House of Commons Procedure and Practice

Second Edition, 2009

House of Commons Procedure and Practice - 17. Delegated Legislation - Revocation of a Statutory Instrument

Revocation of a Statutory Instrument

For the first 15 years of its existence, the Committee had statutory power to scrutinize delegated legislation, but no power to revoke a subordinate law. The Special Committee on Statutory Instruments did not propose a general disallowance procedure,^{^[48]} and no such procedure was provided for in the Statutory Instruments Act. As a result, the Committee’s requests to government departments and other authorities to amend or revoke regulations which it felt were ultra vires (beyond legal authority) often produced little or no results. The only recourse the Committee had to publicly discuss these regulations was to present reports to the House and move a motion of concurrence in them.^{^[49]}

In 1985, the Committee approached the Special Committee on the Reform of the House of Commons with recommendations regarding the disallowance of statutory instruments.^{^[50]} The Committee proposed, among other matters, that all subordinate legislation not subject to a statutory affirmative procedure be subject to being disallowed on resolution of either House, and that the executive be barred from remaking any statutory instrument so disallowed for a period of six months from its disallowance. Subsequently, in its Third Report to the House, the Special Committee recommended that “the House of Commons adopt a mandatory procedure for affirming or disallowing delegated legislation and regulations made pursuant to an act of Parliament”.^{^[51]} In its response to the recommendation, the government proposed an alternative, the power to revoke by order of the House.^{^[52]} This was agreed to by the House in 1986 by means of amendments to the Standing Orders.^{^[53]} The government then made a policy commitment to “consider itself bound by any such report of the Committee” and would therefore follow through with the revocation.^{^[54]}

The decision to make the disallowance procedure subject to an order of the House of Commons had two important consequences. The first was that the Senate had no say in the matter, and the second was that it only applied to statutory instruments made by the Governor in Council or by a Minister of the Crown. This was because the procedure relied on resolutions and orders, which are not by their nature binding on those outside the House.^[55] Regulations made by bodies with regulatory authority delegated by Parliament (such as the Canadian Radio‑television and Telecommunications Commission, the National Energy Board, the Canadian Institutes of Health Research, the Canadian Transportation Agency and the Canadian Nuclear Safety Commission) were therefore not subject to disallowance.

The Standing Orders continued in effect, except for some minor wording changes,^{^[56]} until November 2003. In June 2003, Bill C‑205, An Act to amend the Statutory Instruments Act (disallowance procedure for regulations) received Royal Assent.^{^[57]} The Standing Committee on Procedure and House Affairs recommended changes to the Standing Orders to reflect the requirements of the Bill, which were adopted on November 5, 2003.^{^[58]}

Changes to the Statutory Instruments Act (Bill C‑205) remedied the shortcomings identified in 1986 by the Standing Joint Committee for the Scrutiny of Regulations. It provided for a disallowance procedure applying in both the House and the Senate^{^[59]} and made all statutory instruments, not just regulations made by the Governor in Council or by Ministers of the Crown, subject to disallowance. Moreover, these amendments removed the need for a regulation‑making authority to take subsequent action to give effect to an order of the House of Commons, thus eliminating the potential for conflict between Parliament and the executive. The changes to the Statutory Instruments Act give the regulation‑making authority 30 days to repeal a disallowed regulation. Since there is now a statutory obligation imposed on the regulation maker to act on the recommendations, if adopted by both Houses,^{^[60]} failure to do so could result in applications to the courts to compel the regulation maker to carry out his or her statutory obligations.

Report of the Committee

Should the Committee conclude that a regulation or some other statutory instrument is not in keeping with the intentions of an act as passed by Parliament, it may present a report to the House on the matter. Such a report must contain a resolution that all or any portion of the regulation be revoked.^{^[61]} Naturally, the resolution must affect a regulation or statutory instrument under the government’s authority.^{^[62]} One report is needed for each regulation or statutory instrument that the Committee is seeking to revoke by order of the House, but only one such report may be presented to the House in any given sitting of the House.^{^[63]} Furthermore, at least 30 days prior to adopting the report in the Committee, the Committee (in practice, the Joint-Chair) is required to inform both the Minister and the agency concerned that it intends to consider the report.^{^[64]}

When this kind of report is presented, the Member (normally the Joint-Chair) presenting it must first indicate that the report contains a resolution. The Member then identifies the regulation or portion thereof for which revocation is being sought and indicates that the relevant text is included in the report. Finally, the Member indicates that the notification requirements have been met.^{^[65]}

