At the time this article was written David Mullan was professor in the Faculty of Law, Queen's University, Kingston. This is a revised version of an address to the Second Commonwealth Conference on Delegated Legislation held in Ottawa in April, 1983.

At the outset it is appropriate to ask what exactly we mean when we talk about the review of delegated legislation on its merits. By "review" I mean a post-promulgation assessment of subordinate legislation by someone other than the person or body that has proposed that legislation. That review may or may not include the power to nullify or to set aside the legislation in question. "On its merits", connotes a decision by somebody as to whether a particular piece of subordinate legislation is worthwhile or in accordance with an accepted policy. That distinguishes it from the narrower, conventional court review of subordinate legislation, namely, where it is invalid because it goes beyond the authority of the empowering statute (ultra vires).

Why Bother

Why bother to review the merits of subordinate legislation? There are a number of traditional answers given to this question. The first is that when Parliament delegated authority to a subordinate authority it did not intend to lose control of the legislation entirely. It did not intend to allow wrongheaded decisions to be taken under the guise of a subordinate legislation-making power. Another traditional answer is that there needs to be some control exercised over the way ministers of the crown, regulatory agencies and government departments make decisions. They should not become all powerful. There have to be checks.

Even for those who see an important and continuing role for massive government involvement in the regulation of the economy and in policy decision-making, there comes a point at which some check on the merits of subordinate legislation may become necessary. Departments and administrative agencies have, quite clearly, a capacity for error, tunnel vision and, occasionally, sloth. Given that, supporters of extensive governmental powers must presumably have an interest in developing devices for reviewing one of the major tools of government regulation, delegated legislation.

The Courts

Let me now move on to some possible ways to review the merits of subordinate legislation. At a time, in which there has been an increasing concern with the bigness of government and with the idea that it is necessary to trim government size, it is not surprising that a work such as Lord Hewart's The New Despotism should stage somewhat of a renaissance. However, it was rather surprising to me, in reading the bibliography prepared for the first Commonwealth Conference on Delegated Legislation to see no mention at all of John Willis' classic work, Parliamentary Powers of English Government Departments.

I raise this for a couple of reasons. First, I wish to draw it to the attention of those who have not read it, and, secondly, it enables me to deal succinctly with one of the suggested avenues for scrutiny of the merits of subordinate legislation, which I do not think would work. I refer here to the possible role the ordinary courts might have as scrutinizers on a regular basis.

Willis, in the course of his work, draws attention to the fact that judicial scrutiny of subordinate legislation, whether on the merits or for ultra vires reasons, tends to be haphazard. In this regard, if one is interested in having some sort of systematic review of the merits of subordinate legislation, this suggests the courts are not the route to take. At the same time, if one looks at the way in which the courts historically have reviewed subordinate legislation, what emerges is that they have generally been little concerned with its merits in the course of their limited involvement with such legislation.

Dennis Pearce, in his important work, Delegated Legislation in Australia and New Zealand, refers to two existing grounds of review which potentially provide the courts with the means of becoming involved in scrutinizing the merits of subordinate legislation. These are "unreasonableness" and 1ack of certainty". Pearce, however, makes the argument convincingly that those two particular grounds have not served as a very satisfactory basis for judicial review. Also, attention deserves to be drawn to the fact that even when the courts deal with the merits of subordinate legislation on such conventional grounds as ultra vires, they at times become embroiled in political controversy on the basis that they are using this as a guise for concerning themselves with the merits.

In that regard the lengthy and often strident debate in the Canadian Bar Review of 195051 over the decision of the Judicial Committee of the Privy Council in Canadian Wheat Board v. Hallet and Carey Ltd. and Nolan is indicative of the extent to which the courts' credibility may come into issue if they become too involved in the merits of subordinate legislation under the ultra vires umbrella.

Of course, it might be said that with the emergence of the Canadian Charter of Rights and Freedoms, we have in fact recognized the right of the courts to become much more directly and heavily concerned with the policymaking decisions of government departments and regulatory agencies, particularly given the Charter's instruction that infringements can be sustained if they can be "demonstrably justified in a free and democratic society".

I suggest, however, that Canadian courts will have enough on their plates for the foreseeable future in deciding the relationship between section I of the Charter and the specific prohibitions to also undertake a general, at-large, scrutiny of the merits of subordinate legislation,

Willis' solution to the whole question of judicial review was to abandon it entirely. He thought there was no point to it at all. He argued that shortly after subordinate legislation was promulgated there should be scrutiny by a committee of some sort which would decide whether or not the regulations in question were ultra vires. If that committee decided that they were not, that should be the end of the matter. The regulations would become unimpeachable for all purposes.

