At the time this article was written John
Reid was MP for Kenora Rainy River. This article is reprinted with permission
from the Proceedings of the National Conference on the Legislative Process,
held at the University of Victoria on March 31-April 1, 1978, under the
sponsorship of the Institute for Research on Public Policy, Montreal, and the
Faculty of Law, University of Victoria. The Proceedings, in their entirety, are
available from the Institute.
The concept of "legislative
responsibilities" is a very considerable one, and much more than is generally
recognised, it penetrates the day-to-day existence of the backbencher. While
some Members come with causes or interests to advance, it is by no means clear
that they will be able to participate most effectively in the legislative
process. That educative experience, however, is the subject of another paper.
We usually use the term "legislative
process" when we consider new legislation or the amendment of existing
legislation, this latter category being by far the area most dealt with by
Parliament. It also includes legislation by regulation, an increasing practice.
Such a concept has a certain solidity about it but I would go further and to
argue that it also includes administrative actions as well. The concept of
legislative responsibilities goes beyond that to where a Member becomes an
educator in attempting to win the necessary broad general support which is
required to develop a legislative solution he has outlined
Members can become advocates for legislation
as a result of the work they do in their ridings, which provides them with an
excellent window on how well a particular programme may or may not be working.
This information, I might add, is not generally available to Ministers, nor is
it available generally to senior civil servants; it is really available only to
someone placed like an M.P. who can understand the problem which brought forth
the original legislation and can follow the working out of the legislative
Another important source of ideas and
involvement for Members is the Committee system. If one wants to understand
what government is doing, and how well it is discharging its function, the
Committee system is one of the best facilities available for Members. It allows
Members to learn in depth about those things which interest them, and it opens
the door to important contacts both within and outside government. For the
backbencher, the Committee system is both his best opportunity and his greatest
frustration. Additionally, it is within the Committee system where the Member has
his greatest opportunity to influence the actual words of the law.
I would point out that the Committee system
is a substantial one. At present, it contains 19 individual committees listed
in the standing orders. I estimate that about 65 Members carry the load of
committees. The membership of the committees ranges from 12 to 30 members.
Although Committees have the power to establish their own quorum necessary for
the purpose of hearing witnesses, they usually accept the quorum necessary for
decisions which is 50% plus one. Of course, this practice impedes the orderly
operation of committees, but Members are not inclined to relax this practice.
It wastes a great deal of the time of a conscientious Member, who must wait for
a quorum to appear.
From time to time Special Committees are
established by the House. For example, we have a Special Committee on Rights
and Immunities of Members, one on the implementation of Television in the House
and in its committees, a Joint Committee with the Senate on the National
In addition to the 65 Members who really
maintain the Committee system, there are another twenty to twenty-five
"floaters". There are the people who seldom show up for the hard
difficult work of Committees, but who are very much in presence during the
final days of the discussion of a bill, or especially when there is the hope of
a scandal. These people, from all parties are well known to the long suffering
What are the outlets for the legislative
urge of Members? There are several, and I would like to deal with them in turn.
But I should add that there are not many Members who are really interested in
the various aspects of the legislative process as it operates. Most are
interested only as it happens to apply to whatever they are interested in at
the time. Often, because these members have not acquired the necessary skills,
they find it difficult to perform their legislative function. I estimate that
perhaps twenty to twenty-five members really know their way through the
legislative process .
In first place by tradition is the Private
Members' time. It is divided into three sections, one allowing a Member to
present a proposal for a change or an addition to the public law in the form of
an actual bill to the House. The second is the possibility of a Member to
present a proposal in the time allotted for Members to present private bills
dealing with private matters. These range, now, only to the establishment of
banks and the incorporation of certain other companies whose federal charter
demands a decision by Parliament -- for example, a private Member's bill
currently before the House to amend Bell Canada's Charter. To indicate how this
practice is dying out as a result of changes to the law, this is the only bill
of its nature presented in this session; in the previous one, there were only
By and large, the function of Private
Member's hour is to allow Members to present ideas for debate. Since a good
many of them do come up for debate, the government must make some response.
Whether the government likes it or not, it must take the proposal seriously and
present its arguments to the House, since it knows that most Members (from
whatever side of the House) regard the passage of Private Member's bills as a
significant achievement for the backbench. Consequently, the government must
take note of these bills, and determine how to respond to the ideas contained
Secondly, a surprising number of them, over
the past six years, have been dealt with. For example, the House recently
approved my motion, seconded by Jim McGrath, a Conservative MP, to send six
bills dealing with the obscenity section of the Criminal Code to the Justice
Committee, which is holding hearings on them as this paper is being written.
That took some negotiations with all parties as well as with the government.
Backbenchers are not without power to negotiate.
Some ideas are put in place through this
system that the Member may not necessarily want debated, but want considered.
Out of this has come legislative action by government and also by provincial
administrations. For the Member most interested in legislation, the Private
Member's hour is an important opportunity, not only for what response the
government must take, but also because it allows the Member to carry on his
work of educating the public, the press, and the government. In my own career,
I have found the Private Member's hour to have been invaluable.
