An Act to amend the Statutory Instruments Act (disallowance procedure for statutory instruments)

This bill was last introduced in the 37th Parliament, 1st Session, which ended in September 2002.

Sponsor

Gurmant Grewal  Canadian Alliance

Introduced as a private member’s bill. (These don’t often become law.)

Status

Not active, as of Feb. 1, 2001
(This bill did not become law.)

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Legislative Instruments Re-enactment ActGovernment Orders

June 12th, 2002 / 3:35 p.m.
See context

Canadian Alliance

Gurmant Grewal Canadian Alliance Surrey Central, BC

Mr. Speaker, I rise on behalf of the constituents of Surrey Central to participate in the debate on Bill S-41, the legislative instruments re-enactment act, which was introduced in the Senate in March.

For years we did not have an opportunity to debate regulatory reforms or parliamentary scrutiny of legislative instruments in the House, but this week coincidentally we have a second debate on this issue. Yesterday I debated Bill C-202 during private members' business. I was a kind and made non-partisan remarks in the co-operative and collective spirit of the House. However, today I cannot help being critical of the government and I will take my full time.

I point out that Bill S-41 is the result of the hard work of the members and legal counsels of the Standing Joint Committee for the Scrutiny of Regulations. I have the honour of being a three term co-chair representing the House of Commons.

The purpose of the bill is to re-enact, in both official languages, legislative instruments that were enacted in one language but published in both official languages; and to allow for the re-enactment of legislative instruments that were enacted in one language but not published, or published in one official language.

Section 133 of the Constitution Act, 1867 provides that acts of the Parliament of Canada shall be printed and published in both official languages. The proposed act would ensure the validity of legislative instruments that are made in only one official language although they may or may not have been published in both official languages. The bill would also confer regulation-making powers on the governor in council to retroactively re-enact those legislative instruments in both official languages.

From 1867 to 1969 most regulations and orders in council were made only in one language. Those instruments were then generally printed and published in the Canada Gazette in both official languages. Prior to Blaikie No. 1 and No. 2 the constitution was believed not to require bilingual enactment of delegated legislation.

Beginning in 1969 the Official Languages Act has required that all rules, orders, regulations, by-laws and proclamations that are required to be published by or under the authority of an act of parliament must be made and published in both official languages. A legislative instrument is made in both official languages when both versions are signed by the competent regulatory authority prior to printing and publishing.

The constitutional requirements that the Supreme Court of Canada held to exist in 1979 were specifically included, in clear and unambiguous terms, in the 1988 Official Languages Act.

In all cases that have come to the attention of the committee, regulations that should have been enacted in English and French were enacted in English only. The issue of the constitutional validity of the federal delegated legislation enacted in English only was first raised in 1992 by the Standing Joint Committee for the Scrutiny of Regulations in relation to the Public Lands Mineral Regulations.

The department argued the constitutional defect was cured by the 1978 Consolidated Regulations of Canada. A consolidation could not serve to validate an otherwise illegal regulation. The department argued that the regulations made in English only in 1969 were valid because the governor in council was in good faith when the regulations were adopted. However, the issue of the good faith of the governor in council in enacting certain instruments is entirely irrelevant to the issue of the constitutional validity of those instruments.

Then the Public Lands Mineral Regulations were revoked and the committee identified four other unconstitutional regulations. There can be no doubt there are others. For example, it was recently ascertained that the income tax regulations were unconstitutional as they were enacted in only one official language. The government dropped the legal argument it had been touting for the preceding four years and returned to the discredited consolidation argument.

The 1978 consolidation is irrelevant from a legal and constitutional point of view. A consolidation, as was pointed out by Senator Gérald Beaudoin in the Senate committee, is at best a housekeeping process that has no impact on the constitutional status of the consolidated legislation.

Then surprisingly the former justice minister acknowledged that the Standing Joint Committee for the Scrutiny of Regulations had put forward a number of opposing arguments which warrant serious consideration. She requested her officials to further study the issues raised and to suggest ways to remove any uncertainties regarding the validity of federal regulations or other legislative instruments which were still in force.

Law does not lend any support to the peculiar interpretation put forward by the Department of Justice. On the contrary the courts have confirmed that section 133 requires the publication in both languages of all legislation to which it applies; nothing more, nothing less.

The Supreme Court of Canada in the Manitoba language rights reference described the purpose of section 133:

--which was to ensure full and equal access to the legislatures, the laws and the courts for francophones and anglophones alike.

and that:

Section 23 of the Manitoba Act, 1870 entrenches a mandatory requirement to enact, print and publish all Acts of the Legislature in both official languages...

It establishes a constitutional duty on the Manitoba legislature with respect to the manner and form of enactment of its legislation. This duty protects the substantive rights of all Manitobans to equal access to the law in either the French or English languages. Those words are equally applicable to section 133. I note that the court did not refer to some acts of the legislature of Manitoba but all acts.

I note that some 20 years after the Blaikie decision the federal government has yet to take measures to identify the extent of its non-compliance with section 133 of the Constitution Act of 1867. Subordinate legislation enacted prior to section 133 should be identified and re-enacted by the appropriate regulation making authority.

The approach chosen by the government in Bill S-41 would distinguish between two classes of non-complying instruments. The first class of instruments is made up of those legislative instruments that were published in both official languages at the time of enactment but that were not enacted in both official languages. Those instruments would be validated by clause 3 of the bill.

The second class of legislative instruments is made up of those instruments which were not enacted in both official languages and were not published in both official languages at the time of their enactment. With regard to those non-complying instruments the federal government apparently does not intend to take corrective action other than to confer on the governor in council a discretion to retroactively validate the instruments in question.

The Department of Justice claimed that to identify non-complying regulations would involve prohibitive costs. I suggest that if the federal government is aware of the legislation that is being applied at the federal level, as it should be, it is a simple enough matter to verify whether or not that legislation was properly enacted in both official languages.

In reality Bill S-41 would only provide a partial solution to the issue brought forward in the committee's report. Following passage of the proposed legislation there would continue to be a number of unconstitutional regulations in place that would not have been validated.

The proposed clause 4 is premised on the continued application of and enforcement of legislative instruments that the federal government knows to be unconstitutional. The propriety of this approach in constitutional terms is questionable. Because it does not wish to engage in the task of identifying with precision the class of instruments referred to in clause 4, the government is content to allow those legislative instruments to continue to be applied in spite of their unconstitutionality.

