The Post: The uneasy tension between Parliament and the courts

Read the original article in the Post

ENEMIES OF THE PEOPLE: It was with this notorious 2016 headline that a right-wing British tabloid, the Daily Mail, condemned three judges who’d concluded that only Parliament, and not ministers alone, could approve Brexit.

Such ugliness is part of a wider conservative push to paint judges as a left-wing elite imposing liberal ideology. ACT leader David Seymour joined this unpleasant fray last week with a promise to reign in “activist judges”.

And this is far from the only government action that bespeaks a contempt for the judiciary and for settled principles of law.

Legislation, generally speaking, ought not be retrospective: it should change the basis on which future decisions are made, not tear up past ones. Otherwise the law becomes unreliable. No-one can do anything without worrying that Parliament will retrospectively render it illegitimate.

Similarly, governments shouldn’t legislate over the top of already-launched court cases. That denies citizens the right to have their suit heard, and creates more uncertainty: why take a case if it might be voided mid-trial?

This government pays little heed to either principle. Last year it wanted very much to retrospectively undermine a class action against the big banks, and backed down only after a public outcry.

Brooke van Velden’s cruel scrapping of pay-equity deals – some years-long and on the verge of signing – was essentially retrospective. She also over-rode Uber drivers who have thrice won court rulings that they’re employees of, not contractors to, the tech giant, and thus entitled to greater benefits.

Her legislation, using language drafted by Uber, reclassified the drivers as contractors – even before their case was completed. Most recently, the government legislated over the top of activist Mike Smith’s lawsuit against climate mega-polluters like Fonterra, a case the courts have said should be heard.

In such situations, ministers sometimes decry court decisions as “judicial over-reach”, relying on a distinction of childlike simplicity: Parliament makes the law and the courts apply it.

In reality, law professor Dean Knight told me recently, the two institutions “sit in dialogue, and in tension, with each other”. The courts have always developed the common law (aka “judge-made law”) that covers contracts and interpersonal harms, adjusting it with each decision.

Under judicial review, the courts can decide whether government decisions are consistent with existing law. (Thankfully they cannot strike down the laws themselves, as the US Supreme Court can.)

In the Smith case, the activist may be claiming a novel “tort” – a harm, in essence – of climate pollution. But it has long been within the courts’ power to accept new torts. The law of tort negligence – harm caused by carelessness – is entirely judge-created.

Separately, the courts in 2019 invented a public-interest defence against defamation. Such changes have occurred countless times without vehement right-wing protests about “activism”; oddly, it’s only when rulings threaten their vested interests that conservatives start frothing.

Much legislation, meanwhile, is rushed, badly written, unclear. The courts must then determine what it actually means.

More controversially, judges may decide Parliament has failed to keep the law up-to-date with modern society. One retired High Court judge, speaking anonymously, told me the law could become “stultified” if not updated by court decisions. Officials have, for instance, admitted the 1955 Adoption Act “no longer meets the needs of our society”, and yet it remains law.

Such arguments, of course, prompt the question: who are unelected judges to decide laws need updating? But even if – as I personally think – Parliament should continue to be supreme, the ultimate arbiter of what is legal, it remains an imperfect institution.

Judges, as guardians of basic rights, may occasionally nudge the law onwards, knowing Parliament can always override them. Knight argues they are “deeply mindful” of their unelected status, and, in this “dialogue” with Parliament, use their power sparingly.

One flashpoint is the 2019 Peter Ellis decision, in which the Supreme Court drew on tikanga (Māori customary law) to argue that people’s mana could continue to exist after their death – and so too, therefore, could Ellis’ attempt to clear his name.

Here, reasonable people will disagree. Knight views the Ellis decision as merely the courts “catch[ing] up” with the wider adoption of tikanga by Kiwis – and indeed Parliament. The former High Court judge, by contrast, says the decision “does go too far” and makes “a good number of” his ex-colleagues uncomfortable.

But neither man thinks the judiciary is running amok. Indeed such claims represent an attempt to import UK and US culture-war arguments into this country.

They also serve to legitimise would-be strongmen who don’t like independent scrutiny. Consider the way Shane Jones fulminates against the Waitangi Tribunal, even though it’s merely advisory and is doing exactly what it was tasked with in 1975: ruling on whether government actions are consistent with the Treaty.

Jones’ views reflect a growing tendency for populist politicians to attack basic checks on their power as somehow illegitimate. And when this worldview predominates, blaring headlines about “enemies of the people” are merely the logical endpoint.