Interview: Lord Kerr

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The Supreme Court is dominated by Oxbridge graduates, but Lord Kerr is the one exception to what otherwise would have been a rule. He eschews the title of ‘the only supreme court justice not to be educated at Oxbridge’, preferring to be introduced as ‘the only justice that has had the good fortune to be educated at Queen’s University, Belfast’. This is a man proud of that which marks him out. Though holding himself with all the confidence and earned authority of anyone who has had a successful and distinguished legal career – and one which has seen him rise to sit in the highest court in the land – Lord Kerr makes some significant breaks with this mold. His accent has been largely ‘neutralised’ by time spent in London but the occasional Irish twang gives away his Armagh heritage: he cut his legal teeth in a Northern Ireland racked by The Troubles. As a Supreme court judge, he has dissented against the decisions of his colleagues in several high profile cases.

I spoke to Lord Kerr after he had given a talk to the Bar Society in which he explained why he thought that his fellow justices had been mistaken in two recent and significant decisions. In the questions session after the talk, Oxford’s brightest budding barristers took turns to probe further into Lord Kerr’s reasoning. The set-up became something like an inverted tutorial in which undergraduates came up with their best attempts to prod the expert into a corner. But all attempts to challenge or undermine were met with convincing responses. Musing later on his grilling with students, the judge declared ‘that’s the best part of the evening. Thought provoking and interesting questions are very welcome.’ This was no attempt at politeness. It was clear to all those in attendance that Lord Kerr relished the chance to engage in some debate. Even when going over ground he had doubtless covered on several previous occasions and, as he confided to me, with a stomach grumbling for an overdue dinner, he answered questions directly and with all the precision one might expect from a man of his office. And how did the Oxford students match up to the audiences of legal professionals he ordinarily addresses? ‘It was of a very high standard’ he said, though the questions he receives from legally trained groups are often ‘somewhat more penetrating’.

Lord Kerr was called to the bar in Northern Ireland in 1970, as violence there reached its peak. In his first years as a barrister, deaths from the conflict were in their hundreds and the infamous ‘Bloody Sunday’ shootings took place. What was it like to operate as a barrister in those times? ‘It was wonderful.’ he answers, without hesitancy. This was one statement not followed by the customary qualification and refinement of someone whose every utterance is targeted with utmost precision. ‘We went through some difficult times,’ he acknowledges. But ‘law developed very rapidly in the 1970s and 1980s in Northern Ireland, partly as a consequence of the troubled times in which our society was living, and there were many challenges that were a consequence of the troubles.’ He recognises that work done by barristers was ‘vital in the maintenance of the rule of law in Northern Ireland’ and adds, modestly, that ‘to have had the privilege of contributing to that, in however small a way, was a very rewarding aspect of the job we did’.

Moving on to current day issues, he refuses to speculate as to whether the constitutional questions thrown up by Scottish independence may see a case come to the Supreme court. ‘I haven’t a clue as to whether it will happen. If it does, I’ll look forward with great interest to it and I hope that I will be on the panel that deals with it. It promises to be, though I have a very far from perfect understanding on all of the issues, a very interesting, intensely important, constitutional case.’ I try to push him to comment on the suggestion that such a case might have ramifications for his home country. ‘I can’t see at the moment that that is to be anticipated.’ Consciously not being drawn into what he calls ‘the political character of that question’, he keeps his distance. ‘I’m simply not in a position, nor would it be proper for me to answer it. I have no idea what the political resonances might be for Northern Ireland.’ Lord Kerr’s willingness to run contrary to the trend does not extend as far as to comment on political matters. An awareness of how his comments might be perceived was also apparent when I asked him whether we should care or be concerned that all Supreme Court justices other than himself were Oxbridge educated. ‘I really don’t think that where you are educated is going to mark you out as being more or less qualified or is important as a Supreme Court justice. What is important is that we have a judicial [branch], at all the tiers, that is as diverse as it can be, provided one keeps faith with the absolute abiding requirement that appointment must be on merit.’

There is a limit to the extent to which it makes sense to characterise Lord Kerr as an unconventional figure. Relative to the institution he inhabits, perhaps, but in absolute terms, this judge remains very much in the spirit of a legal system based, in many respects, around tradition. This is perfectly captured by my final contrast. Lord Kerr is the youngest of the Supreme Court justices. He is also 66.

-David Sturrock