Delegated legislation: the weak link of parliamentary accountability?

• Author: Weir, Elizabeth

Elizabeth Weir represents Saint John Harbour in the New Brunswick Legislative Assembly. This is an edited version of a paper delivered to the 36th Canadian Regional Conference in Regina in July 1997.

Delegated legislation has generally proved to be a useful tool in governing an increasingly complex society. But the shift of part of the legislative function from legislatures to the executive, has created a problem for democratic representative systems. This can generally be characterized as one of accountability. The central legislative body is no longer directly responsible for a vast body of law that perhaps has the greatest impact on the general public. The principle of parliamentary supremacy is also undermined when delegated legislation contains matters of policy. This article considers whether the existing framework for the process of delegation assures adequate accountability, indeed adequate scrutiny, in the exercise of the authority given.

The power of delegation has provided governments, in an increasingly technocratic world, with a range of administrative tools to carry out policies and programs. It remains the responsibility of the legislature to ensure that the executive is accountable for its use of "law-making" powers, as well as for its expenditures of public funds.

There appear to be at least two principal "problem areas" for accountability. First, is the vast body of "rules" that guide the decisions of government officials but are not drafted in the form of published regulations; the second is the absence of review of regulations published pursuant to statutes at the provincial level.

The "Directive"

Direct delegation of decision-making authority to a subordinate body, such as a tribunal is the most common example of delegated legislation. But increasingly, delegation is carried out, not through the drafting of regulations that require some form of publication, but rather through the development of policy manuals and departmental guidelines.

The term "directive" is generally employed to describe this form of delegation. The purpose of the "directive" is to provide guidance to officials in carrying out government policies. There is little, if any, review of the decisions that are taken, or the powers allocated to government officials, and consequently, little accountability.

The following examples, from New Brunswick illustrate the impact on citizens of the use of this form of delegation. Early in 1997, the Department of...