The Opening Salvo in the Speech from the Throne: “Standing Up to Ottawa”

On 29 November 2022, the Salma Lakhani, the Lieutenant Governor of Alberta, read a Speech from the Throne containing a pugilistic sub-section on “Standing Up to Ottawa,” with which Her Honour presumably disagrees based on her public musings three months ago that she would reserve or veto an eventual Alberta Sovereignty Act.[1]

It is important to address our province’s relationship with the federal government. As Albertans, we have individual and provincial rights enshrined in Canada’s constitution and Charter of Rights and Freedoms. These rights underpin the very foundation of our nation and who we are as Canadians and Albertans.

These include our freedoms of speech and religion; liberty; equality; the rights of First Nations, Metis, and Inuit Peoples; the right of provinces to deliver health care, education and social programs free from federal interference; and, of course, the rights of all provinces to develop our natural resources for the benefit of our people.

These personal and provincial rights are not something the federal government can simply supersede when it chooses. Ottawa is not our ruler; Ottawa is our partner, and it needs to begin acting like it.

The Canadian Constitution is clear. The federal and provincial governments both have exclusive and sovereign areas of jurisdiction, and this Government will no longer sit idly by as Ottawa infringes on our Constitutional rights to develop our resources, develop our economy, and deliver our social programs in the manner that Albertans see fit.

That is why the first piece of legislation this Government under our new Premier will introduce will be the Alberta Sovereignty Within a United Canada Act. This Act is to be used as a constitutional shield to protect the personal and provincial rights of Albertans from any unconstitutional or harmful acts by the federal government taken against our province, our people, or its economy.

Whether it be Ottawa restricting the use of fertilizer by our farmers or attempting to prevent us from developing the very energy resources that power our provincial and national economies, whether it be persecuting owners of legal firearms, inappropriately invoking emergency powers, or intentionally interfering in the delivery of provincial health care, education or child care, the Government will not enforce any unconstitutional federal measure or policy within the boundaries of Alberta going forward.

Let us make no mistake, Albertans are proud Canadians, and we love our country. This legislation will never be used to undermine the rule of law or the unity of our nation. Just the opposite; it will be used to uphold and restore the intent of the most foundational document of our law – the Canadian Constitution and Charter of Rights.

Alberta’s voices will be heard. Albertans’ rights will be respected. And the Alberta Government invites every one of its fellow provinces to work with the Government in ensuring that same respect is demonstrated to every single province by our nation’s capital on a go-forward basis.

In so doing, the Government will ensure Canada becomes stronger and more unified than ever before.[2]

The Alberta Sovereignty Within a United Canada Act Itself

This opening salvo served as a prelude to the next day’s order of business. On 30 November 2022, the Smith government in Alberta tabled Bill 1, Alberta Sovereignty within a United Canada Act.[3]

The title of the bill itself presumably alludes to the famous motion that Stephen Harper tabled in the House of Commons as Prime Minister on 27 November 2006 (“That this House recognize that the Québécois form a nation within a united Canada”[4]), which Premier Danielle Smith adopted in the spirit of trolling.

Alberta’s Interpretation Act says that “The preamble of an enactment is a part of the enactment intended to assist in explaining the enactment,”[5] so it is worth analysing. The preamble of the Alberta Sovereignty within a United Canada Bill sets out the sort of whereas premises which Ontarians would also associate primarily with Quebec’s provincial statutes and breaks down into three sections overall. It begins by affirming Albertans as a people:

WHEREAS Albertans possess a unique culture and shared identity within Canada;

WHEREAS it is the role of the Legislative Assembly of Alberta and the Government of Alberta to preserve and promote this unique culture and shared identity;[6]

The second part reiterates the division of powers between the federal and provincial orders of government under sections 91 and 92 of the Constitution Act, 1867 and the Constitution Act, 1930, which granted the Prairie Provinces the same control over their natural resources as the other provinces always possessed:

WHEREAS the Constitution Act, 1867, the Constitution Act, 1930 and the Constitution Act, 1982 are foundational documents that establish the rights and freedoms of Albertans and the relationship between the provincial and federal orders of government, including the division of legislative powers between them;

WHEREAS the Province of Alberta is granted rights and powers under the Constitution Act, 1867, the Constitution Act, 1930 and 2 the Constitution Act, 1982 and is not subordinate to the Government of Canada;

The third part of the preamble asserts that the Government and Parliament of Canada have intruded upon Alberta’s exclusive jurisdiction and that Alberta must therefore re-assert and re-affirm its authority against Ottawa.

