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THE RULE OF LAW IN THE DEVELOPMENT OF A MODERN ECONOMY

LECTURE IN THE GREAT HALL OF THE PEOPLE, BEIJING


7TH SEPTEMBER 2005
THE RT. HON. THE LORD WOOLF, LORD CHIEF JUSTICE OF ENGLAND AND WALES

I am deeply honoured to have been invited to give this lecture in the Great Hall of the
People. I am delighted that it is possible for this to happen during my visit to China to
attend the 22nd Congress of the Law of the World at the invitation of the President
and Chief Justice of the Supreme People’s Court of the People’s Republic of China,
H. E. Mr Xiao Yang.

The fact that this congress is taking place in Beijing at the present time emphasises
the importance that the People’s Republic of China, wisely, now attaches to the
exchange of views between lawyers and jurists from different countries with different
governmental and legal systems.

The fact that we are here today is due to a group of Chinese and British individuals
who, over 50 years ago, had the foresight to establish a body which aptly describes
itself as the “Icebreakers”. The “Icebreakers” had a vision. The vision was that the
People’s Republic of China would re-establish itself as a leader among the nations of
the world. The “Icebreakers” believed that by working together they could, in a
modest manner, contribute to China achieving its rightful position as a global power.
I understand that your premier, Mr Wen Jiabo, recently revalidated the Icebreaker
mission, indicating that there are reasons why there is a greater need for icebreaking
to take place between the West and China in the present era.

I would strongly endorse this view. One of the key areas where the icebreaking
mission exists is in relation to the rule of law. I would like to thank Chairman Mr
Jiang Enzhu, who has been a pioneering Icebreaker for many years, for providing me
with the opportunity to give this lecture. My gratitude is also due to the 48 Group
Club,
whose members are British “Icebreakers”, for supporting my visit and this lecture.
They no doubt thought it was appropriate that I should give this lecture because I am
about to become the Chairman of the Council of University College London.
University College also has a vision as to its role. The vision is that it should be a
global university.

This is the third time that I have had the privilege of visiting your country. Each of my
prior visits has been for a limited period. I therefore recognize that I only have the
most limited knowledge of this vast country. However, the developments that have
taken place over the period spanning my visits are truly remarkable.

On my first visit, in 1986 I had the good fortune to be entertained by the Vice
President of the Supreme People’s Court. He wore military uniform and was not a
lawyer. Although we had the most useful discussion, it was apparent that our
approach to the role of courts was very different. When I came back four years ago, I
found the situation was very different. Huge progress had already been made in
developing an independent and properly functioning legal system. I had, on that
occasion, the opportunity to talk to those engaged in drafting this country’s new
legislation. I also had the opportunity of meeting Chinese academic lawyers and
jurists. Already on the present visit, I have been able to observe something of the
great progress that has been made over the intervening four years.

If over the same period of nearly 20 years, a visitor from China had made a visit to
my country, he would not have noted anything remotely like the same scale of
change. London, to the visitor, would look very much the same today as it did 20
years ago. There are some new buildings, but nothing like the extent of the
development that has taken place in Beijing and Shanghai.

However, although the ordinary tourist would not be aware of this, changes have
been taking place in our society over the last 20 years which are significant, although
nothing like as significant as those that have occurred here. Included in those are
changes relating to the responsibilities of our judiciary, in particular its responsibilities
as to upholding the rule of law. In my lecture, I am therefore going to draw attention
to these changes in the hope that our experience may be of value to you as you
confront the challenge of adapting to a new situation characterised by:

• the development of a socialist market economy;

• all round social progress; and

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• China’s accession to the WTO,

so that by the year 2010, China will have a fully related socialist system of laws with
Chinese characteristics.

I will make my remarks with a considerable degree of diffidence because I appreciate


the scale of the differences that exist between the challenges which you confront and
those that have been confronted by my country. Not least among those is the
relative size of our countries which is reflected in the fact that the population of the
United Kingdom is completely dwarfed by that of China, which is nearly twice as
large as that of the whole population of Europe. In addition I am only too aware that
although the subject of my lecture is limited to the role of the rule of law in the
development of a modern economy, the role of the rule of law can never properly
assessed in watertight compartments. This is because its role is all embracing. It
affects every part of society. This is a quality it shares with the economy itself. It is
unusual if one sector of a country’s economy is successful other sectors do not
prosper as well. So if the economy of a country benefits from its observance of the
rule of law other aspects of its society will do so as well. The obverse position is
equally true. This makes the subject of my talk one with wide implications.

