Lord Neuberger on the Supreme Court: Five key cases from its first five years

From euthanasia to high-speed rail, the highest in the land has an almost limitless remit

Chris Green@cghgreen
Saturday 11 October 2014 21:46
Lord Neuberger, President of the Supreme Court
Lord Neuberger, President of the Supreme Court

"One of the risks of this job is that you get too interested in the law and forget the human aspect," said Lord Neuberger, the president of the Supreme Court. "We don't have witnesses, whereas trial judges are reminded of the real world constantly. One wants to be detached, but not remote."

They are surprisingly candid words from Britain's most senior judge. In a rare interview, to mark five years since the opening of the country's highest court, Lord Neuberger tells The Independent on Sunday what it is like to be one of the 12 justices given the task of deciding cases which raise points of law of critical public importance.

"It's a great privilege to be able to do it, and it's a great responsibility," he said. "You find yourself considering all sorts of very interesting, difficult and challenging points of law affecting all sorts of different people in all sorts of different ways."

To illustrate the almost limitless remit of the court, Lord Neuberger has selected five of the most significant cases it has heard since the Queen officially opened its doors on 16 October 2009, covering subjects as diverse as the HS2 rail link and the Tony Nicklinson "right to die" case.

The Supreme Court has sat on 508 days over five years, adding up to an estimated 2,286 hours of legal time, hearing 382 appeals and handing down 344 judgments. Lord Neuberger admits that narrowing the choice down to five had proved difficult.

Asked what it was like to sit on highly sensitive cases such as that of Tony Nicklinson, who suffered from locked-in syndrome and wanted his family to end his life, he said: "Rather like doctors who deal with children with fatal diseases, you mustn't lose your humanity and your sympathy – but you must maintain detachment.

"If you don't maintain a degree of detachment and objectivity, the danger is you become emotionally involved and that affects your judgement. In some areas of law, such as family cases, you risk affecting your mental health. You have to maintain a distance, but it's a subtle distinction between maintaining objectivity and retaining your humanity."

Before the Supreme Court came into existence, so-called "last resort" hearings were dealt with by 12 professional judges sitting in the House of Lords. The new building is not far away, on Parliament Square, but the atmosphere is very different, which Lord Neuberger said had been a conscious decision.

The current justices – none of whom wear gowns or wigs while sitting – are more "informal" and "relaxed", he said. "In the House of Lords, the tradition was you never discussed a case ahead of the hearing. Now we do. I think we're also more ready to discuss things afterwards and work collaboratively."

Wandering the corridors of the Supreme Court, you are likely to pass groups of visiting tourists or schoolchildren. Opening up to the general public, said Lord Neuberger, was "a big change".

"We have been much more visitable. It's very easy for a member of the public to get into the building and to get to sit in court. Compared with the old Law Lords, the number of visitors has increased enormously," he said.

About 370,000 people have visited the Supreme Court over the past five years, with 350 school and university groups attending last year alone. Summaries of the sometimes highly complex judgments are published so that the public can more easily understand them, while the hearings themselves are filmed and streamed online.

Supreme Court case studies

The tycoon, the divorce battle and the 'corporate veil'

June 2013

In 2013, the Supreme Court was asked to examine the disputed assets at the heart of Nigerian oil tycoon Michael Prest's acrimonious separation from his British wife Yasmin.

Mrs Prest said she deserved to be transferred seven of her husband's UK properties. He claimed that although he had put up the money to buy them, they were technically owned by his companies. "It's an important rule of law that a company is treated as an entirely separate legal entity: the individuals who own it, the individuals who run it and the individuals who finance it," said Lord Neuberger. "To use legal jargon, courts are reluctant to 'pierce the veil of incorporation' and treat assets owned by a company as assets owned by a shareholder or a director."

Some of the justices had different views on whether it could ever be appropriate for a court to lift the corporate veil, but Lord Neuberger said all of them agreed that it should not be done in the Prest case, because the companies "weren't an artificial creation simply brought into existence to allow the husband to avoid having to pay off his wife".

