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The growing influence of Welsh law, language and legal expertise, career ‘lucky breaks’ and what makes good advocacy - the Supreme Court Justice talks to Anthony Inglese CB
‘I miss being in the building, miss my colleagues and the conversations we have with each other. I last sat with my fellow Justices in person in a case on 17 March 2020. Before I left the building that evening, I wondered how long it would be before we would be back together. It never occurred to me it would be so long.’
Lord Lloyd-Jones is musing on the Supreme Court’s experience of online justice since the March ’20 lockdown.
‘The Bar has adapted admirably to presenting cases online. We became a paperless court over a weekend, served extremely well by our technical team, and dealt with our normal number of cases for the year, while hardly missing a step. We were, of course, already hearing some of our Privy Council appeals online, so the experience wasn’t completely new to us.’
Lord Lloyd-Jones, appointed to the Supreme Court in 2017, now regularly chairs hearings. ‘There is a school of thought that one shouldn’t discuss the case at all until one has produced one’s judgment. But this loses the benefit of the exchange of views, and in any event the Justices don’t shrink from disagreeing with each other. Before the start of a case we briefly meet to identify the main issues. At the conclusion we still follow the practice of offering our views in reverse order of seniority. Where there is to be a single judgment, who gets to write it? It’s usually a combination of subject-matter expertise, personal interest and individual workload. Everyone is always free to write their own judgment or add a supplementary judgment. Writing judgments without hard copy bundles takes longer.’
As Welsh law continues to increase in significance post-devolution, Lord Lloyd-Jones brings important Welsh language and legal expertise to the court. ‘I was brought up in a bilingual home near Pontypridd by highly supportive parents. I was ‘David Lloyd Jones’, without any hyphen. My mother’s maiden name had been ‘Lloyd-Jones’. When I joined the Supreme Court I was told I had to take the hyphen to avoid confusion with the younger son of a Duke. Had my parents been alive at that point, they would have been greatly amused. I attended the local village school and then Pontypridd Boys’ Grammar School, a great school, which gave me an appreciation of literature and music that has brought me great pleasure throughout my life. I still play the piano at home when there is no one around to hear me.
‘But, having had my university and Bar career in England, I lost the greater part of my Welsh language skills. When I became presiding judge in Wales in 2008, I worked hard to improve them.’ At the same time he was appointed chairman of the Lord Chancellor’s Standing Committee on the Welsh Language. ‘Welsh is well up to the task of being used in legislation, the courtroom and in discussions on law reform. Wales used to have its own sophisticated set of laws as far back as the so-called Dark Ages. Welsh customary law was codified as early as the tenth century. It was formally abolished by the Tudor Acts of Union but since devolution it has become meaningful once again to speak of Welsh law as a living system of law.’
His later three-year spell as chairman of the Law Commission gave him influence over law reform in Wales and England. ‘At the same time in 2012 I was appointed to the Court of Appeal. I was particularly proud of the Commission’s project on codifying sentencing procedure, which we launched in 2015. Inspired and led by Professor David Ormerod QC, it has now been enacted in the Sentencing Act 2020. It will make a huge difference for the good. Overall in my time we completed 22 projects; ten projects were enacted by Parliament and two by the Welsh Assembly.
‘There is a problem of the accessibility of legislation in Wales. One result of the different stages of devolution is that it is not always clear where powers reside. Legislation can be amended by the UK Parliament and by the Senedd, the Welsh Parliament, formerly the Welsh Assembly. Some sections of an Act may apply to England only, some to Wales only and some to both. The traditional style of amendment is to set out the amendment but not to give the amended text. Its sheer volume and complexity makes Welsh legislation inaccessible. For example, the law on education in Wales is contained in up to 40 Acts of Parliament, seven Assembly Measures, six Assembly Acts and hundreds of subordinate instruments. At the Law Commission we made recommendations for the codification of primary legislation. Nearly all were accepted by the Welsh Ministers, who agreed to a programme of codification and consolidation of all legislation, primary and secondary. As a result the Assembly passed the Legislation (Wales) Act 2019. In addition we secured in Westminster an amendment to the Law Commissions Act 1965 so that the Welsh government can refer law reform projects directly to the Law Commission.’
After school Lord Lloyd-Jones read law at Downing College, Cambridge. ‘I really enjoyed international law and developed this interest further in my postgraduate year while at the same time myself teaching undergraduates. At the end of that year I went to sit my postgraduate exams, looked across the hall and saw my undergraduate students, who had come to sit their exams. Were they somewhat disconcerted at the thought that they were being taught by someone who appeared to be taking the same exam as them?
‘While an undergraduate I suppose I expected that I would return to Wales to be a solicitor.’ During his postgraduate year, however, he decided to go for the Bar. ‘I thought it would provide more scope for me to develop in the profession.’ After a pupillage and finding a tenancy at Farrar’s Building (he later moved to Brick Court Chambers), he was offered a teaching fellowship at Downing. ‘I had two careers for 16 years. I taught at weekends – contract, commercial law and public international law. Hard work, but I loved it. Eventually the time came when I had to opt for one or the other. That was 1991. My academic background did, however, help me later at the Law Commission, which was a wonderful combination of the academic and the practical.’
