Great expectations – Neuberger speaks

Lauded as the outstanding jurist of his generation, Lord Neuberger carried huge weight of expectation on assuming the leadership of the Supreme Court. Eighteen months in, Legal Business caught up with the UK’s most high-profile judge

Given that the Bar has remained in mourning for the golden generation of the Bingham-era House of Lords, viewed by many advocates and academics as the UK’s finest post-War judicial line-up, Lord David Neuberger had a lot to live up to.

Not only was Neuberger to lead a court missing figures like Bingham and Hoffmann, in following Lord Phillips as the second president of the new Supreme Court, the veteran judge was being looked upon to build bridges, albeit for somewhat contradictory reasons. Three years after its 2009 launch in place of the anachronistic position as a committee of the House of Lords, the Supreme Court had been widely viewed as a success in constitutional and presentational terms. This open approach included rapidly-assembled press briefings on judgments, a slick website, streaming of hearings on Sky and YouTube, and even a popular Twitter feed, currently with around 80,000 followers.

While this tourist-friendly approach can attract the occasional gripe (one silk bemoans the gift shop selling t-shirts and Supreme Court teddy bears), this style is viewed as having been instrumental in raising its profile and building a distinct identity.

With complaints over its £57.6m start-up costs fading, the court had also been lauded for its progressive approach under Phillips and then deputy head Lord Hope. Also notable has been an assured handling in charged policy areas in an era in which the combination of the Human Rights Acts, a series of security and immigration challenges, and the continued expansion of judicial review have often pushed the court into contentious areas.

Given the initial outcry over lack of consultation when the then Labour government in 2003 announced plans for the court’s launch – the original Lords bench was split right down the middle in the pro and anti-camp – gaining this level of support has been a considerable achievement.

And yet the perception among many senior advocates was that Neuberger had much to do. Under Phillips, relations with the Bar were seen to have become distant, a gulf re-enforced by the court’s physical separation from the Inns and the Royal Courts of Justice (RCJ) and the long-term drive to increase written submissions in appellate work, while dramatically cutting the length of oral hearings.

Sustained scrutiny has also been focused on the workings of the court, in part thanks to its higher profile, but also because, freed from the constraints of the House of Lords’ impenetrable procedures, it was easier to gauge how the court worked and when individual justices disagreed.

Occasional disagreements have been taken by some observers as evidence of tension on the bench, as has the forthright language of Lady Hale, still the court’s only female judge. Despite his huge reputation in the commercial bar, resentment lingers in some quarters regarding the direct appointment of Lord Sumption, and the manner in which the appointment was delayed by Sumption’s commitment in the high-profile court battle between Roman Abramovich and Boris Berezovsky.

Also sensitive is the delicate balance the new court has sought to strike in moving towards team-working, a defining shift from the Bingham-era. It is notable that the main interest of the much-discussed book by academic Alan Paterson, Final Judgment, focuses on his examination of how the court has evolved towards collective judgments while striving to avoid the twin dangers of the approach: that strong-minded judges could press-gang colleagues to follow their position or that judgments could end up as messy compromises to which logic is hard to apply.

As Paterson notes in his conclusion: ‘The myth of judicial fungibility which sustains the arid judgment style of the European Court of Justice is not a feature that has hitherto attracted many supporters in the United Kingdom. Single judgments representing the outcome of the internal debates within the Supreme Court that are not publicly rehearsed, remove the humanity of individual difference and potentially undermine transparency.’

Paterson also argues that the Supreme Court has a ‘problematic dialogue’ with Parliament, reflecting weakening links between the two institutions, despite a ‘softly, softly’ approach to creative, interpretative judging. While praising the record of the new court, and Neuberger’s early efforts in leading it, he concludes that even more transparency may be required to retain its legitimacy.

The court has also had to manage a period in the last six years when many of its most highly regarded judges have retired, while the lowering of the retirement age from 75 to 70 has led to fears that the court will be deprived of some jurists at the height of their powers.

