Jock Anderson

The death in Wellington this week of Lord Cooke of Thorndon, New Zealand’s most decorated and highest-ranking judge, will focus the spotlight once again on a jurist regarded by some as this country’s Father of Judicial Activism.

Those who see him in that light are not necessarily being complimentary.

Lord Cooke is said to have been disliked by Prime Minister’s Jim Bolger and David Lange.

One story goes that Mr Bolger would fly into a fury at the very mention of Cooke’s name and couldn’t wait to bundle him off to the House of Lords.

And Mr Lange, a lawyer expected to wrap up an evening of Cooke-worship at a law conference with suitably fore-lock tugging remarks, instead drew proceedings to a close by alerting the assembled where to get their laundry and collect messages.

Robin Cooke, 80, had a distinguished legal career spanning more than fifty years.

He was knighted, given the Order of New Zealand, sat on the Court of Appeal for 20 years – ten as its president, made a Lord by the Queen and was a member of the Appellate Committee of the House of Lords.

When he retired in 2001 he was the longest serving member of the Judicial Committee of the Privy Council having sat in more than a hundred cases. He served on Hong Kong’s Court of Final Appeal and was president of the Samoan Court of Appeal.

He was seen by some as an intellectual elitist, a man who gleefully seized on what, in the 1980s and 1990s, were widely regarded as stupidly worded and ill-defined laws so that he could practice his own brand of activism.

Having been a long serving member of the Privy Council he took an active role in retirement in pushing New Zealand towards the establishment of its own final appellate court – the Supreme Court.

In an interview with The Listener in 2003 the man who preferred cricket and The Times crossword, said it was no longer creditable to submit New Zealand cases to a court far off, not versed in New Zealand law. He said New Zealand needed judges soaked in New Zealand law, not judges soaked in English law “who may acquire a smattering of New Zealand law as they go along.”

Lord Cooke favoured bringing overseas judges onto the Supreme Court, a kind of “halfway house” option some legal minds objected to and which may have helped tip the balance in favour of an all-New Zealand Supreme Court.

He particularly liked the idea of bringing in Canadian judges who he believed could be helpful on Maori matters because they had dealt with cases about Inuits and Indian tribes and were also impressive judges on human rights.

Lawyer and former Act MP and justice spokesman Stephen Franks – a member of the parliamentary select committee that considered submissions on the Supreme Court establishment - crossed swords with Lord Cooke several times and recalled how, in his view, the judge started the ball rolling over the so-called principles of the Treaty of Waitangi debate.

Acording to Mr Franks, Lord Cooke seized on references to the so-called but undefined principles in the State Owned Enterprises Act when grappling with the troublesome Coal Corp case.

According to Mr Franks the State Owned Enterprises Act gave the courts their head “because that’s where the so-called Treaty principles got an airing.” The Government was trying to get Coal Corp out of strife and David Lange promised Tainui negotiator Sir Robert Mahuta he would include the principles reference without proper reference back to his officials.

The end result, according to Mr Franks, was badly worded law and the courts “ran away with it.”

[The Treaty principles debate continues to rage, with a New Zealand First member’s Bill to delete reference to the so-called principles from all legislation now before parliament’s justice and electoral select committee for submissions.]

“Cooke believed firmly that wise judges should make new law and he campaigned very openly for judicial activism,” Mr Franks says. He says politicians in the 1980s and 1990s, by writing slogan law instead of good law, were deliberately inviting judges to start law making.

“The courts were starting to cause ripples and judges thought they were on a noble mission to sort out and curb the disreputable, selfish and unpleasant views of the people.”

He thinks Lord Cooke was eloquent, learned and well meaning but the directions he tried to take the law were misguided.

 “What happens when intelligent, well-meaning, energetic people become judges is that they can become frustrated at just applying law or trying to be predictable and they want to change the law.”

He says Lord Cooke fitted the agenda of a lot of enthusiasts who were deeply suspicious of democracy.

According to Mr Franks Lord Cooke’s views became unpopular because of their unpredictability. He says Lord Cooke down-valued and degraded certainty in the law because he had a view that he was able to see better than most people what he thought a result should be.

“I disagree with his view of the proper role of judges. The proper role of judges in a parliamentary democracy is to apply the law consistently and to maximize certainty. He saw judges having a higher role or correcting the errors of previous judgments and ameliorating the worst stupidities of parliament… He was much more excited by making the law and got bored applying it.”

He says the law should allow parties to know what they law is so they can make their own decisions instead of the law changing to try to accommodate the parties. “That more important than clever people trying to do what they think is best.”

When Lord Cooke made his Supreme Court submissions to the parliamentary committee Mr Franks sat on the jurist made no secret of his view that wise judges had a big role to play in curbing the excesses of democrats.

“He was filled with horror at the idea of what people would produce if they weren’t curbed by judges.”

‘It was an elitist view and I strongly disagreed with it but I am glad he gave vent to it, all the same,” Mr Franks says.

Footnote: A few years ago, when I sought an interview with Robin Cooke on some legal issue or other, I telephoned his home. He answered the telephone himself. I asked if I was speaking to Sir Robin Cooke.

There was a few seconds pause before he replied: “Lord Cooke…” The request for an interview was abruptly declined as “inappropriate.”