Olswang interviews UK Supreme Court Justice Lord Mance
This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.
To coincide with the 10-year anniversary this month of his appointment as a Lord of Appeal in Ordinary, Olswang Associates Cathryn Hopkins and Ryan Dolby-Stevens interviewed Lord Mance. The interview, which originally appeared on the UKSC Blog, took place over the summer at the Supreme Court in Lord Mance’s office, which overlooks Parliament Square. It was a fascinating exchange and we hope you will enjoy our highlighted extracts 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 general principle on which the Supreme Court accepts cases is to establish or clarify the law on points of general importance, whether to the community as a whole or to a particular segment. For areas falling within EU law, the test we apply is whether the law is clear (in which case the Court may not take the case at all) or appears unclear (in which case we may end up having to refer it to the Court of Justice in Luxembourg). For areas falling under the European Convention of Human Rights (“ECHR”), the court must take account of the Strasbourg jurisprudence and interpret UK legislation, so far as possible, compatibly with the Convention rights. In the event of an incompatibility which we cannot resolve by interpretation we can make a declaration of incompatibility, requiring Parliament to reconsider the issue.
I think the Supreme Court has shaped the law in a number of key areas. In Al Rawi(Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34) and Tariq (Home Office v Tariq [2011] UKSC 35), we considered how far at common law one can devise secret court procedures and we held that there is no general common law power to conduct civil proceedings in secret where one party doesn’t know the material which is being put before the court. In Tariq we held that Parliament could establish such a procedure by statute in civil cases which could make use of a special advocate procedure before an impartial tribunal. Another example would be the understanding of the concept of jurisdiction which we finally resolved in Smith and Ellis (Smith & Ors v The Ministry of Defence [2013] UKSC 41). I think the court also made a significant contribution in Nicklinson (R (on the application of Nicklinson) v Ministry of Justice [2014] UKSC 38), which was particularly interesting as it examined the relationship between this court and Parliament. Finally, in the commercial context, the court has of course made several valuable contributions to mesothelioma litigation.
2) How would you describe the courts’ role in interpreting Parliamentary legislation?
I see it very much as a partnership, and that’s not just because I spent four years over at Parliament. We accept that Parliament makes the law and we apply it – that’s a governing constitutional principle. Of course, application of the law necessarily involves some interpretation when dealing with matters which have not been explicitly covered by legislation. We seek to resolve that sort of problem by trying to read the legislation in a way which is faithful to the underlying spirit and scheme. In the context of the Human Rights Act there is the special duty to interpret legislation, so far as possible, in accordance with the ECHR. The same duty applies under EU law, under the principle in Marleasing (Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] C- 106/89). Finally there is the desirability to interpret domestic law consistently with international legal principles, whether it’s a convention on the rights of the child or any other convention.
3) What for you was the biggest change when the House of Lords became the Supreme Court in 2009?
We consciously viewed ourselves as successors to the Appellate Committee of the House of Lords but of course we appear completely differently to the public now. We have a front door to be filmed and demonstrated in front of and far better internal facilities, which have had a real impact on our internal workings. I think above all the biggest change has been the enormous increase in public access which I hope this court has made its hallmark. I believe our chief executive and her team, our press officers, have done enormously well in public outreach and I think we now have over 100,000 people a year coming through the door. Whilst I don’t read tweets myself, our press releases are issued through various media and our judgments are also uploaded onto YouTube. These are very positive changes.
4) During your career as a Law Lord and Supreme Court Justice you have worked with three Senior Lords of Appeal/Presidents of the Supreme Court. How does the leadership style of each individual compare?
That’s a very interesting question and they have all been very different personalities, which I would characterise as follows.
Lord Bingham: an immense voice of authority who came traditionally last in the discussions we have immediately after every hearing; his voice could often sway all previous opinions. He combined this force of intellectual and moral authority with phenomenal productiveness – I think his thoughts were usually condensed into a few notes jotted down towards the end of a hearing, which he would then reproduce into a fully-fledged judgment which was typed up by the next Monday.
