National's first 100 days of action are over and its legislative trophies are there for all to see. But has it stretched the rules in getting what it wants done?

With the end of the National government’s 100 day action plan, we can pause and take stock. I don’t just mean stock of what National has achieved as a substantive matter. There’s been enough (largely positive) comment on this issue for me to pass over it in silence. Instead, I want to look at how National has gone about turning its policy promises into reality. Because it isn’t just what governments do that matters – how they go about doing it counts as well. And on this latter score, there’s reason to be a little nervous about the signals National is sending out.

Let’s begin with John Key’s performance as Prime Minister. There’s no doubt he has been a political success. Any lingering taint of Labour’s election-time portrayal of Key as an unsure political naïf has long since been removed by his confident and largely mistake-free performance. And yet, in his desire to quickly stamp his authority on the New Zealand political scene, Key has come close to swapping decisive leadership for – let us say – something a little less attractive.

Key’s initial call for the statutorily independent remuneration authority to freeze MPs salaries probably can be written off as good political use of the bully pulpit. However, his extension of that call to the salaries of judges starts to look decidedly dodgy. My colleague at Victoria Law School, Dean Knight, has argued quite persuasively that "the move borders on being unconstitutional, either by failing to accord judges a pay increase they are entitled to or for a member of the Executive to publicly champion that course of action".

If we add in Key’s blunt statement that he would act to stop the New Zealand cricket team from touring Zimbabwe, despite having no statutory power to do so and in the face of the New Zealand Bill of Rights’ guarantee of the freedom to leave New Zealand, we might think the beginnings of a pattern are beginning to emerge.

It’s not Key’s substantive proposals that are at issue here. Frankly, I think a pay freeze for MPs is a good idea, given what they’re likely to ask the rest of us to swallow in this recession economy. (Judges are a bit trickier from a constitutional perspective – it might be nice if they’d voluntarily sign up for one, like the Governor General reportedly has.) And if the new Zimbabwe power-sharing government fails, I wouldn’t want to see our cricketers go to that country next year either.

Nevertheless, someone might quietly take the Prime Minister to one side and remind him that the Bill of Rights 1689, article one, makes it unlawful for him to pretend to suspend the operation of the law. They might also acquaint him with the telling off the High Court gave to Robert Muldoon when a Mr Fitzgerald challenged just such behaviour. And they might tell Key that what he wants to have happen may well be a good idea – but it is up to Parliament, not him, to get it done.

Of course, this last point then reminds us that government is about more than the public pronouncements of the Prime Minister (even though this undoubtedly is important in our increasingly presidential political system). It is also about the legislative programme that the ruling party pursues; the changes to the law that it proposes for the country. In this area, too, how the National Government has gone about its business is a bit disquieting.

There’s no problem with National quickly moving to get its legislative programme up and running. Even those who don’t like its content can’t complain that they weren’t warned it was coming, and National’s dominant election performance gives it an undoubted mandate to act. But in its haste to change the statute books to its liking, the government runs the risk of further compromising what already is a rather shabby legislative process.

Most obvious is its repeated recourse to urgency to move Bills through their first reading (and even completely through the legislative process). Even given our Parliament’s relatively frequent reliance on urgency to make law, this avalanche of hasty lawmaking is unprecedented. What is more, as Idiot Savant has pointed out, the government’s fixation on urgency has cost a member’s day – one of the few occasions that non-government legislative proposals are able to be brought before the House. Of course, the National government can claim majority support in the House, and of course this gives it the right to have its preferred measures considered. But its desire to quickly pile up legislative trophies is robbing Parliament of its role as careful and deliberative lawmaker.

Another problem with hasty lawmaking is that it leads to measures arriving before the House without all the consequences having been carefully thought through. The fact that two of the government’s legislative proposals have attracted notices from the Attorney General indicating they are inconsistent with the New Zealand Bill of Rights Act is good evidence of this. (A third measure, the Domestic Violence (Enhancing Safety) Bill, probably should have received an Attorney General’s notice as well). While these Bill of Rights problems may yet be resolved at select committee, and such notices do not in any case stop Parliament passing a bill into law if it wants to, the fact remains that only one government bill attracted such a notice between 2005 and 2008. National has doubled that tally in just 3 months.

I’m not suggesting that National will pay much of a political price for all this. Indeed, its soaring opinion poll ratings indicate just the opposite. New Zealander’s seem to have a weak spot for strong and authoritative governments. (At least, until they come to think it is “time for a change”.) And to be honest, most of us don’t have much understanding of (or particular concern about) constitutional matters.

But as one of the few who is paid to do so, let me raise in a whisper that I hope National’s remaining thousand days in office pay a bit more attention to constitutional niceties, and a little less to political expediency.

Comments (3)

by Conor Roberts on February 27, 2009
Conor Roberts

You forgot to mention overriding Pharmac on the Herceptin issue.

Drug buying done by political consideration is bad – I’m pretty worried about the government moving away from a scientific approach to healthcare considerations. And I hope that the move to populism doesn’t spread to many more public policy areas (and away from evidence based policy making – too late for boot camps I suppose...)

 

by BeShakey on February 27, 2009
BeShakey

In defence of the Government (and I'm certainly no fan of the Herceptin decision) the way they did it wasn't as bad as they initially made it sound.  Rather than 'override' Pharmac's decision by ordering them to fund Herceptin (which would have caused obvious problems in terms of Pharmac's independence), they circumvented it by giving the funding to the Ministry of Health and ordering them to fund Herceptin.  This isn't as bad as the Ministry of Health isn't supposed to have the same kind of indepence.

Still a bad decision, but not the same kinds of issues as there could have been.

by Andrew Geddis on February 27, 2009
Andrew Geddis

I, too, would criticise National over the Herceptin decision. Strikes me as just the kind of politicisation of healthcare decision-making that they railed against when in opposition. I'd even add in to the mix the sacking of Richard Thompson (the chair of the Otago-Southland DHB) as a trophy scalp for "accountability".

That said, these strike me simply as bad policy decisions, of a sort any government may make and be criticized for. (The flip side is that I'm sure there's plenty of breast cancer survivors would hail National's "bravery" and "humanity", just as there's likely a bunch of people think Tony Ryall showed some much needed steel in axing Thompson). My post was more in respect of National's actions that (at the least) tread close to undercutting basic constitutional principles. Like, that the PM ought not to dictate legal outcomes by press conference. Or, that the House of Representatives ought not to simply be lawmaking arm of the executive. Pharmac's independence isn't a constitutional principle ... it's simply a good policy position to take to ensure the most cost-effective use of resources.

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