Ex-justice secretary backs greater UK government role in appointing judges

Jack Straw, the veteran Labour politician and ex-justice secretary, has thrown his weight behind controversial proposals for the UK government to have more power in appointing senior judges.

The Policy Exchange, a think-tank, has published a paper arguing that the lord chancellor should be given “real discretion” in senior judicial appointments in England and Wales, with Straw’s backing.

The government is currently studying the report by Richard Ekins, professor of law at the University of Oxford, and Graham Gee, professor of public law at the University of Sheffield, which says “increased ministerial input” is needed in the system for appointing senior judges.

Currently judges are selected by the independent Judicial Appointments Commission (JAC) through panels of lawyers, lay people and judges, with the lord chancellor exercising little say.

Straw, a former home secretary who served as lord chancellor and justice secretary in Gordon Brown’s government, wrote a foreword to the Policy Exchange study backing the “very sensible” proposals.

“There will probably be more expressions of outrage, and charges of ‘political interference’ when this paper is published. Such [expressions] would be wholly misplaced,” Straw wrote.

“Their suggested solution that the lord chancellor should be able to select the very senior appointments from a shortlist drawn up by a panel under the JAC is just very sensible and is not going to lead to the end of civilisation.”

The Policy Exchange paper says that existing judges now exercise “excessive influence” over appointments especially for senior posts.

“It is only a small exaggeration to say that the judiciary now selects itself,” the paper says adding that the government should consider reforms that will “restore limits on judicial power when appropriate.” 

It adds that prior to constitutional reforms in 2005, the lord chancellor had a controlling hand in senior judicial appointments. The lord chancellor can still refuse a recommended candidate on limited grounds, but since 2005 none has rejected a senior appointment.

The Policy Exchange paper says there is a “compelling case” for enlarging the role of the lord chancellor, bringing England and Wales closer to the system in New Zealand and Canada where the judiciary is seen as equally independent and apolitical.

The proposals are likely to stir up political anger that judicial appointments could become politicised. Lord Charlie Falconer, shadow attorney-general and a former ministerial colleague of Straw, has warned about the dangers of giving politicians greater influence over senior judicial appointments.

Lord Robert Reed, president of the UK’s Supreme Court, last year dismissed as “unacceptable” the idea of US-style confirmation hearings in which legislators would quiz proposed judicial appointees on their political views. 

The Policy Exchange paper comes amid rising tensions between the government and the legal profession. 

Tory MPs have been critical of senior judges after the government lost several high profile court cases including a Supreme Court ruling in 2019 that prime minister Boris Johnson had acted unlawfully over the suspension of parliament. Both Johnson and home secretary Priti Patel have called lawyers “lefty” and “activist”.

The government has appointed a commission to look at the effectiveness of the Human Rights Act and is considering the findings of former Tory minister Lord Edward Faulks on possible reform of judicial review.

Ekins is head of the Policy Exchange’s judicial power project, which has been critical of what it terms “judicial over-reach” and last year published a paper proposing that the UK’s Supreme Court be abolished and replaced with an “upper court” of appeal.