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Lord Woolf
The Lord Chief Justice of England and Wales

Current Challenges in Judging The 5th Worldwide Common Law Judiciary Conference

Sydney, Australia

10 April 2003

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The landscape in which judges have to perform their craft has been transformed. New responsibilities have been imposed upon the judiciary and those responsibilities have created new challenges for judges. They are both domestic and international. It is on the domestic challenges and how to meet them that I am going to concentrate this morning. I start with responsibilities.

It is my theme that, just as the common law has evolved to meet the changing requirements of society, so should the role of the common law judge. It is of critical importance to society that the judicial role evolves in this way. Unless it does so, the judiciary will be unable to fulfil the expectations of the public whom we serve. Whether it does so, will depend on the calibre and commitment and organisation and training of the judiciary. It will also depend upon the executive and legislature providing the judiciary with the support the judiciary require.

Traditional Responsibilities

I emphasise that, while our new responsibilities are of very considerable importance, this does not mean that the judiciary's traditional responsibilities have lost any of their significance. The standard of justice in a particular jurisdiction, and certainly in mine, continues to depend primarily upon the quality of its judges and their ability to find the facts so as to divine where the truth lies or, in a jury trial, to control the trial and sum up the issues in a way which assists the jury to perform their role. In addition, in common law jurisdictions like ours, the ability of the judges to develop the substantive law is of great significance.

At one time, our courts would not give advisory declarations. The previous rules of procedure referred to declarations of rights. The words 'of rights' have been dropped from the current procedure rules. However, before that amendment was made, there were circumstances in which the courts were already granting advisory declarations as long as there was a genuine dispute. Of course, there will be situations where it is appropriate to do this, but others where it is not appropriate. If the meaning of legislation is not clear and substantial expense will be incurred if either the government or a member of the public takes action the legality of which is disputed, it makes good sense to resolve the dispute as to the legality of what is proposed. On the other hand, prior to the beginning of the Iraqi war, the Divisional Court, presided over by Lord Justice Simon Brown, in my view properly refused to grant a declaration as to the legality of what might or might not happen in the future in that conflict.

A more recent development is for the government to consult the judiciary on proposed legislation, which will affect the judiciary if implemented. At the present time, this is particularly true in relation to criminal legislation. To legislate as to the conduct of trial or as to sentencing without consulting the judiciary is unhelpful. Almost any legislation in relation to criminal justice has resource implications, which the judiciary are in the best position to assess. In addition, the judiciary are best equipped by experience to speak with authority on legislation. In the case of legislation which arguably infringes the rights of individuals, the judiciary can at times identify a means of mitigating the consequences of what is proposed.

Let me give an important example. When the establishment of our Special Immigration Appeals Commission was proposed, the legislation described it as a court of record. In response, the judiciary proposed and the government accepted that Court of Appeal and High Court Judges should be seconded to SIAC. We were content that, stiffened in this way, it was appropriate to designate SIAC as a court of record.

Access to Justice

At the forefront of the new challenges facing the judiciary, I place the obligation of the judge to help those who need the assistance of courts, to obtain access to justice. This involves managing the justice process. There are, of course, litigants who need no assistance. Those who can afford to employ competent lawyers can usually, but not always, look after themselves. However, outside the commercial field, there are fewer and fewer litigants who are in this privileged position in civil proceedings. If the great majority of litigants are to receive justice, the judiciary must no longer be passive but be prepared to promote the resolution of disputes. They have to be proactive in directing litigants to the correct forum in which to resolve their dispute. This is not, by any means, necessarily the courts. Where an alternative method of dispute resolution is better suited to the task, the courts should have the responsibility of pointing the litigant in the correct direction. Whether to follow that signpost is a matter for the litigant. Where litigation in the courts is unavoidable, then the judges need to be proactive in promoting settlement, the control of costs and the expeditious resolution of the dispute. There is an obligation upon us to strive continuously to reduce complexity, to simplify our procedures and make the law readily accessible.

