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Proceedings of the Standing Joint Committee for the
Scrutiny of Regulations
Issue 28 - Evidence - December 7, 2017
OTTAWA, Thursday, December 7, 2017
The Standing Joint Committee for the Scrutiny of Regulations met this day at 8:38 a.m., in public and in camera, to review Statutory Instruments and conduct the Business of the Committee.
Mr. Harold Albrecht (Joint Chair) in the chair.
The Joint Chair (Mr. Albrecht): Good morning. We don’t have quorum, but we do have an expert witness. It’s okay to listen to our witness’s input without having an official quorum.
We will proceed in that manner. If and when we do achieve quorum, I will indicate that. Let’s move ahead.
Dr. Lorne Neudorf, welcome to our committee. Most of us have had the privilege of reading through your paper, so we’re somewhat familiar with the direction you are going, but we’re interested to hear more about your insight that might help us as a committee be more efficient in our procedures.
Welcome, and please begin with your opening statement.
Lorne Neudorf, Deputy Dean of Law, Associate Professor, Adelaide Law School, University of Adelaide, as an individual: I would to thank the committee for inviting me to appear to speak to the question of the parliamentary scrutiny of regulation and, in particular, how to improve and strengthen this process to achieve greater transparency and accountability demanded by our system of democratic government founded on the rule of law.
There are a lot of terms used: regulation, secondary legislation, subordinate legislation and executive legislation. All of these refer to laws made outside of Parliament directly by the executive branch such as by the cabinet, individual ministers or specialist agencies.
Regulations do not often make the news, and very little attention is paid to the process by which they are made. Despite this lack of awareness, it is hard to overstate the importance of the regulations to the modern Canadian legal system. Regulations are binding laws, just like statutes enacted by Parliament, and they are prolific, touching upon nearly every aspect of modern life.
There are nearly 500 per cent the number of regulations as compared to acts made by Parliament. When I counted last year, I found 4,025 consolidated regulations in force compared to 825 primary statutes. Many of these regulations are lengthy, complex and detailed.
Yet, despite being the backbone of our federal laws, regulations are made without any of the benefits of the traditional parliamentary process. There is no public debate or detailed committee study of a regulation before it is made. There is no process of three readings, and there is no vote.
Instead, regulations are made behind closed doors, with minimal legal requirements to review, register and publish them in a government periodical that is only read by a handful of lawyers. While there may be a short consultation period before a regulation is made, the executive may well ignore any feedback received.
All of this raises real concerns about transparency and accountability. This is particularly acute, given the trend to delegate more and more lawmaking powers to the executive, a trend that may be encouraged by governments for obvious reasons. The risk is that even significant policy choices may now be made through regulations, as skeleton legislation enacted by Parliament can provide sweeping lawmaking powers to the executive.
It must not be forgotten that under our system of government, the Constitution vests legislative powers in Parliament, not in the executive. Laws made by the executive, except in the limited case of prerogative powers, are made only with the permission of Parliament. As you all know, this happens when Parliament delegates lawmaking power to the executive in a statute through a grant of authority. This is normally done where Parliament does not have the time or expertise to deal with every technical aspect of the law. Because they avoid the parliamentary process, regulations can also be made expeditiously, allowing the executive to quickly make laws in response to changing circumstances.
Given that regulations are made by permission, Parliament plays a critical role in keeping tabs on how delegated lawmaking powers are actually being used by the executive. This is necessary to provide oversight and accountability, and to ensure that Parliament does not abdicate its legislative powers. It is also important to the rule of law in the sense that Parliament ensures that regulations are consistent with parliamentary intention, evidenced by the purpose and text of the statute of the parent acts.
While courts are also available as an important safety valve in the events of an abuse of power, or where regulations go beyond the grants of authority or are otherwise legally flawed, the problem with judicial review, in a sense, is that it requires an individual litigant to challenge a regulation at their own time and expense. Parliament therefore provides a more comprehensive review of regulations for the broader public interest, which benefits all Canadians.
It is worth reiterating that in our system of government, Parliament is in the driver’s seat. Parliament could at any time revoke a regulation or repeal the grant of authority, rendering all regulations made under that statute legally ineffective.
So how does Parliament keep tabs on the executive’s exercise of delegated lawmaking powers? Parliament has entrusted this important supervisory responsibility to this committee. As part of the legislative branch, this committee plays a crucial role in holding the executive to account of Parliament by independently checking the exercise of delegated lawmaking powers.
The existing committee process involves examining regulations against an established set of criteria, and I’m sure you’re all familiar with that list. The criteria, while broad, relate mainly to technical and legal questions as opposed to underlying policy or merits of the regulation. The goal is to ensure clarity and the appropriate use of delegated power.
In the case where a regulation is found by this committee to be problematic, there are a number of avenues of recourse, such as communication with the departments, calling witnesses, reporting to Parliament, and even the recommending the disallowance of a regulation.
This committee is aided by an outstanding professional staff who help it organize and streamline the scrutiny process.
All of this brings me to my study. Canada has a long tradition of looking elsewhere to learn from the experiences of others. I think this is a sensible and pragmatic approach. On this question, we can look to similarly situated countries that share a common Westminster parliamentary heritage to see what formal and informal practices have developed in those jurisdictions. In my view, this comparative exercise provides a valuable opportunity to consider the effectiveness of this committee’s process and to further consider reforms to strengthen transparency and accountability.
The committee has the mandate to do this. Under the committee’s order of reference, it is expressly empowered to inquire into its role, functions and powers. I am carrying out a four-country comparative study of the parliamentary scrutiny of regulations, which is funded by the Social Sciences and Humanities Research Council of Canada. It begins with this visit to Ottawa and will involve further site visits to the parliaments of the United Kingdom, Australia and New Zealand over the next 18 months.
