Institutional Erosion

The Erosion of Trust and Confidence in Public Institutions

In my previous post on Media Literacy I made reference to the significance of trust and confidence in institutions and the way that messaging is used to maintain levels of public trust and confidence. In this article I examine the wider issue of trust and confidence in institutions a little more closely and why, at least as it seems to me, institutional trust and confidence is being eroded.

Introduction

In 1770, shortly before the American Revolution, Edmund Burke wrote an essay on the loss of trust between the sovereign and the populace in words that still resonate strongly. His litany of “present discontents” reads like an eerie forecast of our own time: a government “at once dreaded and contemned,” rank, office, and title having “lost their reverence,” inaction a “subject of ridicule,” and hardly anything that “is sound and entire” but that “disconnection and confusion” prevail abroad and at home.

When trust collapses, Burke observed, very little can be done to summon people back to the same table, real or figurative: “When men imagine that their food is only a cover for poison, and when they neither love nor trust the hand that serves it, it is not the name of the roast beef of Old England that will persuade them to sit down to the table that is spread for them.”

His tract was widely interpreted as a call for a better organized form of politics. Burke asked his readers to rise above factionalism and embrace the formation of political parties within which people would subordinate individual self-interest to a shared commitment to the good of the nation. “Party,” he wrote, “is a body of men united for promoting by their joint endeavours the national interest, upon some particular principle in which they are all agreed.”

Only by principled and virtuous association would people acquire the strength and stamina to achieve higher political goals. Trust, in short, was a matter of getting the politics of association right, to better align what people should aspire to achieve in public life with what could be practically accomplished.

Although Burke was writing about the field of Government his comments about the importance of trust apply to all societal institutions. Our institutions rely on public trust and confidence for their continued legitimacy.

Of course in a totalitarian state public confidence in institutions is not necessary. Those governments rule by fear, not by consent. Dissent is stifled. Any expression of a loss of confidence in the State us swiftly silenced.

Declines in trust are partly the result of dissatisfaction with governmental and institutional accountability and concomitant skepticism about the competency and responsiveness of institutions.

Declines are also the result of a polarization in trust in institutions, as the Right trusts business, the police, religion, and the military much more than Left, whose confidence in these institutions has fallen. In turn, the Left trusts labor, the press, science, higher education, and public schools much more than the Right, whose confidence in these institutions has fallen.

Declines and polarization in confidence may be traceable to political polarization stemming from increasing income inequality and the rise of the intersectional Left who judge actions or arguments not by whether it is effective or an argument by whether it is true but rather by whether the people involved in an action or argument are in the oppressed/powerless/marginalized bucket or not. It is a form of neo-Marxist malignancy.

With polarization and decreasing trust in institutions, it becomes more difficult to fight epidemics, maintain faith in policing, and deal with problems such as climate change.

Trust and Confidence in Government Institutions

If we drill down, we can find there are a number of interconnected factors which can explain or help us understand the “why” of a declining trust in Government institutions.

1.           Perception of Misbehaviour, Corruption or Self-Serving Activity:

When people perceive that government officials are corrupt or self-serving, it undermines trust in the institutions they represent. Scandals, misuse of funds, and unethical behavior by politicians and bureaucrats contribute to this perception. Our elected representatives are expected to adhere to and maintain the highest ethical and behavioural levels. Even a few “falls from grace” or evidence of criminal behaviour can lead to a diminishing trust in the institution of which our representatives are a part.

2.           Polarization and Partisanship:

Politics has become increasingly polarized in many countries, leading to a toxic environment where loyalty to one's party often trumps loyalty to the institution itself. This partisanship can lead to gridlock, inefficiency, and a lack of faith in the ability of government institutions to effectively address societal issues.

3.     Failure to Address Key Issues:

When government institutions fail to effectively address pressing issues such as inequality, healthcare, education, or climate change, people lose faith in their ability to govern competently. A gradual decline in services, especially in infrastructure such as electricity and water can lead to frustration and a sense of disenfranchisement among the populace.

