Legislative Services Branch Evaluation

6. Conclusions, Recommendations and Management Response

6.1 Summary of Conclusions

This section provides the main conclusions of the evaluation of the Legislative Services Branch, based on the findings presented in this report.

Relevance

LSB services meet a specific need of the Government of Canada

The relevance of and need for LSB services are clear. The Branch is the main provider of a fundamental service necessary to the Government of Canada. It requires specialized knowledge and skills to meet the legislative drafting requirements of Canada’s bilingual and bijural system. Feedback from evaluation participants suggests that the expertise needed to fulfill the LSB’s mandate, particularly with respect to the bilingual and bijural requirements, can only be found within the Branch.

The evaluation demonstrated that the LSB meets the legislative drafting and the advisory needs of the Government of Canada. Over the evaluation period, the LSB actively managed an average of 2,678 files per year and closed over 10,000 files, addressing requests from 192 client departments and agencies. The volume and complexity of requests confirm a continued need for LSB’s legislative services.

LSB activities align with government priorities and support Department of Justice strategic outcomes

The Branch responds to legislative and regulatory drafting requests related to the existing and emerging priorities of client departments, which address the priorities and policy directions of the federal government. For this reason, the activities of the LSB are inherently linked to the priorities of the government. In supporting government priorities, bills and regulations are drafted to conform to the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and, in the case of regulations, with the Statutory Instruments Act, as well as to other laws that delineate government priorities.

In addition, the LSB supports the Department of Justice’s strategic outcomes by maintaining and strengthening the bilingual and bijural framework of the Canadian legal system; ensuring that all bills and regulations are of the highest quality, in both French and English, reflecting the civil and common law traditions when appropriate; and providing legal advisory and legislative services to all federal departments and agencies.

The LSB is well aligned with federal roles and responsibilities

The LSB supports the Minister of Justice’s role under the Department of Justice Act. Under section 4.1 of the Act, the Minister is responsible for examining government regulations to ensure conformity with the Statutory Instruments Act. The Branch also supports the Minister by ascertaining 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 by ensuring that regulations are examined under the Statutory Instruments Act. Finally, the LSB supports the Minister of Justice in these functions by drafting bills and regulations, certifying that the Charter review of bills was performed, as well as examining regulations under the Statutory Instruments Act.

Under section 4 of the Department of Justice Act, the Minister is also the legal advisor to Cabinet, supporting Cabinet’s responsibility for the overall policy direction of the government by providing policy advice and supporting the decision-making process.

The co-drafting and revision processes are intended to ensure the highest quality of language in both French and English, thereby meeting requirements under the Official Languages Act. Further, under the Policy on Legislative Bijuralism and the Cabinet Directive on Law-making, the LSB harmonizes existing statutes and regulations to ensure they respect the principles, concepts and institutions of both the civil and common law traditions.

Effectiveness of the LSB

Co-drafting and revision processes are key to contributing to a bilingual and bijural federal legislative framework

Co-drafting is reported to be a primary facilitator to the LSB’s contribution to a bilingual and bijural legislative framework. It is a unique approach considered exemplary by other bilingual jurisdictions. Interview and staff survey participants expressed high levels of satisfaction with the co-drafting process. The revision process was noted by key informants to be an important mechanism to ensure quality of language and representation of both the common and civil law traditions where necessary.

Training, experience and tools ensure the development of legislation that respects the Constitution and other legal requirements

Bills and regulations drafted by LSB, in partnership with client departments and agencies, must be in accordance with the provisions of the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and other relevant federal acts. Legislative counsel gain a comprehensive knowledge of the Charter, Bill of Rights and other legal requirements through the LSB’s internal legislative drafting training and mentoring system. LSB staff has access to several useful reference guides, tools and resources to ensure the clarity, consistency and accessibility of drafted bills and regulations. Respondents to the LSB staff survey reported that they were very satisfied with the tools available.

Legislative counsel also regularly consult with specialized legal counsel from other areas in the Department of Justice as needed, such as the Public Law Sector.

Effectiveness of LSB’s working relationships

Stakeholders reported having positive and effective working relationships with the LSB. One way this is supported is by assigning or making available the same legislative counsel to the same clients where possible.

Staff survey results suggest that consultation processes within the Branch, between LSB staff, are sufficient and timely, and particularly effective with respect to bijural experts, jurilinguists and legistic revisors. In contrast, when asked about sufficiency and timeliness of consultations external to the LSB, respondents indicated that they may not have sufficient access to other legal counsel in the Department or with individuals from the central agencies.

The LSB continues to meet client needs despite changes in demand

To meet increasingly complex drafting requests and shorter timelines, the Branch has been working at maximum capacity within current human resource levels. LSB management must often reallocate legislative counsel to high priority files, meaning that other active files may have to wait until a full drafting team is available to work on those files, or the drafting team is changed part way through the file. Despite the challenges, clients are satisfied with the LSB’s current ability to meet deadlines.

