Holiday musings of a High Court Judge 25 years ago

I wrote this article for an Exeter University law journal  at the end of 1991 over the Christmas break.I had then served as a High Court judge for just over three years.  I was coming to terms with my job as Chairman of the new Ethnic Minorities Advisory Committee of the Judicial Studies Board, and since October 1989 I had been taking an active role in the series of seminars known as International Comparisons in Criminal Justice at which judges from a number of different countries met to discuss issues of common interest.   My involvement in the Victim Support pilot Crown Court project arose because the Princess Royal, as Patron of Victim Support, visited the project when I was sitting as a visiting High Court judge at Newcastle-upon-Tyne.  A little later, when I was sitting at the Preston Crown Court in the late summer of 1991, I was able to help the organisers of another of the pilot schemes to resolve their housing problems.

As a result of these contacts I was invited to launch the second round of these schemes at the Winchester Crown Court.  They became a very familiar feature of every Crown Court, and the model was soon transferred to the Royal courts of Justice, whose Personal Support unit has now enlarged its influence greatly in the wake of the torrent of unrepresented litigants in civil and family courts  that arose in the wake of the Government’s savage legal aid cuts which came into effect three years go.

In this article there is evidence of my growing interest in rights-based law, and my belief that considerable advances could be made within the boundaries of the developing common law even if, as at that time seemed likely, this country did not formally incorporate the European Convention on Human Rights into its national law.  It also evidences my frustration that Parliament had not really thought things through when, for understandable reasons, it had catapulted some rights-based law into the centre of the arrangements for the care of some of the patients who were suffering from mental disorders, without attending to the border ground that would now lie between one system of law and another.

The comments on IT reveal my growing anxieties about the pace of change, six years after I had first become interested in the possibilities.  Those who controlled the purse-strings still seemed unaware that sensible investment in IT could help to resolve a number of the intractable difficulties with which they were struggling in connection with the delivery of justice and legal services generally.   Sadly, we have had to wait another 25 years before a Government started taking this need seriously.

By this time I had read widely on matters concerned with judging and the judiciary, both in this country and overseas, and the article represented an attempt to enthuse some, at least, of its  readers with the idea that a life in the law might not turn out to be as dry as an undergraduate law course might suggest.

Some Holiday Musings by a High Court Judge

An article first published in Vol 24 of the Bracton Law Journal (1992), the magazine of the Faculty of Law at Exeter University

Introduction

This article has a curious history.  I have no connection with the University, or with Exeter, or with the Western Circuit.  I have never met the editors of this journal nor any of the students who may read it.  It owes its origin to a conversation I had with one of the tutors in the faculty during a dinner I attended at the university as a visiting High Court judge last autumn.  The occasion had the attraction for me that I was not being asked to make a speech after dinner, or otherwise to sing for my supper.  Little did I know.

My dinner companion attacked me during the first course with the thesis, which was not easy to answer, that not enough members of the Bar and not enough members of the judiciary are taking sufficient steps to keep themselves up to date with current developments in EEC law.   I counter-attacked during the second course to the effect that universities were not doing enough to encourage their students to equip themselves with the full range of skills, sensitivities and knowledge which they need at the outset of careers in law or in business.  We were then diverted by others and I think the score was probably about thirty all by the end of dinner.  However, she had the last word when I received a letter out of the blue about a fortnight later from one of the editors inviting me to write a long article for this journal on any subject of my choice.  I will remember to confine myself to platitudes on similar occasions in future if I am not to spoil my Christmas.

I suppose I could have said “No”.  It is very much safer for a judge to say “No” and to plead pressure of work when he receives an invitation like this.  And the plea is a fair one, because many judges’ lives, including my own, are very busy even during those periods which are nominally called vacations.  But it would have been wrong if I had done so.

