Upton-on-line - Diaspora Edition 26/4/2002

Upton-on-line - Diaspora Edition

26th April 2002

In this edition

Unavoidably, the unimaginable mess that the French presidential election has spawned for the Fifth Republic; some reflections on whether there are any lessons for New Zealand; and (for the initiated) a Resource Management Act bone on which there still remains flesh to be picked!

Barbarians at the gates

Rarely has an election night generated so many wonderful one-line reactions, so many declamations of despair, so many flights of patriotic fantasy, so many apparatchiks nursing bitten tongues. France – or at least the political classes – are in a lather. Voters – and non-voters, all 28% of them – are wandering around stunned. Meanwhile, the streets of Paris in spring are as beautiful as ever, the cafés as crowded and newspapers never more eagerly devoured.

The results of Jean-Marie Le Pen’s upset breakthrough into the second round run-off for the presidency are now four days old. But the after-shocks to this séisme haven’t let up. For non-French observers there is an element of black comedy about it – not that the spectre of extremism that stalks the new claimant to the throne isn’t disturbing; it is. Rather, it is the excruciating positions into which so many politicians have managed to back themselves all at the same time.

France has always had a radical political tradition. And democracy has, shall we say, experienced the odd hiccup. But there have always been some voices of stature around whom the Republic can rally when the edifice creaks. This is a culture of great political men (yes, it is a distinctly masculine culture). Suddenly they seem to have evaporated. You would think the barbarians were at the gate to read Le Monde’s front page editorial:

“France is wounded. And for many French people, humiliated. At the forefront of a European Union which she has doggedly promoted and to whose creation she has contributed so much, this same France has, on April 21st, placed on a pedestal a sinister demagogue who has mobilised the extreme right and in so doing presented the image of a narrow and inward-looking country, haunted by its own decline, afraid even of its own children, especially when they live in the suburbs. Alas, indeed, France has fallen on troubled times.”

Not what General de Gaulle had in mind

It would never have happened in General de Gaulle’s day. Crises there were. But never was the entire political spectrum apparently compromised. Many trace the rot to the various cohabitations that have seen all manner of strange political bedfellows in recent times. People have witnessed Jacques Chirac and Lionel Jospin display exemplary good manners at international meetings while lobbing grenades at one another back at home. There has been the improbable governing coalition of the gauche plurielle led by Jospin that has been busily privatising state assets while at the same time harbouring the French communist party. Everybody, it seemed for a while, could get into bed with everyone else as long as the price was right. The result, it is alleged, was a blancmange in the middle with raging extremism at the edges as voters lurched about, disorientated, in a political terrain without any familiar contours.

There is a strong mood abroad that if only there were some leaders of undisputed moral integrity above the squalid struggles of left and right, none of this would have happened. It’s a very Gaullist reflex and one that a number of presidential hopefuls, most notably Jean-Pierre Chevènement, tried to trigger. His Pôle Républicain hoped to steal the Gaullist mantle by proposing a dose of discipline, patriotism and euro-scepticism that would enable Chevènement to paper over ideological differences (despite his solidly left to far-left credentials). At just over 5% of the voters, the pretender was found to have no clothes.

More unspeakable liaisons

Faced with the baleful glare of M. Le Pen, and the scandal-ridden M. Chirac who managed the lowest score ever for a sitting President (19% of votes cast or, taking into account abstentions, just 14% of the electorate), nearly 40% of the electorate feels disenfranchised in the second round. But so great is the loathing for Le Pen that the leaders of the left (and there are many of them) have one by one been gritting their teeth and finding ways to admit that they will indeed be voting for someone who has been immortalised by the satirists as Supermenteur (Super-liar, a take-off of Superman) so as stop Superfacho in his tracks.

This is no easy thing for people who see some of their young supporters in the streets chanting “Le Pen, out! Chirac to prison!” The spectacle of yesterday’s enemies pledging their endorsement of Chirac has provided much entertainment for the political right. As the leader of the tiny Radical Left party, Christiane Taubira, put it: “Sure I’m going to vote for Chirac, it’s bloody wonderful! “ To make quite sure the President isn’t under any illusions about the strictly contingent nature of his support, many on the outraged left are seeking absolution through constructing a scale of relative evils: “Vote for the crook, not the fascist”.