Once such a report has been presented to the House, the Clerk of the House places the resolution on the Notice Paper, in the name of the Member who has presented the report, whether that Member is the Joint-Chair of the Committee or not. The Standing Orders prohibit any notice of motion for concurrence in the report itself from being placed on the Notice Paper.^{^[66]}

Concurrence in the Resolution

The November 2003 amendments enabled the Standing Joint Committee to present a report to the House containing only a resolution that all or any portion of a regulation be revoked. The resolution itself (not a motion for concurrence in the Committee report) is placed on the Notice Paper and is deemed adopted, unless a Minister gives notice of a motion to the effect that the resolution not be adopted. If such notice is given, a specific debate will take place, under the terms enumerated in Standing Orders 126, 127 and 128.^{^[67]}

Automatic Adoption

After 48 hours have passed, the resolution is transferred from the Notice Paper to the Order Paper under the rubric “Motions”. If, on the 15th sitting day after the report was first presented to the House,^{^[68]} no motion standing in the name of a Minister seeking that the resolution not be adopted has appeared on the Order Paper, the resolution is deemed to have been moved and adopted, at the ordinary hour of daily adjournment, and the authority authorized to make the regulation (usually the Governor in Council) must revoke the offending regulation within 30 days of the adoption of the resolution.^{^[69]} If the House adjourns prior to the ordinary hour of daily adjournment on that 15th sitting day, the resolution is still deemed adopted.^{^[70]}

Consideration of the Motion to the Effect that the Resolution Not Be Adopted

If requested by a Minister, the motion to the effect that the resolution not be adopted is set down for consideration. The request must be made in writing at least 48 hours prior to the 15th sitting day after the report is presented to the House.^{^[71]} Once this requirement has been met, notice of the debate is immediately placed on the Order Paper.^{^[72]} The motion is automatically slated for consideration at 1:00 p.m. on the first Wednesday following the expiry of the 48‑hour written notice for consideration.^{^[73]} Thus, the time frame for holding the debate varies considerably depending on when the 15th sitting day falls. Since the debate must be held on a Wednesday, the time frame for the Minister to act could be much shorter than the 15‑day period.

Although only one report may be presented in a sitting and only one motion to the effect that the resolution contained in the report not be adopted may be placed on the Order Paper, the presentation of several reports on successive days can result in more than one non‑concurrence motion being considered on the same Wednesday. The sequence for consideration is determined by a Minister of the Crown and all motions are grouped for debate but voted on seriatim.^{^[74]}

Whether one or several such motions to the effect that a resolution not be adopted are called on a particular Wednesday, only one hour between 1:00 p.m. and 2:00 p.m. is made available for their consideration, and they are the only items of business that can be taken up.^{^[75]} Members participating in the debate may speak only once for a maximum of 10 minutes,^{^[76]} and there is no question‑and‑comment period following these 10‑minute speeches.^{^[77]} Points of order on the procedural admissibility of any Standing Joint Committee report may be raised only after the Speaker has proposed all motions to the House. If a report is thereafter found to be irreceivable, both the resolution based on the report and the corresponding notice of motion are deemed withdrawn.^{^[78]}

Unless the motion or motions have been disposed of before 2:00 p.m. (or slightly earlier so as not to impinge upon the time allotted for Statements by Members), the Speaker is obliged to interrupt the proceedings and put all questions necessary to dispose of the motions before the House.^{^[79]} If requested, recorded divisions are automatically deferred until the ordinary hour of daily adjournment, at which time the bells sound no longer than 15 minutes.^{^[80]} The Standing Orders related to the ordinary hour of daily adjournment are suspended until all questions have been decided.^{^[81]} When deliberations on a motion or motions for non-concurrence are completed before 2:00 p.m., the Speaker suspends the sitting until that time.^{^[82]}

If the motion moved by the Minister is adopted by the House (in other words, if the House agrees with the Minister that the regulation or portion thereof should not be revoked), the resolution is deemed withdrawn from the Order Paper. If, however, the motion moved by the Minister is defeated (in other words, if the House agrees with the Committee that the regulation or portion thereof should be revoked), the resolution is deemed to have been moved and adopted by the House.^{^[83]} The resolution no longer stands on the Order Paper and the authority that is authorized to make the regulation (usually the Governor in Council) must revoke the offending regulation within 30 days of the adoption of the resolution.

The provisions of the Standing Orders relating to revocation have rarely been invoked, either before or after the change in rules that took place in November 2003. From the adoption of the original text in 1986 to December 2008, only 11 reports of the Standing Joint Committee have recommended revocation.^{^[84]} A debate took place in three instances only, which resulted, in every case, in the report being referred back to the Committee for further consideration.^{^[85]}

The House and, more particularly, members of the Standing Joint Committee, have continued, however, to monitor and suggest improvements respecting the study of delegated legislation.^{^[86]}

[48] See the Third Report of the Special Committee on Statutory Instruments, presented to the House on October 22, 1969 (Journals, p. 1508, recommendation 21).