Lord Phillips: the first President of this new court, an enormously gifted public speaker and communicator who was undoubtedly responsible for ensuring this court achieved such public recognition and acceptance as it has, I think seamlessly, across the transition from the other side of Parliament Square. I think we are all very grateful to him for that.
Lord Neuberger: his is a very open, collegiate approach; he has encouraged debate with a view to achieving as much agreement as possible and reducing the number of contrasting judgments. Quite often he has written a judgment which synthesises the common ground and seeks to explain for the public, our audience – legal or lay – the differences.
5) Do you think that Lord Neuberger’s strategic style or approach has led to the increase in single judgments or are there other factors in play (for example slightly less complex cases or a lower instance of the 7- or 9-Justice panels)?
I would identify a third reason perhaps, namely that it is much more readily possible in this new building to meet and discuss cases. Linked to that is the rise in the use of e-mail. When I first joined the court ten years ago by no means everybody used email and indeed it is only relatively recently that everyone does so. The fact that we have facilities to meet and to eat together, combined with the huge number of exchanges of email, means that there is much more interchange than there used to be, which works towards achieving great agreement. The old style of judgment writing has largely evaporated now; every judgment is up for critique (sometimes almost instantaneously by e-mail). Although this certainly means more work, I think it leads, and I hope it is perceived by professionals and the public as leading, to clearer cut reasoning and decisions.
6) What is the most memorable case of your House of Lords/Supreme Court career to date and why?
I think this is immensely difficult but I will give you a selection. In the House of Lords, the Chagos Islands case (R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61) because of the historical constitutional and international legal interest and its continuing ramifications which one follows both internationally and actually domestically. That case I thought was extremely interesting.
In the Supreme Court, I’ll take Kennedy (Kennedy v The Charities Commission[2014] UKSC 20) for several reasons. Firstly, it raised the scope of Article 10 (freedom of expression), in a way which highlighted to Strasbourg that there are problems which need sorting out. It highlighted the desirability of considering the common law at least as much (if not before) statute when considering a rights problem; the common law should not be forgotten and we should not assume it is now obsolete in the light of the ECHR. It highlighted the strength under common law of the principles of transparency and openness in relation to inquiries and, finally, it opened the way to debate about the relationship between the Wednesburyprinciple and proportionality. So that strikes me as a case with quite a lot of interesting points.
7) What do you think are the key differences (if any) between the approach towards Human Rights taken by Strasbourg and the UK Supreme Court?
The relationship with Strasbourg is not as stringent as the relationship with the Court of Justice of the European Union (“CJEU”), and this actually offers greater opportunity for dialogue. We can dig our heels in and say ‘Sorry we aren’t bound by your decisions and we don’t agree with this decision for these reasons’. The Strasbourg court then has to reconsider the problem in the next case that comes up in that area and it will then do so with the benefit of our input and I think we have therefore a greater opportunity to help shape Convention jurisprudence than we do in the case of EU law. Dean Spielmann (President of the European Court of Human Rights (“ECtHR”)) has said that he values the contribution that British courts have made and they value our explicit (albeit sometimes lengthy) judgments. There is a real dialogue and I think the ECtHR has given real content to the margin of appreciation. There is a whole string of recent cases (Austin, Axel Springer, von Hannover, Firth, Ibrahim and Hutchinson), where the ECtHR has bent over backwards to make clear that it is not its duty to intervene in every case. Most recently of all, in Nicklinson (Nicklinson and Lamb v the United Kingdom), the ECtHR said that our appreciation of the constitutional position in the UK was not something they would interfere with and that we were entitled to take the view that Parliament should now consider the matter.
8) At the 2013 World Policy Conference you described the English court system as fitting into the “interconnected systems that make up the modern legal world”? To what extent, in your view, does the impact of the EU and European law diminish parliamentary sovereignty in the UK?
