Editorial: Judges will be under microscope

The final reading of the Supreme Court Bill in Parliament yesterday might have sounded like the last word on the constitution of the court that will hold ultimate judicial power in this country. It is by no means the last word; it was merely the last opportunity to make this legislation subject to approval in a popular referendum. There could yet be a referendum, especially if the parties who have backed a petition for one find themselves in power in 2005. But by then the court created by this Government will have been in existence for at least a year and a referendum is more likely to amend its constitution than to remove it entirely.

In a gradual, haphazard fashion, the country will get the kind of court it desires. The pity about the Government's refusal to hold a referendum now is that the new court could have been vastly improved by deference to public opinion at the outset. Those such as the country's most eminent retired judge, Lord Cooke of Thorndon, who believed the subject too difficult for the ordinary voter have ensured the court an unfortunate birth. It passed yesterday on the votes of only the Government and the Greens. The highest court of any democratic country needs to command bipartisan respect. This one starts under a cloud of suspicion that it will be stacked with judges of Labour's persuasion, particularly on social policy and employment issues, and designed to entrench those views and values once this Government has gone.

In time the court may prove that suspicion unfounded, but how much better it would be if the court had no need to prove anything of the sort. It could have begun life with the backing of a popular referendum. For had it been born in that fashion it almost certainly would have been constituted in a different way. The debate would have ensured that the method of appointing the members of the court received much more critical public scrutiny than it has so far.

Quite likely the Government would never have dared put its method of appointment to a referendum. It would have devised a more respectable proposal at the outset. Instead, the court is to start with judges appointed by the Attorney-General, Margaret Wilson, on the advice of Chief Justice Dame Sian Elias, who will be on the court, the Solicitor-General, Terence Arnold, QC, and a non-lawyer, former Governor-General Sir Paul Reeves.

On the evidence of the Herald-DigiPoll survey published yesterday, the public has a reasonable degree of confidence in the panel. Just over 46 per cent supported the method of selection, against 35.4 per cent who did not. But almost the same proportion, 46.4 per cent, did not believe the appointment should be made by the Attorney-General, a member of the Government. That last figure exceeds the number who lack confidence in the incumbent, Ms Wilson. It suggests that people would simply prefer that politicians, whoever they might be, were kept at a greater distance from judicial appointments.

A system allowing appointments by the Attorney-General may not have mattered much when the country's ultimate judicial authority was Britain's Privy Council, but it will not do once judicial power is repatriated.

A Supreme Court consisting of judges selected by, say, a commission of senior judges could well have found approval at a referendum. There are various ways a selection panel could itself be selected at arm's length from political influence. Some such constitution for the Supreme Court could well be adopted in the near future - by referendum.

In the meantime, it will fall to the news media to scrutinise Supreme Court appointments in a manner that judges in this country have never known. The influence these appointees could exert on our lives and rights cannot allow them to be installed without critical examination. This newspaper will ensure that each will receive our most careful and searching attention. The court will be no place for judges with a thin skin.