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.