WHEREAS actions taken by the Parliament of Canada and the Government of Canada have infringed on these sovereign provincial rights and powers with increasing frequency and have unfairly prejudiced Albertans;

WHEREAS actions taken by the Parliament of Canada and the Government of Canada have infringed on the rights and freedoms of Albertans enshrined in the Canadian Charter of Rights and Freedoms in an unjustified and unconstitutional manner;

WHEREAS the people of Alberta expect the Parliament of Canada and the Government of Canada to respect the Constitution Act, 1867, the Constitution Act, 1930 and the Constitution Act, 1982 as the governing documents of the relationship between Canada and Alberta and to abide by the division of powers and other provisions set out in those documents;

WHEREAS the people of Alberta expect the Parliament of Canada and the Government of Canada to respect the rights and freedoms of Albertans enshrined in the Canadian Charter of Rights and Freedoms; and

WHEREAS it is necessary and appropriate for the Legislative Assembly of Alberta to set out measures that the Lieutenant Governor in Council should consider taking in respect of actions of the Parliament of Canada and the Government of Canada that are unconstitutional or harmful to Albertans and for Members of the Legislative Assembly of Alberta to have a free vote on such measures according to their individual judgment;

The Alberta Sovereignty Within a United Canada Bill mimics the preamble of the Saskatchewan First Act in lamenting Ottawa’s intrusions into provincial jurisdiction. But it goes farther by asserting much more openly the identity of Albertans as a people, which keeps in line with the title of the bill’s allusion to Harper’s motion from 2006. Yet it notably does not present itself as a constitutional amendment under the Section 45 Amending Procedure, nor does it attempt to insert new provisions directly into section 90 of the Constitution Act, 1867, as the Saskatchewan First Bill does and as the Act Respecting French, the Official and Common Language of Quebec did in June 2022. However, the bill seems like a brazen attempt to assert a doctrine of de facto nullification of federal laws in Alberta – and far more radical and provocative premise than either piece of legislation in Saskatchewan and Quebec.

Section 1 of the bill defines “federal initiative” very broadly as “a federal law, program, policy, agreement or action, or a proposed or anticipated federal law, program, policy, agreement or action”[7] and would allow Alberta to launch a pre-emptive strike against what it regards as further intrusions from Ottawa, whether promulgated by the Parliament or the Government of Canada.

Section 2 emphasises that “Nothing in this Act is to be construed as (a) authorizing any order that would be contrary to the Constitution of Canada” and takes pains in (b) to emphasise that the statute would only apply to “provincial entities” and could not compel a corporation or private citizen “to act contrary to or otherwise in violation of any federal law”, and that it further in (c) saves aboriginal treaty rights under section 35 of the Constitution Act, 1982. The grammatical construction in part (b) acknowledges (intentionally or not) that the directives issued under section 4 could therefore “compel a provincial entity to act contrary to or otherwise in violation of any federal law.”

Section 3 outlines the procedure which authorises the main premise contained in section 4. The procedure seems unnecessarily elaborate or quirky because it specifies that an Executive Councillor, and not a mere backbencher, must introduce a motion before the Legislative Assembly. Unlike other provinces, Alberta has no provincial Executive Council Act, but only a Legislative Assembly Act; the federal Alberta Act, which carved Alberta out of the Northwest Territories and established it as a province in 1905 and now forms the basis of Alberta’s provincial constitution, merely defines the Executive Council as consisting “of such persons, under such designations, as the Lieutenant Governor from time to time thinks fit.”[8] So either this means that only a current cabinet minister, or that both current cabinet ministers and former cabinet ministers, could introduce such a motion. This raises the possibility that, for instance, Rachel Notley, the previous Premier and current Leader of the Opposition, could table a resolution under this act but that a backbencher in the United Conservative Party could not. However, Premier Smith stated in the Debates on 30 November that the provision should apply only to “any minister, including the Premier.”[9] Section 3 says:

3 If, on a motion of a member of Executive Council, the Legislative Assembly approves a resolution that

(a) states that the resolution is made in accordance with this Act,

(b) states that, in the opinion of the Legislative Assembly, a federal initiative

(i) is unconstitutional on the basis that it (A) intrudes into an area of provincial legislative jurisdiction under the Constitution of Canada, or (B) violates the rights and freedoms of one or more Albertans under the Canadian Charter of Rights and Freedoms, or

(ii) causes or is anticipated to cause harm to Albertans, (c) sets out the nature of the harm, if the resolution states that, in the opinion of the Legislative Assembly, a federal initiative causes or is anticipated to cause harm to Albertans, and

(d) identifies a measure or measures that the Lieutenant Governor in Council should consider taking in respect of the federal initiative,

the Lieutenant Governor in Council may take the actions described in section 4.[10]

A simple majority of the Legislative Assembly could adopt a resolution tabled by a cabinet minister or the premier. In other words, a majority government would have no difficulty in getting such a resolution adopted, which makes the resolution of the Legislative Assembly redundant. The legislature could just less easily enact a normal statute which broadly delegates the authority to the Lieutenant Governor-in-Council under section 4 and omit section 3 altogether. As it stands, section 3 looks like little more than a means by which the premier and cabinet can launder their responsibility through the Legislative Assembly.

