And
activities refers to an even finer set of actions and processes that concretely occur in
compliance situations. These include inspecting, investigating, negotiating, observing,
information gathering, coaxing, cajoling, warning and the like. It is less a world of
discrete products or actions cascading down a hierarchy and much more a world of
continuous interactions and negotiations, embedded in both service and compliance
activity of the most detailed, disaggregated kind.
When considerations of instrument choice and implementation are brought to
bear on what I am labelling “traditional” regulation or on regulatory agencies, one must
look for similar mixes of activity. For example, a crucial question is to determine what
de jure and de facto mix of functions the “regulator” carries out.35 In an even more
detailed list, these functions can include regulation making (in the sense of delegated
legislation), rule making (e.g. about the agency’s own procedures or hearings), quasijudicial decisions, for which norms and processes akin to court procedures must be
practised, quasi-political allocative tasks, in which licences or approvals are determined
or negotiated, the complementary administration of spending grants or subsidies, policy
advisory functions, either de facto or mandated by law, and broad leadership, educational
or exhortative tasks, in which the regulator is expected to lead, guide and persuade.36
Literally dozens of studies from the legal, political and even economic
disciplines point to the crucial nature of the mix of functions when regulatory (and other)
organizations are looked at closely and seriously. There is, however, often only limited
agreement as to how one can often distinguish, say, a quasi-judicial decision from a
quasi-political or administrative decision.37 Since few if any regulators are unifunctional
and engage only in regulation, it follows that regulators are more than just rule makers.
33. M. K. Sparrow, Imposing Duties: Government’s Changing Approach To Compliance (London: Praeger
1994); Responsible Regulation, (Ottawa: Economic Council of Canada, 1979); Reforming Regulation, (Ottawa:
Economic Council of Canada, 1981).
34. Clifford and Webb (footnote 26), p. 6.
35. Doern, Hill, Prince and Schultz (footnote 14); Linder and Peters (footnote 29); Clifford and Webb, ibid.;
Ayres and Braithwaite (footnote 2).
36. L. Susskind and G. McMahon, “The Theory and Practice of Negotiated Rulemaking,” Yale Journal of
Regulation 3 (1985), pp. 133–165.
37. See Hood (footnote 6); E. Ratushny, “What are Administrative Tribunals? The Pursuit of Uniformity in
Diversity,” Canadian Public Administration 30:1 (1987), pp. 1–13; M. Trebilcock, “Requiem for Regulators:
The Passing of a Counter-Culture?” Yale Journal of Regulation 8:2 (Summer 1991), pp. 497–510.
66 G. Bruce Doern
Voluntary Codes: Private Governance, the Public Interest and Innovation
They are also unelected politicians and administrators engaged in numerous acts of
discretion and political choice in partnership with private sector players whose voluntary
and involuntary involvement is essential for success.
If one takes these points about implementation and instruments further, how do
they relate to the theoretically opposite situation of voluntary codes? In the realm of
voluntary codes, the notion of enforcement is presumably a non-issue in the sense that
the State is not directly a player and hence the legitimate coercive powers of the State are
not being exercised. But the threat of such powers may well be a part of the calculus that
is inducing key interests to “volunteer” themselves for involvement in the
“administration” of the code. In short, there is a veiled view that “if we do not act, the
government will.”
It is also presumably the case that in the realm of voluntary codes, the
implementation of the code relies much more on the softer instruments such as
information provision and education, perhaps with some basic capacity for dealing with
controversial cases through ombudsman-like or mediation processes. The reporting of
cases in some public form may also be utilized. As experience with codes is acquired,
pressure may well increase to routinize the code and to convert it into direct regulation.
This could easily happen if cases were taken to the courts despite the fact the whole
regime is supposed to be “voluntary.”
What do the case studies show regarding this third institutional aspect? In
essence, several of them show the detailed density and embeddedness of real
implementation and thus lend credence to those who argue that traditional regulation and
voluntary codes are more alike than they are different. In essence, they show that
achieving desirable or publicly desired changes in human behaviour is indeed
characterized by many kinds of concrete actions by public and private implementors.
