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.