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PARLIAMENTARY DEBATE OF DELEGATED LEGISLATION' John E. Kersell One of the major problems of twentieth century liberal democracy, currently eclipsed, it is true, by economic problems as well as by Com- munist challenges, is the problem of controlling governmental authority. There is danger that, as a result of the immense growth of governmental activity, expert public servants may become the masters of the people they are employed to serve. Students of politics, law, public adminis- tration-even sociology and economics-have a responsibility to consider this danger to the liberal democratic way of life. This paper is concerned with one of the legislative techniques of con- trolling government. The legislative problem lies in how to control the vast administrative system of government, including the politically power- ful executive which directs that system. It is beyond possibility, and it is not even desirable, that parliaments should control in detail all the administrative, regulative and other activities of government. In liberal democracies parliaments are not gatherings of specialised experts. Generally speaking, they are, and should be, composed of competent generalists skilled in the arts of finding out what people want, or at least what they will tolerate, and of expressing the views of those people whom they represent. Parliaments function best when they deal with general principles, broad objectives and fundamental issues concerning individual rights, freedoms and the problems of groups and regions. If they are to do these things well, they are not likely to attract the type of person with the competence to supervise closely the full-time experts of civil services, nor are they likely to have the time to grind out all the detailed laws and amendments thereto which are required in modem democratic states. For these and other reasons the parliaments of the Commonwealth of Nations, particularly those of the United Kingdom, Australia, New Zealand and Canada have, over the past half century, delegated con- siderable legislative authority to be used under the terms of parent acts which confine themselves to determination of the broad objectives more appropriately considered by representatives of the people. Having delegated legislative powers to deal with the minutiae for which they have neither the time nor the competence, parliaments have 1This article is based on Chapter V of Parliammtay Su e&n of Delegated Legislutioe Powers, by the same author. The book is to be puflished by Stevens and Sons Ltd., London. 132

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PARLIAMENTARY DEBATE OF DELEGATED LEGISLATION'

John E. Kersell

One of the major problems of twentieth century liberal democracy, currently eclipsed, it is true, by economic problems as well as by Com- munist challenges, is the problem of controlling governmental authority. There is danger that, as a result of the immense growth of governmental activity, expert public servants may become the masters of the people they are employed to serve. Students of politics, law, public adminis- tration-even sociology and economics-have a responsibility to consider this danger to the liberal democratic way of life.

This paper is concerned with one of the legislative techniques of con- trolling government. The legislative problem lies in how to control the vast administrative system of government, including the politically power- ful executive which directs that system. It is beyond possibility, and it is not even desirable, that parliaments should control in detail all the administrative, regulative and other activities of government. In liberal democracies parliaments are not gatherings of specialised experts. Generally speaking, they are, and should be, composed of competent generalists skilled in the a r t s of finding out what people want, or at least what they will tolerate, and of expressing the views of those people whom they represent. Parliaments function best when they deal with general principles, broad objectives and fundamental issues concerning individual rights, freedoms and the problems of groups and regions. If they are to do these things well, they are not likely to attract the type of person with the competence to supervise closely the full-time experts of civil services, nor are they likely to have the time to grind out all the detailed laws and amendments thereto which are required in modem democratic states. For these and other reasons the parliaments of the Commonwealth of Nations, particularly those of the United Kingdom, Australia, New Zealand and Canada have, over the past half century, delegated con- siderable legislative authority to be used under the terms of parent acts which confine themselves to determination of the broad objectives more appropriately considered by representatives of the people.

Having delegated legislative powers to deal with the minutiae for which they have neither the time nor the competence, parliaments have

1This article i s based on Chapter V of Parliammtay Su e&n of Delegated Legislutioe Powers, by the same author. The book is to be puflished by Stevens and Sons Ltd., London.

132

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been left with the problem of ensuring that these powers will not be abused. While this is not the only residual responsibility of parliaments in regard to the control of governmental authority, it is the one which will occupy our attention here.

