… 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:
- the appropriate principles and practices to be observed
- in the drafting powers enabling delegates of Parliament to make subordinate laws;
- in the enactment of statutory instruments;
- 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;
- 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,
- is not authorized by the terms of the
enabling legislation or has not complied with any condition set forth in the
legislation; [31]
- is not in conformity with the
Canadian Charter of Rights and Freedoms or the Canadian Bill of
Rights; [32]
- purports to have retroactive effect
without express authority having been provided for in the enabling
legislation; [33]
- 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]
- imposes a fine, imprisonment or other
penalty without express authority having been provided for in the enabling
legislation;
- tends directly or indirectly to
exclude the jurisdiction of the courts without express authority having been
provided for in the enabling legislation;
- has not complied with the Statutory
Instruments Act with respect to transmission, registration or
publication;
- appears for any reason to infringe
the rule of law; [35]
- trespasses unduly on rights and
liberties; [36]
- makes the rights and liberties of
the person unduly dependent on administrative discretion or is not consistent
with the rules of natural
justice; [37]
- makes some unusual or unexpected use
of the powers conferred by the enabling
legislation; [38]
- amounts to the exercise of a
substantive legislative power properly the subject of direct parliamentary
enactment; [39]
- 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]