On 27 March 2023, the Government introduced the Severe Weather Emergency Recovery Legislation Bill. Its 'emergency' introduction has stunned lawyers. The First Reading debate in Hansard was not even available by the time Select Committee submissions closed, and these submissions were only open for one day.
The Bill shrieks of arbitrary power to constitutional lawyers. They are talking of Henry VIII clauses. What do they mean and why is there such outrage over a measure responding to cyclone devastation?
The Bill lets the Governor-General (who acts on Cabinet's request) grant exemptions from, modify or extend any provisions from a broad list of statutes. They include the Building Act, Land Transport Act, Local Government Act and Resource Management Act. Orders can also specify any provisions of additional Acts of Parliament that will in effect no longer bind a Minister on relevant matters. To exercise that latter power the Minister must be satisfied there is “unanimous or near unanimous support” from the leader of each political party in Parliament.
The Orders can only operate in a specified local authority that has been affected by the severe weather events.
Henry VIII Clauses
Clause 7 of the Bill, which allows these Orders, is a contemporary Henry VIII clause. Henry VIII clauses delegate Parliament’s legislative powers.
Confining law-making to the people’s elected representatives was an enormous constitutional achievement. It removed the power to make up rules along the way from local big-wigs, priests, soldiers, officials and agents of the government. That legal inheritance distinguished the English Rule of Law from more despotic regimes.
Henry VIII clauses are “in disrespectful commemoration of that monarch’s tendency to absolution” (LawsLJ, Thoburn v Sunderland City Council [2002]4 All ER 156 at 157). The term refers to a 1539 law which permitted King Henry VIII to override Parliament by decree, which he used to declare some of his children illegitimate and to alter the line of succession. Taken with his abuse of legal procedure to dispose of unwanted spouses, the term is not a compliment.
So provisions in Acts that delegate what is effectively power to make up the law on the spot, to amend, override, or exempt from primary legislation, are very significant.
What makes Henry VIII clauses so dangerous?
Over centuries Parliament has evolved accountability mechanisms. Consultation processes, general elections, and public scrutiny help to constrain what is otherwise an absolute power of a Parliament which is supreme, and without any constitutional body to over-ride it. Exercises of Henry VIII power sidestep those protections. At a local level they may authorise abuses of power which might not even get public attention.
New Zealand's experience of the cruel use of MIQ powers (which the courts have subsequently criticised), show the dangers of extraordinary power, even under statute. The Severe Weather Bill has no protections against favouritism or vendetta. It has no protections against jobs-worth high-handedness. It has no specific protection of property rights.
This Bill will allow discretionary authority outside of statute, and in spite of it.
Henry VIII clauses often contravene the doctrine of Separation of Powers. This doctrine tries to protect against arbitrary authority by confining each branch of government to its own sphere. Those that make the law should not be those who apply it. Law-makers should not be “judge and jury” in their own cause.
These Henry VIII clauses violate this protection by allowing the executive government to step into the shoes of Parliament. Those exercising the powers are accountable to their bosses, but without law constraining them to make them accountable to the courts.
The Regulations Review Committee has indicated that while Henry VIII clauses are permissible in some circumstances, they should only be used where necessary. There should also be appropriate constraints on the use of their power. The Bill material does not show satisfaction of those requirements
The Bill fails to provide accountability
The Severe Weather Bill, as introduced, has feeble reassurances.
Orders made under clause 7 will expressly not be invalid where they confer any discretion on, or allow any matter to be determined or approved by any person (Clause 18). There is no prescribed limit to who can make decisions under fundamental legislation, nor how these acts may be interfered with.
The Bill proposes a bureaucratic comfort - a Severe Weather Events Recovery Review Panel. The responsible Minister must consider appointing to the SWERRP members with knowledge or experience in law, environmental protection, local Māori or community interests, or emergency response and recovery. The Minister must also consider appointing one or more persons with experience in “local perspectives in the severe weather events affected areas of mana whenua, mātauranga Māori, tikanga and te ao Māori.”
The appointees are selected by the Minister creating the Orders, and are not democratically accountable.
Orders made under the Bill can remain in force until 31 March 2028, if not revoked before. Many provisions of the Act self-repeal after three years. It seems the Panel would then no longer exist to review the use of the Orders.
Other legislation
The Bill might be the high water mark so far of government extension of executive power. It is not much more significant, however, than the aborted attempt to entrench co-governance in the Water Entities scheme.
The provisions for Te Mana o te Wai statements by iwi may have similar constitutional implications. Words in the provisions setting up co-governance get meanings set out in Minister’s National Policy Statements. They can change. The RMA replacement Bill is shot through with comparable derogations from normal rule of law certainty, and delegation of important legislative power to unelected committees.
For more information on this, please contact Director Stephen Franks.
