House of Commons Procedure and Practice
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17. Delegated Legislation

[1] 
Statutory Instruments Act, R.S.C. 1985, c. S-22, s. 19.
[2] 
Bourinot, 2nd ed., pp. 332-3, 808-10.
[3] 
J.R. Mallory, “Delegated Legislation in Canada: Recent Changes in Machinery,” Economics and Political Science: The Journal of the Canadian Political Science Association, Vol. 19, No. 4 (November 1953), p. 462.
[4] 
Harris H. Bligh, Q.C., The Consolidated Orders in Council of Canada (Ottawa, 1889) (published under the authority and direction of the Governor General). See also the Orders in Council printed in the front of the statutes during this period.
[5] 
War Measures Act, S.C. 1914, c. 2, s. 6.
[6] 
Mallory, pp. 462-3. See also Dawson’s The Government of Canada, p. 224.
[7] 
Debates, February 9, 1943, p. 296.
[8] 
Debates, May 31, 1950, p. 3039. See also Regulations Act, S.C. 1950, c. 50.
[9] 
See Special Committee on Procedure and Organization, Fifteenth Report, Journals, December 14, 1964, p. 988.
[10] 
Journals, September 30, 1968, p. 82.
[11] 
Journals, October 22, 1969, pp. 1411-508.
[12] 
Debates, June 16, 1970, pp. 8155-6.
[13] 
Statutory Instruments Act, S.C. 1970-71-72, c. 38, s. 26.
[14] 
Journals, October 14, 1971, p. 870. This Committee was originally called the Standing Joint Committee on Regulations and Other Statutory Instruments. Its name was changed briefly in 1987 to the Standing Joint Committee for Regulatory Scrutiny (Journals, December 7, 1987, p. 1934; December 18, 1987, p. 2017) before its present name was adopted in June 1988 (Journals, June 2, 1988, p. 2778). The House attempted to amend the Committee’s name to “Standing Joint Committee on Scrutiny of Regulations” in January 1994 (Journals, January 25, 1994, pp. 58-61). However, since the Senate did not also amend its rules to reflect this change, the Committee’s name remained unchanged.
[15] 
The Committee also dealt with other matters. On March 29, 1973, the House referred a document regarding guidelines for the production of papers to the Committee. The Committee was to determine if the guidelines were sound in principle and how they were to be administered (see Journals, p. 226; Debates, pp. 2745-50). This matter, along with the subject matter of a bill respecting access to information, was referred again to the Committee on December 19, 1974 (Journals, p. 231). The Committee reported back to the House on December 16, 1975 (Journals, p. 943).
[16] 
Statutory Instruments Act, R.S.C. 1985, c. S-22, s. 19. On June 29, 1988, the Committee informed the House that it would not be reviewing and scrutinizing statutory instruments made by the Supreme Court of Canada or the Tax Court of Canada because, it felt, statutory courts enjoyed the same degree of independence as that guaranteed superior courts by the Constitution Act, 1867. However, the Committee continues to scrutinize rules of practice and procedures of tribunals whose members are not appointed during good behaviour, e.g., National Transportation Agency and the Labour Relations Board (see Journals, June 29, 1988, p. 3017; Standing Joint Committee for the Scrutiny of Regulations, Minutes of Evidence and Proceedings, June 23, 1988, Issue No. 28, pp. 9-10).
[17] 
Statutory Instruments Act, R.S.C. 1985, c. S-22, s. 2.
[18] 
Statutory Instruments Act, R.S.C. 1985, c. S-22, ss. 11(1), 19.
[19] 
Statute Revision Act, R.S.C. 1985, c. S-20, s. 19(3).
[20] 
Standing Order 108(4)(c).
