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SC 1970–71–72, c 38, s 26; Journals, October 14, 1971, p. 870. This Committee was originally called the Standing Joint Committee on Regulations and Other Statutory Instruments. Other name changes followed in December 1987 (Journals, December 7, 1987, p. 1934; December 18, 1987, p. 2017), June 1988 (Journals, June 2, 1988, p. 2778) and in January 1994 (Journals, January 25, 1994, pp. 58–61). The name of the Committee was further changed in 2015 (Twenty-Eighth Report of the Standing Committee on Procedure and House Affairs, presented to the House on December 8, 2014 (Journals, p. 1915), and concurred in on February 4, 2015 (Journals, p. 2092)).
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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 (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).
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Statutory Instruments Act, supra note 2, 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 to superior courts by the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5. However, the Committee continues to scrutinize rules of practice and procedures of tribunals whose members are not appointed at pleasure, such as the National Transportation Agency and the Labour Relations Board (Tenth Report of the Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, June 23, 1988, Issue No. 28, pp. 9–10, presented to the House on June 29, 1988 (Journals, p. 3017)).
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Statutory Instruments Act, supra note 2, s 2.
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Ibid., ss 11(1) and 19.
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Legislation Revision and Consolidation Act, RSC 1985, c S-20, s 19(3).
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Standing Order 108(4)(b). For example, on November 20, 1980, the House referred the subject matter of enabling clauses of the Canada Post Corporation Act, RSC 1985, c C-10, to the Committee (Journals, p. 762). See also Journals, December 15, 1980, pp. 852–65.
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See, for example, First Report of the Committee, presented to the House and concurred in on May 11, 2006 (Journals, p. 164), as well as First Report of the Committee, presented to the House and concurred in on November 18, 2013 (Journals, p. 169). On one occasion, the Committee’s First Report was concurred in on a recorded division (Journals, February 16, 2000, pp. 917–8).
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The Committee has reported back to the House on a number of occasions on the role, functions and powers of the Committee. See, for example, Fourth Report of the Standing Joint Committee on Regulations and Other Statutory Instruments, presented to the House on July 17, 1980 (Journals, pp. 396–467), Third Report of the Committee, presented to the House on April 17, 1984 (Journals, p. 386), as well as Second Report of the Standing Joint Committee for the Scrutiny of Regulations, presented to the House on April 8, 2003 (Journals, p. 664), in which the Committee noted the divergence of rules and practices of the Senate and the House of Commons as they related to the role, functions and powers of the Joint Committee.
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Standing Order 104(3)(b); Senate Rule 12-4b). The membership of the Committee varies from one Parliament to the next. During the Thirty-Fifth Parliament, eight Members of the House were appointed to the Committee (see, for example, Journals, March 1, 1996, p. 30), while during the Thirty-Sixth and Thirty-Seventh Parliaments, 17 Members of the House were appointed to the Committee. More recently, the Committee has been composed of 12 Members of the House. See, for example, Journals, January 27, 2009, pp. 43–4; September 28, 2009, pp. 827–8; March 4, 2010, pp. 46–7; September 27, 2010, pp. 693–4; June 13, 2011, pp. 76–7; September 20, 2012, pp. 2046–8; October 22, 2013, pp. 78–9. Eight Senators are usually appointed to the Committee. See, for example, Second Report of the Senate Committee of Selection, presented to the Senate on December 9, 2015 (Journals of the Senate, pp. 31–3), and concurred in on December 10, 2015 (Journals of the Senate, pp. 40–1).
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Senate rules and practices have been adjusted in order to take into account situations where government or specific party representation may be required on committees.
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In 1997, an exception was agreed to in order to allow a Member with considerable experience on the Committee to take the Chair. Two Members of the Official Opposition declined the nomination to be the Joint Chair of the Committee, and a Member of the governing party was elected Joint Chair. A Member of the Official Opposition was subsequently elected to the position of Vice-Chair (Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings, October 23, 1997, Meeting No. 1).
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Journals, November 5, 2002, pp. 162–4.
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Eighth Report of the Standing Committee on Procedure and House Affairs, presented to the House and concurred in on October 22, 2004 (Journals, p. 136).
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Standing Order 106(2).
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In its first report each session, the Committee adds a paragraph to the copy of the report to be presented in the Senate requesting the power to sit during sittings of the Senate. Rule 12-18(1) of the Senate stipulates that a Senate committee shall not meet during a sitting of the Senate.
