§ 3.25 p.m.
§ Lord Campbell of Alloway rose to ask Her Majesty's Government what is their response to proposals to dispense with the established custom as to wearing of wigs and gowns by Her Majesty's judges and members of the Bar in open court.
§ The noble Lord said: My Lords, this Question has been tabled because apart from correspondence and comment in the press there has been no discussion on a matter of general interest to the public—that is, the proposal to do away with the established custom of wearing wigs and gowns in open court by, it has been suggested, the decision of some council of judges by issuing a practice direction.
We are not concerned with ceremonial occasions; we are not concerned with work in chambers; and we are not concerned with timely dispensations. Timely dispensations in exceptional circumstances have always been accepted as part of the custom; indeed, there was a case at Lewes Assizes in the mid-19th century when the judge, who had a very severe attack of gout, charged the jury from his bed. Moreover, as Mr. Justice Megarry truly said in 1973—and I like his wording:
Jurisdiction is neither conferred nor excluded by matters of attire".
§ We are not concerned with timely dispensations for good reason in exceptional circumstances. The proposal for discussion on the Order Paper is concerned with a permanent dispensation; namely, the abolition of a long-established custom. Two questions arise for your Lordships' consideration. The first is: ought the established custom to be abolished? The second is: is it open to the judiciary to abolish it?
§ As to the first question, which is far more important than the second, your Lordships may think that it is a proper question for the consideration of Parliament but assuredly not for legislation. Members of the public, judges, members of the Bar and some solicitors to whom I have spoken casually are in favour of retaining the established custom as it stands. So indeed am I. On this, I am basically a retentionist, although assuredly not for any personal reasons of convenience. However, your Lordships may think that we ought to retain an air of dignity, anonymity and authority which the uniform of this type of public service commands.
§ The uniform of the judiciary and the Bar is a wig, a gown and neckwear. Silks wear a sort of court dress, while solicitors have gowns and neckwear. Your Lordships may think that the rights of audience recently accorded to solicitors (a most welcome innovation which I supported) may not be prayed in aid as a reason for the abolition of wigs or for any departure from custom. But all Her Majesty's judges, Queen's Counsel and all advocates on both sides of the profession are servants of the public. The public perception of us all—perhaps, what might be called 349 our consumer rating—is of cardinal importance. There is no longer that ivory tower retreat to stifle the noise of criticism, and rightly so.
§ If the public conclude that they have had all the flummery of wigs, gowns, and the lot and that we shall all go "Perry Mason", plus or minus Della, so be it. But at least the judge in the United States wears a kind of gown of office. I suggest that the question of whether the public will so conclude is open to the most serious doubt, hence the purpose of this debate.
§ The proponents of abolition claim, first—I have taken these examples at random from the press—that the wig and gown isolate judges from litigants and give a false suggestion of some mystical power. A sense of isolation is utterly essential in order to maintain the dignity and authority in solemn proceedings. It is suggested that the theatrical atmosphere hinders the work of the courts. But what could be more theatrical than the work of the courts of the United States of America? It is suggested that the cult of the robes, wigs and gowns encourages legal pomposity. I hesitate to say so in such distinguished company but pomposity is the chronic occupational disease of the lawyer, to a lesser or greater extent. It is said that wigs and gowns distance the courts from common standards and from common-sense and that they set up a barrier to communication with the public, which the court exists to serve. Standards and common-sense are not affected by the apparel. To all intents and purposes the media ensure that there is no barrier to communication with the public, and on the whole they do so very well.
§ Of course there is room for exceptions to be made but great care must be taken in doing so. For example, perhaps the public are not so much concerned with proceedings in the Commercial Court. Nor are they so much concerned with the proceedings in the Appellate Committee of your Lordships' House where the Law Lords wear ordinary clothes but members of the Bar wear wigs and gowns.
§ I am delighted to see the noble and learned Lords, Lord Donaldson and Lord Brightman, in their places. How well I remember the resentment expressed to me by Vic Feather about, as he put it, the insult to the trade union movement in having to appear in the NIRC, a branch of the High Court, before judges wearing "silly suits". I believe that at that time he represented a broad trade union view when he said that it was, so to speak, down-grading the quality and authority of the court because the High Court judge, who had full powers of committal, was not wearing wig, gown and so forth as worn by the High Court judges. That is why from one small perhaps insignificant personal experience—I appeared regularly in that court for both sides, although on different occasions—I believe that care must be taken in the making of exceptions.
The second issue is whether in any event it is open to the judiciary to abolish the custom. The noble and learned Lord the Lord Chief Justice, as reported in the Daily Telegraph on 18th April 1992, suggested that judges should:
probably shed their wigs and gowns
and that that could be introduced
by a judge's practice direction".
§ I have looked into the matter, which is wrapped in the mists of history, and it appears that the judiciary administered justice in the name of the Monarch originally by delegation, prerogative, and now to a large extent under statutory control. When in 1832 the bishops wished to shed their wigs they sought the permission of the Monarch, William IV, and it was granted by him. If that serves as a precedent perhaps my noble and learned friend the Lord Chancellor, on behalf of the judiciary, should seek the permission of the Monarch in whose name the judges administer justice. Perhaps he should set up a process of consultation. Perhaps he should defer to the opinions expressed in debate, in particular in another place whose Members represent the public. Perhaps he should even defer to such views as expressed in your Lordships' House.
§ It must be doubted whether it is open to the noble and learned Lord the Lord Chief Justice and the judiciary to abrogate this established custom by practice direction or otherwise. That could well be misunderstood as some arbitrary arrogation and exercise of power. Gowns have been worn by judges and advocates since the early Middle Ages. The judicial wig was adopted in the mid-18th century when their wearing had fallen out of fashion. In 1780 the Bar adopted the present form of wig.
§ The connection with the monarchy is fairly long-standing because in 1635 a dress regulation was issued by the Monarch. Under Charles I those were subject to variations according to the Church calendar. Somerset Herald, in his Cyclopaedia of Costumes published in 1671, quotes the dress regulation in 1635. I shall not bore your Lordships with the details but merely wish to make the point about the connection with the Monarch and the need for seeking the consent of the Monarch. For more than a century Ede and Ravenscroft has supplied a judges' robing list, the last of which was issued in the reign of King George V and is still current dress regulation.
§ For those reasons, and as a result of the two questions that arise, the subject is thought to be worthy of your Lordships' opinions expressed in this House.
§ 3.38 p.m.
§ Lord Redesdale
My Lords, I am grateful to the noble Lord, Lord Campbell of Alloway, for tabling the Question. I am delighted to speak on the subject about which so many people have such firm and opposing views. The question of whether wigs and gowns should be worn in court is important. They convey upon the wearer a respect for the uniform of court. They also give a sense of authority to those who stand up and present the case for their clients.
I have heard members of the legal profession put forward the view that wigs and gowns convey a sense of anonymity. When walking down the street after the court proceedings have ended members of the legal profession are less easily recognised because they are not wearing their wigs and gowns.
351 I do not believe that those points alone justify the wearing of wigs, although I support the wearing of gowns. I believe that wigs are a relic of the past. They give the impression that the law is remote, inaccessible and lends an air of mysticism to the general public.
