The Standing Joint Committee for the Scrutiny of Regulations (the committee) plays a vital role in the parliamentary oversight of federal regulations. Whenever Parliament delegates legislative authority to the executive branch or other regulation-making bodies, the committee ensures that this delegated authority is exercised lawfully and appropriately.
In practice, the committee's work begins after a regulation has been made and published in Part II of the Canada Gazette. Once published, the regulation is reviewed against criteria that range from questions of validity and legal effect to matters of drafting and clarity. Generally, the committee does not challenge the merits or underlying policy of a regulation. If a regulation is found to contravene any of the criteria, correspondence is exchanged with the regulation-making authority to resolve the matter.
Depending on how a file progresses, measures beyond correspondence may be considered. In addition to all the powers common to other standing committees, the committee possesses the unique ability to recommend the disallowance (repeal) of a regulation, a powerful tool for holding the regulation-making authorities accountable for their use of delegated law-making powers.
The Standing Joint Committee for the Scrutiny of Regulations (the committee) is perhaps not as well known as it might be, given the importance of its work. One of only two permanent committees with members from both the Senate and the House of Commons,1 the committee is responsible for ensuring that whenever Parliament delegates legislative authority to another body, the delegated authority is exercised lawfully and appropriately.
Unlike committees whose expertise relates to one particular area under federal jurisdiction, the committee's mandate encompasses the entirety of federal regulation. The committee reviews regulations and other statutory instruments2 on the basis of criteria that relate to legality and procedure, rather than focusing on the substance of the regulations or on the policy behind them. Another notable difference is that, unlike committees that study bills that may become law after Parliament has approved them, the committee reviews regulations that have already become law. Finally, while the workload of other committees fluctuates depending on whether Parliament is sitting, the committee's workload is determined primarily by the volume of regulations made throughout the year, including over the summer and winter adjournments, even when Parliament is dissolved or prorogued.
This HillStudy provides an overview of the work of the committee, given its unique role. First, the history and mandate of the committee are summarized. Then, the basic process for reviewing regulations is described. Finally, the committee's power to recommend disallowance is discussed.
In 1968, the House of Commons Special Committee on Statutory Instruments recommended that a parliamentary committee be established to scrutinize delegated legislation.3 The government subsequently introduced the Statutory Instruments Act, which provides for either or both houses of Parliament to establish a committee for the purpose of reviewing and scrutinizing statutory instruments.4 The committee was established on the basis of this statutory authority and began its work in the early 1970s.
In addition to its statutory basis, the committee is empowered under the Rules of the Senate and the Standing Orders of the House of Commons.5 While it has been a matter of tradition for the joint chair from the Senate to be drawn from the same party as the government, the Standing Orders of the House of Commons specifically require the joint chair from the House of Commons to be a member of the Official Opposition, the first vice-chair to be from the government party and the second vice-chair to be from an opposition party other than the Official Opposition.6 This type of arrangement is intended to encourage objectivity and non-partisanship in the operation of the committee.7
In addition to its statutory mandate to review regulations, the committee's mandate has traditionally also included the power
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
and the manner in which Parliamentary control should be effected in respect of the same; [and]
- in the drafting of powers enabling delegates of Parliament to make subordinate laws;
- in the enactment of statutory instruments;
- in the use of executive regulation – including delegated powers and subordinate laws;
- the role, functions and powers of the Standing Joint Committee for the Scrutiny of Regulations.8
As a result, the committee has “a broad power to enquire into and report on most aspects of the federal regulatory process.” 9
The regulatory process begins when the regulation-making authority (RMA) develops the policy that underlies a regulation.10 A draft of the instrument is then prepared by the Department of Justice, after which it is reviewed and approved by either the relevant minister or the Governor in Council, depending on the type of instrument being made. The draft instrument is then pre-published in Part I of the Canada Gazette, and after any subsequent revisions, it is finally published in Part II of the Canada Gazette.11 Only after the instrument's publication in Part II does the committee review the instrument against the committee's criteria.
