Case Study: Human Rights Policy and Public Service Renewal
The difficulties of instituting change within an environment of long-established policies and programs, procedures, and interests have been explored by Brian Howe and David Johnson (2000) with respect to human rights policy, and specifically the functioning of federal and provincial human rights commissions. Their work offers support for the reform thesis of government change in recent years. The Canadian Human Rights Commission and its provincial counterparts have undergone major restructuring of their methods of program delivery and service to citizens, but when we look closely, we can again see this process as an example of incrementalist change.
All commissions, for example, have developed computerized case flow management systems to track the status of applications and to alert participants when cases begin to exceed normal processing times. And they have also developed mediation and conciliation processes to expedite cases and reduce the proportion of complaints requiring full hearings—which are time consuming and costly. But both of these initiatives can trace their origins to years of slow, incremental reform as commissions experimented with these program ideas.
The legislative policy and program framework that provides “rights” to individual citizens has a pivotal influence in the human rights field. A government body—a human rights commission—is legally obligated to serve and promote these rights and to address by legal means any transgressions of those rights. Its ability to transform its structure and operations is therefore strictly limited by its legal duty to adhere to its legislative mandate and to enforce established legal rights and duties. Any change or organizational action that appears inconsistent with that mandate is subject to legal challenge.
The Canadian Human Rights Commission cannot, for example, unilaterally impose user fees on complainants and respondents, or restructure its complaint adjudication process to involve private mediation services with more market-oriented and entrepreneurial decision-making approaches. It cannot levy fines on guilty parties in order to create an investment capital pool. These changes would be illegal under the Canadian Human Rights Act.
If a government were to support the fundamental reinvention of human rights policy—to go back to square one over policies and procedures—how would interest groups respond? Advocacy groups would very likely press for greater rights coverage and protections; less stringent tests to “prove” cases of discrimination; and a stronger, larger, and better funded human rights commission. Business groups would probably argue in favour of the outright abolition of the Canadian Human Rights Commission, or at least for more restricted substantive and procedural applications of rights policy. They would want tougher rules and regulations to govern how alleged discriminatory practices were proven, and a smaller, less well-funded commission, mandated to devote particular attention to the interests of business respondents. A minister or government contemplating the reinvention of rights policy and procedures would be stirring up a hornet’s nest.
It is little wonder that neither the federal nor provincial human rights commissions have attempted to transform their structure or operations. More modest yet still significant reforms have addressed operational issues such as improved public education programs and case-flow management, but these have emerged—naturally enough—in an incremental fashion.
Reform of any stripe will always be governed by what is viable. It must serve the long-term interests of the government and its bureaucracy, while advancing public policy aims and gaining support from stakeholder groups, the media, and the public.