It is an assumption of this study that Parliament is an appropriate institution to supervise the use of delegated legislative powers. Justifica- tion for this assumption is evidenced by the fact that Commonwealth legislatures have statutorily required the publication of instruments of delegated legislation and the tabling of them in Parliament. Both Houses in Britain, and the Australian Senate have established committees to scrutinise tabled instruments. Of particular concern to us now is the fact that parliaments do take time to discuss delegated legisl a t’ ion.

Most parliaments in the Commonwealth of Nations have a number of opportunities every session to debate, if they choose, instruments of delegated legislation and issues arising out of them. These are the normal occasions upon which Governments may be called to account for their policies and actions. They include debates on the Address in Reply to the Speech from the Throne, debates in Committee of Supply, on the continuance of enabling legislation, on motions of censure, motions to adjourn and debates on Private Members’ Bills.

In addition to these normal procedures, the British, Australian and New Zealand parliaments have developed in recent decades special procedures by which instruments of delegated legislation may be debated. Especially in the British instance, these relatively new procedures have supplanted the older more general debates as means by which to influence the use of delegated legislative powers. At Westminster a considerable number of such instruments are presented to Parliament every session for affirma- tion by debatable resolution. Most other signscant British instruments are laid subject to negative resolution or “prayer”. In Australia each regulation is subject to a debatable motion that it be disallowed. In New Zealand’s Parliament, regulations which are laid on the table are fre- quently affied by debatable resolution whether required by statute or not, or they are subject to another debatable motion: that they be referred to the Government for consideration. A number of pre-World War 11 Canadian Acts provided for either a f f i a t i v e or negative reso- lution procedures2 but at the time of writing only one Act required affiative resolution for instruments made under its authority and only two provided opportunities for the debate of revoking or amending resolutions .

Despite the lack of special opportunities Canada’s House of Commons has shouldered its responsibilities for the supervision of delegated legis- lation with a will. In the nineteen post-war sessions between 1945 and

Worry, J. A., “Administrative Law in Canada”, Proceedings of the C a d i u n Political Science Association, 1933, p. 197.

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1958 there have been over seventy different debates involving orders in council and other instruments of subordinate leglislati~n.~ Because, how- ever, the Canadian Parliament has not developed extensive affhnative and negative checks upon delegated legislation, the House of Commons when wishing to debate orders in council and other instruments, has had to rely on procedures which are properly considered, in Britain, Australia and also New Zealand, supplementary to the more direct techniques such as prayers, motions to disallow and references to the Government. Thus, in Canada the debates on the Address in Reply, on Supply, and on continuing legislation provide the more fully exploited opportunities for reviewing the use of delegated legislative powers. Of these, debate on continuing legislation as we shall see, has proved to be the most fully exploited.

As we have noted, there is still one Act on the Canadian statute books, the Export Act: which requires that regulations made under its authority be approved by resolution of both Houses of Parliament. In view of the astuteness with which the Canadian Opposition has watched delegated legislation since the War, it is rather surprising to learn that these reso- lutions have not been debated during the period. Codrming resolutions appear to be invariably approved “on the nod”.

We have also noted that there are two Canadian Acts which provide for “prayers” for annulment, and in one case, the Defence Production Act, 19556 for amendment. The other Act in question is the United Nations Act, 1947; which merely provides for negative resolutions. There has never been a prayer moved against any instrument made under authority of these Acts, nor against any instrument made, while they were in effect, under authority of the National Emergency Transitional Powers Act, 1946, or the Emergency Powers Act, 1951 which replaced it.

There is one other uniquely Canadian procedure statutorially providing for the review of acts done by delegated legislative authority. In 1950, as a part of a number of amendments to the National Defence Act,? a new section, 33, required that whenever any Canadian armed forces are com- mitted to active service by order in council, Parliament shall meet within ten days. Consequently when certain units were committed to the United Nations Emergency Force for the Middle East by an order in

3It is extremely difficult to trace all Canadian debates on delegated legislation for only those concerning orders in council are systematically indexed in Hansard, and, furthermore, it is in the nature of Canadian debates that miscellaneous issues, such as the use of delegated powers, are raised time and again at various stages of debate especially on the passa e of enabling and continuing legislation. Even so, there are almost a hundred infexed debates involving orders in muncil alone and over a third of these contain recurring references to various issues throughout their various stages.

