JAC of all trades: should ministers pick judges?

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The Judicial Appointments Commission has too much power, according to the constitutional lawyer Professor Robert Hazell CBE (pictured below). He believes ministers should have more of a say in appointing top judges.

Joshua rozenberg

Joshua Rozenberg

This controversial suggestion merits just a few paragraphs of a definitive new book on the royal prerogative. In Executive Power, Hazell, a former director of the Constitution Unit at UCL, and his co-author Timothy Foot – who recently joined Maitland Chambers – corral amorphous prerogative powers into less than 350 pages. The authors chronicle a struggle between ministers, enjoying powers that were first claimed by medieval monarchs, and institutions – including parliament, the courts and some specialist watchdogs – that have been wresting those powers away from the executive over the past 30 or 40 years.

Robert Hazell

In 2019, the judges chalked up a victory in that power struggle when Lady Hale’s Supreme Court prevented Boris Johnson from using prerogative powers to prorogue parliament for five weeks. And on 6 July last year, we could see that the sovereign’s personal prerogatives were no mere fiction when Johnson’s ministers resigned from his government in unprecedented numbers and Buckingham Palace had to tell Downing Street that it would soon be too late to approve any more ministerial appointments that night, presumably because the Queen was going to bed.

Until 1995, prerogative powers allowed ministers to give any number of jobs to anyone they liked. ‘No one knows how many, and there is no official list,’ the authors note. Now there are some safeguards: we have a commissioner for public appointments, a House of Lords appointments commission and pre-appointment scrutiny by parliamentary select committees for some 50 appointments.

But non-statutory restrictions do not go far enough, Hazell and Foot argue. Existing safeguards have not stopped prime ministers packing the House of Lords with political supporters. Given the failure of voluntary restraint, the only effective remedy may be statutory control.

By contrast, the Judicial Appointments Commission was created by the Constitutional Reform Act 2005. If it had not been a creature of statute, the authors believe that ministers would have been tempted to abolish it in the closing years of the last Labour government. Dissatisfaction reached such a level that Jack Straw, then lord chancellor, tried to block the appointment of Sir Nicholas Wall as president of the High Court family division, a decision Straw subsequently sought to justify by implying that he knew early in 2010 of the health problems that were to force Wall’s retirement in December 2012.

Out of the Blue, a recent biography of Liz Truss by Harry Cole and James Heale, confirms that, as lord chancellor in 2017, Truss blocked the expected appointment of Sir Brian Leveson as lord chief justice by stipulating that the successful candidate must be 65 or younger. Leveson was then 67 and the judicial retirement age was 70. If it had not been for her intervention, he would have led the judiciary in England and Wales for twice as long as Truss was lord chancellor – easing the transition to a new generation of leadership judges.

Even so, Hazell and Foot argue, the Judicial Appointments Commission leaves ministers with effectively no discretion. ‘Although nominally advisory, it has become de facto an appointing body, and one controlled by the judges.’ The authors argue that the commission should present ministers with a shortlist of candidates for senior positions rather than just one name. ‘That should not be a threat to judicial independence, because the candidates will have been judged appointable; and it should enable faster progress on diversity.’

I find that unconvincing. Helen Pitcher OBE took over this week as chair of the Judicial Appointments Commission. She must now set up a panel to choose the next chief justice. Is it really likely that she or her colleagues would be less committed to diversity than ministers? Dame Victoria Sharp, president of the King’s Bench Division, is currently seen as best placed to succeed Lord Burnett of Maldon in the autumn, regardless of how many names might be presented to the lord chancellor.

There are also practical problems. As Burnett observed when he announced his retirement just over a month ago, ‘there remain difficulties in recruiting to some judicial offices’. For those jobs you would be lucky to get one appointable applicant, let alone a shortlist.

The call for greater ministerial involvement in judicial appointments came originally from Professor Richard Ekins KC (hon), who heads the Judicial Power Project at the thinktank Policy Exchange. As I reported here in October, Ekins wants the law changed so that the lord chancellor would be able to veto the appointment of any senior judge who might ‘undercut settled constitutional fundamentals, including parliamentary sovereignty’.

Letting the lord chancellor choose the judges became unsustainable 20 years ago. Subsequent experience confirms that this is not a power the politicians should possess.