Memorandum by Professor Jeffrey Jowell
QC (GBI 17)
1. ROLE OF
THE JUDICIARY
I do believe that it is wrong in principle for
serving judges to chair inquiries of a "political nature".
However, that term does not define itself easily. It includes
most obviously inquiries which, even if directed to apparently
narrow issues, in effect require a judgment as to whether the
government was wise or right to act in a certain way. In addition,
there may be inquires which, although not requiring political
judgment, are in effect set up in order to achieve a political
purpose (eg the purpose of sweeping the matter under the carpet
for a period of time; or for seeking to demonstrate the government's
resolve not to hide anything, etc). In those circumstances judges
are being used to reassure the public and to deflect political
criticism. This is what I meant by "symbolic reassurance".
Article 6 of the ECHR only engages when a person's
civil rights and obligations are in issue. Most public inquiries
are investigatory or advisory only and not executive in character,
so would not fall within Article 6.
I do not think the judicial role in public inquiries
can or should be made immune from judicial review. Nor do I think
that they should be able to be challenged by further appeal. This,
again, is because their recommendations do not normally have executive
effect.
2. MINISTERIAL
ACCOUNTABILITY
Ministerial accountability to Parliament is
weakening. Select committees are, however, seeking to strengthen
that accountability. I can't see any device which could force
a recommendation of a public inquiry to be implemented, but auditing
is a good idea to try and ensure that the inquiry is genuine and
not cynical.
3. NEED FOR
A CHANGE?
I have no doubt that public inquiries chaired
by judges have yielded some useful results. But that does not
counteract my point that (a) the independence of the judiciary
could be damaged by judges chairing inquiries of a political nature,
and (b) that non-judges are often just as well qualified to conduct
those inquiries. Those without judicial experience may not always
be as skilled as judges in assessing evidence and fact, but many
senior lawyers do possess those skills. And any such lack of skill
on the part of eg senior civil servants (such as Lord Butler or
Franks) may be more than compensated for by insights into the
subtleties of government decision-making that lawyers of all kinds
tend to lack.
Finally, I would think that a taxonomy of public
inquiries would be a useful exercise. It would assist not so much
judicial review, but the question of whether the inquiry was suitable
for a judge to investigate and, if not, what skills would best
be employed for the task in hand.
I hope this is helpful and was sorry not to
be able to give evidence in person.
October 2004
| 
