John Armstrong: The court of public opinion

The last-minute opposition to severing the rights of appeal to the Privy Council in London seems to be snowballing.

But the growing resistance from big business, among some Maori and within the legal profession to this significant constitutional change is still of insufficient mass and momentum to prompt a u-turn by the Government.

Even if that resistance was much stronger, it would make little difference. The establishment of a Supreme Court as the final and local court of last resort is something this Government is determined to push through.

To that end, the Prime Minister conducted a lengthy softening-up exercise to get people to adjust slowly to the inevitability of this change.

However, opposition to the proposal has become more focused and vocal now that enabling legislation is in front of a select committee and MPs are hearing public submissions.

Cabinet ministers see the chorus of disapproval as coming from predictable quarters, and overwhelming public indifference to this reform means the Government can easily ride this one out.

The only question now is whether Attorney-General Margaret Wilson, whose job it is to implement the shift to New Zealand of the final court of appeal, will rectify some of the perceived defects in her Supreme Court Bill to ease its passage through Parliament.

As politicians are fond of reminding themselves, it is advisable to learn how to count when you are running a minority government. And when it comes to passing the Supreme Court Bill into law, the Attorney-General seems to have the numbers.

With National, New Zealand First and Act opposed to abolishing appeal rights to the Law Lords, she needs the support of either United Future or the Greens. She may well get both, especially if she agrees to modify the bill.

Officially, both minor parties are reserving their positions while Parliament's justice and electoral committee hears public submissions.

The Greens will be guided by what Maori think. However, Maoridom is divided. A clearer picture may emerge from a select committee meeting in Rotorua early next month to gauge Maori opinion.

Even then, the Greens, who put a priority on cutting apron strings with Britain, are unlikely to block the Supreme Court Bill or insist the Government make alterations to it.

United Future is more equivocal. It seems to be leaning in Wilson's favour, but support may be conditional on her agreeing that overseas judges be co-opted on to the five-strong Supreme Court bench - a move that would allay business concern about the loss of judicial expertise.

The Greens are also keen on an overseas panel to tap into wider legal expertise.

Wilson is open to the concept, but warns there are practical difficulties, particularly regarding availability of jurists from Commonwealth countries.

She says it would be incumbent on the select committee to come up with a credible solution to those difficulties were it to make such a recommendation.

The other major gripe with the proposed Supreme Court centres on the way judges will be appointed.

This will be done on the Cabinet's advice to the Governor-General following recommendations from a three-person panel comprising the Chief Justice, the Solicitor-General and former Governor-General Sir Paul Reeves, which, in turn, will follow consultation with interested parties such as the Law Society, the Bar Association and Maori.

Noting Wilson's track record of appointments to such bodies as the Human Rights Commission, critics say this gives Labour an opportunity to stack the bench with liberal-leaning judges who will set the tone of decisions by the final court of appeal for the next decade.

Such "politicisation" of the judiciary frightens elements of the business community, which is worried by the potential for pro-trade union precedents in employment law rulings.

The politicisation argument is reinforced by the requirement for one of the judges to be well-versed in tikanga Maori (customs).

The message from the Beehive, however, is that the first selection of Supreme Court judges will largely be from the next tier down, the Court of Appeal, which contains judges appointed during the time of the last National Government.

Wilson is hinting as much, but she will not confirm it as that would be seen to be pre-empting the selection process - the very crime her critics are already accusing her of committing in advance.

Such "trust us" soothing noises may help counter a new threat to Wilson's bill - demands for a referendum on the axing of appeal rights to the Privy Council.

Arguing that the constitution is the property of the people, not politicians, Act's Stephen Franks, a top commercial lawyer, will try to amend the Supreme Court Bill to defer the court's establishment until it is approved by a two-thirds majority in a referendum.

Labour has five MPs out of 11 on the select committee. National, New Zealand First and Act have four members. United Future and the Greens hold the two remaining slots - and the casting votes.

Along with United Future's uncertain vote, Franks also needs the backing of the Greens. But the Greens are not convinced a referendum should be held on such a complex matter.

The fallback option is a citizens-initiated referendum. Winston Peters will host a meeting next week to try to get cross-party co-ordination for the mammoth task of collecting the 200,000-plus signatures needed to force such a poll.

The effort may well founder on public apathy. It will definitely be an uphill struggle to collect sufficient signatures before the bill passes into law. And even if that is achieved in time, the subsequent timing of what would, anyway, be a non-binding referendum would be at the Government's discretion.

A referendum is the last thing the Government wants.

It might win one easily. The risk is that it might win only narrowly on a low turnout, or it might even lose.

Either way, the standing of the highest court in the land would be undermined before it had even begun to walk.