)( Appealing to history: the New Zealand

Supreme Court debate

Richard Comes•
Lecturer in Public Law, Essex University; Banister and Solicitor of the High Coun of
Ncw Zealand

A. INIRODUCTION

For a New Zealander one of the odder tourist experiences available in London
- and soon to disappear - was to go to the top of Downing Street, and after a
brief word with the police officer at the gates, to be ushered in to watch a hearing
of the highest court of (though not actually in) New Zealand. Beginning with
the arrival ofBritish settlers the Judicial Committee of the Privy Council served
as New Zealand' s court of final appeal. Sitting in the very heart of London it
was possible to hear lawyers with New Zealand accents argue about places and
concepts quite literally a world away. Those present for the hearing of McGuire
v Hastings on 9 May 2001 were even treated to a waita (song) performed for
the bench, on which Lord Cooke, New Zealand's most prominent jurist of
modem limes, was sitting for the Iast time. 1 Toe Judicial Committee, Ied by
Lord Bingham and hearing what may be one of its Iast significant cases fro'!1
New Zealand, sang no song, swan or other, in return. It was probably thetr
Lordships' last opportunity. On 17 October 2003, the Supreme Court Act (~Z)
received Royal Assent; it was the end product of four years' debate, incl~dmg
within that time a General Election in which the matter was included m lhe
(winning) Labour Party's manifesto as well as those of other parties. Fr~ro
1 January 2004, a New Zealand Supreme Court consisting of the Chief Jusuce
of New Zealand, Dame Sian Elias and four other judges, sitting in Wellingtonj
will begin operation, replacing the Judicial Committee of the Privy Counct
as the court of last resort for New Zealand litigants. 2 .th
The debate over ending Privy Council appeals and replacing the~ ~~cl
appeals to a New Zealand Supreme Court was Jengthy and had three dtSI

• Toe assistanee ofEsscx University, lhe AHRB and lhe British Academy are gratefuIIY
acknowledged. My lhanks also to Meris Amos and Pai McCabe for commenting 00 an
earlier draft. paper base_d ~n this article was also presented ai lhe 6th World Cong;.
of_lhe lntcmattonal Assoc1at1on ofConstitutional Law, Santiago, Chile, in Januar)' 2
Vtews cxpressed and any errors are mine alone.
1. M~Guire Hastings District Council [2002] 2 NZLR 577, PC; lhe singing, and
Lord Bmgharn s respo_nsc on ~half of lhe Board, is reportcd at 585-586. ai '
1
2._ Toe first substantive heanngs may bcgin in July 2004, lhough the Court m•Y de
w1lh mattcrs prelimmary to substantive hearings (for cxample, leave applications) frolD 1
January 2004. See s 55. (AU ,:eferences to sections of an Act are to the Supreme court
Act 2003 (NZ) unless olhcrw,sc statcd.) 1

210

/4
>
. . the New zealand Suprema Court debate 211
AppealinQ to h1story •
. , acro-constitutional' question of wheth~r New Z~aland
pects 3 First, the m t the Judicial Committee of the Pnvy Counc1!, and
~ould ~top send_ing ~ases -~ should be replaced with a domestic second levei
(r so whether Prlvy oudnci set of more detailed questions about the precise
ourt· secon ' a h . d 't
appellate e ' d levei appe\late court (for example, ow many JU ges 1
· n of a new secon · d · · t' ents)·
de5ig the nature of its teave procedure, 1ts a mm1stra 1ve arrangem .,
shouldhave, t of the Supreme Court debate concerned the manner m
bile the fina1aspec h f h artº
w d' p · y Council appeals became just anot er aspect o t e p 1san
wbich en mg n v
4
litical contest. • h th
po • artº 1 wi' l\ 1'ocus however on the first aspect of the debate - 1e w e er
Thts lC e ' •
New zealand was right to stop sending cases to the Pnvy ounc1 . . e
e ·15 Th
assumptions underlying the arguments put _u p ~y opponents to reforro w1\I be
considered. It will be argued that underpmnmg the fi ve sets of arguments

3. For lhe academic literature see: Bruce Harris 'Toe New Supreme Court' [2003] NZLJ
15; Richard Elkins and John Ip 'Legislative confirmation and the Supreme Court' [2003]
NZU 151; Arahia Burkhadrt Macrae 'Toe Declining Relevance of lhe Privy Council to
Maori C\aims' [2002] AULR 950; Noel Cox 'Toe abolition or retention of lhe Privy
Council as the final court of appeal for New Zealand: conflict between national identity
and legal pragmatism' [2002] NZLR 220; Megan Richardson 'Toe Privy Council and
New Zealand' ( 1997) 46 ICLQ 908; Robyn Martin 'Diverging common law: Invercargill
g~s ~o the Privy Council' (1997) 60 MLR 94; Ronald Pol 'Privy Council Appeals-lhe
pnnciple alternatives' [1996] NZU 94· Sir Thomas Eichelbaum 'Brooding inhibition-
orguidin~ hand? reflections on lhe Pri~y Council appeal' in P Joseph (ed) Essays on the
~ons!itution (Wellington: Brookers, 1995); Sean Baldwin 'New Zealand' s national legal
tdenttty' (1989) 4 Cant LR 173; Paul McHugh 'Toe appeal of "local circumstances" to
lhe Privy Council' [1987] NZLJ 24; Philip Joseph 'Towards abolition of Privy Council
ªppea\s' (1985) 2 Cant LR 273· Peter Bums 'Toe Judicial Committee of the Privy Council:
~;stitutional bulwark or colonial remnant?' (1984) 5 Otago LR 503; Robin Cooke
, vergences- England, Australia and New Zealand' [1983] NZU 297; and B Cameron
tppeals to the Privy Council - New Zealand' (1970) 2 Otago LR 172. Toe key policy
Cocu_ments are: Appeals to the Privy Council - Report by the Solicitor-General to the
Cab,net Strategy Committee on Issues ofTermination and Court Structure (Wellington:
rown Office, 1995), which lead to the Courts Structure Bill 1996 (which, ifit bad passed.
Wou\d have ended Privy Council appeals and left New Zealand with no second levei
fpellate court); the Hon Margaret Wilson, Attorney-General Reshaping New Zealand's

t Ppeal Structure - Discussion Pape, (2000), available at www.crownlaw.govt.nz; Report

th
e Advisory Group: Replacing the Privy Council, A New Suprtme Court (Wellington:
ffice of the Attorney-General, 2002), available at www.crownlaw.govt.nz; and Report
of the Justice and Electoral Committee on the Supreme Court Bill (the JEC Report) (2003),
avai\ab\e at www .clerk.parliament.govt.nz.
~- ln this respect the process of constitutional reform in New Zealand is similar to lhat
1
n lhe United Kingdom. Both countries lack any cntrenched constitutional document (see
also n 63 below), and so, as Foley argues (in Tht Politics of tht British Constitution
(Manchester: Manchester Univcrsity Press, 1999)) in rclation to the United Kingdom,
~onstitutional issues easily become just anothcr aspec! of the political debate. This dynamic
IS exacerbated in Ncw Zealand wherc thc proporuonal clcctoral system has lcad to a
Par!iarnent in which seven differcnt parties are rcpresented. non-govemment panies
(of which there are currently fivc) not only havc to diffcrcntiatc themselvcs from the
government, but also cach othcr-: the Suprem~ ~oun. for reasons quite distinct from its
own mcrits, was clearly caught up m the co~!"'uuon between not only lhe govcmment and
the opposilion, bul also between the oppos111on (ornon-govemment) panies themselvcs.

