22 September 2006

Rule of Law and retrospective legislation

The war of rhetoric continues about the pledge cards, with numerous suggestions that the position maintained by some parties is "corrupt", is unconstitutional, or violates the Rule of Law. I’ve previously suggested that:

- according to administrative law principle, parties which have overspent might not be required to pay back the overspending, if they were assured by an appropriate agency that the spending was legitimate, had no reasonable reason to doubt that assurance, and no reasonably available mechanism by which to otherwise confirm that expectation (see LAWS179: "Shifting Goalposts");

- legislation validating spending from the parliamentary leaders fund might not be objectionable and may be consistent with the Rule of Law, not contrary to it (see LAWS179: "Retrospective (or retroactive) legislation and pledge cards");

- if this was a criminal matter, the parties might similarly be able to rely on a defence of officially induced error (see LAWS179: Killing Miss Muggins: Officially Induced Error).

Once again, I must record that I’m not in a position to fully appreciate all the factual contentions made about whether or not the spending was in accordance with past practice and/or explicitly / implicitly “approved” by Parliamentary Services. However, from where I sit and the more I see and hear, suggests Labour’s argument that they genuinely and legitimately understood the spending was permissible has a degree of credibility. I await with interest the Auditor-General’s report and/or Darton v Clark litigation. My point of posting though is to reinforce the view I’ve previously expressed that retrospective validating legislation may not be objectionable in this situation and enhances the Rule of Law, rather than violates it. Quite frankly, the discussion about this point in the political arena and the media has been superficial and sloganistic, rather than attempting the grapple with the important legal principles that are at stake. In this regard, an Australian monograph – Charles Sampford, Retrospectivity and the Rule of Law – was on the list of new additions to the library. It deals in some detail with the issues that are stake in the present pledge cards issue and makes for instructive reading. For example, Sampford makes the following introductory comments about the legitimacy of validating legislation:

Validating Legislation Validating legislation is passed where someone, usually the executive arm of government, has acted in reliance on an erroneous view of the law, which action the retrospective statute is intended to validate. Thus, this sub-category include statutes designed to overcome more significant legislative defects than those considered in the routine revision category; often there are complicating factors such as a person's reliance on the defective scheme. However, provided that no new (that is, unexpected) obligations are imposed on anyone, there is little that can be objected to in the retrospective curing of the defects. Indeed, the reliance on existing state of the law is an argument for retrospectivity, because the executive and others relied on what turned out to be a mistaken interpretation of the law. In these instances, it would be perverse not to perfect the law given that people have been led into error by the government. The retrospective legislation is concerned with making the law conform to that which people acting in purported reliance on the law believed to be the case. Failure to cure the defects in validate those actions in the circumstances could diminish respect the law rather than support it.
I’ve posted a somewhat larger extract of the chapter in pdf form: > Charles Sampford, Retrospectivity and the Rule of Law (Chapter 4 – extract)


Graeme Edgeler said...

A few thoughts.

1. By whom would the administrative law principle to which you allude be applied? I presume the minister responsible for the misappropriated appropriation, who, in deciding what to report to Parliament, and whether to request the repaymnt of the money, should look at it (in this case the Speaker, or rather the Minister responsible for Parliamentary Services who is the same person as the Speaker). In deciding what to do that person would presumably have to follow administrative law principles?

2. I note the editorial of the New Zealand Law Journal disagrees with you.

3. Is the Supreme Court decision in Chamberlains v Lai objectionable? Lawyers, believing on reasonable grounds that they cannot be sued for work intimately connected with litigation haven't insured themselves for negligence in such regard, and insurance companies, believing on similar grounds, that those lawyers they insure can be sued for some things and not others have charged lower premiums that they otherwise would etc...

4. On the facts I hear, for example:
* the Auditor-General asks to meet with you to explain his interpretation of the rules and you refuse
* the only way you get Parliamentary Services to pay the invoice is by including a letter telling them you believe the spending applies with all the rules etc.
* Parliamentary Services asserts it has no statutory power of decision etc.
then claims of officially-induced error become less tenable.