As a symbol of what was required I urged, as part of our reforms, the abolition of Latin and the adoption of simple English when rewriting our Rules of Procedure and, indeed, in our courts. A recommendation which was singularly ill-received. How, it was complained, were you to make an ex parte interlocutory application in terroram for an interim order of certiorari when the court needs to be assisted by an amicus curiae if there is no guardian ad litem or any pro bono representative? While no one takes it too seriously, we are making progress. On 21 March, I received a letter from the Chairman of the venerable City of London Magistrates, saying that from now on they are not going to adjourn sine die but adjourn without date. I had suggested adjourn generally. I did hold a competition for the best substitute for 'pro bono'. Despite protests from a number of colleagues, the competition was a great success. I was, though, extremely worried for a time because I had offered a magnum of champagne to the winner and it looked as though the winning selection was going to be the choice of about a dozen different competitors which would have set me back a sizeable sum. Fortunately, however, I ended up only having to provide three magnums for 'law for free'.

The fact that the new rules are in understandable English may not be a seismic change. But it is a significant change because it is a signpost to the new contemporary role of the judge. This involves the judge taking a hold of litigation and determining its shape and the timetable according to which it is to be resolved. It necessitates judges being given and exercising greater discretion. Discretion to determine: in what order to resolve the issues; the evidence which shall be called; how issues are to be proved and the costs which it is appropriate to incur in resolving the dispute. Giving judges greater discretion involves trusting the judges to exercise their discretion properly. The exercise of discretion should not be readily interfered with on appeal. Appellate Courts must exercise self-restraint.

When preparing my interim report, I decided that we should start by identifying the overriding objective of a civil justice system in accordance with which the judge should exercise his discretion. This was novel, but important, because it identified what should motivate a civil justice system. Part I of the new procedure rules identifies the overriding objective as enabling the court to deal with cases justly. Because this rule epitomises the philosophy of our civil justice system it is worth setting out in detail. Part I states that dealing with a case justly includes, so far as is practicable:

1. ensuring the parties are on an equal footing.
2. saving expense.
3. dealing with the case in ways which are proportionate -
   1. to the amount of money involved;
   2. to the importance of the case;
   3. to the complexity of the issues;
   4. to the financial position of each party;
   
   
4. ensuring that it is dealt with expeditiously and fairly; and
5. allotting to each case an appropriate share of the courts resources whilst taking into account the need to allow resources to other cases.

The general view of the new rules is that they have improved procedure but, for reasons that I have not time to explain, they have not yet tackled the problem of costs. Interestingly, what has been most successful in opening up 'access to justice' has been the small claims procedure. This is designed to be accessible to the litigant acting in person. The court fees were reduced. There is usually no order as to costs. The procedure from beginning to end is intended not to last, and does not last, more than a couple of months. Expert evidence is curtailed. The success of the procedure is illustrated by the number of claims made - last year there were just over 55,000. The fact that, on the whole, claims do not settle indicates that litigants do not feel that they are compelled to settle. They can afford to litigate. This is surely what justice is about.

What is true of civil justice is also true of criminal justice. In the case of crime the State invariably picks up the bill but this does not reduce the need to control expense. The need to promote the simplification of procedure and the substantive law is equally important. However, the challenges are greater in achieving this in a criminal trial because of the consequences which can result from a wrong conviction and the fact that sanctions can be applied to a defendant facing a criminal trial. Furthermore, a defendant to a criminal charge must have a greater say as to how his trial is conducted. Administrative convenience cannot interfere with the need for a criminal offence to be strictly proved. Subject to these considerations, however, there is no reason why criminal justice should not be efficient and effective. In criminal as well as civil proceedings, the judge has a responsibility to ensure the cooperation of the advocates in achieving proportionate justice. I earnestly hope that the legislation now proceeding through our Parliament will result in the establishment of a new Criminal Procedure Rule Committee and Sentencing Guidelines Council. We also hoped there would be a Code of Evidence, but the Government, for reasons I have difficulty understanding, found this unacceptable. A Code of Criminal Law would be of great value. This is something that the Law Commission has long advocated and in relation to which they have done an immense amount of preparatory work. If these codes are established, they will make a huge contribution to making law accessible. Codes are essentially a civil law concept and are an example of how one system can help another to promote justice.

