Startling news, to say the least, in the Globe’s Business section today. Telus and Bell paid two lawyers at McCarthy Tétrault to draft a model telecommunications bill that’s been offered to the government as a template for a new Telecommunications Act. You could be forgiven for wondering if the next amendments to the Canada Health Act will be brought to you by RJR Nabisco.
But I think there’s more to it than that. As the article points out, the drafting lawyers are enormously respected and the companies have reportedly had no input whatsoever into the content of the model bill. I can see why they’d keep their distance: Bell and Telus would suffer enormous PR hits if they were perceived to be manipulating the legislative process, and no government (especially a minority one) would even consider passing such a tainted law.
So if they don’t get to help write the model law, why would the corporations bankroll it? I would imagine that from their point of view, any updated version of the Act would be an improvement on what’s now in place. But it also has the effect of sending the government a public message about making telecommunications law reform a higher political priority than it now appears to be.
CRTC Chairman Konrad Von Finckenstein could have shot down the proposal had he wanted, but instead he praised the model law as a “welcome first step,” while still criticizing a number of its facets. It’s clear that the model law will not be adopted as is, but it does appear to be a good start. The broader issue, of course, is whether the private sector should have any role in the legislative drafting process.
At first blush, there’s no reason government legal work can’t be outsourced — Ottawa has paid law firms millions of dollars to litigate matters like the softwood lumber case and aboriginal disputes. Drafting laws is obviously a different matter, but NGOs already play a part there. The Canadian Bar Association has been making submissions to government for years on how bills could be improved before final reading and passage, and the CBA’s work is widely recognized to be both impartial and excellent.
It would be naïve to assume that future iterations of the Bell/Telus approach would necessarily be conducted with the kind of independence that has evidently marked this effort. It’s trite to say that corporations act in the interests of their shareholders, not the public. But the public life of the country has become immensely complex, and there are hundreds of pressing issues vying for the government’s attention. There’s an argument to be made that “4-P” arrangements — private-public policy partnerships — if transparently conducted and independently reviewed, could be a legitimate evolutionary step in the policymaking process. There are also very compelling arguments against. Hopefully, this news gets that debate rolling.
It doesn't matter whether the corporations had input. Anyone being paid by someone to do something is more likely than not to do it in a manner pleasing to the person paying. This may only be subconscious on the part of the drafters but it's still fatal when neutrality is as important as it is with legislation. Suppose you know a judge hearing your case is taking money from the other side. Does it really matter whether they all swear up and down that they won't seek to influence her?
Jordan – don't be shocked, but I think if you asked Bill Stanbury about the real process of drafting competition policy laws over a quarter of a century, you would find that much of the detail happened in the boardrooms of major law firms.
We have been here before.
And however bad it is, it's nothing like the lobbyists drafting at midnight in Washington.