How The Supreme Court Justices Got Their Titles

On December 10, 2010, the Queen issued Royal Warrants conferring courtesy titles on the Justices of the Supreme Court of the United Kingdom. The justices would thereafter be known as ‘lord’ or ‘lady,’ while the wives of male justices would be entitled to the title of ‘lady’ as well (the husbands of female justices or the civil partners of justices in same-sex relationships wouldn’t receive any accolades). This decision came as a surprise to many, and some critics felt that it was a step in the wrong direction. Now, thanks to information released by the Ministry of Justice under Britain’s Freedom of Information Act, we can finally peek behind the curtain and see how this decision came to be made.

When the justices’ new courtesy titles were announced, the official explanation was that they were necessary to ensure consistency. The Court’s first justices already had titles since they were former Lords of Appeal in Ordinary,[1] but their replacements wouldn’t necessarily have peerages (e.g., Sir John Dyson, who joined the court in April 2010). This allegedly created confusion in the courtroom, as lawyers weren’t always sure how to address a justice.

However, the documents released by the Ministry of Justice reveal a more complicated narrative. In January 2009, the Senior Law Lord (and future President of the Supreme Court), Lord Phillips of Worth Matravers, wrote to the then-Lord Chancellor, Jack Straw, to raise the issue of courtesy titles for the new court. The timing of this letter is interesting because it predates the establishment of the Supreme Court by almost ten months, so it shows that the future justices were worried about titles from the very beginning.

In his letter to Straw, Lord Phillips noted that judges in different parts of the United Kingdom received different titles. For example, High Court Justices from England and Wales and Northern Ireland automatically receive knighthoods or damehoods on their appointment, while Lords Justices of Appeal from those jurisdictions are always made Privy Counsellors (Sir Seamus Treacy notwithstanding). Meanwhile, Senators of the College of Justice[2] in Scotland receive the courtesy title of lord or lady (they are not, however, peers), and they become Privy Counsellors if they are promoted to the Inner House of the Court of Session. As a result, new Supreme Court justices would come to the Court with a range of titles, or even no title at all (e.g., a candidate appointed directly from the Bar[3]).

“Not only does this have the potential to portray a less than cohesive entity, but could lead some erroneously to suppose that some of the Justices are ‘second class’ because they do not have a title,” wrote Lord Phillips.[4] Having discussed the issue with his fellow Law Lords (i.e., the future Justices of the Supreme Court), he proposed a scheme that is essentially identical to the one that was ultimately implemented by the Royal Warrant. Interestingly, Lord Phillips also noted that some of his colleagues were unhappy that their successors would no longer receive automatic peerages.[5]

After a delay of almost ten months, Straw responded. By now, the Supreme Court had begun to sit, and Lord Phillips was its first President. Straw’s reply was something of a dodge. He told Lord Phillips that “[y]our proposal for introducing the judicial titles of ‘My Lord’ and ‘My Lady,’ as the term of address of Justices of the Supreme Court in court…is a matter for you as President to determine by way of Practice Direction, but seems entirely appropriate. I understand that this does not require any further formal approval.[6]

While Straw was correct, he arguably missed the point. Lord Phillips could certainly require counsel to refer to all justices as ‘my lord’ or ‘my lady’ within the courtroom, but that that’s not the same as giving them titles, and it wouldn’t address Lord Phillips’ wider point about the public’s perception of title-less justices. Lord Phillips wanted justices to have formal titles that could be used beyond the courtroom walls.

Straw did, however, propose a compromise. He suggested that future justices should receive knighthoods/damehoods and Privy Counsellorships upon their appointment. “This would ensure that there was consistency for Justices and their spouses and recognition of the prestige of the office when compared to other courts in the UK.[7]” Straw doesn’t seem to have realized that the justices would have had to be made Privy Counsellors anyway to enable them sit on the Judicial Committee of the Privy Council.[8]

In his response to Straw, Lord Phillips welcomed the Lord Chancellor’s proposal, though he noted that the Government had previously agreed to give justices knighthoods/damehoods and Privy Counsellorships. He also reiterated his request for justices to have formal courtesy titles and asked for Straw to respond on that point as soon as possible.[9]

