The procedure for appointing a Justice of the Supreme Court of the United Kingdom is governed by Sections 25 to 31 and Schedule 8, of the Constitutional Reform Act 2005. This note sets out a brief resume of the process.

Section 25 of the Act sets out the statutory qualifications for appointment. But Section 25 has been amended by Sections 50-52 of the Tribunals and Enforcement Act 2007 so that the qualifications are now:

“Applicants must have held high judicial office for at least two years. (‘High judicial office’ is defined to include High Court Judges of England and Wales, and of Northern Ireland; Court of Appeal Judges of England and Wales, and of Northern Ireland; and Judges of the Court of Session.)

Alternatively, applicants must satisfy the judicial-appointment eligibility condition on a 15-year basis, or have been a qualifying practitioner for at least 15 years.

A person satisfies the judicial-appointment eligibility condition on a 15-yearbasis if he has been a solicitor of the senior courts of England and Wales, or barrister in England and Wales, for at least 15 years; and has been gaining experience in law during the post-qualification period.

A person is a qualifying practitioner if he is an advocate in Scotland or a solicitor entitled to appear in the Court of Session and the High Court of Justiciary; or he is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland.

The meaning of “gaining experience in law” is set out in section 52(2) to (5) of the Tribunals and Enforcement Act 2007 and relates to a period engaged in law related activities.”

It is the responsibility of the Lord Chancellor to convene a selection commission: he usually does this by way of a letter to the President of the Court who chairs the selection commission. Other members are the Deputy President, and a member of each of the Judicial Appointments Commission for England and Wales, the Judicial Appointments Board in Scotland, and the Judicial Appointments Commission in Northern Ireland. At least one of those representatives has to be a lay person. Nominations are made by the Chairman of the relevant Commission/Board. (NB the Report of the Advisory Panel on Judicial Diversity, published in February 2010, recommends reducing the number of serving Judges involved in a selection panel, and ensuring a gender mix, and, where possible, an ethnic mix.)

The legislation does not prescribe a process that a selection commission has to follow, although under Section 27(9) the commission must have regard to any guidance given by the Lord Chancellor as to matters to be taken into account (subject to any other provision in the Act) in making a selection. In practice each selection commission determines its own process.

In practice this latter requirement is designed to ensure that there is continued representation from both Scotland and Northern Ireland.

To date, the provisions of the Act have been used twice: in 2008/09, and in 2009/10 (on the first occasion the provisions were used voluntarily as that part of the Act was not yet in force). On both these occasions the selection commission took the decision that the vacancies would be advertised. This was the first time that vacancies at this level had been the subject of open competition. An Information Pack was drawn up for potential applicants which was made publicly available. The Advertisement and Information Pack for 2009/10 competition can also be found on this website, and sets out, amongst other matters, the criteria the selection commission used to assess applications.

The support for the selection commission is provided by the Chief Executive of the Supreme Court.

Role of the Lord Chancellor

The Constitutional Reform Act 2005 preserves a role for the Lord Chancellor once a selection commission has made its decision. The relevant sections are Sections 28-31 of the Act.

Section 28 requires that the commission must submit a report to the Lord Chancellor which must state: who has been selected; who was consulted; and which contains any other information required by the Lord Chancellor. The provision also allows for the Lord Chancellor to ask for any further information not included in the report.

The Lord Chancellor is under a statutory duty to consult the senior judges (as above), any other judge who has been consulted, the First Minister in Scotland, the First Minister in Wales and the Secretary of State for Northern Ireland. Sections 29-31 of the Act then set out the Lord Chancellor’s options. In closely defined circumstances he can invite a reconsideration or he can reject a candidate. But if he does either of those he must give reasons.

If, following the consultations above, the Lord Chancellor is content with the recommendation made by the selection commission, he forwards the person’s name to the Prime Minister who, in turn, sends the recommendation to Her Majesty The Queen who makes the formal appointment.

The Supreme Court of the United Kingdom, March 2010