Share it

A thick fog continues to surround the mysterious and slow moving appointment process for "Justice 12".  The fog is pierced, from time to time, by "revelations" to legal journalists from mysterious unidentified "sources". We have previously blogged Joshua Rozenberg’s piece about the shortlist for the twelfth justice and his earlier explanations for the delays in the appointment process.  We have also written about reports by The Times legal correspondent, Frances Gibb that (unnamed) "senior" judges from the Court of Appeal opposed the appointment of Jonathan Sumption QC to the Supreme Court.  Mr Sumption subsequently withdrew from the competition (see our post here).  

Frances Gibb has now returned to the story with an extraordinary account of the twists and turns of the process, under the headline "Supreme ambition, jealously and outrage", dealing with what she describes as "the judicial bunfight that stopped an outsider from being appointed to the highest court".  Frances Gibb’s story is, at first sight, a remarkable one. [read more]

It is said that Mr Sumption withdrew his application because, contrary to previous assurances, he was not even shortlisted.   She reports that, following the earlier selection process in October 2008 selection process,

"Sumption was privately informed in early February 2009 that Clarke and Collins would be appointed, But, he was assured, it was expected that Lord Neuberger of Abbotsbury, a law lord, would take the position vacated by Clarke as Master of the Rolls — and he, Sumption, would then be appointed to fill Lord Neuberger’s post".

She repeats her earlier report that, when Court of Appeal judges heard of this "there was an unholy row" and that, as a result, a whole new selection process was started.   However, she says (in an account which is slightly difficult to follow), Lord Mance intervened, drawing attention to potential problems in the process so that Jack Straw who, as a result, requested a re-run of the whole process.  When that was done 6 Court of Appeal judges applied and 4 of them were placed on the shortlist – but no Sumption.  She gives the same "shortlist" as Joshua Rozenberg:  Arden, Dyson, Maurice Kay and Wilson LJJ and concludes:

"It is an unedifying story, reflecting poorly on the selection of one of the country’s top judges. With hindsight, the apppointments panel should not have told Sumption he had the job in advance of the expected vacancy; but either way, his candidacy was clearly always going to be opposed, while the consultation process can be seen as riven by potential conflicts of interest".

She goes on to describe the revamped appointments process as "little more than a sham".  The story has been picked up by Charon QC on his blog – under the headline "Skulduggery at the Supreme Court?  … already?"  We also draw attention to the varied comments made on the Times website on the Frances Gibb article – including a number from legal journalist Dominic Carman.

Perhaps unsurprisingly, Frances Gibb’s article contains no "on the record" statements by anyone involved and the reactions of the Minstry of Justice and the appointments commission to the story are not recorded.  The content of the article does not, appear to us, to justify the lurid headline – even if the basic facts are correctly recited, ambition and jealously are not the only explanation for opposition to an appointment process where one of the candidates has been told before it starts that he will get the job.  Nevertheless, it does seem to us that whatever has been going on behind the scenes it is unfortunate that the process has taken so long and that there has been no public announcement as to its progress.  Although the public cannot expect a running commentary we can see no reason why it should take so many months to appoint one person from a small pool of candidates and why we cannot be told when the appointment is likely to be made. 

One final comment.   As we pointed out in a previous post the idea of "non-judicial" appointees to the top court is one with a long and interesting history.  It would be a pity if, under the new system, such appointments became, in practice, impossible.  Direct appointment is a way in which our Supreme Court could improve on its bottom place in the "supreme court diversity league" (see our post here).