Jack Straw risks losing what little respect he has among family judges and lawyers unless he ensures that Sir Nicholas Wall is named as president of the High Court family division before Easter.
The Lord Chancellor is thought to be holding out for Dame Heather Hallett, who would have been an excellent candidate if her main area of expertise had been family law rather than criminal law.
It was suggested in Parliament this week that Straw was playing politics with the judiciary and blocking the appointment of someone who might make trouble for ministers.
Although there has been no official confirmation of this, my understanding is that Lord Justice Wall was selected some three months ago by a selection panel of the Judicial Appointments Commission.
It is thought that Straw used his powers under section 72(3)(c) of the Constitutional Reform Act 2005 to “require the selection panel to reconsider the selection”.
Whether the panel has done so is not known. But it must be likely that the reconsideration has taken place by now. It must also be likely that the panel has selected Wall a second time.
If that is the case, Straw may still reject Wall once more. But if Wall is selected a third time, then Straw has to accept the selection.
The whole thing is scandalous. Wall would make an excellent president of the Family Division. The current president, Sir Mark Potter, sits for the last time on Wednesday. He then goes on holiday.
There has been no hand-over period for an immensely complex job. At this rate, there will be no president in post at the start of the new term. While apparently sticking to the letter of the law, Straw is treating the judiciary with contempt.
For those who wish to work their way through the convoluted legislation, here it is:
73 The Lord Chancellor’s options
(1) This section refers to the following stages-
Stage 1: where a person has been selected under section 70
Stage 2: where a person has been selected following a rejection or reconsideration at stage 1
Stage 3: where a person has been selected following a rejection or reconsideration at stage 2.
(2) At stage 1 the Lord Chancellor must do one of the following-
(a) accept the selection;
(b) reject the selection;
(c) require the selection panel to reconsider the selection.
(3) At stage 2 the Lord Chancellor must do one of the following-
(a) accept the selection;
(b) reject the selection, but only if it was made following a reconsideration at stage 1;
(c) require the selection panel to reconsider the selection, but only if it was made following a rejection at stage 1.
(4) At stage 3 the Lord Chancellor must accept the selection, unless subsection (5) applies and he accepts a selection under it.
(5) If a person whose selection the Lord Chancellor required to be reconsidered at stage 1 or 2 was not selected again at the next stage, the Lord Chancellor may, at stage 3, accept the selection made at that earlier stage.
Section 74 limits Straw’s powers:
(1) The power of the Lord Chancellor under section 73 to reject a selection at stage 1 or 2 is exercisable only on the grounds that, in the Lord Chancellor’s opinion, the person selected is not suitable for the office concerned.
(2) The power of the Lord Chancellor under section 73 to require the selection panel to reconsider a selection at stage 1 or 2 is exercisable only on the grounds that, in the Lord Chancellor’s opinion-
(a) there is not enough evidence that the person is suitable for the office concerned, or
(b) there is evidence that the person is not the best candidate on merit.
(3) The Lord Chancellor must give the selection panel reasons in writing for rejecting or requiring reconsideration of a selection.