Publications

Report on Law-Making and Governance

A Summary of Discussions Held by the
Deputy Ministers’ Challenge Team on
Law-Making & Governance

Privy Council Office

Table of Contents

Preface

Part 1: Introduction and Overview
Part 2: A Process Perspective
Part 3: A Thematic Perspective
Part 4: Responding to the Challenges
Part 5: Concluding Remarks

Report on Law-Making and Governance

A Summary of Discussions Held by the Deputy Ministers’ Challenge Team on Law-Making & Governance

Preface

The Challenge Team was established in mid-1996 under the title of the Deputy Ministers’ Challenge Team on Regulatory Reform to effect needed reforms in the areas of regulations and regulation-making in context of Building a More Innovative Economy (BMIE), a central part of the Government’s Jobs & Growth Agenda.

The report summarizes the Challenge Team’s discussions on the way the Government makes laws. The objective was to review key policy processes, examine the frameworks that guide them, and suggest directions for improvements and future work.

The report is intended to encourage constructive dialogue on the issue of law-making, an issue that has absorbed significant energies over the last decade and which will present a continued challenge into the future. It is our hope that this report will add clarity to the important issues associated with law-making and serve as a platform for continued dialogue and action that will improve the way policy is made, laws written, programs implemented, and reported to Parliament and the Canadian people.

This report attempts to reflect the knowledge and experience of the Deputy Ministers’ Challenge Team and the significant work of regulatory departments, the Treasury Board Secretariat, the Privy Council Office and the Department of Justice.

Regulatory Affairs and Orders in Council Secretariat
Privy Council Office

Part 1: Introduction and Overview

This report outlines the key issues identified and discussed by the Deputy Ministers’ Challenge Team over the past three years, the Team's recommendations to date and its proposals for guiding the evolution of federal law-making. The document is designed to:

• consolidate the Team's thinking on the issues of law-making and governance; and
• provide a basis for planning the Team's future activities.

Some Basics

The following are some plain language descriptions of key terms used in this report.

• Legislation is a general term encompassing both statutes and regulations – the legally binding rules that governments use to place requirements on enterprises, citizens and government itself.
• Statutes refer to laws passed by Parliament.
• Regulations are made by the Government pursuant to authority delegated to it by Parliament in order to add details to statutes.
• Regulatory reform aims at improving the quality of legislation in Canada. As used in this report, the term refers to a wide spectrum of activities, from the revision of specific regulations and statutes to the improvement of law-making processes and institutions.

A Brief History

The concept of regulatory reform arose in the late 1970s and early 1980s in response to concerns that federal regulation was out of control. The key influences through this period were the reports of the Nielsen Task Force (the Ministerial Task Force on Program Review) and the Economic Council of Canada. The views expressed by these and other parties led the Government to conclude that the regulatory process needed to be improved.

The first phase of reform in the mid-1980s saw the Government establish a regulatory policy and the Citizen’s Code of Regulatory Fairness, as well as the requirement for a regulatory impact analysis statement. Under these measures, new regulations would have to undergo an exhaustive, centrally managed review.

In 1992 and again in 1995, the Government revised its regulatory policy. In fact, starting in 1992, the Government reassessed every regulation on the books. This regulatory review led to the Government modifying or revoking 835 of about 2,800 regulations then listed in the Consolidated Index of Statutory Instruments.

The most substantive change to the regulatory policy, introduced in 1995, was the incorporation of the Regulatory Process Management Standards, which are intended to provide a framework to ensure a high quality of departmental regulatory processes and to deliver better regulations. Regulatory authorities are expected to adopt and report on their compliance with these standards.

Today’s Context

In 1997, the mandate of the Special Committee of Council (SCC) was expanded. In addition to its original task of approving Orders, including regulations, requiring Governor-in-Council approval, the SCC also became responsible for legislative planning and review, and also for issues relating to legislative policy and process.

Recognizing this opportunity, the Deputy Ministers’ Challenge Team on Regulatory Reform also focussed on the inherent linkage between statutes and regulations. Further, the Team recognized that legislating had become increasingly complex because policy areas now tend to overlap (as, for example, in the fields of bio-technology, health, food, agriculture and trade), demanding cross-departmental and even cross-jurisdictional responses.

