The Ontario Medical Association (OMA) celebrated the holidays in 2016 by sending nicely wrapped boxes of red tape to MPPs. The gifts were a protest about the new regulations and red tape that the OMA said would result from the passage of Bill 41. These types of protests are not new. Every regulated industry and occupation complains bitterly about onerous or outdated regulation.
But, do they have a point? A rough manual count of the Statutes and Regulations of Ontario suggest that between 2010 and 2016, Ontario added 135 new laws and repealed 65. A similar manual count of the Regulations of Ontario suggests on that front that, if less is more, things have gotten better. A 370 regulation reduction from 2920 in 2010, to 2559 at the end of 2016.
So, if we are prepared to admit that red tape can, on occasion, get out of hand and indeed, sometimes become counterproductive to the intended purpose or to the broader interests of society, why do we only respond when the squeaky wheel demands grease? Or, why do we so often only target the resulting regulations and not the legislation itself?
It has not come down graven on stone that all previous legislation is sacrosanct or that every public program, service or organization must continue to exist for all eternity. Indeed, if you look at the foundations of our legal and judicial systems, we assume that societal needs, and the law that serves them, will develop and change over time. Yet we do not routinely require our legislators to review in a systematic way the decisions made by themselves and their predecessors. To test, with real consequences, the effectiveness of the legislation they pass or the continuing relevance of rules often created in very different historical and social contexts.
The auditor general annually brings down reports that include (alongside glowing commentary and evidence of decisive impact and positive change) pages of analysis highlighting waste, failure and ineffectiveness. The reports are issued, the departments and agencies issue responses, the Auditor General issues progress updates, and the cycle continues.
It does not need to be that way. Texas, as an example, requires all non-constitutionally guaranteed programs and services to face mandatory sunset review. Every program or service that is created by the State Legislature has a sunset clause — a past due date as it were. The stated purpose, ongoing relevance, and demonstrable impact are assessed based on the evidence collected since inception (or last renewal). If the organization or program cannot demonstrate ongoing relevance and meaningful impact, it is not continued. It rides off into the sunset as it were.
Imagine if a negative Auditor General’s report, instead of simply being embarrassing, could directly impact the ongoing existence of a program or organization. If the assertions of the OMA or other critics could be assessed, could be required to be assessed, by evidence and experience collected in the next five years. What impact would that have on the legislation we draft, the organizations we choose to fund, or the way we choose to run them?
Ontario and Canada have, on occasion, used sunset clauses. They are not hard to understand nor by necessity onerous or complex to administer. The sunset periods need to be long enough to allow growing pains and external shocks to be accounted for, but short enough to allow meaningful change in a relatively timely way. Five- or 10-year cycles would seem to fit this requirement nicely.
We also don’t need any special structures or mechanisms for review. Our legislatures were created to design, assess and pass legislation. Putting the prefix “re” in front of each of those words would not fundamentally undermine its operations.
As for whether our Legislatures have the time to reconsider past choices, there are roughly 250 working days in a year. In 2016 the Legislature sat 73 days. The annual average hovers around 100 days. Even allowing for critical constituency work, that still leaves somewhere between 25 and 50 days for making sure old laws still add value today. That red tape reduction occurs regularly, and that red tape redux, where it occurs, is rational and not random.