Interview: Lord Sumption

The magic of the Bar, call of the Bench and parallel lives: in a rare interview Lord Sumption sets the record straight with Anthony Inglese

‘For a start don’t assume things that have been written about me are necessarily true,’ says the much-profiled Lord Sumption, ahead of retirement from the Supreme Court in December 2018. He particularly dislikes the tag Brain of Britain, ‘said of me by a journalist 20 years ago. I’ve never been able to get rid of it. I’m no fool, but Brain of Britain? Idiotic.’

The reason for the tag? Eton, Magdalen College, Oxford, a first in history, a fellowship and, even after switching to law a few years later and becoming the leading advocate of his day, a parallel life as a historian, undertaking a five-volume history of the Hundred Years War. History? ‘It goes back to when my father took me to bookshops and allowed me to choose what I wanted. History is accessible, even for a ten-year-old. At school I was bottom of everything. When I was 15 I said to myself: I’ve got to be good at something, sport or academic. I’ve never been interested in sport, so I chose work instead. I shouldn’t confess that these days…’

Family matters. His father was a decorated naval officer, who later went to the Bar. ‘My mother – a formidable lady, daughter of small farmers in Ireland – falsified her age to join the Navy and became in two years director of the British Forces Post Office in the Med. There is a photograph of her in white uniform, with clipboard, directing sweating soldiers carrying mailbags.’

Why did Lord Sumption himself opt for the Bar? ‘Money. I’d married young’ (his childhood sweetheart) ‘and needed a secure income. I’d enjoyed student politics and thought about – but rejected – a political life. It was partly the late night sittings in those days and the fact that politics had ruined my father’s life; his attempts to get into Parliament, his failure. The Bar was a better option. It has no real hierarchy. Seniority doesn’t count. What matters is talent and a lot of luck.’

Is he hinting that he is unmanageable? ‘I’m constitutionally unfit to be employed. Technically I am an employee in the Supreme Court – but it doesn’t feel like that.’

Jonathan Sumption QC was the ‘go-to’ Silk for government. ‘For my last 15 years of practice government was my most important client. I appeared regularly in the House of Lords and the Supreme Court. I met ministers and civil servants at every level and was impressed. They were honourable, public-spirited, dedicated to doing a good job. If they failed, it was not through want of effort or ability.’ He represented the government in the Hutton Inquiry (into the death of Dr David Kelly). ‘I was on holiday. The telephone rang. A voice at the other end said, “It’s No 10.” I said, “Come off it, Bernard” – my son – “you’re having a joke.” But it was indeed No 10.’

What is good advocacy? ‘That’s a large question. It’s highly personal. People make the mistake of imitating the mannerisms of successful advocates but you have to develop your own style. Build rapport with the court. Affect the way the court thinks. Understand the way your opponent thinks.’

In his earlier years as a junior Jonathan Sumption learned his trade from Robert Alexander QC. ‘I admired him. We rubbed along professionally. He wrote down every word of his submissions and then departed from it. I did the same. I didn’t read it out, but I knew it was there. Advocates are at their best when pulled away from their notes. I see much good advocacy these days. Counsel with high intellect, honesty and the willingness to address difficult points rather than circumvent them. It helps, too, if counsel don’t take issues personally. I’ve rarely done a case with as much ill feeling between the parties as Abramovich v Berezovsky. But my opponent was outstanding. He pulled no punches but there was never a moment when we couldn’t speak to each other on friendly terms. Advocates shouldn’t allow their commitment to spill over into their treatment of their opponent. It’s juvenile and unpleasant.’

As someone who preferred having time for historical writing to serving on the High Court Bench, he considers that his route direct to the Supreme Court ‘has been too untypical to be of much use to others’. But he is concerned by the fall-off of applications for the Bench. ‘It’s very much in the public interest that outstanding people should continue to apply for judicial appointments at all levels. The government has persistently kicked judges in the teeth – for example over pensions. So talented people are understandably reluctant to apply. People don’t apply to go to the Bench out of lust for power. They would be unsuitable if they did. They apply because it is an interesting and stimulating job, with a high status, and because there is a genuine culture of public service in the Bar. It takes centuries to build up that culture but only a year or two to destroy it.’

