Submitted by: Peter Donnelly of the Gown Independant Newspaper at QUB
Baron Kerr of Tonaghmore was in possession of two notable credentials which distinguished him from his colleagues on the UK Supreme Court bench – being from Northern Ireland and attending Queen’s University, Belfast. Throughout his career he was always keen to acknowledge his “great fortune to be educated at The Queen’s University of Belfast.”
Brian Kerr was born in Lurgan, County Armagh. His mother was a local teacher and his father had qualified as a solicitor but had never practiced.
He was initially educated at St. Colman’s College in Newry. From there he attended Queen’s University during a turbulent time in the history of Northern Ireland, in the late 1960’s. He graduated with a law degree, from Queen’s in 1969 and was subsequently called to the Northern Ireland Bar within a year and the Bar of England and Wales, later in 1974. From there, as a fledgling young barrister, he established a formidable reputation as a capable and level-headed advocate on the Northern Ireland legal circuit.
It was in the court rooms of Northern Ireland, during some of the country’s darkest days, where he cut his teeth. He often stated that his early career was influenced by the violence of ‘The Troubles’ in Northern Ireland, particularly with the introduction of internment in the 1970’s and the establishment of the non-jury Diplock trials. It was these early experiences that had a profound impact on his unceasing commitment to, and belief in, a society firmly founded upon the rule of law.
During his time on the Supreme Court and the Judicial Committee of the Privy Council benches, he presided over cases of huge constitutional significance. For instance, he sat on the two Miller judgments which brought the judiciary into the fold of the politically-charged Brexit atmosphere. In the September 2019 Supreme Court ruling, which held that the Prime Minister Boris Johnson’s prorogation of Parliament was unlawful, Lord Kerr’s reasoning was notable for its strong emphasis on a firm conception of legal constiutionalism; a fact which did not sit well with the Government or its political agenda in withdrawing from the European Union.
In a recent interview with The Guardian in October, he emphasised that cases involving matters of great political importance, and deemed contentious by the Government, should not be a sufficient reason which should shield them from judicial scrutiny or challenge.
“If we are operating a healthy democracy, what the judiciary provides is a vouching or checking mechanism for the validity of laws that parliament has enacted or the appropriate international treaties to which we have subscribed… the last thing we want is for government to have access to unbridled power.”
Upon retirement from his Supreme Court duties on 30th September 2020, he said he was looking forward to an active retirement which would involve working in the field of mediation and arbitration.
President of the Supreme Court, Lord Reed noted his shock upon learning of his colleague’s sudden death,
“Justices and staff alike are shocked by the news, and we offer our deepest sympathy to Lady Kerr, her children and their families.” He continued, “Brian Kerr had the most distinguished of legal careers. As a barrister in Northern Ireland he served as Crown Counsel for a period of 15 years. He became a High Court judge at the age of 44, at a time when the decision to serve as a judge in Northern Ireland required courage and a strong sense of duty. He served on the High Court for 11 years, and then for five years in the extremely demanding role of Lord Chief Justice of Northern Ireland.”
“In 2009 he was appointed to the House of Lords as the last Lord of Appeal in Ordinary, and later that year he became one of the first justices of the Supreme Court. Through his judgments and during hearings, Brian demonstrated his strong and instinctive sense of justice, and his thoughtful and principled approach to resolving legal problems. He will never know the full extent of the impact which his considerate, good-humoured and encouraging nature had on the court, the staff of the court, and his judicial colleagues.“
In Northern Ireland, Lord Kerr’s death was announced by Judge Patrick Lynch QC on Tuesday morning, 1st December. His successor, as Lord Chief Justice of Northern Ireland, Sir Declan Morgan, underlined Lord Kerr’s “enormous contribution” to the legal landscape in the UK and across the common law world.
“It is very unfortunate that he did not get time to enjoy his retirement after his long career in the law and public service on the Bench. He made an enormous contribution to the work of the courts both in this jurisdiction and in to the UK Supreme Court.”- Lord Chief Justice Sir Declan Morgan on the passing of friend and former colleague Lord Kerr, 1/12/2020
The Council of the Law Society of Northern Ireland also noted “with sadness the passing of Lord Kerr of Tonaghmore.”
Bernard Brady QC, Chair of the Bar Council of Northern Ireland said
“The legal world has lost a truly excellent role model and he leaves behind a significant legacy which stands as testament to his immense contribution to our justice system. Lord Kerr was always a highly regarded and much cherished friend of the Bar.”