[21] 
See, for example, Journals, February 16, 1979, p. 382; February 21, 1979, p. 401; November 20, 1979, p. 237; April 24, 1996, p. 254; May 29, 1996, p. 457; November 4, 1997, p. 185. The Committee has reported back twice to the House on this matter— in 1980 and 1984 (Journals, July 17, 1980, pp. 396-467, and April 17, 1984, p. 386). On November 20, 1980, the House referred the subject matter of enabling clauses of the Canada Post Corporation Act to the Committee (Journals, p. 762; see alsoJournals, December 15, 1980, pp. 852-65).
[22] 
Standing Order 104(3)(c) and Senate Rule 86(1)(d). During the Thirty-Fifth Parliament (1994-97), eight Members of the House were appointed to the Committee (see, for example, Journals, March 1, 1996, p. 30). During the First Session of the Thirty-Sixth Parliament (1997-99), 17 Members of the House were appointed to the Committee (see Journals, September 30, 1997, p. 51; October 1, 1998, p. 1109).
[23] 
In 1997, two Members of the Official Opposition declined the nomination to be the Joint Chair of the Committee; a Member of the governing party was subsequently elected Joint Chair. A Member of the Official Opposition was elected to the position of Vice-Chair. See Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, October 23, 1997.
[24] 
In its first report each session, the Committee adds a paragraph to the copy of the report to be tabled in the Senate, requesting the power to sit during sittings of the Senate. Rule 95(4) of the Senate stipulates that a select committee shall not sit during a sitting of the Senate.
[25] 
See, for example, Journals, March 22, 1999, pp. 1644-5; June 7, 1999, p. 2060. When the Committee presents a report to the Senate to which a government response is requested, the Senate copy indicates that this request has been made in the report presented to the House.
[26] 
In 1974, the Committee requested the power to engage additional legal and clerical staff because of the volume of statutory instruments to be scrutinized (Journals, April 30, 1974, p. 151). This request was concurred in on May 3, 1974 (Journals, p. 161) and since then the Committee has routinely sought and obtained a similar power at the beginning of each session even though on the House side the power is provided by Standing Order 120. See, for example, Standing Joint Committee for the Scrutiny of Regulations, First Report, presented to the House on April 24, 1996 (Journals, p. 254).
[27] 
Standing Order 123(1).
[28] 
On various occasions, the Committee has indicated to the House that it would like its mandate expanded to include the scrutiny of the policy or merits of subordinate legislation and the examination of bills after second reading for subordinate lawmaking powers (see, for example, Journals, July 17, 1980, p. 435; April 17, 1984, p. 386; Standing Joint Committee for the Scrutiny of Regulations and Other Statutory Instruments, Minutes of Proceedings and Evidence, April 12, 1984, Issue No. 4, pp. 11, 37, 45).
[29] 
These 13 criteria were first adopted by the House on December 17, 1986 (Journals, p. 337). While the Committee has frequently recommended that the review criteria be written into the Standing Orders, this request has not been agreed to. However, on one occasion, the review criteria were appended to the Debates by means of a motion (see Journals, November 21, 1978, p. 170; Debates, pp. 1323-4).
[30] 
See, for example, Standing Joint Committee for the Scrutiny of Regulations, First Report, presented on April 24, 1996 (Journals, p. 254).
[31] 
When the Committee first began to scrutinize delegated legislation, the members found that regulations did not state precisely the authority pursuant to which they were made. Departments and other authorities now routinely disclose this information. One of the more common defects the Committee now encounters is sub-delegation: "a person to whom legislative powers have been delegated by Parliament may not in turn delegate the exercise of those powers to another person" (see Journals, March 27, 1991, p. 2833; Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, March 26, 1991, Issue No. 25, p. 9).
[32] 
This criterion originated with the passage of the Constitution Act, 1982 (Journals, May 26, 1982, p. 4876; Standing Joint Committee on Regulations and Other Statutory Instruments, Minutes of Proceedings and Evidence, May 20, 1982, Issue No. 64, p. 3) and was cited in the Committee’s disallowance report regarding the Public Works Nuisances Regulations (Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, November 19, 1992, Issue No. 17, pp. 8-22).
