Events | 2010.02.14
David Neuberger: the human face of the law | Afua Hirsch
At the centre of controversy last week for his sharp criticism of the secret service, the Master of the Rolls is popular for his willingness to admit his fallability and his refreshing lack of pomposity. So what makes him tick?
If there is one lesson judges have taken away from last week\'s remarkable court of appeal ruling – that former Guantánamo Bay detainee Binyam Mohamed was entitled to have seven paragraphs of US intelligence about his torture released – it\'s that the contents of their judgments can do more to turn them into household names than any multi-million-pound re-branding exercise.
Lord Neuberger left the House of Lords before it was re-incarnated as a £50m Supreme Court , but last week\'s events propelled the judge – now the head of England\'s civil justice system – into the headlines.
One paragraph in the court\'s draft judgment, written by Neuberger, one of the three appeal judges who made the ruling, contained a particularly damning summary of the conduct of the security services.
"The Master of the Rolls\' observations… will be read as statements by the court that the Security Service does not in fact operate a culture that respects human rights or abjures participation in coercive interrogation techniques," complained Jonathan Sumption QC , the barrister representing the government, who successfully persuaded Neuberger to remove his remarks.
The decision to omit the paragraph may have been "over-hasty", Neuberger later admitted in court, and is now reconsidering amid furious submissions from other parties in the case who wanted the findings made public.
In theory, Neuberger\'s name (widely mispronounced (he calls himself "new-berger") should already have been a household one. Since stepping down from the House of Lords last year, shortly before its rebirth as the Supreme Court, he has become England\'s second most senior judge as Master of the Rolls (so-called because until the 1500s the role primarily involved looking after charters written on parchment rolls).
Born on 10 January 1948 to a prominent family of Jewish academics, he is the brother-in-law of Julia Neuberger, the rabbi and Liberal Democrat peer.
After secondary education at Westminster School, Neuberger read chemistry at Christ Church, Oxford. "I realised that I was not particularly good at science, and did not greatly enjoy it," he has said. Faced with a choice between finance or law, he chose the path of least resistance. "As law meant more exams, I opted for finance," he said.
He joined merchant banker NM Rothschild but says he was "even less good at finance than at science" and decided to try the bar. "It was a case of third time lucky," Neuberger said.
It took four attempts at pupillage before he secured a place in chambers as a practising barrister, but when he succeeded in 1974 – eventually becoming head of specialist property law chambers Falcon Chambers – his rise was rapid.
Neuberger became a High Court judge in the Chancery Division in 1996 and was promoted to the Court of Appeal in 2004, where he was appointed judge in charge of modernising the civil justice system. He was promoted in 2006, becoming the youngest law lord at only 58.
He gained popularity among the legal profession for his approachable manner and off-beat speeches – which have titles including "humour and the law" and his fondness for quoting Kafka and Wittgenstein. Two years ago, he headed an inquiry into how to widen access to the Bar, which was adopted as a blueprint by the profession, and has questioned government plans to reduce legal aid, asking whether access to justice "is slipping further from our grasp".
Neuberger\'s admission that he may have been "over-hasty" in editing his Binyam Mohamed judgment is also not the first time he has acknowledged his fallibility, endearing him to many used to a degree of pomposity among judges. When in 2008 a QC criticised a House of Lords judgment on corporate insolvency, Neuberger freely accepted the remarks.
"I must confess that the criticism he raises may well have some merit," Neuberger said. "The Lords, now the Supremes perhaps, even including the Master of the Rolls, are human, not divine, so we may err from time to time."
That remark made Neuberger the first member of the house of lords to playfully deploy the term "the Supremes" in reference to the court\'s reconfiguration as a Supreme Court. His cheekiness was perhaps bolstered by the knowledge that he would not be making the transition from the Lords to the new court.
Instead, Neuberger opted for the unusual step of leaving the court to become Master of the Rolls, a move he has described as an "elective demotion" that surprised many. The vacancy that his move left on the Supreme Court bench has yet to be filled. One hotly tipped hopeful to fill the position was Sumption, author of Neuberger\'s current embarrassing predicament in the Binyam Mohamed case, although Sumption\'s application has now been withdrawn.
It is Neuberger\'s judgments, however, that have seen him singled out by many lawyers as one of the sharper judicial minds. In 2004, he delivered a much-praised minority ruling that the home secretary should not be able to consider evidence obtained by torture in reaching decisions about detaining terrorist suspects.
In the controversial area of covert surveillance, Neuberger was one of the law lords who said that recording conversations between lawyers and their clients violated the right to a private life, and criticised the government for failing to provide an adequate legal basis for such measures.
"Unless no surveillance of privileged and private consultations has been going on for the past year in the United Kingdom (which appears most unlikely), this strongly suggests that the government has been knowingly sanctioning illegal surveillance for more than a year," Neuberger said.
Neuberger was also part of the House of Lords panel that ruled in favour of Debbie Purdy , who had multiple sclerosis and who challenged the lack of clarity in the law against assisted suicide, although he did express particular concerns that any relaxation of the law might affect the vulnerable.
While these rulings have carried favour with civil liberties groups, Neuberger has also been a cautious voice, keen to avoid interference by the courts in sensitive areas of executive policy.
In a decision about the implications of council-housing allocation schemes for people in priority need, Neuberger said: "It is undesirable for the courts to get involved." And last year, in a House of Lords judgment about whether the use of "kettling" by police during the 2001 May Day riots amounted to a deprivation of liberty, Neuberger was one of the law lords who ruled against protesters.
"The police are under a duty to keep the peace when a riot is threatened, and to take reasonable steps to prevent serious public disorder, especially if it involves violence to individuals and property," said Neuberger. Many say this cautiousness makes his strong criticism of the security services, currently still an unpublishable part of his judgment on Binyam Mohamed, all the more credible.
It is not, however, the first time he has been outspoken. Neuberger criticised the decision to create a Supreme Court for the UK, suggesting it was "a result of what appears to have been a last-minute decision over a glass of whisky". He feared the new court could become more powerful than the House of Lords committee it replaced, describing a risk of "judges arrogating to themselves greater power than they have at the moment".
"The danger is that you muck around with a constitution like the British constitution at your peril because you do not know what the consequences of any change will be," Neuberger added.
One of the overt aims of the new court was to increase the visibility and awareness of the judiciary in the UK, which has been a somewhat unintended consequence of the Binyam Mohamed case. The impact of Neuberger\'s findings in the judgment, and his subsequent decision to censor those findings, continue to reverberate around parliament, the intelligence services and the media. Other decisions Neuberger has been involved in recently, such as Thursday\'s court of appeal decision to allow a Sikh man a traditional funeral pyre , have benefited from collateral attention.
It still seems unlikely that judges in the UK will attain the kind of popular fame enjoyed by their US counterparts. Neuberger\'s extrajudicial activities – he has been chairman of the advisory committee on the spoliation of art (in the Holocaust) since 1999, chairman of the Schizophrenia Trust since 2003 and a governor of the University of the Arts London since 2000 – go by largely unnoticed.
Yet despite a somewhat dismissive approach to the new "Supremes", Neuberger may have done more than the judges who now enjoy that nickname to promote public awareness of the work of the judiciary.
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