The International Cooperation Group

Publications

NATIONAL SURVEY OF LEGISLATIVE DRAFTING SERVICES

2002

DRAFTING PROCESS

11 / 12   DRAFTING OF STATUTES AND REGULATIONS

Do the same drafters draft statutes and regulations?
If so, does the same drafter who drafted the bill draft the regulations?

In most provinces and territories, drafters are responsible for both bills and regulations. But practice varies. In the Northwest Territories, the proportion of the workload for the two tasks varies between drafters. In Quebec, drafters usually draft either bills or regulations. The Nova Scotia office is not involved in the making of regulations. In cases where drafters draft both Acts and regulations, the individual who drafts a bill is usually responsible as well for the corresponding regulations. However, this arrangement is not always followed in Newfoundland and Labrador, Nunavut, the Yukon and British Columbia.

In Ottawa, drafters in the Headquarters Legislation Section generally draft bills while drafters in the Headquarters and Transport, Health and Environment Drafting Services Sections draft regulations ; drafters in the Finance Tax Drafting Services Section are responsible for both. Generally, two teams (one from each specialty) are involved when both an Act and regulations are required. A great variety of exchanges, secondments and other arrangements have been instituted within the Branch and with other sectors of the Department of Justice in order to accommodate specific needs.

13   ASSIGNMENT OF FILES

How are files assigned?
(On the basis of workload? Portfolios? Special subject-matter expertise or de facto specialisation? Do clients request particular drafters? Conversely, do drafters have any choice in file assignment?)

In most provinces and territories, files are assigned on the basis of a combination of the following factors : workloads, portfolios, special subject-matter expertise or de facto specialisation, requests from the instructing department and drafter preference.

In Nova Scotia, Quebec, Alberta and the Northwest Territories, all these factors are considered. In Saskatchewan, drafters are assigned particular departments and agencies. In Manitoba and New Brunswick, file assignment is also based on portfolios but adjustments are made to take workload into account. In the Yukon, files are assigned primarily on the basis of workload, although the availability of special expertise and requests from instructing departments may also play a part. As files are normally assigned at a meeting of all drafters, an individual drafter may also have input into file assignment. In Ontario, a combination of portfolios, workload and subject-matter expertise influences decisions on who will work on a particular file. Though efforts are made to match portfolios to preferences, the shortage of drafters means that there is often little choice in assignment, particularly during busier periods.

In the Headquarters Legislation Section of the federal Department of Justice, drafters individually or in pairs can indicate their preference in response to email notices of bill assignments that are periodically sent to them by their manager, who will then select drafters based on their preference, workload, expertise (in some cases) and requests from instructing departments for particular drafters. The Regulations files are assigned based on the criteria of workload, portfolios, interest and expertise. At the House of Commons, all of the factors play a role in file assignment, which is done by the General Legislative Counsel.

14   SENIORITY OR GREATER EXPERIENCE

Are certain files — for example, urgent files, those with complex subject matter, politically sensitive files — assigned on the basis of seniority?

In New Brunswick and Alberta, and at the House of Commons, seniority is not a factor in file assignment. In Ontario, seniority is seldom a factor as most drafters have at least six years' experience ; however, files that are particularly politically sensitive will be drafted in close consultation with the Chief Legislative Counsel.

In Saskatchewan, Nova Scotia, British Columbia, Newfoundland and Labrador, Nunavut and the Northwest Territories, certain files may be assigned on the basis of seniority. In Quebec, seniority as such is not formally a factor, although senior drafters are often in a better position to handle more difficult files. In the Yukon, seniority is not really a factor as all drafters have sufficient expertise to complete complicated projects quickly ; however, politically sensitive matters have been assigned to particular drafters with whom the instructing department is familiar.

In the federal Legislative Services Branch, seniority may have an indirect effect on file assignment ; thus, an especially urgent or sensitive file is unlikely to be assigned to two junior drafters.