Is it necessary to put on a wig when for some time it has been the practice in cases involving children for wigs to be removed? Adults can equally find a court case harrowing. They would be grateful not to be confronted by a wig. There is undoubted need for a uniform in a court. When solicitors and barristers act in the same court it will he important to afford them the same status. For one person to wear a wig while the other does not—the present practice in the county court—makes them appear unequal in the eyes of justice.
The issue of whether wigs and gowns should be worn is secondary to what is happening in the legal profession. The law is not remote because of the theatrical nature of the courtroom but because of the cost involved in taking a case to court. The demise of the legal aid system will make it only more so.
§ 3.40 p.m.
§ Lord Donaldson of Lymington
My Lords, perhaps I may join the noble Lord, Lord Redesdale, in thanking the noble Lord, Lord Campbell of Alloway, for bringing forward this matter for discussion. I do so because I welcome any discussion on any aspect of the administration of justice. If he will forgive me for a minor note of regret, my only regret is that he did not bring forward some matter of greater urgency such as delays in the Court of Appeal, where the list of outstanding appeals was constant between 1983 and 1991, but, which, in the past 12 months, has increased by 12.5 per cent.
Let me return to the subject of wigs and gowns. I accept that my judicial head gear has been out of fashion now for some 200 years. The whole subject has much of the stuff of which fourth leaders in The Times are made; but that is not to say that it should not be taken seriously, as the noble Lord, Lord Campbell, has indeed taken it seriously. Once it was raised by the Commercial Bar Association a few months ago, it was referred to the Council of Judges which discussed the matter in some depth, and came to the conclusion that it would be wrong to form any view—let alone make any decisions—until there had been much wider consultation than was possible within the judiciary, the legal professions or the joined professions such as probation officers and the like.
The problem in the Council of Judges was that we did not have the machinery for any such consultative process. Happily, my noble and learned friend the Lord Chancellor was kind enough to say that his department would undertake that exercise.I understand that it is already in the process of preparing the consultation paper which will go out in due course. The Question asks what is the Government's response to the suggestion. Of course, the Government's response is a matter for my noble and learned friend and not for me. But, absent legislation, contrary to what the noble Lord, Lord 352 Campbell, has said, I should have thought that it was a matter within the competence of the Lord Chancellor in his judicial capacity and the judges, as a collegiate body, to decide what was the appropriate dress in their own courts. We still control our own courts.
If it be said that the Bar has some customary right to wear robes, so be it. I should have no objection, after any abolition of robes, if the noble Lord, Lord Campbell, wished to appear in robes in my court, certainly if he claimed a customary right to do so. It is of course a matter upon which your Lordships are competent to express a view. Indeed, the judges would appreciate your Lordships' views, but, I repeat, absent primary legislation, the only way in which Parliament has ever sought to control the judges is by persuasion. I trust that that will long continue.
I first met the problem when I was appointed President of the National Industrial Relations Court of which my noble and learned friend Lord Brightman was another judicial member. We had to consider: to wig or not to wig; to robe or not to robe? Our decision was to do neither. There were several reasons: it was important to bring out the fact that the lay members were of co-equal status with the judicial members; so, either we had all to wear robes or none of us had to wear robes. It was important, as we saw it, that the court should be seen as a court of conciliation. Many people will remember the moments of conflict, and think that we were perhaps singularly unsuccessful. That is not historically correct. Conciliation was the fate of many more cases than ever created confrontation. At any rate, that was our aim.
We wanted informality to be the key note. With that in mind, it was arranged that the Bench should be no more than nine inches above floor level. We told those coming to the court that we were not bothered with formal modes of address. I was normally addressed as Sir John; but, occasionally, I was addressed as brother, and regarded that as something in the nature of a compliment. So it all depends.
I was very much surprised to hear of the conversation that the noble Lord, Lord Campbell, had with Vic Feather. I had more than one conversation with Vic Feather at about that time. He never expressed to me the view that we were insulting the trade union movement, and that was not the intention. It is true that when eventually the court was closed down—by primary legislation—a number of people said, "Ah, there would have been no problem if only you had worn wigs and gowns". That is pure poppycock.
There is perhaps some support for the importance of wigs and gowns in two experiences that I had at the Winchester Assizes. In the first I was confronted by two cases—one to follow the other—in which the accused were charged with affray. They were each "matches"—if I may use that word—between ethnic minorities. In the first case, ethnic minority A was in the dock and in the second case ethnic minority B was to be in the dock. I had to advise the jury in summing up the first case that if there was reasonable doubt as to guilt they had to acquit. As each of the accused 353 produced something like 20 alibi witnesses it is perhaps not surprising that the jury had some lurking doubt and acquitted.
When we came to try the opposing side in the following case, it seemed to me that the same result was likely to occur. I therefore saw counsel for both sides in my room and asked the prosecution whether it intended to proceed with the case. The prosecution said that it did not, but it would like me to consider the senior probation officer's views. I asked what they were. He said that the thing to do was to bind over both parties (both teams) to keep the peace. Being a mere lawyer I pointed out to them that that did not seem sensible since when the question of a breach arose each would have 20 alibi witnesses and we should be back where we started. The senior probation officer said that I did not really understand real life and that being bound over by a "red judge", wearing a wig, would do the trick. So I bound them all over, and two years later I asked him what had happened and the answer was that there had been no further affray.
There was another case at Winchester of a rather different character in which a respectable middle-aged lady was being asked questions which were perfectly proper but which were embarrassing and referred to her personal life. In the middle of her cross-examination she announced that she was taking no further part in the proceedings and was leaving. That created a problem for me, because clearly I could not commit her for contempt of court, and, equally clearly, it was important that she should give her evidence. Thus, drawing myself to my full height, including my wig, I said, "Madam, you will answer that question at once". Rather to my surprise, she did.
Wigs can be useful as a disguise. Again, if I may use an illustration from personal experience of an occasion at Durham Assizes, in those days it was customary that if the wife of an assize judge wished to sit on the Bench she could do so, although she could not take part in the proceedings. A wife could see what was going on and perhaps keep an eye on her husband. At any rate, it was customary, and on the previous day my wife had done so.
The next morning, we were shopping in Woolworths in plain clothes before going to the court. A lady came steaming up to us whom I recognised as a member of the jury in the case we were currently trying. I was very apprehensive that we would be faced with a new trial or at least explanations and an assurance that I had not told her what the verdict should be. I need not have worried, she came straight up to my wife and said something nice about the hat and clothes she had been wearing the previous day. Then the juror went on her way. It was clear that she had not the slightest idea who I was.
There may also be an advantage that the wig reminds the judge that he is there as the representative of society and to apply the law, not to apply his version and view—which may be somewhat eccentric —as to what the justice of the case calls for. It may even remind the criminal that he is in peril because he is alleged to have offended against society, not against the judge. It all depends on circumstances.
354 We all know that judges customarily see children in their private rooms in ordinary clothes, certainly in wardship cases and many child cases. However, even that can go wrong. There is a fairly well documented case of a child being brought to see the learned judge and bursting into floods of tears. When inquiries were made as to why, it appeared that she had been briefed by her parents that she was to see a very wise, kindly, old man who was a bit peculiar. He wore a black dressing gown and had something that looked like an outsize pan scourer on his head. One can understand the child's disappointment at meeting someone dressed in an ordinary lounge suit.