They also show that the key terminology used — regulations, guidelines, standards,
codes — may in fact involve many kinds of norms and rules. A “regulation” may in fact
be implemented as if it was a softer guideline. A “guideline” may in fact be implemented
with a regulation-like hard edge of enforcement. Moreover, the range and mix of policy
instruments must be situated in a realistic “bottom-up” mapping of the inherent scope of
the terrain to which the regulations/codes are purporting to apply.
Consider, for example, the Canadian Standards Association’s Sustainable Forest
Management Certification System, addressed by Rhone, Clarke and Webb.38 What strikes
the novice reader of this case is first the mind-boggling scope of the enterprise when seen
from the perspective of the inherent physical spread of Canada’s forest resources. To this
picture, one adds the 450 organizations involved in the consultation process, the various
ecological criteria at the heart of sustainable forest management, and the fact that one is
concerned about long time frames and thus intergenerational behaviour. And all of this is
nested in a set of current, largely provincial, laws, regulations and programs already
governing the forestry sector.
It is little wonder, given the many multiple behaviours that it is hoped will be
changed, that the case refers to the initiative as basically a guidelines approach that is
voluntary, national in scope and consensus-based. But it also involves a certification
38. See Gregory T. Rhone, David Clarke and Kernaghan Webb, “Two Voluntary Approaches to Sustainable
Forestry Practices,” Chapter 9, below.
Institutional and Public Administrative Aspects of Voluntary Codes 67
Voluntary Codes: Private Governance, the Public Interest and Innovation
system with an auditing process that suggests something closer and more specific and
that, accordingly, sounds like regulation. Meanwhile, all the organizations and firms that
might voluntarily seek to be recognized as a certified practitioner of the new code already
function within a system of real legislation and regulations.
The point to be emphasized in painting the above portrait of the sustainable
forestry case is not to be critical of the initiative, as such. Anything of such an immense
policy scope cannot help but take such a multi-instrument, multistakeholder approach
and then seek to advance the cause of sustainable development in many ways.
A key feature of the forestry case and its implementation issues is that we are
looking at the case in its early days and attempting to visualize what might happen in a
longer term future. A general conclusion to emerge from a discussion of instruments and
implementation is that the private institutional administrator of codes is likely to have, in
the first instance, a similar array of instruments to that of the traditional regulator. But
this does not mean that it can or will behave like a traditional regulator. For example,
with respect to sanctions and therefore actual legitimate coercive powers, the private
administrator is likely to be weaker, in part because it will find it hard to bring actions
against its own members. In the final analysis this is because it is not a part of the State.
Budget and Personnel Cuts and Technical Capacity
The relationship between budget and personnel cuts and the technical capacity
to carry out agreed public tasks presents a “catch-22” situation regarding voluntary codes
and traditional regulation. This is because the severity of public sector budget and
personnel cuts in the last decade is one of the key factors why voluntary codes and other
types of “reinvented regulation” are being advocated.39 In other words, it is simply the
case that the State can no longer do it alone and hence partnerships are essential. The
“catch-22” is that many elements of the associative and interest group sector are also
facing budget and personnel cuts. Indeed, in the case of the social interest group sector
and the voluntary sector, these associations may not have had many staff to begin with
and, moreover, what funds they had often came in crucial proportions from the State
itself.40 Thus, the fourth institutional aspect of budget and personnel cuts needs to be
looked at in quite a careful way. Consider first some basic features of this aspect when
applied to traditional regulation.
Internal regulatory agency capacity — that is, the ability to carry out regulatory
tasks (its actual mix of functions) — is crucially a function of personnel. Regulatory
agency budgets are not typically large but they are personnel-intensive. In the case of
staffing, real capacity in turn depends also upon the availability of appropriate technical
knowledge and the ability to attract people and maintain up-to-date competences. Hiring
twice as many staff does not mean that a regulator can be twice as good at its job or catch
39. Phillips (footnote 20); J. Martin, Regulating the Regulators: The Canadian Approach to Implementing
Government-wide Regulatory Reform Strategies, paper presented to the New South Wales Regulatory Review
Conference, Sydney, Australia, June 20, 1995; R. Pildes and C. Sunstein, “Reinventing the Regulatory State,”
The University of Chicago Law Journal 62:1 (1995), pp. 1–129.