The case showed how "technical legal principles can play an important part in ordinary disputes".

Horncastle and 'hearsay' evidence

December 2009

The thorny issue of "hearsay" evidence was dealt with by the Supreme Court in one of its earliest cases. The use of statements from witnesses who are not present, were not under oath at the time and are not able to be cross-examined has long been permitted in British courts.

Lord Neuberger said: "It's sometimes hard to get witnesses to give evidence in the witness box – sometimes for the sad reason they're dead, sometimes for the more sinister reason that they have been intimidated." The case came about after the European Court of Human Rights (ECHR) in Strasbourg ruled if a person was convicted on the strength of hearsay evidence, then their human right to fair trial would be infringed. The British Government felt this stance posed a real risk to justice – and the SC justices agreed.

"Although normally we follow the Strasbourg cases, in the Horncastle case we didn't," said Lord Neuberger. "We explained in some detail why we thought our system was fair and that Strasbourg had in fact gone wrong."

After the ruling, the ECHR altered its original decision. Lord Neuberger showed "there can be genuine, civilised and constructive dialogue between the UK courts and the ECHR".

Al Rawi and secret hearings

July 2011

Should protecting national security trump the long-held British legal principle of open justice? That was the point at issue in the case of Al Rawi after a series of former inmates from US-run prisons, including Guantanamo Bay tried to bring claims against UK security services for contributing to their detention, rendition and mistreatment.

To fight the case, the security services said they must be allowed to give evidence to the judge in secret in the interests of national security – resulting in a situation where the former prisoners may have their claim dismissed on the basis of evidence that neither they nor their legal teams had seen.

The Supreme Court decided such an arrangement "simply wasn't possible", adding: "However sympathetic one might be to the security services wanting to produce evidence to exonerate themselves, we felt we simply couldn't approve a trial process which undermined one of the most fundamental principles of a fair trial: that each side hears and sees all the evidence and arguments put before the judge by the other side."

HS2 and the monitoring of Parliament

January 2014

Campaigners opposing the high-speed rail link between London and the North-west (HS2) sought a judicial review of the Government's plans – specifically whether they complied with EU environmental directives.

The court unanimously dismissed the appeal, saying that until Parliament reached a final decision on the HS2 scheme, its merits remained open to debate. In doing so, said Lord Neuberger, it fired a "warning shot" across the bows of the Court of Justice of the European Union in Luxembourg.

"We criticised the EU court for saying the directives in question meant something different from that which, frankly, they naturally meant," he said. "We said that was wrong in principle. That's not what a court should do. The law should be made by the European Commission and the ministers, not the judges rewriting directives."

The Supreme Court also criticised observations made in Strasbourg that courts should monitor parliamentary debate. Lord Neuberger described this as "completely contrary" to the long-established British view that judges shouldn't "poke their noses into what's going on in Parliament", adding: "We thought this was risking blurring that important separation."

Tony Nicklinson and the right to die

June 2014

One of the most famous cases heard by the Supreme Court was brought by the family of Tony Nicklinson, who had locked-in syndrome; by Paul Lamb, paralysed in a road accident; and by a man known only as Martin who wished to go to a Swiss suicide clinic.

"They all felt condemned to a life that was worthless, demeaning and sometimes even rather painful," said Lord Neuberger.

The Supreme Court had to decide whether the 1961 Suicide Act, which made encouraging or aiding another person to commit suicide illegal, should be ruled unlawful. The men claimed the Act infringed their right to decide when to die.

Nine justices took part. Although there were differences of opinion, Lord Neuberger said the issues were discussed in a "friendly and civilised way". He had "no doubt" some of the judges discussed the case among themselves, prompting some to change their minds. "There were some changes in views – as there should be," he said.

The court decided against the men by seven to two. The majority agreed the question centred on a moral judgement which should be addressed by Parliament.

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