Memorandum by Roger Masterman, University
of Durham (GBI 15)
THE SUITABILITY
OF JUDGES
PARTICIPATING IN
PUBLIC INQUIRIES
Summary
1. This submission argues that the use of
judges to conduct public inquiries into matters of political controversy
should cease as it poses a threat to the institutional independence
of the judiciary as a whole, and has the potential to compromise
the "independence and impartiality" of the judge concerned
in future adjudication. That this practice should be ended is
entirely in keeping with the post-Human Rights Act movement towards
a more formal separation of powers, pointed to by the decisions
to remove the Law Lords from the House of Lords and abolish the
office of Lord Chancellor.
2. The Government's proposals to establish
a new Supreme Court—independent of the legislature and the
executive—and to abolish the ancient office of Lord Chancellor
have been motivated both by the pressures exerted on the Law Lords
and Lord Chancellor by Article 6(1) of the European Convention
on Human Rights—enforceable in domestic law under the Human
Rights Act 1998—and by the attendant movement towards a
more formal separation of executive, legislative and judicial
power in the United Kingdom system of government.
3. Inherent in these policy decisions has
been the desire to increase the independence of the judiciary
from both the legislative and the executive branches. That the
Government is prepared to allow its reforms to be publicised on
the basis of this increased autonomy while at the same time allowing
it to be compromised by endorsing the use of judges to investigate
matters of acute political controversy betrays the structural
incoherence which has come to characterise much of the Government's
much-feted programme of constitutional reforms.
Involvement in matters of political controversy
4. In the consultation paper, A Supreme
Court for the United Kingdom, published in June 2003, the
concerns of the Government were made clear as regards the position
of the Lords of Appeal in Ordinary concurrently being members
of the House of Lords:
The Human Rights Act, specifically in relation
to Article 6 of the European Convention on Human Rights, now requires
a stricter view to be taken not only of anything which might undermine
the independence or impartiality of a judicial tribunal, but even
of anything which might appear to do so. So the fact that the
Law Lords are a Committee of the House of Lords can raise issues
about the appearance of independence from the legislature.[27]
5. Prior to the enactment of the Human Rights
Act—and on the basis of convention alone—the Law Lords,
in their capacity as members of the Upper House of the United
Kingdom legislature, did not seek to participate in debates on
matters of political controversy. Partly as a result of the Pinochet
episode, partly due to external pressures following the judgment
of the European Court of Human Rights in McGonnell v United
Kingdom,[28]
the Law Lords were placed under increased scrutiny regarding any
extra-judicial activity which might have the potential to cast
doubt upon their judicial integrity.
6. In June 2000, following the recommendations
of the Royal Commission on Reform of the House of Lords, this
convention was reiterated by Lord Bingham of Cornhill, the Senior
Law Lord. The announcement was made in the following terms:
First, the Lords of Appeal in Ordinary do not
think it appropriate to engage in matters where there is a strong
element of party political controversy; and secondly the Lords
of Appeal in Ordinary bear in mind that they might render themselves
ineligible to sit judicially if they were to express an opinion
on a matter which might later be relevant to an appeal to the
House.[29]
7. Examples of members of the judiciary
participating in debates in the House of Lords and subsequently
having to stand down, or being accused of lacking the requisite
"independence" are few. Nevertheless there are a number
of pertinent examples illustrating the confusion of the dual legislative
and adjudicative roles exercised by the Law Lords: Lord Hoffmann,
for example, was required to stand down from the libel proceedings
involving Albert Reynolds, the former Irish Taoiseach, and David
Lange, formerly Prime Minister of New Zealand, after counsel raised
concerns about his prior involvement in the passing of the Defamation
Act 1996.[30]
Similarly, Professor Diana Woodhouse has recounted the confusion
over the boundary between the Law Lords legislative and judicial
roles which became apparent during the Pepper v Hart litigation
as, "several of the Law Lords hearing the case had . . .
expressed strong feelings for or against the principle [that Hansard
could be used as a tool of statutory interpretation where
the intention of Parliament is unclear] in a debate in Parliament
two years previously."[31]
And in relation to the famous Fire Brigades Union case, Professor
Robert Stevens has noted that constituting a bench for the purposes
of hearing the appeal was problematic, "since so many Law
Lords had already spoken out, legislatively, against the Howard
proposals."[32]
8. It is this confusion—and the potential
compromising of future judicial conduct—which formed a part
of the rationale for the Government's proposals of June 2003.
