It's just the vibe of the thing

I think the National Government broke the Constitution. John Key thinks it didn't. We both may be right.

My last post on the Public Health and Disability Amendment Act 2013 appeared to strike something of a chord. Certainly, it's been the most viewed piece that I've written here. 

However, there's at least one person who remains quite unmoved by my claim that the MPs who approved of the Government's legislative proposal to oust court oversight of future family care policies acted in breach of New Zealand's constitution. Our Prime Minister, John Key, dismissed the notion on the grounds that his Government "believes that the legislation is legal and constitutionally correct."

In some ways, that's a bit of a relief. You really wouldn't want to see governments asking our Parliament to pass laws that they believed were illegal or constitutionally incorrect. But I think its still worth spending a few minutes considering the Prime Minister's claim and seeing what it means. Because if I'm saying that the legislation was a breach of our constitution, and he says it was constitutionally OK, we can't both be right. Or can we?

Well, on the first part of the PM's claim - that the "legislation is legal" - you'll get no argument from me. Under our system of parliamentary sovereignty, whatever the Parliament of New Zealand enacts is the law ... so the statement is a tautology. 

Thus, if there is going to be any disagreement between us, it must relate to the second part of his claim; that the legislation is "constitutionally correct". I'll start by putting the case for the defence of the Public Health and Disability Amendment Act 2013, before posing some questions to it. 

John Key might tell a story about our constitutional arrangements that goes something like this. In our system, the final decision making power about any issue lies with those elected members of the political branches of government. So, at each election the New Zealand people choose members of Parliament to represent them in the House of Representatives. A majority of those MPs then choose from amongst themselves the individual who they will support to run the country as Prime Minister, and in turn she or he  will choose ministers to join her or him in a Government. That Government will then get on with the business of actually governing, a part of which is proposing laws for Parliament to consider and (virtually always) pass into effect.

All of this activity is then subject to a regular review by the voters of the country. If those voters think those in the Government are doing a good job, they will reward them by letting them keep it. If those voters think those in the Government are screwing things up, they'll boot them out and get someone else in to do it instead.

However, while regular elections may be the main way in which elected representatives are held to account for their actions, it isn't the only way. Ministers do not have complete freedom to make decisions on running the country as they see fit. They must abide by any legal restraints that the Parliament has imposed upon them, as well as ensure their decisions accord with procedural constraints that the Courts have seen fit to impose over the years. If you as an individual believe that a Minister (or some bureaucratic underling) has decided something in a way that is inconsistent with these legal or procedural limitations, then you can go to the courts to seek a review of that decision. And if a court agrees with you, then that Court can tell the Minister (or underling) that the decision will not stand.

This then can set up a potential clash between a Minister and a Court. The Minister may genuinely believe her or his decision (or that of her or his underling) is the best one in the circumstances and for the good of the country as a whole. Furthermore, the Minister may genuinely believe that the Court doesn't have a clue about the issue and is standing in the way of that which is for the best - a state of affairs that in turn may harm the Minister's chances of keeping her or his job come the next review by the voters. But even so, the Minister's hands are tied, in that if a Court says that her or his decision is unlawful or procedurally flawed, then that is what it is.

Unless, that is, we go back to where we started this story: in our system, the final decision making power about any issue lies with those elected members of the political branches of government. Because it is always possible for a Minister to go to those elected members in Parliament and ask them to tell the courts, as a matter of law, to keep their noses out of some particular policy issue. And if a Minister does that, and the members of Parliament agree to it, then the courts in turn must abide by it. Because those MPs are the elected representatives of the people, and so what they say ultimately must go.

Now - that is a story that one can tell about our constitutional arrangements. And here is the thing ... there is nothing in that story that I can point to and say "no - that's descriptively wrong." In other words, as an account of where power lies and how power can in fact be used, it is pretty accurate. As, indeed, the whole saga of the Public Health and Disability Amendment Act 2013 demonstrates.

Having said that, however, note what is missing from this account. There is no discussion of how the power that the elected branches of Government possess should be used. And any story about a constitution must include more than just an account of what can be done, and also encompass what ought to be done (or, in this case, not done). 