Consequently, this report refers to law-making. Up to now, there has been a tendency to treat statutes and regulations differently and sometimes even independently from one another. From the citizen’s perspective, however, both statutes and regulations have a similar effect. Both instruments create legally binding rules with criminal or civil consequences for non-compliance.

Discussions among the Challenge Team members were based on the following principles:

• Legislation is a crucial policy instrument that responds directly to the concerns of Canadians in areas such as health, safety and the environment for example.

• A country’s legal and regulatory regime has emerged as a key issue in international competitiveness.

• Stakeholders who are involved in legislative and regulatory issues may not necessarily be interested in less law, but in better law.

In summary, there are higher expectations for restraint, transparency, accountability and performance in the law-making process.

Overview of this Report

This report reflects the Challenge Team’s discussions on a wide spectrum of law-making issues. The Team considered a number of questions for helping to determine when to use law-making powers as a means of effecting social and economic change. The basic questions DMs thought would be useful in coming to this determination are as follows:

• What is the issue?
• Is government intervention appropriate?
• Has the Government consulted and engaged Canadians and its partners effectively?
• Is legislation the best way of meeting the policy objective?
• Do the benefits outweigh the costs (economic, social, environmental)?
• Does government have the capacity and resources to implement and enforce the proposed legislation?
• How will results be measured and reported?

Supplementary questions which flow from the above are:

• Where in the process should these questions be asked?
• Who should be asking these questions and to whom should they be posed?
• Have sufficient resources been invested in the right places to support these rules?

This report analyses the issue of law-making from two perspectives: the law-making process (covered in Part 2) and specific themes that permeate law-making discussions (the topic of Part 3). The fourth part of this report looks at the work already underway to address the challenges outlined and at possible future directions for governance.

Part 2: A Process Perspective

Through a detailed review of the policy development, statute development and regulatory development processes, the Team identified certain challenges involved in making laws.

Challenge: Are there ways to improve how problems are defined by Government and the choice of instrument to address them?

In recent years, departments have realized the importance of selecting the right instrument (e.g., a law, an information campaign, a funding strategy) to effect policy objectives. The Government's recent program review and its greater emphasis on planning and performance measurement have contributed to better analyses and choices. However, the Challenge Team felt that departmental policy staff would benefit from more guidelines on how to define problems and choose alternative policy instruments. They could benefit from sharing experiences with their colleagues more and becoming more aware of alternative ways to effect change.

Challenge: Should the guidelines for drafting Memoranda to Cabinet be enhanced to better support Cabinet decision making?

The Memorandum to Cabinet is the key document that ministers use to outline policy options and recommendations. The Challenge Team discussed whether the information required to be provided in Memoranda to Cabinet was sufficient or whether it could be supplemented by further information, such as:

• problem definition and analysis of instrument choice;
• the nature of consultations, including outcomes;
• estimates of costs and benefits (social, economic, environmental) of proposed initiatives;
• indications of implementation time lines;
• performance measures and expected outcomes of policy interventions; and
• the connection between the initiative and broad government policy.

Challenge: Should policy analysts be given better guidance on developing legislative drafting instructions?

Drafting statutes and regulations is principally about drafting policy into legal language. Two parties are involved in this exercise: 1) policy analysts, who write drafting instructions describing the intent of the proposed legislation; and 2) the legal experts from the Department of Justice, who use these instructions to draft laws. The quality of the legislation depends largely on the quality of the instructions, how well the sponsoring department and the Department of Justice communicate, and on the quality of the analysis that supported the policy development.

Most of the detailed work of drafting policy into bills takes place at the departmental level, through cooperation among the Department of Justice drafting teams, departmental legal services units and policy officials in the sponsoring department. Early and close cooperation among these parties ensure that drafting instructions are clear and fully address the policy’s intent. A checklist for drafting instructions would be of benefit. In addition, policy officials need guidelines that:

• encourage their early engagement with legislative drafters,
• clarify roles,
• set work plans, and
• provide advice on how to present drafting instructions.

Challenge: Should the regulatory policy be re-examined?

