How Are British Supreme Court Justices Appointed?

As my fellow Americans take in the seemingly endless drama of Brett Kavanaugh’s nomination to the United States Supreme Court, a number of people have asked me if appointments to the United Kingdom’s Supreme Court are similarly contentious. The short answer is no, they aren’t. Compared to the political theater of the American process, the United Kingdom’s approach seems positively humdrum.

The selection process for Supreme Court justices is governed by the Constitutional Reform Act 2005.[1] When a vacancy occurs on the Court, the Lord Chancellor convenes a selection commission. The precise composition of the commission depends on whether it is for the President of the Supreme Court or another justice, but it will always include representatives of the Supreme Court, the senior judiciary, and the UK’s various judicial appointment bodies.

Unlike their American counterparts, British Supreme Court justices must meet certain statutory qualifications to be eligible for appointment. The details are complex, but in general they are expected to have considerable legal experience, either because they have held high judicial office or because they have gained experience in some other way (e.g., practicing as a barrister or solicitor, teaching law). In addition to considering these qualifications, the selection commission must ensure that the court as a whole possesses sufficient knowledge of the UK’s various legal systems.

In many ways, a vacancy on the Supreme Court is treated like any other job. It’s advertised in the media and on the Supreme Court’s website, and interested candidates can submit applications. The selection commission is also obliged to consult with a range of individuals, including the Lord Chancellor, the First Ministers of Scotland and Wales, the Northern Ireland Judicial Appointments Commission, and other senior judges (provided they aren’t part of the commission and aren’t being considered for appointment).

The commission then shortlists candidates and conducts interviews. Once they have settled on a candidate, they make a report to the Lord Chancellor. The Lord Chancellor must consult the same stakeholders as the commission did, at which point the Lord Chancellor can do one of three things:

  • accept the candidate;
  • reject the candidate; or
  • require the commission to reconsider the candidate.

The Lord Chancellor has two chances to reject a candidate or ask the commission to reconsider. After that, they must generally accept the commission’s final choice, though the Lord Chancellor can also opt to accept a candidate that was reconsidered at an earlier stage in the proceedings.

Upon accepting a candidate, the Lord Chancellor forwards the name to the Prime Minister, who then formally advises the Queen to make the appointment. No parliamentary approval is necessary, and the appointment process is complete once the Queen issues the necessary Letters Patent and the new justice takes the prescribed oaths.[2]

The bottom line is that the process is designed to be as apolitical as possible. While ministers do play a role, it is largely a formality–as a constitutional monarch, the Queen can only act on the advice of responsible ministers, so the government of the day cannot be excluded from the process entirely.

My American readers may find it baffling that the British government is content with this hands-off approach, but there are several reasons for this:

  • The British Supreme Court is less powerful than its American counterpart. While the American concept of judicial review allows the US Supreme Court to strike down legislation that is incompatible with the Constitution, judicial review in the UK is limited by the doctrine of parliamentary sovereignty[3] and the lack of a codified constitution. Consequently, the British Supreme Court cannot nullify an Act of Parliament. Even if they find that it is incompatible with the European Convention on Human Rights, all the Court can do is highlight that incompatibility and hope that Parliament fixes it.[4]
  • Cases are rarely heard by the full Supreme Court. While it does happen from time to time (e.g., the Article 50 case[5]), most matters are dealt with by a panel of five justices. The justices can even be joined by judges from outside the Court.[6] This arguably lessens the impact of individual justices.
  • Supreme Court justices must generally retire at 75, so it’s not a lifetime appointment.
  • Despite its name, the UK Supreme Court is not actually ‘supreme.’ For example, the Supreme Court’s jurisdiction over Scotland is limited to civil appeals (the High Court of Justiciary is the final arbiter of Scottish criminal appeals), while the Judicial Committee of the Privy Council has the final say in certain matters.[7] So getting friendly justices on the bench isn’t quite the ace in the hole that it is in America.

The non-partisan nature of British Supreme Court appointments is a classic example of the UK’s strong belief in the importance of ‘fair play.’ While British politics can certainly be bitter and tribal, there is also a sense that one side shouldn’t be able to game the system. This is why the Speaker of the House of Commons always resigns their party membership upon taking the Chair,[8] and the boundaries of parliamentary constituencies are drawn by a non-partisan commission.[9] The British constitution has few codified checks and balances, but the notion of fair play helps preserve the balance.

NOTES

[1] See sections 25-31 and schedule 8 of the Act.

[2] Like oral arguments, the swearing-in of a new justice is broadcast to the public and can be viewed on the Court’s YouTube channel. See, for example, this video documenting the swearing-in of Lady Arden and Lord Kitchin on October 1, 2018.

[3] In a nutshell, parliamentary sovereignty means that the Queen-in-Parliament can enact whatever laws it wishes, for good or ill.

[4] See section 4 of the Human Rights Act 1998.

[5] R (Miller) v. The Secretary of State for Exiting the European Union [2017] UKSC 5.

[6] See sections 38 and 39 of the Constitutional Reform Act 2005.

[7] The Judicial Committee’s jurisdiction is quite eclectic. and its business can include certain ecclesiastical appeals, appeals from the High Court of Chivalry, or even appeals from the Disciplinary Committee of the Royal College of Veterinary Surgeons!

[8] This prohibition continues even after they have left the Chair, which is why former Speakers who receive peerages invariably sit as Crossbenchers in the House of Lords.

[9] The commission’s recommendations are implemented by an Order-in-Council, which must be approved by MPs before it can be made. MPs must accept or reject the changes in toto; the Order cannot be amended.

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