Back at Brick Court the redoubtable clerk, Ron Burley, had initially been ‘sceptical of EU law until he saw its fee-earning potential. EU law was good for Chambers. The Bar was slow off the mark in getting into it, but David Vaughan QC was a trailblazer. I picked it up as I went along and was instructed in some leading cases, including by the European Commission and the UK government.
‘My longstanding interest in public international law helped also in government cases connected with foreign relations law. Then one day I found myself on the government panel. I don’t know how I got there. I have often wondered!’
A ‘lucky break because I was still a junior’ came in 1998 when he was appointed by the Attorney General to act as advocate to the court – formerly amicus curiae – in the headline-grabbing Pinochet case concerning whether the former dictator of Chile should be extradited from the UK to Spain to face charges of torture allegedly committed while head of state in Chile or whether he was immune as a former head of state.
‘I came in late – on the Friday evening, five days before the hearing in the Lords. It was our children’s half term and I was working at home. I had a set of International Law Reports at home and was able to submit my written case on time. The whole process was repeated after the first judgment was set aside. As amicus I was not speaking on instructions: I was there at the request of the Appellate Committee to help by ensuring that all arguments were presented to them and all relevant materials put before them.’
At and after the time he took silk in 1999, he represented interested parties in two notable public inquiries – Bloody Sunday and Hutton – but ‘I preferred my court work because it had more legal content’.
What is good advocacy? ‘The Justices want the atmosphere at our hearings to be that of a civilised seminar – it’s nerve wracking enough for counsel without having to face a combative court. We see brilliant advocacy, even online. Everyone has to develop their own style of advocacy. Don’t imitate others. For me, Sir Sydney Kentridge QC was the finest advocate of all; he could persuade me of almost anything. Advocacy is an extension of character: Sir Sydney is a great human being as well as a great advocate. Help the court; suggest a route to the answer and the advantages of it. Now that hearings are shorter, written advocacy is assuming even greater importance. Be as concise as you reasonably can: if 50 pages is the limit, don’t feel you have to write 50.’
Advice to those starting out? ‘It’s a great profession; a thrilling and rewarding career. I enjoyed my time at the Bar enormously. Stick at it; persevere if you have a sense of vocation. I realise what a tough time entrants are having at the moment. The Bar is doing great work in relieving hardship amongst young barristers and students. It is important that the number of scholarships and pupillages is maintained because the future of the Bar depends on it.’
Anthony Inglese CB was head of legal in five Government Legal Departments over a 38-year career, most recently as General Counsel and Solicitor to HM Revenue & Customs. A Bencher of Gray’s Inn, he now trains and mentors lawyers.
‘I miss being in the building, miss my colleagues and the conversations we have with each other. I last sat with my fellow Justices in person in a case on 17 March 2020. Before I left the building that evening, I wondered how long it would be before we would be back together. It never occurred to me it would be so long.’
Lord Lloyd-Jones is musing on the Supreme Court’s experience of online justice since the March ’20 lockdown.
‘The Bar has adapted admirably to presenting cases online. We became a paperless court over a weekend, served extremely well by our technical team, and dealt with our normal number of cases for the year, while hardly missing a step. We were, of course, already hearing some of our Privy Council appeals online, so the experience wasn’t completely new to us.’
Lord Lloyd-Jones, appointed to the Supreme Court in 2017, now regularly chairs hearings. ‘There is a school of thought that one shouldn’t discuss the case at all until one has produced one’s judgment. But this loses the benefit of the exchange of views, and in any event the Justices don’t shrink from disagreeing with each other. Before the start of a case we briefly meet to identify the main issues. At the conclusion we still follow the practice of offering our views in reverse order of seniority. Where there is to be a single judgment, who gets to write it? It’s usually a combination of subject-matter expertise, personal interest and individual workload. Everyone is always free to write their own judgment or add a supplementary judgment. Writing judgments without hard copy bundles takes longer.’
As Welsh law continues to increase in significance post-devolution, Lord Lloyd-Jones brings important Welsh language and legal expertise to the court. ‘I was brought up in a bilingual home near Pontypridd by highly supportive parents. I was ‘David Lloyd Jones’, without any hyphen. My mother’s maiden name had been ‘Lloyd-Jones’. When I joined the Supreme Court I was told I had to take the hyphen to avoid confusion with the younger son of a Duke. Had my parents been alive at that point, they would have been greatly amused. I attended the local village school and then Pontypridd Boys’ Grammar School, a great school, which gave me an appreciation of literature and music that has brought me great pleasure throughout my life. I still play the piano at home when there is no one around to hear me.
‘But, having had my university and Bar career in England, I lost the greater part of my Welsh language skills. When I became presiding judge in Wales in 2008, I worked hard to improve them.’ At the same time he was appointed chairman of the Lord Chancellor’s Standing Committee on the Welsh Language. ‘Welsh is well up to the task of being used in legislation, the courtroom and in discussions on law reform. Wales used to have its own sophisticated set of laws as far back as the so-called Dark Ages. Welsh customary law was codified as early as the tenth century. It was formally abolished by the Tudor Acts of Union but since devolution it has become meaningful once again to speak of Welsh law as a living system of law.’
