Guide to Making Federal Acts and Regulations

Part 2 - Making Acts

Chapter 2.1
Getting Started

This chapter provides background information to help get started on the law-making process for Acts. It begins by considering what Acts are, including the different kinds of Acts, and who is involved in making them.

The focus then shifts to legislative planning and management, which is addressed in section 2 of the Cabinet Directive on Law-making, and the preparation of the Government’s legislative program, which is addressed in section 3 of the Directive. It deals with these topics from two perspectives. The first is the Government-wide process that is administered by the Privy Council Office and hinges on the legislative call letter that it sends to the departments. The second is the perspective from within departments that are developing legislative proposals. The objective of this material is to help departments to participate effectively in the Government-wide process and to manage their legislative activities internally.

In this chapter

• What are Acts and Who is involved in Making Them?
• Preparation of the Government’s Legislative Program
• Departmental Planning and Management
• Strategic Considerations for Legislative Planning and Management
• Project Planning Templates
• Schematic Map of the Federal Law-making Process and Associated Support Activities (Acts)

Audience

• Managers who are responsible for coordinating law-making projects.
• Officials responsible for advising the Privy Council Office about law-making projects in their departments.

• The legislative call letter is a key planning tool for the Government that requires timely and accurate information about law-making projects.
• Law-making is a complex management exercise that requires careful planning. Approach law-making as a project and follow good project management practices.

What are Acts and Who is Involved in Making Them?

An Act is the most formal expression of the will of the State. It is a form of written law that is made by Parliament through a process often referred to as enactment. Parliament consists of three parts: the Crown, the Senate and the House of Commons. Acts originate as bills, which are introduced in either the Senate or the House of Commons. Each of Parliament's three parts must approve a bill before it becomes law. In this Guide, the parliamentary approval process is referred to as enactment.

The purposes of an Act may either be of a general, public nature (public Acts) or private, conferring powers or special rights or exemptions on particular individuals or groups (private Acts). Almost all Government bills result in the enactment of public Acts.

Bills are classified either as Government bills, which are submitted to Parliament by members of the Cabinet, or private members’ bills, which are submitted by members of the Senate or the House of Commons who are not in the Cabinet.

The Guide deals exclusively with the enactment of Government bills resulting in public Acts.

A bill may provide for the enactment of a new Act or it may amend (change) one or more existing Acts. If a bill to enact a new Act or amend an existing Act makes it necessary to amend other Acts, the bill will contain "consequential" or "related" amendments to those Acts.

The Miscellaneous Statute Law Amendment Program is a periodic legislative exercise to correct anomalies, inconsistencies, outdated terminology or errors that have crept into the statutes. It allows minor amendments of a non-controversial nature to be made to a number of federal statutes without having to wait for particular statutes to be opened up for amendments of a more substantial nature. Miscellaneous Statute Law Amendment Acts are subject to an accelerated enactment process involving committee study of legislative proposals before they are introduced as a bill.

The Program was established in 1975 and is administered by the Legislation Section of the Department of Justice.

Anyone may suggest amendments, but most come from Government departments or agencies. To qualify for inclusion in the proposals, an amendment must not

• be controversial;
• involve the spending of public funds;
• prejudicially affect the rights of persons; or
• create a new offence or subject a new class of persons to an existing offence.

The Legislation Section is responsible for requesting and reviewing proposals. It then prepares them in the form of a document entitled

Proposals to correct certain anomalies, inconsistencies and errors in the Statutes of Canada, to deal with other matters of a non-controversial and uncomplicated nature in those Statutes and to repeal certain provisions of those Statutes that have expired, lapsed or otherwise ceased to have effect.

The proposals are tabled in the House of Commons by the Minister of Justice, and are then referred to the Standing Committee on Justice and Human Rights. The proposals are also tabled in the Senate and referred to its Standing Committee on Legal and Constitutional Affairs.

Consideration of the proposals by the Standing Committees has always been thorough and non-partisan. Since these committees are masters of their own procedure, they can always accept or reject requests to withdraw proposals or to add new ones. The latter must, of course, meet the criteria mentioned above. Perhaps the most important feature of the entire program is the fact that if, at either of the committees, a proposal is considered to be controversial, it is dropped.

