Tag Archives: New Zealand

Dean Knight: Report from New Zealand: MMP Review, Constitutional Review, and Legislative Disclosure

Knight - Headshot H1Some constitutional tid-bits from New Zealand from the last wee while.

Obvious developments to report on include two significant reviews of New Zealand’s constitutional and electoral arrangements:

  • the Electoral Commission’s independent review of the MMP electoral system; and
  • the Constitutional Advisory Panel’s consideration of constitutional issues.

But, sadly, neither of these look likely to led to any real change – at least in the short-term.

The one other development worthy of mention – mandatory legislative disclosure requirements designed to improve the quality of legislation – was introduced without fanfare but perhaps has greater potential for influence.

Some brief comments on the first two, along with a more detailed explanation of the latter, follow. 

A         Review of MMP: sensible suggestions forestalled

The Electoral Commission completed its review of the MMP electoral system and proposed a number of – in my view, sensible – tweaks to the electoral system that has been running for nearly 20 years in New Zealand. Amongst other things, it proposed changing the thresholds for the entitlement to party list seats (reducing the party vote threshold from 5%-4% and removing the controversial one electorate seat threshold). It also dismissed concerns about some features of MMP that had caused some public disquiet (dual electorate/list candidacy and list MPs contesting by-elections).

But any reform stalled – with the government indicating that it would not be actively progressing the recommendations, in the absence of parliamentary consensus or wide-spread agreement. Consensus or wide-spread agreement was, of course, unlikely. Changing the thresholds would be the death-knell for some smaller parties, and consequently would probably hamper the governing National party’s prospects of garnering a majority coalition at the next election. (On the stale-mate, see Geddis, “Stop Wasting Our Time” and Johannson, “National quiet on MMP changes”.) An opposition Labour MP recently had his Member’s Bill seeking to implement some of the review’s recommendations drawn from the ballot; however, it looks unlikely his Bill will have the numbers to pass.

Despite an independent review, political self-interest continues to present a barrier to updating and reforming the MMP electoral system in the light of years of practice and experience.

B         The constitutional review: a long conversation, beginning not ending

The Constitutional Advisory Panel also reported on its consideration of constitutional issues – or, rather, “The Constitutional Conversation”. Unsurprisingly it lacked tangible recommendations for reform.

The independent panel had been charged with considering a range of important constitutional issues, including a written constitution, term and composition of parliament, human rights protections, the Treaty of Waitangi and other issues relating to Crown-Māori relations.

The process of wide-spread public engagement by the independent panel was impressive, and stirred up quite a lot of activity and debate about matters constitutional. (Even, for example, a two-day workshop I was involved in, where 50 young people drafted a new constitution from scratch!) Over 5,000 submissions from a wide-range of people and groups were received.

But the Panel’s final report tended to only recount the (divided) public opinion on the issues, rather than generating concrete suggestions for reform. Firm recommendations were quite limited and process orientated:

  • the continuation of the constitutional conversation generally;
  • the inevitable call for greater civics education;
  • further work and consultation in relation to particular issues; eg, the role and status of the Treaty of Waitangi, a longer parliamentary term, and, notably, strengthening the NZ Bill of Rights Act (including socio-economic rights; entrenchment; enhanced judicial remedies).

Given the mammoth task the Panel was charged with, the diluted response was perhaps not unexpected. The government’s response to the report is due later this year.

C         Legislative Disclosure Requirements: unheralded but significant

Modest in nature, but perhaps with significant potential, one other initiative is of some constitutional interest. In the middle of last year, Cabinet quietly issued a circular on new vetting and disclosure requirements for government legislation (CO(13)3).

“The government wants to ensure that its policies get translated into legislation that is robust, principled and effective. … The requirements draw on existing expectations about what makes good legislation to:
- bring attention to specific features of a piece of proposed legislation and/or the key processes through which it was developed and tested;
- make this information publicly available in an accessible and cost-effective way; and
- thereby facilitate greater and more effective scrutiny of that legislation by Parliament and the general public.
The increased provision of information, and scrutiny of that information, is expected to improve legislative quality over time by increasing the attention given to follow good practices during the development of legislation.”

The regime builds on other legislative vetting, such as the regulatory impact analysis and reporting on consistency with the NZ Bill of Rights Act and seeks to pull together information useful to those scrutinising legislation. It includes a mixture of the elaboration of the policy objectives, disclosure of testing and analysis, and explanation of consistency with a range of standards and norms. (Compare some of the recent work proposing legislative standards for Westminster: eg, House of Commons PCR Committee “Ensuring standards in the quality of legislation” and Caird, “A Code of Constitutional Standards”.)

The norms and standards which trigger disclosure are pretty well-established and, in a large part, echo the Legislative Advisory Committee’s long-standing Guidelines on the Process and Content of Legislation. Disclosure statements, prepared by departments based on a set template, are expected to explain the policy background, set out details of consultation and testing, and report on the following matters:

  • consistency with New Zealand’s international obligations
  • consistency with the government’s Treaty of Waitangi obligations
  • consistency with the New Zealand Bill of Rights Act 1990
  • creation, amendment or removal of offences, penalties and court jurisdictions
  • privacy issues
  • compulsory acquisition of private property
  • charges in the nature of a tax
  • retrospective effect
  • strict liability or reversal of the burden of proof for offences
  • civil or criminal immunity
  • significant decision-making powers
  • powers to make delegated legislation
  • other unusual provisions or features.

Disclosure statements must be made publicly available, through a central repository, when the relevant Bill is introduced into Parliament, and later amended, if any substantive amendments are subsequently made to the Bill (see www.legislation.disclosure.govt.nz). Initially deployed under a Cabinet circular, the government’s intention is that the disclosure regime subsequently be enacted in legislation.

The disclosure regime has its genesis in a number of failed efforts to enact aggressive and enforceable legislative standards, driven mainly by the small, right-wing ACT party which is presently a member of the coalition government. It proposed a Regulatory Standards Bill, which would have seen the courts being given some powers to enforce prescribed standards (an interpretative direction similar to those found in human rights legislation, as well as an express power to issue declarations of inconsistency). However, the proposal proved controversial, particularly the loaded legislative standards proposed and judicial enforcement (see eg Ekins, “Regulatory Standards in New Zealand; Treasury, “RIS: “Regulating for Better Legislation”; Thwaites and Knight, “Administrative Law Through a Regulatory Lens”). A compromise was eventually reached where improvements would instead be made at the departmental and parliamentary level. From that came this enhanced and comprehensive vetting and disclosure regime.

Will the disclosure regime improve things though? Time will tell.

There is some reason to be optimistic. Anecdote and intuition suggest that pre-parliamentary legislative vetting pays dividends (although it is difficult to measure). And, like regulatory impact statements and Bill of Rights consistency-reports, disclosure statements will provide politicians and interested parties with ammunition against problematic legislative provisions. Witness, already, disclosure statements being deployed a number of times in the critique of Bills by parliamentarians and commentators.