40. Phillips, ibid.
68 G. Bruce Doern
Voluntary Codes: Private Governance, the Public Interest and Innovation
or prevent twice as many offences. But equally, any regulatory body requires some
minimum basic capacity or it simply lacks credibility and a capacity to act.
A further crucial and long-known aspect of regulatory institutional behaviour is
the importance of asymmetrical knowledge and information between the regulatory staff
and the industries and associative communities being regulated.41 This asymmetry almost
always produces an enormous political advantage for the regulated. The regulator can
simply never know as much as the regulated and this becomes a crucial basis for possible
capture. Information asymmetry can also come in the form not just of technical
superiority but also a capacity to inundate the regulator with information if need be. For
the regulator, the only counterweight to this kind of de facto power of knowledge may
well be the agency’s capacity to exercise discretion and hence to wield the power
inherent in the presence of such uncertainty. The regulator has this capacity by virtue of
its legal ability to exercise the “authority” of the State.
Accordingly, the design of a regulatory body can involve situations in which
ministers can confer on the regulator extensive authority but limited resources, more
limited powers but quite extensive resources, and various combinations in between.
These combinations can be altered as time goes on and thus represent the ability of
Cabinets to “discipline” or “enable” the regulator, depending upon political judgments of
the regulator’s performance. For example, there are often serious constraints placed upon
regulators in their ability to launch legal action when needed. Regulators and
governments know that legal costs can be enormous, even when budgetary times are
good, and that on an annual basis a small handful of cases could potentially “exhaust”
their legal war chest.
While the above discussion has stressed the staffing side of the capacity
equation, it should not be implied from this that budgets do not matter. Budget cuts can
affect the ability of the regulator to do or commission research and to obtain information,
as well as the capacity to hold hearings and obtain public input. The ability to
transparently report case experiences and trends in a publicly accountable fashion can
also be greatly harmed when budget cuts get too close to the bone.
When applied to a hypothesized greater reliance on voluntary codes
administered by associative bodies of various kinds, the budgets and staffing issues
suggest both advantages and problems. In principle, one might have access to a wider
array of expertise from the associations involved. However, such expertise is unlikely to
be engaged in any concerted way with only the work involved in ensuring that the code
is implemented. The array of associative bodies will have their staff engaged primarily
on those activities most crucial to their membership. The likelihood is strong that
“voluntary code” administration will not only be voluntary but also that it will be
implemented on a part-time or overtime basis.
The associative sector does of course vary in its capacities. Larger business
groups and certainly many large firms may well be able to attach their new involvement
in a code to their already large involvement in other traditional regulatory realms. For
41. M. Bernstein, Regulating Business By Independent Commission (Princeton, N.J.: Princeton University Press,
1955); T. Makkai and J. Braithwaite, “In and Out of the Revolving Door: Making Sense of Regulatory
Capture,” Journal of Public Policy 12:1 (January–March 1992), pp. 61–78; S. Harris, The Political Economy of
the Liberalization of Entry and Ownership in the Canadian Investment Dealer Industry, unpublished doctoral
dissertation (Department of Political Science, Carleton University, Ottawa, 1995).
Institutional and Public Administrative Aspects of Voluntary Codes 69
Voluntary Codes: Private Governance, the Public Interest and Innovation
associations without such a built-in capacity, the addition of the voluntary code simply
adds one more impossible job to others with which it is already struggling to cope.
With regard to the case studies, it must first be said that their authors did not
systematically focus on these budgetary and staffing cutback issues. However, some of
the cases do contain observations that suggest that such cutbacks and issues of
administrative capacity are important.