In the event a person raises the issue of the unconstitutionality of such a legislative instrument by way, for example, of a defence to a criminal prosecution, the governor in council would intervene to deprive the person of their defence by retroactively deeming the unconstitutional instrument to have been validly made.

The preamble to the Canadian Charter of Rights and Freedoms recites that Canada is a society founded on principles that recognize the rule of law. Is it too much to expect that in such a society, a government is under an obligation to take active steps to remedy constitutional defects of which it is aware and has been aware for at least 20 years?

The instruments referred to in clause 4 are not unconstitutional only on the grounds that they were enacted in only one official language. Clause 4, as noted above, applies to instruments that were not enacted in both official languages but that also were not published in both languages.

Any legislative instrument referred to in clause 4 would be unconstitutional even if it had been enacted in both official languages on the grounds that it was not printed and published in both languages.

Clause 4 of the bill does not appear to contemplate the existence of instruments enacted in both official languages but not printed and published in both languages. Of course this is consistent with the hypothesis put forward by the Department of Justice according to which the government may choose not to print and publish a legislative instrument, in which case section 133 would not apply to the instrument. For reasons stated before, I reject that hypothesis.

Clause 3 of the proposed legislation satisfactorily resolves the problem of constitutional non-compliance with regards to all legislative instruments made in only one language but published in both official languages at the time of enactment.

As for all non-complying legislative instruments, it seems to be the view of the federal government that it is acceptable to maintain these laws in place notwithstanding their unconstitutionality.

The federal government is apparently incapable, 20 years after the second Blaikie decision, to identify those instruments made or approved by governor in council or a minister that forms part of the body of the federal delegated legislation.

It could well be argued that there is no justification for delegated legislation which does not comply with section 133 of the Constitution Act, 1867, either because it was not enacted in both official languages or because it was not published in both official languages, to continue to be enforced by public authorities, and that any such legislations are to be formally revoked or expressly validated. This is not what clause 4 of the proposed legislation proposes.

On May 2, 2002, Senator Hervieux-Payette and I appeared before the Senate committee charged with the review of this legislation in our capacity as joint chairmen of the Standing Joint Committee for the Scrutiny of Regulations. We urged the committee to amend Bill S-41 to ensure that the unconstitutional legislation referred to in clause 4 of the bill would not continue to be applied indefinitely.

In that regard we suggested that an appropriate legislative model was furnished by section 32 of the Statutory Instruments Act which provided the following.

“Where a regulation or an amendment thereto has not been published in the Canada Gazette and is of such a class that, if it were made after the coming into force of this act, it would not be exempted pursuant to paragraph (c) of section 27 from the application of subsection (1) of section 11, it shall be deemed to be revoked on a day 12 months after the day on which the act comes into force unless before that day it is transmitted to the Clerk of the Privy Council in both official languages, in which case the Clerk of the Privy Council shall, notwithstanding subsection (1) of section 7, register the regulation forthwith”.

The alternatives that are consistent with the government's obligation to respect the rule of law are: first, to identify all legislative instruments subject to section 133 of the Constitution Act, 1867 that do not comply with the requirements of that section and to re-enact them in such a way as to cure the constitutional defect; or, two, to formally revoke all noncomplying legislative instruments as unconstitutional legislation that has no place in the corpus of federal law.

A transitional provision patterned on section 32 of the Statutory Instruments Act represents a compromise between these two approaches. I am very happy to see that the Senate has amended the bill in the manner suggested by us and that the new subclause 4(7) provides that: “Upon the expiration of 6 years after this act comes into force, any legislative instrument described in subsection (1) that has not been re-enacted in both official languages is repealed. Any instrument submitted for re-enactment within 6 years could in fact be re-enacted, but at the expiration of that time period all non-complying instruments would be formally revoked”.

While some would argue that the delay of six years, which this clause gives to the government, is excessively long considering that the government has already had 20 years in which to correct the situation. It will nevertheless bring closure to this issue.

While I think that the one year delay we suggested to the Senate committee was entirely sufficient, I will support clause 4(7) as it was added in the legal and constitutional affairs committee of the Senate.

Bill S-41 would provide that the present and previous governments have been ignoring the rule of law, respect for the charter and the importance of linguistic duality in Canada and thereby allowing uncertainty.

It is the government's constitutional obligation to respect the rule of law. Cost cannot be a criterion in order to correct mistakes of abdicating constitutional obligation made in the past. It is respect for the rule of law which is important.

We in the Canadian Alliance believe that constitutional validity must be preserved in order to protect Canada's unique dualistic bilingual structure. By enacting legislation in only one language, the government risks isolating its citizens further. This is a very dangerous domestic policy to support.

I would also like to point out that what is troubling is the government's attitude: its approach to democracy, transparency, accountability and openness; and its arrogance and sometimes even bullying or do not care attitude. The government has taken 20 years in this case and what it has done is pathetic.

First, the government ignores the problem. Then it denies there is an issue. And then it bends over backwards to argue its case, baseless as it may be, against the strong and logical arguments from the general counsel of the Standing Joint Committee on the Scrutiny of Regulations. Once it is convinced it will then drag its heels and not properly correct the mistake or the error it made in the first place. That is the most serious problem the standing joint committee faces.

Some of the files have been in the pipeline for as long as 5, 10 and even 20 years. All this adds up to a huge backlog of instruments whose legality or validity is questionable. As I mentioned earlier,it necessitates the need for regulatory reform.

The following are some of the improvements I would propose to the government.

The federal Liberal government does not govern, but rules Canada. It introduces bills that lack substance, are vague in intent and often written in incomplete and general terms, leaving the door wide open to put through regulations that define our laws without proper checks and balances. By doing so, the Liberal government effectively has gutted the parliamentary process of accountability and transparency in the formulation of its laws representing further erosion of the rights and powers of parliament. Parliament is no longer at the centre of the law-making process. It is the regulations that give form and substance to legislation instead of the government bills.

Only 20% of Canadian law is made in parliament. The remaining 80% is added through the back door by way of regulations which are neither debated nor subject to effective public scrutiny.