The incorporation of the European Convention of Human Rights into our domestic law has added a new dimension to the task of achieving justice in the UK. Prior to this happening the judiciary had taken pride in their development of their administrative law. They were entitled to do so because there had been a remarkable change.

The scale of the change in England is reflected in the fact that as late as 1968 Sir William Wade was complaining that there was "an extraordinary reluctance to recognise (administrative law) as a body of general principles, indeed to recognise it as a subject at all". Yet in the 8th edition, published in 2000, of Administrative Law, he stated:

He went on to say:

Sir William added that:

Sir William is clearly in favour of the expansion, but fears the risk of the judiciary being politicised. Our experience is that Sir William's fear has to an extent proved justified but not in a way which is doing more than create ripples in the relations between the executive and judges.

The task of a judge, on an application for judicial review, involves the exercise of discretion because the remedies which the court would grant if an application was successful were the old prerogative remedies without their latin tags. Where a court is applying a convention of human rights, such as those contained in the European Convention, the court is given an additional responsibility in the case of most of the rights. The right to life and the right not to be subjected to cruel and unusual punishment are absolute rights, but the majority are qualified so as to preserve the needs of a democratic society. An example is provided by article 8, which establishes the right to respect for an individual's private and family life, his home and correspondence. The right is subject to an exception in respect of interference which is "in accordance with the law and is necessary in a democratic society, in the interests of national security, public safety or the economic well-being of a country for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others". A balance has therefore to be drawn between the state and the individual and a judge is responsible for determining where the balance lies. This is a task new to the English judiciary, but a task of which the judiciary in many commonwealth jurisdictions have long experience. How the balancing act is done is extremely important. To be too favourable to the citizen can frustrate the ability of the government to govern and to be too favourable to the government can devalue the rights. To assist the English judges to strike the balance correctly, we have developed a doctrine of deference which they extend both to the legislature and the Executive when appropriate. On matters of national security, for example, a high degree of deference is shown. Similarly, in relation to matters of economic policy. There will be situations, however, in which that the public body whose actions are being challenged is no better qualified to determine the issue than a judge. The position of the individual making the challenge also has to be taken into account. Such is the scale of the change involved in moving from a jurisdiction where the courts enforce public duties to one where the courts are required to enforce public rights, that a degree of conservatism is a virtue. Insofar as this is possible, the objective should be to convince the legislative and the Executive that the supervision of the courts is wholly constructive. It results in better administration, better government and better legislation.

Standing

I now turn to the question of standing (you will note I do not use the term locus standi). It was on applications for judicial review that the traditional restrictive approach of the courts on standing melted away and was replaced by a broad and flexible approach. Today our procedure requires the leave of court to commence proceedings or there is a power in the court to strike out proceedings which have no prospect of success. There is, therefore, no reason to have a restricted rule as to standing; if an action has no merit, it will not get past the starting gate. There was not even any risk of a defendant being inappropriately embarrassed by proceedings because there is no requirement for a defendant to appear or make representations on the preliminary hearing to see whether permission should be granted. The generosity of the requirements of standing has allowed a much broader range of issues to be brought before the court than was the situation in the past. In particular, the jurisdiction of the court to grant a declaration has expanded as rapidly as the rules as to standing have been relaxed. This change of approach has resulted in the most difficult situations which a court has to determine coming before the courts for decision.

