The International Cooperation Group

Publications

NATIONAL SURVEY OF LEGISLATIVE DRAFTING SERVICES

2002

DRAFTING PROCESS

22   SPECULATIVE DRAFTING

Does the legislative drafting office engage in speculative drafting and, if so, is compensation received from the client department for such drafting?

Speculative drafting, that is, drafting without Cabinet authority, is not widely practised in the provincial and territorial offices and, where it is — in British Columbia, New Brunswick, Nova Scotia, Nunavut and Ontario, for example— compensation is not received from the sponsoring department, except in Ontario where an hourly rate is charged for all drafting services. In British Columbia, speculative drafting will be practised only if an agreement to that effect is reached between the Deputy Attorney General and the Deputy of the client ministry. Manitoba, Saskatchewan and Alberta rarely engage in speculative drafting ; the respondent from Alberta indicated that they will do so only where they are satisfied that there is a reasonable chance the bill will proceed. In Newfoundland and Labrador, departments might request such drafting of a bill if it does not involve sensitive policy issues, but the decision to proceed without Cabinet approval rests with the Senior Legislative Counsel. In the Yukon, it is highly unusual for the office to commence drafting a major project without some assurance from Cabinet that enactment is desired. Drafters in the Northwest Territories try to avoid speculative drafting, but it does occur. It is not practised in Quebec.

In the Headquarters Legislation Section of the federal Department of Justice, speculative drafting may occur with the approval of the Government House Leader. In such cases, a Memorandum of Understanding is entered into with the sponsoring department, which will reimburse a portion of the drafters' salaries for the speculative drafting period up to the point when Cabinet approval is obtained.

23   DEGREE OF DETAIL OF DRAFTING INSTRUCTIONS

How detailed are drafting instructions?
Do they comprise general broad policy ideas or an outline of the specific provisions that are required?

In most provinces, the degree of detail of the drafting instructions varies from bill to bill depending on the type of project, the time available and the level of legislative experience of the officials who prepared them. The respondent from Alberta indicated that instructions may range from a narrative to a draft bill. In New Brunswick, instructions are usually quite detailed. The format for instructions varies also in Nunavut, but it usually consists of broad policy ideas.

In Ottawa, instructions for government bills run the gamut from extremely detailed to very general. Detailed instructions may be provided, for example, for technical bills dealing with a large number of minor "housekeeping" amendments. In other cases, instructions may almost have to be deduced from general principles ; an example is where drafters are asked to give effect to a particular court decision or to make the necessary consequential amendments to other legislation in order to give effect to the enunciated policy. Instructions provided to House of Commons drafters generally consist of broad policy ideas.

24 / 25 / 26   POLICY ROLE OF LEGISLATIVE DRAFTERS

Do drafters play a role in "pre-instruction" policy development, that is, consultation in developing Memoranda to Cabinet or other formal instructions?

Do drafters have a "post-instruction" policy role, that is, helping to develop or fill gaps in legislative schemes ; identifying or advising on legal problems ; or recommending enforcement regimes?

Where there is more than one client department, what role do drafters play in the resolution of competing policy objectives?

With the exception of Quebec, which does not assist with policy development in the pre-instruction phase of legislative drafting, drafters in most provinces play a limited pre-instruction policy-making role. In the province of Saskatchewan, departments and agencies consult on occasion with legislative counsel before preparing instructions for cabinet requests in order to ensure the reasonableness of the legislative proposals, and in British Columbia the comments of legislative counsel are required on all submissions to Cabinet. In Nunavut and the Yukon, it is not unusual for drafters to become involved in developing Memoranda to Cabinet. Drafters in Alberta tend to become more involved at an earlier stage in the case of legislation that is to be sponsored by the Department of Justice. Drafters in Nova Scotia will become involved if the drafting instructions are not sufficiently precise.

Drafters in the Headquarters Legislation Section of the federal Department of Justice may become involved in policy development, on an ad hoc, case-by-case basis, as requested and subject to availability ; this usually occurs when the department is in the process of drafting the Memorandum to Cabinet. An informal request to a drafter for advice on provisions of a draft Memorandum to Cabinet may sometimes be made by a public servant in another department or by lawyers in other areas of Justice, such as specialists in the Human Rights Law Section of the Department of Justice, for example. In other cases, a Memorandum of Understanding may be entered into between the sponsoring department and the Drafting Services Group whereby drafters become involved in the drafting of the Memorandum to Cabinet or in policy discussions leading up to it.

Drafters in the Headquarters Regulations Section and in drafting sections located within certain client departments may become involved in the development of policy at any stage in the regulation-making process.

In general, drafters play a more significant post-instruction policy development role, often identifying policy gaps and arranging for consultation with relevant advisors (for example, experts in the areas of constitutional law, administrative law and criminal law policy).

