Legislative Services Branch Evaluation

Executive Summary

1. Introduction

To meet the requirements of the Treasury Board Secretariat (TBS) 2009 Policy on Evaluation, the Department of Justice undertook an evaluation of the Legislative Services Branch (LSB) in 2012. The evaluation covered the period from 2006-07 to 2010-11.

2. Background

In Canada, the administration of justice is an area of shared jurisdiction between the federal government and the provinces and territories. The Canadian justice system is also defined by the coexistence of two legal traditions: the civil law in Quebec and the common law in the remaining provinces and three territories. The LSB drafts bills and regulations required by federal departments and agencies in a manner that reflects both legal traditions, when appropriate. Canada’s two official languages add a further challenge to drafting legislation. As a result, legislative counsel must consider, at times, up to four legal audiences - French and English users of the civil law and French and English users of the common law.

The LSB undertakes a number of activities in order to draft bills and regulations that meet these requirements, as well as the requirements of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights. The Branch is responsible for publishing statutes and regulations, developing and implementing policy related to the regulatory and legislative processes in conjunction with other central agencies, developing drafting guides and reference manuals, delivering training and outreach to departments and agencies, providing support to the Statute Revision Commission as part of the ongoing process to improve federal legislation, and occasionally, for providing information, opinions or advice to federal litigators on the interpretation of federal legislation.

3. Methodology

The methodology for this evaluation was developed using a risk-based approach and incorporated multiple lines of evidence. Due to the LSB’s unique and specialized service area, the evaluation was designed to focus on the protocols, processes, resources and standards used to address client requests and deliver a high quality service rather than on the quality of the legal products. Footnote 1 Methods used to inform the evaluation include a document review, an analysis of secondary and administrative data, a literature review, a file review (n=37), case studies (n=5), online surveys of LSB staff (n=93) and clients (n=151), as well as key informant interviews (n=36).

4. Relevance of the Legislative Services Branch

The relevance of and need for LSB services are clear. The Branch is the main provider of a fundamental service required by the Government of Canada. The unique specialized knowledge and skills of LSB counsel meet the legislative drafting requirements of Canada’s bilingual and bijural system. Over 10,000 drafting and advisory files were closed over the five-year evaluation period. The evidence indicates that there is continued demand for these services and that the complexity of requests has been increasing. Timelines for completing the work have decreased and the incidence of high priority files has increased.

The bills and regulations drafted by the LSB meet the needs of client departments and central agencies, thereby supporting federal government priorities. The services of the Branch are also closely aligned with the Department’s two strategic outcomes: 1. a fair, relevant and accessible justice system that reflects Canadian values; and 2. a federal government that is supported by effective and responsive legal services. Footnote 2

The LSB provides legislative services to the government respecting bills and regulations and supports the Minister of Justice’s legislated roles and responsibilities. The Branch also supports the role of the Minister to ascertain whether any of the provisions of bills and regulations are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights,and ensures that regulations are examined under the Statutory Instruments Act.

5. Performance of the Legislative Services Branch

5.1 Effectiveness

The LSB supports the bijural federal legislative framework in both official languages. The Branch has established and maintained mechanisms such as co-drafting and review processes that are intended to ensure that legislative texts are of the highest quality and reflect Canada’s bilingual and bijural context when appropriate. Clients expressed high levels of satisfaction with access to laws in both official languages and in appropriate formats.

By addressing thousands of requests for legislative services each year, the LSB is responding to the needs of the federal government and its policy direction. Despite changes in the drafting environment due to the increasing predominance of short timelines and high priority files accompanied by an increase in file complexity, the Branch has continued to meet demands. Clients are satisfied with the quality of the drafting products and the legal advice provided. Continuity in the assignment of LSB legislative counsel to departmental requests contributes to a collaborative and fluid approach to addressing needs for legislative services. In the Departmental Regulations Sections, assigning the same LSB legislative counsel to client departments, as well as having LSB counsel assigned to those three Sections, is an effective way of assisting legislative counsel to develop a better contextual understanding of these departments’ policies and programs. Surveyed LSB staff reported particularly good access to experts within the Branch, such as bijural experts and jurilinguists, which also aids in effectively and accurately addressing client requests.

Clients from the case studies are satisfied with the assistance provided by the LSB in managing their legal risks. Some client key informants noted that the advice provided by the LSB in terms of managing risks was useful and practical. They were satisfied with the level of communication and collaboration, as well as with the process of identifying the risks and developing mitigation strategies. Clients from the case studies also noted that their involvement in these processes was beneficial in increasing their knowledge about legal risks and how to avoid them in future policy and legislative product development. Clients who responded to the client survey expressed high levels of satisfaction with the support provided by the Branch to help them manage risk.