4(1) If the Legislative Assembly approves a resolution described in section 3, the Lieutenant Governor in Council, to the extent that it is necessary or advisable in order to carry out a measure that is identified in the resolution, may, by order,

(a) if the Lieutenant Governor in Council is satisfied that doing so is in the public interest, direct a Minister responsible for an enactment as designated under section 16 of the Government Organization Act to, by order,

(i) suspend or modify the application or operation of all or part of an enactment, subject to the terms and conditions that the Lieutenant Governor in Council may prescribe, or

(ii) specify or set out provisions that apply in addition to, or instead of, any provision of an enactment, subject to the approval of the Lieutenant Governor in Council,

(b) direct a Minister to exercise a power, duty or function of the Minister, including by making a regulation under an enactment for which the Minister is responsible, or

(c) issue directives to a provincial entity and its members, officers and agents, and the Crown and its Ministers and agents, in respect of the federal initiative.

(2) A directive issued in accordance with subsection (1)(c) may be general or particular in its application.

(3) Where there is a conflict or inconsistency between

(a) an order made or an order that is directed to be made under subsection (1), and

(b) a provision of an enactment to which the order relates, the order prevails to the extent of the conflict or inconsistency.

(4) Nothing in this Act abrogates any authority or power vested in the Legislative Assembly or Lieutenant Governor in Council by any other enactment or by operation of law, including any authority or power of the Lieutenant Governor in Council to take action with respect to the federal initiative.[11]

This bill seems to declare war on both “federal initiatives” in 4(1)(c) as well as Alberta’s own provincial “enactments” for which a minister of the Crown is responsible under the Government Organization Act of Alberta[12] in 4(1)(a). “Enactments” seems to refer to Alberta’s provincial statutes and not anything federal, given that section 1 does not define “enactment” for the purposes of this bill, and given that “enactment” contrasts to the “federal initiative” mentioned in section 4(4). But if Danielle Smith dislikes the government bills that the legislature enacted at the behest of Jason Kenney or Rachel Notley, then she should simply introduce bills repealing those older statutes instead of relying on this bizarre super-enabling clause that functions almost like a Henry VIII Clause.

This section also contains a curiously convoluted combination of sequential and overlapping collective and individual ministerial responsibilities. First, a Minister of the Crown tables a resolution under section 3 to invoke this statute. Second, a simple majority in the Legislative Assembly must then adopt said resolution. Third, the Lieutenant Governor-in-Council (which is to say, cabinet acting collectively with a quorum) “may” – but not “must” – implement the resolution that a Minister of the Crown initiated by promulgating an Order-in-Council, which, fourth, “direct[s] a Minister to suspend or modify the application or operation of all or part of an enactment”. Fifth and alternatively, the Lieutenant Governor-in-Council may issue an Order-in-Council “issu[ing] directives to a provincial entity and its members […] in respect of the federal initiative.” The mind boggles.

Section 5 then contains a sun-set clause for the suspending of provincial laws or nullifying of federal laws in section 4: automatic expiration after two years, or if the Legislative Assembly rescinds the resolution early. However, the Legislative Assembly may also vote to extend an Order-in-Council issued under section 4 for an additional two years –but only one time. So at most, an Order-in-Council issued under section 4 can suspending a provincial law or nullify a federal law for a maximum of four years.

5(1) Subject to subsection (2), the Lieutenant Governor in Council ceases to have an authority to make an order under section 4(1), and any order issued by the Lieutenant Governor in Council or a Minister under section 4(1) expires and ceases to have any force or effect, on the earliest of

(a) the date on which the Legislative Assembly rescinds the resolution referred to in section 4(1), or

(b) 2 years after the date on which the resolution referred to in section 4(1) was approved by the Legislative Assembly.

(2) The Lieutenant Governor in Council may extend an order issued under section 4(1) for an additional 2 years from the date on which the original order was set to expire.

