Ministerial Power to Amend Primary Legislation
The Public Procurement Reform Bill is before the Finance Committee. Clause 27(1) allows the Minister of Finance, by regulation, to amend Schedule 3, which sets thresholds (currently 500,000 for goods and services) and exemptions for national security. Clause 27(2) adds that the Minister may 'make any consequential modification to this Act'. Clause 27(3) subjects regulations to the negative resolution procedure: they take effect immediately and are annulled only if Parliament rejects them within 40 days. The committee has 11 members: 6 government, 4 opposition, 1 independent. The independent member asks whether clause 27 crosses the line from delegated flexibility into an unconstitutional transfer of legislative power. The government points to similar clauses in two earlier statutes, neither of which was challenged. The opposition proposes an amendment requiring affirmative resolution and a sunset after three years. The chair asks for a legal note before the clause-by-clause vote.
1. As committee counsel, set out the constitutional test you would apply to clause 27 and apply it to the facts. Conclude whether the clause is likely to be upheld.
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The test has three limbs: (1) does the clause transfer an essential legislative choice, not merely technical detail? (2) are there adequate limits on the delegate's power? (3) is the parliamentary control proportionate to the power granted? Applying this: clause 27(1) lets the Minister change thresholds and national-security exemptions. Those are not purely technical; they allocate commercial advantage and can remove competition. But a limited power to update monetary thresholds may be permissible if capped and subject to affirmative resolution. Clause 27(2) is the vulnerable part: 'any consequential modification to this Act' has no substantive limit and allows the Minister to amend primary legislation, including possibly offences or remedies. The negative resolution procedure is weak because regulations take effect immediately and Parliament has only 40 days to reject them. The fact that two earlier statutes contained similar clauses does not cure the defect; unchallenged practice is not constitutional validation. I would advise that 27(2) is likely to be struck down or at least requires amendment, while 27(1) could survive with safeguards.
2. Draft three amendments that would address the constitutional concerns while preserving flexibility.
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Amendment A: replace 27(1) with a power to amend only the monetary amounts in Schedule 3, by no more than the annual inflation rate, and only after consulting the procurement regulator. Reason: keeps updates technical and bounded. Amendment B: delete 27(2) and replace with: 'The Minister may make regulations to make consequential amendments to Schedule 3 only, but may not amend this Act, create an offence, impose a fee, or remove a remedy.' Reason: prevents amendment of primary legislation. Amendment C: replace negative resolution with affirmative resolution and add a three-year sunset. Reason: Parliament controls the delegation and reviews it. Together these preserve flexibility for thresholds while satisfying the non-delegation concern.
3. The committee splits 6-5 along government-opposition lines on whether to remove clause 27(2). What should the chair do procedurally, and what should the report say?
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First, the chair should apply the standing orders on voting in committee. If the chair has only a casting vote and the votes are tied, the chair should not use it to defeat a legal concern without reasons; if there is no casting vote, the motion fails and clause 27(2) remains. The chair should ensure the legal advice is entered in the record. The report should record: the division, the legal opinion that 27(2) is likely unconstitutional, the minority view, and a recommendation that the House amend the clause at report stage. The chair should not suppress the legal advice. If the committee cannot agree, the report can state that the clause is reported without recommendation, but the legal risk must be explicit. This protects the House's ability to make an informed decision and preserves the record for judicial review.