Established under the Rules of the Senate and the Standing Orders of the House of Commons, the Standing Joint Committee for the Scrutiny of Regulations reviews and scrutinizes government regulations and other statutory instruments. 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, the Committee reviews hundreds of instruments each year using the following criteria:
Whether any regulation or statutory instrument within its terms of reference, in the judgement of the Committee:
is not authorised by the terms of the enabling legislation or has not complied with any condition set forth in the legislation;
is not in conformity with the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights;
purports to have retroactive effect without express authority having been provided for in the enabling legislation;
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;
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;
trespasses unduly on rights and liberties;
makes the rights and liberties of the person unduly dependent on administrative discretion or is not consistent with the rules of natural justice;
makes some unusual or unexpected use of the powers conferred by the enabling legislation;
amounts to the exercise of a substantive legislative power properly the subject of direct parliamentary enactment;
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:
the appropriate principles and practices to be observed
in the drafting of powers enabling delegates of Parliament to make subordinate laws;
in the enactment of statutory instruments;
(c) in the use of executive regulation;
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.
In common with other standing committees, the Standing Joint Committee for the Scrutiny of Regulations has the following powers:
to report to the Houses on matters within its statutory or sessional references;
to require the attendance of witnesses and to send for papers and records;
to sit while the Houses are sitting or adjourned;
•to print papers and evidence; and
to delegate to a subcommittee any of its powers except the power to report to the Houses.
The Committee may also invoke the application of Rule 12-24 of the Rules of the Senate and Standing Order 109 of the House of Commons to require a government response to a report within 150 or 120 days of tabling, respectively.
The Power of Disallowance
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 used 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.