The BC government has been given broad new emergency powers with the passage of Bill 19, the COVID-19 Related Measures Act. Under the Act, the government can temporarily change any legislation during an emergency, without any oversight from the public and without approval from the legislature. Although emergencies like the COVID-19 pandemic require quick decisions by the government, this Act lacks the safeguards required when the government is given such broad powers.
Generally, in our system of government, the legislature creates law, and the government ensures that it is carried out. The law-making process includes three readings of a proposed law, and debate amongst all members of the legislative assembly. This process is integral to maintaining the rule of law. It ensures that the public is aware of proposed rules before they become binding and can organize to support or oppose the law, or even ask for changes to it. It also allows elected officials to ask important questions to the governing party about the motivations and policies underlying the new rules.
Sometimes the legislature gives the government permission to create regulations about certain issues. For example, under the Residential Tenancy Act, a landlord can only raise a tenant’s rent by a certain amount. The legislature gives the government the power to determine what that amount should be through regulations. It is usually easier for the government to change regulations than for the legislature to change legislation. This system ensures that the government can update certain areas of the law over time, and go into more depth than what the legislature could do on its own.
The COVID-19 Related Measures Act goes a step further. It changes the Emergency Program Act by creating a new set of powers. During a state of emergency, Cabinet can now create regulations that amend any piece of legislation, thereby filling the law-making role of the legislature. These new powers are worrying for several reasons.
1. The Act creates broad new powers for Cabinet.
According to the Attorney General, the COVID-19 Related Measures Act simply transfers powers from the Solicitor General (a particular minister in Cabinet) to Cabinet as a whole. But it’s unlikely that those powers existed in the first place.
When the Solicitor General previously made orders amending legislation, the ombudsperson investigated and found them unlawful. The Emergency Program Act did not give the Solicitor General the power to override legislation. The government disputes this, but it has not pointed to any legal authority to confirm its opinion.
Although the Attorney General has tried to comfort critics by stating that the Act merely transfers powers, it appears that it actually creates new ones.
2. The Act limits public accountability.
In the past, when the Solicitor General made orders amending legislation, there was no legal requirement to make those orders public. Fortunately, the new changes mean that future amendments will be done through regulations, which must be published.
With that said, regulations can come into effect immediately. As a result, the government can avoid public scrutiny until after legislation has been amended. The public won’t be made aware of changes through the traditional law-making process, and won’t have the ability to change the law before it comes into effect.
3. The Act leaves the government unaccountable to the legislature.
Through the Act, the legislature will only be able to access the regulation after it has already come into effect. The lack of review goes against ombudsperson recommendations that the government report any amendments to the legislature, and they should expire after a fixed number of sitting days.
In addition, there is limited accountability afterward. The regulations aren’t subject to automatic expiration or review. They can last the length of the state of emergency, which will persist as long as Cabinet renews it every 14 days.
As Paul Daly has argued, accountability during an emergency is more likely through political, rather than legal, avenues. For that reason, the government shouldn’t be able to bypass the legislature entirely. Expansive powers should be accompanied by some form of automatic expiry or review by the legislature.
4. The Act permanently expands emergency powers.
While some of the other changes in the Act are specific to the COVID-19 pandemic, section 9 permanently changes the Emergency Program Act. Future governments may use the new powers in response to new emergencies.
The Attorney General has said that the government is in the process of reviewing and overhauling the Emergency Program Act. However, we don’t know when that process will be finished. The promise of future changes provides little comfort from the hasty changes made by the COVID-19 Related Measures Act.
Cabinet can unilaterally declare a state of emergency, and under this new Act, it can amend any piece of legislation during the course of that emergency. The COVID-19 Related Measures Act gives Cabinet extensive powers with meagre safeguards. The government sometimes needs additional powers to respond to emergencies. But that shouldn’t override the need for good governance and accountability to both the public and the legislature.
 Government in this context refers to the executive council, a.k.a. Cabinet. Statutes passed in the legislature delegate law-making to the Lieutenant Governor in Council (all of Cabinet) or to a specific Cabinet Minister.
 This is because the process is very different; for the most part, regulations can be developed in secret by government, aren’t subject to a vote in the legislature, and only need to be published after they are approved.