The danger of unelected lawyers competing with Parliament

Summarised by Centrist

Former solicitor-general Una Jagose KC has warned New Zealand risks “sleepwalking” towards a breakdown in the separation of powers.

However, a critique published by David Harvey on his site, A Halfling’s View, argues Jagose has the danger backwards. It says the greater constitutional threat is courts progressively expanding their authority into matters that should be decided by elected MPs.

The dispute centres on whether judges are merely developing the common law or imposing values that Parliament never enacted.

Jagose criticised Parliament’s use of urgency, reduced consultation and procedural shortcuts. She also defended the courts’ growing recognition of tikanga as ordinary common-law development.

Harvey draws on criticism from senior lawyers Jack Hodder KC and Peter Watts KC, along with New Zealand Initiative chairman Roger Partridge.

They argue recent Supreme Court decisions have allowed judges to move around Parliament’s wording, extend Treaty and tikanga principles beyond their previous limits and develop the law according to what judges consider “changing societal values”.

The critique focuses particularly on Ellis v R, in which the Supreme Court found tikanga could be relevant to the development of common law despite no Māori party being involved and neither side initially raising the issue.

Jagose also questioned whether Parliament could conclusively define the Treaty’s meaning “without Māori”.

Harvey argues Māori already participate in Parliament as voters, MPs and ministers. Requiring some additional form of approval would therefore raise a fundamental question about who holds that power and to whom they are accountable.

Jagose’s defenders would say judicial review protects citizens from unlawful government power, that common law has always evolved and that the Treaty cannot be treated as an ordinary majoritarian question.

Her critics contend that courts cannot claim an open-ended power to define their own constitutional limits.

Editor’s note: Legal advice does not emerge from an ideologically neutral machine. When governments consult Crown Law or an outside firm on politically contested questions, the lawyers involved necessarily decide which precedents, risks and constitutional principles deserve the greatest weight. Their professional and institutional worldview can therefore influence the advice ministers receive.

That does not mean Crown Law’s advice is dishonest or legally unsound. But should one group of lawyers’ interpretation automatically be treated as politically neutral or constitutionally final?

The openly partisan reputation of the United States judiciary shows where a legal system can end up when judicial reasoning becomes closely identified with political allegiance.

New Zealand is not yet in that position. Nevertheless, if Crown Law and the senior legal profession are drawn from a comparatively narrow and predominantly progressive professional culture, governments should test contested advice, obtain genuinely competing opinions and distinguish legal constraints from political preferences expressed in legal language. Ultimately, ministers cannot outsource political judgment or democratic accountability to lawyers.

Read more at The Halfling’s View