A decision will have to he made one way or the other, as was pointed out by the noble Lord, Lord Redesdale, when solicitors achieve rights of audience in the High Court. The problem has already arisen —although perhaps it has not been noticed—in the context of the county court. I agree with him that advocates of equal status should be dressed alike, for which there is a prima facie case.
The essence of any robe or uniform is that it is not what other people wear. Wigs and gowns seem to me to fulfil that role admirably. The issue is whether and when judges should look just like anyone else.
§ 3.54 p.m.
§ Lord Renton
My Lords, I owe a deep apology to your Lordships, especially my noble friend Lord Campbell of Alloway, for having only just arrived to take part in the debate. The reason is that I had an unexpected car problem starting from my home 70 miles away.
To my mind, there are three decisions for your Lordships to take or rather views to express. First, who should be responsible for deciding whether or not wigs and gowns should be worn in court? Secondly, whose advice should the responsible person take? Thirdly, what advice should we give that responsible person?
The responsible person should be my noble and learned friend the Lord Chancellor as head of the judiciary. We shall then know where responsibility lies. But if responsibility is divided between the judges collectively or left to the profession, I see difficulties arising. My noble and learned friend is answerable to Parliament for whatever he decides and I am sure that the judiciary and the profession will accept his decision.
As to the advice to be given to him, in my opinion it must come primarily from both Houses of Parliament. That is why, as has no doubt been said, we should welcome the raising of the matter by my noble friend Lord Campbell of Alloway. It gives your Lordships an opportunity to express opinions and give advice on the matter.
I now come to what the advice should be. Historically, as I understand it, the present practice of members of the Bar and the judiciary of wearing wigs and gowns dates from the early 18th century. I understand that barristers were told to wear wigs, gowns and bands in order to go into mourning after the death of Queen Anne. We have adopted that mode of dress ever since.
355 Before the 18th century, gowns but not wigs were worn by the judiciary and, so far as we know, by members of the Bar from the earliest times. If one examines portraits of members of the judiciary in Tudor and Stuart times, one finds them wearing various kinds of head-dress but rarely wigs. I do not recollect a portrait of a judge wearing a wig in Tudor or Stuart times, but in the 18th century it became common practice and has continued ever since.
What advice should your Lordships offer? I hope that there will be no disagreement that we should continue to wear gowns. They are perhaps an unnecessary impediment in a warm climate, but the public expect a certain dignity, an outward visible sign of dignity, to be shown by the Bench and the Bar as well as solicitors who wear gowns when appearing in the High Court. Therefore, I suggest that we may easily reach agreement in advising my noble and learned friend the Lord Chancellor that gowns should continue to be worn.
As for wigs, I respect those who say it does not matter, although personally I am inclined to feel that we should continue to wear them. Wigs have a great levelling effect, they make the young look old and the old young. I find that a great advantage. When I started at the Bar, like some others, I looked many years younger than I was and it was a handicap, but the wig helped. For older men who are completely bald and perhaps show their age, a wig helps them look younger and is a great leveller.
Now we have very large numbers of women in practice at the Bar and I personally feel that the wearing of wigs by women—I have a daughter who now wears my wig, which is nearly 60 years old, at the Bar—places them on more equal terms with men. Therefore, there is that advantage to be derived for women. Of course, it could be said that women have the opportunity of displaying magnificent hair-dos which would enhance the environment of the courts. However, it would be utterly wrong surely if a woman's prowess at the Bar were to be affected in any way by what she does with her natural growth of hair. There are those advantages for the wearing of wigs.
Having spent so many years in the profession one could reminisce quite a lot, but I am content to leave the matter with the conclusion that my noble and learned friend the Lord Chancellor should advise the judiciary and the profession, especially the Bar, to continue to wear gowns and wigs.
§ 4.1 p.m.
§ Lord Brightman
My Lords, the noble Lord, Lord Campbell of Alloway, poses an important question. When I first approached it I did not feel that it was an easy question to answer with any confidence. I am, however, much clearer in my mind now for reasons that I shall relate.
I begin with a few further words about the history of the wig as I understand it. I believe that it was introduced as an article of formal wear in the court of Louis XIV and was then imported into this country at the time of the Restoration. It remained in vogue for just over 100 years until, perhaps not surprisingly, in 356 about the year 1790 it fell into disuse as an article of formal apparel. It has, however, survived as a picturesque custom in legal and certain other circles for the ensuing 200 years. So much for the wig. I think that the gown must be considered in a wholly different light. It has been worn for centuries by a great number of office holders and the like as a distinct feature of their office or calling. It is a symbol of authority and it is not in any sense an anachronism.
What are the possible answers to the question posed by the noble Lord? I believe that the principal options are the following. First, to give up the use of the wig and gown by judges and advocates in all courts; secondly, to give up the wig but to retain the gown and, thirdly, to maintain the present tradition. I would without hesitation reject the first option to give up both wig and gown. In my view the gown must be retained at all costs. On most occasions it is important to preserve in court a visible distinction between, on the one hand, those who have the duty to administer the judicial process—that is to say, the barrister or solicitor who argues the case and the judge who has to decide the case—and, on the other hand, those who are present in court for other reasons; for example, the litigants, witnesses, audience and so on.
The judge and the advocates, be they barristers or solicitors, are officers of the court. They have special responsibilities and duties which set them apart from others who are present in the court room. Their separateness, in my opinion, should be marked and apparent to all. They are temporarily on a different plane from others in court. Therefore, I believe that the gown at least must be retained.
What about the second option to abandon the wig but retain the gown? I was at one time attracted by that course. One reason, which has already been alluded to, was that solicitors now have a potential right of audience in most courts. Solicitors do not have to wear wigs as part of their formal apparel. If in a particular case both a barrister and a solicitor appear as advocates, would it be right to draw a visible distinction between them? I would say possibly not.
However, at the end of the day I have come down firmly and decisively on the side of no change. I believe that both wig and gown should continue to be worn by judges and members of the Bar on all appropriate occasions. My reason is that, as has been said, a court of law performs a public service. Judges and barristers exist for the public. It therefore seemed to me that it would be appropriate to try to discover what the public thought should be the answer to this question.
Accordingly, I commissioned one branch of my family to see whether they could find out what their non-legal friends and acquaintances thought about the wearing of wigs in court. They were not to disclose their own preferences and they were to consult, so far as possible, a cross section of the community. The result came as a surprise to me. Some 57 of the chosen sample were in favour of keeping the wig and only 23 were against it. That is a proportion of 71 per cent. to 29 per cent. The reasons given were always much the same —tradition and the importance of maintaining the solemnity of court proceedings.
357 Of course, I appreciate that that mini-poll is open to all sorts of valid criticisms. However, the result suggests to me that the public may be far more concerned with upholding the tradition than some of us appreciate, certainly more than I appreciated. I very much doubt whether there exists any strong demand for change.
