A briefing paper on the history, functions and membership of the Privy Council
Earlier this year, two vacancies arose on the UK Supreme Court (UKSC). Last week the Government announced the appointment of two permanent justices, Lord Lloyd-Jones and Sir David Richards. This Insight explains how UKSC justices are appointed, and how the Court dealt with having vacancies this year.
Before October 2009, the final court of appeal (except for criminal cases in Scotland) was the Appellate Committee of the House of Lords. A maximum of twelve Law Lords could be appointed under the Administration of Justice Act 1968 (as amended).
Appointments were made by the Queen on the advice of the Prime Minister. In practice, however, the Lord Chancellor typically had considerable influence over the name put forward to fill a vacancy. The Lord Chancellor and his department were also responsible for the selection process for other judicial vacancies in other courts in England and Wales, and for reserved tribunals.
Constitutional Reform Act 2005
The broader approach to judicial appointments changed following the passage of the Constitutional Reform Act in 2005. For appointments below the House of Lords, the new Judicial Appointments Commission (JAC) would make selections, with the Lord Chancellor having limited power to reject or require reconsideration of a selection.
For the UKSC, however, the appointments process differs. Whenever a vacancy arises, a bespoke selection commission is formed. The Court’s President chairs this (unless the vacancy is for the President). All three territorial judicial appointment bodies (the JAC, the Judicial Appointments Board for Scotland, and the Northern Ireland Judicial Appointments Commission) are represented on a selection commission and at least two commissioners must be laypersons (not a qualified lawyer).
The Lord Chancellor has limited opportunity to reject or require reconsideration of a selection, before notifying the Prime Minister of the selected candidate. The Prime Minister has no discretion and must recommend the Queen appoints a notified candidate.
The 2022 vacancies and recruitment
Two Supreme Court justices stepped down in January 2022:
- Lady Arden, who having become a senior judge in 1993, reached her mandatory retirement age (MRA) of 75 in January.
- Lord Lloyd-Jones, who joined the senior judiciary in 2005, was subject to the Judicial Pensions and Retirement Act 1993’s lower MRA of 70. He also reached this in January.
The MRA has since been increased to 75 for all senior judicial appointments, under the Public Sector Pensions and Judicial Offices Act 2022.
For almost seven months, the Court operated with only 10 permanent justices. To compensate, the Court drew from the supplementary panel (certain recently retired senior judges under 75) and from the senior territorial judiciary where needed. In July one UKSC panel included the Lord Chief Justice of Northern Ireland, the Lord President of the Court of Session in Scotland, and one member of the supplementary panel, in addition to four permanent justices.
The 2022 selection process
In February, the UKSC set up a dedicated part of its website to provide information and guidance about the selection process to fill the two vacancies. Vacancies are publicly advertised and appointments are on the basis of open competition.
As with other judicial appointments, the commission can distinguish between candidates of equal merit for the purposes of increasing the court’s diversity (for example improving gender or racial diversity). The need for the court to have knowledge and experience of practice in all three jurisdictions in the United Kingdom must also be considered.
Statute sets out the minimum level of experience required to become a UKSC justice. This period of service is longer than for other senior judicial appointments.
Most UKSC appointees meet the criteria by virtue of prior judicial experience, having held “high judicial office” for at least two years. This means having been a High Court or Court of Appeal judge in England and Wales or Northern Ireland, or a Court of Session/High Court of Justiciary judge in Scotland.
Individuals can also meet the threshold by virtue of time served in legal practice (typically as a barrister/advocate or senior solicitor). If an individual does not meet the “high judicial office” requirement, they must have been a qualifying practitioner (Scotland or Northern Ireland) or have met the judicial appointment eligibility condition (England and Wales) for at least 15 years.
Most Supreme Court judges are appointed directly from the Court of Appeal (in England and Wales or Northern Ireland) or the Inner House of the Court of Session.
Only two justices have been appointed via “non-traditional” routes:
- Lord Sumption was appointed directly from the Bar in 2011, having been a barrister for over 35 years and a QC for 25 years.
- Lord Burrows served as a part-time judge for over 20 years, and was made an honorary QC back in 2003, but his primary job was in academia at the University of Oxford. He was made a Supreme Court justice in 2020.
Who has been appointed this time?
Lord Lloyd-Jones, who retired from the Supreme Court in January, was reappointed. This is the first time this has happened, and was only possible because of the increased MRA.
The other appointee is former Court of Appeal judge Sir David Richards. Like Lord Lloyd-Jones, his appointment relied on the recently increased MRA (he is 71). Since his enforced retirement, Sir David had continued to sit as an ad hoc Court of Appeal judge and worked as an arbitrator.
Dinah Rose QC and others have raised concerns about the lack of diversity on the UKSC. Between October 2018 and January 2020 three women were permanent justices, whereas now there is only Lady Rose.
When will the next vacancies arise?
The increase in the MRA has significantly impacted the UK Supreme Court. Assuming all current members serve until 75, no vacancies would arise until June 2026 (when Sir David Richards must step down). Further vacancies could arise earlier, should any judges decide to retire early.
Commentators and academics have noted, as with other courts, low turnover could present additional challenges for increasing diversity on the Supreme Court in future.
- HM Government, Press release, August 2022
- UK Supreme Court, Press release, August 2022
- Law Gazette, Diversity concerns as Supreme Court reappoints old guard, August 2022
- House of Commons Library, The UK Supreme Court, July 2022
- UK Supreme Court, Judicial Vacancies
About the author: Graeme Cowie is a researcher at the House of Commons Library, specialising in constitutional law.
On 13.9.22 we corrected this Insight which originally said “at least one commissioner must be a layperson” to “at least two commissioners must be laypersons”.
The Victims and Prisoners Bill was considered by a Public Bill Committee over 14 sittings between 20 June 2023 and 11 July 2023. The dates for the remaining stages have not yet been announced.
A briefing paper on the royal prerogative and ministerial advice to the Crown on both the prerogative and statutory public appointments