While Bill English was busy telling you last week how, thanks to him, you are much better off this month, Simon Power was busy honing a bit of the constitution and busybody lawyers were busy telling us English, Power and Co are constitutional truants.
Cutting corners on constitutional niceties is an occasional characteristic of John Key’s cabinet. Example: Associate Minister of Local Government John Carter chaired the parliamentary committee on Auckland legislation in breach of a convention that backbenchers must chair committees.
So what? Our politicians and public have always been pragmatic constitutionalists. What works is what counts. From the mid-1940s to the mid-1980s the Economic Stabilisation Act gave the Minister of Finance near-plenipotentiary powers to regulate the economy.
In that tradition is the government’s Canterbury Earthquake Response and Recovery Act’s quasi-regal powers to override laws through Orders-in-Council, in order to get Canterbury fixed fast. It’s rule by ministerial fiat.
This has bothered 47 academics and the Law Society. The academics, including eminent expatriate jurist Jeremy Waldron, wrote that “over and over again history demonstrates that unconstrained power is subject to misuse” and that, with the best will, there can be “unintended consequences”. The Law Society complained the courts could not review ministers’ and officials’ acts nor grant restitution or compensation.
Within the Labour party there have been emotional exchanges in the same vein between MPs and some rank-and-filers. ACT’s John Boscawen worried about a trend to transfer decision-making powers from Parliament to ministers in contravention of the separation of the powers.
So why did Parliament vote unanimously for this draconian assault on our freedoms? Why did Attorney-General Chris Finlayson, ministerial guardian of the constitution, and Power, official constitution minister, not quaver in the cabinet room?
First, as Phil Goff said, it is not business as usual in Canterbury. A “swift and efficient response” is needed. There is no usable generic legislation at hand, though there is now talk of that.
Second, National had the numbers. The legislation was going to pass, fullstop. Labour or any other party opposing it risked a backlash from agitated and needy Cantabrians which could last till next year’s election.
So, third, Labour and the Greens tried to lop some rough edges and to some extent succeeded. The Bill of Rights and four other statutes are off-limits. Orders-in-Council have been shown to Labour in advance (though not changed); Labour has opposed one, on heritage. All Orders must go to Parliament’s regulations review committee (chaired by Labour’s Charles Chauvel) and if one MP raises a concern, must be debated and approved by the plenary Parliament within 21 days. The sunset clause was cut to 18 months.
Eighteen months gives plenty of time for plenty to go wrong. The government, too, is running risks.
The issue is in part one of timeframes.
Take English’s inequality-increasing tax changes. This week they affect your wellbeing (and the budget, at a half-billion-dollar cost through to March). The medium-term effect, English insists, is 1 per cent added to wealth production. The potential long-term effect is that higher inequality, if not offset, may limit potential growth, as in many underperforming economies.
The immediate effect of the Canterbury law is necessary quick action. The medium-term effect is assurance of a return to economic and social normality. The long-term risk is damage to freedoms and trust, without which liberal democracy and capitalism don’t work well.
Part of that risk is that, as in the first Labour government which passed the Economic Stabilisation Act, ministers habituate to less trammelled action.
Take Murray McCully’s Rugby World Cup 2011 (Empowering) Bill, from which Labour has dissented and about which Boscawen also has worries. It sets up a special authority to deal with liquor, hospitality and accommodation but includes also a “Delhi clause” empowering McCully to decide “urgent” cases, overriding the authority if he thinks fit.
Contrast Power’s expanded Electoral Commission, which from last Friday incorporates the Electoral Office, which runs elections, from the Justice Ministry, and from 2012 will take in the Electoral Enrolment Centre from New Zealand Post. (The Representation Commission stays out.)
It should now acquire greater significance and influence, independent of MPs. Power wants it to decide how to fix MMP if MMP survives next year’s referendum.
The Canterbury and world cup laws are rough-and-ready politics. The Electoral Commission is in a reformist line which reaches back through the Bill of Rights and Official Information Acts to the 1960s liberal constitutional glimmerings which Finlayson, a Blue Liberal, celebrates when in more contemplative times.
What works? Trust and freedoms, well secured. Once we are housed, fed and safe.