Madam Speaker, I am very pleased not only to speak to the bill this evening, but to second it and to indicate my support for it.
I will just give a brief bit of history. I was asked to sit on the scrutiny of regulations committee first in April 1989. I have been on that committee in an uninterrupted capacity, except for elections of course, since 1989. I have served as the co-chair of that committee and I am currently the vice chair of that committee. Considering 13 years of experience on the committee, I think I have something to offer in terms of the debate on this bill.
I would like to begin by quoting at length from a letter dated December 20, 1999 which was sent from the then co-chairs of the committee and the vice chair of the committee to the then minister of justice, who is now the Minister of Health. The co-chairs at that time were Senator Céline Hervieux-Payette and the member for Surrey Central. They still are the co-chairs. The vice chair was myself and I am still the vice chair. However, if I quote significant portions of the letter, it will become clear what the problem is and why the suggested solution in C-202 is a good one. I begin on page one. It says:
For the last quarter of this century, the Standing Joint Committee for the Scrutiny of Regulations has reviewed instruments of delegated legislation pursuant to its statutory mandate and in accordance with the rules of both Houses. Thoughtful participants in and observers of the federal regulation making process acknowledge that parliamentary scrutiny of delegated legislation has played a useful role in maintaining and improving the quality of federal regulations. The Standing Orders of the House of Commons also provide for a disallowance procedure that applies to a category of statutory instruments, to wit those made by the Governor in Council or a Minister. These provisions of the Standing Orders were adopted in 1986 following a recommendation of the McGrath committee and earlier recommendations of the Joint Committee itself. As you probably know, the placement of the current disallowance procedure in the Standing Orders was intended to be temporary and we feel time has come to give a more permanent status to that procedure through its inclusion in a statute, preferably the Statutory Instruments Act.
I continue at the top of page 2, which says:
The most glaring problem with the current disallowance procedure is that it only applies to statutory instruments made by the Governor in Council or by a Minister. The result is that a fairly large body of subordinate law is not subject to disallowance. In our view, there is no good reason, in either theory or practice, why a regulation made by the Governor in Council can be disallowed by Parliament while the regulation made by the National Transportation Agency or the National Energy Board cannot. That a distinction was made between these two bodies of subordinate law is entirely a consequence of the choice made in 1986 to implement the new disallowance procedure by means of amendments to the Standing Orders of the House of Commons.
I turn to page 3 and quote again:
Putting the current procedure on a statutory footing would not only ensure that Parliament's control of the delegated legislation is more effectively exercised, it would also allow for a simplification of the present procedure. At the moment, the revocation of an instrument disallowed by the House of Commons ultimately depends on a decision of the Governor in Council or the appropriate Minister to obey the order of the House of Commons. While constitutionally persuasive, as a matter of law an order of the House of Commons is not binding on the author of a disallowed instrument and cannot be enforced by the courts.
Finally, also on page 3, it says:
It has always been the view of this Committee that any general disallowance procedure ought to have a statutory basis. That view was endorsed by the McGrath committee [in 1986] and later, by the Sub-committee on Regulations and Competitiveness. Indeed, as we noted above, when the current procedure was put in place, it was stated to be an experiment whose success would lead to the implementation of a statutory procedure.
I wholeheartedly agreed with those comments when I signed the letter. I still agree with them today, even more so.
We heard today from the parliamentary secretary that the current procedure is working and it is, as far as it goes. I remind everyone that it was an experiment. If it was working, it was to be turned into a statutory disallowance procedure. The McGrath committee said that and the Subcommittee on Regulations and Competitiveness said that. We have heard from the parliamentary secretary that the government does not want to do that. That is unfortunate.
The parliamentary secretary laid out a few criticisms of the bill. Some of them are warranted, but they can easily be remedied at committee stage with amendments. It is not necessary to defeat the bill now in order to deal with some of the comments the parliamentary secretary made.
For example, that there is no role for the Senate in the current legislation is clearly something the mover of the bill could deal with at his appearance before the committee. It is something the committee could deal with by way of appropriate amendments. That is certainly not fatal to defeat the bill at second reading.
I want to make a couple of comments on some of the alleged problems with the bill. We already have a disallowance procedure. It is in the rules. It has been around. It is successful by admission. The only problem is it does not deal with all regulations.
It does not make sense for the Parliament of Canada to be able to disallow a regulation proposed by the governor in council or a minister, but not disallow a regulation proposed by some subdelegate. It just does not make any logical sense. Indeed in many cases the ordinary Canadian is impacted far more by the regulatory agency than by perhaps a regulation made by a minister.
Who oversees the regulations of those regulatory agencies? Not parliament. How does that make parliament supreme? We often hear wonderful speeches in the House about how parliament is supreme. How is parliament supreme if parliament cannot review the regulations proposed by subdelegates of a minister but can review the regulations proposed by a minister? It does not make sense logically or legally.
Comments were made that the bill is substantially the same as the current standing orders. I would argue that is not true. The simple reason is that the standing orders, as I just said, do not deal with many regulations brought forward by agencies and that is a huge hole as far as I can see. On the fail-safe mechanism, perhaps this is the result of some misunderstanding by the justice department, but it is fairly clear there is already a fail-safe mechanism in the rules. If the minister does not want the regulation defeated, the minister can bring a motion which would then be debated and voted upon. If the House of Commons decided that the resolution to disallow was to be defeated, that would be the fail-safe mechanism.
The bill has exactly the same fail-safe mechanism. If a resolution were brought under the statutory footing asking that the regulation be disallowed, the minister could say “No, I am going to bring a motion that the resolution be defeated”. If the minister can convince the House of Commons that the resolution to disallow should be defeated, it will be defeated. The House of Commons remains supreme. The minister is in control if his or her arguments are sound. Where is the problem? To say that somehow parliament should not have the authority to examine the regulations of agencies which are creatures of the House of Commons, which are created by the House of Commons, is with all due respect such a huge gap in logic as to be virtually laughable.
I have examined the bill carefully. I see no reason that the House should not support it at second reading, send it to committee, examine some of the considerations that the parliamentary secretary and the Department of Justice have put forward, and then propose amendments which can be dealt with by the House of Commons.