Dean Knight said...

1a. It's obviously murkier here because of the plurality of the parties involved. The Preston / Coughlan (recognised in NZ in Challis) has developed in situations of substantive legitimate expectations held by a citizen and induced by government body. We do not have such a pure situation here with the arrangements presently looking like the Speaker sets the rule, Parliamentary Services applies them, and (apparently) the Auditor-General polices them. The principle though holds nevertheless. The citizen (in this case the political parties) contends they have a substantive legitimate expectation that certain expenditure is permitted, based a reasonable interpretation of the rules set by the Speaker, (apparently) an assurance from Parliamentary Services, and the past practice of the Auditor-General approving similar expenditure in previous years. (Let's be clear, the so-called "warning" of the Auditor-General is a red-herring. The report merely "warned" parties that they should not use the fund for electioneering. However, it recognised that the present rules were ambiguous on this point: "The guidelines appear inconsistent, and are confusing to those who must apply them." It also recommended that the incoming Parliament *change* the rules following the election, ie the Auditor-General implicitly recognised that the upcoming election would be undertaken under the confusing / unclear rules. This is consistent with the contemporaneous media reports from the times which noted that the AG was recommending a revamp of the rules, not warning parties to comply with them.)

1b. Actually, the role of the AG is somewhat unclear. Although the AG has a audit control function, he has no power to direct the repayment of election spending. According to the AG's report, the policing of the rules is undertaken as follows:
"3.47 In the case of MPs’ and parliamentary parties’ publicity and advertising, the Speaker is responsible for adopting criteria governing funding entitlements for parliamentary purposes. The Parliamentary Service Commission (PSC), a multi-party body chaired by the Speaker, advises the Speaker in this role. The Parliamentary Service administers the Members’ Handbook Guidelines, and provides advice to the Speaker and the PSC, to help with interpreting and applying the guidelines to particular circumstances.
3.48 If publicity or advertising material breaches the Members’ Handbook Guidelines, the guidelines note that “the Speaker will usually require the member to personally reimburse the Vote for the costs incurred”."
The decision to repay seems to lie ultimately with the Speaker (although I suspect she would / should refer such matters to the Privileges Committee).

2. Yes, Bernard and I disagree on lots of things. That's no surprise. His reference to "government under the law", ie the Rule of Law, also fails to examine the principles at stake beyond the mere citation of slogans. The Rule of Law principle is (somewhat surprisingly) a bit more complicated than "we should always obey the law". Clearly, we don't. Throughout our legal system we allow deviations from the compliance with the law principle where a legitimate compelling, countervailing principle arises.

3. Yes, potentially. And that point was referred to by some of the judges, although their view was that the evidence wasn't strong enough to support it. But there is recognition of the principle. In fact, our entire system of stare decisis or precedent is based on the principle of legal certainty. Ironically, so too is the principle that (some) retrospective legislation is bad (noting, of course, that retrospective legislation which is consistent with citizens' expectation is consistent with the principle of legal certainty).

4a. I await the final report to find out what the actual dealings were. Neither of the facts you point to is inconsistent with a reasonable and legitimate expectation being created by those same bodies. However, I'd like to see is some more detail about the extent to which particularly Labour relied on any assurances / past practices, that is, whether they actually made a judgement based on uncertainty in the rules and associated risk.

4b. Parliamentary Services assertion that they don't exercise a statutory power was asserted in the context of litigation and seems to be strategic. Quite frankly, I think it's out of step with the established authorities on the point. There is very narrow room for public bodies to argue they don't exercise a statutory power of decision. Off the top of my head, it's limited to cases where there is no discretion at all, where (say) a body receives a notice and is required to do something. Here, it seems there is at least some evaluation required before PS does some (ie pays the bills), that is, they need to at least assess whether it complies with the Guidelines such that payment can be made (whether that is the narrow view (certified by the party for payment) or the wider view (expenditure complies with the Guidelines), we'll need to see).

