Ken Fox, Reference Librarian
This is an account of what I learned in a session called “Demystifying Legislation: Drafting and Research” at the 2017 CALL/ACBD Conference in Ottawa. The speakers were Aleksander Hynna and Wendy Gordon on drafting, and Emily Landriault on research. All three presented well on pertinent topics, but this post will focus on the first two presentations on legislative drafting.
Aleksander represented the Ministry of Justice’s Legislative Services Branch, the “Big Beast” of legislative drafting (according to Wendy), and the “Guardians of the Statute Book” (in Aleksander’s own words). Wendy represented Legislation Services for the House of Commons, whose role it is (in her own words) to make snowballs for private members to throw at the House.
For those who have already been demystified, this session may have had little interest. But for myself, who had hitherto remained in the dark regarding the inner workings of the creation of legislative machinery, it was enthralling.
There are 110 legislative counsel who draft federal government bills, 110 elite guardians to prepare statutes at the behest of the 30 members of Cabinet. They are functional specialists but subject-matter generalists, who consult with an army of advisors throughout the Justice Department. They work in teams of two, anglophone and francophone co-drafters.
The appointed Ministers & their staffs prepare detailed instructions which are sent to legislative counsel, who draft a bill, and send it back to the relevant officials and their corresponding agencies, who study the draft for conformity to legislative intent. There are meetings, discussions, re-draftings. Errors are corrected, language is perfected, meanings of words, in French and English, checked and cross-checked, over and over and over again. This back-and-forth relay of legalese is known as “the drafting shuttle.” Everything is done simultaneously in French and English, because Canada is bilingual and bijural, and because the cross-checking involved in bilingual drafting results in better legislation.
Wendy Gordon, on the other hand, represented a David to Aleksander’s Goliath. Private members, or back benchers, as they known colloquially, outnumber Cabinet members 10 to 1 – but they do not draft government bills, and do not have the vast resources of the justice department working for them.
And there are two Davids – a legislative services department for each of the House of Commons and Senate. Wendy works for the House of Commons, but implied that the two departments work in a similar fashion.
Any member of Parliament can introduce a bill, but only members of Cabinet can produce a government bill. So non-Cabinet members of the governing party, and all opposition members, rely on Parliamentary Legislative Services for their bill-making needs.
Where Legislative Services Branch has 110 drafters, in addition to numerous advisors, revisers and jurlinguists, the House has but five drafters, 3 translators, 2 revisers and 2 publications officers. In the 41st Parliament, this small team received over 1,000 requests for legislation, about 800 of which generated an actual bill. Of these, 34 were passed, 58 defeated, and the remaining 700-some-odd died.
With these long odds, why make a non-government bill? There are several reasons, but they can all be summarized in a single word – politics. These 300 or so members represent ridings across Canada, and often raise local concerns, and carry the weight of history – “we hear a lot of stories,” says Wendy Gordon. Often timed with press conferences, these bills are intended to grab attention, send messages, spark debate, create a raucous. Says Wendy, “the private members throw snowballs at the house, and our role is to make those snowballs.”
Like the Legislative Services Branch, the munitions-makers of Parliament receive their instructions in writing from the members of the House – what type of snowball to make, what ingredients, how large, etc. But they draft their snowballs in one language, and translate them after the fact, rather than composing them bilingually. Without access to the Department of Justice, Parliamentary legislative counsel rely on the Library of Parliament for research support. They are strictly confidential and non-partisan. All snowballs are checked for jurisdictional relevance, constitutional complicity, non-redundancy with other snowballs, and that they do not allocate funds (only government bills can do that).
In summary, 100 serve the 30, and 13 serve the 300, who represent the 35 million. But the 30 represent the one, which is the Crown, which is the body politic, to invoke the royal metaphor. The mist has cleared and the veil has been lifted – and I have seen inside the belly of the beast.