Guide to Making Federal Acts and Regulations
Overview
This section supplements section 4 of the Cabinet Directive on Law-making. It provides information on the various steps related to the drafting of policy proposals into the legislative form of a bill and the Cabinet’s approval of the bill for introduction in Parliament. It contains a description of the activities and products involved in this process.
In this chapter
Audience
Key messages
Preparation of bills
The bill preparation process begins with a Cabinet decision authorizing the drafting of a bill in accordance with written instructions approved by Cabinet.
The Legislation Section of the Department of Justice is responsible for drafting all Government bills. The Section is part of the Legislative Services Branch and consists of legislative drafters who work with other members of the Branch, uncluding jurilinguists, legislative revisors, editors and computer services staff. If also includes drafters who work exclusively on fiscal bills for the Department of Finance.
Bills are co-drafted by pairs of drafters in the Legislation Section working simultaneously on English and French versions of the bill. Neither version is subordinated to the other. Co-drafting also reflects bijuralism, with each drafter usually having been trained in either common or civil law. One drafter has primary responsibility for communicating with instructing officers and managing administrative tasks. The sponsoring department may also ask other government departments to review and advise on the draft bill.
The process of preparing bills also involves officials in the departments from which the policy for the bills originate as well as legal counsel from the Department of Justice who work in the departmental legal services units. (see "Who does what in the Preparation of Government Bills" in this chapter). These officials and legal counsel are generally referred to as instructing officers. Their role is to supplement the drafting instructions approved by Cabinet by providing more detailed instructions to the drafters. Usually, many drafts of a bill are prepared, reviewed and discussed before a final draft is achieved.
Draft bills have traditionally been treated as Cabinet confidences. However, the Cabinet Directive on Law-making allows ministers to seek the agreement of Cabinet to consult on draft bills.
Consideration should be given to whether the bill has financial implications that will require a royal recommendation (for spending measures) or a ways and means motion (for taxation measures). These questions significantly affect legislative planning, for example, whether bills can be introduced first in the Senate. They should be considered as early as possible in the drafting process so that the drafters may advise the Legislation and House Planning/Counsel Secretariat (L&HP/C) of PCO. The Department of Finance must also be contacted for advice on the need for a ways and means motion.
As the bill is being drafted, the sponsoring department prepares the necessary briefing materials that will be needed both at the next step when the Leader of the Government in the House of Commons reviews the bill as well as later during the legislative process. These include:
In the final stages of drafting, the bill is printed by St-Joseph Ottawa-Hull in preparation for the Cabinet approval process.
Cabinet approval of bills
Once a bill has been drafted in both official languages to the satisfaction of the sponsoring department, the sponsoring Minister, the Director of the Legislation Section and the Privy Council Office, it must be approved by Cabinet before being introduced in Parliament.
The Cabinet approval process has several stages:
Overview
In a letter to Balzac in 1840, Stendhal said that he used to read two or three pages of the French Civil Code each morning in order to help him maintain a natural writing style. Probably few people today read federal Acts for that purpose. Yet Acts have a style of their own, which drafters believe can be justified in terms of the functions that Acts and regulations have in contemporary society.
The principal resources of legislative drafters are the resources of natural languages such as English and French, supplemented as appropriate by the artificial language of mathematical formulas.
The use made by legislative drafters of natural languages is structured by legislative drafting conventions. A legislative drafting convention bears the same relationship to a rule of grammar of a natural language as a constitutional convention bears to a rule of constitutional law. Two important conclusions can be derived from this analogy.
First, legislative drafting conventions guide legislative drafters in their selection of the various grammatically possible ways of giving legal effect to policy, just as constitutional conventions control the various legally possible ways of exercising a power. Thus, as a matter of constitutional law, the Queen or her representative in Canada, the Governor General, is free to appoint as Prime Minister whomever they wish. This discretion is controlled, however, by the constitutional convention that the Prime Minister must be the leader of a political party that can command the confidence of a majority of the House of Commons. And, as a matter of grammar, drafters are free to draft in the singular or the plural. This freedom is limited, however, by a convention favouring the use of the singular. (See "Reducing Vagueness or Ambiguity" in this chapter)
Secondly, legislative drafting conventions do not go against the rules of grammar, even as constitutional conventions do not go against the rules of constitutional law. There is no such thing as a special language for Acts of Parliament. Past attempts to alter the rules of grammar for the purposes of legislative drafting (the proviso is one example) suggest that the problems created for drafters by the ambiguity or vagueness of natural languages can be solved only by using the resources of those languages.
One widely recognized set of drafting conventions are those of the Uniform Law Conference of Canada. They can be found on the Internet at www.law.ualberta.ca/alri/ulc/acts/edraft.htm.
Reducing vagueness or ambiguity
Perhaps the most important function of legislative drafting conventions is to reduce the ambiguity or vagueness of a natural language such as English or French.
An instance of such a convention is the practice of drafting in the singular rather than the plural. Commentators on drafting point out that multiple modifiers often result in ambiguity when the modified noun is plural, citing examples like:
Drafting in the singular compels drafters to determine whether the intended meaning is, for the first example,
and, for the second example,
(Note that "and" does not resolve the ambiguity in the plural.)