The role of parliamentarians to formulate legislation is very limited. Scrutiny of regulations is thus an essential task in protecting democracy, transparency, legitimacy and in controlling bureaucracy. The regulatory burden, also called red tape, faced by Canadian businesses is very high and is a costly impediment to productivity and growth. In addition to restricting people's freedom to make their own choices, rules and regulations dampen innovation, discourage investment, stifle entrepreneurship, weaken competitiveness, curtail job sand lower the standard of living of Canadians.

Canadians spend over $100 billion per year, which is 12% of GDP, to comply with federal, provincial and municipal regulations. If we convert it, that is about $13,700 per household. This spending is second only to shelter. This cost exceeds total personal and corporate income tax collected by the federal government. Red tape is a hidden tax.

Between 1975 and 1999 more than 117,000 new federal and provincial regulations were enacted which would measure 10 stories high when stacked. Each regulatory program is a monument to a past problem.

The only means for parliament to scrutinize its regulations is through the House and Senate Standing Joint Committee of for the Scrutiny of Regulations, which I had the opportunity to co-chair. The committee has been operating without statutory footing for many years, perhaps since 1974. Before the committee uses its ultimate weapon of disallowance, in some cases the process can take 5, 10 or 20 years. This is unacceptable.

The current disallowance procedure was meant only as a temporary measure since 1987 and it has to be on permanent statutory footing. I will not elaborate on this because I spoke on it yesterday. I will move on to some other issues that I would like to bring to members' attention.

I would like to make some recommendations. The delegated regulations and other statutory instruments must be referred to the appropriate committee of the House in addition to the joint committee on regulations. It will provide the House with a check on the enabling clauses in the bills that allow the making of subordinate legislation. They can look to the regulations based on policy and merit because of the committee tenet.

The realistic alternatives to regulations, such as negotiated compliance, should be explored and the focus should be results based and not based on the process. There can be market or tax incentives or disincentives.

Regulations should be written in transparent, simple and easy to understand language. The primary clientele of government regulations is the public and not the legal professionals.

Another recommendation is that a cost benefit analysis should be done and published before making regulations. Estimation of competitive and impact analysis and enforcement cost and risk analysis would also be helpful. Regulators are largely insensitive to the hidden costs of regulations and unaware of alternatives.

Regulatory service standards should be established and a fast track approval process developed for products already found to be safe in other jurisdictions.

The Canadian tradition of promoting social policy objectives through economic regulations is a luxury with a high but hidden price tag. A strong social safety net is only possible if first there is a strong economy.

Regulatory action should be harmonized if possible with the existing provincial, national or international standards and regulations. There should be greater regulatory co-ordination, co-operation and even consolidation among various levels of government. There is a need for greater sensitivity in Canada to the regulatory structures and shifts in the United States and other major trading countries. We have no choice but to adapt to them. It does not mean imitating, but bending to international realities.

An interprovincial standardization commission should be established. Canada contemplates free trade with the United States, yet regulatory barriers to trade inside its own borders must be dismantled. Professional standards and licensing rules, such as the free flow of capital, consumer protection laws, export laws for unprocessed provincial goods, truck safety and measurements should be standardized.

Regulatory proposals must include a sunset clause or performance review to ensure they meet the desired objectives and results. In France, government forms have an automatic sunset review date. Reverse onus should be put on the process. Relevance, effectiveness and timeliness of regulations should be monitored.

The clogged pipeline of files needs to be cleaned. Accumulation leads to strangulation. The total cumulative burden of regulations is the number one regulatory problem. Departments and agencies should be encouraged to do a cleanup of redundant and obsolete regulations by eliminating and preventing non-essential procedures, forms, licences and regulations that do nothing meaningful other than adding to the cost of dealing with the government.

Canada has reached a point where more good regulations are thrown after bad ones which causes a sinkhole effect. In a federal regulatory sedimentation system, over time layer upon layer create an unsystematic bundle of constraints and disincentives. Dormant regulations are like sleeping dogs and take up space, require occasional upkeep and pose a potential threat in the public sector.

Omnibus repeal legislation should be introduced. A reliable regulatory inventory and review of the accumulation should be prepared to identify problem areas and classify regulations as the good, the bad and the ugly. The government should be brought into the 21st century with the use of advanced technology.

The regulatory responsibility is intentionally split between or among various departments and agencies. One department carries on research and forms a judgment about a product yet the responsibility for whether or not that judgment is implemented rests in another department. Splitting responsibility encourages duplication, internal red tape and diffusion of responsibility and accountability.

For example, with the environment and fisheries departments, one department justifies the regulation making and the other department implements it. Other examples would be health, labour, transport and immigration; finance and national revenue; and health, agriculture, the human rights commission and employment insurance. For all of them there is loss of publication.

No internal regulatory commitments should be entered into without a careful regulatory impact analysis to ensure that international proposals are in tune with Canada's interests, for example, the Kyoto commitment.

Canada can learn from American and other international experiments about new approaches to regulations. These should be monitored both for lessons we should emulate and experiments we should avoid.

Many times penalties are too low in relation to the proceeds of violence or crime. Serious offenders get an unfair economic advantage. Serious non-compliance must be made unprofitable. Due to inadequate penalties, the government adds additional regulations to bolster the original regulations, for example in fisheries. Inadequate penalties entirely nullify the effect of the regulations, for example, penalties for smuggling humans or drugs.

Reliance on criminal sanctions can have a similar nullifying effect by virtue of being so heavy that the burden of proof becomes extremely difficult, legal proceedings commensurately too expensive and judges and juries too reluctant to convict.

There is a need to identify all regulatory statutes whose penalties have become inadequate. Omnibus amending legislation should be put before parliament.

Canada should introduce a regulatory flexibility act similar to the one in the United States to provide for tiering of regulations, administrative procedures and federal program delivery to recognize the limited financial and managerial capacities of small businesses. The government should be sensitive to the time pressures of small businesses and their limited resource pools.

Small businesses are the economic engine of Canada. They could be allowed a three to five year regulatory honeymoon period in which new businesses may be exempted from complying with certain tough regulations without compromising safety, health and environmental protection, for example, stringent labour standards. Any voluntary expenditure for occupational health and safety could be allowed as a business tax write-off.

Departments and agencies responsible for financial costs of regulatory litigation should pay their legal costs from their budgets to provide an incentive to regulators to ensure that their regulations are well prepared and enforceable and to prevent shaky prosecution. Departments and agencies should also pay the legal costs of private citizens and small businesses when a prosecution is unsuccessful and was questionable and intimidating.

