I am grateful to the Governors of International Students House for extending to me the invitation to deliver this lecture. I understand that students from 85 different countries are in residence here and that the Club includes members from an additional 50 countries. I am delighted to have this opportunity to speak to such a diverse audience, and I have chosen a topic that will allow me to mention as many of your nations as possible.
I should explain that I am not a lawyer. Indeed I am the first Permanent Secretary not to have been a lawyer since my department was created in 1885, and the first although the 50th holder of my other office, Clerk of the Crown in Chancery, not to be a lawyer, since 1350. However, after 5 years in my job, and some demanding tutorials from the Lord Chancellor, I shall boldly make some comments on the common law context which is the foundation for Britain's reputation abroad.
I am not quite sure if it is more appropriate for a Denning Memorial Lecture to discuss a topic that Lord Denning would have approved of, or to discuss a topic that he would have disapproved of. I expect he may well have been happier with the latter.
However, although my topic today, Britain's role in the delivery of justice abroad, was not a topic that ever engaged Lord Denning greatly, I believe that the principles along which Britain, and more specifically, my Department, the Department of the Lord Chancellor, is developing its international role are principles in which Lord Denning was profoundly interested. Britain's historic contribution lies in the spread of the common law. That contribution continues, but I also want to talk about a series of more modern contributions, contributions which nevertheless are in synchrony with the philosophy of the common law. And a faith in the common law, and its essential quality of adaptability, was certainly something that was close to Lord Denning's heart.
As he wrote in his book, The Changing Law: "If the common law is to retain its place as the greatest system of law that the world has ever seen, it cannot stand still whilst everything else moves on. It must develop too. It must adapt itself to the new conditions."
I believe that the manner in which I wish to proceed will also have pleased Lord Denning. I wish to tell you a story. Lord Denning is famous for having adapted the genre of legal judgment with his own brand of narrative story-telling. So often, he did not begin his judgments with an account of the first principles of the law, but with a brief vignette. I will not resist the temptation to quote an example, or two. This is from his judgment in a case called Miller and Jackson.
"In summertime, village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz, in County Durham, they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short . . . yet now after these 70 years a judge of the High Court has ordered that they must not play there anymore . . . he has done it at the instance of a newcomer who is no lover of cricket. This newcomer has built . . . a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket."
You can no doubt guess what treatment Lord Denning went on to mete out to this judge of the High Court who had not appreciated the joys of village cricket. I especially like the opening from another case of around the same period, this one involving Lloyds Bank.
"Broadchalke is one of the most pleasing villages in England. Old Herbert Bundy, the defendant, was a farmer there. His home was at Yew Tree Farm. It went back for 300 years. His family had been there for generations. It was his only asset. But he did a very foolish thing. He mortgaged it to the bank."
I live near Broadchalke, and I am a farmer too in my private life but I also head a Department that is not mortgaged to the bank, but like all Government Departments, mortgaged to Her Majesty's Treasury. However, like Old Herbert Bundy and his family, my Department had been involved in its core business for many generations. The Lord Chancellor's Department was responsible for the administration of the courts and the appointment of judges. It was a Department that undertook vital parochial tasks, in more modern terms a niche market operation, performed in a very competent way, but away from the mainstream of Government activity. My Department is changing. It is changing domestically, and internally, to develop more modern ways of working, so as to ensure that citizens have access not only to a fair, impartial, effective, and speedy system of justice but to a developing constitution and to a culture of respect for human rights which Lord Denning would have welcomed.
However, let me turn to the story that I want to tell you today about how my department, and indeed, Britain, is changing its role internationally in the field of justice.
Britain's central and historic contribution to the international legal community has been the common law. This is the context in which the contribution that Britain continues to make to the international legal community, and the contribution that the international legal community makes to Britain, is best understood.
Three assertions:
The common law is adaptive.
The common law is dynamic.
The common law is pragmatic, but underpinned by the values of justice, liberty and stability.
To explain in a little more detail, when I say that the common law is adaptive, I mean that the nature of the common law is not to fix legal rules and principles in the abstract, or to fix them once and for all. The nature of the common law is to apply reason and experience both, and to inch towards the answer; and always to be willing to change the answer when this is made appropriate by a change in circumstances.
