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‘The Bar is a treadmill. It is important to raise your eyes and look ahead,’ says Lord Stephens who gave himself five years to make it as a barrister. Now a Supreme Court Justice, he gives Anthony Inglese CB a fascinating insight into life and practice in Northern Ireland as well as the UK’s top court
His father was a Dublin-born British public servant and committed Unionist, his father before him a committed Irish nationalist who played a significant role in Irish history as secretary of the 1922 Constitution Committee in the middle of the Irish Civil War. ‘It may not surprise you that I am politically neutral,’ says Lord Stephens of Creevyloughgare, Supreme Court Justice since 2020. Why Creevyloughgare? ‘It’s my home, “the place of trees beside a narrow lake”.’
Lord Stephens’ father qualified as barrister in Dublin and later joined the British Colonial Legal Service, enjoying postings to Nigeria and Malta, returning to County Wicklow in 1962, when Ben was seven. That same year Ben was sent to boarding school in Buckinghamshire and later in Northern Ireland, whither his parents moved in 1964: ‘A typical ex pat pattern. My father then worked in Belfast as a QBD [Queen’s Bench Division] Master. I was fortunate he was a lawyer. I was around lawyers and knew about law. My ambition was to be a barrister. I was always very interested in history at school. History is what people do, the problems they face, the resolutions to those problems. Law is much the same, looking as it does into people’s personal and business lives.
‘A chance remark made to my father by an appeal justice inspired my choice of university: “They keep on citing textbooks written by Manchester academics!” At Manchester my tutor turned out to be one Brenda Hoggett [Lady Hale].’ He enjoyed international law and jurisprudence, left with a first and was called in Northern Ireland in 1977. ‘At that stage I wasn’t certain whether I wanted to stay in Northern Ireland or practise in London. I had joined Lincoln’s Inn as a student, and in summer ’78 I did a mini pupillage in a London Chancery set. The people were pleasant and kind but there was less court-based work and the experience confirmed my decision to stay in Northern Ireland. It’s where my heart lies.
‘I thought I could succeed as a barrister but was not quite sure. I thought to myself: give it five years, see if it works ...’ It worked, and at the end of the five years he got married. ‘My wife, Nicola, was someone else with an ex-pat upbringing.’ They have two children. ‘Her father, John Skrine, had started a law firm in Kuala Lumpur. It’s still thriving. He tried unsuccessfully to persuade me to move to Hong Kong.
‘In Northern Ireland you’d go out to every courtroom in the province. There was a lot of driving around to magistrates’ courts and county courts. You’d get to know the different social attitudes found in places like Enniskillen, Derry and Ballymena and how law is conducted differently in different places. That’s an important and sometimes overlooked part of law. Barristers have to have an affinity with both sides of the question. If you can’t understand the other side, how can you present your own? The same applies to judges. The Northern Irish Bar doesn’t have chambers. It’s like Edinburgh and Dublin. We were all based in the Bar Library in Belfast, all independent practitioners, in those days 220 of us. Now it’s about 700. It was a real library, with books, desks and – perhaps unlike a normal library – lots of noise. We could work flexibly, conducting consultations at home and even signing opinions on home notepaper. We were all in the same building, pursuing the same interests, comparing notes on what was happening in the various courtrooms, discussing problems and helping each other. I was attached to an experienced barrister for my 12 months’ pupillage. The group included politicians of many colours: Ulster Unionists, SDLP and Alliance, and people of different backgrounds and religions. I was frequently junior to someone who was regularly interviewed on the BBC over lunchtime. Many barristers were heavily involved in their local communities, as I later saw when serving on the Northern Ireland Judicial Appointments Commission.’
He contrasts the Bar Library system with the position in England and Wales. ‘For those who are lucky enough to get a place in chambers the extent of their practice is already to some extent limited in scope. In Northern Ireland you do everything you can possibly lay your hands on until you find that solicitors are returning to instruct you regularly on certain topics. I became a retained counsel for an insurer. This led to personal injury cases, including industrial deafness for defendants, med neg, building and construction and planning. I also did defamation, broadcasts and elections, patents and trademarks.’ He took silk in 1996 and later joined the government’s civil panel where he took cases under the new regime to recover the proceeds of crime. He was also elected as Vice Chair of the Bar of Northern Ireland and served on the Bar Council.
