13 April 2011

CERA Mark II: Henry VIII clauses

The new CERA rolls over, with minimal changes, the Order-in-Council regime which allows ministers to amend or suspend existing laws by executive decree:


My previous objections – objections shared by many of my colleagues, the Law Society and other folk – to the Henry VIII regime are well-known.  I had hoped that the government had more time to reflect on the democratic and constitutional issues and to develop a more robust and legitimate regime.  Unfortunately, they have not.

There is some improvement with provision for some independent review (but there remains problems with that).  But the regime is now worse because: (a) the pressing need for such executive law-changes has diminished; (b) the horizon for Orders has been extended for up to 5 years; and (c) the purpose for which they may be issued has been enlarged.

It is a shame that the government has seen fit to unnecessarily roll-over these excessive and largely unconstrained executive powers, especially when there are more democratic and more legitimate processes available.

By way of background, the democratic and constitutional objections to the previous Order-in-Council regime well-known and can be seen here:

- Pundit: "An open letter to New Zealand's people and their Parliament"
- Policy Quarterly: "Shaking Our Constitutional Foundations".

I don't intend repeating the arguments in any detail and want to concentrate on the differences in the rolled-over regime.

Purpose, necessity and scope
The purpose provision of the legislation has been massively enlarged.  This flows directly into the scope for issuing Orders-in-Council.  For present purposes the relevant purposes are as follows:
"(a) to provide appropriate measures to ensure that greater Christchurch and the councils and their communities respond to, and recover from, the impacts of the Canterbury earthquakes:
(f) to facilitate, co-ordinate, and direct the planning, rebuilding, and recovery of affected communities, including the repair and rebuilding of land, infrastructure, and other property:
(g) to restore the social, economic, cultural, and environmental well-being of greater Christchurch communities:
First, these provisions are extraordinarily wide, especially the reference to restoring community well-being.  They would capture almost any governmental action that might be possible.  Effectively, they provide no legislative constraint on the Orders.  Any order need only be "reasonably necessary or expedient" for any of those purposes.  (I note that the legislation confirms, for the avoidance of doubt, that Orders may be issued to relax laws that may "divert resources away from" the earthquake response.)

These broadly stated purposes have the effect of negating any post-promulgation judicial review.  In this context, the sole task for the courts would be to review whether the proposed executive action falls within the scope of the powers conferred by the legislation; the courts are otherwise unlikely to second-guess the judgements made by the executive in judicial review proceedings.  However, as the broadly framed purpose provision controls the scope of those limits, the courts' supervision will effectively be nugatory – only the most extreme examples of abuse will step outside the scope of the powers conferred by legislation.

I note, as an aside, the government seems to have dismissed the inclusion of a requirement that any Orders be proportionate to the particular problem. This requirement – a feature in some UK legislation – would operate as meaningful constraint against misuse of such powers.  It is a shame it was rejected.

Secondly, the legislation that may be suspended or amended has not diminished.  All legislation, apart from 5 particular constitutional statutes, can be amended.  The same legislation particularly identified has been carried over (although, oddly, the couple of other statutes which have been amended have not been included).

Thirdly, more generally, I think we need to reflect on the necessity of amending legislation without Parliament's consent in these circumstances.

I acknowledge that emergency situations may require such powers.  However, the phase facing Christchurch now and over the coming 5 years is different.  It's more recovery, rebuilding, and revitalisation.

While there is an understandable need to expedite this, there is a much weaker case for legislative changes without Parliament's consent.  Parliament can be involved without slowing the recovery effort. There is not the same pressing imperative to change laws immediately through ministerial fiat. This point gets much stronger as more time passes from the original emergency.

Further, our knowledge and understanding about the legislation that needs to be relaxed is more sophisticated.  We are not in the same period of unknown that followed the first earthquake – one of the key reasons for the previous promotion of the Orders-in-Council process has passed.

As I note below, I think there are more democratic and constitutionally-defensible ways to achieve the goals promoted by CERA – mechanisms that are speedy but still involve our sovereign Parliament in decisions about what laws need to be changed.

