A policeman's lot is a happy one ...

Would electing a serving police officer be a valuable addition to a local authority, or a threat to our very constitution? Whatever your view, you're too late ...

My friend and fellow constitutional law nit-picker, Dean Knight, has drawn my attention to yet another questionable use of parliamentary procedure by the present Government. On Tuesday the Government invoked urgency to push the Policing (Involvement in Local Authority Elections) Amendment Bill through all its stages of debate in a single day.

The what, you ask? Well, this Bill has but a single purpose - to reverse a requirement imposed on serving police officers by the Policing Act 2008 that they take a leave of absence before running as a candidate for, and then resign if elected to, a local authority. And why might this matter? I'll let Dean's words explain:

"The Bill looks like a technical one, removing a prohibition on police officers from standing for local authorities, in order that 'all employees of the New Zealand Police are treated in the same way as other State servants'.

But that's the problem, they're not.  Part of their responsibilities, as constables, is to enforce bylaws passed by local authorities.  It's a basic violation of the constitutional principle of the separation of powers to have a person passing laws also enforcing them."

So the Bill is of reasonably significant constitutional importance, in that it touches on one of the main planks underpinning how our society's rule-making and rule-applying processes operate. (Not that you'd know that from the Police's own Regulatory Impact Statement, which as Dean notes simply refers to the generic potential for "conflicts of interest" arising.)

So - National abusing parliamentary procedure to ran through a piece of law that "shit[s] all over our constitutional procedures so they can appear 'firm' and 'decisive'"? Well, maybe - or maybe not.

First of all, is it really a problem to have a police officer sitting on a council at one time, then going out on the streets to arrest people for breaching the council's bylaws? Even if this is a technical breach of the separation of powers doctrine, what is the worst that could possibly happen? Do we think a police officer will only enforce those bylaws he or she supported at council, whilst ignoring any he or she opposed? I mean - we say the "separation of powers" matters as a general principle, but why does it matter in this specific instance?

Second, is not there some value to having the local police involved in all aspects of a community's activities - including its governance? If the aim really is "Safer Communities Together", then should we not treat constables and their supervisors as being a full part of that community, rather than as a potential threat to how it is run?

Third, is there not some mid-way solution to the potential problem of a police officer making bylaws which he or she then will enforce? After all, members of local authorities face all sorts of potential conflicts in their work which must be managed - from deliberating on matters that they have a personal financial interest in, to expressing a pre-determined position before receiving all the evidence, to knowing the individuals who may be affected by a particular decision. Would not an internal rule that says "a member of the local authority who is a serving police officer may not debate nor vote on any bylaw" largely remove any constitutional concerns?

It seems to me that these are points on which reasonable disagreement is possible. Indeed, the Legislation Advisory Committee, of which I am a member, was somewhat split on the desirability of barring police from sitting as members of local authorities when we discussed the Policing Bill back in 2008. A majority of us took the same line as Dean, viewing the ban as necessitated by constitutional principle. But a minority thought such a ban was too draconian. That division of opinion was then reflected in the LAC's submission to the Law and Order Committee when it scrutinised the proposed legislation.

Nevertheless, the fact that there is disagreement on this issue - and that this disagreement involves a matter of some constitutional weight - means we still might be concerned about how quickly the Government has rushed this change through the House. Urgency takes away the select committee process, and thus the opportunity for people like Dean and other concerned citizens to have their say on the matter. And that isn't good lawmaking, especially for matters like this one.

I think, on the whole, I agree with this criticism. But here's the counter argument, just in case I'm wrong.

This issue has been considered by select committee, as recently as 2008. And on that occasion the Law and Order Committee got advice on the matter, which (as I noted above) reflected divergent opinions. The Committee itself then split over what is the desirable rule - the (Labour-led) majority thought police officers should be barred from sitting on local authorities, while the (National) minority disagreed.

While the numbers in the House changed in 2008, there's no reason to think these views will have altered. And it isn't clear what new arguments or evidence might be put before a select committee that would change those views. Meanwhile, there are local authority elections coming up in October this year, and members of the police need to know what their rights are as potential candidates. So there just isn't time to give the public a say on this matter.

As I say, I'm not that convinced by this line of argument - there's no reason why a shortened select committee window could not have been provided, with any Bill still enacted prior to October.

Or, even better, the Government could have planned its legislative programme a little more carefully so that it didn't need to rush this rule change through at the last minute. After all, good legislative practice isn't about putting out fires just in time. It's about making sure that the laws we get are the best ones we can come up with. Is that too much to ask?