The case studies supply glimpses into just how far one must go to get an
accurate picture of what administrative capacity means and what kind of a public/private
implementation chain of relations is actually involved in regulation as compared to
voluntary codes. For instance, in the case of Gap Inc.’s Code of Vendor Conduct, the
de facto implementation and compliance chain stretches across the globe to Third World
factories, intermediate suppliers, workers and unions, and associated “whistle blowers.”42
A further aspect of budgets and voluntary codes is that costs may be spread
differently in the separate realms of rule making and compliance. In the latter function,
codes lead to costs being met more by affected parties than by general taxpayers. Thus,
in the Responsible Care case study, each company paid for its own third-party
compliance verification.43
The issue of budgets, personnel and technical capacity produces overall
conflicting points regarding voluntary codes. On the one hand, the pressures of
governmental budget cutting are among the more powerful reasons why codes are seen
as necessary. On the other hand, the spending, personnel and other aspects of inherent
technical capacity that private associations must have but often do not are too often
ignored.
Overlapping Regimes in Regulation
The fifth and final institutional aspect is that of recognizing and dealing with the
growing overlapping regimes of regulation inherent in the total world of the Canadian
regulatory system.44 The kind of overlap envisaged here is that which arises from the
interactions that a traditional sectoral regulatory agency such as the Canadian Radiotelevision and Telecommunications Commission or the National Energy Board may have
with an array of regulators whose mandates are horizontal or framework-oriented and
that therefore in principle are intended to cut across sectors and not discriminate between
sectors. Such realms are rarely as pure as this description suggests, but there is little
doubt that these overlaps are of growing importance.
Again, one of the reasons why both firms and citizens are pushing for a greater
reliance on voluntary codes and flexible regulation is that they have for a long time
experienced regulation as a confusing morass.45 They do not see their world as being one
in which they face a neat, clear relationship with one or even two principal regulators.
42. See Rhone, Stroud and Webb, “Gap’s Code of Conduct,” Chapter 7, below.
43. See Moffet, Bregha and Middelkoop, “Responsible Care,” Chapter 6, below.
44. Doern, Hill, Prince and Schultz (footnote 14).
45. Martin (footnote 39); T. O. McGarity, Reinventing Rationality: The Role of Regulatory Analysis in the
Federal Bureaucracy (New York: Cambridge University Press, 1991).
70 G. Bruce Doern
Voluntary Codes: Private Governance, the Public Interest and Innovation
Rather, they have experienced a plethora of regulators and rules emanating from several
levels of government within Canada and increasingly from international bodies and
agreements as well.46 Several examples can be cited here, but the nature of the dynamics
can be illustrated in three areas: competition regulation, environmental regulation, and
the regulation of the professions and service quality.
Competition law and environmental regulation are arguably the most important
recent manifestations of the broad overlap between sectoral and framework regulation,
but there are other areas that many would include, such as tax laws and rules, trade and
investment, consumer and product quality and safety, and banking and financial
probity.47 Both competition and environmental regulatory realms have crossed paths with
sectoral regulatory realms, often in conflict and sometimes cooperatively.48
Competition regulators have often been restrained by statutory provisions that
exempted several sectors from their jurisdiction. But a decade or more of privatization
and deregulation has itself made more compelling the case that competition law should
take precedence over sectoral regulators who may have only limited pro-competitive
instincts or mandates.49 On the other hand, the particular tools and time frames that might
be applied by competition regulators might be quite inappropriate for the technical and
political-economic realities of sectors such as energy or telecommunications.
Environmental regulators have been similarly restrained in the past and have
often crossed swords with their sectoral brethren (and aligned interests). But the gradual
articulation of sustainable development mandates in many governments has meant that
the horizontal reach of green regulators is expanding, albeit in numerous particular forms
and degrees in different countries.50
At this point one can simply observe that in these areas alone firms, citizens and
the various regulators are dealing with multiple laws and rules that are intersecting in
ways that governments are trying to sort out, or that firms and citizens are sorting out for
them through court cases and myriad case-by-case compromises. Some of these
responses may already be “code-like” in nature, in that the regulations range from hard
rules to published guidelines to circulars suggesting how firms or people might behave.
