WHEREAS the passage of legislation in Alberta often requires additional regulations, orders in council, ministerial orders and codes, together commonly referred to as delegated legislation, that dictate how the legislation will be applied; and
WHEREAS this delegated legislation can dramatically change the impact and scope of the enabling statute; and
WHEREAS the current practice of giving Royal Assent to legislation before defining how this delegated legislation will be used in practice creates confusion for the public and administrative bodies while also robbing legislators of the ability to properly understand new laws before voting on them; and
WHEREAS introducing all delegated legislation along with their enabling statutes for review to the Alberta Legislature would make for a more transparent and accountable legislative process;
THEREFORE BE IT RESOLVED that the Alberta Association of Municipal Districts and Counties request the Government of Alberta to enact a legislative requirement that all delegated legislation including regulations, orders in council, ministerial orders and codes, that are essential to the implementation of new or amending legislation, be submitted for review to the public and the legislature before final reading of the enabling legislation takes place.
The increasing size and complexity of government in Alberta has also led to a proliferation of delegated legislation. This phenomenon is not unique to Alberta and indeed all Canadian governments now rely to an increasing degree on regulations, orders in council and ministerial orders in order to get the business of government done. The increasing importance of these instruments has also led to a number of attempts aimed at regulatory reform and increasing legislative oversight. Despite Alberta’s attempts in this regard the recent history of complex and far reaching legislation being passed with no knowledge of the actual impact or scope of the delegated legislation used to implement it requires that additional measures be taken. To this end, the Government of Alberta should take the unprecedented step of requiring that all delegated legislation required in new or amended Alberta legislation be introduced for consideration by the Legislature and the public before final reading of the bill takes place.
While this type of requirement would be unprecedented in Canada it is required to address the scope of the problem in public and legislative oversight we are now dealing with. In Alberta there are currently over 1100 individual regulations as listed on the Queen’s Printer website. This may or may not be the entire scope of delegated legislation in Alberta as the Interpretation Act defines a regulation as:
a regulation, order, rule, form, tariff of costs or fees, proclamation, by-law or resolution enacted
(i) in the execution of a power conferred by or under the authority of an Act, or
(ii) by or under the authority of the Lieutenant Governor in Council
But only regulations which are “legislative in nature” are actually required to be filed under the Regulations Act. As there is no current comprehensive listing of ministerial orders or orders in council that have not been registered under the Regulations Act available to the public the scope of delegated legislation in Alberta cannot be known.
While the scale of delegated legislation in Alberta is large, the attempts by government to impose some kind of legislative oversight have been small and inadequate. Currently there are two types of review that take place in Alberta. The first is through the Regulatory Review Secretariat as empowered by the Regulations Act Regulation. Through this process, which is run through Alberta Treasury Board and Finance, all new regulations submitted for registration are required to have a regulatory impact report submitted as well. If the new regulation meets with the government’s Guiding Principles of Regulation, which are based on stakeholder impact, then the regulation receives a compliance certificate and can then be registered and enforced. While this process is most certainly helpful for departments charged with drafting quality regulation it does nothing to increase public or legislative scrutiny of the proposed law before it is enacted. The second method is aimed directly at this lack of legislative scrutiny and oversight. Through the Policy Field Committees of the Legislature all regulations can be reviewed with hearings held and reports delivered to the Legislature. While this process introduces an extra layer of scrutiny it does not require that all regulations be reviewed and is really meant to deal with problems as they occur after implementation rather than helping create good legislation from the beginning.
The major problem with these two levels of oversight is that neither addresses the quality of the law as it is being made. The issue of whether or not a lawmaker or member of the public would agree with a law can often depend on how it is implemented. When the government passes a law with large unknowable effects the general public as well as public and private organizations can react with confusion, fear and hostility. The recent problems with Bill 6 are an obvious example of this outcome. Had the government introduced all supporting delegated legislation before final passage of the Bill, for example the required amendments to the Occupational Health and Safety Code, then the public could at least engage with government on the substance of the bill without the unnecessary fear and speculation. More importantly had this delegated legislation been submitted along with the Bill then the legislators voting for it would actually understand what kind of impact the Bill would have on their constituents.
When a new law is passed it is often said that the devil is in the details. Unfortunately in our system of government the details are released by the executive branch of government, generally by proclamation, and generally months after the law itself has been passed. When laws are passed such as Bill 50 back in 2009 or Bill 6 today whose impact can range from moderate to devastating, the public has a right to know what they face and legislators have a duty to understand what they are voting for. While these are two very controversial examples there are many more. For example the upcoming amendments to the Municipal Government Act will require codes of conduct for council however the form and impact of these are completely unknown.
While it could be argued that a change of this kind is not required as all meaningful regulations are eventually released to the public often with a reasonable amount of consultation, the point is that the system could be improved. There is no reason that draft delegated legislation could not be submitted with a draft bill. The idea that MLAs do not have the time or technical expertise to read and understand technical regulations is absurd. If an MLA is expected to read and understand an enormous piece of legislation such as the Municipal Government Act or the Water Act, they should also be expected to know how it is actually being implemented. Passing laws which create lawmaking powers for individuals and organizations should come with a responsibility to the public to understand and oversee how this power will be used. By taking this step, Alberta could show itself as being a leader in open, efficient and accountable government.
The AAMDC has no active resolutions directly related to this issue.
Executive Council: Delegated legislation emerged over a century ago as a common feature in democracies across Canada and throughout the world. Guided by parent legislation that stipulates what sorts of orders may be written into regulations, rules, orders, by-laws, and other instruments, governments must pass hundreds of pieces of delegated legislation every year to function responsibly, proficiently, and with the agility necessary to meet changing circumstances.
By empowering Cabinet, ministers, municipal councils, agencies, and other public bodies to implement well-defined policy objectives established in primary bills, delegated legislation is indispensable to governing a modern province like Alberta. As a parliamentary committee found over 50 years ago, if the full legislative assembly were to become engaged in the day-to-day administration of government (e.g., in the review of municipal bylaws), it would defeat the purpose of delegating those powers in the first place.
Our government remains committed to bringing forward and supporting legislation that is in the best interest of Albertans. This means avoiding legislative gridlock and ensuring the best use of resources to support sound, transparent policy-making. As we have done in the ongoing review of the Municipal Government Act, we will continue to engage the public and key stakeholders as we set priorities and develop both parent and delegated legislation.
The Government of Alberta response is not supportive of expanding the review of delegated legislation to the public and legislature. The AAMDC appreciates the government’s willingness to consult on the MGA review and other recent legislation, but as the resolution requests an expansion of current consultation processes, this resolution is assigned a status of Intent Not Met.