CHRIS McVEIGH - Our Judges: Some Further Thoughts

It is difficult, not to say impossible, to overestimate the influence of the late Lord Cooke of Thorndon on New Zealand's legal system and its lawyers. For many years, he helped to shape our laws and, in so doing, stamped his mark on virtually every aspect of the practice of law in this country - from the rawest law student to the most careworn judge, they pretty much all marched to the beat of Lord Cooke's jurisprudential drum. He had much the same aura of infallibility and enjoyed the same standing as did Lord Denning in the UK. If Sir Robin said black was white, then white it was. As firstly a member of the Court of Appeal (at that time our highest court) and latterly as its President, for over 20 years Lord Cooke helped shape both the thinking of lawyers and the way in which judges approached their role in interpreting and applying the law.

As a mark of the esteem in which he was held in the common law world the then Sir Robin Cooke was, in 1996, granted a life peerage to become Baron Cooke of Thorndon and sit in the House of Lords, being the only New Zealand judge to have done so and  the only Commonwealth judge in the 20th century to adjudicate in UK appeals.

It is no exaggeration to say that he was, in legal circles, not just admired but revered.

But to non-lawyers his name is perhaps only dimly familiar. That is not surprising. I and many others would be hard pressed to give the names of, say, leading cardiothoracic surgeons in this country; or scientists or engineers. To those lay people then, not steeped in the culture of the law, it would be fair to say that he was, on the international stage, every bit as pre-eminent in his field as, say, Lord Rutherford or Sir Edmund Hillary were in theirs.

As a judge I would consider him to have been a liberal. That is to say he would have little difficulty in giving an expansive, not to say idiosyncratic, interpretation of statutes if to hold otherwise would offend his notions of fairness. The legislative passing in 1990 of the New Zealand Bill of Rights Act would therefore I suggest have been a matter of some considerable satisfaction to him. His only misgiving might have been that its architect, Geoffrey Palmer (then Attorney- General) was unable to realise his original ambition to have the statute enacted as supreme law, giving judges the power (as they have in the USA) to strike down legislation which conflicted with it.

This was however only a temporary setback for the judicially active Court of Appeal.

From 1990 onwards the Court, under the guiding stewardship of its pioneering president, set about breathing into the rather sterile wording of the statute some considerable life force, some might have thought well beyond that which was originally contemplated. Those lawyers whose practice lay largely at the criminal defence bar could scarcely believe their luck as decision after decision from the Court of Appeal and then, taking their lead from that court, the lower echelons of the judiciary, gave interpretations of the Bill of Rights which provided previously unheard of room for ingenious rights-based arguments. And it wasn't solely in the area of criminal law that the courts stamped their mark. All manner of interpretations and applications emanated from the courts in those heady days following the enactment of the Bill, some, if not all of which fashioned the common law of this country in both criminal and civil fields.

And all of this, one could say, emerged as a result of Sir Robin's approach to his role as New Zealand's most senior judge: to interpret the law in order to bring about as fair, large and liberal interpretation as was required and as he saw fit.

The Bill of Rights then provided the legislative backdrop for the courts to cement their role as more than just bit players in the establishment and application of an unwritten constitution for this country. If any encouragement were needed for the judicial arm of government to play more than just a minor part in the polity of New Zealand, then Lord Cooke provided it.

But it wasn't enough just to give the lead to his judicial brethren via conventional channels. On a number of occasions he gave extra-judicial support for the view that judges might, in certain circumstances, be obliged not to follow or not to apply an act of parliament, writing that, for example, "...some common law rights may be so deep that even Parliament cannot override them." In so doing he opened the door to an admittedly limited form of judicial review of legislation if laws offended the core tenets of justice and legality. In other words, His Honour was prepared to envisage circumstances in which a court might usurp the function of Parliament: a novel not to say revolutionary concept for a judge to espouse.

But apart from his role in all of this, there was another, less evident strand in the formation of a crusading judiciary.

All law students were (at least they were when I was at university) imbued with a belief, taught to them by their lecturers, that a dissenting judgment in a prominent House of Lords' decision was, if not holy writ, then certainly to be afforded much the same respect as would be given to an infallible Papal pronouncement.

During World War 2 in England emergency powers were by regulation given to the Home Secretary to detain anyone whom the Home Secretary had 'reasonable cause to believe' had 'hostile associations'. Sir John Anderson, the Home Secretary, pursuant to those regulations stated that he did have reasonable cause to believe that a Mr Robert Liversidge had 'hostile associations' and therefore ordered his detention. Mr Liversidge demurred and argued that it was not enough for the Home Secretary simply to assert that he had such a reasonable belief, he had to go further and demonstrate that such a belief objectively existed in fact. In other words, he argued, a court was entitled to evaluate the reasonableness of Sir John's belief.

The House of Lords, by a majority decided that they were not entitled to evaluate the Home Secretary's belief. It was sufficient in terms of the regulations for him to state that he had such a belief in good faith and the courts could not enquire any further. The sole dissenting voice was that of Lord Atkin and it is his decision, not those of his peers, that is afforded the respect, not to say reverence, of all teachers and students of constitutional law today. His Lordship emphatically rejected the notion that the court should respect the opinion of the Executive and give it effectively a rubber stamp. He said, in other words, that the courts should always exercise a supervisory role when it came to the freedom of the individual and should not abandon that role in times of national emergency. In so deciding Lord Atkin was, although not expressly saying so, asserting the supremacy of the courts as interpreters of regulations and statutes and, in this case, giving an interpretation which most closely accorded with his own view of propriety and fairness.

It is therefore against that backdrop that we turn to the judges of our Supreme Court today.

Roger Partridge has written persuasively on this website ('Supreme Court Matters: Constitutional Guardians or Constitutional Threat?') a polemic directed, rightly in my view, at the judges of our Supreme Court for abandoning their proper constitutional role of applying and interpreting the law and embarking instead on a trailblazing crusade to legislate from the Bench - a wholly impermissible function of an unelected judiciary and one for which they are conspicuously ill equipped and professionally unsuited.

It is hardly surprising, in my view, that a body of well educated and intelligent men and women whose daily routine often involves them being given a role in the governance of their country should yield to the ever present temptation to stray, as it were, beyond their lane and arrogate to themselves powers which they would like to have but with which they are not otherwise invested.

And who among this group of ambitious souls could resist the siren song of Lord Cooke's call to arms to display judicial independence and pronounce on, not just the interpretation of a law but its very existence. They might, in their defence, be heard to say (paraphrasing the words of Oscar Wilde) that they could resist everything except the temptation to legislate. Such would be an understandable refrain but one which would be nonetheless illegitimate. Regrettably, however, their Honours have, as Mr Partridge has so pertinently illustrated, succumbed to the narcotic of temporal power and strayed beyond the bounds of their bailiwick.

Lord Cooke, alas no longer with us, might be somewhat startled at the unbridled enthusiasm, not to say fervour, his disciples are displaying in matters of judicial activism but there again he might not. After all he would no doubt be the first to acknowledge that, as has been said, a whisper of power can, if left unchecked, soon become a roar.

Chris McVeigh is a retired KC living in Christchurch. He was previously President of the Canterbury District Law Society and, in an earlier life, a scriptwriter and performer for the satirical TV programme ‘A week of It’