September 27, 2019

English Supreme Court decision supports the Kiwi Party contention

English Supreme Court decision supports the Kiwi Party contention

English Supreme Court decision in the recent Prorogation case supports the Kiwi Party contention that the Court should declare that the Amendments to the Arms Act were unlawful

While the UK Prorogation case,, and the Kiwi Party case are quite different in some respects, in others they are similar. The similarities lie in the question of justiciablity and the importance of constitutional principles.


A fundamental issue is justiciablity: that is whether the case can be heard by the Court, or if the conduct of Parliament or the executive are outside the Court’s remit. In the first instance the UK Courts had held that the claims were not judiciable, which was the same basis upon which most of the Kiwi Party proceedings in the High Court were struck out. The UK Supreme Court found that the issue was judiciable stating:

  1. Secondly, although the courts cannot decide political questions, the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it. As the Divisional Court observed in para 47 of its judgment, almost all important decisions made by the executive have a political hue to them. Nevertheless, the courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries. Many if not most of the constitutional cases in our legal history have been concerned with politics in that sense.

It must be remembered that one of the claims in the Kiwi Party case is that the decision to amend the Arms Act was made by the Executive and that because of the power of the party machine, Parliament abdicated its function to properly consider the Bill and simply gave effect to the demands of the Executive. This is clearly seen in role the NZ police played in the Select Committee process. The Select Committee handed over to the Police consideration of submissions and then signed off on the Police demands.

A core consideration of the UK Supreme Court was:

[46] But the longer that Parliament stands prorogued, the greater the risk that responsible government may be replaced by unaccountable government: the antithesis of the democratic model.

An issue in the Kiwi Party case is whether the party system, safe seats and MMP have resulted in government which is effectively unaccountable. Of course the reliance on accountability by the UK Supreme Court, in a situation where the majority of MP”s are refusing to be accountable and act in accordance with the Brexit referendum, just shows what contradictions the Court can embrace to arrive at a position it politically prefers.

It is also important that as in the Kiwi Party case the UK Supreme Court relies on historical cases, which had been treated as no longer being relevant, as follows:

  1. Two examples will suffice to illustrate the point. The 17th century was a period of turmoil over the relationship between the Stuart kings and Parliament, which culminated in civil war. That political controversy did not deter the courts from holding, in the Case of Proclamations (1611) 12 Co Rep 74, that an attempt to alter the law of the land by the use of the Crown’s prerogative powers was unlawful. The court concluded at p 76 that “the King hath no prerogative, but that which the law of the land allows him”, indicating that the limits of prerogative powers were set by law and were determined by the courts. The later 18th century was another troubled period in our political history, when the Government was greatly concerned about seditious publications. That did not deter the courts from holding, in Entick v Carrington (1765) 19 State Tr 1029; 2 Wils KB 275, that the Secretary of State could not order searches of private property without authority conferred by an Act of Parliament or the common law.

In regard to Entick v Carrington this is not accurate as it was not in issue as to whether the search was within the authority of an Act. What was in issue was whether an Act of Parliament, 24th of Geo. 2, indemnified the King’s messengers who conducted the search from civil suit, on account of them being ‘conservators of the peace’ and as such to be treated as justices of the peace. As set out in Entick v Carrington:

24th of Geo. 2 is entitled, "An act for the rendering justices of the peace more safe in the execution of their officers, and for indemnifying constables and others acting in obedience to their warrants." The preamble runs thus:

Whereas justices of the peace are discouraged in the execution of their offices, by vexatious actions brought against them, for by reason of small and involuntary errors in their proceedings; and whereas it is necessary that they should be, as far as is consistent with justice and the safety and liberty of the subjects over whom their authority extends, rendered safe in the execution of the said office and trust; and whereas it is also necessary, that the subject should be protected from all willful and oppressive abuse of the several laws committed to the care and execution of the justices of the peace."

The Court in Entick v Carrington found that neither the messengers nor the secretary of state were so indemnified.

While the UK Supreme Court was not accurate in regard to the issues in Entick v Carrington, it did follow Entick v Carrington as authority for the preeminence of constitutionality in English law, as follows:

  1. Fourthly, if the issue before the court is justiciable, deciding it will not offend against the separation of powers. As we have just indicated, the court will be performing its proper function under our constitution. Indeed, by ensuring that the Government does not use the power of prorogation unlawfully with the effect of preventing Parliament from carrying out its proper functions, the court will be giving effect to the separation of powers. (emphasis added)

Note the reference to “our constitution”. At the heart of the Kiwi Party case is that we have a constitution that is high law and at a minimum the Court should declare what this is.

The UK Supreme Court explicitly stated that the UK possessed a constitution as follows:

  1. Although the United Kingdom does not have a single document entitled “The Constitution”, it nevertheless possesses a Constitution, established over the course of our history by common law, statutes, conventions and practice. Since it has not been codified, it has developed pragmatically, and remains sufficiently flexible to be capable of further development. Nevertheless, it includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context.

As the Laws of England Act 1858 adopted the “laws of England as existing on the 14th day of January 1840”, the UK Constitution is part of NZ law as high law.

In the Kiwi Party case, while the A-G argued that the Right to bear Arms provided in the Bill of Rights 1688 was able to be overridden by the Amendment to the Arms Act, however he relied on s9 of the Bill of Rights 1688 which provides:

“That the Freedom of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parlyament.”

Section 9 was also relied on by the UK A-G in the Prorogation case.

The UK Supreme Court rejected this argument. I think they did so on the wrong basis, finding it was Act of Parliament, rather than a Constitutional statement. Both would still be subject to interpretation and in my view the interpretation would be the same, that the scope of s9 did not prevent the justiciablity of the Prorogation. The UK Supreme Court held that case s9 is centered on Parliamentary freedom of speech and debate. What is in issue here is the chilling factor of libel proceedings on freedom of speech in Parliament. As argued in the Kiwi Party case it was the stifling of freedom of speech and debate within the Select Committee by the political parties, that required the intervention of the Court.

Importantly the UK Supreme Court noted at [66] that while there was an arena within which there was “exclusive cognisance” by Parliament, “extensive inroads had been made into areas previously within exclusive cognisance.” What this means is that this is not an area of settled law and the striking out of the relevant parts of the Kiwi Party case was wrong at law, as strike out is only permissible where the law is settled.

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