Thursday, May 6, 2010

The Devil Is In The Details

The legislature appears to be winding down for the spring session. Looking back now on two terms of this government, it is interesting to look at a growing trend in bills where the details are not in the actual bill or act, but are in fact found instead in regulations approved at some later time by cabinet. This is an extremely important issue. So important that when this issue was raised in the 1940s and again in the 1970s in Ottawa it was determined that a committee of parliament should be struck to form regulations.

The imbalance between the legislature and the Cabinet is becoming greatly exacerbated through the inclusion of discretionary powers in legislation the intent of which is to allow cabinet as a collective or as individual ministers to make law through ministerial orders and orders-in-council instead of simply guiding policy. Some of the bills which are before this house during this session of the Nova Scotia House of Assembly significantly increase the movement of power to cabinet and away from the elected members of the House of Assembly. It points to a scenario where the role of the legislature is in decline. This means not only are opposition members left with increasingly limited options to challenge governance by the ruling party, but the role of government backbench MLAs which was once vital in the British Westminster tradition of parliamentary democracy, has all but disappeared.

From a practical point of view, it also lessens the opportunities when a government - particularly a minority government - could fall due to a vote of the House of Assembly. This is because the more legislation moves towards regulation and away from legislation in the elected assembly, the less often government must meet the house as they can effectively create their own law as needed by orders-in-council.

This session bills ranging from amendments to the Electricity Act to Security Guards were introduced with little detail other than a promise that the details would come later in regulations. What we are seeing is an overuse of regulations. The result is no legislative oversight of rules that impact our daily lives. A few years ago the PC Party introduced a bill putting a cap on minor injuries in vehicle accidents. However, it was not until the regulations were brought through cabinet that people realized the definition of a minor injury was much more broad than anyone expected it would be.

J.R. Mallory wrote that the effect of this is that "Only when the aggrieved party challenges the regulation in court can its legality be authoritatively determined" Essentially we have reams of regulations governing every aspect of our lives in Nova Scotia and yet no real confidence in the absence of legislative oversight that they are not in excess of other laws or the constitution.

The Canadian Encyclopedia comments that "The dwindling ability of the legislature to hold the executive accountable has had a debilitating effect on the disciplinary impact of the doctrine of collective and ministerial responsibility to the legislature, a doctrine upon which rests the whole notion of responsible government."

We should take that statement to heart because it sums up the concern I raised today in the legislature about the bills we are watching move through the process in the House of Assembly. As we look upon the bills which the cabinet has brought forth in this session and the last, in many there appears to be a significant shift away from the authority and supremacy of the legislature as provided for not only in the Westminster tradition of parliamentary democracy but also the tradition of the Canadian Constitution and British North America Act.

Nova Scotians should be concerned as their elected voice in the oldest legislature in Canada - the seat of responsible government - is further weakened.