The Legislation Section then prepares a Miscellaneous Statute Law Amendment Bill based on the reports of the two committees and containing only proposals approved by both of them. The bill is then subject to the ordinary enactment procedures. An example of one of these Acts is the Miscellaneous Statute Law Amendment Act, 1999, SC 1999, c. 31, which can be found at: http://www.parl.gc.ca/36/1/parlbus/chambus/house/bills/government/C-84/C-84_4/C-84_cover-E.html.

Although the passage of an Act involves decisions of the Government and enactment by Parliament, the policy underlying an Act does not necessarily originate within the Government. There are basically five sources of legislative policy:

• the general public;
• Cabinet ministers;
• the Public Service of Canada;
• Parliamentarians (senators and members of the House of Commons);
• Courts and administrative agencies.

The Speech from the Throne is one of the primary means for the Government to announce its legislative program. It is delivered at the beginning of each session of Parliament by the Queen or, most often, by her representative, the Governor General. The legislative program announced in the Speech from the Throne is often taken from the electoral platform of the governing party, particularly when a new Parliament is formed. However, during the course of the Government's mandate, the legislative program will be taken from the priorities established and approved by the Cabinet. The budget speech each year is another important source of legislative policy.

Acts frequently represent the outcome of important political initiatives or decisions of the Government. They may also result from recommendations in a report of a working group or royal commission of inquiry. Finally, Acts may be intended to implement treaties, conventions or accords; to provide for administrative action, such as licensing; or to deal with particular problems or emergency situations.

Events may affect the Government's legislative program. You should be aware that the Government also publicizes its ideas in the form of position papers and press releases.

Exactly who is involved in making a particular Act depends on a variety of factors, including the type of Act and who sponsors it.

The following are the main participants in the preparation of Government bills:

• the Cabinet;
• the Minister who introduces the bill (the "sponsoring minister");
• officials in the sponsoring Minister’s department, including officials responsible for

• policies and programs,
• communications,
• cabinet affairs,
• parliamentary relations;

• departmental legal advisers;
• the Privy Council Office;
• the Legislative Services Branch of the Department of Justice.

These participants are also involved in the parliamentary phase of the enactment process where the key participants are Senators, members of the House of Commons and parliamentary staff.

Preparation of the Government’s Legislative Program

The Leader of the Government in the House of Commons is responsible for the Government’s legislative program in the House of Commons. The Special Committee of Council (SCC) is a ministerial forum at the Cabinet committee level for discussing the Government’s overall legislative planning and for specific legislative issues requiring decisions by the Cabinet. The Leader of the Government in the House of Commons and Leader of the Government in the Senate are members of this Cabinet committee. The Legislation and House Planning/Counsel Secretariat of the Privy Council Office supports these ministerial and Cabinet committee responsibilities.

Following the Speech from the Throne at the opening of each Session of Parliament, the Assistant Secretary to the Cabinet (Legislation and House Planning/Counsel) writes to all Deputy Ministers and some agency heads asking them to submit a list of the legislation their Ministers plan to propose to Cabinet for introduction in the next session. The list is to be submitted within the time specified in this legislative "call letter", usually one month. The letter is subsequently sent twice a year, normally in June and November, in order to deal with changing priorities.

Each proposal should contain the following information where possible:

• a summary of its principal features;
• whether there is policy approval for the legislation from Cabinet and expenditure approval, where appropriate;
• an assessment of the proposal from a broader, horizontal perspective in terms of both the sponsoring minister’s portfolio and other government priorities and initiatives;
• whether it will constitute

• new legislation,
• a repeal of existing legislation,
• a major revision of existing legislation,
• an amendment to existing legislation that is simple in drafting terms but would be controversial or would effect a major change, or
• technical and administrative amendments ("housekeeping");

• if new legislation is proposed, why the legislation is necessary;
• its relationship, if any, to the Government’s priorities, as enunciated in various policy statements;
• federal-provincial relations implications;
• whether any new Governor in Council positions will be created and their terms and conditions of appointment;
• the scope of the regulatory component of the proposal, if any;
• the target date for passage, together with a tentative assessment of its priority, based on the following categories

• URGENT (measures subject to statutory time constraints or deadlines announced by the Government),
• ESSENTIAL,
• OTHER.

