Interesting piece in yesterday’s NZ Herald about the unanimous decision by the British Supreme Court that it was unlawful for PM Boris Johnson to suspend Parliament in the run-up to Brexit. Interesting because the two experts cited at length – Sir Geoffrey Palmer and Christopher Finlayson – both seem to agree that our courts couldn’t reach such a decision here, because our laws would expressly rule it out.

If they’re right, we’re in trouble. Because you’d really, really want the courts to be able to treat such an issue as falling within their rightful place to rule upon (aka as being “justiciable”). Last week’s ruling wasn’t, as Palmer/Finlayson claim, a matter of the British courts choosing to politicise the business of Parliament, but its exact opposite. It was a case where the courts stepped in to prevent a purely political decision by the executive branch from preventing Parliament from functioning at all. After all, Parliament didn’t voluntarily stop itself from going about its urgent Brexit business. The PM stopped it, for no valid reason. The Supreme Court therefore felt it had no choice but to intervene, in order to protect the sovereignty of Parliament from an arbitrary attack from outside, that was being waged merely for political advantage. As the Supreme Court stated in its judgement:

The first [principle] is Parliamentary sovereignty - that Parliament can make laws which everyone must obey: this would be undermined if the executive could, through the use of the prerogative, prevent Parliament from exercising its power to make laws for as long as it pleased.

Bang on. Oddly, the raging conflict in Britain between the executive branch and Parliament barely rated a mention in the Herald article – even though it lay at the heart of the Supreme Court action, and has been central to the strategic battles sought, and fought, over Brexit in Westminster for the past two years. Here’s the judgement again:

This was not a normal prorogation in the run-up to a Queen’s Speech. It prevented Parliament from carrying out its constitutional role for five out of the possible eight weeks between the end of the summer recess and exit day on 31st October. Proroguing Parliament is quite different from Parliament going into recess. While Parliament is prorogued, neither House can meet, debate or pass legislation. Neither House can debate Government policy. Nor may members ask written or oral questions of Ministers or meet and take evidence in committees. In general, Bills which have not yet completed all their stages are lost and will have to start again from scratch after the Queen’s Speech. During a recess, on the other hand, the House does not sit but Parliamentary business can otherwise continue as usual.

This prolonged suspension of Parliamentary democracy took place in quite exceptional circumstances: the fundamental change which was due to take place in the Constitution of the United Kingdom on 31st October. Parliament, and in particular the House of Commons as the elected representatives of the people, has a right to a voice in how that change comes about. The effect upon the fundamentals of our democracy was extreme.

No justification for taking action with such an extreme effect has been put before the court.

Bang on, again. Yet in the NZ Herald article, both Finlayson and Palmer claim – as did the lawyers for Boris Johnson – that the prorogation was a “proceeding” of Parliament, and was therefore not justiciable. Have they read the court judgement? It slashes right through that argument:

The Government argues that the Inner House could not do that because the prorogation was a “proceeding in Parliament” which, under the Bill of Rights of 1688 cannot be impugned or questioned in any court. But it is quite clear that the prorogation is not a proceeding in Parliament. It takes place in the House of Lords chamber in the presence of members of both Houses, but it is not their decision. It is something which has been imposed upon them from outside. It is not something on which members can speak or vote. It is not the core or essential business of Parliament which the Bill of Rights protects. Quite the reverse: it brings that core or essential business to an end.

Exactly. The Palmer/Finlayson position is a nonsense. How on earth could it be said to have been Parliament’s decision to suspend itself, when the central issue under consideration was the executive’s draconian decision to deny Parliament any choice in the matter? As former senior members of the executive, Palmer and Finlayson may see no problem in allowing the executive to dictate to Parliament. And as they claim, our laws could well make that entirely “lawful” – more’s the pity. As the Herald article indicates, Section 10 of our Parliamentary Privileges Act 2014 casts a wide net as to what our higher courts cannot treat as being within their ambit to consider :

Section 10 says: "Proceedings in Parliament, for the purposes of Article 9 of the Bill of Rights 1688, and for the purposes of this act, means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of the House or of a committee."

If that section ever gets put to the test, a lot of weight would fall on whether the externally imposed ‘words spoken’ and ‘acts done’ to suspend Parliament could sensibly be said to be part of the transaction of its business, when their real and intended effect is to stop that business in its tracks. The effect of a unilateral suspension of Parliament by the executive at a time of crisis comparable to Brexit would be (a) undemocratic, would (b) undermine the supremacy of Parliament, and would (c) allow our constitutional conventions to be abused by any political chancers who happened to be occupying the Beehive at the time.

Thank goodness the British Supreme Court pushed back against it. Let’s hope and pray that no future NZ Prime Minister ever tries to subject our Parliament to the same sort of political stunt as the one that Johnson attempted.

Footnote One: As many observers have noted, Johnson has taken his Supreme Court defeat, and banked it – as yet another example of Brave Boris battling against the snooty elites, who are being portrayed as hellbent on frustrating the public’s unquenchable longing for Brexit. There’s a reason why the Tories are 12 points ahead in the polls, and it isn’t mainly because of Jeremy Corbyn. Johnson is promising to bring an end to the Brexit nightmare and soon, whatever the cost. This may not be a responsible way of governing, but it is a popular stance. When Britain is finally cursed with what it wished for, who will it then find to blame?