In the case of competing policy objectives of co-sponsoring departments, virtually all respondents identified their role as that of an informal facilitator or mediator. Drafters often encourage and moderate discussion and may suggest a middle ground, but all indicated that it was not their responsibility to resolve the conflict. It was generally felt that most issues could and should be resolved between affected departments with Cabinet being the final arbitrator. In Manitoba, drafters may occasionally take a more active role by referring contentious matters to the appropriate Assistant Deputy Minister who contact the Deputy Minister or suggest ministerial involvement where necessary.

Drafters also play a facilitative role at the federal Department of Justice. Where matters cannot be resolved by meeting with representatives of the interested departments, drafters will often notify Legislation and House Planning staff of the Privy Council Office — either directly or through the Director, or if need be, the Deputy Chief Legislative Counsel — who will achieve reconciliation at the appropriate departmental or political level.

27   RESPONSIBILITY FOR QUALITY CONTROL

Who is responsible for ensuring quality control and the legal soundness of the legislative text?
(By quality control and legal soundness are meant compatibility with the legislative style and the precedents used in the jurisdiction or in other jurisdictions ; compatibility with the Charter of Rights and the constitutional division of powers ; rationality of criminal sanctions; administrative penalties ; compatibility of regulations with the enabling authority ; etc.)

Responsibility for quality control and for the legal soundness of the legislative text is borne by the drafters themselves in most places — New Brunswick, Nova Scotia, Manitoba, British Columbia, Newfoundland and Labrador, House of Commons, the Yukon and Alberta — or with the assistance of departmental lawyers (Ontario).

Drafters act under the supervision of, in the case of British Columbia, the Chief Legislative Counsel and, in Alberta, the Chief Legislative Counsel (for bills) and the Registrar of Regulations (for regulations).

In the province of Quebec, the Government Legislative Directorate of the Department of Justice and, ultimately, the Legislation Committee of the Department of Executive Council, are responsible for quality control.

In Saskatchewan, the responsibility is shared among many people as all drafts of bills and regulations are reviewed by a Legislative Review Committee and are regularly reviewed at earlier stages within the Department of Justice (by the Constitution Branch, Prosecutions Office and Civil Law, for example) until the Department is satisfied that all issues have been satisfactorily resolved.
The legislative counsel, in consultation with the Legal and Constitutional Division, is responsible for quality control in Nunavut.

At the federal Department of Justice, each of the two drafters ultimately has individual responsibility for the version of the bill or regulation in the language of their specialty. Texts are edited and submitted to jurilinguistic revisers for linguistic review of both language versions of bills and regulations, and for comparison of the two versions for consistency. Bills, but not regulations, are also reviewed by a senior drafter. In addition, bills and regulations are reviewed by specialists to ensure that bijuralism issues, if any, have been properly resolved.

28   COORDINATION OF DRAFTING ACTIVITIES WITHIN OFFICE

Who is responsible for coordinating drafting activities within the office?

The following individuals are responsible for coordinating drafting activities :

• Newfoundland and Labrador : the Senior Legislative Counsel
• Nova Scotia : the Chief Legislative Counsel
• New Brunswick : the Director, Legislative Counsel Office
• Quebec : the Directeur de la Direction de la législation gouvernementale du ministère de la Justice (Head of the Government Legislation Directorate of the Department of Justice) and, ultimately, the Comité de législation du Ministère du Conseil exécutif (Legislation Committee of the Department of Executive Council)
• Ontario : the Chief Legislative Counsel (bills) and the Registrar of Regulations (regulations)
• Manitoba : the Assistant Deputy Minister of Justice (in consultation with the drafters)
• Saskatchewan : the Chief Legislative Crown Counsel
• Alberta : the Chief, Legislative Counsel Office
• British Columbia : the Chief Legislative Counsel
• Yukon : the Chief Legislative Counsel (with the assistance of drafters, support staff and Director of Legal Services at weekly meetings)
• Northwest Territories : the Director of the Legislation Division, who serves on an interdepartmental committee that reviews legislative proposals and advises Cabinet
• Nunavut : the Director of the Legislation Division
• Federal Government :
  House of Commons : the General Legislative Counsel and the Counsel's assistant
  Senate : the Law Clerk and the Clerk's assistant
  Department of Justice : the Deputy Chief Legislative Counsel coordinates the drafting of government bills with the assistance of the directors of the Headquarters Legislation Section and the Finance Tax Drafting Services Section, who consult with drafters on an ongoing basis with respect to the progress of files. The Director of the Headquarters Legislation Section meets formally every second week (and, as needed, by telephone on an ad hoc basis) with members of the Legislation and House Planning Committee of the Privy Council who, in turn, ensures liaison with the Prime Minister, the House Leader, members of the various committees of Cabinet, sponsoring Ministers as well as senior officials in the sponsoring departments as required in order to implement the legislative agenda of the government.

The Deputy Chief Legislative Counsel also consults with directors of the Headquarters Regulations Section and the Finance, Transport, Health and Environment Drafting Services Sections, who then consult drafters on an ad hoc basis. The Chief Legislative Counsel and her deputy negotiate with departments responsible for making regulations with respect to drawing up resource agreements and with the Section directors responsible for projects, legislative questions, drafting questions and relations with other departments, as needed.