The Jonathan Sumption affair [in 2011] seems to be turning into a debacle. Sumption is a barrister who applied for one of the vacancies in the UK Supreme Court. It looked as if he had it in the bag, according to a Times leak – but now it is suggested he may be rather too busy adding to his millions in Berezovsky v Abramovich to attend at the pleasure of the highest court in the land.
Sumption has been a controversial candidate for the Supreme Court. He applied in 2009 but withdrew, it is said, after criticism from senior judges. His latest application has also been accompanied by murmurings in judicial circles about an alleged lack of experience for the job. Sumption is not a judge, you see.
Such criticisms are a bit unfair given the Constitutional Reform Act 2005 opened up applications to the Supreme Court from non-judges with a minimum 15 years’ experience. The intention was to add a bit of diversity to the team of posh old chaps (and a lady) at the top of the judicial tree.
And perhaps that is more to the point – in fact the appointment committee’s first non-judicial choice turned out to be, well, a posh old chap. Eton, Magdalen, Inner Temple, QC, OBE, that sort of thing. The most unusual and off-the-wall thing about him is that he likes penning history texts in his spare time. Oh, and it seems he did once meet cabinet ministers unshaven and in casual attire – at his French chateau.
So is this the real heart of the problem? The Ministry of Justice under Ken Clarke is doubtless wholly signed up to the coalition government’s social mobility agenda. Here was a rare opportunity, with two Supreme Court jobs up for grabs, to go for parity: one posh old chap matched by one of something else (a woman? a black person? a grammar school lad made good?). The pool of potentials had been extended hugely by the 2005 Act – and what was the result? Well, two posh old chaps (the other being Lord Wilson).
Of course, the committee can’t appoint from a diverse pool if nobody very diverse applies. But surely a tap on the shoulder, a word in an ear might give someone the confidence that, should their name go forward, it would be sympathetically treated? It’s worked for homogeneity for hundreds of years, why not diversity?
If the Supreme Court really has to attend on the whim of a very well paid barrister, then surely that makes a mockery of the 2005 reforms. Of course any top-flight lawyer who has the 15 years behind him (her?) and the requisite reputation is someone who at any time during the lengthy and delay-ridden appointment procedure is likely to find a tasty case popping up that requires his time and expertise. One that makes the £206,000 salary he might expect in his new role look pretty meagre.
It seems likely that Berezovsky v Abramovich is going to need Mr Sumption’s attentions for more than a few months. And it would seem that the Ministry of Justice should be looking at rather better ways of satisfying the social mobility agenda than this.
Baroness Deech commented on the Sumption debacle here.
Lord Sumption has now (November 2013) given his view on the relationship between the UK courts and Strasbourg. See Hoffmann, Laws and Sumption: They come to bury the ECHR, not to praise it.
He has also, (September 2015) given his view on judicial diversity. He doesn’t think it’ll happen for a good 50 years yet: Evening Standard. The Supreme Court has published a clarification of these comments here.