One feature of the mini-poll which I should perhaps have mentioned was that ordinary people—the butchers, the bakers and the candlestick makers—were the strongest opponents of change as distinct from what I may describe as the professionals and intellectuals, whose views were far less strongly expressed.
It is no hardship for a judge or barrister to wear a wig and a gown. If that is truly what the public want I see no reason why they should not have it. The tradition should not be abandoned unless there is some very sound and compelling reason for doing so. Once abandoned, the tradition can never be restored. I venture to hope that the response to any proposal to dispense with the established custom of judges and members of the Bar wearing wigs and gowns in open court will be "no change".
§ 4.12 p.m.
§ Lord Fraser of Kilmorack
My Lords, I shall not detain your Lordships long this afternoon. As the only lay Member of your Lordships' House who has spoken so far in this debate I have been much encouraged by the general drift of the discussion and particularly by the contributions of my noble friend Lord Campbell of Alloway, my noble friend Lord Renton and the noble and learned Lord, Lord Brightman. My feelings on this matter are on the lines of the views expressed by those noble Lords.
However, I believe that there is a place in this discussion not for an opinion poll of the entire nation, let alone a referendum, but for some exploration of relevant opinion—if one can call it that—among those who have some knowledge of the factors involved, such as has been mentioned this afternoon. It would be useful for the noble and learned Lord the Lord Chancellor to have such information at his disposal if a decision has to be taken.
My own feeling as a layman, and as a Conservative who has always felt that change is our ally in many fields and has to be faced in so many fields, is that at a time when we are faced with quite enough change, and extremely rapid change, it is preferable that issues such as this should be left very much on the sidelines since there is no urgency about them. I do not like interfering in any way with established institutions and customs which have sound foundations in the successful running of this country over many centuries, whether it be in the law or government.
I am therefore grateful to my noble friend Lord Campbell of Alloway for raising the matter and have taken much heart from what has been said by the other noble and learned Lords.
§ 4.14 p.m.
The Earl of Halsbury
My Lords, the noble Lord, Lord Fraser of Kilmorack, described himself as a member of the laity in this field. I address your Lordships in a rather hybrid capacity. I have never worn a wig and gown but I do wear a cap and gown upon those occasions in the year when at graduation ceremonies, by virtue of my authority as chancellor, I create graduates out of graduands at an academic ceremony.
On such occasions we all wear academic robes. They have curious histories. My cap is what one would probably call a mortar-board, but it has a gold tassel to indicate my degree as chancellor. My gown is a most elaborate affair, derived originally from the jerkin of a peasant. Therefore, in the Middle Ages, to prove one was not a peasant, one added a pair of sleeves to one's jerkin. To prove one's social status sleeves became longer and longer until they reached the wrists. The progress of the sleeve was inexorable and when it grew down below the hand a slit was cut in the sleeve in order to give the hands free play. Nothing then stopped the sleeve from growing longer and longer—I see that the noble and learned Lord is indicating his agreement on that point. As a result I wear sleeves which reach the ground but which have two comfortable slits cut in them which enable me to hold my papers, speeches or whatever it may be.
The robe marks a sense of occasion. Graduation day is a solemn feast, in more senses than one. Graduates may have been at university for four, five, six, or seven years depending upon whether they are bachelors, masters or doctors. They wear different robes according to the level of their degrees, and their parents are present watching their young hopefuls graduate. Everyone is in a happy state of mind. It is an occasion; something to remember. The robes we wear add to the sense of occasion and it will be remembered for the rest of their lives as an occasion for which they had worked very hard.
There are many ceremonies at which we need a sense of occasion. At the ultimate ceremony, the coronation ceremony, Her Majesty the Queen came down the aisle orbed, sceptred and crowned. None of that has any functional purpose but it serves a symbolic purpose. We cannot manage without a certain amount of symbolism. Therefore, I believe that the Bar and judiciary should continue in their traditional robes.
It is perhaps worth perpending a little on the history of the wig. My noble and learned friend Lord Brightman attributed the wig to the court of Louis XIV, quite rightly I believe. I asked a historian why it originated in the court of Louis XIV. It originated because people were beginning to clean themselves up and did not like being infested with head lice and body lice. To cut one's hair short so that it could be easily washed and wear a wig which, if it became infested, one could hang out in the sun and wear a spare one, was a prophylactic against being lousy. Could anything be more symbolic of cleansing oneself than a court of law?
The High Court of Justice should have its sense of occasion. It cannot be a hardship for barristers or 359 judges to wear the wigs and gowns that all barristers and judges have been wearing for centuries. It gives a sense of occasion. I believe that when someone has suffered from injustice and the matter finally comes to judgment it is an occasion which should be marked as such and that that person can welcome.
Therefore, as a conservationist—and we hear a lot about conservation at present—I agree with anyone who wants to keep judicial wigs and robes and barristers' wigs and robes. I am grateful to the noble Lord, Lord Campbell of Alloway, for raising the subject because it has given me an opportunity to state my views.
§ 4.20 p.m.
My Lords, I too warmly thank and indeed congratulate my noble friend Lord Campbell of Alloway on initiating this most timely and extremely important debate. I particularly applaud his endeavours, both direct and indirect, in obtaining support for it and in encouraging laymen to speak. He has succeeded to a considerable extent; five of the 11 speakers today are laymen. I believe that that is correct. Indeed, with his usual perception, my noble friend recognised quite clearly that the donning of wig, gown and bands in court has little or nothing to do with those who wear them. It has everything to do with the public perception of practitioners at law and hence respect for the law itself.
Perhaps we should consider why counsel, clerks, ushers and judges wear—and in my view should wear —formal dress in open court. There are two fundamental reasons. First, open court is the only occasion when the law is seen publicly in action—the law militant, so to speak. Secondly, the first duty of prosecuting counsel or plaintiff's counsel is not to the state or to his client. Defending counsel's first duty is not to his client. The judge's primary duty is neither to the Crown nor to the court. The first duty always and at all times is to the interests of justice.
Wearing wigs, gowns and bands is critical for its symbolism and importance, despite the fact that it might appear futile to the facile and the populist. The wearing of robes is or should be a daily visual and tactile reminder to court practitioners that they must sublimate self to the greater interest of justice. In open court, practitioners at law, however humble or high their background, skill or knowledge of the law, are among equals; they are inter pares. They serve the common interest of justice. It will be clear to noble Lords that I believe that the profession of the law is, and above all should be seen to be, a solemn and quasi-sacred vocation.
That perception of the lawyer's role might seem to some, laymen or lawyers, as hopelessly romantic and out of date. I do not think so. A populist and facile attempt to dispense with the custom of formal dress in court is in my view a dismal reflection of the legal practitioners' perception of their role in society. To put it another way, their loss of public esteem is beginning to hurt and they are responding in an insidious and dangerous way.
360 That becomes even clearer when one considers the other professions who wear robes, so to speak, while performing public duties. Who are those people? They are the teaching profession, generally on formal occasions, unfortunately; the Armed Forces, policemen, firemen, nurses, and not least the clergy. They do so because in common with lawyers their formal wear symbolises their dedication to public service and that they are not as others. They have solemn duties that take precedence over self-interest and indeed over self-preservation. That point was very well made by the noble and learned Lord the Master of the Rolls.
