Guide to Making Federal Acts and Regulations

Preface

In early 1998, the Government of Canada took a close look at the law-making process and at ways to improve the quality of draft legislation. One finding was that people involved in the law-making process did not always have enough information on the process or their role in it. Another finding was that there is a wealth of information on the law-making process, but relatively few people know about it. Two examples of this are the directive entitled The Preparation of Legislation, approved by the Cabinet in 1981, and the Guide to the Making of Federal Acts and Regulations, published by the Department of Justice in 1995.

On March 23, 1999, the Cabinet took an important step towards addressing these deficiencies. It approved an updated directive on the law-making process for federal Acts and regulations. The directive sets out the expectations of Ministers in relation to this process and generally orients the activities of Government officials in this regard. It also envisages the issuance of supplementary documents to provide detailed guidance to ensure that the Cabinet’s objectives and expectations are met.

I am issuing this second edition of the Guide to Making Federal Acts and Regulations to promote awareness of the 1999 Cabinet Directive on Law-making and to provide the detailed guidance that it envisages. We plan to continue to improve and update the material and invite you to give us your comments. A current version of the Guide will be available on the Privy Council Office Web site at http://www.pco-bcp.gc.ca

Alexander Himelfarb Clerk of the Privy Council

Introduction

Objectives

The Guide describes the steps to be followed to transform policy into Federal Acts and regulations, which are forms of written law generally referred to as "legislation." It also outlines the roles of the participants in this process. If the process is carefully planned and competently carried out, the resulting legislation will achieve the Government’s goals while adhering strictly to the principles and policies underlying our legal system.

The Guide also serves as a reference for those already involved in law-making and as a training tool for those who are becoming involved for the first time.

Audience

The main audience for this Guide consists of officials in the Government of Canada who are involved in the law-making process and who have responsibility for one or more of the following activities:

• developing policy to be implemented by legislation,
• supporting a Minister in obtaining Cabinet approval to draft legislation,
• participating in the drafting of legislation,
• managing legislative projects.

Contents

The Guide covers a broad range of activities ranging from policy development to regulation-making. It begins with the Cabinet Directive on Law-making, which sets out the framework for the Government’s law-making activity and the principles that govern it. The Directive is the foundation for this Guide, providing the authority for the Clerk of the Privy Council to issue it.

The rest of the Guide is divided into three parts.

Part 1 provides a framework for making laws. Chapter 1.1 deals with choosing the most effective tools for achieving policy objectives. It provides a series of questions that should be answered to make sure that a law is needed and to explore other tools. Chapter 1.2 assumes that a decision has been made to make a law and outlines the legal framework for doing so, including the Constitution and other basic laws that must be considered when preparing legislation.

Part 2 discusses in detail the making of Acts. It begins with legislative planning and management and concludes with post-enactment review. It is organized under a series of titles to help you navigate each step in the process and includes checklists and templates, as well as detailed information about particular phases of each step.

Part 3 deals with the making of regulations in a summary fashion. This process is currently under review. Readers looking for detailed guidance on it should consult:

• Regulatory Process Guides, available from the Regulatory Affairs and Orders in Council Secretariat of the Privy Council Office at http://www.pco-bcp.gc.ca/raoics-srdc/default.asp?Language=E&Page=Publications
• Federal Regulations Manual, published by the Regulations Section of the Department of Justice.

The Guide concludes with an Appendix listing reference material that may be useful to anyone participating in the law-making process.

Navigating the Law-making Process

The captain of a ship knows that to get from Point A to Point B successfully you need a plan, a map, a crew, a time frame, landmarks along the way, a good communications system and a bit of luck. A captain cannot operate alone or in isolation. Similarly, the law-making process works best when:

• one person has responsibility for coordinating efforts;
• expected "products" are clearly defined;
• a schedule is in place and revised as necessary;
• systems for sharing information and for reporting on progress are developed and used;
• there are clearly defined roles and responsibilities.

Whatever your role–be it subject matter expert, program official, legal adviser, drafter or manager–whatever size department you work in and whatever experience you may or may not have, you cannot do this by yourself.

Taking a policy and crafting it into a bill or draft regulation and then into enforceable law requires the co-ordinated efforts of dozens, if not hundreds, of people. Law-making is a complex process. It is also a crucial activity in our democracy.

Law-making is a team effort that requires planning and good management.

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