During each visit, I will learn about the formal and informal practices of those parliaments in scrutinizing regulations. Of course, none of these systems is likely to work perfectly as each will have its own challenges, but I think there is much we can learn from that. I would very much welcome the opportunity to return to Ottawa at the conclusion of my study to share the results with this committee.
From my studies thus far, I have a number of preliminary suggestions for reform, which I am happy to discuss. I believe that the scrutiny process in Canada can be made more robust and that a more effective process will promote a culture of accountability in relation to executive lawmaking. There are, of course, certain risks to reform, such as those of increased partisanship and the possibility of creating a more confrontational relationship between the committee and departments. These will need to be carefully weighed against the potential benefits of reform. The question of resources may also need some consideration.
Thank you very much for providing me the opportunity to speak with you, and I look forward to your questions.
The Joint Chair (Mr. Albrecht): Thank you very much. I am looking forward to questions and the answers that you will provide.
At this time, we can convene officially. Welcome Senator Duffy, Senator Stewart Olsen and Senator Woo. There are some technical things to work out to officially make you part of this committee, but that will be cared for in the next day or two. When it comes to any voting, we will not be able to include you.
We have heard the opening remarks and we have had a chance to read Dr. Neudorf’s paper.
We will start with questions from committee members.
Mr. El-Khoury: Welcome to the committee, senators, and welcome Dr. Neudorf.
You have concluded in your statement that there is partisanship between the committee and the departments. If it is possible to elaborate, what led you to this conclusion, and can you give more explanation about it?
Mr. Neudorf: To clarify, I wasn’t saying that there is partisanship currently. I was suggesting that if this committee process were to be reformed to make it more robust, there could be a risk of increased partisanship. I think the opposite is true currently. There is a very good relationship, on the whole, between this committee and other departments that I have seen compared to other jurisdictions I have looked at. Hopefully that clarifies my comments for the member.
Senator Woo: Have you thought about the use of artificial intelligence in the scrutiny of regulations?
I know that IBM Watson has undertaken a project to look at the use of AI in medical diagnosis in the role of law. It would appear to me that there might be some potential. Have you looked into this possibility?
Mr. Neudorf: I think that is a very interesting question. It’s not something that is within the scope of my research, but I know that in law there is increasing use of technology. For example, I saw a video a couple of days ago where an artificial intelligence piece of software wrote a law examination and passed a law exam. I know it is possible and something that is emerging.
Law firms are using this technology increasingly, for example with the discovery process with hundreds of thousands of pages of documents, being able to sift through that data quickly and being able to identify the bits of data that need a human to look at. That’s a very interesting point, and I will make a note of that if I come across anything.
Mr. Oliver: Thank you very much for the article. You talked about our committee working more directly with the executive versus reporting to Parliament compared to others, and that seemed to have been effective in that we have been able to get expedited changes and corrections through.
We’re also discovering, I think of late, that we have a big backlog of unaddressed issues and unaddressed concerns. Because of our focus on executive, we seem to be a bit toothless in that we have not maintained the parliamentary relationship.
I know your recommendations are yet to come, but do you have any thoughts or advice for us in the short term?
Mr. Neudorf: I certainly do have a number of preliminary suggestions and recommendations, just as for food for thought for the purpose of the committee considering its mandate going forward. I think the first thing to note is that this committee already has broad powers. I think it needs to use them more. It has powers to call witnesses. It perhaps should call more witnesses, persons from departments, try with the responsible minister when there is a problem and bring them here to the committee. I think that could be one start to that use of the power.
The second thing is if you look at the U.K. committee, the equivalent committee, they do a lot more reporting to Parliament very frequently, sometimes weekly. They include copies of the communication that was sent between the committee or its lawyers, and the relevant departments. That’s a bit of a naming and shaming option, but you get this information before Parliament and it would encourage people to move along maybe a bit more expeditiously.
Another recommendation I would have is that I know there is this power to recommend disallowance. That’s an interesting power because none of the U.K. committees have that power. There is a different process where regulations are subject to something called affirmation or a negative affirmation process where they’re laid before parliaments and the houses actually consider them. They may consider them through a committee, but each regulation is laid before Parliament. We don’t do that in Canada. Although we could because we have the powers in the statutory Interpretation Act, we don’t use that.
Given that we have this power of recommending disallowance, it is something the committee may want to consider on a future occasion. It triggers a 30-day period for the ministry to respond addressing the concerns of this committee on that regulation. And if the 30-day period elapses, then this committee can make that recommendation to Parliament for a disallowance of the regulation. Those are some things with the powers that this committee could do more.
If I may continue, I have a couple of other things I would say about this. One thing that can happen with these committees is they get bogged down with the volume of new regulations coming out constantly. It may be worthwhile considering a structural shift on this committee, forming a subcommittee to look at all those new regulations coming out, so that the main body can focus in more depth and detail on issues that have been drawn to their attention. That could be useful.
As well, the scope of the review is something worth considering. The U.K. is the only jurisdiction in my study that does something called a merits review. They look to committees. Different layers of committees will look at the policy of the regulation. That can be contentious and political, but it’s something worth considering. In the House of Lords there is a very good committee that does it almost by consensus and issues very detailed reports on that.
