When Parliament passes an Act of Parliament sometimes that new law will include a delegated authority for someone to make extra laws off the back of it.
The ‘someone’ might be a minister or a ministry boss, and those mini-laws are variously referred to as secondary legislation, delegated legislation, regulations or orders. Which is not at all confusing.
They might range from the powerful Covid-19 orders that make alert level changes down to simply setting the fee to stay in a DOC hut.
The ability to unilaterally extend laws is powerful and potentially open to abuse so Parliament keeps a check on how the powers it confers are used via a special Select Committee called the Regulations Review Committee.
For insight into what they do and how they work The House met with the Committee chair (National MP Chris Penk), and deputy chair (Labour MP Rachel Brooking).
Their committee has been working particularly hard during the pandemic because they are obliged to scrutinise every order made by the Minister for Covid-19 Response (Chris Hipkins) under regulation-making powers granted to him by Covid-19 legislation.
Every time there is a change of alert level, testing or border rules, or pretty much anything covidy the Regulations Review Committee have to get their specs on and have a good squizz on behalf of Parliament.
Then when they report back to the House on each order there’s a debate and a vote on validating it.
Regulations sound vaguely undemocratic, so why have them at all
“There’s good reasons that a government would do that. So, there might be quite technical detail that doesn’t need to be debated in Parliament, or it might be a fast-evolving situation, maybe a technological or other sort of change that means that you need to be a bit nimble. You don’t want every law that’s going to be passed to have to go through the House of Parliament where there’s a relatively minor update that can be made along the way.” – Chris Penk
Chris Penk says the Covid-19 orders that the committee have “been doing so much of lately” are a classic example of the “fast moving situation”.
Has Covid-19 dominated recently?
“[We’ve] certainly been dominated by it. And that’s because there has been a lot of it of course,… but also, really fundamental rights and freedoms are involved. The committee’s done a really good, diligent job, I think… We’ve had to consider that pretty carefully in the context of needing to understand what the effects are on people’s lives and livelihoods. So I think that’s a really helpful role that we’ve been able to play.” – Chris Penk
‘Dominated’ is not an overstatement – the 13 most recent reports from the committee have all been on Covid Orders. They must be excited when something else turns up to discuss.
Working to a deadline
Rachel Brooking points out that they are also working to constant deadlines.
“We’ve got statutory timeframes for reviewing those Covid Orders as well, …that’s in the primary legislation that we’ve got to report back to the House within a certain time. Whereas a lot of the other work that we do, which is looking at complaints about a regulation being really outside the scope of the empowering legislation, there’s not the time-constraints.” – Rachel Brooking
Do they handle this workload alone?
Rachel Brooking made a point a number of times during the interview of crediting the Select Committee staff, both the clerks who are the highly knowledgeable and able secretariat of the committee and also the specialist legal advisors.
The Regulations Review Committee is unusual in also having access to highly talented lawyers from the Parliament’s secretariat to add extra heft to their oversight.
“They are the ones who go through Covid orders in some detail and then they give us advice before we go to write letters to ministers, and then write a report to the House.”
Rachel Brooking says “we love them. We wouldn’t be without them.”
She also notes that this fascinating work makes Parliament an “additional career path for lawyers that probably most people wouldn’t think of.”
The committee staff “give us advice about whether they think there’s a problem with any of [the orders], which we discuss and then we write to the minister [Chris Hipkins, or some Covid Orders to the Director General of Health]. The Minister writes back and then we make a decision and report to the House.” – Rachel Brooking
What do they consider in reviewing Covid orders?
“We’re thinking about the way that the law will affect people and the way that it’s made. We don’t have a remit to be able to talk about the public policy behind it. Not exactly, although sometimes you do get a bit of an element of that when you talk about whether there are undue impacts on rights and freedoms, for example.
"So just to be clear, we don’t get to say whether it’s a good idea or a bad idea for an alert level to affect a different part of the country but, for example, we might say it’s not terribly clear what part of the country that affects…” – Chris Penk
If the Minister made orders that went beyond the powers he was granted by Parliament they would also alert the House to that.
What about those rights and freedoms?
“There’s an element of the New Zealand Bill of Rights Act and some of the stuff in that, but again we can’t be too substantive, and the rights and freedoms… to take quite a meta approach is that the rule of law’s got to be observed.
"So people have a right to know what the laws are that affect them, and that may sound like a really obvious point, but in a fast-moving scenario where you have a press conference that tells people whether they can move from midnight, for example, that’s got to be published somewhere; that’s got to be understandable… . Otherwise we can’t expect people to comply with them.” – Chris Penk
‘I want to speak to your manager’: complaints
And on top of all the Covid orders, the committee still has its usual complaints workload.
“Members of the public can complain and they do, and …have continued doing that during this busy Covid period, and fair enough – people are affected by other regulations in different ways… .”