The current regulatory policy consists of eight key requirements. When proposing regulations, regulatory authorities are asked to demonstrate that:

1. a problem or risk exists;
2. government intervention is justified;
3. regulation is the best alternative;
4. Canadians have been consulted;
5. the benefits of regulation outweigh the costs;
6. the Government will minimize the adverse economic impacts and burdens of regulation;
7. the regulation does not contravene intergovernmental and international agreements, and the Government is coordinating its regulatory efforts with other jurisdictions;
8. the Government will manage regulatory resources effectively.

As noted above, the regulatory policy, established more than a decade ago, has contributed to significant improvements in government regulatory practices and performance. The Challenge Team raised the issue of whether consideration could be given to apply some of the principles of this policy to statutes as well as regulations.

Drafted in the 1980s in response to concerns about over-regulation, the current policy assumes a need for strong central agency guidance and control. However, it may now be time to focus more on improving the quality rather than reducing the quantity of regulations – on creating better regulations responding to stakeholder needs and the public’s interest.

The strides departments have made in improving their regulatory processes could warrant giving them more flexibility in developing legislation. It may be worthwhile, therefore, to redefine the regulatory policy so that instead of spelling out in detail how regulations should be developed, it states basic principles to be followed in making both statutes and regulations. This shift would need to be balanced with departments demonstrating greater accountability for the legislation they put forward.

A policy based on high-level principles would have to ensure that the eight basic questions outlined above are fully addressed, but should also emphasize:

• effective quality assurance mechanisms;
• performance measurement and reporting;
• adherence to other government policies (e.g., sustainable development); and
• adherence to risk management principles.

However, stakeholders have expressed concerns not so much with the content of the regulatory policy as with how it is implemented. In particular, there are concerns with:

• how the Privy Council Office ensures that the regulatory policy is adhered to;
• consistency in the application of the regulatory policy;
• consistency in the application of impact assessments;
• fair consideration of stakeholder positions; and
• the need for an effective and objective appeal mechanism.

These two perspectives – the interest in greater departmental flexibility in law-making and stakeholders' concerns about implementation – will need to be reconciled in any attempt to revise the regulatory policy.

Challenge: How might information to ministers on proposed regulations be improved to better meet their needs?

Providing appropriate information to ministers for their regulatory decisions is a challenge because of two main issues.

The first issue is the dual nature of the Regulatory Impact Analysis Statement . It is both a briefing document for ministers and a public document meant to give a factual summary of the issues, options and views on a proposal and to enable stakeholders to challenge the analysis and point out more effective alternatives. As such it is a public document and the basis of informed decision making, by ministers. Guidance would need to be provided to regulatory developers to ensure that the primacy of transparency and open consultation are not compromised.

The second issue is that sponsoring departments act as both objective analysts and advocates. Generally speaking, by the time ministers consider a regulatory proposal, the sponsoring department will have undertaken significant consultation with affected parties, defined a policy position, and prepared draft regulations accordingly. By this point, the department may no longer be exploring or analyzing but rather advocating the proposal. This brings into question the objectivity of the information provided to ministers. The issue is less one of substance than of perception, however, the perception of fairness and balance in the impact statement is very important.

These issues could be addressed if Privy Council Office (PCO) were to enhance its oversight role. The Challenge Team recognizes the need within PCO for additional mechanisms to ensure that the regulatory proposals being put forward conform to government policies and are accorded the appropriate opportunity for discussion by ministers.

Part 3: A Thematic Perspective

This chapter focuses on six themes inherent in law-making processes: policy analysis, the challenge function, consultation, accountability, performance measurement and reporting, and capacity-building. These themes bear on all the processes and also connect in various ways to each other.

Challenge: Are there ways to enhance the analysis process used to help determine whether government intervention is warranted and the type of intervention is appropriate?

Policy making is largely information processing. Putting the right information in the appropriate form increases the chances that policy interventions will be successful.

Typically, departments generate information for making policies by applying a specific analytical framework – a broad set of rules on what considerations will be brought to bear on a decision.

The analytical frameworks are used to create the decision documents: the Memorandum to Cabinet, in the case of a statutory change; and the Regulatory Impact Analysis Statement, in the case of a regulatory change.

