11 March 2015

Red light - Remuneration Authority Amendment Bill

Parliament is expected to pass the Remuneration Authority Amendment Bill under urgency today or this week.


Red lights.

We should be alarmed about some of its content and effect. In particular, its retrospective effect.

This feature is helpfully foreshadowed in the Bill's disclosure statement:

Retrospective laws are generally objectionable and should be avoided. Writing on the rule of law, for example, Lon Fuller described a retrospective law as a "monstrosity" (Fuller, The Morality of Law, p 53) – objectionable in terms of both morality and efficacy.  This is echoed in the presumptions against retrospective laws recognised throughout our legal system (see for example s 7 of the Interpretation Act, s 10A of the Crimes Act 1961 and s 26(1) of the New Zealand Bill of Rights). And its reflected in the Legislation Advisory Committee guidelines (§ 11 and 11.1):
Legislation should have prospective, not retrospective effect. ...
The starting point is that legislation should not have retrospective effect. It should not interfere with accrued rights and duties. 
However, there are some situations where retrospective legislation is relatively benign. Whether the retrospectivity is one of the rare cases where it is unobjectionable requires a degree of nuance in assessment, informed by the conceptual underpinnings of the virtue of prospectivity in law-making. 

The LAC set out some rule-of-thumb guidance about when retrospective legislation might be unobjectionable (§ 11 and 11.1):
Retrospective legislation might however be appropriate where it is intended to:
- be entirely to the benefit of those affected;
- validate matters that were generally understood and intended to be lawful, but were in fact unlawful as a result of a technical error;
- decriminalise conduct (for example, s 7 of the Homosexual Law Reform Act 198687);
- address a matter that is essential to public safety;
- provide certainty as a result of litigation...
- (in limited circumstances) make changes to tax law or other budgetary legislation.
None of those circumstances apply here.

The LAC go on to focus on the need for justification (§ 11.1):
Where direct retrospective effect is intended, this must be clearly stated in the legislation and must be capable of justification.
The problem with the above Bill is that the justification for retrospectivity here is weak. It's simply about nullifying a particular decision -- an increase in remuneration for MPs) -- which has been viewed as being politically unpalatable. There's little recognition of concern that backdating the new regime interferes with accrued rights of MPs to that salary. Greater justification is expected.

Of course, the original pay increase was itself backdated, which has retrospective effect. However, that's justifiable because it's for the benefit of MPs (as per one of the exceptions above) and, arguably, due to the administrative process that requires it.

Since the announcement of the release of the Remuneration Authority's determination on 26 February 2015, that pay increase is effectively an accrued right and MPs can rightly expect that it would be paid. That might have only been a couple of weeks, but we can expect that MPs may have relied on the that increase in the meantime.

I am unsure exactly when the increase first gets paid out, but I understand it's this week. Hence the rush, I guess, to nullify the increase without having to claw back money from MPs.

The upshot is, though, this Bill is inconsistent with an important constitutional principle and rule of law virtue. In the absence of good reason (and none has been advanced, in my view), laws should not be retrospective and take away accrued rights. It would be preferable for the changes to MPs remuneration to only apply as from the date on which the new law is based.

And, finally, does it make any difference that we're talking about the retrospective effect disadvantaging MPs?


They are still entitled to the protection of rule of law. Indeed, the most famous version of the rule of law specifically argues that the "governors" should be subject to the same laws as the "governed". It follows that the virtue of prospectivity in law is equally applicable to MPs and their remuneration.

PS Passing this law under urgency amplifies the rule of law concerns because it means the retrospective effect and justification are not able to be subjected to the degree of scrutiny they deserve.



2 March 2015

Vigilance and Restraint in the Common Law of Judicial Review: Scope, Grounds, Intensity, Context

I haven't been blogging much recently - it's been rather quiet on here for a few years, sorry.

But I think I have a pretty good excuse...

I'm been working on my PhD at the London School of Economics and Political Science and submitted it for examination just before Xmas. The title is "Vigilance and Restraint in the Common Law of Judicial Review: Scope, Grounds, Intensity, Context". Here's the abstract:
The mediation of the balance between vigilance and restraint is a fundamental feature of judicial review of administrative action in the Anglo-Commonwealth. This balance is realised through the modulation of the depth of scrutiny when reviewing the decisions of ministers, public bodies and officials. While variability is ubiquitous, it takes different shapes and forms. In this thesis I identify the main approaches employed in judicial review in England, Canada, Australia and New Zealand over the last 50 years or so:
(a) scope of review, based on an array of formalistic categories which determine whether judicial intervention is permissible;
(b) grounds of review, based on a simplified and generalised set of grounds of intervention;
(c) intensity of review, based on explicit calibration of the depth of scrutiny taking into account a series of constitutional, institutional and functional factors; and
(d) contextual review, based on an unstructured (and sometimes instinctive) overall judgement about whether to intervene according to the circumstances of the case.
This thesis has three dimensions. In the doctrinal dimension, I isolate the four schemata from the case law throughout the Anglo-Commonwealth. Professor Stanley de Smith’s acclaimed judicial review textbook – particularly its changing language and format – is used to provide structure for the study. In the conceptual dimension, I identify the conceptual foundations of the schemata, exposing their commonality and differences. I use the scholarly debate about the constitutional underpinnings of judicial review to provide insight into the justifications advanced for the different approaches. In the normative dimension, I evaluate the virtues of the different schemata. The qualities of the different approaches are drawn out, using Fuller’s rule-of-law-based criteria to guide the assessment of efficacy. Overall, the grounds and intensity of review schemata generally display the most virtue when measured against these criteria.
Today, is my first day of teaching at Vic this academic year, so it marks a return of sorts (I continued to teach during my PhD, commuting back and forth in one perpetual winter!). I still have to go back to the UK in May for my viva (oral defence) and whatever happens thereafter...

But I'm looking forward to having some more time to devote to things like this blog and the current events in NZ civics and law.

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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