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Lord Donaldson of Lymington: My Lords, I strongly support Amendments Nos. 7 and 8, in particular, proposed by my noble and learned friend Lord Howe. It is a long time ago and he may have forgotten this but, although Lord Denning's report into the Profumo problem was widely acclaimed by the public and was indeed a bestseller, some people said that it might have been rather better if he had had wingmen of one form or another.

I have myself been involved in four inquiries for government since I retired from the Bench. In each case, I told the Minister that I was not prepared to undertake the inquiry unless I had two wingmen. I said that because I would then have someone to put my tentative inquiries to and see how he reacted. Also, to a greater or lesser extent in the cases with which I was concerned, they added expertise, or different angles of expertise, that I did not possess. I have no doubt at all that that they improved the quality of the ultimate product.

Of course, I imagine that there will in the case of those of us who are married—I have been married when doing these inquiries—always be a shadow wingwoman. There certainly has been in my case. She looked at most of the things I did, whether judicially or not, to see whether it was intelligible to members of the public. If my wife said, "I do not understand it", I rewrote it. I do not suggest that that should be a statutory requirement, but it has to be remembered.

I have one word about the NIRC. I was involved in the sense that I was asked to comment on the Industrial Relations Bill, as it then was. I said to government, "It is all very fine, but you have a clause
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in here that says that the tribunal is three—myself and two legally unqualified but otherwise very highly qualified wingmen—and that any question of law should be decided by a majority. That does not seem very sensible". They said, "It is not very sensible, and we are sorry, but it was taken from the restrictive practices Bill. We really cannot alter it now because any amendment at this stage will lead to at least a day's discussion in one House or the other". But they added, not unkindly I am sure, "If you cannot persuade your two laymen to agree with your view, you are not fit to be president". I was not sure that I agreed about that.

I agreed even less when, on one occasion, my two wingmen declared unequivocally that they did not accept my view. I thought that I was going to have to put my pride in my pocket and perhaps hope that the Court of Appeal or someone would put it right from my point of view. Happily, my noble and learned friend Lord Griffiths was another judge. I was moaning to him about this. He said, "Leave it for a moment". When we adjourned for tea, he went and had tea with my two laymen and came back and told me that their objections had been withdrawn.

We need to be a little bit careful on what powers we give to the wingmen, but not very.

Lord Hutton: My Lords, the Public Administration Select Committee, in a very interesting and thoughtful report, has made recommendations which, as the noble and learned Lord, Lord Howe, has remarked, gives support to this amendment. I should like to make some comments on the amendment and on the recommendations in the committee's report.

I do not doubt that there will be inquiries where a judge should sit with other members of the panel or with expert assessors; as my noble and learned friend Lord Donaldson has remarked, they will often be of great assistance. But I do have reservations about the committee's recommendation that a judge should usually not sit alone. I think it should depend on the nature of the inquiry.

The committee refers in paragraph 41 of its report to the reasons which can be advanced in favour of a judge chairing an inquiry and sitting alone. They are, very briefly stated, first, that a judge has a great deal of experience in conducting hearings, in defining issues, in assessing evidence and in determining facts. Secondly, judges are viewed as independent and impartial. They are apolitical and not concerned to advance the interests of one political party over another. Thirdly, they can be transferred relatively easily from their ordinary judicial duties to the conduct of an inquiry.

However, the committee states in paragraph 44 of its report that none of those reasons seems to it to be totally compelling. It takes the view that a judge should not sit alone to conduct an inquiry where the matter is politically sensitive or politically contentious—its reason being that in such cases because of the political context the report may be
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criticised, the standing of the judiciary may be undermined and the reputation of the individual judge may be harmed.

As I have said, I have some reservations about the recommendation that usually a judge should not sit alone because I think, with respect, that the committee's view fails to take account of a distinction which should be drawn. On the one hand when the need for an inquiry arises there may be issues that are politically sensitive or politically contentious because they relate to questions which are themselves political, for example, whether public funds should have been used for one public purpose or another. Clearly a judge, particularly a judge sitting alone, should not embark on such an inquiry because that would take him into the political arena.

However, there may be other issues that involve questions of fact which a judge is well qualified to hear and determine, but where there would be very serious consequences for a Minister or for the government as a whole if the questions were answered in a particular way. I believe that the Minister referred to that point a short time ago. Such an inquiry can, of course, be termed politically sensitive because of its possible political consequences. However, I think that is not necessarily a reason why a judge sitting alone should not conduct such an inquiry. Judges sitting alone frequently have to decide cases that are politically sensitive. Many judicial review cases in the Administrative Court are politically sensitive because if the judge rules that a government department has acted unlawfully, that may give rise to criticism of the Minister in charge of the department. However, that is not a reason why the judge should not hear the case and give his ruling.

I regarded the inquiry into the circumstances surrounding the death of Dr David Kelly as such a case. It gave rise to largely factual questions that I considered a single judge was qualified to inquire into. Briefly they were, first, how did Dr Kelly come to die; secondly, did the Government probably know that the 45 minutes figure in relation to weapons of mass destruction was wrong before it was put in the dossier, as the BBC "Today" programme reported; and, thirdly, was there an underhand and dishonourable strategy on the part of the Government to leak covertly Dr Kelly's name to the press without appearing to do so? These were questions that were politically sensitive and politically contentious in a very high degree because if either the second or the third question had been answered in the affirmative, there is little doubt that the Prime Minister would have had to resign. However, in my opinion they were questions that a judge could properly consider and give a ruling on.

The Public Administration Select Committee is concerned about the risk in a politically sensitive case that the report of a judge who chairs an inquiry without other panel members or assessors may be criticised, with harmful consequences for the judiciary as a whole or for the individual judge. However, it is the duty of a judge to decide issues before him fairly and properly on the evidence without fear or favour
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and without being swayed by pressure from sections of the media or by concern that he will be criticised if he decides in a particular way. The risk of being criticised for the discharge of his duty is simply a burden that a judge has to accept.

Before I published my report I expected that on publication I would be criticised by some newspapers and some commentators who had been predicting that the Prime Minister would be compelled to resign. That is why I set out at considerable length in the report the evidence which had led me to the conclusions to which I had come.

I also doubt whether the criticism which may be levelled from some quarters at a report which is politically sensitive will be greatly reduced if the report comes from a panel of three or more as opposed to a single chairman. I was criticised for my conclusion that the BBC report was unfounded that the Government probably knew that the 45 minutes figure was wrong. The committee of five Privy Counsellors chaired by the noble Lord, Lord Butler, came to the same conclusion. Paragraph 310 of their report referred to,

Yet that finding by the committee chaired by the noble Lord, Lord Butler, did not result in any diminution of the criticism directed at that section of my report.

There is little doubt that a judge sitting alone can conduct an inquiry with greater expedition and efficiency than if he is one of a panel. If there is a panel, there will have to be adjournments to enable the panel to discuss issues that arise as to the admissibility or relevance of evidence, and the flow of the evidence will be interfered with. In the future there will be inquiries, even if they are politically contentious, where it will be beneficial to have a legal chairman sitting alone. It will depend on the nature of the issues that fall to be considered, and it is preferable that there should not be a presumption set out in the clause. Therefore, with respect, I am unable to support the amendment.

8.45 p.m.

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