Lord NThis summer, some of the editors of the UKSC Blog were invited to the UKSC to meet and interview Lord Neuberger.

Upon arrival we were taken to his office and offered cups of coffee and croissants. Notwithstanding the fact that the UKSC’s President had a busy day in court ahead, he was content to answer all of our questions in an open and candid way: not once did we feel rushed.

We think our discussions with Lord Neuberger were pretty interesting, the highlights of which are set out below.

1. What do you see the role of the UKSC as being, and are there any key issues or areas of law that you think it has shaped?

The obvious area which many people see us dealing with on a regular basis is human rights. That is because it is an area of law that the courts have had to develop, and is an area that is of importance to a large number of people.

There are certain areas of human rights that the UKSC has had to deal with because the law is unclear, for example prisoners’ rights in terms of sentencing. This is partly because Strasbourg’s guidance is not very clear [our interview took place before the ECHR’s recent decision in Firth & Ors v UK (App No 47784/09)] and also because our sentencing legislation is such a minefield.

I think that Tom Bingham very much took the lead in this regard when he was Senior Law Lord. We at the UKSC are still having to consider these issues, but I think part of the Court’s role is to develop the common law a bit more. I think that I have gone on record as saying years ago that judges with the Human Rights Act were like children with a new toy – I think we got very excited about the Act and sometimes not about the common law. They’re not antithetical – the two should march together. I think part of our function now is to make sure the common law gets developed and doesn’t get overlooked.

2. Do you think there is any need to make the relationship between Strasbourg and the UK’s approach to human rights clearer?

I need to be a little careful here because this, arguably, touches on policy and is a political issue, but there have been various commentators recently who have suggested that the UKSC shouldn’t be too subservient to Strasbourg.

I think the broad question may raise an issue on which I am ultimately neutral because it’s a political one, but I think there are two reasons why the courts should be very aware of what Strasbourg’s position is and think long and hard before departing from what they say.

The first reason is you want consistency in Europe (and as I see it we are one of the countries with the best records on upholding human rights): if we go too far from Strasbourg it will be used by more oppressive regimes to try and say “look – even the British aren’t according human rights proper respect”.

The other reason is more technical. One of the real, practical reasons for introducing the Human Rights Act was to avoid decisions being made here without reference being made to the ECHR and then people referring the matter to Strasbourg and years later having their human rights vindicated. If we depart too much too often from Strasbourg that will start to happen. But then again I think there is something to be said for the view that the courts have tended to be subservient to Strasbourg. It’s a fine balance.

3. What do you think the judiciary in the UK is going to look like in the future? What is your view on how it will be in 10 years’ time?

I think that one obvious thing about the judiciary is that it isn’t very diverse. This is first of all because the recruitment of judges for roles at the top of the judiciary comes almost exclusively from the Bar. Lower down in the judiciary, where in a way diversity is every bit and arguably more important (because there are witnesses and trials), recruitment has tended to be from solicitors and from the Bar, and more widely in the case of tribunal members.

The second problem is that recruitment has tended to be rather passive. In the past people simply got tapped on the shoulder and there was no strategy: those responsible for the selection of judges have tended to look for what was available and at who was the best and the result was that those selected reflected the legal profession which tended to be made up of people that were male, white, educated at public school, and from the upper middle and middle classes. And so that’s what we have.

However, I think that the situation will improve for two reasons. One is because I think that there are more efforts being made to ensure that we encourage people from minority groups to apply: women, ethnic minorities and – what is more difficult – people from less economically or socially privileged backgrounds. Secondly, I think that we will begin to look further afield for potential recruits rather than focussing on those who are top solicitors and at the top of the Bar.

I think we will also probably (and I would be in favour of this provided it was not the only form of improvement) start to get something of a career judiciary in place. An obvious example to take in this regard is a woman with children who is not prepared to work 24/7 because she has got childcare responsibilities (the person in this scenario could of course be a man and/or it could be parents rather than children that need care). Such individuals may consider that they need a job which has more regular hours (or that is possible to do part time) and/or where reasonable holidays can more easily be taken.

A career judiciary where there is a potential fast-track could be an option: such an individual could enter it at, say, the age of thirty-five as a junior tribunal member or possibly a district judge and work their way up. Now it’s a very difficult exercise because it’s important to make sure others coming from a more traditional career aren’t then overlooked. But the thing that the judiciary needs to do is go out and encourage more people generally to consider being a judge as an option for them.

