House of Commons Procedure and Practice
Edited by Robert Marleau and Camille Montpetit
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17. Delegated Legislation

… the central problem relating to legislative review of executive and administrative law-making is the degree to which Parliament should involve itself in attempting to influence and control the course of administration. If Parliament goes too far into the substance of day-to-day administration, it defeats many of the underlying reasons for delegating powers to make laws in the first place… .

Special Committee on Statutory Instruments, Third Report
(Journals, October 22, 1969, p. 1482)

S

ome acts of Parliament delegate to Ministers, departments, agencies, boards or other authorities the power to make and apply subordinate legislation described only in general terms in the acts. Delegated legislation is a term used to describe these regulations, orders, rules, by-laws and other instruments. Parliament scrutinizes most delegated legislation to ensure that their provisions do not exceed the powers approved by Parliament itself.

This responsibility to scrutinize delegated legislation has been assigned to the Standing Joint Committee for the Scrutiny of Regulations. In addition to the terms of reference set out by the House itself, this Committee’s mandate is in part described by an act of Parliament. [1]  Its activities sometimes lead to the invocation of special procedures in the House when the Committee makes a report to the House advocating the revocation of a regulation.

This chapter discusses the mandate of the Standing Joint Committee for the Scrutiny of Regulations and the procedures the House follows to adopt or reject a report recommending the revocation of a statutory instrument.

Historical Perspective

Systematic parliamentary scrutiny of delegated legislation is a relatively modern phenomenon. In the early years of Confederation, parliamentary scrutiny consisted of addresses for papers whereby Parliament obtained the information it desired, and on which it could act if it chose to. [2]  Perhaps this lack of regularized oversight was understandable since, as one expert put it, “with the exception of the wartime period 1914-19 it could not be said that before 1939 the scope of the activities of the federal government was such that Parliament lacked adequate time to act as a watch-dog of the executive.” [3]  This is not to say that the quantity of delegated legislation was low. Indeed, the number of regulations and orders was sufficiently large to warrant the publication in 1889 of The Consolidated Orders in Council of Canada, which ran to two volumes and 1,126 pages. [4]  In 1914, Parliament passed the War Measures Act, 1914, one of the most extreme examples of a statute delegating legislative authority to Cabinet. This Act empowered the Governor in Council to proclaim a state of “real or apprehended war, invasion or insurrection” and “to make from time to time such orders and regulations, as he may by reason of the existence of real or apprehended war, invasion or insurrection, deem necessary or advisable for the security, defence, peace, order and welfare of Canada”. [5]  At the outbreak of World War II, again the volume of decisions that had to be made in a timely manner was considerable and as a result, Ministers, government departments, boards and crown agencies were given increasing authority to make regulatory decisions. [6]  It was during this period that a suggestion was first made that since the role of Parliament was to support and control the executive in order to keep it responsible, Orders in Council having a legislative effect should be regularly tabled in the House and referred to a parliamentary committee for scrutiny. [7] 

The postwar years saw a growth in government and a steady escalation in the use of Orders in Council to regulate public affairs. Although the practice of tabling regulations continued after the War, there was much criticism of “government by Order in Council.” In 1950, Parliament adopted the Regulations Act, which decreed that all “orders, regulations and proclamations made or issued in the exercise of legislative powers delegated by Parliament” would be systematically and uniformly published and tabled in the House. [8]  While regulations and orders were then being examined by the Privy Council Office for uniformity and clarity, the Regulations Act did not contain any provision for holding the executive accountable to Parliament for the subordinate laws it had made.

