Interview

Making the Rules: A Day in the Life of a Regulatory Drafter

by Lorie Boucher

The identity of a nation is defined, in part, by the rules governing it. Generally speaking, legislation — the formal expression of our collective will — reflects our priorities and values, our tolerances and restrictions. From ensuring respect for English and French as the official languages of Canada (Official Languages Act) to establishing the consequences of criminal acts perpetrated by young people (Youth Criminal Justice Act), federal acts and regulations form the legislative base that directs Canadian federal government initiatives undertaken in our collective interest.

So who writes the rules? The answer depends, in part, on the number and type of acts and regulations governing the department in question. The Canadian Food Inspection Agency (CFIA), for example, delivers its federal food safety, animal health, and plant protection programs under a broad legislative base that includes 13 different acts. Amending the associated regulations, and in some cases, writing new ones when required, is the responsibility of a small team of regulatory drafters.

Contributing Editor Lorie Boucher speaks with David Spicer, Senior Regulatory Drafting Officer with the CFIA, about the regulatory drafting process, writing complex texts in the context of federal plain language principles, and what it’s like to write the words that define and protect Canadians.

WB: Regulatory drafting seems to be more of a profession you fall into rather than choose. Is that true?

DS: If you’re not already a lawyer or training to become one, it’s not something that you train for, per se, in terms of a Bachelor of Arts in regulatory drafting. There are two streams in the federal government for regulatory and legislative drafters. One is a purely legal stream; departments like Transport Canada, Health Canada, and Environment Canada have on-site teams of lawyers who collaborate with policy experts in those departments and actually draft the regulations. There are other departments, such as this one, Fisheries and Oceans, and others, that take a slightly different approach. They use non-lawyers — generalists or policy people — to get a grasp on the policy first and then translate that into a regulation.

DS: We have four drafters, a supervisor, and one admin person. Parks Canada has a similar approach to ours and they have similar numbers. Fisheries and Oceans has a slightly larger group, but they also deal more with legislation and bills than we do — we’re fairly limited to regulations at the moment. We also have two economists on staff who do benefit-cost analysis. That varies between federal departments. Agriculture Canada, for example, employs a number of economists.

DS: No. Before this job, I was with the Department of Justice. All three of the other drafters have, at one time or another, worked for a Legal Services unit in the government, so to say they have no legal background probably isn’t accurate. Certainly one of the things we’re looking for in regulatory drafters is at least some familiarity with the structure and purpose of regulation.

DS: It probably depends on the individual’s career goals, but regulatory drafting tends not to be something that you get into right out of university, unless you’re legally trained and have a law degree. If you’re drawn to legal drafting, you could do a law degree, take the legal drafting course at the University of Ottawa, and then jump right into the Department of Justice and begin drafting regulations. But for those of us who aren’t lawyers, it’s kind of a mishmash. I have a French literature and Canadian Studies degree. You sort of come at it from different angles. Typically, though, you do this after you’ve worked in other departments.

DS: The idea for the regulatory change could come from a number of places. Typically, though, it comes from stakeholders. The existing regulation could be a trade irritant, for example, a time-consuming application process that stakeholders believe is unnecessary and would like to have changed. The Minister’s Office is another source of changes. The program areas could also be a source for us if there is a new initiative that they want to put in place and they need regulatory authority to do it. The change could also come from us, as well, because of the contact that we have with our regulatory base. Quite often we’ll see something that is either contradictory, which we hope doesn’t happen too often, or other minor or more substantial regulatory problems that we point out to the program. In all cases, though, the responsible program experts have the lead responsibility for determining whether to pursue the change. They are the ones who have the most regular contact with our stakeholders, which sometimes involves the Minister’s Office.

DS: Once the program area decides to make a change, we ask them to complete a detailed policy analysis of what they want to do called a Regulatory Proposal Assessment. The assessment includes questions on factors like a consultation plan, benefit costs, and so on.

DS: It eventually leads to one. The Regulatory Proposal Assessment is an internal document that serves a variety of purposes. One is to write the RIAS. It also helps us to get a better handle on what is actually being proposed and why. It includes a section on drafting instructions that is to be filled out and submitted to our Legal Services unit. They look at it from a legal perspective to determine, based on the regulation-making authority in the act, whether the government has the authority to do what is being proposed. Legal Services is involved right at the beginning, because if the authority doesn’t exist under the Act to do something, there’s not much point in pursuing it any further. Legal Services is also involved later on when we get closer to the final versions of the draft.

DS: Because the program people that we deal with aren’t lawyers either, they prepare their policy and submit it to us to interpret it, not exactly in "legalese," but certainly in standard regulatory language. In a lot of cases, it’s somewhat different from the language used in policies, but the intent, the end result, is the same.

DS: We have a bit of an extra step in those departments that don’t have a legal satellite unit in that we send it ultimately to the Department of Justice [Headquarters] Regulation Section. Drafting specialists review it, and if the form or technical requirements are not met, they modify it or suggest changes and send it back. It’s hard to say which method works best; the legal stream is probably faster, but departments like Health and Transport deal with about 100 sets of regulations. We have about 40. I think people in the program divisions here probably see us as shepherding the regulations through the process, without their having to go directly to Legal Services. It’s a bit of a different approach, and we think it works well for us.

DS: The majority would be amendments. Last year, for example, we probably drafted 3 or 4 new regulations and probably 10 to 12 amendments of various sizes.

