Henry VIII Clauses – What They Are and Why They Matter
On March 20, the provincial government tabled Bill 46: Protection of Privacy Act and Access to Information Act Statutes Amendment Act, 2025. Within each of these proposed amendments are sections titled “Consequential Amendments” (sections 97 and 62) that state:
(1) For the purposes of making any necessary changes as a result of this Act, the Lieutenant Governor in Council [i.e. provincial Cabinet] may, by regulation, amend any Act or any regulation filed under the Regulations Act.
(2) The regulations authorized by this section may be made notwithstanding that a regulation being amended was made by a member of the Executive Council or some other person or body.
(the “Consequential Amendments”)
These consequential amendments are what are referred to as Henry VIII Clauses.
For some procedural background: when a law is passed, it often doesn’t include all the details needed to put it into action. Instead, the law gives authority to the Minister to create regulations that fill in those details. These regulations explain exactly how the law will work in everyday practice, usually dealing with procedures or technical issues.
Regulations are not the same as laws passed by the legislature. They must stay in line with the main law (called an Act) that gives them authority. It would be an improper use of executive power for a regulation to change the original purpose of the Act, shift public policy goals, or improperly alter other laws. This is important because the oversight of the legislature is important and has the democratic mandate to make or change the fundamental rules that govern society.
What is a Henry VIII Clause
They’re named after King Henry VIII of England, referencing his autocratic tendencies. The term draws from the Statute of Proclamations 1539, which gave the king power to legislate by proclamation—effectively allowing him to bypass Parliament. Though that statute was repealed, the term stuck as shorthand for when governments pass legislation that includes provisions allowing broad executive (cabinet) powers that sidestep legislative processes.[1] Therefore, instead of returning to the Legislative Assembly to modify an existing Act, a minister can utilize this authority to implement those changes through regulations without going through the ordinary law-making process, shifting law-making power to the executive.[2]
These types of clauses are generally intended to serve as a housekeeping tool, used to make minor updates, fix errors in legislation or where framework legislations were passed that has technical or complex rules that are expected to have future updates (i.e. tax, immigration, health). They are meant to streamline the process for small changes—for example, if a law is renamed, other laws that reference it may need to be updated accordingly. However, because this process avoids the usual legislative steps, it is considered an exceptional measure that “should only be used exceptionally, not routinely.”[3]
Why It Matters
Henry VIII clauses matter because they strike at the heart of how democratic governments make laws—and who gets to do so. These clauses often bypass normal legislative scrutiny and can have profound legal, political, and constitutional implications.
Benefits:
· Efficiency: In keeping with the housekeeping idea, these clauses make a law more flexible and easier to adapt. For instance, if a minor mistake or an unforeseen conflict in the law is discovered, a Henry VIII clause allows the government to quickly rectify the issue through regulations rather than waiting for the Legislative Assembly to pass a new amendment Act.[4]
· Smoother Implementation: Because these clauses enable amendments through regulation, any complications or gaps discovered after the Act has been passed can be quickly addressed, ensuring appropriate implementation.
Challenges:
· Lack of Transparency: Since regulations are not debated and scrutinized to the same depth as bills, granting ministers the power to amend Acts can undermine oversight and transparency.[5]
· Democratic Deficit: Due to the lack of oversight, concerns exist about the potential for changes to be made that are inconsistent with the Act's intent or, in situations where overly broad Henry VIII powers have been included, for significant policy changes to be implemented under the guise of “consequential amendments.” Without careful limits, the executive could effectively re-write laws with minimal input from elected representatives.[6]
Just recently, the Alberta Government recently fell to severe scrutiny for attempting to pass landmark legislation with a glaring Henry VIII clause. When first introduced Bill 1, s. 4(1) of Alberta Sovereignty Within a United Canada Act (later SA 2022, c A-26.5), would have permitted cabinet to unilaterally amend legislation to respond to federal measures and was seen by legal experts as allowing cabinet to bypass normal legislative processes. Swift public outcry caused immediate amendments.
Henry VIII Clauses, Bill 46, Public Consultation/Lobby Impact
In the fact sheet provided by the GoA, Bill 46 is presented as a “housekeeping” amendment act. It informs the reader that the government is “conducting a comprehensive review of all legislation” containing references to the Freedom of Information and Protection of Privacy Act (FOIP Act), including assessing provisions to determine “if it relates to: the protection of personal information; the right of access to information or records; and whether the provision remains necessary.”
