REVIEW OF DELEGATED LEGISLATION IN CANADA: ROLE OF THE LIBRARY

1. HUGH FINSTEN LIBRARY OF PARLIAMENTOTTAWA, CANADA August 2005 REVIEW OF DELEGATED LEGISLATIONIN CANADA: ROLE OF THE LIBRARY

2. What Is Delegated Legislation? • Legislation usually delegates powers to the executive to carry out the administrative functions under the legislation • Delegation to other authorities – a Minister, official, department, agency • Also known as statutory instruments, regulations, orders in council, subordinate legislation

3. Why Do We Need It? • Complexity of modern government • Legislation expresses the intent of the policy • Details of issues cannot be put in legislation • Technical aspects

4. The Problems • Parliament is delegating its legislative authority • Much of the law that affects citizens is found in the regulations • Lack of parliamentary debate • Problems if: – delegation is too broad – no scrutiny of the use of the delegated power – it is done secretly

5. Controlling Delegated Legislation • Publish the regulations • Develop rules • Establish parliamentary review • Enact controlling legislation

6. Role of the Library • Provide the staff of the Joint Committee • Staff are dedicated to the Committee • Review all regulations

7. Criteria for Review • Not authorized by the enabling legislation • Does not comply with any condition set out in the enabling legislation • Not in conformity with the Canadian Charter of Rights or Bill of Rights • Infringes on the rule of law • Has retroactive effect without express authority in the legislation • Imposes a fee, charge or penalty without authority • Excludes the jurisdiction of the courts without authority

8. Criteria for Review • Trespasses unduly on rights and liberties • Not consistent with the rules of natural justice • An unusual or unexpected use of powers • Exercise of substantive legislative power which should be enacted by Parliament • Defective drafting

9. Criteria for Review • Criteria are procedural and legal • Staff do not go into the merits of the regulation • Two criteria have a wider latitude: – unusual or unexpected use of powers – should be enacted by Parliament

10. How Staff Do Their Work • Two counsel review each regulation • Meets the criteria • Contravenes a criteria • Requires an explanation • Remedial action is required

11. How Staff Do Their Work • Committee decides whether or not to accept the response of the DIO • Exchanges between the department and counsel continue until the Committee is satisfied • Letter sent to the Minister from the Committee Chair • Committee can report the matter to the two Houses • Committee can recommend disallowance of the instrument

12. Other Functions of Staff • Prepare agenda and related material for Committee meetings • Draft Committee reports • Edit minutes of proceedings and evidence • Carry out the correspondence and maintain Committee records • Prepare opinions and submissions • Respond to enquiries from departments, other regulation- making authorities and the public