I dismiss entirely the practical arguments in the press, which suggest that wigs should be dispensed with, not least from a practical point of view because they are exceedingly uncomfortable. In terms of discomfort, modern lawyers are rank amateurs. Their patron saint, St. Ivo, wore a hair shirt. He abstained from meat and drink, fasted during Advent and Lent, and at other times, on bread and water. He took his rest, which was always short, lying on a straw mat with a book or stone by way of a pillow. But that was nothing compared with worse discomforts: not content with dealing out justice for the helpless in his own court, he personally pleaded for them in other courts, often paying their expenses and visiting them in prison. He never accepted presents or bribes, which had become so customary as to be regarded as a lawyer's perquisite. He always strove if possible to reconcile those who were enemies and to induce them to settle their quarrels out of court. In that manner he prevented many of those who came to him from embarking on costly and unnecessary law suits. Hence the verse:"Sanctus Ivo erat Brito,Advocatus, et non latro,Res miranda populo".Roughly translated, it means: St. lvo—a Breton, a lawyer and not a thief; a wonder unto the people.
I beseech my noble and learned friend the Lord Chancellor when he considers these matters to pay particular heed to laymen's views. In addition, I ask him to bear in mind that any attempt to secularise, so to speak, and thus cheapen the public's perception of practitioners at law, or indeed lawyers' perception of themselves and their role, would be very sad indeed. It would be a very sad day if the practitioners at law are perceived to be no better than advisers and advocates in the law, selling their wares to the highest bidders and to an ever more cynical public. The English and the Celts in the main are highly spiritual and poetic people. Both visual and linguistic symbolism is often of far greater meaning to them than the substance itself.
§ 4.27 p.m.
The Viscount of Oxfuird
My Lords, I thank my noble friend Lord Campbell of Alloway for giving the House the opportunity, particularly those of us who are not versed or qualified in the law, to make observations on an issue which is part of tradition, going back a very long time, as noble Lords have said. My experience of wearing a gown—I think it could be described as a gown—was a cassock and surplice in a choir. My head has grown through my hair but as yet 361 I do not have the necessity for a wig so I am without any experience of the dress, which is the subject of our debate.
However, my youth was passed in a Commonwealth country. Many noble Lords may ask what that has to do with the matter under discussion. As a young man in a Commonwealth country I was brought up to believe in the importance of Great Britain. That importance was manifest in the fact that we all called this country the home country. That applies to New Zealand, Australia and Canada. But let us not forget that there are many other Commonwealth countries with a wide variety of different populations by colour and creed who have benefited from the justice and integrity of the law which they have learnt in this country, either at university or school, or from those people who have taken up legal positions in the country concerned.
One of the most important aspects manifested by that approach is that of dignity. Dignity could be described as a degree of excellence, deserving of respect. It makes no difference whether one goes to a court in the United Kingdom, Uganda, India, or many of the other countries which were part of the Commonwealth or still remain so, the dignity of the law has been preserved to some extent by dress. It is that dignity which I believe underlines the authority and inspires the respect for the people in various levels of the profession whose task is to plead for and to dispense justice.
The preservation of dignity in this day and age is a battle that can only be won by keeping on keeping on. We may reform the contents of our law books but we must maintain the outward manifestation of the law's dignity and authority. The use of the wig and gown is but a small inconvenience to assist in that achievement.
A story is told of a missionary who visited India during the procession on Palm Sunday. The visiting missionary spoke with the minister in charge of the area as the procession came through. In the procession Jesus was portrayed sitting on an elephant. He asked, "Why is Jesus sitting on an elephant when according to the Bible he sat on a donkey?" The minister replied, "You must understand this. These chaps don't understand the dignity of a donkey, but they understand the dignity of an elephant." I do not suggest to any noble and learned Lord that his wig has such a power.
However, before attending your Lordships' House today I had a brief conversation with an acquaintance who had recently been involved in a court case. He said, "I found that some who wore short wigs were aggressive but the person in the long wig was both understanding and wise". If my acquaintance had been able to attribute names and personalities to those involved in the process of the law he may have had a more personal view. He may even have left that court bent on revenge. I am sure that your Lordships would not condone such thoughts. I believe that we are all protected by the dignity of the full court dress.
§ 4.33 P.m.
§ Lord Annan
My Lords, I apologise for not having put my name down to speak. However, the skill matched as usual by the subtlety with which the noble Lord, Lord Campbell of Alloway, opened the debate has aroused me. I wish to make my position absolutely clear. I am in favour of gowns and against wigs. I shall explain why.
I am in favour of gowns because in almost every European country judges wear gowns. They are learned men. It may well he that in some countries advocates also wear gowns. It has to do with the dignity of the law and, very rightly, they should continue to wear them. However, if I may so put it, the wearing of wigs sticks in my gullet. The noble and learned Lord, Lord Brightman, stated that the butcher, the baker and the candlestick maker in some survey were in favour of wigs but that professional men and intellectuals probably were not. I am a member of that repulsive species, the intellectuals. To my mind, wigs do not add to the dignity of the court. They make it ludicrous. That is a belief held by many people in this country at present.
The noble and learned Lord, Lord Donaldson, referred to the case in which a lady attempted to leave the witness box at which point he simply said to her, "Madam, answer that question at once". I can assure the noble and learned Lord that it was not the wig, nor even the gown, that made the lady answer that question immediately. I would have answered that question if he had said to me, "Sir, answer that question at once", because of the personality of the noble and learned Lord.
§ Lord Rippon of Hexham
My Lords, perhaps I may ask the noble Lord a question. On his argument, does he agree that a great many academic robes, and certainly the headgear, might also be abolished?
§ Lord Annan
My Lords, as with legal robes, academic robes are an indication of a learned body of men. That is another reason why I am entirely in favour of robes being worn.
§ Lord Annan
My Lords, if the noble Lord refers now to the square cap which academics wear, it is worn only on ceremonial occasions. However, I take the point made by the noble Lord, Lord Campbell of Alloway. We are not discussing ceremonial occasions. I should be entirely in favour of the judiciary sitting massed in their full panoply of wigs and gowns of various hues and colours at the Queen's Speech, but that is a very different occasion from normal procedure. Indeed, in universities today a few lecturers may still wear their gowns but they no longer wear the mortar-board.
Perhaps I may make one other point in favour of the abolition of wigs. They are not only a ludicrous form of headgear; they are very uncomfortable. Perhaps my noble friend Lord Henderson of Brompton can express an opinion on what it is like to sit day in and day out as a clerk wearing a wig. I do 363 not ask the noble and learned Lord the Lord Chancellor to give us his opinion. That would be rather unfair on him. However, the opposition of members of a great profession to any change on the matter suggests a factor that has been stated many times in recent years. I refer to the innate conservatism and the unwillingness to change on any single point which the legal profession expresses time and again. I ask it to consider this matter from the point of view of common sense.
§ 4.38 p.m.
§ Baroness Faithfull
My Lords, I apologise to the noble and learned Lord the Lord Chancellor for not being present at the beginning of the debate. I was chairing an annual general meeting and therefore could not leave.
