HAVING SOMETHING TO SAY

On memories of Covid times, of university, and the Regulatory Standards Bill

One of the hardest things in life, I find, is to say things one can and does mean – both in terms of expressing thought and living out what one says by action.

Memories of Covid

This often shows up in extreme situations, and the on-going Covid inquiry hearings have brought back memories of that time vividly.

Throughout the pandemic I was ambivalent about a lot that happened. It seemed that a mere mortal, making merely mortal efforts, could say very little one really meant. For me, this made living out a truthful life hard. Was a tiny reduction in risk worth requiring mothers to give birth without their partners? Worth someone dying alone? To me, about the best you could honestly do on many key questions of the time was to say “I don’t know”.

Saying “I don’t know” wasn’t popular. If you did, you were ignored or routinely compared to cranks. This atmosphere reached fever pitch as the certainties of the public square drifted ever more obviously away from reality. In the end as many as a third of New Zealanders, including me, supported the occupation of the Parliament lawns, and they were from all walks of life. Yet even in a more sober aftermath, all we got was the unhinged Fire and Fury from Stuff and similar amateur efforts from those more routinely out-to-lunch.

To be sure, there were rare occasions when I was sure of quite specific things. A example came one day when an unremarkable fact about Christchurch wastewater testing appeared prominently in RNZ’s morning news. It occurred to me that, if taken out of context, this fact could be used to support the continuation of uniform restrictions across the country for a few days, at a time when differing rates of infection were making uniform restrictions between islands a politically sensitive issue. I don’t bet as a rule, but that time I indulged with my bubble. And after exactly that justification for exactly that outcome aired on RNZ’s evening news, I enjoyed a winning Fruju™ or two. They were great, but the occasion soured by a misused truth.

An earlier, more major surety – to me at least – was also more prosaic. It was that pursuing “elimination” and closing the border was, even before any NZ restrictions at all, obviously going to pose a significant challenge for reintegrating these islands into the world. That challenge would be long-run and not as easily accounted-for as any short run gains in lives saved. This didn’t imply a particular decision about strategy in March 2020. But to me it did imply as a matter of logic that the commitment to elimination ought always to have remained under review in light of the trade-offs, and publicly so. I wrote a less eloquent version of these thoughts to a small group of MPs in early April 2020. One or two responded politely, but perhaps predictably these kinds of observations went ignored. We got ill-founded certainty instead, and this did encourage collective action for a time. But as I’ve reflected on before, it is still probably too early to assess the outcomes of making that trade-off.

I have faced steep and exposed ice and rock in the Southern Alps, but couldn’t find the strength of my convictions to say “I don’t know” as often as I thought it during Covid. For the very same reason, I doubtless fell often into saying a lot about things on which I knew nothing. Just as freezing snow camps can make routine jobs almost impossible, normal speech, then, can be extreme in extreme circumstances.

More normal times

The pandemic, of course, was not a normal time and is still close behind us in many ways. So it took a long time (for me at least) to recognise that even in normal times many people find it hard to say “I don’t know” as often as they should.

For one small example years ago in university, a trusts case was on appeal. I wrote an essay about why it ought to be decided in a particular way. I knew the lecturer and I differed in our views on this. I knew that differing would need humility and proportion on my part, and that agreeing would be easier. I didn’t do that, and at the time was disappointed to get a bad enough mark to meaningfully cost my GPA, with all the little ripples that can cause a young hopeful down the track. Later the Supreme Court decided ‘my’ way. I got a lesson that has served me well when I’ve had the courage to recall it: to do my homework, then trust in my abilities and tutored intuitions. I may have overstated my case or even made a poor argument in that essay. I don’t know. But it seems possible the prof simply couldn’t find the strength to say “perhaps you’re right” and “I don’t know” too.

All these thoughts came to me after a reader, acquaintance and respected senior lawyer suggested that I read a book – Living Speech by James Boyd White. I wholeheartedly recommend this to any reader who counts themselves at least a part time legal nerd. This is a book about what characterises valuable, “living”, speech. By implication and at times explicitly, it is also about speech lacking in value. In the context of intense freedom of speech debates, this is bold stuff, and absolutely not down some hackneyed hate-speech-culture-war track. A particular highlight was the image of responsible persuasion, as distinct from manipulation, as “offering the listener the chance to say something they can mean”.

The Regulatory Standards Bill

Somehow the Regulatory Standards Bill has come to dominate the news I’m fed. For the rest of this piece, reading Living Speech has persuaded me to offer readers a chance to agree with a position not commonly aired in the public domain.

This is to say that while I don’t think the Bill is a great idea, I don’t believe the hyperbole for or against it, and that its key lesson is the mirror it holds up to contemporary public debate.

Legislation

In so far as the Bill aims to influence existing and future legislation, the Bill is not dangerous but merely silly. First, it will add to and complicate existing checks on legislative quality, things like Regulatory Impact Statements for new law and Departmental Reviews for existing law. Second, while the Bill is clearly the long-harboured dream of a small group convinced about libertarian values, it misunderstands the nature of a sovereign Parliament, which can’t formally bind its successors if it wants to.

On the current state of the public debate, even if the Bill is passed, it will be repealed at the first change of government. Maybe it could be amended too. And even if it isn’t, its ongoing influence will have the character of a pendulum.

Why? Regulatory Standards Board and departmental officials will give advice that can be ignored and will not affect the validity of legislation. Board officials will be hand-picked by key politicians. And even Mr Seymour is on the record as saying there will need to be guidance on the application of the obviously-partial “principles of good regulation” - he will write the first set.