C\
212 Legal Studies

against ending appeals was a denial of the contemporary n t

· · but aIso thUº
the New Zealand Constltullon, e mte d Kingdom,
· s aureor
d no1
0111
of the modem relationship between the two countries: the he~ of ~e natui!
attempt to resist the inevitable process of decolonisation and Nof this Was an
Path to complete independence. The. article will proceed as tolelw 2.eaJand's
will discuss the concept of reco 1omsat10n.as . outhned by the NOWspj · U.~ 1
historian James Belich, explaining how it is relevant to the Supew Zea1and
. the fi1ve sets of arguments put up aga·reme C~un
. then outlme
debate. I w11l
· Counc1·1. At the en d of t.he art1c
appeals to the Privy st end
. Ie I will retum inask IV lllg
10
jf any, relevance the New Zealand debate IDight have for the United Kingd~~
as it embarks on its own prograrnme of top court reform. The conclusio
be a sugges?on th~t the United Kingd~m consider followi~g _New Zeal~~s
example of mcludmg a purpose clause m the statute estabhshmg its Supre
Court; such a clause would provide the opportunity to focus on the c ; :
0
role, and address concerns that the reform process itself will upset established
(unwritten) understandings about the independence of the judicial branch, and
the balance between it, and the legislature and executive.

B. DECOLONISATION:THEGOVERNINGCONTEXTOFTHENEW
ZEALANDSUPREMECOURTDEBATE

James Belich characterises much of New Zealand's twentieth-century history

as a period of 'recolonisation', his term for 'a renewal and reshaping of links
between colony and metropolis (London]' 6 and marking a retreat from a more
independent nineteenth-century New Zealand. Belich contends lhat lhe concept
of recolonisation is a 'key determinant of New Zealand's modem history,
wilhou~ w~ch much of lhat history cannot be understood' .7 A hallma_rk of
recolomsal.lon was lhat lhe recolonised entity- here, New Zealand-established
'tight li_nks wilh lhe homeland ... (becorning] a town-supply district of_London
··· [whilel London became lhe cultural capital of New Zealand'. 8 Behch_ goes
so far as to say lhat lhe recolonialist dynamic 'made New Zealand a virtual
Scotlan~• -~ aspect of lhe colonial, and subsequently, recolonial sys_te~
was lhe JunsdictJon ?f lhe Privy Council, wilh its role as lhe 'judicial sovereign
at00lhe h~ of ernp1re - seeing lhat the wisdom of lhe English common law
\ kn><;>t m lhe colonies, amended only to lhe lirnited extent necessary to meet
local c1rcumstances •.
ln lhe latter Part of Paradise Reforged Belich goes on to outline how New
2.ealand was lransfonned between lhe late l 960s and lhe tum of lhe new centUIY

:hro:i: 0 ;/!~c~ssio; of lhe provisions of the Supreme Court Act 2003 (NZ) ao d
re Norm
Coun·· J••-'ng
-m
ferom ~ d 'see
ew ~':?:'.;~~s Richard Comes 'How to create a new Supreme
[2004J
6. James Belich Paradiu Reji . PL 59.
ª
to tk Year 2000 (Auckland· Pe~,g~d: History oflhe New Zea/anders from the 188~s
History of New Üa/and (A~ckl gu'."• 200 1_) P 29. See also Michael King The Pengum
7. Belich, n 6 above P 548 and. Pengum, 2003), esp eh 30.
8. Belich, o 6 above' p 30 ·
9. Bclich, n 6 abovc: p 54?.
 . ry· the New Zealand Supreme Court debate 213
alinQ to h1sto .
APP8 largely independent South Pacific nation. Along with
recolonial_stªtetee decolonisation and the path to full independent
(IOdlpb and Ohve;D~inian end point of constitutional development'; 1º and
!:QObood as tbe the Privy Council and establishing a New Zealand Supreme
appeals t~ ical step in the evolution of the New Zealand Constitution. 11
o,urtis tbe n;t : r of Parliament Nandor Tanzcos (who also sat on the Justice
c,rcenPartY al ~mmittee - the 'JEC' - the committee of the New Zealand
and_Elector bich considered the Supreme Court Bill for much of 2003) captured
~ : c e of the decolonisation process to the debate when he wrote in
April 2003 that:
'Toe move to a New Zealand Supreme Court, ending the right of appeal
10 the Privy Council, is part of a process of decolonisation. lt signifies a
desire to chart our own course as a Pacific nation taking account of
intemational, as opposed to imperial law. Whether we view it with excitement
or with fear depends to some degree on where we stand on this wider issue.' 12
I suggest that opponents failed not only sufficiently to appreciate the
inevitability, and consequences, of decolonisation for New Zealand, they also
failed to comprehend the nature of the contemporary United Kingdom, its
anitude to its former colonies, and impact on the United Kingdom of European
integration. This then is the context within which the five seis of arguments
against ending appeals to the Privy Council were set; and to those I now tum.

C. THEFIVE SETS OF ARGUMENTS AGAINST ENDING APPEALS TO

TIIEJUDICIAL COMMITTEE OF THE PRIVY COUNCIL

~- /ccess to the Privy Council provides New Zealand with access to

Ju ges of unsurpassed excellence
New ~ealand, opponents said, should retain the Privy Council because it
;on~ns s_om~ of the best legal minds in lhe common Iaw world. The N~tional
any .5 mmonty report on lhe Bill (endorsed by lhe ACT Party) opens w1th the
~:rtion that lhe Privy Council 'is a Court of acknowle_d~ed ~xcellence_'."
re are a number of responses to lhis collection of 'fam1har chchés laudmg
~ei~ Lordships' Board' .14 Perhaps lhe most appropria~e place to ~gin is to
sk Just what lhe National Party understood by the term excellence ·1'!1e Law
Lords are arguably the best judges in the English an~ Welsh, _Scot!ish and
Northem lrish legal systems, being qualified, and havmg pracuced m tbose

lO. Joseph (1985), n 3 above, at 25. as its Head of State 10 be

11. Leaving only the issue ofNew Zealand's use ofthe Queen
addressed. rtunit , New Zealand Herald, 28 April
12. NandorTanczos 'Court bili wi~dow~f '?~po d cinstitutional Iawyer, SirGeoffrey
2003. See also the view of fo~er Pri~;il ,:;.s.;~:.;'nial relic ... ill-cquipped to remain as
Palmer, who described the Privy rted in 'Palmer sees Iiule use for Privy Council'