The very last thing is the pre-screening of bills. Every jurisdiction I’m looking at has a committee to specifically look at the enabling legislation before it is passed, every time it gives power to the executive. That sharpens up the language and it keeps it accountable to Parliament on the front end, so you don’t get these ambiguous, generic huge grants of authority to the executive, and then later you get thousands of regulations coming out of that authority. You start at the beginning by saying, “It’s too broad and needs to be tightened up.” I think that’s a valuable thing for this committee to consider doing, in terms of looking at bills and enabling legislation.
Mr. Tilson: Thank you, sir. I’m relatively new to the committee but when I first arrived — I think the very first day — it was pointed out to me that files had been outstanding for eight years or even more. Something obviously isn’t working.
The power of disallowance was put on a statutory basis in 2003. From 1986 to 2003, it was carried out pursuant to the Rules of the Senate and the Standing Orders of the House of Commons. There have been 11 attempts at disallowance via reports tabled in both chambers since 1987. Eight were successful in disallowing the regulation. There have been six notices of disallowance that were not followed up with reports to both chambers. There have been no attempts via the tabling of reports since 2006, and in Australia there have been 22 in this year alone.
There is a resistance between the departments and this committee. The committee sends off a letter: “We think you should make the following changes,” and months go by. If you look at the different powers they have, there seem to be four, as you pointed out in your excellent paper.
The first option is writing to the department and asking for changes. That procedure seems to be really all we’re doing. I could be corrected but my observation as a new member is that an exchange of communication process goes back and forth, and there is a tug of war between the departments and this committee.
Have we had a minister come here?
The Joint Chair (Mr. Albrecht): We’ve had ministerial officials, not a minister per se.
Mr. Tilson: I guess the second option is inviting the minister or writing the minister asking for changes.
Third, there is the notice of disallowance, and finally the tabling of a report in both chambers. It doesn’t sound like that has been done in eons.
I guess that’s the fault of the committee. That’s up to the committee. The committee has the ability to do these things, and for different reasons it hasn’t been done.
I’d like you to comment on one of them. If you go through these different changes, there doesn’t seem to be any rule about time changes. The committee writes a letter to a department, and it appears from my observation that they can sit on that for a long time: “Tough beans. We’re busy.”
Hence you get into the risk of confrontation, partisanship or whatever it is. Maybe that’s it. What is this committee? What do they know? Maybe nothing. I don’t know.
In the other jurisdictions and with these different processes, which I gather you have just started your study on, are there time limits? Counsel writes a letter to a department. Are there time limits for a response, or do we wait for a couple of years?
Mr. Neudorf: To answer your question directly, the only jurisdiction I have seen with a time limit is the jurisdiction of New Zealand. When the Regulations Review Committee, which does what this committee does on legal and technical matters, puts in a request to a department, the government will have 60 days in which to respond to that committee. That’s the only jurisdiction I’ve seen with a hardwired timeline.
The rest of the committees use their powers to have a stick, basically, to say, “If you don’t respond, we will put a report in with Parliament saying you’re not responding. We’re going to name and shame you. We’ll call you as a witness.” They’re using the means at their disposal to try to get people moving along to respond to those inquiries.
If you go back to the idea of an affirmation procedure or a negative resolution procedure, as they call it in the U.K., they lay these regulations before their Parliament. Parliament has this period of time of 40 days in the U.K. to disallow that regulation. The regulation hovers there for 40 days before Parliament. If this committee is investigating that regulation and puts in a negative report, the risk is that Parliament may not view that regulation favourably. They might vote it down or disallow it at that time.
There are different ways of doing it, but I agree that you need some means of enforcing the respect this committee deserves and for pushing the executive along to respond in a timely manner, but New Zealand would be the only one with a fixed timeline of 60 days.
Mr. Tilson: The difficulty is that some regulations are routine and some are more challenging, so you might need a longer period of time. That might be the risk of setting time limits.
Mr. Neudorf: That’s true.
To follow up, in all of these other jurisdictions, when the committees report to Parliament, they are including either a summary or an actual copy of the correspondence between themselves and the minister or the department. That does a lot to speed things along, because you will be embarrassed if no response was received in that report. It will be noted in Parliament. There are ways of encouraging good behaviour, I think.
Mr. Scarpaleggia: I’ll follow up on the previous questions. I’m curious about the mechanics of using Parliament more. If I understood correctly, you said that new regulations should be tabled in Parliament and then the committee, or that there would be a certain period of time that would allow this committee to scrutinize them and report back.
Do I have your idea correct?
Mr. Neudorf: To clarify, section 39 of the Interpretation Act provides for a negative resolution procedure and an affirmative resolution procedure for regulations. I searched the statute book yesterday, and I could only see one enabling act in Canada that uses that. It’s available, but it’s never used in the enabling legislation. You can force one of those procedures to be implemented with those regulations, but we just don’t do it. It’s available but it’s not done.
Mr. Scarpaleggia: To understand the mechanics, it would have to be specified in the enabling legislation that the regulations would be tabled in Parliament for a specified period of time. The committee would then have a chance to look at the regulations and decide whether they need to be modified or disallowed. Is that the procedure?
Mr. Neudorf: Yes. There would be a 15-day period, and it could be a negative resolution procedure or an affirmative one. Then this committee is always seized with reviewing any regulations.
Mr. Scarpaleggia: Back to the issue of partisanship which, Mr. El-Khoury brought up, you say that by making the process more robust we might risk greater partisanship. Could you elaborate on what you mean by “more robust” and how it would create more partisanship?
In my thinking, two things would create more partisanship. One is if the committee was seized of the policy implications. We had a case in point, I think last week. We were looking at gun control regulations. It was an interesting meeting. There were more political positions taken, but that was really the exception. You could see that maybe over some environmental regulations, but beyond that things get pretty technical here.
