Warren Pyke
Roger Partridge’s latest offering about the Supreme Court uses as a vehicle for his sustained critique the jurisprudence of Lord Cooke. After observing with an implied derision of the worshipful that “the reverence is not in dispute”, he proceeds to pull apart some of Lord Cooke’s jurisprudence.
I only once appeared before Justice Cooke (as he then was), as a junior in the Court of Appeal – my memory of that day is that he approached the argument with quiet interrogation (hanky in hand). I once came across Lord Cooke sitting and reading on a low wall outside the Court of Appeal, on a weekend morning – I wished him a good morning, to which he politely responded. I felt too shy to engage him in discussion.
I have been reading and rereading Lord Cooke’s extrajudicial writings for many years, particularly when I am briefed in cases where I think his jurisprudence can help my argument. As an idealistic young lawyer, I discovered his article on “Fairness” (1989) 19 VUWLR 421. I found his reasoning compelling. I largely still do. Given that Mr Partridge uses his critiques of Lord Cooke to lend historical context to his criticism of the Supreme Court, it as well to offer some other more recent context at the outset. Unless there is some balance given to these critiques, there is a risk that the institution will be undermined in a manner that is not legitimate.
It is important not to lose sight of the vast bulk of judgments delivered by the Supreme Court that are along entirely orthodox lines, and which are characterised by clear and impressive judicial reasoning. Some restraint in language ought to be used in the critiques; a strong critique can still be made without inferring that there has been a deliberate campaign on the judges’ part to rewrite legislation and thumb their noses at Parliament. This is to conflate the effect of the disapproved judicial reasoning with its motives.
I imagine that I have appeared before most of the more senior judges of the Supreme Court, when sitting in that court or in courts below, as often as many senior lawyers have. While I have been discontented with some of their reasoning in some of my cases, I have not been able to say that a judgment was not open to the judges to reach. The Supreme Court judges are all very bright people, and unfailingly fair; not infrequently have I been assisted by suggestions from the bench that have improved my argument and helped me to get a result for a client.
My thinking on the tensions between progressive legal reasoning and the need for stability and certainty in the law have developed over time. It would be the height of arrogance for any jurist or lawyer to purport to have all the answers to the challenges we face in the modern world. Everyone, including and perhaps in particular, the very smart, need to acquire humility and listen to each other, given the complexity of the challenges we face in the era of rapidly emerging AI and a probable post-capitalist dystopia of what one commentator has described as techno-feudalism (Yanis Varoufakis, Techno-Feudalism, Vintage, 2024).
Returning to Lord Cooke’s “Fairness” article, he opines that deciding a novel legal point is not always merely a process of deduction from known facts against settled principles, but it can entail a search for an elusive solution to a problem that we can see to be legally sound and fair to the parties involved – this may require a balancing of relevant considerations in a contested context of uncertainty – he adds that lawyers, possibly many lawyers, may find this approach “disturbing”. Mr Partridge is undoubtedly one of those lawyers.
Lord Cooke adds: “It is very easy to say that if judges decide according to their view of what is fair the law ceases to be certain. The Chancellor’s foot is readily rejected as a criterion, but without consideration of how far differences in the length of human feet are significant in relation to the object to be measured.” Lord Cooke adds that appealing to certainty is often merely an appeal for the more conservative solution, noting that the apparently black-and-white rules to be found in Anson on Contracts have been just as productive of litigation as for instance the evolving principles about constructive trusts.