‘At that stage I wasn’t necessarily seeing the judiciary as a career aim. I wanted to succeed as a barrister, to do the job well. The Bar is a treadmill from one week to the next. It is important to raise your eyes and look ahead. I got to a point where I wanted to make a change; so I applied to be a High Court judge in Northern Ireland. I might have done something different. At the Bar I was a generalist. I had to pick up new topics quickly. Judges too have to be generalists.’ He joined the High Court in 2007. In the following year he was assigned to the Family Division. ‘All judges should serve for a time in Family. I gained an insight into how children are impacted by diverse areas of law. For example, on a bail application I learned always to enquire into the impact on any children involved.
‘As a Family judge I was immediately assigned to Hague Convention work on the civil aspects of international child abduction. I went to international conferences, discussed problems with other judges and helped revise and update the explanatory protocols around the Convention which could then be relied upon in litigation. I could use my contacts in the Hague Convention network across the world to ensure that the appropriate courts and bodies became involved in urgent cases, as these ones almost always are. What might be called the “nuts and bolts” can be vital.’ He gives an example of a case where a father had abducted a child to Northern Ireland from the South ‘as he said, “to get British justice”. The father had felt that the child was suffering from non-accidental injury caused by the mother. I listed it immediately, as was my practice, and gave directions. The child was taken into care in Northern Ireland and moved to hospital for medical examination. The injuries were diagnosed as accidental. There were police reports and liaison with the judge in the South. Within a week the child was being returned to their mother in the South.’
He was assigned to the Queen’s Bench Division in 2014. Appointments followed to the Northern Ireland Court of Appeal in 2017, from where he once sat in the Privy Council, and then to the Supreme Court in 2020. ‘We are a happy ship. There is a concern to get it right, knowing we are the final tribunal and that our decisions have a major impact not just on the case in front of us but also on other cases and people. We all bring different things to the table. I can recognise different strengths in others round the table.’
Has he received any feedback on what they think of him? ‘I haven’t the faintest idea what they think I bring; I’ve never asked them. In essence our collegiality precludes our asking that question among ourselves. I tend to be interventionist during hearings. In order to decide a case you have to understand it, and that may mean asking questions and testing arguments. NI judges tend to be more interventionist. But I recognise that this can be upsetting to litigants, especially if they see all the justices descending on their counsel at the same time. So we have to be careful. But remember, our job is to find the answer.’
Under Lord Reed the court’s processes remain broadly unchanged. The Justices still go round the table in reverse order of seniority to offer their opinions at the conclusion of a case. They are heard in respectful silence. ‘Sometimes someone expresses a view and no one agrees.’ After discussion the presiding Justice decides who is going to be asked to write the judgment. ‘It’s a journey of a thousand miles sometimes. Drafts can go through a number of iterations. We get a lot of assistance from our judicial assistants. Then the draft comes back to the panel for a final view. I have rarely needed to dissent but I did in General Dynamics v Libya and Lord Briggs agreed with me.’ [A 2021 case about State Immunity and the enforcement of arbitral awards against States.]
How well is the court working? ‘Collegiality is a major plus. We perform well in getting out our judgments, our core work; also in developing contacts with other courts and justices. Our IT is good. We are behind the ball on diversity. We make major efforts to promote it, mentoring and bringing on people of talent. There is more to do.’
What does he see as good advocacy before the court? ‘Have the basic architecture ready. In order to be persuasive you have to be understood. The bells and whistles come later. Identify the central issue. If the judge asks a question, it should be answered immediately. You must anticipate what is going to concern a judge, so prepare and have the absolute response, whether good, bad or indifferent. Keep the written work as short as possible, not hifalutin.’