I am not one of those people who optimistically thinks that if we just sit back it will all sort itself out and the judiciary will eventually include many more women and ethnic minorities. I think it will get better but the fact that this year the number of women silks has slightly reduced shows that we can’t rely on things to improve without doing anything. We’re never going to have improvement year on year, every year but we can’t just assume it will rectify itself. I think that representation of minority groups will improve over time but that it will be too slow unless we do something to make it happen.

We of course mustn’t lose sight of the essential requirement of merit and we need to ensure we have very good judges (although to be fair, merit is a slightly flexible concept).

The biggest challenge is increasing the representation of people who are from less privileged economic backgrounds.

I think there is scope for more solicitors to be judges, but the problem is that this often isn’t practical for solicitors working for law firms. I have heard stories of solicitors who wanted to start sitting as judges and were then frozen out of various roles and opportunities at the law firms they worked for: they were asked to stand down as head of department or were taken off management committees. It’s the curse of the hourly rate that I bang on and complain about: it’s a cut-throat world out there. Law firms are full of honeyed words about how they’re going to allow their solicitors to be deputies or recorders but it ain’t going to happen. I get the impression that City firms want their associates to be available 24/7, sometimes 36/7.

4. How will the cuts on legal aid impact on the role that judges play, particularly when faced with litigants in person?

I think there are three possible impacts on changes to the judiciary or three possible features upon which the changes will have an impact.

The first is the one you have identified which is that there will be more litigants in person. I think we are very lucky in the UKSC. To be brutal, if somebody with no money gets permission to appeal to the UKSC you will find first-class solicitors and barristers lining up to do the case for nothing to get the experience, so I doubt that we will have much of a problem here. But if you go to the County Courts, and to some extent the High Court and even the Court of Appeal, I think that litigants in person will and are becoming increasingly prevalent. And I think it does make a difference. In an utterly parochial way it makes a judge’s life less attractive and if you want to recruit good people you’re going to find it more difficult. That’s parochial but it’s not insignificant.

Second, and this is an extension of the first point, I think that judges will become more involved in cases. The old idea of the common law judge being purely an umpire, not rolling up his or her sleeves and getting involved, starts to crumble away, because if litigants in person come to court, somebody has got to help them or take their part. I don’t know which is a worse nightmare, two litigants in person fighting it out or one party being a litigant in person while the other party is professionally advised. I suspect it depends on the adviser. At least if you’ve got two litigants in person you can help them equally: once you help one party you rapidly worry about appearing to be biased and possibly even infecting yourself without realising it.

The third problem is that everything takes much more time. And therefore unless you spend more money on the courts and more judges, everybody else’s case is delayed.

And I suppose there is a fourth point which is actually that you get less good justice. Because, however much judges try and help and however good they are, it’s much better under our system to have both parties represented. I mean you often inevitably have one barrister who is significantly better than the other. That is already uncomfortable for a judge because you think “I’m really at risk of deciding this on who has got the better barrister, not who has got the better law”. But if it’s a barrister or indeed a solicitor advocate against the litigant in person that’s a more serious and obvious danger. It does make it more difficult.

5.If you were making a decision now about your career would you do the same thing?

I used to think my early career was full of mistakes and misfortunes, but looking back, it seemed to work very well. I was a scientist because I couldn’t think of what else to do and I wasn’t allowed by my parents or my school to read History or English because it was thought that I should do something more disciplined!

As I told an audience at a speech I gave in Germany – where they were quite horrified that somebody who had not got a law degree was now president of the UKSC – I was not a good scientist. But actually it was tremendously useful because I think that you can move from a more disciplined subject to a less disciplined subject (for example, from maths to physics and from physics to chemistry and chemistry to biology) but not so easily the other way around. So I said that I thought that moving from chemistry to law was achievable for that reason. I don’t know whether they laughed or cried.

After chemistry, I had a short career in finance which I was hopeless at as well, but it was good training to understand the business world.

After all that I went to the Bar. In those days it was easy to get pupillages but difficult to get tenancies. I had three pupillages at the end of which somebody else was chosen rather than me as the tenant. The last Chambers I went to was my last chance. They were not a very grand Chambers and if I’d been told I was going to do mostly Landlord and Tenant law I probably would have gone on and done something else, but in fact I loved it: it was terrific. It was luck and then everything went well. I don’t regret anything. I’ve been terribly lucky.

So in summary I think I’m a bit of a one trick pony: after two false tries I found the right trick.

