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Delegated Legislation - Henry VIII Clauses


With the post-COVID political intrigue occuring in Alberta (at the end of 2022) [ie. the 'Alberta Sovereignty Within a United Canada Act'] I thought I'd make an attempt to reassure Canadians that this sort of thing has happened before and we have all survived regardless. Henry VIII clauses are a straightforward attempt to shift legislative power from the legislature (the full collection of MPP/MLAs) to the cabinet (party in power) by reversing the normal paramountcy between legislation and delegated regulation. The goal is to avoid future legislative consent for legal changes - and that gives rise to a sort-of 'one-time voted-in/after-that fascism' fear, it being reminiscent of Hitler's rise to power.

While Henry VIII clauses have not (to my knowledge) been conclusively 'outlawed' by a higher court recently (in fact, the Supreme Court endorsed them over 100 years ago) they are so obviously destructive of fundamental democratic rights that I (for one) am not worried that that result is a serious risk. In the few instances that they have been tried more recently they seem to have avoided being tested in the courts by their proponents themselves, with them quickly realizing how constitutionally vulnerable and politically unpalatable they are - and backing down.

That they occasionally (and thankfully, ineffectually) occur in our democracy is perhaps a good thing. That is, it's a good sign that our system allows people who are so politically and legally frustrated to be voted into office, rather than being purged prior-to-the-fact by a local controlling-elite class as would happen in many other countries in the world. But despite Hannah Arendt's caution about the 'banality of evil', it's hard to imagine a more privileged and middle-class revolutionary rallying-cry than one significantly grounded on 'fear of vaccination' (sorry if that's you, but in my mind it's plain).

[last edit 07 Jan 2023]


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Last modified: 29-01-23
By: admin