I hope that it is no bad omen that this conference is held in the British Library, opened by the Queen in June 1998. It was in 1971 that a White Paper first recognised that rehousing the British Library was a priority. When eventually accepted in principle, the project became the victim of delays and rising costs. And in 1988 the government decided that it would only provide funding for a building approximately two-thirds the size of the original plan. But here at least we are.
This conference will discuss the prospects of any new development in the Royal Courts of Justice (RCJ), particularly on the Queen's Building site. I am not convinced by the dichotomy suggested by the second question of its title. George Street's masterpiece stands as a symbol of justice in its own right - not as an incentive to litigate in the County Court or a memorial to the impecunious who formerly frequented Carey Street.
When it was opened, Lord Selborne, then Lord Chancellor and himself architect of the Judicature Acts fusing law and equity (but still, according to Queen Victoria's Journal, "dreadfully nervous"), said in addressing Her Majesty:
"these Royal Courts of Justice, stately enough to satisfy even those who are accustomed to Westminster Hall, recall the memories of Norman or Plantagenet, of Tudor Stuart Kings; but they will be forever associated with the name of your Majesty".
The need for suitable substitute accommodation for courts moving out of the Palace of Westminster is once again topical. The Lord Chancellor added his regret that George Street, the "great Master" of the RCJ, should not have been spared to see their opening.
The serious point is that the RCJ is part of our national heritage. It is inconceivable that it could be put to other use, or torn down. But only 12% of it consists of courtrooms, 7% of judges rooms, 10% of offices, a miserable 0.50% of consultation rooms, and a massive 70% is circulatory, lift and other unadaptable space - quite the reverse picture to any modern court building. Yet the Treasury still applies to the Court Service a policy of full cost recovery which makes no direct allowance for the unalterable nature of the building. The operational costs of the RCJ include charges for depreciation and cost of capital, in respect of a building which was in fact funded by sums paid into court and unclaimed by those interested! These charges total some £18m, well over 20% of total costs. The projected shortfall on RCJ activities in 2003-4 is understood to be some £55m, (costs £76.5m against income of £21m), a deficit which falls on the general Court Service budget and prejudices any new capital project.
There are of course some steps that can and should be taken to improve the efficiency and utilisation of the RCJ. They already are being taken. To start with minor ones, we have opened a small shop, and a gym in the basement (although too few lawyers and judges seem to want to compensate for their sedentary legal life). Much more significantly, the RCJ's ever active superintendent has hired out various parts of the building for the grandest parties and dinners. As judge with responsibility for the building, I have received an objection from a member of the Court of Appeal Criminal Division, to loud music in the middle of a summer's evening which, he commendably said, made it intolerable to work beyond 7.30 pm in preparation for his next day's stint. I had to point out that the RCJ had earned £7,000 from this one evening alone.
Even more significantly, we are taking steps to improve courtroom utilisation. A joint Treasury-LCD review early this year identified rightly identified this as a general area requiring attention, in particular in the RCJ. We have undertaken a survey of usage and appointed a co-ordinating listing officer, and we are looking at greater double listing, without I hope inconveniencing litigants or lawyers. One of the aims of future reorganisation will also be to bring work into the core RCJ buildings from other sites.
There is also room for fee increases, particularly to take account of the length and size of larger commercial and chancery cases. At present, there is no daily fee. That is clearly wrong. And, if better services could be provided, by way of consultation rooms and office facilities, then sensible charges could be made for them. This too is under consideration.
At the end of the day, however, the Treasury must face the fact that civil justice will never pay for itself. This is particularly true of the RCJ. The Treasury Review contained a healthy and realistic assessment, recognising that - whatever might be done in terms of improving efficiency and raising fees - the RCJ raises a heritage issue, and requires public subsidy.
At present, we are locked into a Treasury philosophy of full fees recovery, and into a budget assigned to the Department of Constitutional Affairs which covers a multitude of costs apart from the Court Service, including the department's own buildings and costs and the legal aid bill. Even when the DCA obtains extra monies from the Treasury, there is no guarantee that they will go to their intended source. There is no ring-fencing. A soaring bill for publicly funded services may unexpectedly consume all available resources, as in 2002-3. And the most recent three-year spending round review which ended in 2002 made no mention of the modernisation of civil and family courts, although some funds have been found for IT.
The Lord Chief Justice is on record in his Mansion House speech of 17th July 2002 as stating his belief that we are giving the justice system too low a priority in relation to resources. He made particular reference to the Commercial Court, the TCC and the Chancery Division. These are all courts that the judiciary had hoped and planned to include in a rebuilt Queen's Building. A great deal of preliminary work, including detailed architects' drawings, has gone into preparing plans. These should offer considerable associated benefits, enabling both rationalisation within and the disposal of property and rationalisation of the Court Service estate outside the central RCJ complex. The most obvious, though not only candidate, outside is St Dunstan's House - at present the sadly inadequate centre of our internationally renowned Commercial Court. It was built as an office block and should be sold as soon as possible, so as to revert to its intended role or be demolished.
Unlike criminal law projects, however, Commercial, Technology and Construction (TCC), and Chancery courts are not seen as important or newsworthy in political terms. Their vital role in society, and for the continuing success of the City and of this country's service industries and the balance of payments, has been too easily overlooked or taken for granted.
