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Delegated Legislation in Canada: Recent Changes in Machinery

Published online by Cambridge University Press:  07 November 2014

J. R. Mallory
J. R. Mallory*
Affiliation:
McGill University
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Extract

Few today would deny the necessity for subordinate legislation. The true business of Parliament remains the debate over the major principles of policy, but Parliament has neither the technical skill nor the time to process the mass of detailed regulation. Nevertheless, even with a sound division of function between Parliament and the departmental sources of delegated legislation, a serious problem remains. The initiative in the framing of public policy has passed to the bureaucracy, and machinery is required to ensure that bureaucratic legislation may receive the same debate, criticism, and review as ordinary legislation. The objective of administrative reform has been to safeguard the public against bureaucratic tyranny by three devices: (a) systematic publication of subordinate legislation; (b) opportunity for parliamentary review; and (c) continuance of judicial review of the scope of delegated authority.

In the United Kingdom, where these matters are more highly developed than under any other parliamentary system, the first two of these requirements are met by the Statutory Instruments Act, 1946, by various Statutory Instruments Regulations made thereunder, by the activity of the House of Commons Select Committee on Statutory Instruments, and through various techniques of parliamentary review.

Type
Research Article
Information
Canadian Journal of Economics and Political Science/Revue canadienne de economiques et science politique , Volume 19 , Issue 4 , November 1953 , pp. 462 - 471
Copyright
Copyright © Canadian Political Science Association 1953

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References

1 “The adoption of the system of confining the attention of Parliament to material provisions only, and leaving details to be settled departmentally, is probably the only mode in which Parliamentary government can as respects its legislative functions be satisfactorily carried on. The province of Parliament is to decide material questions affecting the public interest; and the more procedure and subordinate matters can be withdrawn from their cognizance, the greater will be the time afforded for the consideration of more serious questions involved in legislation.” Thring, Lord, Practical Legislation (revised ed., London, 1902), 44.Google Scholar

2 A recent, full, and authoritative description is contained in Public Administration, XXX, autumn, 1952, 227.Google Scholar

3 P.C. 4876, Nov. 26, 1946. (Possibly this was stimulated by the parliamentary criticism of the Order in Council of Oct. 6, 1945, which authorized the Minister of Justice to apprehend and interrogate certain persons suspected of Communist espionage. Parliamentary criticism of this “secret” order was widespread in the 1946 session.)

4 Canada, House of Commons Debates (unrevised), 05 31, 1950, p. 3039.Google Scholar The quotation is from Mr. St. Laurent's statement on second reading of the Regulations Bill.

5 Ibid., p. 3040.

6 The tendency of Parliament to recess by adjournment for long periods and to prorogue each session immediately before the commencement of the next session makes compliance with this section difficult at certain times. The Financial Administration Act (S.C. 1951, second session, c. 12) avoids this difficulty by subsection 4 of section 28 which provides “For the purposes of this section Parliament shall be deemed to be not in session when it is under adjournment sine die or to a day more than two weeks after the day the accident happened or the other matter arose.”

7 Montreal Gazette, Feb. 21, 1953.

8 H. of C. Debates (unrevised), 05 31, 1950, p. 3040.Google Scholar

9 Mr. Fulton: “But, Mr. Speaker, it is established fact under the rules of this house that the government controls the business of the house; and after the first four weeks of the session … there is very little time for and practically no opportunity to have private members' business or resolutions brought to a conclusion by debate in the house because of the severe limitations on the time allotted to private business for the first four weeks of the session.” H. of C. Debates (unrevised), 02 23, 1951, p. 646.Google Scholar Mr. Knowles: “I think consideration should be given to the point raised by the hon. member for Kamloops [Mr. Fulton] as to the effectiveness of the provision for the Senate and the House of Commons to annul any order passed under this act. I like that provision. I am glad it is there. It is a gesture which seems to provide something completely lacking in the War Measures Act, but the question raised by the hon. member for Kamloops is a very real and practical one. Onee a session of parliament gets under way, and the first few private members' days get out of the way, how would it be possible for an order brought down by the government ever to be annulled?

“Naturally the government is not going to bring in a motion to annul one of its own orders in that way. A private member would have to give notice in the usual way. His notice of motion would go to the bottom of the fist of notices of motions, and probably by that time in the session would not be reached at all.” Ibid., p. 649.

It is perhaps necessary to add that there are, under existing procedures, other opportunities for the House to discuss a regulation or order, for example, on a motion to go into Committee of Supply. It must be recognized, however, that the Opposition must adapt relatively scarce means to multiple ends in its use of parliamentary time.

10 Ibid., March 1, 1951, p. 796.

11 Report of Sir George Murray on the Public Service of Canada (1912), sections 5, 6, 8:

“Nothing has impressed me so much in the course of my enquiry as the almost intolerable burden which the present system of transacting business imposes on Ministers themselves. They both have too much to do and do too much.

“Speaking broadly, it may be said that every act of the Executive Government, or of any member of it, requires the sanction of the Governor in Council which, under present practice, is identical with the Cabinet….

“Almost every decision of a Minister, even of the most trivial importance, is thus—at least in theory—brought before his colleagues for the purpose of obtaining their collective approval, which is necessary for its validity.”

12 Fully described in Dawson, R. MacG., The Government of Canada (Toronto, 1947), 269–77.Google Scholar

13 “A quorum of the Council being four, no submission, for approval of the Governor General, can be made with a less number than a quorum.” P.C. 3374, Oct. 25, 1935.

14 Heeney, A. D. P., “Cabinet Government in Canada: Some Recent Developments in the Machinery of the Central Executive,” Canadian Journal of Economics and Political Science, XII, no. 3, 08, 1946, 292.Google Scholar

15 Ibid., 286.

16 Statutes of Canada, 1951 (second session), c. 12.

17 New regulations governing the acquisition of land have been made by Order in Council P.C. 4253, Oct. 9, 1952.