The House of Commons should give itself, through its joint standing committee, the means, in terms of adequate number of legal counsel, equipment, communication tools and other resources, to make the scrutiny more meaningful. Previous problems concerning employees' salaries and the number of employees should not be allowed to be repeated. This is important for the morale of those working very hard in support of the committee.

When the standing joint committee tables a report in the House of Commons and desires a response from parliament, it simply mentions that it has made a similar request in the report tabled in the Senate. Within 150 days of the presentation of a report, the government shall table a response thereto, but no similar provision exists in the rules of the Senate. That is a problem of compatibility of the procedures in the House of Commons and the Senate with respect to disallowance, reports and so on.

The revocation of an instrument disallowed by the House of Commons is currently dependent on a decision of the governor in council or a minister to obey the order the House.

The current procedure for disallowance is not encoded in law. We need to make amendments to the Statutory Instruments Act so that the standing orders which lay out the procedure for disallowance have a statutory footing and can be implemented successfully. Moreover, it should be applicable to all the instruments, rather than those instruments which are made by the governor in council or a minister.

The disallowance procedure and the scrutiny of legislative instruments should be applicable to those instruments which are made by authority delegated by parliament to various agencies and boards, such as the National Energy Board, the National Transportation Agency, the CRTC and so on. There needs to be a statutory footing by amending the Statutory Instruments Act for the disallowance procedure.

The government should have a mechanism in place to measure the regulatory burden on individuals and businesses.

I will close my remarks by saying that we support Bill S-41 because we need to have all legislative instruments not only made but printed and published in both official languages of Canada.

Statutory Instruments ActPrivate Members' Business

June 11th, 2002 / 6:50 p.m.
See context

Canadian Alliance

Garry Breitkreuz Canadian Alliance Yorkton—Melville, SK

Madam Speaker, I thank the member for Surrey Central for the opportunity to speak today in support of his private member's bill, Bill C-202.

Before getting into my remarks, I thank the hon. member for all the diligent work on the Standing Joint Committee on Scrutiny of Regulations that he has done. Much of that work is not visible to the public. While it is a committee that works in relative obscurity, it is important work indeed. It takes a dedicated parliamentarian to do this important work without the publicity or recognition that it deserves. For his dedication to democracy, I wish to compliment him. The constituents in Surrey Central should be proud of the work that their member of parliament is doing in the House of Commons for their benefit and the benefit of all Canadians.

I have been in the House for almost nine years. The experience has caused me to question the effectiveness of democracy and how it operates in Canada. I will speak a lot from my experience in the House.

For those Canadians watching on television, I want to outline what we are doing here and simplify the debate. Day by day we debate all the laws in Canada by which Canadians need to live. We continually try to fine-tune through our debate and analysis of bills the laws that are passed here and to which all Canadians must adhere in their day to day lives.

Legislation passed by the Liberal government is mostly enabling legislation. By that I mean the laws enable the government through regulation to determine the details of the legislation by which we all have to live.

The key point to be made, and that is what we are discussing, is that much less scrutiny is given to the regulations in the House. That is an extremely serious flaw in the legislative process. However we do have a committee that deals with that.

It is often said when we are talking about a contract or agreement that the devil is in the details. The regulations are the nuts and bolts and determine how the legislation will affect the daily lives of Canadians. We need to strengthen that part of the process. Bill C-202 is an important step in that direction. Canadians are greatly affected by regulations. We can liken it to the fine print in a contract.

To give Canadians an idea of how much work the standing joint committee is required to do, I dug out some statistics that were prepared for me last year by the research branch of the Library of Parliament. In just seven years, between 1994 and 2000, the Liberal government introduced 4,931 individual statutory instruments and statutory order regulations. That is 23,566 pages of federal regulations. The sheer volume of the work before the standing joint committee is overwhelming. We should not make its job more difficult when it identifies a regulation that does not comply with the laws passed by parliament. That is important.

It might be embarrassing for the minister and the government when the standing joint committee discovers that they did not follow the government's own laws but we should not tie the committee's hands when it wants to correct these regulatory errors.

It is clear to almost everyone that the disallowance procedure for statutory instruments should be part of the legislation. That is the oversight Bill C-202 attempts to correct.

As it stands now, if the standing joint committee identifies a regulation that does not comply with the laws passed by parliament, it issues a report to both the House of Commons and the Senate to disallow the specific regulations that were made in error. However under the disallowance procedure followed now, it is left completely to the discretion of the minister of the crown or the governor in council, which is really just a council of ministers, to revoke, amend or ignore the regulations identified in the report of the standing joint committee. Even the courts are unable to do anything about a regulation that is subject to a disallowance report.

Bill C-202 will fix those obvious defects. The purpose of the bill is to bring the Statutory Instruments Act into the 21st century.

This bill will give the disallowance procedure a firm legal footing. In the process it will strengthen our democratic processes and thereby be of great service to all Canadians. Once a law is passed by parliament giving the government the power to make regulations, it is vital to our democracy that these regulations be in full compliance with the law.

I will not have the opportunity to finish my remarks but I will conclude by saying that I have had a lot of personal experience and I feel that we do not realize how important this change is to the parliamentary process. We really cannot fix the flaws that thwart the democratic process. This is private members' business and I appeal to all people to pay close attention to it. All backbench MPs should carefully look at this bill because it will improve the legislation in the House. I hope I can conclude my remarks at some other time.

Statutory Instruments ActPrivate Members' Business

June 11th, 2002 / 6:30 p.m.
See context

Canadian Alliance

Inky Mark Canadian Alliance Dauphin—Swan River, MB

Madam Speaker, I am pleased to take part in this debate on behalf of the P.C. Party of Canada. Let me first congratulate the member for Surrey Central on his Bill C-202, an act to amend the Statutory Instruments Act, disallowance procedure for statutory instruments.

For our viewers, let me repeat the intent of the bill. This enactment would establish the statutory disallowance procedure that would be applicable to all statutory instruments, subject to review and scrutiny by the Standing Joint Committee on the Scrutiny of Regulations. In so doing, this enactment would ensure that parliament would have the opportunity to disallow any statutory instrument made pursuant to authority delegated by parliament or made by or under the authority of the cabinet. In other words, the committee would have the right to really have some teeth and scrutinize the regulations that come before the committee.

This disallowance procedure is very necessary to hold the government accountable. Currently there is no provision to disallow badly flawed regulations.