Graeme Edgeler said...

"The decision to repay seems to lie ultimately with the Speaker (although I suspect she would / should refer such matters to the Privileges Committee)"

I would hope not. Any role Margaret Wilson may play in asking that the money be paid back would be as Minister responsible for Parliamentary Services, not really as Speaker (noting of course that the Speaker is always the Minster responsible for Parliamentary Services). Arguably the matter could go to the PSC, but privileges seems inappropriate.

I note that the Speaker has already ruled that no question of privilege arises. And that questions seeking guidance from the Speaker about the matter on the floor of the House are out of order because it is the PSC is not the responsibility of Margaret Wilson, Speaker, but Margaret Wilson, Minister of the PSC (so questions should be written questions to that minister).

Moreover, any breach of privilege occured in the last Parliament, not this one, so the Privileges Committee would lack jurisdiction.

Finally, I agree with the Speaker that there just isn't a question of privilege.

Anonymous said...

I cannot see why retrospective validating legislation is necessary. To propose it concedes the point that in resource allocation there is an exercise of a statutory power. In the UK they are have a Parliamentary Corporation similar to Parliamentary Service here. It is not clear that it actually administers the Short or Craneborne Money. It is however like ours subject to the direction from the Speaker.

To me it seems that Parliamentary Service (and its shadow Parliamentary Corporation) is a mere device for legal relations with the world. If one digs behind it on the support allocation one finds Speakers directions, members handbooks and expenditure incurred on the authority of MP’s themselves. Looking awfully Parliamentary to me. This is why the Attorney General is running the line that Parliamentary Service is a mere administrator. This is actually helped by the extensive Simpson certification of the pledge card spend. For despite obvious concerns regarding the spend by Parliamentary Service they were instructed to pay and did so. If they were the actual decision maker they would not have paid out.

There is a UK authority on whether privilege extends to resource questions in the High Court of Justice of Northern Ireland where Martin McGuinness sought a judicial review of the Speakers decision to withhold Short Money (in the House of Commons similar to our Members Support allocation) because Sinn Fein MP’s refused to that the Oath. (I have posted about it on the Darnton vs Clark blog www.darntonvsclark.org ) Basically the Judge holds that the Speaker is acting as a delegate of and on behalf of the House. Furthermore obiter he says that whilst not necessary for this case, if it were necessary he would hold that the Speakers decision was a proceeding for the purposes of the Bill of Rights Act 1689.

It also raises an interesting question about the Auditor General and any conclusion that resources were spent unlawfully. Implied here is that there is a breach of statute. The Judge in Darnton v Clark might find no statutory power exercised, or a mixture of statutory power and parliamentary rules which guides the actual spending and is thus covered by privilege.

Regarding the Speakers ruling the issue is not whether there is a breach of privilage regarding the pledge cards for she can find them in breach of the rules without concluding they breach privilage, the issue is whether the resource allocation and how these resources are spent is enjoys a privilage from judicial supervision. That is not an issue for the Speaker to determine but rather one for the Courts.

Anonymous said...

The High Court of Justice of Northern Ireland case involving McGuinness is mentioned in the following House of Commons Library report on the Oath. Look at the section on Sein Fein.


Perhaps Dean might be able to find the case on some electronic database of cases so we could get a better look at it.

Anonymous said...

You state that: "[F]rom where I sit and the more I see and hear, suggests Labour’s argument that they genuinely and legitimately understood the spending was permissible has a degree of credibility."

I think the opposite. It is becoming increasingly likely that they knew what they were doing was wrong, given that Parliamentary Services refused to pay the invoice and had to be pressured into doing so.

It certainly undermines your argument in "Shifting Goalposts". No authority did assure Labour the spending was legitimate. They spent the money without seeking such assurances.

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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