Memorandum by Lord Woolf of Barnes (GBI
22)
GOVERNMENT BY INQUIRY: THE USE OF INVESTIGATORY
INQUIRIES BY GOVERNMENT
This paper has the endorsement of the Judges
Council, a body of which I am chair and on which all levels of
the judiciary of England and Wales are represented.
The purpose of this submission is to outline
my position on the appointment of judges to public inquiries and
the respective roles of the Minister and the Lord Chief Justice.
Judges are not obliged to accept the chairmanship of inquiries
but do so out of a strong sense of public duty.
The announcement of the proposed Constitutional
Reform Bill led to detailed negotiations between myself and the
Lord Chancellor which resulted in a paper entitled "Constitutional
Reform: The Lord Chancellor's judiciary-related functions—Proposals"
which subsequently became known as the "concordat".
The concordat proposals had the unanimous support of the Judges
Council and subsequently received support from all sides of the
House of Lords and the Select Committee on the Constitutional
Reform Bill. The concordat is clear that the deployment of judges
is a matter for the judiciary and not the executive. This is translated
in clause 3 (2) (c) of the Constitutional Reform Bill which clearly
states the maintenance of appropriate arrangements for the deployment
of the judiciary in England and Wales and the allocation of work
within courts is the responsibility of the Lord Chief Justice.
The rationale behind this is that it should not be, even theoretically,
possible for the executive to influence the outcome of a case
by either preventing a judge from sitting on a particular case
or by putting forward a particular judge to sit on the case. The
Lord Chief Justice is also better placed to determine deployment
having an overall view of the needs of the justice system as a
whole.
Although, it is not directly translated into
the Bill, it was agreed at paragraph 47 of the concordat that
the Lord Chief Justice should also be responsible for the appointment
of judges to committees, boards and similar bodies. Exactly the
same rationale applies to serving judges who are asked to represent
the judiciary on such bodies, as it does to the deployment of
judges to hear cases. The Lord Chief Justice is best placed to
decide whether a judge can be released from normal judicial sittings
in order to undertake such commitments.
The position regarding appointments to public
inquiries is slightly different as they were overlooked in the
negotiations leading up to the concordat. However, I have since
made clear in correspondence with the Lord Chancellor that I am
firmly of the view that the Lord Chief Justice should have to
concur with any appointment to a public inquiry. I have arrived
at my position for two reasons:
(i) I must have the right to say whether
a particular judge can be released to conduct an inquiry. Placing
a serving judge on an inquiry prevents him from being deployed
on his normal judicial duties.
(ii) Whilst some inquiries are appropriate
for a judge to sit on, other inquiries are of a highly politically
sensitive nature and it is not appropriate for a judge to be involved.
The Lord Chief Justice should be entitled to say not only who,
but whether, a judge should conduct the inquiry at all.
I have, so far, failed to reach an agreement
with the Lord Chancellor on this issue. As he made clear to you
in evidence, his position is that the interest of the executive
in such appointments is such that I should only be consulted rather
than it being appropriate for me to agree. I had originally hoped
for an amendment to the Constitutional Reform Bill to reflect
my position, but given the Lord Chancellor's position this now
seems unlikely.
I intend to maintain my position and will press
for this safeguard to be in any future legislation. As an interim
safeguard, I trust that the Ministerial Code will be amended.
For the reasons I have stated, I would prefer the Ministerial
Code to state that the Minister should obtain my concurrence before
appointing a judge to conduct a public inquiry. At the very least
I expect the code to be amended to ensure that the Lord Chief
Justice will be consulted.
As the Committee know, inquiries can differ
very much in their subject matter. My own experience of conducting
inquiries illustrates this. I conducted the Strangeways inquiry
in to prison disturbances and an inquiry in to Access to Justice.
Based on my own experience I appreciate that there are advantages
in a judge conducting an inquiry:
(i) The fact that the inquiry is conducted
by a judge or with a judicial chairman enhances the confidence
of the public as to the impartiality and thoroughness of the inquiry.
(ii) A judge has experience of how to conduct
fact finding activities in a way which is fair to those involved
and usually means that the report of the inquiry is given due
attention.
(iii) Whilst it used to be the case that
judges were only familiar with an adversarial process, which was
not necessarily appropriate for inquiries, most civil litigation
has now changed and judges can be expected to conduct inquiries
in a more informal and expeditiousness manner than is appropriate
for some litigation.
(iv) On some subjects—such as those
to which my inquiries related, judges will be in a particularly
advantageous position to make authoritative recommendations.
On the other hand I have no doubt that it is
preferable that judges should not conduct some inquiries. The
subject matter of the inquiry may be so political that it would
be damaging to the judiciary for a judge to be involved. In addition,
the question of whether there should be an inquiry at all may
be highly controversial and if a judge is appointed the judiciary,
as a result of the appointment, may be seen as siding inappropriately
with the Government. Finally for a judge to be appointed without
the support of his or her Chief Justice could be unduly divisive.
The Chief Justice of the day is in a singularly
appropriate position to see the advantages and disadvantages to
the judiciary if an inquiry is to be conducted by a judge and
is also in the best possible position to assess the impact on
the justice system of any individual judge being deployed elsewhere.
I trust that this submission is sufficient to
give the Committee an understanding of my position, but if required
I would be happy to address your Committee on these points in
oral evidence.
Lord Woolf of Barnes
Lord Chief Justice of England and Wales
November 2004
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