However, that the Government was not as committed to enhancing
judicial independence as its rhetoric would have us believe also
became apparent upon the publication of the Consultation paper
on the proposed Supreme Court. Despite the declaration that "judges
who are appointed to the final court of appeal should be judges,
not legislators"[33]and
the overall aim of establishing a Supreme Court to "reflect
and enhance the independence of the judiciary from both the legislature
and the executive,"[34]
it seems that the Government remains prepared for the potential
conflict of interests that may result from judges of the new Supreme
Court taking part in public inquiries.
9. In its discussion of the size of the
proposed Supreme Court the Government consultation paper states
that having a number of judges in excess of the current 12 Lords
of Appeal in Ordinary would allow for more cases to be dealt with
concurrently (assuming that the new Supreme Court continues to
sit en banc) and would also allow "for the continued release
of members of the court to undertake functions such as the chairing
of public inquiries."[35]
10. The Government stance was elaborated
on in the consultation paper, Effective Inquiries:
The Government believes that it can be appropriate
for judges to chair inquiries, because their experience and position
make them well suited to the role. The judiciary has a great deal
of experience in analysing evidence, determining facts and reaching
conclusions, albeit in an adversarial rather than inquisitorial
context.[36]
11. The argument against judges participating
in such extra-judicial (and executive-endorsed) activities is
simply put and resonant of the argument against their participation
in the legislative and scrutiny work of the House of Lords:
[T]here may be concerns about judges being too
intimately involved in the operation and needs of government,
particularly in cases where they are drawn upon to give advice
on a matter about which they are subsequently drawn upon to adjudicate.[37]
12. While the involvement of a judge in
an inquiry which is for largely fact-finding purposes may be justifiable,
the "borrowed authority"[38]of
the judiciary is equally often used to investigate matters where
there is a "strong element of party political controversy"—the
very matters in which, as members of the House of Lords, the Government
was concerned to distance the judiciary from.
13. Just as examples exist of serving Law
Lords contributing to Parliamentary debates and going on to sit
in judicial proceedings involving the same subjects, examples
can be given of judicial decisions which can be said to have been
influenced by previous involvement in such extra-judicial activities.
Lustgarten and Leigh have detailed examples of this exact conflict
of interest in the particularly sensitive context of intelligence
and national security:
An equally serious danger is to the appearance
of impartiality when judges with inside experience of reviewing
intelligence matters subsequently sit to hear cases involving
questions of national security. Although apparently unnoticed
at the time, Lord Radcliffe sat in the House of Lords' appeal
in Chandler v DPP immediately after completing his review
of security procedures in the public service. It is difficult
to read Lord Denning's judgment in the Hosenball case or Lord
Griffiths's speech in the second House of Lords decision in Spycatcher
without forming the impression that the tone was influenced by
their extra-judicial experiences. Similarly it would be natural
to expect that Lord Diplock's approach to questions of secrecy
and the classification of documents in the Guardian Newspapers
case might have been influenced by his chairmanship, two years
earlier, of the Security Commission investigation into security
procedures, which, among other things, reviewed the classification
categories . . . whether it is wise for judges publicly associated
with extra-judicial investigations to continue to sit thereafter
in cases arising in the same field is at least debatable.[39]
14. The explicit motivation of the policy
of establishing a new Supreme Court was at least in part a result
of the desire to reduce the potential for judicial involvement
in matters of party political controversy within Parliament. That
the Government is clearly willing to countenance that extra-judicial
intercourse with matters of political controversy will continue
in different fora undermines the laudable aim of enhancing judicial
independence by separating the Law Lords from Parliament. As Professor
Stevens has observed:
It is ironic that a series of documents that
insist that the judiciary and politics live in totally different
systems and never the twain shall meet should offer the judges
on the sacrificial altar of public inquiries, which inevitably
have a greater or lesser political content.[40]
The Human Rights Act 1998 and appearances of independence
15. The coming into force of the Human Rights
Act has bolstered the common law on issues surrounding judicial
bias with the extensive jurisprudence of the European Court of
Human Rights on Article 6(1), the right to a fair trial by an
independent and impartial tribunal—"independent of
the executive and also of the parties."[41]
Importantly, the requirements of Article 6(1) are not confined
to issues of actual bias, but the Convention is "concerned
with risks and appearances as well as actualities."[42]
Thus, the appearance, or perception, of bias may suffice for a
breach of Article 6(1) to be found.
