B.C.’s Bill 7 would allow cabinet to amend almost all of the province’s laws without legislative approval
By Leonid Sirota and Mark Mancini
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Desperate times call for desperate measures. That appears to be the British Columbia government’s mantra as it attempts to fight the risk of U.S. President Donald Trump’s tariffs. But in its desperation, the government is trying to take for itself far-reaching powers that smack of the arbitrariness and authoritarianism that characterize the Trump administration. That administration is a threat to Canada, but in fighting that threat, we should not become that which we abhor.
In legalese, a power for ministers to override legislation is called a Henry VIII clause. That Tudor King, you see, was not only fond of imposing his wavering religious beliefs onto his subjects and of having his wives and ministers killed. One of these ministers, Thomas Cromwell, came up with an ingenious idea to sate the king’s power hunger: get Parliament to pass an act to enable the king to issue proclamations having the force of an Act of Parliament.
Cromwell was eventually beheaded for his troubles, and the clever legislation he invented was repealed, but the idea remained. Henry VIII clauses, enacted by the legislature, allow the cabinet to bypass the normal legislative process when it chooses to amend a statute.
But, as one might surmise given their origins, these clauses are constitutionally troubling. We expect the legislatures of the provinces and the Parliament of Canada to make laws, not ministers. Legislatures debate and scrutinize bills before they become law, and in the process enable the opposition to bring the proposed laws’ shortcomings to the public’s attention. They can also invite submissions from the public that allow them to take the views of the people affected by the laws into account. None of that is possible when ministers can override legislation without parliamentary input.
Evidently, the B.C. government does not think so, because it has proposed a Henry VIII clause of astonishing proportions — something certainly approaching “abdication.” Normal Henry VIII clauses purport only to give power to the executive to amend a specific law and for specific purposes. This might explain why the Supreme Court has generally approved of such clauses.
But Bill 7 gives the power to the provincial cabinet to amend almost any provincial law, and for a purpose as broad as the government’s imagination. It is as if the executive had, in response to Trump, replaced the legislature. Whatever a court might say about this, Canadians should be alarmed by attempts to subvert parliamentary institutions.
What justification could possibly be offered for this? Sharma, in tabling the bill, mentioned that the legislation is designed to provide “fast, flexible, regulation-making authorities to ensure we can quickly act and be responsive to the unpredictable and quickly evolving threats to our economy, our economic security and our sovereignty.”
Given the breadth of the proposed Henry VIII clause, this is wholly unsatisfactory. The standing orders of the B.C. legislature already provide for urgent procedures, including the enactment of legislation. Why can’t the government go to the legislature to seek approval for its plans to deal with the Trump threat? Why does the bill not contain any proper review mechanism for the legislature (short of a weak requirement to table any regulations created under the law)?
At a time when the rule of law is under threat in the United States, Canadians should not participate in a race to the bottom. Just a few years ago, the federal government invoked the Emergencies Act, a move later found to be without legal justification. The lesson should have been simple. Cutting corners because of a threat — or because of ill-conceived hopes of “flexibility” — is one way to erode the rule of law and parliamentary institutions in our own country.
It would be an ironic response to the Trumpian threat to join him in super-charging executive power and sidelining courts and legislatures. The B.C. government needs to re-think Bill 7.
National Post
Leonid Sirota is an associate professor at the School of Law of the University of Reading. Mark Mancini is an assistant professor at Thompson Rivers University Faculty of Law. Both are senior fellows at the Macdonald Laurier Institute.