In particular, the story I've told has a very thin (or, quite rudimentary) notion of "the rule of law". Here is how the public consultation materials distributed by the government's own Constitutional Advisory Panel describes this concept:

The rule of law means everyone in New Zealand must follow the law, including governments.

It also means the law must be clear and understandable, new laws apply to future and not to past activities, and everyone should easily be able to find out what the law is. 

We can expect the government and other people to treat us according to law and if they don’t we can get help. In particular, public officials – including Ministers, members of Parliament, and public servants – have to make decisions according to the law, not according to their personal beliefs or interests.

All New Zealanders have certain basic human rights and freedoms that the state should not interfere with, unless it has a lawful and justifiable reason. 

The rule of law ensures we have a free, safe, and orderly society. The rule of law also ensures the economy can function smoothly, since businesses can be sure about the rules that apply to them and how they will be enforced.

Now, I don't think it is unfair to say that the action of Parliament in agreeing to enact the Government's Public Health and Disability Amendment Bill (No 2) was inconsistent with this account of the rule of law. It gave a green light to the Government to make policies that will discriminate against individuals on grounds that the law prohibits - and then prevented those individuals from accessing any external, independent review to test the Government's reasons for doing so. Thus, for all intents and purposes, the Government is freed from any effective oversight as to how it interprets and responds to Parliament's requirement under the New Zealand Bill of Rights Act 1990 that it not unjustifiably discriminate against people based on their family status.

Of course, John Key might argue (or, more likely, Attorney General Chris Finlayson may argue on behalf of the Government that John Key leads) that even if the Public Health and Disability Amendment Act 2013 is inconsistent with this particular description of "the rule of law", that doesn't actually matter. Because the "rule of law" simply means whatever those in control of the law-making powers at any given time say it means, in that once they say something is "the law" then it is the law

That then sets up a choice for us. Which story about our constitution and the role played in it by the principle of the rule of law is preferable or more desirable? Do we want a system whereby a majority of elected representatives can, whenever they think it best to do so, free the Government from any effective judicial oversight of its actions so as to give it maximum freedom to make whatever decision it believes is necessary? Or do we think that the principle that individuals should have access to judicial remedies for any wrongs done to them so as to ensure that governments operate within the requirements of the law is so important that Parliament should not act against it, no matter the inconvenience caused to a particular Government.

The point is that there's no way to say that one or another of these is "the true and correct" account of our Constitution as a normative matter. It is instead a question of which version better accords with our views of how government power ought to be used, and what sorts of constraints on that power it is desirable to have. So seen in that light, both John Key and I can be "correct" in our claims about the Constitution ... because we're telling different stories about what it is and how it ought to work.

However, there's then a secondary set of issues we might want to consider. Let's say you actually like the constitutional story that John Key is telling. You think it is better that final decisions on matters do rest with elected representatives - even to the extent of them being able to exclude court oversight of the lawfulness of those decisions when this becomes too inconvenient. You then still have to answer another set of questions: how should those elected representatives make their decisions; and in particular, what process should they follow when enacting measures into law?

Because, again, our constitution must say more than who gets to make certain decisions. It must also spell out the proper way that such decisions should be made, so as to be legitimate or viewed as acceptable. In particular, we have to assess whether it is acceptable for a majority of elected representatives to take a piece of proposed legislation which they have been warned contains breaches of individual rights that cannot be justified, refuse to allow the general public a say on it, then pass it into law on the very day it was first announced. 

And once again, the issue is not "could the Government do this?" Parliament's Standing Orders (and the agreement of the ACT, United Future and Maori Parties) let it do so. Rather, even if you think Parliament ought to be able to make these kinds of laws, should it make them in this way - and what is those laws' moral (as opposed to legal) status if it does?

I'm not going to end this with any sort of grand denunciation of the Government's actions. In my last post I made it clear that I think it was wrong in what it did, and why I thought that. My purpose here is to try and unpick some of the threads in the issue so that we can see what is at stake in it ... above and beyond, of course, the interests of those heroic individuals who spend their lives taking care of loved ones that nature has afflicted. 

Because in the end a constitution isn't really about abstract rules of behaviour or arcane matters of theory. It's about how ordinary people get treated by the government that is given power to rule over them.