Judicial Impartiality: Essential or Impossible? Remarks of The Rt Hon. The Lord Neuberger

• Date: 01 January 2018

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Judicial Impartiality: Essential or Impossible?

Remarks by

THE RT HON. THE LORD NEUBERGER OF ABBOTSBURY PC*

Judging a case oen involves having to make hard decisions, which can oen be

challenging, even worrying. However, at least for me, discussing, analysing and

resolving dicult questions is perhaps what above all renders judging such a

stimulating responsibility. In the UK, judges must always remember that they have

sworn an oath to ‘do right to all manner of people aer the laws and usages of [the]

realm, without fear or favour, aection or ill will’, and of course Irish judges take

a very similar oath. ey must also bear in mind that one of the most important

features of any legal system is that the law is certain – and so their decisions should

not muddy the legal water. e common law has long recognised this need for

consistency and acknowledges it through the doctrine of precedent or stare decisis.

But, like everyone else, common lawyers want to have it both ways, and they

also pride themselves on the common law’s adaptability: judges have been ready

to develop the common law, by changing it in order to meet the changing social

standards or commercial practices.

is mixture of consistency and mutability has helped to maintain the rule of

law in the UK, and the common law plays a vital part in underpinning economic

success, including the UK’s substantial nancial and professional services industry.

I touched on the inherently demanding nature of a judge’s job at the beginning

of this talk: intellectually dicult, sometimes almost intractable, problems to

resolve, not infrequently with a moral or ethical aspect, and sometimes with a

political aspect. While scientic thought processes have much in common with

legal thought processes, there are fundamental dierences, one of the most notable

being that, at least in classical science, there is normally a single demonstrably right

answer, but that is not so true when it comes to the judge’s job of resolving issues of

fact and resolving issues of law.

Resolving issues of fact normally involves having to decide which of two conicting

live witnesses to believe, and that can be very hard. Even, some might say especially,

in very simple cases, where there is no contemporary documentation, and no

inherent likelihoods. And in complex cases, neither side’s story is normally wholly

convincing, which makes it very dicult to work out who is telling the truth.

* Lord Neuberger is former President of the Supreme Court of the United Kingdom, having retired

in July 2017.