[49] Reform proposals tabled in the House in 1979 included changes to the Standing Orders to increase opportunities to affirm or negative delegated legislation. See Journals, November 23, 1979, p. 260; Position Paper: The Reform of Parliament, pp. 18‑20. Parliament was dissolved, however, before these reforms were discussed in the House.

[50] See the Third Report of the Special Committee on the Reform of the House, pp. 83‑4 (recommendations 1 to 11), presented to the House on June 18, 1985 (Journals, p. 839). Previous to this, the Committee had recommended to the House on various occasions that a disallowance procedure be established. See, for example, Journals, February 3, 1977, p. 407; July 17, 1980, pp. 435‑7; April 17, 1984, p. 386. See also Standing Joint Committee on Regulations and Other Statutory Instruments, Minutes of Proceedings and Evidence, April 12, 1984, Issue No. 4, pp. 45‑7.

[51] See the Third Report of the Special Committee on the Reform of the House of Commons, p. 35‑6 (recommendation 6.1), presented to the House on June 18, 1985 (Journals, p. 839).

[52] Journals, October 9, 1985, p. 1082 (page 5 of the Government Response).

[53] The amendments were tabled on February 6, 1986 (Journals, pp. 1652‑3), and concurred in on February 13, 1986 (Journals, p. 1710). Clarifying changes to these Standing Orders were adopted in 1987. The report was presented to the House on December 7, 1987 (Journals, pp. 1934‑7), and concurred in on December 18, 1987 (Journals, p. 2017).

[54] Standing Joint Committee on Regulations and Other Statutory Instruments, Minutes of Proceedings and Evidence, April 15, 1986, Issue No. 29, pp. 11, 22.

[55] Salembier, P. and Bernhardt, P., “Understanding the Regulation Making Process”, Canadian Parliamentary Review, Vol. 25, No. 1, Spring 2002, p. 18.

[56] See the amendment to Standing Order 123(1) recommended in the Eleventh Report of the Standing Committee on Privileges and Elections, presented to the House on March 19, 1990 (Journals, pp. 1362‑3), and concurred in on April 11, 1990 (Journals, p. 1565). See also the amendments to Standing Orders 123, 125 and 126 tabled as part of a group of Standing Order amendments on March 26, 1991 (Journals, pp. 2801, 2825), and concurred in on April 11, 1991 (Journals, pp. 2929‑30).

[57] Journals, June 19, 2003, p. 940. See also the Statutory Instruments Act, R.S. 1985, c. S‑22, s. 19.1.

[58] See the Fifty‑Third Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on November 5, 2003 (Journals, p. 1237).

[59] In order for a regulation to be revoked, a resolution that all or any portion of the regulation be revoked must be adopted or deemed adopted by each of the two Houses. See the Statutory Instruments Act, R.S. 1985, c. S‑22, s. 19.1.

[60] Statutory Instruments Act, R.S. 1985, c. S‑22, s. 19.1(9).

[61] Prior to the November 2003 changes, if the Standing Joint Committee concluded that a regulation or some other statutory instrument was not in keeping with the intention of the act as passed by Parliament, it presented a report to the House advocating its revocation. The Clerk of the House automatically placed a motion for concurrence in the report on the Notice Paper in the name of the Member presenting the report. Pursuant to the rules then in place, the concurrence motion was either automatically adopted or, if requested by a Minister, set down for consideration. If the motion for concurrence was adopted (by either process), it then became an order of the House to the government to rescind the offending regulation.

[62] Since Standing Order 123(1) was amended on November 5, 2003 (Journals, p. 1237), the report contains a resolution to revoke a statutory instrument, followed by three appendices. Appendix A reproduces the text of the provision to be disallowed, Appendix B sets out the notice of disallowance sent to the Minister pursuant to the Act, and Appendix C gives the reasons of the Committee in support of disallowance. See, for example, the Second Report of the Standing Joint Committee for the Scrutiny of Regulations, presented to the House on May 9, 2005 (Journals, p. 720).

[63] Standing Order 123(3). For an example of a case where the Standing Joint Committee presented to the House two disallowance reports on consecutive days in order to comply with this requirement, see Journals, February 11, 1999, p. 1500; February 12, 1999, p. 1504. The Committee concurred in these two reports at the same time (Minutes of Proceedings, February 11, 1999, Issue No. 18, pp. 1‑2).