New Zealand Herald, 19 May 20

13. Toe JEC Report, n 3 above, P 6 ·
º;
New Zealand' s final appellate court · rcpo

14. Joseph ( 1985). n 3 above, ai 273.

214 Legal Studies
Th N t'onal
1 Party's position assumes these judges, who hold no
st
sy l:ms. . e . ªthe law of New Zealand, are nevertheless the 'best' judges
qualificattons
New Zealand could m possibly have on 1ts· fimai court of a~pe~1. This pos1tton· · is
. bl ·r one sees the law of New Zealand as sttll s1mply a sub-set of
only sustama e 1 ngland 1, varymg . only m · so far as necessary to take mto •
the common 1aW Of E • .
account 'local circumstances'; rather than a n~w iut~~ setarate, au:chthonous
legal order. 16 There remain of course many s1mtd anb ttes etwd een d~ common
· England and Wales and in New Zea1an , ut an un erstan mg of lhe
1aw 10
mmon law in England and Wales does not qua1·f . d ge to un d erstand lhe
1 y a JU
~~mmon law of what is now a quite distinct legal system - something, as we
17
shall see below, the Privy Council has acknowledged.
Furthermore, the National Party's position failed to appreciate that an
'indefinable part of ajudge's qualification ... is his intimate knowledge of the
society in which he resides and upon whose members and institutions he sits
injudgment'.18 As Lady Hale has argued, making the case generally for a diverse
judiciary:
'The judiciary may or should be independent of Government and
Parliament but ultimately we are the link between them and the people. We
are the instrument by which the will of Parliament and Government is
enforced upon the people. We are also the instrument which keeps the olher
organisms ofthe State, the Police and those who administer the laws, under
control.' 19
Clearly a court, the majority of whose members are selected by the British
government, from British judges, can never be a link between the New Zealand
government and the people of New Zealand.
Opponents to ending Privy Council appeals also failed to take into account
criticisms made in the United Kingdom of the Law Lords' performance, tending
to hold the Law Lords up as beyond ali criticism. Toe Law Lords, while being
judg~s of acknow!edged excellence, are nevertheless not beyond ali criticism.
C_ons1der, for example, lhe procedural error made by Lord Hoffmann in the füst
Pin~het_c~; 20 lhe long-running concems of criminal lawyers;21 or the current
of disquiet m Scotland about their Lordships ability to deal with Scottish

15• 1 deli~rately single out England because lhe underlying view indicated by this
~:~~'. is lhe outdated one which identifies ali the of lhe United Kingdom as
of th '? taking mto account lhe three distinct legal systems, or lhe possible divergence
01
to at:1;;bem!Wales. Seeeg lhe submission of the New Zealand Bar Association, referred
ow.
16. See discussion of New Ze 1 d' • • .
both n 3 above. ª an s d1stinctive legal culture in Baldwin, and Cooke •
17• See discussion at p 218 bel
18• Joseph (1985), n 3 above
19. Brenda Hale 'Equali
a~~96
' . ·. . ,
(2001] PL 489 (emphasi;a:~~e Judiciary - why should we want more womenjudges
20. See generally, Diana Woodh . . . . 1
Analysis (Oxford· Hart Pub!' h' ouse (ed) The Pmochet Case: a Legal and Const1tut1onll
21 S · , IS Ing 2000)
• ee d1scussion by Lo · B ' · d
Paul Carmichae! (eds) 1he :is lom-Cooper and Gavin Drewry in Brice Dickson an .
Hart Publishing, 1999). ouse 01lords: lts Parliamentary and Judicial Roles (OxJotd,
 Appealing to history: the New Zealand Suprema Court debate 215

matters; 22 or the more general critique made by Robertson based on an analysis

of 407 cases between 1986 and 1995. 23 Also relevant, given the similarities
between the N ew Zealand •s Bill of Rights Act and the Human Rights Act 1998
is Barendt' s critique of their Lordships' first major freedom of speech case- R
(on the application ofthe Prolife Alliance) v BBC.2A Ofthis case Barendt notes
that not only was it ~e most important, but it was also, 'the most disappointing'
and that 'passages m the speeches of the House of Lords are baffling, or, to be
frank. obscure' .25 Finally, Barendt ends by noting that the Law Lords had failed
'to do justice to the legal arguments' .26
Finally, the idea that the Law Lords are the best qualified judges to serve on
New Zealand's final court, contains within it, implicitly, the idea that the New
Zealand cannot provide judges of as high a quality as the United Kingdom
(accepting for the moment that quality vis-à-vis New Zealand does notrequire
any qualification in New Zealand law ). A number of submitters to the JEC argued
that: 'New Zealand lacks the judicial talent to maintain a full Supreme Court
of quality equivalent to the current standard ofthe Privy Council.' 27 There are
four points to make.
First, the fact that the New Zealand judges in the Court of Appeal are
overtumed by the Judicial Committee is not a reflection on the ability of the
Court of Appeal judges. Toe Law Lords sitting in the House of Lords overturn
each of the three first levei appellate courts in the United Kingdom with roughly
the sarne frequency, if not slightly more often, than the Judicial Committee
overtums the Court of Appeal. Apart from the distinct functions of the two
leveis of court, the pressures on first levei appellate court judges, in tenns of
dealing with a relatively high volume of cases, are significant. Second levei
appellate judges carry out their task at much greater leisure. Apart from when
they have sat in the Judicial Committee, New Zealandjudges have never had
the opportunity to perform as second levei appellate judges.
Second, until recently, presumably in anticipation of reform, judges of the
Court of Appeal have been appointed Privy Councillors, thus qu~ing ~em
to sit on the Judicial Comrnittee. There is certainly no suggesuon m Uruted
Kingdom legal circles that the New Zealand judges were any less a_ble than th~
British ones. There has even been the suggestion that the other Privr Council
71
judges may be overly deferential to a single visiting New ZealandJudge.
Third, N ew Zealander' s should realise that judgments of the N~w Zealand
Court of Appeal are themselves cited in other top courts - parUcularly lhe

22. See James Chalmers 'Scottish appeals and the proposed Supreme Court'
(forthcorning, 2004) ELR. . . Lo d (Oxford: Oxford
23. David Robertson Judicial Discretwn m the Hou se 01 s
University Press, 1998).
24. [2003] 2 Ali ER 977. . , PL 580 at 580-581.
25. Eric Barendt 'Free speech and aboruon (2003]
26. Barendt, n 25 above, at 591.
27. The JEC repor!, n 3 above, P 10. C k f Thomdon as Lord of Apeai: Toe
28. See discussion in Peter Spiller ' -:<>rd ~ . Cfthe deference thc non-Scottish
New Zealand Dimension' (2002) 10 ~wkalo . h
5 es· see Chalmers, n 22 above; and
judges show to the Scottish judges 10. Scotu; c~tations ofthe court and properties of
!loderick Munday 'Judicial Configurauons- enn
Judgment' [2002] CU 612.
M
\! 1 ; '

216 Legal Studies

. th United Kingdom's and Canadian - this is a significant
Austra 11an,
endorsement e the abilities of the New zea Jan d JU
of · d ges. A_n d f'mally, the
d ce the Judicial Committee accords the Court of Appeal (d1scussed below)
isei:l~ an indication by the Unite~ Kingdom Court of the quality of many of
the Court of Appeal's judgments.