But the discomfort is scarcely less on the centre-right. After all, people who have been busily putting distance between themselves and a lame-duck President mired in scandal now find themselves having to throw in their lot with him. The (by Anglo-Saxon standards) mildly market-liberal Alain Madelin (scoring around about Richard Prebble’s current level at 3.9%), who had left the Chirac camp and expressed himself “disappointed” by the President’s disappearance down a centrist plug-hole of compromises and inaction, has already indicated a “constructive attitude”. It seems that no-one will remain untainted by the fall-out from M Le Pen’s coup (except possibly the leader of the microscopically small Workers’ Party, Daniel Gluckstein (0.47%) one of whose supporters calmly informed journalists that as a Marxist, he didn’t have much time for elections: “I only believe in class war and mobilisation in the streets”.

Is he so terrible – and are his supporters?

Someone who can trigger such desperate manoeuvrings must be pretty bad. Le Pen has been active in French political life since 1956 and managed to alienate the entire ruling class. This is scarcely surprising – someone who maintained that the Nazi gas chambers were a mere footnote in history and has drawn strong support from former French SS collaborators is scarcely part of polite society. But if he can pull only 2% fewer votes than the President, either there is something very sick with the French electorate or with French society. Most would choose the latter rather than shoot the people who sent the message (although some would happily shoot their chosen messenger who is a masterly communicator).

An analysis of who voted for Le Pen discloses a classic angry and alienated constituency of the sort that Winston Peters in New Zealand from time to time ignites. Geographically strongest in the northern, eastern and south-eastern periphery of the country, and frequently overlapping with communist strongholds, Le Pen performed the classic populist amalgam of uniting small businesses and workers. Here’s his message to the flock:

“Don’t be afraid, fellow countrymen, to take heart. Don’t any of you be afraid to dream, you the little people, the people without skills, the people on the margins; you, the miners, the metal-workers, the labourers employed by businesses that have been ruined by the euro-globalisation of Maastricht, the farm workers who are facing a miserable retirement and in fact who are going to disappear.”

Polling indicates that, incredibly, he easily outpolled any single party of the left amongst labourers (as he did with the tradespeople and small business proprietors). His supporters were older, more likely to be male, much more pessimistic about the future and transfixed by crime and lawlessness – the tide of opinion which Le Pen so skilfully surfed.

Whether the political mainstream likes it or not, there is a very significant proportion of French voters who are thoroughly alienated by trends in their society they do not like. They don’t have much in common, but disturbingly they are united in their disaffection with the political system as it has been operated. Which makes the reaction of some on the left particularly risky: “We’re given a choice between a banana republic and the red necks” complained one enraged Jospin supporter. Upton-on-line can’t help reflecting that it never does to brand one’s fellow citizens in quite that way.

And the awful trouble is that some of what M. Le Pen will say in the next two weeks will be widely concurred with even by his most ferocious opponents. He has a way with words and his verdict on M. Chirac is pretty devastating – the sort of thing the Left thinks and thought but (for reasons of its own complicity) never said:

“History teaches us that when a structure is riddled with borer – and God knows the current one is – it will, at the least shock, collapse. And that will be the case with the 5th Republic of which M. Chirac has become, today, the representative…

We are witnessing the collapse of the conniving society. France is being exposed to a national fracture between a country which is a legal entity represented by a discredited pseudo-élite, and the real France.”

The charges of corruption and connivance will remain when M. Le Pen’s brief moment in the sun is over.

Lessons for the Left

It seems pretty clear to upton-on-line that the Left has only itself to blame. As the Socialist Party Secretary François Holland moaned on television, “The plural left is just fine except when it’s too plural”. That would have to be an understatement. The French left has become so complicated that Michelin will soon need to publish a guide to it. No fewer than seven parties of the left fielded candidates. The Trotskyists alone managed a three way splinter – the Workers’ Struggle Party, the Revolutionary Communist League and the Workers’ Party. The first two combined won over 10% of the votes. But of course, combine is something they can’t bring themselves to consider – let alone support the more moderate parties of the left.