Historical insight
I have reminded myself of Lord Cooke’s Hamlyn lecture, which I read years ago, and which is critiqued by Mr Partridge. The lecture covers a broad canvass and still makes for interesting reading. On the question of parliamentary sovereignty, Lord Cooke begins by observing that the role of administrative law is now settled – that questions of law are always ultimately for the courts to determine. He describes this as a rule of “profound importance “and that it is a manifestation of a fundamental constitutional principle – “perhaps the only truly fundamental principle of the British Constitution”. Obviously, those who are doctrinally wedded to an absolute notion of parliamentary sovereignty will find this opinion off-putting, since they apparently see the supremacy of parliament as the only ‘fundamental’ game in town. Lord Cooke also observes that the doctrine of parliamentary sovereignty has evolved out of the courts, albeit “based on the judgment of political reality.” He describes the doctrine as a grundnorm, citing Sir William Wade’s article “Sovereignty – Revolution, or Evolution” (1996) LQR 568 in support. I suggest that the evolution of any legal doctrine is largely conceptual; but they almost always emerge out of an institutional history, to which they are inextricably bound. Legal doctrines are rarely, if ever, the product of a self-enclosed positivist chain of reasoning.
The history which has given us the supposedly stable doctrine of parliamentary sovereignty is worth revisiting. Parliaments in England have not always been sovereign: until the eighteenth century they were in a state of tension with, and often subservient to, the reigning monarch. Even after the decimation of the power of the Roman church in England and Wales during the reign of Henry VIII, parliament did not fill the resulting void, which was occupied by the monarch and his immediate descendants.
In “The Myth of Sovereignty”, cited by Mr Partridge, Lord Cooke refers to the well-known note of Coke on Dr Bonhams case (1610) 8 Co Rep 113b, 118a, in which it is recorded: “In many cases, the common law will control Acts of Parliament, and sometimes they adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control and then adjudge such an Act to be void.” This is where history gives us insight. This observation of Coke was made in an unsettled period following the end of the reign of Elizabeth I, in the draconian reign of Charles I (which included 11 years of tyranny, or personal rule, when Parliament was prorogued indefinitely); this culminated in the Rump Parliament’s trial and execution of Charles I, followed later by the ‘Glorious Revolution’ and the restoration of constitutional monarchy, when largely unchallenged parliamentary sovereignty first arose, along with the tempering force of the Bill of Rights of 1689 (to be applied by the judges). Given this history, it is unsurprising that the established common law may have been seen to be a more reliable foundation for the law than the vagaries of such an evolving constitutional system.
After observing such historical events in sketch form, Lord Cooke opines that the there was no formulated theory of the separation of powers and that the truly animated motivations were of self interest, “the pocket and the soul”; to ask where lay sovereignty, except on the throne for the time being, would seem to be an academic question, concluding – “Perhaps it still is”. He adds that while the sovereignty of parliament is a fine “catch phrase”, well beloved of some sections of the media and politicians, it shines little light on the workings of divided powers in modern democratic states, which require collaboration between the branches of government, particularly in the field of human rights; he adds that “it is a distortion to see the legislative and judicial arms of the state as constantly in conflict”; while some struggle and occasional tensions will arise, he adds that neither branch has a monopoly of wisdom. I add that it is the solemn obligation of both branches to try their best to work through such tensions, applying the discipline of restraint in decision-making and in conduct, from both sides. Avoiding public pronouncements and speeches on controversial topics such as Māori sovereignty or supposed judicial politics are examples of necessary restraint.
Interpretive role
To argue that modern democracy requires unquestioning acceptance of the wisdom of Parliament on all issues is to evade the fact that there is a role for the courts to play in relation to important matters of substance in a democratic state, governed by the rule of law. Upholding human rights is within the proper domain of the courts, as is constitutional order (demonstrated in the Miller No.2 (prorogation) case, when Boris Johnson was held by the UK Supreme Court to have prorogued parliament unlawfully, see R (on the application of Miller) v. Prime Minister and Cherry v. Advocate General for Scotland [2019] UKSC 41). Lord Cooke adds that democracy does not mean a simple majority rule, but it requires an objective and unbiased assessment of minority interests to be attempted.
The doctrine of parliamentary sovereignty must not descend to a dogma of the “state of exception”, which is a morally blind and value-free vision of the law envisioned by the Nazi legal philosopher Carl Schmitt (the sovereign power being all encompassing of the law, the two are indistinguishable – even in the case where the sovereign is also a deluded psychopath): such a doctrine, in addition to its banality, would tend to produce an abuse of parliamentary power; it would also be constitutionally impractical and ultimately unsustainable, as the 20th Century history of failed autocratic states has repeatedly shown.
