A jurist’s view on the struggle between Parliament and the courts.
The state of democracy in the West remains a hot topic. Undoubtedly, the election of President Donald Trump in the United States and rising support for conservative nationalist parties in Europe have upset many.
But the malaise goes much deeper. The other end of the political spectrum also rallies around causes that undermine the liberal democratic tradition.
Accusations of authoritarian tendencies resemble a mirror game, with both sides being guilty of each other’s actions. Publishers have responded with volumes on everything from the loss of trust and tolerance to polarisation and outright rejection.
Even the judicial system is under attack. The Chief Justice, Dame Helen Winkelmann, raised the alarm against critics. Some supported her, implying these were personal attacks.
Retired District Court Judge David Harvey.
Retired Judge David Harvey has brought legal commentary and dispute to the wider public through his columns and blogs. He defends the rights of critics who oppose the judiciary’s introduction of elements such as tikanga into the law.
“Criticism of a decision is quite a distance from personal criticism of a judge. It is perfectly legitimate for a judicial decision to be critiqued,” Harvey wrote.
To clarify, he names those critics, who were not identified in one article on personal attacks. They will be familiar to NBR subscribers. Roger Partridge, chairman and co-founder of the New Zealand Initiative; Auckland lawyer Gary Judd KC; and Auckland barrister Warren Pyke.
These debates are likely to be more common. Harvey has touched a nerve with his views that rulings from the bench, compared with earlier decades, are less in touch with public opinion.
The term “judicial activism” is used to describe how the courts, once upholders of liberal establishment values, have evolved into enforcers of concepts such as “social justice” and “human rights”. In other words, majoritarian democracies were being overruled by unelected graduates of law schools that taught radical ideas on the environment, identity politics, and human rights.
When former Otago University law professor James Allan, a Canadian, first aired these concerns in Democracy in Decline (2014), he was considered a fringe conservative. Now, they are a core belief in efforts to redefine democratic principles as those made in Parliament, not in the courts.
Sir Geoffrey Palmer and Sir Kenneth Keith.
Two leading jurists, Sir Geoffrey Palmer and Sir Kenneth Keith, both had books published this year espousing what Allan, now at the University of Queensland, would consider a constitutional coup to overthrow parliamentary sovereignty.
The pushback on the “judicialisation of politics” has been expressed at the local level by an Otago graduate, Natasha Hamilton-Hart, who is director of the NZ Asia Institute at the University of Auckland. She says it’s been a 30-year mission to bring back parliamentary control and accountability to tribunals, courts and quasi-judicial panels of experts.
One clear voice on these issues is Lord Jonathan Sumption, a former Justice of the Supreme Court of the United Kingdom and a non-permanent judge of the Hong Kong Court of Final Appeal, from which he resigned last year.
In his pre-legal career, Sumption was a medieval historian (his multi-volume history of the 100 Years’ War is still in progress after starting in 1990). In the 1970s, before joining the Supreme Court, he was a founder with Margaret Thatcher of the Centre for Policy Studies, the think tank that propounded the neoliberalism that once dominated Western politics.
His latest book, The Challenges of Democracy: And the Rule of Law, is a collection of lectures. Its remarkable feature, and one that explodes the myth of New Zealand’s exceptionality, is that it could easily be just about this country.
The insights remove much of the ‘noise’ about political discourse, and instead focus on how a democracy functions, and ways to protect it. The threats are real enough. The Economist Intelligence Unit’s Democracy Index is at its lowest in decades.
One reason is the appeal of authoritarianism, which is reflected in what Sumption calls the moral absolutism of the “new Roundheads” in the universities, public service and the media.
He then addresses the causes of disillusionment with democracy. One is the role of representation, which is less about the quality of politicians than that they become part of a professional class. They then become less truly representative of their electors.
“Success in government requires high levels of intelligence, judgment and application. These qualities are uncommon, which means that democracies are in reality removable aristocracies of knowledge.” This elitism is never popular and is a scourge of democratic politics.
A second problem is the unrealistically high expectations of voters. Increasingly, they expect the state to solve every problem. While it can do many more things than in the past, it can’t do everything.
