THE FUTURE OF LEGISLATIVE COUNSEL AND A DEFENCE OF M.P.'s RIGHTS by Garry Breitkreuz, MP - October 14, 1997 Table of Contents Introduction 1 It's Been an Issue of M.P.s since 1982 . 1 The McGrath Report - 1985 3 Duties of the Law Clerk and Parliamentary Counsel 4 Historical Context 5 My Personal Experiences with Legislative Counsel 6 Key Questions 7 Key Recommendations 7 Recommendations regarding the Role of Legislative Counsel 8 Unworkable Solutions 9 A Final Request for M.P.s 10 THE FUTURE OF LEGISLATIVE COUNSEL AND A DEFENCE OF M.P.'s RIGHTS by Garry Breitkreuz, MP - October 14, 1997 Introduction It is my understanding that independent lawyers with legislative drafting expertise from Legislative Counsel do not participate in Committee hearings and clause-by-clause debate of government legislation and will no longer be available to assist individual Members of Parliament to draft amendments to government bills. This change in both tradition and procedure jeopardizes Members' ability to perform their duties as legislators effectively and undermines their ability to represent the best interests of their constituents. My research shows that the role of Legislative Counsel and the need for Members to have independent legal advice and access to lawyers with legislative drafting experience has been an issue since at least 1982. Independent, confidential legal services to Members have been constantly eroded since then. This situation continues to this date. If the facts were fully available to all Members of Parliament, I believe that there would be widespread support for the restoration of a truly independent Legislative Counsel to provide independent confidential legislative drafting expertise to Members and to Committees of the House of Commons. It's Been an Issue for M.P.s since 1982 Here are what some Members of Parliament and other interested persons and organizations said about this issue between 1982 and 1985: 1. The Honorable Ray Hnatyshyn expressed his concerns about the principle of independent legal advice available to Members of the House of Commons. He asked, "Is your understanding as Minister of Justice, that counsel would have responsibility directly to members of Parliament? There would be no intermediary by way of an official of the House of Commons, whether it be the Clerk or a designee of the Clerk? The principle of independent legal advice is one which is of direct accountability between counsel and Members of Parliament, either individually or collectively." Honorable Mark MacGuigan, Minister of Justice responded, "I do not see the legal opinion of the legal advisor to a Member or a Committee going through the Clerk or the Speaker." Source: Minutes of the Standing Committee on Justice and Legal Affairs - Dec 6, 1982, page 113:6 2. Honorable James McGrath: "Not only should we retain the position of law clerk, but I think the position of law clerk, in our process of reform, should be strengthened so that Parliament will have available to it independent advice--independent of the Crown, independent of the executive, which I think is very important." Source: Minutes of the Special Committee on Standing Orders and Procedure - Dec 7, 1982, page 12:19. 3. Honorable Ted McWhinney: "Secondly, I would also say that it would seem to me to be an inherent power of Parliament to have its own legal advice, independent of that of the executive. It is basic." . . . "Let us face it, Parliament's counsel's views properly, since he is responding to his own client, Parliament, may be different than those of the Justice department's lawyer who is responding to his client - the Minister of Justice or the Government of Canada." . . . "It is basic to have your own counsel, to have your own legal advice, and to get quality advice." Source: Minutes of the Special Committee on Standing Orders and Procedure - Dec 7, 1982, page 12:24. 4. Professor C.E.S. Franks, Queens University: "Perhaps each Bill could be assigned to a lawyer from the Branch, whose responsibility would be to follow it through the various stages, and be available for help with analysis of its legal implications, and the drafting of amendments and editorial revisions when required." Source: "The Role and Function of the Law Branch of the Canadian House of Commons"- July 1982 5. The Honorable Eugene Forsey: "I think the House of Commons needs a strong, independent Law Clerk on whom it can rely for legal advice to the Members of the House of Commons. The House needs its own Law Clerk. He should have proper tenure of office. He should be there and available, and neither the House of Commons nor the Senate should be expected to take the opinion of Privy Council lawyers, or Department of Justice lawyers." Source: "Parliamentary Reform is more than Mechanics" - University of Saskatchewan - Nov 16, 1984. 