A court of morals? In conversation with Lord Justice Alan Ward

Christopher Simpson 31 October 2014

Sir Alan Ward is far from the unengaging “Retired Old Buffer” he professes to be. His words carry the gravitas of a man who started his career fighting death row cases in apartheid South Africa, including a period working with Mandela, and finished it is an appellate judge in England having “delivered judgments on everything under the sun”. His weighty topic for the evening at the Union was “To Die or Not to Die?”, and focussed on the many ethical questions his career has highlighted.

Sir Alan was unrepentant about the Court’s role in life or death decisions, despite their heavy moral overlay which, we suggested, may fit better in the purview of clergymen: “Where else would you find a place suitable for a hearing, or a suitable person to resolve the disputes which had arisen?” In his view “There was no one else, [as the parties were under an] imperative. Somebody had to decide, and we the court had to decide.”

Similarly, focussing on his judgment in the conjoined twins case (known as Re A), Sir Alan acknowledges that “the moral and ethical dilemma was heightened by the stark facts of the case; you had to kill one child to let the other live. Morals were high on the agenda, but the ultimate decision had to be a legal one. The really difficult question, as I put to leading counsel for one of the twins, was ‘why isn’t this murder?’ It was there that we had the so-called sleepless nights.”

His defence of legalism in these cases is not to say that he is not aware of the faults of the legal system. Asked about a judgement in which he suggested that “the higher you climb, the less the essential oxygen of common sense is available to you,” Sir Alan accepts that “it is to some extent true that the appellate courts, and in fact I mean by this the Supreme Court, is inclined to give judgement with little awareness of the practical ramifications of them, and they have often had unintended consequences.”

The consequences of higher authority have, Sir Alan admits, meant “there have been occasions where I have wanted to find one way but was constrained by the law to find the other.” Nonetheless with a wry smile he acknowledges that there have “not been many” and he “usually tried to bend the law to ensure I get the right result.”

As a judge in the family courts at the beginning of his judicial career a recurring theme was the role the state played in family life and the part played by courts in what might be considered to be personal matters. Sir Alan makes the point that the spirit of the law is “to emphasise the autonomy of the family and prevent interference by the state unless you could establish significant harm which would justify the state’s intervention.”  

He agrees that “only when dire necessity forced you to take a different course would you do so”, but is adamant that the law has a role to play. Speaking emotively of the cases which “drove one to despair of human nature”, Sir Alan described “appalling and horrifying” cases of “emotional and physical neglect and abuse” in a time where it seemed “sexual abuse of children was rife”, he clearly highlights the benefit of the state’s continued involvement.

Perhaps the most apt and complex question to ask Sir Alan in light of his career would be what he considered to be the relationship between law and morality. His refreshingly clear answer strikes at the heart of a long debated issue.

“One hopes that the law will arrive at a result which is consistent with the general feeling of right and wrong. In other words that is the morally correct outcome, but law has to prevail over morals. We sit in a court of law, and not a court of morals.”