That is what I mean by the statement that the common law is dynamic. It is of the very nature of the common law that it cannot stand still. Finally, the common law is pragmatic. It is responsive to the particular situation; it is responsive to practical considerations; but it is always underpinned by certain values, and these values include justice, liberty and stability.
In Britain, the common law, in realising these values, creates an important set of interactions and separations between the judiciary, the legislature and the executive. Under the common law, British judges are entitled to review judicially acts of the executive on the grounds of their reasonableness or if they are motivated by improper motives. Compatibility with EU law and the European Convention on Human Rights have been added to this list. Judges may not go beyond these principles, but these principles represent very important controls on the executive. The development of judicial review reinforces the vital principle of the independence of the judiciary and the duty of the executive to observe the rule of law.
And it is in that continuing context that my Department, another part of the executive, finds a unique role. One of our principal strategic objectives is maintaining the independence of the judiciary. This is a high constitutional matter flowing from the position of the office of Lord Chancellor, at one and the same time a Senior Cabinet Minister and Head of the Judiciary, and on another level, it is a severely practical issue for thousands of my staff in courts up and down the country who, as members of the executive on a day to day basis, support the judiciary in the delivery of justice.
Let me develop my story. Many countries began their independence with common law systems, in most cases, simply because they had previously been subject to British rule, but why have they kept these common law systems?
The answer, I venture, lies in an appreciation of the nature of the common law. The common law embodies certain important values, such as justice and liberty, but it does not stipulate the ways and means by which these values are to be realised. Britain realises these values in one way, I have just attempted a description of a portion of our system, but other common law countries realise the values in different ways. The common law is therefore unsuited for use as an imperial, or post-imperial, tool. It is hard to use it to give direction, or maintain control from afar. When we are asked to give advice abroad on justice issues we do not therefore say "do as we do"; but rather, ask "how can our experience help you in your cultural context?"
The very point of the common law is that it is given shape by local circumstances and by local solutions to the challenges of preserving justice, liberty and stability. This very adaptability has allowed common law countries to enjoy both the base of legal concepts and principles that the British left behind, and to fill their legal systems with their own character and purpose. It has even been argued that the dynamic nature of the common law is conducive to economic, as well as social, development. It is perhaps worth mentioning that by far the two leading centres for the arbitration of international trade disputes are London and New York. By choice, these disputes are brought to common law countries.
This also means we do not have a "not invented here" approach to the exchange of legal developments and concepts between Britain and other common law countries. There is a shared heritage between Britain and these other countries, and Britain is benefiting, as they are, from attempts to modernise this heritage. For instance, in areas of law such as privacy, or negligence, we are as likely to find the judgment of an American court quoted in a British court, as vice versa. The law of other countries has become a source of creativity in British courts. Between Britain and most members of the Commonwealth, there is also the mutual recognition and enforcement of judgments.
Perhaps more significantly still, British public law, that is, the law pertaining to the relationship between the individual and the state, has changed enormously in line with developments in other countries. Britain had a traditional series of solutions for dealing with the inevitable tensions that arise between the individual and the state; however, as the state's role has changed and expanded, as society has become more complex, as diversity has increased, Britain has been able to learn from the practice not only in other common law countries, but from the practice of our civil law European neighbours. Why has it been able to do this? Why, for instance, has the incorporation of the European Convention on Human Rights not caused a great disruption? Well, because the common law is perfectly happy to borrow and interpret, it is content with change, especially when that change is for the sake of its central values of justice, or liberty, or stability.
These adjustments must take place if a legal system is to retain its vitality, its relevance and realise its central values. Lord Denning knew this. He knew it well. As he once wrote, early on in his judicial career, "What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both."
That is the context for the story I wish to develop of examples of Britain's current role in the international justice community. The Lord Chancellor's Department had not traditionally had a heavy involvement in facilitating the delivery of justice abroad. We would, from time to time, assist a judge in making arrangements to visit the United States, or the Continent as it once was called, or assist a more general judicial exchange. But we were quite limited in our focus.
