Bench warmers

After a year like 2016, we should be wary of predictions for 2017. One certainty, though, is that we shall see major changes among the senior judiciary. It is not just that there will be a a new president of the Supreme Court and a new lord chief justice of England and Wales. There are three vacancies in the Supreme Court (with another three to follow next year) together with an estimated 10 in the Court of Appeal and up to 25 in the High Court.

Because posts remained unfilled after the last two High Court competitions, some pretty desperate measures have been taken ahead of the selection exercise to be launched next week. For the first time, it will be possible for a solicitor or barrister to join the High Court without having sat first as a part-time judge. Candidates will merely have to show they can ‘hold the authority of a courtroom and make judgments based on balanced analysis of highly complex issues of fact and law’.

The minimum length of service required is now as little as five years. With retirement fixed at 70 for judges appointed since 1995, candidates can be as old as 63 or 64.

As the effects of reducing the retirement age from 75 to 70 work their way through the system, we shall see many other judges serving for much shorter periods than before. Even though Lady Hale must retire from the Supreme Court by the end of 2019, she is a racing certainty to succeed Lord Neuberger as president in October. I now think that Lady Justice Gloster might join her in the Supreme Court, although her appointment would be for less than two years. Lady Justice Black, who is five years younger, is another strong candidate for the Supreme Court. If men are still eligible, I would also back Lords Justices Briggs and Lloyd Jones.

Neuberger recently announced half-day ‘insight sessions’ for potential recruits who might be unfamiliar with aspects of the Supreme Court. He might have been thinking of Eleanor Sharpston, an advocate general (in effect, a judge) at the EU Court of Justice in Luxembourg for the past 11 years. She would be of immense value to the Supreme Court as it grapples with the consequences of Brexit.

Lord Thomas of Cwmgiedd will have to stand down as lord chief justice by the time he turns 70 on 22 October. The obvious date for him to retire would be 30 September. But when I asked him recently whether he would be leaving at the same time as Neuberger, the lord chief justice declined to confirm this. The most he would say was that it would be ‘some time in advance of’ his birthday.

We may infer that Thomas will retire in the spring or early summer, allowing his successor to be sworn in at the start of the Easter term on 25 April or the Trinity term on 6 June. The former is more likely because Thomas has a major role to play in the new international forum of commercial courts, which meets in London on 5 May; he then has a foreign trip planned. But either would give a clear two-year term to the man who must now be the favoured candidate to succeed him: Sir Brian Leveson, president of the Queen’s Bench Division.

Lady Justice Hallett will certainly throw her hat in the ring and could serve until December 2019. The press will back her – not just because it would be good to have a woman as chief justice but because newspapers oppose the implementation of section 40 of the Crime and Courts Act 2013, which derives from Leveson’s press inquiry in 2012.

And having been thwarted in her attempt to have a woman appointed as head of the Chancery Division, Liz Truss would no doubt prefer to recommend Hallett for the job. But the lord chancellor could not block Leveson.

A selection panel appointed by the Judicial Appointments Commission must choose only one candidate. Under regulation 9 of the Judicial Appointments Regulations 2013, the lord chancellor may reject that candidate only if she thinks that person is ‘not suitable for the office concerned’. The lord chancellor may ask the panel to think again, but only if she thinks there is evidence that the person selected is ‘not the best candidate on merit’ or there is ‘not enough evidence that the person is suitable’. In either case, she must give written reasons.

In any event, Truss might have only a couple of years to wait for a woman at the top. Leveson’s deputy is currently Lady Justice Sharp. If she follows him as president of the Queen’s Bench Division later this year, Sharp may well succeed Leveson on his retirement as chief justice in 2019.