Braid: Smith gains but Bill 1 heats up. Alberta fought federal 'Henry VIII' clause only last year

Many Albertans are always willing to give a new premier a chance. Heaven knows, they’ve had plenty of practice.

The UCP benefits from a post-victory bump in a new Leger Research poll that shows the government is only three points behind the NDP in voting intention.

Opposition Leader Rachel Notley’s party has 47 per cent support, while the UCP is at 44 per cent, well within the margin of error.

But the UCP momentum comes with a couple of alarm bells.

Among decided voters, Notley has a big lead in Calgary, the crucial battleground in the next election.

The NDP is at 51 per cent, the UCP 41 per cent. If those numbers hold though the election next May 29, the UCP would lose.

The other problem is Smith’s own performance rating. Only 25 per cent of respondents say she’d make the best premier. Thirty seven per cent say that about Notley.

The Leger poll was conducted from Nov. 24 to 28. Smith’s sovereignty act was introduced the next day. Subsequent polls will give a fix on its impact.

The act is hugely controversial because it would give Alberta the power to retaliate against Ottawa even if a federal action is deemed to be harmful sometime in future. It orders every public entity in the province to obey orders from cabinet.

That’s breathtaking enough for one bill. But serious criticism also focuses on the use of a “Henry VIII clause” (an archaic provision that comes with or without beheadings).

This gives Smith’s cabinet the power to alter or write laws without legislature debate or approval.

The premier claims cabinet could only impose something already approved by the house.

But Bill 1 doesn’t quite say that. It allows cabinet to “suspend or modify the application or operation of all or part of an enactment . . . (and) specify or set out provisions that apply in addition to, or instead of, any provisions of an enactment.”

This alarms U of C emeritus law professor Nigel Bankes.

“What Bill 1 does is authorize cabinet to issue directives that relate to any statute whatever,” he says.

“There has to be some limit to these Henry VIII clauses.”

Only last year, the UCP government agreed. In a Supreme Court case, the province vehemently opposed use of the clause in a federal greenhouse gas pricing bill.

Alberta lawyers argued: “This provision, known as a ‘Henry VIII clause’, is inherently contrary to established notion of parliamentary democracy and offends the rule of law.”

The Supreme Court approved the bill in a complex ruling.

But Bankes says the Henry VIII clause had a very narrow application in that case.

The sovereignty act use of the provision, he says, “has breadth that extends far beyond what was authorized in the Supreme Court greenhouse gas reference.” He believes the bill could be successfully challenged.

In the Supreme Court ruling, Justice Suzanne Coté wrote: “Henry VIII clauses endow the executive with authority to act arbitrarily by permitting it to act contrary to the empowering statute, creating an authority without meaningful limits.”

She said the core function of enacting, amending and repealing laws must be “protected” from the executive.

A lot of people wonder how Prime Minister Justin Trudeau might respond to the sovereignty act.

Will he fight it politically? Use the federal power of disallowance?

More likely, perhaps, is that he’ll just walk it over to the Supreme Court.

Don Braid’s column appears regularly in the Herald.

Twitter: @DonBraid