Wrong for two reasons.  The first is that I believe that intelligent student audiences in universities and polytechnics outside, perhaps, Oxford, Cambridge and London, are not given enough opportunities to hear younger serving judges express their views on important but non-contentious contemporary issues.  And wrong because I remember how valuable I found writings by contemporary judges like Lord Denning’s “Freedom under the Law” or “The Rule of Law in the Welfare State” or Mr Justice Devlin’s “The Enforcement of Morals” when I was a student myself thirty years ago, and I have a debt to repay.  Even those of us who inhabit the lower slopes of the judicial Mount Olympus to those giants may have useful things to say to a new generation of lawyers, and so I decided to try.

What should I write about?  Since I believe very strongly that success in the law – as, indeed in business – depends to a considerable extent on a capacity to make complicated things simple , I decided to start with a simple framework, to which a few slightly more profound thoughts might be attached.  So I would write about myself and my life and work as a judge.

A High Court judge’s work and background

I have now been a judge of the Queen’s Bench Division for three and a half years.  Before that, I had twenty-five years in practice as a barrister in common law chambers in London, eighteen of them as a junior and seven of them as a QC.  I had no family background in the law, and I did not read law at university.  When at the Bar, I always refused to specialise, although specialisation would doubtless have made me rich (and bored), but my years in silk saw me occupying much of my time in two mammoth inquiries, first as Counsel to the Sizewell Inquiry, a virtually full-time job which lasted two years, and then, after a break of just over two years, as a DTI Inspector into the 1985 House of Fraser takeover, a job which took over a year to complete.

These two diversions apart, I came to the Bench with a pretty good knowledge of law, practice and procedure in most of the fields of work I am likely to encounter as a judge.  I am anxious when I watch the modern market’s insistence on more intensive specialisation about the effect that this will have if judges in the future are still going to be chosen by the same processes as have always been customary in this country, in contrast to the countries which have a career judiciary.  Perhaps this is another reason, in addition to the now well-recognised difficulties surrounding the appointment of women and members of ethnic minorities to the Bench, why we should be always willing to have a fresh look at the way in which judges are selected and trained.

Before I started this article, I reread Simon Lee’s “Judging the Judges” and the latest edition of John Griffith’s “The Politics of the Judiciary”.  Most of what they write impinges very little on the working life of a Queen’s Bench judge.  Of the 35 working weeks of the last calendar year, I spent exactly half my time outside London and half my time in the Law Courts in London where I am based.  In the entire year I spent only three weeks hearing public law cases.

Outside London I spent eight weeks conducting five murder trials at three Crown Court centres hundreds of miles apart, and the rest of the time doing a mix of short criminal trials, short civil trials, and very heavy short “cases”, both criminal and civil.  In London I spent three weeks hearing criminal appeals, three weeks, as I have implied, as a single judge deciding judicial review cases in the Crown Office list, and the rest of the time tackling a very wide variety of work in the Queen’s Bench jury and non-jury list.  One three-month case on which I was destined to spend my autumn settled two months before trial: this apart, nothing I handled lasted more than two weeks and most was disposed of very much more quickly.

Compared with the intellectual difficulty and immense range of some of the tasks I tackled as a silk, particularly in the two inquiries I have mentioned (a shrewd academic commentator wrote of the “intellectual agony” on the floor of the Sizewell Inquiry, a phenomenon which escaped most public notice at the time), most of the work I now do is not very demanding intellectually, although every case is of great importance to the lay people who take part in it.  This is something no judge or lawyer should ever forget.  Very occasionally, however, and usually without any notice at all, I have to change gear very rapidly to handle cases which raise extremely difficult and important questions of law or practice, or cases which require delicate and sensitive handling under the spotlight of the national press.

The need for sensitivity to the feeling of others

A journalist recently asked me about the qualities I believed a judge needed to have.  I replied off the cuff that I thought he needed a clear mind, a good working knowledge of law and procedure, and above all an instinctive sense of what it means to be fair.  If I had had time to think, I might have remembered the saying ascribed to Socrates: “Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly, and to decide impartially”.  Or perhaps, more esoterically, in answer to a follow-up question of his about people’s perception of fairness, I might have recalled something said in Philo’s Special Laws: “A judge must bear in mind that when he tries a case he is himself on trial”.

