Please explain the difference between Acts, Regulations, etc.

Factual Questions
1

I am specifically talking about Canadian law, but the US is similar I think.

For instance, say I’m looking at the Alberta Water Act and the Alberta Water Regulations. What is the difference? I know they say different things, but why not capture it all in one document? Why the two documents instead?

And then we come to Codes of Practice. I think I have a handle on that - they are for specific scenarios (i.e. Code of Practice for Withdrawing Water for Hydrostatic Testing), correct?

The way I see it in my mind, is the Act is the main document, and various regulations could come out from that. Codes of Practice come out from Regulations.

Also, please explain what they mean when they say an Act is a condensed Statute? Is a Statute and Act the same sort of thing?

I should know this, I love law, but I just can’t grasp it. The reason I’m asking is because I’m trying to define WHY we (my company), legally, have to do certain things. (Example: ‘Must have an air emission permit on site’ - why and who says? Is it the Act that says this or the Regulation?)

2

In US administrative law, the way it works is this:
Something needs to be done/the government needs to tell people what to do/the government needs to set standards

This is the province (no pun intended) of the legislature - to promulgate laws. However, the legislature is typically not the best entity to do this when the “conduct” needing legislation is either

a) too typically complex for laypersons to understand
b) too rapidly evolving and/or too dense for it to be apropriately handled by a legislative body (i.e. it needs constant oversight with flexible rules to be of any use)

so, the legislature downloads/devolves/assigns the responsibility for the act to an agency. in the US that agency operates under the purview of the executive branch of the government (i.e. the president). the way they will assign this responsibility is by writing a law that says, basically "ok, we need to fix X. we will fund the creation of “executive agency for x.” here’s some money. ok. now, we want to do A - here’s the law that says that. agency X, you are responsible (with the money we gave you) to enforce our laws to accomplish A - you can make up your own rules, the violation of which we will punish in way B. however, you cannot do C, D, and E, and agency X cannot have a rule that requires you to do C, D, and E, because we don’t want you to do that (there are limits to how much congress can grant power to an agency and then carve out its limitations, but this is a simple-ish explanation).

away you go. Agency X is created, they start making their own set of rules. if those rules aren’t clear enough, they can issue policy documents that make it known exactly by which standards they will judge someone’s actions by as part of their duty to make sure their own rules (and congress’ law) is adhered to.

As for statutes versus acts - acts are generally the specific pieces of law voted on by the legislature. because these acts will probably modify 8000 different laws, and since they are voted on (and numbered) sequentially, they will typically be codified into statutes so that they make sense. by codify i mean slotting it into the apropriate statute section, and apropriately modifying all the other statutory sections that are affected by the specific act just enacted.

that’s US though - it’s probably very similar in Canada but may be different.

3

The constitution tells the government what laws it may or may not pass. (Not US-specific – it’s true of Canada’s Constitution Act, the law creating the Commonwealth in Australia, etc.) The title of many laws is “The ____ Act [of (year)].” The generic term for this sort of law is “statute” (there are some oddball circumstances in English law where legal actions are not statutes, such as letters patent under the royal prerogative, but in general it’s valid). Statutes are passed by the legislature (which generally proposes constitutional amendments as well). Resolutions, joint and otherwise, may or may not be enacting statutes or proposing amendments, but more often simply enunciate the sense of the legislature.

Regulations are written by departments, agencies, commissions, divisions, bureaus, and the like when authorized to do so by statute law. Normally the law will, e.g., make it a violation to release toxic liquids into the waterways, and empower the “Bureau of Environmental Protection” or local equivalent to define a list of toxic liquids and what constitutes ‘the waterways’ and so on.

The agency cannot propound regulations without being authorized by the legislature; the legislature cannot enact laws without being authorized to do so by the constitution.

4

In Commonwealth practice, an Act of Parliament tends to be about one particular subject, say the Dog Registration Act 1976 (not a real Act, I hasten to add). Over time, the Dog Registration Act may accumulate necessary amendments - the Dog Registration Act Amendment Act 1979, the Dog Registration Amendment Act 1984, some general Act that converts spelt out words into numerals (“two” becomes “2”), and so on. These Acts will typically say something like “delete the word “and” where it appears second in s53(2) and insert the word “or” instead”, or some similar drafting convention.

