House of Commons Procedure and Practice

Second Edition, 2009

House of Commons Procedure and Practice - 17. Delegated Legislation - Standing Joint Committee for the Scrutiny of Regulations

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 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 of the House of Commons. 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 a permanent reference^{^[21]} 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

a) in the drafting of powers enabling delegates of Parliament to make subordinate laws;

b) in the enactment of statutory instruments;

c) 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.^[22]

Membership

The Standing Joint Committee for the Scrutiny of Regulations is composed of eight Senators and a proportionate number of Members of the House.^{^[23]} 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.^{^[24]} This longstanding practice was codified in November 2002^{^[25]} and amended in October 2004.^{^[26]} The Standing Orders now provide that the Joint-Chair acting on behalf of the House shall be a Member of the Official Opposition, the first Vice‑Chair shall be a Member from the government benches and the second Vice‑Chair shall be a Member of an opposition party other than the Official Opposition.^{^[27]}

Powers

The Committee enjoys the same powers as other standing committees. It may sit while the House is sitting^{^[28]} 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 present reports to the House and request government responses to them.^{^[29]} 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”.^{^[30]} Finally, the Committee has the power to initiate the revocation of a statutory instrument.^{^[31]} 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.^{^[32]}

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.^{^[33]} The criteria found in the report are as follows:^{^[34]}

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;^[35]

2. is not in conformity with the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights;^[36]

3. purports to have retroactive effect without express authority having been provided for in the enabling legislation;^[37]

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;^[38]

5. imposes a fine, imprisonment or other penalty without express authority having been provided for in the enabling legislation;^[39]

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;^[40]

9. trespasses unduly on rights and liberties;^[41]

10. makes the rights and liberties of the person unduly dependent on administrative discretion or is not consistent with the rules of natural justice;^[42]

11. makes some unusual or unexpected use of the powers conferred by the enabling legislation;^[43]

12. amounts to the exercise of a substantive legislative power properly the subject of direct parliamentary enactment;^[44]

13. is defective in its drafting or for any other reason requires elucidation as to its form or purport.^[45]

The Committee’s scrutiny criteria are very similar to those used by the Clerk of the Privy Council to verify proposed regulations,^{^[46]} and those recommended by the Special Committee on Statutory Instruments in 1969.^{^[47]}

[13] 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. Other name changes followed in December 1987 (Journals, December 7, 1987, p. 1934; December 18, 1987, p. 2017), in June 1988 (Journals, June 2, 1988, p. 2778) and in January 1994 (Journals, January 25, 1994, pp. 58‑61).

[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 (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. 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 (Journals, June 29, 1988, p. 3017; Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, June 23, 1988, Issue No. 28, pp. 9‑10).

[17] Statutory Instruments Act, R.S. 1985, c. S‑22, s. 2.

[18] Statutory Instruments Act, R.S. 1985, c. S‑22, ss. 11(1) and 19.

[19] Statute Revision Act, R.S. 1985, c. S‑20, s. 19(3).

[20] Standing Order 108(4)(b). For example, 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 also Journals, December 15, 1980, pp. 852‑65.

[21] See, for example, the Committee’s First Report, presented to the House and concurred in on October 21, 2004 (Journals, pp. 130, 132), as well as the Committee’s First Report, presented to the House and concurred in on May 11, 2006 (Journals, p. 164). On one occasion, the Committee’s First Report was concurred in on a recorded division (Journals, February 16, 2000, pp. 917‑8).

[22] The Committee has reported back to the House on a number of occasions on the role, functions and powers of the Committee. See, for example, the Fourth Report of the Standing Joint Committee on Regulations and Other Statutory Instruments, presented to the House on July 17, 1980 (Journals, pp. 396‑467), the Committee’s Third Report, presented to the House on April 17, 1984 (Journals, p. 386), as well as the Second Report of the Standing Joint Committee for the Scrutiny of Regulations, presented to the House on April 8, 2003 (Journals, p. 664), in which the Committee noted the divergence of rules and practices of the Senate and the House of Commons as they related to the role, functions and powers of the Joint Committee.

[23] Standing Order 104(3)(b); Senate Rule 86(1)(d). The membership of the Committee varies from one Parliament to the next: during the Thirty‑Fifth Parliament (January 1994 to April 1997), eight Members of the House were appointed to the Committee (see, for example, Journals, March 1, 1996, p. 30), while during the Thirty‑Sixth (September 1997 to October 2000) and Thirty‑Seventh (January 2001 to May 2004) Parliaments, 17 Members of the House were appointed to the Committee. See, for example, Journals, September 30, 1997, p. 51; October 1, 1998, p. 1109. Since the early days of the Thirty‑Eighth Parliament, 12 Members of the House have been appointed to the Committee. See, for example, Journals, October 7, 2004, pp. 57‑8; April 26, 2006, pp. 91‑2; October 30, 2007, pp. 110‑1; December 2, 2008, pp. 91‑2.

