Parliament increasingly delegates legislative authority to the Executive branch of government through enabling statutes that allow a government body to make rules and regulations. To ensure that these government bodies remain accountable to Parliament, the Committee reviews using the following criteria:
Whether any regulation or statutory instrument within its terms of reference, in the judgement of the Committee:
1. is not authorised by the terms of the enabling legislation or has not complied with any condition set forth in the legislation;
2. is not in conformity with the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights;
3. purports to have retroactive effect without express authority having been provided for in the enabling legislation;
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;
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;
9. trespasses unduly on rights and liberties;
10. makes the rights and liberties of the person unduly dependent on administrative discretion or is not consistent with the rules of natural justice;
11. makes some unusual or unexpected use of the powers conferred by the enabling legislation;
12. amounts to the exercise of a substantive legislative power properly the subject of direct parliamentary enactment;
13. is defective in its drafting or for any other reason requires elucidation as to its form or purport.
These criteria deal with matters of legality and the procedural aspects of regulations, as opposed to the merits of particular regulations or the policy they reflect.
Section 19 of the Statutory Instruments Act authorizes the Committee to review “[e]very statutory instrument issued, made or established after 31 December 1971, other than an instrument the inspection of which and the obtaining of copies of which are precluded by any regulations made pursuant to paragraph 20(d).”In addition, since 1980 the Senate and the House of Commons have renewed an order of reference at the beginning of each session 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;
2. the role, functions and powers of the Standing Joint Committee for the Scrutiny of Regulations.
Taken together, the statutory and sessional references of the Committee afford it a broad jurisdiction to enquire into and report on most aspects of the federal regulatory process.
Prior to the Second World War there was no general statutory requirement that subordinate legislation be either published or tabled in Parliament. The great volume of wartime regulations made it necessary for the government to table in the House and to publish most regulations dealing with the war, and the practice continued after the war. While there were suggestions that regulations should be referred to a committee of the House so that there would be exercise of control over the executive, and observance of the principle of the supremacy of Parliament, the matter was not pursued.
The first Regulations Act was introduced in 1950. It provided for the systematic publication and tabling of all orders having legislative effect, whether emanating from the Governor in Council, from Ministers, or from other Crown agencies. No provision was made for parliamentary scrutiny by the Regulations Act, on the ground that most subordinate legislation received careful scrutiny before the fact. The matter did not surface again until 1964, when the Special Commons Committee on Procedure and Organization recommended the establishment of a standing committee on delegated legislation which would report to the House any abuse of delegated legislative power, but whose terms of reference should exclude it from considering the merits of or the policy behind delegated legislation. Again, the proposal for a scrutiny committee was not followed up. Instead in 1968, the House set up a Special Committee to consider and report on “procedures for the review by this House of instruments made in virtue of any statute of the Parliament of Canada.” The Committee (known as the MacGuigan Committee, the Hon. Mark MacGuigan being its chairman) reported to the House on October 22, 1969.
The response to the recommendations of the MacGuigan Committee was the present Statutory Instruments Act. The Bill was described by the government of the day as “an attempt to restore a measure of parliamentary control over the executive and to redress the balance in the relationship between the individual and the state.” One of the main features of the Bill was that most statutory instruments would stand referred to a parliamentary scrutiny committee.
In the end it was decided that the scrutiny committee should be a joint committee of both Houses, and the Joint Committee began to function in November of 1974.
As this is a joint committee, there are committee clerks assigned from both the Senate and the House of Commons and they are referred to as joint clerks. The joint clerks of the joint committee are non-partisan and independent officers who serve all members of the committee and representatives of all parties equally. The joint clerks perform their duties and responsibilities under the direction of the joint committee and the joint Chairs. As experts in the rules of the Senate and the House of Commons, the joint clerks may be requested to give advice to the joint Chairs and members of the committee should a question of procedure arise. The joint clerks coordinate, organize and serve as liaison officers for the joint committee and as such will be in frequent contact with members’ staff.
The committee assistants from the Senate and the House of Commons provide a wide range of specialized administrative services for, in particular, the organization of committee meetings and the publishing of documents on the committees’ website. The committee assistants work with the joint clerks to meet the needs of the joint committee.
The Library of Parliament’s analyst provides authoritative, substantive, and timely research, analysis and information to all members of the Committee. They are part of the Committee’s institutional memory and are a unique resource for parliamentarians. Supported by research librarians, analyst works individually or in multidisciplinary teams.
