Introduction

The Supreme Court of the United Kingdom (UKSC) is a much more visible and accessible institution than the Appellate Committee of the House of Lords. Through delivering extra-curial speeches on matters of general public importance beyond technical points of law and engagement in an array of ‘outreach initiatives’, individual Justices of the Court are becoming subjects of fascination themselves in addition to the interest around the Court as an institution.

It is against this background that Professor Andrew Burrows’ recent appointment to the Court alongside Lord Justices Hamblen and Leggatt is a significant development. This is the second time an individual has been appointed to the Court without having held ‘high judicial office’ within the meaning in section 60(2) of the Constitutional Reform Act 2005 (CRA). Including these recent appointments, there have been 19 direct appointments to the Court. Of these, 15 (c.79%) have been elevations of Lords and Lady Justices of the Court of Appeal of England and Wales. Minus Professor Burrows, the other three appointments were also of individuals with professional backgrounds as appellate judges, but outside England and Wales. Lords Reed and Hodge were appointed to the Court from their positions as Senators of the College of Justice in Scotland where they sat in civil appeals in the Court of Session and criminal appeals in the High Court of Justiciary. Lord Sumption was of course appointed from the Bar of England and Wales, but he too had the experience of being an appellate judge having served on the Courts of Appeal of Jersey and Guernsey.

Therefore, the appointment of a candidate without the professional background of being an appellate judge, such as that of Professor Burrows, is exceptional. In this post, I speculate on why it has taken so long to appoint a candidate who has not held ‘high judicial office’ despite the breadth of the criteria governing eligibility for appointment, and the longstanding commitments to have a larger and diverse pool of eligible candidates.

Who Gets Appointed to the Top Court? 

Section 25 of the CRA sets out the qualifications for appointment to the UKSC. Professor Burrows presumably satisfied the opaque ‘judicial-appointment eligibility condition’ in section 25(1)(b) of the CRA. This criterion captures candidates who have qualified as solicitors or barristers in England and Wales, for at least 15 years, and thereafter ‘are gaining experience in law’ in the post-qualification period. Gaining experience in law is defined elsewhere in the Tribunals, Courts and Enforcement Act 2007 as ‘a period […] during which the person is engaged in law-related activities.’ Among the eight things listed as examples of ‘law-related activities’ in the 2007 Act is ‘teaching or researching law.’ There is a further ‘catch-all’ provision which includes ‘any activity that, in the relevant decision-maker’s opinion, is of a broadly similar nature to an activity’ in the foregoing list.

Thus, the judicial eligibility condition for appointment to the UKSC is to a degree permissive and deliberately calibrated so to create a larger pool of eligible candidates beyond the relatively smaller grouping of judges who have held high judicial office. This is why the information pack published by the Court in advance of these recent appointments emphasised that:

Applicants are sought from the widest range of candidates eligible to apply, including those who are not currently full-time judges and particularly those who will increase the diversity of the Court.

Beyond the diversity of professional background, the lack of demographic diversity among the Justices is still a salient issue. The appointment of Lord Reed as a successor to Lady Hale as President of the Court and the appointment of three men to fill this and the two vacancies created by the upcoming retirements of Lords Carnwath and Wilson will reduce the number of women Justices from three to just two. As the Court has already confirmed, the selection exercise to appoint Lord Reed’s successor as Deputy President ‘will be an internal competition’ since the appointments of Lord Justices Hamblen and Leggatt and Professor Burrows mean there will not be a vacant post among the ‘full-time equivalent’ Justices until Lady Arden retires in 2022. I offer three reasons why it has taken nearly ten years for a candidate who has not held ‘high judicial office’ to be appointed to the Court.

A ‘Brave’ Appointment

Firstly, unlike the system of appointment to the Appellate Committee of the House of Lords, the current system relies on eligible persons making applications in the first place. As noted in a review of these procedures, a ‘non-statutory’ part of the selection process requires eligible candidates to submit applications. It is possible that the introduction of an application-based system of selection for the higher judiciary generally removed the flexibility which was inherent in the old ‘tap on the shoulder’ system of selection and appointment led by the Lord Chancellor’s Department. Reflecting on her own appointment to high judicial office, Lady Hale has observed that:

[The Lord Chancellor] did also have the flexibility to be a little bit brave. In 1994 for example, he was extremely brave, he appointed me to the High Court and I was an academic, not a practitioner, and he appointed the first solicitor to be a High Court Judge. So, there was a little bit of flexibility there […]

In contrast, selection commissions convened for appointments to the UKSC select applicants to be appointed to specific vacancies. Thus, the actual pool of candidates is limited to persons who apply in each recruitment exercise. The ‘fishing expedition’ which was afforded to the Lord Chancellor’s Department to select what Lady Hale further calls ‘an off the wall candidate’ is no longer available.

Secondly, the requirement that candidates be called to the bar or qualify as solicitors, for at least 15 years, is arguably excluding distinguished academics from the eligibility pool altogether. This element of the ‘judicial-appointment eligibility condition’ does not actually require that applicants practise law, it only stipulates that they are called to the Bar or qualify as solicitors. The requirement is an artefact from a time when many, if not most academics teaching and researching law would have routinely qualified as solicitors or barristers before joining the academy. However, as readers of this blog will know, for some time, the normal or even required path to a legal academic career has been through a doctoral qualification rather than a qualification to practise. There is now a disjuncture between this element of the ‘judicial-appointment eligibility condition’ and the changed relationship between the legal professions, the academy and the bench. Soon, it will be very difficult to find distinguished academics such as Professor Burrows who readily satisfy this element of the condition. Furthermore, the length of the post-qualification period self-evidently limits the eligibility pool to older candidates. It is a remnant from a time when, as Kate Malleson describes, ‘the appointment of judges in their late 50s and 60s was accepted as a necessary and inevitable consequence of a merit system in which those in that age group make inherently better judicial candidates.’ If the intention now is to have a larger and more diverse pool of eligible candidates for appointment to the UKSC, then the constitution of ‘the judicial eligibility condition’ needs to be rethought.

The third reason, which all the more makes Professor Burrows’ appointment ‘brave’ – in the sense invoked by Lady Hale – is to do with the established expectations of the professional background of judges on final courts of appeal in common law jurisdictions. In the common law context, senior judicial appointments are still perceived as ‘crowning achievements’ on a successful career at the Bar usually marked out by an elevation to either Queen’s Counsel or Senior Counsel depending on the jurisdiction. In the UK context, a seat on the final court of appeal has usually been preceded by a QC’s appointment to the High Court and thereafter, the Court of Appeal (or their equivalents in the Scottish context). The territorial appellate courts, in particular, the Court of Appeal of England and Wales, remains what Rosemary Hunter designates the ‘de facto pool of potential candidates’ for appointment to the UKSC.

Conclusion

For now, the likelihood of future ‘brave’ appointments to the Court is dependent on eligible candidates who are not holders of ‘high judicial office’ applying in upcoming selection exercises. However, the success of these candidates is also reliant on a cultural shift in what we expect in the professional background of a Justice of the UKSC. In the long-term, the system of appointment itself, principally elements of the judicial eligibility condition, need to be reformed to reflect the contemporary relationship between the judiciary, the legal professions, and the academy.

Byron Karemba is a member of the executive committee of the Judicial Diversity Initiative. He is grateful to Kate Malleson for feedback on an earlier draft. However, all views and errors in this post are his alone.

(Suggested citation: B. Karemba, ‘A “Brave” Appointment? On Professor Burrows’ Appointment to the Supreme Court”, U.K. Const. L. Blog (4th Sept. 2019) (available at https://ukconstitutionallaw.org/))