The rule of law is critical to democracy. Understand what contributes to the under-mining of the rule of law.
GDR = Government Directive on Regulating
I have submitted the following to the PCO (Privy Council Office), responsible for the GDR which is part of so-called “Smart Regulations”. (This was part of a public consultation process.)
EMAIL YOUR INPUT to SMART Regulations to: info@regulation.gc.ca DEADLINE: December 23rd.
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Dear Daniel, Samir, and Ben, (PCO)
. . . (3) REGARDING THE STATE OF COMPLIANCE (Canadians are learning non-compliance)
PROPOSE: test the effectiveness of the GDR document by running actual events through it.
The GDR states:
page 2, line 77: Regulations are a form of law – they have binding legal effect …
page 10, line 475, Under Planning for Compliance:
Departments and agencies are responsible for facilitating compliance by designing regulation from the perspective of those who must administer or comply with it.
That is most of what the GDR says about compliance.
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PUT THE GUN REGISTRY AND THE 2006 CENSUS THROUGH THE GDR:
Canadians are learning non-compliance. We need to understand why that is, and then build the regulatory framework to guard against it, if possible.
RECENT EXAMPLES OF NON-COMPLIANCE
(1) The ability of the Canadian Government to regulate was seriously undermined by the Gun Registry. There are very high levels of non-compliance, a thumbing of the nose at the Government.
(2) When citizens see the amount of corruption in the Government there is further loss of respect and the ability to regulate suffers another great setback. There is a high level of non-compliance with Income Tax regulation, a form of resistance or passive agressive behaviour by citizens reacting to corruption in Government. Why should we pay taxes when hundreds of millions of dollars of that money are used to line the pockets of racketeers?
(3) I suspect we are headed into unprecedented levels of non-compliance with the 2006 Census. The Government went ahead with the contracting-out of census work to the American military company, Lockheed-Martin, in spite of great opposition from Canadians.
(4) The regulatory function in Health Canada through its subsidiary agency, the PMRA (Pest Management Regulatory Agency), is in disarray.
Municipalities and one province (Quebec) have stepped in and taken over part of the regulation of pesticides. This is 77 municipalities with many more to come, now that the Supreme Court has refused to hear the appeal of the Toronto pesticide bylaw. The bylaw stands.
Problems with compliance are exacerbated: why should citizens comply with regulations when the Federal Government refuses to regulate industry? In 4 consecutive reports beginning in 1988 the Auditor General’s Department (Sustainability section) told the Government that the PMRA was not doing its job; no correction came about, municipalities (citizens) had to step in. THEY started passing laws to regulate the chemical companies.
It is noted that in every community where there has been a pesticide bylaw battle whether successful or not, the battle involves putting information into the hands of citizens. Every battle means yet more people become aware of Government agencies such as the PMRA whose clients are the chemical industry with the concommitant lack of regulation. The lack of regulation is explained by John Kenneth Galbraith, see below “(3) STATE OF GOVERNANCE.”
(5) A large portion of the cases taken to court by the Sierra Legal Defence Fund (UPDATE: now renamed Eco-Justice) are against Government, for failure to enforce its own regulations.
Non-compliance by industry is over-looked in some industries. The situation is exacerbated by Government policy to reduce funding to Government departments, while simultaneously money is routed to corporations through public-private partnerships, contracting out, etc.
The non-compliance examples fall into two categories, EQUALLY SERIOUS: the failure of the Government to regulate industry and the increasing non-compliance by citizens.
Run the Gun Registry and the 2006 Census through the GDR. Does it, or CAN it, address non-compliance? What lessons are to be learned? Can someone, somewhere, come up with some form of ingenuity to address serious issues around non-compliance?
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MY THOUGHTS
A statement of the CONTEXT in which the GDR is being developed will provide authenticity to the document.
Communities of people require forms of social ingenuity that enable them to acknowledge problems and put them squarely on the table, to be dealt with.
If you only know how to skate around the problems, you can never expect them to be resolved. They await crisis. The regulatory regime is on its way to crisis, from the examples mentioned, and from the fact that it has been totally ineffective in halting the march to an environment that is incapable of sustaining life.
HOW do we get the reality of the situation onto the table? The GDR addresses compliance, but in an unauthentic manner. It does not speak truly to the situation surrounding compliance.