Judging from Lord Phillips’ subsequent letter to Straw, the two men discussed the issue over a phone call in late November 2009.[10] Although Straw seems to have rejected the idea of courtesy titles, Lord Phillips followed up to say that he’d consulted his colleagues and they were “very strongly of the view that a courtesy judicial title is something which should be pursued.[11]” Their first preference was for all justices to receive peerages, but they recognized that this approach might conflict with the Government’s plans for reform of the House of Lords. Courtesy titles would therefore be an appropriate alternative. Lord Phillips closed his letter on a stern note: “It is not acceptable to have Justices appointed from Scotland who carry the judicial title of Lord or Lady, whilst those from England and Wales and Northern Ireland do not.”

But Straw was unmoved. “In my view using the title ‘Justice’ rather than ‘Lord’ is an important element in creating [the Supreme Court’s identity], indicating independence from the House of Lords.[12]” He reiterated his support for knighthoods/damehoods and Privy Counsellorships, and he said he had asked the Prime Minister, Gordon Brown, to recommend this course of action to the Queen. Straw noted that “[t]here will be consistency in approach in so far as all appointees [to the Supreme Court] will be known as ‘Justice of the Supreme Court of the United Kingdom,’ a considerable honour in its own right and the one on which I think we should focus attention.[13]

The documents reveal that the Government was very keen to avoid any perceived link with the House of Lords. A submission from an official[14] within the Ministry of Justice noted that the separation of the judiciary from the legislature was one of the main goals of the Constitutional Reform Act 2005, and they argued that judicial courtesy titles would undermine that separation. However, there are numerous individuals in the United Kingdom who have the title of lord or lady without being members of the House of Lords (e.g., the Lord Chief Justice, the Lord President of the Privy Council,[15] Lords Justices of Appeal, the Lord Steward, the Lord Chamberlain, the First Lord of the Treasury, not to mention the various Lord Mayors and Lords of the Manor!), so this claim rings a bit hollow.

Despite Straw’s firm rejection of courtesy titles, the Ministry of Justice did consider various honors for Supreme Court justices, which were set out in an unsigned submission dated September 2, 2009. The justices’ own preferred option, automatic life peerages, was ruled out on the basis that it would muddle the boundaries between the legislature and the judiciary, and it would offer no benefit to the House of Lords since the Constitutional Reform Act 2005 banned judges with peerages from sitting and voting in the House while on the bench.[16]

The proposal of giving justices peerages based on individual merit was also rejected, as it wouldn’t lead to uniformity on the court, and it would contrast with the automatic honors given to justices of the lower courts. It was also suggested that giving certain justices peerages could lead to accusations that the Government was trying to influence the court’s decisions.[17]

The Ministry of Justice was more amenable to the idea of giving justices peerages upon their retirement since this would give the House a reservoir of legal experience. But this option was also problematic since the Government was technically working toward a predominantly elected House of Lords, so it might not have been possible to guarantee future justices seats in the Lords.[18]

From this point on, the situation gets murky. Straw wrote to Gordon Brown in February 2010 recommending that Supreme Court justices should receive automatic knighthoods or damehoods and Privy Counsellorships,[19] but this required the Queen’s approval, and it seems that Brown never actually contacted the Palace.[20]

It seems the Supreme Court didn’t realize that Downing Street dropped the ball. In May 2010, the Chief Executive of the Supreme Court, Jenny Rowe, wrote to an unknown official in the Ministry of Justice to ask if the Court’s two Scottish justices, Lord Hope of Craighead and Lord Rodger of Earlsferry, could receive knighthoods to put them on par with their colleagues from England and Wales and Northern Ireland.[21] Initially, Rowe only asked about a knighthood for Lord Rodger, as Lord Hope was already a Knight of the Thistle,[22] but Lord Hope specifically asked her to inquire if he should be made a Knight Bachelor[23] as well.[24]

Rowe’s request is interesting because, on the surface, neither Lord Hope nor Lord Rodger needed knighthoods to achieve equality with their fellow justices. Both men were already life peers, so receiving a knighthood wouldn’t affect their status in the courtroom or in society at large.[25] In any case, it doesn’t appear that Rowe’s email was acted upon.