Advice to those starting out? ‘There is risk in any profession, so don’t be naïve about it. But as a barrister you get a great opportunity to see into and assist in the lives of others, so there is great emotional reward, and if successful there are financial rewards.’
His father was a Dublin-born British public servant and committed Unionist, his father before him a committed Irish nationalist who played a significant role in Irish history as secretary of the 1922 Constitution Committee in the middle of the Irish Civil War. ‘It may not surprise you that I am politically neutral,’ says Lord Stephens of Creevyloughgare, Supreme Court Justice since 2020. Why Creevyloughgare? ‘It’s my home, “the place of trees beside a narrow lake”.’
Lord Stephens’ father qualified as barrister in Dublin and later joined the British Colonial Legal Service, enjoying postings to Nigeria and Malta, returning to County Wicklow in 1962, when Ben was seven. That same year Ben was sent to boarding school in Buckinghamshire and later in Northern Ireland, whither his parents moved in 1964: ‘A typical ex pat pattern. My father then worked in Belfast as a QBD [Queen’s Bench Division] Master. I was fortunate he was a lawyer. I was around lawyers and knew about law. My ambition was to be a barrister. I was always very interested in history at school. History is what people do, the problems they face, the resolutions to those problems. Law is much the same, looking as it does into people’s personal and business lives.
‘A chance remark made to my father by an appeal justice inspired my choice of university: “They keep on citing textbooks written by Manchester academics!” At Manchester my tutor turned out to be one Brenda Hoggett [Lady Hale].’ He enjoyed international law and jurisprudence, left with a first and was called in Northern Ireland in 1977. ‘At that stage I wasn’t certain whether I wanted to stay in Northern Ireland or practise in London. I had joined Lincoln’s Inn as a student, and in summer ’78 I did a mini pupillage in a London Chancery set. The people were pleasant and kind but there was less court-based work and the experience confirmed my decision to stay in Northern Ireland. It’s where my heart lies.
‘I thought I could succeed as a barrister but was not quite sure. I thought to myself: give it five years, see if it works ...’ It worked, and at the end of the five years he got married. ‘My wife, Nicola, was someone else with an ex-pat upbringing.’ They have two children. ‘Her father, John Skrine, had started a law firm in Kuala Lumpur. It’s still thriving. He tried unsuccessfully to persuade me to move to Hong Kong.
‘In Northern Ireland you’d go out to every courtroom in the province. There was a lot of driving around to magistrates’ courts and county courts. You’d get to know the different social attitudes found in places like Enniskillen, Derry and Ballymena and how law is conducted differently in different places. That’s an important and sometimes overlooked part of law. Barristers have to have an affinity with both sides of the question. If you can’t understand the other side, how can you present your own? The same applies to judges. The Northern Irish Bar doesn’t have chambers. It’s like Edinburgh and Dublin. We were all based in the Bar Library in Belfast, all independent practitioners, in those days 220 of us. Now it’s about 700. It was a real library, with books, desks and – perhaps unlike a normal library – lots of noise. We could work flexibly, conducting consultations at home and even signing opinions on home notepaper. We were all in the same building, pursuing the same interests, comparing notes on what was happening in the various courtrooms, discussing problems and helping each other. I was attached to an experienced barrister for my 12 months’ pupillage. The group included politicians of many colours: Ulster Unionists, SDLP and Alliance, and people of different backgrounds and religions. I was frequently junior to someone who was regularly interviewed on the BBC over lunchtime. Many barristers were heavily involved in their local communities, as I later saw when serving on the Northern Ireland Judicial Appointments Commission.’
He contrasts the Bar Library system with the position in England and Wales. ‘For those who are lucky enough to get a place in chambers the extent of their practice is already to some extent limited in scope. In Northern Ireland you do everything you can possibly lay your hands on until you find that solicitors are returning to instruct you regularly on certain topics. I became a retained counsel for an insurer. This led to personal injury cases, including industrial deafness for defendants, med neg, building and construction and planning. I also did defamation, broadcasts and elections, patents and trademarks.’ He took silk in 1996 and later joined the government’s civil panel where he took cases under the new regime to recover the proceeds of crime. He was also elected as Vice Chair of the Bar of Northern Ireland and served on the Bar Council.
