As the UK Supreme Court marks its fifth anniversary, Graham Gee and Kate Malleson reflect on how the process of selecting the Justices can be improved.
Earlier this month the UK Supreme Court celebrated its fifth anniversary. There has been a flurry of vacancies, retirements and new appointments during the Court’s first five years, with only four of the original Justices remaining on the bench. The next few years should (all being well) witness a period of relative stability on the Court, with the next mandatory retirement in 2016 (when Lord Toulson turns 70). A further flurry of appointments will follow in 2018, when five Justices reach mandatory retirement. The Court’s fifth anniversary is therefore an apt time to reflect on the process of selecting the Justices—and indeed we welcome the fact that the Court is currently conducting an internal review of the selection process.
The Court’s internal review has a relatively limited remit. It is largely concerned with the workings of the ad hoc selection commissions responsible for recommending to the Lord Chancellor candidates for appointment to the Court. Each commission enjoys some limited freedom to determine its own process, but within the parameters set out in statute. The Court’s review focuses on matters such as whether commissions should define merit, whether to interview candidates and whether candidates should make a presentation as part of the selection process. To tinker with the fine details of selection processes might seem a distraction when real and visible progress in securing diversity on our top court seems unlikely absent radical reforms such as gender quotas. There is some truth to this. In this blogpost, however, we suggest four changes to the workings of the commissions that would improve the way that our top judges are selected, even if falling short of the sorts of changes required to realise a genuinely diverse Supreme Court.