“People can make complaints if they don’t like a regulation and more particularly if they think that it’s been made in a way that makes an unusual or unexpected use of the law that Parliament had passed. We consider that, in a way not unlike a court I suppose.” – Chris Penk
The committee doesn’t pass judgement so much on a particular person’s circumstance as on the regulation itself. Does the regulation go beyond the power granted by Parliament to make it, does it do what it was intended to do?
They are ruling on the implementation though, not the policy or the original law. Rachel Brooking refers to a recent complaint about the Ministry of Transport deciding in 2018 that e-scooters are not ‘motor vehicles’.
“We’re not looking at the policy intent… we can’t say ‘e-scooters are a good or a bad thing’. We’re not looking at that. We’re just looking at what the regulatory power is and whether or not that’s been met.” – Rachel Brooking
In other words, did the Ministry properly exercise the authority delegated to it by Parliament? Did they overstep their mark? Did they follow all the expected steps and take everything into account that they should?
That particular scooter case is a pretty good example to read and see the process adopted by the committee. Complaints, evidence, questions to various parties, a defence from the ministry, input from the minister, and a report with a recommendation about resolution.
In this case the committee thought the regulation wasn’t ideal and that the Minister needed to make some underlying legal changes toˀmake regulating the use of things such as e-scooters more clearly and easily enforceable. They even made some recommendations about what a law change could include.
Most of Parliament’s select committees are traditionally chaired (and numerically dominated by MPs from a governing party or coalition).
The 52nd Parliament showed why this is so. In it various committees had a 50-50 party split and/or were chaired by opposition MPs. Possibly as a result, the through-put of some committees slowed markedly. The 53rd Parliament has reverted to the norm and its committees are typically (but not universally) governing-party dominated and chaired.
But regardless of that norm, the Regulations Review Committee has a tradition of being led by an MP from the opposition. Last Parliament it was chaired by National Party MP Gerry Brownlee, this time it’s Chris Penk.
“It’s traditional for that committee…, but it does really reflect the special place (I would say) that the Regulations Review Committee has. Because we are very much a committee of Parliament that is holding the government to account. And I think it’s really good actually that we’ve got [governing party] members on there as well who are taking a really robust look at whether powers have been used correctly, and legally – probably more-to-the-point.” – Chris Penk
A team of rivals
This committee also appears to have a very good spirit (though many committees often do). Chris Penk puts part of this down to the fact they focus not on the policy (which can be divisive), but on the regulatory mechanism.
“It’s a really good spirit and vibe I believe… because you take the politics out of it, because you’re looking not at whether something’s a good idea substantively, but the way that it’s been done. So in that sense it’s actually quite an interesting and enjoyable committee to be on.” – Chris Penk
Rachel Brooking agrees. “It’s quite a joyful committee almost. It’s an uber-geeky committee. We all revel in the wonderful advice we get from the legal counsel in particular. As Chris says, we’re not making policy decisions, we’re not criticising government on policy at all. It’s just that real balance of the executive [and Parliament].” – Rachel Brooking
A legal practice in waiting
There’s another tradition in this committee. Most of its members have a legal background. That is very true of the current committee. All the members from Labour, National and the Greens have legal training. The only non-lawyer on the committee is ACT MP Toni Severin. ACT has no MPs with a legal background to offer the committee.
“I think in our first meeting the chair did note that perhaps we could start up a law firm after this.” – Rachel Brooking.
Penk, Brooking, Sage, Bishop, Walters and Lewis. It would certainly fill up a chambers' letterhead.
And one more power
As if it’s not busy enough already the committee has another job as well. They act as what Chris Penk cheekily describes as a “Regulations Preview Committee”.
The committee has the power to choose to examine draft regulations or, even more powerfully, any law going through Parliament that will enable the making of regulations. It means they can check laws won’t cause them trouble down the road. It doesn’t matter which select committee a law is referred to, if it has a regulation making power the committee is able to weigh in.
That doesn’t mean though that the committee has power to strike down laws or regulations it doesn’t like.
“Our powers are to recommend and to ‘point out’. We can’t simply strike things down. We can go back to the House and we can say ‘we recommend you have another look’. We can go back to another select committee likewise, or indeed the [relevant] Minister or Director General of Health (in relation to some Covid stuff).” – Chris Penk.
And does all that work or are they shouting into the wind?
Chris Penk says that the committee’s recommendations are taken seriously by Ministers, Select Committees and the House. It’s an acknowledgement all round of the special place the committee has in ensuring strong democratic oversight.
Chris Penk would appear to be correct judging by recent comments by Chris Hipkins in the House.
"I think that the Regulations Review Committee have done a very thorough job of scrutinising the orders that have been made under that Act, and have often prompted changes to some of the orders that have been made under that Act for the better, and certainly have prompted changes sometimes in the process of the way some of those orders have been made as well, which, again, I think has been useful."