‘At that stage I wasn’t necessarily seeing the judiciary as a career aim. I wanted to succeed as a barrister, to do the job well. The Bar is a treadmill from one week to the next. It is important to raise your eyes and look ahead. I got to a point where I wanted to make a change; so I applied to be a High Court judge in Northern Ireland. I might have done something different. At the Bar I was a generalist. I had to pick up new topics quickly. Judges too have to be generalists.’ He joined the High Court in 2007. In the following year he was assigned to the Family Division. ‘All judges should serve for a time in Family. I gained an insight into how children are impacted by diverse areas of law. For example, on a bail application I learned always to enquire into the impact on any children involved.
‘As a Family judge I was immediately assigned to Hague Convention work on the civil aspects of international child abduction. I went to international conferences, discussed problems with other judges and helped revise and update the explanatory protocols around the Convention which could then be relied upon in litigation. I could use my contacts in the Hague Convention network across the world to ensure that the appropriate courts and bodies became involved in urgent cases, as these ones almost always are. What might be called the “nuts and bolts” can be vital.’ He gives an example of a case where a father had abducted a child to Northern Ireland from the South ‘as he said, “to get British justice”. The father had felt that the child was suffering from non-accidental injury caused by the mother. I listed it immediately, as was my practice, and gave directions. The child was taken into care in Northern Ireland and moved to hospital for medical examination. The injuries were diagnosed as accidental. There were police reports and liaison with the judge in the South. Within a week the child was being returned to their mother in the South.’
He was assigned to the Queen’s Bench Division in 2014. Appointments followed to the Northern Ireland Court of Appeal in 2017, from where he once sat in the Privy Council, and then to the Supreme Court in 2020. ‘We are a happy ship. There is a concern to get it right, knowing we are the final tribunal and that our decisions have a major impact not just on the case in front of us but also on other cases and people. We all bring different things to the table. I can recognise different strengths in others round the table.’
Has he received any feedback on what they think of him? ‘I haven’t the faintest idea what they think I bring; I’ve never asked them. In essence our collegiality precludes our asking that question among ourselves. I tend to be interventionist during hearings. In order to decide a case you have to understand it, and that may mean asking questions and testing arguments. NI judges tend to be more interventionist. But I recognise that this can be upsetting to litigants, especially if they see all the justices descending on their counsel at the same time. So we have to be careful. But remember, our job is to find the answer.’
Under Lord Reed the court’s processes remain broadly unchanged. The Justices still go round the table in reverse order of seniority to offer their opinions at the conclusion of a case. They are heard in respectful silence. ‘Sometimes someone expresses a view and no one agrees.’ After discussion the presiding Justice decides who is going to be asked to write the judgment. ‘It’s a journey of a thousand miles sometimes. Drafts can go through a number of iterations. We get a lot of assistance from our judicial assistants. Then the draft comes back to the panel for a final view. I have rarely needed to dissent but I did in General Dynamics v Libya and Lord Briggs agreed with me.’ [A 2021 case about State Immunity and the enforcement of arbitral awards against States.]
How well is the court working? ‘Collegiality is a major plus. We perform well in getting out our judgments, our core work; also in developing contacts with other courts and justices. Our IT is good. We are behind the ball on diversity. We make major efforts to promote it, mentoring and bringing on people of talent. There is more to do.’
What does he see as good advocacy before the court? ‘Have the basic architecture ready. In order to be persuasive you have to be understood. The bells and whistles come later. Identify the central issue. If the judge asks a question, it should be answered immediately. You must anticipate what is going to concern a judge, so prepare and have the absolute response, whether good, bad or indifferent. Keep the written work as short as possible, not hifalutin.’
Advice to those starting out? ‘There is risk in any profession, so don’t be naïve about it. But as a barrister you get a great opportunity to see into and assist in the lives of others, so there is great emotional reward, and if successful there are financial rewards.’
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