(3) An extension of an order by the Lieutenant Governor in Council under subsection (2) may be made only once.[13]

Section 6 then emphasises that “A provincial entity and its members, officers and agents, and the Crown and its Ministers and agents, must comply with any directive issued by the Lieutenant Governor in Council under this Act” and mandates that directives issued under this statute be published in the Alberta Gazette within 30 days.[14]

Finally, the bill declares itself “binding on the Crown.”[15] It tries to insulate itself from judicial review in declaring itself subject to the higher standard of “patent unreasonableness” and even by denying the justiciability of Legislative Assembly’s resolutions altogether; it then indemnifies all holders of public office and provincial Crown servants and employees who could be involved in applying directives issued under it.

8.No cause of action lies against and no action or proceeding may be commenced against

(a) the Crown or its Ministers, agents, appointees or employees, or against the Legislative Assembly, the Speaker of the Legislative Assembly, an office of the Legislature, or any agents, appointees or employees of the Legislative Assembly or an office of the Legislature, in respect of any act or thing done or omitted to be done under or in relation to this Act or a resolution or order under this Act, including, without limitation, any failure to do something when that person has discretionary authority to do something but does not do it, or

(b) any other person or entity in respect of any act or thing done or omitted to be done in good faith under a directive issued under this Act, including, without limitation, any failure to do something when that person has discretionary authority to do something but does not do it.

9(1) An originating application for judicial review in relation to a decision or act of a person or body under this Act must be filed and served within 30 days after the date of the decision or act.

(2) In an application for judicial review to set aside a decision or act of a person or body under this Act, the standard of review to be applied by the court is that of patent unreasonableness.

(3) Nothing in this section is to be construed as making a decision or act of the Legislative Assembly subject to judicial review. [16]

The provision for suspending the application of provincial laws especially suggests that Danielle Smith views herself almost like an insurgent outsider rather than the Premier and head of a ministry in power. This bill, which will surely soon become law, evinces a singular design of daring the Government of Canada to invoke disallowance for the first time since 1943 and repeal the Alberta Sovereignty Within a United Canada Act by federal Order-in-Council. Rather amusingly, the King government disallowed a series of 11 Albertan statutes between 1937 and 1943.[17] Danielle Smith has taken Alberta back to the snakeoil salesmanship of the evangelical Social Creditist Premier William “Bible Bill” Aberhart.

Initial Reactions by Politicians and Professors Fixate on “Bypassing the Legislature”

In general, a bill which on the one hand purports that “Nothing in this Act is to be construed as authorizing any order that would be contrary to the Constitution of Canada” (section 2(a)) and then on the other hand purports to “suspect or modify the application of operation of all or part of an [federal] enactment” and “specify or set out provisions that apply in addition to, or instead of, any provision of an [federal] enactment” would probably either be unconstitutional (if it would do what it seems to purport) or futile (if it proves ineffectual). In the latter case, the law would become the statutory equivalent of a sternly worded open letter. And I expected yesterday that all criticism of the Alberta Sovereignty Within a United Canada Bill would focus on its central and fundamental premise contained in section 4: that the Lieutenant Governor-in-Council can direct provincial governmental entities to ignore federal law, and, in turn, how section 4 seems at variance with section 2(a): “Nothing in this Act is to be construed as authorizing any order that would be contrary to the Constitution of Canada.”

So I was surprised when Prime Minister Trudeau fixated instead on the process proposed in the bill instead of the premise of the bill. CTV News showed footage of Trudeau speaking to reporters on 30 November 2022; he expressed concern that “The Alberta Government is choosing to by-pass the legislature on a number of issues” rather than the political provocation toward Ottawa and the anti-constitutional premise of the bill.

The segment also features Duane Bratt, Professor of Political Science at Mount Royal University, who also touched upon the wording in section 4(1) of the bill:

“It is anti-democratic for Albertans: it bypasses the Legislative Assembly, it gives to cabinet and the premier the ability to amend legislation without oversight of the legislature, without it passing the legislature, and it allows the cabinet to issues directives to provincial entities to violate federal law. […]

[The Legislative Assembly] can pass a resolution that gives carte blanche to the cabinet to have all sorts of powers, what we call Henry VIII Powers, where they bypass parliament.”

Interestingly, CBC News did not cover this aspect of the bill which seems to apply to provincial statutes.[18]

Normal Delegated Legislation Versus Henry VIII Clauses

In normal terms, parliaments and legislatures enact statutes (primary legislation) which delegate to the executive the authority to make regulations (secondary legislation) which further the aim of and flesh out the bare bones of the statute. Canadians statutes usually treat the executive formally as the Governor-in-Council, or sometimes a minister, and secondary legislation takes the form of executive instruments like proclamations or Orders-in-Council. Both primary and secondary legislation are “law”. This system of delegated legislation, or executive legislation, evolved in the 20^th century as a practical matter to administer the complexities of the welfare and regulatory State, where the executive must enforce and keep track of increasingly complex legal apparatuses and regulatory frameworks. Parliament and legislatures quite simply lack the time and expertise to tinker with these systems. Usually, secondary legislation simply amends or repeals other secondary legislation under the umbrella of primary legislation, the enabling statute.