4.     Erosion of Democratic Norms:

In some cases, elected leaders or political parties may undermine democratic norms and institutions for their own gain. This can include attacks on the judiciary, undermining the free press, or attempts to restrict voting rights. Such actions erode the foundations of democracy and lead to decreased respect for government institutions. In this respect the erosion of trust and confidence in institutions comes from within the institution itself

5.     Globalization and Economic Discontent:

Economic globalization has led to shifts in employment patterns and income inequality, leaving many people feeling economically marginalized. When government institutions are perceived as being ineffective at addressing these economic challenges, it can lead to a loss of respect for their authority.

6.     Historical Precedents:

Past instances of government failure, corruption, or abuse of power can cast a long shadow and contribute to ongoing skepticism toward government institutions. Events such as Watergate in the United States or the expenses scandal in the United Kingdom have had lasting impacts on public trust in government.

Trust and Confidence in the Public Service

Similar issues arise regarding loss of trust and confidence in the public service. Once again, there are a number of interconnected factors

1.           Perception of Inefficiency and Bureaucracy:

The Public service is often associated with bureaucratic inefficiencies, red tape, and slow decision-making processes. This perception can lead to frustration among citizens who feel that government agencies are unresponsive to their needs or concerns.

2.           Lack of Accountability and Transparency:

Public servants are sometimes perceived as being shielded from accountability due to civil service protections or lack of transparency in government operations. When mistakes are made or misconduct occurs, the public may feel that there are insufficient consequences for those responsible. A classic example may be seen in the recent revelations about the wrongful accusations of crime on the part of sub-Postmasters in England – the subject of an excellent series “Mr Bates vs the Post Office” and the machinations and evasiveness of the Post Office CEO Paula Vennells.

3.           Political Interference and Partisanship:

Public service can be politicized, with appointments and promotions influenced by political considerations rather than merit or expertise. This can undermine the professionalism and impartiality of public servants and erode public trust in government institutions.

4.           Perception of Corruption or Obstructionism:

Instances of corruption or unethical behavior among public servants can tarnish the reputation of the entire public service sector. Even isolated incidents can fuel perceptions of widespread corruption and erode trust in government institutions. “Institutional obstinacy” was a term used by Justice Fraser in Bates & Others v Post Office Ltd. Obstruction of Government policies either in whole or in part can be seen as opposition to the will of the people and a significant factor in the erosion of trust and confidence in the public service.

5.           Media Portrayals and Stereotypes:

Negative portrayals of public servants in the media, such as depictions of lazy bureaucrats or incompetent officials, can reinforce stereotypes and diminish respect for the profession. These portrayals may not accurately reflect the dedication and hard work of many public servants.

6.           Economic and Social Disparities:

Economic disparities between public and private sector salaries can influence perceptions of the value and prestige of public service careers. In some cases, low salaries and limited opportunities for advancement may deter talented individuals from pursuing careers in public service.

7.           Public Cynicism and Distrust of Government:

A general cynicism and distrust of government can spill over into attitudes toward public service. When citizens perceive government as inefficient, unresponsive, or corrupt, they may view public service as a less attractive career option and indeed a further manifestation of Government inefficiency.

8.           Challenges in Recruiting and Retaining Talent:

Government agencies often face challenges in recruiting and retaining talented individuals, particularly in fields where there is high demand for specialized skills. Competition from the private sector and limited opportunities for advancement can contribute to turnover and a loss of institutional knowledge.

To address these challenges and restore respect for public service, efforts are needed to promote professionalism, accountability, and transparency within government institutions. Investing in training and professional development programs, improving recruitment and retention practices, and fostering a culture of integrity and ethical behavior are essential steps toward rebuilding public trust in the public service sector. Additionally, highlighting the positive contributions of public servants and celebrating their achievements can help to counter negative stereotypes and perceptions.