16. Of course, from the Government's perspective,
appearances are also important, as a member of the judiciary is
perceived as having a "certain lofty detachment from the
rough and tumble of party politics,"[43]
and "they are appointed because they bring to such inquiries
the symbolic qualities of independence and impartiality."[44]
Slightly more cynically perhaps, they may be appointed to bestow
upon the proceedings a "veneer of legality."[45]
17. Aside from specific issues of subsequent
adjudication being affected by a judge's previous involvement
with an inquiry—a challenge to which may have an increased
chance of success on Article 6(1) grounds—there exists the
potential to damage the reputation of the judge or judiciary more
generally. Unfortunately for many of the judges who have been
involved in such inquiries the collective memory of the episode
in many minds seems to be of their unsuitability for the role.
Sir Richard Scott, now Lord Scott of Foscote, was vocally criticised
for his lack of knowledge of the workings of government following
the delivery of his report on the Arms to Iraq scandal.[46]
Lord Hutton has recently been the subject of much criticism in
the press, labelled as an "establishment man" before
the inquiry even began, and accused of pandering to the executive
since.
18. While it may be hard to gauge the effect
of reactions such as this from politicians and the press on the
idea of judicial integrity as a whole, it would not be beyond
reason to suggest that the involvement of the judiciary in inquiries
into matters of controversy—and the frequently adverse coverage
which accompanies such investigations—will affect public
perceptions of the judge in question often to his or her detriment.
19. Although there is certainly weight in
the argument that a judge will—because of this "symbolic
quality of independence and impartiality"—appear to
be better placed to impartially examine matters of political controversy
than, say, a politician, it is hard to think of another person
or persons whose future career and professional reputation could
be as adversely affected by an accusation of partiality than that
of a judge.
The separation of executive and judicial powers
20. The second development which has accompanied
the coming into force of the Human Rights Act is the movement
towards an increased formality to the separation of powers in
the United Kingdom. Despite the fact that the jurisprudence of
the European Court of Human Rights has consistently stressed that:
. . . neither Article 6 nor any other provision
of the Convention requires States to comply with any theoretical
constitutional concepts regarding the permissible limits of the
powers interaction.
It can be said with some certainty that:
. . . the notion of the separation of powers
between the political organs of government and the judiciary has
assumed a growing importance in the court's case-law.[47]
21. Following the coming into force of the
Human Rights Act 1998 domestic courts have noted this growing
importance of the separation of powers doctrine in the eyes of
the European Court of Human Rights and have—in the context
of the separation of executive and judicial powers—declared
that it is not only an "essential part of a democracy"
but that the "complete functional separation of the judiciary
from the executive" is "fundamental, since the rule
of law depends on it."[48]
That the domestic judiciary seem increasingly willing to assert
the doctrine—in spite of the fact that the United Kingdom
has "never embraced a rigid doctrine of separation of powers"[49]has
led one commentator to suggest that the decision of the House
of Lords in ex parte Anderson:
. . . may also be a starting point for building
a separation of powers jurisprudence which, although rooted in
Article 6, extends beyond the existing objective and subjective
tests for independence and impartiality.[50]
22. In both the decision to abolish the
office of Lord Chancellor and in the severing of links between
the Law Lords and the House of Lords can be seen a desire to achieve
a clearer separation of powers between the three branches of government.
Yet this aim is compromised by the continued policy of allowing
judges to participate in public inquiries into controversial matters:
"by using judges, [public inquiries] breach the doctrine
as regards the dual use of personnel since, strictly speaking
members of the judicial branch are giving advice to the executive
branch."[51]
23. As the Committee's "Issues and
Questions Paper" pointed out:
Invariably, it is Ministers who set up inquiries
in response to political or public pressure or, more cynically,
as a means of deferring a political problem. It is Ministers who
therefore are responsible for an inquiry's composition, its terms
of reference, and the powers and resources at its disposal. They
may also influence its form . . .
The association of members of the judiciary
with such manifestly executive action could not be countenanced
in a jurisdiction which observed a more formal separation of powers.
And as Professor Woodhouse has noted, a number of jurisdictions
have subscribed to the view that the "use of judges for such
purposes is unconstitutional":
In the United States . . . the Supreme Court
has stated: "The legitimacy of the Judicial Branch ultimately
depends upon a reputation for impartiality and non-partisanship."
It continued: "That reputation may not be borrowed by the
political Branches to cloak their work in the neutral colors of
judicial action." The Australian High Court, similarly mindful
of the need to safeguard judicial independence, has recently supported
this view.[52]
24. Should the Constitutional Reforms announced
in June 2003 and the jurisprudence under the Human Rights Act
1998 be pointing the United Kingdom government towards a more
strict separation of powers, then it would be entirely in keeping
with that movement if the practice of involving the judiciary
in public inquiries was ended.
