On 1 March 1973, the Standing Joint Committee on Regulations and other Statutory Instruments met for the first time. Its members had been appointed in January 1973, following the presentation, in 1969, of the final report of the Special Committee on Statutory Instruments, known as the MacGuigan Committee.
Fifty years later, that committee has undergone several changes, including to its name; it is known today as the Standing Joint Committee for the Scrutiny of Regulations (the committee).
This HillNote commemorates the 50-year anniversary of the committee’s inception by providing some background information about the committee’s history and its evolution.
The Committee’s Orders of Reference
Parliament can delegate the authority to make regulations to a person or body specified in an Act. This authority might be given because regulations can be made more quickly than legislation or because Parliament might not have the expertise to legislate technical rules. This authority is usually delegated by way of enabling provisions in legislation that permit ministers, departments, agencies and other authorities to make rules on Parliament’s behalf.
The committee’s powers derive from both statutory and sessional orders of reference which make it the committee’s mandate to ensure that this delegated authority is exercised lawfully and appropriately. The committee’s work begins after a regulation has been published in its final form in Part II of the Canada Gazette.
Statutory Order of Reference
The committee’s statutory order of reference, which became law on 19 May 1971 and which has not been amended substantively since then, is set out in section 19 of the Statutory Instruments Act.
Under this order of reference, the committee scrutinizes regulations against several criteria, ranging from questions of validity and legal effect to matters of drafting and clarity.
Although the MacGuigan Committee recommended in its report that six criteria be used, a first set of 14 criteria was adopted by the committee in November 1974. Today, a total of 13 criteria are used, after two of the initial criteria were combined into one.
The criteria have been amended over the years. For example, in May 1982, the criterion whereby regulations ought to conform with the Canadian Bill of Rights was modified to also require compliance with the newly-entrenched Canadian Charter of Rights and Freedoms.
Sessional Order of Reference
In 1969, the MacGuigan report contained a recommendation that the committee “have the power to report at any time on general matters affecting the law or practice with respect to regulations.”
Since 1979, the Senate and House of Commons have renewed a sessional order of reference at the beginning of each session, authorizing the committee to study, enquire into and report upon how “Parliament can better oversee the government regulatory process.”
The committee has conducted studies and presented reports under this order of reference on topics that include the accessibility of documents incorporated by reference in federal regulations and the failure to table regulations as required by various statutes.
Scrutiny Process
Because regulations are made bilingually, they are reviewed by the committee against its criteria in both official languages. This means that, not only are both the English and French versions of regulations reviewed, but also, they must be compared to one another to ensure that both versions are equally authoritative.
If any issues are identified with a particular regulation, the committee may correspond directly with the regulation-making authority to seek a resolution. In such cases, a letter is sent to a senior official from the regulation-making authority in question who, since 1977, has been known to the committee as the designated instruments officer (DIO). This individual works at the deputy-minister or assistant-deputy-minister level. Presently, there are 51 DIOs with whom the committee corresponds about individual regulations.
If an impasse is reached, the committee may invite relevant departmental officials or a minister to appear before the committee to answer questions. The committee may also write to a minister seeking that minister’s reconsideration of a position taken by the regulation-making authority.
The committee does not present reports to Parliament on each statutory instrument that it reviews. Rather, it presents reports case by case, when it seeks to bring the attention of Parliament to a particular issue.
The Power of Disallowance
In addition to all of the usual powers common to parliamentary committees, the committee possesses the unique ability to recommend the disallowance of a regulation. Disallowance refers to the procedure by which regulations or a portion of them may be rejected by Parliament and repealed.
When the committee was first created in 1973, no similar power of disallowance existed except for a few statutes that specifically provided that regulations made under their authority could be disallowed by Parliament.
Today, the disallowance procedure applies to all regulations that stand referred to the committee. Before the committee can adopt a report recommending disallowance, it must provide notice to the responsible minister. The issuance of a notice alone can often lead to a satisfactory resolution of an issue.
If there is no resolution following the issuance of a notice, both houses must agree to a disallowance resolution, which is legally binding.
The disallowance power created in 1986 was used successfully on eight occasions, while the procedure in place since 2003 has been used twice. Both of those cases related to the same provision of the Ontario Fishery Regulations, 1989. According to the initial and subsequent disallowance reports, the committee was of the opinion that the provision in question was not authorized by the Fisheries Act, trespassed unduly on the rights and liberties of the subject, and made an unusual and unexpected use of the powers conferred by Parliament.
However, in both cases, the House of Commons voted not to proceed with disallowance because legislation was later introduced that addressed the committee’s concerns. In the first case, the bill in question died on the Order Paper following a prorogation of Parliament, necessitating a second disallowance report and second bill, which ultimately, was not passed.
The Committee’s Secretariat
The committee is supported in its work by its Secretariat, which also holds the committee’s archives. It also benefits from the support of two joint clerks of the committee and employees of the Senate and House of Commons.
In 1974, when the committee began its substantive work scrutinizing regulations, the Secretariat was composed of two legal counsel and one administrative assistant. Today, the committee is supported on a full-time basis by a team of five legal counsel and two administrative coordinators, under the direction of a general counsel.
In 2009, the Secretariat was relocated from the Senate office buildings to the Library of Parliament offices in downtown Ottawa, and it then came under the management of the Library of Parliament.
In recent years, the Secretariat has been working to transition from a fully paper-based filing system to a modern, electronic solution to support the committee for the next 50 years.
50 Years in Numbers
- 38,446: the number of registered regulations made from 1 January 1972 to 31 December 2023.
- 745: the number of committee meetings held from 1973 to 2023.
- 94: the number of committee reports presented to both houses.
- 2: the number of disallowance reports that have been presented under section 19.1 of the Statutory Instruments Act.
Further Reading
Abel, Shawn and Geoffrey Hilton. The Standing Joint Committee for the Scrutiny of Regulations. Publication no. 2014‑18‑E, Library of Parliament, 21 February 2022.
Bosc, Marc and André Gagnon, eds. “Chapter 17: Delegated Legislation,” House of Commons Procedure and Practice. 3rd ed., 2017.
By Stephanie Feldman, Library of Parliament
Categories: Government, Parliament and politics, Law, justice and rights
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