Even if a government finds itself unable to replace a stacked Board at a convenient time, even if it is not inclined to tilt the guidance given to that Board, and even if it is not inclined merely to ignore that Board or responsible agency’s advice, all it will face will be a political cacophancy, not unlike governments passing laws do now.

It will be able to minimise the political consequences of this cacophany in the normal way. For example, applying property theory from the likes of Honoré could create a straightforwardly arguable route for Treaty-related concerns, and things like Māori interests in freshwater, to enter a “regulatory standards” discussion. Adding analyses like these to a liberal-and-tenable interpretations of other parts of the “responsible regulation principles” will create a straightforwardly arguable route for environmental concerns more directly. “Arguable” in this context will mean that these things actually get argued.

In the end, it will be a politically negligent government that allows things to go so far, but even in these situations the public will see a debate including these important dimensions and others. The public will intuit that it otherwise would have seen that debate in some form, and care about the details in the fickle manner it does now - if it isn’t too busy trying to afford butter or get a filling. If all this creates a delay with potential electoral ramifications, governments could use urgency without much meaningful blowback, much in the way it is over-used by all sides now.

So like Luke Malpass says, the Bill seems likely to achieve very little in relation to future legislation. For me the Bill is a bad idea because it seems bound to waste time, and probably diminish the standing of politicians, political culture and processes. These outcomes are doubly bad because they’re avoidable. But they are qualitatively different that a Bill leading in any overall legislative direction, let alone leading New Zealand to libertarian nirvana or adding a vector for yet more undue influence on policy.

If the Bill does end up achieving long run influence over legislation, it will only be because a majority in successive Parliaments, elected in the usual way, agree it should. That’s on the people.

Regulations

None other than a former Prime Minister and respected jurist have said that “evidence” is needed to support an assertion that there exist poor regulations. We are fortunate to have such eminent contributions to the public discussion. But the quality of this part of his argument is poor. Of course there exist poor and even forgotten regulations. The notion that the matter is one susceptible of “proof” by way of “evidence” is a category error. The desirable volume and character of regulation is plainly a question of value, and suggestions otherwise are as unconvincing as suggestions from hyped-up Bill-supporters that regulation is presumptively bad and we should welcome the shears.

In so far as the Bill aims to influence existing and future regulations, the situation is very similar to that for legislation itself.

There are existing means of supervising regulations, chief among them Parliament’s Regulations Review Committee and the High Court in its supervisory jurisdiction over secondary legislation. It is fair to say that a government more serious about stewardship of secondary legislation would have availed themselves more heavily of these existing measures - so that an inference of coming hatchet jobs is tenable.

The Bill would complicate the secondary legislation picture, probably mostly in wasteful ways mirroring the contours sketched above. Lots of officials’ time will be used up delivering on the Bill’s regulatory stewardship. But if a Regulatory Standards Board opts to go full hatchet - starts to pick on regulations very obviously up the political street of the government of the day, rather than merely forgotten or plainly outdated ones requiring telex communications or barring women from this or that - the situation will resolve in wasteful pendulum swinging rather than any particular direction.

What’s going on here?

What is going on with the Regulatory Standards Bill seems sad on many levels. Just as Mr Seymour’s public put-downs of detractors diminish both him and the debate, so too do those who call him “dangerous” or the like. Both are sorry reflections in the mirror of public debate.

I can’t see into the minds or hearts of the Regulatory Standards Bill’s promoters. All I can say is that they hold a set of values strongly, and legitimately. They believe that those values can somehow, and ought somehow, channel the future ebbs and flows of New Zealand regulation. So far, so unremarkable. And here is an effort directed at the real and commonly identified problem of political short termism. So far, so good?

Not quite. If the Bill is directed at a real problem, promoters want to achieve this kind of effect using a novel means: a blunt Act of Parliament. This won’t work for the reasons above, of this I am confident. But it is still sad for a number for reasons:

• First, the amount and quality of law and regulations is about values. There will always be a contest of ideas, and should be. Such a bald attempt at channeling, even if it will be ineffective, seems to represent a new depth of lack of faith in New Zealanders with other views. When we forget that the other guys almost always have something to say, and forget to try hearing it, we forget something very important.

• Second, if promoters want to create a straightjacket or even just put us in a channel, there also seems a sad lack of faith in the New Zealanders of the future. The contest of ideas is forever. I wouldn’t like my parents having so little faith in me, and would also resent not having been given the full range of options to respond to circumstances I know best.

• Finally, there seems to be a sad over-confidence in a set of ideas - an unwillingness to say “I don’t know” quite as much as reflects the depth of all of our ignorance. In this way, it seems that the Bill is not about living with truth. It even has the regrettable tinge of all-knowing strong-man about it.

The Bill wants to promote sensible law that is stable across time, to move past short termism in its way. That’s great. The only way this has ever been possible – is to find humility enough to build consensus around laws that do live with truth. One such truth is to recognise that we enrich each other’s lives, or at least need each other. This means never stopping in an effort to say one’s own piece, to reflect on others’ views and interests, and to see their interests as ultimately being our own too.

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9 July 2025

[Update 13 July 2025: Some readers have pointed out that my discussion on Parliament binding its successors isn’t as rich as the reality. Indeed. There is always a tension between compression and accuracy. Those interested in a concise recent discussion on this subject might refer to Kenneth Keith’s Without Fear or Favour: A Life in Law. This discussion amply supports the case that for Parliament to bind its successors, wide long-run political agreement is ultimately necessary.]