I make one point. The noble and learned Lord, Lord Brightman, took a straw poll from various people he knew. I believe that the noble Lord, Lord Fraser, also consulted a number of people. Will the noble and learned Lord, the Lord Chancellor, consider the opinion of those who view the court from the dock? I have much to do with prisons. I visit them; I have a number of friends in prisons. I have stood in the dock with prisoners. Is it possible to ask the opinion of those who view the court from that position? What do they think and what difference has the attire made to them?
I remember standing before the judge in the dock with a very disturbed girl. What she would do and how she would behave was a worrying factor. What the court thought I would do, I am not sure. However, she pointed to the judge and asked, "Why are you wearing that funny hat?". He replied, "I'm the judge". She said, "Thank goodness for that. You're different from other men and I might get justice". Perhaps she was biased, but never mind. That is how the matter appeared to her.
We have all considered this question of wigs and gowns. However, those who have been in the dock, who have been convicted and who are in prison, and others who appear in the courts in that way, should be consulted and their opinions sought.
§ 4.40 p.m.
§ Lord Harmar-Nicholls
My Lords, the noble Lord, Lord Annan, said that he had been tempted to make an observation because of the speech made by my noble friend. The speech of the noble Lord, Lord Annan, has tempted me to intervene. I had no intention whatever of speaking in this debate. However, there is a point of view which is different from that held by the noble Lord, Lord Annan, which should be on the record.
We should not interfere with this tradition for all the good reasons presented so clearly by the noble and learned Lord, Lord Brightman, and others. Those reasons are clear for all those who have knowledge of the law. The noble Lord, Lord Annan, said that the noble and learned Lord, Lord Donaldson, does not need to wear a wig or a gown because of his presence, his personality, his voice and general demeanour.
364 There are very few noble Lords equivalent to the noble and learned Lord, Lord Donaldson. Many of the people who practise law in the courts and whose demeanour must give satisfaction to the litigants and the people involved, need some sort of disguise. It is important that they should have the kind of presence which the importance of their task demands. There are many whimpish-looking, weak-kneed people practising in our courts who are not whimps and who are not weak kneed but they look as though they are. We wish the courts to retain their sense of majesty. Therefore, it is important that those who are skilled in the law should be seen to be so.
The reason that I wanted to go further than the noble Lord, Lord Annan, is because I wish to mention a matter which truly disturbs me. It could well be that Members of Parliament and Members of this House should wear something equivalent to the wig and gown. I shall give my reasons—and this is not a flippant observation. Very few pleasant measures are passed by Parliament. At the end of the day, to most people we seem to be either increasing taxes or interfering with people's freedom. That has been accepted over the centuries, because, by and large, under our system people have looked upon their Members of Parliament as being rather different and perhaps superior. That is perhaps because of how one is elected and all that goes with that.
Unpleasant decisions have been accepted. We have a law-abiding nation because people have adhered to the decisions which have come from Parliament. Nowadays, Parliament is no good unless it is made up of ordinary people. Television advertises how ordinary Members of Parliament are. They are just like one's next door neighbour that one does not like and who is rather a disreputable sort of chap. If we are not careful, that will interfere with the general acceptance of the edicts which come from Parliament.
In the Victorian age and before, MPs dressed in top hats and frock coats. They looked more significant. Now MPs turn up in pullovers and open-necked shirts. That carries no dignity whatever.
The Earl of Halsbury
My Lords, in this House we do not take off our coats and hang them on the Benches.
§ Lord Harmar-Nicholls
My Lords, I accept that; but we are only part of Parliament. Parliament is made up of two Houses. We can see many examples of what I have spoken about. The person wearing the top hat and frock coat may not have possessed anything like the intellect of MPs today. However, that person looked as though he was intelligent, as a consequence of that and it was possible to accept his decisions.
In answer to the noble Lord, Lord Annan, I would say that in order to maintain the dignity and general acceptance of the courts, we should not rely on everybody looking as dignified and foreboding as the noble and learned Lord, Lord Donaldson.
§ Lord Renton
My Lords, does my noble friend think that it might help if, as was done in the early 19th century, we were all to wear chokers?
§ Lord Harmar-Nicholls
My Lords, I do not care what people wear so long as it makes them look dignified and worthy of carrying out the tasks which are given to them, whether they are in Parliament or in the courts. In the absence of the natural physique which the noble and learned Lord, Lord Donaldson has—and many do not have that—lawyers should be dressed not to please lawyers but so that in a law-abiding nation the law is acceptable to those who must obey it.
I shall never be an academic with all the qualities of the noble Lord, Lord Annan. However, I believe he is rather out of touch with the effect on the general standing of people who practise in courts. That is enhanced when they not only are the part but also look the part.
§ 4.48 p.m.
§ Lord Ackner
My Lords, first, I apologise for not being here earlier. My excuses are that, first, we were involved in Appellate Committee work and, secondly, I have been trying to brief myself in order the better to help my noble and learned friend the Lord Chancellor in the Committee stage on Tuesday week of the Judicial Pensions and Retirement Bill.
I have two contributions to make. The first heading is the cosmetic factor. When I was chairman of the Bar, I attended, along with Lord Elwyn-Jones who was then the Attorney-General, the annual opening of the Paris law courts known, I believe, as the Séance Solenelle but to those, like myself, who had been more than once, the Séance Eternelle.
Lord Elwyn-Jones and I were the only ones wearing wigs. In my best schoolboy French I turned to a lady French judge and said, "Do you think it is absurd that we go on dressing ourselves up like this wearing wigs? Is it not high time we abolished it?" She turned to me and said in French which I understood, "Mais jamais, ça a beaucoup d'allure". No woman has ever before or since said that I had any allure and I think that establishes that the cosmetic factor is extremely important.
I now come to the security aspect. Many years ago as a commercial judge I had to try a long case about an industrial onion-peeling machine. It was a long and boring case. In order to break the monotony I asked to view the locus in quo and see how the commercial onion-peeling machine worked. I am sure that noble Baronesses at least will appreciate that you cannot go to inspect a commercial onion-peeling machine dressed in ermine because you would never get the smell out of the fur. Therefore, I attended the factory in civilian clothes. Thus, I blew, so to speak, my alias.
The case contained a mini Watergate plot. The inventor of the onion-peeling machine was obsessed by his invention. He had sold it to a big company which was foolish enough not to buy it outright but to create a new company in which it had 50 per cent. of the shareholding and the inventor had the other 50 per cent. He was intent on establishing in his claim that the company had not used all proper efforts to develop the machine. He took the rather ineffectual director from the company out to dinner, filled him up with whisky and then tape recorded into the back of his 366 Mercedes car the uninhibited observations which the director made about the incompetence of his company which was meant to be exploiting the invention. I said it was a mini Watergate because there was to be a serious issue as to whether the tape had been doctored.
It is not often that I travel by public transport. We in London as judges, as your Lordships are probably aware, with the beneficent Treasury under which we operate, are not provided with cars. For once my car was out of action and I went home by tube. I found myself strap-hanging close to the director who had been filled up by the plaintiff with whisky and was shortly to be cross-examined to establish his lack of integrity. I was as close to him as I am to my noble friend sitting immediately in front of me. He knew who I was and I knew who he was. Fortunately the case was settled. However, I took the opportunity of writing to the then Lord Chancellor suggesting that it was an excellent opportunity for the Treasury to reconsider providing cars to judges. Needless to say the Treasury did not take advantage of that sensible suggestion.
