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Henry VIII is Alive and Well and Living in New Zealand

A few weeks ago I wrote a blog post about the 7.1 magnitude earthquake that struck Christchurch, in the Canterbury region of New Zealand, and some of the rules and regulations that seemed to have made things better for people than they might otherwise have been.  The New Zealand Government and Parliament have since tried to assist further by enacting the Canterbury Earthquake Response and Recovery Act 2010, which I recently wrote about for our Global Legal Monitor.

The Act was introduced, debated, and passed on September 14 under Parliament’s urgency rules – meaning it was able to be progressed through all the necessary stages in a single day.  A key purpose of the legislation is to provide “adequate statutory power” to enable some of the bureaucratic red tape to be suspended or bypassed in order to facilitate the rebuilding process.  Sounds fine, right?  In reality, however, the Act has been the subject of some quite strong criticism from lawyers and others (including those from across the political spectrum) who say that, while the underlying objective is sound, the way the legislation seeks to achieve it essentially tramples all over several constitutional principles – including the rule of law.  A group of academics wrote an open letter about their concerns, which relate to the fact that, as a result of the legislation:

  • Individual government ministers, through “Orders in Council”, may change virtually every part of NZ’s statute book in order to achieve very broadly defined ends, thereby effectively handing to the executive branch Parliament’s power to make law;
  • The legislation forbids courts from examining the reasons a minister has for thinking an Order in Council is needed, as well as the process followed in reaching that decision;
  • Orders in Council are deemed to have full legislative force, such that they prevail over any inconsistent parliamentary enactment;
  • Persons acting under the authority of an Order in Council have protection from legal liability, with no right to compensation should their actions cause harm to another person.

Some of these concerns can be seen as relating to the existence in the legislation of a type of Henry VIII clause – “a provision in a Bill which enables primary legislation to be amended or repealed by subordinate legislation, with or without further Parliamentary scrutiny” – named because of that particular monarch’s penchant for such provisions.  But more than this, it is the absence of adequate checks (from either Parliament or the courts) on the exercise of this power that has generated the most concern.

The Government has said that all of the Orders in Council will be clearly tied to the purpose of the legislation – but some people think that this is a “fairly elastic concept.” In addition, the standard process and legislation relating to parliamentary review of regulations will apply (a process that critics of the legislation say is too slow given the potential reach of the provisions).   I guess it’s a bit like the Government is saying “trust us, we’ll use these powers for good, not evil.”    This is most likely true, and indeed people in Christchurch may well trust that it will be the case and just want to get on with things.  But what the lawyers and academics are saying is that, while everyone wants to help Christchurch recover from the effects of the earthquake, “over and over again history demonstrates that unconstrained power is subject to misuse, and that even well-intentioned measures can result in unintended consequences if there are not clear, formal measures of oversight applied to them.”

There are two very interesting points that should be noted about New Zealand’s constitutional arrangements:

1)  The country is one of just three in the world to not have a full, entrenched written constitution (the other two are the U.K. and Israel).  The arrangements instead involve a combination of statutes (including the New Zealand Bill of Rights Act 1990) and other documents, and “constitutional conventions” (customary rules that can’t be enforced through the courts).

2)  The courts don’t have the ability to strike down legislation that has been enacted by Parliament, even if it is found to be inconsistent with the Bill of Rights Act.

Neither of these points mean that there isn’t really a “constitution,” with a strong, independent judicial branch as part of that – but the model and historic experience is very different from that in, for example, the U.S.

The first orders under the Christchurch legislation have now been made.  Perhaps the widely publicized concerns about the legislation will lead to a large degree of scrutiny (from the public, media, members of Parliament, and lawyers) whenever these orders are promulgated.  The Government has also said it is thinking about formulating permanent legislation relating to the response to natural disasters, and I’m sure there will be plenty of people willing to contribute ideas and analysis during the development and passage of any bill in this area.

In any case, the discussion about ensuring that constitutional principles are upheld and various rights protected when a country is faced with an emergency situation is a hugely important one, and one that is conducted throughout the world in a variety of contexts and using different approaches (often reflecting differences in the constitutional arrangements themselves).   New Zealand has itself had plenty of experience with these types of discussions and it will be interesting to see what the outcome is should new natural disaster legislation be finalized.

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