In 1964, the Special Committee on Procedure and Organization recommended the establishment of a parliamentary committee to review regulations made as a result of delegated legislative power and to report to Parliament any regulations or instruments which the Committee believed exceeded the authority delegated by statute. [9]  However, no action was taken on this recommendation. In 1968, the Special Committee on Statutory Instruments was mandated to “report on procedures for the review of this House of instruments made in virtue of any statute of the Parliament of Canada”. [10]  After an extensive examination of the Regulations Act and scrutiny procedures in other Commonwealth Parliaments, the Committee presented its Third Report in October 1969. [11]  Reiterating the recommendation that a parliamentary committee be established to scrutinize delegated legislation, it also advocated many amendments to the Regulations Act and new procedures for the drafting and publication of regulations. In 1970, the government announced its proposed course of action to respond to the report: the replacement of the Regulations Act by the Statutory Instruments Act, new Cabinet directives for the drafting and publication of regulations, and amendments to the Standing Orders for the establishment of a scrutiny committee. [12] 

Standing Joint Committee for the Scrutiny of Regulations

In 1971, pursuant to the Statutory Instruments Act, [13]  the House and the Senate established the Standing Joint Committee for the Scrutiny of Regulations. [14]  It sat a few times between 1973 and 1974 for organizational purposes and began to scrutinize statutory instruments in earnest in 1974 during the First Session of the Thirtieth Parliament (September 1974 to October 1976). [15] 

Mandate

The Committee’s mandate is defined by the Statutory Instruments Act, the Statute Revision Act and the Standing Orders. Pursuant to the Statutory Instruments Act, the Committee can scrutinize any statutory instrument made on or after January 1, 1972. [16]  A statutory instrument is “any rule, order, regulation, ordinance, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution or other instrument issued, made or established … in the execution of a power conferred by or under an Act of Parliament. …” [17]  The Statutory Instruments Act further requires that regulations (with certain exceptions) be published in the Canada Gazette and referred to the parliamentary committee charged with the scrutiny of delegated legislation. [18] 

The Statute Revision Act authorizes the Committee to scrutinize any regulation found in the 1978 Consolidated Regulations of Canada or other Consolidated Regulations prepared pursuant to that Act, even if that regulation were made prior to the coming into force of the Statutory Instruments Act in 1972. [19]  The Standing Orders expand on the mandates found in these two Acts by authorizing the Committee to examine any other matter referred to it by both Houses. [20] 

Since 1979, the House and the Senate have routinely renewed at the beginning of each session an additional order of reference authorizing the Committee to:

… study the means by which Parliament can better oversee the government regulatory process and in particular to enquire into and report upon:
  1. the appropriate principles and practices to be observed
    1. in the drafting powers enabling delegates of Parliament to make subordinate laws;
    2. in the enactment of statutory instruments;
    3. in the use of executive regulation — including delegated powers and subordinate laws;
    and the manner in which parliamentary control should be effected in respect of the same;
  2. the role, functions and powers of the Standing Joint Committee for the Scrutiny of Regulations. [21] 

Membership

The Standing Joint Committee for the Scrutiny of Regulations is composed of eight Senators and a proportionate number of Members of the House. [22]  There are two Joint Chairs. Traditionally, one Joint Chair has been from the Senate representing the government party and one Joint Chair has been from the House representing the Official Opposition. [23]  The Committee’s Vice-Chair is usually a Member of the House from the government benches.

Powers

The Committee enjoys the same powers other standing committees have. It may sit while the House is sitting [24]  and when the House stands adjourned; print papers and evidence; send for persons, papers and records; and delegate to a subcommittee all or any of its powers (except the power to report directly to the House). It may also table reports in the House and request government responses to them. [25]  In addition, the Committee has the “power to engage the services of such expert staff, and such stenographic and clerical staff as may be required.” [26]  Finally, the Committee has the power to initiate the revocation of a statutory instrument. [27]  This power is discussed in greater detail below.