I am also conscious that there are differences in the ages of our legal system. I
believe your first law code was the Fajing (cannon laws) of approximately 400 years
BC. England cannot claim that it had anything like such a code until 1200 years later
when a king known as King Alfred the Great promulgated his code in the 880’s AD.
Furthermore, it was not until about the 12th century that England had anything
resembling a fully integrated legal system.

Yet, in England, like China, we are proud of our legal history and traditions. In
particular, we are proud of our role in developing the common law, which has
subsequently spread around the globe so that it today forms the foundation of the
legal systems of about a third of the nations of the globe, including countries as large
and as powerful as India and the United States.

An explanation of this development is the ability of the common law to change


incrementally so that, notwithstanding the differences between the countries in which
is had been adopted, it has been able to evolve and grow to serve the different
requirements of many different nations. A feature of each of those countries is that,

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although their histories and societies may be very different, they all at least report to
and adhere to the rule of law, though the extent of their development may affect their
ability to do so.

An effect of this shared reliance upon the common law, is that shortly after I return to
London, I will join representatives of the majority of those countries in another legal
conference, the Commonwealth Law Conference, which I hope will be a great
celebration of the principals of the common law, and the rule of law.

Though dwarfed by comparison with the challenges that China is in the process of
meeting, I believe the changes that have taken place in the English judicial system
may be of relevance to China. In part, this is because, in both countries, old
entrenched systems are being radically changed to meet modern conditions and, in
particular, the difficulties created by the economic developments that are taking place
around the globe.

In the United Kingdom there is hardly an institution which recently has not been
subjected to considerable reform. We have being experimenting with the devolution
of power. We have been grappling with the problems created by the increasing scale
of a single legal order covering a confederation of European separate states. We
have been confronting the consequences of the need to cope with the impact of the
international competition on what were our traditional industries – that is a
consequence of my country being part of the global economy. Traditional industries
that, in the past, formed part of the engine room of the British economy, have
disappeared – not least because of the competitive advantages of countries such as
yours. The problems of our respective jurisdictions may differ in their source and
scale, but they are not unconnected.

Where we have been fortunate, is that we have not been subjected to the sort of
problems which were created by your Cultural Revolution. This has meant that our
legal system has benefited from continuity since 1215. It has firm foundations which
have been a huge advantage when making the changes needed to meet the current
demands of society. These changes, as I will explain have been significant. There
has been a transformation of the extent to which public officials can have their
decisions reviewed by the courts. Our civil procedure over the last decade has been
fundamentally changed and our criminal procedure is now being subject to a similar
process.

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Among our traditions is a continuous adherence to the rule of law: an adherence
which stretches in an uninterrupted line from a compact which was entered into in
1215 by a feudal king, King John, and his feudal barons, until the present day. That
compact, which is known as Magna Carta is revered throughout the common law
world. It contains what common law jurisdictions claim is the source of the rule of law
today.

The rule of law embraces principles of basic justice that speak for themselves, and I
cite here chapters at the heart of Magna Carta, because they contain many of the
core features of a society that today adheres to the rule of law. Those chapters are
as follows:

20. For a trivial offence, a free man shall be fined only in


proportion to the degree of his offence, and for a serious
offence correspondingly, but not so heavily as to deprive him
of his livelihood.

38. In future no official shall place a man on trial upon his own
unsupported statement, without producing credible witness to
the truth of it.

39. No free man shall be seized or imprisoned, or stripped of his


rights or possessions, or outlawed or exiled, or deprived of his
standing in any other way, nor will we proceed with force
against him, or send other to do so, except by the lawful
judgement of his equals or by the law of the land.

40. To no one will we sell, to no one deny or delay right or justice.

45. We will appoint as justices, constable, sheriffs, or other


officials, only men that know the law of the realm and are
minded to keep it well.

