Thank you, Alisdair and Phillip; and good morning to you all.
I am very pleased to be here today and to return to a University that forged a strong relationship with the leadership judges in the North of England when I first held that role a decade ago and provided me with some of my best Marshals – former students, now practising lawyers and academics who remain very good friends. Today gives me the opportunity, at a time of the most significant reform of our legal and judicial systems since the Judicature Acts of the 1870s, to speak to the next generation of lawyers and, who knows, the next but one generation of judges.
The law and the legal profession, and certainly those of us who are judges, are often characterized as ‘conservative’ (with a small ‘c’). We are, supposedly, resistant to change. We are thought to be necessarily traditional in our pre-occupation with consistency and certainty of outcome. It is a generally held view that reform of the justice system would be considered by us to be an anathema.
I want to suggest to you that is unfair, and also quite untrue. While it can be demonstrated that in every field of endeavour, there are conservative actors, there are also innovators. The liberal profession of the law is no different. And that is important: for the courts and tribunals are an integral part of what underpins our model of civil society, safeguarding as they do the rule of law, and providing for the citizen essential checks and balances as one of the three great limbs of the State. Institutions degrade over time if they do not reflect the needs of those they serve, ie if they do not reflect upon their purpose in a changing world with plural values or at least plural perspectives on those values. The justice system, perhaps more than any other, must regularly scrutinise itself and ask the question: are we safeguarding the rule of law and are our outcomes good enough, ie could we do better? That is the process in which the judiciary are involved at the moment and the consequence is a change programme on which the judiciary have embarked.
My part in the process is perhaps unique because as a judge I perform a number of different functions. I sit in the Court of Appeal in England and Wales where I determine appeals. That is the ‘day job’. As the Senior President of Tribunals in the United Kingdom, I am the head of jurisdiction statutorily responsible for leading about five and a half thousand judicial colleagues across a wide range of specialist tribunal jurisdictions from inquisitorial mental health and special educational need to adversarial tax, immigration, employment and property disputes. Change, reform, and the continuous drive for better, faster and just outcomes are hard-wired into both of the jobs that I hold. I also have the privilege of teaching at the Judicial College where I am the Course Director for the leadership programme, responsible for the design of a strategy for the future of the judiciary.
In our common law jurisprudential world, the system of law depends upon a continuing development of legal policy, to fit evolving social norms, usually incrementally but occasionally radically. Through the doctrine of stare decisis et non quieta movere (standing by precedent and not disturbing settled points) we allow the development of legal principles without hindrance from those in the executive
branch of government – that is the pragmatic effect of the Glorious Revolution on the law in England and Wales.
No student of the law who has been schooled in a landmark judgment from Lord Denning, Lord Bingham or Lord Dyson, could conclude that the law is not – albeit perhaps only from time to time – capable of being radical in its effect. Our judgments, whether of small or ground breaking significance, represent the independence that is fundamental to the judiciary’s role in domesticating, organising, patterning and empirically validating society’s values so that there is and remains a collective reputation and confidence in our process.
That the rule of law must establish a transparent process accessible and equal to all is a given: I need not digress today or in front of this audience into the many international declarations to that effect. That requires a proper administration of justice if the aim is not to be defeated by, for example, the impact of austerity: an approach to reform which runs the risk of price rationing which is the antithesis of equal access to justice. I want, therefore, to consider the role of the judiciary in the leadership of change.
Reform is often seen as the preserve of Ministers of the Crown ie Government. You might have seen the debate on the pages of The Times’ Brief between the Chairman of the Bar and my colleague, Lord Justice (Adrian) Fulford, the Senior Presiding Judge, over the past week or so. Is the judiciary’s involvement in driving reform programmes a dangerous thing? Is it putting at risk the very essence of judicial independence? I would suggest to you that Sir Adrian’s response is absolutely right: the answer is ‘no’. Although I have hinted at why, let me examine the process in which the judiciary are involved.
