Has the Supreme Court lost its way?

Roger Partridge
Insights Newsletter
23 February, 2024

With age comes wisdom – or so it is said. Yet exceptions abound. A notable reflection from leading lawyer Jack Hodder on the Supreme Court’s 20th anniversary suggests the Court is a case in point.

Hodder, a barrister and senior King’s Counsel, was speaking at last week’s Legal Research Foundation conference to commemorate the Court’s anniversary.

His paper, One Advocate’s Opinions – The Least “Dangerous Branch”? Predictability and Unease, was couched in the politest terms. But it delivered a withering critique of a court with fundamental misconceptions of its role gravely exceeding its bounds.

The Supreme Court derives its authority from an Act of Parliament, the Supreme Court Act 2003. This means Parliament is ‘sovereign’ and sits above the Court.  

It might be expected that one of the Court’s tasks would be to give full and fair effect to laws passed by Parliament. And certainly, that is the orthodox view.

But as Hodder points out, the Supreme Court has increasingly favoured a more activist approach. Sometimes called “the principle of legality”, this involves the courts interpreting their way around the words used by Parliament if they believe a statute conflicts with what the Court perceives to be ‘fundamental rights.’

It doesn’t take much wisdom to realise this approach is a slippery slope. And when successive court decisions on highly political issues have gone against the apparent wishes of Parliament, this, in Hodder’s words, “demonstrates inconsistency with wider public assumptions about just who does (and should) make the law.”

But Hodder’s paper reveals an even bigger concern. The Supreme Court now considers it is the Court’s role to divine changing societal values and then use them to ‘develop’ the common law. (For example, in the Ellis case, by deciding the time had come for the courts somehow to “weave” tikanga Māori into every aspect of the law.)

Yet, the Supreme Court Act does not refer to ‘development’ of the law. Rather, it expressly refers to the ‘rule of law.’

Two critical requirements of the rule of law are the law’s accessibility and predictability. The idea of 'developing’ the law to reflect the court’s view of changing societal values torpedoes both requirements.

More troublingly, the court is ill-equipped to discern societal values. In practice, the words are just code for the values of the judges.

Inevitably, this politicises the judiciary. Yet the courts lack the democratic legitimacy or accountability needed for political decision-making.

Hodder’s paper ends by predicting a time of “unprecedentedly sharp political debate” about the role of the Court.

Sadly, that would be wise.

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