Fixing Ottawa: Draft Bills

(This is the third in a series of posts on Fixing Ottawa. Other installments are: Fixing Ottawa: Committees, Fixing Ottawa: Question Period, and Fixing Ottawa: Empowering Backbenchers.)

Draft Bills were first introduced in the UK in the 1990s by the Major Government, but became more formalised under Labour.

A Draft Bill is published to enable consultation and pre-legislative scrutiny before being formally introduced in Parliament. This allows proposed changes to be made before the Bill’s formal introduction. After consultation and pre-legislative scrutiny has taken place, the Draft Bill may be introduced formally in House of Commons or the House of Lords as a Government Bill. Most Draft Bills are examined either by select committees in the House of Commons or in the House of Lords or by a joint committee of both Houses of Parliament. Most Draft Bills are Government Bills produced by Government departments and issued to interested parties. MPs and Lords can also consider them in committees.

The point of a Draft Bill is to allow the proposed legislation to be examined and amendments made to the bill much more easily – that is, before their formal introduction and the normal legislative stages of a Bill. The Government can also seek input from the general public by issuing a paper (usually referred to as Green or White Papers) for discussion and response. Green Papers usually put forward ideas for future government policy that are open to public discussion and consultation. White Papers generally state more definite intentions for government policy.

There are currently two Draft Bills before Parliament in the UK (as of writing). They are:

Draft Detention of Terrorist Suspects (Temporary Extension) Bills

The Home Office published two Draft Bills on February 2011 relating to the detention of terrorist suspects.

A Joint Committee of both Houses of Parliament has been appointed to conduct pre-legislative scrutiny of the Draft Detention of Terrorist Suspects (Temporary Extensions) Bills.

Draft Defamation Bill

The Ministry of Justice published in March 2011 a consultation document relating to a Draft Defamation Bill. The consultation document includes the text of the Draft Bill.

A Joint Committee of both Houses of Parliament has been appointed to conduct pre-legislative scrutiny of the Draft Defamation Bill.

The Government is also expected to publish a Draft Bill on reforming the the House of Lords this week.

There doesn’t exist anything similar in Ottawa. The closest we have is what is known as the “Hayden formula”. Senate Rule 74(1) which allows the Senate to expedite its consideration of a Bill through a procedure known as “pre-study”:

which involves referring the subject matter of a bill that has been introduced in the House of Commons but not yet adopted at first reading in the Senate, to a standing committee of the Senate. In this way, the Senate may consider the bill and form its opinion even before the bill is sent to it. When the bill does arrive, the Senate is accordingly in a position to adopt or amend it in a very short time.  (House of Commons Procedure and Practice, 2nd ed., 2009, p. 790)

This process isn’t at the same thing as a Draft Bill. In this instance, the Bill is before the House of Commons, but hasn’t had first reading in the Senate. It only allows the Senate to get a head start on considering the Bill before it officially makes it way to the Senate following Third Reading in the House of Commons.

The Government can refer a bill to the Supreme Court for consideration of its constitutionality before officially introducing the Bill in the House of Commons, but again, that is not the same thing as the Draft Bills used in the UK.

There are some obvious advantages to Draft Bills. The most obvious is that it is an effective way of improving the quality of legislation. It allows outside experts to comment on the detail of a bill so that it can be amended before it is presented to Parliament. As well, it provides Government the opportunity to secure greater legitimacy for a bill and broader support for Government policy. Parliament also benefits as Draft Bills give committees a more powerful voice, extends the influence of backbench MPs and provides the opportunity to directly influence Government policy. There is some evidence from the UK that the scrutiny committee reports improved the quality of the debate when the Bill was formally introduced in the House of Commons since Members had read the reports, and perhaps participated in the consultation process. Pre-legislative scrutiny by Committees has a tangible impact on the Government’s approach to legislation:

But in concentrating on the key policy issues, as most of the committees appear to have done, their reports provide the first political judgement on the legislation, and thus provide some political validation (or otherwise) of the  government’s plans. The reports appear to be one of the most important factors in determining the tone of the subsequent political debate.

The greater voice that Draft Bills provide to backbenchers is perhaps one of the more underestimated benefits of Draft Bills:

The other significant point to make is the value to Parliament in giving backbench MPs a voice. The nature of the Committees means that the MPs involved are, in theory, much freer from party discipline than they are in any other aspect of their parliamentary work. The cross-party nature of the committees, and the fact that they are dealing with mainly non-contentious legislation, means that their commitment to the committee can override their commitment to party policy. There are very few other areas where backbench MPs can enjoy independence from party whilst also carrying some influence.

Draft Bills are certainly an interesting way to approach legislation, and something I think the Canadian Parliament should consider adopting.


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Radical Centrist