Policy makers have a broad range of analytical frameworks from which to choose; the Canadian Standards Association’s Q850 Risk Management Standard, and the regulatory policy’s Regulatory Process Management Standard are but two examples. Perhaps most important is not which model is applied, but that whatever model used meets the following standards:

Comprehensiveness: The policy makers have a clear set of outcome objectives, consider and fully analyse alternatives, think through both the policy and the operational detail, and produce clear drafting instructions.

Balance: Policy makers present and consider their analysis in an objective way; they understand and represent fairly the views of all concerned; and they recommend the option that will provide the greatest benefit to Canadians.

Timeliness: The sponsoring department asks the right questions at the right time. It avoids the pitfall of making a critical decision (e.g., legislative versus a non-legislative alternative) too early, without a thorough analysis.

Engagement: The department systematically uses an inclusive, public and transparent process, finding appropriate ways to engage and consult citizens, partners and colleagues.

Policy making could be enhanced by:

• challenging the traditional choice of instrument for effecting change;
• setting clear, objective outcomes and reporting on their results;
• putting greater emphasis on a balanced analysis;
• planning policy development better; and
• finding the most appropriate ways to engage and consult the public.

Challenge: Can the challenge function which exists within government be enhanced?

When departments propose legislation or policies, other departments and agencies and central agencies may question the proposal and suggest changes to it. This questioning process is known as the challenge function and is important to policy making for several reasons:

• Even the best analytical frameworks are likely to overlook important factors, which will often come to light through challenges raised by other government departments.

• At some stage in the policy-making process, departments inevitably become advocates for their initiatives. Challenges from other government departments provide a healthy counterbalance to this bias.

• Parliamentary committees also challenge proposed policies. The committees' work will be more effective if departments themselves raise issues early in the policy development process and provide the right information and background material to committees.

The challenge function can be met informally through routine exchanges of information and consultation among government officials, but its effectiveness will be enhanced if it is integrated into the different policy-making processes. An effective challenge depends on several factors:

• Clear roles and responsibilities: Departments and central agencies should know when and how to raise challenges in support of Cabinet decision making.

• High-quality information: Departments, central agencies, ministers and Parliament need to know what questions to ask and what types of information will support their inquiries.

• Appropriate level of transparency: The policy-making process must be highly transparent to encourage broad debate and discussion, both within and outside government.

The challenge function could be improved through a number of measures.

Improvements in providing relevant policy information: A strong challenge function rests on good information. Central agencies or other departments can not adequately challenge proposals if they know little about the past performance of related initiatives, the initiative's intended outcomes, how it will be implemented, societal costs and benefits, and what enabling regulations are necessary. The recent project called Improved Reporting to Parliament, whereby departments provide Parliament with detailed reports on their goals and activities, is an example of reporting that can strengthen the challenge function.

Appropriate information channelling and specific types of information: Different players in the challenge process require different kinds of information. Ministers, central agencies or other government departments may require specific details to effectively assess the implications of a policy.

Clarifying roles: Central agencies have traditionally treated statutes and regulations differently. The Privy Council Office (PCO) could play a role in helping Cabinet committees take a more integrated and comprehensive approach when considering legislation. PCO could also encourage departments to scrutinize the implications of a regulation early in the policy development stage. Further, central agencies could play a greater role in helping departments with issues such as instrument choice, policy and program design, and results measurement and performance evaluation.

The Department of Justice could also be better utilized by policy makers. Justice can have a significant influence on legislative policy design, both through legal services provided within departments and through legislative and regulatory drafters. These specialists may influence policy decisions by attending to details that may not have been addressed in the drafting instructions. The Justice department could be more influential in policy making by ensuring that its lawyers are familiar with the range of regulatory and non-regulatory instruments, and by challenging the instrument choice early in the process.