Lord Cooke comments, contrary to what one might take from Mr Partridge’s offering, that the two vocations, politics and judging, are essentially different, despite that from time to time there may be an inevitable overlap and some grey areas; but, he adds, politicians are principally concerned with policy and judges have as their primary role impartiality.
As to the development of the common law in modern days, Lord Cooke suggests a gradual process of creation and modification, sometimes punctuated by giant strides, citing as examples from his Hamlyn Lecture the well-known cases of Hedley Byrne, Anisminic, Woolmington and Salomon. He adds however that “the conventional judicial approach” as regards legislation is “confined to interpretation in the ordinary sense. Clearly no suggested sovereignty or supremacy of the courts has any place in this approach.”
Lord Cooke makes reference to the interpretive approach to the Human Rights Act 1998 in the United Kingdom, which engages similar interpretative tasks to those required of the judges by the New Zealand Bill of Rights Act 1990. Although not extensively argued in his speech, he observes a proliferation of modern rights legislation, and says that rights consistent interpretations are required by the legislation itself; moreover, the judges must in some cases consider if measures are reasonably justified in a democratic society, in which cases a strict doctrine of parliamentary sovereignty is elusive; provocatively, Lord Cooke adds that the doctrine may have become a “common illusion, tidy but superficial”. It is, however, the case that the only sovereign is, in a constitutional monarchy, the Sovereign, and that constitutional development has effectively shared out most of his powers.
Lord Cooke concludes his lecture by observing that the judges have to be acutely sensitive to the fact that they operate in a democracy, which is a state of society characterised by recognition of legal rights and privileges; it is a core function of the judiciary to preserve democracy and to ensure that the quality of civil rights and privileges is maintained, as far as reasonably practical – this is why it is necessary to have independent judges, who do not have to hat-tip to or serve the exigencies of power. A total revolution that abolished an independent judiciary is unthinkable in our modern open society because its existence is one of the basic foundations of our Westminster constitution. He postulates that the creation of a congress of administrative tribunals, holding office at the pleasure of the government of the day, can be scarcely imagined (one wonders what he would make of the proliferation of administrative tribunals today). If the judges were faced with such a situation today, their only proper alternative would be resignation. Let us hope we do not come to that.
Certainty v fairness
Despite the validity of some of their critiques of the Supreme Court, the impression one gains from Mr Partridge and his fellow critics is that we have too much judicial activism in New Zealand. As I point out above, the cases they cite do not represent a fair survey of the whole field. Yes, some of the decisions are doctrinally troubling, and issues of comity do arise. But from my end of the legal spectrum, after 35 years of acting for the underprivileged, the vulnerable, the mentally ill, the hopeless and the villainous (along with very many ordinary folk), our problem today is not one where we have too much judicial interference with executive power when the chips are down.
When I argued my first Bill of Rights case, I faced a judge who told me to go away as the Act did not contain a remedy – it was Lord Cooke’s Court of Appeal that sorted out that preposterous state of affairs. I have had a judge refuse relief for the gullible victim of a concerted and obvious investment fraud, and another restrain a mortgagee sale in the face of a similar scam, which reflected the relative importance each judge placed on certainty versus fairness. I knew where the justice lay, and it was not with the scammers, despite the clever contractual certainties prayed in aid through the arguments of the scammer’s strident silk. I also observed insufficient interference during the pandemic to vindicate the rights of ordinary New Zealanders who refused at the cost of their livelihoods what was, for them, an unnecessary medical treatment which, being dressed up by the executive in the language of ‘stopping the spread’, convinced the judges to go along with their draconian edicts, despite that, in fact, the medicine did little or nothing of the kind, and helped end the pandemic but little (it was clear then, out of the manufacturer’s own data sheets, as it is now, that the medicines were neither designed to, nor did they, prevent transmission). Only in cases of truly egregious restrictions, or in cases of obvious illegality, did the judges interfere. It took too long for this litigation to percolate up to the appellate level, something the judges ought to think about in advance of the next crisis – big calls sometimes fall to be made by those at the top, in all branches of government – standing back and waiting to see where the chips may fall isn’t always an option, as many ordinary people fell by the wayside during the pandemic, some of whom were later to be found inconveniently living in front of Parliament (Norman Kirk’s peoples’ house), while resident shrinking violet parliamentarians looked on in apparent amazement, some of whom were content to curse these largely ordinary folk, call them vile names and torture them with the music of Barry Manilow. Make of this history what you will, but it is hard to detect any troubling judicial activism in any of it.
