POLITICS : A Game Of Hide And Seek

How do you tie bureaucrats’ and politicians’ hands so they won’t make mucky law? Rodney Hide thinks he has the answer.
New Zealand ranks high in some lists of “free” economies and easy places to do business. But not because it goes easy on making law. Each year Parliament passes scores of acts, the Cabinet raises small mountain of regulations and ministers and their officials issue rivers of edicts which amount to law.
The volume and speed at which they do their business ensures mistakes. Along the way politicians, slaves to opinion polls and ideology, add idiosyncratic twists. One lot undoes what the previous lot did.
Some of this affects the ease of doing business and the policy certainty business needs to plan effectively. The greenhouse gas emissions trading scheme is an example.
To lift the game, officials have long been required to affix impact statements to new bills and regulations to explain the problem and why new law was needed. They degenerated into pro forma justifications. Lianne Dalziel as Commerce Minister tried to beef them up.
Hide thought that insufficient and in 2006 got into the House Regulatory Responsibility Bill drafted by Business Roundtable economic adviser Bryce Wilkinson. Sir Geoffrey Palmer, as head of the Law Commission, issued scathing assessment. Dalziel put the bill on hold.
Hide was not deterred. He got National to disinter the bill and have it reworked by taskforce headed by Graham Scott, ACT activist and former Treasury secretary.
Meantime, he convinced an initially sceptical Bill English to issue in August joint instruction to officials and ministers toughening up impact statements.
They now must certify, over signatures, that new law is “required, reasonable and robust” and is in the public interest and that all practical alternatives have been considered, benefits exceed costs, entitlements are clear and conform to best legislative practice and implementation issues, costs and risks have been addressed.
Chief executives must, over time, ensure existing law also conforms to those criteria.
That is huge project. But Hide wants to embed all this, and more, in statute. His bill, expanded by Scott and company, would require ministers and officials to certify that all law conforms to set of principles or explain why it doesn’t.
The courts could declare acts, regulations and edicts incompatible with the principles and then, if possible, reinterpret existing law in the light of the principles.
Prime among the principles, in addition to ones similar to those in the August edict, would be the right to property and compensation for property the state takes for its needs.
That would enshrine property as fundamental right and put the Scott bill on par with the Bill of Rights. That is huge step which, in effect, is constitutional change.
At this point Hide’s principled politics meets National’s pragmatic politics.
Hide must prove himself to his free-market believers. National must keep Labour out of the centre ground. Hide needs to get ACT policy through the Cabinet to stop voters getting disillusioned and deserting his party. National must deter centrist voters from thinking National is simply ACT in drag.
So the Government is set to soften Hide’s bill to requirement that governments spell out regulatory principles and declare when they are departing from them – as they must now do with fiscal prudential principles. Ministers think that would reduce the likelihood of future government junking the whole idea by repealing the law.
National ministers reckon ACT is in Parliament only on National votes in Epsom – not out of adherence to ACT’s philosophy, but from desire to ensure support partner for National.
Much the same calculus applies to Hide’s attempt to enshrine spending caps in taxpayers-rights law. English will work on caps after the budget, but they will be flexible.
So is Hide’s cause lost? Some ACT supporters – taking their cue from Sir Roger Douglas’ warning in February against getting “stranded in the middle ground” – will think so.
Actually, Hide has been far more influential than his five seats to National’s 58 suggest.
That is partly because most of his policy thrusts tickle deep National instincts. This makes it easier for ministers to go some way with him. But without Hide those instincts would likely remain just instincts.
So, while Hide won’t get the king hits he hankers, the result will be more stringent tests on new law. Even some in the Labour party think that’s not bad thing. M

Colin James is New Zealand’s leading political commentator and NZ Management’s regular political columnist. [email protected]?

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