Smith Murray: Supreme Court Bill — Second Reading 
Smith Murray: Supreme Court Bill — Second Reading 
[Volume:612;Page:8913] 
MURRAY SMITH (United Future) 
: 
 The demise of the Privy Council is in my view inevitable. United Future saw the writing on the wall at the beginning of this year. It was reinforced by my visit to the Commonwealth Law Conference in April and in the papers that were presented there. That demise is coming about for four reasons. The first is the withdrawal from the Privy Council of most of the Commonwealth countries. The Caribbean is the latest one we have heard of and that represents 40 percent of the Privy Council’s current caseload. 
Secondly there is the pressure on Britain to abolish the House of Lord’s judicial division in order to comply with European requirements for separation of powers. That will take away the UK disciplinary cases—a further 20 percent of the council’s current workload. That will leave New Zealand cases at 20 percent with 20 percent coming from five other small Commonwealth nations. 
Thirdly there is pressure on the UK through Europe and the slow “Europeanisation” of UK law such that it is moving away from a strict adherence to Commonwealth loyalties to a position more loyal to European directions. 
Fourthly there is the issue of the resources within the Privy Council chambers in Downing Street. The facilities and the research material have not been improved and seem to be becoming more and more inadequate. 
This year things moved apace. By the middle of the year Britain announced moves to set up a Supreme Court and it is clear that that will happen sooner rather than later. Just recently senior civil servants have advocated that Commonwealth countries should be told to find other forums. Senior British judges will be sitting on the Supreme Court bench and there is strong commentary within Britain that they will be too busy for Privy Council duties. In a forum in England in just the last few days Sir Thomas Legge QC said that non-UK users of the Privy Council should be politely invited to consider alternative arrangements and that the UK should not be burdening its Supreme Court judges with Privy Council work. People such as him carry a lot of influence and although his position is not the position of the British Government it is an indicator of the way the thinking is going there. We will shortly be left with the second and third XI sitting on the Privy Council. 
A lot of the objectors to the bill said: “If it ain’t broke don’t fix it.” That call is wrong. If it is not broken now it shortly will be. I give it 5 to 10 years maximum but given the pace in England currently it could be less than 5 years and we will need to decide as a nation what is to replace the Privy Council. In general United Future believes that this bill does that adequately. 
However it is one thing for the Government to be doing the right thing. There is always a second issue and that is whether the people want it. This is a significant constitutional change and the Attorney-General admits that. It is imperative therefore that there is strong public support for it. It is also important that there is strong political support for it which there is not although I think it is rather hypocritical of National to oppose the bill when it has proposed this very thing in the past. There is more than a hint that National has done so solely because it is a Labour proposition. First-past-the-post politics is alive and well in the National Party. 
Fifty-four percent of the submissions opposed the bill and 40 percent were in favour. Of the oral submissions 76 percent were opposed and 23 percent were in favour. Key sector groups opposed to it were business the legal fraternity and Maori. So although the bill might be the right idea—perhaps premature but only slightly—the Government has failed to sell it and that comes down to marketing. The Government’s and the Attorney-General’s approach has killed it in the public’s eye. Simply put they have not taken the public with them. That has come about through a lack of trust in the Government and if there was one message that came out of the Taupo hui it was that Maori do not trust the Government. The fact that I keep getting emails saying there is no reason to abolish the right of appeal to the Privy Council shows that events in Britain have clearly not been adequately conveyed to the public. 
United Future members opposed the first reading of the bill. We did so because we considered that there had been a lack of public consultation. The public discussion documents put out by the Minister focused on what should replace the Privy Council not on whether it should be replaced. In fact until United Future successfully extended the select committee consideration of the bill to include the question of whether the right of appeal should be abolished that question had not been directly put to the general public. The Attorney-General’s blinkered approach meant that she did not even consult United Future before the bill was tabled. It was just expected that the numbers would be there. 
So what were the key objections that came through from the submitters? The first was the immediate appointment of the bench and there was a real suspicion that it would be politically biased. We tried to curb that by suggesting that following whatever consultation she wanted the Attorney-General would need to announce who would be on the first Supreme Court bench and that the announcement should happen before the bill went through. Alternatively as is explained in the commentary on the bill we suggested that the bill itself should effectively make that provision if the Attorney-General would not. 
The second objection was to the long-term relationship in terms of the appointment of the judiciary and United Future has been the party that has been pushing for a judicial appointments commission. We will be retabling the proposal I tabled at the select committee which is that the Judicial Matters Bill be widened to include consideration of a judicial appointments commission. 
There is a lack of confidence amongst the business community in our Court of Appeal bench as a result of some of the decisions it feels have been wrong. Whether or not that is correct it is nevertheless the perception within the business community and it is a strong reason for its wanting to continue with the Privy Council. To try to meet that objection we proposed that there should be overseas judges. Some of the business community indicated that they would support the proposal if whenever a case of commercial significance was to be heard two out of five of the judges were overseas judges who had specialised in commercial law. However there were still many who had gone past the point of agreeing even on that basis that the bill was the right way to go. 
In terms of overseas judges I was also personally concerned that there was no point making it mandatory to use overseas judges until we could get them and I can do no better than quote from the commentary on the bill: “The United Future member notes that the Attorney-General’s advice that no one could confirm the possibility that serving British Judges could be available infers that no one discounted the possibility either. Nor it seems was the possibility of recently retired Judges being available adequately explored by the Attorney-General. The member is disappointed that his request for direct consultation with the relevant overseas legal officers has not been met. The member feels this issue has not been properly explored and that the question of the availability of sitting Judges from comparable jurisdictions has not been adequately investigated.” 
The third area was the constitution. Maori in particular were concerned about the constitutional status of the treaty and felt that needed to be dealt with before other issues surrounding the constitution such as the court structure and the Supreme Court in particular were dealt with. 
If the select committee inquiry had been conducted first raising the question of whether we should abolish the right of appeal to the Privy Council in favour of a Supreme Court and that model had been outlined maybe we could have taken the public with us. Foisting a Supreme Court Bill on the public without adequate consultation and on the basis that the thing would be simply put through put the backs of the public and the business community up right from the start. The result has been a distinct lack of public confidence. A vote of 63 to 57 is inadequate for a proposal like this and it is wrong for the Government to go ahead on the basis of those numbers. In fact I would say that it is foolish for the Government to go ahead with it. There is no political endorsement; there is no public endorsement and United Future therefore believes that this is a reprehensible step on the Government’s part. 
United Future has been slow to get to that position. The Opposition opposes; that is its job. It has no real effect; it simply opposes. The Greens eventually managed to do a trade-off and I suspect that the Land Transport Management Bill was the price that was paid. United Future members listened. We listened first. We knew we were in a position of influence and in the end we consulted we listened we heeded and at the end of the day—given the public’s views about the matter—we had no alternative but to oppose. Because of the moves in Britain I suspect that within 5 years we will be back to address the issue again and I hope the Government of the day manages the process somewhat better than it has this time.