In the surreal world of the French Left, the Communist Party is considered to be a part of the moderate left – and paid the price, with its supporters deserting in droves for the more exciting radicalism offered by Arlette Laguiller (Workers’ Struggle) and Olivier Besancenot (Revolutionary Communist League). Ms Laguiller has been around for yonks and thought she was about to take the torch from the hapless Robert Hue whose collaborationist Communist Party dipped to just 3.4%, an all-time post-war low. But M. Besancenot, a fresh faced, 27 year old postie, came from nowhere and at 4.27% to her 5.75% now looks to be a credible challenger as king-maker of the extreme left (if you will forgive the impossibility of such a metaphor in the circumstances). M. Besancenot is now pondering how to reconcile the dialectical imperatives of direct action (he has mused about a “third round” which would take place in the streets rather than at the ballot box) with the necessity of voting for the dreaded M. Chirac.

But even with the Trotskyists in full flight, Jospin would have won if his former Interior Minister, Chevènement, had not been stalking around preening his own presidential ambitions and taking in a crucial 5% of the vote. It’s all very complicated and upton-on-line can only feel for Premier Jospin who took his elimination from the contest on the chin and accepted full responsibility. His only sin was to be a closet Trotskyist for years (even after he joined the Socialist Party) but then to say – candidly (and to the chagrin of those who were secretly impressed with his erstwhile radicalism) – that he did not characterise his platform as a socialist one.

Earnest, almost Calvinist in demeanour, he managed his coalition with consummate skill and naively believed (as so many socialists do) that people are deeply interested in policies and abstract principles. In the end, he foundered in the face of traditional, visceral concerns. By turning the first round of the presidential election into a plebiscite on the ‘leftness’ of its purported leaders, the left committed political suicide.

All clear for the Right?

It would be if they had their house in order, but again, they haven’t. Co-habitation, division and the President’s peccadilloes have taken their toll on the right as well. Compared with the first round of the last presidential election in 1995, the combined vote of all candidates on the right (excluding the National front) has fallen by nearly 30%. Some have gone to Le Pen. Many have drifted into abstention through disillusionment with M. Chirac. It is not the strongest base on which to build a new broad party of the centre-right (which Chirac is now trying to do).

The outcome for France is both completely certain and totally unclear. No-one believes Le Pen stands a chance. The incumbent President will be re-elected by a large margin (and secure another five years immunity from prosecution – a sort of electoral $200 he collects for getting past “Go”). But that’s not an end to it. Because parliamentary elections are scheduled for June and the prospect of yet another enforced co-habitation lies in wait.

Under the old rules, elections for the Assemblée Nationale preceded the presidential contest. But the socialists pushed through a change (with the dastardly help of the centrist UDF) in the hope that Jospin would pull off the presidency (given the number of alligators encircling the embattled President) thereby providing them with a platform to demand a mandate in the Assemblée to provide a return to coherent government. The plan is lying in ruins. Now they must support the man they hoped to oust and then campaign furiously to salvage their honour in the parliamentary elections, therebv arguing for a continuation of cohabitation (at least until they can strip the Presidency of any useful powers).

Naturally the Right will be arguing for the same end to cohabitation by seeking a majority in the Assemblée. And with the surge by the far right that might look achievable. The only trouble is that Le Pen starts from the position of having not a single supporter in the parliament. Much more seriously, his hatred for Chirac is far deeper than anything Jospin may have felt. Where Jospin positively avoided impaling the President on the corruption scandals (for reasons that leave upton-on-line completely mystified – he wouldn’t have lasted five seconds in New Zealand), Le Pen is unlikely to be so restrained.

France faces the prospect of a two-week campaign in which the person most people will vote for will have his integrity impugned in the fiercest terms. What sort of moral authority he will have to deal with either a centre-right or centre-left government two months on remains to be seen. Chirac’s refusal to debate with Le Pen – ostensibly on moral grounds – cuts two ways. If he were beyond reproach himself he should be able to savage Le Pen. By not appearing, he draws attention to his vulnerability – and will no doubt lead Le Pen to even more scathing and sarcastic attacks.

Any lessons for politicians in New Zealand?

