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What would fix the Supreme Court?

  • December 16th, 2011

The debate mentioned in last week's post on the performance of our Supreme Court continues. Kiwiblog surveys recent criticisms and suggests:

" Section 17(1)(b) of the Supreme Court allows the Attorney-General to appoint a sixth member of the court. Perhaps it is time to do just that."

That is unlikely to deal with the main problem though it would reduce the awkwardness when one member is out of action or conflicted out . The Court would still sit in a bench of five. An extra judge could just add to the cost and under-employment of this luxury court.

In the past I've suggested other reforms (here and here).  

The most urgent need may not be susceptible to legislation. More useful judgments will not emerge on command. The court already has outstanding lawyers. It is (rightly) not reviewable by  time and motion men like other organisations. So how do we get the best from them.

Quality concerns may be minimised by more systematic mutual peer review. Those who dumped the Privy Council probably assumed our court would be just as collegial in developing judgments. Perhaps it is happening, but it is hard to see the evidence. Are they meeting to sift out defects in reasoning, to test each other's work constructively for unsustainable assumptions? There are too few signs of that in the "output".

Fresh blood in the Supreme Court might help but only if it contributed to an internal commitment to processes that would extract the best from each judge for a combined product. For example, perhaps they could commit to one majority judgment and one minority dissent.

For an ordinary organisation the reaction to such criticism would be simple – change the boss. That is usually the right first step whether the problem is the boss or not and whether it is fair or not. The buck stops at the top. But Courts do not necessarily have "bosses". The Chief Justice has some leadership powers but cannot sack or command her fellows. *

Company chairs are in a somewhat comparable position. The Chair does not necessarily choose the board, and directors are not commandable subordinates in the absence of consensus supporting the Chair. So most company constitutions have a solution. Directors elect their own chair, who holds office only for so long as he or she retains the confidence of a majority of the members they must lead.

Notably, the state has denied SOEs that benefit,  retaining the power to impose on Boards the politicians' choice of chair – a mistake that should be remedied for the energy companies about to go into mixed ownership

If I were the Attorney General (or the Minister of Justice) I'd be thinking about experimenting with giving the Supreme Court  judges the power to elect and to remove their own chair (but not of course from judgeship).

The other change I recommend is less urgent but more important.  It has been widely (but not often publicly) discussed since the Bill Wilson QC difficulty emerged.

That is is to ensure emergency access to judges who can be irreproachably neutral. It would be reserved for cases where no Bench can be put together from the pool of current and retired judges without leaving residual suspicions of conflicts of interest. A simple standby could be legislative authority to send such cases to the High Court of Australia (and of course agreement on any necessary legislation in Australia to permit that).

Given Australia's constitutional rigidity it might be easier to get agreement that Australian judges will be released for temporary appointment as NZ judges for the case.

We already call on Australian judges to help us out of the inevitable pickles that arise when our little circle of top lawyers could look as if it might put personal relationships ahead of duty. That is why an eminent Australian judge was brought in last year to advise (and give implicit probity assurance to) the Judicial Conduct Commissioner investigating the  embarrassing handling of concerns about Bill Wilson QC's relationship with Alan Galbraith QC.

As I've said before, I do not believe that the racing industy investment relationship would have prejudiced the outcome of the Saxmere litigation. Nevertheless the episode highlighted the vulnerability of the present structure and personne.  Restoring confidence in the irreproachability of our senior lawyers (including judges) could be extremely difficult without a way to get overtly unaffected judges. In the Judicial Conduct  Commission investigation, if we had not been able to call on the Austrailian judge the suspicion could have been worse.

I support parachuting an occasional top overseas judge into our court from time to time, to fertilise our line-bred pool. But that is for routine quality maintenance now that our lawyers have lost the regular exposures to world best judging in the UK. It would not deal with the potential for a constitutional crisis should we have a case in which a majority of our top judges have connections (or former connections) that ideally would disqualify them from sitting.

Unexpectedly, Dr James Farmer QC on Monday gave what appears to be a living demonstration of  the vulnerabilities in our current set up. His website gained a post attempting to distance him from his own criticisms of the Supreme Court.. It is so bizarre it seems explicable only if there is in fact an unhealthy importance in the  personal relationships between counsel and the Court in our senior legal hothouse. 

The significance of his recantation lies not in the second thoughts (we can all have those) but in a descent to personal insult in what seems to be a desperate attempt to distract attention from what he clearly said. Here is Dr Farmer on Monday this week:

I have heard it said that lawyers have the skills and experience to make good politicians but that, a lawyer who has become a politician, loses those skills and can seldom return to being a good lawyer. I was reminded of this when I read the interpretation to the Court Report broadcast given by Stephen Franks (a former commercial lawyer, ACT party MP and now lawyer again) on his web site. His discussion of the programme and in particular of my contribution to it begins with the heading “Heat Builds on Supreme Court” and then immediately suggests that the “skids” are under the Supreme Court in its current form.

Here is my "interpretation of the Court Report broadcast" he mentions. Can you work out what prompted Dr Farmer into this:

What nonsense! And it is just this kind of destructive and emotive and irresponsible language from someone who is well known that makes constructive debate that much more difficult. Constructive debate should lead to a greater awareness of issues that can be addressed and that may lead to improvement in an institution. Destructive commentary from the likes of Franks, particularly when it is not backed by practical suggestions of what should be changed, does nothing that is positive and is just plain corrosive.

 If I knew what his practical suggestions were, and on what we disagree I could perhaps understand ad hominem tactics. They remain poor form but can be effective nevertheless. But my comments are broadly aligned with his.  It is particularly odd to be accused of not making practical suggestions. Search this blogsite for "Supreme Court" and there are plenty.

Neither he nor I have said much I've not heard from a number of his brother barristers. Indeed I express them in less inflammatory and personal terms than them.

Hopefully this Parliamentary term will see energetic development of a procedure to either get patently non-conflicted judges sitting in our court for sensitive cases, or for the cases to be heard by a neutral outside court. It would be very rare indeed that such a procedure would be needed, but we should arrange it well in advance.  Our Attorney General has in the past expressed clear views on this matter.

*A Supreme Court judge can't be remove administratively, absent incapacity or moral turpitude, to use the handy old terms. I believe we need a right of citizen recall, especially now we've lost the safeguard of appeal to neutral outsiders, but the current issues are a million miles from what could prompt citizen recall initiatives in the states that enable them.

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