Been doing a bit of digging around how you appoint the P of the Fam D.
First the JAC makes a selection:
70 Selection process
(1) On receiving a request the Commission must appoint a selection panel.
(2) The panel must—
(a) determine the selection process to be applied,
(b) apply the selection process, and
(c) make a selection accordingly.
(3) One person only must be selected for each recommendation to which a request
(4) Subsection (3) applies to selection under this section and to selection under
(5) If practicable the panel must consult, about the exercise of its functions under
this section, the current holder of the office for which a selection is to be made.
(6) A selection panel is a committee of the Commission.
Then they send a report to Mr Straw and he can ask for further information
(1) After complying with section 70(2) the selection panel must submit a report to
the Lord Chancellor.
(2) The report must—
(a) state who has been selected;
(b) contain any other information required by the Lord Chancellor.
(3) The report must be in a form approved by the Lord Chancellor.
(4) After submitting the report the panel must provide any further information the
Lord Chancellor may require.
Then there are three stages: Section 73
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.
This is what Mr Straw can do at each stage:
(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.
That makes it sound like the JAC can win in the end - but they can't:
75 Selection following rejection or requirement to reconsider
(1) If under section 73 the Lord Chancellor rejects or requires reconsideration of a
selection at stage 1 or 2, the selection panel must select a person in accordance
with this section.
(2) If the Lord Chancellor rejects a selection, the selection panel—
(a) may not select the person rejected, and
(b) where the rejection is following reconsideration of a selection, may not
select the person (if different) whose selection it reconsidered.
(3) If the Lord Chancellor requires a selection to be reconsidered, the selection
(a) may select the same person or a different person, but
(b) where the requirement is following a rejection, may not select the
(4) The selection panel must inform the Lord Chancellor of the person selected
following a rejection or a requirement to reconsider.
(5) Subsections (2) and (3) do not prevent a person being selected on a subsequent
request under section 69.
To recap -
STAGE 1 - STRAW ASKS FOR RECONSIDERATION OF WALL LJ [presumably where we are now]
STAGE 2 - JAC RE-SELECTS WALL LJ & STRAW REJECTS WALL LJ
STAGE 3 - JAC MUST SELECT SOMEBODY ELSE WHICH STRAW MUST ACCEPT OR HE CAN ACCEPT WALL LJ.
Straw cannot reject or ask for reconsideration on any grounds:
74 Exercise of powers to reject or require reconsideration
(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
(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.
So at the moment Straw thinks that there is not enough evidence that Wall LJ is suitable or there is evidence that he is not the best candidate on merit. We will have to see if the JAC re-select Wall LJ and if Straw goes on to find that he is not suitable and rejects him. The JAC should then select somebody even more outspoken than Wall LJ - Sedley LJ for P Fam D I say!!! That could then force Straw to go back and re-select Wall LJ.
Wall LJ gave evidence to the Home Affairs Select Committee in Jan 2008. I can see why Straw does not want this sound judge sending him letters about under-resourcing and the non-availability of legal aid. I particularly liked this:
Lord Justice Wall: In my experience very few contact cases are about children; they are an ongoing power battle between parents. I utterly endorse what District Judge Mornington has said. At first instance I would like to say to people in front of me, "Look, you are in the wrong place." One of the great advantages of the Family Law Act 1996, which has been abandoned, is that before entering into divorce proceedings parties had to go to meetings at which they were given information about what they were letting themselves in for. Most parents simply do not realise that post-separation parenting is fantastically difficult. They think it is easy because they believe that when they separate it will solve the problem; it does not. I would like to see a programme whereby any couple, married or not—it does not matter, because most of the couples I deal with are not—before entering the legal process go to meetings and are given information about what they are letting themselves in for and the damage they are doing to their children.