Using Soft Law to Achieve Policy Objectives

Yesterday, the Canadian government took the next step in its Senate reform process by appointing an advisory board, “an independent and non-partisan body whose mandate is to provide the Prime Minister with merit-based recommendations on Senate nominations”. I have blogged already about the new government’s use of mandate letters, issued to individual ministers, to impose a bilingualism requirement for Supreme Court nominees. Yesterday’s news puts these informal mechanisms of achieving policy objectives back in the spotlight.

Is it right that the government should seek to achieve its policy objectives by informal means which, unlike the adoption of laws and regulations, are not subject to parliamentary oversight? It is worth recalling the comments of Evans J.A. in Thamotharem v. Canada (Minister of Citizenship and Immigration), [2008] 1 FCR 385, at paras. 55-56:

Effective decision making by administrative agencies often involves striking a balance between general rules and the exercise of ad hoc discretion or, to put it another way, between the benefits of certainty and consistency on the one hand, and of flexibility and fact‑specific solutions on the other. Legislative instruments (including such non‑legally binding “soft law” documents as policy statements, guidelines, manuals, and handbooks) can assist members of the public to predict how an agency is likely to exercise its statutory discretion and to arrange their affairs accordingly, and enable an agency to deal with a problem comprehensively and proactively, rather than incrementally and reactively on a case-by-case basis…

Through the use of “soft law” an agency can communicate prospectively its thinking on an issue to agency members and staff, as well as to the public at large and to the agency’s “stakeholders” in particular. Because “soft law” instruments may be put in place relatively easily and adjusted in the light of day‑to‑day experience, they may be preferable to formal rules requiring external approval and, possibly, drafting appropriate for legislation…

Evans J.A.’s comments were directed primarily at “soft law” adopted to guide administrative agencies whose decisions might affect individuals’ interests but they hold true of ministerial discretion too.

I would add that the publication of the mandate letters and the criteria for appointments to the Senate sheds welcome light on processes that heretofore were poorly understood, if at all. Discretion in the dark has been replaced by sunlight (or, if you prefer, “sunny ways“). Even if these “soft law” instruments are not subject to parliamentary approval in a formal sense, their publication prompts public and political debate which is good for the health of the body politic. Moreover, Prime Minister Trudeau is publicly accountable for the content of his mandate letters, as are his ministers for achieving the objectives the letters set out.

This content has been updated on January 20, 2016 at 16:22.