If there is more of a focus on policy, there is a chance for more partisanship, but I think at the end of the day it depends on the composition of Parliament in the sense that if you have a minority Parliament, and the government is a minority on this and other committees, you will have more requests for disallowance and for reporting back to Parliament.
Those are two comments I wanted to make, but the question I have is: Have you considered the resource constraints in Parliament? There is so much legislation and so many regulations, but only so much time and so many committee hours available. Even if regulations were tabled in Parliament, and we had 15 days to look at them, they could be extensive. To call witness, you’d run up against resource and time constraints. I just wanted to make those points.
Mr. Neudorf: I appreciate the sentiment. The challenge of resources is always going to be a challenge. The committees in the U.K. are unbelievably productive. There is one House of Lords committee, the House of Lords Secondary Legislation Scrutiny Committee.
This one looks at the policy. All parties are represented there in the Lords. There are 11 members. It basically does it by consensus, which is amazing. Since 2003, it has examined 11,000 regulations. It triages. It draws a special attention to regulations that are politically and legally important or perhaps inappropriate because of new circumstances and things of that nature. It does an initial triage. It looks at them all but will focus and draw the attention of the House of Lords to ones that are the most pressing or salient.
I would strongly recommend that you read the reports of that committee. It is a gold mine of information. There is very valuable insight. This new regulation does not actually make sense because it doesn’t match up with this pre-existing regulation. There is incompatible policy happening. They are able to do sophisticated analysis in a short time frame. It is possible, but it is a challenge.
Mr. Dusseault: Are we now on the record?
The Joint Chair (Mr. Albrecht): We were on the record, as we are officially convened, and everything is being transcribed.
Mr. Dusseault: I just wanted to be sure the evidence will be on the record from when Dr. Neudorf made his statement.
My question is related to what you just mentioned concerning the prior verification of new regulations. My only concern is the volume or burden this represents, because of the numbers involved. For the time being, this type of triage, as you just mentioned, is done by committee counsel. They are the ones who make the decisions to draw regulations to our attention. In addition, we receive a stack of regulations that are tabled without commentary. So, it would be up to us to carry out a diligent verification in order to check all of the regulations and find any problems that were not raised by our legal counsel.
How much of a burden would this task represent? How big a task would this be if parliamentarians did it? You said there were 11,000 regulations in the United Kingdom. Are we talking about a similar number here? I am simply trying to determine the scope of an initial assessment of this kind, if it were done by parliamentarians.
Mr. Neudorf: I appreciate that and I think it is a significant burden if you bring in parliaments on the front end of the process. The U.K. formed these specialist committees to then assist Parliament. Those will make reports back to the main chamber and the main chamber may note it or they may vote. They may not debate it at all.
They have brought it to that local level to try and get things moving. You’re right. It is a significant number of regulations. As I mentioned in my opening statement, there are 4,025 consolidated regulations at present. It would require perhaps some rethinking about the resourcing going into these problems.
I will say, on the point of your counsel doing this kind of pre-screening, it is very important. I looked some of these other committees and they have more staff. This equivalent committee in the U.K. has seven lawyers that help the committee go through the U.K. regulations.
These are important questions. I cannot answer with any specificity on how many hours, how much money it will cost or how many members are required; but it will be a challenge to manage that process given the proliferation of laws made by regulation.
Ms. Dhillon: Thank you for appearing before us today. I read your article “Rule by Regulation.” It was very interesting. However, your ideas are very compelling and important. I also found interesting that you said no U.K. committees have the power to disallow.
Do you not think it’s problematic? When referring to the House of Lords, you wrote:
In looking at the delegation of lawmaking authority in a Bill, the Committee:
• always pays special attention to Henry VIII powers - a provision . . . which enables primary legislation to be amended or repealed by subordinate legislation with or without further parliamentary scrutiny;
Do you not find that undemocratic and going against what we’re trying to do with a regulation by having more transparency vis-à-vis a regulation and bringing it before Parliament? Can you please explain?
Mr. Neudorf: This phenomenon of Henry VIII clauses has plagued the U.K. For the benefit of the committee, this allows the executive to amend the primary statute by way of a regulation. I went to a talk earlier this year at the Bingham Centre for the Rule of Law in London. There was a compelling speech given wherein a judge from the Court of Appeal said, “Pretty much every bill we see now has some kind of Henry VIII clause in it.” Despite the fact that the U.K. has all kinds of layers of committees in the Lords and the Commons, all kinds of scrutinies going on, these types of provisions are ultimately still getting through into these bills. It is problematic. The judge said at this talk, “I think this is really concerning for the rule of law because you want to talk about doing an end run around Parliament.” There is nothing worse than the executive, on the Friday, by way of a notice published in the Canada Gazette, could amend a piece of primary legislation. That is quite remarkable.
That has not been the case that I have observed so far in Australia, New Zealand or in Canada to the same degree; but it is something this committee should be alert to because it is very problematic. It cuts against the grain of everything we’re talking about here, which is about that accountability and making sure Parliament has effective oversight.
Ms. Dhillon: Exactly. It’s quite undemocratic. We have elected officials that pass legislation. Regulations are used to provide further explanation or allowing the law to be implemented properly and to exercise the intent of that law. However, to have more transparency for Canada, I think it should be recommended that no Henry VIII clauses will ever be part of our legislation.
Mr. Neudorf: Could I respond to that? I think that goes back to my earlier point that there is no committee in Canada, as far as I’m aware, looking at bills coming out in Parliament to see what those delegations are all about. That needs to happen at the front end in this country. All the other jurisdictions I’m looking at having something like that. What you have is a focus on what are these powers that will be delegated. We can address that before we have problems down the line.
