CONSULTATION AND ENGAGEMENT STRATEGY FOR DEVELOPING THE GOVERNMENT DIRECTIVE ON REGULATING

FOREWORD

The Regulatory Affairs Division (RAD) of the Privy Council Office (PCO) has been tasked with developing a Government Directive on Regulating (Directive) that will update the current federal Regulatory Policy.  As part of its efforts to develop the Directive, the government is committed to working with a broad group of interested parties. This document outlines a consultation and engagement strategy designed to allow interested parties to provide their views as the Directive is developed.

1.      BACKGROUND/CONTEXT

Smart Regulation is a government-wide initiative to improve the Government of Canada’s regulatory performance. It involves a series of projects aimed at strengthening the policy, processes, tools, and regulatory communities that are needed to sustain the federal government’s high levels of regulatory performance and to facilitate continuous improvement. 

The impetus for the federal government’s Smart Regulation agenda has been an evolving process.  Canada is recognized internationally as having an innovative regulatory system that makes a contribution to the well-being of Canadians.  Nevertheless, the system is being challenged by rapid scientific and technological advancements, global markets, and greater public awareness of domestic and international health and environmental risks.  To meet these challenges, the regulatory system must be renewed to ensure that it continues to safeguard the health and safety of Canadians, ensure a healthy environment and create the conditions for an innovative and competitive economy.

In setting this direction the federal government sought the input of recognized experts both within Canada and internationally. Among other initiatives, the federal government invited the Organisation for Economic Cooperation and Development (OECD) to assess the current regulatory system in Canada.  In its 2002 report, the OECD found that Canada had a mature and well functioning regulatory system but noted room for improvement (see http://www.oecd.org/dataoecd/47/42/1960472.pdf). In response to the OECD report, and commitments made in the federal budget and the Speech from the Throne, the government created the External Advisory Committee on Smart Regulation (EACSR) in May, 2003. The EACSR report, entitled Smart Regulation: A Regulatory Strategy for Canada was released in September 2004. It identified sectors and areas requiring regulatory reform and provided recommendations on a regulatory strategy for Canada .

One of the EACSR’s priority recommendations was to update the current Government of Canada Regulatory Policy.  First implemented in 1986, the Regulatory Policy puts in place a government management system for regulation. By setting out a clear policy objective and by outlining several process and policy requirements, the Regulatory Policy provides direction to departments and agencies on the development of federal regulation. The objective of the Regulatory Policy is “to ensure that the government’s regulatory powers result in the greatest net benefit to Canadian society”.  The policy and process requirements – such as, for example, consulting Canadians, minimizing adverse impacts on the economy, and having regulatory benefits outweigh their costs – are designed to help federal departments meet this policy objective and to develop effective, “good quality” regulation. The Regulatory Policy has not been substantively reviewed and updated since 1995.  The current Regulatory Policy, the EACSR report and related information are available at: www.regulation.gc.ca.

In the March 2005 Smart Regulation Report on Actions and Plans the government undertook to review the existing federal Regulatory Policy. The RAD has been tasked with developing and submitting in Winter 2006, a proposal on how to improve the governance system for regulating.  It is anticipated that this renewed federal regulatory policy - tentatively called the Government Directive on Regulating (Directive) - will set the policy direction for the management of the regulatory system. The Directive will establish a life-cycle approach to regulatory governance by outlining policy requirements and impact analysis for the development, implementation, review, and evaluation stages of regulation.  Updating the existing Regulatory Policy is also an opportunity to enhance its effectiveness, recognize the demands of the global economy and Canada ’s international commitments, and to better integrate modern policy and management techniques into the regulatory system.    

As part of its efforts to develop the Directive, the RAD has committed to working with a broad group of interested parties. To this end, an independent consultant was hired to work with interested parties including environmental, health, consumer, industry, business and labour groups, and Aboriginal organizations to develop a Consultation and Engagement Strategy, and to provide advice to the RAD in the development of the Directive. 