For instance, Parliament through the Species at Risk Act sought to prevent wildlife from going extinct in Canada by protecting their natural habitats, but Parliament cannot possibly delve into all the minutia necessary to achieve that goal, especially on a highly technical subject which depends on ever-advancing scientific research and evolving understandings of the best approaches.[19] The executive therefore administers and enforces the Species at Risk Act and enacts secondary legislation in the form of Orders-in-Council or ministerial orders strictly under the authority delegated under the Species at Risk Act itself. For example, the Governor-in-Council can amend the list of endangered species “by reclassifying a listed wildlife species or by removing a listed wildlife species” under section 27(1), and it “make regulations to protect critical habitat on federal lands” under section 59(1). Parliament would focus on the general framework of the statute, like defining what “critical habitat” means. The Government of Canada has so far amassed 121 active regulations and repealed two regulations under the Species at Risk Act instead of having tabled 123 bills in the House of Commons to amend the statute. Each of these regulations pertains directly to the Species at Risk Act and were made under the authority of the Species at Risk Act. No one doubts or calls into question such routine delegated, or executive, legislation. But secondary legislation normally exists within strict limits. Secondary legislation should, for instance, only amend or repeal other secondary legislation, and only Parliament could repeal the primary legislation, Species at Risk Act itself, outright or amend the provisions which delegate to the Governor-in-Council or responsible minister the authority to issue orders under the act.

I argued in an article in 2018 that the separation of powers under the Constitution of Canada must logically limit the scope of what authority Parliament can delegate to the Governor-in-Council by building on the work of Craig Jones, Professor of Law and the University of British Columbia[20], and part of the Supreme Court of Canada’s decision In Re: George Edwin Grey from 1918. In that ruling, the Supreme Court upheld a specific example of where the Governor-in-Council used the War Measures Act to change the application of part of the Military Service Act[21] and yet also declared: “The Parliament of Canada can validly delegate but cannot abandon its Legislative powers”[22] and that “Parliament cannot, indeed, abdicate its functions, but within reasonable limits at any rate it can delegate its powers to the executive government.”[23] Even though the Supreme Court itself has acknowledged that there must in principle be a limit to what parliament and legislatures can delegate to the executive, Canadian jurists remain reluctant to impose concrete limits on delegated legislation. As John Mark Keyes says in Executive Legislation: “Courts in Canada have for the most part firmly rejected limits on the ability of Parliament and the provincial legislatures to delegate legislative powers on an instrumental basis.”[24]

Henry VIII Clauses, which delegate to the executive the authority to amend or repeal primary legislation through secondary legislation,[25] touch upon the theoretical limits of how parliaments can delegate their authority to the executive. In other words, the executive could repeal a statute by Order-in-Council, or it could substantively amend the statute to give itself additional regulatory authority or to subvert its original purpose. Taking the earlier example of the Species at Risk Act, a Henry VIII Clause would say something like, “The Governor-in-Council may repeal this act” or “The Governor-in-Council may amend this act to alter the definition of ‘critical habitat’ or ‘species at risk.’” The moniker derives from the fallout of the Proclamation by the Crown Act, 1539, enacted by the Reformation Parliament under the reign of Henry VIII to put royal proclamations normally issued under royal prerogative authority on the equivalent of statutory footing.[26] It said:

“The King for the time being, with the advice of his council, or the more part of them, may set forth proclamations under such penalties and pains as to him and them shall seem necessary, which shall be observed as though they were made by act of parliament […].”[27]

Ironically, Thomas Cromwell devised this law precisely because he regarded parliamentary authority and statute as a sounder legal footing than royal prerogative authority and wanted to legitimate the prerogative[28]; yet the Proclamation by the Crown Act became synonymous with despotism and autocracy because putting the general authority to issue proclamations on a statutory footing gives the King-in-Council de facto legislative authority that usurps the King-in-Parliament and the normal legislative process. Since proclamations and Orders-in-Council can be promulgated more quickly and efficiently than statute, they would supplant statute altogether, and Parliament would become redundant. According to William Blackstone, the legislation “that the king’s proclamations should have the force of acts of parliament […] was calculated to introduce the most despotic tyranny, and which must have proved fatal to the liberties of this kingdom had it not been luckily repealed in the minority of his successor [Edward VI] about five years after.”[29]