As an example, in the U.K., cabinet is required to send the scrutiny committee a delegation of powers memorandum, which has every single delegation in that statute in a memo: who gets that power, for what purpose are they to exercise it and how are they exercising it. The committee will read and publish that memo as part of its report for every new bill that comes into Parliament in the U.K. We don’t have that at all, which is scary in a way.
Who is looking at these delegation clauses?
Senator Stewart Olsen: I have a question and bear with me; I’m new to the committee. I find your discussion on disallowance to be intriguing. I think you could eliminate partisanship in a large way if your disallowance was very well defined. I don’t have a huge problem with that.
I wonder if you could elaborate a bit on disallowance. What would trigger disallowance?
Mr. Neudorf: I am happy that I printed a part of a statute here because it will help me with my answer. The Statutory Instruments Act, as it currently reads, provides for this power of disallowance with respect to regulations. It specifically allows this committee to make a recommendation through a report for disallowance to go to the two houses. If the houses don’t do anything with that recommendation, then the regulation will be, as I understand it, revoked within a certain period of time. The counsel may want to correct me, but I think there is a 15-day period in Parliament where this is sitting.
The only way to get around the recommendation for disallowance would be for a minister to put in a motion to the effect that the resolution not be adopted. On this point of disallowance, I think Australia has done the best in using that power of disallowance. In Australia, there is a Senate committee that reviews regulations. Every time that it has recommended disallowance, that regulation has been disallowed by the Senate.
They have a 100 per cent success rate, but I will tell you they actually almost never get to that point because as soon as they put in a recommendation for disallowance, guess what happens? The minister comes back right away and says, “We touched it up, fixed the problem and addressed your concerns.”
As you can see from the numbers, which I have here somewhere, if you would bear with me, in the past three years it seems 106 motions for disallowance were made in the Senate and only 20 of those resulted in regulations actually being disallowed.
Again, that’s a pretty good success rate in the sense that as soon as you go to that level of formality, it seems the department is going to take things pretty seriously, at least from the Australian experience, because they know that if they don’t, the regulation is going to get revoked. There is a very, very strong incentive there.
The Joint Chair (Mr. Albrecht): I think you have possibly put a finger on a misunderstanding on the part of many of our committee members. We have been somewhat reluctant to use disallowance because we think it will be disallowed. We have this 30-day period that I think is to our advantage and that of the departments in terms of being able to correct the record.
Mr. Diotte: I’ve been on this committee probably a little over a year, though sometimes it feels like much longer than that.
You talk about partisanship, but I think all of us will agree that there are some cases we’ve seen here that are head scratchers with completely incomprehensible delays, foot-dragging and nonsensical excuses. Those are the things I think we all want to crack down on.
I would like your feedback on one idea that could perhaps work if we did a report going over some of the highlights in a list of the greatest hits or greatest misses in cases where we waited 16 years to try to change a word in the regulation. For example, this one would not allow the government to be collecting taxes on this and this one infringes on security at airports. We’ve seen examples like these. The other week we saw one that dealt with the definition of guns which seemed a little incomprehensible, whereby someone wasn’t even shown the regulations but police had the information.
By doing so, I think that we would probably get more attention. You throw the greatest hits or greatest misses in one document and you’d perhaps even get some media attention. As a former journalist, I’ve seen things and think that would make a good story because it is so ridiculous and so stupid that it should be changed.
What do you think about an approach like that? Would that be effective?
Mr. Neudorf: I thank the member for that interesting question. I wholeheartedly agree. I think the reporting power here is one of the best tools you have. It will name and shame, and it will create a culture of accountability. In order to avoid being named and shamed, you will want to respond quickly and follow the recommendation. It is very important.
The U.K. committees do that the best. They have no power of disallowance there, but they are actually all very effective through their reporting power. The committee might issue a report every two weeks and, as you said, it’s really a summary of the greatest hits and misses: Here’s a case where the department wrote back right away and promptly fixed the issue, no problem; but here’s another case where the department looks like they have really mismanaged the file. The person who responded doesn’t understand the issues and it is embarrassing. That is named in there as well.
As you said, if you want to drive some media attention, regulations matter so much to Canadians but they are almost totally invisible to the media. I think tabling those types of reports and having this go on the record would be very helpful in driving up some of that exposure.
If I could quickly point out one case study as an illustration, I think the only time that the media in Canada really got into regulations for a brief moment was following the G20 summit in Toronto in 2010. There, a regulation was made on a Friday, I think, by the Ontario government that used an act called the Public Works Protection Act to designate a large perimeter area in downtown Toronto as being a public work. That triggered loads of police powers in relation to that area.
The Ontario ombudsman did an investigation and it made the media for a week, so it was probably the heyday of regulations in Canadian media. It was really concerning. The ombudsman said this regulation had not even yet been published in The Ontario Gazette. Nobody knew it was coming. It was basically made off the cuff with no consultation and it led to mass breaches of civil rights in the country.
That kind of thing made people realize there is a whole layer here they’re not paying attention to, so I think more reporting is absolutely a valuable way of trying to increase that attention.
Mr. Badawey: I have been on this committee for quite some time although my peers have asked me why. I enjoy it. I really do. I enjoy going through the different regulations and, quite frankly, I think the committee works well.
The problem is the backlog of files, as Mr. Tilson alluded to, that has been sitting there for five, 10 and sometimes even 20 years. We have powers, albeit manual ones, and those are what I want to touch on.