What is significant about those chapters is that they had nothing whatsoever to do
with what could be described at that time as western democracy. Neither King John
nor the barons had any conception of the nature of a democracy and even if they
had, they would have been at one in rejecting it. But as democracies, including that
of the United Kingdom, developed, the rule of law ensured that democracy operated
effectively. Adherence to the rule of law ensured that, within a democracy, individual
rights did not suffer as a result of abuse of power by the majority. However, it does
not follow that because the rule of law had, and has, an important role to play in a

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democracy, it cannot have a role in other forms of government. It is a requirement
for any form of developed society and will contribute to the efficiency of any society.

Trade can and will take place with and in a society that does not observe the rule of
law, but that society will have to pay a price for not observing the rule of law. The
risks inherent in trading with that country will be greater than those involved in trading
with a country that does observe the rule of law and because of this, those prepared
to trade or invest in a country that does not observe the rule of law will look for
greater rewards to compensate them for incurring the greater risk involved in doing
this. If they do not obtain at least the prospect of the greater profit to compensate for
the additional risk then, in a global economy, when practical, they will trade and
invest elsewhere.

While the rule of law can contribute to the great majority of the different aspects of
society, it has an obvious and critical role in relation to the proper functioning of the
economic wellbeing of a society. There is nothing novel in this. For some time it has
been recognised by the World Bank that the establishment of an appropriate judicial
and legal infrastructure has a critical role to play in assisting in the alleviation of
poverty in third world countries. The rule of law provides the framework a country
needs for the development of its economy. In addition, observance of the rule of law
contributes to good governance which is so often absent in undeveloped countries.

On my visit to China four years ago, after I had given a talk, I was asked about the
distinction between “rule by law” and “the rule of law”. What is meant by “rule by law”
is easier to describe than what is meant by “the rule of law”. Different commentators
would not necessarily agree on what the distinction between the two concepts is, but
they would certainly agree that they are not the same.

Most commentators would agree that rule by law involves little more than requiring
observance of the law irrespective of what may be the content of the law. At least
part of the distinction between the concepts is, therefore, that rule by law lacks the
essential basic qualitative requirement which is at the heart of the rule of law. It is
this qualitative requirement which is so important when it comes to the contribution
that the rule of law can make to a successful society in the contemporary world.

What, then, are the requirements of the rule of law? There is no universally accepted
statement of those requirements and their precise nature can differ depending upon

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the constitutional situation in a specific state. However, it can be safely said that the
minimum requirements are:

1. That there should be access to a court to resolve disputes by any


individual whose legal interests are adversely affected by a dispute.

2. That the court should be presided over by an independent and


unbiased individual (the judge) who is reasonably competent to
resolve the dispute.

3. That the court will hear and determine this dispute within a reasonable
time and give a reasoned judgment for its decision.

4. That there are reasonably effective methods of enforcing the court’s


decision, once it has been given.

5. The court’s procedures should be fair and reasonable.

6. The law applied by the court should be reasonably certain, readily


ascertainable, proportionate and fair.

In relation to mercantile disputes, the requirements are likely to be primarily


procedural, though the substantive law must not be confiscatory in nature. Certainly,
those engaged in economic activities are most likely to be concerned about the
absence of satisfactory procedural arrangements.

Here it is relevant to refer back to the procedural changes to which I referred earlier.
One of the most radical changes to our civil law has been the development and
introduction of the new Civil Procedure Rules in 1999. These reforms are still
referred to by a number of English lawyers as the ‘Woolf reforms’ because it was my
task to make the report and recommendations that led to them.

The new Civil Procedure Rules, are a complete code covering all matters of civil
procedure, from pre-action behaviour, through to the conduct of cases that go to trial,
to the orders and costs that are awarded post trial. Before the development of this
code our civil procedure rules were fragmented. There was no clear organisation.
They were mostly to be found in previous decisions of the courts in a variety of

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different cases over a long period of time. The previous rules encouraged litigation
that was often too costly, in that costs, the expenses incurred by the litigants,1 often
exceeded the value of the claim; too slow in concluding cases; too unequal between
the powerful, wealthy litigant and the under resourced litigant; too uncertain in
forecasting what litigation will cost and how long it will last; and too incomprehensible
to most litigants. Added to these problems the system was too adversarial as cases
were run by the parties, not the courts.2

The unification and standardisation of a whole myriad of separate rules and


procedures into one code based on definite principles is perhaps a similar process of
reform to that which you have gone through in relation to contract law. Your Uniform
Contract Law, also enacted in 1999, and our Civil Procedure Rules have in common
that they are supportive of the rule of law, particularly in the economic field. They
contribute to the creation of the framework of law which is so important for the
successful encouragement of trade and investment.