Improving transparency: The confidentiality of Cabinet discussion and decision making is a key principle of parliamentary democracy. It enables Cabinet ministers to openly express their views in Cabinet when considering proposed government policy, and, once a collective decision is made, maintain Cabinet solidarity. However, these confidentiality rules can limit the public’s knowledge of proposed legislation, as draft legislation presented to Cabinet and the supporting information remain confidential. The Government of Canada has committed itself to greater citizen involvement in the

law-making process, and several departments now conduct pre-Parliamentary consultations on draft bills. The new Cabinet Directive on Law-Making states that ministers "may wish to consult on the basis of draft bills" and that, if they do, their intention should be stated in the Memorandum to Cabinet and that Cabinet should be asked to agree to this consultation.

Challenge: Can departments improve their ability to consult with stakeholders and other government departments?

Over the last 20 years, the Government of Canada has been committed to greater public consultation in policy development. In addition to hearing witness and expert testimony on draft legislation – a traditional aspect of the Parliamentary process – governments have committed themselves to fostering more public consultation throughout the policy development process.

Consultation overlaps with the challenge function, but is distinct. A challenge entails a pointed critique of a given initiative, probing for weakness and gaps. This certainly happens during consultations, however, increasingly, they function to develop a common, shared definition among stakeholders of the problem, the options and the ultimate solution.

The regulation-making process is clearly designed to ensure that consultation takes place in the development of regulatory initiatives. Nevertheless, more could be done to enhance consultations. Discussions with stakeholders could be integrated into each stage of the process rather than merely being tagged on. Some ways to improve consultations are:

More focussed consultations: Departments have genuinely adopted a consultative culture. However, departments could be more successful in this if they had detailed guidance on how to conduct and take greatest advantage of consultations. Such consultations are particularly important at the outset of the policy development process in order to help determine the instrument choice or the administrative vehicle for implementation.

Transparency: Departments control how the results of consultations are reported. To enhance transparency, departments could publicize these results so that all participants have a formal record of the positions and issues.

A project management approach to consultations: Stakeholders expect clear objectives, predictability, dependability and timeliness of consultations. To achieve these ends departments could develop: departmental guidelines or quality standards, guidelines on consultation summaries, departmental registries of on-going consultations and when they began, and programs to support the inclusion of a broader range of public interest groups.

Challenge: Can implementation planning and performance measurement and reporting in the law-making process be enhanced?

Implementation planning and performance reporting are critical to good policy making and governance for several reasons.

Good policies poorly implemented can lead to problems: Even if well designed, a policy, statute or regulation will fail to achieve the desired ends if it is poorly implemented.

Improving the government’s ability to develop good policies depends on knowledge of past experiences: Policy makers require information on how policies, programs, etc., performed in the past in order to develop better initiatives in the future.

Limited resources encourage alternative delivery mechanisms: The public continues to demand certain services, even though resources are constrained, and one answer is the consideration of alternative delivery mechanisms.

Alternative service delivery needs to be assessed: Departments should base such initiatives on an analysis of the past performance of similar initiatives.

Modes of governance are changing: The Government now focusses more on satisfying clients and producing results when delivering public services. Law-making and policy development should also reflect this orientation where appropriate.

The key principle that underlies all these rationales is accountability to Parliament and to the public. The Government recently undertook a number of linked initiatives to increase accountability and to encourage better program performance and reporting.

Program Review: This initiative used six tests to encourage the most effective and cost-efficient way of delivering programs and services. The first four addressed implementation. (Does the program serve the public? Is government involvement necessary? Is government involvement required? Is there scope for partnerships?).

Getting Government Right: A key element of this renewal agenda has been determining the appropriate government role in delivering programs and services.

Framework for Alternative Service Delivery: A Treasury Board guide has been developed to assist departments to select and design organizational and management strategies to achieve service improvement and high performance.

Improved Reporting to Parliament Project: As mentioned earlier, this initiative, launched in 1996, has replaced Part III of the spending estimates with two annual departmental reports to Parliament – one in the spring on plans and priorities and one in the fall on performance under this project, Performance Reports for all departments were first tabled in November 1997.

To achieve its goals and improve policy making, the Government is focussing more on planning the implementation of legislation and policies, delivering services, reporting on results, and integrating this information into the policy, statute and regulation development processes.

A number of on-going initiatives address different aspects of the implementation and reporting function. The issues in this area are perhaps broader and more long-term than those previously outlined. They centre around improving existing tools and extending modern management concepts to the legal instrument.