NOTE: A Reference Group on Regulating (described in detail in section 4.3 of this document) is distinct from a proposed Regulatory Advisory Board.  The Reference Group has a focused, short-term mandate to provide an external perspective and input into the development of the Government Directive on Regulating and its supporting documents.  It is an important mechanism to provide broad-based stakeholder involvement into several of the Smart Regulation policy development initiatives.  The Regulation Advisory Board (RAB) will be launched at a later date and will provide an ongoing forum for stakeholder participation in the management of the federal regulatory system.  It will provide external oversight and advice on key regulatory issues and the implementation of Smart Regulation.  The RAB is described on page 10 of the Smart Regulation Report on Actions and Plans (available at: www.regulation.gc.ca).

2. THE PURPOSE OF THIS DOCUMENT

Based on the advice of an independent consultant, this document outlines various mechanisms for ensuring effective (timely, full and fair) opportunities for interested parties wishing to provide input into the development of the Directive. 

For ease of reference, the term “interested parties”  in this document means all individuals and organizations with an interest in the development of the Directive, including federal, provincial, territorial and municipal governments, Aboriginal organizations, industry and business groups, academia, public advocacy groups, including environmental, labour, public health, public interest and consumer groups, and members of the public who do not necessarily associate themselves with any particular organization.  Although some of these entities do not refer to themselves as “interested parties”, all may have views on the Directive.

3. PURPOSE OF THE CONSULTATION AND ENGAGEMENT STRATEGY

The purpose of this Consultation and Engagement Strategy is to develop mechanisms that will:

• provide appropriate background information to help interested parties in formulating their views on what is needed for an effective Directive;
•  hear from Canadians on what they think should be addressed in the Government Directive on Regulating; and,
• provide opportunities for interested parties to comment on the Directive as it evolves. 

4. PROPOSED CONSULTATION AND ENGAGEMENT MECHANISMS

4.1 Overview

Multistakeholder consultation, engagement and information sharing mechanisms/techniques can include bilateral discussions with individuals representing specific interest groups and/or with the interest group itself, press releases, workshops, focus groups, expert reference/advisory groups, and public dialogue and/or information sessions (electronic and/or face-to-face). These mechanisms are not mutually exclusive. As a generalization, as the level of multistakeholder involvement increases, so do the human and financial resource costs, time commitments, expectations that inputs will be acted upon, ownership over the project, and level of complexity in managing the process.

A draft of this document was prepared following bilateral discussions with about 30 individuals representing a broad cross section of parties interested in the development of the Directive. (While their input in shaping this document, and an earlier draft was invaluable, the individuals contacted do not necessarily agree with all of its content.) The draft was then posted on the RAD website for public comment. This final document has taken into consideration the comments received and outlines the following consultation and engagement structure (described in greater detail below):

·        A link on the www.regulation.gc.ca web site that provides information, and allows for comment on the process for developing the Directive and on the substantive content of the Directive as it evolves.  RAD will ensure that interested parties are notified when the web site is updated;

·        RAD, with input from a Reference Group on Regulating (Reference Group) and other federal departments, will prepare a draft Directive, to be publicly available by late September;

·        RAD will sponsor 7 or 8 Cross-Canada workshops anticipated for late October and early November to discuss the draft Directive and solicit advice on the content of the draft;

·        Summaries of the comments heard at the public workshops and from the web-based inputs to be posted on the web within a month of the completion of each consultation.

The RAD will be making policy recommendations for an updated regulatory policy to the government in Winter 2006. Once approved it will be a public document and all interested parties will be able to evaluate the implications of their involvement in the consultation and engagement process.

Note that the RAD is developing consultation processes to engage other federal departments, and provincial and territorial governments. These initiatives are particularly important given the recommendation raised by the EACSR to improve cooperation and coordination between federal departments and among federal, provincial and territorial governments. Among other things, a federal interdepartmental committee and a federal, provincial territorial working group have been struck to ensure that other federal departments and governments can input into the procedural and substantive initiatives related to the Smart Regulation agenda, including the development of the Directive.