Loss of Confidence in media

Sadly the Fourth Estate has been suffering not only economically but as a result of declining revenues and audiences. However, there has been a decline in trust, respect and confidence in the media and this can be attributed to several factors

1.           Perceived Bias:

Many people perceive mainstream media outlets as having biases in their reporting, whether it be liberal, conservative, corporate, or otherwise. This perception can lead to skepticism about the objectivity and fairness of news coverage. This was not helped in New Zealand with the Public Interest Journalism Fund which was a subsidy but which came with conditions attached as to the type of messaging.

2.           Polarization and Echo Chambers:

With the rise of social media and personalized news consumption, individuals increasingly self-select news sources that align with their existing beliefs and ideologies. This can create echo chambers where people are less exposed to diverse viewpoints and more likely to dismiss mainstream media as biased or untrustworthy.

3.           Misinformation and Fake News:

The proliferation of unreliable information (the modern characterisations are misinformation and fake news) on social media platforms has undermined trust in traditional media outlets. People may struggle to discern between credible journalism and sensationalized or fabricated content, leading to confusion and skepticism.

4.           Perception of Sensationalism:

Some mainstream media outlets are criticized for prioritizing sensationalism and entertainment value over factual accuracy and depth of analysis. This focus on ratings and clicks can erode trust in the integrity and professionalism of journalistic practices.

5.           Corporate Ownership and Influence:

Mainstream media outlets are often owned by large corporations, raising concerns about the influence of corporate interests on editorial decisions and news coverage. This perception can lead to suspicions of bias or censorship in favor of corporate agendas.

6.           Coverage of Scandals and Controversies:

Media coverage of scandals and controversies within the industry itself, such as instances of journalistic misconduct or ethical lapses, can damage the reputation of mainstream media outlets and contribute to public distrust.

7.           Loss of Local Reporting:

Many communities have experienced a decline in local journalism due to economic pressures and consolidation in the media industry. This loss of local reporting can lead to a perceived disconnect between mainstream media outlets and the concerns of ordinary citizens.

8.           Political Attacks and Demonization:

Politicians and public figures sometimes attack the mainstream media as "fake news" or "the enemy of the people" in an attempt to discredit unfavorable coverage or undermine public trust in journalistic institutions. These attacks can further erode respect for mainstream media and contribute to a climate of distrust.

To address these challenges, mainstream media outlets must strive to uphold journalistic standards of accuracy, fairness, balance, objectivity and independence. They also need to engage with audiences in meaningful ways, promote media literacy, and demonstrate transparency in their reporting practices. Building trust and credibility with the public is essential for maintaining the integrity of mainstream news media in an era of increasing skepticism and misinformation.

The Courts, Society and the Legal Process

In addition there has been a general loss of confidence and trust in the way that society is developing. Bruce Cotterill in the NZ Herald for 16 March 2024 made the following observations:

“We’re no longer fit for purpose. Our infrastructure and our services are at breaking point.

Most of us will have noticed that everything is a bit run down. The house and the plane are not the only things that are no longer fit for purpose. The big three — education, healthcare and policing — have been in decline for years and are now at breaking point.

And so we watch as GP clinics are closing and even the fourth estate is crumbling. Any thinking New Zealander will have noticed the state of our roads. Our largest city is gridlocked for hours a day. Our immigration policies are a shambles. Last year we had 40,000 Kiwis leave our shores. They were replaced by 208,000 new arrivals, predominantly less skilled than those we lost.

Our universities, too, are run down. They’re struggling for money and relevance as many of the academics they employ have become distracted by a new world order that most of us would agree is woke and undesirable. To further frustrate our under-resourced police force, our judiciary appears to have lost its way and possibly its independence.

It might be too early to say we’re a society on the edge of collapse, but we’re not far away.”

Mr. Cotterill has suggested that the Judiciary appears to have lost its way and this raises a larger issue about trust and confidence in the Courts as an institution.

The Courtroom can be a place where emotions run high but in the past the institution of the Court and the majesty and formalism attaching to the Courtroom process has acted as an inhibiting factor. Certainly the occasional litigant who was unsuccessful would have a spontaneous outburst but brawls and misbehaviour in the Courtroom were rare.