In managing such deft balancing acts, Neuberger was regarded as singularly well-placed as one of the most intellectually gifted judges of his generation, with no serious rival for the role. As important is his strong operational experience as the former Master of the Rolls and his clubbable style.

Despite in 2003 famously being quoted as saying the Supreme Court’s launch ‘appears to have been a last-minute decision over a glass of whisky’, hopes were high that Neuberger could build the court’s identity, and bridge the inevitable gap between his own liberal approach and the bench’s more conservative figures.

For once, raised expectations do not appear to have been dashed, with a selection of senior barristers and litigators warmly backing the court’s growing role and Neuberger’s personal contribution.

Legal Business interviewed Neuberger to discuss his approach to judging, his aspirations for the court and his formative influences.

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It’s fair to say you were initially unpersuaded of the case for the Supreme Court. What made you reconsider?

I got slightly one-sided coverage. Joshua Rozenberg did a very good piece about the Supreme Court and interviewed a number of Law Lords. All the rest toed the party line – I expressed advantages and disadvantages. Because it was good copy and because I talked about the disadvantages – that’s what was quoted. I was pretty equivocal about it, but it’s been an unqualified success.

The risk is the voices of judges are no longer heard in the House of Lords where they can provide an important influence. For the moment, it’s not a big problem because there’s a number of Supreme Court judges who do their bit. So long as that can in some way be perpetuated, I think that particular risk can be avoided, but that was the principal disadvantage. I don’t think we’ve become too isolated or too big for our boots. Those were my two concerns.

Eighteen months into the role, how has it gone?

My impression is well. It’s not as if I took over an organisation with a lot of problems. There have been a number of things done while I’ve been president, but they were almost all in train before, about bringing everything in-house under our control. More importantly, people have become more aware of the Supreme Court. The Supreme Court is what it says on the tin – nobody knew what the Law Lords meant, even a number of lawyers. We do have an enormous number of people coming through, seeing us at work, taking part in moots, receptions for lawyers and academics, and a lot of school children and students. We’re a lot more visible, a lot more approachable. That is a great change and an enormous improvement.

How is the job compared to Master of the Rolls?

It’s a bit less frenetic and more strategic. There were a lot of administrative things to do and civil justice to run. This doesn’t involve so many things. On the other hand, it is a more visible job and every judgment for which this court is responsible is going to be important, not just to the parties, but to a sector or to society. Master of the Rolls was a lovely name, but nobody knew what it meant. President of the Supreme Court – you know what that means.

What do you want to achieve during your term?

To carry on where my predecessor Nick Phillips left off – maintaining the status, visibility and understanding of the court and justice system. I was anxious to ensure our judgments were as clear as we could make them. There’s always a problem when you have a number of different judges on a case. You could do what the Luxembourg court does and say there can only be one judgment and you all agree on it, but sometimes the result is almost an abortion because nobody agrees and you have to come up with some mangled compromise, which is internally contradictory.
Here the danger is you get a number of judgments that all come to the same conclusion, but for slightly different reasons. Then a) when lawyers are advising clients, they don’t quite know what the reasoning is; and b) there’s plenty of room for argument about who really meant what. I was anxious therefore to reduce the number of concurring judgments, ie judgments saying the same thing, because of the risk of internal contradiction. However, I have no right to tell a judge here that they can’t write a judgment and anyway, there are cases where we are taking the law forward in a particular area and it’s positively useful to have more than one judgment. There’s room for argument and the law develops. But when you give a judgment telling High Court or Circuit Court judges how they should be dealing with a certain issue or problem, it’s positively unhelpful to have more than one judgment because they need clarity. Similarly, if you’re saying what a statute means – it’s normally helpful just to have one judgment.

This requires a degree of self-denial on the part of some of my colleagues and myself, even if we want to write, and sometimes sacrificing your own public image by getting involved in a judgment someone else is going to give. What I’ve also tried to encourage on that score is sometimes to have two judges keen to write together on a joint judgment.