“Governments can create the conditions for prosperity and remove artificial barriers to prosperity, but they cannot create prosperity.” Worse, politicians are expected to promise the undeliverable and are then damned for failing to deliver it.
Lord Jonathan Sumption.
“The result is to undermine the trust in institutions that is indispensable in any state not founded on mere force,” Sumption continues. In the UK, this applies to the National Health Service, the housing shortage and controlling crime. Ditto for New Zealand.
A third reason for the declining appeal of democracies is their inability to tackle major problems, precisely because they are democracies. Here, Sumption cites perennially high house prices due to voters favouring planning restrictions and environmental regulation.
Democracies also face the inability to finance welfare payments such as pensions when populations are ageing and the proportion of taxpayers to pay for them is decreasing. “Any solution to the problem will be electorally unpopular, especially among older voters who are assiduous voters …”
Climate change is yet another insolvable problem. “Dealing with climate change will almost certainly involve reducing consumption, which will be hard to sell in a democracy.” Sumption then adds: “The electoral kickback has already begun.”
None of this is news to New Zealanders; nor are other issues such as student loan repayments, immigration restrictions, racial tensions, transgender rights, or foreign affairs.
“Democracy has a natural tendency to create interest groups for whom the preservation of their current advantages or the acquisition of new ones are the dominant factors in their political choices.”
The main threats to democracy are economic insecurity, fear and intolerance.
Sumption rejects inequality as inhibiting economic progress. In his think-tank years, Sumption co-authored Equality (1979) with Thatcher’s economic minister, Sir Keith Joseph, and hasn’t changed his mind that “tax the rich” policies reduce capitalism’s growth dynamics and therefore limit income-generation.
While extremes can be socially disruptive, they are more likely when economic growth falters.
Fear arises when people think an authoritarian regime offers more security. Sumption, as an appeal court judge in Hong Kong, witnessed how easily democratic norms can be undermined without criminal or illegal conduct.
He cites Venezuela and Hungary as other examples where determined groups have harassed potential opponents, seized control of the media, exploited constitutional gaps, and run roughshod over political convention.
Sumption also suggests complacency and risk-aversion are underlying contributors to fear. Demands that the state protects against all risks inherent in life are more likely to encourage despotic power.
“If we hold governments responsible for everything that goes wrong, they will take away our autonomy so that nothing can go wrong.” Sumption provides insights on the handling of the Covid-19 pandemic, elements of which are still being felt today.
Alexis de Tocqueville warned against too much state power.
He cites the warning of French political scientist Alexis de Tocqueville from two centuries ago of allowing security as the price of coercive state: “Such a power … stupefies a people until each nation is reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.”
Finally, Sumption discusses intolerance, or polarisation. He calls out deliberate campaigns of suppression against politically unfashionable or ‘incorrect’ opinions, attempts to impose a new vocabulary that favours the campaigners, and generally the “narrowing of our intellectual world”.
This dive into the cultural wars reminds us why the lawyer Philip Crump chose religious martyr Thomas Cranmer as a pseudonym before his identity was outed after a series of columns that eviscerated the Labour Government’s Three Waters.
Direct action, to Sumption, is an invitation to authoritarian government, because it implicitly rejects the diversity of opinion. “Those who engage in direct action instinctively feel … the end justifies the means, but they rarely confront the implications of their acts.”
The essence of democracy is not consensus, but a common respect for a way to resolve differences. “The task of a political community is to accommodate them so that we can live together in peace without systematic coercion.”
This kind of language, which permeates all the lectures, is a refreshing alternative to the many suggestions of replacing the existing system. Although Aristotle warned that political classes endangered democracy, and many like a system that gets things done, Sumption comes down on the side of leaving decisions to those engaged in compromise and mediation.
Even so, his conclusion is pessimistic. He expects the democracy that has existed over the past 200 years will eventually succumb to the human instincts for security, the decline of political tolerance and the rise of moral absolutism.
The Challenges of Democracy: And the Rule of Law, by Jonathan Sumption (Profile Books)
Nevil Gibson is a former editor-at-large for NBR. He has contributed film and book reviews to various publications.
This is supplied content and not commissioned or paid for by NBR.
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