But one weakness is that the disclosure regime is not directly interwoven into the parliamentary process or given institutional support within Parliament itself. Its impact would be stronger if, for example, a specialist select committee was charged with assessing compliance (much like the non-partisan and respected work of Regulations Review Committee in relation to delegated legislation). Otherwise, whether the disclosure regime improves the quality of legislation will depend whether it is taken seriously by parliamentarians and the extent to which it melds itself into the constitutional culture. Or whether it becomes merely a perfunctory, “tick-box” exercise. We will see.

Dean Knight is a Senior Lecturer in the Faculty of Law, Victoria University of Wellington, New Zealand.

 

(Suggested citation: D. Knight, ‘Report from New Zealand: MMP Review, Constitutional Review, and Legislative Discloure’ U.K. Const. L. Blog (10th March 2014) (available at: http://ukconstitutionallaw.org/)).

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Filed under Comparative law, Constitutional reform, New Zealand

Dawn Oliver: Parliamentary Sovereignty in Comparative Perspective

oliver

I Parliamentary sovereignty in other countries

 In this post I defend the absence of judicial strike down powers in the UK by exploring the ways in which other countries besides the UK manage to function well as liberal democracies without courts enjoying strike down powers, and looking at some of the negative aspects of the USA system, which is sometimes held up as a model to which the UK should look.

A doctrine of parliamentary sovereignty in the particular sense that the courts will give effect to legislation passed by the Parliament on any subject matter, even if it is ‘unconstitutional’, is not unique to the UK. It applies in common law based New Zealand which – like the UK – does not have a formally entrenched written constitution (though a 75% majority in a referendum is required to certain aspects of the electoral system). It also applies in some of our Northern European neighbours, notably Finland, Sweden and the Netherlands.

New Zealand

Politics in New Zealand resembles that of the UK in a number of respects, including the development of constitutional conventions of political restraint in relation to the constitution and the cultivation of good relations between the courts, the Parliament and the executive (M. Palmer ‘Open the door and where are the people’ The white population of New Zealand is relatively homogeneous and cohesive. Special measures – the Treaty of Waitangi – protect the Maori.

The New Zealand Parliament enacted a Constitution Act in 1986 which describes the country’s constitutional arrangements but leaves the traditional doctrine of parliamentary sovereignty broadly in place. The principal purpose of the 1986 Act was to patriate the New Zealand constitution by breaking its links with and dependence on the United Kingdom’s legal system.

The constitutionality of laws in New Zealand, not being protected by American-style judicial review, is promoted in a range of informal ways. In 1986 Minister of Justice, later Prime Minister, Geoffrey Palmer established a non-statutory Legislation Advisory Committee. The Committee is serviced by the Ministry of Justice and generally meets every six weeks. Its terms of reference are as follows:

(a) to provide advice to departments on the development of legislative proposals and on drafting instructions to the Parliamentary Counsel Office;

(b) to report to the Attorney General on the public law aspects of legislative proposals that the Attorney General refers to it;

(c) to advise the Attorney General on any other topics and matters in the field of public law that the Attorney General from time to time refers to it;

(d) to scrutinise and make submissions to the appropriate body or person on aspects of Bills introduced into Parliament that affect public law or raise public law issues;

(e) to help improve the quality of law-making by attempting to ensure that legislation gives clear effect to government policy, ensuring that legislative proposals conform with the LAC Guidelines and discouraging the promotion of unnecessary legislation.

Its members include the President of the Law Commissioners, academics, practising barristers, judges and parliamentary counsel and civil servants. While it has no delaying power and it is open to the government to ignore its reports, it is assumed to have an effect upstream in government during the preparation and then the parliamentary processing of bills. It is very rare for the New Zealand Parliament to pass laws that would be regarded as ‘unconstitutional’. I shall return to lessons that may be drawn from the New Zealand approach in due course.

Sweden, Finland and the Netherlands

Doctrines of parliamentary sovereignty in the sense that the courts may not hold an act passed by the primary legislator to be invalid as being ‘unconstitutional’ also operate among some of our Northern European neighbours (see Jaakko Husa‘ Guarding the Constitutionality of Laws in the Nordic Countries: A comparative perspective’ in 48 American Journal of Comparative Law, 2000, p. 345). Practice in these non-common law, small country jurisdictions may seem of little relevance to the UK, but we share a number of important and influential characteristics with them which can cast light on how they, and the UK, manage quite well without constitutional review by the courts.

There is very little American or German style ‘judicial review’ of legislation in Sweden: judicial review is only permitted if the conflict with the Constitution or another higher law is ‘clear’ or ‘manifest’ (see Thomas Bull ‘Judges without a Court:  Judicial Preview in Sweden’ in T. Campbell, K. D. Ewing and Adam Tomkins The Legal  Protection of Human Rights: Sceptical Essays, Oxford, Oxford University Press, 2011;  Lars-Goran Malmberg in X. Contiades, ed. Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA, Abingdon, Routledge, 2012); in Finland there is none (see Jaakko Husa The Constitution of Finland, Oxford, Hart Publishing, 2011; Tuomas Ojanen ‘Constitutional amendment in Finland’ in Contiades ed, above; M. Suksi ‘Finland’ in Oliver and Fusaro, How Constitutions Change, Oxford, Hart Publishing, 2011; Kaarel Tuori in T. Campbell, K. D. Ewing and Adam Tomkins The Legal Protection of Human Rights: Sceptical Essays, above). These countries rely substantially on pre-legislative, abstract scrutiny – preview – of bills by special parliamentary committees: for instance the important and highly regarded Constitutional Committee of the Finnish Parliament; and, in the case of Sweden, on the work of its extra-parliamentary legislative committees in preparing proposals for legislation, and its Law Council, an official independent body similar to the French Conseil d’état or the New Zealand Legislation Advisory Committee, which scrutinises and reports on bills.

The Netherlands also lacks judicial review of Acts for constitutionality by the courts: this is forbidden by article 120 of the Constitution (see C A J M Kortmann and P P T Bovend’Eert The Kingdom of the Netherlands: An Introduction to Dutch Constitutional Law, Boston, Kluwer Law and Taxation Publishers, 1993). The Netherlands system relies on its Council of State to ‘control’ [scrutinise] and report on bills before they are passed. Its parliamentary committees are weak.

Each of the ‘preview’ bodies in these three countries includes lawyers in its membership – judges, academics or practitioners – and in some respects they adopt formal procedures which resemble those of the courts: hence the phrase ‘judicial preview’ may be applied to them, though they are none of them ‘courts’. In summary, each of these countries has developed a system of constitutional preview involving extensive consultation about and expertly advised non-partisan scrutiny of legislative proposals at a number of stages in the legislative process which has proved effective in preventing the making of ‘unconstitutional’ laws.

Despite the restrictions on or absence of judicial review for constitutionality only seldom, if at all, are laws passed which seriously conflict with constitutional principles in these countries. (Readers may be thinking that ‘seldom’ is not as good as ‘never’; and why does only ‘serious’ conflict matter? Perfection is unachievable in these matters. Is it the fact that bad laws of a constitutional nature have never been passed and given effect by the courts under their written constitutions in countries with judicial review? Surely not. (I shall consider the position on this issue in the United States briefly below.) On the other hand the Netherlands is a monist system and thus treaties, including for instance human rights treaties, have direct legal effect and give rise to rights that individuals may enforce in the courts. Thus there is in practice a form of judicial review of provisions in Acts which a court in the Netherlands may ‘disapply’ in case of incompatibility with treaty provisions, some of which are ‘constitutional’ in nature.

