SJ Interview: Lord David Neuberger

David Neuberger, Baron Neuberger of Abbotsbury, served as President of the UK Supreme Court from 2012 to 2017, presiding over key rulings on constitutional law, judicial independence, and access to justice. A former Master of the Rolls, he built his career as a leading commercial and chancery lawyer, later becoming a judge in the Chancery Division before rising to the Court of Appeal and Supreme Court. His tenure included high-profile cases, most notably the landmark Miller decision on parliamentary sovereignty. Now a crossbench peer in the House of Lords, he remains a prominent voice on legal ethics, technology, and judicial diversity. In this interview, he reflects on his career, the future of the legal profession, and the challenges facing the judiciary today.

Looking back on your tenure as President of the Supreme Court, what do you consider your most significant challenges and achievements?

I think one of the things I aimed to do was to make the Supreme Court a happier place to work, a more socially friendly environment. Obviously, you don’t want judges living in each other’s pockets, but ensuring they got on well with each other was quite important. There was no animosity or significant discord, but I encouraged them, for instance, to have lunch together as often as possible rather than being locked away in their rooms. I think that was not insignificant in fostering a positive working atmosphere.

In terms of external matters, what I was most proud of achieving was initiating the procedure whereby the court sat outside London. That took some organising, but before I retired, we had our first sitting in Edinburgh for a week. Since then, I’m very pleased to see that the court has continued this practice, not only in the capital cities of Wales and Northern Ireland, and again in Scotland, but also in at least one other major city in England. I think it’s crucial to send the message that the Supreme Court is not just a London-based institution. The UK is a very London-centric country, and while London plays a vital role in the economy and should be nurtured, it’s equally important that major cities outside London feel central to the country’s legal and constitutional landscape.

Another significant aspect of my tenure was presiding over the first major political constitutional case: the Article 50 case—the first Miller case. That ruling addressed whether the Cabinet could withdraw from the EU without formal parliamentary sanction in the form of statute. It was a fundamental constitutional issue, but also a political hot potato, given the feverish atmosphere around Brexit in the media and public discourse. 

You’ve been involved in many significant rulings—are there any particular cases that stand out as especially complex or personally significant?

The Miller case is the obvious one. It was politically sensitive, constitutionally significant, and exceptionally challenging due to the intense media scrutiny. The UK does not have a written constitution, so fundamental constitutional issues rarely arise in the Supreme Court in the way they do in countries like the United States, where the Supreme Court frequently hears constitutional cases, or in many European countries, which have dedicated constitutional courts. That rarity made the Miller case exceptional.

The challenge wasn’t just the legal question itself but also the wider context—how the case was reported and the atmosphere surrounding it. The media coverage was highly charged, and there was a real risk that it could undermine public confidence in the judiciary. However, I think the Supreme Court handled it well. In some ways, the controversy surrounding the case worked in its favour—particularly after the Daily Mail’s infamous attack on the High Court judges, branding them “Enemies of the People.” That attack was so ill-conceived and outrageous that, by the time the case reached the Supreme Court, people had started to recognise the importance of judicial independence.

Of course, while I played a role, the success of the case was down to many factors, including the professionalism of my judicial colleagues. The judiciary rose to the occasion, and I think the Supreme Court’s handling of the case demonstrated the resilience of the UK’s legal system.

In an era of political changes and constitutional challenges worldwide, how can the judiciary maintain public confidence and uphold the rule of law?

Commenting on other countries’ systems is always risky because one doesn’t have the same depth of knowledge or experience as one does of one’s own system. However, I think it’s instructive to compare the UK with the United States.

Politics and the courts are a very unhappy mixture. In the UK, the absence of a written constitution means that judges play a very limited political role. There is also a strong tradition of judicial independence, and to be fair to both politicians and the media, a long-standing respect for the judiciary. At the moment, I believe we are in a good place. It’s a particular tribute to both our political and judicial systems that, despite the political turbulence of recent years, the judiciary has emerged largely unscathed.

If you compare this to the United States, where judges are politically appointed and courts have been drawn into highly political cases - including cases involving the former and now current President Mr. Trump - the contrast is stark. The US Supreme Court is made up of justices appointed increasingly for their political views, and that has led to significant constitutional challenges. This level of political entanglement creates problems for the perception of judicial independence and the rule of law.

In the UK, we have been fortunate to avoid this, but I think we can also take credit for having avoided it. My perception is that the judiciary in this country remains fairly well respected, and public confidence in the courts is still intact. That is crucial for the system; if judges are not respected and the public loses confidence in them, this would seriously undermine the rule of law.

You’ve spoken about legal aid cuts and access to justice—how dire is the situation now, and what would you recommend to improve it?

The fact that people of ordinary means, let alone poorer individuals, often cannot access the courts or legal advice is obviously wrong. And I think it is the height of cynicism to pass statutes like the Human Rights Act, which give people rights, but then effectively disable them from enforcing or even knowing about those rights.

That being said, I do have some sympathy for the government. We all know that public finances are stretched, and one of the inevitable consequences of having a very good legal profession is that lawyers are well paid. Legal aid lawyers, by comparison, are not well paid by the standards of the profession, and in many cases, not well paid at all. But legal advice remains expensive, and expecting the government to underwrite its costs for everyone who cannot afford it is, I accept, a big ask.

That said, I don’t believe this is a question of absolute entitlement, where everyone should be granted legal aid simply upon request. However, when you compare the situation today to 30 years ago, there has been an insidiously continuous erosion of legal aid. The qualifying financial thresholds have been progressively tightened, and the areas of law covered have been significantly reduced.

