Is the latest appointment to the Law Commission (of Val Sim from Crown Law, and till 2004 the Ministry of Justice) confirmation of a determined fightback by Mark Burton, against Sir Geoffrey Palmer’s takeover of justice policy – or is it the culmination of that policy? The Commission makeup seems calculated to help it win battles within the public service, but lose the intellectual authority to oblige any government to act.

Sir Geoffrey has secured fast-track procedures for his Commission’s recommendations, but Mark Burton’s appointments have ensured that an incoming government can safely reject them.

The Commission will now comprise the President (Sir Geoffrey) and Dr Warren Young (ex Ministry of Justice), Professor John Burrows QC (highly respected former Dean of the Law School at Canterbury), Ms Helen Aikman QC , Mr George Tanner QC (former Chief Parliamentary Counsel) and Val Sim.

I understand that Ms Sim was the author (or at least in charge of the author) of the Crown Law opinion on the Electoral Finance Bill. It is a pitiful piece of legal work, an advocacy opinion, written to help  a client defending the indefensible to claim an arguable case.

Advocacy opinions are common in ordinary legal work. Your job is to speak for the client, to say for them what they would say if they knew enough about the law. This is commonly misunderstood. Thus I did not blame my former Chapman Tripp colleague, Dr Ingram for the pathetic media acceptance of his thin whitewash of Taito Philip Field. He was acting on H Clark’s instructions. He was to report to her. His job was to do what she wanted, to make the best case he could without lying. 

But Crown Law’s role under section 7 (giving those opinions on Bills) was supposed to be independently adjudicative. They are charged with blowing the whistle so that Parliament knows whether it is about to legislate human rights breaches. For some time (since before, but certainly throughout Val Sim’s watch) they have been easily mocked irrelevancies.

Accordingly her appointment as a Law Commissioner is ridiculous. Perhaps it was a cruel Burton  riposte to some unreported Palmer jibe at Burton’s performance in Justice? Or perhaps Dr Warren Young and George Tanner and Sir Geoffrey are genuinely unaware of how lightweight the Commission looks, when the President is seen as a politician, and Prof Burrows is the only lawyer on it with an unequivocal high rating from other lawyers. George Tanner is respected as a dedicated law drafter.

I always tried to avoid judging the performance of government lawyers in their relationships with Select Committees, because one never knew their instructions. They might have privately disagreed with an impossible position their Minister tasked them to defend. One nevertheless formed views on ‘technical’ matters, like speed of comprehension, and cunning, and their ability to engender confidence.

On none of those measures could I see why Val Sim held her high rank within Justice. On the other hand Justice has been a poor Ministry for many years. It should have held ‘control department’ status like Treasury, holding other government agencies up to standard by the penetration of its analysis, and adherence to principle. With exceptions it simply did not have enough quality in its people to carry that off.

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