What you need to know about Regulations Review Committee and the new law undermining it

Among Parliament's many committees there is a small cross-partisan powerhouse that receives scant attention.

Unlike the 12 subject committees, it isn't a regular forum for critiques of government bills or finance.

Unlike Privileges it isn't about scandal and politics, unlike Petitions it doesn't regularly bring human emotion into Parliament.

The Regulations Review Committee is small, calm and cooperative.

It is like Parliament's off-field referee; a committee for the legal nerd and the constitutional swot. It inspects the government's use of its delegated powers to weed out government overreach.

But the Regulatory Standards Bill proposed by ACT leader David Seymour would duplicate and likely undermine its role, by giving a regulation oversight role to a government-appointed group.

Recently on The House we reported a briefing to the Reg's Review Committee (as MPs describe it), about the proposed law.

As a follow-up we wanted to discuss the committee itself with the MPs that run it, so we met with the leaders of the committee to discuss its purpose, powers, history and how it's responding to the new challenge.

By convention, Reg's Review is chaired by an Opposition MP-currently Labour's Arena Williams.

The Deputy Chair is National MP Nancy Lu.

Rather than acting as political rivals, they operate as a team.

"Most of the committee's power is… because it's cross-partisan," Williams said.

"I mean, that's what's important here, that we are able-me and Nancy-to work together, to chair the committee in a way which gets buy-in from everyone around the table."

Regulations Review manages this cross-partisan approach because its fundamental drive is not about policy, but good law.

"Basically, we want good lawmaking," Nancy Lu said, "and we want ministers and departments who have the power to make regulations, to actually make good use of their power and make good regulations for New Zealanders… Sometimes things come to us because there may be inappropriate use of the power (in making regulations), or there are complaints from New Zealanders. And therefore it is our job to look at it bipartisan[ly] and with one common purpose-which is better good lawmaking."

The background to regulation, overreach and the committee

When governments want to change the law in New Zealand they have to ask parliaments to do that.

Parliament is sovereign, government is only a subset of Parliament.

But primary legislation (the Acts that parliament agrees) can't possibly include all the necessary details for efficient government, so laws often delegate authority to ministers or their departments, to specify or update legislative details later.

Those post-hoc details are regulations.

"Most New Zealanders will come up against the law," Williams said, "but it'll actually be in regulations.

"…So if you've ever tried to, say, install a toilet in your bathroom, you will have run up against what's in the building code.

"It's not actually in the primary legislation, but that building code has a big impact on your life."

The law that delegates that authority to make regulations is agreed by the House, but the regulations themselves are not approved by the House before coming into force.

The Regulations Review Committee fills that gap. It tests existing regulations, and any proposed laws that give regulation-making power.

Anyone can make a complaint to the committee about a regulation.

The committee can investigate regulations and recommend that the House strike them down ("disallow" them).

The history

The committee was created in 1986 in the parliamentary reforms of Labour's Geoffrey Palmer.

It was a Labour campaign promise, deemed necessary because Robert Muldoon's National Party government had been using vastly powerful regulations to achieve things that ought to have been approved by Parliament. Things like wage freezes, price fixing and carless days.

"Regulation-making was getting to be seen by the public as an overreach in itself," Williams said.

"The power of the Executive was seen as a bit out of control. Your fruit and your vegetables, your trip in your car. It was all heavily regulated."

The solution was to bring Parliament back into the equation.

Williams described the response in 1985 to "out of control" regulation as: "a power for elected officials (who get chosen every three years by their communities), to actually strike that [bad regulation] down.

"And so that's what the disallowance power is about. …It was enabling this …pressure valve… to turn off some of that overregulation."

In fact very few regulations have been disallowed over the years. This is because the committee - being bi-partisan - tends to opt for soft-power, getting ministers to change poor regulations without resorting to the House by spotting the potential for regulatory over-reach within bills under debate.

Williams agreed that soft-power was opted for by the committee.

"Ding, ding, bingo! …That's 100 percent true. Most of the committee's power is soft power because it's cross-partisan.

"I mean, that's the importance here, is that we are able, me and Nancy, to work together, to chair the committee in a way, which gets buy-in from everyone around the table."

Asked whether it might be bad for a new National MP's career-prospects to point out the missteps of senior colleagues who were Ministers, both Lu and Williams laughed.

"Great question," Williams said.

"Most of the feedback that we have received from our ministers and ministries have been actually quite positive," Lu said.

"You know, mostly 'hey, thanks for letting us know. We didn't realise that, but now we know', and… 'we'll make it better next time'.

"I think that's what makes the… committee powerful and very unique in its way," Lu said.

"And I think it's needed, because we want to make sure that we are using our powers within the appropriate realms and to make sure that we're setting good laws.

"So maybe hopefully by calling them out, or by investigation, we can make it better in that way."