6. Canadian Bar Association: "We feel that the ability of the House of Commons to meet the existing demand is somewhat in doubt. Committees are now dependent on legislative draftsmen from the Department of Justice. These same professionals give advice to the government. This makes for a situation which can place the legislative draftsman in a position of conflict. We would strongly recommend that the House equip itself with the necessary legislative draftsmen to meet its current and future needs, and as well that they be paid the equivalent of those in the Department of Justice." Source: Joint presentation of the Canadian Bar Association and the Law Reform Commission of Canada to the Task Force on the Reform of the House of Commons - April 25, 1985 The McGrath Report - 1985 In June of 1985, James A McGrath, M.P. for St. John's East and Chairman of the Special Committee on the Reform of the House of Commons presented his Committee's third report. The McGrath Committee started their report with these words: "The purpose of reform of the House of Commons is to restore to private members an effective legislative function, to give them a meaningful role in the formation of public policy and, in so doing, to restore the House of Commons to its rightful place in the Canadian political process." (Chapter 1, page 1) Comment: In my view, this "purpose" remains unfulfilled today. On page two, the Committee stated: "The formulation of legislation used to be a central task for Members of Parliament, and it must become so once again." Comment: I wholeheartedly agree with the sentiments expressed by the McGrath Committee. However, the reduction in access to independent, legal advice and expert legislative drafters available to private Members seems to indicate that the Board of Internal Economy is moving in the opposite direction to the stated purpose of the McGrath Committee. On page 51 of this report, the Committee had this to say about the Office of the Law Clerk and Parliamentary Counsel. "We believe that the Board of Internal economy should be the guarantor of adequate legal services for members. The Law Clerk and Parliamentary Counsel should be responsible to the House and its agent, the Board of Internal Economy, for providing full legal services for the House and its members. Private members' business will take on new importance, and bills must be drafted in proper form. Legislative committees must have assistance in examining and emending bills. From time to time standing committees will require legal assistance when conducting inquiries or drafting proposed legislation." The Committee recommended that the Board of Internal Economy (BOIE) study the new role for this office "with a view to increasing its permanent staff and to adjusting their rate of pay to that available in the Department of Justice." Comment: Unfortunately, having the Law Clerk and Parliamentary Counsel under the responsibility of BOIE has not worked for one obvious reason: BOIE is primarily interested in protecting the rights political parties and only incidentally the rights of individual Members of Parliament. To guarantee independence and integrity Legislative Counsel needs to be more directly responsible to the M.P.s they are supposed to serve. Duties of the Law Clerk and Parliamentary Counsel Up until June 10, 1994, Standing Order 156 listed the duties of the Law Clerk and Parliamentary Counsel as follows: "It is the duty of the Joint Law Clerks of the House to assist Members of the House and deputy heads in drafting legislation; to prepare bills for the Senate after they have been passed by the House; to supervise the printing and arrangement and extending of the Statutes year by year as they are issued at the close of each Parliamentary session; to revise, print and put marginal notes upon all bills; to revise before third reading all amendments made by select committees, or in Committees of the Whole; and to report to the several Chairmen of the various select committees, when requested to do so, any provisions in private bills which are at variance with general Acts on the subjects to which such bills relate or with the usual provisions of private Acts on similar subjects, and any provisions deserving of special attention." Comment: The Standing Orders were not amended to reflect the changes in name for the Joint Law Clerks nor the changes in the duties and reporting relationships. This is an argument for amending the Standing Order not deleting it as was done on June 10, 1994. The Annotated Standing Orders of the House of Commons 1989 (pages 395-7) provides some clarification of the duties of the Law Clerk and Parliamentary Counsel. "Although the Office of the Law Clerk and Parliamentary Counsel retains a role in drafting certain legislation, the task of drafting government bills has rested with the Justice Department since the late 1940s. The extent of the Office's drafting typically includes Supply bills, private Members' public bills, amendments requested to private Members' public bills, any amendments to government bills once they are in the House's possession and any bills that amend the various statutes related to Parliament. The Law Clerk's task related to amendments and marginal notes still applies, although only to the extent that it mirrors drafting obligations. The Law Clerk verifies all amendments made in committee or at report stage, before they are inserted in the bills concerned. The Law Clerk frequently advises on provisions in various legislative proposals that may be at variance with the larger body of statute or constitutional law." Beauchesne's Parliamentary Rules & Forms, 6th Edition citation 225 (pages 61-62) also lists the duties of the Law Clerk and Parliamentary Counsel which include: - under Standing Order 156, assists Members in drafting legislation - provides legal and legislative services to committees of the House, as required - incorporates amendments into bills The June 1997 edition of