The other thing is, for me, looking at it selfishly, that the president should write as many judgments as anyone else. If I’m trying to reduce the number of judgments overall, I have to lead by example. If I suddenly say I’m going to write all the important judgments, I’d probably have a nervous breakdown and my colleagues would hate me because they’d end up doing only the boring judgments.

There’s been a lot of debate as to how the Supreme Court, compared to the House of Lords, has moved towards team working. Would you say that’s just presentational or reflects the underlying reality?

That’s a very interesting point. There is more team working. If you’re writing a judgment and just writing what you think you want to write, you do it in your own time. If it’s team work, you have to talk to people and be available for meetings. It’s a different dynamic and experience. In one or two cases, particularly recently where we had a number of cases where we still haven’t given judgment, there is quite a lot of exchanging of drafts. In one or two cases, people are on their seventh draft. There is give and take between judges.

Do you feel that process should keep running or has it reached an equilibrium?

I’m very keen on maintaining it. You can take it too far and that would be self-defeating. Judges would start to react against it. It produces better judgments in the end, I hope. The British view has tended to be that a court of five judges is five separate judges, whereas the continental image is that it is a single court, which happens to have more than one judge. We should work a bit more towards the European way at being collaborative. But I’m very anxious that each of us maintains his or her own character and style. It would be a shame to do what European courts do and have a house style. I don’t think I could achieve it if I wanted to and I don’t want to.

Did you have any view on the court’s image or where it sits?

Probably one of the problems of people’s perception of separation of powers is that there should be no communication between the different arms of government. Actually, understanding what we do and how we work is very important for Parliament and the civil service. One has to be careful to maintain one’s distance, but just understanding and talking about common problems is worth it. I’ve profited from that and learnt a lot.

Sometimes you hear grumblings from the Bar that the Supreme Court is viewed as geographically separate from legal London. Does that concern you?

Socially, I miss life in the RCJ and the Inns. I have friends there and I like the life there. But this is not the English and Welsh Supreme Court – it’s the UK Supreme Court. If we got too close to the RCJ and the Inns physically and psychologically, it would be understandably resented and justifiably so by the Scots and Northern Irish. Indeed, even for parts of England and Wales, detaching ourselves from the RCJ is a message that we are not as London-centric. I would love to go and sit in Belfast, Cardiff and Edinburgh and sit there on a Northern Irish, Scottish or Welsh case. In due course we might do that if it’s acceptable to the judiciary and governments of Northern Ireland, Scotland and Wales.

A number of claims in the early years of the Supreme Court suggested there was discord over judgments. Did you need to make it more collegiate?

There were one or two cases where the divergence of views was expressed rather sharply. But the degree of dissension which it showed was grossly exaggerated. We’re all conscious that we can disagree, but we should do so respectfully. I wasn’t here when the cases were going on, but everyone tells me the relations between the judges concerned were perfectly happy and satisfactory. I believe in one case two [judges] who were supposed to have fallen out were actually writing a judgment on another case. In terms of our image and presentation, we shouldn’t be rude about each other.

How do you see the relationship with the Supreme Court to the Lord Chief Justice (LCJ) – the president is a more prominent role? In some ways it’s an evolving or a complicated dynamic… how do you manage that?

In theory it can be complicated, in practice I had and have a very good relationship with Igor Judge and with John Thomas. Like anything there are systematic aspects of the relationship and personal ones. Like all relationships, if the personal is good, the systematic doesn’t get to be a problem. The senior Law Lord was a very shadowy figure. Most people didn’t know what it was – although, it’s fair to say that most don’t know who I am, but they do know what I am. I’m anxious that while it’s seen to be important it doesn’t over-shadow the LCJ. So far, there’s been no real problem. If either of us is concerned that he might be stepping into the other’s area, we have the good sense to get in touch.

It’s quite a complicated system isn’t it?

