New Supremes named
Two appointments were made to the UK Supreme Court yesterday, seven months after the posts became vacant. The new justices are Lord Lloyd-Jones and Sir David Richards.
Richards replaces Lady Arden, who retired in January. And Lloyd-Jones replaces Lloyd-Jones, who also reached retirement age in the same month.
How can that be?
Section 121 of the Public Service Pensions and Judicial Offices Act 2022, which took effect on 10 March this year, raised the mandatory retirement age for judges from 70 to 75. That meant Lloyd-Jones could reapply for his old job.
Once that became clear, it was obvious he would get it. Here’s my prediction in the Law Society Gazette on 4 February:
I asked the Supreme Court in January whether Lloyd-Jones would maintain his seniority if reappointed. “We cannot comment on hypothetical situations,” I was told. But now we know. He becomes third in the hierarchy, junior only to the president and deputy president.
Richards served in the Court of Appeal until he reached retirement age last summer. Like Lloyd-Jones, he continued to sit in retirement as a part-time judge. Before joining the appeal court Richards sat in the Chancery division, like Arden before him. Although I had not predicted his appointment, he is the obvious person to replace her.
Richards will he given the honorific “Lord” and a territorial affiliation (Lord Richards of…) to distinguish him from others with a similar name. But appointment as a justice does not confer membership of the House of Lords.
The appointments were welcomed by Lord Reed of Allermuir, president of the Supreme Court:
We look forward to welcoming Lord Lloyd-Jones back to his position as a justice. Following his retirement in January 2022, having reached the then mandatory retirement age of 70 shortly before it was increased by parliament to 75, he has continued to hear cases as a member of the court’s supplementary panel. He will continue to make an enormously valuable contribution to the court on a wide range of cases, and especially in dealing with appeals in the field of international law and criminal law.
We are also delighted that Sir David Richards will be joining us as a justice of the court. His outstanding legal ability and breadth of experience, notably in company law and corporate insolvency, will maintain the court’s expertise in these areas following Lady Arden’s retirement, and will be invaluable in maintaining the high quality of our judgments and our reputation as an international centre of legal excellence.
Both appointees will make a significant contribution to the work of the court and the development of the law, drawing on their extensive experience gained throughout their distinguished judicial careers.
Comment
It may be instructive to compare today’s limited news coverage of these excellent appointments with those to the US Supreme Court. As we have seen, equivalent appointments in the US attract much greater interest because judges there are seen as partisan and because the US court can declare legislation unconstitutional. Fortunately, neither is the case in the UK.
The general public have little interest in these appointments because all judges are thought to be much of a muchness. That’s not quite true; in reality, some are slightly more conservative while others are a little more radical. But although disaffected litigants sometimes accuse individual judges of corruption and worse, the judiciary as a whole is seen as broadly fair and balanced. Long may that continue.
Should we be concerned that these posts have gone to two white men? I might have said two old white men, except that they don’t look old from where I am sitting.
I’m sure the selection commission would have been happy to have appointed another minority candidate (Lloyd-Jones represents a minority community in the United Kingdom) and I’m sure they would have welcomed another woman or two. But we don’t know who else applied — except it’s thought nobody else tried to take Lloyd-Jones’s seat
— and there is no reason to doubt that the posts were filled by the best candidates. Merit must be the sole criterion and the selection commission is to be commended for avoiding tokenism in such important appointment.Why, though, did they take so long? The appointments should have been announced no later than the end of July, not late in the afternoon in mid-August. It’s six months since the vacancies were advertised. There can only have been a handful of candidates. One of the appointments was a foregone conclusion.
The appointments are made by the Queen on the advice of the prime minister and the lord chancellor, following the recommendations of an independent selection commission. I don’t think for a moment that there was any delay at Buckingham Palace or in the selection commission. Nor on this occasion do I blame the prime minister. I suspect the hold-up can be traced to one individual who is notoriously slow at signing off appointments.
Still, all’s well that ends well.
Update 19 August: There has been heated debate on Twitter and elsewhere about the lack of diversity in these appointments. David Allen Green has now covered this in one of his excellent blogs.
He has also taken the trouble to obtain a detailed response from the Supreme Court, which I am reporting in full:
There is a clear and transparent selection procedure which has been set out by parliament and followed by the selection commission. Judges are in the minority on the selection commission and the lay members are independent, highly skilled, and experienced people.
All those appointed to the court are selected on merit and are people of truly exceptional intellectual and legal ability, with sound judgment and decisiveness and significant legal experience.
Applications are sought from a wide range of candidates, including those who are not currently full-time judges, and those who will increase the diversity of the court.
Both positions were publicly advertised, as you can see on the judicial vacancies page of our website, and were also publicised across our social media channels.
The news story that was published on our website on 11 February 2022 to launch the applications also states that there were two vacancies for these positions:
At the bottom of that page, you can read who was on the selection commission for this competition and more about how the commission is convened. For your ease of reference, here are the names:
Lord Reed of Allermuir (Chair), president of the UK Supreme Court
Mrs Elizabeth Burnley CBE, member of the Judicial Appointments Board for Scotland
Mr Paul Douglas, member of the Northern Ireland Judicial Appointments Commission
Lord Kakkar, chair of the Judicial Appointments Commission
Sir Geoffrey Vos, master of the rolls and head of civil justice
Membership of the commission for any vacancy on the Supreme Court bench is set out in statute, i.e. it is stipulated by parliament. As you will see, the commission for the vacancies for justices of the Supreme Court is chaired by the president of the Supreme Court. Another senior UK judge (not a Supreme Court justice), and representatives from each of the three independent judicial appointments board/commissions across the UK, form the rest of the panel. By law, at least two of these must be a non-lawyer.