4Revised Statutes of Canada, 1952, Cha . 103. 5Statutes of Canada, 1 9 5 5 , M Elizabeg 11, Chap. 52. Wevised Statutes of Canada, 1952, Chap. 275. Vbid., Chap. 184.

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council of 20 November 1956, Parliament was summoned to a special session which began on 26 November. This particular procedure reflects “the peculiar sensitiveness of many Canadians to sending troops over- seas”.8

Debate on the Address in Reply to His Excellency’s Speech provides, as in the other Commonwealth Parliaments, a useful opportunity for the discussion of delegated legislation, and in the Canadian instance, one that has often been exploited. Until the end of 1955 this debate was of unlimited scope and range from the aspect of both time and topic. As a result, it was used during the period 1945 to 1955 no less than thirteen times to raise issues directly related to instruments of subordinate legis- lati0n.O Such an extensive use of debate on the Address is in interesting contrast to the rare use made of this debate even in Britain where it has been resorted to only twice in the same period. There is no post-war example of delegated legislation being discussed on this early Parlia- mentary occasion in either Australia or New Zealand.

Since the new Standing Orders of the Canadian House of Commons went into effect in January 1956, debate on the Address in Reply has been limited to ten days.I0 This has had the inevitable (and desirable) effect of eliminating from this debate many of the less important, and even minor matters which used to find their way in. Some of the refer- ences to delegated legislation might well be judged to be in these cate- gories of significance. It may be indicative that since 1955 no further reference has been made in debate on the Address to the use of delegated legislative powers. There might, of course, be such reference again, for not all use of this opportunity has been frivolous.

Mr. Brooke Claxton in an outstanding speech on Parliamentary pro- cedure delivered during the 1943 debate on the Address in Reply to His Excellency’s Speech, expressed the opinion that the

“practice of tabling orders in council is, for all practical purposes, an empty form. I suggest that orders in council be referred to a com- mittee for consideration-not all the orders but orders having the effect of legislation of a general nature. Even when they get to the committee, all the orders of that kind would not be discussed; but if the committee felt that one particular matter should be discussed it could take up that order, have the departmental officials there to explain it, and make its report to the House. This could be done exceedingly quickly. In this way there would be an opportunity of improving the drafting of the orders, which sometimes leaves a great

SMallory, J. R., “Cabinets and Councils in Canada”, Public Law, Autumn 1957, p. 249.

OThree times in 1946, once in 1947, five times in 1949, once in 1950, once in the session 195354, and twice in 1955. Most references are indexed under “Orders in Council”, though the odd one is to be found under “Statutory Orders and ReBulations”.

IOCanada, Standing O r h s of the House of Commons, Ottawa, Queens Printer, 1955, S O . 38 ( 1).

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deal to be desired; there would be exercise of control over the execu- tive, opportunity for ventilating grievances, and also observance of the important principle of the supremacy of Parliament”.ll

This question raised by Mr. Claxton is an important one which we might do well to follow up at this point before pursuing further our discussion of procedural opportunities for debate of the exercise of delegated legislative powers.