Additional support of the rule of law is provided by Mediation and Alternative Dispute
Resolution. What the economy requires is effective and economic methods to
resolve the disputes that are inevitable consequence of commercial activities. Often
it is more sensible for parties to resolve their differences outside the court. To
commercial parties who may wish to trade with each other in the future, the
possibility of a future relationship is often jeopardised by acrimonious and costly court
proceedings. It is also the case that the parties are often more likely to find a solution
that suits both of their interests when they attempt to settle than when they leave it to
the potential lottery of litigation. And, of course, settlement can be much quicker,
cheaper and less stressful than embarking on adversarial proceedings. Not only can
this benefit the parties, but the court’s time can be better resourced to deal with those
really important cases that genuinely require judicial intervention. However it is
essential that, if a dispute is resolved, the resulting agreement or decision in the
arbitration can be effectively enforced. The need for effective methods of
enforcement is a subject to which, at least in my jurisdiction, we are inclined to pay
too little attention.

1
“Costs” here refers to the costs of representation (e.g. barristers’ and solicitors’ fees)
incurred by the parties to litigation.
2
The running of the case involves deciding on the timetable for the exchange of documents,
holding of hearings etc within a case. Under the new Civil Procedure Rules, it is now the
responsibility of the court to manage the case (by making timetable directions, for example).

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I appreciate that there is no need to lecture you on the benefits of mediation. I am
aware that Chinese law has traditionally placed particular emphasis on this way of
resolving disputes throughout your history. I understand that well over 2000 years
ago the official administration of the Western Zhou Dynasty included the post of
Mediator for the purposes of “solving disputes among the people and harmonizing
their relations.” It has been said that Confucius’s doctrine of “benevolence, rites,
loyalty and tolerance” (circa 500 BC) provided the moral framework for the mediation
of civil disputes. During the Han Dynasty between 206 BC and 220 AD there
developed a mediation institution for the resolution of civil disputes consisting of the
Three Elders, an elderly and wise farmer, handicraftsman and businessman. After
the Revolution in the 1950s you developed a network of Peoples’ Mediation
Committees that resolved a variety of disputes including contract and property
disputes.

Apart from a brief period during the Cultural Revolution, your embracement of
mediation has continued. Article 385 of the Uniform Contract Law includes a clause
requiring parties to attempt to resolve their disputes though mediation, then
arbitration, and finally only through litigation in the people’s courts where an
agreement has not been reached. You have also taken steps to enable mediation in
international contracts and allowing the parties to a foreign economic contract to
choose the law that will apply to disputes. I understand that you have recently
implemented measures aimed at resolving disputes in domain name registration on
the Internet, demonstrating the applicability of mediation to the new technologies.

A developed state which is properly administered should normally be able to comply


with the requirements of the rule of law that I have set out, at least, in so far as this is
necessary to support an effective market economy that efficiently serves those
engaged in commercial activities both within the state and internationally.

So far as the United Kingdom is concerned, we start off with considerable


advantages, first of all, because of the way our system has been developed both by
Parliament and the judiciary over many, many years, and secondly, because of the
quality of our judiciary and legal profession.

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In England and Wales3 we are assisted by having a strong and independent legal
profession made up of two separate branches – solicitors and barristers. Entry into
the professions is highly competitive and those that are admitted will generally have
earned their admission by having achieved academic distinction. The standards of
education and training within the profession are also rigorous: practicing barristers
and solicitors cannot rest on their laurels – they must actively maintain their
professional education whilst they are working.

The judiciary are, on the whole, appointed from the practicing legal profession. The
majority of judges were among the most successful in their field within the profession
before they became judges. They bring to the judiciary significant, relevant
experience. Most importantly, they bring with them a culture of sturdy independence
and total incorruptibility.

