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This paper focuses on the ability of the Standing
Joint Committee for the Scrutiny of Regulations in Canada's
Parliament to hold ministers accountable for the legality of the
subordinate legislation (primarily regulations) sponsored by
their department. The Committee is only one of a number of
entities within the federal government that focus on some aspect
of ministers' activities for the purpose of holding them
accountable.
The essence of any accountability regime (mechanism) is to
evaluate the performance of persons to whom authority has been
delegated with respect to the exercise of that authority, and to
sanction or reward the person in light of the evaluation of their
performance. The essence of authority is power - the ability to
make certain things happen (or not to happen) even in the face of
the opposition of other persons. The concept and practice of
accountability is central to the idea of democracy. We insist on
holding people accountable because a) it is necessary for those
with the ultimate legitimate authority (the citizens in a
constitutional democracy) to delegate part of their authority to
others (their agents), and b) because power corrupts - it will
almost certainly be abused, and so the exercise of the power must
be controlled. Thus, those with legal authority to act (in this
case in the name of the people) must be called to account for the
actions taken to exercise the authority delegated to them.
This paper is organized as follows. Section 2 compares the
process by which statutes are created (or amended) to that by
which subordinate legislation is made into law. Section 3 briefly
explores the role and activities of the Standing Joint Committee
for the Scrutiny of Regulations. Section 4 consists of a detailed
chronology of one (large) set of regulations, the Aboriginal
Communal Fishing Licences Regulations (ACFLRs), focusing on their
review and evaluation by the Standing Joint Committee. Thus, this
paper is essentially a case study, but like other case studies,
it is intended to identify lessons that have much wider
application. Section 5 consists of my conclusions with respect to
the accountability of ministers for their subordinate legislation
based on the case of the ACFLRs. Section 6 contains further
discussion and reflections on the case of the
ACFLRs.
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