Shortly after the end of the War, Mr. John Diefenbaker argued in Parliament in favour of a Senate committee to examine orders in council, to ascertain if they “impinge and infringe upon private rights, and are unnece~sary”.~~ Four years later he came out for “a committee on minis- terial powers” to function similarly to the British House of Commons’ Scrutiny Committee.13 Within a month he pressed this suggestion further and extracted from the Prime Minister, Mr. St. Laurent, an undertaking to consider the operation of the British Scrutiny Committee and “in the light of its operation and of such other considerations as may seem relevant, to indicate . . . in the session of 1950 whether we would be pre- pared to support the establishment of a similar committee in Canada’I.14

Mr. St. Laurent gave the Government’s “indication” during debate on the second reading of the Regulations Bill at the end of May 1950. He said: “We do not believe we should recommend at this time (the British) sort of committee because most of the statutory regulations have to be made by the governor in council, and that gives considerable time for checking, whilst in the United Kingdom most of these things are done by boards or other agencies of the crown. No one who is responsible to Parliament or to the public hears of these regulations until they have become law. This United Kingdom committee has strictly limited terms of reference that probably would not fit our situation. They have to report on whether or not the order infringes seven stated principles. If it does not, the committee has nothing to do with it. If it does, they call attention to that fact. We do not believe that would be a remedy that would fit our situation.”’j

It is almost impossible to pass such a statement as this without com- ment, but Mr. Fulton, speaking for the Official Opposition did, and so did other speakers in the debate.16 Apart from the glaring errors of fact which Canadian Opposition members might not recognise, why should Parlia- ment delegate, not only authority to legislate, but also responsibility to review the use of that authority, to members of the Government? Why, furthermore, if the British terms of reference would not fit the Canadian

11Canadian House of Commons Debates, ( CHofCD), 1943, vol. I, p. 297. Izlbid., 1945, 2nd. Session, vol. 11, p. 2460. 13lbid., 1949, 2nd. Session, vol. I, p. 147. 14lbid,, pp. 927-28. lslbid., 1950, vol. 111, p. 3040. I6Ibid., vol. IV, pp. 3494-96.

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situation, could not other terms of reference be stipulated? The Prime Minister’s last sentence quoted above implies that the Canadian situation requires some remedy, but the further implication that no remedy at all would be better than the British remedy is hardly tenable. Yet this is where the Government’s negative attitude left the situation.

In 1951, Mr. Fleming, speaking again for the Opposition quoted Pro- fessor J. A. Corry from a speech the latter had delivered on 27 February 1951. Amongst other things Professor Corry had said: “Since we cannot at present see any prospect of decreasing the powers of government, our most hopeful course is to look for more effective methods of control. . . . If, as seems likely, we are to have a considerable measure of order in council government again, we should also be considering seriously the establishment of one or more committees of Parliament to examine, not the substance and policy of orders in council but the effect that the powers and procedures contained in them will have on individual rights and freedoms.”’7 This is the last reference to be found in Canadian Han- sards to the desirability of formal Parliamentary scrutiny of delegated legislation. Part of the reason for this inertia probably lies in the adamant attitude of the Government and part in the ad hoc arrangements made within the Opposition for the discharge of responsibility for examining orders in council and regulations made under delegated authority.

Let us return now to the consideration of Parliamentary opportunities to debate delegated legislative powers. Debate in Committee of Supply is the most obvious and effective occasion on which to consider the activities of departments-including their legislative activities. The 1955 Canadian Standing Orders place no new limitation on this procedure. As in the other Commonwealth Parliaments it is relatively informal,ls but Speeches have to be “strictly relevant to the item or clause under con- ide era ti on".^^

Advantage is usually taken of the first item of a department’s estimates to debate the general policy and administration of that department and it is at this point that, generally speaking, issues arising out of the department’s use of delegated legislative authority are most likely to be relevant. The other items may, naturally, open additional opportunities to debate particular sub-legislative activities, but there are practical limits.20

Debate in Supply may reveal faults in departmental administration, including abuses of sub-legislative authority. Such revelations may well affect the future action of the department concerned and even of others. This is all that Oppositions, in fact, have hoped to do.21 To this end,

17Quoted lbid., 1951, vol. I, p. 815. IsCanadian House of Commons S.O. 59( 1 ) and 59 ( 3 1. 1QS.O. 59(2). ZoMacdonnell, J. M., “Parliament and the P,urse”, Queen’s Qzrartedy, Winter 1957,

p. 532. zllbid., p. 533.