The next six years mark out the most ambitious period of change to the courts and tribunals system since the Judicature Acts of the 1870s. The aim that the Lord Chief Justice and I have agreed with the Lord Chancellor is, quite simply, to strengthen the rule of law. The court and tribunal reform programme that was announced this last month is a breathtaking £1bn investment project. It is the largest court and tribunal modernisation programme anywhere in the world.
To attempt this work without genuine, strong and effective judicial leadership would be patent folly: you cannot protect fundamental principles by not engaging in a process where cost, form and function are all in issue. To remain aloof and outside the process would risk the very encroachment that we seek to protect against. If we are to be involved, however, we must have an acknowledged basis for the ethical leadership principles that the judiciary will bring to the table. The framework document within which we work is just one aspect of this equation: a constitutional partnership between the Lord Chancellor, the Lord Chief Justice and myself which if broken permits and indeed mandates Lord Thomas and I to go to Parliament. At the level of the separation of powers we are involved in what Professor Sen would describe as governance by discussive reasoning: the exercise of public reason by deliberation and exchange of views which acknowledges the plurality of opinions held by the public, whether rational or not. To do otherwise would lead to a failure to acknowledge the needs of our citizens as users of the justice system.
Likewise, the institutional structures within which judicial leadership principles are applied must be constantly refreshed so that the justice system that we administer remains fit for purpose. It is no good having jurisprudence, rules and empirically sound principles of good practice if we are unable to implement them in our own system to deliver consistent, high quality, swift and accessible decisions. Those principles include the separation of functions or powers, the overriding objective, in particular individual and collective proportionality, access to justice and procedural propriety. Good practice must also include ethical leadership principles of the kind that are well known to your business school colleagues, for example those described by Northouse, Schein, Burns, Brown and Trevino among others.
So what are we trying to achieve? The problem to be solved includes lengthy delay that is inimical to justice, process and language that is unintelligible to all but the specialist user and a system that is so costly that access to justice has been impaired by the removal or lack of availability of affordable legal representation. It is incumbent on the judiciary to do something to address the decline that is inevitable if we permit that situation to persist. In doing so, we must be vigilant not to lose the sophisticated protections, both adversarial and inquisitorial, that the law has developed over the centuries to protect the interests of our users. In that context, the aim of our programme is to reform our process to make it clearer than it has ever been; to make it fit for the 21st Century – an environment where paper-based processes are to digital processes and cloud-based systems what the horse drawn carriage is to space travel. New process will inevitably lead to new rules and practices which need to be designed before we digitise them. We must strive to make our new processes as intelligible to the user as possible.
In the tribunals, the jurisdiction which I lead, we have a ground breaking project to create end to end on-line hearings for benefits appeals where we will replace case management hearings with continuous messaging and determinations with an appropriate mix of online questioning and virtual hearings. The process of on-line dispute resolution will become the norm for much of the less complex work in civil, family and tribunals jurisdictions, for example, you will see the development of an online solutions court for civil work under £25,000.
In order for on-line dispute resolution to work, we will need sophisticated document and case management systems in which judges, lawyers, and the parties will be assisted by trained registrars and case officers to prepare materials for the on-line environment. Preparation and presentation of materials for face to face hearings on tablets and screens has already begun in the Crown Court. Evidence can be taken electronically at the scene of a crime, including witness statements and video records and be used in court without the electronic case file ever being printed. The electronic file can be used in any way that paper, the pen and the human desire to analyse might wish. We understand that some of our more vulnerable citizens will neither have access to the digital world nor, perhaps, the ability to use it. Specialist providers will be commissioned to provide a coherent service for them. We acknowledge that we need to remove barriers created by fear and unfamiliarity with formal process so that we enhance rather than damage access to justice.
The challenge for us is to design new process which strengthens rather than dilutes the rule of law and which enhances the citizen’s access to justice. We intend to meet that challenge, utilising the significant experience and expertise at the judiciary’s disposal and by involving every professional group and the many interest groups that help, for example, litigants in person and those with special needs and vulnerabilities.