Pre-promulgation review panel
On the positive side, the government has rejigged the pre-promulgation review of Orders-in-Council.

Rather than the Canterbury Earthquake Recover Commission (mayors of the local authorities and 4 other appointed experts) being consulted about draft orders, there is now a formalised process for review by a 4 person Review Panel.

Review is now mandatory (previously ministers only needed to consult the Commission if it was practicable to do so).  The Panel was slated to be led by a former High Court judge.  However, the Bill now only refers to a panel of "4 persons with relevant expertise or appropriate skills" appointed by the Minister of Earthquake Recovery.

The Panel only has 3 working days to provide advice on the Orders.  Their advice must be publicly notified and made available, which is encouraging.  Ministers must have regard to the Panel's recommendations – but, once again, they can reject or refuse to follow their recommendations if they wish.

Further, any recommendations from ministers to promulgate an Order are protected by a strong privative clause, which seeks to immunise the process from judicial review.  The effect of the privative clause remains a little uncertain because of the courts' scepticism towards them.  However, the privative clause effectively undercuts the provision for independent review because it means a failure to receive a review or have regard to the review recommendations would not be able to be challenged in court.

In my view, the new review panel is mere window-dressing.  It is a poor substitute for the more legitimate democratic processes that usually accompany law-making and law-changes.  There is a disappointing lack of democratic scrutiny of the legislative changes – on one view, the replacement of an advisory forum containing the democratically elected mayors with a review panel solely comprised of technocrats makes it worse!

Post-promulgation scrutiny
Formal post-promulgation checks-and-balances are much the same as before, if diluted somewhat by the new expansive purpose provision (see above).

First, the same weak privative clause gives the Orders-in-Council force of law.  While I don't think this is sufficient to oust judicial review, it is a parliamentary signal to the courts to be deferential.

Secondly, Orders will be continue to be subject to the same Regulation Review Committee and regulations disallowance processes.  While I respect the work of the Committee, I think it is fair to say that they have limited ability to influence the types of Orders being made in a timely fashion.  I note that they have still not be able to finalise their review of some Orders issued after the last earthquake – after they expressed concerns about a couple of Orders and sought more information about them.  While their work is useful in setting principles and precedents for future Orders, they have limited ability to promptly address and cure deficient Orders.

Most dramatically, the legislation extends the time-frame for such Orders.  Orders are allowed during the 5-year life of CERA.  There is no other restriction on their duration.  That is, laws can be changed or suspend up to and including April 2017.   This long duration belies their necessity and the need to circumvent democratic processes.  

Alternative solution: affirmative resolution process
One of the things many of us have been reflecting on is an alternative means to provide for the speedy – but democratic – amendment of laws to enable the recovery and reconstruction.  We are conscious of not merely knocking the process and the need to provide constructive alternatives.

Ideally, I think Parliament could process many of these law changes through existing processes.  The timing and pattern of Orders-in-Council issued so far could have readily be passed by Parliament, albeit with some urgency.

As an alternative, I favour the even more speedy affirmative resolution procedure.  That would mean any Orders would not take effect until approved by a resolution of the House of Representatives (see for example the scheduling of drugs under the Misuse of Drugs Act).  This allows the fast-tracking of changes to legislation but ensure Ministers justify such changes to Parliament and obtain the consent of Parliament to these changes.  It would be prudent also for the Regulations Review Committee to scrutinise those Orders briefly prior to being approved.

I note that the United Kingdom makes provision for similar for affirmative (and super-affirmative) resolutions for orders made under some Henry VIII clauses (see ss12-18 of the Legislative and Regulatory Reform Act).  There is also some provision for orders to still be made unilaterally by ministers in more benign circumstances, but there is still a special negative resolution process where Parliament can disallow those orders.

We are still in a twilight zone of constitutionality.  I'm not convinced our country has learnt lessons about the dangers of aggregating such executive power and circumventing the democratic processes.  CERA Mark II remains constitutionally dubious. I just hope that our government ultimately sees sense and charges wise folk like the Law Commission to develop standing measures to address such contingencies – measures which are more balanced, subject to meaningful checks-and-balance and constitutionally appropriate.

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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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