Footnote Two: As this column has been arguing for months, the Boris Johnson/Dominic Cummings plan has been to engineer an election carefully framed as a Plucky Boris vs the Establishment battle – and only a relatively recent piece of legislation (since 2011, a two thirds parliamentary majority has been required before any British PM can call a snap election) has stood in the way. Johnson wants to win an electoral mandate for whatever comes after Brexit, but he needs to win it before the public fully gets to experience just how bad Brexit will really be, and begins to blame him for the deception. (After 1789, the French Revolution did a pretty thorough job of eating its own revolutionary leaders.)

Labour’s counter-strategy has been to try and delay an election until beyond October 31 – the longer the better - so that Johnson gets to wear some responsibility for putting Britain through the post-Brexit chaos.

Dairying, plus Coal

Surely, dairying is enough of a mixed blessing already – what with its economic returns coming on the back of practices that degrade and deplete our rivers and lakes. Bathurst Resources has just won Overseas Investment Office approval to buy 31.5 hectares of grazing land near Glentunnel in Canterbury for a coal mine that will enable its Canterbury Coal subsidiary to expand its existing operations (near Coalgate) that service the dairy factories in the region. This currently includes the 65,000 tonnes of coal supplied annually to Fonterra’s Darfield factory.

“It’s like we’re living in two alternate realities: one where we’re having this generation’s ‘nuclear free moment’ on climate change, and the other is simply accelerated business as usual,” said Cindy Baxter of Coal Action Network Aotearoa. “Along with polluting our waterways, Canterbury’s dirty dairy factories continue to pump carbon into the atmosphere, but this cannot go on….Getting New Zealand onto a 1.5C pathway means we have to stop burning coal, and stop new coal mines…”

In its defence, Bathurst has claimed that the land purchase will enable it to mitigate some environmental risks “by implementing some protection measures for the endangered Canterbury mudfish habitat in the Bush Gully Stream that runs through the land.” More seriously, the extra land will extend the life cycle of its current coal mine from 2022 to 2035.

On that point, it was a real eye-opener to learn from Coal Action Network Aotearoa that the 665, 875 tonnes of coal that the dairy industry currently burns through annually means that dairy is now our second largest coal user after the steel mill at Glenbrook, and well ahead of the Huntly power plant in third place.

So… unsustainably large herds of dairy cows are degrading the water quality in our rivers and lakes and releasing vast amounts of emissions into the atmosphere. In addition, the dairy industry is also generating additional emissions through its coal dependency. Obviously, this addiction to coal is unsustainable – not only in itself, but because of the ripple effects it stands to create for tourism, which is already facing an increase in sensitivities about the impact of long haul air journeys on climate change.

To cope, New Zealand will need to be beyond reproach in every other aspect of how we treat the environment. Right now though….excessive, intensive dairying is sabotaging the tourism industry (and our emission reduction efforts) on almost every front.

Speech, and its consequences

Talking of people making a meal out of victimhood… I’d aimed to write about Professor Jim Flynn’s “banned” book on free speech and about the author’s related publicity campaign – which got a very sympathetic airing on TV’s Seven Sharp programme last night. My initial beef had been with Flynn’s trivialising of the issues he’s put in play – (“If upsetting students or staff or the public is a reason for banning speech, all such discussion is at an end”) and with his race to don the cloak of victim. Right up alongside Orwell, no less.

Being “upset” if and when academia lends fuel to white supremacy arguments is the least of it. Belatedly though, I came across Danyl McLauchlan’s thoughtful, even-handed and beautifully written piece on the Spinoff site about the issues raised by Flynn’s book, and by its treatment to date.

Obviously, neither of us have yet read the book itself, because it hasn’t yet been published. As McLauchlan says though, this allegedly “ banned” book will eventually see daylight via another publisher, or by Flynn exercising his option to self-publish it for a fee, or for free. Until then, the Spinoff piece is essential reading for anyone interested in free speech and in the boundaries that are required to sustain it.

Coming out, Speaking Out

For the past 20 years, the identical Canadian twins Tegan and Sara Quin have been musical and cultural icons, especially within the gay community. They’ve kept their early fans, and added younger ones without – or maybe, because – they haven’t unduly sought to update their sound. Beyond a few added electronica and pop elements, they still sound – at 39 – almost exactly like the earnest teens they’ve been all along, especially during the halcyon days of The Con album in 2007.

In that respect their new album Hey I’m Just Like You could almost be a parody of their eternal teenager-hood – in that it consists of modern reworkings of a re-discovered cache of lost songs they wrote back in the late 1990s. From the Colbert Show last week, here’s their live version of “I’ll Be Back Someday…” As usual with the Quin duo, it has to do with the keeping of heartfelt promises:

From 2013, “Shudder To Think” has always been a favourite T&S pop cut:

And from two years ago, here’s their vitally innocent contribution to DJ Matthew Dear’s infinitely world weary “Bad Ones” track:

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