In the absence of external legislative drafting educational programs, the LSB must provide extensive training to its legislative counsel. The Branch wants to ensure that their legislative counsel have the specialized knowledge required to draft bills and regulations in the Canadian context. While some LSB employees expressed the need for more training, they are generally satisfied with the training provided, particularly when compared with other public sector employees. Mentorship, which includes the assignment of more experienced legislative counsel with those less experienced, also plays an important role in the development of effective legislative counsel.

5.2 Efficiency and Economy

Not only does assigning the same LSB counsel to client departments and to the three Departmental Regulations Sections facilitate effectiveness, it enhances the efficiency of the drafting process by allowing legislative counsel to develop fluid and collaborative working relationships with clients and Departmental Legal Services Unit counsel.

The resources allocated to meet client demands depend on file priority and complexity, as well as on the type of services required and the department or agency that made the request. Often, staff is reassigned to higher priority files to meet urgent deadlines. Clients and Branch staff expressed concern that, with the anticipated increase in demand, current staffing levels will not be sufficient to manage the volume of work while maintaining existing levels of quality. LSB managers also noted that staff often has to work overtime to meet current levels of demand. Some LSB staff does not consider that the appropriate employees are always assigned to files in terms of their experience and current workload. Unfortunately, the assessment of efficiency and economy was constrained by the lack of information in iCase concerning the level of complexity and legal risk of LSB files. As a result, it was not possible to assess the extent to which the appropriate level of counsel is being assigned to a file. In general and where possible, more experienced legislative counsel are paired with more junior counsel, which not only supports knowledge transfer but also helps to reduce costs.

Clients play an important role in the drafting process due to their in-depth knowledge of the policy issues that pertain to the legislative request. However, it appears that there are gaps in clients’ understanding of their role and responsibilities with respect to the drafting process, which can have a negative impact on efficiency. Although clients reported they have sufficient understanding of the drafting process, LSB staff reported the contrary. This problem is compounded not only by a client’s lack of knowledge of the legislative processes, but also by an overall lack of capacity within client departments' policy areas. Often policy is being developed concurrently with the legislation to support it.

The LSB makes an effort to provide training to client departments in order to increase their knowledge with respect to efficiently preparing instructions and their role in the drafting process. Clients who reported having received training from the Branch were highly satisfied with it. However, it has become more challenging to do this as opportunities to conduct training are limited by the increasing workload of LSB staff. Even when training has been provided to client departments, staff turnover rates have made it difficult to maintain a sufficient level of knowledge of the legislative and regulatory processes to fully support the drafting processes, particularly in departments where the need for LSB services arises only periodically. As it becomes more difficult to provide training, and consequently to ensure that the client departments have the appropriate level of knowledge to fully support the legislative drafting process, the gaps in clients’ knowledge about the drafting process and, more specifically their roles and responsibilities with respect to that process, could widen.

The efficiency of the drafting process is also affected by the limited capacity of clients to contribute equally to the process in both official languages. This means that scrutiny by those persons in the best position to direct legislative counsel with respect to appropriate context and terminology may not be as comprehensive as possible. While legislative counsel expressed concern about their clients’ French language ability, clients felt that their support to the drafting process in both official languages was sufficient (likely related to the lower proficiency levels required in the day-to-day business activities of the departments relative to that required to draft bills and regulations in two languages).

The Branch has been able to support staff and facilitate productivity through the use of information technology (IT) tools. These tools have not only improved capacity and efficiency, they have also allowed for more flexible work arrangements such as teleworking for legislative counsel working in the regulations sections. Footnote 3 Surveyed LSB staff expressed high levels of satisfaction with the IT tools available, and results of the 2011 Public Service Employee Survey suggest that the LSB staff is more satisfied with the equipment and materials available to them than are other public servants.

LSB managers are less satisfied with the cost recovery processes involved in the mixed financial model. The administrative burden and the lack of training to navigate the invoicing system were mentioned by most key informants. However, this system has been sufficient to cover the LSB's costs and is expected to become more efficient over time as managers and clients become more familiar with it and as issues with invoicing are addressed. As of April 2012, the Department implemented a cost-recovery improvement project that is currently being used by all legal services sectors, including the LSB. The impact of this project will be assessed in future evaluations.

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