The lodestar of our constitutional system has been parliamentary sovereignty but, on the other hand, the UK has traditionally been an internationalist country which has looked and had interests across the world. We have signed up to both the European Union and the ECHR, which we played a good part in drafting, and Parliament has decided that those should have domestic effect. Parliamentary sovereignty remains in the sense that Parliament could undo what it has done but, for the time being, it has handed particularly the European Union considerable powers. One must not assume we have assigned sovereignty to the EU; we do have an input at the stage when European law is made and obviously that is an important input. It’s the one reason why engagement with the Commission at the drafting stage is so important. If there are any disadvantages of European membership, you have to remember the benefits of accepting collaboration in a mutually interconnected world. I think there is considerable mutual respect and certainly on the continent of Europe I am always conscious of how much the UK is wanted as an active participant and is respected in legal terms; our contribution is valued and I think that’s a valuable and more constructive way forward.
We have on a number of occasions considered the proper scope of EU law – theChester (R (Chester) v Secretary of State for Justice [2013] UKSC 63) case is one, and the High Speed 2 case (R (HS2 Action Alliance Limited) v The Secretary of State for Transport & Anor [2014] UKSC 3) another, where we were frank about our difficulty in understanding two decisions of the CJEU regarding the environment.
9) You and your wife concurrently served as justices of the Court of Appeal. You have also commented on the composition of both the European and English Courts and the number of female judges. Do you think judicial diversity has or will improve? What do you think the judiciary in the UK is going to look like in the future?
I certainly hope that the judiciary will be in its composition more representative of society generally. Looking at gender firstly, we have figures for the English and Welsh system which are a record in the sense that they are the highest on record but they are hardly brilliant. 21 out of 108 High Court judges and about 1 in 5 Court of Appeal judges are female. I think that the position is one where the figures are modest and it’s hardly impressive that there has only ever been one woman in the highest court. That must be viewed against the background of the appointments process. Appointees usually come from the senior judiciary; judicial experience is no doubt very important but we shouldn’t exclude the possibility of making appointments from the Bar or, indeed, from academia. My feeling is that one possible problem over the years has been that it’s easy to take quite a narrow view about what is meant by merit and I think account should be taken of the overall composition and balance of the court, especially of the highest court. I think it would be entirely appropriate to look at diversity as one aspect of merit. Aside from reference to the deepest level of judicial knowledge and the highest intellectual capacity, which should be the first criteria, there are other qualities like conscientiousness, attention to detail, sound judgment and an ability to contribute to the law in other areas. Regarding gender specifically I think, and I am probably generalising dangerously, that women do have different life experiences from men. Certainly Lady Hale has a different view point on many aspects which contributes hugely, sometimes challenges us and carries us into different directions and thoughts. There will be a lot of turnover in the Supreme Court in the next five to ten years – Lord Toulson must retire next year and a large number of us must go in 2018 – so this may prompt further change.
10) What impact do you think the changes to legal aid have had and/or will have on the operation and the caseload of the UK Supreme Court?
It is already having some effect in the sense that the increase in the number of applications for permission to appeal from litigants in person has increased from 13 applications in 2011 up to 28 in 2014, effectively more than double. It seems to me that this is an inevitable consequence. So far, we have only ever had one litigant in person appearing before the Supreme Court in a preliminary hearing (Apollo Engineering Limited v James Scott Limited (Scotland) [2013] UKSC 37). Clearly, any judge or lawyer who isn’t worried about access to justice has missed the point of the whole system. Undoubtedly it is a problem and the reduction in legal aid has to be measured against the possibility that litigants in person actually take more time and involve more work for the courts, which itself is expensive. The basic problem is that our legal system is expensive. I am not suggesting that all lawyers on legal aid make a fortune; I think that is the absolute opposite of the truth. It may be that our methods of trial are peculiarly expensive; a jury system (which I am strongly in favour of) is undoubtedly expensive, but if we value it we have to pay for it. Civil justice presents a really unhappy picture because we have got to a situation in my professional lifetime where the costs of justice have gone out of reach of the majority of the population; unless you are very rich or very poor you would not dream of litigating civilly and if I have any solution or suggestion it would be along the lines of implementing speedier and simplified trial processes for smaller claims up to financial levels much higher than the current small claims limit, combined with increased judge-controlled administration of justice in more types of cases.
