John Armstrong: Perfect time for the axe to swing

COMMENT

You can bet your bottom dollar that come the 2005 election, one of the last things exercising voters' minds will be the abolition of the final right of appeal to the Privy Council.

And that is what the Government is cynically counting on as it fast-tracks the final stages of legislation severing New Zealand's ties to the London Law Lords.

Not only does the Government detect little public resistance to the move, it believes most people have little idea what the Privy Council is or does.

On top of that, the law cutting the link is being passed early in the three-year electoral cycle, leaving plenty of time for criticism to dissipate long before voters reach the ballot box.

Abolition of appeal rights to London is something Helen Clark and Attorney-General Margaret Wilson are determined to carry through.

Politics is the art of the possible, and the circumstances in this case are as politically propitious as they are likely to get.

Expecting that opposition will quickly fade in the face of a fait accompli, the Labour-led minority Government is blithely ignoring the argument that such a fundamental change should not be implemented by a narrow parliamentary majority of 63 votes to 57.

By convention, constitutional changes require a 75 per cent majority of the House or endorsement by public referendum.

But the Government says the Privy Council is part of the courts structure rather than a component of New Zealand's unwritten constitution.

It also says that decisions of equivalent status to axing Privy Council appeal right have been made without parliamentary sanction. The scrapping of the Air Force's jet fighters is one example.

As the Progressive Coalition's Matt Robson has noted, the wholesale sell-off of state assets in the 1980s and 1990s was also done on simple parliamentary majorities and without recourse to referendum.

That is not a good argument for not holding one in this instance. But dredging up the sins of past Administrations is a convenient means of deflecting criticism.

The Government will take comfort from the fact that the joint move by National, NZ First and Act for a citizens-initiated referendum is still very much in the early stages of collecting the 310,000 signatures required to force such a poll, the result of which would not be binding.

More of a nuisance is the loss of United Future's eight votes, which would have pushed support for the legislation setting up a New Zealand Supreme Court as the country's final court of appeal a bit closer to a 75 per cent majority.

The Government is therefore dismissing United Future's belated opposition as a last-minute, headline-grabbing exercise in branding by a struggling minor party.

The Greens support the Supreme Court Bill, guaranteeing its passage.

United Future says the Greens' position is irrelevant to its thinking. But the Government is playing up the suspicion that United Future now has the luxury of being able to vote against the Government because the Greens are on board.

Similar charges of politicking are being levelled at National because it brought legislation before Parliament in the 1990s abolishing appeal rights to London.

The legislation lapsed because National did not have the numbers to pass it.

National is now saying it would reinstate appeal rights should it return to power the year after next.

The Supreme Court will have been in operation for more than a year by then, so that will be a bit like trying to unscramble an egg.

And should abolition be an unlikely election issue, the Government has two more arguments up its sleeve.

It will claim that appeal rights to London are effectively the preserve of a wealthy business elite and well out of reach of most citizens.

Some in the Government think business lobbying against the Supreme Court Bill has more than a passing connection to Margaret Wilson's tenure in the Labour portfolio, where she is seen as anti-business and pro-trade union.

As few Commonwealth countries now use the Privy Council, the Government will also argue that unless New Zealand severs the link, the British, sooner than later, will do it for us.

For all that, the Government remains vulnerable to fears the Supreme Court will be stacked by judicial activists issuing rulings with far-reaching political consequences, and, the suspicion this is another step on the road to a republic.

On the first count, the Prime Minister is promising a conservative bench drawn from the existing Court of Appeal.

But that may not ease public apprehension, given that court's recent ruling allowing a claim on the seabed and foreshore to go before the Maori Land Court.

On the second count, Helen Clark has done the easy stuff. Having dealt to knighthoods and the Privy Council, the next step would be removal of the Union Jack from the New Zealand flag.

Labour will not go there. It does not want to upset war veterans and the fickle votes of the elderly which it has captured from National. And there is no consensus on a suitable replacement.

And Helen Clark seems ever more reluctant to tackle the Herculean task of convincing the populace of the need to shift to an elected head of state.

She has said repeatedly the timing is not right.

In the case of the Privy Council, the timing could not be better.

Which makes Helen Clark and Margaret Wilson of one mind.

The ladies are definitely not for turning.