Warming the bench

The death last month of Antonin Scalia prompted speculation about who might fill his seat in the US Supreme Court. Of rather more importance to us in the UK is the fact that half the 12 seats in our own Supreme Court will fall vacant during the next three years – including the president’s.

Indeed Lord Neuberger, 68, has less than two years to go before retirement. Lord Thomas of Cwmgiedd, also 68, will retire as lord chief justice of England and Wales next year. And Lord Dyson, the master of the rolls, hangs up his wig in a little over six months, when he will be 73.

Because Dyson first became a judge before April 1995, he could have remained on the bench for another two years – unlike those appointed after the law was changed, for whom statutory senility kicks in at the age of 70. The imminent retirements bulge is caused by some judges turning 70 at the same time as others reach 75. Unless Lady Hale, 71, decides to leave the Supreme Court early – which seems unlikely – it follows that Neuberger may be retiring as president to make way for an older woman.

For the past 100 years or so, every master of the rolls has been given a peerage. So, of course, was every member of the UK’s highest court when it was the House of Lords. Judges appointed to the Supreme Court since 2009 have not been made peers on appointment, but in 2010 it was announced that they would be styled ‘Lord’ or ‘Lady’ for life. They include Dyson, the first member of the Supreme Court not to have been a law lord. Another is Lord Toulson, who retires from the Supreme Court this summer.

The lack of a peerage has been no particular disadvantage so far to Dyson and Toulson because serving judges are not allowed to sit in the House of Lords. But Michael Gove, the lord chancellor, should now let it be known that former members of the Supreme Court will routinely be granted peerages. It would give the revising chamber a much-needed boost in legal expertise.

And who will replace Dyson? One candidate must be Sir Terence Etherton. Already head of the Chancery Division as chancellor of the High Court, the Olympic-standard swordsman could serve as head of civil justice for nearly five years. But Etherton is more likely to go up to the Supreme Court. I am still backing Lord Justice Briggs, 62, for master of the rolls.

The job of chief justice is rather more open. I am sure that Lady Justice Hallett, 66, would be up for it. But she would have to retire after little more than two years in post. Sir Brian Leveson, though also 66, would have even less time before hitting 70. There might be arguments in favour of a stopgap appointment. But leadership posts in the judiciary are generally held by people who can serve for four or five years. Two years is too short.

The judge to watch is Lady Justice Sharp, 60. Appointed to the High Court in 2009 and promoted to the Court of Appeal less than three years ago, she is already vice-president of the Queen’s Bench Division. Another high-flyer is Lord Justice Fulford, 63, the senior presiding judge. A third judge with the right combination of leadership skills for chief justice is Lord Justice Lloyd Jones, 64. Lord Justice Ryder, the senior tribunals judge, is only 58 and could fill one of  the senior posts left vacant.

As Toulson’s replacement in the Supreme Court, I would pick a Chancery lawyer, like Lord Justice Lewison, 63 (that’s Sir Kim Lewison, not Sir Brian Leveson), or Lord Justice Kitchin, 60. And if not now, then soon. With lords Mance, Clarke, Sumption and Hughes retiring by 2018, there will soon be room for others such as Lords Justices Tomlinson, 63, Vos, 60, and Sales, just 54. Some much-needed criminal experience could be provided by Lord Justice Gross, 64. I would keep Lord Justice McFarlane, 61, in reserve to succeed Sir James Munby as head of family justice in 2018.

Apologies to those I have left out and even more so to those I have left in. My speculation counts for little. But who will select the candidates? We don’t know. Christopher Stephens retires next month as chairman of the Judicial Appointments Commission.

His appointment, already renewed once, was extended again in February for a further two months. Does that mean a successor is just about to be announced? Or does it mean that potential candidates withdrew after discovering that the post carries a mere CBE rather than the knighthood it deserves? Whoever gets it will have a unique responsibility to help shape the future of our judiciary for decades to come.