Regulatory Process
The process for the approval of regulations is governed by the Statutory
Instruments Act and is enforced by the Department of Justice, the Privy
Council Office, and the Treasury Board Secretariat. Below, we attempt to
give you some appreciation of what departments & ministers are required to
do before they can bring a regulation into force. For greater detail, please
consult the Guide
to the Regulatory Process or the Statutory Instruments Act, which is
available on-line from the Department of
Justice.
Highlights of procedural requirements
The Statutory Instruments Act, cabinet policy, and the Regulatory
Policy set out the process that must be followed when developing regulations.
The general requirements are outlined below, but there are some exceptions.
There are three broad classes of regulations:
- Governor-in-Council (GIC) Regulations — regulations requiring
the authorization of the Governor General on the advice of the Treasury Board
(most regulations fall into this category).
- Ministerial Regulations — where an Act gives an individual
minister the authority to make regulations.
-
GIC or Ministerial Regulations Affecting Government
Spending — because of the fiscal implications, these require
additional approval from the Treasury Board.
Step 1 - Planning
Departments must scrutinize each regulatory proposal to ensure that it is
truly necessary and that a non-regulatory means, or instrument, is not better
suited to addressing the problem at hand. Currently, each department tables its
Report on Plans and Priorities in Parliament each spring, which contains a list
of the major planned regulatory initiatives. These are made available to the
public at department websites, as well.
Step 2 - Drafting
The department or agency then drafts its regulatory proposal,
doing so alone or with the assistance of its legal advisers and the Regulations
Section of the Department of Justice. In order to satisfy the Regulatory Policy,
it must also draft a Regulatory Impact Analysis Statement (RIAS), which must
describe the proposed regulation, the alternatives considered, a benefit-cost
analysis, the results of consultations with stakeholders, the department's
response to any concerns raised, and the means of monitoring and enforcing. In
certain cases, there must also be a communications plan and a supplementary note.
Step 3 - Review by Justice
The department must then send the proposed regulation and
supporting documentation to the Senior General Counsel of the Regulations
Section of the Legislative Services Branch of the Department of Justice. Justice
examines the draft regulations to ensure that they have a proper legal basis,
particularly with respect to the Charter of Rights and Freedoms, and that
they are in accordance with the Statutory Instruments Act. If everything
is in order, the drafts are stamped and returned to the departments for the next
step.
Step 4 - Signing by sponsoring minister
After being "blue-stamped", the proposed regulations
are then submitted to the sponsoring minister for his or her sign-off. By
signing the documents, the minister formally recommends that the Governor in
Council pre-publish the regulations.
Step 5 - Review by PCO I
It is at this stage that new regulatory initiatives officially
come to the Regulatory Affairs and Orders in Council Secretariat at the Privy
Council Office (us). As the secretariat which supports TB`s role in Governor in
Council decision making, we review the proposal for
consistency with the Regulatory Policy, broader government initiatives and
government directives, such as the Cabinet
Directive on Environmental Assessment of Policy, Plan and Program Proposals.
If
there are questions relating to the quality of supporting documents, like the
RIAS, or supporting information, we ensure that all questions are answered prior
to the regulation going before the Treasury Board (TB). We
prepare a briefing note summarizing the rationale, impact, and issues related to
each proposal for the information of TB Ministers who ultimately take the
decision whether to approve a regulatory proposal.
Step 6 - TB-Part I pre-publication
The first time that a regulatory proposal is seen by the TB, the
sponsoring minister is typically seeking approval for pre-publication in the Canada
Gazette, Part I. TB considers the proposal and either approves or rejects
the request for pre-publication. Pre-publication allows for public scrutiny and
comment on the proposal for a period of at least 30 days. It is expected that
the department will address public comments in a revised regulation, or provide
reasons why a given concern could not be addressed. If comments result in
changes being made to the regulations, they must be sent back to Justice for
review and approval. In some cases, there may be a request for an exemption from
pre-publication. In other circumstances, departments may request pre-publication
periods shorter than 30 days. These requests are considered and decided upon by
the TB.
Step 7 - Updating of proposal
In some cases, comments during pre-publication may necessitate
changes to the regulatory proposal. Even if the proposal is unchanged, the
RIAS would need to be augmented with the a description of the comments received
during pre-publication and the department's response. The sponsoring
minister signs the documents and recommends the item for final approval.
As of December 1, 2003, Departments must also return to the department of
Justice after pre-publication for new blue-stamped copies of the proposed
regulations, whether or not changes have been made to the version of the
regulations published in the Canada Gazette Part I.
Step 8 - Review by PCO II
Proposed regulations return to RAOIC, which now considers the
nature of the comments received after pre-publication and the department's
response to those comments. It once again fills-in any missing information and
prepares briefing materials for TB Ministers.
Step 9 - TB-Part II - Final approval
At this stage, TB Ministers consider the results of pre-publication and take
the decision whether to grant final approval to the proposed regulation. If
approved, the Governor General "makes" the regulation by signing it
and the regulation is registered with the Registrar of Statutory Instruments.
Regulations normally come into force as soon as they are registered, which must
occur within seven days of final approval, but can only be enforced once
published in the Canada Gazette, Part II. Publication must occur
within twenty-three days of registration. If not approved, the sponsoring
department must decide whether to modify the initiative and go back to the
beginning of the approval process, or abandon it entirely.
Step 10 - Standing Joint Committee for the Scrutiny of
Regulations
The Standing Joint Committee for the Scrutiny of Regulations is
a Parliamentary Committee that reviews all regulations. It can recommend changes
to regulations, report to Parliament on problems, and propose that regulations
be repealed.
|