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opportunities presented in Committee of Supply were taken on at least twenty-two different occasions since the end of the war to debate instru- ments of Canadian subordinate legislation.22 In 1956 there was also one occasion when orders in council were debated in Committee of Ways and Means. This example is, of course, quite exceptional.

Impressive as they have been in terms of numbers, debates on the Address and in Supply have not been used as often to raise matters concerning Canadian sub-legislation as have debates on enabling and continuing legislation. At literally any stage of debate on delegating legislation the Canadian House of Commons may be found discussing uses and alleged abuses of powers in question. Very little if any legislation containing enabling or continuing clauses has escaped unruffled by Parliamentary prying into their implications, made more realistic by references to past use of similar or identical delegations. In the case of twenty-nine post-war Bills and Acts the House has ranged, often in a discursive and repetitious way typical of Canadian debating, through the delegating sections of the leg is la t i~n .~~

2zTwice in 1945, once in 1949, three times in 1951, twice in each of the 1952 and 19523 sessions, a t least five times in the 1953-54 session, twice in 1955, four times in 1956 and once in 1957.

23Following is a table showing the legislation referred to: 1945 ( 2nd session) National Emergency Transitional Powers Bill,"

United Nations Food and Agricultural Organization Bill; 1946 Canadian Citizenship Bill,*

Official Secrets Act, 1939,' Immigration Bill;

Patent Act Amendment Bill,* Canada Grain Bill;

Continuation of Transitional Measure Act, 1948* Excise Tax Act Amendment Bill;

1947 Continuation of Transitional Measures Bill,O

1948 Emergency Exchange Conservation Bill,'

1949 Continuation of Transitional Measures Act Amendment Bill;* 1950 Continuation of Transitional Measures Act Amendment Bill,O

Regulations Bill, Aeronautics Act Amendment Bill, Essential Materials (Defence) Bill;

Emergency Powers Bill,* Petition of Right Act Amendment Bill;

1952 Emergency Powers Act, 1951;* 1952-53 Emergency Powers Act Amendment Bill;' 1953-54 Navigable Waters Protection Act Amendment Bill,

1951 Defence Production Bill,"

Radio Act Amendment Bill, Bank Act Amendment Bill;

1955 Defence Production Act Amendment Bill;' 1956 Indian Act Amendment Bill,

Northern Ontario Pipe Line Crown Corporation Bill, Prairie Grain Producers Interim Financing Bill;

1957 Prairie Grain Producers Interim Financing Act Amendment Bill. * Denotes references to delegated legislation throughout.

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There is no fathoming the total effect of these debates, but immediate results have on occasion been achieved. The debate on the National Emergency Transitional Powers Bill, 1945, resulted in major revisions, including the enactment of provisions for a revoking procedure available to Parliament. The 1946 debates on the Official Secrets Act, 1939, led directly to the passage of the Statutory Orders and Regulations Order, 1947, under which Canadian delegated legislation began to be published and laid sy~tematically,~~ and most later debates, not only on legislation but also on the Address and in Supply, contributed their share to the introduction and enactment of the Regulations Act of 1950 which statu- torily provided for comprehensive publication and laying in Canada. It is fairly obvious, finally, that the major, if not the only reason the Government agreed to the revocation and amendment provisions regard- ing regulations made under the Defence Production Act of 1955 was that public opinion had been aroused against the “blank cheque” proposals of the Government by ensuing debate in Parliament.25 When it is considered that throughout the post-war period Governments have (with one brief exception) enjoyed the support of sizeable majorities in Parliament, these achievements are rather impressive.

There are a number of Canadian examples of debates involving sub- ordinate laws on motions analogous to British motions for which the Government finds time. On Parliament Hill these usually have been on Private Members’ resolutions or Government resolutions moved to test the thinking of the House, but there is one example, occurring in 1949, of such a debate on a reply to an Order for Return. There have been seven debates on non-legislative resolutions, and two on resolutions fore- casting legislation, all of which contain reference to the Government’s use of delegated legislative powers.

