Examination of Witness (Questions 711-719)
14 DECEMBER 2004
RT HON
LORD WOOLF
OF BARNES
Q711 Chairman: May I welcome our witness
this morning, Lord Woolf, the Lord Chief Justice. You are here,
Lord Woolf, because the Committee is doing its inquiry into inquiries.
We have almost finished and you have given us a very interesting
memorandum which indicates that you are in some disagreement with
the Lord Chancellor, not for the first time, on issues relevant
to our inquiry. We would like to ask you about it. Would you like
to say something to us by way of introduction.
Lord Woolf of Barnes: Yes, Chairman.
I hope I am not unduly delaying the Committee because I understand
I am the last witness and I am grateful for you having considered
my memorandum. On the subject of the memorandum, the Lord Chancellor
and I have agreed to disagree. We have not been able to reconcile
our differences. Usually we manage to do so. But I see it as a
point of some importance, even though its effect is a narrow one.
As the Committee knows well, judges are often requested to conduct
inquiries. This has been long established. In practice, there
is never any difficulty over this. My own belief is that, if the
Lord Chancellor of the day found the Chief Justice was unhappy
about a judge taking part in an inquiry, the Lord Chancellor would
be hugely influenced by this and would not, I would have thought
almost inevitably, pursue his request. We are at the present time,
as the Committee knows, engaged in drawing up and putting into
statutory form a concordat. The whole purpose of the concordat
is to identify those matters which are appropriately the responsibilities
of the Lord Chancellor under the new constitutional arrangements
and those which are the responsibility of the Chief Justice. Some
activities under the concordat are their joint responsibility:
those are usually ones where it is felt that, unless the Lord
Chancellor and the Chief Justice are agreed about what is to happen,
it does not happen. This is an important safeguard of the independence
of the judiciary, that there are things that cannot happen so
far as judges are concerned if the Chief Justice or someone who
exercises his responsibility in the matter is saying no. One of
the matters which is absolutely clear under the concordat is that
the deployment of the judiciary is something within the province
of the Chief Justice. One could well see how that is of great
importance for the independence of the judiciary. I will not name,
but I could name, jurisdictions where in recent times one of the
ways in which you kept the judiciary under control was to carefully
assign them to rather unattractive parts of the jurisdiction as
a sort of punishment for deciding cases against the Executive.
I am not suggesting for a moment that would happen in this jurisdiction
but I use it as an illustration of why it has always been accepted
that the deployment of the judiciary should be a matter for the
judiciary and not for the Executive. Then again we cannot have
a situation where, so to speak, in litigation before the courts,
the Executive can say, "Well, I don't like that judge. We
want you to appoint somebody else to hear the case." Equally,
they cannot say, "I would particularly like that judge to
hear the case. Appoint that judge." It is left to the judiciary
to arrange which judges hear which cases and the fact that it
is the Executive that is involved does not influence the matter.
Public inquiries are different because public inquiries are set
up by the Executive. I see it as highly appropriate that the Executive
should have a view as to whether it is an inquiry which in their
judgment is one which it would be appropriate for a judge to chair.
I think everybody probably would agree there are inquiries which
are appropriate, so it is considered in this jurisdiction, for
a judge to chair, but there are others where it is not so appropriate
for a judge to chair. It seems to me that, because deployment
of the judiciary is a matter for the judiciary, the Chief Justice
of the day should have an equal say with the Lord Chancellor as
to whether a judge is to be deployed. It can be quite an important
matter. For example, the fact that a judge is chairing the inquiry
gives the inquiry a specific status. The judge who will be deployed
will be a senior judge. He or she will be a high court judge.
Unless it is a very modest inquiry indeed—there are sometimes
circuit judge inquiries—usually it is at least a high court
judge, and of course it can be a judge in the Appellate Committee.
