29 July 2019

Cannabis and culture #nlpoli

Politics and policy are much more complicated things than they appear to many people. Change is possible, but effective change can only come if we see the world as it is, not as some people imagine it might be.

Canada’s legal cannabis policy in most Canadian provinces is a failure.

There are not enough legal cannabis stores to meet demand.  The gap in price between legal and illegal cannabis is growing.  The supply of legal cannabis is spotty and there are still complaints about the quality of what stores have on their shelves. By contrast, the illicit market is apparently thriving. 

The reason that the policy failed is that it was driven by established bureaucratic interests from law enforcement and health and addictions who opposed legalization in the first place.  That led to a policy that placed the maximum emphasis on restriction and limitation of access.

What most governments in Canada ignored is the highly developed, private sector alternative that had been delivering cannabis to retail customers across the country for decades.  The industry survived despite the most severe restrictions that Canadian law could impose.  It *was* illegal to possess cannabis, after all, under any circumstances, for most of the last 60 years or more.

Governments just don’t do “business” very well.  They aren’t organized for it and – what’s more important – the people inside the organizations don’t think about problems the same way people in business do.  In fact, they don’t think about most things the way people outside government do. 

Little known fact.  Isaac Newton’s brother was a bureaucrat. Isaac got the idea of inertia – things just keep going in the same direction unless some outside force acts on it – by watching people in his brother’s office.

Ok.  Not a fact.  Just a funny story, but the observation about bureaucracy is spot on.  As the late Jim Thistle used to say, governments don’t work logically.  They work historically.  The first question is always: “what did we do with this before?”  And the policy that comes out of the answer is almost invariably: “well, do the same thing this time.”

In the case of cannabis, whatever bureaucratic resistance there was in Ottawa was augmented by the provinces whose law enforcement and addictions folks also resisted bitterly what the federal government was doing. Count the number of provincial governments, including the one in Newfoundland and Labrador, that complained about the extra cost that would come from making cannabis legal. 

Police forces argued they would need *more* police even though whatever effort they were making against cannabis was - on the face of it – no longer needed. At best the cost was a wash.  The police could shift resources somewhere else.  At best – for taxpayers – they could have spent less. Addictions people claimed making it easier to get cannabis would create even greater demand for addictions counselling and treatment.

That’s an argument, by the way, that isn’t based so much on evidence and logic as it is on what would persuade a gaggle of politicians fighting a massive financial crisis to accept the bureaucratic way of thinking.  It’s like Henry Kissinger’s famous line about policy advice from the folks at Foggy Bottom.  State Department officials would give politicians the choice between surrender, nuclear annihilation, and the choice preferred by the bureaucrats.

Bureaucrats across the country ignored the revenue that could have come from converting the illicit market into legal transactions. Had they taken a better-informed view, the approach they persuaded politicians to take would have made legal cannabis look like tobacco policy.  Tax audits and compliance inspections would keep track of the product.  Retail licences should have been no more burdensome to get than in tobacco retailing.  The wholesale side of the business could have been left in the hands of private business, as well.

The policy goal *should* have been to convert as many black-market retailers to the white market as possible.  That would reduce the need for police enforcement and letting police chiefs shift their scarce resources to other duties. Meanwhile, governments that were hard-up for cash would suddenly have new tax dollars from sales, the jobs in new retail stores, and whatever corporate taxes the new retail and wholesale businesses would generate.

The story of legal cannabis is a good tonic for all those policy wonks who treat the bureaucracy as if it is a neutral thing. The bureaucracy is a complex mix of people and motivations.  When it comes to policy, the bureaucracy has positions it advances as fiercely as any other player in the game.  If you want to understand why a particular policy came out like it did, you have to look at the whole board.  If you leave out the bureaucrats or naively regard them as pawns, then you will never figure out what happened.

Take Muskrat Falls, for example.  The LeBlanc commission has been working with a bizarre set of assumptions about the whole affair.  LeBlanc has ignored entirely the political dimension of the project.  And when it comes to the bureaucracy, there have been unfounded assumptions about the relationship between Nalcor and the government that have led to what can only be called laughable questions to people like the former deputy finance minister or the folks in natural resources.  At the same time, we did not see any of the key political staffers – chiefs of staff to several premiers – even though they all played critical roles in getting us into the current mess and, let’s be brutally frank,  keeping us there despite all the evidence the thing was a crock of crap from the start.

Example:  the memo given to Dwight Ball and his crowd about the potential for stopping the project.  In notes taken at the time, Ball’s chief of staff listed stopping the project as an option and then two days later – two days (!) – highlighted the need for the Premier to explain why the project wouldn’t be stopped or even slightly slowed.  That’s despite the problems they knew of with the project (and didn’t disclose to the public) and the grave state of the province’s finances.

