Law in order?

Governments around the world have restricted the activities of their citizens in the fight against COVID-19 under various laws and powers. Over the past couple of weeks, the legality of the restrictions New Zealand has put in place has been questioned by law professors Claudia Geiringer and Andrew Geddis, and the Leader of the Opposition. A case has been filed with the High Court, seeking a judicial review of the lockdown decision.

I’m not a lawyer and don’t intend to weigh in on the merits of these challenges. But the debate does raise wider issues about what regulations aimed at managing emergencies like pandemics should do and look like.¹ And as it happens, the Productivity Commission did a piece of work on regulatory institutions and practices a few years ago that is helpful for thinking about these issues.

Below I discuss three regulatory design issues highlighted by the Commission’s earlier inquiry, and outline how they might help us think about the laws and regulations governing the pandemic response.

Who can take decisions?

The first design issue relates to decision rights – who can take decisions, and what types of decisions they are able to make? In our inquiry, the Commission noted that different types of decisions suit different governance arrangements:

• Ministers or other elected officials should make decisions where they involve significant value judgements with trade-offs that are not amenable to analysis, or where they have significant fiscal implications.
• Where decisions have long-term costs, involve powerful private interests, require technical expertise, are urgent, require consistency and impartiality over time, or regulate government organisations, then independent officials should be the decisionmakers.

Pandemic management involves both types of decisions, which prompts the question – how should these be allocated, and how should decisions be coordinated between different people or organisations? Current laws allocate rights primarily to the Prime Minister, Minister of Health and Director-General of Health. Should other or different parties be involved?

What objectives should decision makers pursue?

A second design issue is role clarity – what specific objectives should decision makers be required to pursue? Should there be one single objective, or several objectives that must be balanced (for example, the Reserve Bank is required to balance the goals of medium-term price stability and ‘maximum sustainable employment’)? Multiple objectives can allow for more nuanced and realistic judgements but can come at the cost of accountability and encourage mission creep.

The Epidemic Preparedness Act 2006 describes its primary purposes as providing sufficient statutory powers

(a) to try to prevent the outbreak of epidemics in New Zealand; and

(b) to respond to epidemics in New Zealand; and

(c) to respond to certain possible consequences of epidemics (whether occurring in New Zealand or overseas).

Interestingly, the Act has other purposes which hint at limiting principles for any epidemic regulations, namely retaining access to core public services and ensuring that regulatory requirements can be adequately enforced:

(a) to ensure that certain activities normally undertaken by people and agencies interacting with government agencies can continue to be undertaken during an epidemic in New Zealand:

(b) to enable the relaxation of some statutory requirements that might not be capable of being complied with, or complied with fully, during an epidemic.

Are these the only limiting principles or objectives that should be included? For example, I’ve previously noted that the lockdown has come with a number of wider wellbeing costs. Should decision makers be required to take these into consideration?

Who should be able to review decisions?

A third design issue is decision review – which decisions can be reviewed to assess their legality and merit, who should review them, and what should remedies be when a decision is found to be unlawful or incorrect? Current laws (which vary in their vintage) make different arrangements for decision review. This may be appropriate, given the different types of decisions being taken under these laws – but you’d want to have clear and principled reasons for making different arrangements.

Regulation is one of the Government’s big levers, alongside taxation and spending. It can be used to both limit and create opportunities, and set standards for how government agencies must act. Getting that balance right in ordinary times is tricky, and setting regulation for crises is even harder. When New Zealand is back in a situation more approaching normality, it will be important to think deeply about how well the laws performed and where improvements are needed.

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Notes
1. The current laws and regulations governing the pandemic response include the Health Act 1956, the Epidemic Preparedness Act 2006, the Civil Defence and Emergency Management Act 2002, and the various secondary instruments established under their authority.

Illustration: Pandemic notice, Delhi. Source: BBC