Lord (David) Neuberger of Abbotsbury reflects on his career having recently stepped down as the President of the UK Supreme Court.
On 4 September 2017, Lord Neuberger of Abbotsbury officially retired from his position as President of the UK Supreme Court (“UKSC”), the top judicial role in the UK. During his five-year tenure as President, he heard some of the most important cases in the UK in recent history (Miller, Nicklinson, etc.) and saw the Supreme Court sit outside of London for the first time ever.
While his stint with the UK’s top court is over, Lord Neuberger has no intention of hanging up his robe for good. In addition to reflecting on his distinguished career and his love for science and the law, he reveals what he intends to do next, which includes continuing his work as a non-permanent judge on the Hong Kong Court of Final Appeal (“CFA“).
Lord Neuberger is succeeded by Lady Hale, the first female President of the UK Supreme Court, who was officially sworn in on 2 October 2017.
Obeisance to Science
As a child, Lord Neuberger was brought up to believe that there was no greater achievement than to be a scientist who became a Fellow of the Royal Society. Both his late father and younger brother, Michael, were distinguished biochemists and Fellows of the Royal Society (“FRS”). He explained that two of his father’s proudest moments were when he was elected an FRS in 1951 and when his brother was elected an FRS in 1993.
As a young child, Lord Neuberger would join his father on weekend visits to the Society’s previous premises at Burlington House in Piccadilly. “I remember our occasional visits as being more enjoyable and less drawn out than our equally occasional visits to synagogue. I still have childhood memories of my parents setting off for the Society’s annual dinner on 30November in full fig. At the 1965 dinner, I was allowed to go as my father’s guest instead of my mother, who was unwell, and I recall listening to the first after-dinner speech which I ever heard, from the then-new President, Patrick Blackett,” he reminisced in his November 2015 speech entitled “Science and Law: Contrasts and Cooperation” at the Royal Society in London.
In homage to his rearing, Lord Neuberger went to Oxford University to study chemistry, carrying out extensive research into semi-synthetic proteins. However, after four years, he felt his abilities were better suited to another discipline – first transitioning into finance and then into law.
Despite achieving the pinnacle of legal professional appointments and myriad accolades throughout his legal career, Lord Neuberger still harbours a vestige of a sentiment that practising in any discipline other than a scientific one is a second best. “I have a sense that, when it comes to intellectual pursuits, there is maths and science and that everything else is stamp collecting,” he said, adapting an observation made by the great physicist Lord Rutherford.
Benefits of Being Unconventional
Discussing his relatively unconventional background for a judge, Lord Neuberger said he would not change a thing about the circuitous route he took into law, noting with a self-aware smirk that his response sounded “remarkably complacent”.
“I always find the question ‘If you had to do it again, would you do it the same way?’ a difficult one. I suppose what I really mean when I say that ‘I wouldn’t change a thing’, is that there is nothing that I desperately regret about the academic or professional paths I have pursued. Of course, there are personal regrets, but that is a different conversation altogether,” he quipped.
“The experience of being a scientist and my time in banking both turned out to be much more useful than I expected when I was going through my career. It’s always a very difficult decision as to whether you should read law or whether you should read something else if you are deeply interested in practising. Normally, if you ask a judge or a successful lawyer, ‘Should I read law?’, the only thing their answer will tell you is whether they read law or not. Normally the answer is ‘yes’ if they read law or ‘no’ if they didn’t. I think the advantage of reading law is that you get a period of three or four years where you can really go in depth into your legal studies, which you never really do in the same way if you study in another area. Also, you take up legal studies at an age at which you are particularly impressionable and susceptible to absorbing information,” he said.
“The disadvantage of reading law if you’re going to be a lawyer is that it makes you a bit monochromatic and monolithic. Studying something else before law is quite good for your personal development, and, indeed, in some ways, it may broaden your base if you practise.”
“I think a fair assessment is that there are advantages to each approach – in taking either the direct or circuitous route. My normal advice to people is if you are interested in doing something else before you practise law, then go and do that something else and then become a lawyer. But if you’re not particularly interested in anything else, then you might as well go straight into law.”
