Gordon McLauchlan: Lawyers cry with colonial cringe

The Government is preparing to pull New Zealand out of its Ice Age association with Britain's Privy Council and set up a Supreme Court of our own. Which seemed, at first, a matter of no consequence to me.

I'd be pushed to pay a hirsute Glen Innes shop-front lawyer in shorts and sandals to help me in our own courts, let alone afford to push on for a better deal to the heavies in London.

But, anyway, in no other aspect of our lives do we defer to Britain any more. We make our own ass - sorry, our own law - and have our own justice system to attend to it.

The Privy Council becomes involved only when some organisation or person with huge amounts of money wants it to count the number of torts on the point of a needle.

We produce our own brain surgeons, physicists, engineers, writers, painters and some good used-car dealers as well. If they have some better ones in the United States, it's mainly because they buy them in from all over the world, including New Zealand.

What's so holy about lawyers? I know, I know, all the great legal brains out there are harrumphing that this is beyond my capacity to judge, as a layman, but I call John Mortimer to my defence: "No brilliance is needed in the law. Nothing but common sense, and relatively clean fingernails."

With Auckland lawyers hurtling off in their 4WDs to lifestyle blocks, clean fingernails might be the hard part.

In Britain and Australia, they have many more lawyers to choose their judges from, but they have proportionately many more judges to choose.

We're not going to need many for a Supreme Court and they can be the top of the crop. The judges from New Zealand who have been on the Privy Council, especially Lord Cooke, have acquitted themselves extraordinarily well.

Yet reading reports of lawyers appearing before Parliament's justice and law reform select committee, I get the feeling lawyers don't trust themselves or their own - any more, perhaps, than anyone else does. They are all crying with colonial cringe.

Such is their self-doubt, they don't seem to think the Government can find enough fair judges, who are, of course, elevated from their ranks. The claim is that two judgments from our Court of Appeal were rejected for not being fair by the Privy Council.

Well, if we had an Appeal Court and then a Supreme Court with not too heavy a workload, maybe fairness would have been established indigenously.

I have not the slightest doubt the Privy Council has made both fatuous and unfair decisions in its time. It's part of the essential human condition.

Then there's a claim that the pool of lawyers is too small here to guarantee political impartiality. Considering that judges here are chosen in the same way as they are in Britain and Australia - by politicians with the same information on the appointee's background - why should the Cabinet here be more partial than in the other countries?

In fact, if we look at the record - the tradition if you like - New Zealand has been marvellously free of the taint of political patronage in choosing judges. If a danger exists, why should it be greater here? Is there a guarantee of no interference across the Tasman? You have to be joking.

Auckland lawyer Gregory Thwaite was asked by the select committee how he felt emboldened to give evidence against the new Supreme Court when other lawyers who also opposed the legislation privately feared for their careers if they spoke up.

He said he kept a practising certificate in California as insurance. Kind of melodramatic, don't you think? Maybe he could go back to the cast of LA Law.

You see, I asked around and the only reason I could extract from the profession for lawyers to be fearful for their careers by speaking up on this issue of vital importance to the structure of our legal system is this: they may want to be judges one day and politicians may remember their opposition to the proposed legislation.

So, hardly sinister. Are these legal eagles really legal chickens, disguised in fancy finery? How would that excuse sound in a court of law?

Retired Court of Appeal judge Ted Thomas QC said 0.56 per cent of the more than 560 cases considered annually by his former court were taken to the Privy Council on appeal, and the cost of doing so made it the prerogative of the wealthy.

"So, M'Lud, what does all this gown-tugging and wig-wobbling mean to the average punter?"

"Stuff all."

"Thank you, M'Lud."

In the end our justice is our business, set within our culture. The legal profession is deeply conservative.

Oliver Wendell Holmes wrote: "Judges commonly are elderly men, and are more likely to hate at sight any analysis to which they are not accustomed, and which disturbs the repose of mind, than to fall in love with novelties."

On the other hand, another American, Henry Ward Beecher, wrote: "Law and institutions are constantly tending to gravitate. Like clocks, they must be occasionally cleansed, and wound up, and set to true time."

The main problem, it seems to me, is the adjustment to a new system. Maybe we could hire a respected retired judge from Britain or Australia to sit on the court for a couple of years to help set the clock to true time.