Editor: Please describe your former role as Lord Chancellor.
Falconer: The role of Lord Chancellor up until 2003 was being head of the judiciary in England and Wales, a cabinet minister responsible for courts and justice issues and speaker of the House of Lords, the second legislative chamber under the UK constitution. Between 2003 and 2005, a series of pretty radical reforms were introduced in the role of Lord Chancellor, stopping his being speaker of the House of Lords, transferring the job of head of the judiciary to the Lord Chief Justice for England and Wales, and giving the power of appointment of judges to a Judicial Appointments Commission. The reason for that was a very profound desire to separate politics from the judiciary. Although in the last 30 or 40 years, the Lord Chancellor has always scrupulously appointed judges on the basis of merit, having a cabinet minister who appointed all the judges on his own and being the chair of the final court of appeals, which is what the Lord Chancellor's role was, we thought, unmaintainable in the current context where the public rightly are wanting a much more independent judiciary to enforce their individual rights. So the role of the Lord Chancellor changed dramatically in order to underline the importance of judicial independence.
Editor: To put the UK judicial system in context, could you describe the differences between it and the U.S. system?
Falconer: The principal differences between the UK judicial system and the U.S. judicial system is that in the U.S. judicial system judges in one sense have more political power. The Supreme Court is taking political decisions, for example, the circumstances in which abortion will be allowed. We would never want our judges to be making decisions which are essentially resolving important policy issues. We want those to be resolved by our politicians. I think also, though I'm reluctant to get too deeply into this, politics in the sense of whether somebody is a Republican or a Democrat can play a part in determining whether you become a judge. That is something which in UK terms we would find very difficult to accommodate within our system. The system in Britain utterly depends on people being selected to be judges entirely on their legal merits and not on their political affiliations. Transforming the role of Lord Chancellor was in practice an attempt to make it clear that even at the highest level that was to be and remain the position. We are incredibly keen on judicial independence. Over the last 30 to 40 years, we have been very good at ensuring that people are appointed only on legal merit.
We have no counterpart of pre-appointment hearings before a legislative body in which a judicial candidate is being asked as a judge to state what his or her views are on a particular issue. That would be regarded as wrong in the British system because we want judges to make their determinations on the basis of the legal merits, not on the political merits.
Editor: In Delaware, for example, judges have a very high status. People from the private bar look upon being appointed to one of their three major courts as being a very significant career step forward. Does that psychology prevail in the UK?
Falconer: The selection of judges in the UK is based on merit alone. The standing of judges is this country is high, much higher, for example, than lawyers. Because the selection of judges is made on the basis of merit exclusively, it is regarded as a great honor to be made a judge. Obviously for time to time those people who want to become judges will be affected by how much is being earned at the bar or in the solicitor's profession. But the standing of judges in our country is high. Therefore the vast majority of judges are appointed from private practice.
Unlike your system, we would be quite keen to encourage more people from the public sector to become judges. The reason there aren't enough of these appointments is because they tend to get squeezed out by the private sector appointments.
Editor: In the UK, does a bar association have a role in the judicial selection process?
Falconer: For each appointment as a judge you have to apply so that there can be a fair competition. The Judicial Appointments Commission will make recommendations to the Minister of Justice. The Minister of Justice is, in effect, obliged to accept those recommendations except in very exceptional circumstances. Before the Judicial Commission members make up their mind, they will consult widely, including with the relevant bar or solicitors association of which the applicant is a member.
Editor: Tell us about the handling of commercial cases, including whether they are handled in an expeditious way.
Falconer: We have been extraordinarily conscious over the last two decades of the importance to the UK generally that we have a very strong commercial court dispute resolution system and prompt resolution is only one of the advantages it offers. Our Commercial Court has attracted business to the City of London. A high percentage of the cases that the Commercial Court resolves come from countries other than the UK. They are keen for the Commercial Court to resolve their disputes there because of the quality of the judges in the Commercial court, the quality of that court's facilities and the speed with which disputes can be resolved.
Editor: Are there jurisdictional tests?
Falconer: Yes there are. And if there's absolutely no connection with the UK and somebody is contending that it is not the right jurisdiction, then Britain will give effect to those jurisdictional considerations. There frequently is no jurisdictional challenge to the Commercial Court hearing the case because both parties want it. For example, if in a commercial contract the choice of law is English, even though both parties have no connection with England, the Commercial Court would be perfectly willing to resolve that dispute assuming that nobody has applied for a more convenient forum to be identified.
Editor: In the U.S., generally low judicial pay is a major concern.
Falconer: The range of pay for British judges would be starting from about $160,000 through to about $500,000 for the Lord Chief Justice of England and Wales. Most judges would be in the range from about $160,000 to about $250,000. There are considerable complaints from judges about the rates of pay that they have in England and Wales. Very many of them will earn less than they were earning in private practice. But I have detected very little reduction in the number of applicants to be judges or the quality of the applicants. It remains a high prestige career.
Editor: Does the UK experience the situation in the U.S. in which judges leave the bench to go to private practice or to become arbitrators, often because of inadequate judicial salaries? Falconer: No. In all senior permanent judicial appointments in England and Wales, you are appointed effectively on the basis that you will then continue, subject to health or misconduct, until the end of your career as a judge. There is no history or practice of people leaving or stop being a judge to be an arbitrator. After some judges have retired, they will do arbitration. But that tends to wait until they retire at normal retirement age of 72. Eighteen months ago, a Chancery Division judge, Justice Laddie, left long before the retirement age in order to take up a job in a firm in which he would do arbitrations. That was regarded as unprecedented. About 30 years ago, Sir Henry Fisher left to join a bank. These were regarded as very exceptional cases and meet with considerable disapproval.