Three of the non-legislative resolutions had particular significance for this study. One, of 1947, was a resolution to set up a joint committee on human rights and fundamental freedoms. This was a Government spon- sored resolution resulting from the previous session’s debates on the Official Secrets Act, 1939, and the espionage investigation. It was sup- ported by all parties in the House, but during the course of an excellent debate Mr. John Diefenbaker, the chief spokesman for the Opposition, deemed it necessary to point out in some detail how orders in council had been used by the Government “to get things done”, and as a result, to compromise and even prejudice the rights and freedoms of the indi- viduaLzB In the following session, of 1948, another resolution of the same

24Statutoy Orders and Regulations, Consolidation, 1949, P.C. 4876, made 26 November 1946.

ZWHofCD, 1955, vol. IV, pp. 4510-4519; vol. V, pp. 4687474’7, 4983-5041, 5359-5421,5623-5736,5750-5799, vol. VI, pp. 5808-58,5937-5941.

Wbid. , 1947, vol. IV, pp. 3154-3157.

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substance reappointing the joint committee just mentioned was debated, again at some length. At one point in this debate the same Opposition spokesman urged that there “should be a declaration that never again will statutes passed by parliament be amended by orders in council and made inoperative by the governor in council”,27 and went on to give examples of such alleged abuses of delegated powers.

Early in the 1955 session Mr. Diefenbaker moved a private Member’s resolution, “That in the opinion of this house, immediate consideration should be given to the advisability of introducing a . . . declaration of rights to assure amongst other rights:

1. Freedom of religion, freedom of speech, freedom of the press and

2. That habeas corpus shall not be abrogated or suspended except by

3. That no one shall be deprived of liberty or property without due

The merits of arguments for and against a Canadian declaration of rights is not of particular relevance here, but it is perhaps relevant to note that in the Minister of Justice’s highly critical reply to the motion in which he demolished the arguments for a due process of law clause, largely by reference to Mr. Justice Frankfurter’s Law and PoZiti~s,~O the Minister said nothing about the proposed guarantee “That no one shall be deprived of liberty or property . . . by order in council.”30 Much of the Minister’s argument swung on the fact that Britain has no declaration of rights in the sense of the motion then under discussion, but he did not mention that a British statutory instrument which might have the effect of de- priving individuals of any traditional freedom or right would in all likeli- hood be subject, in Britain, to parliamentary annulment.31

Motions for resolutions are not, of course, the only ones for which a Canadian Government might find time if the House wished to discuss deIegated legislative powers. No Government, for instance, could refuse time for a motion of censure on this or some other subject.

Private Members’ Bills concerning Parliamentary supervision of dele- gated legislative powers are no more common in Canada than elsewhere. There is, however, one significant post-war example in the Canadian instance. In the 195253 session a private member’s Bill was introduced

of radio;

Parliament;

process of law, and in no case by order in council; . . .”2*

Wbid., 1948, vol. 111, p. 2863. ZQIbid., pp. 908-09. 31On September 5, 1958 Mr. Diefenbaker, as Prime Minister, secured the first

reading of a Bill, C-60, for the Recognition and Protection of Human Rights and Fundamental Freedoms which contains a “due process” clause and applies specifically to “All the Acts of the Parliament of Canada . . . , all orders, rules and regulations thereunder”. Debate on that reading involved general references to the use of delegated legislative powers. See particularly CHofCD, 1958, vol. IV, pp. 4641-4642.

Wbid., 1955, vol. I, p. 894. aolbid., pp. 904-14.

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to amend the Regulations Act of 1950 in regard to section 9, subsection 2 which provides for the non-publication of orders in council which the Government decides to keep ~ecret .3~ Despite the fact that only one order in council, made under the provisions of the Emergency Powers Act of 1951 on 4 July 1951, had been kept secret up to the time of the it was proposed that the secrecy provisions of the Regulations Act should be repealed.34 The Minister of Justice in replying to the motion for second reading did not have time to meet the substance of the arguments made by the mover and seconder before the six o’clock recess. No additional time was found at a later date for resumption of the debate.