The Bar Council will wish to appropriately mark Lord Kerr’s remarkable contribution to the law and his career at the Bar when covid-19 restrictions allow.”-Bernard Brady QC, The Bar of Northern Ireland, 1/12/2020
Barry Valentine BL who worked alongside Lord Kerr for forty years said,
“We at the Bar are deeply shocked to hear of his death so soon after his retirement from the Supreme Court. We were looking forward to having a dinner in honour of a man who worked very hard with an incisive command of the law, but enjoyed his life and spread his humour (sometimes acerbic and mischievous but always benevolent). Those like me who appeared in his court as High Court judge and Lord Chief Justice will always treasure our memories. I had been ably taught commercial law by his wife Gillian at QUB (though it may have fallen on stony ground). I recall that as a Law Student in about 1971 or 1972 I first met him when he was doing a case in Belfast Magistrates’ Court and he was very open and friendly – his response to my somewhat presumptuous approach.
On the Bench he was always receptive to novel arguments which he would accept or reject with wise and incisive response. To my regret I did not to appear before him in the Supreme Court, though I enjoyed his correspondence by email.
My thoughts are with his family, in particular Lady Gillian, and his son John of the Irish Bar, an able cricketer." -Barry Valentine, BL
Queen’s University Tributes
Tributes also came from academic staff members at the Queen’s University Law School with which Lord Kerr had a long and unique association. Speaking to the online legal publication, Justice in 2014, he recalled that he had originally applied to sit the entrance examination for Oxford University, however, his time at Queen’s was well spent,
“The law faculty in Queens at the time I entered was brilliant with magnificent teachers, a magnificent training ground for my subsequent career. Of course, there was the other happy circumstance that I met my wife there.”- Lord Kerr, speaking in 2014
In 2013, he delivered the Law Faculty’s annual MacDermott Lecture, held in memory of John MacDermott who held the office of Lord Chief Justice for twenty years from 1951 until 1971. There he recalled being very conscious of the enormity of Lord MacDermott’s reputation, especially so when he was called to the Bar by him in 1970 as a young barrister, beginning his advocacy career. He also expressed his “abundant debt” to Queen’s University for its continuing academic excellence.
Lord Kerr with Supreme Court colleagues (L-R Lord Hodge, Lord Mance, Lady Hale and Lady Black) with the winners, Conor Lockhart and Sarah Gallen, of a special Queen’s University and Ulster University moot held at the Supreme Court in 2018- UK Supreme Court
Lord Kerr was due to join his old alma mater as an Honorary Professor of Law. The appointment had been confirmed by the University’s Academic Council only in November.
Dr. David Capper, Law Lecturer at the at Queen’s, told The Gown that he had known Lord Kerr from the start of his own career, 36 years ago,
"I never appeared in any case with him or against Lord Kerr and there was never any occasion for him to get to know me. But we did know one another and got along very well. He was always friendly and affable and took quite a lot of interest in my book on Mareva Injunctions which I published in 1988. After I left practice in 1989 to take up a lectureship at Queen’s he never forgot who I was and always engaged in friendly conversation if I met him at any social function. In May 2016 we had our internal moot competition final at the Supreme Court and Lord Kerr was our judge. We all went for a meal together afterwards and I said to him that I reckoned he loved the job of being a Supreme Court Justice so much that he would go on to the retirement age of 75 that applied to him. Lord Kerr was 68 then and said he would maybe do another two years because his wife would like them to do other things. He stayed on for another four but did not get the chance to enjoy any meaningful retirement."- Dr. David Capper
Dr. Conor McCormick, also from the Queen’s Law School, said that Lord Kerr’s hugely successful career and the fact that he had made history by becoming the first Northern Ireland Supreme Court justice, would inspire lawyers from here to follow in his footsteps,
"Lord Kerr occupies a league of his own in the minds of all who are familiar with the UK legal system and Northern Ireland’s place within it.
His distinguished career has been a source of widespread inspiration, directly and indirectly, to several generations of law students at Queen’s. May his legacy as a jurist of great integrity and compassion continue to inspire future generations of lawyers from this place."- Dr. Conor McCormick
Lord Kerr died following a short illness and is survived by his wife and two sons, who have followed in their father’s footsteps as barristers.