Legislate in haste, repent at leisure

Dr Eric Crampton
9 April, 2019

They say hard cases make for bad law. Hard cases are emotionally wrenching. They cry out for something to be done.

In America, many of the resulting laws are named after the victims of heinous crimes that created public outrage and demand for quick action: Kate’s Law, Megan’s Law, Caylee’s Law, Pamela’s Law, and Kari’s Law, to name a few.

Laws drafted in haste and in response to public sympathy for victims are often riddled with unintended consequences.

Hasty legislation also too often means we forgo better options that could do more good.

Last week, Parliament moved in haste to respond to the Christchurch massacre. The case for quick action is compelling. Fifty people were murdered. Changing the gun laws might help in preventing future tragedies. And a moratorium on the sale of some firearms while Parliament deliberates on an appropriate response makes good sense.

The moratorium should have removed the immediate cause for legislative haste. No one who does not currently own firearms like those used in Christchurch can now legally purchase them. That should have provided Parliament with time to think.

Parliament last week introduced legislation in response to the Christchurch massacre. The legislation aims to prohibit broad classes of firearms under an expedited legislative process. The Bill was introduced 1 April; first reading of the bill was 2 April; submissions were due 3 April; and the Finance and Expenditure Committee’s report on the bill was due 8 April – one week after the Bill’s introduction.

But does the legislation make sense?

Any decent legislative process begins with problem definition. It then proceeds to identifying policy options, including maintaining status quo as a potential option. Costs and benefits of the different options are assessed, and hopefully the option that does the most overall good is the one chosen. Under this Government’s Wellbeing agenda and Treasury’s Living Standards Framework, a very broad set of costs and benefits can be considered.

The process is helped by regulatory impact assessments. Substantial bits of regulation, like the prohibition proposed in this firearms legislation, are evaluated through the regulatory impact assessment process. That process helps weed out or improve legislation that does not do as good a job as it should in solving the identified policy problem.

An adequate problem definition would have situated the problem correctly: a person with a Class A firearms permit was able to convert Class A semi-automatic firearms into military-style weapons using easily obtained parts. He then used those weapons in commission of an atrocity. The same could happen again.

Several policy options come to mind.

If Class A semi-automatic firearms can easily (but illegally) be converted into Class E military-style weapons, we could consider requiring more stringent police background checks and a new licence class for semi-automatic centre-fire receivers. The receiver is the part of the firearm that determines whether the firearm can operate as a semi-automatic. Using the receiver to define the licence class, rather than a bundle of characteristics that can be altered using spare parts, would ensure anyone purchasing a firearm that might be converted to a military-style weapon would face tougher background checks.

Or we could consider placing all semi-automatic centre-fire rifles into the E-class certification.

Both options would have required the Christchurch murderer to have passed a far more stringent background check in order to acquire his weapons.

And full prohibition could also be considered against those options.

The Regulatory Impact Assessment in this case was rather less extensive because of the tight legislative timeframe.

Rushed legislation does not receive adequate scrutiny. The Police and Treasury were able to provide a minimal regulatory impact assessment – and did an admirable job for the time they were given. But what is in the assessment is worrying.

Where a good regulatory process would begin with problem definition and identification of policy options, the rushed regulatory assessment process here only examines the merits of the proposed ban. But what it did note is even more worrying.

Rather than attempt to quantify the costs and benefits of the proposed firearms prohibition, the impact statement lists several potential categories of cost and benefit, and notes whether those costs or benefits are expected to be high, medium, low or unknown.

Regulatory costs in administering a firearm buyback are unknown but were guessed to be about 2 percent of the police budget – or, to put it another way, about the cost of hiring 180 sworn officers for one year. Those are costs over and above the costs of buying back all the to-be-prohibited firearms. Some of those costs would be a one-off, but others would be ongoing – and the proportions are unknown.

The Regulatory Impact Assessment guesses that the buyback itself may cost between $100 million and $200 million, but nobody really knows. The Deputy Prime Minister recently suggested the cost could be $300 million; others have suggested up to $500 million.

Total monetised costs are estimated only to be ‘high’, with non-monetised costs completely unknown. Expected benefits are classed ‘high/medium’. But without further work, it is impossible to tell whether the policy is the best way of addressing the presented problem.

This matters.

Every policy measure has an opportunity cost – the policy that could otherwise have been undertaken. A firearm buyback costing $300 million may not be a lot in the overall budget. But it would be enough, if put into term deposits paying 5 percent interest, to fund the appointment of about 75 permanent police officers.

Shouldn’t we know which way of spending that money does more good? Mightn’t we hope to know whether the policy is likely to be effective, and what it might cost?

The Prime Minister has promised that her Wellbeing approach to budgets means every dollar spent on our behalf does the most good possible. It is a laudable goal. But how can we know whether it is true when normal policy processes are short-circuited?

Giving Treasury the necessary time to provide a more rigorous cost-benefit assessment within their Living Standards Framework would also have provided the Select Committee time to work out the kinks in the legislation – some of which were pointed out only on Monday morning by the Police union.

As a moratorium on sales of these firearms is already in place, spending the time necessary to make sure that we have gotten this right could do a lot of good. We may yet otherwise come to regret the consequences of Christchurch’s Law.

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