Mr. Speaker, Bill C-205, an act to amend the Statutory Instruments Act, is designed to provide a statutory basis for the current disallowance procedure and to extend the application of that procedure to regulations made by persons or bodies, other than the governor in council or ministers of the Crown. The bill is consistent with recommendations made by the Standing Joint Committee for the Scrutiny of Regulations for the reform of the current disallowance procedure.
One aspect of the current disallowance procedure that has long been identified as problematic by advocates of better parliamentary control of delegated legislation is that it limits the possibility of disallowance to those statutory instruments that are made by the governor in council or by ministers of the Crown.
As a result, the considerable body of delegated legislation promulgated, for example, by the CRTC, the Canadian Transportation Agency or the National Energy Board is not subject to the disallowance procedure provided for in the Standing Orders. This is a consequence of the choice made in 1986 to implement the new disallowance procedures by means of amendments to the Standing Orders of the House of Commons rather than legislation.
In any event, 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. There is no reason, either in theory or in practice, why a regulation made by the governor in council or a minister can be disallowed by Parliament while a regulation made by some other delegate of Parliament cannot.
The effectiveness of the current procedure also relies on the cooperation of the governor in council or the minister concerned to carry out a disallowance after it has been ordered by the House of Commons. In itself, an order of the House of Commons cannot affect the revocation of a regulation. The authority that made a disallowed regulation must still formally intervene in order to revoke that regulation following the making of a disallowance order. Putting the disallowance procedure on a statutory footing will allow Parliament to enact that a disallowed regulation will be deemed to be revoked and thereby streamline the disallowance procedure as well as improve its effectiveness.
On reviewing some of the interventions that have been made against this bill or its predecessor in the last session, Bill C-202, one is struck by the fact that many of the arguments put forward do not go to the principle of the bill, but focus on alleged perceived practical difficulties with the bill as it stands. In many instances these difficulties are more apparent than real. In any event, the objections that have been raised could easily be dealt with, if warranted, by means of amendments to the bill in committee.
We have heard a curious claim that for the Parliament of Canada to enact a statutory disallowance procedure might be incompatible with the principle of responsible government.
The reality is that the procedure laid out in Bill C-205 is entirely consistent with, and in fact promotes, responsible government by increasing the accountability of the executive branch to Parliament.
There are at least 12 parliaments in the Commonwealth, including provincial legislatures, that have adopted a statutory disallowance procedure. I believe no one would seriously suggest that these jurisdictions have turned their back on the principle of responsible government.
In addition, the Parliament of Canada has itself previously enacted a negative resolution procedure in some of its statutes. If the argument that was made was correct, those who are making it would have to conclude that the federal Parliament has already abandoned the principle of responsible government. Of course, this conclusion is absurd.
The purpose of Bill C-205 is to expand the scope of the current disallowance procedure so as to allow parliamentarians to exercise the same control over the making of regulations by all its delegates that it already exercises over the making of regulations by the governor in council or by a minister.
At present, regulations made by persons or bodies other than the governor in council or a minister are subject to parliamentary scrutiny by the Houses, acting through the Standing Joint Committee for the Scrutiny of Regulations, but the Houses are powerless to control these regulations through disallowance. This is an anomaly that needs to be corrected.
An attempt has been made to present the correction of this anomaly as involving an unwarranted parliamentary intrusion in the affairs of regulation makers. For example, in her intervention the Parliamentary Secretary to the Solicitor General drew attention to the fact that rules made by the courts--one of the three pillars of a democratic society--would fall under and be captured by Bill C-205. She then asked: “What about the separation of the judiciary and the government?”
Court rules made under statutory authority come within the scope of Bill C-205 because they are delegated legislation, just as they come within the scope of the existing Statutory Instruments Act because they are delegated legislation.
Bill C-205 is a bill to amend the Statutory Instruments Act and, as such, the provisions of the bill reflect the structure and organization of the statute it amends. If the possible application of the disallowance procedure to rules of procedure is problematic, it is the Statutory Instruments Act that should be amended to exclude court rules from the definition of “statutory instrument”. This is not something that is within the scope of Bill C-205.
While making that argument, the parliamentary secretary was probably not aware that in its 10th report of the second session of the 33rd Parliament, 1988, the scrutiny committee informed both Houses that it would not scrutinize the rules of procedure made by courts intended to have the same degree of independence as that guaranteed by the Constitution to superior courts. The committee took that decision nearly 15 years ago out of its sensitivity to the principle of the independence of the judiciary.
Given that court rules are also subject to examination by Department of Justice employees under the Statutory Instruments Act, it is the subjection of those rules to the control of the Department of Justice employee that might properly be said to breach the “separation of the judiciary and the government”. In these circumstances, any concern about the separation of the judiciary and the government might be better directed to the current practice of the government than with regard to the parliamentary procedure proposed in Bill C-205.
It is interesting to note that on more than one occasion the House has been assured that the disallowance procedures of the Standing Orders process have worked well. If anything, this should be an argument in favour of adopting Bill C-205, but more fundamental, those who use this argument to justify the status quo are overlooking the fact that the statutory disallowance procedure proposed in Bill C-205 is not put forward because the current procedure has not worked. It is put forward because it is necessary to adopt legislation to expand the scope of parliamentary control of delegated legislation to include all instruments that are now subject to parliamentary scrutiny. As has been said by others, this purpose simply cannot be achieved by the standing orders and requires a legislative approach.
Thirty years after the enactment of the Statutory Instruments Act the benefits that have accrued from our scrutiny of delegated legislation are indisputable. Effective parliamentary scrutiny, however, requires effective parliamentary control. A step in the right direction was taken in 1986 and I believe the time has come to complete the process and to eliminate the gap that now exists between scrutiny and control of delegated legislation.
This is what Bill C-205 proposes to do. Full parliamentary control of delegated legislation with such exceptions as are warranted represents a meaningful and significant reduction of the democratic deficit. More than 30 years after the enactment of the Statutory Instruments Act it is believed that the time has come for the Parliament of Canada to give itself the means to ensure full democratic control of federally delegated legislation.
I congratulate my colleague from Surrey who has put forth the legislation. I trust when the House has to vote we will all support it like we should.
