A conversation with Lord Dyson

A judge’s journey: Lord Dyson, recently returned to the thrill of hearing live evidence, lifts the lid on life as Master of the Rolls and his forthright views on current political and judicial controversies. Interview by Patrick O'Connor QC

For once, this is no platitude: it is a true privilege to interview Lord Dyson for Counsel. A modest giant of the legal world, he is regarded equally with admiration and affection. Lord Dyson was appointed High Court Judge in 1993, Lord Justice of Appeal in 2001, Supreme Court Justice in 2010, and was the Master of the Rolls from 2012 to his retirement in July 2016. He presided over profound civil justice reforms, pioneered diversity training for the judiciary, and sat upon many of the first Human Rights Act public law cases. He even introduced karaoke to evenings at Middle Temple, but more of that later.

Thirty-one of his prolific lectures and articles have been published in Justice: Continuity and Change (Bloomsbury, 2018). He has written about his life in A Judge’s Journey (Hart, 2019) which, in part, celebrates his complex European and Jewish family heritage. It is an unusually personal story. It is frank and without affect, as is John in person. (The literary festivals and ‘Private Passions’ already beckon.)

We meet in 39 Essex Chambers, John’s former home at the Bar, because his version of ‘retirement’ involves being ‘crazily busy’ and meeting ‘new and exciting challenges’. Now aged 76, his face glows with boyish enthusiasm at his current workload: high profile dispute resolution and arbitration, recently across the commercial and sporting worlds. He has demolished the financial muscle of Saracens Rugby club in a very recent ruling, some described as ‘thumping’. Part of the thrill for him is the return to hearing live evidence after 15 years of appellate work. What part of ‘re-tire-ment’ does John not understand?

John acknowledges the strong early influence of two redoubtable women, both of whom literally demanded ‘perfection’. When showing great promise at Leeds Grammar School, his mother, Gisella, a highly cultivated woman, would ask why he was not top of the class. His piano teacher, Dame Fanny Waterman, demanded ‘concert standard’ from her 13-year-old pupil. Even now, John senses her presence as he practises and gives piano recitals to a high standard. He accepts that he could have been inspired or repelled by these pressures. The outcome was fortunate for all of us.

He was never a rebel, but was swept up by the music of the 1960s, especially the Beatles. Aware of the political conflicts of the time as a young man, he felt liberated by the ‘satire boom’ dispelling the culture of deference. His sympathies never went so far as to attend a demonstration. The teenage John was transfixed by the dramas of the big criminal trials he saw at Leeds Assizes: the theatrics of the great silks of the day.

John is neutral about the relative benefits of a law degree or non-law degree, followed by post-graduate law conversion. He gained a scholarship to study law at Oxford, but, once there, was persuaded to tackle four years of classics, ‘mods and greats’: perhaps the first of his many ‘irresistible challenges’. He has never regretted that choice and observed how bored the law students seemed. He notes that law as a subject has since been transformed by better teaching, and enlivened by the growth of public law and human rights law.

John studied for Bar Finals through the Nutshells study books, without any need for attendance at any lectures or tutorials, let alone any advocacy training. He gained an unenthusiastic third class pass. John is resigned to enduring the accusation from his wife Jacqueline, a distinguished legal academic, that he is entirely unlearned in legal principle or theory.

Coming to the Bar was much influenced by his father’s ambition for him. He could well have become an academic or a civil servant. It was only for a short time that he took small criminal and family cases in the magistrates’ court, before definitively opting for a civil practice. How come, if he wished to assist real people to resolve real problems through the law? He found these cases ‘lacking in intellectual challenge’ and ‘dispiriting’: the dysfunctional repeat clients and the inscrutable magistrates.

John confesses that he has since gained a greater appreciation of the intellectual demands of the criminal law. However, when sitting in the Court of Appeal, he served as a juror, ironically in the current Supreme Court building. He is no fan of elaborate directions of law to a jury and endured a ‘perverse acquittal’. He strongly admires the dedication of those currently working under the huge pressures of the family courts.

So many of life’s important turnings come down to chance, even on a foundation of hard work and talent. John ended up prospering in well paid construction cases, since a senior chambers’ colleague had written the leading textbook. Tempted by a more varied practice, including clinical negligence, he accepted an invitation to become head of his current home. It is striking that in a book of 239 pages, his 23-year career at the Bar occupies only 15 pages, whereas unsurprisingly, his 23 years on the Bench takes pride of place at well over 100 pages.

After only a few years sitting in the Administrative Court, John managed the steep learning curve of the cutting-edge human rights and public law litigation after 2001 ‘on the job’ in the Court of Appeal. He did not read up any text-books for conceptual background. He has regularly experienced ‘impostor syndrome’, especially when venturing into entirely new fields of law. He modestly accepts his personal fallibility.

John lifts the lid on the life of a Master of the Rolls with a breathless account of typical weeks and months. He would sit hearing appeals for three days a week, and deal with his administrative burden of paperwork, meetings and judicial selections on the other two days. Evenings and weekends were for pre-reading, and writing judgments. It is not clear how the preparation and delivery of many lectures and the official engagements were fitted in. Yet he chose to apply for this, away from the sedate life of the Supreme Court: another ‘irresistible challenge’.