[64] Standing Order 123(2).

[65] Standing Order 123(4). See, for example, Debates, February 19, 1987, p. 3584 (Fruit, Vegetables and Honey Regulations); October 10, 1991, p. 3557 (Agriculture Exhibitions Loans Order); November 19, 1991, p. 4987 (Indian Health Regulations); November 19, 1992, p. 13605 (Public Works Nuisances Regulations); May 11, 1995, p. 12445 (National Capital Commission Traffic and Property Regulations); February 11, 1999, p. 11788 (Narcotic Control Regulations); February 12, 1999, p. 11843 (Food and Drug Regulations); June 7, 2001, p. 4751 (Fresh Fruit and Vegetable Regulations); December 6, 2001, p. 7929 (Northwest Territories Reindeer Regulations); May 9, 2005, p. 5815 (Ontario Fishery Regulations, 1989); February 7, 2007, p. 6519 (Ontario Fishery Regulations, 1989).

[66] Standing Order 123(5).

[67] See also the Statutory Instruments Act, R.S. 1985, c. S‑22, s. 19.1(6), (7) and (8).

[68] In May 2004, Standing Order 124 was amended to provide that the resolution to revoke the regulation or a portion thereof would be deemed moved on the 15th sitting day after the report of the Committee was presented to the House, as opposed to the 15th sitting day after the resolution contained in the report was transferred to the Order Paper (Journals, May 13, 2004, pp. 416‑7, Debates, pp. 3115‑6).

[69] Statutory Instruments Act, R.S. 1985, c. S‑22, s. 19.1(9). Sections of the Agriculture Exhibitions Loans Order (Journals, November 18, 1991, p. 677), the Indian Health Regulations (Journals, December 12, 1991, p. 938), the Public Works Nuisances Regulations (Journals, February 1, 1993, p. 2426), the National Capital Commission Traffic and Property Regulations (Journals, June 12, 1995, p. 1709), the Narcotic Control Regulations and the Food and Drug Regulations (Journals, March 15, 1999, p. 1614), the Fresh Fruit and Vegetable Regulations (Journals, October 3, 2001, p. 687) and the Northwest Territories Reindeer Regulations (Journals, February 18, 2002, p. 1034) were revoked without debate. In the case of the Public Works Nuisances Regulations, the statutory instrument in question was revoked before the 15 sitting days had elapsed. The Public Works Nuisances Regulations designated specific areas of Parliament Hill for holding demonstrations and other activities and allowed the Minister of Public Works or a peace officer to prohibit or evict any persons not complying with this order. The Regulations were designed to improve control of disruptive noise during times the House was sitting and to improve control of access to the Parliament Buildings. The Committee objected to these regulations, arguing that they were in breach of the Canadian Charter of Rights and Freedoms. Although the Public Works Minister had assured the Committee that these regulations were not being enforced, only when the disallowance report was tabled in the House of Commons were the regulations revoked. See Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, March 18, 1993, Issue No. 24, p. 8.

[70] For an example of when the House adjourned prior to the ordinary hour of daily adjournment and the report was deemed concurred in, see Journals, December 12, 1991, pp. 938, 940, Debates, pp. 6215‑6, noting especially the remarks of the Speaker.

[71] Standing Orders 54(1) and 124.

[72] See, for example, Order Paper and Notice Paper, February 21, 2007, pp. 27‑8.

[73] Standing Order 128(1).

[74] Standing Order 127.

[75] Standing Orders 126(1) and 128(2).

[76] Standing Order 126(1)(a).

[77] Standing Order 43(1)(c).

[78] Standing Order 126(1)(b). In 1987, Speaker Fraser questioned the form of the first disallowance report (Fruit, Vegetables and Honey Regulations) presented to the House before the motion to concur in the report was put to the House. In particular, the Speaker advised the House that, if it agreed to the motion as written, the House would not be ordering the Ministry to revoke a regulation, but rather would only be agreeing that the Committee could move a motion to revoke a regulation, a mechanism not provided for in the Standing Orders. However, the Chair advised that for this report only, he would accept that concurrence in the report would result in an Order of the House to the Ministry to revoke the regulations. The Chair also requested that the Standing Committee on Elections, Privileges and Procedure look into the ambiguity of the Standing Orders (Debates, March 18, 1987, p. 4285). Standing Order 123(1) was subsequently amended to indicate that the report contain only a resolution which, if adopted, would become an order of the House to revoke a statutory instrument (Journals, December 18, 1987, p. 2017).

[79] Standing Order 128(2)(b).

