Interview with Lord Toulson
28 Thursday Jul 2016
Lord Toulson has been a justice of the Supreme Court since April 2013, and will be retiring at the end of this week. He met with Dan Tench and Lucy Hayes from the UKSC Blog Editorial Team to look back on his time on the bench and consider how the law has changed during his career.
Inevitably, the result of the EU referendum was discussed, although Lord Toulson emphasised that any challenges following the result are (at least initially) for the politicians to determine. It is not for the judiciary “to dictate or even suggest” how the process of exiting the EU should be undertaken. He noted that there is “one possible major exception, that there could be some sort of constitutional challenge of a devolutionary kind. I have seen in the press the rival arguments about whether the consent of the Scottish parliament is or isn’t required; I haven’t examined the legislation and nor have I studied the arguments, but it is possible that there might be some sort of constitutional challenge mounted”.
On the wider implications of Brexit, Lord Toulson takes a long view: “Long before we joined the common market we were party to all sorts of international conventions.” In the future, “I think you will find a similar situation as between the UK and other EU countries as you currently have between the UK and non-EU countries”.
He takes a similar view on the proposed repeal of the Human Rights Act 1998 in favour of an as-yet-undefined British Bill of Rights: “I suspect that the issues with which the courts will be grappling under whatever form of bill of rights you have will, at a deep level, be very similar”. On a wider view, “When it comes to the area of social activities, and government decisions on who can come into the country, what criteria should be demanded of people who come in […] I remind myself that all human life is experimental, all forms of government are experimental. I think it would be a retrograde step if the courts, in the name of rights, prevented governments of whichever hue from engaging in legitimate social experimentation.”
It has been noted by some commentators that both the European Court of Justice and European Court of Human Rights readily take an interventionist approach in areas where domestic courts might decline to intervene. Lord Toulson commented, “All domestic courts are, to a degree, creatures of their own time, in their own society. In a sense, it would be remarkable if they weren’t.” They are susceptible to influence, “which is not being susceptible to the influence of the minister who rings them up and says ‘I want you to do this’, or even ‘I am frightened the press is going to say that'”, which would of course be objectionable – “it’s a much more subtle sense of perceiving our role in relation to our society. I think you can perfectly validly make the point that an international court doesn’t have the same restraint, partly because it’s not represented in one society. Across a continent stretching from Cork to Vladivostok you’ve got all sorts of [societies] and you could say that [international] court tends to be a political court in a rather different sense; that if it finds that a particular practice is prevalent among several member states, it is unlikely to say that it is unacceptable, but […] the pressures work differently.”
It comes back, essentially, to the rule of law: “Inevitably, all courts have to have some ultimate ability to be controlled by the public at large – whether you have adopted a parliamentary democracy as we have, or whether you have a US-type constitution, where the Supreme Court can declare an act void but the Constitution can be changed by the states. Ultimately, you could say that power does not rest with the courts, so there is a check and a balance there.”
Under the Human Rights Act 1998, Lord Toulson noted that there are cases where “law and politics butt up against each other and that may give rise to a question [of] how far ought the court to intervene in this area or how far ought the court to say, actually, we are not the most appropriate forum for dealing with this, it is a matter which should be left to the politicians.”
When it comes to pure common law, he is “much more willing” to say that the court should step in. In Jogee  UKSC 8, it was argued that it should be left to Parliament to correct the common law, to which “we said very firmly, no; if the common law has gone wrong it’s the courts that have got it wrong, and the courts that should put it right”. He described Jogee as the most memorable case of his tenure, as it corrected “a wrong turn which caused really serious problems in the whole field of murder and joint enterprise for 30 years”.
However, it can sometimes be difficult to determine where the remit of the courts ends: “This is, I think, what divided the different courts in Nicklinson  UKSC 38, where I gave the leading judgment in the Divisional Court. I felt very firmly that this was not a matter for the judges to deal with, for a whole variety of reasons that I spelt out in my judgment”. When the case came to the Supreme Court (which in fact happened shortly after Lord Toulson was appointed), “four of the nine judges here took the same view, five took a different view”.
Lord Toulson served as Chairman of the Law Commission from 2002 to 2006, and this has shaped his view of how the law can and should develop: “When I was looking at assisted dying, I was conscious inevitably of how I would have looked at that when I was Law Commissioner.” With a much wider remit than that of a court, “[the Law Commission] would have consulted with gerontologists, with palliative care consultants, with medics of all kinds”, along with “affected groups [and] groups that represent people with disabilities”. They would also have looked at other countries which have adopted one form or another of assisted dying laws. After collating all this information, “we would then have formed provisional views and we would have gone out public consultation”. To find himself, instead, “sitting in the divisional court, one of three judges”, he asked himself, “have I got the institutional competence to say I’ve got the answer on this? […] I felt very much that this was a matter which ought to be left to Parliament for those reasons. I didn’t feel that we had the ability to grasp all those issues wisely. But there is a completely different view point, which I respect, which is that this boils down to a short point of law, and that’s the role of judges.”
