Memorandum by Lord Woolf (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:
(1) 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.
(2) 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
| 