the Standing Orders of the House of Commons (page 85) states that Standing Order 156 was deleted on June 10, 1994. Comment: Why was Standing Order 156 deleted rather than amended? Was there any meaningful debate in the House of Commons? Was the House acting from a position of informed consent? Historical Context The right to draft their own legislation has been a hard-fought right for Members of Parliament. Canada's parliamentary traditions were established in Great Britain. Prior to 1628, Members of Parliament petitioned the king for legislation. If the King accepted the petition, he would draft the legislation but only after the dissolution of Parliament. Obviously, M.P.s were not masters of the legislation they petitioned the king for. In 1628, Members of Parliament won the right to draft all legislation and present statutes to the Crown for assent. The result of the 17th century revolution was that all bill drafting was removed from the Privy Council and closely controlled by the House of Commons. In the two hundred years that followed, the development of political parties had the following effect: opposition normally directed towards the Crown was redirected to other political parties. As a consequence, the Crown became confused with the governing party and over time the governing party took more and more control of drafting legislation that Members of Parliament had fought so hard for. In Canada, Members of Parliament effectively abdicated a large part of their control of legislation by allowing the governing party to draft legislation through the Department of Justice rather than employ their own independent law officers. Since the late 1940s, the Department of Justice has drafted all legislation for the government. However, Members of Parliament did not give up all their rights. M.P.s still have the right to draft private members bills and amendments to government bills. M.P.s still have the right to have an adequate number of independent legal advisors and expert legislative drafters available to them to respond effectively to legislation drafted and introduced by the government. It seems ironic and somewhat sad that in 1997 Members of Parliament in Canada are in the same situation Members of Parliament in England were 400 years ago. In 1597 England, the Crown exercised complete control of the legislative drafting process. In 1997 Canada, the governing party exercises complete control over the legislative drafting process. M.P.s revolted in England and won the right to draft all legislation. It remains to be seen what Canadian M.P.s will do when confronted with a similarly grave situation. My Personal Experiences with Legislative Counsel When elected in 1993, I promised my constituents to be their voice in Ottawa. One of the services which became invaluable in this regard was the access to independent, confidential legal advice through Legislative Counsel. On a number of occasions private confidential meetings with lawyers in Legislative Counsel allowed me to discuss my work on various private members bills and my work reviewing, responding to and drafting amendments to government bills. The advice received was expert legal advice from lawyers who were knowledgeable about drafting legislation and who were members in good standing of a provincial law society. Therefore, I was guaranteed that our conversations would never be divulged outside my office. Particularly impressive was the performance of Legislative Counsel during the debate of Bill C-68, An Act respecting Firearms and Other Weapons. Members had access to independent legal advice during the hearings and clause-by-clause debate of C-68 - advice and legal opinion which often differed from the opinions and advice being offered by the government's lawyers. The fact that this independent legal advice was available to me and other Members during the Standing Committee hearings, greatly assisted in drafting amendments necessary to fix the flaws in the government's legislation. The fact that this independent legal advice was available made it possible for me to formulate amendments which properly reflected concerns expressed by my constituents. Now, I learn from an internal memorandum sent to procedural clerks in the House of Commons that this independent, confidential legal advice will no longer be available to me in Committee (see copy of memorandum attached). This unilateral decision made by House of Commons bureaucrats will seriously interfere with my ability to do my job as a legislator and to effectively represent my constituents. During the debate of Bill C-68, I and other Members of Parliament from my party met with lawyers from Legislative Counsel to discuss the drafting of our amendments. These meetings were subject to lawyer-client confidentiality and the independent legal advice I received in this meeting was invaluable in determining not only which amendments we would proceed with but also at what stage of the debate they would be introduced. Now I learn, again from the previously mentioned memorandum to House of Commons procedural clerks, that the lawyers in Legislative will be restricted to working on private members bills only. Consequently, I will no longer have access to the expert legal advice given to us on government bills. Once again, this severely restricts my ability to perform my function as a legislator and interferes with my ability to