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Top KC slams legal profession review as ‘deeply flawed’, urges govt to reject recommendations

19 May 2023

| Author: Gary Judd KC

by Gary Judd KC 

Dear Misha

This letter responds to your email of 27 April which includes, “To enable me to make an informed response [to the recommendations made by the Independent Review], please provide your responses to the recommendations using this survey, by 5 May.”

I have fundamental objections to the recommendations, which cannot be conveyed by responses to the survey questions. For example, “5. Recommendation 1: Establish a new independent regulator to regulate lawyers in Aotearoa New Zealand,” and “6. Recommendation 2a: Ensure the independence and effectiveness of the new regulator by institutional arrangements that include establishing an independent statutory body, which is not a Crown Entity and not subject to direction from ministers.”

My answer to 5 would be “do not accept”. Yet, question 6 requires an answer presupposing at least some level of acceptance of question 5, as do all the other questions hanging off question 5. There are similar problems with the other sets of questions. Overall, the questionnaire and its explanatory comments seem designed to elicit the responses desired by the proponents of the recommendations.

My objections are concerned in one way or another with failure to ensure that recommendations are in alignment with lawyers’ fundamental obligation to uphold the rule of law. To my mind this is a fundamental defect in the panel’s approach.

The interest of the public requires the rule of law to be upheld

On pages 7-8, the panel indicates the rationale for occupational regulation is to protect consumers and the public and that the current model does not adequately protect and promote the interests of consumers. It is stated that, “The Law Society’s responsibility to promote the interests of the profession conflicts squarely with its duty to regulate in the interests of the public.”

Whilst this may be so, it ignores the society’s responsibility, its fundamental obligation by reason of its representation of lawyers, to uphold the rule of law and to promote the upholding of the rule of law. There is nothing more important for lawyers vis-à-vis the interests of the public than the upholding of the rule of law because of lawyers’ unique connection with the law, and the rule of law’s position as one of the twin principles of the New Zealand constitution.

The interests of consumers, properly understood, reduces to the interests of each individual who engages with a lawyer. The public interest in the upholding of the rule of law is the interest of each and every member of the community. It follows that the report and recommendations should have been predicated upon the upholding of the rule of law as the fundamental public interest to be protected and promoted.

No enunciation of requirements of rule of law

Although the report refers to the rule of law 58 times, the only attempt to state what it requires is a reference by Professor Jacinta Ruru in her minority commentary (report, p 106) where she says, “The rule of law is alive to the unique circumstances of Aotearoa New Zealand. It requires that all people are bound to follow the law.”

That is not what the rule of law is about. It is the rule of law, not rule by law. Dictators and other despots past and present have used law as a means of subjugating the people and securing power and control over them. The idea inherent in Ruru’s description is that any law may be passed and if it is, the rule of law “requires all people are bound to” follow it.

It is indeed correct that if Parliament passes a law, all people are bound to follow it. This is not the result of the rule of law; it is because the government has a monopoly on coercive power and may demand compliance with the law on pain of penalty. This is so whether the law conforms with the rule of law, or not. Put around the other way, a law may be non-compliant with the rule of law, but the people may be forced to comply with it anyway.

By way of example, in 1705 the colony of Virginia passed a law defining all blacks, mulattos and Native Americans, all non- Christian persons brought into the colonies as servants (even should they later convert to Christianity) to be slaves and went on to state that all slaves “shall be held to be real estate”. It was propounding that slaves were property who might be owned like real estate. The people of Virginia were bound by that law, but as it denied political equality to the people defined as slaves, it was a law which contravened the rule of law.

Public interest demands lawyers’ independence

Only the government and its agencies may confer and exercise public power, and the rule of law is primarily concerned with keeping the government under control, ensuring that it is limited by law in terms of the ability of the people of the community peacefully to terminate its authority to rule and the necessity for the laws it makes to conform with certain minimum standards. The rule of law is a fundamental requirement of civil society, a substantive as well as a procedural concept, and “a norm of institutional morality for the guidance of public action”. It exists to protect the people, including to provide moral and political restraint on government.

Lawyers play an essential part in providing that moral and political restraint by speaking up when they see the rule is not being adhered to, and where the opportunity permits, by advocacy in the courts in support of the rule of law. To fulfil this role, lawyers must be independent and be able to maintain their independence.

The proposal for an independent regulator in Recommendation 1 is in direct conflict with that necessity. It is one thing for members of the legal profession to say: if you wish to be a member of this profession, you must abide by the rules the profession has set for membership. It is quite a different thing to give the power to make the rules to persons or bodies outside the profession.

Proposals create conflict of interests

Even worse, Recommendation 2b, in purporting to “ensure the independence and effectiveness of the new regulator”, proposes to empower the minister to appoint the regulator’s governance board. The minister and the minister’s colleagues are the very people whom lawyers should be seeking to restrain from contravening the rule of law. Yet, they will be empowered to undermine lawyers’ ability to do that through influence on the regulatory function.

