Thread by @tim4hire

By unpopular demand, a (🧵) background explainer for what a "Henry VIII clause" is (as this phrase is being bandied about a lot at the moment).
#ableg #abpoli #cdnpolitics

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In our system of government, the legislature (or Parliament, federally) enacts the laws. Formally, His Majesty only makes laws "by and with the advice and consent of the Legislative Assembly [of Province]."

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Initially, this right was limited to the imposition of taxes, but was expanded to include funding the Crown. Finally, in 1414, Henry V acknowledged that the approval of Parliament was necessary to make all new laws.

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This was a major limitation of the powers of the Sovereign, and various monarchs resisted this with greater or lesser success. Henry VIII, in particular, sought various ways to bypass or limit Parliament's authority.

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One of the things Henry VIII did was cause to be passed the Statute of Proclamations (An Act that Proclamations made by the King shall be obeyed). The effect of this was that proclamations had the same legal force as Acts of Parliament.

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This power, today known as a "Henry VIII clause", meant that the King, by proclamation, could make or amend laws, without having to consult or obtain the approval of Parliament.

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This greatly curtailed the supremacy of Parliament, and ultimately came to a head in 1649 with Parliament regaining supremacy, although things weren't really settled until the Bill of Rights was enacted in 1689.

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In our more modern era, the Government wields the executive power of the Sovereign. Ministers comprise the Government and are served by officials. Note that backbench MPs/MLAs in the governing party are not part of the Government. They are distinct, constitutionally.

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Most of the Government's authority is conferred by Acts made by the Legislature. And the Government can only enact new laws by and with the advice and consent of the Legislature.

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However, the Legislature can (with some caveats) delegate its authority. This is most commonly done by including the power to make regulations, which are subservient to their enacting legislation and thus limited by it and the express regulation-making provisions.

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In more rare circumstances, the Legislature can delegate the power (to the Government) to make or amend laws; i.e., to change laws that were made by the Legislature itself. These provisions are called Henry VIII clauses.

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Note that the Legislature can always amend or repeal the power delegating its authority. This was seen in Alberta with the Public Health Act.

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In 2020, the Legislature amended the Public Health Act to expand the Henry VIII powers conferred by that statute to the Government. Facing backlash, the Legislature not only undid those amendments but fully repealed the Henry VIII clauses in that Act in 2021.

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Nevertheless, Henry VIII clauses are controversial. In dissent, Côté J. argued in the Carbon Tax Reference decision that their use was unconstitutional and incompatible with the idea of Parliamentary Sovereignty.

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As the majority of the SCC disagreed with Côté J., Henry VIII clauses can, at least for now, be enacted in Canada (there may still be some question as to how broad those clauses can be).

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Voters also can and should demand accountability from their representatives for the use of Henry VIII clauses, and be prepared to toss out governments that seek to abuse this power and bypass the Legislature's role.

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