The BFD | Non-essential (Parliamentary) Business

Chris Penk

The BFD is serialising National MP Chris Penk’s book Flattening the Country by publishing an extract every day.

Non-essential (Parliamentary) business

Emergency powers were invoked by the government, giving itself the ability to amend laws and take actions without the usual safeguards, as Newsroom’s Sam Sachdeva noted.

It is a highly unusual situation for highly unusual times, and one which will concentrate political power in the hands of the executive.

In such an unusual time it was universally acknowledged, including by Her Majesty’s loyal opposition, that a certain concentration of power was appropriate.

That came with a trade-off, however, which was that while public life was suspended there would be no business of government transacted through Parliament that wasn’t both urgent and related to coronavirus.

This “new political normal” was explained by Sachdeva in the following terms:

political life will go on hold, with Parliament suspended indefinitely. Put into deep freeze is the Government’s regular legislative programme, as well as the work of select committees.

Resolutions to that effect were passed by a small representative sample of MPs.

The “Business Statements” of Parliament, issued from the office of the Leader of the House (Chris Hipkins), affirmed this understanding clearly. For example, in late April MPs were advised:

Next week, the House will continue to sit in a fashion consistent with the country being at alert level 3. The Government has undertaken not to advance its normal legislative programme at this time.

It made sense, of course, to divide Parliamentary business into the essential and the non-essential. After all, livelihoods were being lost all around the land at the time on a similar distinction.

That would have been fine, as far as it went, if the government had honoured its commitment.

Instead, Select Committees – which are “creatures” of Parliament in that they are part of the legislative branch of government – continued meeting to consider items of business that were indeed part of the government’s “normal legislative programme”.

I am a member of the Justice Select Committee and so participated in many a meeting concerned with prisoner voting legislation that the government had introduced quite some time ago.

Already that particular Bill had been slated to receive less Select Committee scrutiny than draft legislation usually is afforded, as the government had used its majority in the House to shorten the “report back” time.

In an article on Stuff.co.nz, National’s spokesperson for electoral law, Dr Nick Smith explained the depth of feeling among some submitters:

“They were just really angry this was happening while law-abiding citizens had to stay home.”

He claims Little wrote to the committee on March 31 to say officials could not provide the normal support and advice on the bill because of the national emergency, but insisted it be rushed through.

In Parliament, Dr Smith put it this way:

Why is the Government, at a time when millions of law-abiding New Zealanders are not being allowed to leave their homes or go to work or open their businesses, making a priority of legislation to give prisoners the vote?

It’s a pretty fair question when you consider that other legislation in front of the Justice Select Committee had (rightly) been placed on hold. Such serious subjects as the rules for sexual violence charges and increasing protection for “first responders” were put on hold but Labour was pushing on with prisoner voting all the while.

Cynics might note the significance of passing electoral law in election year. Like Francis Urqhart in the original House of Cards series, I couldn’t possibly comment.

Equally concerning was an idea floated by someone in government to suspend the Official Information Act’s effect during the lockdown period.

We do not know who that “someone in government” was, incidentally, including whether it was a public servant or a politician. Either way, that was a deeply disturbing revelation for our democracy at any time, let alone during the reign of the self-described “most open and transparent government ever”.

It is precisely when the usual checks and balances are not available – as during a state of emergency with Parliament suspended – that the few remaining tools of transparency are more important to carry, not less.

Legal fiction

Let’s cut to the chase here: was the lockdown even legal?

Questions began to emerge about the legitimacy of the whole affair in early May, after the nation had already endured many weeks of restrictions.

As the people of New Zealand have given up so much in the way of basic freedoms, and bearing in mind the tsunami of suffering that would soon be washing over these islands, it was well worth considering seriously.

Somewhat suspiciously, government ministers refused to release the legal advice that they’d received on the subject.

Everything was fine, they insisted, but the fineness was not able to be shared.

A summons by the Epidemic Response Committee, seeking this information on behalf of all New Zealanders, was defied.

Technically speaking, the Solicitor-General is a legal officer whose client is the Crown, so the usual rules of “privilege” apply. In essence, the advice given by a lawyer to her client doesn’t need to be produced to any other person.

That’s all fine, of course, when Citizen X or Company Y wants to know how they’re placed in legal proceedings and (quite naturally) doesn’t want to show their hand to “the other side”.

And a lawyer shouldn’t need to feel constrained in the advice she gives her client, anticipating that it may later be made available to the judge (who should rely only on argument presented formally) or “the other side” of the argument or, for that matter, the world at large.

Legal fictions aside, the situation is rather different when the “client” is the government, which only exists in the first instance to represent the best interests of all the people.

If subjects cannot know whether their ruler really has certain powers, then the ruler should not enjoy those powers.