People are drawn to the authentic. If you want support for the GDR, the document has to be authentic.
At the public meeting in Saskatoon, Ben (from the PCO) alluded to context in his presentation but did not elaborate. He spoke of the GDR “relative to the realities of our time.” Those “realities” are the context that needs to be stated in the GDR.
An elaboration to help understand CONTEXT is appended.
But it is probably not necessary. If the GDR is to be consistent (what’s good for the goose is good for the gander – – the GDR calls for context ), it MUST set out context:
GDR, page 5, lines 195 to 198 read:
When assessing public policy issues, departments and agencies are expected
to:
– analyze and document the issue AND ITS CONTEXT, including its immediate and long-term impacts on health, safety and security, the quality of the environment, and the economic and social well-being of Canadians; …
Surely, if departments and agencies are expected to document context, then the Government already recognizes the value of a statement of context, and PCO must follow its own directives. The GDR requires a statement of context.
I propose a statement of CONTEXT, along the following lines. And will refer to it in subsequent emails when addressing other topics related to the GDR.
The statement I propose is an accurate reflection of today’s reality; it will be resisted by Government. But the situation around compliance is serious. Innovative steps and leadership are required to retrieve it. In order to be progressive, the GDR must at least recognize the current situation.
You achieve compliance without force IF people embrace the laws and regulations. The draft GDR states “Regulations are a form of law – they have binding legal effect …”. As the gun registry and 2006 census reveal, this statement is vacuous if a large number of people choose non-compliance.
If you have had three years of training at a law school you will be more inclined to believe the statement about “binding legal effect” than if you have not received that training. The drafters of legislation and regulation have been trained at law schools; the thinking that permeates regulatory documents may therefore be based on a shaky premise or belief in the superiority of the law. There is a hint of threat behind the words “this is the law … (you will go to jail if you don’t comply)”.
The majority of people embrace that which is authentic, which is to say they embrace truth (morality). The document must reflect what is true, if we are to begin a reversal in the direction that compliance is headed.
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PROPOSED STATEMENT OF CONTEXT, TO BE WORKED ON:
The Regulatory Directive is designed to address the realities of our time.
The realities are stated to enable users to better apply individual ingenuity to the creation of a responsive and responsible regulatory regime:
1) STATE OF THE ENVIRONMENT. Climate change is a known threat. The pressure on water resources is mounting. A world standard for gauging threats to biodiversity exists. Many species face a high risk of extinction in the near future.
2) STATE OF HEALTH. There are rising levels of disease related to environmental toxins.
3) STATE OF SCIENCE. Confidence in science has been seriously eroded by corporate purchase and manipulation of “science” and scientists. Some 6,000 scientists including 48 Nobel laureates, 62 National Medal of Science recipients, and 135 members of the National Academy of Sciences have signed the Union of Concerned Scientists’ (UCS) statement, “Restoring Scientific Integrity in Policy Making.
3) STATE OF GOVERNANCE. Unacceptable levels of corruption exist. “Public Private Partnerships” have been promoted since 1982. Government is a part of industry through entities such as BioTech Canada and other public-private partnerships. From John Kenneth Galbraith’s, The Economics of Innocent Fraud – Truth for our Time, published in 2004:
… As the corporate interest moves to power in what was the public sector, it serves, predictably, the corporate interest. That is its purpose. …One obvious result has been well-justified doubt as to the quality of much present regulatory effort. There is no question but that corporate influence extends to the regulators. … Needed is independent, honest, professionally competent regulation … This last must be recognized and countered. There is no alternative to effective supervision. …
(4) GOVERNMENTS AND CITIZENS OPERATE IN A 4-YEAR TIME HORIZON, with little incentive to take long-term perspectives.
(5) ECONOMIC MODEL IN USE: In 2005, the Governments in Canada use out-dated and misleading accounting procedures. They do not include depletion of assets (natural resources) and cost of rehabilitation in economic evaluations. Businesses have to account for depletion of assets (depreciation). GDP does not. Such a model enables one to justify economic activity that is plunder with no thought for the ability of the economy to function in the future. Businesses could not last if they took this approach. Nor can a national or provincial economy in the long term.
Enlightened jurisdictions recognize the need for GDP to reflect resource depletion and rehabilitation costs if it is to be a helpful tool. There is pressure on Governments to adopt “Full Cost Accounting”, preferably referred to as accounting for the costs and benefits of “externalities”.
