By the Rt Hon Sir Geoffrey Palmer QC
Former Prime Minister of New Zealand
The New Zealand Bill of Rights Act 1990 was influential in the design of the UK’s Human Rights Act 1998. The prime political architect of that Act was Lord Lester, the Liberal Democrat peer. He has publicly acknowledged the influence of both New Zealand’s law and Sir Kenneth Keith, one of its designers.
The New Zealand Bill was at the limits of what could be passed then. Three issues drove it. First, the social changes resulting from New Zealand having become a much more diverse and less homogenous society. Second, the obligation to make part of domestic law the obligations undertaken by ratifying the International Covenant on Civil and Political Rights.
Third, it was stimulated by the political ascendancy of Sir Robert Muldoon, Prime Minister from 1975 until 1984. He was both Prime Minister and Minister of Finance and exercised great personal power. He came to be seen as something of a dictator. He ordered a statutory scheme of superannuation to be suspended, without calling Parliament together and changing the law. The Chief Justice held him to be in breach of the Bill of Rights 1689, part of New Zealand law as well as that of the United Kingdom. The 1984 Labour government campaigned on a comprehensive policy platform called Open Government that included a Bill of Rights, reform of Parliament, and curbs on government by secondary legislation. Contrapuntal harmonies are often at play in New Zealand’s political culture.
The New Zealand Act went through a prolonged parliamentary process with a White Paper in 1985, Select Committee scrutiny and a Bill passed in 1990. The initial proposal was a superior law Bill of Rights to which all other statutes would be subject. This was too novel. Some of the objections bordered on the bizarre: where was God in the Bill, and assertions it was all a United Nations conspiracy. Bills are made to pass, and the proposal had to be trimmed to get it passed. Dropped were:
- the supreme law element: it was enacted as an ordinary statute, preserving parliamentary sovereignty; and
- incorporation of the Treaty of Waitangi between the Crown and Māori in 1840.
Despite its weakened form, the Bill of Rights has become an important ingredient of the constitutional architecture. Accomplishments include:
- Increased attention within government agencies to comply with the Bill of Rights when designing legislative proposals.
- Vetting of legislation by the Attorney-General that measures do comply, by the production of legal opinions tabled in the House of Representatives drawing attention to breaches.
- An extensive case law over what has now been more than thirty years and improved standards of rights compliant
- Secondary legislation must be consistent with the Bill of Rights otherwise it is ultra vires the empowering provision.
- A remedy of damages in some instances for breaches.
- A recent commitment gives the Bill more weight after criticism that MPs do not sufficiently consider it in their deliberations. This was done by the introduction and report of the Privileges Committee on the New Zealand Bill of Rights (Declaration of Inconsistency) Bill now before the House. It creates a statutory mechanism confirming the superior courts have power to issue such declarations and to provide a statutory mechanism to bring declarations to the attention of the House of Representatives.
One lesson from New Zealand is that such changes must be bedded in gradually and acculturated within government agencies, the judiciary, Parliament, and the public.
The structures of government in the United Kingdom and New Zealand are similar, although New Zealand is unicameral. Both are Westminster systems with strong adherence to parliamentary sovereignty, an increasingly threadbare doctrine. Limits on parliamentary powers can be introduced by constitutional changes.
After 40 years of work on constitutional change I have reached the view that elected politicians do not like fetters upon their freedom of action. They really dislike judicial review of administrative action in my experience. And often they are not adept at designing effective statutes. On the other hand, incursion into policy and therefore inevitably public finance, by the courts must be kept on a manageable rein. Many violations of human rights involve criminal justice and derive from the common law. The judges have a sound record in this area.
Second, the public as a whole have difficulty contemplating constitutional reform, they do not know what the constitution is, they do not know how the system of government works or what human rights are. And they do not know how the rule of law and the courts work. The greatest need is increased civic literacy. That is the reason why my young granddaughter and I have just finished a book that will appear later in 2022 entitled Democracy in Aotearoa New Zealand-A Survival Guide. Young people need more civic knowledge if democracy is to survive the crises that now beset it. Human rights are an essential component of the modern democratic state.
The proposal in the United Kingdom strikes me as a policy in search of a purpose. Why start again when compelling reasons for doing so are not clearly articulated. I am left with the impression that part of the issue relates to the Brexit imbroglio and resistance to the idea that the Court of Human Rights at Strasbourg should hold sway. Attacks on the judiciary by the popular media in the UK have been strident. Attacks from politicians. have been intense too, following the two Miller decisions.
Perhaps the explanation for these proposals results from the hope that they will expunge the political anger without doing harm. Politics speaks the language of priorities. But surely the Brexit experience demonstrates that responding, even with half-measures, can lead to unexpected and potentially deleterious consequences.