Results of the survey suggest that assigning appropriate staff to files could be improved, particularly in terms of staff experience and workload. This could be a reflection of a combination of the complexity of the files, the incomplete information provided by the clients, the increase in high priority files, and the lack of experience of newer staff.

Technology and IT support have helped LSB address capacity and efficiency. The Branch utilizes an extensive set of IT tools which help to maximize efficiency and capacity.

Clients are satisfied with the LSB services

Client feedback provided through various lines of evidence reveals high levels of satisfaction with the services provided by the Branch, in particular with its ability and flexibility in helping clients find solutions to meet their needs, its ability to accommodate challenging deadlines, its capacity to respond to requests, and the quality of the work produced.

The LSB also plays a key role in helping departments manage any legal risks by identifying and assessing the legal risk and providing options to help mitigate these risks while still achieving the client’s objectives. Clients are satisfied with the assistance provided by the LSB in managing their legal risks and found the advice provided by the Branch useful in increasing their knowledge of legal risk with respect to policy and legislative product development.

Training is vital to the development of consistent legislative products

In the absence of a specialized degree program in legislative drafting, it is necessary that the LSB provide extensive training to its legislative counsel. It is important that LSB products and advice are consistent in terms of quality and content. This is achieved, in part, through the internal training provided as well as the various tools and processes in place for quality control.

Several training sessions were provided over the evaluation period, covering subjects such as basic legislative drafting and the importance of context in legislative texts, among many others. Mentorship is also an important tool for developing the specialized skills and knowledge of legislative counsel. Many staff members expressed a desire for additional training. According to the 2011 PSES, satisfaction with training is higher within the Branch than within either the Department of Justice or the federal public service overall.

Gaps in client understanding of drafting roles and processes affect efficiency

There is generally high satisfaction with the drafting process and products; however, efficiency is undermined by gaps in client knowledge and understanding. While the LSB makes an effort to provide training to clients , the capacity to offer training has become increasingly challenging due to the greater demands put on LSB staff to meet requests for legislative services. Maintaining the knowledge acquired through training provided by the Branch is also challenged by turnover in client departments, which limits the effectiveness of knowledge transfer. As it becomes more difficult to provide training and to ensure knowledge will be transferred within the client departments, the gap in client knowledge of the drafting process and their role and responsibilities in that process could widen.

The efficiency of the drafting process is also affected by the limited capacity of clients to contribute to the drafting process in both official languages, which eliminates a level of scrutiny by those in the best position to provide direction with respect to policy context and terminology.

Increasing demand challenges future capacity of the LSB to maintain delivery of high quality services

The resources allocated to meet client demand is dependent 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 meet urgent deadlines.

Although the LSB has been meeting the changing demand for services (in terms of volume and complexity), it is becoming increasingly challenging to do so. LSB managers reported that current levels of demand were only being met due to the dedication of LSB staff, who works a considerable amount of overtime. There is concern that, with the anticipated increases in demand, current staffing levels will not suffice in maintaining capacity and quality.

The assessment of efficiency and economy was hampered by a lack of LSB file data

The efficiency and economy analysis was constrained by the lack of information in iCase concerning the level of complexity and legal risk of the Branch 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.

The cost-recovery approach meets LSB’s current financial resource requirements

The mixed model seems to be appropriate in meeting LSB's financial needs. Under the LSB’s mixed financial model, costs incurred from administration, management and harmonization activities are covered under A-base funding.

LSB managers are less satisfied with the administrative processes associated with cost recovery in the mixed financial model. The administrative burden and the lack of training to navigate the invoicing system were mentioned by most key informants. This system is expected to become more efficient over time as managers and clients become more familiar with it and as issues with invoicing are addressed. Recently implemented changes to the cost recovery process could address some of these issues. The effectiveness of this approach will be examined in a future evaluation.

6.2 Recommendations and Management Response

The evaluation findings indicate that the LSB clients are highly satisfied with the work of the Branch. However, its managers and staff, as well as its partners and clients, have all expressed concern that the LSB is experiencing some challenges keeping up with the demand for its services. This section discusses three issues arising from these findings and the recommendations and management responses to these issues are presented.

Improving the Quality of Client Participation in the Legislative Process

The evaluation identified some areas where a better understanding of roles and responsibilities on the part of the client is needed.

The LSB offers some training to clients to provide them with the knowledge required to prepare complete instructions for and participate in the legislative drafting process. However, the Branch’s capacity to provide external training is limited by the increasing volume of high priority files and related workload pressures. Less than half (47%) of surveyed clients reported having received training about legislative principles, processes and options. Those who had, reported the training as being good or very good with respect to content (94%), relevance (90%) and clarity (91%).

The high turnover of staff in many federal departments and agencies further exacerbates the problem as even if staff receives LSB training, knowledge transfer may not occur when they leave, particularly in departments where participation in the legislative drafting process does not happen frequently.