Editor: In the UK are delays encountered because courtroom facilities are limited or judges have too large a case load?
Falconer: The extent to which the lack of a judge or lack of a courtroom determines whether a case is heard is quite limited in our system. By and large, the length of time it takes for cases to come on depends on the time it would take for the parties to prepare the case rather than the shortage of a judge.
Editor: One of the complaints about some U.S. courts is that judges don't have clerks to research the law and they lack adequate libraries and electronic access. Is this a problem in the UK?
Falconer: In terms of electronic or library facilities to research the law, our judges are pretty well served, particularly because of the electronic facilities now available. In terms of lacking a clerk to do research, 99% of our judges don't have any sort of research assistance. They do it all themselves. At the very highest courts, they will have some support. But in the first instance jurisdictions, there has never been in the English, Welsh or Scottish courts any tradition of judges having research support. It's always been perceived to be something they have got to do for themselves.
Editor: Is that explained by the fact that there are enough judges?
Falconer: UK judges are never given so much work that they just cannot deal with it. Going back to the commercial example, there are enough commercial judges to deal with the commercial lists that they've got to deal with. If they hear a heavy commercial case, the judge will get time from the listing authorities to spend two or three days or even two or three weeks if necessary out of court writing the judgment. I don't want to imply that their loads are too light because they do work incredibly hard. But the amount of work that they've got to do is manageable.
Editor: Is there a process that reviews the performance of judges?
Falconer: In order to preserve judicial independence, once appointed a judge you have tenure subject only to misconduct. In terms of assessment of the quality of judges, there are a few pilot schemes in place where judges are reviewing the performance of other judges. It can only be judges who do it, again to preserve judicial independence. But they are isolated situations. By and large there is no assessment process for judges in our system. However, if the Court of Appeal in the English system thought a particular judge was repeatedly making errors, then they would investigate why and see if anything needed to be done.
Editor: I would gather that in the UK because of the care in selecting judges there would be fewer reversals of trial court judges decisions than in the U.S.
Falconer: I cannot comment on what happens in the U.S. In Britain, judges from time to time reach conclusions which the Court of Appeal or the House of Lords then overturn. But we would regard as an extraordinary failure in the appointment system if somebody had been appointed who didn't have an adequate understanding of the law to systemically avoid mistakes or reversible errors. Indeed the quality of people applying is such that although nobody is perfect, and people will reach conclusions that others disagree with, the system is good enough generally to ensure that if you don't have an adequate understanding of the law you are never appointed a judge.
Editor: In the U.S., there are e-discovery issues and issues relating to the quality of expert witnesses. And there is the whole area generally of the complexity of cases that deal with high tech and biotech. Do you have judges on the UK bench that are competent to handle that type of matter?
Falconer: We do. In construction cases, commercial cases, technology cases, and patent and copyright litigation, there are frequently huge quantities of documents, huge quantities of expert material and huge quantities of technical material that needs to be gotten through. Our judges have been good at developing an understanding of the IT, that means that these things become more manageable.
We have been incredibly keen, in the Commercial Court particularly but also in the Chancery Division which deals with patent and copyright cases, to be able to provide a service to the commercial community, which means that these cases can be fought manageably.
Editor: One thing that the Chief Justice of Delaware mentioned was that they have a very sophisticated case management system, and all documents can be filed electronically.
Falconer: In the England and Wales High Court, all documents can be filed electronically. In the late 1990s, we recognized that unless we developed effective case management systems we wouldn't be able to deal with cases in the manner contemplated by a whole set of new rules covering civil litigation inspired by the then Lord Chief Justice Lord Wolf. The Wolf reforms reflect the effort in the England and Wales High Courts to come to terms with the greater complexity of documentation and evidence in civil litigation. They involve the possibility of using information technology, but they're a whole new approach to litigation and in particular they involve parties being required to put their cards on the table at the earliest possible stage to try to reduce the need to go to court.
Editor: So there is an effort to get the parties together to resolve the issue amicably. Is there also a mechanism to encourage the parties to seek arbitration or mediation?
Falconer: There are rules of court that facilitate the referring of cases, where appropriate, to mediation, both small cases and larger cases. For example, there are schemes in some of parts of the country where all claims under a certain level are automatically referred to the Mediation Service. This approach gets very good results in arriving at enforceable settlements.
Editor: In the U.S., there is a strong feeling that efforts are being made by counsel to create an atmosphere through the media to influence judicial decisions in civil cases. What is the situation in the UK?
Falconer: There are very few UK instances in the civil field where attacks on a judge or attacks on a corporation form part of a litigation strategy. The reason for that, I think, is that the courts and the judges are perceived here to be strong and by and large will tend to react against media pressure.
Editor: How would you sum up?
Falconer: It is obviously important that without regard to other considerations court systems be perceived to be deciding cases on the legal merits with probity and quality. That is a public good in its own right. But quality of our court system also has a very significant commercial benefit for the UK. It draws a whole range of professional services to London and the UK. If the UK courts are regarded as being sound in relation to dispute resolution, then it means that English law is chosen very often as the law of the contract, which then brings business the UK law firms. The future is for the developed world to provide professional services on a global basis. The City of London legal firms compete for that business with firms in other countries, particularly those in the United States. And the quality of our courts definitely provide UK firms with a competitive advantage.
Importantly, the quality of the courts attract businesses to locate in the UK since legal expense (when court awards and settlement costs are also included) can be a very large cost factor. Illustrative of the impact of legal expense is the estimate that the cost of litigation to Fortune 500 companies is approximately one third of their 2006 after-tax profits discussed on page . Undoubtedly some of this cost is attributable to issues affecting U.S. courts discussed elsewhere in this issue.
Published February 1, 2008.