15   SPECIAL FILES

Are there any special files, for example, those dealing with miscellaneous amendments?

Several provinces have programs in place to correct errors and anomalies in their statutes : British Columbia has a statute correction file that is maintained by the editors ; Alberta has a Miscellaneous Statutes Amendment Act ; Newfoundland and Labrador has the Attorney-General's Statutes Amendment Act ; Saskatchewan has Statute Law Amendment Acts and Miscellaneous Statutes Repeal Acts ; the Yukon has a Miscellaneous Statute Amendment Act and the Northwest Territories has an active Miscellaneous Statutes Amendment program. In Nunavut, a file is kept for miscellaneous amendments, but the territory is too recent a creation to have required a miscellaneous bill.

Counsels in the Headquarters Legislation Section of the federal Department of Justice draft a Miscellaneous Statute Law Amendment Act sponsored by the Minister of Justice on an ad hoc basis every few years. Due to the non-controversial nature of the amendments, there is a special parliamentary procedure for these bills. The drafters review proposals submitted by various departments for eligibility, draft the Memorandum to Cabinet and draft the amendments as proposals that are tabled for pre-study by committees of the Senate and House of Commons (the drafters also attend these meetings as witnesses for the Minister of Justice). When the changes requested are simple and non controversial, paralegals prepare the changes and communicate with the department responsible. The package is then reprinted as a bill and is read three times in each House without debate. Almost all drafters in the Section have been involved in drafting the amendments to be contained in the Miscellaneous Statute Law Amendment Act that is currently in progress, but a team of one anglophone and one francophone drafter is responsible for coordination of the file.

16 / 17   HIGH-VOLUME DEPARTMENTS

Are special arrangements made for high-volume clients or clients with particular needs? For example, the dedication of certain drafters from the office to a particular client department, the physical location of drafters from the office on client department premises, the engagement of outside consultants by a client department to draft instructions in the form of a bill.

Do high-volume client departments make financial contributions to this office to compensate for their greater demand on drafting resources?

Most provinces, except Newfoundland and Labrador and Nova Scotia, make some sort of arrangements for high-volume departments, although few of these arrangements are formalised.

In Manitoba, high-volume departments may pay to retain outside counsel, who may assist drafters in the Legislative Counsel Office.

In Quebec, special arrangements are limited to exceptional cases. Instructing departments are not normally asked to contribute financially to drafting services, but certain government agencies other than departments may be asked to do so under certain circumstances.

In British Columbia, outside counsel has been retained on an ad hoc basis to assist with drafting during peak periods.

In New Brunswick, drafting work has been contracted out on occasion. In these cases, the instructing department will usually make a financial contribution to the cost of these services.

In the Northwest Territories, outside consultants have occasionally been hired as drafters (and paid for by the instructing department), but drafters in the Legislative Counsel Office have never been dedicated exclusively to particular departments.

In Alberta, a department has occasionally hired someone to draft instructions ; however, they work closely with the drafters. Although an uncommon occurrence, in some situations drafters have worked exclusively on one bill until its completion.

Drafters in Ontario may be dedicated to projects in the capacity of consultants in advance of Cabinet drafting approval ; no additional compensation would be sought from the department in a case where drafting precedes Cabinet approval. In Ontario, departments pay an hourly rate for drafting and for translation services provided by the Legislative Counsel Office.

The Saskatchewan office tries to accommodate important and high-priority tasks by assigning a drafter exclusively to a project until its completion. Drafters rarely work outside the office, since there they have access to internal files, library resources and other materials. The high-volume client department makes no financial compensation for the special service.

The Yukon office has, in exceptional cases, assigned a drafter to a department for extended periods of time in order to complete a particularly complex piece of legislation. Such assignments, however, have not been exclusive and have never required the drafter to move to the department's premises. The office has also assisted a department in finding a private-practice lawyer capable of drafting a particular bill. Departments have occasionally themselves engaged and paid for contract drafters, but no department has made a financial contribution to the Parliamentary and Legislative Counsel Office.