If it is a judge from the Appellate Committee then the appropriate
person to say, according to my thesis, as to whether a judge should
be involved, would be the senior law lord. I would not seek to
exercise jurisdiction over that issue if it was a Lord of Appeal,
but if it was a court of appeal or a high court judge, quite apart
from matters I have already mentioned, the judge can be taken
away for a long time. The Saville inquiry is a classic example:
Lord Saville has spent most of his time as Lord of Appeal in Ordinary
on his inquiry.
Q712 Chairman: He was not being punished
for something, was he? He was not being sent into outer darkness,
was he?
Lord Woolf of Barnes: I do not
think so and I am happy to say that he does not regard it as being
a punishment. Having done the inquiry, he has found it a hugely
rewarding task. I merely take that as an example of the time that
can be involved. My concern would be two-fold: (i) the judge may
be required to do something else, or (ii) the inquiry may not
be an inquiry in which the Chief Justice thinks it would be advisable
for a judge to be involved. If it is, for example, highly political,
then it may be that the Chief Justice would say that to get a
judge to do something which is obviously of such party-political
significance would be undesirable because it would expose the
judge to having to adjudicate on issues which would not be ones
appropriate for a judge to adjudicate on, which would not be issues
which a court would adjudicate on. On the other hand, if I may
take this just as an example, the Shipman inquiry was an inquiry
where vast amount of facts had to be looked into by Lady Justice
Smith: she had to look at the facts that were involved, questions
as to whether Shipman had committed crimes, and I would say it
was obviously an inquiry on which a judge could bring special
qualities to bear and one where there was real public concern.
And so it was right, even though that inquiry would take a significant
time, for a judge to do that. Today, judges do not often have
any insight into the workings of the public service and one would
expect, in the ordinary event, these matters to be resolved by
the Lord Chancellor and the Chief Justice having a discussion
today, and I would just say it is consistent with the new constitutional
arrangements that we are making that the Chief Justice should
be able, in effect, to say, "I am afraid on this occasion
I do not think it would be right for a judge to be involved,"
or to be able to say, "I just do not think that a judge is
suited for this particular matter." In practice, I am bound
to say, I cannot conceive—certainly during my period of
office—any judge actually accepting an appointment if the
Chief Justice was against it. But I do think it is right—and
this is a point of principle—to set down this marker of
what is appropriate and what is not appropriate. It can also,
I would suggest, be desirable that this should happen. Today it
is not unknown for it to be suggested that a particular person
has been chosen because he or she may be sympathetic to the particular
views of the Executive. I think it would add to the public confidence
in the appointment of the judge if it was known that that judge
could not be selected without the agreement of the Chief Justice,
and to have, so to speak, the imprimatur of the Chief Justice
indicating that he or she agrees for that person to do it.
Q713 Chairman: That is very useful. Just
remind us how these things happen at the moment so that we have
something to compare it with. When a minister decides that they
want a judge to run an inquiry, do you get a call? Tell us how
it happens.
Lord Woolf of Barnes: You get
a telephone call and there is discussion. Sometimes I will say,
"I think it would be a very good thing to get a retired judge,"
and I will say that because I do not want to lose one of my judges—because
we only have a limited number of judges and they are all very
busy. I would say, "This is a matter which it would be very
appropriate for a retired judge to do," and retired judges
have done it very well. Or I might say, "I recognise it is
in the sphere which a judge would do, but we really cannot spare
a judge. Would it be possible to get some distinguished Silk to
do it?" The Lord Chancellor on behalf of the minister who
is involved would say, "No, I think that this matter is one
which really does need a serving judge and I have a particular
judge in mind, Lady Justice So-and-So in the Court of Appeal."
Within a very few minutes there is consensus. This is the way
the judiciary and the Lord Chancellor's Department works at the
present time. We are both independent bodies but there is a partnership
which makes the thing work.
Q714 Chairman: We have been asking the
great inquirers as they have come before us how they were chosen.
We asked Lord Hutton this and we tried to find out what had happened,
and it seems that the Prime Minister was on an aircraft, he phoned
the Lord Chancellor, and we thought the Lord Chancellor had picked
Lord Hutton—but in fact the Lord Chancellor then spoke to
you, did he?
