Sir Robert Megarry, by Anthony Morris, via the Royal Society of Portrait Painters website

At the beginning of the current legal year, Irish judges broke with three centuries of tradition, and ceased wearing wigs in court. On 13 October last, the Minister for Justice issued a press release stating that he had signed into law two new Statutory Instruments to make the wearing of ceremonial wigs optional in the courts. The Statutory Instruments came into force the following day, 14 October, just in time for the new legal term (Irish Times, here, here, and here). The making of the SIs was duly gazetted in Iris Oifigúil on 18 October (see (2011) 83 Iris Oifigúil 1417; pdf). Hence, the Circuit Court Rules (Judges Robes) 2011 (SI No 523 of 2011) and the Rules of the Superior Courts (Robes of Bench) 2011 (SI No 524 of 2011) dispensed with the requirement that judges wear ceremonial wigs in court. However, it is only this week, a full three weeks since the Minister’s press release, that the full text of the SIs became available online. (As I have asked many times before on this blog, why does it take so long for such important legal information as cases, SIs, and Acts, to be made generally available online?). Both SIs provide that:

A Judge shall not be required to wear a wig of a ceremonial type during [Court] sittings.

This is not quite a full abolition of the wig, as it does not prevent a judge who wishes to do so from wearing one. The development has been explained as part of a move to modernise the courts, though it has also been explained as an austerity move. Either way, the question arises: with wigs gone, will a revamp of judicial gowns be far behind?

So much for the bench. As for the bar, section 49 of the Courts and Court Officers Act, 1995 removed the requirement that advocates wear a wig in court, and section 117 of the Legal Services Regulation Bill, 2011 proposes to amend section 49 to include gowns as well, as follows:

A legal practitioner when appearing in any court shall not be required to wear a wig or a robe of the kind heretofore worn or any other wig or robe of a ceremonial type.

As with judicial wigs, this would make the wearing or not of wigs and gowns an issue for individual practitioners. In any event, formal attire isn’t always necessary in court. For example, in St Edmundsbury and Ipswich Diocesan Board of Finance v Clark [1973] Ch 323, Megarry J (pictured above) arranged a mock funeral in Iken in Suffolk to test how easy it would be to carry a coffin along an alleged right of way, and directed that neither he, nor the Registrar, nor counsel would be robed for the occasion:

Robes are convenient in normal circumstances as an indication of the functions of those engaged in the proceedings, and as enhancing the formality and dignity of a grave occasion. … But robes are not essential, … Jurisdiction is neither conferred not excluded by mere matters of attire or locality … ([1973] Ch 323, 333).

In the case itself, the Court of Appeal ultimately held that, when the Diocese had sold land surrounding a church to Clark and reserved a right of way across the land to get to the church from the public highway, the physical state of the pathway was such as to indicate that a right of way on foot only was intended ([1975] 1 All ER 772 (CA); see also Gillon v Baxter [2003] EWCA Civ 1591 (10 October 2003); Yip v Frolich [2004] SASC 287 (17 September 2004); Perlman v Rayden [2004] EWHC 2192 (Ch) (07 October 2004); Ali v Lane [2006] EWCA Civ 1532 (21 November 2006)).

This was not the only time Megarry visited the scene of litigation: in Tito v Waddell (No 2) [1977] Ch 106; [1977] 2 WLR 496 (the longest-running civil case before McLibel (amazon | imdb | wikipedia): Steel & Morris v McDonald’s Corporation [1999] EWCA Civ 1144 (31 March 1999); Steel & Morris v UK 68416/01 [2005] ECHR 103 (15 February 2005)), he ordered the court on a three-week trip to the southern Pacific island of Banaba to view the island round which the dispute was centred – during which he caught a stomach bug from local roast pork!

Notwithstanding section 117 of the Bill, I suspect that the legal profession will be slow to move to away from gowns in court, and from business suits in solicitors’ office. Writing in the Guardian during the summer, Alex Aldridge was surprised to read a recent endorsement of flip-flops as a suitable form of office attire by the corporate legal big cheese William Urquhart:

Do lawyers still need a suit and tie – or formal female dress?

Business casual is gaining acceptance in the UK, influenced by US trends. But formality still rules in many firms, and defendants often want ‘a proper lawyer in a wig’

… to date, few firms in Britain have deviated from the year-round suit-and-tie policy … However, in an increasingly international legal market, traditional British commitment to smartness seems to be wavering: a growing number of London firms are adopting business casual dress codes.

… So how are British lawyers … adapting to this brave new world of business casual? According to Kevin Poulter, a solicitor with Bircham Dyson Bell, not so well. … For women, who make up around 60% of new entrants to the legal profession, business casual dressing success is proving similarly elusive.

The shift towards a more relaxed – if more confusing – clothing regime for solicitors is in step with a general trend across the legal profession towards greater informality. … Three years ago, barristers’ wigs and gowns were ditched for civil and family cases, and the five different seasonal costumes previously worn by high court judges scrapped in favour of a new, simpler year-round outfit …

… there are signs that looser office dress codes are spilling over into the public sphere … but it risks undermining the image of prudent conservatism and good judgment that the legal profession has long traded on.

On the other hand, Quebec tax authorities have insisted that their employees dress appropriately for the workplace, where exercise shorts, tank tops, flip-flops and other overly casual items do not belong.

In my post Do clothes maketh the man? I argued that non-conformist TDs (members of parliament) who do not habitually wear suits and ties were making a serious political point, and a proposal to prevent them from doing so sartorially is an unpardonable limit on their rights to political expression. At the time, a small majority (52% to 46% of those who voted) in an online poll conducted by the Journal.ie voted in favour of the new dress code proposed by the Ceann Comhairle (Speaker of the Dáil) which would have required suits and ties. Nevetheless, by the end of that week, it looked as though the dress code would not in the event materialise, as there was no time in the following week’s Dáil’s schedule to adopt it. Although the Ceann Comhairle publicly appealed to the Taoiseach (Prime Minister) to have the issue added to the order paper for the last week before the Summer recess, it was not dealt with before the vacation at the end of the week. Nor has the issue resurfaced since sittings of the Oireachtas resumed.

It has been put to me that argument in favour of TDs’ sartorial expression does not adequately take into account the need to ensure respect for the Dáil (the lower house of parliament), that TDs’ failure to dress appropriately shows an unpardonable disrespect for the Dáil; and that there are many similar occasions – such as court – where respect requires appropriately formal attire. Nevertheless, just as I suspect that the move away from wigs and gowns in the Courts will be slow and gradual, so I think that the Dáil will be slow to move away from jackets and shirts and suits and ties. However, my point is that rigid conformity is not always necessary: sometimes, the circumstances dispense with the need for formality; other times, necessary expression requires that the formality be subverted. And in those latter circumstances, that expression should be respected too.

Update: the developments in Australia mentioned by Legal Eagle in the comments below are discussed by Kate Galloway on the Amicae Curiae blog, in the wonderfully entitled post: Respect Ma Authoritah! – the post more than lives up to the promise of the title!