Analysts can prepare: briefing notes on the subjects being examined; detailed study plans; lists of proposed witnesses; analyses of an issue with a list of suggested questions; background papers; draft reports; news releases; and/or formal correspondence. Analysts with legal training can assist the Committee regarding any substantive issues that may arise during the consideration of bills.
OTHER RESOURCE AVAILABLE TO THE COMMITTEE
The Parliamentary Budget Officer (PBO)
The Parliamentary Budget Officer (PBO) has a mandate to support Parliament and parliamentarians in holding the government to account for the good stewardship of public resources. The Federal Accountability Act (FedAA) of 2006 mandates the PBO to provide independent analysis to the Senate and to the House of Commons (HOC) regarding the state of the nation’s finances, the government estimates and trends in the national economy.
The enabling legislation also provides the PBO with a mandate to provide analytical support to any committee during its consideration of the estimates, as well as provide advice to any Member of Parliament regarding the financial cost of proposals.
Each year, the Standing Joint Committee reviews hundreds of statutory instruments. The legal advisors to the Committee conduct the initial review of instruments and bring non-conforming instruments to the attention of the Committee. Where a problem is found, the Committee’s staff writes to the department responsible for the regulation, identifying the issue, requesting its position and requesting an amendment to rectify the problem, where appropriate.
The Committee attempts to resolve problems found in regulations by corresponding with the ministry or agency responsible for the regulation. If the Committee feels an impasse has been reached in its negotiations with a department, it will then write to the Minister in question in an attempt to resolve the issue. Only when this process does not yield a satisfactory solution will the Committee consider making a report to both Houses, and possibly recommending disallowance.
Recent reports of the Standing Joint Committee include the following:
Disallowance is one of the traditional means at the disposal of Parliaments to control the making of delegated legislation. Generally, this term refers to any procedure whereby parliamentarians are given an opportunity to reject a subordinate law made by a delegate of Parliament. Until 1986, no general disallowance procedure was in place in Canada and only a few individual statutes provided that instruments made under their authority could be disallowed or by the Houses.
The disallowance power was put in place through amendments to the Standing Orders of the House of Commons in 1986. At the time, it applied only in the House of Commons and not in the Senate, and was limited to those statutory instruments that were made by the Governor in Council or by Ministers of the Crown. This was changed in 2003 when Parliament enacted added section 19.1 to the Statutory Instruments Act. The power of disallowance now applies to all regulations that are referred to the Committee. Both the Senate and the House of Commons must agree to a disallowance resolution for that resolution to be effective.
Section 19.1 sets out the procedure for the disallowance of a regulation. Only the Standing Joint Committee can initiate disallowance. In any case where the Committee is of the view that a regulation, or part of a regulation, should be revoked, it can make a report to the two Houses containing a resolution to this effect. Before doing so, however, the Committee must notify the regulation-making authority of its intent to propose the disallowance of a regulation at least 30 days prior to adopting the disallowance report. The Committee only recommends disallowance. That recommendation must then be accepted by both Houses.
Within 15 sitting days of the tabling of a disallowance report, a Minister may file a motion that the disallowance resolution contained in the report not be adopted. If such a motion is filed in either or both Houses, the appropriate House meets at 1:00 o’clock on the next Wednesday to consider the motion. Section 19.1(7) of the Act allows a debate of a maximum duration of one hour, with a 10-minute limit on interventions by members. At the conclusion of the debate, a vote is taken on the motion. If the House defeats the motion, the resolution is considered to have been adopted by the appropriate House. If, on the other hand, the motion filed by the Minister is supported by the House, the resolution set out in the Committee’s report is considered to have been rejected by the House. A resolution is either deemed adopted on the fifteenth sitting day following the tabling of the disallowance report if no motion is filed within those fifteen sitting days by a Minister, or it is considered to be adopted on the day that such a motion is defeated by a vote of the appropriate House.
Section 19.1(9) imposes a legal duty on a regulation-making authority to repeal a disallowed regulation within 30 days – or such longer period of time as may be specified in the resolution - following the day on which both the Senate and the House of Commons have adopted or are deemed to have adopted the resolution.
Not every report made by the Committee contains a disallowance resolution. A report could recommend that a regulation be revoked and still not involve disallowance, and the Committee does continue to make such reports.