The External Advisory Committee Report on Smart Regulation also noted that international cooperation is increasingly necessary to provide high levels of consumer, social and environmental protection. The RAD will contact other national jurisdictions and international agencies to share experiences and knowledge (including lessons learned, best practices, and benchmarking) as the Smart Regulation agenda evolves.

4.2 Timelines

A proposal on how to improve the governance system for regulating will be submitted to the Government of Canada in Winter 2006.  Consequently, the RAD is working under tight timelines, but remains committed to ensuring effective opportunities for the participation of interested parties as this work develops.  For information on key dates during the consultation period, interested parties are encouraged to review the www.regulation.gc.ca web site on a regular basis.  Interested parties should be aware that this document proposes a request for submissions in Summer 2005, an opportunity to review the draft in Fall 2005, as well as cross-Canada public workshops in late October-early November. In addition, RAD has developed an extensive emailing list of interested parties and will inform them when relevant information is posted on the web site.

4.3 Dialogue with Aboriginal Peoples

This document recognizes the unique relationship that the federal government has with Aboriginal peoples, and, in particular, the efforts needed to ensure meaningful dialogue in addressing the priorities of First Nations, Inuit, and Métis peoples. To this end this proposal recommends that RAD continue discussions with appropriate representatives in Aboriginal organizations to ensure that the perspectives of Aboriginal Peoples are included along with the perspectives of other Canadians.

4.4 Proposed Consultation Mechanisms for Engaging Interested Parties

Web-based Information Exchange

This document recognizes that a large number of individuals and organizations interested in the development of the Directive will, for a variety of reasons, not be able to participate directly in face-to-face consultation and dialogue mechanisms. To ensure that these parties have a full and fair opportunity to express their views on the Directive, the RAD has established a web-based consultation.  Appropriate background documents, including the External Advisory Committee’s Report on Smart Regulation and the Smart Regulation Report on Actions and Plans have been posted, and, most importantly, the drafts of the Directive will be posted in late September and mid-December. The drafts of the Directive will have easy response links allowing for user-friendly electronic comments.

The RAD has developed a comprehensive emailing list of all interested parties. Notification will be sent to all parties every time there is a substantive update/new information posted on the website. Moreover, the notification and the website itself provides clear direction for parties who wish to receive hard copy of all posted materials. The notification emails and the website also provides clear directions for parties who prefer to send in their comments by mail or fax rather than electronically.

The RAD will be responsible for ensuring that all comments are considered in helping to shape the various drafts of the Directive and their final proposal to government.  Electronic submissions to the web site will be posted and will identify the individual or organization making the submission.  In like manner, a summary of comments from the public workshops will also be posted. However, summaries will not attribute any comments to specific individuals or organizations. 

A Reference Group on Regulating

The RAD established a Reference Group on Regulating (Reference Group) which met for the first time on July 13, 2005 .  The mandate of the Reference Group is to provide a vehicle for stakeholder involvement and input to the RAD on the Directive as it evolves through its various drafts. In this context it is important to appreciate that the “scope” of the Directive, as with the current federal Regulatory Policy, extends across all federal departments and agencies that have a role in developing and implementing regulatory initiatives. As noted in the EACSR report, federal regulation (broadly defined to include statutes, subordinate legislation (regulations) ministerial orders, as well as less formal instruments such as codes of conduct and guidelines) touches all aspects of Canadian society and the economy.

More specifically, the Reference Group will provide input on policy requirements and impact analysis for the development, implementation, review, and evaluation stages of regulation that will reflect the requirements of the Directive. Subject to time constraints and information availability, the Reference Group will also provide input on:

-        The International Regulatory Cooperation Framework which will set out the principles and priorities for international cooperation;

-        The Proposal for Regulatory Review and the assessment criteria, which will include regulatory impact analysis;

-        The Capacity Assessment and Enhancement Strategy, focusing on the skills, processes and tools needed to successfully implement the Directive, regulatory review and improve regulatory governance;

-        The Risk Management Framework which will set out an approach for regulatory risk management within the federal government.