A new threat

Reg's Review is, on paper, one of Parliament's smallest committees, with just five MPs. Three from National and two from Labour.

Despite the official membership, recent changes to parliament's rules allow MPs to attend and participate in select committees they are not official members of.

A recent Reg's Review meeting included Labour's Vanushi Walters, and apparently Green MP Lawrence Xu-Nan attended often.

Williams, as Chair, had a more-the-better philosophy.

"It's getting harder in an MMP environment, when we have minor parties that have more sway in any executive government agenda, or indeed, in opposition politics.

"It is really great that we have Dr Xu-Nan from the Greens coming along to every meeting and participating in that.

"We don't have an ACT member who comes to the committee. And we need more of this ability as parliamentarians to come together and go, 'hang on, does this regulation make sense? Let's do something about it if it doesn't.' "

ACT's absence is notable.

ACT's brand includes being the natural enemy of bad regulation, but they neither have representation on, nor attend the one parliamentary committee tasked and equipped to fight against it.

ACT have instead chosen a different approach, one which may threaten Reg's Review.

Their coalition agreement with National includes the passing of a Regulatory Standards Bill, something previous ACT parties have tried and failed to achieve.

The bill would, among other things, create an external Regulatory Standards Board, appointed by the Minister for Regulation (currently David Seymour).

At first glance, the Board's task appears similar to the current Reg's Review Committee, but it is not.

The Board does not have the same powers - it cannot refer regulation to the House to be disallowed.

It is a creature of the Executive, not Parliament, and so is on the government side of the governance relationship. It also has a very different idea of what bad law looks like.

Differing ideas of bad law

The new Board would evaluate legislation and regulation against a set of principles embedded in its enabling legislation.

The principles consider the effect of legislation on: "existing interests and liberties, including the rule of law, liberties, taking of property, taxes, fees and levies, and the role of courts; and good law-making processes, including consultation, options analysis and cost-benefit analysis."

The bill contains a much more detailed list of these principles.

While the Board's inquiries could be self-determined, they would also be "in response to stakeholder concerns" and ministerial "direction".

The Regs Review Committee also has a list of principles to judge good law-making against. The grounds for referring regulations back to the House are outlined in Standing Order 327.

The grounds

The grounds are that the secondary legislation:

• Is not in accordance with the general objects and intentions of the enactment under which it is made.
• Trespasses unduly on personal rights and liberties.
• Appears to make some unusual or unexpected use of the powers conferred by the enactment under which it is made
• Unduly makes the rights and liberties of persons dependent upon administrative decisions which are not subject to review on their merits by a judicial or other independent tribunal.
• Excludes the jurisdiction of the courts without explicit authorisation in the enactment under which it is made.
• Contains matter more appropriate for parliamentary enactment.
• Is retrospective where this is not expressly authorised by the enactment under which it is made.
• Was not made in compliance with particular notice and consultation procedures prescribed by applicable enactments.
• For any other reason concerning its form or purport, calls for elucidation.

While there are concepts that appear in some form in both sets of principles, one set of principles appears focused on good legislative form within constitutional boundaries while the other includes more political philosophy.

Managing the approaching clash

Regulations Review Committee Chair, Arena Williams said the committee had been "thinking deeply" about the proposed law's impact on the committee's powers, place and processes.

She said the prospect of another competing entity was "pretty challenging".

Arena said the two bodies appeared similar, but her committee "has this special constitutional place, and traditions that have been built up over many years around the way that we consider whether regulations are doing what they say they will do 'on the tin'."

She said MPs had an advantage over appointed board officials, as they represented the affected community.

"They get to put us back into Parliament (or not) every three years. …and it makes us all quite focused on… things like, 'how does this really affect someone's life?'

"It will ultimately be this committee and the Standing Orders Committee (which proposes changes to Parliament's rules) which have to make some decisions and probably some accommodations …about how to work alongside [each other].

"But ultimately I would say that in our constitutional framework as it is now, that [Reg's Review] has a sort of system of constitutional preference about how it should engage in those issues."

That constitutional preference comes from the fact that Regs Review is an instrument of Parliament (which is sovereign).

The Regulatory Standards Board would be an instrument of the Executive, which is subservient to Parliament.

"I really want to see the Regulations Review Committee as [something that] we can agree as parliamentarians, including ACT members, …is a special part of our constitutional framework.

"I think New Zealand is on the good stuff here, when we've got parliamentarians …earnestly and diligently work[ing] through secondary legislation from the perspective of how it's affecting our communities. That's really special.

"If [David Seymour] is [saying] there is too much regulation and that there's not a strong enough mechanism to disallow regulations, then this [committee] is the place where I think we should be focussing our attention.

"[He should be putting that energy into improving the current] mechanism, so that it is parliamentarians-who are accountable to the people-who are ultimately making the decisions."

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