At a quite different level, consider the overlap issues inherent in the regulation
of professions and the public services they deliver. The extensive literature on the
professions and on the regulation of quality suggests that there are four central cross46. D. Vogel, Trading Up: Consumer and Environmental Regulation in a Global Economy (Cambridge, Mass.:
Harvard University Press, 1995); G. B. Doern, “A Political-Institutional Framework for the Analysis of
Competition Policy Institutions,” Governance 8:2 (April 1995), pp. 195–217.
47. J. Francis, The Politics of Regulation: A Comparative Perspective (Oxford: Blackwell, 1993); G. B. Doern
and S. Wilks, eds., Changing Regulatory Institutions in Britain and North America (Toronto: University of
Toronto Press, 1998).
48. P. Vass, “The Accountability of Regulators,” in Regulatory Review 1994 (London: Centre for the Study of
Regulated Industries, 1994).
49. Doern and Wilks (footnote 47).
50. G. B. Doern and T. Conway, The Greening of Canada: Federal Institutions and Decisions (Toronto:
University of Toronto Press, 1992); T. S. Gray, UK Environmental Policy in the 1990s (London: MacMillan,
1995); A. Weale, The New Politics of Pollution (Manchester: Manchester University Press, 1992); and
G. Hoberg, Pluralism By Design: Environmental Policy and the American Regulatory State (New York:
Praeger, 1993).
Institutional and Public Administrative Aspects of Voluntary Codes 71
Voluntary Codes: Private Governance, the Public Interest and Innovation
cutting socioeconomic principles or questions involved.51 The first centres on the nature
of the service involved. Professional/client relationships involve a highly individualized
form of service geared to the client’s specific needs and circumstances. The service also
involves a technically sophisticated base of knowledge. And it involves extensive realms
of professional judgment applied to specific case situations. Other key dilemmas of
regulation flow from these service and relational characteristics.
The second question regarding professional services is that normal competitive
markets as a “regulator” and traditional direct regulation by the State are both virtually
impossible to employ in these circumstances.52 Normal markets are difficult because
there is no homogeneous product the price of which will provide appropriate market
relations and signals. Each output or service is unique. For the same reason no regulator
or regulatory commission can easily specify outputs and standards as a basis of direct
regulation. It follows as well that clients of the professional service provider must place a
considerable amount of social trust in the integrity and competence of the professional.
Society, on the other hand, through its political institutions, will not likely allow
unfettered trust. Trustworthiness will somehow have to be shown — i.e., “regulated.”
A third issue of principle flows out of the trust relationship. It is that a
professional culture and set of entrenched norms and principles (codes?) must be
developed collectively by the profession though education and other ongoing
mechanisms.53 But individuals, and individualism, may break these norms. The client
meanwhile must have almost perfect information about professional suppliers, a
condition that rarely applies, and that therefore supplies one of the most broadly
supported rationales for government regulation, rather than just codes or guidelines.
A fourth principled concern goes beyond service outputs and relates to the
quality of outputs. Quality is not a simple concept. While it could simply be an attribute
related to price or the basic presence or absence of value for money, quality can also
extend to characteristics of technical ability, including such things as the ability to
provide clear explanations to a layperson.54
Given these characteristics, only certain kinds of regulatory mechanisms or
models become available and these initially involve choices about regulating inputs
versus outputs and then choices about the extent of State regulation versus so-called selfregulation. Each has different advantages and disadvantages. Even the model referred to
as “self-regulation” is in fact a form of delegated regulation. The key here, not
surprisingly, is that in professional knowledge and service-delivery realms, the central
51. M. Trebilcock, “Regulating Service Quality in Professional Markets,” in D. Dewees, ed., The Regulation of
Quality (Toronto: Butterworths, 1983), pp. 83–108; R. D. Blair and S. Rubin, Regulating the Professions
(London: DC Heath, 1980); T. Stevenson, “Regulation, Deregulation, Self-Regulation: The Case of Engineers
in Ontario,” Journal of Business Ethics 4 (August 1985), pp. 253–267.
