Every now and then, the best minds in government come up with a novel way to deal with a nagging issue. These folks tend to work in central agencies like the Privy Council Office, Treasury Board or the Department of Justice (although there are smart officials elsewhere, of course).
Once they’ve figured out a framework for handling a tricky issue, and have spent the time to troubleshoot the solution from all angles, they modularize it and the legislative drafters at Justice attempt to include it in all subsequent legislation going forward. Often industry and observers miss the unveiling of such solutions completely because they are watching the subject matter of the first piece of legislation the solution appears in, and think it doesn’t affect them. But it often will.
For example, a number of years back, following the budget cuts of the program review in the mid 1990’s, it became increasingly apparent to government that they were going to have serious trouble enforcing many of the regulations on the government’s books. Ask a CEO from any highly regulated sector and you’ll hear the same thing- uneven and inconsistent enforcement of regulations is commonplace, and is amongst the most common industry laments about government. So the officials from the central agencies went to work and came up with the concept of Administrative Monetary Penalties or AMPs, if you only speak acronym. Instead of the government saying “Stop! Or I’ll say stop again!” the government would now have a stick with which to ‘negotiate’ compliance. In short, stop breaking the rules or it’ll cost you. It’s working quite well according to most observers.
Recently, government has been grappling with how to manage confidential business information (CBI). Bill C-6 on Consumer Product Safety happens to be the first Bill to feature key components of government’s plan on how they will handle the business information companies are required to share with the government for an express purpose – in this instance, a consumer product safety recall. Expect to see similar provisions in the near future in other compliance-based legislation, including former Bill C-51 on food safety which is expected to be re-introduced in the new year.
So what’s the problem? Simply put, many fear inadequate safeguards in the provisions. Common questions include: What will the government do with the information? Will it be secure? Who will have access to it? If I’m running a company that wants to engage in a takeover or a merger, could the info be used against me at a later date? What of the officials who will have the information? If they move to a different department, will they use that info for purposes other than for what it was submitted? What if they leave government and join a competitor company? Common private sector non-disclosure provisions protect companies- what rules will be in place for government officials? Fair questions. Many industry players have voiced concerns about the proposals, but many have not and I’m guessing they simply are not aware of the possible implications because the provisions are debuting in a bill on consumer products they don’t make.
And if you think this is just corporate bellyaching- just ask CSIS: they have consistently said industrial espionage is big business, and will be even more so in the future, especially in innovative sectors. Industry needs to get engaged on this issue, assess the potential impacts on their business and present their positions clearly to government, before it becomes engrained in the standard drafting instructions. There is probably a better balance that can be struck that wouldn’t impact product safety.
