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

8. EXAMINATION BY STANDING JOINT COMMITTEE FOR THE SCRUTINY OF REGULATIONS

The Standing Joint Committee for the Scrutiny of Regulations is responsible for monitoring the use of regulatory powers on behalf of Parliament. The Committee reviews regulations after they have been made, checking to ensure that they meet 13 criteria. These criteria include ensuring the regulations are authorized by the enabling statute, do not conflict with the Charter, are not retroactive unless express authority exists, and are not deficient in terms of drafting. When the Committee finds a problem with a particular regulation, it usually recommends a solution to the regulation-making entity. If the regulation-making entity does not agree with or act on the recommendations of the Committee, the Committee can present a report to the House of Commons that, if adopted, will lead to the repeal of the regulation.

REFERENCE DOCUMENTS

For information on the regulatory process, including the role of the Standing Joint Committee and the legal framework of regulatory powers, refer to the following documents:

• Statutory Instruments Act, R.S., c. S-22, section 19.

• Standing Orders of the House of Commons, February 1990, section 123.

• How Regulators Regulate, Treasury Board Secretariat (1992).

• Regulations and Competitiveness, Seventeenth Report of the Standing Committee on Finance; First Report of the Sub-Committee on Regulations and Competitiveness, January 1993.

• A Strategic Approach to Developing Compliance Policies, Regulatory Affairs (1992).

9. CONCLUSION

This Guide tries to give regulators and drafters the basic tools and references they will need to proceed through the steps of addressing a problem by way of regulations. The idea for this Guide came out of the recognition that there is a sometimes bewildering wealth of information on some aspects of government regulatory response and very little information on the newer parts of the process that involve plain language. Preparing regulations is a complex matter that can consume a significant amount of time and resources. Going from point A, problem identification, to point B, problem resolution, can be a long journey, with many challenges along the way. It usually involves making many decisions and taking into account the interests and input of many people and divergent interests. The formal aspects of the regulatory process itself can be daunting. For these reasons, it is important to be well-prepared heading into the process and to do all you can to ensure a successful outcome. The overview of the process provided in this Guide should help participants plan their approach on an informed basis. Legislative drafting is a very traditional area of law. Out of tradition comes consistency, which is an extremely important factor in interpreting and applying the law. For this reason, the changes recommended in this document have been considered carefully, in light of their potential impact on the larger body of Canadian law, as any other proposed changes must be. The federal government is only in the initial stages of using plain language techniques, but has already recognized how beneficial they can be.

The emphasis on consultation with the users and stakeholders is not new, but it underlines the importance of communicating in a way that the users can understand. Consultation provides information on the current use and understanding of the regulations. Testing the regulations before they are finalized, to find out if the users and stakeholders can actually read, understand and use the regulations, is a very valuable tool. In addition to getting these groups' reactions from the outset, the consultations and usability testing make the user group more aware of the regulations that they should be following and, in so doing, perform a "marketing" role. They may also increase commitment to the regulations, since the users will have been involved in the entire process.

Although the short-term cost of developing plain language regulations may be greater than the cost of developing other regulations (because of consultations and usability testing), there are many long-term benefits and savings:

• There is less need to develop secondary documents to explain the regulations.

• Since the regulations are of better quality, they will not need to be revised as frequently.

• Less time will be spent answering readers' questions.

• The consultations allow the drafters to understand the context of the regulations better, allowing for more informed drafting.

• Since the user group is involved in the development of the document, the regulations are of better quality and elicit a higher degree of commitment.

• Usability testing ensures that individuals understand the document they must comply with.

Teamwork is the cornerstone of the whole process. The expertise and enthusiasm of the team members is critical to creating a regulatory tool that is efficient, realistic and well adapted to the context in which it will be applied.

List of References:

• A Practical Guide to Usability Testing, Dumas, J.S. and Redish, J.C., Ablex, Norwood, N.J., 1993.

• A Strategic Approach to Developing Compliance Policies, Treasury Board Secretariat, Regulatory Affairs, 1992.

• Assessing Regulatory Alternatives, Treasury Board Secretariat, Regulatory Affairs, May, 1994.

• Benefit-Cost Analysis Guide for Regulatory Programs, Treasury Board Secretariat, Regulatory Affairs, 1995.

• Competitiveness and the Design of Regulations, Treasury Board Secretariat, Regulatory Affairs, Dec. 1992.

• Consultation Guidelines for Managers in the Federal Public Service, Privy Council Office, 1992.

• Consumer Fireworks Regulations: Final Report, Trevethan, Shelley; Gordon, Wendy; and Roy, Marie-Andrée, Department of Justice, Ottawa, 1995.

• Designing Regulatory Laws that Work, Administrative Law Section, Department of Justice, 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.

• Document Design: A Review of the Relevant Research, Felker, D.B. ed., Document Design Center, American Institutes for Research, Washington D.C., April, 1980.

• Enlightened Practices in Regulatory Programs, Vols. 1 and 2, Treasury Board Secretariat, Regulatory Affairs, May, 1993.

• Federal Regulations, Department of Justice Regulatory Awareness Programs, Privy Council Office Section, Department of Justice, 1992.

• How Regulators Regulate, Treasury Board Secretariat, Regulatory Affairs, 1992.

• Intergovernmental Cooperation, Treasury Board Secretariat, Regulatory Affairs, Nov. 1994.

• Interpretation Act, R.S., c. I-21.

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

• 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.

• Practical Approaches to Usability Testing for Technical Documentation, Velotta, C., ed., Society for Technical Communication, Virginia, 1995.

• Regulations and Competitiveness, Seventeenth Report of the Standing Committee on Finance; First Report of the Sub-Committee on Regulations and Competitiveness, Jan. 1993.

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

• Regulatory Policy, Treasury Board Secretariat, Regulatory Affairs, Nov. 1994.

• RIAS Writer's Guide, Treasury Board Secretariat, Regulatory Affairs, Nov. 1992.

• Standing Orders of the House of Commons, February 1990, section 123.

• Statutory Instruments Act, R.S., c. S-22.

• Statutory Instruments Regulations, C.R.C., c. 1509.

• Technical Report: Consumer Fireworks Regulations Usability Testing, Schmolka, Vicki, Department of Justice, Ottawa, 1995.

• The Business Impact Test, Treasury Board Secretariat, Regulatory Affairs.

• The Canadian Style, 2nd Ed., Dundurn Press Limited, 1997.

• The Federal Regulatory Process, An Interim Procedures Manual for Departments and Agencies, Treasury Board Secretariat, Regulatory Affairs, 1991.

• Tort Liability of Public Authorities: Review of Jurisprudence, 2nd Ed., Administrative Law Section, Department of Justice, Feb. 1995.

• Treasury Board Circular 1987-15: Orders in Council Requiring the Recommendation of Treasury Board. Treasury Board Submissions Guide, Submission and Cabinet Document Centre, Treasury Board, Sept. 1994.

• Users' Guide, Regulations Section, Department of Justice, 1997.

• Writing Laws: Making Them Easier to Understand, Krongold, Susan, Ottawa Law Review, Vol. 12, No. 2, 1992.

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