One incident took place in Christchurch in March of 2017 when a brawl broke out inside a Christchurch courtroom when a man accused of murder appeared.

Six police and court escort staff were needed to subdue and handcuff Cyle Robert Jetson. More police kept family members in court out of the struggle.

At the time that was unusual but between September 2023 and February 2024 there were two incidents of court brawls. One was in Napier where three men scaled a glass security barrier to attack a man in the dock. The other was in Wellington where a gang brawl prompted a heavy police response.

Lest it be thought that this was a peculiarly New Zealand problem there was an incident in Las Vegas where a defendant took a flying leap across the bench to attack the Judge and in December 2023 a Judge was taken to hospital after a Family Court assault. It was noted in the Law Gazette for 2 December 2023 that

“Attacks on judges in England and Wales are indeed rare, with just one reported case in recent years. In 2013, the brother of a man who had just been sentenced attacked the judge and knocked off his wig at Ipswich Crown Court. He was later jailed for 18 months after admitting contempt of court.”

The matter was reported by English legal commentator Joshua Rozenberg KC in an article entitled “Protecting the Judges” which can be found here.

Behind this loss of inhibition and failure to exercise proper control is a very obvious lack of respect for the Court, the Judges and the very institution that they represent.

In the United States the problem is even more acute. The US Supreme Court has been seen as a “political” institution for some time but for most of the latter half of the twentieth century got behind what could be termed progressive policies such as the New Deal and the Great Society as well as extending constitutional protections in the criminal process.

That has all changed with the appointment of “conservative” judges who have brought their own brand of interpretation and constitutional thinking to the Court. “Originalism” and “textualism” have become the watchwords of some of the members of the US Supreme Court.

Justice Clarence Thomas, the most senior of the Supreme Court Judges, and perhaps one of the most controversial as far as his extra-judicial behaviour is concerned has said that people must accept that they may not like some of the decisions handed down but he recognized the problem of trust and confidence as essential to the judicial arm when he said in 2022

“And look where we are, where now that trust or that belief is gone forever. And when you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally. You begin to look over your shoulder. It’s like kind of an infidelity, that you can explain it, but you can’t undo it.”

In 2023 trust and confidence in the Supreme Court was at an historic low. Sixty-two percent of those polled said they have not very much or no confidence in the Supreme Court, according to the latest NPR/PBS NewsHour/Marist poll. That's the lowest recorded in the five years Marist has been asking the question. The lack of confidence was driven by Democrats and most independents.

The data is consistent with other surveys, as well. Gallup, for example, found just 25% had a great deal or quite a lot of confidence in the once-vaunted institution, the lowest in Gallup's 50-year trend on the question.

The drop off coincided with the death of the late Justice Ruth Bader Ginsburg in 2020, and then nosedived after the Supreme Court's Dobbs ruling that gutted the right to an abortion.

Views of the court are now the most sharply divided they've ever been.

I have looked at the US Supreme Court but now it may be time to look at the issue of trust and confidence in the Courts and the Judiciary from a more general perspective. Why is there diminishing respect for the Courts? This can stem from a number of factors.

1.           Perceived Political Bias:

When courts are perceived as being politically biased or influenced, it erodes trust in their ability to deliver impartial justice. Decisions that appear to favor certain political interests or ideologies can lead to accusations of partisanship and undermine the legitimacy of the judiciary.

2.           Controversial Decisions:

Courts often make decisions on contentious issues such as human rights, immigration, or civil liberties. When these decisions are unpopular or controversial, it can lead to public criticism and a loss of respect for the court's authority. That said, the Court must apply the law. Judicial decisions cannot be swayed by matters such as popularity or public opinion. But it is incumbent upon Judges to make the reasons for their decisions absolutely clear and unequivocal.

3.           Limited Accountability:

Unlike elected officials, judges are appointed rather than directly accountable to the electorate. This lack of direct accountability can lead to perceptions of judicial elitism or insulation from public opinion, which may diminish respect for the courts.

