New Brunswick considered letting ministers rule by decree. Can they really do that?

New Brunswick considered letting ministers rule by decree. Can they really do that?

Last week, New Brunswick’s minority government proposed changes to its Emergency Measures Act that, if passed, would allow the minister of public safety and attorney general to “suspend the operation of or amend or supersede” many of the province’s laws at the stroke of a pen.

Lyle Skinner, a University of New Brunswick law school graduate and expert in parliamentary procedure, says he is deeply concerned by the proposal contained in Bill 49. Skinner says the changes—which have been scrapped for now—included a “Henry VIII clause,” so named for the 16th Century king who used abusive legislation to kill his enemies.

The danger of the proposed law is that it allows Premier Blaine Higgs and his ministers (the executive) to override laws without seeking the approval of the elected legislature, as long as an emergency has been declared. It’s the executive that decides whether or not there is an emergency, so the law would allow the premier and his colleagues to rule by decree.

Let’s say that the ministers decided all New Brunswickers should be vaccinated against Covid-19. There’s no indication that’s what the government planned, but the new powers contained in the bill are so sweeping that they would allow a minister to order everyone roll up their sleeves.

“It could just be done without any public debate, any public consultation,” Skinner says.

The premier and his ministers may argue that they need to be able to rule by decree in order to address the Covid-19 emergency at rapid speed, but Skinner points out that the government was able to pass its budget extremely quickly in March at the height of panic around Covid-19.

“If there’s something of dire need to be passed because there’s an emergency issue, that can be expedited through the legislature very quickly,” he says. “Why does this have to happen at the cabinet table which is bound to secrecy as opposed to in a public forum like the legislative assembly where it can be properly debated and scrutinized?”

Ryan Alford, a law professor at Lakehead University, says that Henry VIII clauses have been accepted by Canadian courts in the past but that doesn’t make them right. The federal War Measures Act, which has since been replaced by the Emergencies Act, was interpreted so as to grant the executive all of the powers of a Henry VIII clause because it said ministers could “do and authorize such acts and things, and make from time to time such orders and regulations, as he may by reason of the existence of real or apprehended war, invasion or insurrection deem necessary or advisable for the security, defence, peace, order and welfare of Canada.”

This clause was used to provide legal cover for abuses against Japanese Canadians during the Second World War, including the planned deportation of Canadians of Japanese descent to Japan. Japanese-Canadians argued that they could not be deported because of the Habeus Corpus Act, 1679, which bans imprisonment without charge. However, the court sided with the government because the legislature itself had given the minister broad powers to amend or suspend all the laws during crises.

One judge, Ivan Rand, dissented, in reasons that foreshadowed his development of the implied bill of rights doctrine, which held that our constitutional rights weren’t all explicitly outlined in the Constitution Act, 1867, and that Canadians had a right not be exiled to another country even if the law seemed to allow that. This idea of implied rights grew in popularity in the decades after the Second World War, and stimulated the recognition of these rights in the 1982 the Charter of Rights and Freedoms.

But even the Charter doesn’t list every right that we possess, and the Constitution Act1867, doesn’t spell out every detail of how our system of constitutional government is supposed to work.

Alford argues that much of our constitutional structure is embedded by the preamble of the Constitution Act, which says Canada has a “Constitution similar in Principle to that of the United Kingdom.” Certain elements were entrenched throughout the history of Great Britain and Canada leading up to Confederation, including in 1849 when the British-controlled executive finally stopped overruling the Province of Canada’s elected legislature and gave its assent to the Rebellion Losses Bill—a piece of legislation that the elites despised. This 1849 settlement between the executive and the legislature cemented the idea that the executive is responsible to the legislature. Alford says the constitutional principle of responsible government affirmed in this era is offended by the most extreme Henry VIII clauses, like the one New Brunswick had proposed.

Responsible government exists when the executive (essentially the premier or prime minister and his cabinet) is required to seek the approval of the legislature for its plans, and can only govern so long as it has the confidence of a majority of elected representatives. The legislature includes not only people from the governing party, but all of our elected representatives. The beauty of responsible government is that it allows the opposition and non-ministers to scrutinize proposed laws and to speak out publicly if they don’t like what the executive is planning. This public debate can put pressure on the executive and prevent bad proposals from becoming laws.

Skinner points out that the very same New Brunswick bill that includes the Henry VIII clause also includes a proposal to give peace officers permission require a person “to stop in order to investigate whether or not there has been a violation or a failure to comply with a direction, order or requirement made under (the Emergency Measure Act) or the regulations and may require the person to provide documentation.” This vague statement suggests officers could stop anyone in New Brunswick and demand to see documentation of any kind or face being locked in jail for up to 24 hours. This presents of obvious risk of police abuses and it led to an outcry from those concerned about racial profiling in the province. That outcry has forced the government to back down. Premier Higgs said Monday that he would withdraw the Bill 49 due to those profiling concerns. It’s unclear if the Henry VIII clause will be reintroduced at some point in the future.

The outcry over possible police abuses shows one of the risks of Henry VIII clauses. The public would not have had the opportunity to provide their input on Bill 49 before it became law had the executive already been given the authority to change the law without consulting the legislature.

Alford says that it’s important Canadians stand up against attempts to sideline responsible government including Bill 49, and Alberta’s Bill 10. Alford says that Henry VIII clauses are similar to the techniques that dictators have used to sideline legislatures in countries like Venezuela.

“Without responsible government, there is no democracy in Canada,” he explains.

“Just imagine if the government said we’re going to extend parliament for five years and they do this via a Henry VIII clause … how would we stop that? The answer is you can’t. It all depends on the principle of responsible government.”

“If you don’t live up to the spirit of responsible government, there is no democratic accountability and the constitutional structure just breaks down completely and it’s not clear how it can be repaired,” Alford says. “If this becomes a regular practice, we will no longer have a functional constitutional structure.”

Images used in this article are public domain.