I believe that as a more critical lay public strips away the mystique which has surrounded the work of judges for so long, the need for judges to pay more attention to the way they are seen by others will become even more important.  And this does not apply only to judges.  When television cameras are brought into court, as come they inevitably will one day, one of the first welcome casualties is likely to be the absurd language which is too often used to judges – “As your Lordship pleases” or “Your Lordship is very gracious” – which must astonish intelligent lay onlookers as much as it astonishes me.  The dangers of this sort of incestuous sycophancy were well described by the American jurist Harold Medina:

“After all is said and done, we cannot deny the fact that a judge is almost of necessity surrounded by people who keep telling him what a wonderful fellow he is.  And if he once begins to believe it, he is a lost soul.”[1]

I belong to a group of judges, now drawn from eight different jurisdictions, who meet together from time to time to discuss contemporary issues of common interest.  I remember at one of these weekend seminars hearing of a research project in a European country where the judges speak directly to the defendants in criminal trials much more often than they do in our trial processes.  The purpose of the project was to interview the defendants immediately after conviction and sentence, and then to keep in touch with them and observe their history in the months and years that followed the original trial and sentence.

We were told that after a time the judges could be fairly readily classified in two groups.  Group A consisted of judges who were regarded as good communicators; much as he deplored the outcome, the defendant considered that he had been given a fair trial, and that the judge had taken trouble in giving reasons for the sentence he had received.  The Group B judges, on the other hand, were regarded as bad communicators; there was a feeling among defendants that they had not had a fair hearing, and the reasons given for their sentences, which were on the whole tougher, were not clearly explained.  Early tentative findings from this research showed that Group A defendants re-offended less swiftly after their release.  The findings were then reported back to the judges who had taken part in the project: one Group B judge, after an initial moment of anger, told the researcher how valuable it had been to be made to hear how others saw her, and this is an experience too few judges have, except sometimes in a very unsophisticated, brutal and often unfair manner through the tabloid press.

I cannot envisage much enthusiasm from many of my judicial colleagues if such a research project was attempted here.  But it illustrates, I think usefully, the need for a judge always to be alert to the way in which his behaviour and what he says in court is seen and heard by those who are listening to him and watching him in court and beyond.  Attention is increasingly being paid by modern management to what is called “service delivery”, and there is no good reason why judges and lawyers should not be equally ready to take this issue seriously.

Ethnic minorities and the courts

Recently, I have been tackling yet more difficult issues of this kind.  In March 1991 I was appointed Chairman of a new Ethnic Minorities Advisory Committee of the Judicial Studies Board. The Board is responsible, directly or indirectly, for training all the judges and magistrates and chairmen and members of tribunals in England and Wales.  It is the first time the judiciary has turned in a formal manner to a committee of outside experts for help and advice on ways in which they might do their job better.

Those who have read Lord Devlin’s book of essays called “The Judge”[2] may remember the way in which he savaged a working party’s paper published in 1975 which set out some early tentative ideas about the training of judges.  The admirable work on a more modest scale which the Board has carried out since its creation in 1979 is now being advanced by slow increments, as Lord Wright wrote of the judges themselves in 1938:

“The judges proceeded from case to case, like the ancient Mediterranean mariners, hugging the coast from point to point and avoiding the dangers of the open sea of system and science.”

My new committee is largely made up of men and women of Asian and Afro-Caribbean backgrounds of considerable wisdom and experience in their particular fields (not necessarily legal). Its purpose is to study what in modern jargon would be called the interface between members of ethnic minorities on the one hand and courts and tribunals on the other.  We will try to identify the reasons why courts and tribunals are sometimes perceived to be less than fair in the eyes of those who come to them from different cultural and religious backgrounds, and to advise how these problems of perceived unfairness or incomprehension can be addressed through training.

I do not under-estimate the difficulty of the job.  The academic team who studied the Sizewell Inquiry described very clearly the impenetrability of a formal public inquiry in the eyes of ordinary lay people, a problem which my role as counsel to the inquiry was largely created to address.  The difficulties are even more acute when into a formal courtroom, peopled by highly trained people, usually white, most of whom understand its unfamiliar traditions and formalities and the reasons for them, come black lay people from a different but equally rich cultural background and a different socio-economic class from most of the lawyers in court, who know nothing of any of these things and often care less.