z. Refonn will swap tbe 'objectivity' of the Law Lords for a politically
tainted, activitist New Zea)and Court
Toe next set of arguments put up_ against ending ~ew Zealan~• s use of the Privy
Council revolved around a v1ew that the Pnvy Counc1l was a court of
unimpeachable objectivity, that its judges decided matters wilhout any hint
of politics entering into their judgments, and finally that it kept an at times
overly activist New Zealand Court of Appeal in check. The JEC reported that
'many submitters expressed admiration for lhe Privy Council's objectivity and
distance from local conditions'. 30 Associated wilh lhis was a concern that the
reforrn process itself, and the rancorous political debate into which it descended,
was undermining the unwritten understandings conceming lhe independence
and impartiality of the judicial branch. Further, that a New Zealand-based court
would be composed of judges appointed for their ideological friendliness to
the current Labour government, take an activist approach to the judicial role,
and destabilise the existing balance between the judicial, legislative and
executive branches.
Toe concem aboutjudicial appointments arose because lhe Bill- and indeed
the Act - continued lhe New Zealand practice of leaving the appointment of
the judges entirely a matter for the executive. Ali High Court, Court of Appeal
and Supreme Court judges are appointed by the Governor-General, acting
according to constitutional convention, on lhe advice of the Attorney-General,
or, in the case ofthe Chief Justice, the Prime Minister. Toe convention h~s al~o
bee~_that appaintments are made solely on lhe basis of merit, with a candidate s
politlcal or 1deological views being irrelevant; reforrn, opponents conteo<led,15
w~uld unsettle this. Finally, concern about judicial appointrne? was
heightened by lhe fact the while lhe Chief Justice (who had been appointed by
ª previous National
M · Party Prime Minister) was in post ' Labour Attomey-General
• i1 • dges
argaret Wilson would get to appoint the olher four (as it transp1red) JU
who would make up lhe new Supreme Court' s first full bench. . ·1
The. cone · d
em ra1se by opponents to reforro, concerning · J·ud1c1a
ir!
:porntments, was perhaps lhe best argument they rnade. People, u?fa h~;
ough und er5landably, did not trust the Attomey-General not to bnng h
5t
own political age~da to bear in selecting the Suprerne Court's_ fir full b:~
1lboug? suggesuons lhat lhe Bill be amended to establish e1ther sorn~1 the
a~pomtments commission, or to include a role for Parliarnent 1wo
. ppomtment process were resisted the govemrnent did eventuallY rnak
!
the priJJle
11Dportant concessions. First, lhe At~orney-General and subsequeotlY

29. See d'iscussion at PP 218-219 bel

30 The JEC
31. Afurth report, n 3 above, p 13.
ow. ' uofll(ll for
· er pennan · Th Court s q
dealin 'th entJudgemaybeappointed: s 17(l)(b). e
g w1 substanfive matters 1s
. tive JUdges:
. s 27(1).
 Appealing to history: the New Zealand Supreme Court debate 217

Minister made clear thei: preferen_c~ for the ~ost senior members of lhe Court
of Appeal to be the first JUdges t~ JO~n lhe Chief Justice on lhe new Court. And
second, the Attorney-General md1cated that in relation to the firsl sei of
appoinlments she would follow the advice of an ad hoc advisory committee
composed of the Chief Justice, lhe Solicitar-General, anda former Govemor-
General.3~ The govem_me_n~ has ais? announ~ed that it would be producing a
consultat10n paper on Judicial ap~omt~ents _m 2004 ~nd_i~ would seem Jikely
lhal lhe days of unfettered execuuve d1scret10n over JUd1c1al appointmenls in
New Zealand are over.
ln arder to address the concem that the new Court would disturb lhe existing
balance between the judges, the legislature and lhe executive, a sub-clause
was added to the Bill's purpose clause, what became section 3 of lhe Act.
Section 3 begins by setting out the Act's basic purpose, ie to eslablish a New
Zealand Supreme Court, 'to recognise that New Zealand is an independenl
nation with its own history and traditions', 'enable important legal matters,
including matters relating to lhe Treaty of Waitangi to be resolved with an
understanding of New Zealand conditions, history and tradilions', and to
'improve access to justice'. Subsection 2, inserted during the Bill's comrnittee
stage, further provides that the Act is nol intended to affect 'New Zealand's
conlinuing commilment lo the rule of law and the sovereignty of Parliament'.
lt is reasonably clear that the subsection was inserted to wam the Court off
taking an overly activist approach in its approach to deciding cases and
developing lhe law. While that rnay have been one of the reasons for the clause' s
insertion, the clause may have wider application. Given that there is no
agreement among constitutional lawyers about the precise scope 1 either 0
ot
doctrine, the subsection may open the way for the Court to sei out ~ ~
understanding of these concepts. Further, while reference to the con_un~i~g 1
commitment of the parliamentary sovereignty may serve to encourage Judic '.11
discretion the cornmitment to the rule of law also gives the Court the democrauc
0
legitimacy, it may be argued, to act as the guardian of the independenc~ ~ '!1e
judicial branch, developing the comrnon law as necessary !º ~ro_tect lhet 15
branch from any attempt by the other branches to hmil its eS a e
constitutional role.33

3. The Law Lords keep New ZealaD<l Iaw 'on track'

. . . Zealandjudges, opponents ofreform
Keeping with the imphc1t diStrllSI ofN~70 f hich suggested that New Zealand
put forward a collection of ~gumen~ c:uncil 10 ensure that the comrnon
needed the 'trainer wheels ~f ;.;ck' or more specifically, the sarne (so
law in New Zea!and Jaw remame ºctºwa1 s ',,.,_e New Zealand Bar Association
· EngJandan
far as possible) as that lil . e·'"
ai was · ensure d 'th e
of value because 11
submitted that the PrivY Council appe

enior four judges from the Court of Appeal

1
32 A d !O November 2003, lhe moscs r1 Tbey are: Thomas Gault, Sir Kenneth
• n on . f the supreme ou •
were
• named BIas Jusuces O
chard and Anu»~-w Tipping. restrict the courts • 1udic1al
. . . rev1ew
. role via
.
10
Ke1th, Peter an 'sting attempts
33. For example. by resi ,
exclusion clauses.
218 Legal Studies
. f[N w '"'··•and] commercial law ... withEnglish [sic] commercial
confonruty o e =
law'. 34 nse to this • th at 1or
• argument 1s " some tlme· now the Law Lords
e
Thmade res po . h . 1
fi t clear that they do ~ot see _1t as t e1r ro e o secon d guess t~e New
irs t
have
Zealand Court of Appeal mcreas1~g range of case~. ln Invercar~1/l City
Council v Hamlin the Judicial Comm1ttee was face~ w1th an app~al m which
the Court of Appeal's appr?ach to the tort of n_eghge~ce was d1ametrically
opposed to a recent re-direct1on of the law of neghgence m England and Wales.
Speaking for the Board, which declined to overturn the Court of Appeal, Lord
Lloyd of Berwick said:
'ln the present case the Judges in the New Zealand Court of Appeal were
consciously departing from English case law on the ground that conditions
in New ;zealand are different. Were they entitled to do so? The answer must
surely be Yes. The ability of the common Iaw to adapt itself to the differing
circumstances ofthe countries in which it has taken root, is nota weakness,
but one of its great strengths. Were it not so, the common law would not
have flourished as it has, with all the common law countries learning from
each other.... [T]he New Zealand Court of Appeal should not be deflected
from developing the common law of New Zealand (nor the Board from
affirming their decisions) by the consideration that the House of Lords ...
have not regarded an identical development as appropriate in the English
setting.' 35
Perhaps even more remarkable was the approach of the Privy Council in
Lange v Atkinson.36 The case concerned the question of the defences available
in response to an allegation of defamation and important constitutional
questions conceming the very basics of the operation of democracy in New
~aland: ie_ b~lan~in~ freedom of expression in relation to political_ matters
with an mdiv1dual s nght (via the tort of defamation) to their reputauon. The
New Zealand Court of Appeal's initial judgment on the nature of the defences
to defamation was directly at odds not only with Australian precedent,0 but
ai ·th ' 11
· 5h uld
so wi a unanimous judgment of the sarne Law Lords (including, . h
be noted, ½>r_d C?oke of Thorndon) on an almost identical appeal in wh~
lhey were givmgJudgment in the Appellate Committee of the House ofLopeal
on lhe sarne day. 37 Rather than overturning the New Zealand Court of AP •
the Board . _reffil·tted th e matter back to the Court of Appeal for recons iderauon,
the
:mphasismg th~t the Court of Appeal could, if it chose, diverge fro~ving
. pproach taken m England and Wales. Lord Nicholls of Birkenbead, g
Judgment for the Board, stated:
'F rrnitatiooS
. or some years Their Lordships' Board has recognised th e d upOº
1
5
on 115 role as an appellate tribunal in cases where the decision depen

