The selection process for Britain’s next judge at the European court of human rights in Strasbourg has been passed to one of the cabinet’s leading Eurosceptics, Michael Gove.
The longlist of up to 10 candidates has already been handed over by the Judicial Appointments Commission (JAC) to the justice secretary who will reduce it down to three eligible lawyers, but critics have questioned whether he should have such powers.
Gove, who supports the Vote Leave campaign in the EU referendum, is also responsible for drafting the proposed bill of rights which would rewrite the UK’s relationship with Strasbourg and could, if relations deteriorate, result in the UK leaving the court.
Candidates for the ECHR bench – on which each of the 47 member nations have a judge – must “be of high moral character and either possess the qualifications required for appointment to high judicial office or be jurisconsults of recognised competence”.
Britain’s current judge, Paul Mahoney, will reach 70 this year, the compulsory retirement age. A former registrar of the ECHR, he was appointed to the bench in 2012 and stands down in September.
The Council of Europe, which oversees the court, requires the shortlist of three to include candidates of both sexes. Judges can serve for up to nine years. They do not need to have judicial experience.
The Ministry of Justice declined to identify the candidates. The JAC has already completed its programme of preliminary interviews. The competition is likely to generate intense political scrutiny, particularly since it is in the middle of the EU referendum, once the names on the shortlist emerge. The Council of Europe is not part of the EU, but they have a “long tradition of cooperation”, according to the CoE.
Candidates will be interviewed at Westminster by MPs who sit on the CoE. Unlike other judicial appointments, ECHR judges at Strasbourg are democratically elected. Strasbourg’s parliamentary assembly has the final say. There will be lobbying in advance of the vote.
John Wadham, human rights lawyer and former director of Liberty, said: “It will be interesting to see whether the government chooses someone on the basis of their expertise, their politics or the extent to which they are a Eurosceptic.”
Lord Lester QC, a member of the government’s deadlocked bill of rights commission, said: “The appointment procedure is regressive. It gives [Gove] far too much power.
“To have a Brexit minister being able to select the three candidates is very bad. Ministers can’t help being judges in their own cause: he’s unlikely to choose a candidate who is strong on human rights.”
Anthony Speaight QC, who wrote a pamphlet for the thinktank Policy Exchange urging a more open competition, said: “It would help promote greater confidence in the Strasbourg court amongst the British public if the next UK judge is somebody who already has high judicial standing, such as a current court of appeal or high court judge, or who can in other ways demonstrate an understanding of the importance of judicial restraint.
“Unlike UK judicial appointments, this post involves an election, and it is reasonable that something be publicly known of nominees’ judicial philosophy.”
A Ministry of Justice spokesperson said: “It is totally wrong to suggest that there is anything inappropriate about this process or the involvement of the [justice secretary] who has specific constitutional responsibilities for the judiciary.
“In fact the independent selection panel was chaired by a British former president of the international court of justice and included senior officials and members of the judiciary, as well as the Equalities and Human Rights Commission chair, to ensure the UK’s next judge is of the highest calibre.”
The foreign secretary also takes part in selecting the final list of three candidates that are taken to Strasbourg.
Government plans for a bill of rights have been repeatedly delayed and are now unlikely to emerge before the referendum vote on 23 June. Gove has been back-pedaling, implying any changes in the UK’s judicial relationship with Strasbourg will be less far-reaching than previously envisaged.