A Minister’s legislative list should refer to any existing statutes that require amendments in order to remain current.

The proposals are prioritized by the Leader of the Government in the House of Commons. The Special Committee of Council (SCC) reviews a tentative outline of the legislative program for the next sitting, together with the assignment of priorities for the various proposals.

Each week while Parliament is in session, the Leader provides regular updates on the status of the program to the SCC, which reviews the progress of bills through Parliament and the status of bills nearing readiness for introduction. The legislative program is adjusted to accommodate such circumstances as changing priorities or the parliamentary workload.

The Leader normally advises the SCC and the full Cabinet of the updated legislative program twice each year.

Departmental Planning and Management

Each department manages the legislative proposals in its areas of responsibility. It must:

• plan each stage of the law-making process, including such things as consultation and the development of any regulations that may be needed;
• ensure that it has allocated the resources necessary to carry its proposals through each stage;
• ensure that it has the capacity to formulate policy and instruct legislative drafters in both official languages; and
• plan and allocate resources for the implementation of new laws.

Departments must also plan their law-making activities as they relate to particular bills or regulations. These activities are to be managed as projects with tools for determining what resources are needed, what tasks must be performed and what time frames are appropriate.

Principles of project planning and management must be applied to the process for preparing and enacting bills. They bring a discipline that allows for better direction from senior management and more transparency in the process. They also provide a way to achieve the desired outcome in a timely manner. This part of the chapter briefly summarizes the main elements of project planning and management. You should also consult the Treasury Board Project Management Policy, which is available on the Treasury Board Secretariat website at http://www.tbs-sct.gc.ca/Pubs_pol/dcgpubs/TBM_122/CHAPT2-2_e.html.

The Government devotes significant resources to the development of legislation. There is a general consensus that the current practice used in most departments needs to be more efficient and effective. In recent years some federal organizations have experimented successfully by using independent teams—such as task forces and working groups—reporting directly to the executive level as a means of improving the process for developing legislation.

The process is very complex and time consuming. If managed like other operational activities, it competes with the dozens of other operational priorities and urgent matters on the executive agenda. When managed outside routine operations, a legislative project can take on a higher profile at the executive level.

The ways of understanding project management are probably as numerous as the authors who have written about it. However, this section focuses on three main elements: planning, scheduling and controlling the activities needed to reach the project objectives.

Planning allows those involved or interested in a project to have a common understanding of its objectives and what will be needed to achieve them. As will become clear, it is also a powerful tool for managing the project and its progress.

Establish a project plan

A project plan includes an outline of the scope and objectives of the project as well as a list of what has to be accomplished at each of its main stages.

The scope of a legislative project usually consists of implementing the government policies.

The definition of the objectives is more complex and provides a better understanding of the project. This is because the objectives must be clearly and precisely described and must mirror the needs that the project must meet. They must also be attainable and measurable; otherwise it will be impossible to determine whether they have been achieved.

A useful technique to help understand the policy context is to hold seminars in order to engage in open discussion of the concepts and intent of the proposed legislation. Such discussions enhance the understanding of the policy issues and support team building as well as professional development. They also help to clarify the broader policy dimensions related to government accountability, the long-term impact on society, human resource implications, inter-departmental relationships, future legislative revisions and federal-provincial relations.

Once the scope and objectives of a project have been established and are well understood by the participants, it becomes possible—indeed necessary—to divide the project into separate steps. In turn, each step should be broken into specific tasks to be accomplished. This breakdown continues until the tasks are indivisible (or the planning-time exceeds task performance-time). One way of distinguishing project objectives from the tasks needed to achieve them is to think of objectives as nouns and tasks as verbs. To allow the team members to understand the organization of tasks—and the milestones that will be discussed a little later—project managers often use charts or maps known as organigrams or work breakdown structures (WBS).