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See, for example, Journals, December 12, 2007, p. 301; May 26, 2008, p. 838; April 22, 2009, pp. 391–2; December 10, 2010, p. 1047. 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.
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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 for in Standing Order 120. See, for example, First Report of the Standing Joint Committee for the Scrutiny of Regulations, presented to the House on November 18, 2013 (Journals, p. 169).
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Standing Order 123(1).
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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 law-making powers. See, for example, Journals, July 17, 1980, p. 435; 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. 11, 37, 45.
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The House first adopted these 13 criteria on December 17, 1986 (Journals, p. 337). While the Committee has frequently recommended that the review criteria be written into the Standing Orders, the House has not agreed to this request. However, on one occasion, the review criteria were appended to the Debates by means of a motion (Journals, November 21, 1978, p. 170, Debates, pp. 1323–4).
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See, for example, First Report of the Standing Joint Committee for the Scrutiny of Regulations, presented to the House and concurred in on November 18, 2013 (Journals, p. 169).
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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. Many of the issues the Committee now encounters concern the conferral of what the Committee considers to be undue administrative discretion. This is frequently related to subdelegation: “a person to whom legislative powers have been delegated by Parliament may not in turn delegate the exercise of those powers to another person” (Fourth Report of the Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, March 26, 1991, Issue No. 25, p. 9, presented to the House on March 27, 1991 (Journals, p. 2833)).
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This criterion originated with the passage of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (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).
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See, for example, Seventh Report of the Committee, presented to the House on June 26, 1986 (Journals, 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.
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See, for example, Sixth Report of the Committee, presented to the House on June 7, 1999 (Journals, p. 2060).
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See, for example, Second Report of the Committee, presented to the House on May 9, 2005 (Journals, p. 720). See also Fourth Report of the Committee, presented to the House on February 7, 2007 (Journals, p. 979).
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See, for example, Ninth Report of the Committee, presented to the House on June 3, 1993 (Journals, p. 3113, Debates, p. 20293).
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See, for example, Sixth Report of the Committee, presented to the House on November 19, 1992 (Journals, p. 2078); Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, November 19, 1992, Issue No. 17, pp. 8–22.
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See, for example, Sixth Report of the Committee, presented to the House on April 16, 1986 (Journals, 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; Second Report of the Committee, presented to the House on June 7, 2001 (Journals, p. 505).
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This is the criterion which has been cited most often in reports of the Committee. See, for example, Fourth Report of the Standing Joint Committee for the Scrutiny of Regulations, Minutes of Proceedings and Evidence, April 9, 1992, Issue No. 11, pp. 6–9, presented to the House on February 27, 1992 (Journals, pp. 6–9). In April 2007, a Member rose on a point of order concerning the admissibility of subclause 13(1) of Bill C-52, An Act to implement certain provisions of the budget tabled in Parliament on March 19, 2007, 1st Sess, 39th Parl, 2007. He asked the Chair to strike the provision which would amend paragraph 122.1(2)(b) of the Income Tax Act, RSC 1985, c 1 (5th Supp) from the Bill because, if enacted, it would regulate the taxation of existing income trusts during a transitional period by providing for interim taxation rates based on the “Normal Growth Guidelines” issued by the Department of Finance on December 15, 2006. Describing these guidelines as “no more than a press release”, the Member contended that subclause 13(1) of the Bill attempted to exempt from parliamentary scrutiny by the Standing Joint Committee for the Scrutiny of Regulations a measure that was, in all but name, delegated legislation (Debates, April 17, 2007, pp. 8308–10). After reminding the House that what does or does not fall within the definition of “statutory instrument” is a legal question and not one of procedure, the Speaker ruled that there is no procedural objection to making reference in legislation to documents which are not subject to review by the House or its committees. Whether provisions which do so should be adopted, amended or rejected is ultimately a decision for the House to make (Debates, May 3, 2007, pp. 9047–8).
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See, for example, Third Report of the Committee, presented to the House on April 17, 1984 (Journals, 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. See also Fourth Report of the Committee, presented to the House on December 6, 2001 (Journals, p. 926).
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This criterion has rarely been cited in reports though the Committee has often raised and resolved drafting issues with the appropriate departments.
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Debates, January 25, 1971, p. 2735. See also Statutory Instruments Act, supra note 2, s 3.
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Journals, October 22, 1969, pp. 1507–8.