PART 5
DEVELOPING REGULATIONS
The Basic Steps and the Plain Language Approach

3. DRAFT THE REGULATION

3.1 Two Main Ways to Proceed

At present there are two main ways of drafting a regulation, both of which can be modified to accommodate specific circumstances: either drafters from the Regulations Section draft the regulation on the basis of instructions from the client department, or the department prepares a draft regulation which is then examined by the Regulations Section. In either case, you must respect the bilingual nature of the drafting process by giving instructions or draft regulations in both languages.

If you proceed by instructions, they must contain enough detail to be useful as the basis for preparing a draft regulation. Not only do the drafters need to have detailed directions on what is required, but your departmental policy officers and management must understand exactly what is contemplated. To prepare instructions, answer the basic question, "Who is responsible for doing what, and how and when?" In some cases, it may be possible to take other regulations as a model and point out what has to be changed.

The project team leader ultimately decides which way to proceed, based on considerations of efficiency in the particular circumstances and taking into account all relevant factors, including the resources available, the time available and the complexity of the subject area. The team approach should underlie whatever choice you make, so that the work of drafting and reviewing is based on ongoing communication among those involved.

When instructions or a draft regulation are sent to the Regulations Section from the department, they should be accompanied by a letter of transmittal from the departmental manager responsible for the project. This requirement ensures that time is not spent developing a regulation that does not have the explicit support of the sponsoring department. The drafters can help you determine when this formal letter of transmittal should be sent.

REFERENCE DOCUMENT

For more information on the different ways to proceed and the roles of the respective parties in each case, refer to the Department of Justice publication: Users' Guide, Regulations Section, Department of Justice, 1997.

3.2 Drafting Style and Presentation

The wording of a regulation must be clear, precise and concise. Drafting a regulation calls for discipline in selecting vocabulary and structuring sentences. Graphic presentation is another key component of producing a text that is accessible and easy to read.

Long-established drafting rules serve to ensure a degree of uniformity in regulations. However, you may be interested in tailoring the language and presentation used in the regulation to your user group. It is possible to write concisely and simply, using a minimum of legalese, cross-references and other elements that make a text difficult to understand, without sacrificing the clarity or accuracy of the regulation. You will have to be consistent, though, with the technical and legal language used in the authorizing statute, or the unamended part of the relevant existing regulations, and this may be a limiting factor in your particular regulations or amendments.

Section 4 of this Guide describes some plain language drafting features that you may find useful. The reference documents listed below describe drafting rules in more detail.

Plain Language Clear and Simple, a publication prepared by Human Resources Development, National Literacy Secretariat, in partnership with 14 other departments, describes basic "plain language" writing and graphic techniques that make documents easier to read and understand. Most of these techniques can be used in drafting regulations; for example, it is easier for any user to find material in regulations if marginal notes are used. Another simple aid to comprehension is to avoid dense, uninterrupted blocks of text.

Any suggestion you may have for making the regulation easier to read and understand should be given to the Regulations Section drafters on the team. They will analyze it in light of possible legal or practical obstacles and, whenever possible, will help you apply it.

To simplify drafting on the computer, the Regulations Section has developed format styles, which must be used, because they save the expense of an intermediate reformatting step. Training on how to use the "Styles" is available from the Regulations Section.

TOOLS AVAILABLE

Department of Justice, Regulations Section's automated "Styles" to format documents.

REFERENCE DOCUMENTS

For more information on drafting techniques, including "plain language" techniques, refer to the following publications:

• Federal Regulations Manual/Manuel de réglementation fédérale, Regulations Section, Department of Justice (1998).

• Plain Language Clear and Simple/Pour un style clair et simple, Trainer's Guide, Human Resources Development, National Literacy Secretariat, Multiculturalism and Citizenship Canada (1994).

• Justice position paper on incorporation by reference, Administrative Law Sector, Department of Justice (Sept. 1995).

• Directives on Submissions to the Governor in Council and Statutory Instruments/Directives sur les présentations soumises au gouverneur en conseil et les textes réglementaires, Privy Council Office, (1985).

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