pi//
34. New Zealand B A . . S ,erne courl
(2003) p 3. ar ssoc1at1on Submissions in Respect of the up
3S. Lan e g,·11 .e·,ty Councilv Hamlin [1996]1 NZLR 513 at51 9- 520·
36. Invercar wiJ
37. Th/u;:rn~on [2000] 1 NZLR 257. d [199913
1010. Kingdom case was Reynolds v Times Newspapers LI
 Appealing to history: lhe New Zealand Suprema Court debate 219

considerations of local public policy. The present case is a prime instance

of such a case. As noted by Elias J and the Court of Appeal, different countries
have reached different conclusions on the issue arising on lhis appeal. Toe
Courts of New Zealand are much better placed to assess the requirements of
the public interest in New Zealand than Their Lordships' Board.
Accordingly, on this issue the Board does not substitute its own views, if
different, for those ofthe New Zealand Court of Appeal.' 38
Emphasising the Judicial Committee's advisory position, and the pre-
eminent role of the New Zealand Court of Appeal, Lord Nicholls went on to
state:
'Their Lordships emphasise that they do not suggest that at the further
hearing the New Zealand Courts are bound to adopt either the English of
the Australian solutions. Nor do they seek to influence the New Zea/and
courts towards either of these solutions. If satisfied that the privilege
favoured in the judgment now under appeal is right for New Zealand,
although wider than has been held acceptable in either England or Australia,
the New Zealand Court of Appeal is entitled to maintain that position.' 39
Toe case retumed to the Court of Appeal, and it, speaking significantly
through a single judgment, re-affirmed its earlier view.40 Certainly in this case
lhe Court of Appeal was, as a matter offact, the top court.41 While lhese cases
do indicate that the Privy Council would frequently defer to the Court of Appeal,
it was still necessary for that Court to justify departing from the approach taken
by the House ofLords by reference to 'local circumstances'. Toe default position
was that the Iaw in New Zealand should conform with the law in England and
Wales - this was surely incompatible with the need for a state situated in lhe
South Pacific, whose primary trading partners are in its region oflhe world, to
develop legal principies appropriate for its own circumstances.
The next point to note is that the argument put forward by the Bar
Association that it was desirable for the commercial law of New Zealand 10
conform with that of England rests on an outdated understanding of lhe nature
of the common law in England ' and Wales. Toe Bar Associauon · · an dlher °
opponents, especially business concems, failed to appreciate th~ impa~t ~n
the law in England and Wales of both the European Commumty, an I e
European Conventlon · on Human Rig · hts via
· th e HumanRightsActai1998. There
I t
. f 1h eekly Jeg news et er
Were some rare exceptions - Jack Hodder (editor O e w . , , ,
C · d • nservauve case ,or re,orm ,
apual Letter), presenting what he tenne ª co ·v Council because lhe
argued that New Zealand needed to end use of th~ y re rights orientated
Human Rights Act was going to make the Law Lo ar mo
and acti vist. 42

57 ai 262 (emphasis added).

~8- Lange v Atkinson [2000) 1 ~
9• Lange v Atkinson [2000) 1 ,,......,, 51 81 26
3_

40. [2000] 3 NZLR 385, CA. th Privy council's deferencc to lhe New
41. Richardson gocs so far as to suggi:!~~:!ue~ by a desire to secure New Zealand's
Zealand Court of Appeal may ha~e ec RichardsOn, n 3 above, ai 91 O.
continued use of the Privy Counc•I;.S Suprtme Court Bill (2003) P1V.
42. Jack Hodder Submissions on I e
1
1
1

220 Legal Studies

Finally opponents of reforro sought to tum the argument, that endin
appeals w; s a necessar)' step in New ~~land's pa.t~ ~or ful~.independenc;,
around, characterising the pro-reforro P?s1t1?n as exh1b1tmg an mward-look.ing
nationalism'." Toe National '.arty m1?on_ty report on the ~ill included the
following comment: 'We cons1der thatJusuce transcends nauonalism.' While
the ACT party observed that the:
•Main reason offered by. most supporters, includin~ ~et!red Judges and
academics, was that the ngh~ ?f appeal was a hum1hatmg remnant of
colonialism. The case for abohtton never got more penetrating than that.,
Toese comments err in assuming that the. New Zealand legal system will
necessarily be more insular as a result of endmg appeals to the Privy Council.
Oo the contrarY, building on ~e institutiona! links which already exist (the
Chief Justice a!ready takes part m the Australas1an Conference of Chief Justices)
the new Supreme Court will be far better placed to integrate, where appropriate,
legal concepts arising in the case law of other countries (including the United
Kingdom) into the law of New Zealand than the Privy Council could possibly
be. This is of particular importance in relation to the commercial law of
Australia, given the commitments made in the Closer Economic Relations 44
(CER) agreement to harmonise the commercial laws of both countries. One
might go so far as to argue that opponents of reform were themselves driven by
a narrow nationalism: the narrow nationalism of a recolonial New Zealand that
looked only to the United Kingdom, rather than to the wider world, and most
pertinently, its CER partner, Australia. ln the longer term it may well be that
further evolution of the institutional links between the two country' s judicial
branches may be appropriate.