Canadian lawyers generally privilege obtuse and pedantic fixations of the form – that parliament delegated this authority in statute –over the substantive outcome that the executive could use such authority to usurp and supplant the main role of parliament in enacting, amending, and repealing laws. Craig Jones stands out as a notable exception. He has pointed out that the Interpretation Acts of British Columbia, Alberta, Manitoba, and Ontario allow the Governor-in-Council to proclaim individual provisions of a statute into force at different times, even if the statute does not expressly authorise this partial entering into force. Jones argues that this practice violates the separation of powers between the executive and legislature by giving the executive a form of “line-item veto,” whereby it could decide to keep certain provisions of a statute inactive indefinitely and, in effect, veto them. For example, a new ministry could selectively promulgate the statute into force contrary to the legislature’s intent.[30] I took up this line of argument in my article from 2018 as well, to little interest.

British scholars, by contrast, take a more reasonable and substantive view of the limits of delegated legislation. For instance, Ronan Cormacain of the Bingham Centre for the Rule of Law takes a dim view of Henry VIII Clauses based on substantive arguments on the role of parliament as a law-making body.

Firstly, secondary legislation made under these clauses lacks democratic credibility as it has not been authorised in any meaningful sense by an Act of Parliament. […]

Secondly, there is a reduction in legal certainty.  Acts ought to contain precise legal propositions, but the super-enabling clause is a vague coda allowing the executive to “do other stuff” in connection with the legislation. […]

Thirdly, it grants far too much discretion upon ministers to make the law.  The rule of law requires that we are governed in accordance with clear and established law, not governed in accordance with the personal preferences of individual ministers or officials. Tom Bingham summed up this rule of law requirement as law not discretion.[31] 

He also makes an important distinction between what he calls “super-enabling clauses” versus Henry VIII Clauses proper. He published an essay with the United Kingdom Constitutional Law Association ironically on the very same day that the Smith government tabled the Alberta Sovereignty Bill in the legislature and explained:

“A regular enabling clause grants a minister the power to make secondary legislation on a specific point. A super-enabling clause is broader and less specific: it grants a minister the power to make secondary legislation to give full effect to an Act, or make further legislative changes consequential or incidental to an Act. It acts like a sweeper, granting additional powers not previously enumerated, or a fall-back granting general powers to cover points not already set out in one of the specific powers.”[32] […]

“Turbo-Charging Super-Enabling Clauses With Henry VIII Clauses

A regular partner in crime to the super-enabling clause is the Henry VIII power.  A Henry VIII power is a clause in primary legislation which grants the power to amend primary legislation by way of secondary legislation.  It is a remarkable provision which goes against the normal conception of the separation of powers.  Only the legislature can make primary legislation, but a Henry VIII clause allows the executive to usurp this power and make primary legislation itself. 

Combining super-enabling powers with Henry VIII powers turbo-charges them and magnifies all their legitimacy and rule of law problems. It grants a minister the power to amend Acts of Parliament as they consider appropriate. It converts the executive into a self-executing legislature, usurping the proper legislative function of parliaments. Executive law-making becomes autopoietic, a self-perpetuating system without need of external inputs.”

 This Alberta Sovereignty Within a United Canada Bill seems to give the Legislative Assembly by resolution in conjunction with the Lieutenant Governor-in-Council by Order-in-Council the authority to suspend the application of provincial laws and to de facto nullify federal laws for up to four years. In the normal course of affairs, governments which dislike an old provincial statute would simply table a bill to repeal said statute, which the Legislative Assembly would adopt and which the Lieutenant Governor would give Royal Assent. So in a way, the Alberta Sovereignty Within a United Canada Act would not bypass the legislative assembly, because section 3 forces the Lieutenant Governor-in-Council to launder its authority to pass broader secondary legislation under the super-enabling clause through the Legislative Assembly.

This raises the question of how best to classify this aberrant bill. The best view is probably that section 4 of the Alberta Sovereignty Within a United Canada Act qualifies as a distinct phenomenon closer to a super-enabling clause than to a Henry VIII Clause. It encompasses the broad scope of a super-enabling clause that purports to de facto suspend the application of provincial laws and nullifies federal law for up to four years, but which does not purport to allow the executive to repeal or amend primary legislation, as a Henry VIII Clause does.

