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”.
The result was the creation of a Ministry of Justice.Now, instead of a judge steeped in the traditions of the English common law, we have a Lord Chancellor who is a career politician, Chris Grayling. That is miserably modern, but is it better? Would it be surprising if Mr Grayling’s instinct were to try to increase political influence over the judiciary?
A little delving into the LCJ’s selection process only serves to increase the concern that the Judicial Appointments Commission is only too happy to do the Ministry’s bidding. Astonishingly, candidates had to provide as a reference “the most senior civil servant with whom you have had significant contact . . . ”
This is wrong. Judges should not be given incentives to cosy up to civil servants. While a good reference should not lead to automatic disqualification, the favoured candidates should be those with bad references, or better still those who have had no dealings with senior civil servants at all.
The Lord Chancellor now has a statutory duty to uphold the independence of the judiciary. That sounds good. But so did Stalin’s 1936 Constitution-impeccably modern in its day — which reassuringly proclaimed: “Judges are independent and subject only to the law.”
Ringing declarations of independence and modernity conceal the extent to which politicians are trying to increase their control over judges. What we really need is a conservative Lord Chief Justice who will tell them and their most senior civil servants to get lost. Preferably in old-fashioned English, or better still in Anglo-Saxon.