25. As Lord Steyn has written:
The incorporation of the Convention into our
law has generally accelerated the constitutionalisation of our
public law. A culture of justification now prevails . . . As citizens
we may now ask the executive to justify . . . inroads on the rule
of law, judicial independence and the separation of powers.[53]
If the use of members of the judiciary in public
inquiries is to continue then the onus should be on the government
of the day to provide compelling grounds to justify this inroad
into the separation of judicial and executive power and more importantly,
the independence of the judiciary.
August 2004.
27 Department of Constitutional Affairs, A Supreme
Court for the United Kingdom (CP 11/03), July 2003, at para.3. Back
28
(2000) 30 EHRR 289. Back
29
HL Debates, 22 June 2000, Cols.419-420. Back
30
See: "Pinochet law lord replaced again as judge", The
Guardian, 8 July 1999. Back
31
D Woodhouse, "The Office of Lord Chancellor: time to abandon
the judicial role-the rest will follow" (2002) 22 Legal
Studies 128, at p 138. Back
32
R Stevens, "A Loss of innocence?: Judicial Independence and
the Separation of Powers" (1999) 19 Oxford Journal of
Legal Studies 365, at p 370. Back
33
HL Debates, 14 July 2003, Col 637 (per Lord Falconer of
Thoroton). Back
34
A New Supreme Court for the United Kingdom, at p 4. Back
35
ibid, at pp 23-24. Back
36
Department of Constitutional Affairs, Effective Inquiries,
CP 12/04 (6 May 2004), at para 46. Back
37
A W Bradley and K D Ewing, Constitutional and Administrative
Law (13th ed, London: Longman, 2003), at p 374. Back
38
G Drewry, "Judicial Inquiries and Public Reassurance"
[1996] Public Law 368, at p 368. Back
39
L Lustgarten and I Leigh, In From the Cold: National Security
and Parliamentary Democracy (Oxford: Clarendon Press, 1994),
pp 490-491. Back
40
R Stevens, "Reform in Haste and Repent at Leisure: Iolanthe,
the Lord High Executioner and Brave New World" (2004) 24
Legal Studies 1, at pp 34-35. Back
41
Ringeisen v. Austria (1979-80) 1 EHRR 455, at para 95. Back
42
Lord Bingham of Cornhill, A New Supreme Court for the UK (London:
Constitution Unit, 2001), at p 3. Back
43
G Drewry, "Judicial Inquiries and Public Reassurance"
[1996] Public Law 368, at p 368. Back
44
B Thompson, "Judges as Trouble-Shooters" (1997) 50(1)
Parliamentary Affairs 182, at p 183 (quoted in Jack Beatson,
"Should Judges Conduct Public Inquiries?" The 51st Lionel
Cohen Lecture, 1 June 2004, p 22 (available at www.dca.gov.uk). Back
45
C Gearty, "A Misreading of the Law" 26(4) London
Review of Books, 19 February 2004. Back
46
Report of the Inquiry into the Export of Defence Equipment
and Dual-Use Goods to Iraq and Related Prosecutions, Chaired
by the Rt Hon Sir Richard Scott VC, HC 115 (1995-96). Back
47
Kleyn v Netherlands (2004) 38 EHRR 14, at para 45. Also
see the more recent judgment of the European Court of Human Rights
in Pabla KY v Finland (22 June 2004) for the dissenting
opinion of Judge Borrego Borrego: "In my opinion the separation
of powers is an essential component of a state based on the rule
of law and presupposes the separation of the relevant bodies." Back
48
R v Secretary of State for the Home Department, ex parte Anderson
[2003] 1 AC 837, at p 899 (per Lord Hutton) and p 882 (per
Lord Bingham). Back
49
Ibid, at p 886 (per Lord Steyn). Back
50
M Amos, "R v Secretary of State for the Home Department,
ex parte Anderson-Ending the Home Secretary's Sentencing Role"
(2004) 67(1) Modern Law Review 108, at p 123. Back
51
I Steele, "Judging Judicial Inquiries" [2004] Public
Law (Winter Issue-forthcoming). Back
52
D Woodhouse, "Constitutional and Political Implications of
a UK Supreme Court" (2004) 24 Legal Studies 134, at
p 139. Back
53
Lord Steyn, "The Case for a Supreme Court" (2002) 118
Law Quarterly Review 382, at p 385. Back
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