[24] In 1997, an exception was agreed to in order to allow a Member with considerable experience on the Committee to take the Chair. Two Members of the Official Opposition declined the nomination to be the Joint-Chair of the Committee, and a Member of the governing party was elected Joint-Chair. A Member of the Official Opposition was subsequently elected to the position of Vice‑Chair. See Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, October 23, 1997, Issue No. 1.

[25] Journals, November 5, 2002, pp. 162‑4.

[26] See the Eighth Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on October 22, 2004 (Journals, p. 136).

[27] Standing Order 106(2).

[28] In its first report each session, the Committee adds a paragraph to the copy of the report to be presented 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.

[29] See, for example, Journals, June 7, 1999, p. 2060; June 3, 2002, p. 1459; November 7, 2003, p. 1257. 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.

[30] 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, the First Report of the Standing Joint Committee for the Scrutiny of Regulations, presented to the House and concurred in on November 21, 2007 (Journals, pp. 186‑7).

[31] Standing Order 123(1).

[32] 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 on Regulations and Other Statutory Instruments, Minutes of Proceedings and Evidence, April 12, 1984, Issue No. 4, pp. 11, 37, 45.

[33] The House first adopted these 13 criteria on December 17, 1986 (Journals, p. 337). While the Committee has frequently recommended that the review criteria be written into the Standing Orders, the House has not agreed to this request. However, on one occasion, the review criteria were appended to the Debates by means of a motion (Journals, November 21, 1978, p. 170, Debates, pp. 1323‑4).

[34] See, for example, the First Report of the Standing Joint Committee for the Scrutiny of Regulations, presented to the House and concurred in on November 21, 2007 (Journals, pp. 186‑7).

[35] 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 subdelegation: “a person to whom legislative powers have been delegated by Parliament may not in turn delegate the exercise of those powers to another person” (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).

[36] 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).

[37] See, for example, the Committee’s Seventh Report, presented to the House on June 26, 1986 (Journals, 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.

[38] See, for example, the Committee’s Sixth Report, presented to the House on June 7, 1999 (Journals, p. 2060).

[39] See, for example, the Committee’s Second Report, presented to the House on May 9, 2005 (Journals, p. 720). See also the Committee’s Fourth Report, presented to the House on February 7, 2007 (Journals, p. 979).

[40] See, for example, the Committee’s Ninth Report, presented to the House on June 3, 1993 (Journals, p. 3113, Debates, p. 20293).

[41] See, for example, the Committee’s Sixth Report, presented to the House on November 19, 1992 (Journals, p. 2078); Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, November 19, 1992, Issue No. 17, pp. 8‑22.

[42] See, for example, the Committee’s Sixth Report, presented to the House on April 16, 1986 (Journals, 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, and the Second Report of the Committee, presented to the House on June 7, 2001 (Journals, p. 505).

[43] 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. In April 2007, a Member rose on a point of order concerning the admissibility of subclause 13(1) of Bill C‑52, An Act to implement certain provisions of the budget tabled in Parliament on March 19, 2007. He asked the Chair to strike the provision which amends paragraph 122.1(2)(b) of the Income Tax Act from the Bill because, if enacted, it would regulate the taxation of existing income trusts during a transitional period by providing for interim taxation rates based on the “Normal Growth Guidelines” issued by the Department of Finance on December 15, 2006. Describing these guidelines as “no more than a press release”, the Member contended that subclause 13(1) of the Bill attempted to exempt from parliamentary scrutiny by the Standing Joint Committee for the Scrutiny of Regulations a measure that was, in all but name, delegated legislation (Debates, April 17, 2007, pp. 8308‑10). After reminding the House that what does or does not fall within the definition of “statutory instrument” is a legal question and not one of procedure, the Speaker ruled that there is no procedural objection to making reference in legislation to documents which are not subject to review by the House or its committees. Whether provisions which do so should be adopted, amended or rejected is ultimately a decision for the House to make (Debates, May 3, 2007, pp. 9047‑8).

[44] See, for example, the Committee’s Third Report, presented to the House on April 17, 1984 (Journals, 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. See also the Committee’s Fourth Report, presented to the House on December 6, 2001 (Journals, p. 926).

[45] 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.

[46] Debates, January 25, 1971, p. 2735. See also the Statutory Instruments Act, R.S. 1985, c. S‑22, s. 3.

[47] Journals, October 22, 1969, pp. 1507‑8.