Historical Perspective
Systematic parliamentary scrutiny of
delegated legislation is a relatively modern phenomenon. In the early years of
Confederation, parliamentary scrutiny consisted of addresses for papers whereby
Parliament obtained the information it desired, and on which it could act if it
chose to. [2]
Perhaps
this lack of regularized oversight was understandable since, as one expert put
it, “with the exception of the wartime period 1914-19 it could not be said
that before 1939 the scope of the activities of the federal government was such
that Parliament lacked adequate time to act as a watch-dog of the
executive.” [3]
This is not to say that the quantity of delegated legislation was low. Indeed,
the number of regulations and orders was sufficiently large to warrant the
publication in 1889 of The Consolidated Orders in Council of Canada,
which ran to two volumes and 1,126
pages. [4]
In 1914,
Parliament passed the War Measures Act, 1914, one of the most extreme
examples of a statute delegating legislative authority to Cabinet. This Act
empowered the Governor in Council to proclaim a state of “real or
apprehended war, invasion or insurrection” and “to make from time to
time such orders and regulations, as he may by reason of the existence of real
or apprehended war, invasion or insurrection, deem necessary or advisable for
the security, defence, peace, order and welfare of
Canada”. [5]
At
the outbreak of World War II, again the volume of decisions that had to be made
in a timely manner was considerable and as a result, Ministers, government
departments, boards and crown agencies were given increasing authority to make
regulatory
decisions. [6]
It was
during this period that a suggestion was first made that since the role of
Parliament was to support and control the executive in order to keep it
responsible, Orders in Council having a legislative effect should be regularly
tabled in the House and referred to a parliamentary committee for
scrutiny. [7]
The postwar years saw a growth in
government and a steady escalation in the use of Orders in Council to regulate
public affairs. Although the practice of tabling regulations continued after the
War, there was much criticism of “government by Order in Council.”
In 1950, Parliament adopted the Regulations Act, which decreed that all
“orders, regulations and proclamations made or issued in the exercise of
legislative powers delegated by Parliament” would be systematically and
uniformly published and tabled in the
House. [8]
While
regulations and orders were then being examined by the Privy Council Office for
uniformity and clarity, the Regulations Act did not contain any provision
for holding the executive accountable to Parliament for the subordinate laws it
had made.
In 1964, the Special Committee on Procedure
and Organization recommended the establishment of a parliamentary committee to
review regulations made as a result of delegated legislative power and to report
to Parliament any regulations or instruments which the Committee believed
exceeded the authority delegated by
statute. [9]
However, no
action was taken on this recommendation. In 1968, the Special Committee on
Statutory Instruments was mandated to “report on procedures for the review
of this House of instruments made in virtue of any statute of the Parliament of
Canada”. [10]
After an extensive examination of the Regulations Act and scrutiny
procedures in other Commonwealth Parliaments, the Committee presented its Third
Report in October
1969. [11]
Reiterating
the recommendation that a parliamentary committee be established to scrutinize
delegated legislation, it also advocated many amendments to the Regulations
Act and new procedures for the drafting and publication of regulations. In
1970, the government announced its proposed course of action to respond to the
report: the replacement of the Regulations Act by the Statutory
Instruments Act, new Cabinet directives for the drafting and publication of
regulations, and amendments to the Standing Orders for the establishment of a
scrutiny committee. [12]