Is there an opportunity for us to put in place a disciplinary system that enables the process to be pragmatic on its own and to automate, so to speak?
To explain what I mean by that, I will compare it to a statute of limitations. Based on the obvious, we don’t have a statute of limitations attached to these regulations; but do we have the power to attach a limitation to them so that essentially, instead of manually having to go to disallowance, it automatically goes to that stage if the regulations aren’t dealt with in a timely fashion?
The pressure that would otherwise be put on decision makers from different ministries manually, through disallowance, can be done through a limitation process. If in fact a regulation isn’t dealt with in a timely manner, the regulation would simply go away.
Of course, that would cause chaos because it’s part of a mechanism of laws and different processes. Therefore it becomes a lever to motivate ministries to move on that regulation or they will lose it, which would put a clog in the system.
Mr. Neudorf: It’s an excellent idea. If you were to implement a system like the one you’re speaking to, I believe it would require primary legislation to basically say that these regulations will automatically expire, be revoked or cease to have legal effect after a set number of days, unless they have been reported on or affirmed.
That exists already in section 39 of the Interpretation Act, but the problem is the timing is very tight. Section 39 only provides 15 days, if regulations are laid before Parliament, for a motion to annul them during that time.
You’re right. I think the kind of sunset provision you’re talking about could cause legal chaos, but it is a very strong incentive to get things done right. Frankly, I think 15 days is a bit too tight. I like the U.K.’s guideline of 40 days for proper review, especially in an affirmative procedure where if it doesn’t get affirmed in that 40 days it’s gone.
It’s a bold idea and it would be a major change to how we do things in the country. Again, this process in section 39 of the Interpretation Act is already there, but it is only used in one statute in all of the statute book. That relates to the Employment Insurance Act and it’s an administrative tribunal making a rule that requires an affirmation by Parliament within that time period. It’s the only one I found. If you’re going to do that, it needs to be used in practice.
Mr. Badawey: In that statute it’s unfortunately still manual. You still have to press the button. What I’m looking for something more automated. Maybe as a takeaway for counsel, that’s something we can look at as a recommendation moving forward.
The second question I have is with respect to your comment on possibly getting to the bills as they are coming through first or second reading. It would be vetted through this committee.
Do you not think that’s already happening? After second reading it goes to a standing committee as well as to the Senate. Those two bodies then have an opportunity to vet those bills before they come back to the house for third reading. You get your comments from the Senate and from the standing committee. That would go a process which would be comparable to that.
Do you think we still need a third body that would actually look at those bills as they come through the house?
Mr. Neudorf: I think you’re absolutely right that the review of any new legislation obviously can happen through a committee.
That can include any provision in that bill. A clause-by-clause analysis and study are done, absolutely, but what I see in all of these other jurisdictions is a specialist committee just looking at delegated powers.
Frankly, I think it requires some subject matter expertise. As you have all probably learned being on this committee, it’s not something you just walk into in a day. If you have a generalist committee going clause by clause, they’ll say, “Oh, yes, here’s the power to make regulations. Yes, tick the box,” or whatever.
You could have a committee focused on that issue saying, “We really need to make sure that best practices are observed in the drafting of the language. We need to go back and actually request an amendment if it is overly broad,” as we see in the U.K. where they make the cabinet produce a memorandum of every delegated power. They go back and forth. They’ll say, “Well, actually, here you’re saying that this delegation could be used by the minister in this way, but the language actually would support something much broader than that. How can you reconcile these things?” The government will go, “Oh, we should actually tighten that up and amend that.” They have a very strong track record. Almost every recommendation they make for tightening up those provisions is accepted by the government. They have a very, very strong track record.
I think you’re right that there is a process that could be used, but it is more a generic and general process. If you had something like this committee looking at bills, and particularly with those delegation provisions, you’d be able to draw on that expertise. You guys see the bad stuff that happens on the other side, so you really could take that into making sure that these provisions are framed and calibrated in the right way to only give what’s necessary in terms of delegated power.
Mr. Dusseault: I had essentially the same question as my colleague regarding the parliamentary process, as to whether you believe this is sufficient in the context of clause-by-clause study. In clause-by-clause study, we come upon delegations of authority. And often, one of the criticisms that is made of certain bills is that, increasingly frequently, the ministers are giving themselves authority with regard to the adoption of regulations. That is a comment that has been made in debate, but I understand that your reply is that this may not be sufficient and that there should be an additional step.
In any case, you have already answered the question, so this was more of a comment I wanted to make on the matter.
The Joint Chair (Mr. Albrecht): Are there any further questions or comments? We have Dr. Neudorf here. We need to make good use of his expertise. However, we do have committee business that we’re going to move into to have further discussion.
Ms. Dhillon: For those departments that don’t comply with the letters or recommendations of the scrutiny committees, what would you do to penalize them or reprimand them for being so lax?
These regulations affect people on a daily basis. What bothers me most is when there are criminal or penal sanctions against people. Whether they are fines or imprisonment, they are violations of their freedoms. There’s a lot of foot dragging. For some regulations it takes eight or 10 years. You keep asking the department to come before the committee. Meanwhile, real people are affected in their real lives every day.
Could these people be pursued legally by those who are affected by wrong regulations, or are there any other reprimands or penalties against those dragging their feet?
Mr. Neudorf: It’s a good question. I think it’s echoing the theme I’m hearing here a lot. You don’t want this committee to be a toothless tiger or a paper tiger. You want it to actually be able to demand the attention and respect that this very important work deserves. When you have departments that are not replying in a timely way, in my view it is evidence of a culture of not taking it very seriously, of thinking, “I can get back to you whenever I want,” and that sort of thing.
