New supremes for old

Top court down to 10 justices next month

The Supreme Court of the United Kingdom starts a new term today and begins hearing appeals tomorrow. However, this unique and rather wonderful image of socially distanced justices standing in order of seniority — with the president at the centre, the deputy president to his right, the third most senior on his left, and the others (apart from Lady Rose¹) in strict left/right sequence — will not remain current for long.

Lord Lloyd-Jones (front row, second from the right) celebrates his 70th birthday on Thursday. He must retire from the court but will be appointed to the supplementary panel. He will continue to hear cases but loses his seniority.

Lady Arden, (front row, far right) turns 75 on 23 January. She did not have to retire at 70 because she was already a High Court judge when the retirement age was lowered in March 1995. She is not eligible to join the supplementary panel.

A reader calculates that Arden’s 28 years and 8 months as a full-time judge is the 15th longest tenure in modern (post-1873) times. The record goes to Lord Denning, who clocked up 38 years by being appointed before a mandatory retirement age was introduced. However, the age of statutory senility will be restored to 75 by the Public Service Pensions and Judicial Offices bill,² which has nearly completed its parliamentary passage. When Arden retires, the UK’s oldest full-time judge will, I believe, be Mr Justice Holman. He’ll be 75 in August.

Who will replace Lloyd-Jones and Arden at the Supreme Court? In the United States, this would be a matter of huge importance. In the United Kingdom, where the justices are not associated with political positions and have no power to declare legislation unconstitutional, there is generally less interest in who’s chosen.

The selection process will begin next month. An independent commission will be set up under the legislation that created the Supreme Court. To be eligible, you have to have been a judge for two years or a lawyer for 15 years.³ There is a webinar on Thursday for lawyers in their 40s who may have the senior judiciary in their sights.

The two posts allocated to Scotland and the one seat reserved for a judge from Northern Ireland are currently filled. So you would expect the new justices to be serving appeal judges in England and Wales. I am not aware of any member of the bar who aspires to follow Lord Sumption and leap-frog the High Court and Court of Appeal.

There may be applications from academics who have practised as barristers or solicitors. That, and the increased retirement age, make it much harder to predict who’ll be appointed. But I expect there will be at least one woman and I am sure that Lord Reed, the court’s president, would like to recruit a justice from Wales.

In the meantime, the Supreme Court can keep going with members of its supplementary panel. It can also bring in senior judges from the lower courts. Dame Siobhan Keegan, the recently-appointed lord chief justice of Northern Ireland, will be sitting with four justices in a challenge next month to voter identification pilot schemes in local government elections. The case relates to England and Wales but Keegan (and Lord Stephens, who is also sitting) have experience of a jurisdiction where voters are already required to produce identification.

Keegan’s trip to London will also introduce her to a court that she may eventually join. But others will get there sooner.

1. Not her decision to stand centre-stage, I’m sure. She delivered a fascinating lecture last month comparing judicial decisions in biblical times with those given now.

2. See schedule 1, paragraph 25.

3. As defined in the legislation.