4. Toe Law Lords are necessary for reasons relating to the Treaty
ofWaitangi

A. OORODUCl10N
It would
. . be condescending,
.. and inaccurate, to think in terms .of a·[Jcant
single Ma_o~
1 1 porUº
pos111on on abohtton ofthe Privy Council appeal; certainly a s1gn f (111-
of Maori society was opposed but there were also voices in favour of re ºwhº
· lik N '. · b n those
M_aon, e ~w Zealand soc1ety as a whole, were spl~t etwee tradiúonal
w1shed to retam an older conception of New Zealand soc1ety, and of 1 úon of
!t,
Maori society wi~in and those who wanted _to p~sh fo~ the e~;ing ~e
Ne~ ~~and soc!ety m general, and Maori soc1ety 1.n _particular;ori Afíai!S•
spht w1thin Maondom, John Tamihere, Associate Mm1ster of M
wrote in June, 2003 that:

43. Cox, n 3 above, at 233. Jlelatioos d

44 S d' · rasrnªº 1100
· s aP
· ee 1scuss1on in: Michael Kirby and Philip Joseph 'Trans· ic Jlela 995),
Towards 2000 and Beyond' · and John Farrar 'Closer Econ?OJJ eph(ed)(I
H . . , •bth1nºs
0
annorusaf.lon ofLaw Between Australia and New Zealand ,
n 3 above.
 Appealing to history: the New Zealand Supreme Court debate
221
. 'What is commo~ly hei~ to_be the opini~~ of 'Maori' is the opinion of an
ehte_ few, repr~sentmg an 1w1-~a~ed [trad1t1on~l tribal based] perspective
that 1s totally d1fferent to the opm1ons of the maJority of Maori who tive ·
our cities.' 4s ' m
Tamihere captured the nature of split well: traditionalist Maori leaders had
warmed to the Pri vy Council after it overtumed the Court of Appeal in Treaty
Tribes Coalition v Urban Maori Authorities (the Maori Fisheries case).'6 At
the heart of that case was a contest over a two views of Maori society: a
traditional one, put forward by the Treaty Tribes Coalition (representing
established tribes), and a modem one put forward by the Urban Maori
Authorities. Toe Court of Appeal had decided that the term 'iwi' ('the people
of tribes') included urban Maori without tribal affiliations for the purposes of
the Maori Fisheries Act 1989, under which Maori fishing quotas were being
allocated. The Treaty Tribes Coalition sought to restrict the definition of 'iwi'
to traditional tribes, which would have the effect of excluding urban Maori
from allocation of fishing quotas. Macrae notes of the case that: 'the traditional
dichotomy of Maori versus the Crown was not evident in [the] case' ... [and
that] while "traditional" Maori interests were upheld, this was at the expense
of urban Maori.' 47
The traditionalist Maori view, which was the more prominent, was put
forward in Parliament by the main opposition party (the National Party), and
the New Zealand First Party (also an opposition party). 48 The modernist view
was most clearly articulated in Parliament by John Tarnihere, Associate Minister
of Maori Affairs.49 To some extent National and New Zealand First were in
competition with each other to attract the support ofMaori opponents in order
to further their parties' positions in the polis.

B. 1llE 1llREE ARGUMEN1S MADE BY MAORI OPl'ONENTI>

First, it was said, the Privy Council was necessary to protect Maori interes~
under the Treaty of Waitangi against encroachment from the N~w Zealan_
government. Or as the JEC records: 'Maon. have fa1'th m Counc1d1
· the Privy Zeal
'
because it is independent, · ·1ar f a1"th m
and do not have a s1m1 · theNew an

45 , John Tarnihere 'Maori verdict should back home-grown coM urt' New z.ealand Herald,
.
28 June 2003. John Tamihere is a leading advocate for urban aon.
46. [1997] l NZLR513. thatwhilethePrivyCouncil
47· Macrae, n 3 above, at 970. lt should be noted ho~ev.~:d rocedural ground that ~e
overtumed the Court of Appeal, it did so ?nly on the hrru_ t~ address it on the mearung
Coun of Appeal had failed to give the parUes lhe opporturuty rning definition back to lhe
of the term 'iwi' . It referred the substantive question co~c~ce in Treaty issues. ANe~
NZeew Zea!and courts - acknowledging its lack of co:iri: deal with both the Court 0
aland b d s e rt would have been a .
- ase upreme ou b tantive quesuon. . h has always
A.
Jpeat' s procedural error and address th e su J Zealand first PartY (whic th l 996

~en_opposed to ending Privy C?unc~l

4:C
t:~
. It Was the National Party, s reliance on the ew f nn a govemment after e
1
:~:c~ure Bill 1996~::~ ::u~:~ty to
110 n which lead to it abandorung 1 . e . n of the National Urban
• Outside Parliament see the subrrussio
lheJEc.
 Legal Studies
222
,R viewing recent substantive cases concerning the Treat .
courts. e50 . Counc1·1 , Arahºia Macrae comy in both
eal and the Pnvy
oo rt of App
e
conclusion that:
'lt cannot be said that the [Court _of Appeal] is n?t impartial or that i1
1.
ac independence from .the eexecuuve.·1· Therefore, 1t cannot realiº s1cal!y
1 ksmaintained that the PriVY ounc1 1s necessary
• as .a guardian of Maon.
be h
interests against the government, or t e 1mpropnety of the resident
51
judiciary.'
The reliance placed by some Maori on a handful of favourable Privy Council
rulings from the late nineteenth and early twentieth centuries, in Macrae's view
denied 'one hundred years of constitutional and social development' _s2 '
Toe second reason put forward by Maori opponents to refonn was that the
Privy Council was necessary to ensure the enforcement and recognition ofthc
Trea!Y- The JEC recorded that one 'subrnitter expressed concem that if the Treaty
ofWaitangi was not incorporated fully into New Zealand law, the53 Supreme
Court judiciary could relegate Maori to second class citizenship' . Yet it is
lhe modem Court of Appeal which, initially enabled by increasingly frequent
references to the Treaty in statutes, has secured the constitutional status ofthe
Treaty in modem New Zea]and law. 54 Furthennore it is now clear that in relation
to substantive matters of Treaty jurisprudence the Privy Council has
considerable respect for the Court of Appeal. ln the Mao ri Fisheries case wbile,
as noted above,55 the Privy Council overtumed the Court of Appeal because,
in lhe Privy Council' s view the Court of Appeal had breached the rules of na~
31
justice, in relation to substantive questions under the Treaty Lord Goff s d:
'Their Lordships are very conscious of the important role played ~y lhe
Courts of New Zealand, and the Court of Appeal in particular, in re!auon to
Maori under the Treaty of Waitangi; and they fully recognise the 56 deplh of
knowledge and experience of the Court of Appeal in this area. '
The substantive question in that case, concerning the mean!ng of 'iw~
contemporary New Zealand was not one which the Privy Counc1I was preP
to address, preferring, as noted, to refer it back to the New Zealand _courtSdtal
. The final argument put forward for retention of the Privy Council wasfthe O
rep~esented an irnportant direct link to the sovereign as the decedent
11Mao 12 II
n ' 5 1·?'·11·a1 Treaty partner (Queen Victoria). However,' Queen E1· ªbeth i1
w remam
doe th'
Qu . .
eenmnghtofNewZealand endingappealstothe pnvY . councedUP
ili
s _no mg lega/ly to the nature of thai' relationship. The JEC sutnfD 0 10
1h e v1ew of a numbe r f Maon. .
subrmtters that: 'Maon. have a •
ng ht f access
O

S1. Toe
50. JEC re
Macrac j~ n 3 above; and Macrae, n 3 above, at 969.
O
S2. Mac • ve, at 971.
3
S3. Toe~~ abovc, at 970.
54• Macrae n3abo
eport, n 3 above' p 11 · bCCn
mexe
5 mrccentv~,
willing'· at 9 5, comments· 'The New Zealand Court of Appeal bas ·t'
tunes 7 . • • counc1 ·
• Trtaty Tribes e .. to recogruse and enforce Maori clairoS that the PnV)'
513 n 47
5
abovc. oal,t,on v Urban Maori Authorities ( 1997] 1 NZLR · SCC
· v Urban MaoriAuthorities [1997] 1 NZLR 513 ai 522•
56· Treaty Tribes Coai'ition

a j
 Appea .ing to history: the New Zealand Suprema Court debate 223
'
. through the Privy Council under Article 3 of the Treaty of
tbe _Sove_re:gnabolish appeals to the Privy Council would be prejudicial to
Wait~~~1•~s view was contradicted by the advice of the Crown Law Office,
Ma~~- ncluded that the Bill was 'neutral in relation to the Treaty and its
w~c.
pnnc1p~~s' ·is While Macrae says of•it: •'of ,59
any argument Maori could raise in
1
opposition .. . this is the east convmcmg.

