At the time this article was written
Elizabeth Weir was a member of the New Brunswick Legislative Assembly. This is
an edited version of a paper delivered to the 36th Canadian Regional
Conference in Regina in July 1997.
Delegated legislation has generally proved
to be a useful tool in governing an increasingly complex society. But the shift
of part of the legislative function from legislatures to the executive, has
created a problem for democratic representative systems. This can generally be
characterized as one of accountability. The central legislative body is no
longer directly responsible for a vast body of law that perhaps has the
greatest impact on the general public. The principle of parliamentary supremacy
is also undermined when delegated legislation contains matters of policy. This
article considers whether the existing framework for the process of delegation
assures adequate accountability, indeed adequate scrutiny, in the exercise of
the authority given.
The power of delegation has provided
governments, in an increasingly technocratic world, with a range of
administrative tools to carry out policies and programs. It remains the
responsibility of the legislature to ensure that the executive is accountable
for its use of "law-making" powers, as well as for its expenditures
of public funds.
There appear to be at least two principal
"problem areas" for accountability. First, is the vast body of
"rules" that guide the decisions of government officials but are not
drafted in the form of published regulations; the second is the absence of
review of regulations published pursuant to statutes at the provincial level.
Direct delegation of decision-making
authority to a subordinate body, such as a tribunal is the most common example
of delegated legislation. But increasingly, delegation is carried out, not
through the drafting of regulations that require some form of publication, but
rather through the development of policy manuals and departmental guidelines.
The term "directive" is generally
employed to describe this form of delegation. The purpose of the
"directive" is to provide guidance to officials in carrying out
government policies. There is little, if any, review of the decisions that are
taken, or the powers allocated to government officials, and consequently,
The following examples, from New Brunswick
illustrate the impact on citizens of the use of this form of delegation. Early
in 1997, the Department of Human Resources Development made a change in its
rules for income assistance eligibility. These rules are contained in a policy
manual. In order to ensure "equity" in treatment of married and
unmarried couples in terms of benefit levels, the "economic unit"
rules was developed. It set the same level of benefits for unmarried people in
relationships, as for those in marital relationships.
However, a new gloss was added by virtue of
a policy change and the "economic unit" rule was extended to catch
unrelated people, sharing accommodation, with no legal obligation of support.
Using the concept of the "economic unit", income assistance benefits
eligibility was now limited to "one cheque, one household" – either
one income assistance cheque, or one earned income cheque.
Case 1. A high school student about to graduate had left an abusive home
situation. She had been offered a place to stay by a woman, no relation, with
three children, who was also receiving income assistance. The young woman was
informed that her benefits would be terminated and that the single parent with
three children would be responsible for her support. Needless to say, the
mother could not afford to add another adult onto to her monthly budget. The
young woman’s social worker wanted her to remain in this home and felt she was
provided with good support in her efforts to complete high school.
Case 2. A senior receiving a small widow’s pension and income
assistance had taken in a boarder during the week while he worked in the Saint
John area. The widow had always reported the income to the Department. However,
with this rule change, they were deemed to be an "economic unit". The
boarder was informed that he would be responsible for the widow’s support. When
the Department backed off this demand, the boarder was asked to bring in
statements from his employer. Quite rightly regarding this to be an invasion of
his life and privacy, the boarder moved out.
At no time was a regulation drafted to
effect this rule change, nor was any form of legislative change presented in
the Legislative Assembly. This decision was effected by a unilateral policy
change by officials within the Department of Human Resources Development, and
it was often executed without notice. A court challenge would probably be successful,
however, the people affected by this rule change are clearly without the means
to get it before the courts.
The principles for the appropriate use of
delegation were set out in a 1932 report of the Australian Senate’s Standing Committee
of Regulation and Ordinances and form the basis for that Committee’s review of
Four principles were identified in that
report to test the valid and appropriate use of the power of delegation.
legislation shall be in accordance with the statute;
must not unduly trespass upon the personal rights and liberties of citizens;
must not unduly make the rights and liberties of citizens dependent upon
administrative decisions which are not subject to review of their merits by a judicial
or other independent tribunal;
must not contain matters more appropriate for parliamentary enactment, for
example, entail a fundamental change in law affecting rights, obligations, or
Other committees have added further tests.
For example, in Canada a Standing Joint Committee includes in its review
whether the regulation conforms to the Canadian Charter of Rights and Freedoms
or the Canadian Bill of Rights.
Getting a driver’s license, a hunting or
fishing license, applying for income assistance benefits, the issuing of a
license for the operation of a radio or television station, or even a nuclear
power plant – are just a few examples of the ways in which delegation can touch
the day to day lives of citizens, in sometimes dramatic and profound ways.
Although the use of government directives
points to challenges in developing effective means of scrutiny, perhaps, more
troublesome is the gap in accountability that exists in most provinces in terms
of any legislative review whatsoever of regulations created pursuant to
The following is list of scrutiny measures
that are used in other jurisdictions.
Review by a parliamentary committee. In Australia, Canada, New Zealand and the United Kingdom,
standing committees have been created to review executive legislation. These
committees are generally chaired by members of the opposition. The work of the
committees is often assisted by the advice of independent legal counsel.
Committees in Canada and the United Kingdom are permitted to include legal and
drafting issues in their review of regulations.
The requirement to lay delegated
legislation before the House for approval. Several jurisdictions require the tabling of regulations in the legislature.
In some cases, resolutions of both houses are required to implement an
Resolutions of annulment or disallowance. In some jurisdictions, resolutions may be brought to
A public register. In the United States, administrative procedure
legislation requires the publication of not just regulations, but other
documents, such as policy manuals, in a public register. The Internet now
offers citizens a method of quick and inexpensive access to regulations and
Sunrise or sunset clauses. Regulations are deemed to be repealed if a
proclamation date is not set. In Victoria State, in Australia, all regulations
are sunsetted every ten years.
Regulatory Impact Statements. These are statements prepared by Departments with
the requirement of public advertising. In Canada, departments are required to
publish Regulatory Impact Analysis Statements in the Canada Gazette. Such
statements must outline the policy objective of the regulation, the need for
the regulation, the content of the regulation, any changes from the existing
legal regime, and must include the identification of a contact person within
Regulatory Plans. In Canada, since 1986, federal departments and
participating regulatory agencies are required to prepare and file regulatory
plans that list the regulatory initiatives with which they intend to proceed in
the coming calendar year. This serves to provide broader public notice for
parties who may be affected by the creation of new regulations, or the
amendment of existing regulations.