Troy Media – By Dr. Kelly Ernst
The Alberta legislature’s spring session ended with several examples of how and why some legislation was forwarded for public consultation and some was not. Two bills – Bill 44, introduced to amend Alberta’s Human Rights Act, and Bill 52, which amends the Health Information Act offer contrasting illustrations of governance.
Bill 44 was an example of how not to make law. Its now infamous opt-out clause, giving parents the right to prevent their children from participating in school lessons relating to religion, human sexuality, and sexual orientation, was included in Bill 44 without prior consultation with school boards, teachers, parents and the general public.
In contrast, Bill 52 which regulates Albertans’ electronic health record and which was launched using the same reckless, non-consultative methods had, by the end of the legislative process, been improved through formal consultation with the public.
Bill 52, initially, looked like it had been designed primarily to serve the interests of private industry wanting to get into the health information business. In fact, there are claims that the Alberta Medical Association did not even have any input in the making of the bill. As well, although the Standing Policy Committee on Health sought public comment during second reading, it provided almost no time for the public to react.
Thankfully, however, doctors and privacy and civil liberties experts were able to meet the remarkably tight deadline for submissions.
Their submissions gave the government reason to pause. It revised the Bill, and made a second call for further submissions from the public. The process ended with 44 thoughtfully-written submissions and 12 well-prepared presentations to the Standing Committee, all available for public scrutiny.
Yes, it was a rough process but here is the gem: although many of the public’s and opposition-parties’ recommendations to the Bill were not adopted, some of the concerns raised at public consultations were addressed through amendments. Key groups seemed far more pleased with the Bill, as amended, and media reactions to the amendments were generally favourable.
One of the amendments made to Bill 52 ensures that health-care professionals have a duty to consider the expressed wishes of individuals to exert some control over their electronic health record. For example, individuals may ask to have their electronic information masked, or hidden from view, unless medically necessary or if required for an emergency, thus ruling out use of their data for research or pure administrative purposes.
Another amendment ensures that the Minister of Health and Wellness must assess the impact of accessing and disclosing information by carrying out a privacy impact assessment. In making his assessment, the Minister must consider the opinion of the provincial Privacy Commissioner prior to acting.
Now let’s look at the process surrounding Bill 44, which will pass into provincial political history as an object lesson in poor law-making. In conceiving and enacting the Bill, including the contentious parental rights clause, the government acted without consulting the public at all and instead – it appears – listened to a select few caucus members, representing only a narrow spectrum of Alberta society.
The only opportunity for the public to comment on the proposed legislation was through the media, which reported widespread public unhappiness with it. The government responded with poorly-written amendments introduced at the last minute which did nothing to dampen public disapproval.
Yet Lindsay Blackett, Minister of Culture and Community Spirit – who sponsored Bill 44 – replied it was too late for changes, and instead suggested the legislation was supported by the “silent majority.” In the absence of real public consultation on Bill 44, what evidence do we have for this statement?
The contrasting results of these two legislative processes point to the importance of public consultation. Bill 44 remains much reviled and litigation to challenge it is expected. Bill 52, on the other hand, while not perfect by any means, is more acceptable because the views of the interested public and opposition parties were heard.
Advance public consultation – a core element of modern democracy – helps governments determine which legislation and subsequent amendments to introduce, and which to avoid.
The verdict is clear: law making, especially on controversial matters, without public consultation, can lead to legislative nightmares. Law-making that avoids consultation creates the impression that special interests are being advanced, not the public good.
As we know only too well in Alberta, poor legislative processes breed public disengagement and voter apathy. Let’s hope our history with Bill 44 is not repeated in future sittings of the Alberta legislature.
Dr. Kelly Ernst is senior program director with the Calgary-based Sheldon Chumir Foundation for Ethics in Leadership.
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