New Zealand’s Supreme Court is playing a foolish game of politics

If you are still trying to come to grips with our Supreme Court’s delicate relation with the politics of Scottish independence, spare a thought for the people of New Zealand. Their courts have just dived headfirst into the political pool with no such hesitation as affects our justices. The result is not encouraging.

Three years ago, numerous schoolchildren in New Zealand took part in a series of Greta Thunberg-inspired school strikes. Shortly after that, a youth organisation called Make it 16 was formed to agitate for a voting age of 16 rather than 18. Its argument was that if youngsters are likely to be affected by such matters as climate change, they should get a formal say in dealing with them.

For a time the organisation was regarded with the scepticism generally due to earnest but slightly silly youth movements. But matters became serious when Make it 16 turned to litigation. The New Zealand Bill of Rights 1990 is a domestic statute a bit like our Human Rights Act 1998; one of its provisions gives everyone over 16 the right to be free from discrimination on the grounds of (among other things) age, unless 'demonstrably justified in a free and democratic society'. Supporters of Make it 16 claimed that denying under-18s the vote unjustifiably discriminated against them, unless the government formally proved it had objectively justifiable reasons for its decision.

Having initially lost, the organisation won on appeal. This was despite the fact the legislation dealt specifically with the right to vote by guaranteeing it to all over-18s – marking a clear cut off between youth and adulthood. No matter: on Monday, the Supreme Court of New Zealand solemnly made a declaration that until parliament changed the law the fundamental human rights of those aged 16 and 17 were being infringed.

You may or may not like the idea of votes at 16, even though it is hard to avoid seeing something odd in affirming the fitness of impressionable schoolchildren to choose what is right for their country while denying their ability to decide what is good for themselves by buying a beer. But whatever your view, the willingness of a court to enter realms like this – and it is a willingness, since the open-textured nature of the legislation meant the decision was in no way forced – should worry us deeply.

True, New Zealand judges thankfully cannot force the hand of their parliament any more than ours can. But that is beside the point. The mere potential of courts and parliament heading for a collision on matters of enormous social and political controversy is not good for politics.

Dragging the courts into politics like this obscures a major difference between law and politics. The New Zealand courts saw the issue of votes at 16 very much as a matter of a Chancery judge sifting the testimony before him. Not only did they solemnly quote from a report by the country’s Children’s Commissioner, but they actually received expert evidence from a senior lecture in social policy. Yet for all the calls we hear for government according to the science, the point of a democracy is that politics should be, at bottom, a matter not only of evidence but instinct. However many facts you give an elected body, there is nothing wrong in its members choosing to ignore it and following their own, or their electors’, emotions.

What will happen now? There is one small crumb of comfort. Although Labour premier Jacinda Ardern has predictably come out in support of Make it 16, the smart money is on the House of Representatives refusing her the supermajority necessary to change national electoral law (though it may be different with municipal election law, which is not entrenched). Anyone who values democratic over technocratic government needs to welcome this.

What about us? For the moment we can afford to be (a bit) smug: we have no Bill of Rights generally forbidding discrimination, and our courts would probably be more circumspect in intervening on hot-button political issues like this. Nevertheless we need to stay vigilant. Here, the European Convention on Human Rights protects the right to vote. In the future, it is perfectly conceivable that the Strasbourg court, which, after all, regards the Convention as a living instrument to be developed in accordance with social pressures, could start investigating voting ages. There would be a particular danger of this happening were large numbers of other European countries to begin reducing the age from 18. The Strasbourg court has a disconcerting habit of demanding that the holdouts fall into line. If it did so when it came to lowering the voting age, the UK government – unlike New Zealand's – could find itself in hot water; it could face claims that, if it did not knuckle under to Strasbourg, it was in breach of international law. Our democratic right to set the limits of our own democracy is not necessarily as safe as we think.