Under the heading of security it is vitally important that judges should continue to wear their wigs. In case this point was not made in my absence, two judges in the Family Division in Australia were shot and killed by angry litigants. In order that they should preside over modern up-to-date courts, those judges were not wearing wigs and gowns and as a result were identified. I understand that Family Division judges in Australia are now back in wigs and gowns.
§ 4.51 p.m.
§ Lord Richard
My Lords, this has been an interesting, revealing and enjoyable debate. I thought I was to be in the minority of one until the first of the four speakers in the gap—who now seems to have fled in any event—the noble Lord, Lord Annan, rose and made his speech.
Of course we understand that the noble and learned Lord, Lord Ackner, was engaged on important work in the Appellate Committee of this House. As he sat there observing the dignity of the law, unwigged and unrobed, no doubt he reflected upon this specific debate this afternoon. We are grateful that he came in although he was somewhat delayed.
Perhaps I may say at the outset that it is right that this issue is joined. I share the view expressed by the noble Lord, Lord Campbell of Alloway, at the beginning of his speech. It is an issue that deserves to be taken seriously. The public seem to be taking it seriously. I suspect that the noble and learned Lord the Lord Chancellor is taking it seriously when I gather he is to have excessive consultations with all sorts of interested parties. That is thoroughly desirable.
The noble and learned Lord, Lord Brightman, said that a straw poll had been conducted by members of his family. I conducted a straw poll at the Crown Court at Guildford where my wig has been engaged throughout the past six weeks. It was extremely interesting. There is no clear view. Indeed, there is a 367 clear division among the members of the Bar whom I asked as to whether or not wigs and gowns should be preserved.
In so far as a consensus may be capable of emerging, it may be that wigs should be abolished but that gowns should be preserved. I am bound to say that that is an eventual result which I would find appealing and certainly would not object to. I have always disliked wigs. I say that right at the outset. I do not believe that they add any dignity to the proceedings and I am sure that they do not add any dignity to me. I believe that I look ridiculous wearing a wig. Indeed, when I first came to the Bar, 37 years ago, the wig I then obtained was at that time second hand. It survived for some 32 years.
I find wigs are insanitary, scratchy and extremely hot. In hot weather they have been known to smell, and not exactly of the purest aromas. I must say that my family took to my wig with great enjoyment. They treated it rather as a family pet more than anything else. Occasionally, on a rainy Sunday, my small children would say, "Go on, Dad, put on your wig and give us a laugh". Indeed, every time I put it on the laugh invariably came.
When I returned from Brussels after my stint in the Commission I tried to get my wig cleaned. I felt that I was returning to a profession which demanded dignity, decorum and all those matters about which we have heard so much in this debate, so I thought I should see whether or not I could get my wig renovated and repaired and therefore sent it to a specialist cleaner to see whether that could be done. He said that, unfortunately, he could not do so because the only thing holding it together was the dirt. If it is seriously suggested that the dignity of cases in which I appeared was in the least enhanced by my wearing that insanitary object on the top of my head, I am bound to say I find that an extraordinary argument.
The ultimate argument this afternoon in favour of wiggery came from the noble Earl, Lord Halsbury. I have never before heard it suggested that we should keep wigs in order to ensure that head lice do not get onto the heads of the judiciary. It is an interesting possibility.
Another point which I must say surprised and alarmed me in the course of the debate occurred in the speech of the noble Lord, Lord Morris. When he quoted the hair-shirted aesthetic, the patron saint of lawyers, I feared that he had inserted an "r" at the end of the name, rather than leaving it at "Ivo", and somehow or other attributed it to one of my ancestors. I bear no resemblance.
Eventually my wig fell to pieces. It was sad. One by one the curls fell off. The wigbox used to come down on top of the hair and gradually I was left with two curls at the back and one on either side. Then calamity really struck because the pate of the wig developed a hole. At that stage we decided that the "pet" should be put down, and so it was and I had to acquire a new one. But the idea that somehow or other it was adding to the dignity of the profession seems to me to be 368 absolute and utter nonsense. I take sides with the noble Lord, Lord Annan, who said that it does not make courts dignified; it makes them look ridiculous.
How do the public regard us? A leading article in The Times, dated 27th April, stated,The wig is supposed to convey gravitas to a judge and to a barrister a kind of impersonal anonymity. But just as the cowl does not make the monk, the wig does not make the law. A good lawyer needs no wig to make his case; the incompetence of a bad lawyer cannot be concealed beneath a wig a foot high. In their antique Latin jargon lawyers have a maxim, Lex neminem cogit ad vana seu inutilia peragenda: 'The law forces no one to do vain or useless things'".The Times concluded ponderously and thunderously,The lawyers' wig has become a vain and useless thing, getting between the customer and the law of the land. Lawyers' Latin may survive a little longer. But the wigs should go now".Let me be serious about the issue for a moment. The real test is whether the wearing of wigs and gowns actually assists in the administration of justice. Do they help to make our trials fairer, better conducted, more comprehensible and more relevant? All those qualities—fairness, proper conduct, comprehensibility and perceived relevance—are surely ones which everyone would accept as being desirable in any system of justice, particularly with regard to the criminal courts.
I do not believe that it can be demonstrated that the wearing of wigs adds to the fairness of proceedings. It does not. That is essentially a matter for the judge. The quality of the judge is surely greater than the clothes that he happens to be wearing. Nor does it add to the proper conduct of the proceedings. Surely our judges are not so dependent upon their apparel as to allow it to interfere either with their sense of justice or the way in which trials are conducted.
The debate has been slightly anecdotal and perhaps your Lordships will therefore forgive me if I add another to the list. Three or four years ago I was engaged in a longish fraud trial at the Crown Court in Southwark. The judge trying the case was His Honour Judge Mota Singh QC, a Sikh. Therefore, he wore no wig, but an immaculate turban everyday. The trial lasted for about eight weeks. During the first week it was extremely hot. The judge, with that consideration and compassion for counsel for which he is well-known and widely respected, agreed that we should take off our wigs, and so we did. A few days later the weather cooled but none of us put on the wig again. Therefore, for the remaining eight weeks—although the weather was wig-like in the sense that there was no immediate heat danger to counsel from wearing them—the trial continued with wigless counsel appearing in front of a judge who wore no wig but a turban.
I do not believe that that had a scrap of effect on the trial itself either as regards its fairness or the conduct of the proceedings themselves. The trial proceeded perfectly normally and properly. I cannot believe that any Member of your Lordships' House really accepts the fact that a judge wearing a wig makes a scrap of difference to the way in which a trial is or is not conducted. I do not believe that proceedings in a magistrates' court, in front of a tribunal, a commercial arbitration, a planning inspector or before a coroner, 369 are necessarily less fair or well conducted merely because they are conducted by someone who is unwigged and unrobed.
