UK supreme court urged to appoint Welsh judge

http://www.theguardian.com/law/2015/aug/03/uk-supreme-court-urged-to-appoint-welsh-judge

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A Welsh justice will soon be needed on the supreme court to deal with the expanding volume of legislation produced by the assembly in Cardiff, the UK’s highest court has been advised.

The recommendation from Jenny Rowe, outgoing chief executive of the supreme court, is part of a review of the selection commission that chooses new justices.

No new candidates are due to be appointed to the court until late 2016, when Lord Toulson turns 70 – the mandatory retirement age for all judges appointed after 1995.

There are 12 justices on the bench at any time. Of the current dozen, only one – Lady Hale – is a woman. Much of the controversy over appointments has focused on lack of gender and ethnic diversity in the upper reaches of the judiciary.

One of the requirements of the court, which considers appeals from across the UK’s jurisdictions, is expertise in specialist areas of the law. There are currently two justices from Scotland and one from Northern Ireland on the supreme court bench.

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Rowe’s report was compiled following discussions with other legal experts. “Most were of the view that there is not yet a sufficiently defined body of specifically Welsh law, and consequent Welsh cases ... to justify the appointment of a Welsh judge,” she noted.

“There is, however, an important question of the court having the confidence of the communities it serves and there is a certain amount of asymmetry at present given that we have two justices from Scotland and one from Northern Ireland.

“Our current pragmatic solution is to bring in an acting judge who is seen as ‘Welsh’ for any cases which come from Wales,” she explained. “We can certainly continue to do that for the foreseeable future.

“As the body of Welsh law increases, I believe that [the Constitutional Reform Act 2005] will require consideration of the appointment of a Welsh justice: [one] section requires a selection commission to ‘ensure that between them the judges will have knowledge of, and experience of practice in, the law of each part of the United Kingdom’.”

The next selection commission should take the issue into account before any vacancy is advertised, she suggested.

However, she acknowledged, “there are some people who feel very strongly that geographical diversity should not necessarily have priority over other forms of diversity and the related issue of public confidence.”

One of the functions that the supreme court has recently had to develop is its role, in effect, as a constitutional court, assessing whether laws passed by the assemblies in Cardiff, Edinburgh and Belfast are within their powers to enact. It is a curious process because the UK does not have a written constitution.

Lord Neuberger, president of the supreme court, welcomed the review’s recommendations but did not comment specifically on the proposal for a Welsh justice. Rowe, who led the process of establishing the supreme court in 2009, is due to retire in October.