A young black solicitor magistrate told me recently that on quite frequent occasions she understands what the unrepresented black defendant in the dock is saying to the Bench, which she then has to explain to her white colleagues, and the converse is sometimes true.  Similarly, it often happens that a judge or magistrate gets exasperated when a defendant does not look him in the eye, giving every appearance of shiftiness to an English beholder, when he does not know that the defendant comes from a culture in which it is ingrained from birth that you do not look in the eye someone who is reprimanding you.

Another set of issues is thrown up by Rastafarians when they come into contact with the courts. It may not be necessary to teach judges and magistrates and lawyers practising in areas which have a substantial Caribbean population all the details of the links forged by Marcus Garvey, the Jamaican founder of the movement in the early 1930s, with Ras Tafari, who was crowned Emperor of Ethiopia (the one truly independent black country in Africa, with its own Orthodox Church) in 1930.  But it is, in my view, necessary for them, if they are to be seen to be sensitive to the feelings of those who appear before them (or of those for whom they appear), to know a little about, and to pay appropriate respect to, the importance, for example, which Rastafarians attach to their dreadlocks (which were originally adopted as a challenge to the prevalent white-dominated Jamaican view of beauty), or to their green, red and yellow hats, which represent Ethiopia’s national colours.

The need to make courts more user-friendly

The need to learn about such things is certainly not confined to judges.  When I was at the top of the Bar Council four years ago, I remember we were very surprised when Lady Marre’s committee delivered a very rapid interim report to both the Bar Council and the Law Society to the effect that both sides of the profession must do more to improve their skills at something called “client communication”.  We were not quite sure what this meant, and when it was explained to us I think that some of us thought that this was something for solicitors to do, and that it did not really concern the Bar.

Now that I am a judge, I can see the wisdom of this advice much more clearly.  It is easy to talk about making the courts more “user-friendly” but it is very much more difficult to put this into practice, given the inevitable formalism of much of what we do.  I am glad that more attention is now being given by the trainers in the vocational courses run by the profession to the need for lawyers to learn to empathise more effectively with their clients from the start of their practices, while still retaining their professional detachment, and this is not an easy balance to achieve.

As I was writing this article, I received a letter from the organisers of a Victim Support project at a court centre I had recently visited.  I had been concerned that the volunteers were largely invisible, as they did not have an office in the court, as they now do at the new court centre at Newcastle, and that a lot of valuable opportunities of helping lay people were being wasted.

The Chairman of the project said in his letter:

“Very soon after you visited us, the hitherto intractable obstacles facing the Court project evaporated, and on 1st September we installed an information desk at a focal point in one of the two court buildings and gained the shared use of an adjoining room.

This has transformed the project.  For the first time the initial contact is made by victims rather than volunteers – psychologically more comfortable for both – and in large numbers.  Simple information about, for example, average waiting times or which court to attend, can often break the ice and lead to more sustained support when required.  The twenty-three volunteers (two per day) can look forward to a generally productive day at court, instead of the former patchy hit-and-miss business.”

I do not know how far these ideas have developed in the west country, but I do know the difference it makes to witnesses attending courts if there is an organisation at the court which is specifically geared to meeting their concerns and which has the appropriate lines of communications with those who run the courts, including the judges.

 How backward are we in EEC law?

These are not the only new issues we face, and I go back temporarily to where I started.  It is now 17 years since Lord Denning in Bulmer v Bollinger[3] likened the Treaty of Rome to an incoming tide, flowing into the estuaries and up the rivers, which cannot be held back.  He said:

“In future, in transactions which cross the frontiers, we must no longer speak and think of English law as something on its own.  We must speak and think of community law, of community rights and obligations and we must give effect to them.  This means a great effort for the lawyers.  We have to learn a new system … We must get down to it.”

