The Description section of the RIAS outlines the purpose of the regulations as well as the current problem and explains why regulatory action is necessary.

The Alternatives section sets out other options that were considered to achieve the objectives of the regulation, including the status quo (doing nothing), as well as non-regulatory alternatives, such as voluntary standards, taxation and user charges, that could have been used to alter behaviour instead of using the law, and describes what lesser regulatory alternatives were considered.  It explains why each of the rejected alternatives was rejected and why there are no other alternatives available.

The Cost-Benefit section is fairly self-descriptive. The onus is on the sponsoring department to demonstrate that the proposed regulation maximises the benefits to citizens and that these benefits outweigh the anticipated costs.  The costs that are usually taken into account include environmental impact, health impact and the cost of enforcement.

The Consultation section describes who was consulted and how.  It provides a summary of the comments received and the responses to the comments. Sponsoring departments are asked to consult in proportion to the anticipated impact of the regulation.  One thing the Privy Council Office makes clear is that pre-publication is not a substitute for consultation.

The Compliance and Enforcement section of the RIAS gives an overview of the procedures and resources to be used to ensure compliance.  It gives a description of how non-compliance will be detected, who will enforce the regulation and what the penalties are for non-compliance.

The Contacts section simply gives the name of the official to whom clients can address their comments regarding the proposal.

Other documents that may be of interest include the Ministerial recommendation, the communication plan, and a supplementary note.

The ministerial recommendation is signed by each Minister whose name will appear on the Order in Council that accompanies the regulation.  Sometimes a statute will require that a particular Minister or a particular set of Ministers must recommend a regulation.  In that case, each of those ministers must sign the ministerial recommendation to Cabinet before the regulation can be made.

One area where sponsoring departments can run into trouble when they are mapping out the timeline for regulations is if they do not leave enough time in the process to get the Minister's approval. At the time the recommendation is required, the Minister may be travelling or, if the House is not sitting, he or she may be in their constituency.

A communications plan is required for all regulations that go to the Governor in Council.  There is no reference to this in the Privy Council Office publication Guide to the Regulatory Process but they have confirmed that it is still required.  There is an older 1992 document produced by the Treasury Board (entitled Federal Regulatory Process), which outlines what goes into a communication plan.

A communication plan is for Ministers only.  It is a confidential document that sets out the objectives of each component of the regulation, how the public has been encouraged to participate in the development of the proposal, who the effected parties are, and to whom and how the regulation will be communicated.  Usually the latter is done by publication in the Canada Gazette, but there can be additional things like mailings or press releases and newspaper notices.  These other means can be crucial for regulations that are exempt from publication, as some are (military regulations, for example).

On the political side, the communications plan identifies possibilities for a good news story or warns of possible negative reaction to the regulation.  The purpose of the plan is to show that the regulation is consistent with and in fact furthers the government's overall policy objectives, that public participation has been encouraged and that the recommendation will be effectively communicated to the public and to target audiences.  The amount of detail in the communication plan will vary with the anticipated impact of the regulation.

Another required document is known as the supplementary note.  This is basically a briefing note to ministers, which is included to give them background information that is not included in the RIAS.  The supplementary might include secret or proprietary information that would not be appropriate to publish.

A document called the "Cabinet Directive on Law-Making", available on the Privy Council Office web site, states that certain powers should not be put into regulations unless those powers have been specifically requested and have been justified in the memorandum to Cabinet that precedes a bill on its way to becoming a statute.

In particular, it says that if you want to give a power to make regulations to do certain things, you need to request specific authority to draft them into the bill.  These include:

• powers that substantially affect personal rights and liberties
• powers to amend or add to another statute of Parliament
• powers that would exclude the ordinary jurisdiction of the courts (for example, by establishing a tribunal and saying there is no appeal from a decision of that tribunal)
• powers to make regulations that have a retroactive effect
• powers to subdelegate regulation-making authority
• powers to impose charges on the public other than fees for service
• powers that set penalties for serious offences.

There are other principles regarding the split between Acts and regulations that departments have to keep in mind.  The first is that Acts and regulations are really interdependent and should be developed in conjunction with one another. In fact, if a regulation is going to form a substantial part of a legislative scheme, it should be developed at the same time as the statute.  Of course this does not always happen in practice.  A bill the government wants quickly may be rushed through in a matter of weeks and it is all the sponsoring department can do to address what is going into the statute, let alone worrying about what they are going to put into the regulations.  In addition, if at the end of the drafting process for the bill there is just not time to include a whole subject area, the instructing officials may simply insert a regulation-making power, giving themselves the ability to make those laws at a later date when they can address their minds to them.

Now let me talk a bit about what role Members of Parliament and Senators might have in the regulation-making process.  If an MP or Senator is a Minister, he or she will have a role in the policy approval or sign-off of his or her department's regulations.  Also Ministers may sit on the Special Committee of Cabinet and therefore participate in the approval of all regulations.  If the member is a member of the Standing Committee for the Scrutiny of Regulations, he or she will have an ex post facto role in reviewing and commenting on published regulations. In rare cases, regulations may be made subject to the affirmative or negative resolution of Parliament or the House of Commons, in which case the regulation must be laid before Parliament within 15 days after it is made or within 15 days after Parliament recommences sitting.

If it is subject to an affirmative resolution, the regulation will not come into force unless or until it is affirmed by Parliament.  This has only been used in four statutes in respect of Parliament as a whole and never in respect of the House of Commons alone.  The requirement for an affirmative resolution is usually added only for regulations that are politically sensitive, such as the firearms registration regulations.  In fact, as I understand it, the substance of the regulation is not actually distributed to all members of Parliament but the resolution instead refers to the regulation by name and it left to the MP to obtain a copy.

The problem with these kinds of procedures is, first, that if the regulation is subject to an affirmative resolution it results in delay, particularly if Parliament is not sitting.  The regulation will not come into force until it is affirmed.  If the regulation is subject to a negative resolution it creates uncertainty, because technically the regulation has already become law and you are just waiting to see if Parliament will negate it.  If it does, then the regulation ceases to be law but it has been in force for a period of time and people may have structured their affairs accordingly.  To my knowledge there has never been a regulation that has been rejected by Parliament, although I do know that there have been problems in getting regulations laid before Parliament in accordance with statute in at least a couple of cases.

Peter Bernhardt (Legal Counsel, Standing Joint Committee for the Scrutiny of Regulations):  It has been observed by some that the scrutiny of regulations is demanding, politically unglamorous and at times unrewarding.  It is true that the Committee carries out its work pretty much in obscurity.  Yet given government control of the legislative agenda in Parliament, work on a scrutiny committee may be one of the better opportunities that many members of Parliament have to influence the law.

Two core constitutional principles in our form of government are “the rule of law” and “parliamentary supremacy”.  Much of the work of a scrutiny committee involves the continuing assertion of these principles vis-à-vis regulation-making bodies.

The executive can only legislate if, when, and to the extent Parliament has authorised it to do so.  Where it has delegated its legislative function to the executive, Parliament has in effect loaned out its law-making power.  Parliament remains the ultimate source of that power.  Thus, it has both a right and a duty to ascertain that the powers delegated are exercised in a manner that complies with the letter and spirit of the delegating statute.  Just as Parliament has a responsibility to keep the executive accountable for the use of public monies of which it authorised the expenditure (and everyone is familiar with the role of the Auditor General in this regard), it also has the responsibility to keep the executive accountable for the use of delegated law-making powers.  It is through the Standing Joint Committee that Parliament has chosen to carry out this responsibility.