Being SC President: Lord Reed

‘I make a conscious effort to make this a welcoming court. New members aren’t always the most confident. I remember that at the end of one of my first cases, in 2012, we retired as a nine-strong court and went round the table briefly stating our views in reverse order of seniority, as we still do. I said my piece and then, one after the other, the next seven Justices said they would decide the case the other way. I felt relieved to hear Lord Phillips [the court’s first President] saying he agreed with me. There can be vigorous discussions. But at the end of the hearing there needs to be a secure environment for people to have the confidence to say what they really think and to be heard quietly and respectfully as we go round.’

Lord Reed of Allermuir, Supreme Court President since January 2020, is talking about his approach to leadership: ‘I have learnt from all my predecessors, in particular from the careful way Lord Neuberger – a listening President – looked after us. I like to go round speaking to people in their rooms, checking whether anything is bothering them, smoothing out potential difficulties. As a female role model, Lady Hale quite properly undertook many external activities. I am able to focus more narrowly on the internal workings of the court. I work closely with my deputy, Lord Hodge. We have introduced greater use of statistics: for example, the numbers of judgments outstanding; for how long; and how many each Justice has got.

‘I monitor the fair distribution of work; of opportunities to represent the court at conferences or other events; of pleasures and chores.’

He doesn’t have to conduct performance appraisals of the Justices: ‘But I do steer them in the direction of improving the performance of the court, for example away from writing concurring judgments that don’t add anything, or judgments going off at a tangent, with obiter dicta that might come back to haunt us. The 12 Justices are all high achievers, but they can’t always come out on top and write every judgment. There is quite a lot of people management behind the scenes.’

Robert Reed, the eldest of four children, was raised by their mother and civil servant father in South Edinburgh near Allermuir, the highest of the hills which overlook the city. There is an early memory ‘of my being given a florin when I could recite the alphabet’.

‘I was badly behaved as a small boy at school. This must have been because I was bored. When I was moved to the front of the class under the teacher’s eye, my work and my behaviour became much better. They then deteriorated when she moved me to the back again. She put two and two together. I went for an eye test and we discovered I was myopic. Getting glasses was transformative. For the first time I could see the individual leaves on trees. Academically I took off. The bad behaviour disappeared.’ He became Dux [highest academic achiever] at his school, going on to read law at Edinburgh University and be the first lawyer in his family.

‘Law was a late choice. I had always liked the idea of being a doctor, but I had a rethink when, in my mid-teens, I had to spend time in hospital and saw all the elderly people there.’

He then hesitated between English (‘I was good with words, was president of the debating society and edited the school newspaper’) and law (‘attractive to me as being different from school subjects’). So, while still at school, he sat in on lectures at the university. ‘English bored me to tears. Law I found fascinating, even more so when I read Glanville Williams’s Learning the Law.’ He went on to do a DPhil at Oxford and be admitted as an advocate in 1983.

What can lawyers in England and Wales learn from Scotland? ‘An aspiring Scottish advocate has to spend 12 months in a solicitors’ office before pupillage. I spent six months in litigation: instructing counsel, sitting in court, attending conferences. This gave me a perspective on the Bar, both encouraging (in the sense that I thought “I could do that!”) and instructive, never more so than observing the truly impressive David Hope [later of this court].

‘I soaked up like a sponge how he conducted himself, how he spoke to people. I began my training thinking I knew a lot, but it was humbling to realise that unqualified clerks were more knowledgeable than me with my Oxford doctorate. Once in practice at the Bar, compared with many English counsel I gained a broader range of experience, which is of value to me to this day. It’s also useful knowing that there is another way of doing things, including custom and practice, not just law.’

At the Scottish Bar, Lord Reed developed a practice in commercial and public law. ‘I had been brought up in a household where my father worked on Bill teams. I would hear about Second Reading debates. I was aware of government throughout my childhood. At university, the subject I found most fascinating was EU law and institutions. I tutored EU law while at Oxford and taught constitutional law part-time during pupillage and in my early years at the Bar.’

