In any struggle between Parliament and the Courts there can be only one winner – and it’s not the Courts

By Chris Trotter*

It's just simmering at the moment, but a boil-over between the Judiciary and the Legislature cannot be far away. Former Solicitor-General Una Jagose KC is much too good a lawyer to present her arguments in such blunt terms.

Nevertheless, it is difficult to interpret her recent breakfast address to the Law Association as anything other than a call for New Zealand’s politicians to straighten-up and fly right.

“I think we are in trouble as a society and a democracy, and I think it matters more than ever that we lawyers speak into that.”

There will of course be many New Zealanders who see the intervention of lawyers as the cause of their society’s and democracy’s troubles, not the solution.

In the month of July, that scorching month of the Northern Hemisphere in which the Americans declared their independence, and the people of Paris attacked the Bastille, one can easily imagine Kings George III and Louis XVI muttering: “God protect us from intervening lawyers!”

A forlorn prayer. Lawyers are the Constitution’s electricians. They understand its hidden wiring. They are trained to recognise the tell-tale signs of overloaded circuits. When the smell of ozone fills the air and the switches start sparking – who ya gonna call?

“We lawyers need to speak up more about the constitutional settings that our democratic system rests on”, warns Jagose. “Because in our system of democratic government committed to the rule of law, understanding constitutional settings matters – and it can’t just matter to us.”

To make the rule of law matter to the rest of us, Jagose urges the nation’s lawyers to take up that burden with apostolic urgency:

“Speak to people in your running clubs, in your book clubs but make it interesting”, said the former Solicitor-General, “because it is the people who hold the democratic legitimacy for each of those three branches of constitutional government.”

Jagose’s choice of examples is telling. Could there be anything more redolent of middle-class self-improvement than a running club or a book club? Because, let’s face it, how many working-class people have the energy, education, or inclination to devote what little down-time they possess to jogging with their besties around the nearest leafy park, or discussing the latest novel by David Eggars?

Jagose is not mistaken, however, in targeting the middle-class for her profession’s constitutional proselytising. At its core the battle between the Judiciary and the Legislature is a battle between the aspirations and values of the educated middle-class and the beliefs of those occupying less exalted positions of the socio-economic hierarchy.

“We might already be on the road to a cynical citizenry,” warned Jagose. “ If we don’t continue to promote and protect some of the [constitution’s] important elements […] we can lose that delicate fabric forever. And once it’s gone, it will be very hard to reinstate.”

The problem would appear to be that in New Zealand’s idiosyncratic take on the Westminster constitutional model those “important elements” are notoriously difficult to define.

It was Lord Robin Cooke of Thorndon who first raised the subversive possibility that there might be a constitutional limit to the “lawful powers” of the Legislature:

“I do not think that literal compulsion, by torture for instance, would be within the lawful powers of Parliament. Some common law rights presumably lie so deep that even Parliament could not override them.” 

But Cooke’s dicta invites his fellow jurists to set off down a very slippery slope indeed.

His example of an Act of Parliament authorising the state to carry out torture in circumstances sufficiently critical to justify its use is likely to (and was almost certainly intended to) evoke severe moral misgivings among thoughtful citizens.

Perhaps not as many today as in 1984 when Cooke offered his “rights that lie so deep” aside in Taylor v New Zealand Poultry Board.

Seventeen years later, after Al Qaeda’s terrorists had delivered the horrors of 9/11, the question of torture (“enhanced interrogation techniques”) ceased to be of purely academic interest.

Faced with the imminent explosion of a bomb powerful enough to kill thousands of innocent citizens, who would quibble with the proposition that its creator, now in state custody, be compelled – by torture if necessary – to reveal the bomb’s location and how it might be defused?

No, the looming showdown between the Judiciary and the Legislature is most unlikely to be triggered by a governing coalition attempting to legalise torture.

Where the rupture is most likely to occur is in response to legislative efforts to halt and reverse the legal manifestations of the decolonisation and indigenisation projects in which a substantial number of New Zealand’s leading jurists have enrolled themselves.

Legislative efforts to roll back the advances of transgenderism – as exemplified in Jenny Marcroft’s Legislation (Definitions of Woman and Man) Amendment Bill – are another potential flashpoint.

It is in relation to issues such as these that the ideological confrontations between the educated middle class and the rest of the population is likely to be at its sharpest.

Jagose’s concern for the health and longevity of New Zealand’s democracy merits some examination. Democracy may deliver a government like that of Jacinda Ardern, under which a plethora of causes dear to the hearts of middle-class New Zealanders are supported by Acts of Parliament.

That such acts may be regarded by less educated, older, and more conservative citizens as tantamount to legalising torture simply does not cross the minds of the professionals emerging from today’s universities. That’s why, when a reversal of electoral fortunes occurs – as it did in 2023 – the legislative responses of the new government are greeted with horror.

“These attacks on Māori and Trans cannot be allowed to stand,” declare the losers. “Their rights run too deep for a House of Representatives temporarily occupied by Far Right troglodytes to simply cancel them. If this is ‘parliamentary sovereignty’ at work, then it is a false and dangerous principle, one which the Judiciary is morally obliged to over-rule.”

Mahvash Ikram, covering the breakfast meeting for LawNEWS, quotes Jagose on the subject of parliamentary supremacy:

“[It] is a foundational principle, but it has its own rules and conventions [and] operating model [of] how it works that defines and confines its authority.”

“Quoting a former Attorney-General, the late Sir Michael Cullen,” Ikram continued, “she said Parliament’s supreme authority is not self-sustaining and depends on the government adhering to deep constitutional norms.

“‘Can Parliament conclusively define, without Māori, the meaning of that treaty that occupies the foundational place in our constitution… Do you see limits to constitutional legitimacy there? Because I do… These sorts of questions… illuminate the limits to our democracy and to parliamentary supremacy.’”

Sir Michael may no longer be with us, but his question is still very much alive. Upon the answer received, and the number of New Zealand voters willing to accept it, hinges the enduring legitimacy of the doctrine of the separation of powers that has distinguished our constitutional arrangements since the Seventeenth Century.

Jagose vouchsafed to her audience of lawyers that she did not believe that the courts were overreaching their powers when they “tested Parliament’s limits”. Many lawyers and even some judges would take a very different view.

A proper respect for democracy will always accord supremacy to an elected body of legislators, because the idea of according supremacy to a small number of unelected jurists is constitutionally unacceptable to most New Zealanders (if not most Americans!) The Judiciary has the right to advise, even caution, the nation’s lawmakers, but it has no right to test them.

Jagose is dubious:

“Judicial independence does not threaten Parliament, she said. Rather, it keeps power within lawful bounds.”

Ah, but who sets those bounds? And under what circumstances? Posing such questions can be injurious to a nation’s constitutional health.

An anointed king of England sparked a civil war by attempting to overawe his kingdom’s legislators.

It cost him his head.

*Chris Trotter has been writing and commenting professionally about New Zealand politics for more than 30 years. He writes a weekly column for interest.co.nz. His work may also be found at http://bowalleyroad.blogspot.com.