Thursday, October 20, 2005



Cat, meet pigeons

Is the UK a foreign power?

That's the question asked by Otago University's Gregor Macaulay in the latest issue of the New Zealand Law Journal. And the reason it matters is because of our habit of making our Prime Ministers (and sometimes other senior politicians) members of the Privy Council. This means that they get to call themselves "Right Honourable", as opposed to merely "Honourable", which is what Cabinet Ministers (or rather, members of the Executive Council in our inherited, kludged-together constitutional parlance) get to call themselves. But it also means they have to swear an oath of office [DOC], in which they swear "to be a true and faithful Servant unto The Queen’s Majesty" and "to your uttermost bear Faith and Allegiance" to her. In the time of Dick Seddon, this was unproblematic; we were unquestionably part of Great Britain. But now, legally speaking, we are not. That ended with the confirmation of our adoption of the Statute of Westminster in 1947, and the final nail was hammered into the coffin with the passage of the Constitution Act 1986, which finally removed the ability for the British Parliament to pass laws for us. Even our monarchy is legally technically seperate from the UK; in our law, unless specifically stated otherwise, references to the Queen mean "the Queen in right of New Zealand" - not the Queen in right of the UK. And since the passage of the Imperial Laws Application Act 1988, the Privy Council in anything other than its judicial role has not been part of our law. It is a British institution, and its oath unquestionably refers to the Queen in right of the UK.

This would be merely a curiousity, except for one thing: s 55(1)(b) of the Electoral Act 1993 requires that an MP's seat be declared vacant

if he or she takes an oath or makes a declaration or acknowledgement of allegiance, obedience, or adherence to a foreign State, foreign Head of State, or foreign Power, whether required on appointment to an office or otherwise

(Emphasis added)

"Harry's Law" meant that this did not apply in the last Parliamentary term, and further allows Members to renew dual citizenship or foreign passports. But it doesn't allow them to swear allegiance to a foreign head of state. This isn't a new provision; it's been present in our law since the very beginning. It's the relationship with the UK that has changed.

Which brings us back to our original question: is the UK a foreign power? While older New Zealanders and staunch monarchists would deny it, legally it's quite uncertain. The term is defined in some of our laws (though not the Electoral Act) as "any country other than New Zealand", and the High Court of Australia (whose judgements a New Zealand court would be likely to at least examine) has ruled that the UK is a foreign power under Australian law. But if this is the case, then we have problems: various ministers and MPs would not have been entitled to hold their seats (and hence be ministers), thus allowing regulations, contracts, and decisions made by them to be retrospectively overturned - exactly the same problem we faced with Harry Duynhoven. And the only answer is to legislate to clarify the position - otherwise someone will force the issue. This will necessarily mean further clarifying our relationship with the UK, which IMHO can only be a good thing.

8 comments:

That is a very interesting post, thank you. On a small technical point, you need to fix the link to the Privy Council oath.

What is also interesting is something that Tony Benn pointed out a few years back: a new monarch for the UK can only be installed if no privy councillor objects to the person due to be proclaimed. At least I think that's it - you'll have to hunt down the technicalities. I could only find:
http://www.everything2.com/index.pl?node=Privy%20Council and this article from Roy Hattersley (not Benn's biggest fan, but in agreement with him about this at least):
http://www.guardian.co.uk/monarchy/story/0,2763,411040,00.html

So... Tony Benn might be able to stop the UK from getting Charles (or William) as the next monarch, simply by being present and saying 'no' at the apppropriate moment. But perhaps more worrying for British monarchists is that New Zealand and other foreign members of the Privy Council could do the same thing, it would seem.

Posted by Anonymous : 10/20/2005 09:23:00 PM

That is all correct right of course, as you point out the Queen is OUR head of state. She is considered OUR queen. I am neither a monarchist nor a constitutional expert, however it does seem there is no problem here if you complete the flip of logic to suggest that QEII is our very own.

Our MPs are swearing allegiance to our head of state. The law says you cannot swear allegiance to a foreign head of state. This tautological transgression is solved by having HRH as our very own head of state. Our MPs swear allegiance to her, not the citizens of this country you hear...

Not that I am saying we should swap this way for that, there are some very good reasons for having an essentially powerless head of state living in another country - but that is another debate.

Posted by Conor : 10/20/2005 11:34:00 PM

Conor: unfotunately you can't just handwave it away like that. Legally, the monarchies are seperate (and while its highly unlikely, could be held by two different people if that makes it any clearer). And as is frequently pointed out by monarchists, oaths of allegiance aren't personal, but use the monarch as a representative of the state. But which state is the Queen representing in the Privy Councillor's oath? The UK - not NZ.

While its about relationships with monarchical institutions, this isn't really about republicanism. Rather, it's a problem stemming from our slow journey from British colony to fully independent nation. We're now unquestionably the latter, but haven't dealt with all the consequences yet (like the UK now being another country, no matter how friendly).

One way of fixing this is to legislate to say "it's OK to be a Privy Councillor". Another is to enforce the law and say "it's not". Either would require retrospective legislation to say it was OK in the past, simply to avoid trouble.

Posted by Idiot/Savant : 10/21/2005 12:43:00 AM

I would have thought there would be something in statute to the effect of all references in NZ law to HM are construed to be HM in right of NZ - or at least that would be the judicial understanding regardless of any statute unless the reference of which you speak specifically excluded NZ in some way - but I doubt it. Any court, I think, would impute that the roles are not incompatible. Although I agree that it would be teasing out the logic to make it stick.

But nice try. I like where you're going with it. And yes - if a prima facie case can be made - test it. It would be fantastic to be wrong on this point wouldn't it! So too the potential Tony Benn spanner, that would be great.

We are one of the few countries left that can have these absurd discussions. I'm trying to help iron it out at the republican convention site as you may know and would appreciate more input - it's a hard row etc.

Good to also see the 1986 Act as being quoted as the true instrument of independence: NZ rejecting the UK's right to make laws over us is more important than 1947. Well it would be interesting to see arguments that we are not independent by virtue of that 1986 Act!

Posted by t selwyn : 10/21/2005 01:50:00 PM

Tim: there may very well be - but this isn't a reference in New Zealand law. It's a reference in a British statute, which was not included in the package inherited from the UK (or, if it was, tossed out in 1988), and therefore nothing to do with us or our courts.

Posted by Idiot/Savant : 10/21/2005 02:27:00 PM

Arguably the electorate (or the party in the case of list MPs) should be the judge of whether a candidate's allegiances make them unsuitable for office. If an NZ electorate wants to vote Osama bin Laden's aunty in, then that should be their choice.

Possibly candidates should be required to make a full and frank disclosure of any overseas allegiances they might have - at the moment if an MP turned out to be a CIA agent, there is nothing that could be done to turf them out. (On the other hand if they were a privy councillor and were proven to have disclosed information they were meant to keep secret, then that might be perjury??)

Posted by Rich : 10/22/2005 01:14:00 PM

Brilliant I/S - reveals the problems of our legal independence from the UK.

I'll link to you ASAP.

BTW, after checking the Supreme Court Act 2003, it seems that Parliament acutally repealed the Oath you linked to for the Supreme Court. Strange.

Posted by Lewis : 10/22/2005 04:09:00 PM

imho you are bang on the money. Faced with the facts and the conflicting laws, any reasonable judge would have to find MP's who are also privy councillors in breach of the electoral act.

The reality will be it is glossed over but this is a constitutional problem

Posted by sagenz : 10/23/2005 11:09:00 PM