As far as I am aware there has never been a suggestion that any of the judges for
whom I have been responsible have been involved in any way in corruption. No High
Court judge has ever had to be removed from office. This is a remarkable record. It
is part of the explanation why so many countries choose to conduct financial
transactions in or with the City of London.4

London has the necessary legal infrastructure that is required by a financial centre.
The legal profession and the judiciary are deeply involved in the provision of legal
services not only to those who live and trade in the United Kingdom but those from
abroad as well. Although it has no separate building, and its facilities are not the
most up-to-date (but hopefully will be improved in the near future), the Commercial
Court acts, to a significant extent, as a court for the resolution of commercial disputes
that often have limited or no connection with the United Kingdom. On average, two
thirds of the disputes which are resolved by the Commercial Court will have one party
who is unconnected with the United Kingdom. It is a similar story in other specialist
jurisdictions, such as within the Technology and Construction Court.

A key reason why individuals and companies choose, not only to conduct their
business in the City of London, but to settle their commercial disputes here, is our

3
England and Wales is the largest of the three jurisdictions that make up the United Kingdom.
The other two jurisdictions are Scotland and Northern Ireland.
4
The City or the City of London is the historic part of London which is the financial centre of
the United Kingdom

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country’s longstanding adherence to the Rule of Law. People elect to trade in
London and have their disputes resolved there because they know that the law that
governs their transaction, or which will be applied in their proceedings, will not be
changed on a whim or selectively applied; they know that the courts will uphold the
law independently, fearlessly and without bias; and they know that any judgment of
the court can be enforced. If one is looking for practical, economic illustrations of the
value of the Rule of Law, one need look no further than the City, and courts, of
London.

A similar picture is provided by a much smaller jurisdiction from which I returned only
two weeks ago, namely Singapore. Coincidently I was giving the Singapore Lecture
that was given by your Chief Justice two years ago. As a matter of policy Singapore
has ploughed huge sums, proportionate to its resources, into providing state of the
art legal services. Singapore appreciates that its success as a commercial and
trading nation without natural resources other than its location and as a port depend
in part on the quality and reputation of its legal services. The same is true at least
partially of why Hong Kong attaches such importance to the one nation two systems
principle. Of course, Singapore and Hong Kong are both far smaller than even my
country, but even so I believe the importance they attach to the rule of law and the
quality of their legal systems demonstrates their view of the commercial benefits that
flow from having legal systems that adhere to the rule of law.

As Chief Justice the Hon Xaio Yang said in his Singapore Lecture of the 9th
September 2003:

“Today’s world is one of the rule of law. The prosperity of a nation , the
integrity of its politics, the stability of its society, the development of its
economy, the solidarity of its ethnic groups, the flourishing of its culture and
the contentment and well being of its people, all hinge upon the maintenance
of law and order and the soundness of the legal system”.

Despite the importance of our Commercial Court, it is the Administrative Court, which
has the greatest responsibility for upholding the rule of law within the jurisdiction for
which I am responsible.

To a large extent, the developments in our administrative law have taken place over
the last 20 to 25 years, as I have already indicated. The task of a judge sitting in the

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Administrative Court, is primarily to ensure that decisions taken by public bodies
comply with the law. Many of those decisions are taken by administrative tribunals.
Others are taken by local government bodies or ministers of central government.

A decision does not comply with the law if it is not properly considered, if it is
unreasonable, or if it is wrong as a matter of law. Famously, as late as 1964, one of
our most distinguished judges, Lord Reid said “we do not have a developed system
of administrative law – perhaps because until fairly recently we did not need it.”5
That statement marked the beginning of the evolution of our administrative law. The
process was accelerated because of the development in the 1980s of our new
process of judicial review. I note that incidentally this was at approximately the same
time as the Peoples Republic of China adopted its Administrative Litigation law of the
4th of April 1989.

