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Although section 23(2) of the Constitutional Reform Act 2006 provides that the Supreme Court “consists of 12 Judges”, after Lord Neuberger’s translation to the job of Master of the Rolls, it currently has only 11.    In a recent blog post Joshua Rozenberg has pointed out that the process of the appointment of the new justice is likely to take until January 2010.

I note that, in her speech (discussed in a recent post), the Court’s Chief Executive, Jenny Rowe, says that the process of appointing Lord Neuberger’s successor “will start in earnest very soon”.   This suggests, by implication, that there is some way to go.

Interestingly, the Supreme Court’s predecessor, the House of Lords, often operated with less than the available complement.  Between 1968 and 1975, there were only 10 Law Lords, as against the then permitted maximum of 11 (this figure was raised from 9 in 1969).  On the retirement of Lords Reid and Morris in January 1975, only one replacement was appointed and the number remained at 9 (except for a brief period between 1979 and 1980) until 1985.  Over the next few years, the number fluctuated between 9 and 10 and reached 11 only in March 1992.  The permitted maximum was raised to 12 in 1994 and there have been that number in post (save for a period between June 1996 and January 1997) until Lord Neuberger’s move.  Full details can be found in Appendix 2 “Who Succeeded Whom?” to the fascinating The Judicial House of Lords, 1876-2009 (OUP, 2009) edited by Louis Blom-Cooper, Brice Dickson and Gavin Drewry.

This book also casts some light on Joshua Rozenberg’s continuing interest in the possible elevation of Jonathan Sumption QC, directly from the bar to the Supreme Court.  In an essay by Tom Bingham “The Law Lords: Who has Served”, he points out that up to 1930 a signficant minority of appointees had held no previous judicial office and were appointed straight from the Bar.  He  mentions 11 names, including the first Lord Russell of Killowen, and Lords Macnaghten, Atkinson and Macmillan.  He goes onto to point out that, since the war, only Lords Reid and Radcliffe have been appointed without prior judicial experience.  The former was appointed when an MP and had been Solicitor General for Scotland and Lord Advocate.  The latter was not only the youngest Law Lord ever appointed but was also the last to be appointed to a hereditary peerage.   So, if Mr Sumption QC has applied and is duly appointed there are good and interesting precedents.

Incidentally, Joshua Rozenberg suggests Mr Sumption QC should, perhaps, sit as a judge to enhance his chances of advancement.  However, as a comment on his blog points out, a swift Lawtel search reveals that Mr Sumption has sat as Deputy High Court Judge on at least 11 occasions between 1992 and 2002, giving a number of reported judgments.  Lack of sitting seems unlikely to hinder any application he might have made.

Veteran legal commentator Marcel Berlins has also joined the debate with an article in the Guardian on 28 September 2009 entitled  “Our new Supreme Court is a Judge short but far from underpowered”.  In relation to the identity of the 12th Justice he writes “Rarely have I known such unanimity among the rumour-spreaders  … the 12th law lord [sic] is to be Jonathan Sumption QC”.   We agree with him about the rumours: “informed sources in the Inns of Court” are of the same opinion.  Nevertheless, there is an appointment process to be gone through.  We shall wait and see before giving Blog readers the benefit of a Sumption biographical sketch.

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