Guy Fawkes tonight will be a different one. With Delta closing organised events, many celebrants will have lost their sparkle. An otherwise strange night in which we remember a failed attempt at the assassination of a King of England by blowing things up, startlingly, a direct link can be drawn between me, William Shakespeare, and the conspirators. Let me explain.
Shakespeare’s father was friends with the father of Robert Catesby, the lead conspirator. Shakespeare frequently drank at The Mermaid — the same tavern where the plot was hatched. And then there’s the play… about conspirators… who commit regicide and usurp the Scottish throne. It was written for his company’s new patron, James I in 1606. The year after the gunpowder plot. He called it Macbeth.
You will have only glanced at the lithograph above. Take another look at the far-right corner.
Yep, that’s the ancestor. Thomas Winter was among the first to be drawn into the plot. His brother Robert was recruited later. Some say it was to distance himself from Thomas that William wrote the Scottish play. It was Thomas, an intelligent, witty and educated man, fluent in several languages and trained as a lawyer, who tried to get the conspirators to abandon the plan when he realised they were mere actors in a grander scheme. And it was Thomas, a 33-year-old fervent catholic convert, who begged to be hanged for himself and his brother.
Bonfire night is a much-admired story for people with the courage to rebel against the establishment. Much of what is written about the plot is based on Thomas' confessions, signed in the Tower of London on 23 November 1605. That confession was false. The truth of these events is much more intriguing, but must await another time.
Rebellion against the establishment has been a vital part of our history in Aotearoa. There is a whakatauki that describes this well: Tutu ana te puehu, which literally means, To stir up the dust.
There has been a bit of that going on of late. Dust stirred up over points of judicial culture and choice, which is not an altogether bad thing when we consider the alternative to stirring the dust is indifference.
The results of the recent Diversity Survey by the Chief Justice will make for some interesting reading. I am absolutely confident that it will demonstrate our judicial officers have a rich diversity of lived experiences. The nine November appointments to our district court demonstrate that. As Stephen Kos reminded us all last week, the arc of history suggests appointment of judges on merit and not by a thumb on the scales is best. Increasing diversity and achieving equality by preference is a very blunt approach that may perpetuate the very prejudice whose effects it attempts to ameliorate. Meritocracy is like democracy: whatever its problems, it sure beats the alternatives.
Several times since being sworn in, our Chief Justice has criticised the established approach to teaching law, once saying that our legal education should be ‘blown up and reconstructed’. A wee bit like Guido Fawkes, “not without legal and academic controversy.” In her view, judges must be aware of, and comfortable with, the principles of tikanga. A view echoed by Joe Williams in his lecture Decolonising the law in Aotearoa: Can we start with the law schools? This month, the New Zealand Council of Legal Education will meet and determine if another core subject, tikanga, must be achieved to gain a law degree. Has revolution arrived in the sedate, tweedy world of legal education? I doubt it.
Much more than a high degree of cultural competence must be achieved to widen access to the profession for people from less-advantaged socio-economic backgrounds and people of difference. In the United Kingdom, since September, prospective solicitors in theory never need to cross the threshold of a university to qualify into the profession. All that is required is a degree-level qualification or equivalent two years of qualifying work experience before passing the super exam, which takes the form of two centralised assessments. As I dance around my patu in the dust, dare I ask, could we do the same, or would that be a step too far for the establishment?
The wisdom of a meritocracy is that good people choose judicial service. You know these good people. You work with them daily. You know their decency and kindness. You know in this tough service of the law they come to court each day with an abundance of understanding. Judges that, not so long ago, accepted appointment to serve their community based on little more than a tap on the shoulder.
Healthy disagreement in any community is not a sign of disloyalty, but rather a sign of our mutual growth and active pursuit of truth and justice wherever that may take us. We should never be afraid to wrestle creatively with such tensions in the fight against indifference. Sometimes, like Thomas, we have no choice but to stir up the dust, do we?
Kia noho haumaru mai rā
Gerard Thomas Winter