“For me science taught me a degree of rigour. While it’s difficult to be entirely sure, law is probably a little less rigorous than science. At student level, there is a right answer and a wrong answer to every scientific question, but when it comes to law, although the right answer may be what the top court (the CFA or the UKSC) has said, one could still argue about whether it’s right or wrong and one can have a different view. So I think science gives you more discipline. It also gives you a greater familiarity with numbers. There may be a difference between Hong Kong and the UK, but the education system in the UK for most part does not ensure that otherwise well educated people are particularly numerate. There are a lot of areas of law where numeracy is very useful.”
Lord Neuberger also noted that his background in science proved very useful after he became a sitting judge because of the then-shortage of judges who could preside over patent cases. “I was an obvious choice, given my science degree – or an obvious non-patent expert to do patent cases. A few of my patent judgements, which were appealed, made quite a good impression. In the end, my ability to deal with patent disputes helped my career and made me an attractive candidate to the Court of Appeal, where they needed help with patent cases. All that being said, it was a very steep learning curve transitioning into that specialisation,” he explained.
Turning back to discuss his stint in finance, he not entirely jokingly said that if he was not a very good chemist, he was an even worse banker. Nonetheless, the experience gave him an understanding and appreciation of the financial world that he otherwise wouldn’t have had. “That, again, is obviously very useful as a lawyer because a lot of cases, one way or another, involve money and sometimes the way that the financial markets work. It has certainly been helpful, but it is difficult to be sure because it comes back to a point that I have stressed before – you don’t know what life would have been like if you had done something different from what you did.”
Reflecting on the highlights of his career, Lord Neuberger noted that his first professional milestone was being asked to join a set of chambers. “I had a rocky start. In those days, it was very easy to get a pupillage in London because they were unpaid. However, it was quite difficult to be taken on as a member of chambers. Now, because Chambers pay substantial pupillage awards, it’s pupillage where the bottleneck lies, rather than getting taken on. I did three successive pupillages in different chambers at the end of which somebody else was taken on. I almost left the Bar and gave up, but I did one last pupillage and finally received an offer. So after a difficult 18 months, it was quite a feeling of excitement.”
As for other milestones, he said that in each day of his career he has been fortunate – from becoming a QC to transitioning and thriving in his judicial career. “Each time I reached another level, I was rather sorry to leave what I was doing, but excited about what was to come. I think moving to the House of Lords was particularly memorable for me, partly because of the change of venue and partly because my transition from the Court of Appeal to the House of Lords happened rather quickly,” he explained.
“I still remember the first day I sat in the House of Lords, five Judges sitting in a sort of semi-circle. I was the baby judge on the left looking at two of my heroes – Lord Bingham and Lord Hoffman, whom I had appeared in front of as a junior barrister. At the risk of sounding like an Oscar winner, I kept thinking that I was going to wake up at any moment and find it was all a dream. It was hard to believe that I was really sitting as a colleague with those two legal titans. It was a moment of pure professional bliss, but also a bit nerve-racking. It was like being a school child who was suddenly mixing with the head-teachers. While they always treated me as a colleague and an equal, it was quite difficult for me to do the same because I thought of them as half a generation ahead of me.”
Lord Neuberger said that his most memorable case to-date was the Miller case (R (on the application of Miller and Dos Santos) v Secretary of State for Exiting the European Union), a legal case decided by the UK Supreme Court on 24 January 2017, in which the Court held that the UK Government (the executive) may not initiate withdrawal from the European Union by formal notification to the Council of the European Union as prescribed by Art. 50 of the Treaty on European Union without an Act of the UK Parliament permitting the Government to do so.
“With the lead-up to the hearing and then the case itself, it probably received more publicity than any 10 cases I had previously done together,” Lord Neuberger said. “It was very high-profile politically. There was an enormously feverish atmosphere and it was politically seen (I always thought) of having more short term political significance than it really had. In terms of constitutional significance, it was of some importance. However, in the end, the more difficult or important issue was the one which nobody really covered much – at least outside Scotland, Wales and Northern Ireland. That is, certain devolution issues about the duty of the Westminster Parliament to obtain the consent of the Scottish Parliament and the Welsh Assembly and the Northern Irish Assembly.”
