Thursday, March 31, 2011

Faith-based policymaking

Today Rodney Hide released the official advice [PDF] on his Regulatory Standards Bill. It is the most thorough trashing of a stupid idea I have ever seen in a Cabinet Paper. Starting on page 6, Ministry after Ministry questions the need for action, the chosen principles, the role of the courts under the bill, and the costs of certification and court action. Here's a good sample, from a joint comment endorsed by 11 government agencies, including Justice, Crown Law, and the Parliamentary Counsel's Office:

The principles of responsible regulation in the Bill would be benchmarks against which all legislation would be assessed. They should therefore be clear, well understood, durable and almost universally accepted. That is not the case here. Some are untested, uncertain, and bear little resemblance to the more flexible fundamental common law principles identified in the LAC Guidelines. Given that the principles go wider than those in the LAC Guidelines, the choice of certain principles over others (e.g. a principle against the taking of property is included while the principles of the Treaty of Waitangi are not) requires a more thorough analysis and justification than has been provided.

The novel and wide-ranging nature of the principles could mean that certifying compliance with them becomes a bar even to legitimate law-making. Almost any proposed restriction or requirement in legislation could, for example, be said to diminish a person's freedom of choice or action in some respect, thereby infringing the liberties principle. The certification process may also lead to strained relationships between Ministers and Chief Executives where each reaches a different conclusion about compliance with the principles.

Judges would have to prefer interpretations of legislation that were compatible with the principles, which could produce unintended consequences, such as unexpected changes in the law with retrospective application, as discussed in the RIS. The resulting uncertainty about the meaning of legislation could be significant for business and others with legislative rights and obligations.

The RIS outlines the expected costs for government of complying with the Bill's certification requirements. The cost of vetting the existing stock of legislation against the principles, which apply to them after ten years, would also be significant. Amending legislation to make it compliant would incur additional costs and reduce the House time available for other matters. The Crown would face increased litigation risk and costs, not only due to the need to defend applications for declarations of incompatibility but also due to the risk of other litigation becoming more protracted, particularly litigation under BoRA and judicial review proceedings.

Hide's response? A prolonged injured whine, culminating in this:
I consider that my officials have overestimated the costs of the Bill while underestimating the benefits.
No evidence is presented for this view. No reasons are given to ignore the considered opinions of an army of paid policy professionals, including those best-placed to know, in favour of Rodney's ideological assertions. But that's exactly what Cabinet did [PDF]. Its a perfect example of faith-based policy making. While that is the prerogative of democratically-elected policymakers, at the same time it doesn't exactly make them look good, does it?