Review Criteria

The Committee reviews only matters of legality and the procedural aspects of regulations — their merits and the policies they reflect are disregarded. [28] 

The Committee reviews all statutory instruments referred to it on the basis of 13 criteria which it provides to both Houses at the beginning of each session in its first report. [29]  The criteria found in the report are as follows: [30] 

Your Committee informs both Houses of Parliament that the criteria it will use for the review and scrutiny of statutory instruments are the following:
Whether any regulation or statutory instrument within its terms of reference, in the judgement of the Committee,
  1. is not authorized by the terms of the enabling legislation or has not complied with any condition set forth in the legislation; [31] 
  2. is not in conformity with the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights; [32] 
  3. purports to have retroactive effect without express authority having been provided for in the enabling legislation; [33] 
  4. imposes a charge on the public revenues or requires payment to be made to the Crown or to any other authority, or prescribes the amount of any such charge or payment, without express authority having been provided for in the enabling legislation; [34] 
  5. imposes a fine, imprisonment or other penalty without express authority having been provided for in the enabling legislation;
  6. tends directly or indirectly to exclude the jurisdiction of the courts without express authority having been provided for in the enabling legislation;
  7. has not complied with the Statutory Instruments Act with respect to transmission, registration or publication;
  8. appears for any reason to infringe the rule of law; [35] 
  9. trespasses unduly on rights and liberties; [36] 
  10. makes the rights and liberties of the person unduly dependent on administrative discretion or is not consistent with the rules of natural justice; [37] 
  11. makes some unusual or unexpected use of the powers conferred by the enabling legislation; [38] 
  12. amounts to the exercise of a substantive legislative power properly the subject of direct parliamentary enactment; [39] 
  13. is defective in its drafting or for any other reason requires elucidation as to its form or purport. [40]

The Committee’s scrutiny criteria are very similar to those used by the Clerk of the Privy Council to verify proposed regulations [41]  and those recommended by the Special Committee on Statutory Instruments in 1969. [42] 

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, [43]  and no such procedure was provided for in the Statutory Instruments Act. As a result, requests made by the Committee 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 in the House and move a motion of concurrence in them. [44] 

In 1985, the Committee approached the Special Committee on the Reform of the House of Commons with recommendations regarding the disallowance of statutory instruments. [45]  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.” [46]  In its response to the recommendation, the government proposed an alternative, the power to revoke by House Order. [47]  This was agreed to by the House in 1986 by means of amendments to the Standing Orders. [48]  The House now has procedures which allow it to adopt or reject a report presented by the Committee that advocates the revocation of a statutory instrument because it is not in keeping with the intentions of the Act from which it is derived. The government also made a policy commitment to “consider itself bound by any such report of the Committee” and would therefore follow through with the revocation. [49] 

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 make a report to the House on the matter. Such a report must contain only a resolution which, if concurred in, results in a House Order to the government to revoke an offending regulation or statutory instrument. [50]  One report is needed for each regulation or statutory instrument for which the Committee is seeking to revoke by House Order, but only one such report may be received in any given sitting of the House. [51] 

When this kind of report is presented, the Member presenting it must advise the House of its nature, indicate which regulation or statutory instrument the Committee wishes revoked and state that the relevant text of the regulation or statutory instrument in question is included in the report. [52] 

Once such a report has been presented in the House, notice of a motion for concurrence in the report is automatically placed on the Notice Paper by the Clerk of the House in the name of the Member who presented the report. [53]  Only one notice of motion for concurrence in the report may be placed on the Notice Paper for each report of this nature. After 48 hours, the notice of motion is transferred to the Order Paper under the rubric “Motions”.

Concurrence in the Report

The motion for concurrence in the report may either be automatically adopted or disposed of after consideration.

