/Process Nerd: Is it time to do away with parliamentary secrecy in drafting legislation?

Process Nerd: Is it time to do away with parliamentary secrecy in drafting legislation?

Amid the foofaraw over virtual House sittings, even diehard process nerds may have missed it.

But tucked away in the deal reached last week to ensure MPs can continue to carry out their core constitutional duties while maintaining strict social distancing protocols is another provision that effectively rewrites the rules for how the House goes about its business.

READ MORE: What We’re Watching: In-person sittings of new COVID-19 committee to start

For the duration of the current pandemic-imposed break in regular House proceedings, if the government wants to bring back the House to sign off on mission-critical COVID-19 measures, they’re going to have to provide all recognized opposition parties with an advance copy of the proposed legislation no later than 6 p.m. on the Saturday before the planned recall.

It’s not hard to figure out the rationale behind the new requirement, which aims to pre-empt any repeat of what happened with the initial emergency aid package.

For those who may have forgotten that particular parliamentary subplot, after getting their hands on a draft of the bill just hours before it was set to go to the House, opposition parties balked at a proposal that would give the finance minister sweeping new powers to spend public funds without parliamentary approval. After a five-hour standoff, the government agreed to remove those provisions from the final version in order to garner the unanimous support needed to fast-track it through the Commons in a single sitting.

The Liberals would likely also point out that it simply formalizes what has become standard operating procedure over the last six weeks.

Even so, it flies in the face of the centuries-old parliamentary convention that, once officially added to the notice paper, a bill must remain secret until presented to the House, on the grounds that MPs should be first in line to peruse the fine print.

Like most House traditions, it’s not black-letter law — and, in fact, is regularly waived to allow the government to hold pre-tabling lockups for media and opposition members, as is often done with complex or highly technical legislation —  but remains a fundamental, if occasionally universally ignored, tenet of parliamentary privilege.

Still, it’s hard to come up with a compelling argument against loosening the rules to give opposition parties a preview of what’s in the queue.

Not only does it reduce the risk of a last-minute cross-aisle impasse, but it also gives opposition parties the opportunity to submit their proposed changes before it hits the Commons floor. (Like most editing jobs, it’s a lot easier to fix problems at the drafting stage than go back in after it goes to press.)

In fact, given Trudeau’s oft-touted commitment to transparency, maybe it’s worth taking it one step further — if there’s no inherent breach of privilege in giving opposition parties a sneak peek, why not open it up to the public as well?

As Process Nerd pointed out just before the pandemic hit, offering details of what may or may not be included in upcoming bills isn’t technically a breach of privilege if the bill hasn’t been formally put on notice.

It can, however, give the government a fleeting but still potentially crucial advantage over its opposition critics in setting the terms for any ensuing debate by strategically leaking specific elements to select media outlets.

Occasionally, it can have the opposite effect, too, of course —like, for instance, those eyebrow-raising new spending powers in the original COVID-19 bill, which were only brought to light after opposition members started airing their concerns in the media.

Releasing proposed legislation to the public before it goes on notice would not only guarantee that everyone is working off the same draft text, but would also ensure that anyone attempting to follow the debate will have all the necessary context.

READ MORE: The good news: we’re flattening the COVID-19 curve. Next: baby steps

Who knows –- they might even have some suggestions on how to improve it too. If there’s one benefit to the COVID-19 lockdown — beyond curtailing the spread of the virus, that is — it’s that we collectively have a lot more time to think.

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