New job for Cullen will temper constitutional row

One could be forgiven for thinking that utu was being exercised when Prime Minister Helen Clark appointed Deputy Prime Minister Michael Cullen to replace Speaker Margaret Wilson as Attorney-General a month ago.

The Deputy Prime Minister had led the parliamentary charge against the Chief Justice's challenge to the "doctrine" of sovereignty of Parliament, and then to her attack on the Government's understanding of judicial independence.

The pair will no longer confine their debates to intellectual speeches and articles in law journals and conference speeches.

As Attorney-General, Cullen now carries the prime responsibility for the Government's relationship with the judiciary and he and Chief Justice Sian Elias will regularly meet face to face.

And while Clark may have enjoyed a quiet smile at the appointment, it was not utu. She knows - and the judiciary knows - she has offered it to her top-shelf minister and a match for the best of them, not just in terms of intellect but interest in their job.

There is little doubt that if Cullen had chosen law as a career, he could have been on the bench today.

And the judiciary should know that if it convinces the powerful Cullen of any case it puts for, say, extra resources, it need convince no one else.

Cullen made his first introductions to the Wellington-based judiciary during a lunch with the Court of Appeal and a reception hosted by Elias on Tuesday last week with the Supreme Court.

The bad news for those who have enjoyed the contest is that the frisson may be somewhat diminished. Cullen plans to be an ardent advocate and protector of the judiciary, particularly against political attacks on their decisions, which, he says, has worsened under the populist approaches of MMP.

"Traditionally the role of the Attorney-General is to defend the independence of judges and I certainly have every intention of doing so," he said in an interview with the Herald after a month in the job.

Parliamentarians had to be extremely careful about criticism. Such attacks detracted from the independence of the judiciary and invited a move towards a more arbitrary application of the law under political influence.

"Anybody who has their head screwed on right should be opposed to that, given all the experiences of that last century in any number of countries.

"Why would we throw away something as precious as that for the sake of a political whim?"

Where Cullen disagrees with Elias is not on the value of promoting judicial independence as a public good but in the ways it can be threatened. She argues that administrative independence is inextricably bound up with judicial independence - that the judiciary should be self-managed and not beholden to a ministry beholden to a minister.

Cullen says he is not convinced. "We'll talk about that."

His view is that self-management would expose the judiciary to greater political attacks instead of either the Attorney-General, the Finance Minister or Justice Minister copping it.

Cullen has defended Clark's reputation over Elias' claims that Clark had a profound lack of understanding of the importance of judicial independence.

But the quite separate debate he clearly relishes more is that over the sovereignty of Parliament - the corollary being that the courts do not have the power to declare legislation invalid. It has never been tested in New Zealand or, as Elias puts it, "we have never exercised judicial review of legislation".

Cullen is happy to continue that debate "in some form or other". And it may well be a response to the latest heavy-hitting volley, a speech to the Centre for Public Law given by former Court of Appeal president Lord Robin Cooke, titled The Myth of Sovereignty. He said: "The 'sovereignty of Parliament' is a catchphrase beloved by some sections of the media and some politicians; incongruously it got into the Supreme Court Act. But it does not survive in-depth analysis."

He said that while Parliament had vast powers, they could not be asserted to be unlimited. "If an act of Parliament purported to disestablish the judiciary, replacing the judges with security of tenure by a hierarchy of administrative tribunals holding office at ministerial pleasure, it is at best doubtful whether the courts would enforce it," he said.

Cullen was not aware of the speech until handed a copy. And gazing over its first page he was provoked by Lord Cooke's reference to Sir Edward Coke (pronounced Cooke), an eminent lawyer, parliamentarian, Speaker, attorney-general and chief justice in 17th-century England, who argued (and ruled) for the supremacy of the common law over royal proclamations he considered contrary to it.

As an English history specialist, it is not surprising Cullen has a firm view of Lord Cooke's "homonymic predecessor": "Sir Edward Coke, one has to say, a great 17th-century chief justice, started the great habit of inventing judicial history and constitutional history and pronouncing it to be the settled law of the land."

Cullen says that his debate with the judiciary is sometimes wrongly interpreted as a low-level spat about some individual decision. "It wasn't. It was actually a reasonably civilised discussion about some very important constitutional principles."

He accepts that in the interests of stability, it is important to have a settled relationship with the judiciary. But he dismisses any suggestion that the differences got to a point where it was unacceptably unsettled. "Not even close to it."

Cullen says he is still getting used to the job, but he loves dealing with legal issues. "Always have done in the past." Asked if he has plans for reform, he says his approach to the job will "reflect his constitutional conservatism. I wouldn't see myself necessarily as doing this job very long term", he says, a reference to the convention that a lawyer has traditionally filled the role.

Cullen is not a lawyer and the last Attorney-General who was not a lawyer was in the 1930s. Experienced barrister and Napier MP Russell Fairbrother has been appointed his parliamentary private secretary to give him extra advice besides that from the adviser on secondment from the Parliamentary Counsel Office, and the weekly meetings he will have with the Solicitor-General, Terence Arnold.

Cullen has already made his first judicial appointment, elevating Graeme Colgan to Chief Judge of the Employment Court, apparently non-controversial.

He has also agreed to introduce legislation to expand the Court of Appeal to eight judges at the court's request, so it can sit in Auckland and Wellington simultaneously.

So far, so good. It is important, he agrees, for him and Elias to have a good relationship, "and I have no doubt we will".

"We are both intelligent, civilised people."

Attorney-General

Is the principal legal adviser to the Government which, in practice, is tendered by the Solicitor General.

Is expected to disregard partisan advantage in exercising his duties.

Is responsible for all legal proceedings involving the Crown, which are generally handled by Crown Law Office.

Is responsible for Crown Law, Serious Fraud Office and Parliamentary Counsel Offices (law drafters).

Appoints judges and has prime responsibility for the Government's relationship with the judiciary.