Friday, 18 May 2012

Henry VIII vit encore!

Much hubbub this morning at the Assemblé Nationale as the deputies debate legislation designed to end the student boycott – excellent coverage of the marathon législatif from Radio-Canada here.

Some of the hubbub relates to a “Henry VIII” clause, contained in Article 9 of the draft legislation. This allows the Minister for Education to take “toutes les mesures nécessaires” to bring Articles 2 through 8 of the law into operation, including making modifications to existing laws.

Henry VIII was fond of such clauses, which gave him a power to dispense with inconvenient statutory provisions. But so are modern Parliaments! Such clauses are constitutional in Canada, though the powers can only be used for precisely the purposes they are granted: see the discussion by the Ontario Divisional Court here. Not so elsewhere: in Ireland, for example, they are entirely unconstitutional (see pages 9 and 10 here).

Nonetheless, the Minister has suggested that she will revise the Henry VIII clause. Which goes to show that what is legal is not always what is politically acceptable.

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