s. The continued reliance on free appellate services, and possibly even

expanding New Zealand's use of the Privy Council, is appropriate in the
context of the modem relationship between New Zealand and the United
Kingdom
Toe final, and least attractive set of arguments for retaining the Privy Council
saw opponents of reform most crudely attempting to cling to the notion of a
mother-England/dependent-colony relationship between the United Kingdom
and New Zealand. There were two strands to this argument, neither of them
terribly attractive. First, opponents said, 'the cost of the Supreme Court will
fal_l upon the New Zealand taxpayer (while] the British taxpayer pays for the
Privy Council' .IJ;) Second, opponents went on, if the problem was that too few
cases goto the Privy Council (in its entire history it heard only eight criminal
~-~es)
1 then the answer is to broaden appeal rights,61 provide more funding for
. ~gants who want to take their case to London, expand its membership so that
1t include_s ~ore New Zealand judges, and even have it sit in New Zealand.
~erdposs1b1lity that the United Kingdom could afford to send even one Law
to New Zealand on a regular basis (given that one or often two are already
:able to sit_judicially because of public inquiry work, and another one may
Nengaged 1n sitting on the Hong Kong Court of Final Appeal) is slight; and
dew Zealand-based Privy Council, made up of predorninantly New Zealand
l~ ges, ~ould appear to be the very thing being resisted- a domestic Supreme
i:un. Fi~ally, opponen~s were clearly unawa_re of the argumen! beginnin~ to
K.iheard 1n the Umted Kingdom that it was to tlme to stop burdemng the Umted
K.ingdom' s most senior judges with the task of hearing cases from the United
. ngdom' s former colonies. Sir Thomas Legg QC, a former Permanent Secretary
in lhe Lord Chancellor' s Depanment, said recently that he had:
'Never fully bought the argument that we are somehow bound to provide
an
0
elegant court and very senior judges to determine cases for the benefit of
ther independent and self-goveming nations, just because they want us
to. The historical basis is now very ancient history indeed, and the judge-
power requirements of the Judicial Committee impinge seriously on those

S7. The JEC rcport, n 3 above, p 11.

S8. The advice of lhe Crown Law Office is includcd in lhe JEC rcport, n 3 above, p 71.
S9. Macrae, n 3 above, at 973.
60. The JEC rcport. n 3 above, P 13.
61. National Party minority rcport, in lhe_ l':'C rcport, n 3 above, p 57. See also lhe
submission of lhe New Zcaland Bar Assoc1at1on, n 34 above, para 8.
 .
1

t 1 11
1

l .,
il1 1
224 Legal Studies
'·

of Britain's highest court, which must be our main concern

would favour a polite declaration of independence,'62 · 1 PersonaUy

D. CONCLUDING REMARKS

1. Introduction
Despite all lhe obvious differences between lhe United Kingdom (a country f
close t? 60 million ~e~ple) and New Zea!and (with a population
approx1mately four m1lhon), the two countnes do have in common
:f
00
important constitutional fundamental. ln each country the Parliamen~
(unicameral in New Zealand, bicameral in the United Kingdom) is, at least in
legal theory, sovereign. While there may be laws of constitutional significance,
there are none that are not amenable or repealable by a simple parliamentary
63
majority. Unwritten norms and principies - principies that in other states
would likely be contained within specially protected instruments - underpin
their constitutional systems. This common flexibility ai lhe heart of lhe New
Zealand and United Kingdom constitutions means, I suggest, that there is lhe
potential for comparative lesson Iearning between lhe United Kingdom and
New Zealand. ln this final section I have two points to make concerning what
the United Kingdom may be able to Iearn from New Zealand about establishing
a new Supreme Court. I make these points on a tentative basis, setting them
out as suggestions for further investigation and debate as the United Kingdom
reform process unfolds.

2. Tbe arguments for and against reform in the United Kingdom will
have a similar 'style' to those in New Zealand
Toe debate 1n. New Zealand may be viewed as a contes! between c_ons titutional
. Iy
modemisers and constitutional traditionalists. Toe modernisers rehed relan:ey
heavily on arguments for reform based on abstract principie - ref~~• 'Jure
argued, was necessary not because lhere was an obvious catastrophic 31 but
(lhough lhere were some obvious weaknesses) in the existing sy 5!em, s an
because lhe existing system was incompatible with New Zealand's Sl~tus :ho
independent state. They were resisted by constitutional traditionah 5 l5, ore
sou ght to protect an older, estabhshed
. • · Furthermf tbe'
. of lhe const1tut10n.
v1ew
lhe constitutional traditionalists relied heavily on a pragmatic def:nce O JitY
status quo: lhe ~vy Council, lhey said, works well, nothin~ of hke
could be created 1n New Zealand, and reforrn itself would be nsky ao<l
~:ed
62. S. Tho , nce ai the
mas Lcgg QC 'Thc Supreme Court', a paperpresenled ai a coni~re and
Cambridge Centre for Public Law cntiúcd •Judicial Reform: Function, Appomrrnen~
Structure', 40ctobcr2003. . . ns
63. Altbough s 268 of thc ElcctoraJ Act 1993 (which reserves other sta1u1ory prov•~ :rtd
cg, conccmmg lhe holdmg of regular clcctions, slipulaling thal they can only be a 1 rs)
by •~thcr • 75% majority in Parliamcnt, ora 50% majority at an ordinary poll of eJeclO
can 1lself bc amcndcd by a 50% majority vote in Parliamcnt.
 . . h New Zealand Supreme Court debate 225
88
linQ to h1story · t e
APP .
.. .tt n nonns conceming the operal!on, and role,
. destab1hse unwn e . .
~ihe 1enual to
ª1:tt
final court of
1within the const1tut1on.
w Lords in favour of a United Kingdom Supreme
o 'J1Je split between t e :imilarities to the arguments ~etween modem!sers
,,_,,,.. and those not, ha~ N Zealand The United Kmgdom modem1sers
.,,...., . . 115 · t seen m ew · •
and uad111ona s S . and Walker) , while clearly not .ofthe v1ew
. ham Steyn av1 11e . that
(Lords Bmg ' be ' the Appellate and Judicial Comrruttees are m any
reform is necess~ f cau~:se their case for refonn on a need for the United
sense failing tttu/°n%odem understanding of the need for the separation of
l(ingd~II_' to a ehref o a the other branches. ln these Law Lords' submission the:
dle judicial branc rom .
'Functional separation of the judiciary at ali leveis from the leg1_slature
·• and lhe executive .. . [is] a cardinal feature of a modem, democrallc state
govemed by the rule of law ... [and it is] imp?rtant, as a matter of
constitutional principie, that this functional separat10n s~ould be reflected
in lhe major constitutional institutions of the state, of wh1ch the final court
of appeal is certainly one.' 64
While lhe six sceptics in the House of Lords - Lords Nicholls, Hoffmann,
Hope, Hutton, Millet and Rodger take the view that:
'On pragmatic grounds, the proposed change is unnecessary and will be
~armful. Toe present arrangements work well. ... The Law Lords presence
m the House is of benefit to the Law Lords to the House, and to others
including litigants. Appeals are heard in a ~nique, suitably prestigious,
~ett_in_g for this country' s court of final appeal. The "House of Lords" as a
Jud1c1al body is recognised by that name throughout the common law world .
.. · Toe Law Lords who do not support the proposed change consider these
real advantages need not be, and should not be, put in jeopardy.' 65

