What do people think about whether David Neuberger should recuse himself from the Article 50 appeal to the Supreme Court?
I find the whole thing very difficult. On the one hand, I know full well that he will, if he sits on the appeal, approach it with an open mind. But I am biased. He was very good to me in my early days at the Bar. Though I was not in his chambers, he used to ask me to do pieces of paperwork for him (and pay me). When he took silk, which was in the days when clerks never allowed QCs to appear in court without juniors, he returned one of his junior briefs to me (a very long night trying to get to grips with the law of landlord and tenant). He is one of the kindest men I have ever known.
But, on the other hand, I find it difficult to see why his wife’s public commitment to the cause of the respondent to the appeal should be looked on as being quite different from Lord Hoffman’s wife’s opposition to Pinochet. What I find particularly troubling is that Lady Neuberger (who appears to be addicted to the awful Twitter machine) sent a thing called a “tweet” to the whole world back in June saying she thought the prerogative could not be used to trigger Article 50. With the greatest respect to her, I doubt very much whether she thought that up herself.
The Supreme Court has issued a statement saying Lady Neuberger’s endless public pronouncements are irrelevant because the appeal is on a point of law. That is, obviously, a complete nonsense. The Pinochet appeal was also on a point of law. Every appeal to the Supreme Court is on a point of law. The suggestion that there can never be an appearance of bias on the part of a judge if he is only ruling on the law is crass in the extreme (I doubt whether Lord Neuberger approved the Supreme Court’s statement).
My personal preference would be for Lord Neuberger to sit on the appeal. But that’s only because I would love to see his judgment (which, as I have already said, I am confident would be uninfluenced by his wife’s tweets). He is a brilliant lawyer and his contribution to this serious constitutional debate is one which generations of law students yet to come ought to see. I would go so far as to say that his judgment on the appeal is likely to be second only to Lord Sumption’s in brilliance (and I don’t know which side Lord Sumption will take).
Therein lies the problem. The world now thinks that Lord Neuberger has made up his mind before hearing any argument. I don’t think he has, but it’s all about appearance.
Selfishly, I hope Neuberger will not recuse himself. But I am not convinced that the cause of justice will be advanced by his sticking to his guns.