That is changing rapidly. British justice has always enjoyed a certain cachet in other countries. Our judges are widely respected, for their intellectual authority, for their integrity, and for their fiercely defended independence. Our legal system is widely respected, for its coherence, for its fairness and for, this may surprise you, its relative modernity. One catalyst for the recent expansion in Britain's role abroad has been the enlargement of the European Union, and its prospective further enlargement. Britain is currently involved with judicial and official co-operation in the Czech Republic, Slovakia, Hungary, Cyprus, Estonia, Lithuania, Poland, Bulgaria, Romania and Malta. In Bulgaria, we are assisting a Government that is keen to reform the justice system and eliminate corruption. In Estonia, my officials have consulted on an ambitious project to reduce delay and improve the administration of justice. They have provided advice on the centralisation of certain court functions, on criteria for locating courts, and on promoting judicial independence in training and the appointments process.
The modernity and openness of the British justice system is apparent in collaboration with other European Union countries. For example, discussion among British and German judges was followed by important reforms which have significantly improved the way in which Germany deals with cases of international child abduction. Now they follow the UK model, centralising such cases, which are often sensitive and difficult, in centres of expertise. And a high-level delegation from the German Federal Ministry of Justice was impressed by our small claims courts. No similar procedure for dealing summarily with contested cases exists in Germany, and they especially commented on the manner in which the judge assisted the parties and ensured that justice was seen to be done. And the excellent working relations between our two ministries has led to useful and fruitful co-operation in the course of negotiations within the EU, notably in relation to a directive on civil legal aid which was agreed last year, and on other proposed measures in the field of civil legal co-operation including a European enforcement order for civil judgments and mutual recognition of orders in the field of parental responsibility.
There has been an interesting recent collaboration with Spain. We have been exploring the use of technology in trials, and for example, last year, British tourists were able to give evidence by video-link to assist in the prosecution of criminals in Spain. A very ambitious EU-wide project that the UK and Spain are considering for the future relates to electronic case files. As the legal systems of the EU countries come closer together, as more legal disputes cross national boundaries, it will prove to be very useful to have a shared electronic format for case files. The perception of British justice and British judges as old-fashioned continues however. I am told that during this Anglo-Spanish initiative, though the Spanish themselves wore lounge suits, they insisted that British judges appear in wigs and gowns.
I should also like to mention Money Claim Online . This is a secure internet service developed for the issue and progression of money claims up to £100,000. Although it is still at the pilot stage, it is attracting interest from several European countries and from as far afield as Singapore, Nigeria, Bangladesh and Kansas City, Missouri. The member of my Department who developed this system, David Chambers, has recently made the shortlist for the Government Public Servant of the Year award. In time, in time, we will repudiate that notion of British justice as creaky and hidebound.
Britain retains a high level of engagement with Commonwealth countries. There is a widespread programme of judicial exchanges. The civil justice reforms that were made in this country, in the 90s, are being adopted in Caribbean countries. In Guyana, where records of past judgments, an essential part of the common law repository, had not been updated for 15 years, Britain has been assisting in the attempt to remedy this and is also providing access to common law texts and to online UK law reports.
For me however, perhaps the most interesting aspect of Britain's changing role, the most unexpected part of the story, is Britain's involvement beyond the boundaries of Europe and beyond the Commonwealth, and for instance, in China.
China and Britain are two countries with radically different legal traditions. However, some of our aspirations are shared and so Britain is running a training scheme for young Chinese lawyers. This is a total immersion course, with a focus on human rights law and commercial law. A high proportion of the young lawyers going through this scheme are then moving into public service. We are also assisting in the development of more robust judicial examinations.
For the future, it is possible that Britain will take a wider role in improving the delivery of justice in Russia, where we are already assisting in a limited way, on projects led by the Department for International Development. Similarly, the story may lead us to South America, where again, we have no historical involvement.
The traffic of advice and contact outward and inward is rich in diversity. Just to give you a snapshot of the visitors from other jurisdictions that Britain receives, just in the first three months of this year, we have hosted a Public Prosecutor, two Professors of Law and two judges from Japan, a High Court judge from Malta, two judges from Sri Lanka, two more from Korea, the Minister of Justice from Lesotho, the Attorney General of Zambia, six judges and officials from Lithuania, four officials from Hungary, a Courts Administrator from Queensland, a group of fifteen Chinese prosecutors and judges, and a Maitre de Requette from the French Conseil d'Etat. I am not sure all would have appreciated the delights of village cricket, but I'm sure Lord Denning would agree that there can be no better tribute to the British justice system.