[33] 
See, for example, the Committee’s Seventh Report, Journals, June 26, 1986, p. 2433; Standing Joint Committee on Regulations and other Statutory Instruments, Minutes of Proceedings and Evidence, June 26, 1986, Issue No. 33, pp. 4-5.
[34] 
See, for example, the Committee’s Sixth Report, Journals, June 7, 1999, p. 2060.
[35] 
See, for example, the Committee’s Ninth Report, Journals, June 3, 1993, p. 3113; Debates, p. 20293.
[36] 
See, for example, the Committee’s Sixth Report, Journals, November 19, 1992, p. 2078; Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, November 19, 1992, Issue No. 17, pp. 8-22.
[37] 
See, for example, the Committee’s Sixth Report, Journals, April 16, 1986, pp. 1996-7; Standing Joint Committee on Regulations and Other Statutory Instruments, Minutes of Proceedings and Evidence, April 15, 1986, Issue No. 29, pp. 3-5. See also Debates, April 22, 1986, pp. 12507-22.
[38] 
This is the criterion which has been cited most often in reports of the Committee. See, for example, Journals, February 27, 1992, p. 1084; Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, April 9, 1992, Issue No. 11, pp. 6-9.
[39] 
See, for example, the Committee’s Third Report, Journals, April 17, 1984, p. 386; Standing Joint Committee on Regulations and Other Statutory Instruments, Minutes of Proceedings and Evidence,April 12, 1984, Issue No. 4, pp. 12-3.
[40]
Since the Privy Council Office issued guidelines entitled Directives on Submissions to the Governor in Council and Statutory Instruments, this criterion has rarely been cited.
[41] 
See Debates, January 25, 1971, p. 2735. See also Statutory Instruments Act, R.S.C. 1985, c. S-22, s. 3.
[42] 
Journals, October 22, 1969, pp. 1507-8.
[43] 
See Special Committee on Statutory Instruments, Third Report, Journals, October 22, 1969, p. 1508 (Recommendation 21).
[44] 
Reform proposals tabled in the House in 1979 included changes to the Standing Orders to increase opportunities to affirm or negative delegated legislation (see Journals, November 23, 1979, p. 260; Position Paper: The Reform of Parliament, pp. 18-20). Parliament was dissolved, however, before these reforms were discussed in the House.
[45] 
See Special Committee on the Reform of the House, Third Report, pp. 83-4, presented on June 18, 1985 (Journals, p. 839). Previous to this, the Committee had recommended to the House on various occasions that a disallowance procedure be established (see, for example, Journals, February 3, 1977, p. 407; July 17, 1980, pp. 435-7; April 17, 1984, p. 386; see also Standing Joint Committee on Regulations and Other Statutory Instruments, Minutes of Proceedings and Evidence,April 12, 1984, Issue No. 4, pp. 45-7).
[46] 
See Special Committee on the Reform of the House of Commons, Third Report, p. 36, presented on June 18, 1985 (Journals, p. 839) (Recommendation 6.1).
[47] 
Journals, October 9, 1985, p. 1082 (page 5 of the Government Response).
[48] 
Journals, February 6, 1986, pp. 1652-3; February 13, 1986, p. 1710.
[49] 
Standing Joint Committee on Regulations and Other Statutory Instruments, Minutes of Proceedings and Evidence, April 15, 1986, Issue No. 29, pp. 11, 22.
[50] 
Since Standing Order 123(1) was amended on December 18, 1987 (Journals, December 18, 1987, p. 2017), the report contains a short text including a “resolution” to revoke a statutory instrument, followed by two appendices. Appendix A reproduces the text of the provision to be disallowed and Appendix B gives the reasons of the Committee in support of disallowance (see, for example, Journals, May 11, 1995, pp. 1462-3; Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence,Thursday, May 11, 1995, Issue No. 20, pp. 9-15).

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