WHEN Theresa May sent her attorney general to court last week to stop Parliament deciding on Brexit, she stepped on a legal trip wire laid forty years ago in New Zealand by a former Desert Rat.
The chief justice of New Zealand, Sir Richard Wild, ruled on June 11, 1976, that the country’s new prime minister had breached Section 1 of the 1688 Bill of Rights, a law enacted 288 years earlier in London.
that the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of Parliament, is illegal.
Sir Richard delivered judgment only eight days after trying the case that is now known as Fitzgerald -v- Muldoon and Others.
Just one private citizen, assistant pensions clerk Paul Fitzgerald, complained that before New Zealand’s incoming prime-minister could assemble his new parliament, the ‘abrasive, dogmatic and impatient’ Robert Muldoon, known around Parliament House as ‘Piggy Muldoon’, had by abolishing a pension fund thereby suspended an act of parliament:
exercising a pretended power to suspend a properly made law, the Superannuation Act 1974.
Paul Fitzgerald, 28, without any family to support, decided to stake half his annual salary on instructing the cunning barrister Dr George Barton QC to mount a case against the prime-minister in what is widely regarded as a masterpiece of pleadings and submissions.
Ruling for Fitzgerald, Chief Justice Wild declared that the purported suspension of the operation of the New Zealand Superannuation Act 1975 was illegal as being in breach of Section 1 of the Bill of Rights, and that the plaintiff is entitled to a declaration to that effect.
Wild and his lifelong colleague Jack Marshall, New Zealand’s National Party prime-minister during 1972, had both served as officers with the Second New Zealand Expeditionary Force, in the Eighth Army in the North African desert under Montgomery and in Italy under General Alexander.
Robert Muldoon also volunteered for 2NZEF in 1940, serving on the Pacific and Italian fronts and working his way up to sergeant before demoting himself to lance corporal to study accountancy.
Major Jack Marshall invigilated Muldoon’s final accountancy examination in an army tent in an Italian field after the bloody battles of Monte Cassino and the liberation of Trieste.
Chief Justice Wild commented in Fitzgerald -v- Muldoon:
It is a graphic illustration of the depth of our legal heritage and the strength of our constitutional law that a statute passed by the English Parliament nearly three centuries ago to extirpate the abuses of the Stuart Kings should be available on the other side of the earth to a citizen of this country which was then virtually unknown in Europe and on which no Englishman was to set foot for almost another hundred years.
A National party MP, Hugh Templeton, in memoirs entitled All Honourable Men: Inside the Muldoon Cabinet 1975–1984 wrote:
For once I saw Muldoon wrong-footed.
He raged and counter-attacked. Indeed he got away with actual stoppage of payments. Only Derek Quigley clashed with Muldoon in caucus over his failure to ‘uphold the rule of law’.
The public took no interest in the law. They were simply keen to stop paying into this funded scheme and accepted Muldoon’s claim that he had not acted arbitrarily but within the traditional role allowed by Auditors-General. Only those concerned with the limits and separation of powers tucked the episode away in their minds.
Forty years later in Court Four of the High Court in London, before the Lord Chief Justice, the Master of the Rolls and Lord Justice Sales, in a case to be cited decades from now as Santos & Miller -v- Secretary of State for Exiting The European Union, the human rights barrister Helen Mountfield QC raised the spectre of Fitzgerald -v- Muldoon.
Helen Mountfield QC is crowd-funded by a group of EU citizens known as The People’s Challenge and was joined by eight QCs, including Lord Pannick, for the businesswoman Gina Miller, and Dominic Chambers, for the London hairdresser Deir Dos Santos, all asking for a ruling that Brexit minister David Davis
may only notify such a decision to the European council under article 50 (2) TEU once he has been properly authorised to do so by an act of parliament.
Manjit J. Gill QC represented amongst others the human rights of a child in the care of
Mrs AB who is not an EU national at all. The child, however, is a British citizen and therefore an EU national.
