The Standing Joint Committee for the Scrutiny of Regulations (the “Committee”) has a mandate to review and scrutinize government regulations and other statutory instruments. Parliament increasingly delegates legislative authority to the Executive branch of government through enabling statutes that allow government bodies to make rules and regulations. To ensure that these government bodies remain accountable to Parliament, the Committee reviews hundreds of regulations and other statutory instruments each year using the following criteria:
Whether any regulation or statutory instrument within its terms of reference, in the judgment 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;
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;
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 orders of reference of the Committee afford it a broad power 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 of Commons and to publish most regulations dealing with the war, and the practice continued after the war. While at the time there were suggestions that regulations should be referred to a committee of the House of Commons so that there would be an 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 regulations made in the exercise of a legislative power conferred by or under an Act of Parliament, 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 of Commons 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 chair) 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 parliamentary scrutiny committee should be a joint committee of both Houses. The Standing Joint Committee for the Scrutiny of Regulations began its work in the early 1970s, initially as the Standing Joint Committee on Regulations and Other Statutory Instruments.
The Committee is assisted by a committee clerk from each of the two Houses. The joint clerks perform their duties and responsibilities under the direction of the Committee and its Joint Chairs. As an expert in the rules of the House of Commons and the Senate, 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 are the coordinators, organizers and liaison officers for the Committee, and as such, will be in frequent contact with members’ staff. They are also responsible for inviting witnesses and dealing with all the details regarding their appearance before the Committee.
Legal Staff of the Committee
The Committee is assisted by several counsel, who are employees of the Parliamentary Information, Education and Research Service of the Library of Parliament and who work for the Committee on a full-time basis. These individuals are non-partisan and provide services in an impartial manner to all members of the Committee and to representatives of all parties. Counsel provide independent legal advice and exercise their duties and functions at the direction of the Joint Chairs and the Committee.
Secretariat of the Committee
The Secretariat, composed of its administrative staff and legal counsel, is an important part of the Committee’s institutional memory and a unique resource for parliamentarians. The Secretariat prepares material for members, sends and receives correspondence on behalf of the Committee, maintains the Committee’s archives, including physical and digital records, and coordinates with the Joint Clerks to see to any other needs of the Committee.
Each year, the Committee reviews hundreds of statutory instruments. Counsel 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 or agency 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 department or agency responsible for the regulation. If the Committee feels an impasse has been reached in its negotiations, 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 Committee include the following:
43rd Parliament, 2nd Session (September 23, 2020 – August 15, 2021)
At its meeting of March 2, 2021, the Committee adopted an amendment to the seventh scrutiny criterion.
43rd Parliament, 1st Session (December 5, 2019 – August 18, 2020)
42nd Parliament, 1st Session (December 3, 2015 – September 11, 2019)
41st Parliament, 2nd Session (October 16, 2013 – August 2, 2015)
Disallowance is one of the traditional means at the disposal of a parliament 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. Variants of the disallowance procedure have been in existence in other Commonwealth jurisdictions for many years. Until 1986, no general disallowance procedure was in place in Canada. Prior to 1986, only a few individual statutes provided that instruments made under their authority could be disallowed by the Houses.
The disallowance power was conferred on the Parliament of Canada 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 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 of the Statutory Instruments Act sets out the procedure used for the disallowance of a regulation. Only the 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 p.m. on the next Wednesday to consider the motion. Subsection 19.1(7) of the Statutory Instruments 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 that 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. For disallowance to take effect a resolution must be adopted by both the Senate and the House of Commons.
Subsection 19.1(9) of the Statutory Instruments Act 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. 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 triggers disallowance. The Committee retains, in common with all standing committees, the authority to make reports to the Houses on any matter within the scope of its statutory and sessional orders of reference. Such a report may well recommend that a given regulation be revoked without being a “disallowance report.”