Political cultures and systems are so different that there are rarely transportable conclusions to be drawn. But witnessing the proliferation of left wing parties, upton-on-line cannot help but be struck by the parallel with the recent melt-down that has seen the Alliance turn itself into two parties and in the process drift down into the margin of error. Whatever Mat McCarten and Lailla Harré think they’re doing, it’s far too clever for upton-on-line to fathom. There must be a virus deep within the bosom of the hard left that just can’t cope with the thought that its ideologies might never actually grab the popular imagination without a big diluting dose of compromise. That is something Anderton understood - (if, that is, he ever was of the hard left).

It is certainly something Helen Clark has understood from the outset and her very considerable public standing stems from the fact that she has made it clear that she is not going to be made a hostage to the more extreme fantasies of the ideological left. That is where Jospin’s management unravelled, as he bowed first to Greens then to Communists in a bid to keep the peace.

For both major parties, the lesson must be that if voters believe there is no light between them, then a radicalisation can occur. The chances of that are much less in the New Zealand context but MMP has heightened the chances.

And for Bill English? The age-old evidence is that all governments start to look tired no matter how bright they seemed at the outset. Jospin’s achievements in government were by no means insignificant (whether or not they were wise is a matter of political preference). And at one stage he looked unbeatable. But after a while, there’s no-one to blame but the incumbents and that is where he ended up. The elixir of eternal political youth doesn’t exist (although one would have to note that Pierre Trudeau got close to it). Parties that hold their ground rather than lurch around seeking re-launches (an unfortunate hall-mark of National’s last three years in power) eventually make it to land.

Good management can greatly slow the ageing process, but (as the French have just proved to themselves with Communist strong-holds voting for the National Front), very few voters imbibe high octane ideology. They treat their elected officials as expendable and they don’t much care whether black clouds are the making of governments or otherwise – they take it out on the incumbents.

The ghastly pickle the French got themselves into was to make virtually everybody an incumbent. That left only the men from the bush to turn to. That’s a risk that even our brand of proportional representation makes possible, though unlikely. It should be guarded against.

And what does it tell us about republics?

At least one thing. That when you invest a very large amount of symbolic significance in the Head of State and give that Head of State real power (as both France and America for example do), then a weak incumbent can put the office itself at risk (as is clearly the case in France today), and in turn, the stability of the entire political system.

The great thing about New Zealand’s current constitutional arrangements are that they invest a large amount of symbolic significance in the Head of State but no virtually no real power. The upshot is that when a political crisis threatens, the continuity of the Nation in one symbolically powerful institution is maintained. You can have a serious upheaval without having to attack the institution itself.

Needless to say, you don’t have to be a constitutional monarchy to avail yourself of this piece of reserve buffering. But it’s a particularly effective one – especially if you think the future is not likely to be entirely placid. Food for thought.

An RMA debate that just won’t go away

There is limited space here to weary readers on the Resource Management Act. But the debate over section 5 just won’t lie down. Upton-on-line has just read the article by Peter Skelton and Ali Memon in the latest issue of the Resource Management Journal which purports to be a review of the section. Upton-on-line is planning a detailed critique of the article which raises important and interesting issues. But there is one issue aside from the substance of the argument that invites immediate debate, and that is whom judges should listen to when interpreting statutes.

Skelton and Memon take the traditional line:

“It is for the Courts to decide what the law is. This is not a function of the Executive. The constitutional model is that Parliament makes the law, the Executive Government applies and enforces the law and the courts decide what the law is when determining disputes between parties.”

That is fine as far as it goes. But the authors go on to state that

“practitioners, including lawyers, planners and other environmental professionals as well as elected councillors have been pressured by the former Minister for the Environment and his departmental officials to take a particular view of the meaning of sustainable management that (as we will demonstrate) does not accord with the generally accepted view of the Courts.”

As the former Minister in question, upton-on-line is amused that making submissions to Councils (a statutory function) and otherwise interacting with the professional community is regarded as “pressure” (unlike writing learned articles for specialist periodicals). Are legislators not supposed to be able to explain their legislation? Is a Minister or a Ministry unable to express a clear view? Pressure seemed a strange word coming from learned writers who are no strangers to expressing – and publishing – opinions. Perhaps the expression of a clearly held view becomes pressure when one doesn’t agree with it?

