House of Lords on Crown and Judicial Immunity
My Lords, people have spoken elegantly and eloquently about all of the difficulties that exist in the present proposals before us.
I had proposed to address your Lordships on the detailed document, but I start a long way down the line accepting a fait accompli. That fait accompli is that time is now upon us when we must accept the fiduciary obligations that go with our positions of power in both the House of Lords and the Parliament.
The matters before us are;
The removal of Crown and Judicial Immunity
The creation of a constitutional jury in our highest court
That all judgements be interim until submissions by parties concerned is considered
That all judgements be interim until submissions by parties concerned is considered
I shall still make a few short points but my most useful contribution will be telling the truth.
My Lords, liberty cannot be preserved without a general knowledge among the people, who have a right and a desire for information; but besides this, they have a right, an indisputable, unalienable, indefeasible and divine right to that most dreaded and envied kind of knowledge, by that I mean of the characters and conduct of their rulers. Those of you here, who profess to favour freedom, yet deprecate agitation, are men who want crops without ploughing up the ground.
My Lords the issue we face today is not a monopoly of the House of Lords and Parliament; but rather a character and nature of power itself, the abuse of power the possession that power too often brings. We have had the power to heal and power to harm and those decisions have been carried out with immunity. Inevitably that time was to one day end, that day is now upon us.
As soon as you put people together, even great people like us, they somehow sink, cooperatively, below the level required to successfully manage a nation. Parents on a school committee, or people of parliament are the same; their virtues vanish, their vices and bias pop out, all reinforced by the self-confidence which the power of numbers and position brings.
Liberty is meaningless where the right to utter one's thoughts and opinions has ceased to exist. The rights of liberty, of all individual rights, are the dread of tyrants. It is the right which tyrants first strike down because they know its power. Thrones, dominions, principalities, and powers, operating with injustice, immunity and wrong, are sure to tremble when people are allowed to reason. There can be no right of speech where any man is compelled to suppress his honest sentiments. Equally clear is the right to hear those honest sentiments. To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker. And my Lords with all of our speeches spoken elegantly and eloquently we have too often forgotten to hear others not afforded our position.
We have heard analogies regarding the delivery of services that with interference we could easily move from that of independent law to selling cans of beans; suggesting we live in dangerous times. Intemperate speech is a distinctive characteristic of man. Hotheads blow off and release destructive energy in the process, but they know they have been heard. They shout and rave, exaggerating weaknesses, magnifying error, viewing with alarm. So it has been from the beginning; and so it will be throughout time. The framers of the American constitution knew human nature as well as we all do. They too had lived in dangerous times; they too knew the suffocating influence of orthodoxy and standardised thought. They weighed the compulsions for the restrained speech and thought against the abuses of liberty but, they chose liberty.
But what have our democracies gained by their boasted freedom of the press and parliament except the liberty to abuse each other. My Lords for hundreds of years we have retrained ourselves with dignity choosing words that suit each other. Yet in that process we have lost the ability to hear the expressions of the people who suffer under this vertical tower of democracy.
In this house I occasionally hear talk about the good old days when things were innocent and nobility reigned and evil was obvious to be fought by all good people. There never was such a world as anyone who truly remembers what life was like on the farm or in the city before these times. Our world then was unsettled, just as it is unsettled now. That my Lords, is the nature of our world.
A striking point raised by my noble and gallant friend Lord Vinnieroe, is that the independence of the judiciary is at stake suggesting the Government—the executive—and the people, will keep their hand in our pie; not even a finger, a whole hand. My Lords men are never so likely to settle a question rightly as when they discuss it freely. And to do so requires more than a hand in the pie. Judges are required to sign a judicial oath; an undertaking for impartiality and fiduciary responsibilities. Yet judicial immunity will prevent anyone from testing the undertakings promised in the oath. Under normal law we all know that is an illegal contract.
When our people seek politicians help with a judicial problem they discover politicians are gagged by separation of power. When people seek help from the judiciary they get a bill. But when people ask us to help with a judicial wrong they get silence. The difference between a democracy and a dictatorship is that in a democracy you vote first and take orders later; in a dictatorship you don't have to waste your time voting. What have we become?
Let our people read whatever they want and let’s talk about it with them. If we as leaders and people can talk together, neither has much to fear. I go so far as to say state secrets should not be secret. Too much hidden agenda has occurred which is getting out of control. If reports of plans of terror are made public we are all informed. A country, a leader, a church or mosque planning to harm us, is in no better position to do harm if we are aware of their intentions. Our leadership and decisions immune from audit and accountability has only given fuel to those who oppose us. As leaders of a nation we know democracy is great. Indeed we make mistakes but we are great because democracy allows us to talk about a human's rights.
Democracy has searched for better systems to care for our people. And in trying these proposals before us, we remember that only those who risk going too far can possibly find out how far one can go. Freedom is not worth having if it does not include the freedom to make mistakes. The cost of our liberty is less than the price of repression and the public good is nothing more than being interested in the protection of every individual's private rights.
My Lords we have served our people with both good and bad decisions. Allowing analysis of those decisions can only result in an improvement of our service to our nation. I fear consistency of tradition may cause us all in power to be as ignorant today as we were a year ago.
We now witness political mismanagement being meet with judicial activism. The growth of alarming intrusions by the judiciary into the realm of policy is blurring the integrity of the independent legislators and at the same time destroying the foundations of stare decisis.
Before us today is not a proposal, but a demand we be accountable. Since this accountability campaign began by new and existing members of the Labour party, we have all witnessed that campaign spread throughout not only all of the political parties here in the United Kingdom but now, political parties throughout the entire Commonwealth. My Lords, the people have spoken, crown and judicial immunity is dead.
Lord Alydar said it has been put that each year the law society membership gains a bigger bite from our gross domestic product with no end in sight. Legislation designed to protect society appears to enrich another; the lawyers.
My Lords in conclusion we may wish to err on the side of tradition; or we can adopt the suggestion this development today is the rebirth of equity. Equity during the early days of the Statute of Westminster was born from repeated reactions to judicial injustice and provided remedies in situations in which precedent or statutory law might not apply or be equitable. And for several hundred years the independent chancery stood alone to meet that task up until The Judicature Act of 1873. Today we have an opportunity to once again give equity and justice a new life.
I recommend judicial and political accountability for the management of not just our country, but in all countries. And I cannot think of a more noble and appropriate place than the House of Lords to begin that process.
Lord Wingate of Arklow