However, the Consequential Amendments in Bill 46 stipulate that the Executive “may, by regulation, amend any Act or any regulation filed under the Regulations Act. [emphasis added].” The list of Acts and regulations filed under the Regulations Act is extensive, comprising more than 2,000 consolidated regulations. Access to information and protection of privacy are relevant in each of them.
Bill 46 does not clearly delineate which statutes or categories of amendments fall within the ambit of the regulatory authority granted under Section 97.1. The breadth and ambiguity of this provision give rise to concerns that substantive legal changes could be effected absent clear legislative intent or adequate public oversight. In particular, apprehensions persist that such powers may be exercised to restrict public access to information and diminish transparency, potentially under the guise of privacy protection, or through unwarranted limitations on data essential to academic inquiry, investigative journalism, and democratic accountability.
An important ancillary concern is that circumventing the legislative process also eliminates key advocacy opportunities, as regulatory changes are typically not subject to the same degree of public consultation, debate, or stakeholder engagement as the enactment of primary legislation.
In an era when the government has been transparent about its realignment efforts, stakeholders are justified in being concerned about such broad clauses, especially when there is systemic uncertainty and rumors about forthcoming amendments to the Personal Information Protection Act (PIPA Act) and the anticipated tabling of Compassionate Intervention. Those who are interested in the proper limits related to the protection of privacy should consider:
· Continued monitoring of the regulations closely once Bill 46 is passed, especially for any regulatory proposals issued under sections 97 or 62;
· Request stakeholder consultations with ministerial offices on any proposed regulations, particularly those that alter substantive privacy or data-use rules;
· Advocate for clarity in regulatory guidance, including implementation timelines, transition measures, and interpretive bulletins;
· Publicly request that substantive regulations or amendments made through use of the Consequential Amendments be returned to the legislative process for debate and undertaken with proper legislative authority;
· Propose safeguards, such as a sunset clause, return for review or oversight public committee to limit the duration of regulations or increase public oversight.
Bill 46 provides the Executive with powerful tools to reshape Alberta’s information and privacy landscape, which could be used to achieve and implement an improper purpose. While these powers offer efficiency, they also come with reduced legislative scrutiny – something that has the potential to significantly impact stakeholders who deal with data governance, access, and compliance.
The presence in Bill 46 of the Consequential Amendments should trigger scrutiny and debate, especially when the scope is broad, oversight is weak, or the implications are far-reaching.
[1] UK Parliament. (2025). Henry VIII clauses. https://www.parliament.uk/site-information/glossary/henry-viii-clauses/
[2] Ibid; Daly, Paul. (2021, April 22). The Constitutionality of Henry VIII Clauses in Canada: Administrative Law Matter (No. 1) in the References re Greenhouse Gas Pollution Pricing Act, 2021 SCC11 https://www.administrativelawmatters.com/blog/2021/04/22/the-constitutionality-of-henry-viii-clauses-in-canada-administrative-law-matter-no-1-in-the-references-re-greenhouse-gas-pollution-pricing-act-2021-scc-11/
[3] Rule of Law Institute of Australia. (2012, August). Henry VIII clauses & the rule of law. https://www.ruleoflaw.org.au/wp-content/uploads/2012/08/Reports-and-Pres-4-11-Henry-VIII-Clauses-the-rule-of-law1.pdf, 2.
[4] Rule of Law Institute of Australia. (2012, August). Henry VIII clauses & the rule of law. https://www.ruleoflaw.org.au/wp-content/uploads/2012/08/Reports-and-Pres-4-11-Henry-VIII-Clauses-the-rule-of-law1.pdf
[5] Ibid; Daly, Paul. (February 1, 2017). Henry VIII Clauses in Comparative Perspective. https://www.administrativelawmatters.com/blog/2017/02/01/henry-viii-clauses-in-comparative-perspective/
[6] Rule of Law Institute of Australia. (2012, August). Henry VIII clauses & the rule of law. https://www.ruleoflaw.org.au/wp-content/uploads/2012/08/Reports-and-Pres-4-11-Henry-VIII-Clauses-the-rule-of-law1.pdf; They Work For You. (2022, November 22). Clause 158 – Power to make consequential provision. https://www.theyworkforyou.com/pbc/2022-23/Economic_Crime_and_Corporate_Transparency_Bill/15-0_2022-11-22a.496.7#g496.12