Within a week of Rowe’s message, the Labour government was succeeded by a Conservative/Liberal Democrat coalition.  While the documents released by the Ministry of Justice are sketchy on the details, it’s clear that the new administration was much more sympathetic to the Supreme Court’s desire for courtesy titles, and an undated memorandum contains a detailed discussion of how to implement them.[26]

This document highlights solutions to several issues raised by Garter King of Arms and Lord Lyon King of Arms (the UK’s chief heraldic officials).[27] Although these courtesy titles were not peerages, they would be subject to many of the same rules. For example, they would have to be unique (so someone with a common surname would have to qualify it with a territorial designation such as ‘Lady Smith of Anytown’), and either Garter or Lord Lyon would have to approve the title.[28] Unlike peerages, however, the Sovereign wouldn’t sign off on individual titles.

Although it was agreed that wives of male justices would receive the courtesy title of lady, there is nothing to indicate that anyone considered extending a similar privilege to the husbands of female justices or the partners of justices in civil partnerships.[29] While this approach is certainly in accordance with tradition, it seems odd that, in 2010, the notion of extending spousal courtesy titles beyond women in heterosexual marriages wasn’t even considered. To be fair, the Ministry of Justice hasn’t released all the information (more on that, later), so it’s possible that these matters were discussed but the relevant documents just weren’t released. I doubt that’s the case, but it is possible.

Although the Queen signed the warrants for the courtesy titles in December 2010, the story didn’t end there. In January 2012, Jenny Rowe wrote to the Ministry of Justice seeking clarification about whether Supreme Court justices would receive knighthoods.[30] This provoked some back-and-forth within the Ministry, as no one seems to have known the status of the situation.[31] Eventually, officials decided that the proposal for automatic knighthoods and damehoods had been superseded by the Coalition’s decision to make them lords/ladies.[32]

These documents don’t tell the whole story. Since section 37(1)(a) of the Freedom of Information Act creates an exemption for any information which ‘relates to’ communications with the Sovereign or anyone acting on their behalf, all communications with the Palace were redacted or withheld outright. But the situation could have been worse: when I appealed to the Information Commissioner’s Office following the Ministry of Justice’s initial refusal to release the information, the Commissioner ruled that section 37(1)(a) applied to every single document within the scope of my request! Happily, the First-tier Tribunal rejected this overbroad approach, but they still allowed a number of documents to be withheld (I’ll say more about my lengthy battle with the Ministry of Justice in another post). Consequently, the Palace’s role in the matter remains unclear.[33]

The documents also reveal little about the Coalition’s view of the matter. We know they viewed the issue differently from their Labour predecessors, but the documents don’t show any of their internal deliberations on the subject. We also don’t know how they reached their decision. Did the Supreme Court approach the new administration and ask for the issue to be revisited, or did ministers act on their own initiative? Did any of the the Liberal Democrats within the Ministry of Justice have misgivings about the proposed titles? Hopefully, further disclosures will answer these questions.

Despite these gaps, the documents shed light on an obscure chapter in the Supreme Court’s early history. The British excel at inventing traditions to fit changing realities,[34] and the Supreme Court justices’ courtesy titles are just another example of how the past continues to shape the present. It’s also interesting to see how different titles were perceived by different actors. Jack Straw was adamant that justices shouldn’t be lords/ladies outside the courtroom, yet he was fine with giving them knighthoods/damehoods. In other words, it’s fine for a justice to be ‘Sir John Smith,’ but ‘Lord Smith’ would be inappropriate! It’s things like this that make the British constitution so complex and fascinating.

The full tranche of documents can be found here.

NOTES

[1] Before the creation of the Supreme Court, the Appellate Committee of the House of Lords fulfilled that role. Lords of Appeal in Ordinary were life peers appointed to carry out the House’s judicial work.

[2] The College of Justice is made up of Scotland’s highest courts, including the Court of Session (for civil matters) and the High Court of Justiciary (for criminal matters). Both the Court of Session and the High Court of Justiciary are trial courts as well as appellate courts.

[3] They would likely be a Queen’s Counsel (also known as a ‘Silk’), but that only entitles one to the post-nominal letters ‘QC.’