4.           Media Influence:

Like other branches of government, courts are subject to media scrutiny and public discourse. Biased, partisan or sensationalized reporting about court cases can distort public perceptions and contribute to distrust of the judicial system.

5.           Slow Judicial Processes:

Courts are often criticized for being slow and bureaucratic, leading to delays in the resolution of cases. This can undermine confidence in the judiciary's ability to deliver timely justice and address societal problems effectively.

6.           Failure to Enforce Decisions:

If court decisions are not effectively enforced or implemented, it can undermine the authority of the judiciary. This may occur due to resource constraints, lack of cooperation from other branches of government, or systemic inefficiencies.

7.           Perceptions of Injustice:

When individuals perceive that the legal system has failed to provide them with fair treatment or redress for grievances, it can lead to disillusionment with the courts. This may be particularly acute among marginalized or disadvantaged communities who feel that the legal system is stacked against them.

8.           Judicial Activism:

While judicial activism can sometimes be seen as necessary for protecting rights and promoting justice, it can also be controversial. Critics argue that activist judges overstep their authority and legislate from the bench, undermining the separation of powers and democratic principles.

Addressing these challenges requires efforts to promote transparency, accountability, and independence within the judiciary. It also requires ongoing dialogue and engagement with the public to build trust and confidence in the legal system.

Why is this necessary? Because the Courts have a vital role in maintaining the Rule of Law and acting as a bulwark between the individual and the State. As Alexander Hamilton observed, the Courts have neither the power of the purse nor the sword. It follows that the Courts have a continuing mission to earn and maintain the confidence of the public who will accept – not always willingly – the decisions of the Judges.

Why is it that Bruce Cotterill suggests that the judiciary may have lost their way? The answer to that question really is not about the Judges who have spurned the judicial oath and gone off on some power romp of their own but it lies in some recent decisions from the Supreme Court that seem to have amounted to something of a judicial overreach.

There have been a number of commentaries about what has been happening. Professor James Allen wrote an article published in the Spectator Australia where he observed:

“What do I mean by ‘an imperial judiciary’? I refer to a country where the top judges – committees of unelected ex-lawyers if we want to deal in specifics – are giving themselves new-found power at the expense of the elected branches of government.

Under the cover of purportedly applying the law they are usurping power to themselves. This may involve what is known as ‘proportionality analysis’, where the unelected ex-lawyers ask themselves whether they believe what the elected parliament enacted was reasonable and justifiable and proportional to the intended goal. Or it may involve interpretive techniques that sever the attribution of meaning from any consideration of what the legitimate authors of the law – in a democracy that means the elected branches, not these committees of ex-lawyers themselves – intended it to mean and from what the words the legislators chose clearly mean in light of those intentions. Or again it might involve infusing and substituting their own judicial moral sensibilities for those of the elected politicians, often using the notion of ‘the principle of legality’ to do so. Basically, my grievance boils down to alleging various forms of judicial usurpation.”

Allan provides some examples. One is the Make It 16 case where the Supreme Court stated that the right to vote should apply at the age of 16 and not 18 as the legislation provides. The Court made a formal declaration that parliament’s voting age infringed the right to be free from discrimination on the basis of age. Allen caustically described the decision as “a display of sophomoric reasoning, virtue-signalling and, yes, self-regard.”

Another example comes from the posthumous quashing of the conviction of Peter Ellis. Allen was of the view that standard public interest common law principles could have been used to overturn what was a miscarriage of justice but, as Allen puts it

“Instead, the judges chose to infuse tikanga and mana (Maori customary law and a person’s honour) into NZ law. On what basis unelected ex-lawyers could do this is beyond me, leave aside the fact no one has a clue what the reach or meaning of these concepts is”.

More on this later.