6. Lord Sumption said a couple of years ago that it was preferable as a lawyer to have first studied a non-law degree. What are your thoughts on this?

I feel rather arrogant or rather uninformed about giving firm advice particularly bearing in mind the risks of not making it and the money costs of going to university now. There’s no right answer. There are some very good and happy lawyers who read law and some very good ones who haven’t. I think that if you are really interested in something like history or languages, then subject to the money aspects of going to university I’d do what you’re interested in, particularly if you think you’re going to be a lawyer as the rest of your life is going to be in law.

But if you’re not particularly interested in anything else and you do like the idea of reading law, it’s a good training. Even if you don’t become a lawyer it’s still a good experience. I’ve always been neutral about this. On the whole my experience is that people who feel strongly about the issue also feel strongly that whatever they did was right. And I don’t have that feeling. But I wouldn’t advise anyone to read chemistry unless they were interested in it.

Nothing is wasted when you’re in your twenties.   It’s all good experience I think. But the money is a real issue.

7. What’s the best thing about your job?

It’s the package. In a self-important way it’s the feeling that you’ve got to the top: but I can’t pretend that’s irrelevant. It’s not the main thing because I nearly didn’t make the move from being Master of the Rolls – that was a wonderful job and a terrific title I have to say.

It’s also the feeling that you really are shaping the law, and above all actually hearing interesting and important appeals and worrying away over judgments. And there’s the pleasure and challenge of having eleven colleagues. With eleven colleagues you can actually see them all and you feel you are more in control – as far as control is the right word, which it isn’t. The UKSC is a relatively self-contained institution. And thinking about what is coming around the corner and trying to plan for that is both fun and worrying.

8. And the worst?

As usual, the bad is the obverse of the good. The feeling of responsibility when one is deciding a point of general importance or interest, or dealing with a problem in the Court, can be oppressive. But, as with most demanding jobs, high spirits and a sense of proportion are essential – and a sense of humour helps a lot.

9. There appears to have been a step towards more single judgments?

That’s a very interesting and important point. I think that the trouble is that there have been decisions where there has been more than one judgment on a point where one really needs clarity and if you have two judgments which purport to say the same thing, clever lawyers go through them and find slight differences. So in such cases we just may muddy the water with more than one judgment.

On the other hand there are areas where it’s good to have more than one judgment because, for instance, you’re going to have a bit of a dialogue with the academics and the professionals: it isn’t going to be the last word and you need a bit more discussion.

But I think that in too many cases there are what I call ‘vanity judgments’: people think, “I want to write on this even though somebody else has said it” or “I can do a better job” or “I want to show I understood it all”. All judges, including me, have been guilty of that. But each of my colleagues is a free agent and it would be quite inappropriate of me to say “you can’t write on this”. Indeed, it would probably be a guaranteed way of ensuring that they did! I can lead by example though, so there are often big cases where I have wanted to write but I haven’t.

10. Finally, is it right that you were a little bit of a sceptic when the idea of the UKSC was introduced? Is the relationship between the UKSC and the legislature working?

I think the answer is this. Before it opened, Joshua Rozenberg in a radio programme interviewed four or five Law Lords about the UKSC. The other four have all retired now I think, and if they haven’t, I am sure they’ll forgive me if I say that they toed the party line and said “it’s all wonderful”. I said “it’s very good for some reasons but I’m worried about certain things” and all the coverage of what I said was limited to my concerns. I was very naïve: I should have realised that would happen.

I did have concerns. I do not think I was misrepresented in any of the things that were written, it was just one-sided in how it came across. I was concerned about two things, one of which remains. That is that the courts system is chronically underfunded and a lot of money has been spent on the UKSC. I’m not saying the money was misspent but it did concern me. The second concern, which was not to be justified, was that the UKSC would start setting itself up as the US Supreme Court and try to strike down legislation and take on the legislature. I was concerned about that, but it hasn’t happened.

Fortunately, the Human Rights Act came in well before the move to the UKSC – if that had been introduced at the same time I think there would have been a perception that we were getting too big for our boots. I think the past 60 years have seen an increase in judicial power, partly with the growth of judicial review domestically, but also due to the increase in power of human rights and Europe.

I think that, in my professional life-time, the independence of the judiciary, has never been even remotely under threat in this country. We have to keep an eye on it because, if we are not vigilant, encroachments on independence can creep up on you very quickly. But, at the moment, there is mutual respect between the judiciary and legislature.