To address that kind of cultural issue is difficult, but when I go back to the recommendations I spoke about earlier I think that starting to make some recommendations for disallowance and making some examples of a few regulations could start whipping people into shape a bit more and into saying, “Oh, oh, this committee actually means business. When it sends us a letter we actually need to reply to that letter.”
In terms of individuals, the power for making the law resides with the executive. Individuals can bring a judicial review if the regulation exceeds its enabling legislation, was made in a way that’s not legally compliant, violates the Charter, for instance, is a division of powers or any of these kinds of legal reasons. Otherwise, no, the law is made by the executive and it is binding in the same way as any other law that’s made.
Ms. Dhillon: Because the courtrooms are clogged with cases already, what would you suggest could be done to alleviate that problem when you, as an individual, are bringing every regulation before the courts to contest it?
Mr. Neudorf: If an individual is affected by a problematic or flawed regulation, in a sense there are not really a lot of good options. One thing to do would be to draw it to the attention of this committee. I suspect an individual could get in touch with this committee and this committee could perhaps look at a problem. Outside of judicial review and writing your MP or writing the government, there is not really a lot of direct action that can be taken by individuals in these circumstances.
I would just say that is why this committee plays such an important role for the public interest in reviewing regulations. Actually, you are looking out for all Canadians and how they are affected by these laws. I think that underscores the importance of the kind of work that you do here.
Ms. Dhillon: Absolutely. This committee, I have to say, is crucial in this case because regulations can very negatively affect people in their everyday lives. Perhaps you could give us more suggestions, Dr. Neudorf. Perhaps you would be able to submit some to the committee. Is that possible?
Mr. Neudorf: If I may just go back to what I mentioned in my opening statement, given that I am beginning this project, it will be going on for the next 18 months and I will be visiting these other parliaments. This is all quite preliminary. I would appreciate taking the benefit of that study and coming back here, actually. I’m happy to distribute another article that I am perhaps going to write on this topic and to speak to the committee in future, when I have a much better sense of the detail of all of these systems.
It’s very hard, in a way, to study these systems just on paper. You need to go there to speak with people because, like me meeting you, a lot of informal things happen that you don’t really know about if you are just looking at it on paper. Part of this project, for me, is to try to capture those informal practices, what is really going on behind the scenes. Then we can see how these systems really work and draw some inspiration from that in terms of strengthening this process here.
The Joint Chair (Mr. Albrecht): I’m just going to take the chair’s prerogative. I think you can sense, Dr. Neudorf, a level of frustration among our committee members of the lack of efficiency in terms of getting responses. You’re doing a study across four jurisdictions.
Our committee, just at the last meeting, decided to do a comparative study of jurisdictions as well. Obviously, your work will fit into that and will probably be one of the primary resources for it. Are you aware of the other jurisdictions that you’re going to be reviewing? Are they also in a state of examining other jurisdictions to come up with the best overall approach?
Mr. Neudorf: It’s not a particularly popular topic in the legal academy. When I applied for the funding for this project, they looked at it and said, “What is a regulation; what’s going on?” I haven’t come across many studies in this area.
What I do know is that when you read the reports of the committees in those other jurisdictions, they very often will comment on what is working and what is not working very well. Occasionally, they will have, for example, legal counsel say, “Actually you have powers; you could do this.” They can even see the debate going on. Should they reform their own process? How could they strengthen it? Why has the minister not responded in a timely way to the communication they sent?
I think you see some common challenges, and I’ll be able to look at those in more detail, but I’m not aware of any other large scale comparative studies.
Mr. Tilson: You make an interesting recommendation at the bottom of page 3 of your paper:
. . . it would seem especially important that the Committee provide more frequent reports to Parliament on problematic regulations.
I assume you mean both houses. That’s interesting because the departments don’t want that. Can you elaborate more on that? Is that used in other jurisdictions? I don’t think this committee has ever reported that I can recall. Maybe it has but not very often.
Mr. Neudorf: The U.K. is the gold standard of reporting.
Let me give you an example. This equivalent committee in the U.K. is called the Joint Committee on Statutory Instruments. It doesn’t do a merits review; it only looks at technical legal questions. It’s made up of seven members of the Lords, seven of the Commons, and a seven lawyers. In the 2015 parliamentary session it made 25 reports to Parliament and it reported on 86 problematic regulations. Those reports became a very important source for the rest of Parliament and for other parliamentarians in their debates. They could refer to this kind of expert commentary from someone who had already done that screening and that review.
It basically provides the raw materials by which we can have proper debates about what the role of this committee is and what the regulations are. That kind of thing could be bumped up here in this committee. More frequent reporting would be very valuable in that sense.
The one that reviews the merits or policies of the regulations is the House of Lords Secondary Legislation Scrutiny Committee. In 2015-16, they made 35 reports in plain language with very clear analysis and drew special attention to 67 regulations in those 35 reports. Again, those reports are a gold mine of information; they’re very valuable. As a researcher looking at that, I think, “My goodness, this is very high quality, and it’s coming out frequently, grappling with these very technical regulations and expeditiously.” Those committees are doing an absolutely superb job of doing that and putting that information back into the public domain for consumption by Parliament. I would definitely encourage this committee to use more of its reporting power.
Mr. Oliver: My question is along the same lines. Our process has been that our staff writes first to the department to raise concerns. When there is a non-response or an inadequate response it comes back to us. We then write back as a committee. It seems every time we reinvent what our processes are around how we will escalate. Sometimes we give them timelines.
