17. Delegated Legislation

For the first 15 years of its existence, the Committee had statutory power to scrutinize delegated legislation, but no power to revoke a subordinate law. The Special Committee on Statutory Instruments did not propose a general disallowance procedure, ^[43]  and no such procedure was provided for in the Statutory Instruments Act. As a result, requests made by the Committee to government departments and other authorities to amend or revoke regulations which it felt were ultra vires (beyond legal authority) often produced little or no results. The only recourse the Committee had to publicly discuss these regulations was to present reports in the House and move a motion of concurrence in them. ^[44] 

In 1985, the Committee approached the Special Committee on the Reform of the House of Commons with recommendations regarding the disallowance of statutory instruments. ^[45]  The Committee proposed, among other matters, that all subordinate legislation not subject to a statutory affirmative procedure be subject to being disallowed on resolution of either House and that the Executive be barred from remaking any statutory instrument so disallowed for a period of six months from its disallowance. Subsequently, in its Third Report to the House, the Special Committee recommended that “the House of Commons adopt a mandatory procedure for affirming or disallowing delegated legislation and regulations made pursuant to an act of Parliament.” ^[46]  In its response to the recommendation, the government proposed an alternative, the power to revoke by House Order. ^[47]  This was agreed to by the House in 1986 by means of amendments to the Standing Orders. ^[48]  The House now has procedures which allow it to adopt or reject a report presented by the Committee that advocates the revocation of a statutory instrument because it is not in keeping with the intentions of the Act from which it is derived. The government also made a policy commitment to “consider itself bound by any such report of the Committee” and would therefore follow through with the revocation. ^[49] 

Should the Committee conclude that a regulation or some other statutory instrument is not in keeping with the intentions of an Act as passed by Parliament, it may make a report to the House on the matter. Such a report must contain only a resolution which, if concurred in, results in a House Order to the government to revoke an offending regulation or statutory instrument. ^[50]  One report is needed for each regulation or statutory instrument for which the Committee is seeking to revoke by House Order, but only one such report may be received in any given sitting of the House. ^[51] 

When this kind of report is presented, the Member presenting it must advise the House of its nature, indicate which regulation or statutory instrument the Committee wishes revoked and state that the relevant text of the regulation or statutory instrument in question is included in the report. ^[52] 

Once such a report has been presented in the House, notice of a motion for concurrence in the report is automatically placed on the Notice Paper by the Clerk of the House in the name of the Member who presented the report. ^[53]  Only one notice of motion for concurrence in the report may be placed on the Notice Paper for each report of this nature. After 48 hours, the notice of motion is transferred to the Order Paper under the rubric “Motions”.

The motion for concurrence in the report may either be automatically adopted or disposed of after consideration.

Automatic Adoption

The Standing Orders provide that a motion for concurrence in a report is deemed moved and adopted on the fifteenth sitting day after it first appears on the Order Paper (unless a Minister requests that it be debated). ^[54]  The motion is deemed moved and adopted just before the House adjourns on that sitting day, and automatically results in an Order of the House to the responsible authority (usually the Governor in Council) to revoke the subordinate legislation in question. ^[55]  If the House adjourns prior to the ordinary hour of daily adjournment, the report is still deemed adopted. ^[56] 

Consideration of the Concurrence Motion

If requested by a Minister, the concurrence motion is set down for consideration. In a marked departure from the usual practices of the House, the Standing Orders provide that such a concurrence motion may only be called for consideration by a Minister (any Minister), and that any Member can move the motion on behalf of its sponsor. ^[57]  Several unique conditions apply to the manner in which the motion is taken up and disposed of.

First, the Minister must call for its consideration within 15 sitting days of the notice for concurrence in the report appearing on the Order Paper by giving at least 48 hours’ written notice. ^[58]  Once this requirement is fulfilled, notice of the debate is immediately placed on the Order Paper. ^[59]  The motion is automatically slated for consideration at 1:00 p.m. on the first Wednesday following the expiry of the 48-hour written notice for consideration. ^[60]  The debate must, however, take place by the end of the fifteenth sitting day or the report is automatically deemed adopted. Thus, the time frame for holding the debate varies considerably depending on when the fifteenth sitting day falls. Since the debate must be held on a Wednesday, the time frame for the Minister to act could be much shorter than the 15-day period.

Although only one report may be presented in a sitting and only one motion for concurrence in that report may be placed on the Order Paper, the presentation of several reports on successive days can result in more than one concurrence motion being considered on the same Wednesday. The sequence for consideration is determined by a Minister and all concurrence motions are grouped for debate but voted on seriatim. ^[61] 

Whether one or several such concurrence motions are called on a particular Wednesday, only one hour between 1:00 p.m. and 2:00 p.m. is made available for their consideration, and they are the only items of business that can be taken up. ^[62]  Members participating in the debate may speak only once and for a maximum of 10 minutes. ^[63]  Points of order about the procedural acceptability of any report may be raised only after the Chair has proposed to the House all questions on the motions for concurrence. If a report is thereafter found to be irreceivable, the motion for concurrence is deemed to have been withdrawn. ^[64] 

Unless the motion or motions have already been disposed of when the hour set aside for their consideration has elapsed (or slightly earlier so as not to impinge on the time allotted for Members’ Statements), the Speaker is obliged to interrupt the proceedings and put all questions necessary to complete the proceedings on them. ^[65]  If a concurrence motion is adopted, the resolution as set out in the report concerned becomes an Order of the House that a given instrument of delegated legislation be revoked. If the motion is defeated, the matter is dropped. ^[66]  If requested, recorded divisions are automatically deferred until the ordinary hour of daily adjournment, at which time the bells sound no longer than 15 minutes. ^[67]  Once deferred, divisions cannot be further deferred by a party Whip ^[68]  and the Standing Orders related to the ordinary hour of daily adjournment are suspended until all questions have been decided. ^[69]  When deliberations on a motion or motions for concurrence are completed before 2:00 p.m., the Speaker suspends the sitting until that time. ^[70]