There appears to be a gap between clients’ level of understanding of the drafting process and their essential role and responsibilities within the process. While most surveyed clients (74%) reported having good or very good awareness of legislative principles, processes and options, LSB managers noted that client requests are often not fully prepared.

The implications of clients and key partners not fully understanding the information needed to support the development of legislation are that the requests are often incomplete. Results of the file review indicate that even in that small sample, at least one piece of information was missing from every file.

In turn, this has implications for the efficiency of the drafting process. Absence of critical information may mean that legislative counsel must wait for instructions or commonly, proceed without full instructions (often resulting in considerable duplication of work as instructions are changed or policies are more fully articulated). Given that LSB staff is already working at full capacity, opportunities to reduce unnecessary or duplicative work must be sought.

It is recognized that in the current fiscal climate, the LSB cannot be expected to train all clients. However, there may be other ways the LSB can improve the efficiency and effectiveness of clients’ participation in legislative drafting process.

Recommendation: That the LSB work with clients and key partners to clarify their respective roles and responsibilities in the legislative process with a view to improving the quality and completeness of  requests for legislative services.

Management Response:

Agreed.

The LSB has separately identified the need to provide additional training to client departments and key partners, including to counsel in Departmental Legal Services Units, in order to improve:

  • their understanding of roles and responsibilities in the development of legislative texts;
  • their appreciation of the level of preparation required; and
  • the clients’ capacity to  provide complete instructions to legislative counsel.

The LSB plans to use improved project management tools to clarify roles and responsibilities to participants in the legislative development process.

Moreover, it is expected that these improved project management tools will also aid in improving the quality and completeness of legislative services requests.

Reassignment of Legislative Counsel to Higher Priority Files

To meet increasingly complex drafting requests, and increasing demand overall, the Branch has been working at maximum capacity within current resource levels. LSB managers, DLSU counsel and Central Agency representatives have expressed concern with the LSB’s capacity to maintain the same high quality of services and products in the current and anticipated drafting environment.

Findings from the interviews and case studies suggest that LSB management must often re-allocate legislative counsel to high priority files, which can result in other files having to wait until a full drafting team is available to work on them or having to change the drafting team part way through the file, neither of which is a desirable situation from the perspective of the clients or the legislative counsel. In 10 of the 29 legislative files reviewed there was evidence of a change in legislative counsel at some point during completion of the file. Similarly, in the case studies, all of which were high priority files, the interviewed clients mentioned that many legislative counsel had been reassigned to their file (from others) in order to meet deadlines.

A considerable proportion of the Branch staff is concerned with the practice of being reassigned to different files. Results from the 2011 PSES indicate that 40% of LSB staff reported that the quality of its work suffered as a result of changing priorities. Some key informants noted that making changes to the drafting team during the course of a file can slow its progress, and hence increase its cost. At a time when resources are limited, it is important to ensure that the drafting processes are as efficient and economical as possible.

Recommendation: That the LSB consider options to minimize the reassignment of legislative counsel from one file to another.

Management Response:

Agreed.

Since the LSB does not control the volume of work, the priorities established for that work or unanticipated absences of its legislative counsel, the reassignment of legislative counsel cannot be avoided in all cases.  Nevertheless, it is anticipated that the improved project management tools for legislative projects that are currently in development to implement the LSB’s more formalized process for resource planning will assist client departments to plan more effectively.  As a consequence, it may be possible for the LSB to more frequently avoid re-assignment of legislative counsel due to unforeseen or inadequately planned legislative projects.  If reassignment cannot be avoided, it may still be possible to minimize the impact of the reassignment by ensuring that new counsel have ready access to information that would permit them to continue from where the former counsel left off.

Data Collection to Support the Next Evaluation

Currently, the LSB does not enter much beyond data needed for cost recovery into iCase on bill files because these files are secret.

Another limitation to the iCase data collected by LSB is that file risk and complexity data are not collected.  Starting in September 2013, file risk data will be collected in iCase for Protected B files only as part of the Legal Risk Management Renewal Project.  The LSB currently does not have measures in place for file complexity.

Because of the co-drafting model, the file assignment process is different from that used for advisory and litigation files and does not lend itself as readily to law practice  management measures (appropriate level of counsel assigned to files according  to levels of risk and complexity). 

In this evaluation, there was limited information about trends in legislative drafting other than the opinions of key informants.  It would be helpful in the next evaluation of LSB if there were objective information about the level of legal risk and complexity of all LSB drafting files.

Recommendation: That the LSB consider options to collect file risk and complexity information on all drafting files to support future evaluations of the LSB.

Management Response:

Agreed.

As secret information is not able to be recorded in iCase, the LSB will continue to maintain separate records respecting file risk for its secret files. 

The LSB will explore a means by which to gather information about file complexity for its legislative drafting files.

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