11) If you were making a decision now about your career would you do the same thing?
I actually got into Oxford to read History but changed immediately to Law. I also studied German over a university summer vacation and spent time with a Hamburg law firm just before my call to the bar and I have had huge fun from languages ever since. The answer is that I don’t think I would have done anything different. I have much enjoyed every stage of my career in the law and I went into it without necessarily intending to stay there. Each stage of my career has provided new challenges and there has been the opportunity for lots of associated activities which I have enjoyed; I’ve done lots of things in relation to Europe, including being on the Article 255 Panel, which, since the Treaty of Lisbon, scrutinizes and reports on all candidates for office as judges or advocates general at the Court of Justice, I chair the International Law Association and I also chair the Lord Chancellor’s Advisory Committee on Private International Law. I am also on the Judicial Integrity Group which produced and sponsors the application of the Bangalore Principles of Judicial Conduct.
Law is a tough profession to come into now but, for the people with the right qualifications and diligence, it’s a very rewarding profession. I don’t just mean financially, I mean intellectually. You have great responsibilities from an early age and you have independence. You deal with clients, you deal with unendingly different subject matters and every case is a new challenge. So, if you enjoy that sort of thing, it’s a great profession.
12) Is there anyone that you would say has been a mentor to you throughout your career? Is there anyone who has shaped the judge you have become?
I think I would have to identify as my primary mentors my tutors at Oxford. I was lucky enough to have a stellar group: Professor Tony Guest, Leonard Hoffmann (later Lord Hoffman), Jeremy Lever (now Sir Jeremy Lever) and also Paul Baker QC and Sir James Fawcett (who went on to be a president of the Human Rights Commission). They were all inspirational in different ways and gave one a hugely valuable grounding. In terms of judicial mentors, that is difficult because one prides oneself on one’s independence of mind, but I would definitely say that I owe a debt and learned a lot from seeing in action (in both the Commercial Court and on appeal) two old members of my chambers, being Lord Goff, who was brilliantly civilized and erudite, and Lord Hobhouse, whose analytical force and penetration were remarkable.
13) What are the best and worst things about your job?
I think the best thing is discussing and resolving difficult issues in a cooperative way both with counsel during the hearings and with colleagues outside the hearing. I think that is, of my present jobs, the most fun. The worst thing? That’s more difficult. I would say a back-log of judgments and speeches but I make a point of not allowing this to happen. Something which sadly does sometimes happen is reviewing a written case, which is so excessively long and repetitious that it’s almost impossible to concentrate when reading it and it actually undermines its own purpose: to prepare and inform the reader and to arouse interest in the writer’s case. We are generally very polite about this but it simply doesn’t help if you have a positive case which endlessly repeats the same point under different guises; it’s counterproductive.
14) What advice would you give to aspiring young lawyers?
I remember an old friend of my family, Granville Wingate QC, gave me the advice as a young man to remember that you are serving the clients and you should turn around their work quickly. Of course, you should remember that you’re not serving them in the sense of doing what they want; you do them no good if you just do what they want. You serve clients by giving them objective independent advice, and one of the great things about the Bar is that you can look at a client across the desk and say “you may not like my advice and in that case you can go somewhere else if you want to try and find better advice”. I think the most valuable piece of advice to any advocate is to have thought in advance of the points and problems that the court will identify and to have worked out what the answer is, what your bottom line is. You must never assume you are going to get away by concealing the really difficult point; you must be prepared to face it and sometimes it’s best to face it by coming out with it straight away.
