Viewpoints: Lord Justice Singh

One of the first things one learns on meeting Lord Justice Singh is the importance of American history and constitutional law to his thinking as a barrister and now a judge. Those traditions clearly stood behind some of his own recent judgments. Constitutionality: R (National Council for Civil Liberties (Liberty)) v Home Secretary [2018] EWHC 975 (Admin) (‘the fundamental question of what exactly is the nature and extent of the incompatibility of national legislation with directly effective EU law?’). Equality before the law: R (Citizens UK) v Home Secretary [2018] EWCA Civ 1812 (the duty to act fairly is the duty ‘to permit a person to know whether they have any basis for mounting a legal challenge to a decision and to enable a court or tribunal to assess whether the decision is wrong’). The social and political context of law itself: R (Adath Yisroel Burial Society) v HM Senior Coroner for Inner North London [2018] EWHC 969 (Admin) (the kind of society envisaged by the ECHR ‘is a society which is characterised by pluralism, tolerance and broad-mindedness’). What links these cases as well is the court’s right to hold those in power to account. His convictions go back to his earliest days as a student.

‘At school my classics teachers wanted me to read classics and my history teachers wanted me to read history and I loved both and couldn’t decide what to do,’ so he opted for law, reckoning that he could still read Greek and history ‘on the margins’. At Cambridge he became aware of the work of Professor Frank Newman at Boalt Hall law school at the University of California at Berkeley. Human rights were not really taught at British universities then, but Professor Newman was the ‘co-author of what at that time was the first book’ on international human rights law in the English-speaking world. When Lord Justice Singh was awarded a Harkness Fellowship he accepted a place at Berkeley and was taught by Professor Newman, whom he describes as ‘a very inspirational figure’.

‘What I received at Cambridge was a very good technical legal education – which is very important and one must not lose sight of that – but what I received in America I think nicely complemented that; they tend to think of law in its social and political context.’ American legal thinking continues to play a part in his own viewpoint. In November 2018 he gave the inaugural Sir Mota Singh Memorial Lecture at Lincoln’s Inn on ‘Racial Equality and the Law’. While setting out the history of the law against discrimination in the United Kingdom, he outlined in detail the American experience. He did so because it showed ‘both the limits of law and also its potential in combating racial discrimination’ and because it influenced the development of law in this country. In reviewing the successive Acts of Parliament he said that they had a ‘purpose and effect which went beyond the mere creation of legal rights and duties... It was a piece of social legislation which had an important symbolic effect’ in setting out ‘a fundamental value in our society’.

Having studied American constitutional law, he, in common with the other British lawyers who had, found himself at an advantage when the Human Rights Act was brought into effect. As the British judiciary found its way through this new world, American case law played a part in influencing the House of Lords. The obvious example was ‘the Belmarsh case’, A (and others) v Home Secretary [2004] UKHL 56, where Lord Bingham cited with approval what he called the ‘well known’ judgment of Justice Jackson of the US Supreme Court in Railway Express Agency Inc v New York (1949). That was an authority on forbidding discrimination. Justice Jackson (whom Lord Justice Singh admitted was actually little known in this country) stated ‘there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally’. In fact, it was Lord Justice Singh himself, as one of the counsel instructed by Liberty, who brought the case to the attention of the House of Lords.

He quickly points out, though, that in addition to appearing on behalf of terrorist suspects and for non-government organisations like Liberty, he also appeared for the government. This included the case involving the right of serving prisoners to vote (Hirst v UK ECHR App no. 74025/01). He is a passionate believer in our system in which independent barristers appear for either side. ‘I regard it as a fundamental feature of our system and this society’s culture that goes beyond strictly legal considerations’ that when the government goes to court here or the ECJ or the ECHR in Strasbourg, it is represented by an independent member of the Bar. ‘I don’t think people in this country appreciate how this is almost unique in the world.’ And in general, we have a good record in this country for compliance with judgments of domestic and international courts and this is what one would expect because ‘this a very old, stable democracy which respects the rule of law’.

"The important thing for a judge is to have curiosity about the world and all the different people who live in it... understanding what the context is to the problem before you."

As for his own role now: ‘I think the important thing for a judge is to have curiosity about the world and all the different people who live in it.’ This does not have a direct influence on how one decides a case ‘but it is about understanding what the context is to the problem before you... I firmly believe that the most important person in the courtroom is a losing party because they must leave the courtroom feeling that although they have lost, they have had a fair hearing.’

His own curiosity about the world began when he was young. As a student he took to heart Lord Denning’s advice that since the lawyer’s trade is words, it was important to be as widely read as possible. An avid reader and play-goer, Lord Justice Singh finds that literature enables us ‘to understand the world from different people’s perspective’, and since judges do not always have direct experience of what life is like for some litigants it is important to imagine what the world might be like for them. He greatly admires authors who can put themselves into the character of someone completely different.

As a student he started with the plays of Shakespeare and particularly recommends Mark Antony’s famous speech in Julius Caesar for ‘how he phrases certain [passages]; the word order can be highly significant’. He also read The Penguin Book of 20th Century Speeches, although he appreciates that styles of public speaking have changed hugely. Nowadays it is more colloquial. When presiding over criminal trials he has seen some of the finest advocates speak to a jury in a conversational but not patronising manner. As a young advocate he would sit in court awaiting his turn and watch some of the leading advocates in his field: ‘You will never be able to imitate other people’s styles [but] some things are absorbed by osmosis’ as to what is good and not good advocacy. When pressed for other favourites, he cited Barchester Towers. Trollope ‘has so many insights... I find it both amusing and conveying a certain truth about humanity.’

He retains his love of Greek tragedy and proudly noted that in London in 2015 there were three major productions of Euripides’ Medea and of Sophocles’ Electra and Antigone. That this happened 2,500 years after they were written ‘speaks volumes’ about their timelessness. Closer to our own time, American plays of the 20th century have been important in his life (he started on Eugene O’Neill and Arthur Miller at school). He finds the most important of these to be Death of a Salesman which he last saw with his favourite actor, Antony Sher.

As our talk concludes, he mentions with anticipation not an upcoming judgment but a talk he will be giving in March to Lawyers for Classics, part of Classics for All which promotes the education of Latin and Greek, especially for children who have not had that experience at school. His speech, ‘Antigone’s Law’, will deal with both ‘the importance of the play to me and its relationship to my thinking about the law’. When he addressed the Society of Legal Scholars in 2013, he advised students to gain an understanding of the place of law ‘in its historical and social setting [to] appreciate how we got where we are and the way in which the law responds to social problems.’ In this Lord Justice Singh has led from the front. 

Mark Antony’s famous speech in Julius Caesar is recommended for ‘how he phrases certain passages; the word order can be highly significant’.

David Wurtzel practised at the criminal Bar for 27 years and is an honorary door tenant at 18 Red Lion Court. Prior to his retirement, he was a consultant in the CPD department at City Law School and consultant editor of Counsel. David is a member of the Counsel Editorial Board.