Implementation issues arise in all three of the processes discussed in this report – policy development, statute development and regulation development – but are sometimes neglected as a distinct focus for analysis, planning, and reporting. How an initiative is implemented usually depends on the nature of the policy issue, the policy instrument and the department. From a management perspective, the issue is how to support better planning of implementation and how to improve information flows regarding the initiative.

Recent initiatives have aimed for a results-oriented management system, coupled with new frameworks for alternative service delivery and quality standards. A client and service orientation is at the heart of all of these initiatives. To date, the focus of these initiatives has not directly included statutes and regulation, even though these instruments can be viewed from a service perspective. Stakeholders have expressed concern with inefficient, ineffective or unresponsive regulation. Therefore, it may be helpful to apply service and quality standards to legal instruments.

While some steps have been taken to help service delivery officers think about law and legislative officers to think about service, it is still uncertain about how best to apply the tools of modern management to legislative affairs – how far, for example, to extend the idea of alternative service delivery to law.

Performance reporting is an evolving process. As noted above, the new reports on plans and priorities and on performance have improved reporting by encouraging the tabling of more accessible and useful information. As part of this effort, after 1997, key regulatory initiatives reported under the former federal regulatory plan have been incorporated into the annual departmental reports to Parliament. The intent is to illustrate more clearly the linkages and results of regulatory efforts and policy objectives. The Treasury Board Secretariat continues to work with departments to improve the process, outcome and relevance of how departments report their plans and results, including work on departmental and interdepartmental accountability frameworks.

Because this new reporting regime is still developing, departments must continue to adjust their performance measurement strategies to meet new informational demands. Given these constraints, and despite the advantages of the new formats of the reports to Parliament, the content of the performance reports are still evolving.

Challenge: How can the accountability framework of law-making be more clearly articulated and enhanced?

Much of government is based on certain core accountability relationships that determine who reports to whom, when, and how. Some of these traditional relationships are changing, or may need to change to promote better law-making and governance.

Departmental "stovepipes": Accountability to the Crown through the minister has a profound effect on how officials perceive their roles and responsibilities. They tend to orient themselves "vertically" – that is, respond to the demands of their superiors and their own departments. This is natural and desirable but can sometimes discourage early consultations or team approaches to policy development across departmental or agency lines.

Public’s role: Public demands for participation and influence in the policy process are increasing, as is the technological capacity to consult directly with the public. Policy makers need to take these factors into account.

Role of officials: Previously, officials could assume that their obligation was to listen to the public's views and simply convey them to decision-makers. However, a more active public is changing the role of officials considerably. They are becoming facilitators and, to a degree, partners in the policy development process.

Parliament: A key issue is the balance between the Government’s need for flexibility and the country’s need to maintain democratic accountability. A tool that gives government flexibility is framework legislation; it outlines policy and delegates authority for the details to those who make regulations. The frequent use of framework legislation needs to be balanced with clear reporting and accountability back to Parliament on the outcomes of the Government’s interventions. As mentioned earlier, the new reports to Parliament (plans and priorities and performance reports) respond to this, in part, by improving information flows to Parliament and by giving the legislature a better basis for critiques of departmental performance.

Challenge: Can departmental capacity be further developed to more effectively manage the making of laws?

Capacity, in the context of this paper, is defined as knowing whether, when, and how to use policy instruments (particularly the legal instrument) to achieve the public policy objectives of government. Capacity building, in this sense, includes all those activities that develop and sustain the capacity to use the legal instrument wisely and well. It implies the development of an on-going store of human, organizational, and informational resources that can grapple with governance reform issues over the long term.

Capacity building efforts might be focussed in the following areas:

Senior management: The public service is undergoing profound change because of extensive reforms to how policies are made and implemented and how programs and services are delivered. With so many simultaneous changes underway, departments will have to strive to maintain capacity to ensure success in regulatory reform initiatives.

Information and data: The measurement of objectives depends on specialized databases. Past experience has shown that programs have sometimes been introduced without proper consideration of the information and data systems required to measure, assess and report program results.

