Warren Pyke is, by all accounts, a serious practitioner. Thirty-five years acting for the underprivileged, the vulnerable, the mentally ill, the villainous and a great many “ordinary folk” is real civil-liberties work. His reply in these pages, “Balance needed in criticisms of Lord Cooke and the Supreme Court,” takes issue with my June essay, “Lord Cooke's indictment.” Pyke is right that my column did not survey the whole output of the Supreme Court. It did not attempt to. Most of the court’s judgments doubtless are orthodox and well-reasoned, and nothing I wrote was meant to suggest otherwise. On that much, Pyke and I agree. The complaint was never with the body of the court’s work. It was with an increasing number of radical decisions. 

Pyke also accepts that some of the decisions I criticised are doctrinally troubling, that issues of comity arise, and that some of my critiques are sound. But his reply then criticises an argument my article did not make. 

The argument I did not make 

My essay was about the relationship between courts and Parliament. Pyke’s reply is, almost entirely, about the relationship between courts and the executive. Those are two different relationships, and his reply focuses on the one the article was not about. 

Pyke’s examples are executive examples – every one of them. He recalls a judge who turned away his first Bill of Rights case until Lord Cooke’s Court of Appeal sorted out the remedy. He recalls judges who refused relief to the victims of investment fraud, and judges who, in his account, deferred too readily to the executive during the pandemic. He cites Liversidge v Anderson [1942] AC 206 and Korematsu v United States 323 US 214 (1944), where the majorities deferred to the executive’s claims of wartime necessity and let people be detained and interned without remedy. He cites R (Miller) v The Prime Minister [2019] UKSC 41, where the United Kingdom Supreme Court held a prorogation unlawful. 

Each of these is a case about whether the courts will hold executive power to account. My column had nothing to say about that question, because the column was about a different one. 

The charge in the June column was methodological and narrow. Ellis v R (Continuance) [2022] NZSC 114 and Fitzgerald v R [2021] NZSC 131 were the exhibits. The complaint was not that the courts protect too much against the executive. It was that they have claimed authority to measure Parliament against a standard the courts themselves supply. Pyke defends Lord Cooke at his most modest. The column was about Cooke at his most ambitious. The two pass each other without meeting. 

The cautious Cooke is real, and does not answer the case 

Pyke can point to careful passages in Cooke, and he is right that they exist. The genuinely cautious Cooke appears in “Fundamentals,” where Cooke confined the remedy to declaration and resignation and left Parliament the final word. That Cooke is not a figure I dispute. He is a figure I conceded. 

But the cautious Cooke does not answer the case, because the case was never built on him. It was built on the Cooke of the Taylor dictum, in Taylor v New Zealand Poultry Board [1984] 1 NZLR 394, who held that “some common law rights presumably lie so deep that even Parliament could not override them.” It was built on the Cooke of “The Myth of Sovereignty,” who wrote that parliamentary sovereignty “does not survive in-depth analysis.” Pyke defends the restrained Cooke and leaves the unrestrained Cooke untouched. The trajectory across Cooke’s writing runs from the declaratory modesty of “Fundamentals” in 1988 to the flat assertion in 2005 that the doctrine does not survive scrutiny. That trajectory is what the column documented, and it is the part of Cooke that Pyke’s reply leaves alone. 

Pyke offers history in Cooke’s defence. He revisits Coke’s note in Dr Bonham’s Case (1610) 8 Co Rep 113b, and reminds us that parliamentary sovereignty is itself a product of a particular and turbulent constitutional history. He is right that it is. But the historical contingency of parliamentary sovereignty is not an argument for replacing it with judicial rule. Whatever Coke’s remarks were doing in 1610, in the shadow of a king who would prorogue Parliament for eleven years, they were not authorising a modern unelected judiciary to define the limits of an elected legislature. The history cuts both ways. If anything, it cuts against the side Pyke wants it to serve, because the settlement that emerged from that turbulence located sovereignty in Parliament, not the courts. 

Atkin dissented from inside the statute 

Pyke reaches for Lord Atkin, and he is right to admire him. Atkin’s dissent in Liversidge is one of the great judicial performances in the common law, and Pyke is correct that we should hope for judges with his courage in the next crisis. Atkin’s courage came from a particular place. He held that the words “reasonable cause to believe” imposed an objective standard, one the courts could and should assess. He took Parliament at its word and insisted the executive be held to it. His restraint and his courage came from the same place: from inside the statute Parliament had enacted. 

That is the orthodox judicial function, and the column accepts it without reservation. Holding the executive within the law Parliament has made is the core of the rule of law. It is the very thing Atkin did. 

The column’s concern was the opposite movement. Not a court holding the executive to Parliament’s law, but a court holding Parliament to the court’s standard. Judicial vigour against the executive is the rule of law. Judicial supremacy over Parliament is something else. The first does not entail the second, and Atkin is the proof, because everything that made him admirable he did from within the statute, not from above it. 

The point Pyke did not reach 

In the same volume of the New Zealand Journal of Public and International Law as Cooke’s “The Myth of Sovereignty,” Jeffrey Goldsworthy answered Cooke’s deep-rights thesis directly. He identified its circularity with precision: the courts are said to be obligated to obey Parliament because it is sovereign, but free to release themselves from the obligation because its sovereignty is their creation and subject to their control. On that account, Goldsworthy observed, any obligation would be illusory. 

That is the structural objection at the centre of the June column, and Pyke’s reply does not engage it. The reply defends Cooke at his most modest, invokes thirty-five years of practitioner experience, and gestures at the long history of the constitution. It does not address the circularity, and Pyke does not offer an answer to it. A court that releases itself from obedience to Parliament because Parliament has crossed a line the court itself drew is not protecting the constitution. It is asserting the authority to define it. The objection holds whichever way the claim is put – as a statement of what our law is or of what it ought to be – and it is the objection the column was built around. 

Criticism is not the threat 

Pyke worries that criticism of this kind risks undermining the court. I worry about the opposite. Robust criticism of the court’s legal method is not a threat to the institution. It is one of the ways a constitutional democracy keeps the separation of powers intact. The court is best served not by protection from scrutiny but by judges who recognise the limits of their constitutional role, and by lawyers willing to debate those limits openly. 

The June column was not written to undermine the court. It was written because parliamentary sovereignty and the democratic legitimacy of the law matter. Cooke’s methodology had serious critics, Goldsworthy among them, and none of them cut through, because the reverence was always louder than the argument. Pyke’s reply defends the cautious Cooke. It is the other one whose method the Supreme Court is using to undermine the rule of law. 

 To read the article on the LawNews website, click here.