At the beginning of each session, the committee adopts its criteria which are then approved by both houses. These criteria have remained largely consistent since they were first proposed in 1969, with some small changes. The criteria range from the highly substantive, for example, whether an instrument is unlawful or invalid or whether it unduly interferes with the rights and liberties of individuals, to the less substantive, such as whether the drafting of a regulation is defective.12
In many instances, the instrument is found to have complied with all of the committee's criteria, in which case the file in relation to that instrument can be closed. However, if it is determined that an instrument contravenes any of the scrutiny criteria or requires further explanation for any other reason, a letter is written to the RMA detailing those concerns.
Once the committee has received a substantive response from the RMA, the committee determines how to proceed. If, for example, the RMA has provided a satisfactory explanation for all issues raised, the file may be closed. If the RMA has agreed to make changes, the committee may ask for a projected timeline and monitor the file until the necessary amendments are made. However, if the committee feels that the position taken by the RMA is not satisfactory, further correspondence may be exchanged in an attempt to reach a resolution.
Depending on how a file progresses, measures beyond correspondence with the RMA may be considered. For example, if the committee is unsatisfied with the RMA's subsequent responses, or if the committee considers the delay in making promised amendments to be excessive, it may invite officials from the RMA to appear before it to answer questions. The committee may also decide to write to the responsible minister seeking the reconsideration of a position taken by the RMA. Other options include reporting to Parliament on a matter13 and recommending disallowance.
The committee has one special power: the ability to recommend the disallowance of a regulation or a portion thereof. Although this power is infrequently used, it is significant and unique in the history of Parliament.
The committee did not have the power to recommend disallowance until 1986, when a procedure was put in place through amendments to the Standing Orders of the House of Commons. This approach had two important consequences:
The first was that the Senate had no say in the matter, and the second was that [the disallowance procedure] only applied to statutory instruments made by the Governor in Council or by a Minister of the Crown. This was because the procedure relied on resolutions and orders, which are not by their nature binding on those outside the House. Regulations made by bodies with regulatory authority delegated by Parliament (such as the Canadian Radio-television and Telecommunications Commission, the National Energy Board, the Canadian Institutes of Health Research, the Canadian Transportation Agency and the Canadian Nuclear Safety Commission) were therefore not subject to disallowance.14
Although this mechanism was successfully resorted to on eight occasions, the committee recommended that it be replaced by a statutory procedure that would apply to all federal delegated legislation and give an equal role to both houses of Parliament. In 2003, Parliament enacted a private member's bill to that effect, sponsored by one of the joint chairs of the committee.15 This bill added section 19.1 to the Statutory Instruments Act, such that the power to recommend disallowance now applies to all regulations that stand referred to the committee, and both houses must agree to a disallowance resolution for it to be effective.
The procedure set out in section 19.1 of the Statutory Instruments Act is as follows:
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.16
To date, two disallowance reports have been tabled under section 19.1 of the Statutory Instruments Act, both concerning the same regulatory provision. In each instance, the report was deemed adopted in the Senate, but the House of Commons voted not to proceed with disallowance on the ground that legislation had been introduced that would address the committee's concern.17
In many cases where the committee had begun to consider disallowance, the committee's concerns about the regulation in question were resolved after a notice of the committee's intent to propose disallowance was issued to an RMA. As such, it is often not necessary to proceed any further with adopting a disallowance report.
Two core constitutional principles in a parliamentary democracy are the rule of law and parliamentary supremacy. Parliament is the source of federal regulation-making authority, and so the body to which legislative authority is delegated may only exercise that authority if, when and to the extent that Parliament has authorized.18 By reviewing regulations and other statutory instruments for compliance with that delegated authority, the Standing Joint Committee for the Scrutiny of Regulations plays an essential role in ensuring parliamentary oversight of the laws that govern all Canadians.
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