There is a submission there made that at the point that we leave the EU, the rights of EEA nationals who are in this country and their family members and others who derive rights of residence from them, those rights all fall away. There is no dispute about that. They fall away. Those persons are here without leave. They will need leave at that point. Leave in the context of the Immigration Act 1971.
Patrick Green QC was defending the free movement rights of a group of British expatriates who have settled in ten different European states.
It is no secret that before the narrow result of the June advisory referendum on the UK leaving the EU, 450 members of parliament out of 650, including Theresa May, wanted the UK to remain a member of the EU.
For three days in London last week, the Attorney-General, Jeremy Wright QC, and First Treasury Counsel James Eadie QC, argued on lines adopted in 1976 by ‘Piggy’ Muldoon that under ancient royal powers to make foreign treaties, known as the royal prerogative, Theresa May would be allowed to notify the European Union of an intention to leave the EU under Article 50 without parliament having first repealed the 1972 European Communities Act that took the UK into the EU in 1972.
‘Notification – once given – will not be withdrawn’, said the Attorney, ‘It is our case that Parliament’s consent is not required.’
But Helen Mountfield QC, having countered with one legal precedent from the year 1297, in the reign of King Henry IV, told the court:
If I move forward in time, then, to the New Zealand Supreme Court in 1976, in the case of Fitzgerald v Muldoon, that is in bundle E at tab 10.
In that case the Prime Minister of New Zealand made a press statement, announcing that a statutory superannuation scheme would no longer be applied, pending what he intended would be passage of retrospective legislation to confirm this policy, and the declaration was sought and was granted. But this was contrary to Section 1 of the Bill of Rights.
Ms Mountfield quoted from Sir Richard Wild’s 1976 judgment:
The Act of Parliament yet in force required that those deductions and contributions must be made, yet here was the Prime Minister announcing that they need not be made. I am bound to hold that in doing so, he was purporting to suspend the law without consent of Parliament. Parliament had made the law, therefore the law could be amended or suspended only by Parliament, or with the authority of Parliament.
On the third day of the 2016 proceedings, James Eadie QC, appearing for the government in his role as the ‘Treasury Devil’, offered what sounded like a concession to Parliament.
The battered pound sterling soared against the US dollar on first reports that that the Treasury Devil had conceded that after enactment of Article 50 a new treaty between the EU and the UK would ‘be subject to ratification process in the usual way’ and would be likely to require an act of Parliament for ratification.
Downing Street made similar noises.
But David Pannick QC, a cross-bench baron in the House of Lords who has fought sixty cases in the European Court of Justice and the European Court of Human Rights, had already argued that notifying the EU under Article 50 of the Lisbon Treaty, which has never yet been done by anyone, is like firing a bullet from a rifle. It cannot be revoked. If the bullet is ever fired, the fate of the United Kingdom falls into the hands of the governments of the other 27 member states of the EU:
once you have pulled the trigger, the consequence follows. The bullet hits the target. It hits the target on the date specified in Article 50(3).
The triggering leads to the consequence, inevitably leads to the consequence, as a matter of law, that the treaties cease to apply and that has a dramatic impact in domestic law. This is not simply action on the international plane. The notification has an impact in domestic law, because of the unique characteristics of the European Communities Act.
It leads to the removal of a whole series of important rights whatever parliament may think about it later.
Prerogative powers may not be used by the minister to remove rights established by the act of parliament.
The pound peaked at $1.23 on the world market as the Lord Chief Justice of England and Wales Lord Thomas of Cwmgiedd began asking Mr Eadie for more detail on the concession.
The pound slipped back as Lord Thomas extracted an admission that the UK government and the EU could theroretically agree to take Parliament out of the ratification process. Lord Thomas asked,
But could the United Kingdom and the European Union agree it didn’t need ratification? Is that what you mean?
Eadie QC replied ominously,
For the Government, Jason Coppel QC had to deal with the argument that invoking Article 50 strips British citizens of free movement rights that were granted by Parliament when it passed the 1972 European Communities Act. He stated that the right to free movement and the right to live in France
is not a right which is conferred by the European Communities Act.