But why is Britain able to make a contribution to the delivery of justice in so many different jurisdictions? I believe that it is firstly because of the nature of the common law system that we espouse. We do not aim to transfer particular laws or particular pieces of legislation to other countries. Different social systems need different legal systems. There needs to be this symbiosis between the nature of a society and the nature of its law. To simply export law would be to damage the symbiosis. Britain is able to facilitate the realisation of certain basic values in ways that are appropriate to local circumstances.
Secondly, we have a strong base of administrative skill and experience. We must of course continue to be self critical and to improve but we too often forget that we deliver justice to a very high standard in this country, and others wish to engage with us, to see what they can learn for the delivery of justice in other countries.
The second broad area of international engagement is Britain's role in the development and liberalisation of the global market for legal services. An active, committed, principled body of legal services providers is essential to any system of justice or regulation.
The view that Britain takes and that my Department espouses is that no legal services market and no legal system should insulate itself from the external world, for it thereby runs the risk of stagnation and isolation. Britain does not seek to close its doors to the lawyers of other countries. Over 200 foreign law firms have offices here in London. The presence of so many law firms from other countries makes Britain an attractive destination for investment and companies from those countries. British companies are also able to use these law firms for representation in countries that they expand into. However, the benefits are not purely economic. As we have seen in the European Union, the free movement of people and services also brings positive cultural changes. The presence of so much competition also has a tendency to raise standards of service and promote more effective corporate governance.
My Department has been involved in trying to encourage the liberalisation of legal services more widely. We are contributing, via the EU, to the current round of WTO negotiations on this issue. Since British law firms do have an excellent reputation, since they do have so much experience of working with lawyers from so many other countries, both in London and abroad, we are supporting their attempts to provide services in other countries. I recently wrote to 17 British Embassies to engage them in this work. The increasing demand for British legal services translates into a substantial contribution to the economy, with revenues in excess of £12bn. Exports of legal services have risen by 111% since 1996 and the four largest law firms in the UK have between 45-65% of their lawyers based outside the UK.
This is all rather hard-nosed but the connection with the philosophy of the common law remains. It is lawyers that populate the frameworks of justice. We must pay some attention to their role. The common law seeks to realise certain values and lawyers must be engaged in this endeavour. It is clear for instance that healthy competition in the legal services market can help to ensure that important public policy objectives in consumer protection and universal access to services are preserved. It is also quite clear that liberalisation does not mean de-regulation. They are separate processes, and indeed, liberalised markets do not necessarily require less regulation, they may require different regulation.
I am almost upon the end of my story. I have described for you some of the work that my Department has been involved with as it has expanded its role in helping to deliver justice in other countries. We believe that this is important work and we are always pleased, sometimes even surprised, by the number of countries that ask us to take a role in improving their systems of justice. As I was preparing for this lecture, learning more about Lord Denning. I came across a statement that I would like to offer as a sort of a motto, an ideal that my Department could aspire to.
At the time of Lord Denning's retirement, Lord Hailsham, the then Lord Chancellor, suggested that Lord Denning's arrival at the Court of Appeal coincided with the beginning of a period in which, "Our Lady of the Common Law awoke from her slumbers and entered upon a period of renewed creativity, generated no doubt by the vast social and legislative changes which have overtaken us, and inspired by a desire to do right to all manner of people without fear or favour, affection or ill-will".
Lord Denning once said that on one side, there are always timorous souls fearful of novelty. On the other side, there are bold spirits who are ready to embrace novelty if justice so requires. There are many bold spirits in my Department and I hope that they will continue to be "inspired by a desire to do right to all manner of people".
It is part of my job to engage the public service ethos of those who work in my Department. I am grateful for the opportunity to give the Lord Denning Memorial Lecture, and ultimately, most of all, because it has helped me to continue considering what that ethos requires and to understand its requirements in the context of the new work that my Department is taking on as it helps to deliver justice abroad.