It is difficult to persuade people that judges and barristers understand life in the 21st century when they insist on dressing for work as if in the 18th century. Lord Phillips of Worth Matravers, the Lord Chief Justice, has announced that from next January judges in civil cases will no longer wear wigs, collars and bands, although they will retain a simple gown. The Bar Council is consulting, but is very likely to follow suit and gown. Here in Hong Kong (where I am preparing to argue a case) the issue remains controversial.

When the United Kingdom exported the common law to its colonies, the Ede and Ravenscroft wig box travelled along with the reasonable person on the Clapham omnibus, the rational behaviour of the Wednesbury Corporation, and the rule that what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey. A wig is hot in St Albans. But it is a positive health hazard in the courts of the Cayman Islands, Brunei and Hong Kong, even when the air-conditioning is working. In Hong Kong, the Government has advised that the courtroom temperature should not be reduced below 25.5C (78F). This may help to save the planet, but it does nothing for those trying to work while balancing bits of dead horse on their head.

A debate has come to the boil in Hong Kong this month on whether to retain wigs in the courts of what since 1997 is special administrative region of the People’s Republic of China. It is among the more unusual features of the one-country, two-systems principle that Beijing agreed should apply for 50 years that bewigged barristers bow to the judge before beginning their submissions.

The chairman of the Hong Kong Bar, Rimsky Yuen Kwok-keung, SC (that is Senior Counsel, as there are no more appointments here to the rank of Queen’s Counsel), has stated his support for retaining court dress because of the unique political situation of Hong Kong. It is, he said in the South China Morning Post, “a way of telling the world that Hong Kong, after its handover to China, is still sticking to the British common law system”. An editorial in that newspaper agreed. Wigs and gowns are, it argued, “of symbolic significance, a visual reminder of Hong Kong’s common law traditions”, a mark of “continuity and legal distinctiveness from the rest of China”, and a factor that helps to “maintain confidence in the legal system”.

Lawyers have a duty to ensure that they do everything reasonably possible to preserve Hong Kong as a free society living under the rule of law with the guarantee (enforced by an independent judiciary) of fundamental rights. An outsider should be cautious about commenting on the custom and practice of another legal system. But reliance on wigs as a valuable symbol is seriously misplaced for two fundamental reasons.

First, because confidence in the Hong Kong legal system depends not on what its practitioners wear but on maintaining the high quality of their work and their indisputable independence from the executive. Judges who wear the most impeccably coiffured wigs, with spotlessly starched collars and bands, would command no confidence if their judgments were ill-reasoned and subservient to the executive. In 1997, the Chief Justice of Hong Kong, Andrew Li, decided that the judges of the new Court of Final Appeal, like the judges of the Appellate Committee of the House of Lords, should not wear wigs. This does not impede their judgment in applying the law. Nor is it perceived to do so. “You are what you wear” is not a credible slogan for a mature legal profession.

There is a second reason why Hong Kong lawyers should march from the robing rooms to throw their wigs into Victoria Harbour. As the name of that uniquely beautiful expanse of water indicates, tradition has its place in society as in law. But wigs provide the very worst of symbols for the Hong Kong legal system to maintain. For decades they have represented the ossification of the common law and its remoteness from those it seeks to serve. When London has, at long last, recognised that lawyers make themselves an object of ridicule by dressing up in a horse’s hair whenever they go off to work, it would be odd indeed for Hong Kong lawyers to believe that the maintenance of such a bizarre practice is essential to the preservation of the true, more enlightened values of the common law.

Hong Kong should continue to protect what is best about the heritage of the common law: the presumption of innocence, the right to a fair trial, the principles of judicial review, the value of freedom of expression. But it can and should do so without requiring lawyers to keep scratching their heads at an outdated and damaging symbol.

The author is a practising barrister at Blackstone Chambers in the Temple and a Fellow of All Souls College, Oxford

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