It took fifteen years for the incoming tide to destroy the sea defences of Crown immunity against injunctions in cases with a community law element.  More recently, I have been involved in a case which shows how the principles of free movement within the Community has led to the Home Secretary applying different standards when deciding whether to deport EEC or non-EEC nationals convicted of criminal offences.  To take another example, the ruling of the European Court of Justice in Barber v Guardian Royal Exchange[4] has revolutionised thinking about equality as between men and women in the pensions industry.  And as the years pass and the scope of our treaty commitments becomes wider, the realisation that we are no longer a sovereign island in our laws and law making will penetrate up even the muddiest inlets, much further inland than the territory staked out by those to whom the ECJ and House of Lords rulings in the Factortame case[5] came as a great surprise.

However, I am not at all sure that we are all as well equipped as we ought to be to cope with this new phenomenon.  In a sense, I was lucky, because during a three year spell on the panel of common law junior counsel for the Crown, I twice appeared at the Court in Luxembourg,[6] and I advised the Crown in a third case which might have gone to Luxembourg, so I had an early exposure to the relationship between the articles of the treaty, the influence of directives, and the ways in which EEC law may impinge directly on our national law even where there are no national statutes which reflect its influence.

I was also involved as counsel in the Barber case from the very beginning until I became a judge.  Indeed, that case illustrates some of the uncertainties which adherence to the Treaty is introducing into a system of law which has always prided itself (except, perhaps in the heyday of the former Master of the Rolls) on its certainty.

The legal issue which was decided in May 1990 arose at the end of 1980.  I advised the employers, I think correctly, in 1981 that in the then state of EEC pensions law pensions were not likely to be treated as pay, and that however sympathetic they felt towards Mr Barber it was not open to them or, more precisely, to the trustees of their pension fund, to distribute trust monies otherwise than in accordance with the rules of the trust by which the monies in the fund were held.

I won the case for the employers against an opponent who knew far more about the interstices of EEC law than I did,[7] at an industrial tribunal hearing in Sheffield in May 1982 at which the regional chairman and his colleagues took great pains to understand the legal issues and to try and decide them correctly.  I also won the case for the employers at the Employment Appeal Tribunal hearing before a panel chaired by its then President, Sir Nicolas Browne-Wilkinson, in the spring of 1983, and I have no reason to suppose that that Tribunal misinterpreted the thinking of the Court at Luxembourg on questions of pay and pensions as evidenced by its judgments up to that time.

However, the appeal to the Court of Appeal, launched with the support of the Equal Opportunities Commission in the early summer of 1983, remained on a shelf in the Civil Appeals Registry for five years.  I was told on the grapevine – I do not know if this is correct – that the EOC had three appeals on which they might have sought a reference to Luxembourg and that they only sought references on the first two because they regarded the Barber case as presenting them with the greatest difficulties.

Barber, therefore remained in a perhaps unprecedented state of judicial limbo, subject to an agreed stay, long after the other two cases had gone to Luxembourg, where one of them we won by the EOC and the other was lost.[8]  However, there then emerged hints that the court at Luxembourg was changing its views on the relationship between Article 119 of the Treaty and pensions, so the Barber case was taken off its shelf and dusted and sent off to Luxembourg on an agreed reference from the Court of Appeal with the result which is now well known.

What had happened, as the court itself recognised at the end of its judgment, was that until it construed Article 119 of the Treaty in the way it decided to interpret it in the late 1980s

“… The member states and the parties concerned were reasonably entitled to consider that Article 119 did not apply to pensions paid under contracted-out schemes and that derogations from the principle of equality between men and women were still permitted in that sphere.”

This little case-history is a good example of some of the interesting times that lie in front of us in the English courts as we grapple with the task of interpreting English national law to try and make it consistent with requirements of the Treaty which may possibly be interpreted as having direct effect.  These issues, on the other hand, may prove less intractable in the long run than the uncertainties which may arise when a litigant maintains that a directive which should have been implemented is directly applicable (if this is still the correct jargon).