There are no special arrangements for high-volume departments in Nunavut.

At the federal level, lawyers may be engaged on a contractual basis by the Senate or House of Commons, as needed, to deal with high-volume files or clients' special needs.

In the Drafting Services Group of the federal Department of Justice, several sections are stationed on the premises of four typically large-volume departments. These departments reimburse the Group for the costs of the salaries of the various Legislative Services Branch personnel who work there — drafters, linguistic revisers, secretaries and editors. There are also ongoing memoranda of understanding that require drafters stationed at the Legislative Services Branch to dedicate a specified amount of their time to a particular department. Lawyers from Departmental Legal Services Units with experience in drafting regulations — usually former members of the Drafting Services Group — may also, at times, be partnered with a drafter in the Group.

In the Headquarters Legislation Section, drafters are rarely dedicated exclusively to a particular department on an ongoing basis, although they have been dedicated exclusively to a particular bill for the duration of the project. Departments may be asked to make monetary contributions to the Branch in order to compensate for their greater use of drafting resources. In these cases, drafters will still be permanently stationed on Legislative Services Branch premises but may tend to work off-site, attending meetings or policy consultations more often than would otherwise be the case. Memoranda of understanding may also be entered into under which a department will pay a percentage of drafters' salaries to cover the costs of "speculative drafting" up to the point Cabinet approval is obtained for the project.

18   INSTRUCTING OFFICERS

Who are the instructing officers :
• departmental lawyers?
• policy staff?
• senior departmental officials?

In British Columbia, Saskatchewan, Alberta and the Yukon, instructing officers may be departmental lawyers, policy staff or senior departmental officials, while in Alberta the majority are policy staff.

In Manitoba, New Brunswick and Newfoundland and Labrador, instructing officers are either policy staff or senior departmental officials.

In the province of Quebec, instructing officers are generally departmental lawyers. In some cases, they could be policy staff or senior departmental officials.

In the Northwest Territories, instructing officers are generally senior departmental officials. However, occasionally, policy staff with legal training will instruct.

In Ontario, instructing officers are always departmental lawyers, but policy staff and senior officials regularly attend meetings and may play a significant role in the giving of instructions.

In Nova Scotia, instructing officers are departmental lawyers or, in the case of opposition public bills, caucus staff.

In Nunavut, where the drafting service is still new and there as yet are no set rules, instructions are currently given by policy staff.

At the federal level, instructing officers for bills and regulations may be senior departmental officials, policy staff or departmental lawyers (although, in the case of regulations, they will most often be departmental lawyers). The nature of the file will often dictate what sort of expertise is required : for example, policy staff will most often be involved if the bill is technical ; lawyers, if there are many human rights issues ; and senior departmental officials, if the bill contains high-profile issues or issues of national interest such as world trade. In practice, several instructing officers with a variety of expertise usually participate in the drafting of any given bill. Because co-drafting is practised, there will generally be at least two instructing officers, one who will instruct on the English version of the text and the other on the French version. Increasingly, bills are being co-sponsored by more than one department. In such cases, a representative from each department will be part of the drafting team. In addition, while there may be a primary instructing officer who will act as coordinator, various subject-matter experts may instruct on different aspects or portions of the text. In the case of regulations, there will often be only one instructing officer, who will provide instructions in one language only.

At the Senate and House of Commons, instructing officers are the Senators or Members of the House of Commons, or their respective legislative assistants, who wish to sponsor private members' bills or present amendments to government legislation.

19 / 20   INVOLVEMENT OF OUTSIDE CONSULTANTS IN THE DRAFTING PROCESS

Are outside consultants — such as lawyers from private firms with subject-matter expertise hired by the client department, Bar Association committee representatives, user-groups (lobbyists, native associations) — involved in the drafting process?