Judicial review proceedings resulted in a significant number of decisions by


government officials being quashed by the courts. When this happened, the judges
did not normally replace the quashed decisions with their own: they reviewed the
previous decision and if it was contrary to law required it to be taken again in
accordance with the law. In this I understand judicial review has similarities with the
established practice of Administrative Reconsideration in this jurisdiction. The
distinction between the two procedures being that one is conducted internally and the
English counterpart by independent judges. Their objective is however the same.
“Both”, according to Arthur KC Cheung, of the City University of Hong Kong “are
designed to help settle administrative disputes between the state and individuals,
alleviate tensions in the relations between the two, protect individual rights and
regulate government officials’ acts.”6

You will not be surprised to know that no official welcomes intervention of this nature
and there have been occasions when Ministers whose will has been frustrated have
audibly expressed their annoyance at the actions of the court. This did not, however,
deter the courts from doing their duty and they continued to uphold the law.

Ministers who expressed frustration in that way usually, on reflection, regretted


having done so. They realised that the judges were only doing their duty, and, what
is more, the short term inconvenience was far outweighed by the long term benefit of

5
Ridge v Baldwin [1964] AC 40, 72
6
“China’s Administrative Litigation Law” (2005) Public Law at p565

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the decision being retaken in accordance with the law. Furthermore, the fact that
decisions can be quashed on applications for judicial review is in the long term
interests of the government. It results in better administration. It stops sloppy
practices and requires decisions to be properly considered and explained.

An interesting illustration of the court’s power to review decisions of public bodies in


the financial field is provided by the decision on application for judicial review in R v
Panel of Take-overs and Mergers, ex parte Datafin.7 In that case, the then Master of
the Rolls, Sir John Donaldson, in giving his judgment, commenced by pointing out
the unusual nature of the Panel. He said:8

The Panel on Take-overs and Mergers is a truly remarkable body. Perched


on the 20th floor of the Stock Exchange building in the City of London, both
literally and metaphorically it oversees and regulates a very important part of
the United Kingdom financial market. Yet it performs this function without
visible means of legal support.

The panel is an unincorporated association without legal personality and, so


far as can be seen, has only about twelve members. But those members are
[very powerful figures in the City].

The question arose in the case as to the susceptibility of the Panel to judicial review,
since what it was engaged in was self-regulation without reliance upon any legal
backing. However, it was undoubtedly the fact that it still was able to exercise
“immense power de facto by devising, promulgating, amending and interpreting the
City Code on Take-overs and Mergers”9 and for this reason the Court decided that its
decisions were subject to review by the courts (but that review would have to be
carried out in a particularly expeditious and possibly only in a retrospective manner).
As Lord Justice Lloyd said:10

If the body in question is exercising public law functions, or if the exercise of


its functions have public law consequences, then that may … be sufficient to
bring the body within the reach of judicial review.

7
[1987] QB 815.
8
Ibid, 824.
9
Ibid, at 826.
10
Ibid, 847.

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Even in the case of financial markets, the courts should be there as a final resort to
protect individuals and corporations against the abuse of power.

Decisions of our courts, such as that in the case of the Take-over Panel were
constructive in that they developed a culture in which it was known that activities had
to be conducted in accordance with the law.

The courts do not only intervene on behalf of the private individual or body, they
intervene to enforce the law on behalf of the public as well.

It is perhaps of interest to a Chinese audience to note that the judges that exercise
this power of judicial review are the successors of the very same judges who came,
in the 13th century, to travel around England and Wales on behalf of the King to
uphold the King’s law. Even today, they are normally appointed by the Queen and
regard it as a matter of pride that they are her judges.

The judges to which I refer are still required to go on circuit. That is, go to towns
through out the country. They do so in order that they can conduct the most
important and difficult trials. A litigant does not have to go to London in order to have
a case tried by our best judges. This is true even of specialist jurisdictions. By way
of example, there are specialist mercantile judges available in most of our larger
cities.

However, there is another reason as well why the High Court judges spend part of
their time on circuit. This is because the visits help to ensure that consistency in
standards of justice are maintained across the country. While they are on circuit, the
High Court judges take an interest in and give guidance to the local judges and
promote a collegiate spirit among all the judiciary. This contributes to the effective
administration of justice.