It is a bit complicated. In the US, Canada and Australia where they have the state system and the federal system, the federal isn’t just the tiny layer of icing at the top of the cake, they’ve got federal trial judges, federal courts of appeal and a federal Supreme Court. Here you’ve just got a ‘federal’ Supreme Court – it is a bit unusual. As for the courts – they’re all the responsibility of the Lord Chief Justices of each of the jurisdictions. The chairman of the Judicial Appointments Commission, Chris Stevens, said to me the LCJ has an army and I have a cricket team. That’s true.

It’s fair to say the Supreme Court has a bigger role in policy compared to the House of Lords. Do you see that continuing to evolve?

A lot depends on politics. If Scotland votes yes [to independence] will the Supreme Court get involved in the constitutional implications? If the relationship with Europe changes, will the Supreme Court get involved? The truth is, we haven’t got a proper constitution. In practice [the role of the court in interpreting the European Convention on Human Rights (ECHR)] has turned us into a quasi-constitutional court and therefore, it has got us more closely involved with public policy. It’s introduced an enormous breath of fresh air into our approach, not merely to issues that are concerned with human rights: our whole outlook to the law is much more principled and we are ready to approach questions afresh. I don’t think there are many people who have a problem with the existence of human rights. The problem arises in relation to the European dimension – Strasbourg.

How do you see the relationship the Supreme Court has with the executive and Parliament? Has it evolved?

As we’ve become more involved in questions of policy – largely because of the ECHR, also because of the growth happening anyway in judicial review – it’s more important we maintain relations so we understand each other. So far – and I don’t think by any means the Supreme Court deserves all the credit – there has not been a breakdown in understanding. We’ve always had ministers, particularly new home secretaries, making the odd inappropriate remark about the judges in individual cases, but that happened before the human rights convention and frankly it’s only happened rarely. The media often deserve respect for that too. Inevitably there have been cases where they haven’t been so respectful, but, to some extent anyway, you don’t want too much respect.

You think the Supreme Court has avoided a rise in tension that could have easily happened?

I think we have. People who don’t like the way the law has gone in human rights in certain areas have largely not attacked British judges. The attacks have been more on a particular statute or the role of Strasbourg. I hope that’s because we’ve explained our thinking and even when people disagreed with our results, they’ve respected them. Communication is very important. Every judgment we produce is summarised in a note for the public and the media. It’s completely unreasonable to expect a journalist to plough through 300 pages of judgment. That was one of the great improvements and achievements of this court. Small thing on the face of it, but significant.

If Scotland does vote for independence, logistically what do you do?

We wouldn’t go on having Scottish judges, but the two we have, Lord Reed and Lord Hodge, I would very strongly fight to keep until they see their term out, unless they want to go back to Scotland. First of all, they’re both first-class and would be perfectly capable of deciding only English, Welsh and Northern Irish cases, and would have the full confidence of the legal profession behind them. Secondly, it would be outrageously unfair to make them give up their jobs here when they’ve already interrupted their private lives and dug up their roots. After they retire, there wouldn’t really be a reason to have a Scottish Justice unless Scotland was to decide to maintain its link to the Supreme Court, which would be a political decision. If that didn’t happen, I can’t see how we could have Scottish judges after that.

Is there ever a case for a Welsh jurist?

I can well understand why the Welsh government and first minister feel there should be a Welsh judge. We have a Northern Irish judge and Northern Ireland is smaller than Wales. Traditionally, we have not merely one but two Scottish judges. The argument for a Welsh judge has to be based on the need for a specialist about Welsh law. At the moment, there is an insufficient body of [Welsh law]. The point will come where there is a strong argument for it. At the moment, that’s quite easy to achieve because the LCJ is Welsh. It’s a good occasion for him to come and sit in the Supreme Court.

You’ve given a few speeches on legal aid. Do you see any risk to the UK’s position on the rule of law and are there any steps that can be taken to mitigate that?