So the printers or publishers (usually a government department) put out consolidations that have all the amendments inserted where they should be, so that the whole thing can be read without having to mentally leap between separate documents.

Again in Commonwealth practice, Acts and Statutes mean the same thing - there isn’t the habit the Americans have of stuffing a whole raft of different topics of legislation into the one Act.

Creating or amending an Act is a hugely time consuming process. The political will has to be there, then the various stages of drafting, consultation and passage through the House make the process very slow (and, arguably, rightly so). But that inflexibility has drawbacks.

So the Dog Registration Act may well set out big-picture ideas (“All domestic pet dogs shall be registered”, “Any person who owns or possesses a domestic pet dog as defined in s23(2) which is not registered is guilty of an offence.” etc)

But such an Act will typically include a section which allows the Executive government in one guise or another to make specific regulations. Regulations (the “Dog Registration Regulations”) tend to focus on the necessary tiny details which are subject to relatively regular change. Things like the annual fee for registration, the size, shape and design of the little medallion the dog has to wear on its collar to demonstrate that it is registered, and so on. This is done because otherwise Parliament’s time would be taken up with endless tinkering with trivia.

Codes of Practice tend to find their way into law either as a schedule to an Act (which means they are part of the Act) or as Regulations, depending on their importance. A Code of Practice is not a separate species of legislative animal, just a fancy name attached to guidelines which have as their authority either direct statutory enactment or creation as subordinate legislation (ie, a regulation).

5

One final note: the longstanding custom is for the laws (statutes) to be codified, arranged according to subject matter and numbered for ease of reference.

So in New York, Burglary in the 3rd degree is defined in Section 120.20 of the Penal Law, which itself is Chapter something (64 if I remember correctly) of the consolidated statutes. In North Carolina, every statute passed by the legislature is included in the General Statute by number. All federal laws are included in the United States Code, which is broken down into titles by subject matter.

New York’s Environmental Protection Law (a chapter of the consolidated statutes) is relatively brief, and authorizes the Dept. of Environmental Conservation to promulgate regulations, which are extensive and are included in the New York Comprehensive Rules and Regulations (NYCRR). Federal regulations are included in the Code of Federal Regulations (CFR).

6

In the USA, Congress may enact acts pursuant to the authority vested in it by the Constitution; e.g., the Social Security Act. That Act provides the laws governing the administration of the Act and it also creates an administrative agency (The Social Security Administration, for example) to implement the Act and attend to details. Most of the laws under the Act are not self-implementing. They must be implemented by the Agency, which issues Regulations implementing specific laws in the Act. Those Regulations must be consonant with the Act, but can go into details that the Act doesn’t.

In interpreting the Regulations, the Agency will promulgate Rulings. SCOTUS has allowed administrative agencies wide latitude in interpreting their own regulations. The Act and the Regulations must be recognized by the courts so long as they are constitutional and the regulations are consistent with the Act, but Rulings need not be recognized by the Courts. (The Rulings do not have the force of law; they are binding on the Administration which promulgated them, but not on the courts. By binding on the Administration, I mean that the employees of the Administration must follow them.)

The head of the Administration is usually called a “Commissioner,” but the Social Security Administration was elevated to “Agency” status a while back, and the head of the Social Security Administration is now the “Secretary.”

7

Others have touched on the different points, but I’ll try to respond from a specifically Canadian perspective. I take the OP as asking two different questions: what is the technical difference between Acts, Statutes and Regs? And, why have Acts and Regs?

We use the term “Act” to mean a law passed by the Parliament of Canada or the Legislatures of the province. This usage comes from the British Parliament. This type of legislation is “primary” legislation - that is, it’s enacted by the highest level of legislative body, which gets its authority directly from the Constitution, as Polycarp commented. We don’t tend to use “statute” as a formal term. It’s an informal term for a law passed by Parliament or the Legislatures, but it has the same meaning as an “Act.” When I’m writing a brief or a memo of law, I might switch back and forth between “Act”, “statute” and “law”, not because there’s much technical difference between them, but just as a matter of style - switching up the terms helps to keep the piece of writing from getting stultifying.