In the Canadian Parliament there is no opportunity to debate the daily motion to adjourn. There is, furthermore, no developed practice of hold- ing debates on the adjournment when the House rises for holidays or prorogation. Despite the fact that Canadian Standing Orders provide that a motion to adjourn “shall always be in order”35 and by implication, debatable, the use of debate on motions to adjourn is not a generally used procedure in Canada for the influencing of Government in its use of authority, legislative or other. The one exception, of course, is debate on motions to adjourn for the purpose of discussing urgent matters. This procedure, however, is restricted by its nature to matters which are unlikely to involve delegated legislative powers. There is, in fact, only one Australian instance of a Commonwealth debate on an urgency motion to adjourn which has involved subordinate lawmaking or instruments thereof. It is surprising that the Canadian Parliament has not adopted adjournment procedures allowing debates of administrative and other particular matters especially when it relies so heavily on general pro- cedures in trying to supervise governmental activity, particularly sub- legislative activity.

In the Canadian instance normal procedures by which governments are held responsible to parliament are almost the only ones available for debate of statutory orders and regulations, and what special provisions there are for debate on affirmative resolutions and motions to annul have literally never been used in the post-war years. Thus, it would seem, Canadian experience shows that the exercise of delegated legislative powers can be influenced satisfactorily, at least from the Opposition’s point of view, in such debates as those on the Address in Reply to the Speech from the Throne, on the various stages of Supply and on “con- tinuing legislation”.

The Australian experience does not tend to reinforce this impression, but this is undoubtedly because both Houses of the Australian Parliament have a general power of disallowance supplemented in an important

32Bill No. 365, 1953. 34CHofCD, 195253, vol. V., pp. 5012-14.

33May 8, 1953. 35S.O. 25.

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142 CANADIAN PUBLIC ADMINISTRATION

degree by an effective Senate scrutiny ~ o m m i t t e e . ~ ~ Thus, in Australia, debates of Senate committee reports and of motions to disallow provide the pegs upon which most discussions of delegated legislation are hung. It remains to be said that, until 1955, discussions of the subject were neither frequent nor lengthy, though the procedures were there and have since been more effectively used.

In the New Zealand instance, again the procedures are available but not extensively used. All the normal opportunities for debate exist but are rarely if ever taken. Perhaps half of all statutory regulations which are laid before Parliament are subject to a motion that they be referred to the Government. If the British experience with “prayers” for annulment is indicative, their chief value is the salutory influence which the content of debate often has on the substance and/or administration of instruments. This probably being the case, the New Zealand reference procedure, used with a will, might not be inadequate. Not only can New Zealand’s Parlia- ment require the Government to reconsider a significant proportion of all instruments, but also it must a h by resolution or Act a number of other particular regulations. With rare exception this is done almost on the nod, but, of course, it need not be so. That it is may mean nothing more than Parliament is satisfied with the form and content of regulations presented to it. In 1948 and again in 1956 this was not entirely the situa- tion and useful debate developed on various stages of the Agricultural Emergency Powers Regulations Codrmation Bills of those years, and on second reading of the Primary Products Marketing Regulations C o n h a - tion Bill of 1956.37

The British Parliament has almost entirely abandoned attempts to influence delegated legislation through ordinary procedures similar to those used exclusively in Canada. Earlier than any other Commonwealth Parliament, the British began to develop special procedures by which instruments of delegated legislation could be debated, and in the last resort, rendered inoperative by either annulment or failure to gain Parlia- ment’s approval. Since 1945 these special procedures have been used almost to the exclusion of more normal procedures appropriate to the control of government authority.