effectively represent the wishes of my constituents in this House. Comment: How can changes of such serious consequence to Members of Parliament and their duties in this House, be made without us being fully informed of these changes, fully informed of the consequences of these changes, and fully informed of the possible alternatives to the proposed changes? How can these fundamental changes to the services available to Members of Parliament from Legislative Counsel be made without Members being given an opportunity to debate and vote on these changes? Key Questions If the management of the House of Commons continues to refuse to allow Legislative Counsel to attend Committees of the House to assist Members of Parliament with government legislation and refuses to allow Legislative Counsel time to prepare for those Committees: if it continues with its plans to have procedural clerks rather than Legislative Counsel draft amendments to government bills for Members of the House, and if the whole process of incremental erosion of legislative services to Members continues, then how will M.P.s be: - guaranteed access to independent, expert legal opinion and advice about government bills? - guaranteed solicitor-client confidentiality which binds members of the bar? - guaranteed independence from the government and its legislative drafting unit? - guaranteed the ability to prepare reasoned and well-worded, legally credible amendments for clause-by-clause debate in Committee and at Report Stage? - guaranteed timely preparation of our amendments? - guaranteed the presence of independent legislative counsel when bills are being considered in Committee? - guaranteed that the government would not be advised of our amendments and the strategy for introduction of our amendments? - guaranteed that Members amendments drafted by "procedural clerks" would not have to be re-drafted by lawyers from the Department of Justice who would then be in a conflict-of-interest? Alternatively, how could Legislative Counsel be asked to re-draft the amendments drafted by "procedural clerks" when they have no adequate understanding of the government bill because they were not permitted to attend Committee or the time to properly acquaint themselves with the bill? Key Recommendations 1. Each Member of Parliament should be: (a) fully informed of the effect and consequences of the unilateral changes to the duties and availability of legislative counsel, (b) consulted as to the type of legal advice and legislative drafting services they require, (c) allowed to fully debate the role of legislative counsel and vote on any proposed changes before they are implemented. 2. Each Member of Parliament should have available independent, confidential, expert legal advice and sufficient resources to meet all their legislative requirements including: (a) independent, expert legal analysis of government bills, (b) independent, expert legal advice at Committee hearings reviewing government bills, (c) independent, expert legal assistance to draft amendments to government bills, and (d) independent, expert legal assistance to draft Private Members' bills and motions. 3. All lawyers providing independent legal advice to Members of Parliament regarding government bills must be: (a) qualified legislative counsel, (b) employed by the House of Commons directly as in-house counsel, (c) accountable to Members of Parliament not political parties, (d) members in good standing of a provincial law society and thus subject to strict common law rules which guarantee lawyer-client confidentiality. 4. Legislative counsel should report to a non-partisan committee of Members of Parliament comprised of two members from each officially recognized political party and a maximum of two independents. Recommendations regarding the Role of Legislative Counsel 1. Whether it is in the form of a bill, motion or an amendment, all legislation introduced in the House of Commons must conform to the same exacting standards to which the drafting of government legislation is drafted and Canadian legislative drafting conventions. Only qualified legislative counsel can fulfill this role. 2. The principle goal for legislative counsel is to serve Members of Parliament as independent legislative advisors and expert legislative drafters. 3. To guarantee independence legislative counsel should be accountable and answerable directly to the Members of Parliament they serve. 4. Legislative counsel should be assigned to specific government bills and become fully acquainted with these bills in anticipation of requests from Members of Parliament for preparation of amendments and in order to provide expert legal advice to committees and Members of Parliament. 5. Regardless of who makes the request, all requests for amendments or editorial changes to a bill shall be made in writing to legislative counsel assigned to the bill. 6. The legislative counsel assigned to a specific bill will be responsible for the drafting of all amendments related to that bill and will attend all Committee meetings held to review the specific bill to which they have been assigned. 