Automatic Adoption

The Standing Orders provide that a motion for concurrence in a report is deemed moved and adopted on the fifteenth sitting day after it first appears on the Order Paper (unless a Minister requests that it be debated). [54]  The motion is deemed moved and adopted just before the House adjourns on that sitting day, and automatically results in an Order of the House to the responsible authority (usually the Governor in Council) to revoke the subordinate legislation in question. [55]  If the House adjourns prior to the ordinary hour of daily adjournment, the report is still deemed adopted. [56] 

Consideration of the Concurrence Motion

If requested by a Minister, the concurrence motion is set down for consideration. In a marked departure from the usual practices of the House, the Standing Orders provide that such a concurrence motion may only be called for consideration by a Minister (any Minister), and that any Member can move the motion on behalf of its sponsor. [57]  Several unique conditions apply to the manner in which the motion is taken up and disposed of.

First, the Minister must call for its consideration within 15 sitting days of the notice for concurrence in the report appearing on the Order Paper by giving at least 48 hours’ written notice. [58]  Once this requirement is fulfilled, notice of the debate is immediately placed on the Order Paper. [59]  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. [60]  The debate must, however, take place by the end of the fifteenth sitting day or the report is automatically deemed adopted. Thus, the time frame for holding the debate varies considerably depending on when the fifteenth 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 for concurrence in that report may be placed on the Order Paper, the presentation of several reports on successive days can result in more than one concurrence motion being considered on the same Wednesday. The sequence for consideration is determined by a Minister and all concurrence motions are grouped for debate but voted on seriatim. [61] 

Whether one or several such concurrence motions 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. [62]  Members participating in the debate may speak only once and for a maximum of 10 minutes. [63]  Points of order about the procedural acceptability of any report may be raised only after the Chair has proposed to the House all questions on the motions for concurrence. If a report is thereafter found to be irreceivable, the motion for concurrence is deemed to have been withdrawn. [64] 

Unless the motion or motions have already been disposed of when the hour set aside for their consideration has elapsed (or slightly earlier so as not to impinge on the time allotted for Members’ Statements), the Speaker is obliged to interrupt the proceedings and put all questions necessary to complete the proceedings on them. [65]  If a concurrence motion is adopted, the resolution as set out in the report concerned becomes an Order of the House that a given instrument of delegated legislation be revoked. If the motion is defeated, the matter is dropped. [66]  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. [67]  Once deferred, divisions cannot be further deferred by a party Whip [68]  and the Standing Orders related to the ordinary hour of daily adjournment are suspended until all questions have been decided. [69]  When deliberations on a motion or motions for concurrence are completed before 2:00 p.m., the Speaker suspends the sitting until that time. [70] 

