And there are very talented people coming to the Bar and practising there at the moment. So I’m optimistic.
Do you think the Bar is something that will always be a vocation and will attract a different kind of person who wants to do advocacy for example?
Yes, the Bar is always going to attract a particular kind of person. It’s always going to attract people with a high degree of self confidence, people who feel that they are articulate (which is half way to being articulate), people who want to shine personally and not just to be part of a team; people who are interested in a job with no pecking order. It is a very un-hierarchical profession and you rise to wherever your abilities will take you, without having to take your turn behind others who may not be quite as fast. That’s very attractive to a certain kind of person, very unattractive to quite a lot of other people. I’m certainly not in any way denigrating the solicitors’ profession, whose complementary skills are invaluable. But there is no doubt in my mind that the sort of person who wants to come to the Bar is likely to be frustrated in the much more organised and hierarchical environment of a large firm of solicitors. The Bar is still where the magic is.
Will you miss being on the giving-out end of court fights?
No, but I would have given you a different answer 10-15 years ago. Having come to the bench relatively late, I’ve been talking non-stop for 35 years. It is refreshing to be doing some serious listening for a change. I enormously enjoyed every moment of my time at the Bar - I hardly ever did a boring case – but I had reached the stage where I had got as much enjoyment out of it as I was ever going to get. That is the stage at which you go stale unless you’re prepared to move on to do something else.
You were a don at Oxford and very happy doing that job, then decided to become a barrister.
I would have become a barrister after taking schools at Oxford in 1970 if I hadn’t had an offer which was not to be refused - I was offered a fellowship at the age of 21 in my own college. To be able to spend four years in a stimulating environment, thinking seriously about things that you’ve enjoyed doing as an undergraduate, that is a terrific privilege for which I will thank my old college, Magdalen, for as long as I live. Four years later things looked a little different. I needed to earn more. I didn’t want to be enormously rich but neither did I want to be enormously poor. Perhaps I have too many appetites. But anyway, I did change and in retrospect I’m very glad I did. Of course at the time there were moments when I wondered if I had done the right thing, for example when I embarked on my fourth pupillage and wondered if I was ever going to be able to practise.
Might we expand on this?
I didn’t get taken on in the chambers where I did my first pupillage. I then had two successive 6 month pupillages at another chambers and did not get taken on at the end of either of those. I was then more or less picked up off the street by Brick Court Chambers and got a tenancy there within a couple of months. I owe that to luck. It wasn’t simply that they were the sort of chambers that was prepared to take a punt on an ex-historian. Michael Mustill, who was then the head of the chambers where I was a pupil, took time off his busy practice to canvass support for me in a chambers where I had no contacts whatever. I owe the fact that I got taken on to him, I suspect, more than to any one person.
Would you recommend people coming to the Bar to do a law degree or would you say there is much value in doing an arts subject as an undergraduate?
I’ve made a lot of enemies, though I have to say very kindly enemies, among legal academics, by saying publically on a number of occasions that I think that it is best not to read law as an undergraduate. I’ve sometimes been misinterpreted when I say this as suggesting that law is not well taught to undergraduates in British universities. That is not my view: I think it’s superbly well taught to undergraduates in British universities. The problem is that we have a generation of lawyers, and this applies to solicitors as well as barristers, who are coming into the profession with much less in the way of general culture than their predecessors. It is very unfortunate, for example, that many of them cannot speak or read a single language other than their own. I think the difficult thing about practising law is not the law but the facts. Most arguments which pretend to be about law are actually arguments about the correct analysis and categorisation of the facts. Once you’ve understood them it’s usually obvious what the answer is. The difficulty then becomes to reason your way in a respectable way towards it. Of course sometimes you just can’t, in which case you change your mind.
This is why the study of something involving the analysis of evidence, like history or classics, or the study of a subject which comes close to pure logic, like mathematics, is at least as valuable a preparation for legal practice as the study of law. Appreciating how to fit legal principles to particular facts is a real skill. Understanding the social or business background to legal problems is essential. I’m not sure that current law degree courses train you for that, nor really are they designed to. That is not a criticism of the course. It’s simply a recognition of the fact that a command of reasoning skills, an ability to understand and use evidence, and a broad literary culture are all tremendously valuable to any advocate. If you don’t have them, you are going to find it more difficult to practise. If you don’t know any law that is not a problem; you can find it out.