Sweden and the Netherlands, like the UK, are constitutional monarchies: they have evolved continuously over at least two centuries gradually subjecting the exercise of formerly wide powers by the head of state and government to legal and conventional constraints. The Constitution of Sweden dates from the Instrument of Government, 1809. The Constitution of the Netherlands as an independent state and monarchy dates back to 1814. Finland was part of Sweden until it became a Russian Grand Duchy – similar to a monarchy – of Russia in 1809. The Finnish Constitution of 1917-1919 was drafted on the assumption that the country would be a monarchy or German Grand Duchy, but this became impossible after the defeat of Germany in World War I and Finland turned to electing a President who enjoyed some powers of a King. Thus although the Finnish Head of State is a President the country has retained some of the traditions of continuity that constitutional monarchies possess ( see Seppo Hentila in The Parliament of Finland (Helsinki, The Parliament of Finland, 2000) pp. 35-45; Jaakko Husa,  above.)

Each of these countries has a parliamentary executive, thus allowing constitutional traditions and conventions of responsible and responsive government to evolve and regulate the relations between the parliament and the executive in ways that are not possible in non-parliamentary, presidential systems; each has a fairly homogeneous population most of whose members share senses of common identity and common interests. Where, as in the Aland Islands of Finland, a population has a separate identity, special arrangements for their protection have been made. These countries have fairly consensual political traditions (see for instance Arend Lijphart, The Politics of Accommodation: Pluralism and Democracy in the Netherlands, 2nd edn. , Berkeley: University of California Press, 1975, on The Netherlands), and there are cultures of non-partisan approaches to constitutional matters or political traditions of pragmatic compromise: these tendencies may be reinforced by the fact that each uses a system of proportional representation in elections. The Finnish Constitutional Committee and the Swedish and Netherlands Councils of State act in quasi-judicial ways, taking advice from lawyers, often academics, and  evidence, formulating their opinions in terms of constitutional legality, and generally adopting non-political positions.

Where a non-partisan approach to constitutional matters does not exist in a substantial section of the population of a state, where for instance a population is seriously divided on class, racial, sectarian, tribal or religious grounds, non-partisan politics, especially in relation to minorities and constitutional matters, may be impossible: experience in Northern Ireland, with its divided unionist and nationalist communities, in the middle of the twentieth century illustrates the point. In such countries there may well be a need for a judicially enforceable Constitution –and/or international agreements to resolve conflicts – as are provided for by the Northern Ireland Act 1998 and the Belfast Agreement (Cm 3883, 1998).

The UK shares many characteristics with New Zealand, Sweden, Finland and the Netherlands including evolution of constitutional arrangements over many years and parliamentary executives.  Of course, the UK does not have a tradition of consensual party politics or coalition government. This may be due to the first past the post electoral system and to the fact that British politics retains elements of a class system, which in turn are reflected in some of the policies of the main political parties: class is less important in New Zealand and our Northern neighbours than in the UK. The UK does however, I suggest, have cultures and traditions that are hostile to partisan, and in favour of non-partisan, constitutional politics – again, Northern Ireland has been an exception: there consociationalism now provides a new form of consensus politics. But among the general public and in opposition parties opposition to partisanship in constitutional politics is deeply embedded in Great Britain.

It is broadly agreed and understood among Westminster parliamentarians and among the general public that constitutional change should not be brought about with a view to benefiting the party or parties in government or their supporters; rather constitutional changes should promote honestly held views about the public interest and where the balance between individual rights and conflicting public interests lies. Allegations of partisanship are of course made, especially by opposition parties and the critical press, when constitutional changes are under consideration. But Governments proposing change in the UK will never admit to partisanship: if they were to do so this would attract general public disapproval.

Partisan party political considerations no doubt influence the priority given to some proposals for constitutional change over others: commitments by the Labour government that was elected in 1997 to devolution to Scotland and Wales were no doubt influenced by fear of the Scottish National Party and Plaid Cymru winning over Labour voters if no such promise was made. That consideration does not however of itself detract from the merits of devolution, which are based in senses of shared national and regional identities and desires for government in these areas to promote general interests within each territory and for public servants to prioritise the interests of their populations, and not sectional interests.

This non-partisan understanding about constitutional change in the UK may exist because each government is an opposition in waiting and each opposition party is a government participant in waiting. The electoral system operates so that there are regular changes of government. It is not therefore in the interests of either government or opposition parties to concede a right to the others to use their power in relation to the constitution for party political advantage without any public interest justification. The terms of such debates take for granted that constitutional change should be non-partisan.

To sum up, nowadays the systems in New Zealand, Sweden, Finland and the Netherlands, and in the UK, include informal procedures, legal and political cultures and traditions which enable their constitutional arrangements to function reasonably well and generally without discriminating against parties and classes of people – without judicial strike down powers.

II Countries in which the courts may disapply or strike down legislation: the case of the USA

As is well known doctrines of parliamentary sovereignty in the specific sense that the courts will apply Acts passed by the Parliament regardless of their wisdom, workability or constitutionality do not apply in many countries with written and entrenched constitutions: the Constitution itself may contain clauses which limit the legislator’s power to make certain laws, for instance laws which interfere with federal principles or constitutionally protected human rights, or the independence of the judiciary either forever (eternity clauses, as in the German Basic Law) or unless and until the text of the Constitution is amended in accordance with special procedures such as two thirds majorities in the legislature and assent by three quarters of the states (as in the USA), referendums (as in Switzerland) and so on. And in those countries the courts – either all courts, or a Constitutional or Supreme Court – may disapply (in a concrete case) or strike down (for universal effect) legislation passed by the legislator/Parliament which breaches the Constitution: the USA and Germany are well known examples of countries in which a strike down power exists, but this is the case in very many liberal democracies.

The USA

The USA is an interesting example of how a system based on the common law has evolved differently from that of New Zealand and the UK and its Northern European neighbours. The USA was formed in a revolution and rejected the hereditary monarchy; it introduced instead an elected, rather monarchical, Presidency many of whose powers are very broad and ill-defined in the Constitution, legally controlled to an extent by Congress and by judicial review by the Supreme Court – but not, politically, by conventions. Other presidential powers are so constrained by Congress, in which the President may not have a majority, that it becomes almost impossible for even the most basic new laws to be passed without protracted political wrangling.