However, in our system, also inherited from the British, the Parliament or Legislature can delegate the legislative function to other individuals or bodies. And, since we don’t have a strict separation of powers in the American sense, that delegation can be to the executive.

When Parliament or the Legislature delegates legislative power to the executive, it’s typically to the Governor-in-Council (that is, to the federal Cabinet), or to the Lieutenant Governor-in-Council (i.e., the provincial Cabinet). Typically, the terminoology is that the cabinet is authorised by the Act to enact “regulations”, the term normally used for this type of secondary or delegated legislative authority. The delegation of legislative power must be express in the Act, which also sets out the subject-matter and limits of the delegated legislative power. If the Cabinet passes regulations which exceed the grant of power from the Act, the courts have the power to declare the regulations a nullity, to the extent they exceed the grant of delegated power.

As to the second question: why regs? There are a variety of reasons. One of the simplest reasons for delegated legislative powers is to handle matters that don’t really require the full attention of the people’s elected reps. As others have commented, passing an Act is a long and involved process. If every single change to the law requires the passage of an Act, then that will take up the time of the parliamentarians, which could be better spent on “big-picture” issues. So for example, it used to be the drafting practice that if a form was needed for a particiular Act, the form was set out as a Schedule to the Act. But that meant that if there was any need to change the form, even for something as trivial as changing an address listed on the form, you would need to have an Act passed, changing the form. Nowadays, one of the most common reg-making powers is to give the Cabinet the power to enact the forms necessary to implement an Act.

Another reason, as others have mentioned, is the level of detail needed to implement modern legislation. Our laws nowadays are much more detailed than a century ago - whether that’s a good or bad thing is a matter of debate, I suppose, but so far that tendency doesn’t show any sign of stopping. And the more detailed legislation you need, the more likely it will go into subordinate, delegated legislation.

Water testing is a good example. The Legislature might set out the general requirements for water-testing - when it is to be done, and other high-level types of decisions. But what actual tests should be used? That’s a more technical question, and it could change suddenly, if some smart scientist comes up with a more effective test. Or it might be that new studies suddenly show that a particular chemical is far more dangerous than previously believed, so you want to add it to the list of substances to be tested for. And what if new research shows that lower levels of a particular substance are more dangerrous than previously thought? You want the power to chagne the acceptable level quickly, to respond to that sort of situation.

So the regs typically have more detail than the Act, and also can normally be amended more quickly. If you had to wait for an Act to be passed, it could take a year or more, depending on the legislative cycle of the particular legislative body. (I’ve heard lawyers working for the federal government joke that the gestation period for a federal Act is longer than that of an elephant.) The regs-process, on the other hand, is usually much quicker.

Codes of Practice may or may be set out in regulations. It depends a lot on the particular government’s approach to regulations. Some governments are developing partner-based models, where government and the industry being regulated work out the guiding principles jointly. In that type of situation, the Code of Practice may be a voluntary one.

8

It is. :slight_smile:

We don’t have Codes like you do in the States. Parliament and the Legislatures pass individual statutes. Those are collected by chapter-number and name, but the standard model is a free-standing Act. They’re usually arranged in the Revised Statutes by simple alphabetical order, rather than by subject matter.

9

Wow, fantastic answers to my questions, thanks!

So in that light, I could say that such-and-such requirement - say “Must hold a valid water permit” - is from the Water Act (for example)? But the regs will spell out what that water permit should say and if it should be kept on-site, etc?

10

That’s the usual sort of break-down, yes. But obviously, I’m not trying to give you legal advice. You’ll have to read the relevant Act and regs yourself to figure it out.

11

True enough, but just to clarify any confusion, I should add that some Acts here in Canada are titled “Codes.” An example that would pertain to the OP (who, if I recall correctly, is in Alberta) would be the Employment Standards Code, R.S.A. 2000, c. E-9 [Revised Statutes of Alberta, 2000 collation, chapter E-9]. Regardless of the nomenclature, this Code is the same as an Act, and is treated as such. There are a few other Codes that are the same as Acts–another example would be the Criminal Code of Canada (passed by the federal Parliament). Just something to be aware of.

