‘My great-grandfather invented and patented a refined version of the ancient Greek heliograph, a device for signalling Morse code using reflections from the sun deployed by the British army until after the Second World War. When I was a boy I could naughtily signal across the dinner table to my grandfather by tapping in Morse code.’ I am speaking with Lord Mance about his family ahead of his retirement from the Supreme Court after 13 years at the top level. I learned that his great-grandfather, grandfather and father had all been knighted for their scientific, military and commercial work. Did their achievements burden the young Lord Mance? ‘In a sense you are inspired. I didn’t feel it as a pressure. I hope our children don’t.’ And he recounts with pleasure how his wife, Lady Justice Arden, beat him to the High Court bench by several months.
His education blossomed when he gained a history scholarship at University College, Oxford. There he was excited by the ‘freedom and openness of discussion’. But even before day one he had switched to law ‘for entirely the wrong reasons. I had read a John Braine book in which a history graduate ended up cleaning the windows at his old school and I concluded that history wouldn’t lead to anything. Around that time my father said to me that he had studied some law and given up on it as too tiresome. I thought, ‘Now there’s a challenge!’ He thrived under a ‘stellar group’ of tutors and emerged with a First; then off to a Hamburg law firm for ‘valuable experience’; and then to the Bar.
Called at Middle Temple in 1965, he enjoyed a first-six in general work with ‘a common lawyer who could conjure results out of the most improbable facts’ and a second-six and resulting tenancy at 7KBW, ‘a marine set with a significant insurance practice. My father, who became chairman of Lloyd’s of London, would bring home notes from his underwriting box about fascinating casualties and I got engaged. I would act for Lloyd’s and also for ship owners against Lloyd’s, getting odd looks from my father’s colleagues whenever I did. But I wasn’t earning much at first. I would take dock briefs at the Inner London Sessions and work for the Mary Ward Centre, learning about life, rent and uneven paving stones. Common law work is at the cutting edge of the law. I’m glad to have done it. I still remember that my first magistrates’ court client burst into tears when convicted.’
On Silks who stay Silks
His commercial practice grew and he took Silk in 1982. ‘As a “fashionable” commercial Silk I enjoyed a wonderful life and I can see why some don’t want to leave it. It’s a great worry that enough people are not applying for the High Court bench. Numbers have gone down and – since we have not dropped the standard – there is a real risk that we won’t be able to fill the bench with people of the right quality. We need cultural change. With the difference in earnings, a perceived downgrading of the judiciary, the government’s policy on judicial pensions, being a judge is no longer the summit of a barrister’s ambitions.’ The press comments during the Gina Miller case were ‘shocking, appalling. Judges have to be prepared to take strong criticism, but I hope we have sufficient general acceptance and support for the onus not to be on us to defend ourselves. I have found being a judge, ascertaining, applying and developing the law, immensely interesting and satisfying.’ Did he have a favourite level? ‘I’ve enjoyed every level, each more than the others; but it would have been the same had I done them in reverse. I’m lucky enough to have had a career with so much variety and change. Silks who stay Silks should realise that they are missing out.’
Working in a cooperative
But isn’t it less enjoyable being one of five or more on a bench? ‘Being a judge is a cooperative exercise, working with others. In the Supreme Court the Justices are quite good at pursuing lines of thought individually and collectively, without cutting across each other. We operate today a little differently from how we did when I started’ – he speaks as the longest serving Justice after Lady Hale, having joined the Judicial Committee of the House of Lords in 2005 – ‘probably more collaboratively, with more conversations between the Justices. We have a formal discussion immediately after each hearing and exchanges over lunch and at other times. We benefit from the flexibility which comes from having our own building. There are no rules against our having informal discussions with each other during the progress of cases, and we don’t always agree.’
Since becoming Deputy President of the Court last year Lord Mance has chaired most of the hearings in which he has sat. How does he organise his panel? ‘We work together. We don’t have a juge rapporteur; we don’t nominate one of us to lead the questioning; we don’t prepare draft judgments in advance; and we don’t know who is going to write the lead judgment until after our formal end-of-hearing meeting. Sometimes I’ll offer to draft it and find myself coming to the opposite conclusion from our starting point, and the others look at it and agree with me. It’s not always logical – that’s life. The judicial role is to think.’
Advice for advocates
Lord Mance is someone who thinks about thinking. He cites the award-winning 2011 book Thinking, Fast and Slow by Daniel Kahneman, which describes cognitive biases in thinking and counsels against placing undue confidence in human judgement. From his mother and her sisters he has inherited ‘a strong family tradition of interest in psychology and group behaviour, in watching the behaviour of people making decisions. People tend to see things from only one side; many problems are susceptible of more than one answer. You have to be aware of the difficulties of your own stance and have the answers to them.’
His advice to new advocates: ‘You are entering a wonderful profession. The cardinal lesson is to be well prepared, frank with the court, know your bottom line, recognising your difficulties and how best to deal with them.’
With many brilliant advocates appearing before him is he influenced by the gravitas or style of counsel? ‘Not much. I can be delighted by beguiling and skilful advocacy but I compartmentalise that from the legal arguments and principles in the case. That said, extremely skilful advocacy can lead to the wrong result. I may from time to time regard one of our decisions as fallacious – but then I would probably do so, as a dissenter from it!’