“In terms of the balance of power between or the balances of functions between the Legislature, Parliament, and the Executive, the Prime Minister and Cabinet, the law wasn’t really in dispute,” he continued. “Everybody ultimately agreed on the issue – that is, that the Government needed Parliament’s approval to serve the notice. The only issue was whether that approval was implicit in the original statute or whether a new statute was needed. It is really a quite dry, technical issue, but it didn’t stop the hearing from taking four days. Mind you, there were the other arguments.”
Lord Neuberger said this case was also exceptional because all 11 Supreme Court Justices sat to hear it. When asked why all 11 judges were called on to hear the case, he noted three reasons. “The official reason why all 11 of us sat on the Miller case was because it was a very important, high profile case. But there were two other reasons: one was that we could easily split. If I would have taken nine of my colleagues, rather than all 11 and the split had been 5:4, the political group that had lost (ie, that had the four) could have gone around saying, ‘If only we had the other two, it would have been six; five in our favour!’. That was not the sort of message that I wanted to risk having. The second reason I thought all 11 of us should hear the case, was if we had nine, then the two of my colleagues who I said couldn’t join would never have forgiven me!”
“However, it should be emphasised that the main reason that we all sat was that it seemed appropriate to do so because it was such a high-profile case legally and politically. How it will seem in 20 years, I have no idea. It may be completely forgotten, or it may be remembered as an important case or simply as the only, or first, case which the Supreme Court decided with 11 members.”
Remaining and Appearing to Remain Impartial
Delving deeper into his decision to have all 11 Supreme Court members sit to hear the Miller case, Lord Neuberger indicated that his duty to decide which Justices sat on which cases was probably the most worrying aspect of the job as President because of the possibility of packing the Court.
“It is quite difficult sometimes to not only be impartial, but to also maintain the appearance of being impartial – you’ll never completely do it in every case. Nonetheless, you have to be aware and do your best. For example, there were two or three cases where different Justices had gone different ways in earlier cases and we had to have a final Court decision with seven or nine judges in order to come to a conclusive view. In those instances, I could feel my colleagues watching me very carefully, especially in cases where I had gone one way in an earlier case. They were waiting to see if I would pack the court to get the result I wanted. If your colleagues start thinking that you are doing that, then you are going down a very slippery slope. The fact that you know that your colleagues, and indeed much of the legal profession, are watching makes you take very careful decisions,” he said.
Continuing, he explained: “I may be a bit starry-eyed, but I think that being as open as possible with people helps avoid any appearance of partiality – telling people what you are doing and why. The Supreme Court is very lucky because you can watch its hearings on its website. When we tried the Brexit case, my wife heard someone on the radio stating that to say the hearing was going at a snail’s pace was unfair to snails. While appeal hearings are pretty boring to most non-lawyers, if people can see the Court in action and see the lawyers and the Justices taking it seriously, arguing it out carefully and dispassionately, I think boring in a way is quite good. But also, I think telling the people what’s going on, letting people see as much as possible, is centrally important.”
While avoiding the appearance of partiality can be difficult, Lord Neuberger noted that coping with unconscious bias is even more challenging. However, he explained that it can be managed at least to some extent with training. “Dealing with unconscious bias is a problem. It is something which I hope all judges would get training in – to be aware of it not only when selecting judges, but also when deciding cases, hearing witnesses and the like. It’s something which really should be looked at; however, there are limitations on how much the training, in and of itself can do,” he said.
As for what’s next, Lord Neuberger hopes to continue his work with the CFA as an NPJ. “I really enjoy the work. As long as I am wanted, and I have the physical and mental health to continue, then I hope I can carry on.”
Outside of his work with the CFA, Lord Neuberger hopes to build up an arbitration practice, but notes that he will have to wait and see how that goes. “Some of my former colleagues who have since retired from the judiciary have embarked on a similar path, achieving varying degrees of success. I cannot quite figure out why some are more successful than others, so I am uncertain how I will fair in a competitive market.”
Concluding, he noted his continued interest in science and his desire to re-engage with the scientific community. “There is an increasing relationship between the Royal Society and the UK Judiciary in terms of scientists wanting to talk to judges about science and how it can assist the courts and court users. I am very interested in the intersection of science and law, so I hope to support this initiative, as well.”