His pupil master had been Alan Rodger (later a Supreme Court Justice), who introduced him to judicial reviews. Reed was retained to act as standing counsel to Scottish government departments and to take on human rights cases in Strasbourg and an International Court of Justice case at The Hague. He took silk in 1995.

A year later he received a summons from the Lord Advocate. ‘I was made an offer I couldn’t refuse, namely to join the Crown Office and work full time for government. The understanding was that I would do three years and get experience of prosecuting serious crime before going back to private practice. I thought that if I ever became a judge this experience would be worth having.

‘In fact, I enjoyed it more than private practice. When Labour won in 1997, I was moved to the policy unit on the Scotland Bill, to devise appropriate policy for a devolved Scotland. We had to consider questions such as what would happen if the Lord Advocate ceased to be a minister of the Crown – for example, who would sign public interest immunity certificates; we were involved in preparing instructions for Parliamentary Counsel; we briefed on policy disputes that were to be argued in Cabinet Committee, and we would read the minutes afterwards to see how we had fared and whether our minister might need to threaten to resign. I came away with much more respect for the civil service than some judges have.

‘Those were the days of the “tap on the shoulder”. I was “tapped” when I was due to leave the Crown Office to resume private practice. I said “yes”. I thought it would be more satisfying to decide cases rather than argue them. I was only 41. My appointment at such a young age raised some eyebrows. Relationships weren’t always easy.’

He became the principal Commercial Judge in the Outer House of the Court of Session and was raised to the Inner House in 2008, where he occasionally sat in the Supreme Court during Lord Rodger’s illness. He joined the [Supreme] Court in 2012. ‘Most Justices have enjoyed whole careers based in London. But I think it’s valuable to have people on the court with experience of living and working somewhere else.’

What is good advocacy? ‘The art of persuasion. The best tip in my pupillage was: know your judge. And then: watch your judge; keep an eye on how the judge is responding. Will the judge welcome a reference to authority – or not? Be interested in the law – or not? Or like submissions to be as short as possible? Listen, and respond immediately if the judge asks a question. Too many advocates say they will get round to it later – and never do! If necessary, answer briefly at once and add that you will respond in more detail later.

‘The focus should be on helping the judge. Take the 50-page limit on written submissions to this court: most counsel treat it as a target but the best ones may only use half of it. We can then see more clearly the structure of the argument.’

Career advice to those starting out? ‘There is a risk of boxing yourself in too early. The system admittedly pushes people into specialising, but try, if you can, to leave room for manoeuvre. Only through practice can you discover your strengths and weaknesses and what suits you best. The skills required for influencing appeal courts, juries and, say, planning inspectors are all different, as are the skills for cross-examining experts in a planning inquiry or a medical negligence case, and ordinary people – or ordinary criminals! – in a jury trial.

‘Don’t underestimate the importance of good manners: they are helpful in getting instructions. Take the opportunities that offer themselves to you, as there will come a time when they run out. For me an example was the Crown Office: learning about the process of legislation and becoming a judge the way I did.

He wants to make the court more representative but: ‘It’s a complex problem that we’re committed to tackling. When vacancies occur, the selection commission encourages as wide a range of candidates as possible to apply, but we can’t recommend the appointment of people without experience of judging at a high level. We are doing our best to encourage greater diversity among those entering the judiciary over the longer term, in accordance with a new D&I [diversity and inclusion] strategy.

‘For example, we are now offering paid internships for underrepresented groups. The first set of eight came for a week at the beginning of November [a project in partnership with Bridging the Bar]; each was assigned to assist a Justice and a Judicial Assistant, and to watch and discuss the cases. Participants said it was a boost to self-confidence; they were involved fully in discussion; and some had for the first time thought about a judicial career. We will do this again in 2022.

‘If people want to end up here, they need to think about it well in advance and plot their course, for example by becoming a Recorder and a Deputy High Court judge. The 12 of us didn’t pop up from nowhere. To get here people must think about this court and the Court of Appeal as an aspiration, and plan accordingly.’