19th August 2022
Because of recent retirements, there was recently just one David left on the Supreme Court of the United Kingdom.
There had been a David on the Supreme Court almost continuously since its creation – David Hope, David Neuberger, and now David Kitchin.
But the forced retirement of David Lloyd Jones meant there was the risk of there one day being none at all.
And then came the great news this week that David Lloyd Jones had been able to be reappointed, and – just to be safe – David Richards was also appointed to the Supreme Court.
That means a full one-quarter of the Supreme Court are now Davids – and this has been achieved without resorting to any quota.
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More seriously.
Some say there is something unsatisfactory about the appointments this week.
Both the judges who were appointed have outstanding judicial reputations – and it may well be that they were the best lawyers available for the job.
And there have been moves to open up who sits on the Supreme Court since it was founded in 2009 – with appointments from Academia and bodies such as the Law Commission, and also directly from the Bar, to circumvent the usual route from the High Court and Court of Appeal.
Yet some will find it hard to believe that merit means a quarter of the Supreme Court should be Cambridge graduates with the first name David.
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But.
What – if anything – should be done?
It is one thing to say there is a problem, and it is another one to solve it.
Some people favour quotas – and they make the point that the historic near-uniformity of appointments was (and is) itself a quota system, but in reverse.
Others dislike quotas and positive discrimination on principle, or doubt the efficacy of quotas and positive discrimination in practice.
But before quotas and positive discrimination are even considered, it would perhaps be better for the current system to be opened up as much as possible, to see what happens.
Dinah Rose QC – who would have been a good appointment as a Supreme Court justice directly from the Bar – said the following on Twitter this morning:
I consider that the secrecy, involvement of SC justices in process, and "consultation" of senior judiciary are the routes by which subconscious biases most easily enter. They favour self-replication. If asked what merit looks like, it's too tempting for judges to say: "like us".
— Dinah Rose (@DinahGLRoseKC) August 19, 2022
And she posted a remarkable excerpt from Lord (David) Hope’s published diaries:
Here's an extract from Lord Hope's diaries, about the selection process for President of the SC in 2012. pic.twitter.com/Bo3dvLNOMw
— Dinah Rose (@DinahGLRoseKC) August 19, 2022
That really is an extraordinary passage, and it does not become any less extraordinary with re-readings.
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Rose is a persuasive advocate, but before nodding-along with and clapping her well-made points, I wanted to see what the Supreme Court itself said in response.
So I asked them.
Although the Supreme Court (sensibly) does not comment on tweets, in response to my questions a spokesperson said:
“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, here: https://www.supremecourt.uk/news/judicial-vacancies.html and was also publicised across our social media channels.
“The news story that was published on our website on 11th February 2022 to launch the applications also states that there were two vacancies for these positions: https://www.supremecourt.uk/news/supreme-court-launches-selection-process-for-new-justices.html
“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: https://www.supremecourt.uk/about/appointments-of-justices.html
“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.”
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So the positions were advertised, and the selection commission would seem to be a model of diversity.
There are things in what the spokesperson said there which are good to see.
And a read of the relevant detailed and dedicated page shows how the Supreme Court went about the selection process.
There is a question to be asked about whether the current President of the Supreme Court – or any other current sitting justice of the court – should be part of the selection commission.
And the process could be more transparent – with, as Rose avers – published shortlists and criteria.
So the Supreme Court has got something to say for itself, and there is evidence that it is trying to be more diverse in its appointments.
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But.
In the end, despite the above process, two more Davids were appointed.
Does this mean that the Supreme Court should do more?
Can it – or those who control the process – do anymore?
Or is this a wider problem in the legal system which needs a wider solution?
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I’m interested in Dinah Rose’s point about Supreme Court justices not appointing their colleagues. Because one might be tempted to argue exactly the reverse. If we are concerned that appointment decisions should be made as impartially as possible, we should have those decisions made by the same people that we trust to make all other impartial decisions: judges.
For reference, the Dutch Supreme Court (Hoge Raad) is appointed in a three-stage process:
– The Supreme Court sends Parliament a preferred candidate and five other appointable candidates
– Parliament (or rather, a committee of the lower house) interviews the six candidates and sends a list of three to cabinet. Typically the Court’s preferred candidate is also Parliament’s preferred candidate
– Cabinet advises the King to appoint one of the three. Typically, the individual who was preferred by the Court and by Parliament is appointed.
In other words, while the Dutch system has some wiggle room, generally the members of the Hoge Raad appoint their own colleagues. And, give or take the occasional occupation, this is how it has worked to everyone’s satisfaction since the 15th century.
Don’t give way to that temptation Martin. We trust Judges to recuse themselves from matters where they might have a personal interest/bias. This to me, seems to be such an occasion.
Referring to things working to everyone’s satisfaction since the 15th century surely can’t hold much weight, especially not when we are engaged in discussing matters of transparency or a lack of diversity.
