Cutting off the King’s Head:

The Bill of Rights and the National Library and Archives
Listener 4 May, 2002.

Keywords Governance, Political Economy & History

While I have considerable sympathy for historian Jamie Belich’s plea to teach more New Zealand history in our schools, the Seventh Form course on the Tudors and Stuart periods is attractive, given its foundational role in the development of Westminster style governance. Or I thought it was attractive, until I learned that the study ends in 1660. …

… Students never get to the 1689 Bill of Rights, the culmination of the political struggles of the times. The Act is so important, it is still applied by New Zealand courts, most memorably when in 1976 some of Prime Minister Rob Muldoon’s actions over superannuation were struck down as being outside the law.

England’s seventeenth century struggle, which included civil war and a period of kinglessness, was about such rules of governance. Charles the First wanted to govern independently of parliament. Parliament wanted to constrain what he could do. The 1689 settlement, 40 years after his execution, involve the Bill of Rights which requires the government to act only with the authority of parliament. Yet the tension between the Executive (the ministers and their public servants) and Parliament and the people it represents continues unto this day. Only recently an official who had got carried away with his own self importance and contempt for ordinary New Zealanders had to be told, ‘they cut off a king’s head for that sort of sentiment.’

We can see the tensions in a couple of pieces of proposed legislation, the National Library Bill, already before Parliament, and a proposed bill to replaced the antiquated Archives Act. There has already been considerable consultation between officials and the stakeholder groups. (We are all stakeholders, but the groups try to represent us.) Their meetings, usually chaired by the minister, Marian Hobbs, have sometimes been quite tense for there are some fundamentally divergent views. Understandably, the officials want the maximum amount of freedom to do their jobs without the constraints of specific legislation. Equally understandably, the stakeholders are unwilling to give the officials too much freedom. (It is a small rerun of the seventeenth century isnt it?)

The Minister has attempted to get as much consensus as possible before the bills go to Parliament where they will be considered by a Select Committee – a subcommittee of all the MPs, which listens to submissions from officials and the public. It seems likely that some stakeholder groups will submit to the Committee that the public servants’ discretion should be limited further than as already proposed by the bills. Once Parliament has passed the statutes, perhaps after amending them, they become law.

Afterwards there will continue to be consultation between minister, officials and stakeholders about the nation’s library and archives policy. But if that breaks down, the stakeholders could be off to court, as has occasionally happened before. That is the effect of law. A failure to follow a statute is dealt with by the Courts. Officials want to avoid this possibility. Hence their desire to have as few as possible constraints in the acts that regulate them. I understand the officials have given stakeholders some assurances about what they will do. But such assurances could be worthless when the officials move on. The stakeholders want them, not just in writing, but as the law of the realm.

MMP has dramatically changed the nature of Select Committees. Once the Executive could invoke a majority on every one, and so drive through its requirements, oblivious of stakeholder concerns. It regularly did. Some officials seemed to think their Minister’s role was to pass legislation in the public servants’ interests, with only the vaguest commitment to stakeholders’ interests. Ministers, the most senior members of the Executive, are also members of Parliament representing the people, and find themselves torn between these two functions.

Today, Select Committee seats are allocated in proportion to the party vote, so the Executive does not have a majority. The government could use its authority in the full Parliament (after side deals with other parties) to overturn a Select Committee decision. But it is unlikely to call a snap election over the statutes regulating the National Library or Archives New Zealand. That is the fascination of these particular bills. Comprehensive government records are crucial to holding any government to account. The two institutions deal with matters terribly important to the nation’s heritage (and they may be specifically important to individual New Zealanders by preserving records and artefacts of their ancestors). But the are not important enough to bring down a government, so Parliament has considerable freedom to amend the legislation according to its best judgement.

We may see, then, the Select Committee treating the issues in the two bills on their merits, balancing the concerns of officials and stakeholders, reaffirming the right of parliament to determine that balance. For MMP has changed the balance of power between the government and the people. No wonder the elite loathe it. At least any tension will not result in the chopping off the heads of minister, national librarian or chief archivist.