Why is this not the case in the UK – and in New Zealand and Canada and other Commonwealth nations? (s ee for instance T. Kahana ‘Canada’, M. P. Singh ‘India’, and P. Rishworth ‘New Zealand’ in Oliver and Fusaro, eds, above). In these countries conventions have evolved over time to deal with the fact that the Crown was not subject to judicial review – individual ministerial responsibility to Parliament being the most significant of these conventions. No such evolution took place in the USA because, the system being presidential rather than parliamentary, no confidence relationship exists between the President and Congress, and because all the ground rules are assumed to be contained in the Constitution and the decisions of the Supreme Court: in this respect the USA is a highly positivist system. The fact that the USA took a different and ‘non-conventional’ route from that taken by the UK and many Commonwealth countries and many other constitutional monarchies may go some way to account for the development of constitutional judicial review in the USA and in other states with executive presidencies, and for its absence in the UK and its legally related cousins.

The positivist approach and the absence of political conventions that constrain the exercise of executive power may also account for the fact that neither party political nor constitutional politics in the USA are consensual: the Constitution itself has been subject to political manipulation, the appointments to the Supreme Court have become politicised, and many executive and Supreme Court decisions on constitutional issues are wide open to allegations of political partisanship. Given that the United States Supreme Court’s constitutional judicial review jurisdiction is commonly looked to as an example to be followed by the UK, we should bear in mind that America is very different from the UK in many respects. It is not a parliamentary system. It is federal while the UK is a union state:  it is essential in a federation that the states are judicially protected against encroachment on their powers by the federal institutions. By contrast the devolution arrangements in the UK specifically preserve the UK Parliament’s sovereignty. America’s political culture is even more aggressive than that of the UK and far less civil in its political and legal affairs: incivility is recognised as a problem in the USA (see for instance Susan Herbst, Rude Democracy: Civility and Incivility in American Politics,  Philadelphia, Temple University Press, 2010; Dr Leslie Gaines-Ross ‘Incivility is harming America’s reputation’ at http://reputationxchange.com/2011/06/21/incivility-is-harming-americas-reputation/) whereas it is not – so far – seen to be a real problem in UK politics and legal practice.

The US Supreme Court has of course a positive record in relation to the Constitution, in particular human rights, in some areas, including the desegregation of schools (Brown v Board of Education 347 US 483 (1954)), and abortion (Roe v Wade 410 US 113 (1973). American arrangements are not, however, by any means watertight guarantees of human rights or good government (see generally T. Campbell, K.D. Ewing and A. Tomkins The Legal Protection of Human Rights: Sceptical Essays, above), and this should be borne in mind by those arguing for the adoption of constitutional review in the UK. No system is watertight. The USA Constitution and the Supreme Court’s role in interpreting and upholding the Constitution, and the political and public cultures there have not prevented the following:

a)     Slavery (abolished by the Thirteenth Amendment, 1865; compare the ending of slavery throughout the British Empire by Act of Parliament in 1833, and its ending at common law in Somersett v Steuart (1772) 20 St Tr 1 (England) and Knight v Wedderburn  (1778) Moor 14545 (Scotland)).

b)    Racial segregation (upheld by the Supreme Court  in Plessy v Ferguson  163 US 537 (1896), but later declared unconstitutional by the Supreme Court in Brown v Board of Education 347 US 483 (1954); the move to constitutionally required integration came with the Supreme Court decision in Green v School Board of New Kent County  391 US 430 (1968)).

c)     Discrimination (phased out in a series of Civil Rights Acts in 1964, 1965 and 1968).

d)    The denial of voting rights to slaves (ended by the Fifteenth Amendment, 1870, which guaranteed the right to vote without regard to race) and women (the Nineteenth Amendment, 1920, completed the extension of the franchise to women, providing that the right to vote could not be denied ‘on account of sex’).

e)     Denial of many labour rights (Lochner v New York 198 US45 (1905)).

f)     Prohibition (established by the Eighteenth Amendment in 1920, ended by the Twenty First Amendment in 1933).

g)     The race based gerrymandering of district boundaries (found to be unconstitutional by the Supreme Court in Gomillion v Lightfoot 364 US 339 (1960); see also Miller v Johnson 515 US 900 (1995) and Hunt v Cromartie 532 US 234 (2001). Partisan gerrymandering continues).

h)    The widespread use of the death penalty,

i)      The upholding of unfair campaign financing practices (Buckley v Valeo 424 US 1 (1976); Citizens United v Federal Election Commission 558 U.S. 310 (2010)).

j)      Resolution by the top court of a major presidential election dispute in favour of the candidate who received fewer votes than his opponent, reinforcing the incentives for a President to pack the Supreme Court with sympathetic judges (Bush v Gore 531 US 98 (2000)).

k)    Detention of suspects without trial off-shore for lengthy periods.

Such problems should be borne in mind by those encouraging the UK and its courts to adopt US style judicial review, especially if they are encouraged to do so unilaterally and without a mandate in the form of legislation passed by Parliament or the adoption of a written constitution for the UK. A move to judicial review of legislation in the UK could well undermine the positive pro-constitutionalism, non-partisan aspects of the political and governmental culture.

III Concluding remarks

Of course other countries with entrenched written constitutions and Constitutional or Supreme Courts exercising judicial review of Acts may have different experiences of the workings of their arrangements. Such a system works well in Germany, for instance. But each has its own history and political and legal cultures. These should not be overlooked when fundamental changes to the British arrangements by virtue of unilateral and thus irreversible assumption of a strike down power by the courts is contemplated or argued for. Hints by some of the judges in Jackson v. Attorney General ([2006] 1 AC 262) to the effect that the courts may exercise a reserve power to refuse to give effect to a provision in an Act that was contrary to the rule of law should ring alarm bells. If the UK were to adopt an entrenched written constitution providing for a Supreme or Constitutional Court with strike down powers the controversies about such powers would not go away. But at least the Court could point to the Constitution as granting it that power. Our current courts cannot point to any such legitimating source: they should not assume such a power.

Dawn Oliver is Emeritus Professor of Constitutional Law at University College London. 

 Suggested citation: D. Oliver, ‘Parliamentary Sovereignty in Comparative Perspective’ UK Const. L. Blog (2nd April 2013) (available at http://ukconstitutionallaw.org)

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Dawn Oliver: Parliamentary Sovereignty: A Pragmatic or Principled Doctrine?

Imagine that Parliament has recently passed a provision authorising the indefinite detention without trial of suspected terrorists. The measure was passed during a public panic about terrorism. Public opinion and the press and parliamentarians of the party in government which promoted the legislation were strongly in favour of using such powers. The Home Secretary orders the detention under that provision of suspect A. A applies to the court for release on the ground that the provision in the Act is contrary to fundamental common law principles and the European Convention on  Human Rights. The court finds that the Act is indeed defective in these ways, that compliance by state bodies with fundamental common law principles and the ECHR is a requirement of the rule of law (as it is understood by the courts), a constitutional principle which binds all bodies including Parliament.   The court orders the minister to rescind his order for the detention of A and orders the prison governor to release A.

What would happen if the minister refused to obey the court order? It would be easy to reply: ‘The minister would be committed for contempt of court if he refused to release or order the release of the suspect, of course’, implying that this is an obvious answer to an obviously stupid question. But the implications of such a finding for the relationships between politicians and the courts need to be thought through before such an answer is accepted.

