Next October (if the building works are finished in time) the Law Lords will move across Parliament Square and become Supreme Court justices.
The ostensible reason for this unnecessary change is the separation of the judiciary from the legislature and from government, but the truth is that there was already such separation in practice.
There will be a new appointments system independent of government, but as a practical matter it will not bring about a reduction in the political element in appointments, because politics was already largely absent as a factor. The more interesting question is whether the net will be cast wider than promoting the more eminent intellects among the Appeal Court judges, who are the main source of Law Lords at the moment. Most historical examples of appointments of Law Lords outside the existing appellate judiciary belong to the era of politically motivated appointments, but there are now other factors at work that might cause a change in the pattern of appointments.
Once upon a time our court of final appeal was made up of a bunch of amateurs – the hereditary peers and the bishops who made up the House of Lords. By the 19th century it had become the convention that only peers who held or had held high judicial office would hear the appeals. In practice these were all former politicians. The reform of the superior courts by the Judicature Act 1873 would have abolished appeal to the House of Lords, but after a change of government it was retained and prime minister-appointed, salaried Law Lords with life peerages were instituted.
The importance for successive governments of maintaining political balance in the House of Lords, particularly at a time when it was hearing a lot of trade union and workers’ rights cases, brought about a number of promotions to the Lords of lawyer-politicians from outside the existing judiciary. The main examples are the appointments by the Liberal governments of 1892-95 and 1905-15 of Russell, Atkinson, Shaw and Robson, and by the Conservative-dominated coalition government of 1916-22 of Cave and Carson.
Since World War II there have been two appointments of Law Lords with political backgrounds and no previous judiciary careers: Lord Reid, a prominent Conservative MP (appointed in 1948), and Lord Dilhorne, a former Conservative attorney general and Lord Chancellor (appointed in 1969). The striking fact about these appointments, however, is that they were both made by Labour governments – political partisanship had disappeared from the appointments process. Two notable promotions that were down to intellectual brilliance rather than political track records were those of Lord Radcliffe, who was appointed to the Lords straight from the bar in 1949, and Lord Wilberforce, who was promoted directly from the High Court bench, without being an Appeal Court judge first, in 1964.
The Supreme Court will have much the same eligibility criteria for appointment as those current for the House of Lords. There has been a recent trend in High Court appointments towards making some appointments from outside the practising bar, and with the decline of hierarchy in society there is political pressure for a judiciary that is more representative of society as a whole. Also, the Supreme Court will have an important part to play in constitutional law in such matters as devolution, European law and human rights.
It looks as if there is going to be a culture change, with more practising lawyers or academic lawyers set to be appointed to the Supreme Court. It also looks like Jonathan Sumption QC could be a trailblazer in this regard.