Wigged off

To wig, or not to wig: that is the question being posed by the Lord Chancellor’s department in a consultation exercise that will run throughout the summer (1).

In fact, the exercise is not just confined to wigs – the style, shape, colour and even very existence of the gowns, collars and bands of judges, barristers, court clerks and ushers are all up for grabs in this thorough review of court attire. In advance of the present consultation exercise the Lord Chancellor’s department has already commissioned and received the results of a national public opinion survey involving street interviews with 2000 people (2).

But does anyone give a wig? There are certainly arguments for and against retaining the traditional court uniforms that have not changed significantly over three centuries – although the modern day horse-hair wig is of more recent vintage (1822). The most powerful argument for change is that archaic uniforms serve no useful purpose in the twenty-first century.

The counter argument is that traditional court dress helps to disguise the wearer, underscores the impersonal and objective nature of justice and helps court users to identify who’s who. Not so, say abolitionists, who point out that most other countries’ jurisdictions manage without wigs and gowns. All UK magistrates’ courts cases and many county court cases proceed without wigs and gowns – and indeed nothing more elaborate than a dark suit, collar and tie is found in the highest court of the land, the House of Lords.

Lawyers, who are trained to come up with arguments, have not been slow to advance other positions – such as ‘wigs hide bad hair days’ or ‘wigs are expensive to buy’. Ingenious though these arguments are, they indicate that there is little at stake in the wig issue. And because the issue is unimportant most lawyers would happily argue for modernisation one day and for the status quo the next. The debate on wigs and gowns has generated a few letters to The Times (London), but it is not an issue that excites the legal profession.

Maybe this is why the Lord Chancellor is hoping to get a good response to his consultation exercise with members of the public (3). But it is not at all clear why the public should be more concerned about wigs and gowns than legal professionals. The public does not wear them and rarely will they encounter them (except in TV dramas). And when they do they are likely to be more concerned with the substance and outcome of court proceedings than with the trappings of the court room.

The Lord Chancellor says ‘the issue at stake here is far more important than the mere wearing of wigs’(his emphasis). He goes on to explain that the ‘far more important’ issue is to know ‘how comfortable non-professional court users are in a modern court environment’ (4).

So there you have it – a consultation exercise designed to find out whether the public finds sitting in court uncomfortable because the legal professionals are wearing wigs and gowns. No doubt some members of the public find court experiences ‘uncomfortable’, but this is probably because they are on trial or giving evidence where much is at stake. To suggest that any public discomfort is caused by court attire suggests that the Lord Chancellor’s department really is out of touch.

Court attire doesn’t raise any points of principle. Justice is not in issue, one’s liberty is not at stake, and the constitutional implications are zero. In fact, it is hard to think of a more mundane issue that will land on the Lord Chancellor’s in-tray this parliament.

It is ironic that while the government is going to the nth degree to hear what the public has to say on wigs it is taking steps to restrict the number of real and meaningful public deliberations that take place in the jury room. Consulting on the mundane demeans the notion of consultation. And when Baroness Scotland, a minister in the Lord Chancellor’s department, linked the consultation exercise to an issue of democracy (5), she demeaned the notion of democracy.

Don’t be surprised if the present consultation exercise results in a modest proposal to reform courtroom dress. In which case what would be next for consultation? What about ‘should traditional court benches be padded?’ Of course the issue at stake with such an exercise would be far more important than the mere hardness of court benches. Consultation would be necessary to know ‘how comfortable non-professional court users are in a modern court environment’.

Jon Holbrook is a barrister based in London (email Jon.Holbrook@btinternet.com). He contributed the essay ‘Humanitarian intervention and the recasting of international law’ to the book Rethinking Human Rights: Critical Approaches to International Politics, Palgrave, 2003. Buy this book from Amazon UK.

(1) Court Working Dress in England and Wales, May 2003

(2) Public Perceptions of Working Court Dress in England and Wales (.pdf), October 2002

(3) Lord Chancellor’s Department Press Notice (200/03), Court Working Dress is it Fitting for the Modern Courtroom, 8 May 2003

(4) Foreword by Lord Chancellor in Court Working Dress in England and Wales , May 2003

(5) Wigs facing death sentence, BBC News, 8 May 2003