However, I believe that such dress has an effect on the comprehensibility and the perceived relevance of the trial. In my view the effect is undesirable. It produces a degree of remoteness and separateness which is surely undesirable today. Not only is it undesirable but its retention has to be justified on severely practical grounds. I hope that we live in an increasingly participatory democracy. The perpetuation of a system which deliberately fosters a sense of separation has surely to be justified on grounds connected with the good conduct of the proceedings or the fairness of the proceedings themselves. If the wearing of this extraordinary 18th-century garb has little effect on the proceedings themselves, what are the other arguments which might justify its retention?
There appear to be two such arguments. We have heard both of them tonight. One is anonymity and the other is what I might call professional recognition. As regards anonymity, it is said that the wig confers a degree of anonymity on the wearer and therefore greater security from the revenge of disappointed litigants or prisoners. If that is a good argument, why should it apply only to the higher courts? Why should the danger appear to affect only judges and barristers? What of magistrates, inspectors, arbitrators and coroners? What of those who prosecute in the magistrates' courts and the employees of the Crown Prosecution Service? More importantly, what about the witnesses in the case themselves? In a normal criminal trial it is not usually the judge or counsel who may find themselves at risk. Those who are far more likely to be vulnerable are the witnesses who gave evidence against the accused or even sometimes the jury or jury persons who did the actual convicting.
As regards the question of security, I do not agree with the argument that we have to retain our wigs because of some special vulnerability on the part of the judiciary. If anonymity is a good argument for some, it is a good argument for others. I noted the speech of the noble Lord, Lord Harmar-Nicholls. He was calling for some kind of uniform on the part of our legislators. He was not putting the argument forward on security grounds but on grounds of dignity. If the security argument has any validity it applies to Members of Parliament and Members of your Lordships' House with greater force than it does merely to the higher judiciary and barristers who at present wear wigs. I am not over impressed with the "disguise" argument.
There is the recognition argument; namely, that the qualification of barrister and subsequent elevation to the judiciary is such as to require some public and visible recognition of that qualification by society as a whole. It is perhaps rather like a clerical collar and robes or a soldier's uniform. I have some sympathy with that argument. The question is: How far do we need to go in order to establish that recognition? Does it require more than some more modest but recognisable mark of distinction which establishes the qualification in a clear and acceptable way?
370 I welcome this debate. I suggest to the House that the wearing of robes and the banishment of wigs would produce on the whole the kind of effect that I have been talking about —that is to say, public recognition. For those who believe that a court's dignity depends on apparel, there would still be the robes that counsel and the judge could wear. For those who believe it important, there would still be a degree of separation from one's clients or from the common herd of mankind. If those arguments are important, then robes would probably be sufficient.
My own views, honed as they are by 37 years, on and off, at the Bar, are that wig-wearing adds very little to our judicial process. I do not believe that wearing a wig enhances the dignity of our proceedings, adds to their fairness or creates proper conduct. Indeed, I believe that it tends in the opposite direction.
Ultimately, the argument probably comes down to preserving what has become one of those traditions so beloved by the British. We have heard that argument today. I am not quite sure how it arose. Nobody is quite clear as to why the Bar went on wearing 18th-century wigs when everyone else moved from the 18th-century into the 19th and beyond. But there it is. There is a tradition. We all do it and ergo it must be justifiable—
The Earl of Halsbury
My Lords, I am grateful to the noble Lord for giving way. It was because they started washing.
§ Lord Richard
My Lords, in that case, if the Bar washed too they should have given up the wig as well. I see no justification for the Bar evading the so-unwashed part of society when we have moved from the 18th and 19th centuries and soap has become more readily available. The noble Earl may be absolutely right. But I say to him that for a tradition to survive now in any form other than one which is preserved as being quaint or touristic—which I hope no one is suggesting the Bar is—then the tradition has to be perceived to be relevant. My attitude is undoubtedly influenced by what I perceive to be the almost total irrelevance of our head covering to the administration of justice and the court proceedings in which, as barristers, we daily participate.
§ 5.7 p.m.
§ The Lord Chancellor
My Lords, as the only one to participate in this debate wearing the wig and gown, I perhaps should he rather reticent in expressing any views of my own. Whether or not that is a good reason for not expressing my own views, that is the attitude that I propose to take. I agree that this is an extremely important subject to which a number of answers have been returned in the course of your Lordships' discussion of it.
Therefore, I begin by congratulating my noble friend Lord Campbell of Alloway and thanking him for giving your Lordships this opportunity of expressing your views on this important subject. The views which have been aired have been varied. The grounds on which they have been expressed have been even more varied. The inspection of an onion-peeling 371 machine has produced an argument against peeling the wig. There are a number of other bases on which that proposal has rested.
Comparisons have been made with other types of uniform. For example, the noble Lord, Lord Annan, has differentiated between the headgear of the academic and the rest of the academic dress. My noble friend made clear at the beginning of this discussion that he was talking only of the general rule. He was not talking about ceremonial occasions or of special occasions such as a heat-wave or anything of that kind. He was talking about the general rule. However, any discussion of this subject-matter must embrace the possibility of ceremonial and special occasions.
In recent times, there has been discussion of this matter in a number of quarters. As far as the court is concerned, that happened first and formally in the commercial Bar, by the judges who regularly sit in the Commercial Court. The matter was then referred to a more general meeting of the Judges Council. As a result, my senior colleagues in the judiciary and myself have agreed that it would be wise to consult publicly and in some detail on this subject. Obviously, as has been pointed out, the Monarch has an important interest in these matters and in due course account will have to he taken of that.
On behalf of my judicial colleagues and myself, I hope to he in a position to publish a detailed consultation paper that will take account of the views that your Lordships have expressed today. We shall try to put the issues as fully as we can. We have secured the help of a distinguished academic who is interested in the law and in legal dress, Dr. Baker from Cambridge. His expertise will certainly inform the consultation paper.
I hope that all the arguments for and against will be put in the consultation paper and that the result will be to interest the public in this debate in a way that will enable them to express their views for our benefit. Most of your Lordships were agreed that the important aspect of this matter is the effect on the 372 public. My noble friend Lady Faithfull drew attention to a particular section of that public—namely, the users of the court who appreciate its excellence mainly from the dock. I hope that all sections of the public, including those particular members, will have an opportunity to state their views against a background of information. We seek to produce a reasonably complete consultation paper that will set out the issues against the background that we have reached at present. In the light of that consultation, matters will be taken further.
Therefore, I think that it would be quite inappropriate for me to express any view on this matter today—as I seek to retrieve my long sleeves from the Floor. As the noble Earl, Lord Halsbury, pointed out, they are one of the features of this dress. It is better that we wait to see the results of the consultation before expressing any further opinion. Your Lordships may take it that the progress of this matter will be something of which the House will be informed if, in fact, we do make progress.
§ Lord Renton
My Lords, before my noble and learned friend sits down, can he enlighten the House by saying who he envisages will have the ultimate responsibility for this?
§ The Lord Chancellor
My Lords, I said that the consultation paper would be issued on behalf of my senior judicial colleagues and myself. I also indicated that I believe that the Monarch has an important interest in these matters. Accordingly, one of the things to be decided as we go forward—assuming that, on consultation, it is reasonably clear that a change is required—would be precisely how the formal decision on this matter should be taken.