First lady of the law

The new Lord Chief Justice inherits a role with a rich and varied history

This article is taken from the October 2023 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

By the time you read this, Dame Sue Carr will have assumed office as Lord Chief Justice of England and Wales, or Lady Chief Justice, should it be decided to alter the venerable title. 

As is the modern public sector custom, the job was advertised online by the Judicial Appointments Commission, along with a candidate information pack (among the selection criteria: “Ability to preside over both Divisions of the Court of Appeal”).

Two candidates were shortlisted and interviewed, following which Dame Sue’s name was sent to the Lord Chancellor. The other shortlisted candidate was Dame Victoria Sharp, President of the King’s Bench Division and the long-time favourite for the post. 

But a legal commentator’s euphemistic remark that her rival had a more “outwardly confident personality” may explain her failure to secure the prize. The modern-day LCJ is, after all, as much of a manager as she is a judge.

In theory any lawyer with seven years’ experience was welcome to apply, but in practice only senior judges had any chance. This was not always the case. Well into Harold Macmillan’s premiership, there was a hazy but nevertheless real understanding that the attorney general had a reversionary right to the lord chief justiceship if it became vacant during his tenure (the solicitor general had similar claims, usually to lesser judgships).

The convention seemed to have been invented by the indefatigable job-seeker Sir Francis Bacon, who as solicitor general in 1612 shamelessly asked King James I for the chief justiceship of the King’s Bench or of the Common Pleas, as one of “the places of rest after the extreme painful places wherein we serve” for “else we [the Law Officers] shall be like Noah’s dove, not knowing where to rest our feet”. As he probably expected, the attorney general was promoted instead, whereupon Bacon succeeded his colleague as attorney.

Dozens of attorneys general were subsequently promoted to one of the two chief justiceships until 1873, when Gladstone obtained from the Cabinet a ruling that promotion to the highest judicial posts would be based on merit alone and not on the claims of the law officers. The ruling was promptly ignored.

The old system produced outstanding judges such as Sir George Jessel, appointed Master of the Rolls from the Treasury bench by Gladstone the same year Cabinet passed its resolution condemning the practice. But it also led to truly disreputable appointments. 

In 1913, attorney general Sir Rufus Isaacs accepted the lord chief justiceship against his will because he had been recently involved in a corruption scandal, and refusing the office to which he had an automatic claim would have suggested that he had been tainted. A few years later, in the middle of the First World War, Isaacs (by then Lord Reading) was appointed British ambassador to the United States. Charles Darling, the senior King’s Bench puisne famous for his authorship of an allegedly funny book of legal satire, did his work instead.

Reading returned to the Royal Courts of Justice and finally resigned in 1921 to become Viceroy of India, vowing never to read another law report as long as he lived. The attorney general, Sir Gordon Hewart, wanted to claim his reversion rights, but Lloyd George could not spare him in the Commons. 

A tender for a seat-warming lord chief justice was put out. Darling wrote a truly pathetic letter to the Prime Minister begging for the top job “even for ten minutes”, but was beaten by the even less distinguished Mr Justice A.T. Lawrence, aged 77. Darling remarked that he lost out for not being old enough.

As part of the transaction, Lawrence had to sign an undated letter of resignation, which was thought unethical even by the standards of Lloyd George. Incensed, the judges made a point of boycotting Lord Reading’s farewell ceremony.

Eleven months later, Lawrence (now Lord Trevethin) learned of his resignation and of Hewart’s consequent elevation in The Times. Hewart served on the bench until 1940, when he received a phonecall from Downing Street asking him to resign to make way for a minister recently purged by Churchill. He meekly complied.

Parliamentary experience is today widely viewed as a hindrance to judicial preferment

Such things no longer happen. Parliamentary experience is today widely viewed as a hindrance to judicial preferment. Sir Ross Cranston, solicitor general under Tony Blair, is the last former MP to have been appointed to one of the superior courts, and he had to fill out the application form like everyone else. Increasing parliamentary duties and “family-friendly” sitting hours mean that keeping up a legal practice as an MP, once commonplace, is now all but impossible.

Even the inveterate reformer Lord Bingham of Cornhill came to regret this trend, writing shortly before his death that “the absence of experience in public administration among the members of the highest tribunal must be regretted: its deliberations would be enriched if some of its members had direct personal experience of the democratic and bureaucratic process as of the civil and criminal trial.” But on current trends, his wish is unlikely to be fulfilled any time soon. 

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