Our system, particularly because we lack a written constitution which is considered by the institutions of government and by the public to legitimate such activities of the courts, depends for its working in part upon mutual respect between institutions, particularly between the courts on the one hand and Parliament and executive bodies on the other. Lord Carswell had this in mind in his speech in the Jackson case when he referred to the mutual respect which has long existed between the legislature and the courts, and he expressed reluctance to endanger that tradition.

According to M v Home Office, a court might, having made an order which a minister disobeyed, just declare the minister to be in contempt. A mere declaration would not do the court’s authority any good at all in this hypothetical situation. It is unlikely that the press or the members of the House of Commons would take the court’s side and press the government to respond positively to the declaration. If the declaration were ignored, the lesson that the executive learned would be that it can get away with such responses to the courts. Would we want that?

Alternatively the court could commit the Home Secretary to prison for contempt. The Minister of Justice might then order the prison governor to release the Home Secretary on the basis that it was unconstitutional, anti-democratic and unlawful – a breach of the rule of law as understood by politicians – for the court to refuse to give effect to an Act of Parliament. The prison governor might obey the Minister of Justice and release the Home Secretary while continuing to detain A, and so himself be committed for contempt, along with the Minister of Justice.  The battle would continue, with press and public opinion probably behind the ministers.

So such a court order might turn out not to be practically enforceable if resisted by government on the ground that it was not legitimate for the courts to change the law unilaterally in such a way. Or, if the order was enforced, the backlash might be that Parliament legislates to politicise the judicial appointment system, the courts could then be packed with judges sympathetic to the government, the Court Service could come under ministerial directions as to the deployment of judges and the listing of cases so as to ensure that ‘unreliable’ judges did not sit on certain kinds of case, ouster clauses could become commonplace. And so on. I think the courts would be defeated, and in the end the Supreme Court would exercise its power under the Practice Statement of 1966 to reverse its position and reinstate the doctrine of parliamentary supremacy. But by then untold damage would have been done to the respect in which the courts are held in government, in Parliament and by the general public and to good relations between those institutions. The rule of law itself (as generally understood in legal circles) would have been weakened. The culture would have changed.

The relationship between the executive and the courts in the UK, lacking as it does a written constitution which defines that relationship, depends upon reciprocity, trust, cooperation – the basic elements of human social interaction.  Any system of government involves such interaction. If those collapse then the very constitutional system itself might collapse into recurring conflicts between the courts and the executive, tit for tat battles, ostracism of the courts by ministers, and mistrust. It is by no means certain that the rule of law would win over politics and parliamentary supremacy in such a situation.

But, you will be thinking, surely this hypothetical is fanciful: normally ministers do obey court orders. Yes – and that is part of the culture of the rule of law. But if the courts were to challenge parliamentary supremacy, ministers would be able to invoke a whole lot of arguments in support of their refusal to obey the court, arguments which do not apply in relation to other cases – democracy, separation of powers, etc. Indeed it is likely that there would be a great hue and cry against the courts not only from the government, but from MPs, the press and the public. In my view therefore it could well be extremely unwise, damaging to the authority of the judiciary and the rule of law itself and to the stability of our constitutional arrangements, and counter- productive for the courts to strike down a provision in an Act, however much it is contrary to some of the elements of the rule of law and other constitutional ‘principles’. Bear in mind that the duties of judges are not limited to upholding individuals’ rights. They include ensuring the practical working of constitutional arrangements, for instance relationships with the EU and between the UK and devolved bodies, which in turn facilitate the rule of law. There are in other words respectable consequentialist reasons for judges in the UK accepting parliamentary sovereignty and holding back from making judgments that might be impossible to enforce against the executive in such a nuclear option situation, especially when we take into account the non-legal environment in which government and Parliament operate in the UK and which uphold constitutional principles.

So in my view a ‘principle’ that the rule of law is the controlling principle and might entitle courts to disapply statutory provisions – as Lord Hope indicated in Jackson – would come up against the typical, pragmatic and wise English response: that is all very well in principle and theory, but what about the practice? The practice of striking down legislation in our unwritten constitution and constitutional culture would not work.

Thus I suggest that an important rationale for the British courts’ recognition of Acts of Parliament as the highest form of law is based in comity between institutions and workability: pragmatic principles established over centuries that the courts will refrain from questioning the legal validity of Acts passed by the UK Parliament, and members of the two Houses of Parliament will respect the courts and their decisions and will not seek to undermine them and the rule of law.

I suspect therefore that the dominant though unarticulated reason why courts in the UK accept parliamentary sovereignty is that it represents a way of avoiding a conflict between the courts and the executive which the courts could not win. It could well be different if the UK had a written Constitution which mandated the courts to refuse to give effect to ‘unconstitutional’ laws. But that is not the current position.

This is not something that the judges, or others as far as I know, have discussed publicly. But Lord Justice Stephen Sedley had the following to say in his LRB review of Vernon Bogdanor’s book The New British Constitution (2009).

‘…what would happen in real life if the higher courts treated … a withdrawal of their jurisdiction [by a provision in an Act which ousted judicial review of a tribunal’s decisions on asylum claims] as unconstitutional, ignored it and allowed an asylum seeker’s appeal? The home secretary, not recognising their jurisdiction, would proceed with deportation, and the court would arraign him for contempt. How would it end? We do not know, and most of us would prefer not to find out’.

Sedley discussed the issue again in Ashes and Sparks (2011). Commenting on what would have happened if the ouster clause in the Immigration and Asylum (Treatment of Claimants) Bill had been passed, if the courts had refused to give effect to it, and if the Home Secretary had been found to be in contempt for disobeying their order, he wrote:

‘And then? There would be no winner, no famous victory even, in such a confrontation. Even so …. it was  not necessarily a bad thing that [the proposed ouster clause] had gone as far as it had: the government had realised that there were limits to what it could properly ask Parliament to do; constitutional lawyers had realised that the limits were less secure than they had thought, and the sky still seemed to be in place’.

Interestingly, in relation to our close constitutional cousin, New Zealand, Matthew Palmer has recently written that:

‘Institutionally, over the long term and particularly in New Zealand, the independence of the judiciary depends on the forbearance of the political branches of government. Cabinet and Parliament have the formal tools available in New Zealand’s constitution to undermine the independence of the judiciary if they wished: through appointments, dismissals, under-resourcing or restructuring various benches.’

Palmer suggests that the approach of parliamentarians is based in part on the high standing of the judiciary in public opinion; that standing could be damaged by a series of negative public reactions to judicial decisions and ‘… whether consciously or unconsciously, the judiciary, especially at the level of Heads of Bench and the Supreme Court, understands and should understand the importance of public opinion, according to a medium and long-term perspective, for the sustenance of its branch of government’.

Griffith was right in ‘The Political Constitution’ that many parts of our constitution (not all) are the outcome of conflicts. The restoration of parliamentary sovereignty would be the outcome of a conflict between the courts and the executive, but the courts would have lost authority and face in the course of that conflict.

Dawn Oliver is Emeritus Professor of Constitutional Law at University College London. 