EmAnJ, if my memory is correct and you are from Alberta, you can read the applicable Alberta Acts and Regulations at the Alberta Queen’s Printer site. It’s well-organized in alphabetical order and searchable, so you should be able to find the Acts and Regulations that you need fairly quickly.

12

It could be even more broad than that. The Water Act might simply create a commission to conserve water in the area, and that commission passes a regulation saying that you must hold a valid water permit.

The grant of power could be restrictive as well. The Water Act could create the commission with the provision that “nothing herein shall authorize said commission to require the possession of any type of permit”, however the commission could be free to issue other regulations.

Perhaps in order to get the law passed, some citizens objected to the possibility of a permit, so the legislature bowed to the pressure.

13

We have separation of powers here in the US, but the delegation is also to the executive branch, as Rumor_Watkins noted.

14

Public General Acts, especially modern ones, will frequently be in large degree enabling legislation, giving the Minister (or someone) the power to make Regulations under the Act and to ‘prescribe anything that is to be prescribed’ such as fees payable. Frequently (here at any rate) the government’s attitude is “Just pass the Bill, parliamentarians, we’ll fill in the detail later on”.

15

I am in Alberta, but my work spans through BC, AB, SK, MN, and also includes Federal Acts and Regulations.

I have found most of the Acts and Regs applicable, now I’m just trying to match them up with what we require (to be more specific, our audit documentations says we must do ‘this’, but some Operations guys want us to prove why and who says).

Thanks for all this great information folks!

16

Yes, though it can get slightly more complex with permits, because here in the U.S. at least, the permit itself will include much of the detail about recordkeeping,etc.
So (in the case of water permits) the Clean Water Act says that permits are required, and that the Environmental Protection Agency shall make regulations and issue permits. The EPA has enacted regulations about how to apply for permits, appeal the terms of the permit and so forth. Then a particular permit issued by the EPA to a particular facility spells out the pollution limits, required testing, how long to keep documentation, etc. I don’t know how the details are typically split in Canada, though. [*additional complexities involving general permits, and federal/state responsibilities ignored]

But I wouldn’t worry too much about whether you write (the Canadian equivalent of) “we need to do this as required by the Clean Water Act”, “we need to do this as required by EPA regulations” , or “we need to do this as required by the facility’s water permit”; it’s all the same thing, really.

17

But not to the chief executive - that was the point I was making.

Based on the posts from US posters here, it’s the administrative agencies which make the rules/regs in the US federal system. That’s not the case in the Canadian system. Parliament and the Legislatures can delegate legislative power directly to the Prime Minister / Premier and the Cabinet, who are the ones who make the regs.

That wouldn’t typically be how it works in Canada, for two reasons. First, it’s very rare that Parliament or a Legislature gives reg-making power to a commission. Second, I think that unless the primary Act created a permit requirement, or expressly gave the Commission the power to create a permit requirement, that sort of reg would likely be held to be ultra vires the Act.

18

Not quite everything. I once had a case that implicated a section of an Act that had not been included in the US Code, and so I had occasion to speak to the congressional codifying office. Apparently there are some reasons why a provision might not be codified, but the rule is that the original Act is the authoritative law. I.e., you can’t avoid compliance with a provision of an Act of Congress by arguing that it was not codified into the Code.

19

Good answers so far. Just wanted to add, proposed U.S. regulations typically are published in the Federal Register, which is widely available. Then there are public-comment periods of fixed times for concerned parties, lobbyists, gadflies etc. to weigh in (or, in extreme cases, to try to get a court injunction to keep the reg from taking effect). Sometimes proposed regs get tweaked or even shelved by the agency based upon that feedback.

20

I’m open to correction from our US law dopers, but didn’t the rule-making power of federal agencies grow out of the concept that they were interpreting the relevant federal act and explaining how they would apply it, rather than as an outright delegation of legislative power? At least, that’s the impression I get from this summary of the Chevron case:

If so, that’s a much different beast than the outright delegation of legislative power possible in the Anglo-Canadian systems. In an extreme case, Parliament can even delegate to the executive the power to amend a statute passed by Parliament.