UK Supreme Court – six new members needed by end 2018

The Supreme Court will resume sittings on 5 October 2016. We highlighted some of the key upcoming cases last week here.

Five of the current Justices are due to retire by the end of 2018, including the President Lord Neuberger and heavyweights such as Lords Mance and Sumption. There has been criticism about the selection process for Justices – such as whether it will continue to focus on white males of a certain age and background or whether greater diversity will play a part in the process – and in this piece we look at the process, the criticisms and some possible candidates. The answer to ‘why now?’ is that an immediate vacancy was created in the SC with Lord Toulson’s retirement on 22 September 2016.

The appointment process outlined

The appointments of Justices of the Supreme Court of the United Kingdom is governed Constitutional Reform Act 2005. Applicants must have held high judicial office for at least two years, satisfy the judicial appointment eligibility condition on a 15 year basis, or have been a qualifying practitioner for at least 15 years.

The Lord Chancellor (the recently-appointed Elizabeth Truss MP) is responsible for convening a selection commission chaired by the President of the Supreme Court (currently Lord Neuberger). Under changes introduced in 2013, the Deputy President (currently Lady Hale) is no longer a member of the selection commission and the President instead nominates a senior judge from anywhere in the United Kingdom. Other members of the selection commission are drawn from judicial appointment boards in England & Wales, Scotland and Northern Ireland.

The commission must ensure ongoing representation in the SC from the latter two jurisdictions. With regard to Wales, Jenny Rowe, former Chief Executive of the Supreme Court, has suggested that as the body of Welsh law increases, the process may require consideration of the appointment of a Welsh justice to “ensure that between them the judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom.” The 2013 changes to the process also included provisions in relation to diversity.

The 2005 Act sets out a process by which the selection commission must report to the Lord Chancellor and places him or her under a statutory duty to consult the senior judiciary and the devolved institutions: the First Ministers of Scotland and of Wales and the Secretary of State for Northern Ireland. The process ends with the Queen formally making the appointment on the recommendation of the Prime Minister.

While the process is fairly straightforward and well-described in the relevant Acts, Lady Hale and Lord Sumption have expressed some pithy views.

Diverging on diversity?

This time last year, Lord Sumption claimed that any attempt to speed up the process of achieving gender equality in the senior judiciary could lead to “appalling consequences”. The Evening Standard used that very phrase when reporting his interview: Rush for gender equality with top judges could have appalling consequences for justice  Lord Sumption stressed that he wanted to see proper gender balance within the judiciary, but said many female lawyers were reluctant to climb the career ladder because of the long hours and poor working conditions. He suggested that it might take 50 years to achieve gender equality in the senior judiciary. Perhaps unsurprisingly, his hypothesis prompted allegations of sexism. For example, The Guardian ran a scathing comment piece under the headline Sumption encapsulates the law’s sexism: only quotas can challenge male privilege.

In November 2015 Lady Hale told an audience at Birmingham University that the Supreme Court should be ashamed if it does not radically improve its diversity in the next round of judicial appointments. Her remarks have been taken by some as a rebuke to her colleague Lord Sumption. She referred to the vacancies created by the retirement of six Justices by the end of 2018 and concluded that: “If we do not manage to achieve a much more diverse court in the process of filling them, we ought to be ashamed of ourselves.”

Deputy SC President Lady Hale is the only female member of the SC. Having only one female member of its highest court places the UK 45th out of 45 countries in the European Commission’s annual survey of judicial diversity. Lady Hale has long been an advocate of improving diversity and has even speculated whether positive discrimination may be needed to redress gender imbalance. The following extracts from her speech offer a very clear picture of her views.

“I was sworn in as a lord of appeal in ordinary on 12 January 2004. Fifteen people have been sworn in as law lords or Supreme Court justices since then. One might have hoped that the opportunity would have been taken to achieve a more diverse collegium. It has not happened. All of those appointments were men. All were white. All but two went to independent fee-paying schools. All but three went to boys’ boarding schools. All but two went to Oxford or Cambridge. All were successful QCs in private practice, although one was a solicitor rather than a barrister.”

[She shared with them] the experience of being white and having been to Cambridge” but “in every other of those respects I am different. I went to a state day school, my profession was university teacher and then law commissioner, my specialism was family and social welfare law. How is it that, despite their very different characters and outlooks, they remain such a homogenous group?”

“Excellence is important, though I am embarrassed to claim it. But so is diversity of expertise. And so is diversity of background and experience. It really bothers me that there are women who know or ought to know that they are as good as the men around them, but who won’t apply for fear of being thought to be appointed just because they are a woman.

Possible candidates?

The timing of the vacancies towards the end of 2018 will just be unfortunate as some good candidates will inevitably fall into the too old or too young categories. Despite, or even because of, the issues aired above, Lady Hale might be joined in the Supreme Court by a female Justice or two.

Lady Justice Sharp and Lady Justice Hallett could well be the front runners with perhaps Sharp LJ the more likely of the two given her age, 60, and rapid rise to Vice-President of the Queen’s Bench Division (appointed in January 2016) after just three years in the Court of Appeal. Lady Justice Hallett will be 67 in December 2016 and would therefore be fairly close to the SC’s mandatory retirement age of 70. In the past she has complained that she suffered as a young barrister under a culture of discrimination against women.

What of possible male candidates? Among the youngest is Lord Justice Sales, who seems to do everything at a young age. He was appointed First Treasury Junior Counsel at only 35, a High Court judge at age 46 before promotion to the Court of Appeal in 2014 aged 52. The highly-regarded Lord Justice Leveson might be regarded as too old at 67, but Lord Justice Ryder (58), Lord Justice Fulford (63) and Lord Justice Burnett (58) look to be around the right age. Sir Terence Etherton who, at 65, will take over next week from Lord Dyson as Master of the Rolls, might also be one to watch.

It is difficult to identify any ethnic minority judges other than Mr Justice Singh, appointed to the High Court in 2011 age 47 and perhaps one for a future round of recruitment.

The first appointment, to replace Lord Toulson, has been delayed and as a result he joins the Master of the Rolls Lord Dyson (soon to be former MR) and Scottish judges Lords Gill and Hamilton on the SC’s ‘supplementary panel’, a rotating roster of top judges called on to sit on an ad hoc basis. Lord Toulson will sit alongside Lords Mance, Clarke, Reed and Sumption on Monday 10 October to hear AIG v Woodman, a case on interpretation of solicitors professional indemnity insurance terms.

With the round of recruitment between now and 2018 will we witness a period of real change, or more of the same? Given the relatively small number of female judges, is it likely that a female candidate could be brought in to the highest court without serving in the lower courts, in the same manner as Lord Sumption was in 2012?

So much for speculation. The certainty is that whoever is appointed and from whatever background, the composition up of the UK’s highest judicial bench will continue to meet criticism from one quarter or other.

About the Author

Jef Mitchell is a consultant at BLM and former Chief Claims Officer at the Ministry of Defence where he regularly briefed Ministers on claims issues and risk management. He now helps to lead the firm’s Policy and Government Affairs work with Alistair Kinley preparing submissions and supporting evidence for consultations and reform proposals, in addition to liaising with government departments and regulators on key issues and consultations affecting the firm and its clients. Jef is also an accredited mediator.

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