Politicised lawyers

Who become politicised judges

David McGrogan says

I am a legal scholar and writer.

I was born and raised on Merseyside, and lived for the better part of a decade in Kanagawa Prefecture, in Japan, where I was a legal translator. I have a PhD in Law from the University of Liverpool, and I am currently Associate Professor of Law at Northumbria Law School.

He came to my attention because a friend sent me McGrogan’s Let’s politicise all the lawyers. This quite lengthy article was sparked by English High Court and Court of Appeal decisions about the Bell hotel in Epping, north-east London. The Bell hotel is used to accommodate asylum seekers while they wait for their asylum applications to be processed. Occupants of the hotel had committed offences (two sexual assaults and an arson – a QC friend of my early days in the law would joke that his knowledge of the criminal law was so abysmal he had thought the last was also a sexual offence).

Residents rose up to protest the use of the hotel in this way. Responding to this pressure, the Epping District Council applied for an injunction based on the allegation that the hotel needed planning approval because the asylum seeker housing use was outside the scope of the permitted use. On an application for an interim injunction pending the full hearing, the High Court judge granted the interim injunction. On appeal, the Court of Appeal said the High Court Judge was wrong using what McGrogan describes as “remarkably forthright language” in its criticism of the High Court judgment.

There are two things I took from McGrogan’s article to be especially relevant to New Zealand.

The first concerns University law schools and the complacency of Conservative politicians. McGrogan says, “Put simply, conservatives have been living in the comfortable burrows of the past, as conservatives are often wont to do; they are just now beginning to emerge, blinking like moles in the sunlight, to confront a very different reality,” having become “dimly aware that law appears to have become ‘politicised’” by the way lawyers have been educated.

“What Conservative politicians are really nowadays half-perceiving is that it actually matters how lawyers are educated… and that for decades law students have been educated in an essentially liberal-normative environment,” with the consequence that as “all judges (give or take) were once law students, this means that the judiciary has become steadily characterised by liberal normativity across time.” (He is, of course, using “liberal” not in its classical 18^th and 19^th century sense of individual rights, free markets, and limited government, but in the 20^th and 21^st century especially American opposite sense, of support for big government, control of markets, and subjugation of individual rights to the will of those who think they know better.)

Many of us here in New Zealand are like the British conservatives. We have complacently gone about our lives oblivious to the profound changes taking place around us. For many of us, it took the actions of the Ardern/Hipkins government to make us start thinking about the assault on the values of a free and democratic society which had been taking place for a long time without our noticing. Now that we have realised what has been happening, we have the misfortune of a government dominated by a National Party lacking in the vision and courage to take decisive action to reclaim the values we have lost.

And, specifically in relation to legal education, we are like the Tory politicians McGrogan refers to. We have not realised that for several decades New Zealand lawyers (and also many in other fields of education) have been educated in the latter-day “liberal” tradition, with special New Zealand characteristics elevating folklore and mythology to the status of law and extolling the belief that the supernatural is superior to knowledge derived from scientific enquiry.

The second of McGrogan’s many useful observations that is particularly applicable in New Zealand is a corollary to the one just discussed. McGrogan says: “law in a modern state is political and reflects political values, and the judiciary, university-educated like all the professions in the UK these days, is with a few exceptions liberal to its core.”

One obvious manifestation of the politicisation of the New Zealand judiciary is the unabashed embracing of decolonisation by some senior judges and, one suspects, by many others who have been more circumspect about their political leanings. This political “value” of decolonisation is the political underpinning for the throwing out of long-established law to make way for tikanga.

As for the legal profession, those who are supposed to represent the profession have added to their shameless attempts to force Te Ao Māori on lawyers through legislative change and compulsion. They have explicitly joined representatives of the judiciary in the Council of Legal Education to use regulations to legitimise forcing tikanga on law students. In this way they have used a law-making power to bolster those within legal academia who have already made it their mission to force law students to embrace a system

which are alien to the concept of law.

As Peter Watts KC has said, we have A Revolution in Aotearoa New Zealand, Welcome or Not.