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Dean Knight: Tid-bits from New Zealand: an election, a referendum, and a multi-party government policy programme

The new parliamentary year kicked off in New Zealand this week, following an election held late last year in the shadow of the Rugby World Cup.

A National-led, multi-party government was returned to power, with John Key continuing as Prime Minister. The National party won a record share of the party vote (47.3%, which translates into 59 MPs of the 121 MPs in Parliament). However, the coalition government’s overall majority in Parliament fell slightly as support for the minor parties in the coalition dropped (64 government MPs vs 57 opposition MPs, down from 69 vs 53 MPs following the last election).

After the election and the formation of government, there was little time for parliamentary business before the summer holiday. MPs return to serious business this week, under slightly revised Standing Orders (most notably, with new provisions regulating urgency and extended sitting hours, following growing concerns about the increasing amount of law-making being fast-tracked; see Geiringer et al, What’s the Hurry? (2011)).

Three matters from the election and new term of government are of some constitutional interest:

- the voting system referendum and subsequent review;

- the multi-party coalition/governance arrangements and collective responsibility;

- particular policy commitments (constitutional review, regulatory standards, part-privatisation of State-Owned Enterprises).

Each of these matters has an on-going constitutional dimension, which will be played out in this 50th term of New Zealand’s Parliament.

 Voting System Referendum and Review

As well as choosing their government, voters were also given the opportunity on election day to express their views on the current voting system.

The referendum process was a mirror image of the original referendum process adopted in 1992-1993 when New Zealand changed from the First Past the Post system (FPP) to the Mixed Member Proportional system (MMP).

Voters were presented with two questions:

A:            Should New Zealand keep the Mixed Member Proportional (MMP) voting system?
Yes / No

B:            If New Zealand were to change to another voting system, which voting system would you choose?
First Past the Post (FPP) / Preferential Voting (PV) / Single Transferable Vote (STV) / Supplementary Member (SM)

Like the original referendum, if there was a mood for change in the first part of the referendum, then the status quo would be run-off against the most popular alternative system in a subsequent binding referendum.

On election day, voters overwhelmingly endorsed MMP in first part of the referendum, securing 57.8% of valid votes — up from 53.9% in the 1993 referendum which originally saw MMP adopted. A significant endorsement for proportional representation.

In the second part, the old FPP voting system was the most supported alternative (46.7% of valid votes), with nearly double the support of the SM system endorsed by the Prime Minister and the main lobby group promoting change (24.1%). But, still, more people spoilt their vote in the second part of the referendum than supported FPP.

MMP’s victory in the first part of the referendum obviates the need for a subsequent binding referendum. However, the victory automatically triggered a review of aspects of the MMP voting system. A public consultative review must now be undertaken by the Electoral Commission, with a report due in October 2012 (see Electoral Commission review process).

The terms of reference include:

- the thresholds for a proportionate share of the party votes (presently 5% of the party vote or one electorate seat),
- the ratio of electorate seats to list seats,
- dual candidacy in an electorate and on a party list, and
- the ranking of party lists.

The number of MPs in Parliament and seats reserved for Māori are specifically excluded from review.

The Electoral Commission is set to release its discussion paper this month, with a couple of issues expected to be at the forefront. The thresholds for entitlement to party list seats (particularly the one electorate seat rule which sees an MP bring in other list MPs on their coat-tails even though their party fails to meet the otherwise applicable 5% threshold) have been subject to a lot of criticism from both the public and experts. There is also significant public disquiet about so-called “zombie” MPs – those MPs rejected in electorate seats but who return to Parliament via the party list. This will provide some impetus to change the rules presently allowing dual candidacy, although the views of experts on such a change are more equivocal. (For some literature assessing the operation of MMP and multi-party government in New Zealand, see (2009) 7(1) NZJPIL (Special Issue: MMP and the Constitution) and (2011) 63(1) Political Science (Special Issue: Coalitions).)

The Electoral Referendum Act 2010 does not address any change process following the report of the Electoral Commission, with any decision about what to do with the recommendations being left for Parliament. The recommendations and process which follows will be watched with great interest, particularly whether any changes to MMP will be taken back to the people for endorsement.

Governance Arrangements and Collective Responsibility

As mentioned, a National-led government was formed soon after the election, with support from the single MP United Future and ACT parties, along with the three-member Maori party.

The coalition – or, rather, “confidence and supply” – arrangements took the same form as those adopted by recent administrations. In return for a commitment to support the government on confidence and supply, support parties negotiated ministerial positions (outside Cabinet) and a number of policy concessions (see the separate but largely similar agreements agreed with United Future, ACT and Maori parties). Otherwise, the principal focus of the agreements is operational and relationship arrangements.

From a constitutional perspective, the most notable aspect of the governance arrangements is the approach to the tricky “unity-distinctiveness” conundrum that underlies coalition politics (see Boston and Bullock, “Experiments in Executive Government under MMP in New Zealand” (2009) 7 NZJPIL 1). In particular, collective Cabinet responsibility has been deliberately eroded under MMP to allow greater ability for support parties to express disagreement with governmental policies and decisions.

Loose – and progressively looser – solidarity rules have been adopted in governance arrangements to ensure support parties can distance themselves from some decisions of government so that they can maintain their distinctiveness (see LAWS179: “The (r)evolution of collective responsibility”).

The first departure saw the inclusion of “agree to disagree” provisions, where a support party could seek permission not to support a particular governmental policy.

Subsequently, a form of “selective collective responsibility” has been adopted, where collective responsibility only applies to ministers from support parties in relation to matters within their ministerial portfolios. Outside their portfolio responsibilities, they are entitled to wear their party – rather than ministerial – hat and may refuse to support decisions made by Cabinet (except, of course, on matters of confidence and supply, which they must still support in parliamentary votes). This circumscribed form of collective responsibility – for ministers from support parties, restricted to portfolio responsibilities – is now seen as routine and is recorded in confidence and supply agreements, along with the Cabinet Manual (see Cabinet Manual, cls 5.22-5.28).

But the practice appears to be still evolving further. There have been some instances in the last term of government where ministers from support parties expressed disagreement in relation to decisions made within their portfolio responsibilities – with such dissent being condoned by the Prime Minister. This hints at further loosening of cabinet collective responsibility. However, any evolution has not yet been reflected in the Cabinet Manual (which lags behind practice, like a dictionary: see Kitteridge, “The Cabinet Manual : Evolution with Time”) or the newly agreed confidence and supply agreements, which merely restate the principle of selective collective responsibility within portfolio responsibilities.

Prime Minister John Key generally adopts a relaxed attitude to dissent within his government, no doubt reflective of the fact that his coalition brings together minor parties with very different ideological leanings. It will be interesting to see whether this further modified approach is fortified under the present government’s tenure.

(As an aside, the loosening of the demands of collective responsibility has led some to again question whether collective Cabinet responsibility continues to have any constitutional character: see Joseph, Constitutional and Administrative Law in New Zealand (2007), p 750 (“it is a rule of pragmatic politics, not a constitutional convention”) and Geddis, “Decisions, dissent and the myths of collective cabinet responsibility”.)