… the obligation of the UK government, and therefore the rights conferred by the European Communities Act, those rights are limited.
They are a right against the government not to stop you from leaving the country, or not to deter you from leaving the country, by fining you, for example, and to allow you to come back to France once you have had enough of the good life.
The Lord Chief Justice responded, again ominously,
I am sorry, I am slightly baffled. I don’t understand why the content of these rights are not controlled by Parliament.
In the spirit of Sir Richard Wild, Lord Pannick summed up for EU citizens facing the effects of the royal prerogative on their lives:
The defendant accepts that a notification under Article 50(2) will inevitably result in the EU treaties no longer applying to this country. The consequence of the treaties no longer applying is that the rights conferred under section 2(1) of the 1972 Act are stripped away. They are destroyed… we say notification will inevitably cause some statutory rights enacted by Parliament to be destroyed.
No matter which way the three judges handle this London case, certainly the most important judicial review of the twenty-first century, the modern tactics of crowd funding, unavailable to Paul Fitzgerald in 1976, will ensure that Santos & Miller -v- the Secretary of State is appealed by one side or the other on a fast track for a decision in the Supreme Court of England and Wales before Christmas.
Jo Murkens, a law professor at the LSE, has noted:
The legal challenge to the government brought by an investment manager and a hairdresser will one day be cited in the same breath as Bush v Gore, the US Supreme Court decision that resolved the 2000 presidential election. Whichever way the court decides the case will be wrong, because the court should never have heard the case in the first place. The UK does not tend to litigate the meaning of its constitution. Under the UK’s own constitutional understanding, it should be for Parliament to resolve by what process the UK can withdraw from the EU. But the UK Supreme Court will have to step into the breach in order to remedy Parliament’s failure to vote on Article 50.
In the bitterly divided United Kingdom it was not long before Gina Miller, the wealthy fund manager, came under attack for her stand in the case that carries her name.
The Lord Chief Justice felt obliged to offer ‘the full weight of the law’ to defend her against malicious letters and emails:
It is simply wholly wrong for people to be abusive of those who seek to come to the Queen’s courts.
Dominic Raab, a parliamentary under secretary for civil liberties in the Theresa May government, whose own father came to England in 1938 as a refugee from Czechoslovakia, opened a personal attack on Gina Miller:
This is a pretty naked attempt to steal the referendum by the back door. I don’t think it’s right that a fund manager with deep pockets and legal friends in high places can try and block or frustrate that process. It takes a pretty special kind of arrogance to think that one person’s view trumps that of 33 million.
Theresa May delivered her own public message to Miller and Santos, in a conference speech in Birmingham:
Those people who argue that Article 50 can only be triggered after agreement in both houses of parliament are not standing up for democracy; they’re trying to subvert it.
They’re not trying to get Brexit right, they’re trying to kill it by delaying it. They are insulting the intelligence of the British people.
Mr Raab, and perhaps Mrs May, might well consider what happened to Sir Robert Muldoon after breaching Section 1 of the Bill of Rights.
The careers of those involved are described in a superb paper Constitutional Collision: Fitzgerald v Muldoon v Wild, written by Justice Stephen Kós QC for a law and history conference at Otago University in 2013.
The judgment rankled Muldoon. He had run headlong into an obstacle that would not bend to the force of his extraordinary personality. He did not take the outcome philosophically.