DS: There are quite a few. In terms of numbers, around 30 bills are passed in a year, compared to what used to be around 800 regulations. It’s less than that now, but still in the hundreds. In drafting a bill, you’re setting up a framework, a "big picture," whereas with a regulation you’re getting into the weeds, the meat on the skeleton. As a result, regulations tend to be longer and much more detailed, and there is hardly any duplication in the language between the two of them. That’s the essential difference. It’s also a much different process. With a regulation, we write it, send it to the Department of Justice, and they review it. With a bill, we tend not to do the actual drafting. We go directly to the Department of Justice [Headquarters] Legislation Section and say, "here’s what we want to do, here are our drafting instructions, this is what we want," and the Legislation Section will produce a draft. The first draft is basically a list of questions asking what we want to achieve with the bill. There’s much more face-to-face, back and forth discussion with the Department of Justice on bills. The Department of Justice is on the hook a lot more for bills than they are for regulations because they’re so difficult to make and because they’re so difficult to change. They want to make absolutely sure that the bill is bang on.

There are also different government requirements for bills and regulations. For regulations, pretty much everything that we do has to conform with federal regulatory policy, which sets out fairly strict process guidelines and administrative guidelines. For example, we have to consult, we have to do a benefit-cost analysis, we have to show that we can enforce something, and most importantly, we have to demonstrate that regulatory intervention is justified.

DS: No, there aren’t. Typically there are about 20 to 30 new or amending acts passed by Parliament in a calendar year. Amendments to acts are usually made when a department or agency makes a significant change in policy direction or requires new powers. The recent Anti-Terrorism Act is a good example of the government reacting to an event in order to ensure it has the necessary powers to be able to protect Canadians.

DS: It depends on the nature of the change. We typically tell people in the program areas to allow 18 months, from start to finish, for a substantive change. A lot depends on how long their work takes; it also assumes that they’ve done their consultation already and they’re ready to move forward. For something less substantive, it would probably take six months. In an emergency situation, the time frame is shorter.

DS: Yes, one person is assigned to the file from beginning to end. The kind of regulation determines the level of involvement. For some substantive regulations, we’ll actually attend the policy meetings, and we’ll sometimes travel to the stakeholder meetings. We tend not to do that a whole lot, but sometimes the program is more comfortable if we’re there right from the beginning.

DS: Usually anywhere between 8 and 12. If one is a major project, then maybe that one, and 2 or 3 others. It depends on the level of complexity.

DS: We don’t take a portfolio approach. We could be doing, for example, health files one week and agriculture files the next week. It allows us a great deal of exposure to the Agency’s work in all areas. It’s also good, from our perspective, to keep on top of what’s of concern, any recent disease outbreaks, for example. Sometimes, though, consideration is given to whether we are currently working on something that’s closely related to a new initiative, or just finished something like it, and whether it would make sense to work on the related project as well. Typically, though, we’re not assigned work according to the subject area.

DS: Well, I don’t think it’s writing — it’s probably negotiation. We serve as the go-between between the program area, our Legal Services unit, the Department of Justice [Headquarters] Regulation Section, and the Minister’s Office, to a certain degree. You’re responsible for leading things through a complex process that isn’t obvious to many people who are outside of it. The writing, the actual drafting, is sometimes the easy part, particularly if it’s a simple amendment. But even just changing a sentence or two in a section of regulation can be the result of three years of consultation. And sometimes changing an entire part can be easier.

DS: Yes. A lot of people, especially the folks at the Department of Justice, consider this a legislative area. In some senses, this is technical writing. Some of it is formulaic, particularly with amendments. There are certain ways of writing an amendment clause; otherwise it doesn’t work and Justice will send it back. If you’re exempting something, or you’re requiring something, or you’re putting a prohibition in, there are certain stock phrases to use. With the rest, you can be sort of creative, although I hesitate to use the term because it’s not really an outlet for your creativity.

DS: Quite closely. I think you can certainly go into the database of any regulation and pull out any number of horror stories of provisions that make virtually no sense. So we, along with the Department of Justice [Headquarters] Regulation Section, would be considered to be proponents of plain language. We don’t have a legal background, so we’re not prone to immediately put regulations into language that would be mired in "heretofores." We try to keep on top of what’s coming out of the Department of Justice in terms of directives in that regard. There are a couple of committees specifically created to look at plain language issues in legal drafting. Some of what they discuss might be considered a little pedantic — spending hours talking about the use of "must," "may," and "shall," or when to use "and" or "or" — but their decisions are pretty useful for our work. Ultimately, it saves us time. If we draft it correctly here, they don’t spend time changing all of it when we send it over there.

DS: I think there’s a certain degree of satisfaction when you’ve been working on a file, particularly when there’s been some controversy or you know you’re not going to satisfy everybody, and you’ve done all you can to get it to that point. You try not to get too personally attached, but there’s a certain degree of satisfaction when you see it getting published in the Canada Gazette, knowing that it made it to that point, and although it might be revisited in two months, you’re happy it’s there.

From a writing perspective, the most satisfying part is someone arriving at your desk saying, "I’ve got industry screaming at me, I’ve got the Minister’s Office screaming at me, we have to keep this provision, but we can’t keep it as it stands. Can you help me with some wording?" And you look at the context of the regulation and go back to them and say, "Well, how about this?" Sometimes it works, sometimes it doesn’t. Sometimes you end up with a godawful sentence that goes on for a page and a half.

DS: Good question. For myself, I would identify with the public servant community first, just because so much of this job is not writing. The time it takes to get to that point is longer. If you look at controlling animal disease, you do feel you’re fulfilling a public service role, helping our inspectors out in the field, making it easier for them to do their work. So, it’s probably first and foremost that. But probably what I enjoy most is the writing.

Lorie Boucher is a Contributing Editor for Writer’s Block.