Particular Policy Commitments (Constitutional Review, Regulatory Reform and Part-Privatisation of SOEs)

Three particular policy commitments within the confidence and supply agreements have some constitutional interest.

First, the commitment to a wide-ranging review of Constitutional Arrangements has been renewed in the confidence and supply agreement with the Maori Party. Originally included in last term’s agreement, a review was belatedly instigated last year under the co-chairship of Emeritus Professor John Burrows QC and Sir Tipene O’Regan (see Department of Justice, “Consideration of Constitutional Issues”). While little progress was made before the election, the Review’s mandate is confirmed and a reporting date of September 2013 has now been set.

The Review’s terms of reference are wide. Various electoral and parliamentary matters are slated for review (size of Parliament, parliamentary term – including the possibility of fixed terms, number and size electorates, and party-switching consequences for MPs). A number of contentious issues relating to the Crown-Māori relationship are included (such as Māori representation in Parliament and local government, and the place of the Treaty of Waitangi in New Zealand’s constitutional arrangements). These agenda items reflect key policy differences between the governing National party and supporting Maori party and the genesis of the review process – depending on one’s perspective, either to genuinely explore some compromise or to remove these issues from the political crucible. The Bill of Rights is also targeted for appraisal (particular entrenchment and the possibility of including property rights), as is the perennial question of a written constitution.

Rather oddly, the terms of reference avoid issues relating to the Head of State and republicanism (especially as officials in New Zealand’s Cabinet Office are coordinating the multi-realm efforts to amend the line of succession). This apparently stems from a governmental concern that republican issues might distract people from more important constitutional issues.  However, the government has acknowledged the republican question might still find its way into the Review, if there is a public appetite for discussion.

Earlier grand attempts to review constitutional arrangements petered out, partly due to a lack of cross-party support. Again it will be interesting to see if this review gathers greater momentum.

Secondly, the confidence and supply agreement with the ACT party breathes life into the Regulatory Standards Bill, albeit in a much diluted form. Earlier efforts by the ACT party in the last two terms of Parliament to advance a Bill insisting that new laws conform to “principles of responsible regulation” were widely condemned – including by Treasury, as the department responsible for such reform – and ultimately stalled (see Ekins, “Regulatory responsibility in New Zealand”.)

The ACT and National parties have agreed, however, to revise the Bill for enactment within the next 12 months. This Mark III version is to be based on the Treasury’s preferred alternative for regulatory reform (Option 5): strengthening Parliament’s own legislative quality and impact assessment processes. This shift in focus is welcomed, especially because the original Bill would have fundamentally reconfigured key constitutional relationships and placed the courts in an awkward position of adjudicating on the quality or merits of legislation.

But much work is still to be done to settle the suite of principles against which legislative quality is to be assessed (for example, the present suite is labelled by Ekins as “heterodox”). It seems strange to attempt to reinvent the wheel by generating controversial and loaded principles of regulation, when New Zealand has for many years had an excellent – more detailed, nuanced and respected – bible on legislative quality in the Legislative Advisory Committee’s Guidelines on the Process and Content of Legislation.

Thirdly, one of the central planks of the National party’s electoral platform was the part-privatisation of some State-Owned Enterprises. The National party negotiated on-going support from the ACT and United Future parties (but not the Maori party, which recorded its specific opposition) for the extension of a mixed-ownership model to three state utility companies and the government-owned coal mining company; that is, sale of 49% of the shares in these companies to the public, with retention of a 51% majority shareholding by the government.

Those plans took an interesting turn last week when it was revealed that the government was considering not carrying over the present Treaty of Waitangi clause into the new legal regime governing mixed-ownership.

The existing clause in the State-Owned Enterprises Act prevents the Crown from acting inconsistently with its obligations to Maori under the Treaty of Waitangi (and is supported by other provisions ensuring SOE land is preserved for return as part of the settlement of Treaty grievances). The incorporation of this Treaty obligation was a catalyst for the development of much of New Zealand’s modern Treaty jurisprudence and the rise in the Treaty’s constitutional gravitas (see Cooke, “The Challenge of Treaty of Waitangi Jurisprudence”,  Baragwanath, “NZMC v AG”, and Ruru (ed), In Good Faith). The Treaty clause therefore has great legal and symbolic significance, especially for Maori.

Unsurprisingly, the government’s proposal not to roll over the Treaty clause (or to otherwise tinker with it) has sparked outrage amongst many Maori and others. Protests took place at the Waitangi Day celebrations over the weekend. Claim were quickly lodged with the Waitangi Tribunal, alleging the proposed part-privatisation breached the Treaty.

While the government has the parliamentary numbers to proceed with part-privatisation, the question of how it navigates through the Treaty implications and tensions with its Maori party coalition partner will be interesting. It is early days at this point. But the issue will no doubt occupy the political and legal domains in New Zealand for much of the year.

Dean Knight is a Senior Lecturer at Victoria University of Wellington’s Faculty of Law, an Associate of the New Zealand Centre for Public Law, and a PhD candidate at LSE. 

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Richard Ekins: Regulatory responsibility in New Zealand

The Parliament of New Zealand has been invited to consider an important proposal for constitutional change – the Regulatory Standards Bill 2011 (“RSB”) – which aims to improve the quality of lawmaking and hence to reduce the regulatory burden on citizens.

The RSB is identical in all save name to the Regulatory Responsibility Bill (“RRB”) drafted and recommended by the Regulatory Responsibility Taskforce  in its Report of September 2009.  The Taskforce’s draft bill was the successor to an earlier Regulatory Responsibility Bill, introduced into Parliament in 2006 by Rodney Hide MP, and eventually rejected by the Commerce Committee.  This in turn was almost identical to that proposed by Dr Bryce Wilkinson in his Constraining Government Regulation, New Zealand Business Roundtable Discussion Paper, 2001, Appendix C, pp. 236-41.  Wilkinson served on the Taskforce.

The RRB (now RSB) has been welcomed by some business groups, most notably Federated Farmers and the  New Zealand Business Roundtable.  It has been trenchantly criticised by some academics (including me; see most recently this paper with Chye-Ching Huang) and rejected byTreasury (the lead agency responsible for advising on the Bill), as well as by almost every other government department or agency.  The Minister for Regulatory Reform, the Hon Rodney Hide, has made a virtue of this universal rejection, arguing it is just what one should expect from a measure that aims to force policymakers to be principled.

Why such opposition to the Bill?  What does it propose?  The RRB/RSB aims to rule out certain statutes and regulations as ‘unconstitutional’ by affirming eleven principles of responsible regulation and by introducing three mechanisms – certification, judicial declarations of incompatibility, and interpretation – to ensure legislation conforms to those principles.  In what follows, I outline the detail of the Bill and comment briefly on its merits.

The principles of responsible regulation

Clause 7(1) of the RSB sets out eleven “principles of responsible regulation” in paragraphs (a)-(k), grouped under six subheadings.

  • rule of law;
  • liberties;
  • taking of property;
  • taxes and charges;
  • role of courts; and
  • good law-making.

