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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.
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