52. D. Dewees, ed., The Regulation of Quality (Toronto: Butterworths, 1983), Chapter 1.
53. J. Shapland, Self-Regulation of the Professions: Coercion or Free Choice, paper presented to the
Conference on Regulating the Professions, University of Strathclyde, Glasgow, April 20–21, 1995; C. Tuohy
and A. Wolfson, “Self-Regulation: Who Qualifies?” in P. Slayton and M. Trebilcock, eds., The Professions and
Public Policy (Toronto: University of Toronto Press, 1978), pp. 111–122.
54. Trebilcock (footnote 51); R. Dingwall, A Respectable Profession? Sociological and Economic Perspectives
on the Regulation of Professional Services, paper presented to the Conference on Regulating the Professions,
University of Strathclyde, Glasgow, April 20–21, 1995.
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Voluntary Codes: Private Governance, the Public Interest and Innovation
relationships of “agency” are dual in nature: first between the professional and the client,
and second between the profession and the State.
The overlap of these regimes — framework-versus-sectoral and social-versuseconomic regulation — produces their own further version of a regulatory paradox. They
have already produced the need for arrangements that often look like voluntary codes but
are not necessarily called that. And they have led to various forms of partial enforcement
and a search for new compliance approaches. But equally, they make the task of adding
new or partial voluntary codes more and more complicated. They also produce probable
losses in accountability, certainly in the sense that there will be no voters and
parliamentary government involved, but also in that interest groups and associations will
be hard pressed to figure out how their public and private responsibilities are connected
and entangled.
Some of the case studies reflect the presence of overlapping regulatory regimes
but not necessarily in the form of a head-to-head collision with two sets of rules — one
framework and the other sectoral. Rather, several of the cases involve the application of a
framework regulatory regime that then confronts facts and complexities that are either
peculiar to a specific sector or are simply resisted or amended by that sector’s interests
and views. This can occur either at the stage at which rules are being established or
amended or through various kinds of accommodation during implementation.
A high proportion of the voluntary codes examined in this volume involve
consumer regulation and issues.55 In broad terms, the various kinds of consumer law are
framework in nature, in that they are intended to ensure that all sectors of the economy
are characterized by fair and open market practices, adequate information and forms of
redress for consumers when things go wrong. But while designed to be sector-neutral,
the practical politics of each application of the law or the regulations may be sectorspecific. For example, there are specific regimes for helmets and for privacy.
Inevitably, each sector will have its own peculiarities and special circumstances,
not only among the producer interests but also among the various kinds of consumers.
The practical technical/physical features of the consumer end product or the production
process that produces it will also be different. Many of the voluntary codes examined in
this volume bring out some of these basic sectoral features, which must inevitably “bend”
the nominal framework or horizontal nature of rules into a series of regulatory pretzels.
But there is even more to the overlap than this. The case studies tell the story
from the starting point of a particular statute, regulation or voluntary code (in these cases,
consumer-related). But, because of their brevity, the authors of the case studies cannot
possibly fill in the rest of the real-world picture, which is that these sectors already, or in
addition, have several other aspects of governmental regulation impacting upon them,
some directly sectoral, and others still other kinds of framework law.
55. See Rhone, Stroud and Webb, “Gap’s Code of Conduct,” Chapter 7, below; Colin J. Bennett, “Privacy SelfRegulation in a Global Economy: A Race to the Top, the Bottom or Somewhere Else?” Chapter 8, below;
Rhone, Clarke and Webb, “Sustainable Forestry Practices,” Chapter 9, below; Harrison, “Canada’s
Environmental Choice Program,” Chapter 10, below; Morrison and Webb, “ Helmet Standards and
Regulations,” Chapter 11, below.
Institutional and Public Administrative Aspects of Voluntary Codes 73
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Conclusions
This chapter has examined a set of five institutional and public administrative
aspects of the use of voluntary codes. These institutional aspects must be considered
along with the legal, economic and other aspects of codes examined in other chapters.
