The Elias speech

The media have suddenly found a speech by Chief Justice Elias and are reporting:

The country’s top judge has taken a veiled swipe at the Government’s justice policies, warning that some Cabinet decisions threaten the “fragile” independence of the judiciary.

In a rare public critique, Chief Justice Dame warns that decisions “which seem quite innocent” are undermining the basic principles of the constitution.

In a speech at Waikato University last month, Dame Sian broke with convention, criticising moves by politicians to interfere with the courts in pursuit of cost savings.

The speech was made on 12 September, so has been available for five weeks. The first part of her speech is about constitutional reform, and I tend to agree with the sentiments of the CJ that the reliance on conventions has its risks. On one issue of electoral law the CJ said:

The Electoral Acts stand in a special category because they establish the conditions of democratic government and have long been subject to supermajority requirements for amendment as a result.

I wish that was the case. But in fact only a small number of provisions in the Electoral Act require a super-majority, and in recent times we have seen highly partisan and even retrospective changes to the Electoral Act done on narrow majorities. I would like to see more of the Electoral Act entrenched.

Of course the entrenchment clause itself is not entrenched so Parliament could change even entrenched clauses with a bare majority, but there would be a significant political price to pay for doing that.

The CJ then refers to three risks from the current “obscurity” of the constitution. They are:

  1. the rule of law
  2. the role of the Treaty

With regard to (1) she quotes Lord Cooke that there are some rights and duties that are “truly fundamental” and are ultimately an inescapable judicial responsibility. This is an ages old argument about what would the courts do if for example Parliament voted to execute all babies with blue eyes. It is an interesting academic argument but not one I deem necessary to stay awake at nights worrying about.

Personally my view is that the reserve powers of the head of state should be the protection we rely on from a non-benign Parliament, but the problem with our current arrangements is the PM can sack the effective head of state at will.

The part that has got people excited is this:

I think there are signs that the courts are isolated and aspects of their independence precarious. Court resources are within the responsibility of executive government. Regulations prescribe the terms on which citizens have access to the courts. Court fees are within executive control. These are matters which should be subject to more public discussion than has been the case, perhaps because they are not popularly seen as touching on the constitutional principle of access to the courts. One of my colleagues has asked in a previous Harkness Henry lecture, not entirely in jest, whether we would regard with similar equanimity the imposition of fees to have access to a member of Parliament or a responsible Minister. Judges and lawyers may get the point. But if the wider community does not, it is no jesting matter at all.

Judges complaining about court fees is nothing new. But unless the Judges wish to self-fund their salaries, then Parliament will set the fees (or delegate to Govt) as it is Parliament that raises the revenue to pay for their operations.

As for the comparison to access for MPs, I think it is apples and oranges. No developed country charges for access to MPs and no developed country I know of has no court fees.

Judicial support staff are Ministry employees. The Registrars of the courts are managers employed by the Ministry although nominally responsible to the judges for their registry functions. The judges have no effective say in the allocation of the budget for courts and have had little influence in the priorities set by the Ministry. It seems to be assumed that the administration of the courts (including the administration of judges) is an executive function and that judicial independence is sufficiently preserved if individual judges are not directed how to decide particular cases.

Here the Chief Justice is acting as head of the Judges’ Union. Most previous CJs have done the same. Wanting their own budget has been a long-standing issue, as is wanting to control their support staff directly. I have some sympathy for their desires but would be interested in how many countries have the judiciary actually managing their own department.

It can be expected, too, that the work of international agencies such as the United Nations Human Rights Committee will provide encouragement towards commonality. It would be bold to suppose that legal cultural differences will not shift under such external influences.

The UN Human Rights Committee/Council is probably the biggest threat to human rights we have. They seek to invent new rights such as for religions to be immune from criticism which would be fatal for free speech.

Perhaps it is time to think again about the recommendation of Lord Lester that we would benefit from a Human Rights Committee of Parliament to keep a close watch on legislation which impacts on fundamental rights and freedoms. Such a Committee might even with advantage take on a wider responsibility to scrutinise measures which impact upon constitutional values.

The CJ says several times that protecting human rights is not the duty of the courts alone. I agree, and think a Human Rights Committee of Parliament could be a good thing.

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