Three new members of the UK Supreme Court are to be appointed within the next few weeks following a recruitment drive because of retirements and promotions. This is a quarter of its total membership. These Supreme Court personnel changes come in addition to the recent appointment of the court’s new President, Lord Neuberger, who took over at the start of the legal year last October and is still really just finding his way around.
As head of the law school at one of the country’s top business schools, I believe these appointments raise a number of issues – for the business community, those in the legal profession and others.
A high turnover of key personnel within a short space of time have the potential for a destabilising effect on any organisation. But with judgments made by the UK Supreme Court having such a big influence over UK law, any period of instability has the potential to seriously affect UK businesses, especially at such a shaky time for the economy.
What changes have already taken place?
There have already been changes to senior posts: President of the Supreme Court, Deputy President, Lord Chief Justice, Master of the Rolls, Chancellor of the High Court, President of the Family Division and now the appointment of three Supreme Court justices, are all to take place in the period of about a year.
Why are the changes happening and who is likely to be appointed?
In the Supreme Court the deputy president, Lord Hope, must retire in June on reaching the age of 75. The advertisement for his successor makes it clear that having two Scottish judges (Lord Reed, the other Scottish judge has only been in place for about a year) in the Supreme Court is a matter of convention rather than law. But since Hope is one of the five members of the selection commission and another is Sir Muir Russell, who chairs the Judicial Appointments Board for Scotland, there is every chance that Hope will be replaced by another Scottish judge. Lord Hodge and Lady Smith seem to be two of the front runners.
The other two appointments to the Supreme Court will be replacements for Lord Dyson, who became Master of the Rolls in October, and Lord Walker of Gestingthorpe, who retires in March. Walker is a chancery specialist and Dyson has a commercial background. Although there are other judges on the Supreme Court with commercial law skills — Lord Neuberger himself, for example, and Lord Sumption, another recent addition — at least one of the new judges will really need to have served in the Chancery Division before joining the Court of Appeal.
One option for this slot would have been Lord Justice Etherton, but he has just been appointed as Chancellor (head of the Chancery Division), making him the most senior judge in England to have registered a civil partnership. Two other former chancery judges in the right age-bracket for the Supreme Court are Lord Justice Lloyd, 66, and Lord Justice Patten, 62. Lady Justice Arden, also 66, has long been tipped for promotion, either to the Supreme Court or as Chancellor. Although Mary Arden would be a popular choice on some grounds as she would be only the second woman appointed to either the (old) House of Lords or the Supreme Court, her husband, Lord Mance already sits there and it seems to be the practicalities of keeping them from sitting on the same bench may have dulled her allure. Lord Justice Patten is of the same judicial generation as Sir James Munby, who has just been promoted to President of the Family Division.
An experienced appeal judge with a commercial rather than chancery background is Lord Justice Rix. Though now 68, he could continue to sit in the Supreme Court until he is 75 because he received his first judicial appointment before the retirement age was lowered. The same, in actual fact, applies to Mary Arden.
Another strong candidate for the Supreme Court must be Lord Justice Hughes, 64, who is currently Vice-President of the Criminal Division of the Court of Appeal. Hughes would bring some very useful skills in the field of criminal law to the bench and it is believed he is not interested in applying for the post of Lord Chief Justice.
That leaves two leading candidates to succeed Lord Judge when he retires at the end of September, Sir John Thomas, 65, and Lady Justice Hallett, 63. As president of the Queen’s Bench Division, Thomas is senior to Hallett, but Heather Hallett may be a popular choice in helping to redress the gender imbalance in senior posts.
Why does all this matter
So why should any of this matter to ordinary citizens and businesses? Arguably, the quality and efficiency of decision making should be the same, whoever is appointed. While this should certainly be true, it also does make sense to have a balance of specialisms, including business management experts.
The way judges are appointed to the UK Supreme Court is based on the individuals applying and available at any time. So the fact that we have had such a good balance in recent years (with commercial interests being well represented) is simply fortuitous.
A number of judges over the last 50 years or so, Lord Denning, Lord Reid, Lord Devlin and, more recently Lord Bingham, to name but four, have had a big influence, by their decisions, on the development of UK law – including business management. There have been less successful appointments as well in that period – who shall remain nameless. The legal systems we have in the UK are moulded in great part by judicial decisions and interpretations and, given that each individual has something of themselves to give, the choice of personnel is rather more important than many realise.
The appointments made this year could influence the course of UK law, for good or ill, for a decade or more. I hope that the recent positive influences to UK business we have recently enjoyed continue for the future.
Who do you hope will be appointed – and does it really matter for our legal system?