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Howard's End: The Ancient Laws Protecting Prebble

Richard Prebble said on the Holmes Show last night that he planned to use the 1688 English Bill of Rights over his right to Parliamentary free speech about NZ Post's business plan for the new bank. So what does the 1688 document actually say? John Howard writes.

The 1688 English Bill of Rights is still part of the laws of New Zealand. It is essentially a human rights document and it came about because King James II had subverted the Protestant religion and the laws and liberties of the English kingdom.

He also levied money for the use of the Crown by suspending laws by regal authority without consent of Parliament, he fined people and made them forfeit their property before conviction and he introduced excessive bail and imposed cruel and unusual punishments.

In the end, he vacated the throne as the Parliamentarians of the time were bringing William and Mary of Orange across to England to install them as the new Monarch's.

1688 was a time of great upheaval and revolution although it was a bloodless revolution - today, we would call it a coup.

To try and settle the laws and liberties of the kingdom once and for all - the Parliamentarians used the provisions in the 1215 and 1297 Magna Carta - they made William and Mary accept the Bill of Rights as a condition of them becoming King and Queen.

The part of the Bill of Rights which Richard Prebble seems to be relying on is Article 9.

This says, " 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 Parliament."

The use of the express words "ought not to be" are interesting. The Bill of Rights does not say shall not, cannot, or will not.

The English Parliamentarians were quite explicit in their intent because elsewhere they used words such as "is illegal" - "is unlawful".

So is Parliamentary sovereignty absolute and unfettered? Not from the words "ought not to be" in Article 9 of the 1688 Bill of Rights, it's not.

If we accept that our Parliament has absolute sovereignty then it could pass a law right now which said every blue-eyed baby had to be killed or every red-headed person had to be scalped.

Extreme? - absolutely, but if the courts rely on the principle of absolute Parliamentary sovereignty then there's nothing to stop our politicians doing exactly that. Our only hope to over-turn that law would be at our three yearly elections - if they were held.

There also appears to be another constraint on the absolute sovereignty of Parliament and that comes from the fact that the Governor-General, as the Queens representative, must give royal assent to any legislation before it becomes law.

It seems to me that is a check and balance on any future elected representatives who might run out of control. Although in New Zealand history the Governor-General has never refused to sign legislation to make it law.

We live in dangerous times if we blindly accept that once elected, our Parliamentarians can do anything they please to us for three years.

NZ Post, through the State-Owned Enterprises Act, has a principal objective to operate as a successful business and to be as profitable and efficient as comparable businesses that are not owned by the Crown.

It's hard to see how NZ Post can meet the intention of the Act if any MP can simply release any and all details which could destroy the objective to operate as profitable and efficient as businesses not owned by the Crown.

I still have it in the back of my mind that while in Government Richard Prebble closed post offices up and down the country, sold Post Bank and promised to "Save Rail" - and didn't.

We should all be keeping a close watch on how the Court handles this case because it will set the scene for what politicians are able to do to us simply when they feel like it.

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