The third example Allen puts forward is the case of Smith v Fonterra Smith sought an injunction against seven large companies to stop them from materially contributing to climate change. The matter before the Court was whether or not Smith could bring such an action. The case did not go into the merits of it. What had happened was that all of the causes of action that Smith had pleaded had been rejected by the Court of Appeal. But, as Allen puts it,

“the hero judges of the Supreme Court reinstated all of Smith’s claims after giving leave to hear the case. So it goes back to first instance with the judges now having inserted themselves into deciding what actions on climate change are and are not reasonable. It’s judicial usurpation and puffed-up, sanctimonious judges on steroids. (And note that it is pure sophistry to reply, ‘We’ve only allowed the case to proceed’ when the judges have made clear they have (or rather gave themselves) the power to make new law here, whether they opt to use it this time or not.)”

This is strong stuff – an outspoken critique – which Allen follows up with a critique of the appointees and of the appointment process on both sides of the Tasman.

The matter doesn’t end there. In one article, which can be found here, the following observation is made:

“Law students also learn that statute is the dominant source of law. Of course, this does not prevent common law from being applied and developed. But in this case, the Supreme Court has opened the door for climate change to be brought into common law when a sophisticated statutory regime is already in place.

Moreover, trying to deal with climate change through the common law is doomed to fail under the ETS. In effect, the existence of the ETS makes any common law tort toothless and superfluous.

All of this is, frankly, concerning. The most troubling thing about the Supreme Court’s decision is the signal it sends: Matters of policy and politics (such as climate change) can be decided by the courts. In a democracy, however, voters elect Parliaments to deal with the problems facing society. How democratic would it be for the courts to usurp such matters from elected lawmakers?

New Zealand is lucky to be one of the world’s highest ranked countries for the rule of law. But with decisions like the one just delivered by the Supreme Court, one may wonder for how much longer.”

The New Zealand Initiative – a think tank – has published a number of articles on  the Supreme Court especially following the Smith case.  One of them reports on a Conference held by the Legal Research Foundation to mark the 20^th Anniversary of the establishment of the Court. One of the papers delivered at the Conference was from Jack Hodder KC, a former Law Commissioner and was a member of the Attorney General’s 2002 Advisory Group recommending the Supreme Court’s formation to replace the Privy Council. The title One Advocate’s Opinions – The Least “Dangerous Branch”? Predictability and Unease echoes Alexander Hamilton’s assessment of the judicial arm of Government.

But as it is reported by Mr. Roger Partridge of the NZ Initiative – an article which also appeared in the NZ Herald, Mr Hodder’s paper was a searing critique of a court that has misunderstood its role and overstepped its bounds.

I should immediately state that as at the time of writing I have not been able to secure a copy of Mr Hodder’s paper so what I am stating here is taken from Mr. Partridge’s article.

The orthodox view of the role of the Court is to give full and fair effect to laws passed by Parliament. Yet the Supreme Court has been at the vanguard of a departure from this convention. Sometimes described as ‘the principle of legality,’ the Supreme Court favours a tempering role for the court when interpreting Parliament’s words.

The approach involves the Court navigating around the words of a statute if they conflict with what the Court considers to be ‘fundamental rights.’ Now this is permissible in some cases where there is an encroachment upon the rights guaranteed under the New Zealand Bill of Rights Act 1990. But Courts cannot take a similar approach where guaranteed rights have not been encroached upon.

Nevertheless, successive Supreme Court decisions have interpreted Parliament’s words in a remarkably cavalier way. This has sparked what Mr. Hodder describes as “small stirrings of legislative irritation”.

Mr. Hodder claimed

“Governments and legislators could justifiably query the cumulative effect of the relatively modern presumptions that legislation will not be interpreted according to its plain meaning unless it passes a series of [court imposed] presumptions of compliance…”.

But there seems to be a bigger problem and that was in the Ellis case to which reference has been made. Despite the case having no particular Māori connection, the Court – at its own instigation – took into account tikanga Māori considerations in deciding that Ellis’s appeal against convictions could continue despite his death.

Three justices went further, indicating that any issue of law before the courts may need to be addressed in the light of tikanga.

Mr Hodder was of the view that the method adopted by the Court in Ellis was in error.

