Managing the Legislative Process
By Scott Proudfoot
Some organizations are timid players in the Parliamentary process. They should be bolder. Multiple avenues of action exist and bad legislation stays on the books for a long time. This article first appeared in the January/February 2005 issues of Association & Meeting Director
"Now that the House of Commons is trying to become useful, it does a great deal of harm."
From time to time associations, NGOs, and individual corporations need to involve themselves actively in the legislative process. They may oppose a bill. They may generally approve of the legislation but wish amendments. They may strongly support a bill that has become stalled in the machinery. Here is quick primer on how bills are passed in Parliament and when you can intervene.
First, a reality check! It takes a very long time to pass legislation. Typically, from start to finish the process takes five years. Contentious, complex legislation may take years longer.
Parliament is slow by design and intent. Canada’s Parliament is the cumulative experience of generations of legislators who sought a balance between the issues of their day and inherited parliamentary traditions. Collectively, they concluded passing bills is not a panacea for every problem that grabs a headline. In their wisdom, legislators recognize that bad legislation can stay on the books for a long time. Passions and opinions can be easily expressed in Parliament but these are deliberately given time to cool before being codified into law.
Pre-Parliamentary Stage (1 to 2 years)
Bills enter the scene from multiple directions: extraordinary public events (e.g., 9/11), Parliamentary Committee recommendations, private member initiatives, industry and NGO lobbying, the determination and drive of particular Ministers, crass electoral calculations, etc. A large part of every parliament’s order paper is a byproduct of past bills. These are ‘housekeeping’ amendments to existing legislation to repair parts not working well or to introduce clauses accommodating new technological or social change (e.g., the internet, same-sex marriages).
The process is always legitimized by public consultations managed by the sponsoring department. The quality of departmental consultations varies widely. Usually departments scope out potentially affected parties diligently; provide an opportunity to be heard; and make every effort to accommodate divergent interests. Occasionally, departmental consultations can be rushed and potential impacts go unexamined.
Every intervener’s objective is to effectively communicate their interests and recommendations as early, as often, and as creatively as they can. It is important to participate in the formal processes but also talk directly with officials, key caucus members and the Minister’s office.
With the consultative process complete, Ministers prepare a detailed Cabinet Memorandum on the intent and administrative cost of any proposed bill. If cabinet colleagues concur, the bill moves to the Department of Justice, along with detailed drafting instructions.
Bills do not pop up like bread in a toaster. Drafting legislation is highly specialized and the Justice Department has a small group of legal specialists available. Because of workload, delays can occur. Bills get bumped down the priority list by more important pieces of legislation. Each draft bill is carefully translated into the other official language. All this takes time.
The Devil Is In The Details
Mistakes get made in drafting.
Many mistakes fall under the category of “unintended consequences” – a harmful impact not anticipated by officials.
Awkwardly worded clauses can cause no end of confusion.
The quality of Canadian legislation could be immeasurably improved if departments circulated draft legislation to interested parties prior to formally introducing bills in Parliament. Typically, this does not happen. Once a Minister has publicly attached his or her name to a bill and introduced it in Parliament the process becomes more formal and politicized.
Parliamentary Stage (6 Months to 2 years)
Bills go through 3 stages in Parliament.
First Reading is the bill’s introduction. The bill is placed on the order paper, receives a number, is printed, and later assigned to a committee. No amendments can be made at this point. The key objective for organizations is to scrutinize the wording carefully, obtaining expert legal analysis if necessary.
Second reading is the most important stage and a bill is usually referred to a committee. Public hearings are scheduled based on the committees’ workload; delays are common. Once formally scheduled, testimony will be taken from the Minister, officials, and other interested parties. If any organization wants amendments to the legislation, this is the time to formally make their views known. In addition to appearing before the committee, your organization should actively lobby the Minister and officials on issues of importance. Providing specific wording for desired amendments is also advisable.
Committee proceedings are the best opportunity to have a bill amended. Committees are even more critical in a Minority Parliament where opposition chairs and members have greater power.
Once a bill has received clause-by-clause review by a committee, it is ‘reported’ back to the House. There is no debate on the bill but there may be amendments proposed. Under majority government this has been an opportunity for the government to clean up its own legislation. Usually, opposition amendments are voted down. Again, minority government changes these dynamics. The government now needs support from other parties to pass its own amendments or defeat opposition amendments.
A bill can still be amended at 3rd Reading and then it is passed and sent to the Senate.
In order for a bill to receive Royal Assent both the Senate and House must pass it in identical form. Using Senate committees as a vehicle to secure amendments in legislation should not be overlooked. They are unlikely to reconsider the intent of the bill but Senators will examine reasonable arguments about the workability of specific clauses. During Mr. Chrétien’s administration, the Senate amended 35 House of Commons bills. In most instances, the House accepted the amendments.
Regulatory Stage (6 months to 1 year)
Once both the House and Senate have passed a piece of legislation, it is in the queue for Royal Assent. At this stage, officials consult and draft the detailed regulations required to give the bill effect. Canadian ministers are often granted broad authority to fashion regulations. At this final stage, organizations make representations to departments to make the regulations workable for their members. It is often possible to improve the efficacy of a bill or ameliorate unresolved issues. You also have the right to politically object to regulations that do not reflect the House’s intent when the bill was passed in Parliament.
Once all the dust has settled, the Bill is given Royal Assent and comes into effect.
Not All Bills Pass
In a majority situation, the government will get any bill passed if clearly determined to do so. However, even with a majority, only 65%-70% of government bills introduced actually passes in any given parliamentary session. Some bills will be re-introduced after a new Throne Speech or an election and then subsequently pass. Sometimes strong public opposition forces the postponement or substantial redrafting of legislation. These reversals are more likely to occur when there is strong grassroots pressure targeting individual MPs.
Some organizations are timid players in the Parliamentary process. They should be bolder. Legislators want and value knowledgeable public comment. More avenues of action exist than is commonly recognized.