Guide to Making Federal Acts and Regulations

Chapter 2.2 - Development and Cabinet Approval of Policy

Overview

This Chapter supplements section 3 of the Cabinet Directive on Law-making by providing information on the various steps involved in policy development and Cabinet approval. It sets out the Good Governance Guidelines and goes on to describe how to prepare a Memorandum to Cabinet (MC), which is a Minister’s vehicle for proposing and explaining a legislative measure to the Cabinet and for obtaining its approval. The MC provides context for the drafting instructions that must be developed as part of the MC.

In this chapter

• Summary of the Cabinet Policy Approval Process
• Good Governance Guidelines
• Preparing a Memorandum to Cabinet
• Preparing Bill-drafting Instructions for a Memorandum to Cabinet
• Particular Legal and Policy Considerations
• Activities and Products for Policy Development and Approval
• MC Preparation Planning Calendar

You should also consult

• Memoranda to Cabinet: A Drafter’s Guide, published by the Privy Council Office (http://www.pco-bcp.gc.ca/default.asp?Language=E&Page=InformationResources&Sub=Publications&doc=mc/mc_e.htm).

Audience

• Officials involved in developing legislative policy and seeking Cabinet approval, particularly those involved in writing or reviewing an MC.

Key Messages

• Before seeking Cabinet approval, thoroughly consider the complex and wide-ranging issues involved in the preparation of legislation.
• Ensure that the bill-drafting instructions in the MC are detailed enough to give Cabinet a clear understanding of what the proposed law is to do and how it is to do it.
• Carefully consider the drafting instructions in order to identify and resolve potential legislative and administrative difficulties.
• Identify sources of funds to cover resulting financial implications for the Government of Canada arising from the implementation of the legislation.

Summary of the Cabinet Policy Approval Process

Memorandum to Cabinet and drafting instructions

After a proposed bill is included in the Government’s legislative program, the next step is to prepare a submission to Cabinet to seek policy approval and authority to draft the bill. This is done by way of a Memorandum to Cabinet (MC), prepared in accordance with the guidance documents issued by the Privy Council Office. MC drafters should refer to Memoranda to Cabinet: A Drafter's Guide (http://www.pco-bcp.gc.ca/default.asp?Language=E&Page=InformationResources&Sub=Publications&doc=mc/mc_e.htm), the Good Governance Guidelines and the MC Preparation Planning Calendar. When a bill is being proposed, the MC includes an annex of drafting instructions, which provides the framework for drafting the bill. This is a critical component of the MC that demands much care and attention (see also Preparing Bill-drafting Instructions for a Memorandum to Cabinet in this chapter).

Main Steps in Cabinet Approval Process

The main steps in preparing an MC are:

• The sponsoring department writes the MC, including the drafting instructions, in cooperation with departmental legal advisers. The Privy Council Office (PCO) should be consulted as early as possible in the process. As set out in the MC Preparation Planning Calendar, the sponsoring department must alert PCO to the draft MC at least 6 weeks before the Cabinet Committee meeting at which it is to be presented. Other departments and central agencies should be consulted as issues arise during the preparation of the MC.

• The sponsoring department hosts a substantive interdepartmental meeting at least 3 weeks before the Cabinet committee meeting to discuss the policy implications of the MC. The meeting includes PCO and the other central agencies as well as all departments whose ministers sit on the Cabinet policy committee that will consider the MC, and other interested departments. The sponsoring department then revises the MC taking into account comments from departments and ensures that it has the support of central agencies and other departments.

• As the central agency that serves as the secretariat to the Cabinet and its committees, PCO performs a challenge function on matters of process, most notably on what consultations are appropriate and on how public interest is determined. It also looks at issues of horizontality and the appropriate level of government intervention, particularly in terms of efficiency, affordability, federalism and partnerships.

• Once finalized, the sponsoring minister signs the MC and it is sent to PCO. PCO is responsible for distributing the MC to deputy ministers and ministers, for scheduling the item on the agenda of the appropriate Cabinet policy committee and for briefing the committee chair.

• The Cabinet policy committee considers the MC.

• If approved, PCO issues a Cabinet Committee Report (CR), which is then considered by the full Cabinet.

• If there are financial implications, a source of funds must be identified before full Cabinet considers the CR. If the CR is ratified, PCO issues a Record of Decision (RD). Both the CR and the RD are based on the recommendations and drafting instructions contained in the original MC.

• The policy committee or full Cabinet may require changes to the proposal. In such cases, the sponsoring minister may be asked to return with a revised MC, depending on the nature and scope of the changes. A revised CR and RD may also be issued to reflect the changes.

• Once the RD is issued, PCO sends copies to all ministers and deputy ministers (in practice usually to the departments’ cabinet affairs units) and to the Legislation Section of the Department of Justice.

• At this stage, drafting may begin.

In exceptional circumstances, where it is necessary to meet the priorities of the Government, drafting may begin before the Cabinet authorization has been formally obtained if the Leader of the Government in the House of Commons so authorizes. This authorization is granted on the advice of the Director of the Legislation Section and the Assistant Secretary to the Cabinet (Legislation and House Planning/Counsel) in consultation with the relevant PCO policy secretariat.