Solicitor-client privilege is sometimes waived but more usually it is not. That’s been the case for governments of both stripes, so there is no political point-scoring potential for any party.

These were not usual circumstances, however, with a government acting almost entirely unrestrained by any other rules, such as Question Time in Parliament for example.

It was breathtaking (and not in a good way) to see the government claim “victory” in the “skirmish” over whether or not that crucial legal advice needed to be released, to use the words of Attorney-General David Parker.

Such opacity and audacity is deeply unattractive in a government seizing unprecedented power for itself. Any honest historical account of this affair will condemn all complicit in the cover-up.

So, was the lockdown legal or not?

The question was considered thoughtfully by two legal academics in an excellent article for the UK Constitutional Law Association.

Professors Geddis and Geiringer began by noting that, in their view, there was “little to criticise” in the rules of the lockdown “[f]rom an effectiveness and social-licence perspective”.

They did go on, however, to state that “the legal status of the Level 4 Lockdown rules is far more tenuous”.

I am being careful here not to overstate the position of the writers, which was to consider whether or not there had in fact been a reasonable legal basis for the restrictions. They were not arguing that it was necessarily the case that there was no such legal basis.

The professors noted that “official Government statements, as well as Police enforcement action” went further than the notice issued under section 70 of the Health Act.

The government, in other words, “purported to impose far greater limits on civil liberties” than the notice (which was itself allowed by law) actually claimed.

There were other potentially anomalous aspects, too. One was the question of whether orders could be made to apply to the whole of New Zealand or certain areas only. The language of the law seems to indicate the latter but it was certainly the former (all of New Zealand) that was ordered to lock down.

In general terms, though, the question is whether powers given to the Director-General of Heath were exceeded.

These powers are vast:

Section 70(1)(m) empowers a medical officer of health (of which the Director-General is one) to make an order […] closing premises and forbidding people to congregate in any outdoor places of amusement or recreation.

They are not limitless, however, as a court will surely consider shortly. As a politician (especially one who happens to be a Courts spokesperson), I should not say more than that while active consideration by the judiciary is anticipated.

Another curious question concerned just who was exercising these powers. The relevant provisions of the Health Act are clear about who is given them.

Section 70 is titled “Special powers of medical officer of health”, which is a pretty good clue.

The start of the section itself is worth considering carefully:

For the purpose of preventing the outbreak or spread of any infectious disease, the medical officer of health may from time to time, if authorised to do so by the Minister or if a state of emergency has been declared under the Civil Defence Emergency Management Act 2002 or while an epidemic notice is in force […]

At that point a list follows of the various actions allowed.

While the Minister of Health may authorise the “medical officer of health” to do certain things, the Minister of Health himself cannot do those things.

In other words, it cannot be said that under this section the Health Minister, Dr Clark, had any rule-making power whatsoever. His only power here was to allow another person to make the rules.

This was not a point well understood.

Dr Bloomfield did fit the description of “medical officer of health”, I should add, so he was entitled to make such rules as the section specified. As we’ve discussed earlier, there’s an open question about whether those rules were made rightly but that’s really another matter.

Given all this, you could be forgiven for wondering why it was that a group of politicians kept pushing themselves into the decision making limelight.

Cabinet would decide if the rest of the country would be allowed to live less abnormal lives, we were told on each occasion.

An email from jacindaardern@labour.org.nz provides as clear an example as you could wish to see:

That is why today, Cabinet decided that New Zealand will remain in Alert Level 4 lockdown until 11.59 pm on Monday 27 April, one week from today. We will then hold in Alert Level 3 for two weeks, before reviewing how we are tracking again. We will make further decisions at Cabinet on the 11th of May.

I have some sympathy for the idea that decision makers are better to be democratically elected politicians. Let’s leave aside the fact that this particular Cabinet was selected in decidedly undemocratic fashion by a fellow who had been rejected by his own electorate.

In principle, at least, politicians are accountable to the people. Civil servants are much less accountable, of course. I do not make the point that civil servants are “less accountable” in any ugly sense of that phrase. I merely state a fact.

As long as public servants understand that their duty to serve must be informed by the judgement of duly elected representatives of the people, there is no problem.

The question of accountability arose during debate on the COVID-19 Public Health Response Bill. Reasonable arguments were advanced (by parties other than mine) against allowing a public servant to continue to hold such decision making powers. It was a point that had occurred to me previously and I’m pleased that it was aired in the debating chamber.

The argument was rather undercut by a sense of self-interest in the case of the government members advocating for greater powers for themselves, unfortunately.

Might I have been more relaxed on that point if it were not an election year? Quite possibly.

While I might have sympathy for arguments that the law should have placed the powers with Cabinet and not a sole civil servant (however personally impressive), I have no sympathy for the systematic disregard of the law of land.

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