A far-reaching reshuffle of top judicial posts is about to be triggered with
the announcement of the next senior law lord, or top judge in the highest
court of the land. The post is key because that person will become head of
the first United Kingdom supreme court when it opens its doors for business
in October next year.
The hottest tip to succeed Lord Bingham of Cornhill, the senior law lord, when
he steps down in July is Lord Phillips of Worth Matravers, now Lord Chief
Justice. Lord Phillips would then lead the law lords into the supreme court
as its first president — a more public and prominent role than that of the
present senior law lord.
The appointment will set the seal on reforms that hive off the highest court
from the House of Lords, making it independent, physically and
constitutionally. It would also prompt far-reaching changes in the
judiciary: not least, the move of Lord Phillips to senior law lord — a
career path established by Lord Bingham — which would leave vacant his own
job.
It was not long ago when such senior positions were decided by the Lord
Chancellor in discussion with senior judges. Under reforms brought in by the
Constitutional Reform Act 2005, there is a formalised procedure: a panel is
constituted and soundings taken. The result, though, is widely predicted:
Sir Igor Judge, who just missed the job of Lord Chief Justice when it went
to Phillips, is expected to be luckier this time.
Other candidates have also been mooted. When it comes to senior law lord,
Phillips has widespread backing, even if a few whisper that he is a touch
too managerial (not clubable enough); that he has not carried all the judges
with him on issues such as wigs and gowns, or plans — strongly opposed by
some — to unify the High Court (that is, be rid of the fiefdoms of Chancery,
Queen’s Bench, Family). There is Lord Hope of Craighead, a Scottish law lord
who is chairing a committee on the transition to the supreme court. A
quietly spoken man, he is clever, hard-working and liked. But he has neither
the presence nor leadership experience acquired by Phillips since assuming
the post in October 2005. In his favour, some raise the Scottish question:
is there a convention that every so often a Scottish law lord should lead?
(There was Lord Reid, then years later Lord Keith of Kinkel.) The answer,
even from those who pose the question, seems to be “no”.
Then there are outsiders: what of the first woman law lord, Baroness Hale of
Richmond? She at least merits consideration “because she is a trailblazer”,
says one legal observer. But she is significantly junior to Phillips and
minus his weighty CV (Master of the Rolls as well as Chief Justice).
Phillips, the pre-eminent choice, would seem to have the job in the bag.
As for the Lord Chief, there seem no serious contenders to Sir Igor. A
criminal judge by background, he differs from the past three holders
(Phillips, Woolf, Bingham). Highly experienced, a judge’s judge, he would go
down well with the rank-and-file in a post that now demands more of a
leadership role, with ministers and in public.
The changes do not stop there. Before the court comes into being three other
law lords will retire: Lords Hoffmann, Scott of Foscote and Carswell, so
that over 18 months one quarter of the court will be replaced with potential
for a shift in its political-social balance.
Candidates for the highest court include Sir Anthony Clarke, Master of the
Rolls, who is likely to move up with Phillips — they are friends of old and
have both worked in the admiralty division. Another is Lord Justice Keene,
an experienced appeal judge who has chaired the judges’ training body, the
Judicial Studies Board, and Lord Justice Laws, the widely regarded erudite
public law judge. There is also Lord Justice Sedley, probably (as a former
Communist Party member) the most left-leaning judge ever appointed.
All this still leaves only one woman. If, as expected, Lady Justice Arden
joins Baroness Hale as the second woman judge in the highest court, it will
boast its first husband-and-wife team — her husband, Lord Mance, is there
already.
The new senior law lord has been identified by a five-strong appointments
panel chaired by Lord Bingham and including Lord Hoffmann, second senior law
lord, and representatives from the Judicial Appointments Commissions of
England and Wales, Scotland and Northern Ireland. One of the three nominees
must be a non-lawyer. The process, Lord Bingham told The Times, was
“unbelievably cumbersome”. The consultation process is now complete. A name
goes to the Lord Chancellor and he in turn consults before giving the name
to the Prime Minister, who puts it to the Queen.
When the senior law lord is announced, a new panel may have to be convened on
the Chief’s job. If it goes to Sir Igor, who will fill his shoes? He is the
most senior criminal judge, as Head of Criminal Justice and President of the
Queen’s Bench Division. But if he is Chief, would a head of criminal justice
be needed as well, given his background? That aside, those in the frame
include Lord Justice Latham, vice-president of the Court of Appeal’s
criminal division, and Lords Justices May and Dyson, although the latter two
are also in the running for Master of the Rolls.
As the top jobs are taken, the next generation will move into such posts as
senior presiding judge — held by the high-flyer Lord Justice Leveson. Some
tip him for Sir Igor’s job but at 58 he may be too young. In the same
bracket are Lord Justice Hughes and Lady Justice Hallett, the latter, some
say, could be the first woman Chief Justice, the time after this.
Is it musical chairs or will it make a difference? Who holds these posts
arguably matters more than previously. While the president of the supreme
court will run the UK’s highest court and exercise a key influence on final
appeals, the Lord Chief Justice is the public face of the judiciary and its
representative with government. Since the Constitutional Reform Act, he or
she is also responsible for their deployment, training and discipline and
sits on important cases in the Court of Appeal.
Both Phillips and Judge are conservative with a small “c”, but Phillips is a
moderniser, a reformer who has tried — not always with success — to move the
judiciary forward. So we may see televising of supreme court hearings,
modern robes and other innovations that he can more easily implement in the
new court and that may filter down. Sir Igor is less likely to push
boundaries on such issues. He will be strong in upholding the judicial arm
of the constitution and want to elevate public debate on penal policy so
that people understand the cost of jailing so many offenders, in cash terms
and loss of other public services.
Lords Bingham and Woolf established a new open era for the judiciary, building
on the legacy of their predecessor Lord Taylor of Gosforth. Now more ready
to engage in debate and more accountable, a “Phillips and Judge” team will
pick up that same baton and run with it.