(6) KNOWLEDGE LEVEL: In 2005, we don’t know a lot. If our state is one of ignorance, we should proceed with a great deal of caution. The Precautionary Principle for sustainable development arises out of the Bruntland Report, or Our Common Future, the report made by the World Commission on Environment and Development in 1987.
(7) LEGAL ENVIRONMENT IN 2005. In 2001 from the Globe & Mail (excerpts):
. . the Supreme Court of Canada for the sixth consecutive time came down on the side of environmental protection in a precedent-setting decision. … “The protection of the environment has become one of the major challenges of our time.” (words from Supreme Court decision). “…the Supreme Court upheld the law, noting that environmental protection is a “fundamental value in Canadian society.”. “in the Voisey’s Bay nickel mine, a Newfoundland court issued one of the most strongly worded environmental judgments in Canadian legal history, emphasizing “the urgency of controlling the destruction of the Earth’s environment.”
All Canadians and their Governments are bound by the decisions of the Supreme Court.
(8) CORPORATE WORLD
The movie “The Corporation” has contributed to people’s willingness to challenge the role of the corporation in society.
Corporate power is a major cause of health problems, according to the October/December 2005 special issue of the International Journal of Occupational and Environmental Health. Contributions to the issue reveal how corporate structure results in pressure to influence science and place the public at risk from pesticides, lead, asbestos, toxic municipal sewage sludge, and other harmful substances.”
(9) RELATIONSHIPS
In 2005 it is recognized that we live in a time of great disconnection.
People continue to move to urban centres where “the neighbours” are not known. People are disconnected from food sources. There is a failure to recognize our relationship to the natural world, that survival is dependent upon the gifts we are given: water, air, seeds, children. We abuse that which would be recognized as sacred if we were intelligent beings. Our ignorance is reflected in our language: water, trees, energy sources are “resources” to be exploited, not gifts to be cherished.
(10) SOCIETAL STRUCTURES
We are in a period of de-construction and re-construction. The institutions in the society that do not serve us well are being taken apart and re-defined. There is increasing movement away from hierarchical structures to relationships based on equality. The control of information by “credentialled” authorities is challenged by the access to information given by the internet. Titles used to address people are falling into dis-use.
(11) LEADERSHIP
In response to the problems in governance, there is a proliferation of non-government organizations that seek to organize people around issues.
Leadership is not centred in the political parties but is being provided by growing numbers of people outside government.
END of proposed wording for CONTEXT, to be included in the GDR document.
I will continue the discussion of COMPLIANCE in another email.
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THOUGHTS REGARDING “CONTEXT” IN DECISION-MAKING
A decision process is unsound if it fails to address context.
The principle can be applied generally, but using this excerpt from the Great Sand Hills example:
The CONTEXT in which the Great Sand Hills exist in 2005 should be a separate item in the Reporting Document because it is a crucial consideration, a determinant.
The conclusions I would reach about a child in a refugee camp in Ethiopia could be starkly different from those reached in relation to a child raised in Disneyland Villa because of only one consideration: the context in which their lives are set is dramatically different. Failure to delineate context would be a serious error.
Other examples of the importance of context: decisions about prairie resource allocation would be very different in a contextual setting of 1830 compared to the conditions that will exist in 2030. Decisions related to women could be very different in the context of a fundamentalist Muslim community versus Hollywood.
The Scoping Document identifies some items of context. But what would constitute a comprehensive list? Of what is context composed? … off the top of my head – factors that affect a decision outcome because they constitute the environment in which the decision is made:
– legal context
– system of governance (a decision made in an oppressive regime will be different from the same decision made in a democracy)
– time in history
– levels of awareness (is it an Age of Enlightenment or one of relative ignorance?)
– community values
– ecological context
The CONTEXT in which a decision is made needs to be spelt out. It greatly affects the decision and what becomes of the decision. One benefit of addressing CONTEXT is that some items of context can be changed.
The terms-of-reference of a report can pre-determine the outcome to support wrong-headed policy. Conversely, the terms-of-reference can acknowledge and give appropriate weight to factors that contribute to a wholesome decision-making process. The inclusion of “context” in the terms-of-reference serves a legitimate need and will contribute to sound decisions, thereby to solid public policy.