The United Kingdom will soon have a supreme court, but many important questions pertaining to how it will operate remain unresolved


In just over 18 months' time, Britain's final court of appeal will undergo its greatest change for more than a century.



The broad outlines are clear enough from the Constitutional Reform Act 2005. There is to be a Supreme Court. Its first members will be the existing law lords. The new court will take over the jurisdiction of the House of Lords together with devolution appeals currently heard by the Judicial Committee of the Privy Council.



What matters, though, is the detail. To their credit, the law lords are working through some of the unresolved questions at a series of monthly seminars with academics and others. Unfortunately, these seminars are not open to the profession, press or public.



Lord Bingham, the senior law lord, will retire at the end of July - a few months before his 75th birthday. Hours before Lord Falconer stepped down as Lord Chancellor last year, he agreed that Lord Bingham's successor would be chosen under the procedures laid down in the 2005 act for the selection of the new Supreme Court president. That means there will be a selection commission with five members - Lord Bingham, his deputy Lord Hoffmann, Lady Prashar of the Judicial Appointments Commission and representatives of the commission's counterparts in Scotland and Northern Ireland.



There are two candidates. One is Lord Hope, 69, the next most senior law lord and a former president of the Court of Session in Edinburgh. The other is Lord Phillips, 70, Lord Chief Justice of England and Wales.



Lord Hope is highly respected as an assiduous and hard-working judge. But he does not have the leadership skills and recent experience of dealing with government that Lord Phillips has acquired since taking over from the Lord Chancellor as head of the judiciary. Lord Phillips will therefore be appointed senior law lord - a post that, all being well, will make him the first president of the Supreme Court.



Sir Anthony Clarke, 64, the Master of the Rolls, is not expected to follow his recent predecessors to become Lord Chief Justice. It seems more likely that Lord Phillips, with whom he has worked closely over the years, will want him to join the Supreme Court. Instead, the post of Lord Chief Justice is expected to go to Sir Igor Judge, 66, president of the Queen's Bench Division and head of criminal justice.



The two candidates for Sir Igor's job are both high flyers in the Court of Appeal. One is Lord Justice Leveson, 58, who carries a huge administrative burden as Senior Presiding Judge for England and Wales. And the other is Lord Justice Hughes, 59, who is seen as a possible Lord Chief Justice next time round. I would make Lord Justice Leveson president of the Queen's Bench Division and give Lord Justice Hughes a stint as Senior Presiding Judge.



When Lord Phillips' appointment as senior law lord is announced, he should encourage the law lords to talk openly about some of the issues that have to be resolved.



The first is whether the United Kingdom Supreme Court should aim to bring Scottish appeals in line with those of England. There can be no justification for allowing civil appeals from Scotland as of right. Leave to appeal should be required, as it is for appeals from other jurisdictions. I can see nothing in the 2005 act that would prevent the Supreme Court from filtering Scottish appeals through a permission stage.



In criminal cases, there is no right of appeal to the Lords from Scotland. But the Supreme Court will hear criminal appeals from Scotland that raise 'devolution issues' - such as whether laws of the Scottish Parliament are compatible with the European Convention on Human Rights. Since the right to a fair trial is part of the convention, it should not be beyond the wit of the Supreme Court to find ways of hearing appropriate Scottish criminal appeals.



One blot on the law lords' current procedures is that they do not give substantial reasons when refusing permission to appeal. This may well be contrary to article 6 of the convention. Openness demands reasons, even though it will involve more work. Openness also requires the court's hearings to be streamed live on its website and made available to broadcasters.



By no means the least of the new judges' problems is what they should be called. The act says they are 'to be styled Justices of the Supreme Court'. But that does not mean we have to call them that, any more than we call the law lords 'Lords of Appeal in Ordinary'.



Are we going to refer to the judges as President Phillips, Deputy President Hope and Justice Hale? Of course not. We shall continue to call them Lord Phillips, Lord Hope and Lady Hale. But what about those appointed after the law lords are abolished next year? We are told that they will not be granted peerages.



So should Lord Justice Leveson be rebranded as plain Justice Leveson in a few years' time? Or should he sit as Sir Brian Leveson, giving him inferior status to those who were appointed when a peerage was part of the package?



Again, that would be highly undesirable.



All Supreme Court judges should be given the honorary title of Lord or Lady, just like the Scottish equivalent of High Court judges. Then we could continue to call them the law lords - and pretend that none of this had ever happened.



joshua@rozenberg.net