We heard the member from the government side state that the committee could send to the government by resolution the suggestion or list of regulations that should be disallowed. Through the years I have been here, I have not experienced that.

I have had real experience and I have sat on the Standing Joint Committee on the Scrutiny of Regulations. Back in 1997, when I first came to this House, I really found out how difficult it was to get rid of poorly crafted regulations, thousands of regulations, that came before the committee. One thing I realized was we were looking at regulations not one or two years old, but three, four, five and six years old.

My own opinion is that the joint committee really has no teeth. In other words, because it takes so much time to scrutinize the regulations that come before committee, it takes years and years of work before anything can possibly happen.

If the House is to have some control over the thousands of regulations that are written, then a disallowance procedure is a must. Surely there must be some regulations that are unnecessary. At this time there is no method to disallow other than reporting back to the House. A case in point are the regulations pertaining to Bill C-68. Many of the regulations under that piece of legislation are unnecessary and need to be rejected.

Over the last 30 years we have seen government abuse the use of orders in council to approve all kinds of regulations with no formal scrutiny. In my opinion this is a pure abuse of power.

The government members say that authority is delegated to the government. Yes, I believe they do have lots of delegated power and authority, but all authority needs to be scrutinized at all times.

Today in a world of framework and enabling legislation, which seems to be the kind of legislation we experience daily in this House, legislators have very little control over legislation. As the House knows, it is still the norm that ministers rarely table any regulations with the standing committees. The exception to that is the immigration committee which I sit on. In the last month we literally scrutinized Bill C-11 regulations, which was rather unusual to say the least.

Let me talk a little about regulations per se. As members know, regulations cover all areas of our life and they impact all of us daily. On the fiscal side certainly, regulations are a form of hidden taxation. As they raise the cost of doing business, Canadians end up paying relatively higher prices for goods and services.

They also kill jobs by making Canada less competitive. In fact on the agricultural side, farmers are always complaining, rightly so, about the new taxes they have to pay. Again a lot of it is assessment by regulations.

The government does not always consider whether a new regulation will meet its goal, whether it is the most cost effective method of protecting the public or whether it will have unintended side effects. I guess that is why we have a joint committee to scrutinize regulations, but again if that joint committee does not have real teeth to deal with bad regulations then it really is just exercise in futility.

In some cases less costly alternatives such as negotiated compliance are not considered. A regulatory environment that subjects the economy to regulations only where and when needed is critical to the creation of a vital and vibrant economy. However the regulatory burden imposed on Canadian business acts as a costly impediment on the productivity growth that is essential to an improved standard of living. We hear very little about regulations that impact the economy on the economic side.

The view of the PC Party is that governments should work toward the co-operative elimination of excessive regulations, overlap, duplication and waste in the allocation of responsibilities between the federal, provincial and territorial governments. We are probably the most over-governed and over-legislated country in the world. We love to create legislation without reviewing old legislation. A member from the opposition side asked why a lot of our bills did not have sunset clauses. That is an excellent idea.

Governments should implement an annual red tape budget which would detail the estimated total cost of each individual regulation, including the enforcement cost to the government and the compliance cost to individual citizens and businesses.

Governments should also establish regulatory service standards and devote the resources needed to meet those standards, thus ensuring they do not result in undue pressure being placed upon regulators to improve questionable products.

Governments should also work toward ensuring that user fees which are tied to regulatory approval are limited to no more than the cost of actually providing that approval. Further, those fees should be used to improve services allowing for greater regulatory approval.

In light of the effect it has on the economy of the country and on the lives of people, does it not make sense that all new regulations be scrutinized by the standing committees of the House? That at least should be a minimum requirement. We would require new regulations to be written in a way that is simple and easy to understand. All new regulations should be scrutinized by the standing committees, as I have just indicated.

A Progressive Conservative government would ensure that all proposed regulations are put on the departmental website for 30 days to allow for greater public awareness before they are published in the Canada Gazette .

In closing, regulations impact us daily but the problem is we really do not have an effective vehicle to scrutinize regulations and get rid of the ones that should not be there and that in effect do nothing for the country or for us as people of the country. The PC Party of Canada supports Bill C-202.

Statutory Instruments ActPrivate Members' Business

June 11th, 2002 / 6:25 p.m.
See context

Bloc

Pierre Brien Bloc Témiscamingue, QC

Madam Speaker, tonight we are debating Bill C-202, a private members' bill from the member for Surrey Central, one of the co-chairs of the Standing Joint Committee for the Scrutiny of Regulations.

This bill may appear highly technical for those following the debate, but it is very important for parliamentarians, particularly given that many governmental decisions are made in the regulations rather than in the acts per se.

The purpose of this bill is to improve procedure so that members of the House can disallow a statutory instrument. People should know that there is a parliamentary committee that reviews regulations. It assesses the regulations and their consistency with the statute. In other words, it ensures that the regulations are legally justified, that they are well drafted and that they are within a justified context, with a solid legal foundation.

Occasionally, it is surprising to observe that by a simple error, and not because of bad intentions, statutory instruments are not consistent with the statute, which can lead to significant problems.

In other cases, it is clearly the lack of good faith in certain departments that leads them to draft statutory instruments where they have a tendency to expand powers more than they could otherwise.

As such, when members identify such a situation, they report it to the House. The bill at hand would improve the procedure available to members to disallow these regulations, but also to pressure the government to let the House debate these issues.

I am lucky—or unlucky, depending on your perspective—to sit on the Standing Joint Committee for the Scrutiny of Regulations, where the work is very technical, but nonetheless very interesting. We study cases where, after having identified a problem, we advise the department concerned, which then tells us “Your regulations are not consistent. You must redraft them. You are overstepping your powers”. Then an exchange of correspondence and discussions take place for years between the Standing Committee for the Scrutiny of Regulations and the departments involved. In cases such as these, the process is ineffective and meaningless.

Obviously, there are a great many statutory instruments, and I have a great deal of respect for those involved in drafting them. They are very competent people who are required to process an inordinate amount of information in a short time. However, the significant workload leads to problems. Furthermore, we must at least feel as though parliament has the will to correct things when problems are identified.

The remarks of the Liberal member who said “The government is always prepared to listen to new ideas to help elected members be more effective, but we will not support this bill” concern me.

For those who know how statutory instruments are dealt with, the process lacks any teeth. Ministers and departments do not take us seriously.

