Could there be a law that makes government listen to the public?
St. Paul’s MP Carolyn Bennett thinks so. She wants to sponsor a Private Member’s Bill in the House of Commons to ensure that when the federal government consults with Canadians, the consultation is meaningful, that is, that government genuinely considers what people have to say.
The citizen advocacy group Democracy Watch has stepped in to assist by offering Bennett a draft bill they think can achieve this.
It’s a timely project. Increasingly, people think governments don’t really listen to them or that they just pretend to listen, and then do what they want. If such a law can help rebuild trust in government, I’m all for it.
So, will it succeed?
It might, but it still needs some work. The one-size-fits-all approach to consultation raises serious questions. The bill also needs to be clearer on what’s required to make government really listen. Let’s take these in turn.
The bill sets out a list of conditions Democracy Watch thinks are necessary for meaningful consultation. These include things like ensuring different interests get to speak, providing adequate time to prepare briefs, publicizing the process, circulating earlier presentations, and so on.
Now, while these conditions make sense, unfortunately, they are defined in a way that would make many public consultations unnecessarily costly, convoluted, time consuming and, in some cases, even threatening.
For example, one clause requires that the government make available all information “that is relevant to the decision that is the subject of the consultation…”
This is simply a non-starter. Meaningful consultation rarely if ever requires that “all” information be made available. Doing so might pose a risk to, say, national security or someone’s privacy. Surely, some nuance is needed here.
Even more worrying is the use of the word “relevant,” which is unacceptably vague. Suppose the consultation were about options to improve population health. On its website, the Public Health Agency of Canada, of which Bennett is a former minister, lists 12 areas that it considers to be directly linked (i.e., relevant) to population health, including:
Income and Social Status
Social Support Networks
Education
Employment/Working Conditions
Social Environments
Physical Environments
Personal Health Practices and Coping Skills
Healthy Child Development
Biology and Genetic Endowment
Health Services
Gender
Culture
Does anyone really think government should be obliged to produce all the information from all these areas that might be relevant? The process would quickly be buried in paper. Similar problems would arise in other policy areas, from the environment to education.
The real problem here lies in confusing principles with rules. For example, “All information must be made public” is a rule because it admits of no exceptions, while “Participants must have access to adequate information” is a principle because what counts as “adequate” will be different in each case.
The bill repeatedly treats what ought to be principles as rules. The result is a one-size-fits-all approach that would require every process to meet each condition, whether or not it was relevant.
This could be fixed by reframing most of these rules as principles, and then creating a new mechanism, say, a consultation commissioner, who would ensure they were applied fairly.
Thus conditions such as who should be involved, how long the process should last, or what information is relevant, would vary with the issue, as they should.
This brings us to the second problem, which is the bill’s failure to resolve the central issue in consultation: whether government is actually listening. Consider the following.
When we consult with someone, we ask for their advice. While we are not obliged to take that advice, if we are acting in good faith, we will genuinely consider it and, if we find the advice appropriate, try to act on it.
Unfortunately, we’ve all had the experience where a friend, business associate or even a spouse keeps asking us for advice, insists they are listening to us when we give it, but never acts on anything we say. Eventually, we conclude that the person is not really listening to us at all. He/she is just going through the motions.
The same is true of government. It may ask for our advice, go through all the motions of a consultation, but not really be listening to us at all. The Democracy Watch bill fails even to note this, let alone resolve it.
Indeed, it would be possible for a government to meet every condition in that bill and still ignore the views being expressed. In short, as it stands, the bill fails to guarantee meaningful consultation.
Is there a solution?
Recent work on Aboriginal consultations offers some real encouragement here. The Supreme Court of Canada has ruled that in certain circumstances the federal government has a “duty to consult” with Aboriginal people before acting, in order to protect their rights.
But the Court has also said that, where appropriate, the government has a responsibility to accommodate their concerns. In other words, the real test of whether it is listening when it consults is whether there is a change in its behavior.
Of course, meaningful consultation does not always lead to change. Sometimes we are genuinely listening, but we believe the advice is not appropriate so we don’t act.
The real test of accommodation is whether there is a consistent pattern of not acting. The clearer the pattern is, the stronger the evidence that the person or government is not really listening.
The courts are now struggling with how to identify and weigh this kind of evidence. So far, there is no simple test for it, but they will likely get better over time.
In the meantime, however, any bill that aims at promoting meaningful consultation, but ignores accommodation, is missing the main point at issue. The Democracy Watch bill needs to address this.
If it does, and if Bennett can get it to committee stage, perhaps the issues raised here could be vetted more thoroughly. They might even get some media coverage and provoke some public discussion. That alone is reason enough to get on with the project.