 Conclusion

On a personal note, I have found the grave intoning through furrowed brows this week about “bypassing legislatures” and “Henry VIII Clauses” amusing because I raised these same basic arguments between 2013 and 2018 about the limits of delegated legislation and the fundamental contradiction and paradox of Henry VIII Clauses with respect to a bizarre piece of legislation that the Parliament of Ontario enacted at the behest of the McGuinty government only to be dismissed and mocked by the very journal that initially commissioned me to write the article! The editor of the Canadian Parliamentary Review invited me to write a piece on how a Henry VIII Clause allowed the McGuinty government to repeal the Putting Students First Act while parliament was prorogued in 2013 only to rescind his offer on the instructions of a dismissive member of the editorial board. “There may be questions about the wisdom of allowing the executive to repeal a statute, but the article doesn’t present a serious legal or constitutional issue related to such an action,” said the anonymous member of the editorial board.

However, if someone brought up the same general argument today as I did in 2018 that Henry VIII Clauses abdicate the legislature’s fundamental law-making authority by delegating nebulous and all-encompassing authority to the Governor-in-Council to amend or repeal primary legislation, the same editor and members of the editorial board of the CPR would hail the same argument from a different person as a brilliant and topical takedown of a power-mad, anti-democratic premier who uses democracy to subvert democracy, or something to that effect. Worse still, we cannot even discuss the question without enduring the theatrically audible scoffs and flippant hand-waving gesticulations of some pedantic lawyer who drenches the whole debate in smug condescension before dismissing the very idea that there must be limits to the scope of delegated legislation.

Granted, what McGuinty did in 2012-2013 in tabling a bill that allowed the Governor-in-Council to repeal only the same statute applied a Henry VIII Clause on a much smaller scale than what the Alberta Sovereignty Act could potentially do, but the general argument remains the same: that there logically must exist within a separation of powers within our codified Constitution of Canada and limits on how far legislatures can delegate authority to the executive through statute. The two cases only deal in a difference of degree, not of kind. In the end, the Journal of Parliamentary and Political Law at least published Repealing a Statute When the Legislature Is Prorogued: The Practice in Ontario.

We should discuss the limits of delegated legislation and the paradox posed by Henry VIII Clauses without regard to party and province, but if the general disdain toward Danielle Smith and the Alberta Sovereignty Bill finally bring this broader question to the forefront, then so be it. She clearly wants to provoke some kind of crisis, so perhaps a serious debate about super-enabling clauses and Henry VIII Clauses in Canadian legislative drafting would provide the healthiest outlet.

And we should also bear in mind that under Alberta’s current fixed-date election law, the province must hold a general election by May 2023. Rachel Notley, former Premier and current Leader of the Opposition, might well lead her New Democrats to a parliamentary majority and pull a Mackenzie King by re-becoming Premier for a second (and by definition non-consecutive) term after having sat in opposition in a parliament that gave the majority to the other party. A second Notley government would table a bill to repeal the Alberta Sovereignty Within a United Canada Act.

Similar Posts: 

• Bowden, James W.J. “Repealing a Statute When the Legislature Is Prorogued: The Practice in Ontario.” Journal of Parliamentary and Political Law 12, no. 2 (August 2018): 505-512.
• The Section 45 Constitutional Amendment Becomes a Vehicle for Provincial Autonomism (November 2022)
• Who Decides What the Constitution Is and Says? Quebec Modifies the Text of the Constitution Act, 1867 (June 2022)
• Repealing a Statute While the Legislature Is Prorogued: Henry VIII Sleeper-Cell Clauses in Ontario (September 2018)

Notes

[1] Janet French, “Proposed Sovereignty Act Would Be Scrutinized Before Given Royal Assent, Says Alberta Lieutenant-Governor,” CBC News, 1 September 2022; Dean Bennett, “Alberta Lieutenant-Governor Says Don’t Assume She’ll OK Proposed Sovereignty Act,” Canada’s National Observer, 2 September 2022; Dean Bennett, “Alberta Lieutenant-Governor Says Not a Done Deal She’ll OK Proposed Sovereignty Act,” CTV News Edmonton, 1 September 2022.

[2] Lieutenant Governor Salma Lakhani in “Speech from the Throne”, Legislative Assembly of Alberta, Votes and Proceedings, 30^th Legislatures, 4^th Session, no. 1, Tuesday, 29 November 2022, at pages 7-8.

[3] The Legislative Assembly of Alberta, 30^th Legislature, 4^th Session, 1 Charles III, 2022 Bill 1, Alberta Sovereignty Within a United Canada Act.

[4] Stephen Harper (Prime Minister of Canada), “Government Orders: Government Business No. 11,” in House of Commons, Journals, 39^th Parliament, 1^st session, Number 87, 27 November 2006, at pages 811-812. The motion passed on division, 265 for and 16 against.

[5] Interpretation Act, RSA 2000, c I-8  at s.12(1).

[6] The Legislative Assembly of Alberta, 30^th Legislature, 4^th Session, 1 Charles III, 2022 Bill 1, Alberta Sovereignty Within a United Canada Act, at page 1.

