“Either all Supreme Court justices should become peers on appointment or retirement, or none. There should be no government discretion.”
That’s the view of Phillip Morgan, a law lecturer at Southampton, complaining in The Times today that there is no statement of policy for judicial honours.
But of course there is. All High Court judges in England and Wales are made Knights Bachelor or DBE. (It is said that Sir Stephen Sedley tried to decline the honour, only to be told it was compulsory). All Lords Justices of Appeal are sworn of the Privy Council. No judge appointed to the Supreme Court since its creation on 1 October 2009 will receive a peerage while serving.
Judges who hold peerages are disqualified from sitting or voting in the House of Lords until they retire. Members of the Supreme Court who do not hold peerages can expect to receive them on retirement – though this situation will not arise for some years and may change.
All this is well known. It was the policy of the last government and remains in effect. What seems to have confused Morgan is the position of Sir John Dyson, the first judge to be appointed to the Supreme Court without having first been a Lord of Appeal in Ordinary, or law lord.
As I report elsewhere today, Supreme Court judges are currently trying to persuade the Lord Chancellor, Ken Clarke, that such judges should have the honorary title of “Lord”. This is the title given to the Scottish equivalent of English High Court judges – who do not receive knighthoods. It does not come with a peerage.
Morgan’s confusion is apparent from a passage in which he asks:
Will the other justices refer to “my noble and learned friends, and Sir John Dyson”?
The answer is no. “Noble and learned friend” is a term used in the House of Lords. It is not used in the Supreme Court or any other court. A judge referring his or her colleagues in the Supreme Court will simply refer to them by name: “as Lady Hale has said” or “I agree with Sir John Dyson”.
Morgan is right to say that judges should not be beholden to the executive for honours. But neither should they be demeaned – as Dyson was when Jack Straw decided not to give him the honorary title that the law lords had been assured their successors would all receive.
Update: I have corrected an error in the version of this item posted earlier today.
Lord Hope, answering questions after his Gresham Lecture tonight, said the Lord Chancellor was currently too busy to meet the Supreme Court justices who wanted to press the case for giving Dyson an honorary title.
I hope to write more about his lecture shortly.
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