Original Article
Source: ipolitics
Author: Don Lenihan
St. Paul’s MP Carolyn Bennett thinks so. She wants to sponsor a Private Member’s Bill in the House of Commons to ensure that when the federal government consults with Canadians, the consultation is meaningful, that is, that government genuinely considers what people have to say.
The citizen advocacy group Democracy Watch has stepped in to assist by offering Bennett a draft bill they think can achieve this.
It’s a timely project. Increasingly, people think governments don’t really listen to them or that they just pretend to listen, and then do what they want. If such a law can help rebuild trust in government, I’m all for it.
So, will it succeed?
It might, but it still needs some work. The one-size-fits-all approach to consultation raises serious questions. The bill also needs to be clearer on what’s required to make government really listen. Let’s take these in turn.
The bill sets out a list of conditions Democracy Watch thinks are necessary for meaningful consultation. These include things like ensuring different interests get to speak, providing adequate time to prepare briefs, publicizing the process, circulating earlier presentations, and so on.
Now, while these conditions make sense, unfortunately, they are defined in a way that would make many public consultations unnecessarily costly, convoluted, time consuming and, in some cases, even threatening.
For example, one clause requires that the government make available all information “that is relevant to the decision that is the subject of the consultation…”
This is simply a non-starter. Meaningful consultation rarely if ever requires that “all” information be made available. Doing so might pose a risk to, say, national security or someone’s privacy. Surely, some nuance is needed here.
Even more worrying is the use of the word “relevant,” which is unacceptably vague. Suppose the consultation were about options to improve population health. On its website, the Public Health Agency of Canada, of which Bennett is a former minister, lists 12 areas that it considers to be directly linked (i.e., relevant) to population health, including:
Income and Social Status
Social Support Networks
Education
Employment/Working Conditions
Social Environments
Physical Environments
Personal Health Practices and Coping Skills
Healthy Child Development
Biology and Genetic Endowment
Health Services
Gender
Culture
Does anyone really think government should be obliged to produce all the information from all these areas that might be relevant? The process would quickly be buried in paper. Similar problems would arise in other policy areas, from the environment to education.
The real problem here lies in confusing principles with rules. For example, “All information must be made public” is a rule because it admits of no exceptions, while “Participants must have access to adequate information” is a principle because what counts as “adequate” will be different in each case.
The bill repeatedly treats what ought to be principles as rules. The result is a one-size-fits-all approach that would require every process to meet each condition, whether or not it was relevant.
This could be fixed by reframing most of these rules as principles, and then creating a new mechanism, say, a consultation commissioner, who would ensure they were applied fairly.
Thus conditions such as who should be involved, how long the process should last, or what information is relevant, would vary with the issue, as they should.
This brings us to the second problem, which is the bill’s failure to resolve the central issue in consultation: whether government is actually listening. Consider the following.
When we consult with someone, we ask for their advice. While we are not obliged to take that advice, if we are acting in good faith, we will genuinely consider it and, if we find the advice appropriate, try to act on it.
Unfortunately, we’ve all had the experience where a friend, business associate or even a spouse keeps asking us for advice, insists they are listening to us when we give it, but never acts on anything we say. Eventually, we conclude that the person is not really listening to us at all. He/she is just going through the motions.
The same is true of government. It may ask for our advice, go through all the motions of a consultation, but not really be listening to us at all. The Democracy Watch bill fails even to note this, let alone resolve it.
Indeed, it would be possible for a government to meet every condition in that bill and still ignore the views being expressed. In short, as it stands, the bill fails to guarantee meaningful consultation.
Is there a solution?
Recent work on Aboriginal consultations offers some real encouragement here. The Supreme Court of Canada has ruled that in certain circumstances the federal government has a “duty to consult” with Aboriginal people before acting, in order to protect their rights.
But the Court has also said that, where appropriate, the government has a responsibility to accommodate their concerns. In other words, the real test of whether it is listening when it consults is whether there is a change in its behavior.
Of course, meaningful consultation does not always lead to change. Sometimes we are genuinely listening, but we believe the advice is not appropriate so we don’t act.
The real test of accommodation is whether there is a consistent pattern of not acting. The clearer the pattern is, the stronger the evidence that the person or government is not really listening.
The courts are now struggling with how to identify and weigh this kind of evidence. So far, there is no simple test for it, but they will likely get better over time.
In the meantime, however, any bill that aims at promoting meaningful consultation, but ignores accommodation, is missing the main point at issue. The Democracy Watch bill needs to address this.
If it does, and if Bennett can get it to committee stage, perhaps the issues raised here could be vetted more thoroughly. They might even get some media coverage and provoke some public discussion. That alone is reason enough to get on with the project.
Original Article
Source: ipolitics
Author: Don Lenihan
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