If I’m understanding this, following a letter campaign our next level of escalation is probably calling witnesses, then reporting to Parliament and then our penultimate is disallowance. Would we be able to systemize these approaches? I feel like every time it’s here we rethink from scratch what to do next. Depending on who is in the room on that day, because people get swapped and in and out, there are different conclusions and different directions set.
Do you think this can be systemized or routinized in terms of how we escalate?
Mr. Neudorf: If I could go back to your hierarchy, with reporting at the very end, I think it should come first. Everything this committee does should be reported. Your staff is fabulous and does a great job of trying to chase these files. I know that, and they deserve huge respect for that.
One thing that might be problematic is that stuff that happens off the radar screen is not going to demand that much focus or attention, whereas these committees in the U.K., even where they have a successful outcome, they will report that in their reports. They will put a copy of that letter or email in there as well. Everything is reported all the time. That might sound quite cumbersome in a way but you’re creating that record, and changing the culture to promote this idea of accountability is very important.
I would put reporting at the very front, and say, “Here is how many regulations we reviewed this week. Here is what happens. Here are the departments that haven’t gotten back to us. Good for these three; they did.” Naming and shaming and saying kudos to some and identifying those which are problematic, I think, would change a lot with this kind of culture of accountability.
That’s how the U.K. committees do it. It’s a very good question.
Mr. Badawey: Moving forward, I assume we’re going to expect a report back that will outline some of the discussion we’re having, with some recommendations that we’re going to look at. I want to do this while Dr. Neudorf is here, because I want him to fill in the blanks, if there are blanks, holes or gaps.
We’ve heard about calling in witnesses, which we occasionally do; reporting to Parliament, including regular communications; disallowance as a power; subcommittee in terms of compartmentalizing or delegating different layers of what we’re doing and different issues we’re dealing with; looking at pre-screening bills, over and above the second reading at standing committee and third reading in the Senate; and tightening up to look at pre-screening bills before they go back for third reading.
A statute of limitations of some sort should be investigated. I think that automates it and takes the manual process away from disallowance. It puts it in place automatically through a time frame. What I really like about it is that it makes it more proactive than reactive. This committee is constantly reacting, and that’s the culture we’ve fallen into. We’ve fallen into a culture of reacting to non-movement. I won’t use non-accountability because, in all fairness, everyone is trying to be accountable. It’s just that they’re loaded with files upon files upon files. It’s a matter of what’s being looked as a priority. If we put a mechanism or lever in place to make it more of a priority for those ministries and ministers, they will be more proactive rather than forcing us to be continually reactive.
The automation of disallowance might be something to consider so that, therefore, one, it’s looked at as a priority and, two, it’s done in a timely fashion, or the regulation simply disappears, which would then cause chaos or problems for them. Therefore, going back to point one, it becomes a priority. Lastly, if it needs legislation, then we bring it forward as legislation.
Did I pretty well cover it?
Mr. Neudorf: That is a very good overview and summary.
I want to say how impressed I have been coming here to this committee with how engaged you all are. That’s a prime example that you are paying attention to this in a serious way and looking at reform. I may have mentioned privately to some of you that I’d thought maybe when I came here, it would be a bit of a frosty reception. Critiquing a committee before that committee, one might not always get the best results, but it’s clear to me that you are all plugged in and want to make this the best process it can be.
The last idea you mentioned of automatic revocation is something I haven’t seen. It would be bold and innovative, and it would be a large stick. If you want to go from one extreme of the spectrum to the other, that would accomplish it. It’s not for me to say what’s right and what’s not right for this committee, but that’s an interesting idea. I would like to hear more about it if that’s the road you ultimately decide to go down.
Mr. Dusseault: In fact, my question concerns the power of disallowance. I know that there are particular cases, and please correct me if I am wrong. There were certain cases where the government used its majority when reports were tabled in Parliament, in order to refuse reports that disallowed regulations. I was wondering whether, in the other jurisdictions where you have studied the matter, the same parliamentary or political culture existed, whereby when a disallowance report is tabled in both houses, the government or cabinet immediately refuses it and stands by its arguments, and maintains that the regulation is perfect. And so, the members of the majority are encouraged to use the same reasoning and to vote against a disallowance report. Is this something you have seen in other jurisdictions?
Mr. Neudorf: Thank you. You’re right that there is a risk that the government may not want to change its course and will say, “The regulation is fine as it is.” In the U.K., for example, the committees don’t have the power of disallowance, but the chambers themselves can actually vote not to affirm a regulation or to negative a regulation. That is what I have seen in the U.K.
A regulation has not been rejected in the U.K. for a long time. The last time in the House of Commons was in 1979, and in the House of Lords it was in the year 2000. You’re right that it is a consideration, but you also see in the U.K. that just going through that process tends to get some results.
Australia is more active on the other side. They have a Senate that may not have the same composition as the government, so the Senate is where the action happens. Often, the revocation happens in the Senate, if it is a problem.
There are some different institutional considerations in that question, but that is a real consideration. The government ultimately would be put to a vote and the government, if a majority government wanted to whip its votes, could get a regulation made. At least there is a debate. It’s public and on the record, and they had to go through a process to justify that, despite a recommendation from the committee that recommended disallowance. I think that at least is helpful in moving toward greater transparency and accountability.
The Joint Chair (Mr. Albrecht): Thank you very much to all our committee members for your questions, and thank you Dr. Neudorf for your incredible input. The timing was amazing. We’ve been dealing with a bit of a rise in frustration levels. We decided to embark on this cross-jurisdictional study, and you happened to be in Ottawa this week. We thank you very much for your time and expertise.
We will reconvene in camera.
(The committee continued in camera.)