First was the idea that the role of the Court is to develop the law. Those words don’t appear in the Supreme Court Act which emphasizes a continuing commitment to the rule of law and parliamentary sovereignty. These connote values of stability and predictability of the law and not a court-led development or journey.

Mr. Partridge notes the second concern as follows:

“More concerning is the presumption that in developing the law the Court can be guided by ‘changing societal values.’ As Hodder questions, “By what logic or experience, and by what criteria, do the courts identify and weigh inconsistent ‘values’ in applying and developing the common law?”

This raises the obvious concern that changing societal values simply means the judges’ own values.

A court that imposes its values politicises the judiciary. However, the courts lack the democratic legitimacy or political accountability needed for political decision-making. That is the role of Parliament.”

Mr Hodder’s paper concluded with the prediction that “the Court is on course to trigger “unprecedentedly sharp political debate”, and Mr Partridge suggests that Mr Hodder’s comments “will embolden others to question the Supreme Court’s approach”

In addition to the critique of Mr Hodder and the concerns of Professor Allen and Mr Partridge, Gary Judd KC has added his voice to the expressions of concern about the direction of the Supreme Court. It is not usual for senior barristers to speak out in this way.

Mr. Judd has put forward his concerns in the Law Association’s Law News for 15 March 2024 and on his Substack “Thoughts from the North”. Mr Judd comments on Professor Allen’s article and the Smith case but then reflects on concerns that the Supreme Court may undermine its own legitimacy and that there is a threat to the constitutional framework. He refers to a matter touched upon by Mr Hodder and that is the issue of values. He starts with a comment from Justice Glazebrook in Ellis where she said:

It is worth saying something more about values. It is the function of this Court to declare the law of Aotearoa/New Zealand and we must do so mindful of the values that in combination give us our own sense of community and common identity. We share some of these values with other nations, especially those founded on the common law tradition. Other relevant values may be unique to our nation’s history and circumstances. Tikanga and kaupapa Māori belong to this latter category and are of particular importance as tikanga is the first law of Aotearoa/New Zealand and Māori are tangata whenua: tikanga is part of the values of the New Zealand variety of the common law. The consideration of common values is important when applying the common law to new or novel situations or when considering the need (or otherwise) to develop or modify the common law. (At para 110 – my emphasis).

Mr Judd echoes Mr Hodder in asserting that

“Declaring the law is no part of the function of any New Zealand judge. The judicial oath they take before entering office is to “well and truly serve His [or Her] Majesty … according to law,” which does not encompass declaring or making it. That is a matter for Parliament which our Constitution declares to be sovereign (see now s 3(2) of the Senior Courts Act 2016 — “Nothing in this Act affects New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament.”)”

When Judges start declaring law to reflect their own values (or values that they perceive to be held or have chose to promote) they step aside, claims Mr Judd, from the Rule of Law and substitute the rule of the men and women who make up the judiciary. This runs up against the role of Parliament which is to make the law. That power derives from the people. If the people do not like the laws that are being enacted they can change the makeup of the lawmaking body.

The problem is the Justice Glazebrook seems to suggest that judges may substitute their own values or moral imperatives for those of elected politicians, using the rationale of the “principle of legality” to do so.

Mr Judd in his analysis takes the argument about the applicability of tikanga and Kaupapa further, suggesting that to impose these values, which have a spiritual element would involve an interference with the freedom of religion which includes the right to believe or to practice no religion. The concern that Mr Judd has in this regard is expressed as follows:

“It means that the Supreme Court judges' views, informed by persons professing to speak for one part of the community on matters of thought, conscience, religion, and belief, will prevail over the views of others, and that those views will be imposed on others when a case comes before the courts and a party or parties or the court itself (as in Ellis) wishes to do so. This means that the thoughts, conscience, religion, or belief, including the right to adopt and hold opinions without interference, of the individuals who do not subscribe to the judges’ views are suppressed and overridden, for no better reason than the judges' belief in their own infallibility when judging the values the community should adhere to.”

