On 4 September, Lord Neuberger formally retires from his role as president of the Supreme Court. Jess Harrold met with him to discuss his career, the importance of the judiciary, and what comes next for a tireless hard worker.
Imagine, if you will, a young David Neuberger, studying chemistry at Christ Church, Oxford. What if someone had told that science student that, one day, he would lead the highest court in the land?
“I think he would have suggested that you seek psychiatric treatment,” the now Lord Neuberger laughs. “He would have been astounded – he never considered a career in the law and knew very little about it.”
Such legal naivety must be very hard to picture for anyone who has ever appeared against him, or before him, in his remarkable career at the Bar and on the bench.
Memories of the Bar
When he did ultimately find his way to law, he developed an expertise in landlord and tenant, an area that offered him a “wonderful mixture” of statutory interpretation, common law, ancient land law, fact and expert evidence, as well as a healthy balance of court work, conference work and written work. Though he did not realise it at the time – he confesses he was “rather jealous” of his friends in grander chambers who earned bigger fees – he is grateful that his specialism enabled him to do court work on his own, without being led, from the beginning.
Asked for any particularly fond memories of his time in practice, he says: “I think my first outing in the Court of Appeal was in front of Lord Justice Megaw, who was a very large red-faced Irishman who played rugby for Ireland and was very choleric – very easily angered. I remember going back to Chambers in the afternoon wondering if I was actually going to have the guts to turn up the next morning, and saying to my colleagues I really didn’t think I was a strong enough character to make it at the Bar.
“But standing up to him, and learning just to do one’s best and not give up, was very good training.”
His first outing in the House of Lords also taught him a valuable lesson.
“I was against a QC and I was still a junior barrister,” he said. “My opponent got a really bad time and I was treated with great respect and encouraged, and my opponent – it was Gavin Lightman, who later became a High Court judge – said to me, ‘Well, I’ve never been treated like this by the House of Lords before. You must
buy me lunch, you’ve obviously won’. So I bought him lunch, and six weeks later we got the result – he won 5-0.”
The Supreme Court
There will be no shortage of people offering to buy Lord Neuberger lunch now he has reached the end of his enormously successful career as a judge.
Having first been appointed to the High Court in 1996, he swiftly ascended the ranks, joining the Court of Appeal in 2004 and the House of Lords in 2007, before becoming Master of the Rolls in 2009, just as the Supreme Court was created. He became its president in 2012, and in the years since he has given judgment in a number of major property cases.
But one thing he has sought to achieve, both in himself and his fellow Justices, is more concise and clear written decisions. “It is very unfortunate if, reading a judgment, you lose the will to live,” he says. “It’s even more unfortunate when you realise it’s one of your judgments you’re reading.”
He has also discouraged the once-common practice of multiple speeches in the same decision, to avoid the risk of differently worded opinions inadvertently producing conflicting results in future cases when different facts arise.
He also cites the avoidance of more time and money being wasted as a powerful argument in favour of shorter, clearer judgments. The overall expense of litigation is something that concerns him greatly, and he fears that attempts by many people, including himself, to address the problem have been unsuccessful and “actually comply with the law of unintended consequences and do just the opposite”.
He adds: “The fundamental problem is that we want the best people to become lawyers, and the best people want to be paid well. That’s the first problem, our lawyers cost a lot. Secondly, a litigation system involving things like disclosure and cross-examination and oral submissions is inevitably expensive. I think when it comes to smaller cases we have to be pretty brutal and be prepared to accept that it’s better to have cheap and dirty justice rather than no justice. I think that’s what we should be looking at.”
Another worry, one that came firmly into focus during last year’s high-profile Brexit appeal – R (on the application of Miller & Dos Santos) v Secretary of State for Exiting the European Union [2017] UKSC 5 – is the widespread misunderstanding of the judicial role among the public and the media.
“It’s always been surprising how little education people receive at school as to the basis on which this country is organised and run constitutionally and practically,” he says. “Having some understanding of how the system works and how rights develop and so on would seem to be essential, and yet people don’t seem to get any sort of education about that. At the risk of sounding preachy, I think they should.”
Judicial diversity
Another issue Lord Neuberger has been passionate about is increasing the diversity of our judiciary – not just in respect of gender and race, but also professional and social economic background. There has been real progress in terms of gender, he says, but there is still a long way to go.
“So long as we recruit from the legal profession there is a serious problem in that the proportion of women QCs is 13%, the proportion of women that are partners in major law firms is about the same, and that’s where we largely look to recruit High Court judges. So the fact that the High Court has got to 20% can be said to be something of an achievement. Of course, to call it an achievement when it should be 50% is pretty pathetic.”