One consequence of the need for judges to be independent is that there have to be
restrictions on any interference in how the judiciary perform their role in court, other
than by a higher court on appeal. The independence of the judiciary has to be both
individual and collegiate. Even the Chief Judge cannot give orders to any judge as to
how to decide a case. Guidance, however, can be appropriate and we believe that
guidance is best provided by way of example and encouragement. In addition, we

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improve judicial standards by providing education for judges. This is achieved
through a Judicial Studies Board which is run by the judges for the judges.

This brings me to the constitutional changes which were made by our Parliament this
year, which affect our approach to the rule of law.

The United Kingdom has no written and entrenched constitution, but it has a series of
instruments, the first of which was Magna Carta to which I have already referred, that
are of considerable constitutional importance. The most recent of those instruments
is the Constitutional Reform Act 2005. That Act made a very significant difference to
our constitutional arrangements.

Prior to that Act, the separation of powers formed no part of our constitution. This
was best illustrated by the position of the Lord Chancellor who, at one time, was a
senior government minister responsible, amongst other things, for appointing most
members of the judiciary; the constitutional head of the judiciary; and the Speaker of
the House of Lords. He has been a living contradiction of the principle of the
separation of powers which some would regard as a significant feature of the rule of
law. The office can be traced back to the 11th century. It is a matter of dispute
whether the office I hold or the office of the Lord Chancellor is the more historic.

The reason for the Constitutional Reform Act was that it was accepted by the Prime
Minister and his government that it was not constitutionally proper or in accordance
with the rule of law for the Lord Chancellor to have the array of roles which he has
had up to now. It was also accepted that there is a need for greater separation, at
least between the government and the judiciary, and the judiciary and the legislator.
Accordingly, the Lord Chancellor is to lose his role as head of the judiciary and that
role is to pass to the Chief Justice. In addition, instead of the Lord Chancellor
making the majority of judicial appointments, they are now to be made by a
commission which is quite separate from both the government and the legislator.

As I have already indicated, the English judiciary was already independent in fact.
But the changes which have now been made will mean that the judiciary is not only
independent in fact but is also seen to be independent.

As part of the new arrangements, a concordat was entered into between the Lord
Chancellor and myself where we attempted to set out clearly for the first time what

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are the responsibilities of the Lord Chancellor in relation to the judiciary and what are
the responsibilities of the Lord Chief Justice of the day for the judiciary. The result of
the changes will be that there is much greater clarity as to the independence of the
judiciary. This cannot but be an advantage, bearing in mind the fact that our judiciary
is continually being required to make decisions today which have the greatest
possible significance for the rule of law.

That conveniently brings to an end the remarks that I wish to make prior to the
discussions which I understand are now to take place. I hope that the picture which I
have sought to paint indicates that the upholding of the rule of law is of the greatest
importance to the evolution of a modern economy and to the good governance of a
modern state. I also hope that the message which I have attempted to give is a
positive one. It is that the concept of the rule of law is sufficiently flexible to enable it
to be modelled in a manner which should enable it to be met by both our countries.

Admittedly, I do not know the extent, if at all, that the changes to our legal framework
I have identified can be of assistance in taking forward the action upon which you
have already embarked to ensure that this great nation is able to achieve its full
potential as a modern nation state. But what I can say with confidence, because of
my present position in our judiciary, and because of the positions I am about to hold
as the Chairman of University College London and in CEDR, the centre for dispute
resolution, is that so far as the UK is concerned, there will be no shortage of support
for cooperation between our two jurisdictions in any area that this would be welcome.

As I have pointed out, in my jurisdiction the legal profession and judiciary make a
critical contribution to upholding the rule of law. I have long believed and advocated
that the professions and the judiciaries of the different jurisdictions have a significant
role to play in assisting each other. No single jurisdiction has a monopoly of the ideal
model of the rule of law or of the best way forward. Progress can only be assisted by
discussion and consultation between the judiciary and lawyers of our jurisdictions.
There is a similar need for close cooperation between the academic institutions of
different jurisdictions. I am delighted that there is already considerable cooperation
taking place between our jurisdictions and I very much hope that what I have said
assists in promoting that cooperation. The fact is that more you compare our two
systems the more you become convinced that there is more that we have in common
than separates us. I hope that we are able to move forward together.

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