I’ve enjoyed every minute as a barrister and a judge. Two careers. I’ve been privileged.
I didn’t want to be a lawyer. Even when I went to Oxford I didn’t know. I thrashed around, then stumbled into the Bar. I wanted to do something in the real world. My father was always starry-eyed about the Bar. I suspect that came into it too.
It was all haphazard back then. It was: ‘Who do I know?’, if you knew anyone at all. A gentle age. It had more in common with 50 years before its time than it does with today.
I enjoyed the battle. I love the Bar as a profession. You may even be in the same chambers, but that doesn’t stop you from being friends. Because there’s trust, you can fight and whatever the outcome, you’re friends. There’s wonderful comradeship.
Most challenging case? The two that come to mind are both cases during which I was representing the Football Association. One was the Hillsborough inquiry. What was fascinating was the lessons learnt from the process. We had to put forward the proposals for the future of football. It was all done on paper – I didn’t have to appear. I was asked to chair a committee with chairmen of football clubs to put to Lord Taylor for the future of football. Margaret Thatcher was very keen [on reform] because it was in the aftermath of all those riots, including having identity cards. We persuaded Lord Taylor not to do that. I persuaded the committee they should put forward a tenable proposal for dealing with all-seater stadiums because a lot said they were absolutely opposed and the fans would just throw their seats onto the pitch. I had to put forward a reasonable proposal and we did. I felt I made a real contribution.
The other case was a dispute between the Football League and the FA over the setting up of the Premier League. The League was opposed, and there were proceedings for judicial review and in the Chancery Division all at the same time. I represented the FA and we won on all counts. It was challenging but significant because we now have what’s happened since.
A very significant case for me was Peabody v Lindsay Parkinson. It related to whether a duty of care was owed and was reasonable under the circumstances. Was it fair and just? The House of Lords clearly did not want my clients to win that case. They felt it was going too far, but it was difficult for them to do that because under the traditional test of what was reasonable, we would win. So they came up with this test of fair, just and reasonable and we lost. I remember reading the judgment and feeling it marked a watershed, as it clearly proved because it went on to develop further.
As a judge I’ve done lots of human rights cases. It’s strange how the press blow hot and cold about this. When it suits them, they parade human rights and state there have been gross breaches, say in Saudi Arabia, wherever it might be. Then you turn the page and there’s something on how terrible the Strasbourg court is.
There are some judges who try to avoid difficult decisions. I’ve always thought that was a complete dereliction of responsibility.
Lord Neuberger decided to step down [as Master of the Rolls] and it was suggested that I might apply. I was happily ensconced in the Supreme Court, but I’ve always liked a challenge. I would have liked to stay at the Supreme Court longer, but this was when the opportunity came up. There were about six or seven of us applying. That was in 2012. If I’m honest, I liked the idea of being in charge. It would be the only time in my life that I could choose the cases I wanted to hear and how many. I wanted to be master of my own destiny.
I like to think I have been willing to move the law along and am bold but without being silly. There are some judges who try to avoid difficult decisions and try to wrap them up in facts so they can’t be appealed. I’ve always thought that was a complete dereliction of responsibility.
Some judges – you have a good idea of how they’re going to decide a case before they’ve heard it. With me it was probably quite difficult. That’s good – I try to address the issues.
If the Supreme Court had not been created, I don’t think the law would have developed in any different way. Symbolically it’s very important that it’s separate and that it’s called a court, that it’s open to the public and people come in. If the House of Lords continued, the public would not have come in the numbers it has. But that’s just geography. I don’t believe the way the judges do their job is any different.
This idea of calling the judiciary enemies of the people [in the wake of the article 50 case judgment] is totally outrageous. It’s unfair, untrue and shows a complete misunderstanding of the issues in the case, which are purely legal. If they wanted to have a go at the judges in that way, then there are lots of other cases that might give some scope. For example, all these human rights cases where judges are trying to strike a balance between the competing interests: these are not hard-edged issues and so to some extent the judge is likely to be influenced by his or her own world view. But when it comes to the Brexit case, the idea the High Court decided that Parliament must decide this because the High Court are Remainers… that’s completely outrageous.
Liz Truss said nothing [to support the judges], hoping it would go away. And when it didn’t, she came out with some bland, mealy-mouthed statement about judges being independent. That’s completely obvious and didn’t meet the point at all. I’m afraid that was wholly unacceptable as a response.
I’m very concerned about [the rise of populism]. I know when people say, ‘Remember what happened in Germany in the ’30s’, people claim that it’s just scaremongering, but that’s what people said initially in Germany. It was a democracy too. The tyranny of the majority and the power of the demagogue to whip people up is very frightening. I don’t know where we’re heading.
Liz Truss said nothing to support the judges, hoping it would go away. I’m afraid that was wholly unacceptable.
Everyone says Lord Bingham is their biggest influence, but I would add my voice to that chorus. He wasn’t the most radical of judges, but he was the most perfect, both in the way he conducted cases – courteous, fair and efficient – and his judgments are so clear and persuasive. The most important thing he did was set the tone after the Human Rights Act came into force. In those early years he wrote a substantial number of judgments, which are still hugely influential.
Lord Mustill wrote wonderful judgments. The last time I saw him was not that long ago. I gave the Mustill Lecture at the Institute of Arbitrators in Leeds, which was about Brussels regulation. I had no idea the great man was going to come. At the end he stood up and said a few words. He wasn’t well at this time… we had a long chat afterwards. He and I went to the same school in Leeds. He was another hero. That was the last time I saw him… a nice memory.
London has competition, particularly Singapore and maybe Hong Kong. For the moment London is secure because we’ve got the weight of expertise. But we mustn’t rest on our laurels. We must make sure we maintain our position. People like arbitrating here partly because it’s very difficult to appeal an arbitrator’s decision. People say that’s bad because the law gets fossilised and the cases never get to a higher court. I see that, but it’s clear from talking to people that if we open the door, we just lose a lot of business. Yes, they want an expert decision, but businesspeople want a decision that is final, not trundling up through the courts. There’s also the fear London will price itself out of the market.
Is there danger of ‘market failure’ in the Bar if people don’t want to join? Absolutely. There’s lots of people attracted to criminal law, but it just doesn’t pay. I am concerned for the future of the criminal Bar.
When I was on the bench, the expectation was the successful silks would become High Court judges. In those days it was the tap on the shoulder and very few said: ‘No thank you.’ Now a large percentage of top silks don’t want it. The danger is being a High Court judge will no longer be seen as a badge of honour.
I’ve been married for over 46 years, so that’s quite good. I have a passion for music. I play the piano – I agreed to do a recital for Middle Temple and I’m so nervous. I sing in a choir. We love walking too – we go on walking holidays. I have worked hard throughout my life and, now I’m approaching retirement, I’ve come back to my old chambers. I want to do some arbitrating and mediating. I don’t want to work flat out, but I’d like to be busy doing cases. I still have something to give.
The Bar is an all-consuming profession. My advice: think about a work-life balance.
John Dyson is a tenant at 39 Essex Chambers. He was formerly Master of the Rolls and a Supreme Court Justice