Who does what in the Cabinet Approval Process?

The Cabinet makes policy decisions, including decisions about how policies will be implemented in legislation. These decisions are communicated through the Cabinet’s approval of drafting instructions in a memorandum to Cabinet.

Most departments have units responsible for developing policies — including legislative policies — relating to matters for which they are responsible. The officials who work in these units are responsible for linking the various parts of the department in order to develop policies that respond to public concerns and can be effectively implemented.

Because each department is organized differently, it is possible here to describe only two groups of departmental officials: instructing officers and departmental legal advisers. They are responsible for explaining the objectives of the proposed legislative measure in an MC.

Officials in the Operations Secretariat of the Privy Council Office must be involved from the earliest stages.

Others who may assist in one way or another are legislative drafters in the Legislation Section of the Department of Justice.

Instructing Officers

An instructing officer’s role is to co-ordinate the efforts of their department. The efforts include analysing and recommending the alternatives available to achieve the policy objectives, as well as communicating to the Cabinet the potential substance of the bill for which authorization is being sought, once the Minister has made a decision. This substance is expressed in the detailed instructions for drafting the bill.

The instructing officers’ responsibilities include preparing the bill-drafting instructions for the MC and usually extend to many other aspects of the project, including the communication of detailed instructions to the drafters at the drafting stage.

This stage requires a considerable amount of work. The instructing officers must ensure that the approach adopted has been thoroughly examined. Clear and coherent drafting instructions can be formulated only with a thorough analysis of the issues that may arise. "Preparing Bill-drafting Instructions for a Memorandum to Cabinet" illustrates what elements of the proposed legislative measure must be brought to the attention of Cabinet.

Those who prepare the MC drafting instructions should also provide instructions at the bill-drafting stage. This will provide continuity and ensure that the drafters have the background information they need to draft the bill. The team of instructing officers must:

• be knowledgeable about the subject matter of the proposal;
• be able to formulate the instructions and answer questions about them in both official languages and ensure that each version is well-written and says the same thing;
• be able to make policy decisions as drafting proceeds, or have access to decision makers.

Departmental Legal Adviser

The legal adviser's role is essentially to check the legal aspects of the proposed legislative measure and advise the instructing officer.

First, the legal adviser verifies that the proposed measure is needed to achieve the department's objectives.

Second, if it is needed, the legal adviser checks the legal aspects of the drafting instructions in the MC to ensure that the instructions are consistent in all respects with the applicable legal rules. To assist in this task, he or she may seek the services of the specialized legal counsel at the Department of Justice. If the proposed instructions are legally defective, the legal adviser must propose alternative solutions.

Third, the legal adviser provides information on what is involved in submitting the MC in terms of time constraints, procedure, essential elements of the proposed legislative measure to be brought to the attention of Cabinet and the consequences of Cabinet approval.

Fourth, the legal adviser advises on general principles and policies that may affect the proposed legislative measure, such as policies relating to gender equality, bijuralism and access to government information.

The legal adviser may also act as the instructing officer.

Privy Council Office

The involvement of PCO, beginning at the earliest stages of the development of an MC, is crucial. As the central agency that serves as secretariat to the Cabinet and its policy committees, PCO, and in particular the Operations Branch, is responsible for reviewing policy proposals and providing a foundation to enable consensus on recommendations to Cabinet. It also ensures that policy proposals can be considered strategically by ministers.

Officials in the Operations Branch of PCO perform four functions:

• advising the departmental officials on policy questions and the Cabinet System to ensure coherence with the Government’s broad agenda priorities and policy framework;
• ensuring that Departments follow through on the Government’s commitments so that they are addressed;
• ensuring that the sponsoring department has followed all steps in the process, including consultation with appropriate departments and agencies;
• posing questions about the proposed legislative measure, including questions about whether it is needed at all;
• ensuring that other interested central agencies are aware of the proposed legislative measure so that it can be thoroughly studied before Cabinet sees it.

Legislative Drafters

Legislative drafters do not systematically participate in preparing the MC. Their main function is to draft legislation once Cabinet has approved the MC. However, departments are increasingly seeking their help— particularly with respect to the formulation of the drafting instructions—to avoid problems at the drafting stage.

Legislative drafters have both a sense of how the legislative process works as well as an overview of federal legislation as a whole. They can assist instructing officers on the following points:

• the policy rationale for the proposed legislative measure,
• determining the legal form the measure may take,
• fitting the measure into the body of federal legislation,
• determining the content of the drafting instructions,
• inserting certain types of provisions into the measure,
• selecting a comprehensive or specific solution to resolve a particular problem,
• determining the time required for drafting and printing the bill.

The advice of legislative drafters may save the instructing officer time and trouble. For example, it may avoid having to go back to Cabinet to obtain authorization to include essential provisions.

Legislative drafters may also advise on general principles and policies that may affect the proposal, particularly on generally accepted drafting principles, such as those expressed in the Legislative Drafting Conventions of the Uniform Law Conference of Canada, available on the Internet at www.law.ualberta.ca/alri/ulc/acts/edraft.htm.

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