At the time this article was written Michael
Clegg was Parliamentary Counsel to the Alberta Legislative Assembly and a past
president of the Association of Parliamentary Counsel in Canada.
Parliaments and legislatures throughout the
Commonwealth have established different ways of providing advice on
parliamentary law to members, officer's and committees as well as legislative
drafting services to private members.
Naturally, the complexity and diversity of
the staffing for any parliament depends to a great extent on its size. The
larger the parliament, the larger its staff and the more specialized their
duties. In many legislatures the Clerk, in addition to his traditional role
with respect to the procedural and administrative affairs of the House, will
also advise members on parliamentary law or special areas of law that affect
their role as members. The Clerk and his staff may also give legal counsel to
committees. Sometimes the government's legal advisers are made available to
give counsel to private members and also advise committees of the legislative
assembly on matters of law. Usually there is a clear distinction made between
the giving of advice on procedure and on law, and different advisers are involved.
But the two are sometimes merged depending on the resources and the expertise
of individuals available.
In a few cases parliaments have their own
legal staff with specific duties including responsibility for drafting private
members legislation. In many provinces in Canada, counsel is made available
from the office of legislative counsel or the legislative drafting section of
the Department of Justice. This latter system has some organizational and
professional advantages but may create some conflict of interest, particularly
in the case of counsel who is drafting a bill for an opposition member. The
degree or existence of conflict varies from place to place depending on the
position of legislative counsel. In some provinces the legislative counsel is
an officer of the legislature; this very much reduces the perceived conflict.
In both the Senate and the House of Commons and also in Alberta, separate
offices have been established for a parliamentary counsel whose job it is to
provide drafting services and legal counsel to the House, its committees, the
members and officers.
The parliamentary counsel fulfills the
traditional duties of law clerk with respect to all bills, amendments and the
preparation of statutes and is available in some cases to advise public
officers who are independent of government, such as the chief electoral
officer, ombudsman and auditor general. He also provides general legal advice
on the administration of the staff and support services.
The advantage of having an independent parliamentary
counsel is that he is retained by the members and for the members: he is not a
part of government staff and is not accountable to the government. In giving
legal advice to a member, he will develop a direct solicitor-client
relationship. He does not generally participate in the drafting of government
bills and is not saddled with confidential information about their content
prior to their being introduced. This could cause serious difficulties it he
were to be asked to draft in a similar area for a private member. Furthermore,
he is able to take a fresh and unbiased view of government legislation that
comes before the House, in the event that his opinion is requested by a member
or a committee.
In addition to the variation in
responsibilities, there is also a difference in titles in some Commonwealth
countries. In the United Kingdom and Australia the office of parliamentary
counsel is the organization that drafts legislation for government although
drafting services are also available to private members to a limited extent. In
Canada the title "Parliamentary Counsel"' is used to describe an
officer of parliament. The law officer who drafts bills for government is
usually styled "Legislative Counsel". In Westminster, the Speaker's
Counsel carries out equivalent functions to our parliamentary counsel with
respect to legal advice. The drafting of private members: public bills in the
United Kingdom is partly supported by grants to finance services by outside
counsel. However, that situation is only workable because of the number of
experienced drafting counsel in private practice in London.
In order to define the role and extent of
the functions of parliamentary counsel in the Canadian context, the author carried
out a Canada-wide survey in 1981, firstly to find out exactly what the
situation really was in each jurisdiction and, secondly, to see it the various
officers would be interested in some kind of loosely organized professional
association to discuss matters of common interest. It seemed that none of the
other associations that deal with parliamentary affairs provided a convenient
forum for professional discussion in the field of parliamentary law as such.
Moreover, many of those involved did not qualify as members of other
The response to the survey was detailed and
encouraging and resulted in the founding and initial meeting of the Association
of Parliamentary Counsel in Canada in 1982. It was held at the same time and
place as the Uniform Law Conference which was attended by a majority of those
interested. Since then meetings have been held at the same time as the 1983
Uniform Law Conference in Quebec and immediately prior to the conference in
Alberta in 1984. As most of those interested regularly attend the Uniform Law
Conference anyway the juxtaposition made it possible for most of our members to
attend without extra expense and has avoided the need to fund the Association
in any way up to this point in time, a great advantage in times of restraint.
The meetings have grown from an encouraging
start in 1982, with about 70% of the jurisdictions represented at a one-day
meeting to the two-day 1984 Conference in Edmonton where there were
representatives from every legislature and from both Houses of the Canadian
The agenda of the conference usually
includes one or two items of general interest which each take about half a day
of detailed discussion. Members then have an opportunity to discuss points of
parliamentary law which have arisen in their own jurisdictions. Some items are
a combination of law and procedure. Thus far, the topics discussed have
included: the duties of the law clerk and parliamentary counsel across Canada;
preparation of private bills, drafting and advice to petitioners; handling the
potential conflict of interest that may arise for those who fulfill both
legislative counsel and parliamentary counsel functions: acting as counsel to
committees, legal and constitutional issues affecting legislatures as legal entities
and their position as contracting parties; money bills and problems arising
between third reading and Royal Assent.
These subjects have nearly all been of
immediate practical interest and value to many of our members. The advantage of
being able to discuss them in a college of colleagues is very significant.
Since creation of the Association. members have found they have increasing
telephone contact with each other on a day-to-day basis. In parliaments many
problems have to be solved in a very short time which is an unfamiliar and
stressful dimension for most lawyers, who are trained to proceed with great
care and caution and, by corollary, not much speed. It is a tremendous
advantage to be able to consult informally with colleagues across the country
at a moment's notice, when formal opinion has to be prepared in a matter of
hours or even minutes.
To ensure its continuing usefulness and
productivity the Association wishes to remain as flexible as possible. It has
an open membership with no written constitution. Annual meetings are directed
to well-planned and spirited discussions on relevant topics of practical
interest. The present officers of the Association are Mark Audcent, Assistant
Law Clerk and Parliamentary Counsel to the Senate, as President, Merrilee
Rasmussen, Legislative Counsel for Saskatchewan, as Secretary. The Past
Presidents are Michael Beaupré, Assistant Law Clerk and Parliamentary Counsel
to the House of Commons and an author.