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Jack_Kennedy_phExtra judicial speeches by sitting members of the bench can be something of a hit-or-miss affair. Those in the legal community hoping for a moment of revelation (or, more accurately, weakness) where the judge indicates their position on an area of law, are routinely disappointed.  The judge is all too aware of the need to remain tight-lipped lest someone read too much into his or her pronouncements. Immediately, the difficulty for the judge in question is clear – how do you reveal as little as possible about one’s own views to an audience that often wants exactly that, and at the same time remain engaging?

In two recent speeches, Lord Neuberger achieved just that.

Reflections on the ICLR top 15 cases: A Talk to Commemorate the ICLR’s 150th Anniversary

The first was at the 150th anniversary of the Incorporated Council of Law Reporting (the ICLR). As part of its anniversary celebrations, the ICLR had invited its subscribers to nominate the fifteen most important cases to reach the English courts in the 150 years since its inception. Before embarking on a journey through the diverse cases that made the cut, Lord Neuberger began by praising the important role that law reporters play in selecting and accurately recording cases.  They are, he said, “the unsung heroes and heroines of the common law”. How far we have come from the days of Espinasse!

Sir Nathaniel Lindley QC, a founder of the ICLR, declared that any case that met at least one of the following criteria ought to be reported:

  1. If it introduced a new principle
  2. If it modified an existing principle
  3. If it settled a dispute or uncertain issue
  4. Or if it was “particularly instructive”

Needless to say, those that made the list easily satisfied these criteria. They were:

Rylands v Fletcher (1866) LR 3 HL 330

Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256

Salomon v A Salomon & Co [1897] AC 22

Donoghue v Stevenson [1932] AC 562

Woolmington v Director of Public Prosecutions [1935] AC 462

Liversidge v Anderson [1942] AC 206

Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130

Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147

Caparo Industries plc v Dickman [1990] 2 AC 605

R v R [1992] 1 AC 599

Pepper v Hart [1993] AC 593

In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147

A v Secretary of State for the Home Department [2005] 2 AC 68

Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101

When confronted with a list like this, it is often tempting to reflect on those cases that one thinks ought to have made the list or create a list of one’s own. Lord Neuberger resisted such a temptation and instead embarked on a journey through the various cases, masterfully navigating between different decades and areas of law. It was a thoroughly enjoyable journey, too, reflecting on cases and individual judgments which one might not have encountered since one’s student days, but which one ought never to forget: Lord Atkin’s brave dissent in Liversidge; Denning J’s obiter pronouncements in High Trees; the smoke ball; the snail in the ginger beer. These were cases and individual judgments upon which entire disciplines were founded and they ought to be celebrated.

What was remarkable was Lord Neuberger’s capacity to weave his way through the cases seamlessly, finding connections where none were apparent, as if they naturally flowed from each other. This was in spite of his reflecting comments, that even he could not identify a unifying link between the cases. And indeed, he concluded, that ought to be so as “the almost infinite variety of human experience is faithfully reflected, as it should be, in the courts”.

The full text of Lord Neuberger’s speech can be found here: https://www.supremecourt.uk/docs/speech-151006.pdf

 

Singapore Academy of Law Annual Lecture 2015

The second of Lord Neuberger’s recent speeches was presented earlier, in Singapore on 21 September, and its topic was no less wide in scope. It concerned confidentiality, privacy, freedom of information and whistleblowing in the Internet Age.

Again, unsurprisingly, this was not an opportunity for Lord Neuberger to set out his own views about these enormously complex and continuingly shifting areas of law. Instead, the speech represented something of a tour d’horizon, touching upon all areas with an impressive degree of learning and insight.

His talk centred on what he considered to be the 3 overarching problems relating to questions of privacy:

  1. The difficulty in defining the nature of a right to privacy;
  2. The difficulty in balancing a right to privacy (however defined) with competing interests such as the right to freedom of expression; and
  3. The difficulty of keeping up with such a rapidly changing landscape.

Much of the first part of his speech will be familiar territory to those with an interest in these areas of the law. Lord Neuberger provided an overview of data protection and privacy regimes in various jurisdictions. Although a right to privacy per se is not easily found across the globe (due, no doubt, in large part to the difficulty Lord Neuberger recognises in defining the term), many countries have developed piecemeal protections, particularly relating to the protection of data. Indeed, we eagerly await the Supreme Court’s consideration of the Vidal-Hall case where, for the first time, misuse of private information was recognised by the Court of Appeal as a tort.

Lord Neuberger considered how the EU has led the way in laws relating to Data Protection and Retention, responding well to the constant developments of the internet. He reflected, too, that as technology rapidly changes, judges must keep up and respond “realistically” to the various challenges that they encounter.

A subject that continues to dominate the headlines, particularly in recent weeks, is state surveillance and how it interacts with the privacy of individuals. Again, Lord Neuberger touched on it, commenting on how the Snowden revelations have brought new attention to the need to strike the right balance between security and privacy. He made frequent references to the recent report by David Anderson QC and appeared to endorse the view that there ought to be prior judicial approval to conduct surveillance, as is the case in many other jurisdictions.

Lord Neuberger briefly reflected too on the collection of data other than as it relates to security, such as health and tax and considered the importance of the anonoymisation of such data. As well as recognising the problems, he outlined some of the potential solutions including what he called “self-help” protections against activities like hacking through VPNs and other means. Again, much of this was by way of brief description, rather than deep analysis.

Perhaps most interesting, though, was Lord Neuberger’s reflections on the disparity of legal regimes, regulatory responses, and indeed cultural attitudes, when it comes to questions of privacy. Lord Neuberger was clear in his advocacy for the establishment of international norms and agreements, but he himself recognised the difficulties in achieving this when confronting such differing and, at times, contradictory sets of principles.

For example, Lord Neuberger often returned to the difference between the EU and the USA when it comes to addressing questions of how to effectively police the collection of private information: the former preferring a model that envisages regulation and the engagement of the state, the latter, more market-based responses. But Lord Neuberger himself recognised that such generalisations were fraught with difficulty – what sense is there in talking about European attitudes when we see how differently Germany and France have responded to laws surrounding electronic interception by national security services?

Lord Neuberger must be right that international norms and agreements should be sought. The Internet has no borders. To rely on national laws and attempt to extend their reach to international contexts is a messy business. We will see, though, if Lord Neuberger’s laudable cry that we must all work together will come to pass.

The full text of Lord Neuberger’s speech can be found here: https://www.supremecourt.uk/docs/speech-150921.pdf