[80] Standing Order 126(1)(c). Divisions cannot be further deferred unless the Whips of all recognized parties ask the Speaker to do so pursuant to Standing Order 45(7). It is also permissible for the House to further defer divisions by unanimous consent.

[81] Standing Order 126(3).

[82] Standing Order 128(2)(a). On March 18, 1987, a motion to concur in a disallowance report was considered for the first time. After a short debate, an amendment to refer the report back to the Committee for further consideration was adopted. The main motion as amended was then agreed to. The sitting was suspended at 1:25 p.m. See Journals, p. 610, Debates, pp. 4285‑8.

[83] In 1986, the Minister responsible for Regulatory Affairs assured the Committee that votes taken pursuant to Standing Order 126(1) would not be considered matters of confidence in the government. See Standing Joint Committee on Regulations and Other Statutory Instruments, Minutes of Proceedings and Evidence, April 15, 1986, Issue No. 29, p. 27.

[84] See the Third Report of the Committee presented to the House in the Second Session of the Thirty‑Third Parliament (Journals, February 19, 1987, pp. 508‑9); the Second, Third and Sixth Reports of the Committee presented to the House in the Third Session of the Thirty‑Fourth Parliament (Journals, October 10, 1991, p. 468; November 19, 1991, p. 682; November 19, 1992, p. 2078 respectively); the Third Report of the Committee presented to the House in the First Session of the Thirty‑Fifth Parliament (Journals, May 11, 1995, p. 1463); the Third and Fourth Reports of the Committee presented to the House in the First Session of the Thirty‑Sixth Parliament (Journals, February 11, 1999, p. 1500; February 12, 1999, p. 1504 respectively); the Second and Fourth Reports of the Committee presented to the House in the First Session of the Thirty‑Seventh Parliament (Journals, June 7, 2001, p. 505; December 6, 2001, p. 926 respectively); the Second Report of the Committee presented to the House in the First Session of the Thirty‑Eighth Parliament (Journals, May 9, 2005, p. 720); and the Fourth Report of the Committee presented to the House in the First Session of the Thirty‑Ninth Parliament (Journals, February 7, 2007, p. 979). In every case, except the first one and the last two, the recommendation of the Committee was agreed to.

[85] In the first case, the Third Report of the Committee was presented to the House on February 19, 1987 (Journals, pp. 508‑9) and, pursuant to the Standing Orders then in place, a motion for concurrence in the report was placed on the Notice Paper in the name of the Joint-Chair of the Committee (Notice Paper, February 20, 1987, p. I). Debate on the motion for concurrence then occurred (following remarks from the Speaker expressing concern on the form of the report) on Wednesday, March 18, 1987, for a period of approximately 25 minutes. The report was referred back to the Standing Joint Committee for further consideration and the sitting was suspended until 2:00 p.m. that day (Journals, March 18, 1987, p. 610). The matter was not resubmitted to the House. In the second case, the Second Report of the Committee was presented to the House on May 9, 2005 (Journals, p. 720) and, pursuant to the (revised) Standing Orders then in place, the Minister of Fisheries and Oceans gave notice of a motion to the effect that the resolution not be adopted and that the matter be referred back to the Standing Joint Committee (Notice Paper, June 6, 2005, p. VI). Debate on the motion took place on Wednesday, June 8, 2005, between 1:00 and 2:00 p.m., for the full hour. The motion was adopted on a recorded division (Journals, June 8, 2005, pp. 849‑50, 853‑4). In the third case, the Fourth Report of the Committee was presented to the House on February 7, 2007 (Journals, p. 979), and the Minister of Fisheries and Oceans again gave notice of a motion to the effect that the resolution not be adopted and that the matter be referred to the Standing Joint Committee (Notice Paper, February 20, 2007, p. III). Debate on the motion took place on Wednesday, February 21, 2007, between 1:00 and 2:00 p.m., for the full hour. Pursuant to an Order adopted during the debate, the vote on the motion was deferred to the expiry of the time provided for Government Orders. The motion was adopted on a recorded division (Journals, February 21, 2007, pp. 1041‑2, 1046‑8).

[86] See, for example, the Fourth Report of the Special Committee on the Modernization and Improvement of the Procedures of the House of Commons, presented to the House on June 12, 2003 (Journals, p. 915), in which the Committee encouraged “the development of systems to ensure that the House and Members are made aware of the pre‑publication of draft regulations”. Also, in its Third Report, presented to the House on October 26, 2006 (Journals, p. 586), the Standing Joint Committee for the Scrutiny of Regulations urged regulation‑making authorities to be more vigilant of statutory tabling requirements and to review their internal procedures to ensure that these requirements are not overlooked or ignored.