In particular, the medical profession has sought guidance as to the legality of a proposed course of conduct in the most harrowing of situations. To take as examples: whether it is right to turn off the life-support machines in the case of someone who is "brain dead" and what action should be taken in relation to conjoined twins if an operation to separate them would almost certainly result in the death of one twin, but a failure to operate would result in the death of both within a relatively short time. A case being heard by the Master of the Rolls, immediately before I left England to come to this conference, was brought by a concerned member of the public challenging the right of our Human Fertilisation and Embryology Authority to permit the mother of a four year old boy with beta thalassaemia to go through IVF treatment. The child, Zaine, suffers from a genetic condition that strips his body of the ability to make red blood cells. His mother wanted to go through a process of combining IVF with genetic diagnosis of the embryo to ensure that the embryo which was implanted would produce a child with matching tissue. If this could be achieved, the umbilical cord blood could be used to treat Zaine. Without this treatment, the probability was that Zaine would die. However, the difficulty arose because the prospects of getting an embryo which would serve the purpose were no more than 1 in 12. This meant that the IVF treatment of the mother would almost certainly result in embryos being destroyed. The person who initiated the proceedings was a member of a secular organisation that opposed the destruction of embryos. She contended that the process of producing what the media describes as a "designer baby" was unlawful and that the Authority was not entitled to authorise what was proposed. The objector was successful before the judge and the Authority has appealed. Not unreasonably, the mother regards the life of her child as hanging on the decision of the court.

Issues of this sort naturally involve human rights, not least the right to life. The objector is concerned with the right to life of the embryos, the mother with that of her child. The court will have to decide where the law stands. In some of these cases, although the consequences can be highly emotional and heart-wrenching they have to be resolved purely as a matter of interpretation. Others have to be resolved by a matter of deduction from first principles. In determining the cases, the courts have to show that they fully appreciate the scale of the issues involved and why they have come to the conclusion they did. The fact that these cases are difficult is demonstrated by the number of times a decision at first instance is reversed on an appeal. The full extent of the legal problems sometimes does not manifest itself until the appellate hearing.

I have already indicated that the Human Rights Act has a role to play in these cases and there is a provision in the HRA which caused the judiciary some concerns, but in relation to which our concerns were not heeded. It states (section 7) that a person who claims that a public authority has acted in a way which is made unlawful by section 6 of the Act can bring proceedings against the Authority but, and these are the important words, "only if he is (or would be) a victim of the unlawful Act". It was pointed out by the judiciary that this was a much narrower test than now is applicable on an application for judicial review. However, in practice, if an applicant is not seeking compensation, section 7 appears to be causing little difficulty. The argument appears to run thus. If the court itself is a public authority, it would be unlawful for the court to contravene the ECHR. And if the court came to a result which was inconsistent with the ECHR, it would be acting contrary to the ECHR. As to this complaint, the litigant would be a victim of the court's breach.

The Partnership and Management of the System

As is happening in most other jurisdictions, there is now a realisation in England and Wales that the managerial role of the courts should not be restricted to managing litigation. The court system requires management. In our jurisdiction, the Court Service, an agency under the Lord Chancellor's Department, is responsible for providing and running the courts. This does not, however, mean that the judiciary have not a role to play. On the contrary, it is now accepted that the court system will only be effective if it is run by partnership between the independent judiciary and the government agency, the Court Service. The role of the Court Service is to support the judiciary and ensure that the judiciary are in a position to provide the standard of justice which the public require. To achieve this there are, at every level of the judiciary, judges who, in partnership with the civil servant of an equivalent seniority, have responsibility for the overall delivery of justice, either in a particular court or in part of the country or in the jurisdiction as a whole. Judges are not trained administrators, a subject which I will touch upon later, but they have a much greater practical insight into the workings of courts than it is possible for bureaucrats to have. Part of the court system is of course the judiciary serving within it and the judge who is responsible for working within the partnership can also provide administrative leadership in relation to his or her judicial colleagues.

Consultation as to legislation

As I have mentioned, the judiciary in England and Wales are playing a greater role in advising on what should be included in prospective legislation and as to the interpretation and effect of existing legislation. Consultation is not necessary in relation to all legislation, but is very important in respect of legislation that has a direct impact on the justice system. The government is apt to forget that legislation can affect the courts even if it is not directly concerned with the courts. It will give rise to litigation. We try now to tell the government department promoting the legislation what we anticipate to be the cost implications for the courts and ask who will provide the resources. If the necessary resources are not provided, there will be a negative impact on the provision of justice. Co-operation as to how legislation is to be implemented can also assist.

Our Law Commission is traditionally chaired by a High Court Judge. The Commission makes a very significant contribution to improving the quality of our substantive law by its reports which often include draft legislation.