What’s important to note here is that the memo given to Ball and cabinet looked like the thing came from Natural Resources.  It was actually written by Nalcor officials.  And what’s worse, it contained a litany of rationalizations for the project that had been long discredited or disproven as well as a few unsubstantiated assumptions. It’s called decision-based evidence making.

That really didn’t matter though since Dwight Ball had already committed in September 2015 – before the election – to finishing the project regardless of cost.  The bureaucrats didn’t need to persuade a long-time Muskrateer that the project could only carry on, uninterrupted, regardless of the consequences. 

Ball wouldn’t even take the very smart political advice given him in early 2016 by natural resources minister Siobhan Coady to chuck the entire board and senior management at Nalcor.  She wanted to get a new bunch in to give the thing a proper overhaul.  Coady’s advice was good politics, since it would have opened some distance between the new Liberals and the Williams-era gaggle that had already buggered up Muskrat Falls very badly.  Coady’s idea also would have given Nalcor the governance and management overhaul it desperately needed (and still does).

The only way to make sense of something like Muskrat Falls or to propose any serious changes to the way government and politics works in Newfoundland and Labrador is to figure out how it actually works.  Not the theoretical models.  Not the emphasis on structures and institutions. Not the stuff written about somewhere else and then assumed to apply here whole.  How things work, here.

The LeBlanc inquiry heard a good example in its last couple of days about bureaucrats and policy. The commissioner heard from one researcher that officials in government routinely and deliberately hide information from the public.  They deliberately choose not to write things down in order to avoid it being disclosed.  They use a variety of dog-eared explanations – that it would be taken out of context or would be embarrassing politically to someone – but these are merely excuses.  The bureaucrats who spoke to the researcher know the law on disclosure as well as anyone.  They know what can be withheld and how it can be withheld.  They also know that information can be disclosed so that information is *not* taken out of context.

And yet they chose to do what one deputy minister correctly described as being illegal.  Contrary to what the law provides. 

Bear in mind that while current and former public servants made those statements within the past few weeks,  the attitude they convey is particularly troubling.

That's because it’s been the policy of the government of Newfoundland and Labrador since 1981 that people in the province have a right to information held by government.  It’s the policy because it is the law.

The latest version – the Access to Information and Protection of Privacy Act, 2015 – says much the same thing.  ATIPPA gives “the public a right of access to records” as well as information about themselves and only with such specific and “limited exceptions to the rights of access and correction that are necessary…”.

Granting that right of access is a means to an end.  The reason people have access is: 
  1. to ensure “that citizens have the information required to participate meaningfully in the democratic process”,   
  2.  to increase “transparency in government and public bodies so that elected officials, officers and employees of public bodies remain accountable”, and 
  3. to protect “the privacy of individuals with respect to personal information about themselves held and used by public bodies.”

It is important to note that the pressure to omit information from the public record is not only at the behest of politicians.  Bureaucrats are careful about what they right down because they are worried about internal repercussions should certain information come to light.  The information doesn’t have to be disclosed publicly for someone to run the risk of being sacked or not getting a promotion.  As one deputy minister noted, “even if you move below the [at-] pleasure appointments, we don't have a performance management system in government".  That deputy minister also knew that promotion to the at-pleasure posts also comes with the blessing of the Clerk of the Executive Council in her role as head of the public service.

There’s a cultural problem at play here.  It isn’t new.  Structural changes won’t work. Getting politicians out of the loop won’t fix the problem.  Creating a new office or shuffling responsibilities around won’t fix things.

It isn’t a structural problem.  It’s a cultural one.  The culture defies the law and the structures.  We know that not only because of a few interviews done for the Muskrat Falls inquiry.  We know because the major changes to government access laws in 2012 were driven by bureaucratic resistance to the right of public access that had been the law of the province since 1981.  Bureaucratic interest combined with political interest in secrecy of the new government elected in 2003 conceived Bill 29.  
So extreme was the desire to keep secrets that Bill 29 made it illegal to disclose what cabinet decided about anything.  And following the passage of Bill 29, the Executive Council censored Orders-in-Council rather than amend the Act and remove what is by any measure utterly nonsensical in a modern democracy.  The same clause survived in the 2015 law, by the way, largely as an oversight on the part of the people who drafted it and the Executive Council no longer censors Orders-in-Council to the extent they used to.  But they still do.

Politics and policy are much more complicated things than they appear to many people. Change is possible, but effective change can only come if we see the world as it is, not as some people imagine it might be.