My generation of English judges was not taught EEC law as part of our initial training in law.  Some have had deep involvement with it in practice, both on the Bar and on the Bench.  Others, like myself, may have a grasp of some of the principles without in any way pretending to the command of it which we hope we may have over most of the areas of English national law which we may have to apply in the course of our jobs.  I believe that during the next decade a lot more thought needs to be given by the Judicial Studies Board in discussion with others, including those universities who specialise in this field, to ways in which we can be better equipped to recognise “EEC law points” on our own initiative, particularly as quite a number of the advocates who appear in front of us are quite frank about their lack of mastery of EEC law nearly 20 years after the United Kingdom adhered to the Treaty of Rome.

I should add as a necessary corollary that I believe that it is absolutely essential for any young lawyer who is starting to practise in almost any field of law in England and Wales to be right on top of the relevant principles of EEC law in any field in which he holds himself out as competent to practise.  The problem to which I refer should only be a temporary one if the law schools and the training institutions within the professions are doing their job properly.

The jurisprudence of the European Convention on Human Rights

And it is not only EEC law which we need to master.  The growing jurisprudence of the European Court of Human Rights in Strasbourg is likely to have an increasing influence on our law, whatever may be the outcome of the debate about the transplantation of the European Convention on Human Rights into our national law, I know that the House of Lords has recently restated in the Brind case[9] that if the words of national statutes are clear and unambiguous then they must be applied whatever a judge’s belief in the probable outcome if the case finishes up before the court at Strasbourg:

“The applicants accept that it is a constitutional principle that if Parliament has legislated and the words of the statute are clear, the statute must be applied even if its application is in breach of international law.”

However, as the Spycatcher litigation showed[10], there are areas of our national law which are not yet totally controlled by national legislation.  The different approaches of English and continental systems of law on questions of freedom of expression, together with their congruence on the result, were well described by Lord Goff:

“I can see no inconsistency between English law on this subject and Article 10 of the [European Convention].  This is scarcely surprising since we may pride ourselves on the fact that freedom of speech has existed in this country perhaps as long as, if not longer than, it has existed in any other country in the world.  The only difference is that whereas Article 10 … in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it.

In any event I conceive it to be my duty, whenever I am free to do so, to interpret the law in accordance with the obligations of the Crown under this treaty.”

I sometimes surprise members of the Bar by inviting them to explain to me the up to date position in the human rights jurisprudence of the Court at Strasbourg in cases where I suspect that this may possibly be relevant to, or may contribute usefully to, my eventual decision.[11]  I believe that this is another area to which more attention needs to be paid by those responsible for the continuing training of both judges and advocates.  Whether the influence of Strasbourg comes directly or indirectly (through our growing involvement in the institutions of the Community) I think we would be irresponsible if we did not take our present state of comparative ignorance very seriously.

Again, I hope that this is only a transitional problem, and that the trainers of the next generation of English lawyers are going to equip themselves far better to handle human rights issues in which a command of Strasbourg law will be an important part of a lawyer’s armoury in English courts.

Growing overseas influences in English law

These thoughts illustrate the way in which in my working lifetime English law has become increasingly influenced by “foreign” influences.  There are other illustrations known to me which show that the English lawyer needs to be more alert than his predecessors thirty years ago to what is happening elsewhere, particularly in countries whose laws sprang originally from the English common law.

Before I was swept away into the Sizewell Inquiry I was involved as counsel in the first stage of the Sidaway case[12] which raised for the first time the question of the need for “informed consent” in medical or surgical treatment.  This was yet another example of a case in which the English pragmatic (some describe it as paternalistic) approach to difficult issues in the common law contrasted vividly with the approach in systems of law which are built up around a cluster of identified individual human rights.  It was clear to me in the course of the research I carried out before that case that because of their law’s emphasis on the rights, as opposed to the liberties, of the individual citizen, judges in other jurisdictions were delving more deeply into very difficult areas which English common law judges had been content to leave well alone.

I was also involved in the debates which followed the publication of a contentious draft Code of Practice by the new Mental Health Act Commission in the mid-1980s. The background to this debate was the fact that because of anxieties about the behaviour of some psychiatrists, Parliament and many mental health experts in this country had been very strongly influenced by principles of American law.  This was evident when the Mental Health Acts in the early 1980s were enacted. The parts of the 1983 consolidating Act which define the limited circumstances in which mental patients may be treated for their mental illnesses without their consent have a very strong foundation in American law.