Has he ever changed his mind after delivering a judgment? ‘Once, in the Court of Appeal. We had to produce the judgment quickly and I wrote it, but felt almost immediately that it was wrong. On appeal the House of Lords said that it did ‘not lack novelty and ingenuity’, but was ‘respectfully… wrong because it travesties the nature of a third party order’.
"There is a real risk that we won’t be able to fill the bench with people of the right quality. We need cultural change. With the difference in earnings, a perceived downgrading of the judiciary, the government’s policy on judicial pensions, being a judge is no longer the summit of a barrister’s ambitions"
As the Justice who, fluent in German and French, is probably one of the most heavily networked with judges, lawyers and organisations across the world, Lord Mance is ‘proud of how our common law system has operated and been generally accepted. The Supreme Court has been good at explaining its role, at outreach, but it is in our judgments themselves that we have sought to be at our most explicit. I’d contrast this with some continental systems where the judgments are not inspirations for future change. The culture of committee-style judgments is one in which a common lawyer feels lost. The EU thinks that the unanimity rule operates as a cement, but it can, I think, weaken the cement.’
Retirement or rewirement?
With his language skills, his interest in the psychology of group decision-making and his wide international outlook, Lord Mance will not easily be replaced. What now for him in retirement? ‘A hangover of delivering judgments for a month. Then speeches to write for Hong Kong and Melbourne. Then taking part in the process in Japan to appoint the chair of the International Accounting Standards Board, and back to Australia to chair the International Law Association and to New Zealand to speak to the Banking and Financial Law Services Association. This will take me to about September. I’ll probably rejoin my old chambers, do some arbitration (but not so as to be consumed by it) and resume cross-bencher duties in the Lords, perhaps drawing on my experience of how government interacts with the EU.’ This is no idle comment, for his EU knowledge goes back to the 60s when he was one of the UK trailblazers who studied common market law in Luxembourg and, in the period before the Supreme Court came into existence in 2009, he chaired the House of Lords sub-committee on EU law and institutions. ‘Finally, I’ll have more time for my family and grandchildren, improve my Spanish, sing more in a choir and perhaps do a cookery course.’ Retirement is clearly not the word.
Contributor Anthony Inglese CB was head of legal in five Government Legal Departments over a 38-year career, most recently as General Counsel and Solicitor to HM Revenue & Customs. A Bencher of Gray’s Inn, he now trains and mentors lawyers.
CV: from fashionable Silk to Supreme Court
Lord Mance was born in 1943, one of four children of Sir Henry Stenhouse Mance, a chairman of Lloyd’s of London who would ‘bring home notes from his underwriting box about fascinating casualties and I got engaged’. He attended Charterhouse School, then studied at University College, Oxford where he switched from history to study law ‘for entirely the wrong reasons’ (see interview above). After a stint with a Hamburg law firm, he was called to the Bar (Middle Temple) in 1965, enjoyed a first-six in general work with ‘a common lawyer who could conjure results out of the most improbable facts’ and a second-six and resulting tenancy at marine set 7KBW.
In 1973 he married Mary Arden, now a Lady Justice of Appeal who will be elevated to the Supreme Court in October 2018. They are the first married couple to have served concurrently in the Court of Appeal.
He took Silk in 1982 and became a Bencher in 1989. He became a Recorder in 1990 and enjoyed a rapid rise through the judicial ranks: in 1993 he was appointed to the High Court (and to sit in the Commercial Court), in 1999 to the Court of Appeal and in 2005 to the House of Lords. In 2009, he became one of the first Justices of the new Supreme Court.
He became Deputy President of the Supreme Court in 2017 and retired from the Supreme Court in June 2018: ‘I’ll probably rejoin my old chambers, do some arbitration (but not so as to be consumed by it) and resume cross-bencher duties in the Lords,’ Lord Mance tells Counsel.
He has also served as chair of various Banking Appeal Tribunals (1992-93), was Chair of the Consultative Council of European Judges (2000-03) and President of British Insurance Law Association (2000-02). He was a founder director of the Bar Mutual Indemnity Insurance Fund and a member of a seven-person panel established to scrutinise candidates for the European Court of Justice under Article 255 TFEU.
The ‘Big Hitters’: Lord Mance's selection
‘I have found being a judge, ascertaining, applying and developing the law, immensely interesting and satisfying,’ Lord Mance tells Counsel.
As a Supreme Court Justice he has sat in a gamut of high-profile cases, including R (on the application of Miller and another) (Respondents) v Secretary of State for Exiting the European Union (Appellant)  UKSC 5.
In a 2015 interview with UKSC Blog Lord Mance selected amongst his notable cases: Al Rawi and others v The Security Service and others  UKSC 34 and Home Office v Tariq  UKSC 35 – ‘how far at common law one can devise secret court procedures’; Smith and Ellis (Smith & Ors) v The Ministry of Defence  UKSC 41 – ‘understanding of the concept of jurisdiction which we finally resolved’; Nicklinson R (on the application of Nicklinson) v Ministry of Justice  UKSC 38 – ‘particularly interesting as it examined the relationship between this court and Parliament’; and Kennedy v The Charities Commission  UKSC 20 – ‘raised the scope of Article 10 (freedom of expression), in a way which highlighted to Strasbourg that there are problems which need sorting out’; and ‘several contributions to mesothelioma litigation’.