Challenges to Government maintain our confidence in it
Lawyers who test the lawfulness of official action and advocate for their clients are doing us a favour, not a disservice
“Compliance” is derived from Old French and Latin roots meaning “to fulfil” or “to carry out.” Sometimes it’s right to carry out a command, and sometimes it’s not. Distinguishing between the two is often a matter of trust, as when the Government told us we should stay in our homes in response to the COVID pandemic. We trusted that this was a lawful order, and so we complied. That trust turned out to be misplaced for the first nine days of the March 2020 lockdown, when the Government had no legal authority for its command. We found this out because a public-spirited former public servant, Dr Andrew Borrowdale, took the Government to the High Court and then to the Court of Appeal, winning a declaration that New Zealanders’ rights had been unlawfully limited.
So it was alarming to read that senior lawyers have been enjoining their colleagues to be “careful” about challenging Government power during an emergency. Barrister Warren Pyke reports this from a recent NZ Bar Association conference where, he says, fingers were wagged at lawyers thought not to be sufficiently “careful”. But these challenges actually maintain our trust; far from undermining public confidence, they enhance it, giving us an assurance that power will be used rightly and that its holders will be accountable if it is not. That’s why the Court of Appeal in Borrowdale said that:
“the issues raised by the appeal engage matters of significant public importance. Dr Borrowdale and his counsel have provided an important service to the community by presenting the Court with the issues that we have addressed.”
As the pandemic ground on, the human rights infractions mounted. People wrongly denied release from MIQ, the MIQ lottery itself, the vaccine mandate for Police and the Defence Force—just some of the cases where the Bill of Rights Act was breached. As these infringements multiplied, it became ever more important that they were identified. Surely any Government, any of us in charge during such challenging times, would have made mistakes, so this isn’t necessarily to blame this particular Government. Instead it’s to argue that the inevitability of error means we rely on those with the requisite expertise and authority to rectify it. Pyke points out that:
“Lawyers have an obligation to uphold the rule of law, in the discharge of which lawyers are obliged to be independent of power (see s4 of the Lawyers and Conveyancers Act 2006, which affirms these as ‘fundamental obligations’)”.
And if the errors mount sufficiently high, of if they raise fundamental questions about competence, then perhaps those wielding power deserve any resulting loss of public confidence. Indeed, anyone revealing this would be doing us a favour, not an injury. As Pyke says, “legal challenges ought to be untroubling to governments in open societies which are served by an independent and professional judiciary.”
Compliance depends on trust, and trust depends on the system of which the Government is one part. Lawyers who abdicate their role in that system, even with the best of intentions, may find that they contribute not to public confidence in the Government but to suspicion, division, and non-compliance.
"... fingers were wagged at lawyers thought not to be sufficiently “careful” "
There will always be a few legal "professionals" who put partisan point scoring above integrity. Thanks for calling them out, Alex
Excellent