The role of politicians in appointing senior judges should be beefed up, although with the limitation that the Lord Chancellor should choose from shortlist of independently vetted candidates, according to a think tank.
The centre-right Policy Exchange argued that the current statutory regime of a single name being submitted to the Lord Chancellor did not allow for parliamentary accountability or any discretion over such factors as diversity.
Senior judges, it said, “now exercise excessive influence over individual appointment decisions, especially for senior roles, whilst at the same time the Lord Chancellor’s role in making the final decision about whom to select has been wholly eliminated for appointments below the High Court and squeezed to almost vanishing point in selections to the High Court and above”.
It was “only a small exaggeration”, the Policy Exchange said, “to say that the judiciary now selects itself”.
Rather than return to the situation before 2005 Constitutional Reform Act – when senior appointments were shrouded in mystery and the Lord Chancellor had to be a lawyer – its report suggested that between three and five names should be presented by the independent selection bodies.
This would prevent political partisanship and maintain skill standards, yet ensure robust independence, it said.
The report denied that reintroducing a larger political element in the selection of judges would necessarily compromise their independence. It pointed out that, in Australia, Canada and New Zealand, judicial independence was alive and well with a similar appointments system.
In a candid foreword to the report, former Lord Chancellor Jack Straw, who held the office between June 2007 and May 2010, complained that his discretion had been thwarted when he had objected to the appointment of Sir Nicholas Wall as head of the Family Division.
Mr Straw recalled that he had queried Sir Nicholas on grounds of suspected incompetence but his name had been re-presented, giving him little choice but to approve the appointment.
The judge retired less than three years later and committed suicide; his family revealed he had suffered from dementia for several years.
Mr Straw said at the time he had provoked “outrage” in some quarters for his “impertinence”. But he had been proved right in a “sad case” and “poor Sir Nicholas was not up to the job”.
The politician predicted the Policy Exchange recommendation would face charges of political interference, but said the suggested solution was “just very sensible – and is not going to lead to the end of civilisation”.
Indeed, he continued, it would merely place England and Wales on a similar footing to the countries mentioned above, whose judges were both independent and more diverse than here.
The think tank also suggested that, rather than have different selection bodies for different elements of the senior judiciary, the Judicial Appointments Commission, which selects judges up to the High Court, should take overall responsibility.
Nevertheless, a separate permanent appointments commission, with a lay majority, should select Supreme Court judges. The Lord Chief Justice could be a member and Parliament could possibly have a role too.
There was a negative reaction to the idea from lawyers on social media, with Dinah Rose QC saying: “I agree that the current judiciary carry too much weight in senior appointments. But the answer is emphatically not to give more power to a minister whose loyalty is to the government.”
Commenting on Jack Straw’s comments, Michael Ford QC said: “Another deep thinker on the Lord Chancellor making the final selection. Remember ex-Lord Chancellor Grayling and Seaborne Freight?”