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Joshua Rozenberg
Tuesday 15th September 2009
One Judge Short of a Supreme Court

I'm sorry to bang on about the Supreme Court at the moment but it's still the most interesting story in town.

We learned yesterday that the court is likely to be one judge short until January because of the lengthy procedures necessary to choose Lord Neuberger's successor. When judges used to be appointed by the Lord Chancellor, a long-expected vacancy like this could easily have been filled during the two-month summer break.

And it's not as if the new arrangements are any better at producing a more "diverse" judiciary. In practice, senior judges can still choose the candidates they want, just as they could before appointments were made by commissioners.

The interesting question this autumn is whether the vacant seat will go to Jonathan Sumption QC. Though Sumption is regarded as quite extraordinarily brilliant, he has not troubled to spend any time sitting as a full-time judge in the High Court or the Court of Appeal. You can imagine how furious the Court of Appeal judges will be if he is appointed to the Supreme Court over the heads of the entire senior judiciary.

But there is a more serious point here. Sumption has not been tried out as an appeal judge in the UK. However clever he may be, nobody can be sure how good he would be in the job. He couldn't be sacked for poor judgment.

If I were Lord Phillips, I'd advise Sumption to show willing by doing a bit of judging first. 

►On October 19, the Supreme Court will hear a case that's so secret it's listed merely as R(A)vB. Officials thought there was a court order in force that prevented the parties being identified. But I think I can safely report that the case involves a former member of the security and intelligence services who was refused permission to write a book about his work.

He says that this is a breach of his right to freedom of expression. What the Supreme Court has to decide is whether this question should be decided by the High Court or by the Investigatory Powers Tribunal.

 
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Joshua Rozenberg
September 23rd, 2009
11:09 PM
I said that Jonathan Sumption has never been a full-time judge. I know he has sat as a deputy High Court judge. Deputy judges sit part-time. So do appeal judges in the Channel Islands. I know, too, that there were successful appointments from the Bar to the Lords in the past. I am not saying that Sumption would not be successful -- merely that it's a risk and that it would annoy those who have gained full-time appellate experience at considerable financial sacrifice.

Richard Edwards
September 21st, 2009
3:09 PM
The UKSC Blog (http://www.olswang.com/blogs/scotuk2/article.asp?id=224) refers to this post and notes that the House of Lords was one or two judges short of its full complement for 24 years between 1968 and 1992.

robin towns
September 16th, 2009
12:09 PM
Before the days of Deputy Judges (when possible appointees to the Bench could be 'tried out') three of the most successful Lords of Appeal in Ordinary were promoted direct from the Bar without any previous judicial experience: Lords Macnaghten (1887-1910), Reid (1948-1975) & Radcliffe (1949-1964). Admittedly there were other similar but less successful appointments but these were mainly of a political nature (e.g. Lord Carson, 1921-1929) Where Lord Macmillan (1930-1939 & 1941-1947) stands in this assessment is a moot point.

Richard Edwards
September 16th, 2009
10:09 AM
Lawtel shows that Jonathan Sumption has sat as a deputy judge in at least 11 cases between 1992 and 2002 - including several which are reported. Not a great number, but some judging experience!

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About Joshua Rozenberg

Joshua Rozenberg is an independent legal commentator who presents Law in Action on BBC Radio 4.

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