The government has attempted to patch things up—and to be fair, it’s better than nothing—by funding Law Centres and Citizens Advice Bureaux. These are important resources, but they are no substitute for proper legal aid. Given the level of provision that existed in the 1990s, I think we should be expecting something far better than what we have now.

With increasing concerns over ethical issues such as SLAPP lawsuits and the role of lawyers in controversial cases, how do you think the profession should navigate these challenges?

I think there is an element of insolubility about some of these problems. The fundamental principle has always been—and to an extent, still is—that as long as a client instructs a lawyer to do something that is honest and not contrary to a specific rule, the lawyer is entitled, and arguably obliged, to act on their behalf.

For example, if a client asks a solicitor to threaten legal proceedings that have only a small chance of success, but still have some chance, then unless there is a specific rule in the Solicitors' Code of Conduct prohibiting it, the solicitor is perfectly entitled—perhaps even obliged—to write a letter making that threat. The difficulty with SLAPP cases is that a solicitor is almost bound to accept their client's version of events. Of course, if the claims are so improbable that they cannot be supported, then that may be a different matter. But generally speaking, a solicitor must proceed on the basis that their client is telling the truth, and if that allows them to seek an injunction, then they will act accordingly.

I do believe the law must be careful in deciding where to draw the line. I’m not saying that there should be no intervention, but there is a fine balance to be struck between maintaining a lawyer’s duty to their client and preventing abusive litigation. That said, legal principles must evolve, and there will be circumstances where general rules need to be subject to exceptions.

The difficulty with SLAPPs is determining precisely what those exceptions should be. It may be that the best solution, which I believe is already beginning to happen, is for judges to take a more robust approach in striking out cases and imposing stringent cost orders where they believe the SLAPP should never have been brought in the first place. However, that doesn’t entirely solve the problem, because the defendant in such cases still has to face the initial legal action and incur significant costs in defending it.

One area that might be worth exploring is an approach similar to the "threats jurisdiction" in intellectual property law. In that area, making an unjustified legal threat—even if no proceedings are ultimately brought—can give rise to a claim for damages. If a party bringing a SLAPP case was were told that not only would they pay costs if unsuccessful, but they might also face substantial damages simply for issuing an unjustified legal threat, that could help nip the problem in the bud.

The judiciary has made efforts to improve diversity. How much progress do you think has been made so far, and what barriers remain?

When I started as a barrister in 1975, the Chancery Division, where I later became a judge, did not have a single female judge. When I became a judge in the 1990s, there was just one. Similarly, when I started at the Bar, there were no women Law Lords and no women Court of Appeal justices. By the time I became a judge, there were still none in the top court. But soon afterwards, Brenda Hale joined the Lords, which was a major milestone.

Today. around 25 percent of High Court judges are women. That is, of course, half of what it should be in an ideal world. However, I do believe this represents real progress for two reasons.

First, compared to when I started, it is a substantial increase. Second, when you look at the pool from which judges are selected, the progress is significant. In the legal profession, fewer than 15 percent of KCs are women, and fewer than 15 percent of equity partners in large City firms are women. If that is the talent pool, then having 25 percent of High Court judges being women is an achievement.

 That being said, much of the work needs to be done at the legal profession level to ensure more women reach positions of seniority before they become eligible for judicial appointment. Strikingly, there hasn’t been much improvement in this area over the past 20 years.

Of course, gender diversity is only one part of the picture. Ethnic diversity at the High Court and above has been even more limited. The lower levels of the judiciary have a higher proportion of women and ethnic minorities, which is encouraging, but more work is needed at the senior levels.

Perhaps the biggest ongoing issue is socio-economic background. To be fair to both the legal profession and the Judicial Appointments Commission, these challenges are not unique to law - they are national issues. However, if we do not demonstrate fairness in recruitment and representation, it undermines confidence in the judiciary and, by extension, the rule of law itself.

Regarding the future of the legal profession, would you say there are any major challenges, particularly related to technological advancements, or any other broader challenges that come to mind?

I think, in the traditional sense, London faces the same problem as any global leader in a field. While New York—and perhaps other parts of the United States—may have a higher turnover, I think it’s fair to say that London remains the global centre for law, particularly in international dispute resolution.

New York is much more America-oriented, whereas London has become highly international. The challenge is maintaining that leadership. I don’t see much serious competition from the rest of Europe, and although I was strongly against Brexit, I never saw it as a major threat to the legal profession at any rate in the short and medium term. 

Whether Brexit will negatively affect the economy in the long run—and in turn, the legal sector—is difficult to predict. There is certainly a risk, but I don’t see it as an immediate problem, is that more significant competition could come from the Far East and other regions, where jurisdictions will undoubtedly try to take some of London’s legal work.

The more existential challenge, however, is technological—particularly artificial intelligence. There is a real possibility that at some point—whether in five, fifty, or even a hundred years—AI could take over almost all the work performed by lawyers and judges. And if AI makes junior lawyers largely redundant by taking over their work, it becomes difficult to see where the next generation of senior lawyers will come from.

Whether that happens—and when it happens—remains to be seen. In the meantime, the challenge is to integrate AI into the profession in a way that enhances efficiency and improves legal services, while still ensuring proper supervision and oversight. Right now, AI is not entirely reliable, but at the same time, it is already capable of performing tasks that were unthinkable just three or four years ago.

We need to stay up to date with these developments. I’m fortunate in that regard—I have children who are practising lawyers, and they are a good deal more au fait with technology than I am!

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