Lord Woolf of Barnes: No. I made
a distinction between court of appeal and high court judges and
judges in the House of Lords.
Q715 Chairman: You had no role to play.
Lord Woolf of Barnes: I had no
role in that at all.
Q716 Chairman: One of your arguments,
as I understand it, is that you think that judges should not do
politically contentious inquiries.
Lord Woolf of Barnes: I would
not go as far as that, but I would think that because the matter
is politically contentious that is an important consideration
to be taken into account by the Chief Justice, under my approach,
whether he has been consulted or whether his agreement has been
sought. I think one has to look at all the circumstances. One
has to weigh up the benefits to the public of having a judge:
you have to take into account the precise nature of the issues,
you have to take into account what the judge can bring to the
table, what his experience and interests are—all these matters—and
then take a decision as a whole. I would not be able to say, "This
is something a judge can do and this is something a judge cannot
do." You have to look at the particular circumstances and
come to a decision.
Q717 Chairman: Because you make this
interesting distinction between the types of inquiry—for
some you think a judge is appropriate and for some you think a
judge may not be appropriate—I am just wondering in something
like the Kelly case, where Lord Hutton was brought in—and
I accept that in this case it was a law lord so it did not come
within your purview, but had it been a sort of routine job, if
I may put it like that—and this was highly contentious politically:
you are in the eye of the political storm—under the dispensation
that you are wanting to have, what kind of considerations would
you have brought to bear on that to think whether that was suitable
for a judge or not?
Lord Woolf of Barnes: It is very
difficult to second-guess an inquiry, especially after the inquiry
has taken place. You would normally make your decision before
the inquiries take place and it is sometimes very difficult to
anticipate what sort of things are going to happen afterwards.
If I could anticipate that the inquiry could result in a report
which would be highly politically controversial, I would then
also want to ask myself: "How great is the public concern
over the particular issue? Is there something which, by having
a judge do it, will be for the public good as a whole?" I
would be very much influenced by what the Lord Chancellor had
to say on that, but I would not suggest that my job normally would
be to second-guess the assessment of the Lord Chancellor. If I
came to the conclusion—and I am not suggesting this would
happen with this administration, but assuming I am still in office
(which will not be the case) many years hence and there is a different
administration—that a judge was really being used for a
political purpose, then I would say, "No. This could damage
the judiciary, it could damage the particular judge, and I do
not think it is right for that judge to be used there. I do not
think it is fair to the judge." If you ask a judge to do
something and you say, "This is for the public good,"
the judge will do it. I have done two inquiries myself, and, as
to your suggestion that these things can happen in an odd way,
I first knew about the Strangeways inquiry when I was in South
Africa. The only way the Lord Chancellor's Department could get
hold of me was by ringing up the local court. The judge of the
local court was able to say, "I have to adjourn the court
so as to take a phone call from the Lord Chancellor," and
he thought that was one of the special moments in his career so
far, to be able to say that. These things can happen in a great
hurry.
Q718 Chairman: I am just trying to get
a feel for the approach that you bring to this. When it was suggested
a week or two ago by the opposition party that we needed a judicial
inquiry into the matters concerning the Home Secretary, as I try
to understand what you are telling us you would think that was
exactly the kind of inquiry in which a judge should not be involved.
Would that be right?
Lord Woolf of Barnes: I would
not want to anticipate my views on a particular inquiry, if you
will forgive me, Chairman.
Q719 Chairman: I am just trying to get
a sense of what this means.
Lord Woolf of Barnes: I would
recognise that that inquiry would involve knowing how the Executive
works. I would know that most judges today have no experience
of how the Executive works. That would be, in my mind, one thing
against a judge being used. The other aspect of it—and,
if I may say so, members of the Committee are better able to judge
this—is that this could be, I think I would say, highly
political, and I would be a bit nervous about judges doing this.
But I was not asked; and I do not know what my answer would have
been if I had been asked.
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