Do you in your own mind create a vivid narrative when you’re preparing for a case to get to grips with the facts?
You have to create a narrative. My whole approach to legal problems is fact-sensitive. But vivid presentation also has its place. You’ve got to hold the attention of your court. I’ve always felt that the most important single rule for an advocate is that no judge should ever be quite sure at the beginning of his sentences how they are going to end. That way, they pay closer attention. Of course if what you have to say is nonsense they are not going to accept it, but at least they won’t be bored.
Lord Grabiner did once admit that he found you a formidable opponent.
I’m glad of that.
Is there anyone that you might say that about?
Gordon Pollock. He is an outstanding forensic speaker as well as an astonishingly gifted legal analyst. It is not a question of fear, but I have always had a great deal of respect for him since he duffed me up the first time I went to court.
Do you feel that over-specialisation is something that can cause lawyers problems in their careers?
It depends on the stage at which they specialise. I think it’s important not to become over-specialised too early in your career because if you do that you can get stuck in a rut which it is hard to get out of. You can’t do exactly the same speciality for 10 or 15 years without losing some of the freshness that you brought to the subject when you started. And anyway life is much more interesting if you do a variety of things. Once you’ve got a reputation as an advocate, expanding out of the field in which you earned it, is a good deal easier.
Would you say that the advocacy is therefore the primary reason why people would come to you in all your work at the Bar?
It’s the primary reason why people bring work to the Bar. When I joined the profession in the late 70s, a much higher proportion of a barrister’s work was advisory. Of course the Bar still writes opinions, and there are some fields of the Bar in which it is the main activity. But solicitors are less deferential, more self confident in their own legal skills than they were a generation or two ago, and they do much of the advising themselves. Of course for critically difficult issues where there are two, or more than two solutions that are equally plausible they will still come to the Bar, and there will always be some people whose personal intellectual reputation is such that their opinion is worth a great deal simply because their signature appears at the bottom.
Do you look at your last case before you came to the Supreme Court, for example, and think how big a part circumstance sometimes plays in these two opponents arriving with stories that are competing?
One of the great problems about litigation is that it involves retrospectively looking at events through the wrong end of the telescope. There is a depressing tendency for both practitioners and judges to assume that because it is always possible to trace the chain of causation which led to the relevant events, everything that actually happened was always going to happen. It is a short step from there to think that the parties foresaw it or should have done. But it usually doesn’t follow. I think that you have to be sensitive to the role of the accidental in human affairs. So yes, circumstances have a big part to play. Things are not pre-planned even if they look as if they might have been. You find the pattern later which was never obvious at the time.
And the themes may stay the same but the circumstances never are.
What would you say to a young student or barrister who’d started out having been inspired by these tales of enormous fortunes to be made? What warning would you give?
Money is good to have and I’m not going to pretend to be indifferent to it. But I think that you should regard it as a bonus. To make a decision about your career exclusively on financial grounds is a recipe for disappointment. Still, the fact that you can in England now make a considerable amount, starting from nothing, simply by professional skill, in a way which was almost impossible until 30 or 40 years ago, is something that I find cheering. I would hate to feel that it was only by inheritance or in business or the entertainment industry that somebody ambitious and able could hope to make a fortune. I would hate even more to feel that fortunes could not be made in any field of human endeavour. A country organised on those lines would be depressing to live in for everybody, not just for those who like making money.
Initial reflections on being at the Supreme Court: how are you settling in?
I find the work here very stimulating and enjoyable, and I think that it has absolutely the right balance between hearing time and thinking time. That’s a great luxury which does not exist unfortunately at lower levels of the judicial system.
Lord Sumption was interviewed by Stephen Turvey and Matthew Lawson of LPA Legal, who are regular contributors to Counsel and who organise its Profile page.