Let me give a somewhat lengthy personal
example of the impact of the Private Member's bill which is not debated.
About two or three years ago, I was
approached by an individual who was receiving a Canada Pension Plan disability
pension, which was indexed. As a result of Union Management decisions, he was
also covered by a private plan, which guaranteed him a monthly sum of money. As
his CPP was indexed, it went up with the cost of living, but the insurance
company's obligation went down, since its contract called for it to maintain
the income at a particular level.
I entered into a lengthy correspondence with
the Minister of Health. I spent considerable time with the Officials of the
Department. They told me they could do nothing since the insurance company was
only doing what its contract called for, and the solution was out-side Federal
I tried to deal with the Ontario lawmakers,
but was not able to accomplish much.
At this point, I decided to draft a Private
Member's Public Bill to deal with this matter. I had further discussions with
the Department, and then further ones with the Department of Justice. Then I
contacted the Parliamentary Law Clerk, and we designed a Private Member's Bill
to deal with this situation.
Because of the constitutional situation, the
bill was very difficult, certainly not satisfactory, but it did attempt to deal
with the problem indirectly since the Federal Parliament could not get at it
Within a few days of introducing the bill in
the House of Commons, I received a number of phone calls from Department
Officials, and others. One of the most interesting was from the Association of
Insurance Companies. He told me they recognised this problem, wanted to help
solve it, indicated they disagreed with my bill, but felt it had pointed the
way in some respects.
Then, we got in touch with the Ontario
Pension Commission, which regulates the way in which companies providing
pensions can operate. After some months of discussion and deliberations, in
which I did not take part, the Ontario Pension Commission changed its
The result was to eliminate the abuse by
fixing the amount companies had to pay under these clauses so that the indexing
of one part of a person's income would not result in the loss of income from a
source which was not indexed.
I was not the first person to have picked up
this problem, but I was the first to propose a concrete solution, however
unsatisfactory it may have been. The solution came from an agency of the
Provincial Government, with the full co-operation of the Insurance Companies of
Canada. It gives an indication of the complexity of our governmental system,
and the need f or those who would legislate to seek out allies.
And the bill, incidentally, was never called
for debate in the House of Commons. Yet it served its purpose even better than
most of those which are debated. Probably, without the use of the Private
Member's bill, this story might have had a quite different ending.
The House, when dealing with legislation,
really is a forum for the parties. The House is a party battleground, and if
one wishes to go charging out into someone else's war, one has to take the
That statement should be qualified, however,
because in reality the debate between the parties is concluded within two or
three days. At that point, since the House has yet to discipline itself to the
use of its time, the debate is likely to drag on, unnoticed by the press and
public alike. Creative Members then have an opportunity to develop ideas in the
general area covered by the legislation. Out of relief, everyone will listen to
something new' But the House generally is not an accommodating arena to the
backbencher interested in legislation unless, of course, he is a part of a
party' s team on that subject.
When legislation gets to the Committee,
however, the circumstances change somewhat. While opportunities to change a
particular bill significantly are not at all great, there are opportunities at
times, usually having to do with significant opposition from the public or
strong interest groups against the legislation. Competition policy is an excellent
example. The Commons Finance Committee, at the end of last session, released a
report on competition policy which is likely to be influential in determining
how the government will deal with this problem. Those Members who participated
in the work will have made, in all likelihood, a significant contribution to
that particular legislative idea. This example is the same as the growing use
of government background papers (what used to be called white and green
papers), and their reference to committees for study and report. Members,
through this technique, have had a greater opportunity to participate directly
in the legislative process. Additionally, there is the use of references to
committees, the most interesting recent example being the report of the Justice
Committee on the Penitentiary System, and the Committee's subsequent demand to
be kept informed as to the government's implementation of the series of changes
they had recommended.
A further example of the ability of the
backbencher on the government side to react against legislative proposals is
contained in the saga of Gun Control legislation. The first proposal put
forward by the government was treated harshly in committee, and when it reached
the House at Report Stage it became clear that there was not sufficient
government backbencher support to ensure its passage. The internal opposition
to the bill came from government supporters who represented rural areas.
In the next session, a much modified bill
was introduced, and after a difficult passage eventually passed. It was
significantly different than its predecessor. Those changes would not have
taken place if those government backbenchers had not had the support of
opposition backbenchers - or, depending on your point of view, vice versa.
There is a further aspect to committee work
in the legislative sense, and that is the committee work on supply, or the
estimates as they are more popularly known. According to the Standing Orders,
the government must bring down its spending estimates for the year and have
them referred to the various Standing Committees by 1 March. The Committees
then have to 31 May to deal with them. At the conclusion of the process, an
appropriation bill based on these estimates is presented to Parliament in late
June, and dealt with. In conjunction with the supply process, the opposition
parties have 25 days in the House of Commons, spread throughout the
Parliamentary year, but concentrated in May and June. During those days, they
choose the topic for consideration. In addition to attacking the government,
they can and do advance ideas requiring a legislative solution.