The special procedures which have become such a prominent feature of British Parliamentary control over delegated Legislation are, of course, the affirmative resolution and the resolution praying for annulment. Generally speaking the affirmative procedure is applied by the parent Act to instruments which (1) affect provisions in Acts of Parliament, (2)

-Wee “Upper Chamber Scrutiny of Delegated Legislation”, PubZic Law, Spring

37See in particular, New Zealand Parliamentary Debates, vol. 284, pp. 3812-13 and 1959, an article by the present author.

3819-23.

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make financial provisions, (3) provide the legislative substance to achieve purposes fixed by the enabling Act and (4) prejudice particular persons or classes of persons. In general, again, all other legislative, as opposed to strictly administrative, British instruments are subject to the negative procedure of possible a n n ~ l m e n t . ~ ~

The affirmative procedure appears to enjoy certain advantages, from Parliament’s point of view, over the negative procedure. Parliament’s attention is drawn in a positive way to the exercise of powers delegated in cases where the same instruments might not attract attention if subject only to prayer. An a f f i a t i v e resolution is more likely to evoke construc- tive criticism, and debate is usually better directed to the issues involved than in the case of a prayer. Government back benchers are more inclined to participate in debate on a f f i a t i v e resolutions, for there still remains a stigma on prayers, which have not always been debated in a fully responsible temper. Furthermore, most affirmative resolutions are moved in favour of draft instruments, and so there is a more realistic possibility that what is said in debate will have significant influence upon the Minister or his departmental officials who are listening behind the Speaker’s chair and who will later put the instrument in final form. An impression is left that Parliament is in essence being “consulted” rather than being asked merely to sanction some fait accompli.

This concept of consultation of Parliament in the making of instruments of delegated legislation is an interesting one. It appears that the only interested body not consistently consulted by departments during the course of drafting statutory instruments is Parliament. Important British exceptions are draft instruments, all but a small percentage of which are subject to affirmative resolution. It might be useful to extend the practice of “consulting” Parliament by increasing the use of the laying procedure by which drafts are tabled and made subject to negative resolutions. All instruments could not, of course, be laid in draft for very good practical reasons, but if appropriate escape clauses were drafted into the relevant enabling Acts, there is no reason why Parliament could not extend the “consultative” laying procedures and at the same time supervise use made of the escape clauses. Indeed, the latter function could be performed by the House of Commons Scrutiny Committee under an appropriate new order of refence.

Parliament in Canada, by contrast, has not moved to introduce to any significant extent special procedures to supplement or complement ordi- nary opportunities for discussing the exercise of delegated legislative authority. The advantages of special procedures for debating delegated legislation appear to be considerable if British and Australian experience

WSee British Parliamentary Paper 310-1 of 195253, pp. 3134.

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144 CANADIAN PUBLIC ADMINISTRATION

with them means anything, If the Canadian Parliament, therefore, ever recognizes these advantages as substantial, it ought, certainly, to consider especially the British developments of the past several decades. These seem to indicate that certain desirable procedures are likely to prove practical if adopted under reasonably similar conditions. First, a h a t i v e resolution can reasonably be required for all important legislative instru- ments, particularly those which affect statutory provisions, make financial provisions and fill out all the legislative detail implied in purposes estab- lished by enabling Acts. Second, a h a t i v e resolution is also practical for administrative instruments which may prejudice persons or classes of persons. Third, all other legislative instruments can be made subject to annulment even in a unitary and social welfare state.

All this does not alter the fact, however, that the two main political parties in Canada have little or no inclination to press for the introduction of special procedures to supplement the normal ones which so far have proved adequate in the Canadian situation. Long years in opposition taught the Progressive Conservatives to use effectively the ordinary oppor- tunities available. Lack of experience in opposition make the Liberals unlikely to be successful in convincing a Government whose members, from their own experience, see little reason for supplementary safeguards in matters of subordinate legislation. Clearly, no Government is likely to take the initiative. Future developments may, of course, alter political and Parliamentary attitudes considerably, and, under those circumstances, British and other relevant Commonwealth Parliamentary experience ought, most certainly, to be considered in contemplating possible extension of affirmative and negative procedures in Canada.

For summary of this article in French see p. 176.