; ~efonn will destabilise unwritten nonns and conventions, necessitating

eir re-affirmation in statutory fonn
~y final point is that one ofthe fears implicit in the conservatives' opposition
0
. reforrn is well founded. While they may go too far in claiming that reform
Will ~e positively harmful, it is true that the very fact of reform will disturb
unwntten conventions conceming lhe independence of the judicial branch,

64• The I.aw Lords' response to the Govemment's consultation paperon Constitutiona/
refonn: a Supreme Courtfor the United Kingdom (2003) para 2, p 1. Cf the lengthier
arguments in favour of reform made by Lords Bingham and Steyn: Lord Bingham of
Cornhiu 'A New Supreme Cowt for lhe United Kingdom' l May 2001, University College
l..ondon; and Lord Steyn 'Toe case for a Supreme Court' (2002) 118 LQR 382. And
against reform: Lord Cooke ofThorndon 'Toe Law Lords: an endangered heritage' (2003)
119 LQR 49; and lhe cvidcnce of a number of former Lords of Appeal in Ordinary 10 th
Royal Commission on R:eform_of'!'e House ?~Lords. S~ gcncrally: Charles Barmer an~
Alexandcr Dcanc Offwrth therr w1gs!-Jud1c1al rn•olutron in modem Britain (London·
Policy Exchange, 2003). ·
6S. The Law Lords' response to the Govemment'sconsultation paperon C . .
reform: a Supre me Court for the United Kingdom (2003) para 2 onstrtutiona/
.p 1.
226 Legal Studies

lhe non-politicisation oflhejudiciary, and the constitutional balan be

the three branches of the state. Toe solution to this is to record tne tween
.
fonn constitutlonal . . 1es and practtces
pnnctp . wh.1c h h ad previously b statutory
wilh as matters of unwritten convention. ln New Zealand this has meen dea11
beginning of a move to establ 1s . h an a d v1sory
· commission on eant • d' lhe
.
66
appointments. While the Attomey-General initially resisted this i/beu teia!
· went throu~ h. P arr_1ament th at 11
clear as lhe B~ll · would no longer be' possible
came
for her, espec1ally as the IDlntSter m charge of refonn, to continue to hav
unfettered discretion over who to recommend to the Governor-Generat tn
appointment. Shnilarly_ in the United Kingdom,_wh~re equally, I suggest,~;
will not be poss1ble as 1s contemplated as an optton m the consultation paper
on a Supreme Court, for appointments to the Supreme Court to be solely a matter
for lhe Executive.67
Toe olher concem in New Zealand was that establishing a new Supreme
Court would destabilise: the existing balance between the three branches of
govemment; lhe independence of the judiciary; and respect for the Treaty of
Waitangi. The New Zealand solution to this was to record in the statute's
purpose clause matters which had previously been governed by unwritten
convention - for example, the commitment to importance of the sovereignty
of Parliament, and lhe ruleoflaw.68 Reform in lhe United Kingdom is also likely
to raise concems about matters currently dealt with by unwritten
understandings: the sovereignty of Parliament, the importance of judicial
independence, and the distinctiveness of the United Kingdom's three legal
systems.09 One answer to lhese concems would be, I suggest, to follow New
Zealand's example and insert a purpose clause into the United Kingdom
legislation establishing a Supreme Court. I end then with a possible p~rpose
clause (modelled on lhe New Zealand equivalent) for the statute estabhshing
lhe United Kingdom Supreme Court.

l'URFCISE

(!) Toe purpose of lhis Act is:

a. to establish lhe Supreme Court of lhe United Kingdom -
i. !º ~ecognise lhe importance of the functional _separation
Jud1c1al branch from lhe legislative and execut1ve branches,
º:!~

66_ See discussion at p 217 above.

67
• Dcpartmcnt for Constitutional Affairs Constitutional Refonn: a Supre me Courtff
the
Unu,d_K,ngdom CP 11/03 (July 2003) para 39, p 29, available ai www.dca.gov.u ·
68. See d1scumon at p 217 above. . d
69
• Of notchere is lhe fact that lhe speed wilh wltich refonn is taking place in lhe Vn•I~
Kingdom will most likcly make it necessary to use a Sewel motion to deal wilh th?
asri of Supreme Court rcfonn which touch on lhe Scollisb legal system (justice t,e,ng
; evo ~;1
matter); lhe laclr. of forcsigbt to allow for a proper debate of the issue in:~
colhn"Co
1o e arhamcnt " lamentablc, See lhe evidence of Lord Hope on 2 December 2 89
nslltullonal Affairs Co · • • . Q2
and Q300 ·1 bl mnuttee, m particular His Lordship's response to
• avw a e at www.parharncnt.lhe-stationary-office.co.uk.
 . to history: the New Zealand Supreme Court debate 227
Appeahng

..11 nable important legal matters, including matters arising from the
• ~evolution settlement to be dealt with by a single final court of
appeal; and
to provide for the court'. s jurisdiction and related n_iatters; and
b. to end the judicial funcllons of the Appellate Comm1ttee of the House
e. of Lords and the Judicial Committee of the Privy Council in relation
to the United Kingdom.
(2) Nolhing in this Act affects the United Kingdom' s continuing commitment
to:
a. lhe independence of the judicial branch;
b. lhe ru\e of \aw and respect for fundamental human rights;
e. lhe sovereignty of Parliament;
d. lhe distinct existence of separate legal systems within England and
Wa\es, Scotland, and Northem lreland; or
e. the enforcement of ob\igations arising from its membership in the
European Union.

Such c\ause wou\d, as in New Zealand, provide Parliament with the

o~porturuty to focus exp\icitly on the role of the Supreme Court in the United
Kingdom_Constitution, to reaffirm important constitutional principies which
m~y be d1sturbed by the reforro process, and \aunch the new Supreme Court
wuh a clear direction to its judges of what is expected of them.70

. . • 1h Judges • Council Response to the Consultation Papers on

70. Cf d1_scuss,oif, •;:,. 0 ~ lhe nccd to idcntify in lcgislation lhe respective roles of lhe
~o~•!•lurtonal R:ºovcmmcnt, paras 4(}-43, pp 14-15. Toe documcnt is availablc at
JUd1c1ary and 1hk/iJ~dicial/pdfs/jcrcsp.pdf.
www.dca.gov.u
 Constitutional innovation: the creation of a
Suprema Court for the United Kingdom;
domestic, comparativa and
international reflections
A specisl issue of

rt

s
•

li

Edkor: Derek Morgan Volume 24 lssues 1 and 2

LawScholl March 2004

CJ~~