There has been talk since December about disallowing regulations based on exchanges or a disagreement between the committee and the Department of Fisheries and Oceans, in this case, but nothing ever comes of it. We never manage to do as much as we want. It is even complex getting the committee report on disallowance concurred in, but as soon as it is, the House will have to at least look into the matter in a more efficient fashion.

I will not dwell on the technicalities of the legislation, but there is pressure to respond within the short timeframe within the bill, which I find very interesting. The member in question knows a great deal about the subject, which is based on a recommendation that goes back some 15 years, to move in that direction. So, this is an idea that is again being raised here to say “This is something we should have done a long time ago”.

I feel compelled to warn members that they should be concerned about the fact so much goes through regulations instead of the legislative process.

If we members of parliament want to retain some control over the decisions taken, the legislation has to be as explicit as possible. When regulations are made to complement the act, as is the case for immigration here, mechanisms have to be enshrined in the act to ensure that the political base for the legislation is reviewed.

Today for example, in connection with the Immigration Act, the Standing Committee on Citizenship and Immigration has the power to review the regulations. The minister had to table them in the House. It is therefore not something that we see regularly, but it is at least going in the right direction.

However, many departments and ministers do not place such constraints on themselves. The governor in council is adopting many regulations that are not submitted to us.

One of the objectives of the member's bill is to ensure that when there are problems with the on the legal foundation or basis for the regulations, we can at least take this power back or give ourselves tools to make ministers and departments more accountable to this House.

I can therefore only applaud this initiative. I will support it and urge my colleagues to do the same. I hope that a majority of members will support it, so that we can finally have greater influence on decisions made in this House, perform to the maximum our role as members and balance a little better the powers between ministers and departments, and the members of parliament.

I support the member's initiative because it gives us a little more teeth to do our job. When time comes, I will support it.

Statutory Instruments ActPrivate Members' Business

June 11th, 2002 / 6:15 p.m.
See context

Northumberland Ontario

Liberal

Paul MacKlin LiberalParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Madam Speaker, I am pleased to speak to Bill C-202, an act to amend the Statutory Instruments Act (disallowance procedure for statutory instruments), introduced by the hon. member for Surrey Central.

The bill relates to the critical role that parliamentarians have to oversee the exercise of delegated legislative powers. For the past 30 years the Standing Joint Committee for the Scrutiny of Regulations has performed an invaluable service to the House and the Senate, as well as to the Canadian public generally in its review of statutory instruments made under acts of parliament.

In 1986 the role of the standing joint committee was augmented by the addition of chapter 14 to the Standing Orders of the House of Commons. This chapter provides what are often called disallowance procedures for the revocation of statutory instruments. These procedures involve the tabling of a report by the standing joint committee containing a resolution that a statutory instrument be revoked. If the resolution is adopted it becomes an order of the House to the government to revoke the statutory instrument in question.

To date, these disallowance procedures have been used to adopt a total of eight resolutions. The disallowance procedures of the standing orders process have worked well. The government has complied or is preparing to comply with all of the resolutions that have been adopted by the House.

Today we are being asked to consider a bill that would significantly extend the existing provisions for the parliamentary oversight of delegated legislation. It would amend the Statutory Instruments Act to include disallowance procedures similar to those that already exist in the Standing Orders of the House Commons.

However, there are some important differences between the current disallowance procedures and those proposed in the bill. The first is that the bill proposes to move beyond the traditional role of holding the government accountable to the House. It proposes that the House revoke statutory instruments itself. Another difference is that the proposed procedures would extend to all statutory instruments and not just to those made by the government, as is the case with the procedures in the standing orders.

Although I firmly support the procedures in the standing orders I have serious concerns about the bill. I would like to highlight these concerns by discussing the differences I have noted between the bill and the disallowance procedures in the standing orders. As I mentioned, the procedures in the bill provide that a resolution of the House would be effective to revoke a statutory instrument.

Under the existing procedures in the standing orders it is up to the government to decide whether and when to revoke a statutory instrument in response to a resolution. This might be described as a fail safe mechanism, which would be lost under the proposed provisions of Bill C-202. The fail safe mechanism allows the government to safeguard against gaps in the law that might result from the revocation of a statutory instrument and that might have unforeseen consequences.

This safeguard is particularly valuable when flexibility is necessary to give the government time to consider the implications of a disallowance report. A fail safe mechanism also helps to avoid gaps in the law.

Often there is a need for some regulatory measures and if the disallowed measures are not appropriate then alternative provisions are needed to replace them. The development of alternative provisions usually requires significant capacity to develop regulatory policy as well as familiarity with the regulated community.

This requires technical expertise and a consultative process that the government is generally in the best position to provide. This is recognized by the fact that parliament has delegated to the government the regulatory powers in question.

Another concern is that the bill would extend existing disallowance procedures to non-ministerial regulations. The bill provides that disallowance procedures would apply to any statutory instrument. This includes a vast number of documents, many of which are made by bodies that operate independently of government. Examples include administrative agencies such as the CRTC and the Canadian Transport Commission; the courts that make rules of procedure; aboriginal law-making bodies such as Indian bands; agricultural marketing boards; and local port authorities.

Although current disallowance procedures are appropriate for regulations made by ministers of the crown, it is not at all clear that they would be appropriate for the wide variety of other law-making bodies that make statutory instruments. The extension of disallowance procedures to instruments made by these bodies could raise the prospect of inappropriate parliamentary involvement in the affairs of bodies recognized as requiring a degree of autonomy in conducting their affairs.

The bill raises other concerns in addition to the two I have discussed. First, it would enshrine a parliamentary process in legislation. This would be a significant precedent which could invite court challenges to the business of the House.

Second, statutory disallowance powers that apply generally to all forms of delegated legislation are exceptional in Canada and parliamentary democracies such as the United Kingdom. Although statutory procedures are sometimes enacted for particular regulations, such general powers are not usual in these jurisdictions.

Third, the proposed procedure would not include a role for the Senate in the disallowance resolution. Although the Senate is represented on the standing joint committee it would have no role in approving disallowance resolutions. Some may argue that this presents no difficulties since the procedures operate through the political accountability of the government to the House. However under Bill C-202 the procedures would operate directly and automatically by force of statute. This could raise objections from senators about being excluded from decisions made under a statute the Senate helped enact.