[4] Lord Phillips of Worth Matravers to Jack Straw, January 27, 2009.

[5] Ibid.

[6] Jack Straw to Lord Phillips of Worth Matravers, October 8, 2009.

[7] Ibid.

[8] The Judicial Committee has no judges of its own, and the Lords of Appeal in Ordinary traditionally carried out most of its work. The justices of the Supreme Court carried on that tradition.

[9] Lord Phillips of Worth Matravers to Jack Straw, October 27, 2009.

[10] The precise timing of the call is uncertain, but Straw later referred to a discussion in November. See Jack Straw to Lord Phillips of Worth Matravers, January 2010.

[11] Lord Phillips of Worth Matravers to Jack Straw, December 18, 2009.

[12] Jack Straw to Lord Phillips of Worth Matravers, January 2010.

[13] Ibid.

[14] The names of junior civil servants have been consistently redacted throughout the documents.

[15] While the title of Lord President is sometimes given to the Leader of the House of Lords, the title is often given to the Leader of the House of Commons as well.

[16] Submission, September 2, 2009, option 1.

[17] Submission, September 2, 2009, option 3.

[18] Submission, September 2, 2009, option 2.

[19] Jack Straw to Gordon Brown, February 2010.

[20] Even the officials of the Ministry of Justice were in the dark about the status of this proposal. See [Redacted], “Re: Knighthoods and Damehoods for Supreme Court Justices,” email message to [Redacted], February 14, 2012.

[21] Jenny Rowe, “Knighthoods for Justices of the Supreme Court,” email message to [Redacted], May 4, 2010.

[22] The Order of the Thistle is Scotland’s highest order of chivalry, and it’s one of the few honors in the Sovereign’s personal gift (i.e., awarded without ministerial advice).

[23] Male High Court Justices in England and Wales and Northern Ireland are customarily made Knights Bachelor, while their female colleagues become Dames Commander of the Order of the British Empire (DBE).

[24] Jenny Rowe, “Re: Knighthoods for Justices of the Supreme Court,” email message to [Redacted], May 5, 2010. What’s puzzling about this is that Knights of the Thistle outrank Knights Bachelor in the Order of Precedence, so one wonders why Lord Hope would care.

[25] A peer with a knighthood is still called ‘Lord X’ or ‘Baroness X,’ though they do get to use the appropriate postnominal letters. However, postnominal letters are only used in the most formal of contexts. It’s also interesting to note that, as far as I’m aware, neither man felt the need to have a knighthood while serving as Lords of Appeal in Ordinary.

[26] My guess is that this memorandum was written sometime in November 2010, as an email from someone in the Ministry of Justice’s Constitution and Judiciary Division to someone in the Crown Office dated 12 November 2010 signed off on the idea of asking the Palace to approve the principle of extending courtesy titles to justices’ wives. See [Redacted] to [Redacted], ‘Extension of Courtesy Judicial Titles to the female spouses of the Justices of the UK Supreme Court,’ November 12, 2010.

[27] Garter is the chief heraldic authority for England, Wales, and Northern Ireland, while Lyon plays that role in Scotland.

[28] ‘Judicial Titles for UKSC Justices,’ no date.

[29] Same-sex marriage was still several years away.

[30] Jenny Rowe, “Knighthoods and Damehoods for Supreme Court Justices,” email to [Redacted], January 12, 2012.

[31] See, for example, [Redacted], “Re: Knighthoods and Damehoods for Supreme Court Justices,” email message to [Redacted], February 14, 2012.

[32] [Redacted], “Re: Knighthoods and Damehoods for Supreme Court Justices,” email message to [Redacted], February 15, 2012.

[33] Given the Queen’s known interest in questions of titles and decorations, it’s certainly plausible that she may have had strong views on the subject.

[34] For an academic study of this phenomenon, see E. J. Hobsbawm and Terence Ranger, eds., The Invention of Tradition (Cambridge: Cambridge University Press, 2003).

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1 Response to How The Supreme Court Justices Got Their Titles

  1. Pingback: Other Supreme Court-Related Posts | A Venerable Puzzle

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