The Supreme Court is right to highlight its process. It is as transparent as many job adverts/processes are. I think the argument here is that for such an important public appointment, where every appointee to date has been white, and the vast majority have been men, we might need a little more.
One might ask whether it matters whether the Supreme Court bench is – and is seen to be – diverse (in terms of sex, and age, and ethnicity, and background) if the judges are able to do justice.
I think it does. One of the strengths of a panel of appeal court judges is bringing together a wealth of experience, and not just on the law, but matters of policy too. Diversity makes that strength even stronger. Are we saying that the 11 old white men (and one old white woman) on the panel are the best possible candidates today? All Oxbridge graduates (except for Lord Stephens); and the youngest (Lord Sales) is aged 60. That there are really no other women, or people of colour, or people born later than 1962, who could serve just as well? (For comparison, many US Supreme Court justices have been appointed in their 40s, and a few in their 30s.)
It is possible that the membership of the Supreme Court could remain stable now for about four years. Just appointed, Lord Richards is the oldest current justice on the Supreme Court, and he can serve until June 2026, so not just keeping a place warm for another candidate. Lord Lloyd-Jones served just over 4 years on the Supreme Court bench before he was forced to retire this January, and now can serve another four years, until January 2027.
I’m not impugning the process, but the selected justices do so often appear to be older white men. Perhaps that just reflects the pool of suitable candidates, and things will improve over time. It was not until 1988 when the first woman was appointed to the Court of Appeal, and Jill Black was just the sixth in 2010 . Numbers on the Court of Appeal have increased rapidly since then, and now it is 10 women out of 37, with senior appeal judges such as Julia Macur and Eleanor King waiting in the wings. Rabinder Singh was the first BAME Court of Appeal judge, in 2017.
I’m not asking for quotas, but we do have an informal earmarking of places for judges from Scotland and Wales and Northern Ireland, and I expect another woman will be appointed before Lady Rose departs. (RBG famously said she thought there would be enough women on the US Supreme Court when there were nine – out of nine – and pointed out that there had been nine men many times.)
Thank you for your interesting and informative comment.
As a non-candidate for any such post (despite being a Cambridge graduate with David as a first name!) I take all your points except for your remarks about age. Whatever attributes may be desirable, and I am sure that diversity in political perspective, gender, racial/ethnic background and even branches of the law would also be invaluable, there are also some attributes that would be less desirable. Total ignorance of the law, for example, or a less than average mental capacity – despite the fact that individuals with those attributes are no less valuable or deserving of legal consideration and protection.
I would suggest that a shortage of practical legal experience would also come into this category, and while there is ample room for debate about how much experience would be enough, it seems unlikely to me that an optimal level would be reached while the candidate was still advancing in her or his career. In this respect the US Supreme Court is not at all a good example as the increasing tendency to appoint young justices is more a reflection of the appointing President’s desire to preserve his legacy for as long as possible (one of the many drawbacks of lifetime appointment).
As a reader from the US, and a lawyer, and therefore I think entitled to say it, the selection process for US Supreme Court judges stinks. You have only to look at the last half-dozen years to see how bad it has become: the Senate (needed for confirmation) not considering a nomination because, according to the majority leader of the time, the President was in the last year of his term and so the next President should get to nominate the justice of his choosing; and so on. The process is being used to set into place a set of justices of a particular ideology; and younger candidates are being nominated to ensure that ideology stays in place for many years. Would that we had a system like the UK one.
Thank you for this very interesting piece, and for obtaining a statement from the Court.
It’s striking that the statement is silent about the “secret soundings” process, in which current Supreme Court justices are invited to comment privately on the candidates. Failing to mention this significantly downplays the degree of influence exercised by the justices over the appointment of their colleagues.
This is a process which carries the obvious potential for abuse, including the settling of old scores, or championing of friends. Most recruitment processes use a limited number of referees, identified by the candidates. It’s strongly arguable that this one should too, and that they should not be permitted to be members of the Court.
I’d like to ask what I fear may come across as something of a provocative question, which is to think about the ways that we can objectively assess the suitability of a candidate for a senior judicial vacancy.
Among the banal possible answers, one that might be interesting would be to consider their record. For example – and I’m asking because I don’t know – would there be any merit on considering judges based on the outcome of decisions they have had appealed?
For example, if two justices had each tried 250 cases in their bench career before being shortlisted, but one had been reverse 50 times and the other 20 times, does the difference matter? Does the number of times an appeal is raised matter? What other criteria could we evaluate.
It seems to me that the impact of judicial rulings is so significant – especially when considering the deprivation of someone’s liberty – that we need to go to extraordinary lengths to pick a justice that is competent, even-handed, absent political and/or social bias and, ideally, going to stick around in the role for long enough to make a difference. (e.g. young enough to serve for a reasonable number of years).
