From time to time governments make law by referring to non-governmental rules. These are often technical matters on which standards are developed by outside experts. For example, a regulation might require manufacturers to comply with a safety standard of the Canadian General Standards Board or the International Standards Organization.
When this happens, should the government have to ensure that the outside standards be accessible to those affected by them? Many standards bodies finance their operation at least in part through the sale of their standards. In other words, access to the text of the standards is not free. Is that a problem for access to law in a democracy?
Ontario’s Legislation Act says this (section 62):
Access to incorporated document and earlier versions
(4) When a document is incorporated by reference as described in subsection (1), the Minister responsible for the administration of the Act under which the regulation is made shall take steps to ensure that,
(a) the incorporated document is readily available to the public, on and after the day the regulation or amending regulation containing the reference is filed under Part III (Regulations); and
(b) the incorporated document and any earlier versions of it that were previously incorporated into the regulation or into a predecessor of the regulation remain readily available to the public.
The American Bar Association recently debated this topic, and resolved that private texts incorporated into law should be made accessible to the public, in a ‘read-only’ version. This resolution was controversial from both sides: whose who thought that it did not respect the intellectual property of the standards developers, and those who thought that ‘read-only’ was not good enough, since it prevented searching, copying and republishing – thus impairing discussion of the law.
Should we have stronger rules in Canada about this? Is Ontario’s rule (which has no equivalent elsewhere in the country, so far as I know) sufficient, or too difficult?