Regulation is a powerful instrument that affects all living beings. It can cause unintentional and unexpected harm to those affected if it is based on deficient knowledge. To ensure a realistic knowledge base, the OECD and EU guidelines for conducting impact assessment and consultation typically state that all relevant stakeholders should be heard in the drafting of a regulation. Ideally, not only does the consultation process bring forth the consultees’ views on the matter at hand but it should also provide evidence on the context in which implementation will occur. The context, in turn, determines a good deal of how the possible impacts will be experienced in everyday life.
In reality, consultation procedures easily favor established lobbyists. At the other extreme there are many ‘silent agents’ who scarcely have the means to participate in the knowledge production of regulatory drafting due to social, health-based, cognitive or legal restrictions. Thus, the drafters of regulations as well as other stakeholders speak about them or for them, or not about them at all. Some silent agents are victims of abuse or discrimination, some are perpetrators, some experience problems due to bad luck or unfavorable conditions, some due to their own choices. Yet they may all suffer unduly from regulatory measures if their everyday realities are not sufficiently taken into account in the drafting. Civil society organizations (CSO) represent the interests of some silent groups but often the approach of an organization may be limited to certain topics or sub-groups. Occasionally, CSOs may speak for the rights of one silent group – but at the expense of another one.
… there are many ‘silent agents’ who scarcely have the means to participate in the knowledge production of regulatory drafting due to social, health-based, cognitive or legal restrictions.
In democratic societies governed by the rule of law, measures of control should not cause additional, considerable harm. Respectively, it is desirable that measures designed to support the addressees, such as services or procedures of appeal function as expected. Even in Finland, which is typically considered a well-functioning welfare state, the annual reports by the Parliamentary Ombudsman reveal problems in both regulatory areas mentioned above. According to its reports, deficient treatment of the elderly, the disabled, children and youth in care facilities, as well as prisoners and asylum seekers represent frequently the most crucial violations of constitutional and human rights. Sometimes the implementation of a regulation is not supported by sufficient resources, but many times the problems are embedded in the social structures and political culture.
For example, ex post evaluations of legislation have shown that new reforms can have severe unintentional consequences for offenders because the law drafting process has not paid attention to their everyday realities, or to the deeply rooted organizational cultures of the implementers of legislation. It is not customary to engage in such matters at the stage of drafting primary or secondary legislation. Then again, solutions to some problems can sometimes be fairly simple. In a survey for remand prisoners in Finland, the remand prisoners frequently answered to open-ended questions that they cannot contact their lawyer in confidence, which is their fundamental legal right, because they can only use a very expensive public phone located in the hallway. Regarding many other silent groups, it is a common finding that those entitled to a specific benefit don’t necessarily know how to apply for it, or those who could make a complaint about inappropriate treatment, for example, don’t necessarily do so, as they may not believe that it helps their situation. Many efforts to help socially disadvantaged people may actually result in labelling.
In Finland, some remand prisoners cannot contact their lawyer in confidence, which is their fundamental legal right, because they can only use a very expensive public phone located in the hallway.
It is especially challenging to draft a well-functioning regulation when it targets people whose behavior or living conditions are considered to pose a risk to themselves, to others or to society, either health-wise, socially or financially. Their social position may arouse morally charged tensions while being subject to specific regulatory measures of protection and control, which makes their position largely dependent on regulatory solutions. Among these people are not only offenders but also people who suffer from severe mental-health problems, excessive consumption of harmful substances, or consumer indebtedness, for example. They also include children in care, and ‘precarious’ residents such as undocumented migrants and asylum seekers. With regard to forced measures, to which some individuals in silent groups are vulnerable, the dilemmas concern the intensity of the measures in relation to fundamental rights. These different silent groups, as well as many others, are also extremely vulnerable during societal crises, for example regarding measures enabled by emergency regulations resulting from Covid 19.
Silent agents are not only offenders but also people with severe mental-health problems, excessive consumption of harmful substances, consumer indebtedness. They also include children in care, and ‘precarious’ residents such as undocumented migrants and asylum seekers.
In public discourse, it is not self-evident that those who engage in ‘improper‘ behavior, or are devoid of full civil rights, deserve public support. Often, the position of silent agents is also subject to special economic interest, for example by the alcohol and medical industry, by the lenders of consumer credit, or by privately owned care facilities. Against all this background it is easy to see how the nature of regulatory interventions on some silent groups can arouse intense epistemic struggles and conflicts between different stakeholder groups that link knowledge with values and specific interests.
Insofar as we design regulations that intensively affect the lives of silent agents, consulting them in the drafting process not only promotes the realization of their political right to participate in public decision-making in matters that concern them, which in some countries is written in the constitution. It is also about being responsible in terms of acquiring knowledge of their everyday circumstances so as to avoid causing unintentional harm. Of course political decision-makers would choose what to do with such knowledge, and on what bases to compare and prioritize conflicting views and interests. The overall setting for decision-making is, however, unbalanced due to a deficient knowledge base regarding the silent ones.
Although it is easy say that silent agents need to be heard it is not easy to actually hear them. Thus, it is quite understandable that regulatory policies lack specific means of reaching out to them. Providing electronic platforms or deliberative forums hardly reach them all, and the same applies to conveying information of the specific timing of when to speak up regarding specific reforms that concern them. These practical problems mean that it is the regulators’ responsibility to actively contact them. Yet, some silent agents may be difficult to reach altogether, they may not be interested in regulatory matters that may seem too distant and official in relation to their everyday concerns, or they may not trust anyone representing the government. They may also consider themselves unworthy of expressing views due to the stigma of their condition. Taking their perspectives into account may therefore be challenging.
So, what to do? Two basic principles come to mind. Firstly, regarding many silent groups one would probably need to engage in tailored face-to-face or small focus-group discussions that would take into account their specific circumstances. Secondly, in order to ask meaningful questions, in a comprehensible language, regulators themselves need to be able to perceive the concrete changes that regulations bring about to the everyday lives of silent agents. As a result, we would need to re-tool the consultation procedures so that guidance makes the officers aware and accountable for this dimension.
But which silent agents to select for consultation, as one cannot choose ‘everyone’? Even if a single silent agent could represent others who are in a similar condition, how to know all relevant sub cultures among a silent group of people? And how to contact them in the first place? It is not easy to answer these questions but they are also difficult to ignore. To care about the position of silent agents is, after all, pivotal to the democratic legitimacy of Western legal systems.
So, what to do? We need to re-tool the consultation procedures
It is obvious that finding ways to engage with silent agents requires group-specific background work, resources, and willingness to take on the challenge. Although it may be difficult to draft perfect regulations, many damaging side effects could most likely be avoided if the everyday realities of both the silent agents and the implementers of regulations that affect them are better taken into account. As this type of an approach would require profound changes to regulatory policy in general, joint brainstorming of those in a position to make a difference, for the developing of new approaches, could be a way to start.
This blog post stems from the SILE research project “Silent agents affected by legislation: from an insufficient knowledge base to inclusive solutions” that has recently started Finland. It has received a funding of 3,5 million euros for three years from the Strategic Research Council, which is an independent body established within the Academy of Finland. SILE is committed to generating new knowledge and working methods with all interested interaction partners to facilitate the building of inclusive and transparent regulatory policy that is socially and ethically sustainable. For more information, please visit SILE’s webpages www.hiljaisettoimijat.fi.