[1] 
Statutory Instruments Act, R.S.C. 1985, c. S-22, s. 19.
[2] 
Bourinot, 2nd ed., pp. 332-3, 808-10.
[3] 
J.R. Mallory, “Delegated Legislation in Canada: Recent Changes in Machinery,” Economics and Political Science: The Journal of the Canadian Political Science Association, Vol. 19, No. 4 (November 1953), p. 462.
[4] 
Harris H. Bligh, Q.C., The Consolidated Orders in Council of Canada (Ottawa, 1889) (published under the authority and direction of the Governor General). See also the Orders in Council printed in the front of the statutes during this period.
[5] 
War Measures Act, S.C. 1914, c. 2, s. 6.
[6] 
Mallory, pp. 462-3. See also Dawson’s The Government of Canada, p. 224.
[7] 
Debates, February 9, 1943, p. 296.
[8] 
Debates, May 31, 1950, p. 3039. See also Regulations Act, S.C. 1950, c. 50.
[9] 
See Special Committee on Procedure and Organization, Fifteenth Report, Journals, December 14, 1964, p. 988.
[10] 
Journals, September 30, 1968, p. 82.
[11] 
Journals, October 22, 1969, pp. 1411-508.
[12] 
Debates, June 16, 1970, pp. 8155-6.
[13] 
Statutory Instruments Act, S.C. 1970-71-72, c. 38, s. 26.
[14] 
Journals, October 14, 1971, p. 870. This Committee was originally called the Standing Joint Committee on Regulations and Other Statutory Instruments. Its name was changed briefly in 1987 to the Standing Joint Committee for Regulatory Scrutiny (Journals, December 7, 1987, p. 1934; December 18, 1987, p. 2017) before its present name was adopted in June 1988 (Journals, June 2, 1988, p. 2778). The House attempted to amend the Committee’s name to “Standing Joint Committee on Scrutiny of Regulations” in January 1994 (Journals, January 25, 1994, pp. 58-61). However, since the Senate did not also amend its rules to reflect this change, the Committee’s name remained unchanged.
[15] 
The Committee also dealt with other matters. On March 29, 1973, the House referred a document regarding guidelines for the production of papers to the Committee. The Committee was to determine if the guidelines were sound in principle and how they were to be administered (see Journals, p. 226; Debates, pp. 2745-50). This matter, along with the subject matter of a bill respecting access to information, was referred again to the Committee on December 19, 1974 (Journals, p. 231). The Committee reported back to the House on December 16, 1975 (Journals, p. 943).
[16] 
Statutory Instruments Act, R.S.C. 1985, c. S-22, s. 19. On June 29, 1988, the Committee informed the House that it would not be reviewing and scrutinizing statutory instruments made by the Supreme Court of Canada or the Tax Court of Canada because, it felt, statutory courts enjoyed the same degree of independence as that guaranteed superior courts by the Constitution Act, 1867. However, the Committee continues to scrutinize rules of practice and procedures of tribunals whose members are not appointed during good behaviour, e.g., National Transportation Agency and the Labour Relations Board (see Journals, June 29, 1988, p. 3017; Standing Joint Committee for the Scrutiny of Regulations, Minutes of Evidence and Proceedings, June 23, 1988, Issue No. 28, pp. 9-10).
[17] 
Statutory Instruments Act, R.S.C. 1985, c. S-22, s. 2.
[18] 
Statutory Instruments Act, R.S.C. 1985, c. S-22, ss. 11(1), 19.
[19] 
Statute Revision Act, R.S.C. 1985, c. S-20, s. 19(3).
[20] 
Standing Order 108(4)(c).
[21] 
See, for example, Journals, February 16, 1979, p. 382; February 21, 1979, p. 401; November 20, 1979, p. 237; April 24, 1996, p. 254; May 29, 1996, p. 457; November 4, 1997, p. 185. The Committee has reported back twice to the House on this matter— in 1980 and 1984 (Journals, July 17, 1980, pp. 396-467, and April 17, 1984, p. 386). On November 20, 1980, the House referred the subject matter of enabling clauses of the Canada Post Corporation Act to the Committee (Journals, p. 762; see alsoJournals, December 15, 1980, pp. 852-65).
[22] 
Standing Order 104(3)(c) and Senate Rule 86(1)(d). During the Thirty-Fifth Parliament (1994-97), eight Members of the House were appointed to the Committee (see, for example, Journals, March 1, 1996, p. 30). During the First Session of the Thirty-Sixth Parliament (1997-99), 17 Members of the House were appointed to the Committee (see Journals, September 30, 1997, p. 51; October 1, 1998, p. 1109).
[23] 
In 1997, two Members of the Official Opposition declined the nomination to be the Joint Chair of the Committee; a Member of the governing party was subsequently elected Joint Chair. A Member of the Official Opposition was elected to the position of Vice-Chair. See Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, October 23, 1997.
