Appointment of Members of the Supreme Court
Notice how different this is to the appointment of US Supreme Court justices.
Appointment of members of the Supreme Court.
The Supreme Court consists of 12 members, although cases are always heard by an odd number of justices so that a majority verdict can be reached. In most cases five or possibly nine justices take part; reflecting the importance of the issue, 11 took part in the 2016-17 review of the High Court ruling that Parliament rather than the government should initiate the UK's exit from the European Union.
The most senior figure is designated as the President. This post was held by Lord Phillips from 2009 to 2012, and since then has been held by Lord Neuberger until 2017, Lady Hale until 2020, currently Lord Reed. Although they are known as 'Lord' or 'Lady', members of the Supreme Court do not sit in the House of Lords until their term of office has come to an end.
Qualifications and appointment process
In order to be considered for appointment as a justice in the Supreme Court, candidates must have either held high judicial office for at least 2 years or been a ‘qualifying practitioner’ for a period of 15 years
A qualifying practitioner is someone who:
has a senior courts qualification, or
is an advocate in Scotland or a solicitor entitled to appear in the Scottish Court of Session and the High Court of Justiciary, or
is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland.
. The original members were the former Law Lords, who moved from the House of Lords to their new premises. When a vacancy occurs, nominations are made by an independent five-member Selection Commission, consisting of the President and Deputy President of the Court, a member of the Judicial Appointments Commission and a member of each of the equivalent bodies for Scotland and Northern Ireland. The Lord Chancellor (also known as the Justice Secretary) either confirms or rejects the person put forward, although he or she cannot reject names repeatedly. The appointment is confirmed by the prime minister and then by the monarch.
Appointments to all positions in the senior judiciary were once made by the monarch, on the advice of the prime minister and the Lord Chancellor with the Lord Chancellor making their ‘picks’ on the basis of ‘secret soundings’ with close associates and those already serving in the senior judiciary. It was said that this system lacked transparency, undermined the separation of powers, and resulted in a senior judiciary drawn almost exclusively from a very narrow social circle: public school and Oxbridge educated, white, male and beyond middle age. Such criticisms informed the Constitutional Reform Act (CRA) 2005.
While the JAC was created as a means of lending greater transparency and legitimacy to the process by which most senior judges are appointed, the Constitutional Reform Act established an entirely different process with respect to appointments to the UK Supreme Court. This separate system was certainly more open than the process under which Law Lords had been appointed in the days before the creation of the Supreme Court, but it retained a role — albeit a lesser one —for the Lord Chancellor.
Notice how different this is to the appointment of US Supreme Court justices.