Saturday, 26 March 2011

Selecting Justices of the Supreme Court - New appointments awaited

The Constitutional Reform Act 2005 s.23 created the Supreme Court of the United Kingdom.  It has to have a minimum of 12 Justices (or "members").  The court held its first sitting on 1st October 2009 and the previous Lords of Appeal In Ordinary became the first members.  The Act sets out a rather convoluted procedure for the appointment of new justices and, as part of this procedure, the Lord Chancellor has significant powers.  He convenes
the Selection Commission, may give guidance to the Commission as to matters to be taken into account and, when the Commission makes a selection, he may, for example, ask the Commission to reconsider its selection.

It may surprise some to know that appointments do not have to be made from the ranks of existing judges.  Barristers or Solicitors of 15 years standing are eligible to apply - (see s.25  for the qualification required).  This mirrors the system which existed for appointments to the former House of Lords Judicial Committee.

In 2010, there was an advertisement for two new justices - "Information Pack: Vacancy for two Justices of the Supreme Court."  A Selection Commission has been sitting to decide who the nominations will be.  Out of the process will emerge two nominations to be presented to the Prime Minister who then recommends to Her Majesty the chosen names.

It is interesting to see in the Information Pack that the Commission would be looking not merely for legal ability but also qualities of  social awareness and understanding of the contemporary world; an ability to work with colleagues, respecting their views, but also being able to challenge and debate in a constructive way; a willingness to participate in the wider representational role of a Supreme Court Justice (e.g. delivering lectures, participating in conferences, talking to students and other groups) and vision, coupled with an appreciation of the role of the Court in contributing to the development of the law.

There has been a certain amount of speculation as to who the latest appointees are likely to be.  An announcement is expected in the very near future.

Supreme Court of the United Kingdom.
Courtesy Titles for Justices of the Supreme Court 
Justices and Confirmation Hearings? 

Addendum 30th March:  Writing in The Guardian 29th March, Dr Erika Rackley (Senior Lecturer in Law, University of Durham) argues that "We need a more diverse Supreme Court."


  1. I do indeed find it fascinating that candidates do not have to be selected from the ranks of the judiciary at all. But I suppose it's a bit like not having to be a fire officer any more in order to run a fire service.

    I particularly like the way the thorny issue of titles has been circumvented - just call them all Lords or Ladies without ever being either. No wonder foreigners find it so difficult understanding our institutions. I tried explaining recently the notion of an elected hereditary peer.

  2. It is indeed difficult for many to understand our institutions. To be fair on this point, the Supreme Court has made some excellent moves toward trying to make the general public more aware of what the court does and how it does it.

    In relation to appointment, it might be expected that appointees whould come from the ranks of the Court of Appeal or the High Court and not directly from the Bar or the Solicitors profession. Nevertheless, that has not been our legal stance even in relation to appointments to the House of Lords - see Appellate Jurisdiction Act 1876 s.6

    Historically, there were a few appointments to the House of Lords directly from the Bar (e.g. Viscount Radcliffe).

    Of course, it was necessary to create peerages for those appointed to the House of Lords and therefore all those who had been so appointed and who moved over to the Supreme Court were already peers (e.g. Lord Phillips of Worth Matravers). To date, the only new appointment has been that of Sir John Dyson who stepped up from the Court of Appeal.

    When setting up the Supreme Court, the government had made it clear (presumably for political reasons) that future appointments would not automatically become peers. Sir John Dyson would not therefore become a peer and there was undoubtedly considerable annoyance at this in some parts of the legal profession.

    This issue has been partly resolved by Her Majesty allowing Justices to use the style Lord or Lady even if they are not ennobled into the peerage.

    The raison d'etre of the Supreme Court was, of course, to achieve a separation of powers from Parliament. Legally speaking the former Law Lords were permitted to speak in any debate and to vote. However, in recent times, they voluntarily denied themselves the right to speak and vote.

    The other interesting thing was the position of Lord Chancellor. He (and it always was "he") sat as Speaker of the House of Lords, Head of the Judiciary and Government Minister. As Head of the Judiciary, the Lord Chancellor was entitled to preside in the House of Lords Appellate Committee and, up to the time of Lord Irvine of Lairg, they did so. Lord Falconer (the last "old-style" LC) declined to do so. The Constitutional Reform Act 2005 altered the role of the LC to what it is today.

    Fascinating as all thisis, I am not personally a supporter of peerages and automatic titles/knighthoods on certain appointments though I don't suppose it will alter in the foreseeable future.

  3. I had not picked up that members of the supreme court were to be given the courtesy title of 'Lord'. What a very strange situation we are getting into. The Lords were originally all hereditaries, then the inclusion of Bishops introduced the concept of life peers (although they do not take the title Lord). In 1878, the introduction of Lords of Appeal in Ordinary introduced life peers (ex officio) who did take the title Lord. Fast forward to the late fifties when the new breed of life peer (by appointment) was created. Incidentally, without referendum, or prior manifesto promise that this is what would be done. Then Blair kicked out all but 90+ hereditaries - who still retain the title, and can pass it on to offspring, though they no longer sit unless they are elected back by their 'peers' A privelege that extends to their offspring. Now we have life peers (courtesy) who have no right to sit in the House of Lords. Whatever next? Come back Guy Fawkes all is forgiven.