Big Lawyers and Little Lawyers

Stephen Sedley

  • The Access to Justice: Final Report by Lord Woolf
    HMSO, 370 pp, £19.95, July 1996, ISBN 0 11 380099 1
  • The Future of Law: Facing the Challenges of Information Technology by Richard Susskind
    Oxford, 309 pp, £19.99, July 1996, ISBN 0 19 826007 5

It will soon be two hundred years since Napoleon, as First Consul, appointed four not especially distinguished lawyers to sit down and codify the entire heterogeneous mass of French civil law. They were appointed in August 1800 and by February 1801 had produced and published a complete draft of the Civil Code. After taking the views of the judges and the Tribunal, Napoleon chaired nearly half of the 123 subsequent redrafting sessions of the Conseil d’Etat, some lasting from noon to dawn, repeatedly insisting that detailed prescriptions would be self-defeating; that the right method was to set out the goals the courts were to achieve. By the spring of 1804 the whole project was law. The fresh codification now under way under the great conseiller Braibant is the task of a decade where Bonaparte’s commissioners took little more than four months. In Hong Kong yet worse has happened: an attempt in the best colonial tradition of demented heroism to codify the English common law in Chinese (something nobody has yet done in English) in time for the handover in 1997 has foundered on problems of translation. Initial worries about the Mandarin equivalent of issue estoppel and certiorari were overtaken by the catastrophic rendering of barrister and solicitor as ‘big lawyer’ and ‘little lawyer’ respectively, giving lasting offence to Hong Kong’s solicitors and bringing the project ultimately to a standstill.

As Lord Chancellor, Lord Mackay, whatever his detractors say, is no Bonapartist; but he, too, was faced with the prospect of piloting procedural reform through the weed-blocked channels of advisory committees whose most modest proposals take years to get implemented. In March 1994, he appointed a single senior judge, Lord Woolf, to review all the existing procedures of the civil courts of England and Wales with the aims of improving access to justice, reducing the cost of litigation and, as means to these ends, simplifying the language and rationalising the content of the present rules. Woolf assembled a team of five assessors, travelled the world, held open seminars, received hundreds of submissions, commissioned a little research (there was no proper research budget), set up a dozen specialist working groups and retained an academic consultant and a consultant on information technology – Richard Susskind, publication of whose own book coincides with that of the Report.

Little more than two years from his appointment, and a year on from his interim report, Woolf has presented a comprehensive final Report, accompanied by a redraft of the rules for the conduct of civil proceedings. By contemporary legal and governmental standards the timescale is remarkable. The anxious question has been whether the project would be passed into law within the next two years, matching the Napoleonic achievement, or whether it was going to drift into that crepuscule of political and departmental inertia where so many Law Commission proposals are now mouldering. Meanwhile, the Lord Chancellor has moved Lord Woolf to the key post of Master of the Rolls (the head of the Court of Appeal) and has appointed Sir Richard Scott, who is now head of the Chancery Division, to the executive post of head of civil justice. But Labour’s Lord Chancellor-in-waiting, Lord Irvine, has raised a warning hand: nothing should happen until both the Woolf proposals and the legal aid scheme have been evaluated as part of a comprehensive review of the civil legal system, and then not if it costs extra money. That it will cost money is inescapable: the Legal Action Group, a powerful independent think-tank, has warned that to implement the changes without the necessary investment will spell chaos. Woolf and Susskind have the same response: the long-term cost of doing nothing will dwarf the medium-term cost of reform. Woolf himself takes note of the current review of the legal aid system but says: ‘It is essential that the reforms of legal aid should take into account and support the recommendations I am making.’ That is unlikely to be the Treasury view: it has always considered legal aid a drain on the nation’s finances, and it will wish instead to see the Woolf reforms take into account and support the coming straitjacket on legal aid. So it is entirely welcome that Lord Mackay’s response to the Woolf proposals is not wholly Treasury-driven: he has decided to postpone the radical changes to the legal aid system which are now on the table (and which, if implemented, will bring us closer to a national legal service, at least for the poor, than anything ever attempted in this country) until it is seen how the Woolf reforms are working out. He has undertaken to find the money to pay for the reforms, and though his promise to do so from within his existing budget sounds a little like the introduction to a conjuring trick, the rabbit might be real. In none of this are Mackay and Irvine actually far apart. The enabling Bill is already before Parliament and Mackay’s overall timescale – to have the new system in effect by the end of 1998 – is very little longer than Napoleon’s.

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