The government is committed to ensuring parliamentarians have an effective role in overseeing the exercise of delegated legislative powers. In addition to implementing resolutions under the existing disallowance procedures in the standing orders the Minister of Justice, like his cabinet colleagues, is committed to addressing concerns raised by the Standing Joint Committee on the Scrutiny of Regulations and making sure officials of their departments take the concerns every bit as seriously as they do.

I remind all members that the government always welcomes suggestions on how the working relationship between parliamentarians and the government can be improved.

Statutory Instruments ActPrivate Members' Business

June 11th, 2002 / 5:55 p.m.
See context

Canadian Alliance

Gurmant Grewal Canadian Alliance Surrey Central, BC

moved, seconded by the member for Scarborough Southwest, that Bill C-202, an act to amend the Statutory Instruments Act (disallowance procedure for statutory instruments), be read the second time and referred to a committee.

Madam Speaker,I am very pleased to rise on behalf of the constituents of Surrey Central and in fact all Canadians to debate my private member's bill, Bill C-202, an act to amend the Statutory Instruments Act, disallowance procedure for statutory instruments, also called negative resolution procedure.

I would like to thank the hon. member for Scarborough Southwest, a veteran Liberal member and vice-chair of the Standing Joint Committee on Scrutiny of Regulations, for seconding the bill.

As members will recall, a similar bill was tabled by the hon. member for Vancouver Island North in 1996 but it died on the order paper. The proposed amendments to the Statutory Instruments Act largely mirror the current disallowance procedure which is set out in the standing orders of the House of Commons.

For the information of the folks who are listening and watching the debate on the TV, statutory instruments or regulations, also called delegated legislation, give form and substance to legislation. As the saying goes, the devil is in the details or sometimes in the fine print. Let me say that here in this business the devil is in the regulations.

Twenty per cent of the law in the country is made up of legislation. The remaining 80% of the law is made up of delegated legislation, commonly called regulations and frequently called red tape. Legislation or bills are passionately debated in the House and voted in parliament, whereas there is virtually no debate, public input or even media scrutiny on regulations. This is an affront to democracy.

The only and limited scrutiny of delegated legislation or regulations in parliament is done by the Standing Joint Committee on Scrutiny of Regulations, a joint committee of the House and the Senate. The members of the committee, legal counsels and staff, work very hard scouring through thousands of papers on dry, technical and legal subjects doing a painstaking, fastidious and thankless job. This is a committee that is generally misunderstood and ignored but it is an essential watchdog in protecting democracy, controlling bureaucracy and holding the government accountable. There is room for more public input and interest by the media.

The joint committee is non-partisan or less partisan and more objective than other committees of parliament. Its scrutiny of the regulations is limited to the validity and legality on the basis of a set of uniform and defined criteria and not on the basis of policy matters, general merits or necessity of a statutory instrument.

The committee works meticulously but due to many elements involved it works at a slow pace. That is the nature of the committee. It has a huge backlog of work in progress. Staff and resources allotted to the joint committee for the important work it does are nowhere near adequate.

I happen to be a three term co-chair of the joint committee representing all members in the House. Members across all party lines and legal counsels of the committee support Bill C-20 and it is on similar lines written earlier by the standing joint committee to the justice minister for appropriate action.

The joint committee works to improve and correct defects in regulations but its ultimate weapon is to disallow defective regulations, only used when strictly necessary. The status quo disallowance procedure is seriously defective.

Bill C-202 would establish a statutory disallowance procedure that would be applicable to all statutory instruments subject to review and scrutiny by the Standing Joint Committee on Scrutiny of Regulations. This enactment would ensure that parliament will have the opportunity and the ability to disallow any statutory instruments made pursuant to authority delegated by parliament or made by or under the authority of the cabinet.

Through the bill, the Statutory Instruments Act is amended by adding a new section comprising the 10 subsections after section 19, which is the procedure for the disallowance of subordinate and delegated legislation.

Disallowance is a means at the disposal of parliament to control the making of delegated legislation. Parliamentarians are given an opportunity to reject a subordinate law made by a delegate of parliament.

Any general disallowance procedure ought to have a statutory basis. The lack of a general disallowance procedure as a means of asserting parliamentary control of delegated legislation prompted a great many recommendations that such a procedure be put in place.

Following the recommendation of the McGrath committee and as part of its overall regulatory reform strategy, the placement of the current disallowance procedure in the standing orders in 1986 was intended to be on an experimental and temporary basis.

The time has now come to give a more permanent status to that procedure, which was temporary and on an experimental basis, through its inclusion in a statute, preferably the Statutory Instruments Act.

In its 1992 report, the subcommittee on regulations and competitiveness of the finance committee recommended that the defect in the current procedure be addressed by proceeding with the adoption of a statutory procedure covering all statutory instruments. A mere resolution of the House of Commons is all that is required to amend the standing orders of the House.

Disallowance would be most appropriately dealt with in the Statutory Instruments Act but it can also be dealt with in a number of other statutes, such as the Parliament of Canada Act, the Interpretation Act or even in distinct statutes. Various disallowance procedures have been in existence in other Commonwealth jurisdictions for many years.

I would mention two glaring defects of the current procedure. First, that the procedure only applies in the House of Commons and not in the Senate.

Second, the disallowance is limited to those statutory instruments that are made by the governor in council or ministers of the crown. A fairly large body of subordinate law is not subject to disallowance, thus to parliamentary scrutiny. A large number of delegated laws escape parliament's scrutiny and there is no good reason, either in theory or practice, why a regulation or statutory instrument made by the governor in council or a minister can be disallowed by parliament while a regulation made by an agency or board cannot.

Under parliamentary orders the governor in council also delegates authority to make regulations to a number of quasi-government agencies or boards, such as the National Transportation Agency, CRTC, CIHR, Canadian Nuclear Safety Commission and the National Energy Board, but parliament, through its standing joint committee, lacks the authority to propose the disallowance of any of those regulations of the excluded class. As a result, parliament is deprived of the opportunity to disallow important regulations made by these agencies or bodies.

It is clearly both logical and desirable that all statutory instruments subject to review by parliament under the Statutory Instruments Act be subject to disallowance. The current procedure simply cannot be invoked in relation to a large class of statutory instruments reviewed by the joint committee.

These two bodies of subordinate law are entirely a consequence of the choice made in 1986 by means of amending the standing orders of the House. This reform was meant to be temporary and if it had been successful it would have been extended to all statutory instruments reviewed by the committee.

