Chapter XIV — Delegated Legislation

Introduction

The activities of one committee, the Standing Joint Committee for the Scrutiny of Regulations, sometimes lead to the invocation of special procedures in the House. The committee examines regulations and other delegated legislation to ensure that no legal requirements are imposed except those contemplated by Parliament itself. A report to the House by the committee may contain a resolution recommending the revocation of a regulation or a portion thereof; the Standing Orders in this chapter codify the subsequent procedures the House must follow to adopt or reject such a resolution.

Due to the cohesiveness of the Standing Orders in this Chapter, and the fact that they are rarely invoked, one Historical Summary has been prepared.

Commentary — Standing Order 123

Some Acts of Parliament delegate to certain departments, agencies, boards or other authorities the power to make and apply subordinate legislation and regulations described only in general terms in the Acts. [1] To ensure that no legal requirements are imposed on Canadians except those that Parliament itself has approved, such delegated legislation is scrutinized by the Standing Joint Committee for the Scrutiny of Regulations. [2]

Should the Committee conclude that a regulation or some other statutory instrument is not in keeping with the intentions of the Act as passed by Parliament, it may make a report to the House on the matter. If tabled under the provisions of Standing Order 123(1), such a report must contain a resolution that all or any portion of the regulation be revoked. Naturally, the resolution must affect a regulation or statutory instrument under the government’s authority. One report is needed for each regulation or statutory instrument for which the Committee is seeking a revocation.

Pursuant to section (2) of this Standing Order, at least 30 days prior to adopting the report in the Committee, the Committee (in practice, the Co-Chair) is required to inform both the Minister and the agency concerned that a report to the House is being considered.

Pursuant to section (3) of this Standing Order, only one report from the Standing Joint Committee for the Scrutiny of Regulations that aims to revoke a regulation or a portion thereof may be received in any given sitting of the House. [3]

Section (4) of the Standing Order specifies the information which the Member (normally the Co-Chair) is required to give to the House at the time of presentation of the report. First, the Member must indicate the report contains a resolution pursuant to section (1) of the Standing Order. He or she then identifies the regulation or portion thereof for which revocation is being sought and indicates that the relevant text is included in the report. Finally, he or she indicates that the notification requirements, specified in section (2) of the Standing Order, have been met.

By virtue of section (5) of the Standing Order, once such a report has been presented in the House, the Clerk of the House places the resolution contained in the report on the Notice Paper. The resolution stands on the Notice Paper in the name of the person who has presented the report, whether that person is the Co-Chair of the Committee or not. This section of the Standing Order prohibits any notice of motion for concurrence in the report itself from being placed on the Notice Paper.

Commentary — Standing Orders 124 and 125

Standing Orders 124 and 125 provide for the eventual disposition of the resolution referred to in Standing Order 123. After the required notice period has passed (48 hours pursuant to Standing Order 54), the resolution is transferred onto the Order Paper under the rubric “Motions”. If, on the 15^th sitting day after the report was first presented, no motion standing in the name of a Minister seeking that the resolution not be adopted has appeared on the Order Paper, the resolution is deemed to have been moved and adopted, at the ordinary hour of daily adjournment, pursuant to Standing Order 124. If the House adjourns prior to the ordinary hour of daily adjournment on that 15^th sitting day, the report is still deemed adopted. [4]

If, however, a Minister has given notice of a motion to the effect that the resolution not be adopted, a specific debate will take place, the requirements and parameters of which are enumerated in Standing Orders 126, 127 and 128.

Standing Order 125 provides for two eventualities if a Minister has moved such a motion, dependent on the final decision of the House. If the motion moved by the Minister is eventually adopted by the House (in other words, if the House agrees with the Minister that the regulation or portion thereof should not be revoked), the resolution is deemed withdrawn from the Order Paper. If, however, the motion moved by the Minister is defeated (in other words, if the House agrees with the Committee that the regulation or portion thereof should be revoked), the resolution is deemed to have been moved and adopted by the House.

In either instance, a decision on the resolution is made and, pursuant to Standing Order 125, the resolution no longer stands on the Order Paper.

Commentary — Standing Orders 126, 127 and 128

While Standing Order 123 provides for the presentation of a report from the Standing Joint Committee on Scrutiny of Regulations containing a resolution that all or any portion of a particular regulation be revoked, Standing Order 124 provides an opportunity for a Minister to give notice of a motion to the effect that the resolution not be agreed to by the House.