From the judiciary’s perspective, we can sometimes achieve change by the simplest device eg by providing dispute resolution opportunities during the process where frank early neutral evaluation can be undertaken or by the flexible deployment of judges so that they can sit in any court or tribunal jurisdiction including at the same time. The one-stop-shop being piloted by tribunal judges is an example of the future. In my property tribunal we are trialling the concurrent hearing of tribunal and court proceedings relating to property before one specialist panel so that the litigant can avoid going to separate places to get a complete solution to their property problems. What are concurrent jurisdiction hearings today, may well be a single hearing before a single specialist judicial forum tomorrow. There need be no distinction in the future between a specialist tribunal judge and a specialist courts judge. We must look forward to developing systems out of the best practice that we already have and where we propose change should be insistent that we follow empirically tested good practice.
The judicial diet of work, career development opportunities, and the tools given to judges – including their place of work, and their IT will change and to meet that change the face of the judiciary is changing. If you are thinking of entering the legal profession, it would do no harm to look at the judicial opportunities that might be available down the line.
Each of the reforms I have described is designed to concentrate our scarcest resources: judges, lawyers and other experts, on the cases that need them. The ways in which we work will change for the better with the consequence that disputes will be solved faster and in a more proportionate way.
I also hope that the places where we work will, as a consequence, be of a higher quality and more appropriate to the needs of the user. The court and tribunal estate is likely to be further reduced to concentrate better quality buildings in places where we need them to provide access to new ways of working. We will use alternative buildings to provide local access where that is needed: in the tribunals we have a long standing tradition of taking the judge to the user in an appropriate case. We can provide justice at the end of the street, if that is what is efficient, fair and just. Justice should still be local and it should form a part of the community rather than being separate from it.
It is my firm belief that we can achieve the transformation that the Lord Chancellor, the Lord Chief Justice and I set out in the vision statement published last month. I also believe that we have an obligation as members of a liberal profession with ethical obligations to each other and to the public to address the inevitable decline that will be experienced in the justice system if we do not act. We have an obligation in upholding the rule of law to work together to promote effective access to justice for all those who need it. As lawyers, or budding-lawyers, you have a part to play. As individuals, you will have an interest in the outcome. Collectively, once you enter the profession, you will have an ethical role that is as old as our profession to help uphold the rule of law to work together to promote effective access to justice.
In July, we welcomed a new Lord Chancellor into that historic office. She has a burgeoning ministerial red box, and some very obvious challenges inside it. As she reaches for the key to unlock that box, she undeniably has (and indeed recognises that she has) some valuable assets to call upon.
One such asset is the contribution made – which will surely continue to be made – by the legal profession to the life of this country. That is acutely relevant in a country embarking upon a journey out of the European Union. As a judge, I have to be careful about speaking on this topic, given in particular the article 50 challenge that the Lord Chief Justice, the Master of the Rolls and Sales LJ heard this last week. Brexit cannot, however, be airbrushed from sight. For lawyers, uncertainty brings opportunity. The innovation, integrity and proficiency of the legal profession, and the value of the legal services sector to ‘UK Plc’ in an era of globalisation, will help to ensure and secure the nation’s future.
The profession to which many of you aspire will undoubtedly come together to show what it has to offer to the various debates and changing circumstances that are prevalent. How can you help to improve the accessibility, efficiency and intelligibility of the justice system? How can you help ensure that justice is delivered in a timely manner and at a proportionate cost? How can you thrive in an ever-increasing global market? I have no doubt you and your future colleagues will be able to find the right answers to such questions, and find the right practices and structures to take advantage of all the opportunities that both innovation and the global market provide. A digital world may be more effective and efficient, it may even be more accessible and proportionate, it will hopefully be swifter and more intelligible, but it does not provide a substitute for the sophisticated skills of the advocate and the litigator.
Ladies and gentlemen, we are on the cusp of major reform, to try and improve the rule of law by making it more accessible to the public. I hope you will agree that is a worthwhile endeavour, and that it whets your appetite to get involved.