United Future
Murray Smith

SUPREME COURT BILL - second reading

 It was reinforced by my visit to the Commonwealth Law Conference in April, in the papers that were presented there. The demise is coming about for four reasons. The first is the withdrawal from the Privy Council of most of the Commonwealth countries. The Caribbean is the latest one we have heard of, and that represents 40 percent of the current caseload of the Privy Council. Secondly, the pressure on Britain to abolish the House of Lord’s judicial division in order to comply with European requirements for separation of powers. That will take away the UK disciplinary cases—a further 20 percent of the current workload. That will leave New Zealand cases at 20 percent, and 20 percent coming from five other small Commonwealth nations. Thirdly, there is pressure on the UK, through Europe, and the slow “Europeanisation” of UK law, such as that it is moving away from a strict adherence to the Commonwealth loyalties to one that is more loyal to European directions. Fourthly, we have been seeing, over a period of time, that the resources within the Privy Council chambers in Downing Street are inadequate. The facilities and the research material have not been improved, and are seen to be becoming more and more inadequate. During this year things moved apace. By the middle of the year Britain announced moves to set up a Supreme Court, and it is clear that that is, in fact, going to happen sooner rather than later. Just recently senior civil servants have advocated that Commonwealth countries should be told to find other forums.

Senior British judges will be sitting on the Supreme Court bench, and there is strong commentary within Britain that they will be too busy for Privy Council duties. Sir Thomas Legge QC, in a recent forum in England, just in the last few days, has said that non-UK users at the Privy Council should be politely invited to consider alternative arrangements, and the UK should not be burdening its Supreme Court judges with Privy Council work. People such as him carry a lot of influence, and although his position is not the position of the Government in England, it is an indicator of the way that the thinking is going there. We will shortly be left with the second and third eleven sitting on the Privy Council. A lot of the objectors to the bill said: “If it ain’t broke, don’t fix it.” That call is wrong. If it is not broken now it shortly will be; I give it 5 to 10 years maximum, but given the pace in England currently, it should be less than 5 years, and we will need to decide as a nation what is to replace the Privy Council. In general, United Future believes that this bill does that adequately. However, it is one thing for the Government to be doing the right thing. There is always a second issue, and that is whether the people want it. This is a significant constitutional change. The Attorney-General admits that. It is imperative therefore that there is strong public support for it. It is also important that there is strong political support, which there is not, although I think it is rather hypocritical of National to oppose the bill when it has proposed this very thing in the past. There is more than a hint that National has done so because it is a Labour proposition. First-past-the-post politics is alive and well in the National Party. Fifty-four percent of the submissions opposed the bill, and 40 percent were in favour. Of the oral submissions, 76 percent were opposed, and 23 percent were in favour. Key sector groups opposed were business, the legal fraternity, and Mâori. So although it may be the right idea—perhaps premature, but only slightly—the Government has failed to sell the idea, and that comes down to marketing. The Government’s and the Attorney-General’s approach has killed it in the public’s eye. Simply put, they have not taken the public with them. This has come about through a lack of trust in the Government and if there was one message that came out of the Taupo hui it was that Mâori do not trust the Government. The fact that I keep getting emails saying there is no reason to abolish the right of appeal to the Privy Council shows that the events in Britain clearly have not been conveyed by the public adequately. United Future members opposed the first reading of the bill. We did so because we consider that there has been a lack of public consultation. The public discussion documents that were put out by the Minister focused on what should replace the Privy Council, not on whether it should be replaced. In fact, until United Future successfully extended the select committee consideration of the bill to include the question as to whether the right of appeal should be abolished, that question had not been directly put to the general public. The Attorney-General’s blinkered approach meant that she did not even consult United Future before the bill was tabled. It was just expected that the numbers would be there. So what were the key objections that came through from the submitters? The first was the immediate appointment of the bench, and there was a real suspicion that it would be politically biased. We tried to curb that by suggesting that the Attorney-General would need to announce, following whatever consultation she wanted, who the first Supreme Court bench would be, and that the announcement should happen before the bill went through. Alternatively, we suggested, as is explained in the commentary on the bill, that effectively the bill itself make that provision if the Attorney-General would not. The second objection was to the long-term relationship in terms of the appointment of the judiciary, and United Future has been the party that has been pushing for a judicial appointments commission. We will be re-tabling the proposal that I had tabled to the select committee, which is that the Judicial Matters Bill be widened to include consideration of a judicial appointments commission. There is a lack of confidence in the business community in our Court of Appeal bench, as a result of some of the decisions that that community feels have been wrong. Whether or not that is correct, it is nevertheless the perception within the business community, and it is a strong reason for its wanting to continue with the Privy Council. To try to meet that objection we proposed that there should be overseas judges, and some of the business community indicated that if two out of five of the judges were overseas judges who were specialised in commercial law whenever there was a case of commercial significance, they would then be supportive of the proposal. However, there were still many who had gone passed the point of agreeing even on that basis that the bill was the right way to go. In terms of overseas judges, I was also personally concerned that there was no point making it mandatory for us to use overseas judges until we could get them, and I can do no better than quote from the commentary on the bill: “The United Future member notes that the Attorney-General’s advice that no one could confirm the possibility that serving British Judges could be available infers that no one discounted the possibility either. Nor, it seems, was the possibility of recently retired Judges being available adequately explored by the Attorney-General. The member is disappointed that his request for direct consultation with the relevant overseas legal officers has not been met. The member feels this issue has not been properly explored and that the question of the availability of sitting Judges from comparable jurisdictions has not been adequately investigated.” The third area was the area of the whole constitution. Mâori in particular were concerned about the issue of the constitutional status of the treaty, and felt that that needed to be dealt with before other issues surrounding the constitution, such as the court structure in the Supreme Court in particular, were dealt with. If the select committee had been conducted first, raising the question of whether we should abolish the right of appeal to the Privy Council in favour of a Supreme Court and that model outlined, maybe we could have taken the public with us. Foisting a Supreme Court bill on the public without adequate consultation and on the basis that the thing would be simply put through, put the backs of the public and the business community up right from the start, and the result has been that there is a distinct lack of public confidence. A vote of 63 to 57 is inadequate for a proposal like this. It is wrong for the Government to go ahead on the basis of those numbers. In fact, I would say that it is foolish for the Government to go head with it. There is no political endorsement. There is no public endorsement, and United Future therefore believes that this is a reprehensible step on the Government’s part. United Future has been slow to get to this position. The Opposition opposes; that is its job. It has no real effect. It simply opposes. The Greens eventually managed to do a trade-off. I suspect that the Land Transport Management Bill was the price that was paid. United Future members listened. We listened first. We knew we were in a position of influence, and in the end we consulted, we listened, we heeded, and, at the end of the day, we had no alterative but to oppose, given the public’s views about the matter. We will be back within 5 years I suspect, to address the issue again, because of the moves in Britain, and I hope that the Government of the day manages the process at that time somewhat better than the Government has this time.