Dismantling Rights: Political Rights Theory and the New Zealand Bill of Rights

On June 14, 1978 the prominent British public law scholar John Griffith stood before a lecture theatre at the London School of Economics and Political Science and preceded to argue that there is no such thing as rights. For dramatic purposes, it is tempting to imagine this declaration prompted audible gasps from his audience. To critique rights could be perceived as a form of legal blasphemy. Rights-based reasoning is present in vital civil instruments and pervasive moral documents which promote human welfare. The Magna Carta, praised by Lord Denning as “the foundation of the freedom of the individual against the arbitrary authority of the despot” employed rights reasoning.¹ The United Nations Declaration of Human Rights, which reflects the shared idealistic values of earth, holds the Guinness World Record for the most translated document. For many, rights have come to occupy a plane above ordinary political disputes. Those who dare to challenge this veneration represent a threat to human welfare.  It is likely these reverent sentiments towards rights were not shared by those in attendance at the London School of Economics and Political Science in 1978. Griffith’s objection to rights reasoning represented a growing belief within Political Constitutionalist thought which viewed rights as thinly veiled political claims. This critique of rights can be labeled ‘political rights theory.’ This paper will endeavour to show that the critical nature of political rights theory can be used to enhance the effectiveness of rights. If rights are approached naively their sacred status may be undermined and their legal strength curtailed.  This endeavour will involve a close examination of the New Zealand Bill of Rights Act 1990 (NZBORA) and a selection of the recent reform proposals mooted by the Constitutional Advisory Panel (CAP) Report published in November 2013. Broadly speaking, this paper will be split into three parts. The first part will offer an in depth analysis of political rights theory. It will begin outlining the political rights theory as described by Griffith. It will then argue that this criticism of rights can be traced back to the ambiguity created when legislating for rights. It will then argue that political rights theory can be improved by an application of the discourse theory. This will involve examining a brief history of rights.  The second part of this paper will apply political rights theory to the NZBORA and the CAP report’s proposals. It will begin by examining the history of the NZBORA which will reveal the prevalence of political rights theory in New Zealand. It will then explain how this cynical attitude towards rights resulted in an attempt to curtail the role of the Judiciary in regulating rights. However, an examination of the operative sections of the NZBORA will reveal that this attempt resulted in awkward drafting. It will examine how the Judiciary exploited this poor drafting in order to give itself a larger role in regulating rights and identify the consequent negative effects. It will also examine the hazards of the Attorney-General’s role under s 7.  Finally, it will examine whether the any of the proposals in the CAP report can assuage these problems. It will use political rights theory and the discourse thesis to assess the advantages and disadvantages of each proposal. It will conclude by arguing that philosophical theory can show that the BORA still has a role to play despite the objections of political rights theory.  ¹ Danny Danziger and John Gillingham 1215: The Year of Magna Carta (Simon and Schuster, 2003) at 268.