Maxim Institute - real issues - No. 256

Maxim Institute - real issues - No. 256 7 June 2007 www.maxim.org.nz

Judicial independence in jeopardy?
A common place?

The prayer of our forefathers IN THE NEWS Have your say on the Police Act Review Taking a look at globalisation

JUDICIAL INDEPENDENCE IN JEOPARDY?

The Criminal Justice Reform Bill has been given a thumbs-up by a Select Committee majority and will now proceed to a second reading. Among other things, the Bill proposes a new Sentencing Council to devise guidelines for judges when sentencing offenders. Rightly, however, concerns have been raised that this Council may make unwise inroads into judicial independence.

The Bill reflects recommendations from a Law Commission report, which considered that such a Council would address variations in sentencing outcomes. The Sentencing Council would be composed of five judges, and five other members appointed on Parliament's recommendation.

Judicial independence -- one of our central constitutional principles -- ensures that government and Parliament do not meddle in the business of judges and that judges do not act as politicians. The concern is that the appointment and involvement of non-judicial members could politicise sentencing and thus compromise judicial independence.

The Commission was strongly of the view that this involvement is necessary and that Parliament and the executive should be able to have more input into sentencing. This is because it viewed sentencing as a policy issue which requires input on matters such as 'cost-effectiveness' and the management of 'penal resources.'

But the extent to which cost-effectiveness and resourcing issues should drive criminal justice is questionable. It is hard to see how concerns about sentencing variations justify introducing this policy input. Judicial independence could also be eroded as proposed guidelines would need Parliament's approval, so whether they pass may depend on the political mileage to be gained.

Consistency in judicial decisions is of course desirable, and no-one is suggesting judges should have an absolutely unfettered discretion or that resources are unlimited. It is entirely appropriate for Parliament to limit judicial discretion by legislating maximum sentences, for example. The issue is whether the proposed Sentencing Council unreasonably limits discretion and whether limitations on policy grounds are appropriate.

There are other ways to improve consistency in sentencing without the risks to independence, such as an advisory Council or greater provision for 'guideline' judgments from the Court of Appeal. Ultimately, passing sentence is a judicial function. We should assist judges to do their job before we think about bringing in Parliament and its policy machinations.

Read the Select Committee report on the Criminal Justice Reform Bill

Read the Law Commission's report, Sentencing Guidelines and Parole Reform

A COMMON PLACE?

The United Kingdom continues its debate on how to foster 'Britishness' with the release yesterday of a new pamphlet recommending a new British 'national day.' It also recommends a greater emphasis on 'civic values,' building an 'inclusive sense of citizenship,' more integration measures for new migrants, and a new focus on a 'sense of common purpose' and 'common values,' like 'tolerance' and 'the rule of law,' as well as 'loyalty to [British] legal and political institutions'.

The 'freethinking pamphlet' published by the Fabian Society is written by the Communities Secretary, Ruth Kelly, and the Immigration Minister, Liam Byrne, and focuses on fostering, in the words of the title, A Common Place.

It recommends a greater emphasis on learning English, a 'renaissance' of localism and local government, more emphasis on 'service,' 'voluntarism' and 'civic pride,' and the introduction of 'earned citizenship' for migrants, based on a 'point system' which takes into account things like 'involvement in the local community.' This, they hope, will make Britain 'more cohesive' and fend off threats from 'extremists,' such as Islamists and the far right British National Party.

The increasing recognition of 'the ties that bind' even among the centre-left Fabians and the British Labour Party is demonstration of the fact that the concern over common identity is becoming general across the political spectrum. When migrants come to a country, they join an existing and organic community with existing institutions and values.

Likewise, when the respect for these institutions and values begins to wane among the existing citizenry, the 'basic affinity for each other' at the basis of community is undermined too. What is absent from the report, however, is any acknowledgment that New Labour's swathes of radical change to British institutions have undermined the identity it is now trying to rescue.

It is impossible to read with a straight face the authors' solemn assertion that 'the politics of identity have not been at the core of our agenda,' and that the 'branding' exercise of the Labour years since 1997 was only about 'style,' 'telling a different story' or Britain's 'role on the international stage.'

Artificially constructed regional assemblies, devolution, the constitutional upheaval of the House of Lords reform, the attacks on British liberties and sovereignty, have all contributed to the triumph of identity politics over ancient loyalties and institutions -- the same loyalties to which the report now appeals.

The report's authors fail to sustain the implied understanding of some of the report's recommendations -- that useful and continuous evolution is only possible with reverence for common values, loyalty to common institutions and respect for the whole community -- things the report lauds, and at the same time fails to demonstrate.

Read A Common Place

THE PRAYER OF OUR FOREFATHERS

The traditional Parliamentary prayer has come under review as MPs have been asked by the Speaker of the House, Margaret Wilson, whether or not it should be kept, and, if so, whether it should be changed in any way. It is looking increasingly likely that the result of the review will be to keep the prayer -- a symbol of our tradition and heritage and of the principles and faith of our ancestors, principles vital for the shaping, ordering and forming of this country.

As part of the pomp and ceremony of Parliament, the Speaker formally proceeds into the Chamber, says the traditional prayer, and then declares open the sitting of the House. This practice has taken place in Parliament since 1854, at the first ever sitting of Parliament in New Zealand. The prayer was initially proposed by James Macandrew, the first Speaker of the House, and at that time the only concern was that the prayer should not cause offence between the differing Christian denominations.

Today the prayer retains meaning, regardless of the religion or beliefs of those in Parliament. It serves as a reminder that our elected representatives are only human; fallible and capable of making mistakes. It declares the focus and intention of good government, and is steeped in tradition and heritage, recognising the religion of our ancestors and of many New Zealanders.

It encourages the laying down of self-interest and party, and recognises that an MP's role is to act as a servant of the nation, the common good and the Queen. The prayer acknowledges an authority above the state and the need for power to be wisely stewarded and exercised with humility -- something our politicians could do with more of, not less.

The prayer sets out what Parliament is coming together to do, 'laying aside all private and personal interests,' committing to go after 'the maintenance of true religion and justice, the honour of the Queen, and the public welfare, peace, and tranquillity of New Zealand.'

Such tradition should not be thrown out just because it no longer appeals to the fashionable elite. It is an important part of our identity; it is ours.

IN THE NEWS

HAVE YOUR SAY ON THE POLICE ACT REVIEW

As part of the ongoing review of the Police Act 1958, a discussion document, Policing Directions in New Zealand for the 21st Century, has been released. Policing has moved a long way since 1958 and despite a number of amendments the Act is in need of a thorough reworking.

The Police remain an integral part of society as a whole, and their role in strengthening community life is being performed through increasingly diverse forms. The broader issues that the document seeks to encourage discussion about are: 'principles, effective policing, people, platforms, and the future.' Public submissions are welcomed and close on 31 July 2007.

Read the full document and find out more about the consultation process

TAKING A LOOK AT GLOBALISATION

The latest OECD Economic Outlook takes a close look at globalisation, finding that it offers many opportunities for countries and arguing that fears, such as damage to jobs in economically advanced countries, are unfounded. It suggests that greater competition can increase jobs and that globalisation may in fact help reduce inflationary pressures. Nevertheless it is realistic about the challenges globalisation creates, such as the need for labour market mobility.

Read OECD Economic Outlook No. 81

TALKING POINT

'All would be lost if the same man or the same body of principal men, either of nobles or of the people, exercised these powers: that of making the laws, that of executing public resolutions, and that of judging the crimes or the disputes of individuals.'

Montesquieu

ENDS

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