The conflict of interest is palpable. Proposals to create such a power, to invite the government to legislate for such a power, are a shameful betrayal of both lawyers and the public interest. In an attempt to palliate the obvious inappropriateness of such a structure, the recommendations propose that the minister make the appointments “following advice from a nominations panel comprising a mix of consumer representatives, governance experts and members of the legal profession”. It is almost unbelievable that it might be thought that provision for advice to be given might ensure independence of the new regulator. The minister is not required to accept advice.

The idea of the minister having any involvement at all in the regulation of the profession could not be countenanced by anyone who understood the importance of the legal profession’s involvement in the upholding of the rule of law. It is no answer to say that the minister is only appointing the board. Whilst it is theoretically possible for a minister to be completely indifferent to the likelihood of appointees reflecting the minister’s views about the restrictions which should be imposed on lawyers, that is not political reality. And anyway, the mere possibility of the minister being able to appoint people who will do what the government desires is enough to outlaw government involvement.

NZLS must demonstrate that rule of law is valued

Having explained why the proposed structure is not reconcilable with lawyers’ role in upholding the rule of law, I now set out why the report and recommendations themselves do not uphold the rule of law.

I note the panel’s thinking was “neatly captured” in MBIE’s submission (page 81). That submission, as quoted, completely ignores the far more important public interest in maintaining the rule of law and the implications that may have for the establishment and composition of a new regulator. The credibility of the report and recommendations are undermined by its failure to reconcile its recommendations with, and ground them on, the rule of law. The importance of this failure cannot be overemphasised. A few years ago, then Chief Justice, Dame Sian Elias said:

The rule of law can be imperceptibly eroded unthinkingly if it is not valued by our society…. The challenges for judging and for the rule of law in New Zealand in the 21st century are to ensure that access to independent courts and the rule of law continue to be valued as constitutional fundamentals by the community. That requires understanding of our constitutional and legal history. This is a year of anniversaries of importance to law. It is 175 years since the signing of the Treaty of Waitangi, by which constitutional government was established and the enacted and common law of England, arrived on these shores so far as appropriate to the circumstances of New Zealand (an important qualification). With the treaty, Magna Carta, 800 years old entered New Zealand law. These are points of reference we need to talk more about. It is not fanciful to see in Magna Carta ideas central to the rule of law and which have influenced our constitutional history ever since. The 800th anniversary of Magna Carta may be a good time to take stock. Magna Carta confronted the arbitrary power of the King. Over the following centuries the ideas it launched brought the King under the law, as Bracton and Coke had insisted he was. The King, they said was made by the law. And, as James I had the wit to see, the implication of being made by the law was that the King was subject to the law.

The report and recommendations do not just “imperceptibly” erode the rule of law; the erosion is perceptible and palpable. No regard has been paid to “our constitutional and legal history”. The report does not recognise that the treaty brought the rule of law to New Zealand. Not recognising that critical fact, the panel does not explore the rule’s implications for the panel’s work. The frequent references to the rule of law do no more than pay lip service to it, without actually seeking to understand its requirements and its relevance to the work the panel was doing. The New Zealand Law Society more than any other nongovernmental institution should be showing that the rule of law is valued by our society.

Fundamentals of the rule of law

The rule of law is generally regarded as having originated with Aristotle. Its most important points are captured in his Politics. Aristotle said:

At this place in the discussion there impends the inquiry respecting the king who acts solely according to his own will he has now to be considered. The so-called limited monarchy, or kingship according to law, as I have already remarked, is not a distinct form of government, for under all governments, as, for example, in a democracy or aristocracy, there may be a general holding office for life, and one person is often made supreme over the administration of a state….

Now, absolute monarchy, or the arbitrary rule of a sovereign over an the citizens, in a city which consists of equals, is thought by some to be quite contrary to nature; it is argued that those who are by nature equals must have the same natural right and worth, and that for unequals to have an equal share, or for equals to have an uneven share, in the offices of state, is as bad as for different bodily constitutions to have the same food and clothing. Wherefore it is thought to be just that among equals everyone be ruled as well as rule, and therefore that an should have their turn. We thus arrive at law; for an order of succession implies law. And the rule of the law, it is argued, is preferable to that of any individual. On the same principle, even if it be better for certain individuals to govern, they should be made only guardians and ministers of the law. On the same principle, even if it be better for certain individuals to govern, they should be made only guardians and ministers of the law. Aristotle: The Complete Works (p 2499). Feedbooks. Kindle edition, translation by Benjamin Jowett The emphasised sentence is frequently quoted by writers on the rule of law. When it is taken in context, Aristotle’s full meaning can be seen. Individual equality gives rise to the rule of law; in a community of equals, every citizen should have the opportunity to rule and be ruled in turn, which requires succession according to law.