Reference Group meetings will be convened by the RAD.  The Group will not produce independent reports, nor will it necessarily need to come to a consensus or agreement on the consultation documents and final policy directions. Meetings of the Reference Group will be facilitated, and secretariat support will be provided by the RAD. The meeting agendas and supporting documents of the Reference Group will be posted on the www.regulation.gc.ca web site. Summaries of the meetings will be posted as well, but comments will not be attributed.

The Reference Group is composed of  sixteen representatives reflective of a balanced, representative and broad cross-section of parties interested in the development of the Directive.  The participants have a good understanding of federal regulatory policies, practices and processes. They bring to the discussions respect for the legitimacy of differing perspectives, and an appreciation of local, national and international dimensions to effective regulatory governance. In some cases, a targeted invitation to a specific individual was appropriate for participation in the Reference Group.  However, for some participants it was important to respect the delegate selection process of networks and organizations.  A list of the Reference Group members with biographical information can be found at (www.regulation.gc.ca)

Reference Group members are compensated at a per diem rate according to Treasury Board policies and guidelines. For each day of meetings, Reference Group members will be remunerated for an equal period of preparation time.  In addition to the per diem, travel and accommodation expenses are provided, for those members who qualify, in accordance with Treasury Board policies and guidelines.

Cross-Canada Workshops

In late October or early November, the RAD will sponsor 7 or 8 workshops across Canada to solicit input on the draft Directive, and related issues. The expectation is that the workshops will provide participants with a full and fair opportunity to discuss and explain their perspectives and an opportunity to listen to, and try to understand the views of others. The agenda, including introductory presentations and topics for discussion will be structured around the draft Directive.

The RAD web site will have all necessary information pertaining to the workshops in enough time for interested parties to plan accordingly. This information will include the exact dates, times, cities and venues, the agenda, and appropriate background information. RAD will email a comprehensive list of interested parties to notify them of the information on their web site. Registration is strongly encouraged to assist with logistical arrangements. However, anyone can attend the workshops, even if they have not registered.

RAD, as the sponsor, will be responsible for all expenses associated with the logistics for the workshops (e.g., venue, facilitation services), in accordance with Treasury Board policies and guidelines.  The RAD will provide some funding to assist in the travel and accommodation expenses of individuals who are invited to participate in the workshop and who meet the criteria defined in the Treasury Board policies and guidelines: participants are volunteers or represent a not-for-profit organization with limited or restricted financial resources; and participants have specific expertise or knowledge to contribute to the process. The RAD will   not provide professional fees or an honorarium to any participant for attendance at the public workshops.

 Bilateral Meetings

Interested parties may contact the RAD to arrange bilateral discussions pertaining to policy and consultation initiatives. It is anticipated that bilateral sessions will be requested by various interested parties as they perceive a need to discuss specific aspects of the Smart Regulation Initiative with the RAD (e.g., sector specific issues). All parties involved in such bilateral discussions must take care to maintain the integrity (including the transparency) of the consultative process. Most obviously, commitments can not be made bilaterally that have not had the benefit of public consultation. In the interest of transparency, the RAD requests that parties who initiate a bilateral meeting provide a submission for posting on the www.regulation.gc.ca website which describes their position on the development of the Directive. 

5. FURTHER INFORMATION

Anyone may request further information on the Smart Regulation Initiative, including the development of the Government Directive on Regulating  by:

Email:

regissues@tbs-sct.gc.ca

Fax:

Attention: Government Directive on Regulating - Smart Regulation

(613) 943-5071

Mail:

Attention: Government Directive on Regulating - Smart Regulation

Regulatory Affairs Division, Privy Council Office

155 Queen Street, suite 1100

Ottawa , ON

K1P 6L1

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