The International Cooperation Group

Publications

NATIONAL SURVEY OF LEGISLATIVE DRAFTING SERVICES

2002

ORGANISATION

1   REPORTING RELATIONSHIP

Is the legislative drafting office attached :
• to the Department of Justice?
• to the provincial legislature?
• to both?

The majority of the drafting offices surveyed are attached to the Department of Justice or the Ministry of the Attorney General, as the case may be. The Manitoba drafting office is attached to both the Department of Justice and the provincial legislature, and drafters consequently draft both government and private members' bills. The same relationship applies in Ontario, Prince Edward Island and the Yukon, where the office is considered to be a government drafting office that, concurrently, has an independent function as the law clerk of the provincial or, in the case of the Yukon, territorial legislative assembly. In Nova Scotia, the office is similarly responsible for the drafting of both government and private members' bills, but it is attached to the provincial legislature.

In the province of Quebec, the Department of Justice restructured its drafting unit into two services in 2000. The Ministerial Research and Legislation Directorate (Direction de la recherche et de la législation ministérielle) performs research and drafts bills and regulations for which the Minister of Justice is responsible. The Government Legislation Directorate (Direction de la législation gouvernementale), which also reports to the Department of Justice, does not provide drafting services but reviews bills and regulations prepared by all branches of the government with the exception of the Department of Justice.

At the federal level, there are three drafting offices : the Legislative Services Branch of the Department of Justice — which includes the Drafting Services Group, the Bijuralism and Drafting Support Services Group, the Advisory and Development Services Group, and the Publishing Services Group — ; the Office of the Law Clerk and Parliamentary Counsel of the Senate ; and the Legislative Counsel Office (within the Office of the Law Clerk and Parliamentary Counsel) of the House of Commons.

2   TYPES OF INSTRUMENTS

Is the legislative drafting office responsible for :
• government bills? All? Or with some exceptions?
• private members' bills?
• draft bills to be tabled for consultation only?
• regulations?
• other legislative instruments?

GOVERNMENT BILLS

All provincial and territorial offices surveyed are responsible for the drafting of government bills with the exception of Quebec, where the Direction de la législation gouvernementale is responsible for the review of draft bills and regulations prepared by the different components of the administration. In the Yukon, the drafting office also arranges for the drafting of some bills by private drafters. Due to procedural reforms instituted in the House of Commons in 1994, in Ottawa, bills that have been introduced in the House of Commons may be referred to a parliamentary committee (usually a standing committee) for detailed examination after first reading. As a result, while the initial version of a bill is prepared by drafters in the Headquarters Legislation Section or the Finance Tax Drafting Services Section of the Department of Justice's Legislative Services Branch, subsequent versions are drafted by the Office of the Law Clerk and Parliamentary Counsel of the Senate or by the Legislative Counsel Office of the House of Commons.

PRIVATE MEMBERS' BILLS

Some of the provincial and territorial respondents draft private members' bills or provide drafting assistance. Such is the case in Manitoba, the Northwest Territories, Nova Scotia, Nunavut, Ontario, Prince Edward Island and the Yukon. In Quebec, private members' bills are reviewed by the legislation service. In the Northwest Territories, the legislative drafting office generally does the actual drafting, but the law clerk to the Legislative Assembly ensures liaison with the private member. Alberta does not draft private members' bills, but it sometimes prepares amendments to them. In the other provinces and territories, private members' bills are drafted by Parliamentary Counsel under the authority of the Law Clerk of the legislative assembly.

In Ottawa, private members' bills to be introduced in the Senate and motions to amend such bills are drafted by the Office of the Law Clerk and Parliamentary Counsel of the Senate, while private members' bills to be introduced in the House of Commons and motions to amend such bills are drafted in the Legislative Counsel Office of the House of Commons.

DRAFT BILLS TABLED FOR CONSULTATION ONLY

The drafting offices of Ontario, British Columbia, Nova Scotia, Manitoba, the Northwest Territories, Nunavut, New Brunswick and the Yukon are involved in the drafting of bills to be tabled for consultation only. In Alberta, the tabling for consultation only is usually followed when it becomes apparent that a policy needs further consultation and refinement. In Manitoba, the tabling for consultation occurs only when time permits. The Yukon generally does not draft bills to be tabled for consultation purposes. In Ottawa, the preparation of a draft bill to be tabled for consultation usually occurs towards the end of the drafting process, when it becomes clear that the policy needs further consultation and refinement. Thus, the tabling of the legislation in draft format becomes an additional, intermediate step in the drafting process. In the special case of tax legislation, the Department of Finance usually releases draft legislation accompanied by explanatory notes for purposes of consultation and comments before its introduction into the House of Commons.

