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Press freedoms, proportionality and a poor Cooke lecture

  • March 21st, 2013

The DomPost editorial yesterday made a well put argument for protecting press freedom against its enemies who gather to chip away at it each time they can muster enough clamour of "scandal".

The editorial's timing was good, as the Law Commission ( Prof Burrows) is shortly to give us its final report, following submissions on its discussion paper suggesting over-arching regulation of broadcast speech (including new media). Then the government will tell us what it will do with the Law Commission recommendations. I'm putting my faith in the Minister of Justice (Judith Collins) to protect us from those who want new laws to punish bad manners.

The potential for future establishment misuse of those powers does not worry the proponents. They expect to be the establishment. They are oblivious to the likely actual uses of such powers, because they believe so strongly in the virtue of their intentions.

The editorial was also well timed in relation to yesterday evening's Victoria University annual Lord Cooke lecture, though the editorial may not get much attention from the lawyers. Many lawyers would have been there to anticipate and congratulate each other on their advancing powers to second guess and control elected and administrative decision-makers. Lord Cooke had confidence in the virtue of judicial interventions. His disciples seem equally satisfied that they can improve us all with more power to punish rude and unlearned journalists, and those who employ them.

The Rt Hon. Lady Justice Arden, an  English Court of Appeal Judge, delivered a demonstration of the unresearched confidence of the lawyers in this area. They just know that more supervision of irresponsible media will be for the best. They treat as sufficient reason the fact that the media often pretend no purpose more noble than to cater for popular demand.

Nevertheless I looked forward to a penetrating justification for the advance of the cleansing rule of lawyers. Despite the topicality of press freedom and “proportionality”, I could not help feeling disappointed. The key issues were mostly missed, or dealt with by way of bland assertion that they could be dealt with. The Law Faculty Dean saved Dame Mary from questions after the lecture by hurrying us all to the refreshments.

Normal judicial condecension toward elected leaders Dame Mary's description of context was competent enough, but pedestrian, and uninformative to anyone who stays abreast of UK politics and legal events. She revealed her expectations of an important role for judges in defining the codes and influencing the decisions of the proposed media regulator which is to emerge from the phone hacking furore and the Leveson reports. However the address was disappointingly  non-analytical,  though revealing all the same.  She made an obligatory bow to freedom of speech then took sides against the UK PM, with a supercilious approach to his concerns about Leveson threats to that  freedom. She did not engage with Cameron’s arguments. Her dismissal relied on the familiar implicit sneering at the motives of politicians that assumes her audience shares her prejudices and assumptions. .

If her approach was an insight into the reasoning processes of the judges who are expanding the role of the judiciary it was the opposite of reassuring. She seemed to assume her audience would be gratified by legal second guessing of administrators and elected leaders. Her eagerness revealed little awareness of the hazards in judicial administration (micro-managing discretionary decision-making).  For example there was no exploration of the unsuitability of courts to prioritising among intensely competing courses of action with heavy political freight. Court processes sift evidence at leisure, applying strict rules to exclude unverifiable (and second hand) information.  

Political and administrative decision-making information needs are often the opposite. They may be required under intense time pressure and unavoidable uncertainty. Political processes are therefore designed to maximise the range and quantity of information. It is all ‘admissible’. The decision-maker balances it intuitively, applying personal experience and implicit weighting factors that may be completely antithetical to the rules binding a court. They may be elected precisely because the electorate trusts in those intuitive values more than the alternative decision criteria. Good administrative decisions ( at least those that remain outside the reach of arrogant administrative law) may similarly be best made taking into account all that is known or suspected as the decision-maker thinks fit.

Proportionality defended? I thought Dame Mary's defence of ‘proportionality’ was particularly weak. She seemed unaware that we were learning nothing more from her  than that she was confident that her “case by case” picking of the Goldilocks point (neither too hot not too cold) would be an improvement over the point chosen by the subject administrator.  She did not discuss whether the kind of analysis the courts would impose might be more costly, or result in fewer decisions with more delay, or exclude factors not susceptible to review that should nevertheless weigh in decisions. She did not consider whether what she would intend as salutary interventions might just drive decisions into other fora, outside her jurisdiction, or impoverish internal discussion, as decision-makers constructed carefully sanitised records of their processes and the factors that should prevail.

Admittedly Dame Mary conceded several times that some of the decisions on which intervention and second guessing might be urged would involve issues not susceptible to the type of evidence testing that is the comparative advantage of courts. But there was no other acknowledgement of the courts’ disabilities in balancing policies and compromises that are the collision points of community disagreement.

The Judge eagerly anticipates using assimilation with European law as the excuse for dumping the judicial restraint of  Wednesbury reasonableness. That traditional test confines judicial review to correcting egregious errors of administration. Instead she looks to the golden days coming, where judges need no excuse to usurp administrative and political decision-making whenever they feel they could make a better decision, taking all the circumstances into account.

Where is the rule of law in all this?  How remote that is from the conception of law as rules that enable one to know in advance the legal consequences of one’s conduct. Dame Mary apparently looks forward to teaching people how to behave by hind-sight categorisation of their behaviour as variously ‘acceptable’ (or unacceptable) and ‘appropriate’ (or inappropriate) or ‘responsible’ (or not responsible) and so on. There was no explanation why the role for the judge should go so far beyond whether the conduct is ‘lawful’ (or unlawful) according to clear, previously known boundary rules. Plainly, rule of law notions are now quaintly unambitious for this one of Her Majesty's judges.

I should try to give Dame Mary more benefit of the doubt. Perhaps she is not necessarily lacking in perceptiveness. Perhaps she and her colleagues will have the self-restraint to stop short of forfeiting formal constitutional respect, by not often stepping into the shoes of politicians and administrators even though they are asserting the power to do so.  Perhaps there are reasonable excuses for what I found to be an uninspiring address. Possibly she would find my condemnation to be disproportionate! I note however, that Steven Price was also underwhelmed.

Or perhaps there are more mundane explanations. Maybe she was wrongly advised that her audience included lay people who  needed a beginner's introduction to things like Wednesbury reasonableness, or the written paper will have the argument and penetration missing from the delivered version. Unfortunately, even if it does appear in the written version,  it is unlikely that VUW Law School will get the benefit of the public debate that should have been generated by an address on the chosen topic



It is appropriate that it was the Lord Cooke lecture because, of course, it’s namesake followed exactly the same lack of analysis and arrogant paternalism in taking it upon himself to define the principles of the Treaty of Waitangi.

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