The issue in the Supreme Court’s suppression of evidence in the David Bain trial is not whether there were words on the tape or not. It is that the court found that the law does not trust a jury to make a wise decision.
The logic of that distrust is to abolish juries. After all, they are a medieval hangover. Judgment by one’s peers is not just a legal fiction but an actual fiction. Juries are unrepresentative.
But are lay people actually incapable of wise decisions? After all, they are trusted with the vote.
Politicians, like judges, have their doubts. They deeply distrust referendums. But politicians themselves are laypeople (mostly), seldom experts in the matters on which they make policy and law. They hear the evidence and make decisions.
This mostly works. People grumble about specifics but broadly accept the validity of government and parliamentary action.
But sometimes it doesn’t work, as when a government drives through a law on a bare majority of MPs when there are deep public divisions or perplexity.
Thus, for example, the government scrabbled a thin majority for its emissions trading scheme for which there was not solid and broad public and interest-group backing.
So, no surprise, the new government is rehashing that law. That raises the spectre of a seesaw in an important area of policy with critical foreign policy and trade implications, as National and Labour go in and out of power.
An alternative option, tried overseas, would be to assemble elected or randomly selected people to hear evidence exhaustively and reach consensus, either as a “citizens assembly” or a “citizens jury”. The last government edged towards a version of this for electoral finance law as it was going out of office. The new government canned it.
A more structured version is to assemble peak organisations, maybe with politicians and top public servants, to nut out an agreement by give-and-take — each recognising there is a national interest bigger than their individual interests and that their interests are served by certainty and durability. The groups are barred from direct special pleading to ministers.
Nordic countries use this on some big policy issues. It is a sort of super-jury.
Environment Minister Nick Smith is backing a version of this super-jury to seek a durable policy on water. That reflects advice from Guy Salmon, environmental activist and former ministerial adviser and National candidate, who has studied the Nordic techniques.
Around 95 per cent of the water that falls on this country goes unused. That sounds like a vast untapped resource — and water is arguably our strongest economic comparative advantage. Actually, we are running short because of bad policy.
Water is a big policy headache, the sort that makes a government many enemies and few friends. It is an economic, social, health, recreational, heritage, iwi and ethical issue — and an environmental one and an ideological one and one involving a substance vital to human existence.
Helen Clark’s government could not produce even a contentious policy. It had a “water programme of action” but it turned into a stagnant pond of inaction.
The result is that most catchments will be fully allocated or over-allocated by 2012. Worse, water is allocated and used inefficiently and waterways are degraded. Farmers have the vast majority of the allocated water. Regional councils do the allocation on a first-in-first-served basis that pays little or no attention to competing interests and the national interest.
One time-honoured way to “fix” such a big policy conundrum is for the government to listen to vested interests, take advice from public servants and consultants, and arbitrate.
But on an issue as contentious as water the resultant policy is likely to be unstable, as climate change policy is.
So Smith has turned to the Land and Water Forum, an unofficial grouping of those with an interest in water, ranging from conservationists to farmers and hydro-electricity generators.
Over a year at roundtables the groups are to hear other’s demands, needs, rationales and calculations, then give-and-take their way to an agreed process for allocating and using water.
That might involve a mix of administrative regulation and allocation (for example, to ensure water is available for recreational and cultural purposes as well as economic and drinking uses) and trading of use rights so it is used most efficiently. It might also involve a mix of regulation and permit trading to clean up waterways fouled by farmers and industry.
Even if this is the broad outcome, there is scope for standoffs on detail, including big detail. Getting a give-and-take agreement the government can implement will be an extraordinary feat, if it comes off. Even then it will need wider public acceptance.
But if it succeeds Smith may find he has written a significant new chapter in our constitution — which might then be a lesson for the lawyers in respect for public wisdom.