COLUMN – Legislation, regulation, morality
Legislation: law enacted by a legislature or governing body for the purpose of regulation, authorization, sanctioning, granting, declaring or restricting some activity or behaviour, and even legalizing the provision or use of funds. The creation of legislation is seen as one of the three main functions of any government, and facilitates the separation of power between the legislature (usually the Houses of Parliament), the judiciary and the executive branch (Prime Minister and Cabinet).
Regulation: that which creates, limits, or constrains a right; creates or limits a duty; or allocates responsibility. It must be distinguished from the laws referred to above and can take several forms, including legal restrictions, contractual obligations, self-regulation, co-regulation, certification or some form of accreditation. Regulations are often created by executive agencies to ensure adherence to legislation.
Morality: the differentiation of actions, intentions or decisions on the basis of right, wrong, good and evil. It can be a body of standards or principles often derived from a code of conduct for a profession or other grouping, or even from a philosophy, religion or culture. Ethics is an important subset of morality and this is often the foundation of discussions in this area. (Definitions with courtesy of Wikipedia.)
When brought together it is expected that the right mix of legislation, regulation and morality would lead to good governance at a national level and extend to the corporate level across jurisdictions.
In recent times, our country has been faced with a range of economic, social, political and other issues, and many have opined and discussed the relative merits of legislation, committees, regulations and the lot to bring about a solution. What I however find amazing oft-times is the belief that structures, rules and systems will create or force the change that is often required, rather than looking at the role of people and relationships in the creation and lack of resolution of many of our crises or other national issues.
I am not a supporter of new laws, the formation of committees and so forth, if simply implementing what we already have can achieve the same end. I am not a supporter of the creation of further bureaucracy and potential litigation that still will not achieve the required end.
In many regards, we have already identified the existence of rules, policies, legislation, regulations and so forth, but it is a matter of implementation and follow-up. Specifically in our current situation, I am hesitant for new laws not related to a new sector or agency as we already have a backlog within the Office of the Chief Parliamentary Counsel, so why should we further frustrate that office with unnecessary legislative work.
We often call for a legislative approach to rectify an issue that has its foundation in a lack of professionalism or morality, and this creates great difficulty for me. Poor management and misappropriation of funds require a police investigation, filing of charges and a court hearing to determine the matter. What it does not require is a new bill, law or regulation to try to pre-empt such behaviours in theory.
In my opinion we are over-regulated and over-legislated in many areas. How will further action in either area fix:
1. Ongoing fiscal mismanagement as outlined by the Auditor General annually?
2. Loss of lifelong investments of CLICO policyholders or prevent such from occurring ever again?
3. The need for improved fiscal and debt management by Government?
4. Ethical challenges facing lawyers and other professionals with respect to their client relations?
5. Resistance to efforts of the leadership of the Police Force to clean up the reputation, behaviours and general operations of the police?
These unfortunately are all products of human behaviours and must be treated accordingly.
Morality and ethics often lead to grey areas in judgement and behaviours, and I strongly believe herein lies our issue. We do not have a legislative or regulatory issue; we have a people or behaviourial issue.
Legislation created and enacted by the legislative branch –– in our case, Parliament –– needs to be implemented and interpreted by people. Regulations have to be created by people after interpreting and determining the desired behaviours, and adherence to these regulations is carried out by people. So how do we get the people factor fixed, and eliminate the element of morality being a problem?
From where I stand, I see two additional Ps creating a serious threat to the right mix between legislation, regulation and morality and these must be neutralised:
Power: the ability to influence and control the behaviour of people, and is often seen to lead to authority once the influence and control is deemed legitimate.
Politics: the practice and theory of influencing other people; organized control over a human community; it is the study or practice of the distribution of power and resources within communities.
Power and politics have prevented our legislation and regulations from functioning as they should. One of the things I admire about the American style of government –– which in itself is not a perfect specimen –– is the clear separation between the branches of government that does not obtain generally in Westminster-style governments in the Commonwealth. Such a style promotes self-regulation ingovernment that is often necessary. We can ill afford for our systems not to function due to relationships with politicians or the poor use of power.
Essentially therefore we seek a right mix of legislation and regulation governed by morality and free from interference driven by power and politics. Once achieved we can thrive and be even more successful in our national quest.
Does it take special leadership? Stay tuned!
(David Simpson is managing director of Prestige Accounting Inc. and immediate past president
of the Institute of Chartered Accountants of Barbados.)