Robert Muldoon rises from the grave to join the Brexit debate in London

Well, not literally. But a 1976 NZ judgment involving PM Muldoon and a public servant has played a cameo role in the English High Court ruling that the prime minister, Theresa May, cannot bypass parliament in triggering the UK exit from the EU. Asher Emanuel explains.

New Zealand, late 1975. A television ad warns that the socialist menace lurks in the Labour government’s compulsory superannuation savings scheme, which distinctly resembles what we now call KiwiSaver. Robert Muldoon wins the election in a landslide. Nine long years and a lot of bad things would come to pass before Muldoon was brought down. But his fight against communism in the form of compulsory savings began immediately.

Christmas was close when Muldoon was sworn in as prime minister and parliament — apparently more of a part-time gig back then — wasn’t planning to sit again until June the following year. But after only three days in office the PM announced, as of immediately, it was no longer necessary to make payments to the savings scheme. When parliament reconvened six months later the law would be properly repealed. In the meantime savings could more prudently be invested in other things like, I don’t know, Chrisco hampers.

The people were liberated for a brief while before constitutional stickler and suspected nerd Paul Fitzgerald (a 28-year-old assistant section clerk in the Department of Something-or-Other, and a member of the Labour Party) decided to sue the prime minister.

See you in court

Fitzgerald’s case was this: parliament, made up of the Members in the House of Representatives and the Queen (in the form of the Governor-General’s pen), is responsible for making laws. The executive, led by the prime minister and cabinet, is responsible for carrying out the laws. Parliament’s laws don’t stop being laws just because the prime minister has said so. He was just another member of parliament and needed to get a majority of members to agree before the law could be changed.

An angry, populist prime minister, 1975, and an angry, populist newspaper, 2016

An angry, populist prime minister, 1975, and an angry, populist newspaper, 2016

Fitzgerald went further: what Muldoon had done was illegal. Most vitally, the Bill of Rights 1688 protects New Zealanders’ protestant idyll from the tyranny of Popish princes or other Papists. But it also says in pretty plain terms that “the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal ”.

Chief Justice Wild heard the trial over four days in what was then the Supreme Court (since rebranded as the High Court). After seven days of rumination he managed a nine-page judgment.

Frustrating as it was, the judge ruled that Muldoon had to do the paperwork – write a law, read it three times in the House, get the governor-general to sign it, et cetera. His claim to have suspended the law? Illegal. It’s an important point still sometimes overlooked: the government and parliament are different things and contrary to one populist’s belief a government cannot do anything it wants.

Fitzgerald’s victory probably seemed at the time essentially futile. Those were the bad old days of first-past-the-post and whopping parliamentary majorities. Muldoon had no trouble getting Parliament to repeal the law in July, just a few months after his judicial telling-off. Abandoning the savings scheme was probably a catastrophic error. By 2007 when Kiwisaver was introduced, the fund would have been worth over $240 billion and perhaps fewer boomers would now rely so heavily on property as a form of saving.

The judgment sat on the shelf for decades, occasionally cited in distant lands like Canada and Trinidad and Tobago, never making it back to the seat of empire. Until last week.

A different High Court

The United Kingdom, late 2016. More precisely: last Thursday. Gina Miller, constitutional stickler, had sued the secretary of state for exiting the European Union, a novel government role and strange obverse to the secretary of state for international trade. Result: the High Court of Justice decided the prime minister, Theresa May, cannot Brexit from the European Union unless parliament changes the law.

Read deeply enough through the Brexit judgment and there you’ll find the name Muldoon. The court’s reasons invoke the same principle that delayed Muldoon in 1976. The law would end up being changed if the prime minister starts the Brexit process by giving notice under one of the European Union treaties. She can’t unless so authorised by parliament.

Many Remain campaigners have rejoiced at this latest twist of fate for Leave. Reassertion of parliamentary sovereignty was one of Leave’s few principles. But Thursday’s reassertion of parliamentary sovereignty now stands in Brexit’s way.

Some of Leave’s democratic anxieties were, though, borne out once more in the court’s decision. Judges are even less democratically accountable than those which Leave called “Eurocrats”. Stay in the EU and the people’s will is stymied by Brussels-based appointees; attempt to depart the Union and the Queen’s judges, selected not elected, insist on onerous paperwork. The Daily Mail, a populist paper which lives for drama, had only unkind things to say.

A very charitable reading is that the Mail was making the sensible point that law is politics in bad drag and judges just a highly-specialised breed of politician. But the more plausible reading is that the Mail was attempting to incite mob violence.

Or perhaps support May to press on despite the ruling? Apparently in 76 Muldoon considered, ahead of the trial, disobeying any injunction the judge might give until the Solicitor-General reminded him it would be setting a bad example.

See, for example, New Zealand

Muldoon’s name-check will warm the patriot’s heart like only mentions of New Zealand in the international press ordinarily can — the New York Times reports Justice Ginsberg might move to New Zealand if Trump happens! Al Jazeera reminds the world that one in every 100 New Zealanders is homeless! Our name in lights.

There we are, mentioned once more, in the first sentence of the 86th paragraph of Miller v Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin), a parenthetical aside:

“[blah blah blah] an especially strong constitutional tradition in the United Kingdom (and the democracies which follow that tradition — see for example the New Zealand decision in Fitzgerald v Muldoon [1976] 2 NZLR 615 at 622).”

All publicity is good publicity.

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