Two ships passing in the night might share the same destination yet follow very different courses. So it seems with David Harvey’s latest response to my report for The New Zealand Initiative, Who Makes the Law? Reining in the Supreme Court.
Harvey and I share the same destination – maintaining an effective judicial system that can respond to changing circumstances while respecting constitutional boundaries. Yet his critique of my recommendations for addressing judicial overreach suggests he may have taken a bearing from the wrong star.
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It is true that the primary function of judges is to interpret and apply the law in the context of live disputes.
But we live in an imperfect world, and parliament produces imperfect legislation. Cases arise that require judges to make legislation work, for example requiring judges to solve a problem a statute was designed to address but fails to adequately achieve. Legislation can fail on account of a variety of causes, for example:
– because of new real world developments, that amendments may have failed to keep up with;
– older legislation may fall out of alignment with new legislation on related matters;
– necessary consequential amendments may have been missed;
– inept or overly dense drafting resulting in internal incoherence or vague meaning.
The list can go on.
Judges generally, and indeed ought to, do their best to give litigants a result, when a dispute falls within the intended subject matter of a legislative scheme. Lives cannot be put on hold in the hope of legislative reform that may not feature high on a government’s agenda (how many times has it been read in the law reports that parliament ought to fix a problem with legislation, only to have the same invitation repeated many years later in a similar case?).
It is one thing for commentators to authoritatively declare what the proper role of judges ought to be; but it is another how judging actually has to work in proceedings, if litigants are going to be adequately served (particularly bearing in mind the high cost of civil litigation). People should not be expected to have to lobby politicians for a law change to solve a problem that the legislature has already, albeit ineptly, purported to address. It is a proper, indeed expected, function of judges to strive, on a principled basis, to make legislation work for litigants.
Textualists may argue that judges should stick to their knitting and eschew an ambulatory or too broadly purposive approach to statutory interpretation, no matter what the reason may be for doing so. However, whether it is or is not necessary to defer to parliament is not merely a matter of opening a book of rules in search of an answer, to be found on page ‘x’, at column ‘y’ – judicial problem solving requires careful legal reasoning and deliberation, against broadly well-settled approaches to statutory interpretation, falling under the guiding principles set out in ss 10 and 11 of the Legislation Act 2019.
For example, take the ambulatory approach. There are well-established guard rails. This doctrine does not licence judges to play legislator. The words of a statute must be capable of being construed in line with a suggested interpretation, which ought to fall within its stated purposes. As Lord Hoffman said in Birmingham City Council v Oakley [2001] 1 AC 617 at 631 the language of an old statute cannot be construed to mean something conceptually different to what it was supposed to address.
Take Justice Scalia’s observation in King v Burwell 576 U.S. 473 (2015), that context is a tool for understanding the law as written by the legislature, not for rewriting it. On the other hand, is the illustrative example of Oncale v Sundowner Offshore Services 523 U.S. 75 (1998); Scalia J, writing for a unanimous Court, interpreted sexual harassment to include male on male harassment, holding that while this category of harassment would not have been uppermost in the minds of the legislature when the Civil Rights Act 1964 was enacted, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
These considerations may be seen, each in their own way, to inform both sides of this debate. From time to time in the law, grey areas emerge. It is no different here. Judges must grapple with such problems; no amount of reforming legislation will alter that reality.