His later three-year spell as chairman of the Law Commission gave him influence over law reform in Wales and England. ‘At the same time in 2012 I was appointed to the Court of Appeal. I was particularly proud of the Commission’s project on codifying sentencing procedure, which we launched in 2015. Inspired and led by Professor David Ormerod QC, it has now been enacted in the Sentencing Act 2020. It will make a huge difference for the good. Overall in my time we completed 22 projects; ten projects were enacted by Parliament and two by the Welsh Assembly.
‘There is a problem of the accessibility of legislation in Wales. One result of the different stages of devolution is that it is not always clear where powers reside. Legislation can be amended by the UK Parliament and by the Senedd, the Welsh Parliament, formerly the Welsh Assembly. Some sections of an Act may apply to England only, some to Wales only and some to both. The traditional style of amendment is to set out the amendment but not to give the amended text. Its sheer volume and complexity makes Welsh legislation inaccessible. For example, the law on education in Wales is contained in up to 40 Acts of Parliament, seven Assembly Measures, six Assembly Acts and hundreds of subordinate instruments. At the Law Commission we made recommendations for the codification of primary legislation. Nearly all were accepted by the Welsh Ministers, who agreed to a programme of codification and consolidation of all legislation, primary and secondary. As a result the Assembly passed the Legislation (Wales) Act 2019. In addition we secured in Westminster an amendment to the Law Commissions Act 1965 so that the Welsh government can refer law reform projects directly to the Law Commission.’
After school Lord Lloyd-Jones read law at Downing College, Cambridge. ‘I really enjoyed international law and developed this interest further in my postgraduate year while at the same time myself teaching undergraduates. At the end of that year I went to sit my postgraduate exams, looked across the hall and saw my undergraduate students, who had come to sit their exams. Were they somewhat disconcerted at the thought that they were being taught by someone who appeared to be taking the same exam as them?
‘While an undergraduate I suppose I expected that I would return to Wales to be a solicitor.’ During his postgraduate year, however, he decided to go for the Bar. ‘I thought it would provide more scope for me to develop in the profession.’ After a pupillage and finding a tenancy at Farrar’s Building (he later moved to Brick Court Chambers), he was offered a teaching fellowship at Downing. ‘I had two careers for 16 years. I taught at weekends – contract, commercial law and public international law. Hard work, but I loved it. Eventually the time came when I had to opt for one or the other. That was 1991. My academic background did, however, help me later at the Law Commission, which was a wonderful combination of the academic and the practical.’
Back at Brick Court the redoubtable clerk, Ron Burley, had initially been ‘sceptical of EU law until he saw its fee-earning potential. EU law was good for Chambers. The Bar was slow off the mark in getting into it, but David Vaughan QC was a trailblazer. I picked it up as I went along and was instructed in some leading cases, including by the European Commission and the UK government.
‘My longstanding interest in public international law helped also in government cases connected with foreign relations law. Then one day I found myself on the government panel. I don’t know how I got there. I have often wondered!’
A ‘lucky break because I was still a junior’ came in 1998 when he was appointed by the Attorney General to act as advocate to the court – formerly amicus curiae – in the headline-grabbing Pinochet case concerning whether the former dictator of Chile should be extradited from the UK to Spain to face charges of torture allegedly committed while head of state in Chile or whether he was immune as a former head of state.
‘I came in late – on the Friday evening, five days before the hearing in the Lords. It was our children’s half term and I was working at home. I had a set of International Law Reports at home and was able to submit my written case on time. The whole process was repeated after the first judgment was set aside. As amicus I was not speaking on instructions: I was there at the request of the Appellate Committee to help by ensuring that all arguments were presented to them and all relevant materials put before them.’
At and after the time he took silk in 1999, he represented interested parties in two notable public inquiries – Bloody Sunday and Hutton – but ‘I preferred my court work because it had more legal content’.
What is good advocacy? ‘The Justices want the atmosphere at our hearings to be that of a civilised seminar – it’s nerve wracking enough for counsel without having to face a combative court. We see brilliant advocacy, even online. Everyone has to develop their own style of advocacy. Don’t imitate others. For me, Sir Sydney Kentridge QC was the finest advocate of all; he could persuade me of almost anything. Advocacy is an extension of character: Sir Sydney is a great human being as well as a great advocate. Help the court; suggest a route to the answer and the advantages of it. Now that hearings are shorter, written advocacy is assuming even greater importance. Be as concise as you reasonably can: if 50 pages is the limit, don’t feel you have to write 50.’
Advice to those starting out? ‘It’s a great profession; a thrilling and rewarding career. I enjoyed my time at the Bar enormously. Stick at it; persevere if you have a sense of vocation. I realise what a tough time entrants are having at the moment. The Bar is doing great work in relieving hardship amongst young barristers and students. It is important that the number of scholarships and pupillages is maintained because the future of the Bar depends on it.’
The growing influence of Welsh law, language and legal expertise, career ‘lucky breaks’ and what makes good advocacy - the Supreme Court Justice talks to Anthony Inglese CB
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