Muldoon returned to the topic in the infamous ‘Moyle’ debate. On 4 November 1976 the former Labour Minister of Agriculture and Fisheries, Colin Moyle, accused Muldoon’s accounting practice of engaging in illegal practices. Enraged, Muldoon riposted that Moyle had been picked up by the police for ‘homosexual activity’. The Speaker of the House wrestled to gain authority. Muldoon declined to apologise for his statement. He then blithely completed the debate with a discussion of what happened in Fitzgerald -v- Muldoon. Muldoon read at length passages from the memorandum that Barton had filed in the High Court in September. He accepted readily that he had wrongly accused Barton of instigating the proceedings. But he maintained, still wrongly, that Fitzgerald had been “put up” to take the case on behalf of someone else. That person was the “so far unidentified and unnamed lawyer working for some so far unnamed and unidentified government department.” That was the man who instigated these proceedings, used Mr Fitzgerald as its front man, and won a decision on legal grounds – nothing more than legal grounds – for which there has been an award of costs.
Muldoon continued, unrepentantly, the public is entitled to know that this was a jack-up.
In 1984, as I have mentioned before, the electorate fled from the Muldoon they had once cleaved to as a saviour in times of economic crisis. Prolonged exposure to his unavailing efforts at holding economic tsunami forces by modest and then more desperate flood protection works of wage, rent, interest and price freezes took the tint from the electoral spectacles. The bitterly divisive 1981 Springbok tour of New Zealand left a long trail of wreckage and discontent. National had a parliamentary majority in 1984 of one.
Five National MPs had crossed the floor on one issue or another that term [albeit the traffic was two way]. Muldoon had had enough. In June 1984 he called a snap election and went to the people. The issue was Muldoonism, and the people had had enough of it. The Lange Labour government was elected with a majority of 19.
Muldoon’s premiership began with an affront to constitutional law. Fittingly, it ended with an affront to constitutional convention. Muldoon concentrated remarkable power on the hands of the executive, through sheer ability and force of personality. Paradoxically, as we shall see, the result was a subsequent rebalancing of power back in favour of the legislative branch. History, whether constitutional or economic, is unlikely to judge Muldoon’s administration well.
Unlike Theresa May, Robert Muldoon had won a general election in a landslide only three weeks before kicking off in his ill-advised battle with Paul Fitzgerald, George Barton QC and Sir Richard Wild.
Theresa May has never fought a general election as leader, barely commands the divided Conservative party with its majority of 12, supported the losing side in the June 23 referendum and yet still sent her Attorney-General to tell the Lord Chief Justice:
Notification – once given – will not be withdrawn
It is our case that Parliament’s consent is not required.
The policy for which Robert Muldoon breached the 1688 Bill of Rights, abolition of the 1974 New Zealand Superannuation Scheme, was later described by Brian Gaynor, investment columnist for the New Zealand Herald, as a ‘dreadful political decision’:
We would have had a current account surplus, one of the lowest interest-rate structures in the world and would probably rank as one of the top five OECD economies. We would still own ASB Bank, Bank of New Zealand and most of the other major companies now overseas-owned. Our entrepreneurs would have a plentiful supply of risk capital and would probably own a large number of Australian companies. Most New Zealanders would face a comfortable retirement and would be the envy of their Australian peers. The Government would have a substantial budget surplus and we would have one of the best healthcare systems in the world.
Stephen Kós, now President of the Court of Appeal in New Zealand, concluded in 2013:
It is no exaggeration to say that the electoral decision of 1975, and the repeal of the New Zealand Superannuation Scheme in 1976, was the single greatest wholly self-inflicted economic disaster to befall this country.
Now what does that remind you of?
Richard Wild [main picture] was briefed in the desert by General Montgomery before the Second Battle of El Alamein on fundamental fighting principles and the critical importance of ‘hard thinking’. In his diary he noted
the most inspiring and appealing example of leadership I have seen in any sphere… It completely restored my faith in British success.
Explaining ‘hard thinking’ after the war, he recounted a battlefield interrogation:
British interrogator: You must tell me your unit.
German prisoner: I refuse to answer – given oath to Fuehrer etc.
British interrogator: Well, not myself being a German, I am unable to torture you – but we are fortunately placed in having as our allies here the Poles and the Czechs who are not unfamiliar with Gestapo methods. I will therefore arrange for you to see a Polish officer tomorrow and…
German prisoner: One moment. What is it you wish to know?