The UKSC Blog (a very good resource for those who wish to keep bang up to date with the proceedings of the new UK Supreme Court) reports today that Jonathan Sumption QC has withdrawn his candidature for the remaining twelfth seat in the Supreme Court. The UKSC noted in October (picking up on a story in The Times) that “senior” judges from the Court of Appeal oppose the much discussed appointment of Jonathan Sumption QC to the Supreme Court to fill the one remaining vacancy. The article suggests that the judges are concerned about his lack of judicial experience as well as the “disincentive to other top names at the Bar to join the circuit or High Court”.
(I would like to be able to give the direct URL for the UKSC reports – but this does not seem to be possible (curiously) from their blog. The RSS feed is also not recognised by widgetbox or my RSS feed readers)
While I can well understand the ‘concerns’ of senior members of the judiciary, who themselves took the ‘vow of poverty’ to become High Court judges and then rose through effort, ability and patience (possibly) to do their time in the Court of Appeal, that a barrister who has not done his or her time as a judge should ‘leapfrog’ over them into the Supreme Court.It may well be essential that a Justice of The Supreme Court should have judicial experience – but this would preclude the possibility (envisaged by the legislation?) that the Justices could be joined and made more diverse by senior academics or very talented members of the Bar or the solicitors profession direct.
One assumes that these ‘senior judges’ from the Court of Appeal are not suggesting that appointment to the Supreme Court should be on the ‘Buggins’ Turn’ principle so beloved of many British institutions? That would, surely, be absurd. [ “Sorry chaps, we know there is this brain the size of a planet knocking at the door who may well do the job rather better than anyone else but we really have to let Buggins LJ have a go for a few years”? ]
It is not unreasonable to suggest that their concerns did not turn on the fact that a ‘start performer’ at the Bar or in practice as a City or other solicitor could decide not to take a lesser judicial appointment and continue to earn substantial amounts of money……. although this is hinted at in the UKSC blog post which notes…”the judges are concerned about his lack of judicial experience as well as the “disincentive to other top names at the Bar to join the circuit or High Court”. [ “Right… we have another person with the brain the size of a planet who is about to blow the bloody doors off…. he / she has been earning truly fantastic sums of money when others of his/her generation have defied mammon and done their duty by becoming High Court judges…. quick..close the doors and call a journalist to stir things up a bit” ]
It would, therefore, on this analysis (which may, I accept this, be entirely faulty and driven by fumes from painting too many pictures with paint from a spray can) come down to this – that a barrister or solicitor who has not done time as a judge is simply not suited to the work of the Supreme Court. I have no experience of practice but having talked to a person with considerable experience at the Bar and on the Bench, and from my own understanding of the role of the Supreme Court – such judicial experience is not vital to the very demanding and specialised issues facing the justices where intellect and understanding of the law in its most refined form, arguably, is so important.
We may have missed a trick. Jonathan Sumption QC, I am told by people who know, would have made a good Justice. He has withdrawn his application. Perhaps it would be a good idea to have the very best minds of our time in the Supreme Court and if these come from the Bar, academe or the solicitors side of the profession would it not be to our advantage to encourage change and recruit Justices from a wider pool?
Your thoughts, as ever, are most welcome in the comments section below.
This appointments process is interesting and there will have to be considerably more public scrutiny of how it operates than appears to be the case just now. There will also be more scrutiny of the views of those who get appointed. One thing we do not want is judges (however senior) briefing against particular applicants and this appears to the public to have occurred here. The old “soundings” and “tap on the shoulder” system has supposedly been replaced.
Is previous judicial experience needed as opposed to in depth knowledge of the law? Certainly, Parliament has never thought so since the Appellate Jurisdiction Act 1976 did not require it and neither does the Constitutional Reform Act 2005. Historically, Lord Radcliffe (1899-1977) was appointed directly from the bar to be a “Law Lord.” Similarly, a considerable number of Lords Chancellor had never been judges though they were entitled to preside over the Appellate Committee and did so up to the time of Lord Irvine of Lairg. Lord Falconer did not exercise his right to sit.
Obiter – Lord Radcliffe produced some quite interesting judgments. We shall see what happens….
I think it’s ok as an occasional thing -and I have a particular interest in Lord Radcliffe- but I think the key concern is indeed the disincentive to bother with applying to be a first instance judge. I can quite see it would have serious implications for the High Court bench if leapfrog appointments were regular.
There’s been much more of an emphasis on almost a career judiciary in recent years – I understand one is in practice expected to have done time as Deputy, or Recorder or CJ, before going up. Junior members of the bar were actively recruited for DDJ positions this year – I almost applied and may well next year. If that is the policy, shouldn’t the expectation carry through all the way? I think there is also some merit in the view that it is desirable one should have done some coal-face first-instance judging to give some leaven to one’s theoretical pronouncements at appellate level.
So far as Sumpion is concerned, he has his History of the Hundred Years War to finish (and his chateau to maintain). Plus there was a rumour going round that in the GOAT spirit Cameron had floated the post of Lord Chancellor/MinJ past him -though AG might be more appropriate.
[…] candidacy – we blogged about this at the time (a post which was the subject of an interesting comment by Charon QC on his blog). […]