A topic to which I had not given a great deal of thought before I taught it last Term as part of an LLM seminar on “Legislation” is the form of emergency legislation.
As someone who lived through the 2000s and spent time in U.S. universities whilst the executive branch claimed significant authority to act in exigent circumstances, “emergency” is a familiar legal concept.
But the technicalities of legislative planning for and reaction to emergencies are complex and raise different issues: whereas the executive claims or needs broad powers to act swiftly and decisively, legislative action ought (in principle) to be slower and deliberative. Those interested in or curious about the topic would do well to read a recent report from the New Zealand legislature’s Regulations Review Committee. New Zealand, of course, has in recent years suffered significant national disasters, in the form of earthquakes that required urgent legislative and regulatory responses; the framework adopted was, broadly, to empower the executive to act via Order in Council in order to take appropriate reactive measures.
In general, the Committee commented,
…the criticisms expressed…about the inclusion of powers to make Orders in Council overriding Acts were well-made. They served to remind everyone involved in the process of legislating for the recovery from the Canterbury earthquakes that overriding primary legislation with delegated legislation was contrary to constitutional norms and carried risk of abuse. The safeguards and checks put in place helped ensure that the powers were not abused, but were used moderately and consistently with the purpose for which they were granted. Nevertheless, the regulation-making power was broader than was necessary, and we believe it is useful to consider some further checks and safeguards that could be incorporated if it becomes necessary to consider using similar powers in a future national emergency (at p. 17).
The Committee rejected the suggestion that general emergency legislation (like Britain’s Civil Contingencies Act 2004) ought to be adopted:
The multitude of different types of emergencies that are possible means that the resulting powers under such legislation would inevitably have to be unacceptably broad. Experience with the Canterbury earthquakes legislation, in particular the 2011 Act, has shown that our legislative agencies and institutions are capable of enacting quickly bespoke legislation for recovery from a national emergency. The key is to ensure such legislation adequately balances the need for extraordinary powers to get the job of recovery done, without overly compromising rights and freedoms and proper process (at p. 19).
General safeguards, by contrast, would be very much appropriate:
- using primary legislation wherever possible rather than broad powers to make delegated legislation
- including sunset provisions for emergency powers and requiring renewal of such powers every three years at the most
- retaining an external panel led by a retired High Court Judge to review Orders in Council before they are made to ensure they are authorised and to suggest any amendments
- preserving rights to seek judicial review of the exercise of emergency powers, including of Orders in Council, while ensuring meritless challenges do not frustrate the ability to get the job of recovery underway (at p. 18).
One of the most striking suggestions is that any Henry VIII clause permitting the executive to modify primary legislation should set out in advance the primary legislation that could be so modified:
[W]e recommend that any future national emergencies legislation with power to make Orders in Council overriding other Acts should set out an exclusive “positive list” of enactments (including subordinate legislation) that can be overridden by Order in Council. We are unable to say in advance which enactments should be on that list. It will depend on the nature of the particular emergency, and when it occurs. Rather than attempt to prepare a list in advance, we think a better approach would be for the list of enactments that can be overridden to be developed under the supervision of the Attorney-General, with select committee consideration, informed by submissions, during the preparation of bespoke legislation following a national emergency. We consider that the guiding principle should be that the list of Acts that could be overridden should be no broader than necessary in each circumstance. We consider that there should be substantive justification for the inclusion of each Act listed (at p. 21).
One wonders if this restrictive approach to Henry VIII clauses could be applied more broadly. The Committee would have explicitly excluded human rights legislation from modification.
There is much more of interest in the report, the core of which is concise and well worth reading. H/T Eddie Clark.