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)