Select Committee on Constitution Minutes of Evidence

Examination of Witnesses (Questions 520 - 527)



  Q520  Lord Rowlands: And the Canadian experience?

  Dr Palmer: The Canadian experience, particularly in terms of constitutional questions, is much more extensive; in references being given to the Supreme Court of Canada, for example, to determine or declare what the constitutional conventions might be with respect to secession by Quebec, or similar sorts of things.

  Q521  Lord Rowlands: The territorial constitutional side?

  Dr Palmer: Yes.

  Q522  Lord Goodlad: The New Zealand Cabinet Manual contains guidance to Ministers on the proper limits of comments on judicial decisions. We have heard some conflicting evidence during this inquiry on revising this country's Ministerial Code to include similar guidance. Do you think that would be desirable?

  Dr Palmer: From a New Zealand point of view, I think it is very desirable that those rules are in the Cabinet Manual, but it should not be thought that the existence of the rules guarantee that the behaviour follows. The Cabinet Manual is interpreted by the Prime Minister rather than any court or any other body, so it is essentially interpreted politically; and if the political will is not there at the highest level to support the judiciary, then those rules would not be followed.

  Q523  Lord Goodlad: What has been the experience of their being followed or not followed?

  Dr Palmer: I would say that the experience has been mixed. There have been increasing instances of some negative comment by Ministers about courts and court decisions, which are clearly in breach of the manual; but I would suggest that it is better to have the statements there than not have them at all.

  Q524  Baroness O'Cathain: Do you know about our communications and the recent judicial communications set-up that we have here?

  Dr Palmer: I have heard something of it.

  Q525  Baroness O'Cathain: Which is supposed to take the steam out of off-the-cuff comments by Ministers on judges, about sentences, et cetera. So you do not really know what it is all about. I was wondering whether you had a similar sort of thing, to try to take the heat out of situations which might arise, if there is a ministerial comment which, despite the fact that you have your Cabinet Manual, could cause a bit of a ruckus with the judges.

  Dr Palmer: No, we really do not have a system that polices that, or that tries to limit it significantly.

  Q526  Baroness O'Cathain: Do you have a voracious media which hangs on every word that the judges say about sentencing, and take comments out of context?

  Dr Palmer: They can do, yes.

  Q527  Baroness O'Cathain: How do you deal with that?

  Dr Palmer: It is dealt with mainly as a matter of self-restraint between the branches of government. Usually it is for the Attorney General, who is a member of the Cabinet and possibly our equivalent to your Lord Chancellor—I am not sure—to defend the judiciary. The Attorney will do that to a greater or lesser extent, depending on the political circumstances of the time. If criticism gets too severe, then the Chief Justice herself may issue a statement; however, that would be fairly unusual. I suppose that at the moment the situation is simply reliant on goodwill.

  Chairman: With that, I think we have to stop, but I am most grateful to you. If you can give us any further evidence on how the capital-D dialogue works between the branches, that would be of very great interest to the Committee. Thank you very much indeed for coming.

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