In general terms, any cuts in legal aid worry me. The professionals who read your magazine tend to do very well and are important for the economy. And people in the commercial field should do well if the country is doing well. But there’s the great majority [of lawyers] who serve the rule of law in this country and the gap between the two groups of lawyers is getting wider. You can’t ask the government to sign a blank cheque – there are difficulties. But I do think that the publicly-funded legal profession is, generally speaking, not at all well paid. In the long run, if there are other jobs that bright people can do, which are better paid and where they feel more appreciated, the danger is you’ll stop attracting good people. You’ll undermine the rule of law. That’s my worry.

Would you say in terms of the calibre of people going into publicly funded work at the criminal Bar that there’s a danger of market failure where there simply isn’t supply?

It could happen. Obviously if you keep cutting the pay of good lawyers, there won’t be any. At that point, either the government will have to recognise what’s happened and up the pay, which will be a problem – a dislocation in the system because you’d have to get lawyers in and a fresh impetus that this is a profession worth going into. Or we’ll morph into a public defender-public prosecutor system, which personally I and many other people would regret. I worry we are sleepwalking towards that. I can only say mum ‘n’ apple pie things, like I hope they can sort it out.

You have referred in a speech to learning from eBay and also in an interview put forward the case for ‘quick and dirty justice’. Do you regret that wording?

No. Quick and dirty is an unfortunate expression, but anyone in the commercial world knows what you mean by a quick and dirty opinion. It seems self-evident if you and I have a quarrel over £10,000, if the whole case is going to cost £100,000 to fight, then something has gone seriously wrong. It’s better to have less than perfect justice than [an issue] being unresolvable and forcing the parties to do nothing. There’s a great dislike of this in the profession because they have got used to relatively high fees – I don’t see anything wrong with that in itself. [But] I do think that if you made litigation much cheaper, a lot more people would be prepared to litigate. Your profit per case would go down, but the number of cases you did would go up. Maybe that’s idealistic and it’s not for me to tell lawyers what business models to use. In Germany, for instance, there’s much more litigation but it’s much cheaper.

It opens up a new kind of market…

It does. It’s easy to sit here and say in some sort of grand way, this is what should happen. But for lawyers on the ground to alter their practices and to change their attitudes, it’s much more difficult and the thought that overnight if you reduce your fees substantially that people will flock to your gate to litigate, I accept, is fanciful. To some extent it’s an article of faith. But I do think it’s not so much that, but simply the rule of law. You can give people all the rights you want in the world, but if they can’t enforce them because it’s too expensive to do so, then it’s absurd to say you’ve given them those rights.

Has the profession become overly dependent on high remuneration?

Certainly when you look at what some lawyers charge, it looks like a lot of money. But look at alternative careers and what bankers and accountants earn. Commercial lawyers… although they have a public function to support the rule of law, which bankers and accountants haven’t, they still are in the commercial world. I’m not really concerned if someone charges an enormous sum to advise a multinational or a Russian oligarch. They can look after themselves. What I’m concerned about is the ordinary man and woman in the street. It may however be said that what commercial lawyers charge their big clients is rather like very expensive house prices in London – it filters down the system.

Do you see the Supreme Court having a role in promoting London as a global dispute hub? The High Court and Court of Appeal have been pretty proactive in that regard. Do you see the Supreme Court taking more of a role?

If you’d asked judges 20 years ago whether they should have anything to do with promoting London as a commercial legal centre, they would have said it was completely inappropriate. There’s rightly been a sea change in attitudes. We are part of the UK Government in the broad sense and part of the top of the judicial system. It is part of our function, within limits, to promote it. The very fact we are so open and available, the fact that we do commercial cases, the fact indeed that we do Privy Council cases – which is often overlooked – are highly relevant matters. Supporting the, dare I say, UK plc offer is something we should be doing and are doing.

What would you say is your strongest personal quality for this job and what’s your approach to judging?

I try to… this sounds awful… I try to make everyone feel valued and happy whether they are judges or members of staff. I try to lead by example. I don’t want to sound pious, but I try. Leading by example is dealing with things promptly and fairly, not writing judgments when I shouldn’t and writing good judgments when I do. Also I have to chivvy people along when they’re slower than they should be. Sometimes I have to say to people it’s not wise for them to do what they’ve done or are about to do, but basically with 12 of us in one building and a relatively small number of staff, ensuring as far as you can that people are happy and feel valued is very important.

