Who is really making the decisions?

Increasingly, decisions around our daily lives are being made by unelected, unaccountable, nameless managers.

Just a few weeks ago, Organ Donation New Zealand announced they had been working on a national strategy for ‘Assisted Dying Donation’.  This means that those seeking euthanasia/assisted suicide can also donate their organs after their death.  For some readers, this will be a welcome development.  For others, quite disturbing.

For me, it raised at least two red flags.  The main concern has nothing to do with the ethical questions of euthanasia per se, but rather how this new strategy demonstrates how a managerial class of people - and not elected representatives – have made this decision.  The second is ethically related, and that is whether such a strategy changes the quantum when it comes to motives and coercion around assisted suicide. 

I want to concern myself with only the first today, and that is the fundamental issue of who decides the rules in New Zealand.  For most of us, we understand that it is the place of Parliament – that collection of elected representatives we call MPs – to determine the rules and regulations of society.  However, over many years we have observed an influential managerial class develop both here and overseas.  By this I mean a collection of civil servants, policy advisors, and judges (among others) who are making many of society’s decisions.  They are often unnamed, unknown, and certainly unaccountable to the public at large.

This organ donation issue illustrates this quickly and clearly.  Parliament has made no determinations in this space; there is nothing explicitly in law about it – either approving or preventing it.  Yet, I for one, would have expected Parliament to determine the legality of this issue - not a managerial group of bureaucrats.

This is not to question policy makers’ intentions, but rather their role in decision making.  Civil servants are there to discuss, suggest, and implement policy via Parliament.  Elected Members of Parliament are the ones to make the decisions and articulate the laws.  In this situation and others, we have instead unelected officials making the decisions and drafting the approach for the country.  Unlike politicians, they are unaccountable to the public.

Now, one can argue that if there is no law prohibiting something, then that something is therefore possible.  The old legal maxim that “everything which is not forbidden is allowed.”   I can appreciate this argument but this is also a significant change and one I consider worthy of parliamentary consideration.  And this is the key point – it’s not whether this matter of organ donation after euthanasia is ethical or not, or legal or not, but who should be making the decision as to it’s prudence. I strongly suggest it is for Parliament to determine, not managerial bureaucrats no matter how well-intentioned.

We have also witnessed this managerial dynamic in our courts - another group of unelected managers that we call ‘judges’.  The recent Ellis v R. case, where tikanga got introduced as ‘the first law of New Zealand’, is one clear example.  Parliament has not said anything about tikanga as law, and so the Supreme Court simply decided to add it in on it’s own initiative.  The same is true of the courts taking many aspects of international law to directly apply to New Zealand even though many have not been formally adopted by Parliament as part of New Zealand’s domestic law.  It is the courts deciding this, not the elected Parliament and in turn, as international legal ideas change so too can the interpretation of parliamentary laws.  As Roger Partridge from the NZ Initiative pointed out in a recent research paper:

“this approach effectively transfers lawmaking power from Parliament to the courts. As courts reinterpret laws to align with evolving international standards or norms, they are changing the law without Parliament acting.”

We have also had the courts re-interpret Parliament’s laws according to their own perceptions of how society should be.  The deregistration of Family First as a charity is one clear example.  After many years operating happily with charitable status, one day some managerial bureaucrats decided it no longer was charitable - most likely as they did not agree with the organisation’s views.  The courts took a similar view, effectively stating that they (the court), and not Parliament, were best placed to decide what society’s values are and how they should be legally expressed. 

Like organ donation, I am not concerned in this Substack about the ins-and-outs of this particular case, but rather how it illustrates how an unelected group of people are making decisions that effect our lives and without elected, or parliamentary, oversight. 

This is the managerial class that is often referred to – a group of people, unelected and ultimately unaccountable for their decisions, and yet making profound changes to the way we live our lives.

There is much more that could be written on this, but for those interested in a wider and deeper discussion of these matters, can I recommend a few radio interviews and podcasts I have recently done. The first is a replay of a radio interview I did with Professor Bruce Pardy of Queen’s University, Canada and available on RCR radio:

Professor Pardy talks about how we have replaced the ‘rule of law’ with the ‘rule by law’.  Put simply, he argues that fundamental freedoms have now been replaced by a slew of regulations and rules, more often than not, made by this managerial class.  Think how freedom of speech (a fundamental right) has been challenged at universities via codes of conduct, health and safety considerations, and other rules, regulations, and requirements.

I’ve also had several excellent conversations with cultural commentator, Brendan Malone, around this very topic of the managerial class or technocracy.  You can check out our conversations below - one via my Family First podcast, the other my weekly radio show: