Gazing into a crystal ball in 1998

I thought it might be interesting to re-publish this essay now.  It was first published in a slim volume of essays called “Now and Then” which Sweet & Maxwell published in their bicentenary year of 1999.   I had been asked to imagine the  world of the courts and the judiciary of 2024.

In my comments on this piece in the Selection of Papers I lodged with the UCL Judicial Institute in 2013 I wrote:

I wrote this piece in 1998.  By the end of 2013 15 years of my 25 will have passed.  We are already firmly on the way so far as most of my prophecies are concerned. Thus:

  • There is a more open selection process for judicial appointments;
  • There is a written Code of Guidance on judicial ethics, composed by the judiciary;
  • There are now written judicial complaints procedures, underpinned by statute;
  • The Minister responsible for the judiciary is in the House of Commons;
  • The budget for the courts is ring-fenced from the other budgets of the Ministry of Justice;
  • More judges have been given explicit management responsibilities, and greater back-up support for this purpose; and
  • With the changes in the governance of HM Courts Agency the judiciary has started tiptoeing down the track towards administering the budget for the courts.

On the other hand:

  • Progress towards universal electronic filing has been painfully slow;
  • There has not been as much progress towards diversifying the Bench as I had hoped for 15 years ago;

And there seems to be no prospect of any progress being made towards reducing the retirement age of judges to 65: on the contrary, Supreme Court judges have been campaigning to allow themselves to be made a special case, with full-time service continuing until 75.

One thing I did not contemplate was the abolition of the Appellate Committee of the House of Lords.  If I had thought of it, I would probably have considered that there were far more pressing priorities within the court system for the expenditure of all that money.

Last year I expanded that selection by including some papers which I had recently digitised.  I added:

I wrote these comments early in 2013.   Two years later there have already been changes which I did not foresee, driven through by a House of Commons-based Lord Chancellor who knows no law and who has been compelled by the Treasury to make expenditure cuts which may imperil the future of the public sector Bar.

Moreover, it is currently not known what will happen when the new Conservative Government implements its manifesto pledge to repeal the Human Rights Act.

Now, we have a new Lord Chancellor who, while not being a lawyer, appears to have a better understanding of the responsibilities of his high office.  We appear to be making great strides, at long last, with electronic filing and the like.  And we are still waiting for the new Human Rights Act which seems to be as elusive as the Scarlet Pimpernel.

 

 

The Courts and the Judiciary in 2024

An Essay first published in Now and Then, A Celebration of Sweet & Maxwell’s Bicentenary 1999 (Sweet & Maxwell 1999).

I am now 62 years old.    I have been asked to foretell what the future will be when I am 87. By then I will have retired for at least 17 years.  Twenty-five years ago a 62-year old judge could not have written like this.  With a top marginal rate of tax of 83%, he could not save for his old age, and when he was at the Bar, fair tax arrangements for self-employed pensions were a future dream.[1]  Fearful of the future, my predecessor would have gone on working until he was 75, and soon after that he would be dead.

Note the word “he”. Elizabeth Lane was appointed the first woman High Court judge in our history in 1965.   Today, over thirty years later, only one of our 50 most senior judges is a woman, seven out of 100 high court judges, 36 out of 550 circuit judges, 52 out of nearly 400 district judges.  Whenever I go to judges’ conferences abroad, the most obvious difference lies in the number of excellent woman judges in their 40s and early 50s I meet.  I have witnessed this in Hungary: I have witnessed it on the other side of the world in British Columbia. In 2024 between a quarter and a third of our English judges will be women.

In the early 1990s I chaired the Bar’s Race Relations Committee.  We collected a lot of depressing evidence about the silly, unthinking, prejudices that were stopping young black and Asian lawyers of ability from making their way at the English Bar.  I used to tell my committee that this was nothing new.  I had watched the same attitudes being displayed towards women in my early days at the Bar.  It was always somebody else’s fault: the barrister’s clerk’s fault, or the solicitor’s fault, or the clients’ fault (even though they were never asked whether they would prefer an able woman or a less able man to represent them).  It was a shame that in a traditional profession people who were different from others had to work twice as hard in order to establish themselves.  It was also a fact of life, and the Bar, and the country, suffered for it.

I was lucky to be asked to do that job.  It enabled me to meet on equal terms some of those who will be among our most outstanding judges in 2024.  By then, absent further primary immigration, the proportion of our population who come from ethnic minorities will be levelling out at around 10%, and the most talented of them will be storming the citadels of the profession, in much the same way as talented women are today.  Five decades of enlightened race relations policies, supported by the obvious skills of those who will have become the role models for the next generation of black British teenagers, will have banished a lot of the harmful sillinesses their predecessors had to endure.

The Bench, then, will be more diverse.  It will also be drawn from a much wider section of the population.  The long-term effects of sixty years of heavy national investment in higher education, and of two reforming statutes in the 1990s,[2] will have swept away most of the artificial barriers which used to block the path of those who had both the intellectual ability and the personal attributes needed of a judge in a pluralistic society. When I chaired the Bar’s Professional Standards Committee in 1987, my committee inherited a report which showed that for the most part the Bar and the Inns of Court were content to draw their intake from three English universities.  As I write, there has already been a sea-change in those attitudes, and the next 25 years will have accelerated the pace of change.

It will also be a much younger Bench. In England and Wales, it took forty years to reduce the retiring age for new entrants from 75 to 70.[3]   It will take far less time to follow a worldwide trend, and to reduce it to 65, although if we are wise, we will have followed other jurisdictions and will be providing judges of ability with the opportunity of performing properly defined half-time service, coupled with partial pension provision, for some years after their compulsory retirement from full-time service.

As the judicial bench will have become more diversified, the market from which it is drawn will also have changed its nature.  There will remain a strong, independent Bar.  One of the fascinations of English history is that if an institution is valuable enough, it will withstand the caprices of the market or the politicians, although it may change some of its practices, or alter its size, in deference to changing times and changing needs.  The Bench of 2024 will also be drawn, however, from those who have preferred to earn their living as advocates within the shelter of corporate practice, whether acting for the clients of their firm, or even for the single hand who feeds them as employed lawyers.  It will also be much richer as a result of the different experiences and insights these new entrants will have brought with them.

Peering into the crevices of my crystal ball, I do not see much sign among the judges of 2024 of academic lawyers who have had little experience of the law in practice.  Of course, the rich strain composed of former academic Law Commissioners, who will have sat as part-time judges during their tenure of a post which gives them an unequalled insight into the practical workings of the English law, will continue to be mined.[4]  A change in the law will also have enabled our highest courts to be supplemented, on occasion, by English academic lawyers of international distinction, if only to avoid a return of the ills that afflicted our criminal law in the 1980s.  For the most part, however, English judges, unlike their counterparts on the continent of Europe, will go on being drawn, as they have been ever since the days of King Edward I, from those who have gained their experience not in academia but from the practice of the law at the coal-face.

The pressure from so much competing talent for places on the Bench of 2024 will have mitigated one of the most worrying trends in the marketplace in the last decade of the second millennium: the curse of over-specialisation.  As I write, it is no longer nearly so easy for the young advocate to ply his or her trade in the same way as I and a number of my contemporaries in the present Court of Appeal did in our early years at the Bar.  One day we were in a magistrates’ court, then a rent tribunal, then a coroners’ court or the Old Bailey, before finishing the week in a county court and before a High Court Master.[5] Now that we are in the Court of Appeal, virtually every branch of the law is familiar to us from past encounters in one form or another.  In 1999 too many young lawyers of ability are catapulted immediately by the demands of the market into a comparatively narrow field of law.  They know everything that is to be known about the cases decided in that field, although most of these cases merely reflect the application of common principles to different facts: cast them adrift into a different corner of the law, however, and they are soon floundering.

The historian of 2024 will see that the Human Rights Act 1998 was a very important catalyst for change.  For fifty years this country had been resisting the introduction of rights-based law.  Senior civil servants and ministers could see that a change of this kind would upset the delicate balance between the different sources of governmental power, and would make the law more uncertain in its operation.  For them, these considerations tipped the argument heavily against giving the judges a greater power to do justice in those areas where thirty years of exposure to Strasbourg jurisprudence had shown that English law needed a finer tuning than common law judges and an increasing volume of statute-based law were ever going to be capable of providing.

That argument has now been won and lost, and the English judiciary will never be the same again.  For one thing, English judges will have to ask ever more searching questions than they have ever had to ask before.  Is this obvious violation of an individual right recognised by Strasbourg necessary in a democratic society for one of the acceptable purposes identified in the European Convention?  In the early days after the Act came into force, there were those judges who believed that decisions like these were still matters for Parliament, and theirs was merely the familiar supervisory role, circumscribed by concepts like Wednesbury unreasonableness and “a reasonable margin of discretion” for decision-makers.  It took two or three decisions of the House of Lords to make it clear that the Convention meant what it said, and that on issues like this English judges had to make up their own minds on the evidence presented to them, even if the matters they sometimes had to balance in their judgments were as unalike as apples and bananas – matters which English culture and tradition had always previously left to the politicians to decide in that hothouse down at Westminster.

A few controversial judicial decisions, and more and more lay people, fanned by the media, were asking  “Who are these judges?”  “Where do they come from?”  “How are they picked?” “What training do they receive?”  “What opportunities do they get for getting off their benches and meeting judges from other countries, or having a refresher spell at a university, or learning more about the kind of things about which they are now being asked to make these very influential judgments?”  At one level the debate will have been a superficial one, although in a typically British way a more open selection process will have emerged which satisfies the need for greater democratic accountability in judicial appointments without being tarred with the worst excesses of the American system.  At a deeper level, the persistence with which these questions will have been asked will have brought about a revolution in the way the judicial profession in England and Wales is organised and resourced.

The knowledgeable onlooker in 1999 would have perceived very striking differences between the organisation and training of the English judiciary when compared with that of most other jurisdictions, whether in common law or civil code countries.  Of course he would have been wise to devote most of his attention to comparable common law countries, because there are so many differences in the systems of justice in place on the continent of Europe that apparent similarities may tend to deceive.[6]  He would have seen, however, that their arrangements naturally encourage a far higher level of recruitment of women to the Bench – even able young women in their 20s who find it easy to combine minor judicial work with family life – and that their judicial training colleges make it very much easier to put in place effective arrangements for continuation training.

When he looked further afield, to the United States and Canada, for instance, our onlooker would have seen great differences.  In those countries the power of senior judges to run their courts was bolstered by statute, and statute also underpinned the provision of well-financed educational resources for the judiciary and the provision of transparently fair complaints systems, run by the judges themselves.  Responsibility and authority were united in the same place, not divided, as in England and Wales.

Of course, these arrangements carried within them latent disadvantages.  One only had to go abroad to judicial conferences in the 1990s to perceive the advantages of our seemingly anachronistic system which turned its back on the philosophy of Montesquieu, Locke and Blackstone, and placed the titular head of the judiciary in the heart of executive government with a seat in the cabinet.  It was unthinkable then that the judiciary in England and Wales would be bringing lawsuits against the executive claiming better pay and conditions, as was happening in six of the ten Canadian provinces in the late 1990s; or that a member of the Cabinet, who moonlighted as a radio chat-show host, would write off the whole of the district judiciary of his country as lawyers who weren’t able enough to hold down their private practices, as happened in New Zealand at about the same time. History will be kinder to Lords Mackay and Irvine for the efforts they made to defend the independence of the judiciary against some of their more impetuous cabinet colleagues than some of their contemporary critics were ever willing to be.

Change occurred slowly.  By 2024, however, it was nearly complete.  In the same way that the strength of the case for rights-based law eventually overwhelmed the traditionalists’ powerful arguments in favour of the status quo, so the kind of public pressure I have described (coupled with the pressures from a different breed of young judges, many of them women) led gradually to the creation of a more overtly professional judiciary, with its own written code of ethics and its own written complaints procedures.  It had become a judiciary, too, with far greater responsibility for running its own affairs, and with much more attention being paid to the needs of judges to travel to conferences abroad, to enjoy sabbatical leave at universities, and to have wider opportunities for refresher training than the Judicial Studies Board in 1999 was ever equipped or mandated to provide.  The executive and the legislature would of course remain responsible for allocating budgets to the judiciary, but the remorseless logic that underlay the creation of a professional judiciary required the transfer of a greater degree of budgetary responsibility to the judges than was ever regarded as thinkable by senior civil servants in 1999.

This in turn led to the appointment of judges to posts entailing administrative and management responsibilities on a scale that was already very familiar on the other side of the Atlantic in 1999.  The Treasury’s insistence that every judge must serve for twenty years before earning a full judicial pension led to much more attention being paid to matters like career development and professional job satisfaction than were ever thought necessary in the 1980s, and it was no longer feasible or sensible to leave these vitally important matters in the hands of very busy senior judges who had received no training in senior personnel management, or with civil servants whose first loyalties were to their masters in the executive branch of government.  There was a good deal of creative tension before these reforms were eventually worked through, but once they were established, everyone wondered why they had not been put in place before.  Needless to say, the new arrangements had to be guaranteed by statute, and in 2024 it was a familiar sight to see senior members of the judiciary with management and budgetary responsibilities going to Westminster to discuss with the relevant Commons Committee the way they were spending the resources allocated to them, and identifying their strategic needs for more resources over future five-year planning periods.

The historian of the future, as I have said, saw the passing of the Human Rights Act as a catalyst.  It also brought with it the downside disbenefits which its opponents had always feared.  After half a century in which appointments to the Bench had been taken completely out of politics,[7] much more attention was being paid to the political and social attitudes allegedly adopted by our most senior judges, and a few appointments were made which were more obviously attributable to the supposed political penchants than to the judicial abilities of the appointee.  After a certain amount of to-ing and fro-ing, the minister responsible for supporting the judiciary was eventually to be found in the House of Commons, although that part of his department which serviced the judges was effectively ring-fenced from its more overtly policy-driven neighbours.

So much for the judges: what about their courts?  The most obvious difference from the courtroom scene in 1999 will lie in the increased use of technology.[8]  Back-office processes will be revolutionised. In the field of civil justice, electronic filing will make it possible for solicitors to file documents at court down the telephone line.  Indeed, the litigant in person will be able to draw a standard type of claim form down from the Internet which she can access easily on her digital TV at home, complete it, and send it off to court by E-mail, complete with a credit card reference which will satisfy the filing fee.

These changes will have eliminated a lot of the laborious form-filling which was still going on in court offices in 1999.  The use of standard forms will enable the court docket to be made up from the digital information filed at court, and the local court network will make the electronic file available to everyone who needs to access it, including the judge to whom the case is assigned.[9]  For those who do not have the necessary computer equipment in their offices, the market will provide bureaux, like the bureaux which now provide photocopying and imaging services, by which the new filing arrangements, obligatory under the updated Civil Procedure Rules, can be put into effect.

In the courtroom itself, a rolling national programme for introducing large screens to display evidence visually in court will still be half-complete.  Everyone knows that the eye takes in information more efficiently than the ear, and the imaginative use of computer graphics will have made it much easier for advocates to get a complicated case across, whether to a jury, or to a judge sitting alone.  One aspect of computer graphics technology will still be causing great controversy.  In the early 1990s I watched a remarkable demonstration from a Washington attorney of a defence case designed to prove that a sofa in a ballroom vestibule could not possibly have contributed to a fire in the ballroom which caused many deaths. All the relevant scientific evidence had been collated and then plotted in graphic form, and the speed with which the flames could be seen passing at a high level through the vestibule and into the ballroom destroyed any suggestion that the presence of the sofa could have contributed in any way to the catastrophe.  That litigation would have been won and lost at the interlocutory stage, when the reliability of the data used for the graphics would have been under challenge.  Once the evidence was admitted, the plaintiffs’ case against those defendants had irretrievably foundered.

At a conference in Williamsburg in 1998, I heard a judge with a high-tech court in one of the southern states say robustly that he would never allow such evidence into his courtroom.  A judge from a different jurisdiction said, however, that it could be a valuable type of evidence, provided its use was carefully monitored by a judiciary which was properly trained to evaluate it.  Although few English litigants had woken up to its potential in 1999, this genie could not be put back into the bottle, and the first quarter-century of the new millennium showed a series of forays and reverses as our court system settled down to accommodate this very novel and controversial type of evidence.

What will be much more common in 2024 will be the use of video technology for bringing distant testimony to court.  ISDN lines and never-ending developments in broadband technology will bring up a witness’s face on screen as rapidly and as vividly as if he or she was giving evidence from the witness-box in court.  The protocols to be followed if video technology is to be used in court will be printed in the 2024 equivalents of the White Book and the Green Book,[10] and an international convention, which more and more states are ratifying, will have put an end to the very real concerns that perjury might be committed by a foreign witness giving testimony to an English court of law from outside the criminal jurisdiction of the English courts.  The increasing use of video technology, and the accompanying development of tele-conferencing technology for interlocutory hearings, will have combined to reduce the high cost of waiting time and travelling time, of expensive hotel bills and railway and air fares, that disfigured so much civil litigation in the 1990s and helped to make it inaccessible to ordinary people, quite apart from eliminating the delays that occurred simply because it was difficult to bring a number of very busy people to the same place at the same time.

In many courts advocates will be using a movable podium from which to present their case.  They will place the documents to which they wish to refer under the camera to the side of the podium, so that they will be instantly visible on every monitor screen in court, and they will be adept in zooming the picture so that the writing on the documents can be magnified at will.   Real-time transcription will be a commonplace, now that the Court Service has been convinced empirically that its use cuts at least 15-20% off the length of a trial of any substance, and more rational cost-benefits techniques than those used in the 1990s have demonstrated the huge saving in national resource terms that the use of such technology brings with it.

Little of this would be possible if the judges of 2024 were not completely comfortable with computer technology.  Looking back, it will be possible to assess much more accurately than was possible at the time the benefits of the imaginative initiative taken by the Court Service in December 1998 when it resolved to equip every full-time judge who wanted one with a modern computer and communications software, with proper training and helpdesk support to facilitate the use of what, to some, were unfamiliar judicial tools.  The introduction of a judicial intranet in 2000, followed in the next decade by user-friendly voice recognition software, enabled more judges to perceive the advantages of IT in their judicial work, and to lose their terrors of an alien technology, accessible only through the deployment of keyboard skills they did not possess and which they believed themselves too old to master.

After two decades in which hard-book law publishers tried vainly to resist the pace of change, electronic law publishing took off in the early years of the new millennium.  It was given a boost by the perception of the more wide-awake publishers that if they could make their wares accessible on-line to the whole of the English full-time judiciary within their intranet at a reasonably economic price, based on user rather than on the unit costs of CD-Roms, the rest of the market would be bound to realise they must at long last invest if they were not going to be left a long way behind the judges in front of their increasingly unimpressed clients.  Gone will be the day when it will be impossible for a court to obtain easy access to the updated text of the statutory instrument around which the case revolves, or to find out if a new Act is in force.  Gone will be the day when a small country magistrates’ court could only afford every other edition of the hardback textbook on road traffic cases, and it was left to chance whether they would be taking into account the most recent case-law from the Divisional Court.  The judges in courts far away from major law libraries will no longer be an inferior breed, so far as access to modern law is concerned: they will be accessing the most up-to-date database from their laptops in court.

New ways of presenting cases to the higher courts will now be well-established, with all the necessary procedural rules in place. In heavy litigation the appellant will no longer lodge lever-arch files in the Court of Appeal office.  A single CD-Rom will contain all the pleadings and the transcripts and the relevant case-law and statute-law, with visual images of all the documentary exhibits, and with accompanying sound where relevant. Advocates will be adept at creating hypertext links between the skeleton arguments and the passages in the transcripts or the case-law to which they wish to refer, and the legal texts on the CD-Rom will have their own hyper-text links appropriately placed.  The judge will be well used to managing cases presented in this form on his or her computer, and quite apart from the ease of transporting work home at the weekend, the task of judgment writing will be made that much easier because all the underlying material is already in accessible digital form.

Again, the future historian will see how much of this revolution was facilitated by the passing of the Human Rights Act in 1998.  All at once, every court in the country was being required to apply new law which simply was not accessible to the average English court or lawyer five years previously. [11]  There was not only a need to access Strasbourg law. There was also a need to access the judgments of the higher English courts as soon as they were published.  However much judges might be prejudiced against computers, there was simply no other way to obtain the tools they needed to do their judicial jobs.  Whether the judge had access to the database direct, or whether the court staff had an efficient way of drawing down the material he or she needed, computer technology unquestionably came of age in the courts of England and Wales when it was harnessed to meet this unprecedented need.

It is time to put the crystal ball away.  This is only a game, and perhaps if I am still alive in 2024, I will find I got things far more often wrong than right.   But the exercise was well worth doing, if only to plot out one set of futures which could make our system of justice much more accessible and acceptable to the people of this country than it is today.

 

 

[1]             When I served on the committee of the Barristers’ Benevolent Association in the 1980s, one of our most poignant tasks was to provide a little very welcome financial support for the widows of some of those who had been great names in the law in the years after the war, but who had made no provision for their families after they died.

[2]             The Courts and Legal Services Act 1990 and the Access to Justice Act 1999.

[3]             A statutory retiring age of 75 was first introduced for new judges in 1957. Judges who were already in post in 1957 could not be compelled to retire at that age, a rule which enabled Lord Denning to stay in office as Master of the Rolls until he was 82.

[4]             For example, Hale J and Buxton J (now LJ), who both became high court judges in the same week in January 1994. The former was a full-time academic lawyer before she became a Law Commissioner. The latter, a former Vinerian scholar, taught criminal law at Oxford for some years before embarking on a full-time practice at the Bar.

[5]             I have my fee-book for 1964-1968 before me as I write. In a week in March 1965 I see that I started with a noting brief in the High Court (11 guineas: riches!), followed in rapid succession by East Ham MC (4 gns), West Ham MC (17 gns), Hampstead MC (back to earth: 3 gns), London Sessions (16 gns) and an application at the Old Bailey (3 gns).  By August 1968 my daily appearance fee was usually between 15 and 20 guineas (out of which expenses had to be paid), and I was ranging more widely afield: Andover MC, Woolhampton Coroner’s Court, Oswestry (as an examiner at a former poorhouse), Chelmsford Quarter Sessions, Harrow MC and the Bankruptcy Court feature among the venues.  My crystal ball gives up when I try and picture my successor starting in blue-chip common law chambers in 2024, but I do not believe it would be quite like that.

[6]             In most European countries a graduate will choose a career as a judge, as opposed to a career as a private lawyer, and two and a half years’ training in a judicial training college will be followed by a career in which judicial duties are interspersed with duties as a state prosecutor or, perhaps, as a prison administrator.  The inquisitorial system of justice practised on the continent gives their judges a quite different role from that performed by a judge in an English courtroom, with or without a jury.

[7]             The young today do not remember the Attorney-General’s more or less guaranteed right of first refusal if a vacancy occurred in the office of Lord Chancellor or Lord Chief Justice, or those parliamentary bye-elections which took place when a Government backbench MP was promoted to the circuit bench.

[8]             This is not to say that books and hard-copy files will not be used, but the court system will not be so awash with them as it was, perforce, in 1999.

[9]             There will of course be arrangements for limiting access to certain parts of the electronic court file, much as there are now with hard copy files.

[10]            These were combined under one cover in 1999, when Lord Woolf’s reforms came into effect.

[11]             In 1997 there were only two sets of the European Human Rights Reports in the Supreme Court library, servicing nearly 100 courts in the Royal Courts of Justice complex. I remember that when I became chairman of the Law Commission in 1993, I reinstated the library’s subscription to this series, which had been allowed to lapse in 1984. Since then, every Law Commission project which might have ECHR connotations has been very overtly “Strasbourg proofed.”

One thought on “Gazing into a crystal ball in 1998

  1. Pingback: The new Constitutional Settlement: Protecting the Judges – Henry Brooke

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