Keep the Tudor King out of the Beehive

Alex Penk

What does a long-dead Tudor king have to do with the Canterbury earthquakes?

In late 2010, after the first shock, our Parliament needed to act fast to help rebuild shattered streets, buildings and communities.

It passed the ‘Canterbury Earthquake Response and Recovery Act,’ intended to relax some of the usual legal processes that control things like building activities.

Dubious clause

Unfortunately, the Act used something called a ‘Henry VIII Clause,’ a provision that gave the government broad powers to respond to the effects of the shock, including to change almost any law previously made by Parliament.

The Tudor King played fast and loose with the laws and constitution of his day, so as the use of his name implies, this sort of clause is typically regarded as dubious.

Now, a few years on, Parliament has started an inquiry to work out how lawmakers should respond to emergencies like this in future.

The law created concerns from lawyers and academics.

While they rightly agreed that Parliament had needed to act fast in the aftermath of the earthquake, they cautioned that a ‘Henry VIII Clause’ turns our normal rules about law-making power upside down.

Some safeguards

We ask Parliament to make our laws because MPs are accountable to voters through elections, and because laws made in Parliament have to be scrutinised and debated by the opposition.

These are safeguards for an awe-inspiring power, the ability to put the whole machinery of the state into action to create an outcome, or forbid one.

We need safeguards like these because it is easy and human for power to be misused.

The Act tried to make up for this with some other safeguards, like putting a time limit on the government’s powers, but these were weak.

Poor accountability

When government makes decisions without going through Parliament, there is less scrutiny and less accountability and hence if there is any other way to tackle the problem, we should try it.

The concerns did not change anything at the time.

One Minister called them the complaints of ‘hand-wringing academics’ more worried about theory than actually helping Cantabrians.

This was unfair; for one thing, we can look to recent history to see how power without good safeguards can be misused.

Dangerous power

Think of Robert Muldoon’s misuse of economic powers in the 1970s and early 1980s, fixing or freezing wages and prices.

For another, those same ‘hand-wringing academics’ offered credible alternatives for how Parliament could have acted, without the same risks. For example, a ‘rolling maul’ of emergency legislation where the whole of Parliament (not just those who form the Government) changed specific, identified laws as needed.

These are the sorts of measures the inquiry should consider, now that it has the time and space to reflect on the legal framework we need for emergency situations.

It is a good opportunity to establish new ways of operating that can guide governments in future, so that the ghost of King Henry VIII does not rise to haunt us again.

Alex Penk is Chief Executive of Maxim Institute based in Auckland.

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