"I’ve rarely done a case with as much ill feeling between the parties as Abramovich v Berezovsky. But my opponent was outstanding. He pulled no punches but there was never a moment when we couldn’t speak to each other on friendly terms. Advocates shouldn’t allow their commitment to spill over into their treatment of their opponent"

He explains how the Justices work behind the scenes. ‘We have a conference after the hearing. The junior member speaks first and we go upwards, each giving a mini extempore judgment of three to five minutes. Someone may then volunteer to write the main judgment; or the presiding judge may nominate someone to write because they are the acknowledged expert or their mini judgment expressed best the view in the room or because they haven’t done one lately. Justices do change their minds. A dissenter can end up winning round the majority and writing the lead judgment. Someone nominated to write the lead judgment may end up dissenting.’

Presumably as a prolific writer he enjoys writing judgments? ‘I do enjoy it, and I write them quickly, immediately after the hearing. Doing it after six weeks is like eating cold mutton. I’m not happy dissenting – I’d much rather be in the majority. But it is the way of things if the institution is working properly that we should only be hearing cases which have at least two plausible answers. There may be three or four. We sometimes come up with solutions that don’t correspond to the arguments put to us. Then we have to ask for further submissions. This happens more today because hearings are shorter, and there’s less time to think during the hearings.’

What about the size of Supreme Court panels? ‘My own view, which my colleagues would not necessarily share, is that the court should sit in larger formation more often. No litigant should get the impression, even if it is erroneous, that a differently constituted court would have reached a different conclusion. We could even sit in banc all the time like the US, although this would require a change of the law to allow for an odd number of justices, and could mean a smaller case-load with a higher threshold for permission to appeal.’

Advice to potential law students? ‘Don’t read law if you are going to practise it and can afford the slightly longer route to qualification. Get a broad culture if you can. History is a good training for law. It does help to know ‘how we got here’ – it’s usually half-way to how we get out. Most cases have a historical background that’s sometimes helpful to explore and always interesting. History teaches you to analyse fact: most arguments about law boil down to factual analysis. But other subjects are also valuable. Classics, for example. Or economics. Languages are another extremely valuable training. A command of words helps. It is partly a literary skill. You have to hold the court’s attention. Avoid clichés. Nobody should ever be sure half way through your sentence how it’s going to end.’

And ‘the Bar itself is a great career. It’s still a wonderful profession for independent-minded people, not beholden to others, working assiduously, taking personal responsibility for what they do. The Bar is still where the magic is.’

What next for Lord Sumption after retirement from the Bench? He can’t say yet, but the possibilities include ‘going back to being an academic historian’. It’s as though his phenomenal legal career was no more than an interruption in his academic one. What else could he have done in another life? ‘I can’t answer that – I’d be a different person. My wife says I would be the Black Prince in another life. I hope that she is mistaken.’

Anthony Inglese CB was head of legal in five Government Legal Departments over a 38-year career, most recently as General Counsel & Solicitor to HMRC. A Bencher of Gray’s Inn, he trains and mentors lawyers.


Parallel lives: the lawyer/historian

Born: 1948

Graduated in history (first class hons) at Magdalen College, Oxford: 1970

After becoming a history fellow of Magdalen College, Called to Bar: 1975

Took Silk: 1986

Appointed deputy High Court judge:1992

Appointed Recorder: 1993-2001

First of his five-volume series on the Hundred Years’ War published: 1990; volume 2: 1999; volume 3: 2009

Cases include:

  • Pinochet Extradition, for government in 1999;
  • the Hutton Inquiry, for government (inquiry into the death of Dr David Kelly) in 2003;
  • for the Royal Household against the Mirror in the ‘fake footman’ case in 2003;
  • for the Bank of England in the Three Rivers saga in 2004;
  • the Railtrack nationalisation class action challenge, for government in 2005; and
  • for the defendant and Chelsea owner in Berezovsky v Abramovich in 2011-12.

 

Appointed Justice of Supreme Court (first Justice not to have previously served as a full-time judge since the court’s inception in 2009): 2012

Fourth volume on the Hundred Years’ War published: 2015

Fifth volume: awaited

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Anthony Inglese

Anthony 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.