Lord Toulson believes that the Law Commission can play a greater role in helping the development of the common law, and would be keen to see greater engagement between the Law Commission and the Supreme Court, particularly as “Parliament has no interest in reforming the common law. […] A panoramic view by the Law Commission, involving consultation, can perhaps embolden [judges] to take a more confident view than [they] might without the benefit of that kind of research”. This is relevant to the judgment in Patel v Mirza  UKSC 42 (which had not been released at the date of our interview) relating to illegality: “The whole issue of how the Courts approach illegality as a defence to claims in contract and tort has been, to a degree, shaped by the Law Commission’s work on that area of law. [We’re] talking about 14 years of grappling with it because it was such a difficult area.”
In correcting the lower courts on matters of law, the Supreme Court will intervene quite readily, but the Supreme Court is “very reluctant” to overturn decisions on questions of fact: “The whole flavour of a case can be rather different when you have tried it […] compared with simply reading bits from a transcript. We all know that really, the reasons which the judge endeavours to give in his judgment, although they may be the core reasons, can never fully reflect the whole of it. I think there are very sound reasons for saying that a high measure of respect should be paid to the facts as found by the trial judge.” He did, however, comment that he was, “never very impressed by the argument that the trial judges have the benefit of seeing the demeanour of the witness, because I think that’s a profoundly bad way of reaching a judgment. Years of doing my particular area of law led me to believe that some of my clients who I thought were absolutely the most honest were the most awkward and shifty in the witness box, whereas others who I thought were total rogues came across with great smoothness and self-assurance.” Between issues of fact and law, there is “a grey area, what is sometimes inaptly called ‘judge’s discretion’, and that’s where I think it’s difficult to say how far you should go”.
It is a fact of life for judges at whichever level that their rulings may not always be represented as accurately as they would like in the press. When asked about the reporting on high profile cases such as Nicklinson and Jogee, Lord Toulson commented, “I think we just have to live with the fact that some sections of the media will report things the way they want to report them, but an awful lot of the media does try to get things right.” He noted that having the Supreme Court communications team was a huge help to clarify for the press, who need to report on weighty judgments at short notice, “what cases have decided and, more particularly, what they haven’t decided”, noting wryly that this can include “practical examples, [such as] whether it will mean that killers are being released tomorrow”.
Over the course of his career Lord Toulson has seen several giants of the legal profession as mentors. Ralph Gibson, once the head of Lord Toulson’s chambers and a former chairman of the Law Commission, “had a huge level of self-discipline”, and Lord Toulson learnt “an enormous amount” from the way in which he prepared the presentation of his cases. He described Lord Bingham as another mentor, an “absolutely masterly” judge, though he recalled from his days as a barrister that appearing before him was “slightly unnerving. […] He was utterly polite, quite austere. You never knew whether he thought you were talking absolute nonsense or not. Some sort of clue might have been helpful.” Nonetheless, “as a junior judge seeing him as the Lord Chief [Justice] I thought he was an absolute role model”. He had a “sharpness of intellect, [and a] strong sense of humanity”, which particularly shone through in his articles about the rule of law and human rights, and fundamentally a “breadth of vision […] I think doing this job, it’s not really enough for people to just have a smart intellect. There’s a much broader vision.”
He also counts Igor Judge as an influential figure in his career, as someone who “had a huge sense of fairness” and “was quite prepared to tackle the tough issues”. He also had a great degree of warmth and interest in people: “As an example of a senior judge towards junior colleagues he was second to none. He really cared. He always gave the impression that you were just the person he was wanting to see and he had all the time in the world, when he had these huge pressures on [him].”
Something that unites the three men, in Lord Toulson’s view, is that despite their achievements, “none of them ever grandstanded. They were not people to say, ‘Look how clever I am’. They were people of remarkable modesty.”
When asked whether there were any negative aspects to his role, Lord Toulson responded, “I think some aspects of our criminal legal system are rather awful. I am concerned about the size of the prison population. I also have serious concerns about access to Justice”.
Overall, though, he looks back on his time at the Supreme Court with an overwhelming sense of positivity. He has valued “the intellectual stimulus, the human interest, the variety of the cases”, alongside the high standards of “integrity and competence”, and the friendships he has formed: “I’ve never, ever been bored.”
Is there any other career the young Roger Toulson would rather have pursued – perhaps becoming an athlete? (He broke the school record for running a mile at Mill Hill School; “I think it was something like 4 minutes 54 seconds – if it is still the record it would only be because they don’t run miles anymore!”). There isn’t: “I can’t think of a better job. Had I had the skills, I think that being a doctor would have had a similar appeal for similar reasons, but I simply don’t. I’m hopeless at even tying up my own shoelaces.” On his plans for retirement, Lord Toulson said he will be doing more things with his family, including “cycling, tennis and walking; improving my cooking skills and language skills; learning more about horticulture and perhaps doing some teaching”.
Lord Toulson will formally retire at the end of the Trinity Term, although he will sit on the Supplementary Panel, joining cases on an ad hoc basis from October. The UKSC’s independent Selection Committee is currently consulting on the way in which the appointments for a number of upcoming vacancies will be managed. For more information, see the UKSC’s website.