Ours is an organic constitution. As we grow and mature as a society, so the rights and responsibilities we call ‘constitutional’ grow and mature. But in doing that they remain anchored to certain constitutional pillars. Magna Carta is one of those.
Measured narrowly in terms of its operative reach (clause 29 alone applies in New Zealand today), or in terms of the practical impact it has had when raised in Court (very little), it is tempting to conclude, as Justice Lugg did in his fictitious Rex v Haddock judgment in AP Herbert’s ‘Uncommon Law’, that “so little of Magna Carta is left that nothing of Magna Carta is left”. But that overlooks what Lord Sumption recently termed the “symbolic significance” of Magna Carta. Magna Carta, he said, “stands for the rule of law”. And that is central to the justice system we know today.
Seen in this way Magna Carta reinforces to me, in 21st century New Zealand, that ours is a society that is governed by and under the law. A society in which any person should be able to enforce their legal rights against another, the State included. In short, and to quote clause 29 of Magna Carta, that it remains fundamental today that “We will sell to no man, we will not deny or defer to any man either justice or right”.
But without more, such fine sentiments ring hollow. For Magna Carta to remain the New Zealand constitutional pillar I suggest it is, we need to confront and meaningfully to respond to our growing access to justice problems.
Putting to one side problems with legal aid, and focusing on the public law world I am most familiar with, our access to justice problems include the steady march upwards of Court filing, scheduling and hearing fees (recent percentage increases are higher than inflation); rising prices for legal services (up 3.6% in the year to 31 March); and legal costs exposures in excess of $20,000 (our median income is currently $31,200) for losing a non-complex one-day judicial review. In an age where regulations and regulators proliferate, in number in complexity and in the impact their actions have, judicial review is more relevant than ever. But its costs rule it out as an option for the vast majority of individuals, community groups and (small) businesses who need it.
That is a problem whose resolution does not lie simply in us shouldering more pro bono work. The overheads of legal practice continue their own upward march. We must also be careful to ensure that the depth of our access to justice problems, and the urgency of our need to fix them, is not obscured by a search for ‘untapped’ pro bono capacity. At best that will not address the root causes, including growing inequality.
I don’t pretend to have the answers. But I do know that we need to have a meaningful conversation about how we are going to address these problems. In doing that we should ask ourselves, as an ever maturing society, what is the ‘good life’ we want our organic constitution to reflect? How does that translate into access to justice measures? What role should a ‘user pays’ philosophy perform in ‘rationing’ justice? And should that philosophy apply in an indiscriminate way to all (civil) proceedings?
On the last point, my personal view is that a separate costs regime is justified for judicial review, recognising the central role and function it performs as a rule of law mechanism. Such a regime would provide for successful applicants to have their legal costs on a (reasonable) indemnity basis, so they were not out of pocket from having to go to Court to hold the State to the law. Unsuccessful applicants would be exposed to lower costs awards (potentially capped), which could be further reduced if the Court accepted their unsuccessful claim was reasonably arguable and appropriately brought. Clear provision would also be made for pre-emptive or protective costs orders.
The “symbolic significance” of Magna Carta would inform the consideration of practical access to justice measures like these; something which needs to take place in the context of the broader constitutional conversation I have suggested. In doing that Magna Carta will continue to be far from an “archaic curiosity”, as Sir Owen Woodhouse recognised in a 1979 lecture which remains relevant to our 21st century.
Mr Smith was admitted in June 2007 and worked as a Judges’ Clerk at the Wellington High Court and as a junior barrister at Stout Street Chambers in Wellington. In 2009 he completed an LLM at Harvard Law School, where he was a Frank Knox Fellow. On his return to New Zealand he worked as a solicitor for Russell McVeagh before becoming a barrister sole in 2011. He is the author of New Zealand Judicial Review Handbook (Thomson Reuters, 2011) and a number of published legal articles.