REGULATIONS

All provincial and territorial respondents except Nova Scotia and Quebec indicated that they are generally responsible for the drafting of regulations. In Ottawa, the Headquarters Regulations Section and the Finance, Transportation, Health and Environment Drafting Services Sections of the Legislative Services Branch of the Department of Justice are responsible for this function. The legal advisory role for the interpretation and legal framework of enabling statutes is the responsibility of the Advisory and Development Services Group of the Legislative Services Branch.

OTHER LEGISLATIVE INSTRUMENTS

Nova Scotia, Ontario, Manitoba, British Columbia, Alberta, Newfoundland and Labrador, the Yukon and the Northwest Territories draft other legislative instruments in addition to bills and regulations. Manitoba, Alberta and British Columbia draft Orders in Council, and Ontario's mandate includes anything that is a regulation within the meaning of the Ontario Regulations Act. Nova Scotia drafts a variety of instruments : reports and recommendations for the proclamation of statutes, the message of the Lieutenant Governor with respect to the budget, the Rules and Forms of Procedure of the House of Assembly, regulations of the Legislative Internal Economy Board and regulations pursuant to the Members and Public Employees Disclosure Act. The Newfoundland and Labrador office prepared some resolutions to amend the Constitution. In Nunavut, the drafting office prepares statutory appointments. In Ottawa, the Headquarter Regulations Section and the Finance, Transportation, Health and Environment Drafting Services Sections of the Drafting Services Group are responsible for the preparation of statutory instruments and documents that are required to be published in the Canada Gazette by an Act of Parliament, those that are required to be published pursuant to the Statutory Instruments Regulations and those that the Clerk of the Privy Council directs or authorises to be published because, in the Clerk's opinion, it is in the public interest to do so.

3   RELATIONSHIP TO PARLIAMENT

Relationship between the legislative drafting office and Parliament :
• how are legislative priorities set?
• are representatives from the legislative drafting office consulted? Routinely? On an emergency basis? When priorities need to be shifted?

SETTING OF LEGISLATIVE PRIORITIES

In most provinces, legislative priorities are set by Cabinet. In the Northwest Territories, priorities for bills are established by Cabinet on the advice of the Department of the Executive, in consultation with several Standing Committees of Ordinary Members. In Nova Scotia, priorities on government legislation are set by the Cabinet Committee on Legislation. A ministerial committee is responsible for setting legislative priorities in Quebec. In Saskatchewan, priorities are set by Cabinet and the House Leader's Office. In the Yukon, legislative priorities are normally set by the Executive Council Office of Cabinet. In Nunavut, legislative priorities are set by Cabinet acting on advice from the Cabinet Committee on Legislation.

CONSULTATION

Most respondents indicated that drafters were consulted routinely. In Ontario, the drafting office is regularly consulted by both the Cabinet and the Government House Leader. In Nova Scotia, the Chief Legislative Counsel attends all meetings of the Cabinet Committee on Legislation and is thus able to provide input on the setting of legislative priorities and to advise the Committee on the progress of all drafting. Saskatchewan mentioned that there is close and regular communication between Cabinet, the Legislative Counsel Office and the House Leader's Office respecting priorities in the introduction of bills. The Legislative Counsel Office sits as an advisor to the province's Legislative Instruments Committee — a subcommittee of cabinet that reviews all bills and regulations and recommends priorities to the full Cabinet ; the House Leader also has a representative at the committee. In Quebec, the legislative services are not consulted. In Ottawa, Parliamentary Affairs staff of the Privy Council Office maintains liaison between Cabinet and both the sponsoring department and the Drafting Services Group of the Department of Justice with respect to the scheduling of government bills. In preparation for weekly meetings with Parliamentary Affairs staff to review the proposed legislative agenda, the Deputy Chief Legislative Counsel routinely consults with drafters in the Group to assess drafting progress and determine whether the drafters consider the proposed tabling dates to be realistic. Parliamentary Affairs staff themselves consult the drafters directly on an ad hoc basis, most often when there may be a difficulty in meeting a tabling date because of outstanding policy issues or drafting problems.