Reflections of a jurist: Lord Phillips
The outgoing president of The Supreme Court reflects on his time leading the UK's highest court to Suzanna Ring and Alex Novarese
September 27, 2012 at 07:03 PM
8 minute read
The outgoing president of The Supreme Court reflects on his time leading the UK's highest court to Suzanna Ring and Alex Novarese
On setting up the Supreme Court
The primary challenge was to get all members of the Court feeling that they had joined a collegiate society and that the move was a step in the right direction. How did I achieve this as president? Gently. I was to some extent a new boy; I'd only been a Law Lord for a year. I had to allow them all to settle down and suggest changes quite gently. Almost within 48 hours, everyone was appreciating the benefits of coming into this building.
On the political role of the Supreme Court
I don't think it has [become more political] but, because we're more visible and separate from Parliament, where we give judgments that either say legislation is against a convention, or in public law cases where we rule that the executive has behaved unlawfully, we receive more publicity than when these judgments were given by members of the Lords.
The Human Rights Act has had considerable impact because it has required the judiciary to scrutinize acts of Parliament. [But] I don't think [judges have taken on a more political role].
This court is not politically polarized in the way the US Supreme Court is. I find it simply impossible to predict which way my colleagues will go in cases that raise difficult, finely-balanced issues. I don't know what my colleagues' politics are.
On claims of discord among judges
I'm not sure there is even that perception. There have been one or two judgments where one member of the Court has expressed surprise at the terms of the judgment, but that is unusual. We're giving more collective judgments than we used to, if you look at the statistics. We're also giving more joint judgments, even if they're not unanimous.
There has always been a case to just put in a single judgment. But if you look at that approach, you tend to find that the judgment is not that clear because it will have a bit of fudge in it to reach a compromise decision. I believe it's a better system to allow those who don't agree to express their disagreement, and in future years you can sometimes see that those who expressed disagreements were actually right.
On the level of new law
For a long time Parliament has been turning out an immense amount of legislation, which is impossible to keep track of. When Parliament is working under pressure, legislation may not get the kind of attention that in an ideal world it would, and so you get legislation that is not as clear as you might wish and sometimes has conflicting provisions that you have to resolve. I think almost everyone would say there's too much legislation.
On interesting cases
Interesting cases are often those that raise real human problems – and the Jews' Free School case is a good example of that – when you are applying the law in an area that is of importance to the man on the street. Sometimes, the issue of law arises out of an interesting factual scenario; sometimes you can be dealing with a quite arid intellectual problem. Both have their attractions. The arid intellectual problem, when you get into it, is challenging. People enjoy the challenge of Sudoku. Our job is much more fun than Sudoku.
On political criticism of the European courts
If you talk to members of Parliament, you won't find them saying we ought to abandon the European Convention on Human Rights. There is virtually unanimous agreement that the Convention is a good thing. Politicians are politicians – they have constituencies that they have to cater for, so sometimes they may make remarks that they wouldn't make if they were sitting there talking to me.
On judges giving speeches
There is a fine line to walk when judges give speeches and judges are very aware of that. By and large, judges show proper discretion when they are giving public lectures.
On appointing Jonathan Sumption QC to the Court
[Sumption] obviously had a lucrative brief and there has been suggestion that he had decided he would rather have that brief than be a judge. He made it quite plain that he had accepted this commitment and if he were accepted he would have to fulfill this commitment, and if that was going to be a bar to his selection then he would withdraw his application.
On the Human Rights Act
It's been a very powerful force for good. We didn't sign up to the Human Rights Act (HRA) because we felt that respect for human rights was so appalling that we needed some super-national body to keep us on the rails. We signed up to it because we thought there were other parts of Europe that needed the convention. As things have turned out, we haven't been perfect either but you can't view the HRA simply from the viewpoint of how has it affected us, you've got to look at it as how has it affected all of the members of the Council of Europe.
On the Court's public image
It's hard to decide. It's not easy for me to judge, but I get the impression that, despite the knocking we sometimes get in the media, the public has quite a high regard for us.
On his career
I enjoyed all phases of my career, with the exception of [chairing] the BSE inquiry, which was not at all enjoyable. In a way the most fun is when you're a barrister. You're independent. The cut and thrust of the adversarial system is enormous fun. But it is a profession for younger men and after a time you can get diminishing returns. A time comes when becoming a judge gives one a more satisfying life. When I was made a judge you didn't choose your time – you were invited and if you didn't say yes you might not be invited again. I was asked to become a judge rather sooner than I might have wished [but] you try saying no to Lord Hailsham.
On retiring judges at 70
It's unfortunate because you tend not to get promoted to the Supreme Court until you're quite close to retirement age. We saw Lord Collins retiring when he was still firing on all cylinders and of enormous value to the Court, and we all felt that it was very unfortunate.
On solicitors making it to the Bench
It's a pity that so few of the leading firms of solicitors encourage their partners to take time to sit as part-time judges because that's almost a pre-requisite to getting a full-time judicial appointment. The best way of dealing with that would be for the City firms to realize it is highly desirable for them to make a contribution to the Bench and encourage their partners to take time off to get judicial experience.
It certainly has [been raised] by me and other people [with City law firms]. They haven't been very enthusiastic. You can understand why. If you have an extremely valuable partner it is quite a sacrifice for the firm to allow that partner to go away maybe a month a year. The big City firms are generous in other fields. Young lawyers spend quite a lot of time doing pro bono work and that is admirable but once someone has become a senior partner they are very valuable and they might themselves need a bit of encouragement to do it. It's a pity. There are some firms that do permit and encourage their partners to do this but they're not very many.
On the quality of new judges
When the system was changed, so that people were expected to apply, I was quite concerned that this might put off the best candidates. If that had happened so that the Bench had become something you only opt for if you're from the lower echelons – a plan b – it would never have been reversed and happily that hasn't happened.
There are many people accepting appointments today who by doing so are accepting a cut of maybe a multiple [of their earnings] but they are still happily prepared to do that. The life of a standing judge is still recognised as being exceptional.
On being president of the Supreme Court
Obviously [the president has] got to be a good lawyer but, if you ask what additional qualities you need, it's essentially leadership – being able to lead a team. Occasionally, there may be frictions that need to be dealt with in a way that's not going to lead to further friction. We have regular meetings that I chair in which we discuss the changes we are going to make.
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