A wrong assumption
On why the opposition of Court of Appeal judges to the possible appointment of Jonathan Sumption QC to the Supreme Court is misplaced
The welcome and popular appointment of Lord of Neuberger to the post of Master of the Rolls has also had the consequence that a vacancy has emerged for a position in the new Supreme Court. Because this judicial appointment involves questions of what barristers want, and how and when they ought to be considered a judicial appointment (along with others) I think this is a suitable matter for QC blog as opposed to an article.
By statute, appointment to such court is to be on merit. A position in the Supreme Court is hugely important both from the point of view of the legal profession and the public at large. As previously indicated here, it is inevitable that by changing the principal appellate body to the Supreme Court the powers and reach of that body are likely to develop. Therefore, never mind about the statutory requirement for appointment on merit, it is absolutely crucial for good governance and the proper development of the law that the very best people are appointed.
Pursuant to the Constititutional Reform Act 2005, the actual choice of who will become the new member of the Supreme Court comes down to a small selection panel chaired by Lord Phillips of Worth Matravers, the President of the Supreme Court.
Becoming a judge of any sort is a huge step for any barrister. Some barristers would never want to be a full-time judge (this one for starters). (Some barristers make absolute statements like that and then change their mind and live to regret them (hopefully not this one)). Some barristers are desperate to become full-time judges but do not get the opportunity due to the competition. Some barristers have reached a stage where they have had enough and would like to leave the hurly-burly of practice for an impartial role. Yet more have had a hankering for a judicial career from the outset. Even then some of them do not make it.
Of course nowadays it is not merely barristers who become judges. Lady Hale, the first Lady Law Lord and the first lady Supreme Court Justice, was principally an academic before going to the bench. Lord Collins was a solicitor. However it is fair to say that the traditional route has usually been for someone to become a High Court Judge (possibly having become a circuit judge before that) and then if promoted to move on to become a Lord Justice of Appeal and then a Law Lord (or now Supreme Court Justice). There have however been historical precedents of people being appointed directly to the Lords. One such was the extremely distinguished judge Lord Reid, who had held important law officer positions in Scotland, and who, as Wikipedia puts it "was one of very few men to be appointed a Law Lord straight from the Bar, without any intervening judicial experience ". Any Supreme Court Justice of the calibre of Lord Reid would be extremely desirable, let alone welcome.
It is apparent from the new stories that Jonathan Sumption QC, variously described as the cleverest man in England and is having a brain the size of a planet, has applied for a position on the Supreme Court. (Why he would want such a position , when he has such a stellar practice which must give him pleasure and profit in equal measure, I do not know, but if he has reached the stage where he wants to become a judge good luck to him). Although I have not met Jonathan Sumption, all of those I know who have met him describe him as being as pleasant and modest as he is brilliant. Qualities he shares with Lord Neuberger. For good measure Jonathan Sumption is also a noted mediaeval historian. Indeed the popular author, Bernard Cornwell (perhaps best known for the Napoleonic "Sharpe" series) in connection with his novels about the Hundred years War stated how indebted he was the seminal works by the historian Jonathan Sumption. I did wonder whether Mr Cornwell was aware that Jonathan Sumption also had another very important hat as probably the most successful man at the Bar, but you would derive no clue as to that from Mr Sumption's history books.
Mr Sumption in trying for the Supreme Court place is up against a number of members of the Court of Appeal, who it is fair to say are all distinguished judges in their own right. However I'm afraid their suggestion that it would be wrong to appoint the new Justice from outside the judicial ranks is misconceived. The suggestion being made by such judges is apparently that this will deter high earning silks from accepting judicial appointments and working their way up the ranks, if they think they can go straight to the top. I'm afraid even before one ignores the obvious Mandy Rice Davies quote of "they would say that wouldn't they" this thinking is utterly wrong.
Firstly this ignores the important statutory indication that the appointment should be on merit. If Jonathan Sumption is the outstanding candidate, as I suspect that most informed people without a vested interest believe, then it is with respect ludicrous to suggest that because he has not "served his time" he should in some way be excluded from consideration.
Nor is it right to suggest that this will stop the creme de la creme from going to the judiciary. A Sumption or a Pannick does not come along very often. The intellectual excitement generated by such a practice is unlikely to make them want to leave it prematurely. (And if such a person does decide to go, like Lord Neuberger, there is no reason to suppose that they will be dissuaded from commencing a full-time judicial career just because there is slight chance that they might make it directly to the Supreme Court). The excitement of being involved in the highest court may well appeal to some stellar talents who would otherwise not consider the judiciary. The reality is that such people will be lost to the Supreme Court unless the opportunity of a direct appointment is present. There is no more reason in the case of such people to suppose that they would be any more likely than Lord Reid to fail.
It is also wrong to suggest that such people lack judicial experience entirely. Jonathan Sumption has sat as a deputy High Court Judge. A brain such as his would be useful at the highest level of the judiciary. If he were to start from the bottom now then it would be far too late for him to make it to the Supreme Court where he belongs.
If they are to have a Supreme Court, the people of this country deserve the best. Whether such person has already been a full-time judge is neither here nor there. Whilst most appointments are likely to be from full-time judges, this is one exception which should very definitely be made.