At the heart of the debate about the draft code was the extent to which it was likely that English courts would carry forward this thinking into other areas concerned with the care of mental patients.  What we now have, now that the debate is over and the House of Lords has expressed its views on the matter (in the context of sterilisation[13]) is a curious mismatch between principles of American civil rights law written into the principal Act of Parliament, surrounded by the traditional principles of English common law in areas of care which are not governed by the Act.  Where the tight rules in the Act have no application, English judges are still enjoined to leave good practice in patient care to the contemporary good standards of the medical profession and not to be embroiled in concepts like “durable attorneys for health care” and “living wills” which are inevitable concomitants of a system of law which places less trust in benevolent paternalism and more emphasis on individual rights.

With the much greater exposure of this country’s institutions to transatlantic and continental thinking and the much greater accessibility of overseas law reports, it is inevitable that English law is going to be increasingly transfused with foreign elements.  Benjamin Cardozo said:

“The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.”[14]

This ought to be just as true of English judges as it is of our often more enterprising contemporaries in other jurisdictions.  But under our arrangements, where we lack the help of law clerks or even Brandeis briefs, the judges are critically dependent on the quality – and the ability for lateral thought – of the advocates who appear in front of them.

Information technology

Another area in which things are going to start moving very fast during the rest of my lifetime is in the use of information technology in support of legal practice.  I first entered this field six years ago when the then chairman of the Bar, David Calcutt QC, invited me to head a committee charged with the job of teaching barristers and their clerks in very simple language why they ought to be making greater use of computers in their work.  I have only a layman’s understanding of computer technology, but my Sizewell experience taught me the essential role computers can play in sifting and searching storehouses of complex information and presenting it in a clear and understandable form, provided only that it is the people who understand the subject matter and not the boffins who are in charge of them.

Much has happened in the last six years, particularly in the use of computers in solicitors’ firms for routine administration and on both sides of the profession for fee collection and accounting.  There is still, however, deeply ingrained resistance to change, and we are still a very long way from the kind of revolution which will make the use of computers in law practices and judges’ rooms as commonplace as they are in the City and in modern business, where people are more directly exposed to the peremptory demands for change in out of date work practices coming from a competitive marketplace.  I do not believe that people realise how fast things are likely to change because those who have to pay for the services of lawyers and judges are going to insist on change.

I am chairman of a civil litigation working party set up by the Information Technology and the Courts Committee.  The working party is drawn from judges, barristers, solicitors and Government officials, and we meet three times a year to examine the ways in which IT is now permeating civil litigation and to discuss practical ways in which rules might be changed or indications given to the market so that IT can be more effectively harnessed to reduce delays and contain rising costs.

In January 1992 an article was published in the Law Society’s Gazette in which I articulated some of the worries I have concerning the slow pace of change and the disorganised way in which the market is responding to the challenges posed by technology. I have already received three letters from unknown solicitors who share my view, and I am sure more will follow.  Here is a sample of what they write:

“We have to say that present work methods are clearly counter-productive, both in causing unnecessary time in endless documentation and, more especially for the public interest, in jamming up the court system.”

“It is the experience of this firm that we are becoming overwhelmed by paper.”

“[In the multi-party actions I am handling] the volume of paperwork is quite staggering.”

These writers share my view that the present structural arrangements for conducting heavy litigation are out of date, but they do not all share my optimism that human ingenuity should be able to find solutions to these problems if the will to find solutions is there.  And a new potent factor in the equation is, or ought to be, a rising generation of young lawyers coming out of universities and polytechnics who have been familiar with computers since they were ten years old and who should be as aghast as I am at the way in which their elders do not see the ways in which a greater understanding of information technology can lead them to answers to some of the practical problems caused by the tide of photocopied paper in which they are now floundering.

