So in constitutional terms, Andrew Little and the Prime Minister dropped something of a bombshell at her post-cabinet press conference yesterday, announcing plans that the Government would give courts the ability to send legislation back to Parliament for them to review if it was ruled inconsistent with the Bill of Rights Act, colloquially known as BORA.
This is, arguably, a step towards both making BORA sovereign over parliament, although Labour clearly has no plans to do that themselves at this stage, (I’ll get back to what that means soon) and in the long term perhaps even larger constitutional reform, but in traditional Labour style, it’s just a single step, and they were very clear about how much they love every other aspect of the status quo. So there is no reason for those of you who view any sort of constitutional reform as a highway to a Republic to get on your horses and warn people that the British may be leaving. This is small step down a big road that could lead in any number of directions.
The plan doesn’t currently give courts the ability to force any particular change on Parliament, and is just making formal and developing a clear legal framework for something courts have already done informally in the past with regards to a certain law banning prisoners from voting, where the courts verbally reprimanded the National Government for bulling ahead with a law that was unnecessarily inconsistent with BORA. Parliament can still decline to amend an Act, amend it to remove the inconsistency, or repeal it at its own discretion, so this power is in some ways more a measure to allow the courts to bring inconsistencies of previous governments’ bills to Parliament’s attention, or to try and shame the government into rethinking after it passes a bill that breaches New Zealanders’ rights without due reason.
We currently have a preventative version of this in our legal process, where all Bills are vetted for consistency with the Bill of Rights Act before they can be passed into law, but it has frequently been ignored in the past to allow bad law to pass the house, (ACT’s Three Strikes Law comes to mind) and because this mechanism requires people to be actively taking someone to court over an issue, it will likely be treated as a much more serious step because it is likely to attract more news, with it potentially being a big public relations hit to any future governments that manage to have a law returned to them while still in office after having passed it. Overall, this is a moderate but good change, and if some future government did wish to consider making Parliament accountable to BORA, this process would have established some existing case law around the matter, so that Parliament can have an informed debate about what types of laws might be returned and why, and how to best amend the Bill of Rights Act to ensure good laws that bend our rights in order to keep them in balance aren’t sent back, but bad laws that trample over them without due reason are firmly returned to Parliament for judicious disposal or heavy reform.
There’s also an implicit check on the government to take a court’s recommendation to review a law seriously because of the risk that if they allow an inconsistent law to stand with no review for blatantly unreasonable grounds, they might end up with a second court case touching on that law and sending it back to them, or their opposition, to take action on.
As to what sovereignty over Parliament means in this context, basically that’s the step at which the courts can require Parliament to amend or repeal bills to deal with an inconsistency with BORA, which effectively means Parliament must first amend BORA to pass new laws that would currently be inconsistent with it, at least if it doesn’t want to have them struck down. While this might seem like a straightforwardly good thing, and it is eventually where I want to see our constitutional reforms head in terms of human rights, it doesn’t come without risks. Allowing courts to review and potentially overturn Parliament’s legislation gives Governments a motivation to try and politically bias the court, something that we haven’t done before and a large impediment to both justice and good legislation in the USA, so there is a legitimate slippery slope argument to be made that this is a risky step to consider. There’s also a good argument that because we don’t elect judges, (nor should we) they shouldn’t have a voice on policy matters, and that allowing them to review laws in a way that gives them any sovereignty over Parliament muddies that water.
There are good safeguards we can take for that including amending BORA to allow a bit more wiggle room around when it’s acceptable for Parliament to bend our rights in the name of arguably important legislative goals, and clearly delineating the circumstances under which such judgements would be appropriate to make in the law, but for now, this is a good first step in that direction for those who support sovereignty of BORA over Parliament, and a worthwhile reform even for those who don’t, as it currently does nothing to sacrifice Parliament’s sovereignty at all.
David Parker, in his capacity as Attorney General, also made it quite clear in the press conference that he’s not seeing this as a step to a more codified constitution, (one written down as a single document rather than existing in principle over multiple laws and conventions of practice) praising the flexibility of our current constitutional system and how it works well, but he and the Justice Minister did say laws that allow for reviews like this are appropriate given our lack of an upper house, unlike all other major Westminster Parliaments. I would however note that a politician saying a constitutional arrangement is flexible should arouse suspicion in the same way as a prisoner saying the bars of their prison are flexible- really, politicians aren’t supposed to like the limits on their power.
I’m delighted that the Government is moving to give effect to a longstanding Green Party policy that the Parliament should be bound by the Bill of Rights Act. https://t.co/6skUJFqUy7
— James Shaw (@jamespeshaw) February 26, 2018
In any case, as you can see above, right now the only Party willing to stand up and say that they actually want Parliament to go towards sovereignty of BORA in the future is the Greens, (although Shaw’s a bit ahead of himself proclaiming Parliament will in any way be “bound” by BORA under this planned legislation- let’s say it’s more like a Parliament has given BORA a friendship bracelet than has in any way bound itself to it) so it looks like for the immediate future it’s not on the cards, but it’s incredibly likely to come up at some stage in future constitutional reviews, whether or not such reviews end up heading towards a Republic, and that means it’s open for future coalition talks if it happens that the bigger obstacle to going further was in fact New Zealand First rather than the Labour Party.