[7] The Legislative Assembly of Alberta, 30^th Legislature, 4^th Session, 1 Charles III, 2022 Bill 1, Alberta Sovereignty Within a United Canada Act, at s.1(c) (emphasis added).

[8] Alberta Act, 1905, 4-5 Edward VII, c. 3 (Canada), at s. 8.

[9] Danielle Smith (Premier of Alberta), in “Government Bills and Orders: Second Reading – Bill 1: Alberta Sovereignty Within a United Canada Act,” Legislative Assembly of Alberta, Alberta Hansard, 30^th Legislature, 4^th Session, Wednesday evening, 30 November 2022, at page 44.

[10] The Legislative Assembly of Alberta, 30^th Legislature, 4^th Session, 1 Charles III, 2022 Bill 1, Alberta Sovereignty Within a United Canada Act, at s.3.

[11] The Legislative Assembly of Alberta, 30^th Legislature, 4^th Session, 1 Charles III, 2022 Bill 1, Alberta Sovereignty Within a United Canada Act, at s.4.

[12] Government Organization Act, RSA 2000, c G-10.

[13] The Legislative Assembly of Alberta, 30^th Legislature, 4^th Session, 1 Charles III, 2022 Bill 1, Alberta Sovereignty Within a United Canada Act, at s.5.

[14] The Legislative Assembly of Alberta, 30^th Legislature, 4^th Session, 1 Charles III, 2022 Bill 1, Alberta Sovereignty Within a United Canada Act, at s. 6 (emphasis added).

[15] The Legislative Assembly of Alberta, 30^th Legislature, 4^th Session, 1 Charles III, 2022 Bill 1, Alberta Sovereignty Within a United Canada Act, at s. 7.

[16] The Legislative Assembly of Alberta, 30^th Legislature, 4^th Session, 1 Charles III, 2022 Bill 1, Alberta Sovereignty Within a United Canada Act, at ss. 8-9.

[17] G.V. La Forest, Disallowance and Reservation of Provincial Legislation (Ottawa: Department of Justice, March 1955), 99-101.

[18] Michelle Bellefontaine, “Alberta Sovereignty Act Would Give Cabinet Unilateral Powers to Change Laws,” CBC News, 29 November 2022; Aaron Wherry, “The Alberta Sovereignty Act Plays a Dangerous Game – for No Rational Reason,” CBC News, 1 December 2022.

[19] Species at Risk Act (S.C. 2002, c. 29)

[20] Craig Jones, ‘‘The Partial Commencement of Acts: A Constitutional Criticism of the Lieutenant Governor in Council’s ‘Line-Item Veto’ Power,” Review of Constitutional Studies volume 5, no. 2 (2000): 173-194.

[21] John Mark Keyes, Executive Legislation, 2^nd Edition (Markham, Ontario: LexisNexis, 2010), 109.

[22] In Re George Edwin Gray (1918), 57 S.C.R. 150 (S.C.C.)., obiter

[23] In Re George Edwin Gray (1918), 57 S.C.R. 150 (S.C.C.)., at page 157.

[24] John Mark Keyes, Executive Legislation, 2^nd Edition (Markham, Ontario: LexisNexis, 2010), 109.

[25] James W.J. Bowden, “Repealing a Statute While Parliament Is Prorogued: The Practice in Ontario,” Journal of Parliamentary and Political Law 12, no. 2 (August 2018): 506, 511; John Mark Keyes, Executive Legislation, 2^nd Edition (Markham, Ontario: LexisNexis, 2010), 110.

[26] G.R. Elton, “Henry VIII’s Act of Proclamations,” The English Historical Review 75, no. 295 (April 1960): 208-222.

[27] Proclamation by the Crown Act, 1559, 31 Henry VIII, c.8

[28] G.R. Elton, “Henry VIII’s Act of Proclamations,” The English Historical Review 75, no. 295 (April 1960): 208-222.

[29] Sir William Blackstone, Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes, Volume 1, Books I & II, edited by George Sharswood (Philadelphia: J.B. Lippincott Co., 1893) at page 271.

[30] Craig Jones, ‘‘The Partial Commencement of Acts: A Constitutional Criticism of the Lieutenant Governor in Council’s ‘Line-Item Veto’ Power,” Review of Constitutional Studies volume 5, no. 2 (2000): 173-194.

[31] Ronan Cormacain, “The Rise and Rise of the Super-Enabling Clause,” UK Constitutional Law Association, 30 November 2022.

[32] Ronan Cormacain, “The Rise and Rise of the Super-Enabling Clause,” UK Constitutional Law Association, 30 November 2022.