The year Rodney's bounce will be tested

This is John Key’s crunch year. It is also Rodney Hide’s. New love has limits. Hard politics is an arranged marriage.

Hide is a mixture of bounce and bluster. The bounce gets things done. The bluster pumps him up big which might keep the small band of faithful hopeful, but at the risk, if punctured, of leaving him and ACT smaller (as do love trysts at taxpayers’ expense and loose talk about National at dinner).

Deputy Heather Roy underlined the conundrum at ACT’s conference at the weekend. True believers need proof the party’s principles — the elixir which will make the populace free and rich — are not being compromised. Sir Roger Douglas worried ACT will be “stranded in the middle ground” with Key’s cautious, pragmatic Nationalists.

In fact, Hide’s bounce has moved National ministers more than his five seats against Key’s 58 mathematically predicts. His Brash commission’s first report on matching Australia’s wealth was ignored (though future annual updates might be embarrassing) and his grand reform of local councils ended up in the margins. But three strikes and no parole for violent criminals scored high. Passports for extra-bright and slow learners to schools of “choice” establish the vouchers principle.

Most important, Hide got Bill English, no radical, to co-sign last August a radical directive to ministers and state sector chief executives to match new and existing law to a tough set of criteria. That is real bounce.

The aim is to sharpen the quality of policy analysis for new law and the quality of translation of that analysis into law and to expose the intrusion of political preference into policy and the consequences for economic performance.

But Hide wants to go far further. He wants constitutional change: to embed in a “super-statute” the ideas underlying that August directive and to get a tough cap on government spending. The crunch for Hide and ACT this year is how far he can get National ministers to go down those tracks.

A taskforce led by former Treasury Secretary and ACT activist Graham Scott last October proposed greatly expanding Hide’s 2006 Regulatory Responsibility Bill so that it would test all legislation and regulation against a set of principles, most notably the sanctity of property rights (with full compensation if taken by the state in the public interest) and a “full” benefit-cost test. It would require ministers and chief executives to certify their laws satisfy those criteria or explain why they don’t and would mandate the courts to rule whether the criteria are met and reinterpret all statutes in light of those principles.

This amounts to constitutional change, just as the 1990 Bill of Rights protecting civil and personal rights was constitutional change. Scott on Saturday likened his taskforce’s bill to the Bill Rights.

One line of academic legal commentary, by Auckland University law dean Paul Rishworth, reckons that if the right to property is to be made a fundamental right, alongside those in the Bill of Rights — which include life, security of the person and freedom of conscience, expression, association and movement — it would be best put in the Bill of Rights rather than in a separate statute.

Set against this country’s past practice, that would be a big step, though one other jurisdictions have taken. And it might embolden advocates for protection of social rights — to a job or minimum standard of living or minimum quality of health, for example — to insist on their protection in the Bill of Rights or another bill. At the Australian constitutional conference in 1998 a minority argued this strenuously. Tino rangatiratanga advocates might logically join the queue.

Other academics, for example, Auckland law lecturer Chye-Ching Huang, worry that judges are not equipped to decide issues of “high policy” which in our constitution rest with Parliament. Justice Minister Simon Power, a critic of judicial comments on policy, would agree.

So for National ministers to go down the Scott/Hide route would be a very big step, one they judge would in any case be reversed by a future Labour-led government. More likely they will take a half-step, requiring a government to state its legislative and regulatory principles, against which it can be tested in public but not in the courts.

Much the same goes for a spending cap and the Taxpayers Rights Bill Hide wants in order to embed it. English in fact proposed a non-embedded version in the December budget policy statement. There will be work on this after the budget.

If the cabinet takes these more moderate steps will Hide be judged to have been blustering or bouncing? Too much bluster may mean he gets little credit for his bounce, without which these issues might not have got on the agenda.

This is the test year. How far he gets and how much credit he can convincingly claim will define how seriously his party is to be taken as a part of this government. And that will have implications for ACT’s long-term future.