You may read more about the selection process on our website.
The selection process is rigorous, fair and independent. It follows good recruitment practice and the new justices have been selected under provisions set out in the Constitutional Reform Act 2005. As part of the recruitment exercise, the commission actively encouraged applicants from all backgrounds.
As outlined above, the Supreme Court does not make the appointments. However, the Court recognises that it has a role to play in increasing the diversity of the judiciary and has a judicial diversity and inclusion strategy addressing this serious issue with practical measures that will contribute to change.
To give you some background: the strategy does not address the appointments process which is governed by statute. Instead, it looks at the role the court can play in actively supporting diversity and inclusion in order to create and support initiatives that contribute to creating a more diverse, appointable pool of candidates for judicial office.
We recognise that diversity brings richness to the judiciary and that more needs to be done to ensure that the judiciary is representative of the society which it serves.
Arden retired at the age of 75. She did not have to go earlier because she was already a High Court judge when the retirement age was lowered to 70 in March 1995 and the change was not made retrospective.
Dinah Rose QC has suggested I’m implying that this was some sort of a fix by the senior judiciary. That’s not what I meant. It became clear at an early stage that Lloyd-Jones wanted to stay on. He continued to sit as a member of the supplementary panel and his colleagues did not arrange the usual valedictory ceremony for him. Given that the court needed someone with knowledge of Wales, there can have been very few candidates for that post. There was certainly nobody else with his experience as a justice of the Supreme Court. For that reason, it’s thought that nobody else applied for that position on the court.
New Supremes named
Can I make 2 slightly provocative points. Firstly what is wrong with tokenism? After all with its requirement for geographical diversity on the Court, the law insists upon it. When Patrick Hodge was appointed in 2013 he was not required to demonstrate that he was the best jurist in the UK, he simply needed to prevail over any members of the Court of Session who fancied relocating to London. I would be astonished if there was more than one or two other applicants! In short he was a Scottish token! I don’t apprehend that his appointment adversely affected the quality of the Court. Indeed the opposite could be argued forcefully.
In Australia there is clearly now a convention that at least 3 of 7 justices should be women and in Canada the understanding was 4 out of 9 should be. Admittedly the recent appointment of Justice Jamal reduced that to 3 but he advanced diversity in another respect. The reputation of those Courts has not been reduced by such an approach. I accept that we don’t know who applied this time but on any view the fact that we have only one woman out of 12 Justices is not a good look.
Secondly, why does the Court still need 12 justices? Its docket is slowly vanishing. It heard only 48 cases last year [discounting the 2 Crossland contempt “appeals”] and this year to date, a miserly 21 cases. Additionally under Lord Reed’s presidency the number of enlarged panels has fallen off a cliff. There were 15 in 2016 [22% of the total] but only 2 last year and 1 thus far this year.
Will our new justices have enough to do? Perhaps given their advanced years they are to job share!!
As to retirement ages, I have always said name me the judge in question- at whatever level- and I shall give my view on her/his carrying over.
Now, some quite senior judges for example-shockingly- denounced Baroness Hale’s elevation because as they claimed her judicial career track had been otherwise than the norm with its associated comfort blanket for those anticipating expecting and predicting a non- interventionist stance on the part of the Supreme Court she had then led with the robust and unanimous ruling declaring Johnson’s self serving “prorogation” as null and void.
If mandatory continuing retirement at seventy had indeed led quickly enough to an enrichment and diversity in senior judicial posts then I would have on balance continued to support that approach. Indeed a fine solicitor judge and close friend of mine John Warner- effectively the Recorder of Wolverhampton - had wished to stay on and everyone of good will (that is, excluding the pro- bar contingent whatever else) would have supported his continuing in office. In stark contrast another prospect who had had his nose put out of joint by John’s appointment in preference for him insisted that the bar were the specialist branch of the profession with Solicitors as mere irritating dabblers.
Actually with a number of other higher court advocates I in all immodesty conducted serious jury trials in as examples rape cases, in three of which I secured acquittals, almost certainly factually the right verdicts and most decidedly on the evidence.
Whilst conducting those cases I hardly slept at all since the implications and consequences for my clients and for justice were so immense.
Did I “lose” cases? Of course. Did I make a mess of some cases? Equally, of course. But then so did many of in particular my prosecuting opponents and codefenders both of the bar, with me sometimes ever so courteously having to put them right. That had been largely because unlike some of them whose believe seemed to be that they were too clever to have to exert themselves I used to spend VAST TRACTS of time on preparation since uncertain of my own skills and legal knowledge. When legal issues should crop up out of the blue I was generally so petrified with fear as to be almost unable to totter to my feet even though I often at least on points “won” those arguments.
I had learnt my trade in front of robust Magistrates of for example a Saturday morning Court where with a client I had met perhaps met only five minutes before then first sentence or two at most that I uttered won or lost the day.
As to appearances before Stipendiary Magistrates later of course called District Judges I would be given even less latitude and so speed and directness had to buttress to the extreme anyclegsl or factual arguments being advanced.
Those in an important sense were indeed the days! Thanks