David Farrar: The Attorney-General gets it in one

Attorney-General Chris Bishop had made a hugely important speech. He politely but firmly pushes back against the courts making law, rather than interpreting law. He notes:

So what does it mean to say that, of the three arms of government, Parliament is sovereign?

The answer I want to expand on, is that Parliamentary sovereignty means that significant public policy choices should be made by Parliament.

This is because – of the three arms of government – Parliament has by far the best claim to both a democratic mandate, and the necessary institutional expertise, to make public policy choices.

This position used to be uncontroversial and long-standing, but I think the time has come for a robust assertion of the traditional, orthodox view that Parliament is our country’s supreme law making body.

The lanyard and academic classes quite like the idea of enlightened people such as themselves making public policy choices, rather than Parliament. But that is not their mandate.

Even where issues are hotly contested, and a broad consensus is not forthcoming, Parliament’s democratic mandate means that everyone has had the opportunity to have a say, whether or not their view ultimately holds sway. Through the democratic process all voters are respected as equal, and therefore each voter is treated as a bearer of rights. If voters don’t like the choices made by Parliament, they can vote to change Parliament’s composition.

Parliament is supreme, because the voters are supreme.

There is a difference between adopting a reasonably-available rights-consistent interpretation and interpreting a statutory provision to advance a public policy choice that the legislature has not adopted.

We have seen this occur three times now. The Supreme Court just ignored the clear statute of the Three Strikes law, as they didn’t like it. They massively expanded the role of tikanga in the law from cases between Maori, to the entire legal system. They also said that the courts can have a role in setting climate change policy, rather than Parliament.

Parliament and the Government should have acted quicker in all these cases. The only way you will stop judicial power grabs, if if you stamp them out promptly and surely. I’d have a standing agenda items for Cabinet called “Recent Supreme Court decisions”, and if the Court has exceeded its mandate, Parliament should introduce a bull to reverse their decision within weeks.

Development of statute law is for Parliament, not for the courts. Changing social values and mores are reflected in the democratically elected legislature, not an unelected and by definition unrepresentative judiciary.

This should not be controversial. But I doubt it is taught in law schools anymore.

David Farrar runs Curia Market Research, a specialist opinion polling and research agency, and the popular Kiwiblog where this article was sourced. He previously worked in the Parliament for eight years, serving two National Party Prime Ministers and three Opposition Leaders