The Memo: Who judges the judges? Conservatives unveil contentious plan for judicial reform

Tories fretting that their party feels marooned in the political wilderness may not have been entirely reassured by Robert Jenrick’s recent conference speech, which he delivered partly to a judge’s wig in the manner of a desert island castaway addressing an imaginary friend. Nonetheless, the content of the Shadow Justice Secretary’s speech has brought the party attention. 

In brief, Jenrick has declared war on what he describes as “judicial activism,” which he accuses of thwarting popular demands for deportations and tougher sentences. His plan is for a future Conservative government to do away with the Judicial Appointments Commission, the 15-person panel of judges, lawyers and laypeople which currently plays the leading role in selecting the country’s judiciary. Instead, this function will be given to the Lord Chancellor, a government minister. Other targets earmarked for the chop include the independent Sentencing Council (which issues guidelines on legal penalties), immigration tribunals, and 35 specific judges accused of bias. 

Debate over the proposals has been heavily influenced by transatlantic examples. While opponents accuse Jenrick of violating the fundamental legal principle of separated powers, his defenders argue that this principle is merely a recent American import. It is a fact that, until Blair’s 2005 Constitutional Reform Act, the JAC did not exist, and Britain’s judiciary was not clearly detached from either the legislature or the executive. Jenrick’s claim that he only seeks to “restore the Office of the Lord Chancellor to its former glory” therefore carries an element of truth. However, although provisions for Crown ministers to dismiss senior judges have theoretically existed since the 1701 Act of Settlement, they have never once been used in England and Wales. Jenrick’s pledge to wield this power liberally thus looks more like an innovation than a return to tradition.  

His inspiration may also lie across the pond. In the US, appointments to the bench have long been overtly politicised, and the Trump administration’s recent purge of over one hundred immigration judges provides a template for ideological reshaping of the judiciary. Critics warn that, in today’s polarised climate, a revived mechanism for UK ministers to hire and fire judges would be similarly used for partisan advantage. Nonetheless, some conservatives don’t see this as a major problem. Although Jenrick himself made no mention of Trump (and was careful to promise that the Lord Chancellor will “never permit activists of any political hue to don the wig”), allied thinktanks and Tory grandees openly embrace the MAGA model, arguing that judges must serve the will of democratically chosen politicians rather than committees of lawyers and unelected officials. 

Instead of getting too deep into the theoretical weeds, it’s worth asking whether any of this will actually have real-life consequences. There’s certainly no guarantee that the proposals will become law; the Tories are currently projected to finish fourth in the next election, and cynics interpret Jenrick’s speech as more of a job pitch for the party leadership than a serious blueprint for government.

Nonetheless, that doesn’t mean his words are meaningless. It’s perhaps telling that the official response from the Law Society and other groups (collectively representing 250,000 UK lawyers) focused not on the content of the proposed reforms, but on a “climate of increasing hostility towards lawyers and judges.” Jenrick’s accusations of judicial bias were founded on the work which some individuals had done earlier in their careers for pro-refugee charities, just as his attack on Attorney General Hermer focused on Hermer’s past representation of terrorists. The Law Society fears that such rhetoric blurs the distinction between lawyers’ own beliefs and those of the clients they represent, exposing anyone who defends controversial figures to public retaliation. Thus, even if the Conservatives remain stranded in political exile, Jenrick’s impact on the legal profession might extend well beyond a few “activist” judges.