Appointment of Justices (2016-2017)

…The number of litigants in person applying for permission to appeal to the Supreme Court has risen slightly during the year, from 22 last year to 24 in 2016-17…

Supreme Court, Annual Report and Accounts (2016-2017)

With Lord Toulson’s retirement last summer we have been operating for most of the year with 11 Justices and I am grateful to my colleagues for shouldering the extra burden uncomplainingly. My retirement this coming summer, along with Lord Clarke’s, has prompted competitions for a new President and two, possibly three, Justices. So there will be some significant changes at the start of the new legal year, with more to come, given that there are three statutory retirements in 2018 and three in 2020. We shall also be adjusting to changes brought about by the UK’s withdrawal from the European Union.  (Lord Neuberger)

Key Issues:

In addition there is a Strategic Advisory Board (SAB), which comprises:

  • the President,
  • the Deputy President,
  • one other Justice appointed by the President,
  • the Chief Executive,
  • the Director of Corporate Services,
  • the Registrar, and
  • the UKSC’s two NonExecutive Directors.

Its remit is to consider the strategic direction of the Court and to approve and review the UKSC’s Strategic Framework. This board has no direct role in managing either the judicial or non-judicial functions of the Court. It met three times in 2016 – 2107, in June, October and February. A consequence of creating the SAB was that the number of meetings of the Management Board was reduced to six times a year at two monthly intervals. In 2016 – 2017 it therefore met in May, July, September, November,  January and March.

In 2015 the Government introduced changes to judicial review and the leapfrog appeals procedure which were given effect in the Criminal Justice and Courts Act 2015. We were consulted by Ministry of Justice officials on those provisions which affected the Supreme Court. So far, the wider range of cases that can “leapfrog” to the Supreme Court has not led to a significant rise in the rate of applications for permission to appeal, though we will continue to monitor this closely.

For the first half of this year the Court operated with a full complement of twelve Justices. However, Lord Toulson reached his statutory retirement age in September 2016, and for the rest of the period covered by this Report there were eleven Justices. Lord Toulson has sat occasionally since his retirement as part of the Supplementary Panel of Justices. Supplementary Panel member ceases to be on the panel after five years of ceasing to hold a qualifying office or (if earlier) when 75. Lord Gill reached the latter milestone in March, while Lord Hamilton and Lord Dyson remain members of the Panel.

Procedure for appointing a Justice of the Supreme Court of the United Kingdom:

  • In addition to Lord Toulson’s retirement, a further five vacancies for Supreme Court Justices are due to arise before the end of 2018.
  • Lord Neuberger reaches his statutory retirement age in January 2018 but has indicated he will leave in the summer of 2017 to allow his successor to begin at the start of the new legal year.
  • Lord Clarke reaches his statutory retirement age in May 2018 and has similarly indicated that he will retire at the end of the current legal year.
  • Recommendations for appointments to the UKSC are made by an independent
    selection commission, convened by the Lord Chancellor under rules set by Parliament.
  • The Constitutional Reform Act 2005 and the Crime and Courts Act 2013 stipulate the main elements of the process to be followed, including the senior judges and politicians who need to be consulted at different stages of the process.
  • It was announced in July 2016 that, in order to encourage the broadest and most diverse range of applications and achieve the most efficient process for candidates and the selection commission, recruitment for the forthcoming vacancies would be grouped together in several joint selection exercises.
  • In November, the Lord Chancellor wrote to Lord Neuberger and Lord Kakkar (Chair of the Judicial Appointments Commission for England and Wales), inviting them to convene selection commissions to fill the vacancies created by the retirements of Lord Neuberger, Lord Clarke and Lord Toulson. The Selection Commission to find a successor to Lord Neuberger as President of the Supreme Court has a slightly different membership to reflect the fact that the President does not sit on that panel and instead it is chaired by the Chair of one of the three judicial appointments bodies, in rotation.
  • The full membership of that panel is:
    • Lord Kakkar,
    • Lord Thomas (Lord Chief Justice of England and Wales),
    • Lord Mance,
    • Professor Nichola Rooney (a Commissioner of the Northern Ireland Judicial Appointments Commission), and
    • Deirdre Fulton (a member of the Judicial Appointments Board for Scotland).
  • The membership of the panel to recommend candidates as Justices is:
    • Lord Neuberger,
    • Lord Thomas,
    • Lord Kakkar,
    • Professor Nichola Rooney, and
    • Deirdre Fulton.
  • When planning the recruitment process, the selection commissions considered a
    number of the recommendations made by the Court’s former Chief Executive Jenny Rowe in her report of July 2015, which sought to identify improvements to the procedures used to fill vacancies during the first five years of the Court, particularly in terms of attracting a more diverse range of eligible candidates.
  • All three vacancies were advertised widely and a dedicated section of the UKSC
    website presented information on the job description and selection criteria, supported by a media campaign to raise awareness of the opportunities.
  • Other steps undertaken by the USKC and the selection commissions to encourage a broad pool of eligible applicants included the launch of ‘insight sessions’ to give potential candidates an opportunity to make a private visit to the Court and discuss the role with a serving Justice, and ensuring that the application material made clear the availability of part-time working for new Justices.
  • Applications closed on 10 March and, at the close of the period to which this Report relates, the selection commissions have considered the applications submitted and are proceeding with the appointment process by way of interviews of shortlisted candidates.
  • It is hoped that that the names of those appointed will be announced by HM Government on behalf of HM The Queen by the end of July, and the new post-holders will take up office at the beginning of the new legal year in October 2017.