The five selected institutional aspects are by no means the only ones that could have been
selected but anyone seeking to understand the actual or potential role of voluntary codes
does need to appreciate each of the five aspects. Parliamentary accountability, the
democratic basis of associational politics, the nature of policy implementation and mixes
of policy instrument choice, the impact of budget and personnel cuts, and the effects of
overlapping regulatory regimes are each important in their own right.
It must also be said that it is not difficult to see that it is at times quite artificial
to analyze each of the five institutional elements separately. They are not entirely
watertight categories of analysis or of the expression of important democratic values.
Moreover, the chapter has necessarily discussed them in a somewhat polarized manner
by differentiating between stylized notions of traditional regulation versus voluntary
codes. The case studies are a useful antidote for any such analytical tendencies. Though
not fully designed to fit the particular questions posed by this chapter, the case studies do
offer important insights into some of the issues raised above, as well as others that were
not the focal point of this chapter but that other academic and practitioner perspectives
are concerned about.
Perhaps the largest institutional and public administrative picture to emerge
from the chapter as a whole is that of a government presiding over two broad clusters of
rule makers and compliance organizations: one that the government regulates itself and
in which it has direct contacts with regulatees, and one in which it oversees, in some less
clear and indirect fashion, a set of self-regulators and code administrators that have the
direct relationship with the persons and interests affected by the code. In this regard the
growing voluntary codes regime can be seen as a natural “bottom-up” construction of
systems of rules and guidelines that simply complements the more formal State-centred
regime. Hence, according to this view, a voluntary codes regime is desirable and
necessary in an increasingly complex society and economy.
However, it is inappropriate to leave the issues involved at this level of
approving generality. The questions that need constantly to be posed and empirically
examined all centre on the key middle-level aspects explored in this chapter.
Concerns about accountability are crucial, but both the conceptual analysis and
the case studies show that there are many competing notions of accountability, including
those informed by traditions of parliamentary government and those that see
accountability extending outwards to interest groups, citizens and markets.
The more extended the accountability chain to private or quasi-private realms of
“governance,” the more likely the spotlight will fall on the nature of associational
democracy and, eventually, on the administrative capacity and fairness of firms,
associations and groups of associations acting in concert. Thus a greater use of voluntary
codes may well suggest a world of fewer State bureaucrats, but it is unlikely to be a
world of less bureaucracy if bureaucracy is understood to be rule-based governance.
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The nature of actual implementation and the mix of policy instruments involved
in both a world of regulation and a world of voluntary codes is often the institutional
aspect least appreciated, or at least most overstereotyped. There is simply no avoiding in
most realms of public policy a confusing but necessary multilayered set of instruments
that range across a wide spectrum of enforcement and compliance. Such instruments
include incentives, education, persuasion and voluntarism galore, but they also include
actual enforcement and penalties or the fear of such actions. Voluntary codes may have
strengths in the use of some of these instruments and hence help solve real problems, but
they are likely to prove weak in other respects because associations will find it difficult
to apply real sanctions to their own members.
The issue of budgetary and staffing cuts and capacities is important in the last
decade because it is obvious that some suggestions for the greater use of voluntary codes
and self-regulation are a direct result of the shrinking of the real State and hence the need
to form a larger, para-public, quasi-State apparatus. However, budgetary and staffing
capacities are in fact a larger issue in that the private sector writ large will be the
“administrators” of the elongated voluntary code chain of behaviour. Thus, not only the
size of the resource commitment private interests make but also its detailed competence
and procedural capacity will assume greater importance.
And finally, the overlap of regulatory regimes is important in any rigorous
account of governance through codes. Many of the case studies in fact dealt with
framework regulatory starting points and concerns, but the actual implementation of
these rules runs headlong into the specific features of sectors, with sectors themselves
being as broad as the forestry industry or as narrow as the hockey helmet industry. These
interlocking worlds make the demand for more voluntary codes perfectly understandable.
But equally, they make the prospect of clear, narrowly defined accountability utterly
impossible.
Institutional and Public Administrative Aspects of Voluntary Codes 75