Like the project objectives, tasks must be clearly defined, attainable and measurable in order to allow the manager to control the project and achieve the desired results.

Other steps

Planning a project also involves the following steps:

• Establish a project team: One of the most important elements in the completion of a project is establishing a team capable of completing the project. The members of the team should be as unfettered as possible by ongoing operational responsibilities.
• Determine what financial resources are needed: Depending on the project manager’s other responsibilities, he or she may have to determine what other resources are needed to complete the project. These might, for example, include consultation costs, particularly travel expenses, as well as fees for outside consultants.
• Obtain senior management approval of the plan: The project manager must obtain the approval of senior management before going ahead. This approval extends to the plan itself as well as to any subsequent changes to it.
• Define any risks associated with the project: It is important to consult the team members as early as possible to determine what, if any, risks may be associated with the project. This is not a matter of being pessimistic, but instead involves finding solutions to problems that may arise. If something can be done about the problems, it should be reflected in establishing the plan. If a risk cannot be eliminated, its adverse effects can perhaps be minimized. Finally, it is not necessary to identify all possible risks, just the more likely ones.

Scheduling involves determining in what order and when the tasks are to be done as well as who will do them. It is determined within the overall time frame for the project, the skills required for it and basic logic. For each task (as defined in the work breakdown structure), a person responsible and deadlines (start-date, time required and finish-date) are established.

Deadlines

Project management requires a clear understanding of deadlines that must be met at each stage of the process. Final deadlines may be imposed externally, for example, through a government commitment or as a result of a pressing public policy concern. Other deadlines may be less urgent, but no less important, from a project management perspective.

The statement of key milestone dates for each point in the project management process is essential to monitor progress. Failure to achieve key milestone dates is a "wake-up call" that requires immediate attention in order to address any issues that could affect the quality or time frame of the project. A useful source of information in setting achievable target dates can often be found by examining milestone dates set for other legislative projects. Unrealistic target dates are not conducive to good project management.

Critical path

Scheduling also involves establishing a critical path and a system for tracking project milestones.

A critical path is a series of activities used to establish the minimum time frame within which the project can be completed. It is "critical" in the sense that delay in achieving any of the activities will delay completion of the project as a whole. The critical path is established by arranging the different tasks in a logical sequence. Usually, this is done through a critical path method diagram. It shows each step in the project and the particular tasks that they involve, together with beginning and end dates for each one with some margin of flexibility.

The milestones consist of as many markers as will allow the project manager and the rest of the team to evaluate their progress through each step and to draw the appropriate conclusions.

Human resources

It is up to the project manager to determine what skills and knowledge are essential to the success of the project. With this information, the manager can obtain the right people for the project.

The clarity of assigned tasks, team member acceptance of their tasks and ongoing consultation with team members and others involved in the project will develop a shared commitment to its completion. It is also important to clearly define reporting relationships and responsibilities among the team members.

Controlling

Controlling the project is the most demanding aspect of managing a project in terms of both the time and effort it requires. It is the basic reason for planning and scheduling the project. A good road map is needed to make sure that the project is going in the right direction.

Controlling the project involves gathering and analysing information about the progress of the project and taking steps to adjust its direction, as needed.

A way of monitoring the work assignments and time frames is required. This may be as simple as weekly meetings or regular progress reports.

New information often requires adjustments to the content of the project and the plan for completing it. Project management involves sharing information openly, cooperatively and when it is needed. It has to be shared not only with the team members, but also with senior managers and, through them, the Minister’s office, whose general overview of the project is essential for its success.

A process of continuous improvement should be built into the project. At the various milestones, as well as at the end of the process, team members should acknowledge successfully completing the milestones and be prepared to critically evaluate their performance. Managers should also assess their own performance, along with the team’s, in terms of meeting the basic project planning and implementation criteria. Such a review can reveal how to improve the process and to convey this information to other legislative project managers as a way of contributing generally to the public policy process.

Next   Table of Contents