Which career achievement are you most proud of?

I still wake up in the morning surprised I’m in this job. It doesn’t seem very long ago I was starting out at the Bar and wondering whether I was going to have to give up because I wasn’t very good.I do wonder, will I wake up and find out it’s a self-important dream. There are one or two judgments I’m quite pleased about. There was one in the Court of Appeal I gave on using evidence obtained by torture, which I said you couldn’t. My colleagues said you could. The House of Lords agreed with me.

Although their grounds were slightly different from mine (nobody has picked that up) I was pleased because I was disagreeing with two colleagues who were senior to me and I really respected. I was a little unsure of myself and it got quite a lot of coverage. There was a judgment I did at first instance where a company had bought 20 acres of land and a farmer continued to occupy the land. He died, but his widow stayed in occupation. The issue was whether she’d acquired squatters’ rights. With great regret, I came to the conclusion that she was right to obtain those rights. One of my old friends in chambers said to me: ‘Only you could express regret at finding in favour of a widow over a property company.’ The Court of Appeal said I’d got the law completely wrong and reversed me. Then it came to the Lords, which said I’d got it right. That’s the sort of case any judge remembers – when you’ve been comprehensively reversed by the Court of Appeal and reinstated by the Lords.

What’s been the most interesting or challenging case you’ve handled in the Supreme Court?

One of the most challenging cases is one that we’re still doing and haven’t yet given judgment on, which is the assisted dying case – Tony Nicklinson. It does raise an issue about where the courts should be stepping in and where we should be leaving it to Parliament.

A case I particularly enjoyed writing is a judgment I gave on the law of nuisance. It raised various interesting points – sometimes you’ll find you really enjoy writing a judgment and sometimes you’ll find it really difficult. Sometimes it’s difficult because you’re writing a judgment to reach the conclusion you want to reach, but it’s wrong and it’s difficult to find reasons to write a wrong conclusion.

Who are the judges you admired when you were cutting your teeth at the Bar?

Lord Bingham, Lord Hoffmann, Lord Nicholls… they were three I admired very much. Lord Denning was a very interesting judge who was immensely innovative…

…and increasingly controversial…

Absolutely right. Early Denning was more impressive than late Denning. Lord Diplock was a very impressive judge, but sometimes too opinionated. There was one case early on in my career where he gave a judgment called United Scientific Holdings and it was a seminal judgment on the law relating to time limit. It doesn’t sound very exciting, but it’s important because a lot of contracts have time limits. It was a masterly analysis of the law of equity and common law, and how they fused. About four years later I read a very good book written by two senior Australian judges and they described Lord Diplock’s speech in that case as the low point of English post-war jurisprudence. So you never quite know with judgments – you think you’ve written a wonderful judgment and you even think you’ve read a wonderful judgment. Then later on you discover that it can have feet of clay. Lord Bingham was a great reader and supporter of Dr Johnson and he used to quote a wonderful remark from him, which goes something like: ‘Whenever you’ve written a sentence you’re particularly proud of, delete it.’ There’s a lot to be said in that. I look back at my judgments and look at the odd sentence and think: ‘I shouldn’t have said that.’

What ambitions have you got left?

It sounds rather complacent, but I’d like things to go the way they’re going. I know in politics… events, dear boy, events… things can happen that will expectantly blow us off course and cause us to rethink things we thought were fine. I have to ensure my colleagues are content and are all working together in a constructive way, and keeping in touch with what they should be in touch with. Our relations externally with the other arms of government should be maintained on an even keel. Our perception in the public eye with the media particularly should be favourable. But if we are praised for everything we do by the press, we’re doing something wrong. We have to do unpopular things. To give the politicians their due, most of them recognise this as part of our function. So long as we maintain that balance and respect, and we respect them, things should carry on pretty well. LB

sarah.downey@legalease.co.uk; alex.novarese@legalease.co.uk