It’s a difficult, poignant question, though, because one need only look “across the pond” at the outrageous “stuffing” of the Supreme Court there by Mitch McConnell to realise just how fortunate [so far] we have been here in the UK…
I’ll end with something a bit more provocative… If ever you’ve watch film footage of pilots landing aircraft on an aircraft carrier, you may have seen a cluster of guys watching each incoming flight from one of the towers, usually with binoculars. Those are “off-duty” pilots, and they monitor and grade *every single landing* by *every single pilot* on that ship. The rigor is *far* more demanding than used by the air force on land [for example] and is done because of risk.
So how about making “blind” review of judicial rulings the norm, not the exception. (The obvious answer is “the cost…”, but to offer that is to ignore the cost of not doing so). Probably lots of things we could do if we wanted to enhance the quality of justice in the UK.
It’s odd is it not that there is no required member of the Appointments Commission with clear Welsh connections. Nor a requirement for all three nations and one province of the UK each to be represented on the Supreme Court itself?
One might of course say the same about the Bank of England (Ahem)
Well, there is a requirement in section 27(8) of the Constitutional Reform Act 2005 for the Supreme Court appointments commission to “ensure that between them the judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom”. So that explains why there are always Supreme Court judges drawn from the Scottish and Northern Irish legal regimes. (The House of Lords similarly had representation from all thee legal jurisdictions in the UK.)
Wales is a little peculiar, in that in formal terms it is not (yet) recognised as a separate legal jurisdiction, notwithstanding the legislation passed by the Senedd, but it is still a part of the single system of courts and lawyers for “England and Wales”.
For what it is worth, I think there is already a separate system of “Welsh law” which is slowly diverging from “English law”. Eventually that may be recognised in more formal terms. Perhaps part of the reason for reappointing Lord Lloyd-Jones is his Welsh background and experience.
How about having a machanism whereby periodically (maybe annually) those who are deemed suitable are added to a panel and when a vacancy arises it is filled by a lottery choosing one of the panellists?
I feel readers would do well to heed Derek Freyburg’s comment. More diversity in the UK Supreme Court would of course be welcome. Nevertheless, the system of judicial appointment in the United States shows how senior judges can and will be used to sew the seeds of social unrest and to further quite extreme political agendas. UK courts will not bend to the will of politicians and we ought to be thankful for that.
Interesting post. The series of embedded tweets and the extended series of replies to the last one too. As I understand the underlying fact patterns [and without having read the book, or meaning to deride any of the above] :
Hope was elected Dean of Faculty in 1986, served in that capacity to 1989, and was then appointed directly to be Lord President and Lord Justice General; ie Scotland’s most senior Judge. – Granted its not as large an apparent leap as those by Reid or Mackay of Clashfern; those with greater knowledge will perhaps have views on how it compares with Sumption’s from bar to being one of the UKSC justices. – Perhaps this in part informed his self-comparison to Neuberger; perhaps (as he would have known his own view of his reputation as Dean without needing to remind himself in his diaries) he’s mildly joshing his readers and/or himself. Perhaps Hale just had an off-day.
I had thought there was a more formal quota arrangement on the territorial side, but can’t find it ATM. Has anyone done an analysis of the salient characteristics of the senior judiciary using metrics a bit more granular than whether someone is white or male or not?
I do hope that the David Lloyd-Jones that you speak of is not the same David Lloyd-Jones that I used to know…
I think I don’t need to hope very hard: it is very unlikely.
I’d like to make the observation that the court’s response to your query shows a massive contrast to almost every other such response I have seen from any other organisation.
In my experience information needs to be dragged out of most places screaming and kicking.
A distant friend of mine told me that at his workplace candidates have 3 interviews, and the final one is about ensuring a good fit with the existing team members. To my understanding, any existing team member can veto any candidate at that stage.
I did wonder whether that would result in an un-representative workplace, the extract from Lord Hope’s diaries embody that. It sounds like the Supreme Court (now) acknowledges there is a problem, so maybe over the next decade it will improve.
Part of the problem with quotas is it undermines the genuine merit of candidates who fit the quota criteria, at least in the eyes of some people. This can result in people leaving because they aren’t supported.
“Applications are sought from a wide range of candidates, including those who are not currently full-time judges” This passage surprised me, doesn’t experience as a judge make you a better judge, or have I misinterpreted it?
This is a problem with many leadership / powerful roles and the proportion of marginalised groups that are represented. And the clarion call of “We just want the best candidate” is very simple and hugely alluring. But surely the logical conclusion from “we appoint the best candidates” and “we have appointed disproportionately many old, white men” is that somehow old, white men are better than everyone else. And unless you genuinely believe this (in which case I am probably wasting my breath) something, somewhere has gone wrong and we should attempt to fix it with a bit more than platitudes.