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Hands Off Judges
July/August 2013

When the identity of the next Lord Chief Justice is revealed we can take comfort in the knowledge that she — or perhaps he — will have been chosen by the most modern of selection procedures.  

Fortunately, the quality of the current candidates is so high that any of them would be an excellent appointment. Nevertheless, the selection criteria leave a lot to be desired, managing as they do to combine the blindingly obvious — "ability to write high quality judgments" — with the distinctly political-"ability to modernise the judicial system . . . ability to lead change in encouraging a more diverse judiciary".

Exactly what is meant by "modernising" the system is not clear. And whatever it means, why should an ability to do it be a criterion for appointment? Why should old-fashioned judges be barred from appointment?

We know one thing the Blair government meant by modernisation: abolition of the anomaly of a Lord Chancellor acting as both head of the judiciary and a high-ranking cabinet minister. The justification generally given for this peculiarity — which seemed to violate the principle of separation of powers — was that the Lord Chancellor was able to safeguard the independence of the judiciary within government. Rather than considering whether a system originally devised by the Anglo-Saxons actually worked in practice, Mr Blair decided that because it was out of keeping with constitutional theory it needed to be "modernised".

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