“[A]nd should have their turn,” reflected Greek civilisation of Aristotle’s time where the population, measuring only tens of thousands, had embodied democracy in a form embracing universal entitlement to involvement in the affairs of the city state. Democracy, when resurrected many centuries later, took the form of representative democracy, catering for states with populations numbering in the millions and tens of millions.

Our concern is not with democracy as such but with the rule of law, although in Aristotle’s conception they go hand-in-hand. The rule of law is preferable to the rule of any individual, Aristotle said. This means the law is a more just and impartial way of regulating society than relying on the arbitrary decisions of a single individual or group of people. It reflects Aristotle’s belief that a just society is one where power is distributed equally and is regulated by a set of fair and impartial laws. From Aristotle, we can take these ingredients of the rule of law: The rule of law is grounded in the equality of individuals as members of the community. It requires that society be regulated not by individuals or groups of individuals but by fair and impartial laws which reflect the principle that no one has an entitlement to exercise power over another. Of necessity, some one or more must be selected to exercise authority but those allowed to govern do so only as guardians and ministers of the law.

New Zealand’s rule-of-law heritage came to us from England through the treaty, as Dame Sian noted. Magna Carta was seminal, but it and other attempts to bring the King under the control of the people were short-lived, until the Glorious Revolution of 1688-1689, so-called because James II was deposed and the monarchy made subservient to Parliament, it is said without a drop of blood being spilled (hence the revolution was glorious). The principle of rule by the people’s chosen representatives replaced rule by an individual whose entitlement to rule derived from his ancestry. Writing at that time, in Book II of his Two Treatises of Government, John Locke produced the philosophical justification for rejecting monarchical rule and substituting the community’s ability to authorise some of their members to exercise governmental authority.

Locke built upon the foundations laid by Aristotle, relying on “the state all men are naturally in … a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man…. [And] A state also of equality wherein all the power and jurisdiction is reciprocal, no one having more than another”. The “bounds of the law of nature” which limit the state of perfect freedom require respect for the freedom of others. The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions….

Later in Book II, he developed principles of politics grounded on freedom and equality of members of the community who would give up some of their rights by submitting to the determinations of the majority (Chapters VII and VIII). As he put it (§87):

And thus all private judgment of every particular member being excluded, the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules ….” These principles have been developed without changing them. In Locke’s day, “man” or “men” meant that literally, with rules even as to which men could qualify as men. Women were excluded. Slaves were excluded. The conception today is that all people are naturally free and equal.

With the advances in knowledge now available, another way of putting it would be that genes and the DNA they contain do not confer special powers on some to rule over others. The idea that they do is pernicious. Political equality is the basis for the rule of law’s requirements that the law must rule and do so by rules which are indifferent, the same for all, with the right to impose such rules belonging to the community through the representatives it chooses and replaces according to settled constitutional law.

Special treatment based on ethnicity incompatible with rule of law

The terms of reference invited the panel to examine: “the role of Te Tiriti o Waitangi and biculturalism in the statutory framework, and in organisational and governance arrangements,” with the purpose of promoting “a commitment to honouring Te Tiriti o Waitangi and the bicultural foundations of Aotearoa New Zealand, including Te Ao Māori concepts” (Report, 30-31).

The panel could have commenced its consideration of the treaty by noting that it brought the rule of law to New Zealand. It could have observed the rule of law’s requirements for equal treatment. Having acknowledged that, the report could have noted further that “honouring” the treaty requires honouring the rule of law, so that the panel could not propose arrangements not predicated upon the natural equality of all members of the community, and the principle that no member of the community is entitled by reason of birth and ancestry to any special treatment under the law.

Instead, the panel’s report and recommendations advocate a special place for Māori in the organisational and governance arrangements for the profession. That is incompatible with the rule of law. The treaty does not justify departure from the rule of law. The very idea embodies a contradiction and is absurd. It would be ridiculous to claim that the “solemn compact” which brought the rule of law to these shores also required rejection of the equality principle lying at the heart of the rule.

Conclusion

The report and recommendations are deeply flawed. The recommendations do not align with lawyers’ fundamental obligation to uphold the rule of law. They do not align with New Zealand’s constitutional commitment to the rule of law. If adopted, they would compromise lawyers’ ability to remain independent and therefore their ability to uphold the rule of law.

If the equality principle is rejected, the rule of law is rejected. By rejecting the equality principle, the report rejects the rule of law. By doing so, it fails to comply with lawyers’ fundamental obligation. The failure is so critical that the report and recommendations should be rejected in their entirety and a fresh start made, this time with terms of reference which put the rule of law at the forefront. ■

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