It was a battle of the Titans, and, given the usually quiet, orderly atmosphere of the House of Lords Constitution Committee, and given the subject matter, judicial appointments procedure, it was almost quite exciting. In the red corner, Jack Straw, Lord Chancellor under Gordon Brown; in the also somewhat reddish corner, Lord Falconer, a former Lord Chancellor to, and friend of, Tony Blair (friend in the modern political sense, that he was often mysteriously seen with Blair on official business, claiming to be his “adviser”).
The buffer, as it were, placed between these antagonists for their own protection was yet another former Lord Chancellor, Lord Mackay of Clashfern.
The issue was who should appoint members of the judiciary – and each of the three had rather different ideas. Straw made his startling claim: the UK Supreme court is a shadowy unaccountable organisation that is, shockingly, “developing a social policy” which it is imposing on the unsuspecting citizens of Britain by issuing so-called “judgments” – new forms of legislation that had overthrown the supremacy of Parliament.
Well, he did not take it quite this far. In fact he was at pains to point out that he personally had nothing against what the Supreme Court was doing, that most people would obviously agree with its excellent judgments on letting (alleged) terrorists and child molesters wander the streets freely, that he could understand quite how they had found themselves in the terrible position of being legislators rather than interpreters of legislation: it’s all the fault of that pesky Human Rights Act (you know, Labour’s pesky Human Rights Act of 1989).
But since the Supreme Court was developing a social policy, there needed to be some political control of who was developing it. The current legislation on this was not fit for purpose (you know, Labour’s pesky Constitutional Reform Act of 2005).
And here Jack had a sad personal story to tell. When he had tried to exercise even the minimal rights of intervention in the appointments process regarding a Divisional Court appointment, his (in his view) restrained and collegiate attempts to have another candidate considered were leaked to the Times and he had to abandon them. He was coy about the details but we can exclusively reveal (unless you have a Times paywall sub) that he was referring to his attempt to have the appointments panel rethink the proposed appointment of Sir Nicholas Wall to fill the post of President of the Family Division (see note below).
This he was wholly entitled to do under the legislation (the Lord Chancellor can accept or reject the selection, or else ask the appointment panel to reconsider its choice, giving reasons). But he is supposed to do it quietly and confidentially. Instead it was leaked, it became unpleasantly political and, Straw declared, there was even a move to have him JR’d.
This, to be clear, does not mean there was a plot to ensure he shared the mysterious fate of John Ross Ewing of “Who shot JR” fame or his credibility-stretching comeback. It was rather the almost equally bizarre possibility that a Lord Chancellor could be judicially reviewed by a High Court judge for his attempt to influence the appointment of a Divisional Court judge.
His fellow former Lord Chancellors showed scant sympathy, both saying he should have stood his ground and risked the somewhat unequal court battle. As to leaks, Falconer pointed out that they never happened from his department on his watch since his staff behaved as if their tongues had been cut out (or maybe their lips sewn up – something pretty non-ECHR-compliant at any rate). Blame the judges. “Judges can’t stop talking to the press.”
‘The idea that a member of the cabinet, appointable by the Prime Minister, should be the person who appoints the people the Prime Minister and Home Secretary are attacking is in effect an unthinkable situation’ Lord Falconer
Nor did Falconer see in Straw’s tale of woe an argument for handing some form of say in appointments to parliamentarians or returning it to the Lord Chancellor, Lord Mackay’s preference. Mackay said: “It is important that the Lord Chancellor should continue to have a role and I’ve never objected to the Prime Minister having a role”, though he added that that was on the basis that Prime Ministers always accept the view of their Lord Chancellors. Their roles ensured that people saw there was government approval for the appointment, that “the government as a whole is responsible”.
Falconer saw the flaw in all this. Previous prime ministers and home secretaries had sought to gain political advantage by attacking the judges – as the current incumbents continued to do. “The idea that a member of the cabinet, appointable by the Prime Minister, should be the person who appoints the people the Prime Minister and Home Secretary are attacking is in effect an unthinkable situation.” The appointments should be beyond the reach of the PM and Home Secretary – though he defended the current limited role and powers of the Lord Chancellor. He sees reform of the Supreme Court appointments more on the lines of adding more lay members to the present tiny judge-dominated 5-member selection panel.
Straw was unsure what he wanted but said there should be a parliamentary role – possibly with the chair of the Lords Constitution Committee and the Commons Justice Committee meeting to deliberate on the choices. Presumably he hopes to guarantee himself a good write-up from Baroness Jay in the final Lords committee report.
It seems inevitable that the Lords committee will recommend change to the appointment procedure in the report, expected by the year end, and also that the Government will embrace it. But it is more likely to head back to something closer to Mackay’s position or even Straw’s than to extend the full Judicial Appointments Commission system up the ranks to the Court of Appeal and Supreme Court.
The legal establishment would balk at more JAC control of the higher echelons since, apparently, top judges, barristers and solicitors, supremely confident as they seem and able to hold a court of law in thrall with their eloquence, are rather shy of putting themselves forward for high judicial office if there is any great risk of, as Straw put it, being “knocked back”. How much more so if they had to go through the days of filling out application forms, the panel interviews and the role play that is the modern human resources way of doing things.
A straight report of this hearing, the fourth of the Lords Constitution Committee into judicial appointments, is here
The third hearing with some background and the JAC view is here
The fifth hearing, with Lords Phillips and Judge, is here
A monumentally detailed piece on the legal/constitutional issues by ObiterJ is here
The Times article of March 4 2010 begins thus: ‘Jack Straw has challenged the appointment of a new head of the family justice system who castigated the Government over its policies, including opening family courts, The Times has learnt. An appointments panel staffed by senior judges put forward Sir Nicholas Wall to fill the post of President of the Family Division, but only one month before the post is vacated no announcement has been made.’