In assisting in the way that I have indicated, the courts take good care not to become involved in party political issues. Their sole concern is to achieve the best results for the administration of justice. In co-operating in this way, members of the judiciary do not sacrifice their independence. They do no more than make recommendations. It is possible to have co-operation between the different arms of government where there is a community of interests. Both in the case of civil and criminal justice, there is now co-operation to achieve the best results for the government, the judiciary and the public. With reform of the system taking place with the frequency that it does at present, it is essential that the different arms of government work together to make a success of those reforms.

Judges in England and Wales also give evidence before Parliamentary Committees from time to time. I believe I was one of the first judges to do so. We now have agreed guidelines for judges who are considering attending.

Providing Judicial Training

Reforms result in a need for judicial training and that must be retained in judicial control. The training must be independent of any suggestion of political bias and the training of judges by judges ensures this. With independence of the judiciary comes responsibility and we are slowly moving forward to the adoption of performance appraisal for the judiciary. Again, this process must be in the hands of the judiciary. Naturally, there are healthy concerns and with experience we will learn how it can be done in a way which supports the judiciary and certainly does not interfere with their independence. Because of the increased administrative responsibility of judges, the training which is made available should include training in management.

The welfare of the judiciary

The senior judiciary should be especially concerned about the welfare of their more junior colleagues. The stresses to which the judiciary are subjected while performing their responsibilities under the glaring scrutiny of the media are of a different order from those in the past. Judges can need support. Certainly in England, it is being increasingly realised that new judges may need mentors. The lonely responsibility of a judge sitting alone doing justice can at times become unbearable. It is difficult to impose upon busy colleagues. I believe there could be great value in another judge being identified as the person responsible for giving you support. Similarly, the performance appraisal process I mentioned earlier can give judges valuable reassurance and tactful guidance as to how they can improve. Another form of assistance we have recently provided for our judicial colleagues is the provision of a helpline to which they can refer if they have problems in relation to which they need counselling.

Our concerns as to standards should not be limited to judicial performance. As effective legal profession is critical to the health of the justice system. The judiciary should be playing an important role in promoting and assisting in academic and vocational training for those who are seeking to enter the profession and in the continuing education programmes which are today so much part of maintaining appropriate professional standards. The reforms which have been made and are yet to take place within the English judicial system are elevating the responsibility of the legal profession for the administration of justice to a higher level than has existed in the past. It is not easy, in the contemporary world, for members of the legal profession to maintain a sufficient degree of independence from their clients to be able to perform their duty to the court.

Conduct of Inquiries

A responsibility which we place upon the judiciary, which in some jurisdictions would be thought to be at least questionable, relates to inquiries into matters that cause deep public concern. I regard it as being part of the responsibility of today's judiciary, at the request of the government, to conduct such enquiries as long as they are likely to fulfil a need for public reassurance. A good example of a successful inquiry is that conducted into the spread of 'mad cow' disease. Considering the importance and difficulty of the subject, the Master of the Rolls conducted that inquiry with a care and expedition which was admired on all sides. It involved his going on a teach-in as to the science. It resulted in recommendations which I hope will avoid a further disaster occurring in the future. It would be invidious to mention all the other inquiries that have successfully taken place but I will mention two that are current. One is into the multiple murders which Dr Shipman was able to commit. Within three years that will be completed. The merits of the Saville Inquiry into the shootings in Londonderry on Bloody Sunday are more debateable. That inquiry has already been operating for 5 years and there is a further year to go.

The Saville Inquiry is an example of international judicial cooperation because as you probably know, although the inquiry is chaired by a British judge, he has the benefit of the assistance of the Honourable William L. Hoyt (former Chief Justice of New Brunswick, Canada) and the Honourable John L. Toohey (a former Justice of the High Court of Australia). The cost of this exercise is astronomical even with the most advanced technology that could be devised for any tribunal. As of the end of October 2002, Northern Ireland Office funding of the Inquiry totalled £71 million. The current estimated cost of the Inquiry to the Northern Ireland Office is £120 million. If the Secretary of State's challenge to the Senior Costs Judge's ruling on payments to Counsel for the families is unsuccessful, that will add an estimated sum of at least £6 million to the costs. Is it all worthwhile? Well opinions differ and I do not feel that I should comment further.