With ethnic minorities, he says that the tribunal judiciary is performing well, but “the further up you go the worse it gets”. He adds: “It is pretty bad in the High Court, Court of Appeal and the Supreme Court – in fact, hopeless here. It’s the same sort of problem, but I think we are doing worse there than in relation to women in the senior judiciary.”
But when it comes to people from poorer backgrounds, he admits this is a very difficult thing to deal with because “the die is largely cast” long before the age that anyone considers a judicial career, because they often don’t have the educational qualifications even to get into the legal profession in the first place.
“It’s very difficult for us in the judiciary to do anything about it,” he says. “But we should be going out there encouraging people to apply from that sort of background.”
As for the current make-up of the Supreme Court, he believes that property law will be in very safe hands, citing the newly-appointed Lord Justice Briggs, soon to be Lord Briggs, as someone who will be an “expert in the field”, and praising the also-promoted Lady Justice Black for her “remarkable ability” handling such cases.
He also has huge faith in his successor, Lady Hale, to lead the court with distinction. “I was a strong supporter of her appointment and I am delighted she has been appointed,” he says.
“She’s got great humanity, great intelligence, a good sense of humour and it’s terrific that we have a woman as top judge in the UK.”
What next?
Lord Neuberger will turn 70 in January, but has elected to step down from his role as president of the Supreme Court now, at the start of a new legal year, rather than in the middle of one. But, for someone who Lady Hale recently referred to as “action man Neuberger”, it is little surprise to hear that, in his case, retirement isn’t retirement.
“My worry is that I won’t have enough to do,” he says. “My wife Angela is worried that I’ll have too much to do.” As things stand, he is planning the next stage of his life to involve three components.
“The first is something in the House of Lords. Because I became a Law Lord, I am a peer, I can go back to the House of Lords. I hope I
have something to contribute there, we’ll have to wait and see,” he says.
“The second is that, as we discussed, I was a scientist. I had the extraordinary compliment of being elected an honorary fellow of the Royal Society a couple of months ago which, in some ways, other than my judicial career, has been my proudest achievement. I would very much like to contribute to the role of science in society, particularly in the law.
“And the third component is that, like a lot of ex-senior judges, I currently intend to become an arbitrator, if I get appointments.
“Those are three strands of what I hope to do – I can see that my wife may turn out to be right, and I may turn out to be very busy.”
Whatever the future holds for Lord Neuberger, one can be fairly certain that will indeed be the case.
Portrait by Louise Haywood-Schiefer
“A startlingly clever companion”
Guy Fetherstonhaugh QC looks back on Lord Neuberger’s immense contribution to property law at the Bar
The commencement of David’s career at the Bar was quite unremarkable. This future president of the Supreme Court was turned down for a permanent seat in chambers by two other sets before that talent-spotter extraordinaire, the great Ronald Bernstein QC (who would also hire the future Lewison LJ and Morgan J) detected David’s star quality, and took him in to what would eventually be named Falcon Chambers.
Those who remember being led by David at the Bar recall a startlingly clever companion, but one whose behaviour as a leader in court was less than reassuring. In even the most complex case, David would take no notes while his opponent spoke, spending his time instead either listing all US states and their capitals, solving chemical equations, or knocking over his glass of water. But he would then make a closing speech of surpassing brilliance.
While his attention to detail at first instance might have seemed less than complete, it was in his performance as an appellate advocate that he excelled. Some of us still smart at the memory of defeat by David in cases that had seemed unlosable.
It is invidious to single out facets to this formidably talented lawyer – but one deserves particular mention. David has an uncanny ability to see many solutions to a problem. As he would famously say, “On the one hand…”, or “I suppose it could be said…”, anticipating his later judgments where counsel’s arguments were summarised in eight paragraphs, before David would add ten more of his own.
We laugh when we remember one opinion David wrote, which started: “The prospects of success in this case are reasonably good, but nevertheless moderately speculative.” The apparent vacillation was nothing of the kind, but resulted from a vision that allowed him to see all sides of an argument.
We who remained behind in chambers when David went to the bench used to call the half-solved work that he had left behind “Neuberger specials”, recognising that we were going to struggle to deliver the same magic to his ex-clients.
But we rued his leaving chambers for rather greater reason: the loss of an exceptionally warm, kind, charming and funny man.
To send feedback, e-mail jess.harrold@egi.co.uk or tweet @jessharrold or @estatesgazette