The importance of the estimates in the
committee is that this is the time at which the Committees are unfettered by
terms of reference set by the House. Anything coming under the responsibilities
of a department whose estimates have been referred to a Committee is grist for
that Committee's mill. The Committee can investigate any aspect of that
department's activities and of ten areas that are not covered by the
department' s activities .
As an educative process, work in the
Committees is probably the most effective forum for Members, although it is not
the most pleasant of work, and worse, from a pragmatic point of view, it
generates little or no publicity unless one can discover a scandal of
appropriate dimensions. Since Committees have come on the scene, the
opportunities for learning what government does and does not do, have greatly
expanded, and the possibility of engaging both Minister and Senior Civil Servants
directly in discussion has had, in my opinion, an educative impact on all.
Members can confront the people running programmes directly with their
concerns; and then can deal with the policy aspects either with the Minister in
committee or take them to the House. The Opposition Member has an advantage at
this stage, as he and his party have access to the 25 supply days, an
opportunity denied to government backbenchers.
The last opportunity for backbenchers lies
in two specialised Committees, as well as special ones which are created from
time to time. The former, such as the Joint Committee of the Senate & House
on the Constitution or on the National Capital Commission add a particular
dimension to the study of a problem. These Joint Committees tend to have
greater clout than special committees established by either House.
The two latter type of committees mentioned
above are the Committees on Public Accounts and the Regulations & Other
Statutory Instruments, the latter being one result of an earlier joint
Committee on statutory instruments. This Committee has its own terms of
reference, in addition to whatever work may be sent to it by the House.
Public Accounts is a committee which works
closely with the Auditor General. It has had opportunities to influence
legislation as a result of investigations carried out following suggestions in
the Auditor General's report. For example, the recent background paper on Crown
Corporations resulted as a direct consequence of the Public Accounts
Committee's investigation into Atomic Energy Canada.
The Regulations and Other Statutory
Instruments Committee has one of the more interesting and important jobs to do.
Its task is to check up on all of those orders issued by the Federal government
coming under its title. Since there has been a tendency for Parliament to
entrust more regulatory power to the government, this role is most important.
This function, at times, resembles that of a quasi-court. It provides an
important check on the government's legislative
function. Additionally, this committee is
currently studying the government's background paper on Freedom of Information.
The most important constraint on the role of
the private member is his party affiliation. With the advent of television in
the House of Commons, party policy is becoming much more important than it had
before. This operates to constrain Members, for now the Party feels it must
present as uniform a position as possible on a greater variety of measures than
it was thought necessary before.
I cannot emphasise this point too much.
Members are conscious that they entered the House as party members. This fact
is part of the environment of politics. It limits what role a backbencher can
envisage for himself. It is necessary, as well, for the functioning of the
House. The effort needed to develop the necessary discipline in the chamber of
the House with 264 Members (after the 1978 election this will be 282), all with
a sizeable ego, would be virtually impossible without the use of party. So the
emphasis is to be a part of a team. Another consideration is that there are no
rigid rules as to how or what a Member can do when he is elected. There is no
one role. Often Members are overwhelmed by their choices in the relatively
unstructured atmosphere of the House and of politics in general. Some thrive in
this arena, and others find it impossible.
For Members, the changes in developing the
Committee system, begun in 1965 and brought to the present status in 1967, have
opened the system to permit more direct personal involvement in the legislative
process. This system has provided him with a great deal of relevant
information, broken down barriers between Civil Servants, Ministers and
Members, and developed, I believe, a much better feedback mechanism for all
parties in the legislative process.
Although I did not mention it before, the
Committee system has also opened the legislative process to
"outsiders" by allowing them to come and make direct presentations to
committees. This opening of the system has been helpful to all, even though it
has not been without its pains.
Traditional means of participating in the
legislative process are still of considerable importance. The time devoted to
private member business is of vital importance to members with a legislative
bent. It is still used extensively, and there have been a series of reforms to
ensure that the opportunity to use this time is spread around more than it used
to be. In addition, there seems to be a willingness by government to cooperate
more than had been the case to ensure that private members' bills get more
decent treatment than the hasty burial which had been the case.
Of course, one of the most important areas
where a-backbencher can exercise a legislative function results from his
participation as a member of a political party in the development of party
policy. In some ways, this can be the most important part of a backbencher's
legislative outlook. I have not dealt with that aspect of his activities. I
have not dealt with the impediments to reforming the legislative function which
is implicit not so much in the nature of the system itself, but rather from the
fact that the floor of the House of Commons, and to a lesser extent in all of
its emanations is a battleground between parties and, occasionally, ideas.
For those Members with a legislative bent,
(we do not all share that impulse) the opportunities are more readily available
now than they have been in the past. As one associated closely with the
parliamentary process for some 14 years, I believe the opportunities for
legislative participation have increased substantially for the backbencher.
Nonetheless, I believe that Members will continue to persevere for more
opportunities to participate more directly in the legislative process, which means
trying to open up the process more, and to avoid the constraints imposed by