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.3 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”.4 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.5 In 1914, Parliament passed the War Measures Act, 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”.6 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.7 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.8

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.9 While the Privy Council Office examined regulations and orders 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.10 However, no action was taken on this recommendation. In 1968, the Special Committee on Statutory Instruments was appointed with a mandate to “report on procedures for the review of this House of instruments made in virtue of any statute of the Parliament of Canada”.11

In its final report, the Committee reiterated 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 of powers and publication of regulations.12 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.13