The visiting Chancellor of the High Court of England and Wales, Sir Geoffrey Vos, has warned that, despite New Zealand’s proud reputation, the country should still be vigilant about protecting the independence of the judiciary.
“A fair and impartial [judicial] decision-making process in which citizens from all parts of society and the state itself have absolute confidence” is imperative to a democracy, said Sir Geoffrey in a public lecture at Victoria University of Wellington’s Faculty of Law.
This might sound “totally obvious here in New Zealand, as it does perhaps in England”, he told an audience that included senior members of the country’s legal profession.
“The problem, however, only arises when things are not working properly. And that’s why a study starting from first principles is useful. Because we live in rapidly changing societies. We live in rapidly changing political times. And as we shall see in a moment even basic principles cannot always be taken for granted, even in those countries where you would have thought they could be.
“Almost all justice systems face new challenges that demand new responses. And many of them, just as an aside, are caused by the changing political face of the world. We have a changing political face in the United States, we have it across Europe with the election of right-wing regimes, and we have it in almost every country.”
Introducing the lecture, Victoria’s Pro Vice-Chancellor and Dean of Law Professor Mark Hickford said Sir Geoffrey’s topic of The Limits of and Threats to Judicial Independence was one that resonated with “the very important and valuable speech” given by Chief Justice of New Zealand Dame Sian Elias to the Criminal Bar Association conference in August.
In her speech, Dame Sian spoke of “the erosion of the culture of courts” within the Ministry of Justice and there being “little agreement where judicial administration takes over and Ministry administration leaves off”.
She said: “In addition to policies designed to achieve ends that may be difficult to reconcile with the values to date accepted in criminal justice, it is necessary to acknowledge the impact on the system by the running down of resources available for criminal justice. If simply part of a cross-government belt tightening, it may be that such pressures arise out of a failure to appreciate the rule of law concerns recently raised by the United Kingdom Supreme Court in the treatment of the administration of justice as merely a public service like any other.”
Sir Geoffrey’s lecture drew on the results of a 2016-2017 survey of nearly 12,000 judges in 25 European countries, undertaken by the European Network of Councils for the Judiciary (ENCJ), of which he is a former President.
Among the questions the survey asked was whether during the previous two years judges had been under inappropriate pressure to take a particular decision in a case or part of a case.
“In three countries, more than 20 percent agreed or were not sure: Albania, Lithuania and Latvia. So you’re all going to say, ‘Well, so what, we knew that already.’ But of greater concern are the 11 countries where between 10 and 20 percent of judges either agreed or were not sure […] Which were those countries? Well, they included France, Italy, Poland, Spain and Sweden,” said Sir Geoffrey.
“One might think that if a judge is not sure that would be quite a problem in an area of this kind.”