All of this may seem to be a bit esoteric – the sort of thing that lawyers love to talk about but the least dangerous branch, as Hamilton called it, relies on public confidence and trust for its continued legitimacy. If the Courts seem to have gone further than is permissible or expected that public trust and confidence may be eroded, the legitimacy of the Court may suffer and consequently the Rule of Law gets called into question.

This is not to say that the Supreme Court is a threat at the moment and it may be that it will in future exercise judicial restraint. In other respects the Supreme Court is remarkably transparent in its work. Its decisions are available online, often with explanations. The pleadings and submissions that make up a case are also available. The Supreme Court does not only sit in Wellington but makes itself visible in other centres.

It could also be suggested that what has recently been happening in the Supreme Court does not necessarily “infect” other Courts in the system. The problem is that the Supreme Court sits at the pinnacle of the Court hierarchy. Lower Courts are bound by its decisions and its holdings. The decisions of the Supreme Court filter down through the lower Courts and are applied on a case by case basis.

As I was writing this article, and as a result of the transparency that is characteristic of the Chief Justice, a memorandum from the Chief Justice to the Attorney General dated 29 November 2023 was released. That memorandum was a form of briefing to an incoming Minister and sets out a number of issues that need addressing in the Courts system.

The memorandum makes grim reading. It details courtrooms that have been close because of black mould, a Courthouse (Papakura) wrapped in plastic because of weathertight issues, a need to appoint more judges to fill vacancies, to cope with increased workloads and to ease judicial stress and fatigue.

The Chief Justice warned how the Government’s search for 6.5 or 7.5 per cent savings across the public sector could put more pressure on a system that is already squeezed, and stated her support for the courts to be exempt due to them being “essential front-line services”.

But the justice sector - which includes the courts - has been included in the Government’s directive to find 6.5 per cent in savings, though which parts will be trimmed are still being determined.

Courthouse facilities are not able to meet the demands put upon them. “A 15-day plus High Court criminal trial cannot be offered a trial date in Whangārei until September 2025 or in Rotorua until October 2025. This is almost 12 months later than dates in the main centres, and is solely as a result of the lack of courtroom availability.”

Despite this, the backlog in the District Court is tracking down as the result of a number of measures and further initiatives are under way together with a digitization project which could ultimately lead to a paperless Court system

The difficulties outlined by the Chief Justice are difficulties that the public of New Zealand sees. As Alexander Hamilton said, the least dangerous branch has neither the power of the purse or the sword. The Courts and indeed the Rule of Law requires a properly funded and properly resourced Court system so that the public can see that justice is being done. The perception may be that the Judges may have been getting some of their decisions wrong. But if the edifice is crumbling, the institution that it houses may crumble as well.

Conclusion

In this article I have reviewed some of the problems that are facing four of our significant institutions. In many respects over the years we have taken these institutions for granted. But that seems to be changing as the services that the State provides for its constituency decline and deteriorate. Our institutions in some respects may seem to be wanting. The question is whether or not we wish for them to continue. Some may see that institutional continuity is just another form of maintaining existing inequities between the empowered and the disempowered – the arguments coming from the Intersectional Left. But at the same time our institutions provide us with a level of certainty and continuity that enable us to confidently live our lives and organize our affairs.

A decline in trust and confidence in our institutions could mean a rejection of their role in the fabric of modern life (I use that term rather than “society” concerning which Margaret Thatcher said

“I think we have gone through a period when too many children and people have been given to understand ‘I have a problem, it is the Government’s job to cope with it!’ or ‘I have a problem, I will go and get a grant to cope with it!’ ‘I am homeless, the Government must house me!’ and so they are casting their problems on society and who is society? There is no such thing! There are individual men and women and there are families and no government can do anything except through people and people look to themselves first.”

I agree entirely with Baroness Thatcher in this as in a number of other areas but at the same time the fabric of modern life is dependent upon institutions to provide stability, certainty and order under the Rule of Law. If these go the fabric of modern life will be irreparably ripped to pieces.