Some Conclusions

In these random musings I have deliberately avoided comment on substantive law, except in the most general terms.  In the last thirty years solutions have been found to some of the problems which puzzled judges when I started to practise, and others have been eliminated by Act of Parliament.  The next decade will see, I believe, still further creative developments in such fields as estoppel by convention, the laws relating to confidentiality and the freedom of the press, and restitutionary remedies, to name but a few, and it is obvious that the modern developments in public administrative law are far from over.  But all these ought to be the stock in trade of the standard law degree course.

What I have tried to say in this short article is that there are less obvious pieces of baggage which ought to be part of every young lawyer’s equipment when he or she sets off to practise.  In a piece which I wrote for a school magazine four years ago, when I was still chairman of the Bar’s Professional Standards Committee, I suggested that every young lawyer by the turn of the century ought to come out of school and university not only competent to use a word processor, but also possessing a sound command of at least one other European language and of the principles of EEC and European Human Rights law.

After three and a half years as a judge, I am equally sure that they must also be firmly aware that the law is not just about rules and principles and exciting intellectual conundrums: it is about human beings and the muddles which human beings get into.  Unless they wish to practise far away from humanity and its muddles, an understanding of different facets of human nature in a rapidly-changing multi-cultural society, and an ability to empathise with their clients in their muddles is going to be an increasingly important part of their stock in trade if lawyers are not to be seen to be out of touch with their clients and their clients’ needs in a very rapidly changing social scene.

It is not only the young lawyer who needs to keep right up to date.  Fortunately, it is not as important for an English judge today, as Judge Learned Hand said it was two generations ago, to have

“…a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with books that have been specifically written on [constitutional law]”.

But then the remainder of that passage is as apposite now as it was then:

“The words he must construe are empty vessels into which he can pour nearly everything he will.  Men do not gather figs from thistles, nor supple institutions from judges whose outlook is limited by parish or class.  They must be aware that there are before him more than verbal problems; more than final solutions cast in generalisations of universal applicability.  They must be aware of the changing social tensions in every society which make it an organism; which demand new schemata of adaptation; which will disrupt it, if rigidly confined.”[15]

The last twenty years have been an exciting time to practise law.  I think the next twenty will be even more exciting.  I hope this article may have given some of those who read it an idea of what is, or may be, in store for us all.

 

[1]             “Some reflections on the Judicial Function: A Personal Viewpoint”, 38 American Bar Association Journal 107-8 (1952).

[2]             The Judge, by Patrick Devlin, OUP Paperback (1981).

[3]             Bulmer (HP) Ltd v J Bollinger SA [1974] Ch 438.

[4]             Barber v Guardian  Royal Exchange Group (Case C-262/88) [1991] 1 QB 344.  The Court of Justice held that if a woman was entitled to a retirement pension when she was 50 years of age, the equal pay provisions of the Treaty of Rome required a man to be similarly entitled.

[5]             R v Secretary of State for Transport ex p Factortame Ltd (No 2) (Case C 213/89) [1991] 1 AC 603.  The Court of Justice held that the English court was bound to grant an injunction restraining acts sanctioned by an Act of Parliament which contravened EEC law.

[6]             Most notably in Macarthys Ltd v Smith [1981] QB 180.

[7]             Christopher Carr QC.

[8]             Marshall v Southampton AHA (Teaching) (Case 152/84) [1986] QB 401; and Roberts v Tate & Lyle Industries Ltd (Case 151/84) [1986] ICR 371.

[9]             R v Secretary of State for the Home Department ex p Brind [1991] 1 AC 696.

[10]            Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109.

[11]            Rance v Mid-Downs Health Authority [1991] 1 QB 587 was a recent example.

[12]            When the case reached the House of Lords (in my absence at the Sizewell Inquiry), it was reported as Sidaway v Board of Governors of Bethlem Royal Hospital [1985] AC 871.

[13]            In re F [1990] 2 AC 1.

[14]            Benjamin Cardozo, The nature of the judicial process (1921).

[15]            Learned Hand, Sources of Tolerance, 79 University of Pennsylvania Law Review 1, 12 (1930).

 

 

 

 

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