Henry VIII Clauses in Comparative Perspective

I had a free evening earlier this month and put together a submission to the House of Lords Constitution Committee’s Legislative Process Inquiry. You can find my submission here. Here is a brief excerpt:

Henry VIII clauses are constitutionally exceptional and exceptionable. Several examples can be given from jurisdictions with written and unwritten constitutions.

Ireland

In Ireland, a jurisdiction with a written constitution, Henry VIII clauses contained in primary legislation have been held to pose serious constitutional problems.

Pursuant to Article 15 of Bunreacht na hÉireann, the “sole and exclusive” law-making power of the state is vested in the Oireachtas (Parliament).

As a result, regulations that modify primary legislation are necessarily ultra vires: “for the Minister to exercise a power of regulation granted to him by these Acts so as to negative the expressed intention of the legislature is an unconstitutional use of the power vested in him” (Harvey v. The Minister for Social Welfare [19901 2 IR. 232, at p. 244, per Finlay C.J.)

In principle, Henry VIII clauses are unconstitutional per se (unless they can be saved by benevolent judicial construction) because the Oireachtas “is constitutionally prohibited from abdicating its power” (Laurentiu v The Minister for Justice, Equality & Law Reform [1999] 4 I.R. 26, at p. 61).

Henry VIII clauses are unconstitutional per se not merely because they violate the letter of Article 15 by vesting law-making power in the executive branch – they are unconstitutional because they violate the democratic spirit of Article 15: “in accordance with the democratic basis of the Constitution, it is the people’s representatives who make the law, who determine the principles and policies” (Laurentiu, at p. 61. The provisions at issue in Laurentiu were not Henry VIII clauses but in the course of argument counsel for the State conceded that power to amend primary legislation could not be delegated: see p. 71).

Canada

Like Ireland, Canada has a written constitution (see The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11).

However, Henry VIII clauses are constitutionally permissible. In Re Grey (1918) 57 S.C.R. 150, the Supreme Court of Canada accepted that Parliament could not “abdicate its functions” (at p. 157) but it could delegate extremely broad powers to the executive. As Duff J. explained:

There is no attempt to substitute the executive for parliament in the sense of disturbing the existing balance of constitutional authority by aggrandizing the prerogative at the expense of the legislature. The powers granted could at any time be revoked and anything done under them nullified by parliament, which parliament did not, and for that matter could not, abandon any of its own legislative jurisdiction. The true view of the effect of this type of legislation is that the subordinate body in which the law-making authority is vested by it is intended to act as the agent or organ of the legislature and that the acts of the agent take effect by virtue of the antecedent legislative declaration (express or implied) that they shall have the force of law (at p. 170).

Nonetheless, the constitutional propriety (as opposed to validity) of Henry VIII clauses has been called into question. For instance, Campbell J took the view in Ontario Public School Boards’ Association v Ontario (Attorney General) (1997) 151 D.L.R. (4th) 346 that Henry VIII clauses reverse the “usual rule…that legislative power is vested in the democratically elected Legislative Assembly to make laws after full public debate” (at para. 49). He went on to observe:

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 original authority (at para. 51

This content has been updated on January 31, 2017 at 23:44.