The Supreme Court Bill returns to the House this month from committee. Bill English says this bill is part of a government plot to alter the constitution by stealth. Is he right?
The constitution is the way we order our public affairs. There is no single written document, though there is a Constitution Act, last revised in 1986. Bits of the constitution are also to be found in a range of other acts and documents, including the Cabinet Manual, and in some “conventions” — agreed ways of doing things that have evolved over time.
At the core of the constitution is that sovereignty resides in the Queen-in-Parliament, not in the people, who decide only who goes to Parliament. Even to hold a referendum binding on Parliament, the people first need Parliament’s say-so.
Because sovereignty is with the Queen-in Parliament and because these days the Queen is, by convention, bound (except in certain rare circumstances) to accept the “advice” of the Prime Minister who in turn answers to Parliament, what Parliament decides is supreme.
No court can countermand Parliament, as in the United States and to a limited extent Australia.
But English has argued that a government can in effect let this happen by default by not countermanding rights-altering court decisions.
His case in point was the Appeal Court’s overruling of earlier court decisions which had denied the possibility of vestigial tribal ownership of the some parts of the foreshore/seabed. The government’s failure swiftly to legislate through Parliament to affirm the blanket Crown ownership assumed by earlier courts amounted to letting the Appeal Court decide a fundamental issue that should be in Parliament’s province.
Strictly speaking, English was wrong. Parliament could have overridden the Appeal Court, as it has done often enough on other matters. Nothing had changed in the constitutional balance of power.
The courts do frequently change the law by interpreting it. If Parliament judges the courts to be wrong, it legislates to bring the judges to heel.
But English also argues a different point that does have constitutional resonance: legislation (much of it promoted by the government in which he served) and court decisions on that legislation have interacted to generate arrangements for Maori that other citizens do not have and that become harder to reverse as they accumulate.
The government’s failure to legislate swiftly to reverse the foreshore/seabed decision, English argued, was such a case.
This is in part why National fears the Supreme Court. The Appeal Court has made some significant changes to the law. The new Supreme Court is likely to be made up of senior Appeal Court judges.
Those judges would likely continue to make law, National argues, tacitly backed by Labour ministers and without the Privy Council to pull them up. And the Privy Council, unlike the proposed Supreme Court, is appointed independently of local politics and personalities.
This begs the important point that in the past Parliament has judged the Privy Council to have been wrong. Famously, it legislated to override a Privy Council decision two decades ago that Samoans had citizenship here by virtue of New Zealand’s previous colonial rule.
Moreover, the Privy Council has been importing into its thinking elements of European law, reflecting Britain’s gradual integration into the European Union but inappropriate to this country.
But there is a larger constitutional point.
In 1992-3 the change in the electoral system was put to the people in two referendums, the first indicative and the second binding.
National, ACT and New Zealand First have argued that the Supreme Court Bill, a major change in the court system and so a change in the constitution, should go to referendum.
Is that all? No. An even larger constitutional point is whether to concentrate the hotchpotch of constitutional fragments into one document.
Until now even many reformers have said no because of the complex issues such a move would open up. They include whether to replace the monarchy with a republican head of state, the role of the Bill of Rights, whether the document would incorporate or otherwise recognise the Treaty of Waitangi and whether the Supreme Court would be empowered to declare acts of Parliament unconstitutional.
These are divisive, even explosive, matters.
And they are now on the table. Parliament’s justice and electoral law committee is to open a general inquiry into the constitution after it reports the Supreme Court Bill.
Where that might lead, no one can tell. In foretelling constitutional change, English may have a point.