Man about the House

There have been numerous calls to reform the way in which the House of Lords operates. Daniel Jonas talks to the man responsible for running England's highest court, James Vallance White, who believes the House is not doing too bad a job as it is

Principal clerk of the Judicial Office of the House of Lords, James Vallance White, is not used to the limelight. It was something of a surprise for him, then, when a television news report of a demonstration in Santiago, Chile, showed an effigy of him being unceremoniously burned by the crowd.
The real target of the demonstrators, Vallance White explains, were the Law Lords sitting on the Pinochet appeal. Once a week, bedecked in his ceremonial garb, Vallance White sits alongside the Lords. The Lords, on the other hand, dress informally. “Clearly they wanted to burn someone in a wig and gown,” he says, admitting the scene caused a “certain amount of ribaldry among colleagues”.
Vallance White is responsible for the smooth running of England's highest court. He is quick to point out, however, that strictly speaking the Law Lords are not part of the court system at all, but a branch of Parliament. “Once you leave the Court of Appeal, you're outside the ambit of the court service,” he explains. “The House of Lords isn't a court in the same sense – it's an entirely different environment.”
The work rate of the Law Lords is impressive. In 2000 alone, 76 judgments were given by the House of Lords and a further 236 petitions for leave were heard. In addition, the Law Lords must make time for Privy Council cases, of which there were 90 in 2000.
It is surprising to learn, then, that the administrative backup is so small. Vallance White's staff includes five permanent officers and two secretaries. Small wonder that the senior law lord Lord Bingham has described the judicial office as being “run on a shoestring”. Vallance White believes it is grossly underfunded when set against the administration available to the highest courts of comparable nations “and, indeed, some incomparable ones”. The Supreme Court of the United States, which hears around 75-100 appeals each year, has a staff of 400 and each of the nine justices has up to four full-time clerks, two secretaries and an aide.
Vallance White refuses to be drawn on whether reform is needed. “That's entirely a matter for the Law Lords,” he says, pointing out that they get along nicely with the present setup. “To the best of my knowledge, there is universal respect for the quality of the judgments produced by the Lords.”
The Law Lords themselves are traditionally suspicious of any assistance that could be construed as a dilution of their own input. After all, an appellant to the highest court in the land is entitled to expect the Lords' judgments to be their own, and not the work of some anonymous backroom lawyer.
But there are signs of change. Lord Bingham, appointed in April 2000, has called for a system that more closely resembles the supreme courts of other nations. In addition, 2000 was the first year in which four young lawyers from private practice were seconded for 12 months to the judicial office to assist the Law Lords. Vallance White recalls that there were several years of discussion before even this level of additional support was introduced. In September the initiative will enter its third year.
Despite the initial reservations, he believes the experiment has been a success. The secondees have helped the senior Law Lords with background research on appeal cases, articles and speeches. A second group of assistants is currently settling in. Patrick Robinson, an associate with Linklaters and one of the groundbreaking first four, is full of admiration for the initiative. “One of the first things you discover is the enormous workload of the judicial office and the Law Lords,” he says. “Sometimes you wonder how on earth they cope, but they do a tremendous job.”
Vallance White's main difficulty with the new arrivals was where to accommodate them. The offices at his disposal, set in the Palace of Westminster, are eyed covetously by peers. “Accommodation is the most fought-over topic in this building,” he says. When Vallance White was first appointed in 1983 there was a surplus of residential and office space. The politicians have now appropriated everything available. “There's a new breed of active peer who require a range of facilities that members of the House in days gone by would never have dreamed of asking for,” he explains.
There have also been calls for changes to the role of the Lord Chancellor as a cabinet minister as well as head of the judiciary. Vallance White points out that the Lord Chancellor's active role in the judicial business of the House of Lords has greatly diminished over the years. “My predecessor liaised on a far more regular basis with the permanent secretary to the Lord Chancellor. At that time, in reality as well as in theory, the Lord Chancellor was the senior law lord.” Now, he says, it is rare for the Lord Chancellor to sit on a committee and he no longer plays a role in deciding which Law Lords will sit on each appeal.
It is widely thought that the process by which Law Lords are chosen for a particular case is shrouded in secrecy. But there is no mystery, says Vallance White. The responsibility now rests with Lord Bingham, who liaises closely with Vallance White and his opposite at the Privy Council. “Before each new term we meet the senior Law Lords to consider allocation for the coming session,” he explains. Due to the demands on the Law Lords this can be a tricky exercise, which he likens to completing a crossword puzzle. “Once you place a name in one box, it determines who you have left to fill another, and so on.” A number of factors have to be considered during this process. “I'd like to say it's all to do with the particular expertise of each law lord, but availability is often the deciding factor,” he says. “There's a heavy load for all the Law Lords, and with Lord Saville sitting permanently in Northern Ireland, the pressure has increased.”
