The recent confirmation of a new judge's appointment to US Supreme Court was remarkable, for all the wrong reasons. The US Senate's committee hearings and vote, confirming the appointment of Brett Kavanaugh (Republican President Donald Trump's nominee), took place in a poisonous political atmosphere. 


Democratic Party senators' calls for investigation of allegations of sexual assault against Kavanaugh appeared to be as much about trying to delay a vote until after the mid-term elections, as they were about finding out what really happened. There was little room for debate about Kavanaugh's judicial qualities or legal achievements. 

Over in the UK, judicial appointments to the highest court attract much, much less public attention. Here, there have been a number of recent changes to the UK Supreme Court bench. We reflect on these changes and what they may mean for court users.

The changes are the result of the retirement of three justices in a relatively short space of time: Lords Mance and Sumption (commercial law specialists) and Lord Hughes (a criminal law specialist). Their replacements are Lady Arden, Lord Kitchin, and Lord Sales. At 56, Lord Sales is relatively young to be appointed a judge of the UK's highest court. (The record is 50.[1]) 

Before becoming a judge, Sales was a "Treasury Devil" - standing counsel to the government on civil matters - for a number of years. Then, as a High Court judge, he presided over a number of major trials, including disputes between executives at investment manager F&C, a property case about an oil terminal on the River Humber, and litigation over bonds issued by Polish conglomerate Elektrim. Lady Arden made her reputation as a corporate law specialist. Lord Kitchin is an intellectual property law specialist.

Lords Mance and Sumption are respected commercial lawyers, and their retirements are a loss to English commercial law. Lord Briggs, another respected commercial lawyer, remains on the court, but the appointment of another commercial specialist in due course would be welcome.

Lady Arden's appointment increases the number of women on the Supreme Court to three (of a bench of twelve), and continues a trend towards more women being appointed to the court. But, having already served for 18 years on the Court of Appeal, her tenure on the Supreme Court will be relatively brief. 

The balance of men and women on the Court is improving, but it still lacks diversity in other areas. There is plenty of scope for change in the next few years. Average tenure on  the UK Supreme Court is short, compared to its US counterpart. Another four retirements are expected by 2023.  They will include the current President, Lady Hale – the first woman ever to be appointed to the UK's highest court. 

A possible candidate to succeed her is the current Deputy President, Lord Reed. Lord Reed would become the first Scot to lead the UK's highest court in over twenty years. He was one of three dissenters in the recent Miller and Dos Santos "Brexit" appeal, who thought that the UK government alone, without Parliament's support, could trigger the UK's departure from the EU. He was notably cautious about the court's place in such troubled political waters, saying that "…controls over the exercise of ministerial powers under the British constitution are not…primarily of a legal character…[and] legalisation of political issues…may be fraught with risk, not least for the judiciary".

Although the UK Supreme Court is frequently involved in such important political and social issues, there is little sign of popular interest or debate about new appointments. That is not altogether surprising: the job has never been a high profile one. Judges in the UK are not elected to their office. They come overwhelmingly from professional legal practice. Very rarely have they held elected positions such as MP, or served in other areas of public life. In 2009, Lord Bingham, who served for eight years as the senior judge on the Supreme Court's previous incarnation, wrote that the public profile of his job could scarcely be lower[2]. Three people have held the position since then, and the profile has not gone up a lot.  

Also, the process of appointing Supreme Court judges is opaque. The selection committee, on which the President of the Court and another senior judge sit, assesses job applications in private. The committee privately consults other senior judges. Its recommendation is then decided by the Secretary of State for Justice/Lord Chancellor – who has always approved it, according to Lady Hale[3]. There are no confirmation hearings in the UK Parliament. Appointments are not decided or vetted by Parliament's Justice Select Committee. 

Whatever the reasons for the lack of publicity, a discrete appointments system seems very welcome for now, given the recent experience of the Kavanaugh hearings. Longer term,  the system probably needs change. Alexander Horne, a constitutional scholar and legal adviser to Parliament, has argued that Parliament should have a role in deciding which candidates to appoint, as a way of checking and balancing the power of what he calls the UK's "new judicial empire"[4].  But reform is unlikely to happen any time soon. If and when it does, Kavanaugh will be a reminder to reformers that the politicisation of legal issues can also be "fraught with risk".

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Duncan Henderson

Duncan Henderson

Managing Associate (Barrister), Finance Disputes
London

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[1] Held by Lord Radcliffe, a member of the Supreme Court's previous incarnation, the Appellate Committee of the House of Lords: see Lord Bingham, “The Law Lords: who has served”, p,123, in L Blom-Cooper, B Dickson and G Drewry (eds), The Judicial House of Lords 1976-2009, Oxford University Press, 2009. 

[2] Bingham, p126.

[3] Baroness Hale, "Appointments to the Supreme Court", speech at the Unversity of Birmingham, 6 November 2015 (https://www.supremecourt.uk/docs/speech-151106.pdf)

[4] Alexander Horne (2014), "Is there a case for greater legislative involvement in the judicial appointments process?", p.74