[24] 
In its first report each session, the Committee adds a paragraph to the copy of the report to be tabled in the Senate, requesting the power to sit during sittings of the Senate. Rule 95(4) of the Senate stipulates that a select committee shall not sit during a sitting of the Senate.
[25] 
See, for example, Journals, March 22, 1999, pp. 1644-5; June 7, 1999, p. 2060. When the Committee presents a report to the Senate to which a government response is requested, the Senate copy indicates that this request has been made in the report presented to the House.
[26] 
In 1974, the Committee requested the power to engage additional legal and clerical staff because of the volume of statutory instruments to be scrutinized (Journals, April 30, 1974, p. 151). This request was concurred in on May 3, 1974 (Journals, p. 161) and since then the Committee has routinely sought and obtained a similar power at the beginning of each session even though on the House side the power is provided by Standing Order 120. See, for example, Standing Joint Committee for the Scrutiny of Regulations, First Report, presented to the House on April 24, 1996 (Journals, p. 254).
[27] 
Standing Order 123(1).
[28] 
On various occasions, the Committee has indicated to the House that it would like its mandate expanded to include the scrutiny of the policy or merits of subordinate legislation and the examination of bills after second reading for subordinate lawmaking powers (see, for example, Journals, July 17, 1980, p. 435; April 17, 1984, p. 386; Standing Joint Committee for the Scrutiny of Regulations and Other Statutory Instruments, Minutes of Proceedings and Evidence, April 12, 1984, Issue No. 4, pp. 11, 37, 45).
[29] 
These 13 criteria were first adopted by the House on December 17, 1986 (Journals, p. 337). While the Committee has frequently recommended that the review criteria be written into the Standing Orders, this request has not been agreed to. However, on one occasion, the review criteria were appended to the Debates by means of a motion (see Journals, November 21, 1978, p. 170; Debates, pp. 1323-4).
[30] 
See, for example, Standing Joint Committee for the Scrutiny of Regulations, First Report, presented on April 24, 1996 (Journals, p. 254).
[31] 
When the Committee first began to scrutinize delegated legislation, the members found that regulations did not state precisely the authority pursuant to which they were made. Departments and other authorities now routinely disclose this information. One of the more common defects the Committee now encounters is sub-delegation: "a person to whom legislative powers have been delegated by Parliament may not in turn delegate the exercise of those powers to another person" (see Journals, March 27, 1991, p. 2833; Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, March 26, 1991, Issue No. 25, p. 9).
[32] 
This criterion originated with the passage of the Constitution Act, 1982 (Journals, May 26, 1982, p. 4876; Standing Joint Committee on Regulations and Other Statutory Instruments, Minutes of Proceedings and Evidence, May 20, 1982, Issue No. 64, p. 3) and was cited in the Committee’s disallowance report regarding the Public Works Nuisances Regulations (Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, November 19, 1992, Issue No. 17, pp. 8-22).
[33] 
See, for example, the Committee’s Seventh Report, Journals, June 26, 1986, p. 2433; Standing Joint Committee on Regulations and other Statutory Instruments, Minutes of Proceedings and Evidence, June 26, 1986, Issue No. 33, pp. 4-5.
[34] 
See, for example, the Committee’s Sixth Report, Journals, June 7, 1999, p. 2060.
[35] 
See, for example, the Committee’s Ninth Report, Journals, June 3, 1993, p. 3113; Debates, p. 20293.
[36] 
See, for example, the Committee’s Sixth Report, Journals, November 19, 1992, p. 2078; Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, November 19, 1992, Issue No. 17, pp. 8-22.
[37] 
See, for example, the Committee’s Sixth Report, Journals, April 16, 1986, pp. 1996-7; Standing Joint Committee on Regulations and Other Statutory Instruments, Minutes of Proceedings and Evidence, April 15, 1986, Issue No. 29, pp. 3-5. See also Debates, April 22, 1986, pp. 12507-22.
[38] 
This is the criterion which has been cited most often in reports of the Committee. See, for example, Journals, February 27, 1992, p. 1084; Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, April 9, 1992, Issue No. 11, pp. 6-9.
[39] 
