QC's controversial fast-track appointment to the Supreme Court sparks mixed reaction

Last week's appointment of Jonathan Sumption QC to the Supreme Court confirmed months of speculation, but the prior warning has not made the high-profile barrister's rapid ascension to the UK's highest court any less controversial.

His appointment, alongside Court of Appeal judge Lord Justice Wilson, makes him the first barrister since Lord Radcliffe and Lord Reid were elevated to the House of 
Lords more than 60 years ago to bypass the judiciary and 
go straight to the UK's high-
est court.

The move, which comes after a previous application from Sumption was reportedly dropped following opposition from senior judges, means Sumption leapfrogs a substantial stint (generally 10 years) working on significantly lower earnings as a judge in the High Court and the Court of Appeal to take on the post.

Sumption's move has attracted further controversy because, having pushed to jump the queue to take the appointment, he is set to delay his start date while he finishes a high-profile – and highly lucrative – mandate acting for Chelsea FC owner Roman Abramovich against Russian oligarch Boris Berezovsky.

While Wilson will join the Supreme Court on 26 May, Sumption's start date has yet to be agreed and may have to be pushed back as far as 2012.

Such is the level of unhappiness that even Bar Standards Board chair Baroness Deech wrote a blog last month condemning the appointment, which at that point had not been formally announced. She wrote: "What concerns me now is that there are stories in the press that a barrister, who has never been a high court judge, is one of the selections, and that he wants to postpone taking up the position in order to undertake a case for which he has been retained and which will earn him millions of pounds in fees.  Surely this cannot be true?"

Commenting on the appointment XXIV Old Buildings' Alan Steinfeld QC said: "It is a highly controversial and unprecedented appointment. It has understandably upset many on the bench who feel that appointments to the Supreme Court should be reserved for those who have sacrificed their lucrative careers at the Bar to serve on the bench, with at least a reasonable expectation that it would be from their ranks that appointments to the House of Lords and now the Supreme Court would be made."

However, despite all the criticism, others in the market have praised the judicial system for its flexibility – arguing that the courts should be able to make exceptions for people like Sumption who have such an exceptional standing in the market that they should be able to bypass the usual rules.

Herbert Smith's head of advocacy, Murray Rosen QC, said: "Great advocates can also make great appellate judges if they have the right skill set, which Jonathan Sumption has demonstrated in spades.

"Of course, you have to take account of the career path for the wider judiciary, but if you choose the best person for the job and he or she happens to be from outside existing ranks, you are encouraging freshness and diversity – and that has to be a plus."

The facts

● The appointments of Sumption and Lord Justice Wilson as Supreme Court Justices, which were approved by the Queen at the recommendation of the Prime Minister and Lord Chancellor, follow the retirement of Lord Saville and the imminent retirement of Lord Collins.

● They ensure that there will continue to be 12 justices of the court, which was established through the Constitutional Reform Act 2005. The court opened on 1 October 2009, ending the judicial role of the House of Lords and ensuring a separation between parliament and the judiciary.

● The existing Supreme Court justices are: president Lord Phillips; deputy president Lord Hope; Lord Rodger; Lord Walker; Lady Hale; Lord Brown; Lord Mance; Lord Kerr, Lord Clarke and Lord Dyson.

Market response

"This is an excellent appointment since he is reputed to have one of the best legal minds of his generation. Regarding the controversy over his continuing involvement with the Abramovich case, I disagree with his critics. Any barrister would want to complete an ongoing case, mindful of the enormous amount of work already put into it and the cost of instructing a replacement. I can see why people might be upset he has been appointed straight to the Supreme Court but it is right to make exceptions in cases where there is outstanding talent."
Jonathan Fisher QC, Devereux Chambers

"There have been some outstanding advocates at the Bar over the last 20 to 30 years, but Jonathan Sumption has been pre-eminent among them. His incisive analysis, the speed with which he cuts through issues, the broader balanced judgment that he brings to complex problems and his authority as an advocate is second to none. It is a tribute to our system that we can make an exception by elevating him straight to the Supreme Court because he is an exceptional talent."
Paul Lomas, Freshfields Bruckhaus Deringer litigation partner

"The Bar's loss is the Supreme Court's gain. Clients will miss Sumption's terrific advocacy skills."
Simon Davis, Clifford Chance head of commercial litigation

"Sumption is an exceptional barrister and I think that he'll make an excellent judge – he is a first class choice for the position."
Clive Zietman, Stewarts Law head of commercial litigation

"Judicial experience is valuable and being a High Court and Court of Appeal judge is a hard slog, but you develop some pretty keen judicial skills that are necessary for such a prestigious role and for that reason Jonathan's appointment is controversial."
Anonymous QC