A lecture engagement in Malaysia led to a karaoke invitation from his host, the Sultan. John says that he questioned all his life priorities, as he sang Hey Jude on a spotlit stage backed by a live band. Even allowing for his excellent vocal skills, perhaps a veil should be drawn at this point. At John’s initiative as Treasurer of Middle Temple, karaoke has been introduced to their ‘Revels’.

On current controversies, John is quite forthright. For many personal reasons, he is a strong ‘Remainer’. However, simply to ignore the referendum result, and cancel ‘Brexit’ would have been ‘deeply damaging’. Our democratic values and institutions are in danger, and ‘who knows where it will end’. However, he confesses to a ‘touching faith’ in the British people, that all will be well. He sees much of the antipathy towards the EU and, for example, the ECHR, as rooted in xenophobia: the illusion that ‘we know best’. He also sees our current turmoil as a symptom of wider global forces.

John does not see a case for a written constitution, but accepts that some gaps need attention, such as perhaps the arcane procedures of the Privy Council. He would have decided Miller (No. 2) in the same way and for the same reasons as the Supreme Court. He greatly admires the clarity, brevity and unanimity of the judgment. He is unimpressed with the Divisional Court judgment, based upon ‘non-justiciability’: and finds it ‘unconvincing’ to suggest that no criteria could be found to assess legality. John is satisfied that the judiciary well understands the boundary between the legal and the ‘purely political’.

He draws a clear limit to the role of the judiciary faced with controversial reforms to the justice system. At the stage of consultation, the judges should make their views and concerns clear, even if in private where appropriate. However, when proposals become policy, that must be faithfully respected. Freed from such restrictions, John does not hold back in his book on his dim views of the abilities and commitment of Chris Grayling and Liz Truss as Lord Chancellors and of certain civil servants.

From 2015, John, with the Civil Justice Council, has pioneered our current digital court reform programme, greatly assisted by Michael (now Lord) Briggs. Whilst given pause for thought by some recent critical reports, he still considers that scarcity of resources will not improve. He finds Richard Susskind’s work compelling, and that these changes are inevitable. In principle, we cannot afford to provide a conventional trial for small value pure money claims: even though this would cover up to £25,000, which to some, he recognises, is a large amount. There is a growing chorus of those who are less trusting than John of the integrity and competence of the Ministry of Justice.

He is unapologetic about being a ‘liberal’ person, being tolerant, fair-minded and sensitive towards other people, their differences and their problems. Finding solutions for those problems through the law, is his life’s motivation. These are important assets for any judge: indeed, what kind of judge would not share them? The judiciary is not, however, a monolith at all, and some are distinctly illiberal.

As for being part of an ‘elite’, the judiciary needs dedicated people of high intellect, who therefore are likely to have graduated from one of our top universities – and not necessarily Oxbridge. So is he part of a ‘liberal elite’ distant from the values of ‘the person in the street’? That depends of course upon assumptions about such values, which may not be accurately reflected in tabloid headlines. The accusation is also a rather cynical denial of the professional impartiality of ‘fair minded’ judges, such as John, for which there is no credible evidence.

He is a big fan of judicial diversity and very proud of increasing the number of women in the Court of Appeal from four to nine in his four years as Master of the Rolls. Undoubtedly, there has been a continuing effort in recent years to appoint women judges, without compromising the ‘merit’ criteria. Encouraging applications is a key factor. It may be that the allocation of the most high profile cases to women judges should be monitored, so that they can gain the track record necessary for promotion.

It is ‘hugely regrettable’ that the cost of university education and professional qualification, unaffordable to many, will eventually seep through to narrow the recruitment pool for the judiciary. Judges will become even less representative of society as a whole and inevitably of its range of values. He still sees an overreliance upon success at the Bar in the judicial appointments process. These do not necessarily require the same qualities at all.

And so to the Counsel ‘Desert Island’ moment. John’s single essential recorded music is Bach’s Goldberg variations by Murray Perahia, (I happen to agree, with relief that it is not Glenn Gould): work of fiction, Turgenev’s Fathers and Sons (oh, joy unconfined): building, Salisbury Cathedral with its soaring spire: and painting, Renoir’s ‘The Luncheon of The Boating Party’. Oh well… we cannot agree on everything, no matter how persuasive John is. This would have to be a large island, because walking has always been a great passion too.

Upon some distant date, yet to be fixed, John will spend some more time with his family, and perhaps explore his interest in the history of art. My delightful encounter with a great man is over.

Lord Dyson (pictured right) does not hold back in his book (pictured below) on his dim views of the abilities and commitment of Chris Grayling (pictured centre) and Liz Truss as Lord Chancellors and of certain civil servants (A Judge’s JourneyHart, 2019).

 

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Patrick O’Connor QC

Patrick O’Connor QC, of Doughty Street Chambers, has been a leading human rights practitioner for many years, specialising in criminal trials and appeals, public inquiries and inquests. He has written several well-regarded articles on criminal law, constitutional law, and neo-liberal ideology.