RULESWATCH

May 2, 2009

HENRY VIII CLAUSES (Off with their heads)

Filed under: 1 — ruleswatch @ 1:53 pm

Greater Essex County District School Board v. International Brotherhood of Electrical Workers, Local 773, 2007 CanLII 741 (ON S.C.D.C.), has a handy review of case law on Henry VIII. (The report is worth checking, there’s more, it seems comphrensive and its mpre or less up to date:

[73] Section 39(1) of the P.S.L.R.T.A. and others like it where the Legislature delegates to the Executive the discretionary power to overrule by regulation the provisions of an enabling statute or another statute have been dubbed “Henry VIII clauses”, allegedly named “in disrespectful commemoration of that monarch’s tendency to absolution (sic)”.
[74] Henry VIII clauses have been the subject of controversy and comment, both in Canada and in England. The comments by A. Campbell J. in Ontario Public School Boards’ Assn. v. Ontario (Attorney General) [29] represent a forceful articulation of the constitutional concern they raise. In that case, Campbell J. dealt with a provision of the Fewer School Boards Act[30], passed at the same time as the P.S.L.R.T.A., whose wording mirrors that of s.39(1). In doing so, he first observed that:
This is the opposite of the usual rule, that if there is any conflict between the statute and the regulation which relies for its authority on the statute, the statute enacted by the Legislative Assembly prevails over the regulation made by the government. The usual rule is that legislative power is vested in the democratically elected Legislature to make laws after full public debate. This provision reverses that rule.[31]
Campbell J. then went on to articulate the following concern:
This power is constitutionally suspect because it confers upon the government the unprotected authority to pull itself up by its own legal bootstraps and override arbitrarily, with no further advice from the Legislative Assembly, and no right to be heard by those who may be adversely affected by the change, the very legislative instrument from which the government derives its legal authority.[32]
[75] According to Campbell J., this power was never used by the Ontario legislature until the early 1990’s. Until that time, it had been considered by the government “and successive generations of Crown law officers to be repugnant to our basic traditions of public accountability.”[33]
[76] In the words of Campbell J., “however offensive” this power may be “to our traditional sense of legality and public accountability”[34], the constitutional capacity of legislative bodies to confer the power has been upheld by the Supreme Court of Canada in Re Gray (Grey).[35] In Re Gray, the Supreme Court of Canada was dealing with the constitutional validity of a section of the “War Measures Act, 1914” that provided that Cabinet would have the power to do what was necessary or advisable by regulation or order, “for the security, defence, peace order and welfare of Canada” by reason of the “existence of real or apprehended war…”. With two judges dissenting on the basis that such a “wholesale surrender of the will of the people to any autocratic power is exactly what we are fighting against”[36], the majority of the Court upheld the constitutional validity of this broad delegation of authority by the Legislative branch of government to the executive.

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