The Law Lords are not able to sit on cases on which they sat in the Court of Appeal, and after the Pinochet case, determining whether there are conflicts of interest has also become a more intrusive issue. When drawing up a first draft, Vallance White strives to find a balance. “I try to avoid one law lord spending an entire term in the Privy Council. Lord Bingham also likes to be able to offer a few days of non-sitting to a lord who is given the duty of writing a leading judgment,” he says. Any personal preferences among the Law Lords are passed to Lord Bingham, as are any objections from solicitors.
One of Vallance White's current preoccupations is taxation, which he says is becoming a more active part of his role. “It's simply the fact that the taxation of costs is now much more hard-fought,” he states. “The parties are less inclined to accept the decisions that are made.” Conditional fee arrangements (CFAs) have complicated further the issue of costs. The House of Lords has recently confirmed that it is bound by a CFA (The Lawyer, 25 February). Vallance had referred the matter to the House after being faced with a bill with a 100 per cent uplift attached. However, it is now his job to determine the reasonableness of the uplift. “Whether I'm the right person to exercise the role – although that is my job – is for others to decide,” he says.
Appearing before the House of Lords is often a once-in-a-career experience for a lawyer. Cases containing issues of general and public importance are as likely to originate in a high street practice as in a large firm of City solicitors. Consequently, it is rare for any one firm to clock up a large portfolio of previous experience, and solicitors from all types of firms can find themselves before an appeal committee.
Most solicitors are full of praise for judicial office staff in guiding them through the unfamiliar territory. “They were very efficient,” says Felicity Shakespeare, partner at Bristol firm Clarke Willmott & Clarke. Shakespeare found the whole experience of taking a matrimonial case to the lords “surreal”. “I was sitting next to the client while the finest legal minds in the country were going over the details of his family affairs,” she recalls.
The Law Lords are often regarded as a less formal tribunal than the lower courts. The 12 Lords of Appeal in Ordinary sit in an upstairs committee room. They took residence during rebuilding work after World War II and have remained there ever since. Unlike judges in the lower courts, a 'committee' sits at eye level to barristers and solicitors, and this, together with the lack of traditional judicial attire, may have led to the reputation for informality.
But not all share this perception. Ian Morris, partner at Manchester firm Philip Conn & Co, took a case to the Lords earlier this year. “I've heard it said proceedings are informal, but I didn't find it so – there was a lot of bowing and scraping going on,” he says. “The Lords have tremendous regard for the dignity of their position, as you'd expect.”
Two-partner Manchester firm Hugh Potter & Co had a personal injury case before the Lords last year. Solicitor Rachel Rees thought some of the procedural requirements were old-fashioned. “Everything had to be bound in a certain way and we needed to use specialist printers,” recalls Rees. “The staff were very helpful, but the language of procedural orders was difficult for the client to understand – the plain English campaign hasn't reached the House of Lords yet.”
Sylvia Collings, chief listings officer, admits to being “finicky”. “But if we're pedantic, it's because we're answerable to the House,” she says. Collings is more likely to show sympathy to smaller firms, saying: “If we know the case is being conducted on legal aid, we'll help as much as we can.”
Collings is at the sharp end of requests for assistance from both the solicitors and the public. She wearily reads off the statistics: “In one month this year, we counted 1,800 telephone calls to be dealt with by a staff of three.”
Recent developments such as the Woolf reforms and the introduction of the Human Rights Act (HRA) have so far had little impact on the work of the judicial office. The Civil Procedure Rules do not apply to House of Lords cases, which have their own practice directions laid down by the Law Lords. These are already quite user-friendly and adaptable, believes Vallance White. “The rules are kept under constant review and the Lords will often update the directions as the need arises,” he says. The decline in litigation in recent years, which may in part be attributable to the Woolf reforms, has not been felt by the House of Lords. “The number of petitions is increasing every year,” says Collings.
It is still too early to assess whether the HRA will, as initially feared, lead to a significant rise in appeals to the House of Lords. Collings recalls that there was an initial flurry of petitions pleading human rights issues when the HRA was first introduced last year. Interestingly, all of these were granted leave to appeal by the Lords. A number of petitions have been received directly from petitioners in person without the requisite order from a lower court. “Some individuals think there is now a human rights court,” says Collings.
Vallance White has no doubt that the Law Lords would not hesitate in deciding that present Government policy was in contravention of the European Convention on Human Rights if they considered this appropriate. “After all, House of Lords decisions have been ruffling feathers for years,” he says.
Does Vallance White have any advice for lawyers when dealing with the judicial office?
“Any reasonable procedural requests will be considered and we try to be as accommodating as possible,” he says. But solicitors and barristers tend to show a heightened deference when dealing with the House. “At the end of the day, the House of Lords has a lot of clout – the lawyers usually do what we say.”
See The Lawyer's second annual survey of law firms' and chambers' performances in the House of Lords, coming next month