We may yet face the stress of another world conflict, when the majority of judges say, as they did in Liversidge v Anderson [1942] AC 206 (contra the dissent of Lord Atkin) and in Korematsu v. United States, 323 U.S. 214 (1944) (contra the dissents of Roberts, Murphy and Jackson JJ), when it comes to the abrogation of civil rights in a crisis, the few should give way to the many, no matter what price the few may pay (innocent or not). In the increasingly likely event that we face such a crisis in the future, we ought to turn to the jurisprudence of Lord Cooke, to ensure that, in relation to any alleged necessities advanced by the executive in a crisis, we avoid applying a “principle [that] lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.” (Jackson J, in dissent, in Korematsu); doctrines of absolute parliamentary sovereignty won’t help the marginalised then. A doctrine of fairness may do. If we face such a crisis, and despite critiques about overreaching and apparent constitutional muddle in some of the recent judgments of the Supreme Court (in the cases critiqued by Mr Partridge and others, some of which I agree with, but think we can leave out a certain vehemence), we may come to appreciate judges who are prepared to stand against the ugly face of excessive executive power.
Warren, you talk about restraint in language and about not inferring that there is a deliberate campaign by some judges to rewrite legislation and thumbing their noses at Parliament. You warn to not conflate the effect of the disapproved judicial reasoning with its motives.
You then continue to say that “avoiding public pronouncements and speeches on controversial topics such as Māori sovereignty or supposed judicial politics are examples of necessary restraint”.
Well, the very Supreme Court judges that Mr Partridge has critiqued have not avoided public pronouncements and speeches on controversial topics such as Māori sovereignty and judicial politics.
For example, Justice Joe Williams has stated extrajudicially that Māori did not cede sovereignty and has advocated for a very different social, legal and political structure to what has been democratically and socially arrived at. In my view he has extrajudicially espoused intractable ideas of what he calls “reconstruction” of society and of “structural” faults in government, as he sees it, which are then seen being incrementally implement and corrected in his judicial pronouncements.
There are many examples of public servants and government actors not exercising restraint by undercutting principles, values and ideas that would clearly subsist democratically and in the social consciousness but for activism and propaganda from many unelected and some elected – those public actors that know best and want to tell us all how we should think and live. There are many examples of what appears to be an active attempt by some public actors to disregard current government policy and social thought because they are enlightened and know better.
Your suggestion of restraint seems one-sided, namely that people who holds views like Mr Partridge should exercise restraint whereas, say, Supreme Court judges get a pass and cannot be critiqued in kind.
I suggest that public actors should exercise more restraint and then the rest of us could too. Perhaps public actors could also consider recusing themselves from functions involving contentious issues on which they have expressed intractable views and hold clear personal missions – to avoid the clear inference of predetermination and that they are indeed thumbing noses at not only Parliament, but at a large sector of the public who hold different views.
See my article:
“Stentorian, with ‘a whiff of the pompous’: Assessing the NZBA’s retrospective legislation missive”, published in these pages recently, which addresses the balance and comity questions. It is true that it is not all one-sided. It is also true that sitting judges ought to be wary of extrajudicial musings that might be interpreted as political, or even revolutionary. But Ministers also ought to exercise restraint when commenting on live litigation. Our system works best if the branches of government work quietly on such disagreements, and in a restrained manner, which has been until recently the tried and true tradition.