Rule by regulation: revitalizing Parliament's supervisory role in the making of subordinate legislation.

AuthorNeudorf, Lorne

This article highlights the increasing use of regulations, or subordinate legislation, as a source of federal law. Notably, the Supreme Court of Canada has observed the importance of regulations in ascertaining a legislature's intent with regard to a certain matter even though it is the executive and not Parliament that makes regulations. The author explains the current process in place to provide parliamentary oversight to regulations and suggests that Canada may want to adapt the UK model by dividing the existing Joint Committee for the Scrutiny of Regulations into two separate committees. Methodologically screening new regulations under the proposed committee system would play an important role in supporting transparency in government by helping to publicize the exercise of legislative power by the executive, alleviating concern over governments using the regulation-making process to shield important public policy choices from public scrutiny.


Regulations, also known as secondary or subordinate legislation, are made by ministers or specialist bodies under legislative powers delegated to them by Acts of Parliament. Like primary legislation, regulations have the full force of law. (1) Historically, the power to make regulations was delegated to the Governor in Council (effectively the federal cabinet) where particulars needed to be filled in to complete a legislative package. The main benefit was that regulations could be made and updated quickly by the executive through an Order in Council as opposed to the more cumbersome parliamentary process. (2) Historically, many delegated powers were defined in relation to certain details left out of a statute (though the devil is known to reside in legal details). (3) For example, the fee charged for filing an application for a patent is not included in the Patent Act but rather prescribed by regulation. (4) As a matter of law, regulations must remain strictly inside the limits of the grant of authority provided by the enabling legislation. Given that they work to supplement primary legislation, regulations are essential to knowing the current state of the law.

In recent decades, the use of regulations as a source of law has grown considerably. Modern regulations touch Lome Neudorf, Ph.D. (Cambridge) is a Member of the Law Society of Upper Canada and Assistant Professor of Law at Thompson Rivers University, Faculty of Law. The author thanks the editors and reviewers of an earlier draft for their helpful comments. every aspect of life and are often detailed and complex, dealing with a wide variety of significant matters that would have been previously set out in primary legislation. Notably, the Canadian law of statutory interpretation reflects this changing locus of decisionmaking with respect to significant policy matters from within Parliament to the executive. For example, the Supreme Court of Canada has observed that while "a statute sits higher in the hierarchy of statutory instruments, it is well recognized that regulations can assist in ascertaining the legislature's intention with regard to a particular matter, especially where the statute and regulations are 'closely meshed'". (5) Arguably, a governmental preference for making policy through regulation instead of primary legislation can be seen as reflecting a desire to avoid opposition or scrutiny of what might be perceived as unpopular policy choices as the making of subordinate legislation, being outside of the highly visible parliamentary process, is significantly less likely to attract media and public attention. (6) While there is an established process for drafting and enacting federal regulations pursuant to cabinet directive and certain legislative requirements, there is no open and public study or debate of regulations akin to the parliamentary process. (7)

Even while regulations are being made by ministers and specialist bodies, Parliament maintains an important supervisory role in relation to regulations. It can, at any time, repeal or amend its initial grant of authority by simply passing new legislation. In addition, the Statutory Instruments Act provides that every statutory instrument (including regulations) made after December 31, 1971 "shall stand permanently referred to any Committee of the House of Commons, of the Senate or of both Houses of Parliament that may be established for the purpose of reviewing and scrutinizing statutory instruments". (8) The Act also provides a simplified mechanism for the parliamentary revocation of a regulation. Pursuant to the terms of the Act, a joint committee may introduce a report to the Senate and the House of Commons containing a resolution that a regulation or part of a regulation be revoked (provided 30 days advance notice is given to the regulation-making authority). (9) Only one report is permitted to be laid before the Senate and or House of Commons during each sitting day. (10) The report is deemed to be adopted by the Senate or the House of Commons after 15 sitting days unless a minister files a motion that the resolution should not be adopted, in which case the resolution is debated by the House. (11) In the case where both Houses adopt (or are deemed to adopt) the joint committee's report and resolution, the authority that originally made the regulation is required to revoke it within 30 days or a later date specified by the resolution. (12)


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