Just call me chief justice

Whether it's a man or a woman

In a piece last November speculating on who might replace Lord Burnett of Maldon when he retires later this year from the most senior judicial office in England and Wales, I said that Dame Sue Carr, an appeal judge, would have to stand down as vice-chair of the Judicial Appointments Commission if she wanted to be considered.

She has now done so, as we see from a note on the commission’s website that was spotted yesterday by one of my readers:

As vice-chair, Carr was the senior judicial member of the commission. The post was held by Burnett himself from 2015 until 2017. He stepped down just before applying for the position he now holds.

So I think there must be a good chance that Carr will be applying for Burnett’s job. However, I would not expect any potential candidate to comment this sort of speculation.

L-R: Dame Victoria Sharp, Dame Sue Carr

The other favourite must be Dame Victoria Sharp, who as president of the King’s Bench division is Burnett’s deputy on the criminal side.¹

The post is, of course, open to male candidates — some of whom I suggested in November. But what should the post be called if it goes to Carr or Sharp?

Dame Siobhan Keegan is known as lady chief justice of Northern Ireland — although the relevant statute refers to her as the lord chief justice. A similar rule used to apply to appeal judges in England and Wales, which meant that counsel had to refer to “my lady, Lord Justice Butler-Sloss”. Lord Bingham said that was “plainly absurd”.

No doubt the law in Northern Ireland will catch up with current practice, as it eventually did in England and Wales.

Members of the Court of Appeal hold the title Lord or Lady Justice to distinguish them from judges of the high court, who are generally known as Mr or Mrs Justice.²

But there is no need for the title of Lord or Lady once they reach the top of the tree. I suggest that Burnett’s successor should simply be called Chief Justice — whoever gets the job.

We can change the legislation later.³

Update 1250: I have had some interesting responses to this piece.

Nicholas O’Brien, retired barrister, says:

Before 1875 there was a chief justice of the Common Pleas and a chief justice of the King’s Bench. Because the King’s Bench was senior, its chief justice was Lord Chief Justice.

There is now no need for a distinction, so chief justice would do. Ireland has a chief justice.

However, the barrister Jacob Gifford Head has alerted me to evidence that the chief justice of the Common Pleas was referred to as Lord Chief Justice

Readers have argued that there is no need to change the title — a woman can be lord chancellor, lord privy seal, lord advocate, lord justice clerk, lord mayor and so on.

But other judges have gendered titles: Mrs Justice, Lady Justice and Lady (in the Supreme Court). It would seem odd to be promoted from Lady Justice x to Lord Chief Justice x.

Update 2 February: I was pleased to see this piece quoted in the Telegraph today. To get the news first, subscribe below.

1. Her twin brother Richard is chairman of the BBC.

2. Despite the knighthood or DBE they always receive. Although female High Court judges usually take the title “Mrs Justice” regardless of their marital status, we have Ms Justice Russell in England and Wales and Madam Justice McBride in Northern Ireland. Scotland has different conventions.

3. A reader points out that the change would not require primary legislation. Section 64 of the Courts Act 2003 allows the lord chancellor to change judicial titles with the concurrence of the lord chief justice.