Parliamentary Committees

So much for the courts. Most of the focus in recent times has been on the possible role of parliamentary committees and, as far as I have been able to ascertain, the prognosis for the use of such committees for merits review has been extremely cautious. Once again I refer to Dennis Pearce. In commenting on a 1976 Commonwealth of Australia parliamentary report which recommended that the Australian Senate Standing Committee on Regulation and Ordinances be given authority to review the policy underlying the exercise of delegated powers, Pearce had the following to say:

This could well destroy the present satisfactory working relationship that the committees have established with the executive. It would also impose a very heavy burden on a committee if the number of instruments that it had to review were increased ... Finally. if the parliament itself can take no action in relation to the instrument, the committee itself would lose its ultimate sanction and find itself in a much weaker negotiating position with the executive.¹

Even under existing criteria that characterize the operating bases of many parliamentary scrutiny committees, there is a potential for political tensions. The Canadian committee, however, in its tenth general report makes recommendations that merit some attention. The committee was quite frank about its own abilities to engage effectively in the scrutiny of the merits of subordinate legislation: "While this might be a glamorous task and would perhaps rescue the committee from the obscurity in which its predecessors ]anguished, it would be beyond its capabilities."²

The committee went on to recommend that, insofar as there was to be parliamentary scrutiny of the merits of subordinate legislation, it should be carried out by the relevant parliamentary standing committee.

Even here, however, the Canadian committee recognized limitations on the appropriateness of referring the merits of delegated legislation to the various specific parliamentary committees.

Your committee cannot pretend, however, that it is very sanguine about the effectiveness of reference to standing committees while the membership of committees of the House of Commons remains so large and subject to frequent replacements, and the committees themselves lack adequate technical assistance. In any event, it would seem to be a Herculean task to review the merits of and to hold hearings on all regulations, even all new regulations. Perhaps all that can be reasonably aimed for is the review by parliamentary standing committees of the merits of policies of selected subordinate laws.³

The committee then cautioned against the dangers of standing committees becoming too reliant on their staff and stressed the importance of independent views, if in fact there was to be review on the merits of subordinate legislation by standing parliamentary committees.

What all of this suggests is that, while parliamentary scrutiny of the merits of subordinate legislation may not be as random and as haphazard as judicial scrutiny, there is, nevertheless, the reality to be faced that parliamentary scrutiny of all delegated legislation, at least in this particular jurisdiction, is really beyond contemplation. Not only is the task enormous, but the degree of party discipline, even within committees, and the general politicization of the process makes the chances of an effective review on the merits not all that great.

Alternatives

Let us then look at possible alternatives to parliamentary review on the merits. It seems to me that our view of this particular issue has been too confined in the sense that the debate is far too often tied up with the whole question of parliamentary reform and the issue of making Parliament more effective. If we moved our attention away from this and thought about other methods, extra-parliamentary methods, of reviewing subordinate legislation, potentially more fruitful ideas might emerge.

I note in this regard that Western Australia has a committee which consists of non parliamentarians and a review of how this has worked in practice would be instructive. However, even in 1980, the chief executive officer of the Western Australia committee was predicting the demise of what he described as a "far western aberration", only two and half years after it had come into existence. I do not know whether the demise has, in fact, taken place but, given that pessimism, it would not be all that surprising if it has.

Nevertheless, demise has not been the fate (in our jurisdictions) of other parliamentary watchdogs consisting of non parliamentarians, such as the office of the ombudsman and the office of the auditor general. On the other hand, the tightrope that auditors general and ombudsmen walk is a very narrow one, and to the extent that they do not have any formal decision-making powers, they are forced to engage in various political accommodations to ensure their effectiveness. Perhaps therefore, if we are to think seriously of an external review of the merits of subordinate legislation, we have to think not in terms of a parliamentary watchdog but rather in terms of an independent agency which would have a mandate to scrutinize and strike down subordinate legislation as unmeritorious.

This raises the question as to whether that is something we could realistically afford. When we talk about review of the merits of subordinate legislation, we are talking about whether or not a regulation is appropriate, proper and "good". For those kinds of judgments to be made we have to start thinking about a parallel organization which has the facilities available to it to engage in a consideration of the merits of subordinate legislation from an informed, capable, policy perspective. The cost of setting up such a body may well be something that the public purse at this stage might not want to contemplate, particularly if its mandate was to review all delegated legislation. However, there may still be some profit in exploring the possibility of an external agency with authority to review the merits of selected subordinate legislation.

Admittedly, such a proposal involves removing the scrutiny of subordinate legislation from parliamentary authority or at least complementing it with an external review source. However, if we, the public, could convince parliamentarians that we do not necessarily think that they should be responsible for all delegated legislation; that we realize they cannot effectively review the merits of all such legislation, then it may well be we would be further along the road towards considering the creation of an external monitoring agency with effective power to perform that task.

Notes

1. Australia, Butterworths, 1977, p. 195.

2. Ottawa, Supply and Services Canada, 1980, p. 8.

3. Ibid.