Complaints against the judiciary

In addition to helping with inquiries of that sort, one of the improvements we have recently achieved, merely as by a matter of contract, is the establishment of a clearly-defined procedure covering the investigation of complaints against a member of the judiciary. Both the member of the judiciary and the public need protection. If a complaint is of any merit and might cause the Lord Chancellor to consider taking action, it is important that the facts are objectively ascertained. For this purpose, I have the responsibility of appointing a judge to carry out an investigation. Under the agreement made with the Lord Chancellor, my consent is required before any disciplinary action is taken by the Lord Chancellor. This is an important provision, which recognises the constitutional position of the Lord Chancellor who, in relation to judges below the High Court, can remove a judge for misconduct while protecting the independence of judiciary.

Providing knowledge about the legal system

The rather solemn responsibility of protecting the judiciary is matched by a responsibility, which I believe we have, to promote the next generation's understanding of the rule of the law. For this purpose we now have, I am glad to say, a successful programme of visits by judges to schools and by schoolchildren to the courts. I am sure we are not exceptional in this, but it is not a task which the distinguished judges who were in office when I became a barrister would have readily or comfortably undertaken. I take great satisfaction from the enthusiasm with which my current generation of colleagues have taken up the cause (a project now supported by an admirable website).

Assisting the judiciary of other jurisdictions

Another new responsibility of great importance, which I am going to address in much greater detail at the Commonwealth Law Conference, is the judiciary's responsibility to work with and where appropriate, support the judiciaries of other countries. This is one of the greatest importance in the global society in which we now exist. The judiciary of the older democracies are fortunately to be spared the pressures to which some of the new democracies are subjected. The older judiciary, based on their experience, are peculiarly well placed to provide independent and impartial advice and assistance to jurisdictions where this is needed.

Promoting confidence in our own systems

If the judiciary are to shoulder these many responsibilities, it is critical that the public have confidence in the integrity and quality of their judiciary. It is because of this that I am concerned, deeply concerned, as to the corrosive reporting of the tabloid press. Today reporting is ignored which in the past would have been regarded as amounting to contempt. It would be wholly undesirable, however, to use the blunderbuss of contempt to restrain the media. The provision of press notices and identified press liaison officers can help. The main defence of the judiciary has to be the fact that at all times their conduct is beyond reproach. In addition, the judiciary must seek to avoid unnecessary controversy and take care to explain their decisions in their judgments with as much clarity as possible. Although I worry about the effect of the media, I am reassured by the fact that when there is a matter of real concern to the public it is usually to the judiciary that both the public and the government turn to ensure that there is an impartial and thorough investigation into the causes of the concern.

Judges' Council

A recent response of the judiciary to the greater challenges with which we are faced is the reform and revitalisation of our Judges' Council. This semi-moribund body has now been refurbished so that it is in a position to speak for our judiciary as a whole. Already we are reaping the benefits. Issues such as judicial pensions and the publication of a first advisory code of ethics are on its agenda. I have no doubt that in the times that lie ahead, the voice of the Judges' Council will need to be heard if we are to achieve what must be our target for the future.

That target is to preserve the best in our system as it has evolved over the centuries while at the same time making the changes necessary to ensure that our judiciary continue to be capable of meeting contemporary challenges. What we are doing is providing a contemporary service. The nature of that service is evolving and continue to evolve. However, we must make clear that, if we are to continue to maintain the quality, the service we provide must be properly resourced.

I am conscious that the account I have given of what is happening in my jurisdiction may be excessively parochial. I hope this is not critical. What is critical is, first, that the common law judiciary today is proactive, not reactive, in their response to the challenges that they face in administering justice. Secondly, that the fundamental role of the judiciary in promoting a just society is respected by the other arms of government and, thirdly, that we, the judiciary, deserve that respect.

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