See, for example, the Committee’s Third Report, Journals, April 17, 1984, p. 386; Standing Joint Committee on Regulations and Other Statutory Instruments, Minutes of Proceedings and Evidence,April 12, 1984, Issue No. 4, pp. 12-3.
[40]
Since the Privy Council Office issued guidelines entitled Directives on Submissions to the Governor in Council and Statutory Instruments, this criterion has rarely been cited.
[41] 
See Debates, January 25, 1971, p. 2735. See also Statutory Instruments Act, R.S.C. 1985, c. S-22, s. 3.
[42] 
Journals, October 22, 1969, pp. 1507-8.
[43] 
See Special Committee on Statutory Instruments, Third Report, Journals, October 22, 1969, p. 1508 (Recommendation 21).
[44] 
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.
[45] 
See Special Committee on the Reform of the House, Third Report, pp. 83-4, presented 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).
[46] 
See Special Committee on the Reform of the House of Commons, Third Report, p. 36, presented on June 18, 1985 (Journals, p. 839) (Recommendation 6.1).
[47] 
Journals, October 9, 1985, p. 1082 (page 5 of the Government Response).
[48] 
Journals, February 6, 1986, pp. 1652-3; February 13, 1986, p. 1710.
[49] 
Standing Joint Committee on Regulations and Other Statutory Instruments, Minutes of Proceedings and Evidence, April 15, 1986, Issue No. 29, pp. 11, 22.
[50] 
Since Standing Order 123(1) was amended on December 18, 1987 (Journals, December 18, 1987, p. 2017), the report contains a short text including a “resolution” to revoke a statutory instrument, followed by two appendices. Appendix A reproduces the text of the provision to be disallowed and Appendix B gives the reasons of the Committee in support of disallowance (see, for example, Journals, May 11, 1995, pp. 1462-3; Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence,Thursday, May 11, 1995, Issue No. 20, pp. 9-15).
[51] 
Standing Order 123(2). See Journals, February 11, 1999, p. 1500 and February 12, 1999, p. 1504 for an example of the Committee presenting two disallowance reports on consecutive days in order to comply with this requirement.
[52] 
Standing Order 123(3). 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).
[53] 
Standing Order 123(4).
[54] 
Standing Order 125.
[55] 
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), and the Narcotic Control Regulations and the Food and Drug Regulations (Journals, March 15, 1999, p. 1614) 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 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).
[56] 
See, for example, Journals, December 12, 1991, p. 938; Debates, pp. 6215-6.
[57] 
Standing Order 124.
[58] 
Standing Orders 54(1) and 124.
[59] 
See, for example, Order Paper, March 17, 1987, p. 8.
[60] 
Standing Order 128(1).
[61] 
Standing Order 127.
[62] 
Standing Orders 126(1) and 128(2).
[63] 
Standing Order 126(1)(a).
[64] 
Standing Order 126(1)(b). In 1987, Speaker Fraser questioned the form of the first disallowance report (Fruit, Vegetables, and Honey Regulations) presented in the House before the concurrence motion was put to the House. In particular, the Speaker advised the House that if it agreed to the concurrence 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 (see 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 (see Journals, December 18, 1987, p. 2017).
[65] 
Standing Order 128(2)(b).
[66] 
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).
[67] 
Standing Order 126(1)(c).
[68] 
Standing Order 126(2). It is, however, permissible for all Whips together to further defer divisions pursuant to Standing Order 45(7).
[69] 
Standing Order 126(3).
[70] 
Standing Order 128(2)(a). A motion to concur in such a committee report has been debated only once, in March 1987. 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, March 18, 1987, p. 610; Debates, pp. 4285-8.

Please note —

As the rules and practices of the House of Commons are subject to change, users should remember that this edition of Procedure and Practice was published in January 2000. Standing Order changes adopted since then, as well as other changes in practice, are not reflected in the text. The Appendices to the book, however, have been updated and now include information up to the end of the 38th Parliament in November 2005.

To confirm current rules and practice, please consult the latest version of the Standing Orders on the Parliament of Canada Web site.

For further information about the procedures of the House of Commons, please contact the Table Research Branch at (613) 996-3611 or by e-mail at trbdrb@parl.gc.ca.