Settling down to hear Public Law Project’s challenge to government plans for a legal aid residence test, Supreme Court president Lord Neuberger told counsel: ‘The way we would like to proceed is to hear you both on the ultra vires issue and then see what we’ve got.’

Little did anyone in court think ‘and then see’ could mean ‘rule on the spot’. For that is exactly what happened a little over five hours later, when the justices abruptly ruled against the Ministry of Justice.

Obiter’s unworthy suspicion was that there must have been something good on the telly that night. But perhaps the seven justices were inspired by Neuberger’s address to the International Council of Advocates and Barristers in Edinburgh a couple of days previously. Along with a routine plea for more diversity and technology on the bench, Neuberger used the speech to contrast the robust approach of the common-law judiciary with that of colleagues across the channel.

Recalling his first visit to the European Court of Justice in Luxembourg, Neuberger said he attended a hearing at which each party was listened to in silence, ‘after which the judges put, I think, one question, which was not really answered by the advocate’. Over lunch, he was asked for his impression, which amounted to the observation that the hearings ‘had been unexciting to the point of being soporifically leaden’.

The reaction was a mixture of amusement and shock: ‘The amused judges thought that we British judges talked too much and implied we should learn the virtue of silence. Indeed, the Portuguese judge told me that, in his country, it was judicial misconduct for a judge to interrupt an advocate.’

Obviously Neuberger is far too canny an operator to enter into the Brexit referendum debate. But it strikes Obiter that this cultural chasm could usefully be deployed by one side or the other.

Topics