7. An adequate number of Legislative Counsel need to be recruited and trained to meet the demands of Committees and Members of Parliament. Unworkable Solutions When the government is confronted with the possibility that individual Members of Parliament could become more effective by having access to timely, independent legal advice about government bills through Legislative Counsel, they go on the counter-attack. The government has proposed two options: (1) give more money to the officially recognized political parties so they can hire their own lawyers and drafters, and (2) give more money to each MP so they can hire their own lawyers and drafters. Both of these so-called solutions are unworkable. Option #1: Giving More Money to Political Parties In the past, the government offered to make up for the reduction in independent legal services in Legislative Counsel by giving each officially recognized political party more money for research so they can hire their own legal expertise and legislative drafters. Fortunately for M.P.s, the opposition parties have opposed these offers. Members of Parliament should lobby their caucus officers to continue to oppose offers of this sort. The primary purpose of a political party is to represent the best interests of the party. Consequently, when the best interests of the political party are in conflict with the best interests of individual Members of Parliament, the party always come first. The first priority of a Member of Parliament is to represent the best interests of their constituents. But what if the best interests of the M.P.'s constituents are in conflict with those of the party? Would the legislative drafter hired by party research branch work on party amendments or those proposed by an individual MP? What priority would the party hierarchy place on drafting amendments which address the best interests of a Member's constituents but are at variance with party policy or the caucus position? Finally, if the government has money to give to political parties to do the work of lawyers in Legislative Counsel, why not just hire and train enough lawyers to meet the legislative drafting requirements of Members of Parliament? Option #2: Giving More Money to Members of Parliament Faced with opposition to giving more money to political parties, the government has come up with new twist to giving away money to reduce the effectiveness and influence of individual Members of Parliament when reviewing and proposing amendments to government bills. Some Members quite rightly feel the cut-backs and reorganization of independent legal advice in Legislative Counsel is interfering with their rights as a Member of Parliament, interfering with their ability to review and amend government legislation, and interfering with their ability to properly represent the best interests of their constituents. Some members feel so strongly about this issue they have even raised Questions of Privilege in the House of Commons. Apparently, some of these Members have been approached by senior House of Commons staff who proposed a possible solution to the problem, namely, that the House increase every Member's Office Budget by $10,000 a year. Multiplied by the number of M.P.s who are not in cabinet, this amounts to an increase of about $2.7 million a year to the House of Commons budget or $2.7 million which would have to be found elsewhere in the budget and reassigned to Members of this purpose. First of all, $2.7 million would hire 30 to 60 lawyers in Legislative Counsel. Obviously, the cut-backs and reorganization in Legislative Counsel are not a question of saving money. If the cut-backs and reorganization are not about money, then it must be about control - giving the government total control of the legislative agenda in the House. Secondly, $10,000 per Member doesn't buy much in the way of legislative drafting. A couple of private members bills and a few amendments to one or two government bills and it would be all gone. A Member who is very active would use up his $10,000 budget very quickly and then would have to make sacrifices in other areas of their budget to meet their legislative drafting requirements for the rest of the year. Thirdly, the legislative drafters Members hire would not likely be able to attend Committee hearings when the Committee was reviewing the government bills. Therefore, their amendments may not be of the same quality and may in fact be ruled out of order as has happened in the past. The government has even suggested that Members could pool their $10,000 drafting budget with other Members to help review government bills and draft amendments. Getting two Members to agree to pool their funds will be difficult and time consuming - problems which will increase exponentially with every new Member added to the group. Our constituents deserve better. A Final Request for M.P.s I ask all Members of Parliament to look at the recommendations I proposed for the reorganization of Legislative Council on pages 6 and 7. Compare the solutions I propose with those offered by the government. I think you will realize that a properly organized and administered Legislative Counsel responsible to Members of Parliament is a better option than either of the so-called solutions proposed by the government. The very least each Member of Parliament should demand are convincing answers to the key questions I posed throughout the paper and particularly those on page 5. I look forward to hearing what each of you think about this issue in the coming weeks. In the meantime, if you have any questions or comments please call or send me a note. Garry Breitkreuz, MP Yorkton-Melville 992-4394