Further, to expect individual litigants, however large companies they may be, to pay for the entire cost of providing civil and family justice (with fee exemptions given only to the very few) is both unfair and ill-advised. The court system underpins a whole range of commercial, industrial and personal transactions and activities. Most of these never get near court, for the very good reasons that the system is there in case of need, and a relatively small number of prior decisions have established principles that make fresh litigation unnecessary. There is a wider social benefit derived from an established justice system, which makes it inequitable and counter-productive to place the whole burden on those particular litigants who actually end up before a court. In other Commonwealth countries, New Zealand and Australia fee income pays for less than half the cost of civil and family courts.
The Civil Justice Council has come out vigorously against the principle of full costs recovery. The Lord Chief Justice pointed out in the House of Lords on the second reading of the Courts Bill on 9th December 2002 that until the 1980s fees were not expected to cover accommodation costs or judicial salaries and pensions. Only since 1992, following changes made without formal announcement still less Parliamentary debate, has the Treasury insisted that both be covered.
The philosophy ignores the role of the justice system as one of the three pillars of state. The Consultative Council of European Judges (CCJE) was established under the aegis of the Council of Europe in 2000.
I serve as the United Kingdom's representative and currently also chair the Council. One the first subjects that we examined was funding. Our second opinion in 2001 said (para. 9):
"Unfortunately economic aspects may dominate discussions concerning important structural changes of the judiciary and its efficiency. While no country can ignore its overall financial capability in deciding what level of services it can support, the judiciary and the courts as one essential arm of the State have a strong claim on resources."
It went on:
"it [is] therefore important that the arrangements for parliamentary adoption of the judicial budget include a procedure that takes into account judicial views".
The opinion then summarised the position in a number of other European countries, where there are more or less formal arrangements for Supreme or other courts to submit budget proposals direct to the Minister of Justice or Finance, or even, as in Switzerland, Lithuania and Russia to Parliament.
The topic of judicial involvement in the budget for judicial activities is new in England. But it is given very considerably heightened relevance by the recent constitutional reforms, so abruptly announced by the government earlier this year and now the subject of consultation after the event.
In giving the 11th Francis Mann lecture on The Independence of the Judiciary in the 1980s on 17th November 1987 (published in Public Law, p.44), Sir Nicholas Browne-Wilkinson, as he was, identified a threat to judicial independence and to the administration of justice through the Treasury's insistence in negotiation with the Lord Chancellor's Department (LCD, now Department of Constitutional Affairs, DCA) on "value for money".
He observed that, traditionally, there had been a mitigating feature for the lack of any direct judicial influence over the budget, in that:
"the unique constitutional position of the Lord Chancellor, as both a minister of the government and head of the judiciary, though inconsistent with the doctrine of the separation of the powers, provided a flexible and effective means to transmit the needs of the legal system to the executive and to Parliament".
However, the effectiveness of this means had, he thought, diminished with three changes: (a) increased legal activity and costs in the criminal and civil fields, with the introduction of legal aid, (b) the consequent pressure on the LCD's general and un-ringfenced budget and (c) the shift in control of the administration of courts from judges to the LCD flowing from the reorganisation of the court system following the Beeching Report of 1971. It was no longer sufficient to have separate chains of command until one reached the chairman at the apex, the Lord Chancellor, when there was no machinery for resolving conflicts at a lower level.
The recent constitutional reforms will abolish the chairman. For my part, I have no regrets about that in relation to the power to sit judicially and the power of a single person to appoint judges. Neither was appropriate. The CCJE also commended the use of independent appointments commissions in its first opinion (paragraph 45). It introduced a pragmatic qualification for countries with some "other long-entrenched and democratically proved" system - a qualification which no longer of course applies to England after the recently announced reforms. But I do have regrets for the passing of a refined mechanism by which the wishes of the judiciary could be transmitted to and represented at the heart of government. From now on the judiciary and the Department of Constitutional Affairs (DCA) will appear as separate and counterpoised bodies, one the executive the other the judiciary. That is an express purpose of the reform, but it carries risks.
It is of course also an express objective of the DCA (no. VI) to "deliver justice in partnership with the independent judiciary". But this is, at present, a somewhat unequal "partnership", with no very clear guidelines, and with executive power all on one side. One of the most urgent tasks will now be to ensure that a number of powers presently held within the DCA, because of the dual role of the LC, are transferred to judicial control. Discipline in respect of judicial matters is one of the most obvious, but not the only one. Another will be to establish secure means of co-operation in relation to matters that remain with the DCA.
In the area of civil justice and the physical resources available to it, the activity of the newly reformed Judges' Council, with members from the Circuit and District Bench and in future probably the magistracy, will gain added importance after the reforms. Judges are anyway been increasingly involved in consultation in certain fields, e.g. IT and modernisation generally. We were consulted in a thorough and, I think, unprecedented way by those who undertook the LCD-Treasury Estates Review. This Review recommended the establishment of a National Property Board. Although that will not be an executive body (of which it might have been difficult for a sitting judge to be a member), I sit on that advisory body as the judicial representative and intend and hope that it will be effective at putting forward the judiciary's viewpoint on property matters.
Within the RCJ, there is excellent co-operation with both the director and superintendent. You will be hearing from the former. Their support for a new Queen's Building, hopefully greater rather than smaller, and for the general re-organisation which will be necessary to achieve that, is both undoubted and enthusiastic.
But the judiciary has still by and large to establish really effective co-operation and influence at an early enough stage with the executive in many areas relating to the justice system. It is no use being advised after the event of decisions or changes. The next challenge will be to work on ways of achieving that co-operation more generally. It is no good muddling along from year to year and crisis to crisis. We need to achieve clearly defined long-term plans for the development and improvement of our court system, with secure funding. Let us ensure that reorganisation of the RCJ coupled with redevelopment of the Queen's Building site can be part of these.