Delegated legislature

… 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)
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
a. in the drafting 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. [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]
Statutory Instruments Act , R.S.C. 1985, c. S-22, s. 19.
Bourinot , 2 nd ed., pp. 332-3, 808-10.
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.
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.
War Measures Act , S.C. 1914, c. 2, s. 6.
Mallory , pp. 462-3. See also Dawson’s The Government of
Canada , p. 224.
Debates , February 9, 1943, p. 296.
Debates , May 31, 1950, p. 3039. See also Regulations Act ,
S.C. 1950, c. 50.
See Special Committee on Procedure and Organization,
Fifteenth Report, Journals , December 14, 1964, p. 988.
Journals , September 30, 1968, p. 82.
Journals , October 22, 1969, pp. 1411-508.
Debates , June 16, 1970, pp. 8155-6.
Statutory Instruments Act , S.C. 1970-71-72, c. 38, s. 26.
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.
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).
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).
Statutory Instruments Act , R.S.C. 1985, c. S-22, s. 2.
Statutory Instruments Act , R.S.C. 1985, c. S-22, ss. 11(1), 19.
Statute Revision Act , R.S.C. 1985, c. S-20, s. 19(3).
Standing Order 108(4)( c).
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).
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).