Some of the most important conventions for reducing ambiguity or vagueness relate to definitions and paragraphing.
Definitions
Some definitions in Acts of Parliament are just abbreviations. Common examples are definitions of "Minister," "Board" or "licence." Other definitions reduce ambiguity or vagueness by specifying which one of several usual meanings a word or expression is to have.
It is not the function of a definition in an Act of Parliament merely to reproduce the meaning of a word or expression in terms of the usage recorded in dictionaries, nor is the provision containing the definitions a sort of index or catalogue of frequently used words and expressions. Nor does the absence of a definition say anything about the importance of a word or expression in understanding the Act.
While a definition in an Act of Parliament compels the reader to read the defined word or expression in a particular way, there is a drafting convention prohibiting artificial or unnatural definitions, such as defining "apple" to include oranges. Artificial or unnatural definitions are an unnecessary obstacle to understanding an Act and often confuse drafters and policy makers alike.
Paragraphing
Paragraphing, in the context of Acts and regulations, refers to the practice of listing grammatically co-ordinate elements of a sentence in a series of indented, lettered "paragraphs." By convention, each paragraph in a series must be connected grammatically in the same way as every other paragraph in the series to the portion of the sentence before the series.
The convention resolves any ambiguity that may exist in the sentence by making clear the intended syntax of the sentence.
Paragraphing can be abused. This is the case, for example, when it is used to justify excessively long or syntactically involved sentences.
Relationship of drafting conventions to bilingualism
Drafting conventions sometimes differ between English and French. This is not surprising, since:
Even where the drafting conventions do not differ between English and French, their application to a particular provision may produce different results. This is sometimes the case, for example, with definitions. A word in one language might have only one meaning, so that there is no need to define it in an Act, while the equivalent word in the other language might have several meanings, so that it is necessary to specify by definition the intended meaning.
A common example of a word that is defined in one language only is the word "prescribed" in the English version, which is often defined to mean "prescribed by regulation." There is no adjective in English that corresponds to "regulation" in the sense of a certain kind of legal document. Drafters have, in effect, created such an adjective in English through the use of the definition of "prescribed." But in French, there is an adjective that corresponds to "règlement," namely "réglementaire." This adjective can be (and is) used in the French version without being defined.
Parliamentary procedure
Some legislative drafting conventions are based on parliamentary procedure (See Chapter 2.4 "Summary of the Parliamentary Process").
A parliamentary committee to which a bill is referred has the right to go through the bill clause by clause. A bill must consist of one or more numbered clauses so that parliamentarians can refer to and vote on particular provisions of the bill. It is also important to combine in a single clause only those elements needed to express a single concept. Combining more than one concept in a single clause, even with multiple subclauses, may make it more difficult for parliamentarians to debate and vote on the various concepts.
A motion for leave to introduce a bill in the House of Commons specifies the title of the bill. If the contents of the bill are not referred to in the title, the bill may subsequently be ruled out of order as having been irregularly introduced. The title of the bill must therefore cover the contents of the bill. This rule applies only to the parliamentary, or long, title of the bill. Any short title of the bill is just another clause, as far as Parliament is concerned.
Facilitating access to Acts and regulations
Some legislative drafting conventions facilitate access to Acts and regulations. Most users of Acts and regulations are not interested in reading a particular Act of Parliament or regulation through from beginning to end. It is important that Acts of Parliament and regulations be arranged so users can find the provisions that are relevant to them as easily as possible and so those provisions can be precisely identified.
The clauses of a bill are consecutively numbered from beginning to end so that each clause has a unique number. The numbering of the clauses does not, therefore, reflect the possible arrangement of the bill as a series of numbered parts or of any part as a series of numbered divisions.
Once the bill receives Royal Assent, the clauses become "sections" and the subclauses become "subsections."
The renumbering of provisions in an existing Act or regulation should be avoided because it can lead to confusion about references to those provisions: do they refer to the new number or the old one?
The provisions in a bill should be grouped together thematically and should flow logically. For example, if a licensing process is being created, the provisions that deal with licence applications should be set out first and the provisions dealing with the revocation or suspension of licences should be set out after.
It is important to organize a bill in a way that meets the needs of those who are most affected by it. For example, Acts are usually drafted so that statements of principle and basic rules are at the beginning. Enforcement provisions and regulation-making powers are usually placed at the end.
Facilitating the revision of Acts and regulations
Acts of Parliament and regulations are periodically "consolidated" and "revised." The revision process facilitates access to the law by getting rid of repealed provisions and adding new text.
Several legislative drafting conventions have been established to facilitate the statute revision process. A series of conventions requires drafters to place at the end of a bill provisions that will be omitted during the statute revision process. Placing them at the end reduces the renumbering of other provisions. Examples of provisions that, by convention, are placed at the end of a bill include:
Another series of conventions relating to techniques of amendment facilitates the consolidation of Acts, whether through the statute revision process or through public or private publications of the text of one or more Acts "as amended." In order to facilitate consolidation, an amendment of one Act by another must be
In addition, it is conventional to replace a provision, and not merely to insert or delete words in the provision, except where a single word or expression is being altered. This convention also facilitates consolidation because the drafter, aided by electronic databases of Acts of Parliament, rather than the user, produces the text of the provision as amended.