If so, are these outside consultants involved solely with the client department, or do they attend drafting meetings and communicate directly with the drafters?

Outside consultants are generally not directly involved in the drafting process, although sponsoring departments may themselves hire lawyers from private firms to review draft legislation, as is the case, for example, in Manitoba. There are exceptions : in Saskatchewan, all bills are reviewed by representatives of the Bar Association on a confidential basis ; in addition, First Nations groups and municipalities are now being consulted by the sponsoring departments or agency with respect to bills that may impact on them. In British Columbia, the Legislative Counsel office has an arrangement with representatives of various Bar Association committees to review individual pieces of legislation on a case-by-case basis with the consent of the department sponsoring the bill.

In Manitoba, Nunavut, British Columbia and Newfoundland and Labrador, and also occasionally in Alberta, where outside consultants are involved, they may attend drafting meetings and communicate directly with drafters. This procedure will rarely be the case in other provinces where consultants usually work only with the instructing department. In Quebec, although outside consultants are rarely hired, there is great flexibility in the arrangements made to ensure their contribution to the drafting process. In the Yukon, outside consultants — in particular, user-groups and lobbyists, First Nations and Canadian Bar Association representatives — are sometimes involved in the development of draft legislation, but they do not normally attend meetings where the drafter is present nor communicate directly with the drafter.

At the federal level, consultants are hired by sponsoring departments and participate in the drafting of bills and regulations to the extent desired by the departmental representatives. This participation does not usually happen in the presence of the drafters, although consultants do sometimes attend drafting meetings with the instructing officers. Consultants, who are usually lawyers from private practice, will review drafts and offer comments and suggestions that are filtered through the instructing officers for consistency with departmental policy and then passed on to the drafters.

21   DRAFTING INSTRUCTIONS

How are drafting instructions received?
• in the form of Memoranda to Cabinet?
• Notice of Ways and Means motions?
• request from Parliament, Premier, House Leader?

Authority to draft legislation can take many forms. There is no formal procedure in Quebec and Nunavut. In the Yukon, government bills are authorised by Memoranda to Cabinet, while private members' bills are requested by the member. In Saskatchewan, instructions for government bills come from the Legislative Instruments Committee of Cabinet. In Newfoundland and Labrador and in New Brunswick, drafting instructions are received in the form of a Memorandum to Cabinet which, in the case of New Brunswick, is supplemented by additional material from the instructing department. Similarly, in the Northwest Territories, legislative proposals for bills are approved by Cabinet with the sponsoring department providing detailed instructions. In Ontario, drafting may be authorised by Cabinet minutes or by a memo or phone call from the instructing ministry or a Member of Parliament. In Nova Scotia, the drafting process is initiated by the sponsoring department or the Cabinet Committee on Legislation. In Manitoba, legislative proposals are submitted to Cabinet (Legislative Review Committee), and the drafting instructions come directly to legislative counsel. Both Alberta and British Columbia require the submission to Cabinet of a legislative proposal form accompanied by documentation that sets out all of the policy issues that require resolution.

In Ottawa, authority to draft government bills is ordinarily granted by way of a cabinet document, the Record of Decision, with the drafting instructions contained in the annex to the Memorandum to Cabinet. These instructions are supplemented with detailed instructions provided by officials in the sponsoring department. Tax legislation may be based on detailed Notice of Ways and Means motions. In some cases of personal interest to the Prime Minister or where urgency is a factor, drafting may be authorised by Prime Ministerial letter to the sponsoring Minister. Private members' bills are initiated at the written request of a Member of Parliament or their legislative assistant. The process for initiating the regulation-making process is very informal. If there is a perceived need in a department for a regulation, a request will be made in writing (by either the Departmental Legal Services Unit or the Department directly) to the manager of the Headquarters Regulations Section or of the Finance, Transport, Health or Environment Drafting Services Sections, the portfolio coordinator or one of the drafters.