Clause 7(2) echoes s 5 of the New Zealand Bill of Rights Act 1990 and states that “Any incompatibility with the principles is justified to the extent that it is reasonable and can be demonstrably justified in a free and democratic society.”  It is these principles, duly limited, that are the focus of the three mechanisms.  Rather than outline them in full detail, let me just note several points of interest.

The bill affirms liberty, paragraph (b) stating that legislation should:

” …not diminish a person’s liberty, personal security, freedom of choice or action, or rights to own, use, and dispose of property, except as is necessary to provide for, or protect, any such liberty, freedom, or right of another person.”

Very many legislative acts diminish a person’s liberty or freedom of choice.  This principle bars the imposition of duties unless those duties are necessary to protect “any such liberty, freedom, or right of another” (the phrase omits “personal security”, although the later discussion, at paragraph 4.53 of the Report, implies that this is an oversight).  Imagine an Act like the Bakeshop Act 1896 (NY) that prohibits any person from employing another to work in a bakery for more than ten hours per day or sixty hours per week.  That Act would depart from paragraph (b), for it restricts the freedom of contract of employer (and employee), and is not necessary to protect any existing liberty or freedom of the employee (or any other person).  The legislators might attempt to justify their act by reference to the health of the worker or the need to protect him from economic exploitation.  It would be open to the courts to consider this rationale and to decide that the legislation is an unjustifiable limit on liberty.  This is of course precisely what took place in the infamous United States Supreme Court decision, Lochner v. New York 198 U.S. 45 (1905).  Enacting this principle opens the policy of almost every statute up to review on Lochner grounds.

The bill also states, in paragraph (c), that legislation should “not take or impair… property” unless this is necessary in the public interest and full compensation is paid, such compensation to be paid if practicable by those who benefit from the taking.  This principle seems plainly to be the main concern of those moving the RSB and its precursors.

The principle conflates takings and impairment.  The effect is that limiting how one uses property attracts full compensation.  The point of the principle is to make it very expensive to limit how property owners may act, for any property owner who suffers loss from regulatory change is entitled to be made whole.  Thus, if Parliament wishes to ban dangerous weapons, it must buy them.  Legislation imposing mandatory closing times on certain pubs would be an impairment attracting compensation.  And legislation criminalising prostitution would arguably be a taking of the goodwill of what would otherwise have been lawful brothels.  This principle smuggles in a doctrine of regulatory takings that is foreign to the New Zealand constitution (and is more radical than other jurisdictions).

The final four paragraphs (h)-(k) set out the principles of “Good law-making”.  Paragraph (h) states that legislation should not be made unless there has been consultation.  Extraordinarily, and quite contrary to the Bill of Rights 1688 (still good law in New Zealand) this subjects the adequacy of the parliamentary process itself to legal argument and judicial ruling.

The remaining three principles amount at best to the truism that one should not make law unless there is good reason to make law.  However, paragraph (j) states that legislation should produce benefits that outweigh its costs, which may wrongly prioritise cost-benefit analysis and lead to quantifiable outputs looming too large in the lawmaking process.

The certification regime

The primary mechanism for ensuring that legislation is compatible with the principles (subject to reasonable limits) is the certification regime.  Clauses 8 and 9 require various persons to certify whether the legislation is compatible with each of the principles and if not how it is incompatible and whether this is justified.  In respect of a Government Bill, the Minister responsible for the bill and the chief executive of the public entity that will be responsible for administering the resulting Act must certify the bill.

The chief executive does not have to state whether or why an incompatibility is justified if a Minister also gives a certificate under clause 8.  The reason for this, the Report states, is that the Minister is the appropriate person to judge whether a departure is justified (paragraph 4.106) and in such cases the chief executive’s role “is best limited to the proposal’s technical compliance with the principles set out in clause 7(1)”.  However, the final two principles require the chief executive to certify whether he or she thinks the benefits outweigh the costs and whether the legislation is the most effective, efficient and proportionate response available.  This means the chief executive must in effect certify whether he or she would enact this law.  The certification regime thus promises to grossly politicise chief executives and to arm them to veto government policy in a way that is flatly inconsistent with our constitutional arrangements.

Declarations of incompatibility

The bill introduces judicial declarations of incompatibility as a mechanism to support certification.  Clause 12 authorises the superior courts to declare that legislation is incompatible with the principles specified in s 7(1)(a)-(h), unless the incompatibility is justified under s 7(2).  Clause 13 of the bill provides that a declaration of incompatibility does not render the relevant legislation invalid.  The supporters of the RSB gesture vaguely towards the experience of the United Kingdom.  However, this this suggests experience to me that the proposed power might be very effective (although the imperative of conformity to international obligations is absent), but also risks illegitimately prioritising judicial analysis of the merits of legislation.

There are strong reasons of democratic principle and institutional competence to refrain from authorising courts to review legislation against these principles.  Interestingly, the Taskforce partly saw the force of these reasons, excluding the final three principles of good law-making from the jurisdiction on the grounds they were “unsuitable for judicial consideration, given the institutional limits of the adversarial process” (paragraph 4.124 of the Report).  This proves too much for determining whether legislation unreasonably limits liberty or property is equally unsuitable for judicial consideration.

The interpretive direction

The third mechanism is the direction in clause 11 that “[w]herever an enactment can be given a meaning that is compatible with the principles (after taking account of section 7(2)), that meaning is to be preferred to any other meaning.”  The Taskforce fails to justify this provision, saying only, in paragraph 1.20 of the Report, that “the existing judicial review jurisdiction would be enlivened by an interpretation provision”.  True, it would embolden litigators to argue that empowering statutes may be read to authorise only reasonable limits on liberty, or to entail compensation for impairment of property, or not to authorise any regulation that fails a cost-benefit analysis.  This would undermine many regulations in a highly uncertain, discretionary fashion.

Oddly, the interpretive direction is not limited to principles (a)-(h).  The courts must prefer a meaning of legislation that is consistent with all four principles of “Good law-making”, three of which the Taskforce elsewhere notes are unsuitable for judicial consideration.  The interpretive direction requires legal argument and judicial decision on these very issues.  This is almost certainly an oversight (I have pointed it out to members of the Taskforce and to Treasury a number of times since late 2009), yet the RSB remains unchanged.

The clause does not apply to legislation that post-dates the bill until ten years after its commencement in order to give lawmakers time to review and update the statute book.  The implication is that after ten years, it is sound for the courts to adopt novel meanings that depart from the understanding and intentions of the relevant lawmaker.  On this approach, clause 11 amends all statutes that pre-date the Act to the extent that the courts can give effect to novel meanings consistent with the principles of responsible regulation (as the courts understand them).  Parliament should not amend legislation in this reckless way.

Conclusion

The RSB is unconstitutional.  Many of the principles it affirms are heterodox and should not be justiciable.  The bill politicises chief executives, enabling them to undermine ministers.  It also authorises courts to review the detail of policy, illegitimately constraining Parliament and calling into question the validity of much secondary legislation.  It will be interesting to see whether New Zealand’s Parliament agrees.

Richard Ekins is a Senior Lecturer at the Faculty of Law, The University of Auckland.

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