If a Minister decides to avail himself or herself of that option, Standing Orders 126, 127 and 128 allow for a debate to be held and set the conditions of that debate. Specifically, Standing Order 128(1) indicates that when a notice has or notices of motion have met the 48-hour notice requirement pursuant to Standing Order 54 prior to the 15^th sitting day after the Committee report was presented, the House then meets on the next Wednesday at 1:00 p.m. The order of business at that time would be solely the consideration of the said notice or notices of motion.

On that Wednesday, the notice is or notices are taken up and considered for a period not exceeding one hour, pursuant to Standing Order 126(1). A Minister of the Crown determines the order in which the motions (if there is more than one) are considered and all the motions are grouped together for debate, pursuant to Standing Order 127. Members participating in the debate may speak only once and for a maximum of ten minutes. Pursuant to Standing Order 43(1)(c), there is no question-and-comment period following these ten-minute speeches. Points of order on the procedural acceptability of any Committee report may be raised only after the Speaker has proposed to the House all questions on the notices. If a report is thereafter found to be irreceivable, both the resolution based on the report and the corresponding notice of motion given by the Minister are deemed withdrawn.

Standing Order 128(2) provides for two eventualities concerning this one-hour period. If the proceedings on the notice or notices are concluded prior to 2:00 p.m., the Speaker suspends the sitting until 2:00 p.m., pursuant to Standing Order 128(2)(a). If the notice has or notices of motion have not been disposed of when the hour set aside for their consideration has elapsed, the Speaker is obliged to interrupt the proceedings and put all questions necessary to complete the proceedings, pursuant to Standing Order 128(2)(b).

If requested, recorded divisions are automatically deferred until the ordinary hour of daily adjournment later that day, at which time the bells sound for no longer than 15 minutes, pursuant to Standing Order 126(1)(c). Pursuant to Standing 126(2), once deferred, divisions cannot be further deferred by a party Whip acting alone. [5] Pursuant to Standing Order 126(3), the Standing Orders related to the ordinary hour of daily adjournment are suspended until all questions have been decided.

Historical Summary — Standing Orders 123 to 128

In 1971, the House and Senate established the Standing Joint Committee on Regulations and other Statutory Instruments. [6] For the next 15 years, having received a wide mandate “for reviewing regulations and other forms of administrative legislation”, the committee exercised its scrutiny function. [7] During this time, concerns were expressed that scrutiny alone was not sufficient, and in 1985, the Special Committee on the Reform of the House of Commons 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”. [8] In its response to the recommendation, the government proposed an alternative, the power to rescind by House order, which was agreed to by the House in early 1986. [9]

These Standing Orders continued in effect, except for some minor wording changes, [10] until November 2003. In June 2003, Bill C–205, An Act to amend the Statutory Instruments Act (disallowance procedure for regulations) received Royal Assent. [11] The bill provided for a disallowance procedure applying in both the Senate and the House to all regulations. Changes to the Standing Orders to reflect the requirements of the bill were recommended to the House by the Standing Committee on Procedure and House Affairs and adopted on November 5, 2003. [12]

The most significant change was in the process to be followed by the House when deciding on the revocation of a regulation. Prior to the November 2003 changes, if the Standing Joint Committee concluded that a regulation or some other statutory instrument was not in keeping with the intention of the Act as passed by Parliament, it made a report to the House advocating its revocation. A motion for concurrence in the report was automatically placed on the Notice Paper by the Clerk of the House in the name of the Member presenting the report. Pursuant to the rules then in place, the concurrence motion was either automatically adopted or, if requested by a Minister, set down for consideration. If the motion for concurrence was adopted (by either process), it then became a House Order to the Government to rescind the offending regulation.

The November 2003 amendments enabled the Standing Joint Committee to make a report to the House containing only a resolution that all or any portion of a regulation be revoked. The resolution itself (not a motion for concurrence in the committee report) would then be placed on the Notice Paper by the Clerk of the House in the name of the Member who presented the report. This resolution was to be automatically deemed adopted, unless a notice of motion was given by a Minister not to adopt it, thus triggering a debate on the issue.

In May 2004, one further change was made, specifically to Standing Order 124, to provide that the resolution to revoke the regulation or portion thereof would be deemed to be moved on the 15^th sitting day after the report of the committee was presented, as opposed to the 15^th sitting day after the resolution contained in the report was transferred to the Order Paper. [13]

Whether pursuant to the rules in place prior to or after November 2003, the Standing Orders in this chapter have not been invoked extensively. From the adoption of the original text in 1986 to June 2005, there have been only ten reports of the Standing Joint Committee tabled which recommended revocation. [14] A debate took place in two instances only, which resulted, on both occasions, in the report being referred back to the Committee for further consideration. [15]

The House and, more particularly, members of the Standing Joint Committee, have continued, however, to monitor and suggest improvements respecting the study of delegated legislation. [16]