After more than 15 years the time has come, although it has been long overdue, to place this procedure on a statutory footing with a view to increasing the effectiveness of parliamentary control of delegated legislation.

Another weakness of the existing procedure is that a House of Commons order asking the department to revoke a statutory instrument contains no form of sanction that would compel compliance, except in the case of contempt for the House of Commons.

Where the joint committee considers that a regulation should be annulled it can make a report to the House of Commons containing a resolution to the effect that regulation x should be revoked. Once that report is tabled in the House the applicable procedure would depend on a decision by the responsible minister. Should the appropriate authority neglect or refuse to comply with the disallowance order it would be open to the House to treat the failure to comply with the order as involving a contempt of the House.

While the House could deal with the matter as one of contempt there are no other legal sanctions, or even consequences, that arise from a failure to comply with a disallowance order. As a matter of law an order of the House of Commons that a particular regulation be revoked is not binding on the author of the regulation and cannot be enforced by a court of justice.

The standing orders also provide that where the committee recommends to revoke an instrument, and the report being tabled, no request is made by a minister for a debate. The resolution contained in the report is deemed to be concurred in by the House at the expiration of 15 sitting days. In this case as well the resolution is then treated as an order of the House that the regulation be revoked.

Under the status quo procedure, the revocation of an instrument disallowed by the House of Commons would ultimately depend on a decision of the governor in council or the appropriate minister to obey the order of the House of Commons or not.

Placing the disallowance procedure on a statutory footing, as this bill recommends, would remove the need for a regulation making authority to take subsequent action to give effect to an order of the House, thus eliminating the potential for conflict between the legislature and the executive.

Proposed subsection 19.1(9) is a new provision. By putting the disallowance procedure on a statutory footing, the procedure is also made more efficient as there is no longer a need for the House of Commons to address an order of the cabinet ordering the revocation of a statutory instrument. The legislation itself would now deem a disallowed instrument to be revoked. By eliminating the need for further action by the governor in council or the minister who adopted the disallowed instrument compliance with a disallowance decision would be improved by eliminating any possibility of a regulation making authority not complying with a disallowance order of the House.

It seems a little complicated and technical but those veteran members of the standing joint committee should understand. I am sure that other members have a fairly good idea. I tried to make it simple for them.

By providing that the revocation of an instrument does not take effect before the expiration of a 30 day deadline, the bill would ensure that the regulation making authority that made the disallowed regulation has an opportunity to take measures to mitigate any negative impact that the revocation might have, including the enactment of alternative regulations.

Proposed subsection 19.1(10) is also new. It would provide for the situation in which a minister has filed a motion to reject a proposed disallowance and the motion is not adopted. In that case, the proposed subsection 19.1(9) would deem the regulation or other instruments to be revoked at the expiration of 30 days from the day on which the motion to reject the disallowance was considered but failed to obtain the approval of the House.

Putting the present procedure on a statutory footing would not only ensure that parliament has effective control of the delegated legislation it authorizes, it would also allow for a simplification of the current procedure. Some 80% of the laws that Canadians face are through regulations and statutory instruments and most of them fall within the federal jurisdiction and affect every Canadian in many ways.

Bill C-202 is of very significant public concern. There is significant support from small, medium and large businesses, various organizations and stakeholders, the Canadian Federation of Independent Business, the Canadian Manufacturers and Exporters and chambers of commerce throughout the country.

As members of the House representing Canadians our most important responsibility is to protect democracy. It is incumbent upon all of us in the House irrespective of political parties to make the disallowance procedure more transparent and effective. This is a non-partisan issue. All of us must ensure than an appropriate and effective procedure is in place that has a statutory footing and that is enforceable.

The current practice of disallowance is not statutory, rather it is a halfway house. Because it is embodied in the standing orders it is limited to instruments the governor in council or a minister has the authority to revoke. It does not apply to all statutory instruments and most notably, does not apply to regulations made by agencies and bodies I mentioned. Nor does the disallowance take effect automatically after the reporting in the House. The governor in council or a minister must act in a sense ordered by the House.

By providing a clear legislative basis for the current disallowance procedure Bill C-202 would: first, allow parliament's authority to extend to all instruments subject to review under the Statutory Instruments Act instead of only those made by the governor in council or a minister.

Second, it would remove the necessity for additional action on the part of the regulation making authority in order to give effect to an order of the House that a regulation be revoked. Bill C-202 not only gives the act two recommendations made by numerous parliamentary committees who have studied the matter, but would both strengthen the current disallowance procedure and make that procedure more effective. Providing a statutory basis for disallowance would allow this defect to be corrected and would ensure parliament's full control of delegated legislation.

This regulatory reform is the beginning. I am certainly aware that further regulatory reforms are needed and there is room for improvements and amendments and strengthening of the bill can take place when it goes to committee.

I want to thank all the members from all parties who will be speaking to the bill, particularly the hon. members for Scarborough Southwest, Scarborough--Rouge River, Témiscamingue; Regina--Qu'Appelle; Pictou--Antigonish--Guysborough and Dauphin--Swan River, as well as many Senators who are supporting the bill, my co-chair Senator Hervieux-Payette and many other Senators who have been working hard on this committee. They understand what this disallowance procedure means and why it is important to restore transparency and protect democracy in the House of Commons.

I am optimistic that all members of the House will support this important, long overdue initiative by looking through the non-partisan lens. As the bill is votable I trust members will vote in favour of Bill C-202. All of us in the House, as one body, as Canadians with one voice, can reassure and strengthen democracy in parliament.

Statutory Instruments ActRoutine Proceedings

February 1st, 2001 / 10:05 a.m.
See context

Canadian Alliance

Gurmant Grewal Canadian Alliance Surrey Central, BC

moved for leave to introduce Bill C-202, an act to amend the Statutory Instruments Act (disallowance procedure for statutory instruments).

Mr. Speaker, my private member's bill, entitled an act to amend the Statutory Instruments Act, seeks to establish a statutory disallowance procedure for all statutory instruments that are subject to review and scrutiny by the Standing Joint Committee on Scrutiny of Regulations, which I was co-chair in the last parliament. The bill will give teeth to the joint committee and will empower members of the House and the Senate to democratize our rights in parliament.

(Motions deemed adopted, bill read the first time and printed)