Job aids: Departments may require tools to promote an in-depth understanding among their people of the policy development, legislative and regulation-making processes and the requirements for planning and managing legislative initiatives.

Staff development: Central agencies, departments and other agencies need good leadership at all levels. In order for law-making reform initiatives to succeed, each department and agency requires at least one key leader who is knowledgeable, experienced, able and motivated to ensure success.

Communications: All members of the public service should be continually reminded of the principles of the regulatory policy and the need to consider regulation as part of the continuum of policy development. As well, the public needs access to information on legislative initiatives in a timely fashion.

The Steering Committee on the Legislative and Regulatory Processes has revised the Cabinet Directive on Law-Making and is overseeing the redevelopment of the Guide to Making Federal Acts and Regulations to reflect this new directive. The Guide will do more than simply describe in detail the legislative and policy development processes. It will provide a project management approach to the process of transforming policy into legislation, a checklist for legislative drafters, and project management advice. These two documents – the Cabinet Directive on Law-Making and the Guide to Making Federal Acts and Regulations – are intended to enhance planning and management capacities across government. The Steering Committee continues to look into government consultation processes and techniques as related to draft legislation and to issues of capacity building focussed on areas such as job aids and staff development.

The Challenge Team has developed detailed maps of the law development process – from policy through statute to regulation. Based on this work, the Canadian Centre for Management Development, with the support of central agencies has undertaken to produce a prototype multi-media learning program for policy developers. This tool is intended to guide policy makers in addressing the many issues they may face in developing laws.

In addition, measures have been taken to enhance accountability and the machinery for regulatory development. A significant step, the Regulatory Affairs & Orders in Council Secretariat was established within the Privy Council Office in the fall of 1998.

As well, responsibility for the Federal Regulatory Policy was transferred, in June 1999, to the Special Committee of Council from the Treasury Board, further consolidating responsibility and accountability for regulatory governance.

In the fall of 1999, in light of its success in addressing these governance issues, the Challenge Team set a new agenda for the next 24 months focused on horizontal issue management in the area of regulations and law-making cutting across departmental responsibilities, namely:

1. Promoting Canada’s International Competitiveness: The Team will benchmark key regulatory programs against those of our major trading competitors. As well, the Challenge Team has recommended Canada’s participation in an OECD review of Member countries' regulatory management, including regulatory processes, telecommunications, competition policy, and market openness.
   
2. Enhancing Coordination and Consideration of Risk Management Issues: The committee is exploring the possibility of serving as a key senior-level forum for the exchange of experiences, debate, and common understanding of horizontal management of risk.
   
3. Considering Alternative Instruments to Effect Public Policy Objectives: The Team will examine innovative approaches to government intervention through a series of case studies. This work will result in a better understanding of the array of instruments available (information, tax, law, voluntary codes, etc.) used to effect public policy objectives and of factors critical to their successful implementation.
   
4. Reviewing Compliance With the Regulatory Policy: The Challenge Team wants to reinforce effective compliance with the requirements of the Regulatory Policy, particularly to ensure transparency and stakeholder engagement. In particular, the Team will be looking at the effectiveness of the RPMS and the RIAS in support of the Regulatory Policy.

The Regulatory Affairs & Orders in Council Secretariat in support of the work of the Challenge Team continues to:

• work with departments to strengthen information provided to SCC;
• provide a challenge function to regulatory proposals;
• support an integrated and comprehensive approach to the consideration of regulatory issues and policy; and
• consider and manage horizontal issues related to regulation and regulatory governance.

The Challenge Team’s program of work is intended to contribute to the enhancement of horizontal issue management, and to reinforce public engagement and collaboration in the areas of law-making and governance. Considering the broad range of issues being addressed by this committee, it adopted a new title, the Deputy Ministers' Challenge Team on Law-Making & Governance.

Part 5: Concluding Remarks

This report has taken stock of the issues which law-makers currently face. The suggestions for future work are by no means exhaustive, but are intended to contribute to continuing efforts to improve how legislation is developed and implemented. The report has helped to consolidate thinking on governance issues and contribute to determining the Deputy Ministers’ Challenge Team agenda for the future.