But what of the view that the Courts should seal their ears to the express interpretation placed upon statutory provisions by Ministers and legislators? The authors have in mind here the statement made on behalf of the Government by this writer during the Third Reading of the Resource Management Bill and recorded in the Hansard for 1991 at p.3019 of Volume 516.

The authors’ views about the inadmissibility of such material are traditional ones (although they provide no authority for the position). Their preference finds its most Apollonian expression in the words of Lord Scarman in Davis v Johnson [1978] 1 All ER 1132,1157:

“…such material is an unreliable guide to the meaning of what is enacted. It promotes confusion, not clarity. The cut and thrust of debate and the pressure of executive responsibility, the essential features of open and responsible government, are not always conducive to a clear and unbiased explanation of the meaning of statutory language. And the volume of parliamentary and ministerial utterances can confuse by its very size.”

We couldn’t trust politicians to know their minds could we? But that view has been significantly modified. Upton-on-line does not travel with a full library of law reports and is a little cut-off from the leading edge of judicial comment on this matter. But he recalls that in Pepper v Hart [1993] 1 All ER 42, Lord Browne-Wilkinson supported the use of Hansard “as an aid to the construction of legislation which is ambiguous or obscure” while sensibly observing that this was only likely to be useful where “the promoter of the legislation has made a clear statement directed to that very issue” (at p164).
Upton-on-line would respectfully suggest that he directed himself very precisely to the purpose clause of the Act in reporting the then Bill back to the House and, furthermore, explicitly expressed the hope (in line with Pepper v Hart) that judicial notice might be taken of it. This was not a case, to paraphrase Lord Scarman, of a busy minister involved in the cut and thrust of debate making one assertion amidst countless others that litter the record of the debate. In this case, the Minister sat studiously at his word processor prior to the debate and carefully chose his words in the light of judicial authority. He also took the trouble to confer with his Opposition counterpart (Hon Peter Dunne) to ensure that, on this at least, we were broadly ad idem.
Notwithstanding that, upton-on-line has considerable respect for the principle being advocated by Skelton and Memon. There are going to be many technical clauses where their approach should remain the proper one. It is the intrusion into the statute books of policy-laden clauses – purpose clauses, principles clauses and such like – that has made the job of the courts much harder and invited the sort of ministerial statement that this writer made. Since then, upton-on-line has grown much more sceptical of the utility of such general policy clauses. They certainly provide a field day for public law experts. All too often they reduce clarity and dodge responsibility. If executive government wants to retain control of policy, it should choose appropriate instruments rather than hand high level formulae over for others to interpret.
Nevertheless, sections 4 and 5 of the RMA relate to an era when such clauses were in vogue and considerable lengths were taken to provide clarity and guidance. That this should be described as ‘pressure’ is unfortunate. Readers interested in the genesis of these clauses are advised to refer to the Waikato Law Review, Volume 3, pp 17 – 55, where in the Stace Hammond Grace Lecture the writer spelt out at length the genesis of the clauses in question and the philosophical debates that preceded their enactment – matters only touched upon briefly in Skelton and Memon’s piece. (Surprisingly, the authors do not appear to have been aware of its existence in reaching their conclusions).
As it happens, upton-on-line is inclined to agree with Skelton and Memon’s analysis of where the courts have ended in interpreting section 5. Needless to say, he does not share the endorsement they provide for this state of affairs nor much of their understanding of what section 5 is all about. That must be the subject of a subsequent analysis. But for the purposes of this note a more urgent question pertains: if it is correct that courts should wave away clear material in support of policy clauses on the basis that their understanding of policy matters is superior, where does this leave legislators? Upton-on-line is now inclined to the view that we should not be having resort to purpose clauses with a heavily policy-laden content.
Skelton and Memon complain that “one would have expected the purpose to be clarified by making an appropriate amendment” and charge “successive governments [with lacking] the political will to initiate any legislative changes to this section”. One reason for that might be that at least one previous government was quite clear about what it meant but stood little chance of prevailing against a view which maintained that “the Courts are not required to take into account expressed views of legislators, the executive or their officials” - even when the inevitably broad nature of a purpose clause makes the policy context of its genesis hugely relevant to its interpretation.
On the substantive issue of interpretation, upton-on-line will revert.

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