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Lord Woolf: My Lords, you will not be surprised to hear that I endorse every word that my noble and learned friend, the Lord President of the Court of Session, has uttered. His view coincides entirely with my own feelings on the matter.

I see the issue as having two limbs: one is now an issue—for me, at any rate—of principle. I know that principles are unwieldy and dangerous steeds to mount. However, we have recently agreed a
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concordat, thanks to the consensus that was reached between the Secretary of State for Constitutional Affairs—the noble and learned Lord the Lord Chancellor—and myself. It appears that what is now being resisted is inconsistent with the concordat. For good reason, the concordat, which is now reflected in the Constitutional Reform Bill, states:

It seems that the deployment of a judge as an inspector of an inquiry falls readily within those words.

This view was supported by the Public Administration Committee in the other place which, as your Lordships know, concluded that the appointment of a judge to a public inquiry should be a decision taken jointly by the Lord Chancellor and the Lord Chief Justice. It is also, I suggest, a matter of plain English. If a judge is being deployed to conduct an inquiry, that is deployment of that judge, so the concordat applies. It could be said that the concordat deals with deployment in the courts, but I would not so understand it. That I am right in taking that view is reflected in paragraph 47 of the concordat which states that the appointment of judges to committees, boards or similar bodies is the responsibility of the Lord Chief Justice.

I also ask that these amendments receive the support of the House because of the merits of what is proposed, which I understand are the merits that the noble Lord, Lord Kingsland, had in mind when drafting his amendment. There will be occasions when it is inappropriate, because of the intensely political nature of the issue at stake, for a judge to be asked to conduct an inquiry. The judge that the Government wish to invite may not be qualified to perform an assessment on that. The Lord Chief Justice, on the other hand, should be.

Even if the judge is qualified, as the noble and learned Lord, Lord Cullen, indicated, it is very difficult if he is approached by a Minister or even the Prime Minister to say no. The Lord Chief Justice is in a much better position to say no. Further, the Lord Chief Justice knows the intentions surrounding the employment of that judge and whether the appointment would interfere with the administration of justice.

Finally, in recent history there have been incidents where the question of the impartiality of the judge has been unfairly impugned. Such allegations could of course still be made if the consent of the Lord Chief Justice is obtained. However, I suggest that the allegations would have less force if it were known that the Lord Chief Justice was primarily responsible for agreeing to that appointment. I suggest that the desirability of that being the position is particularly important if the Government's activities are involved in the inquiry.

The involvement of the Lord Chief Justice would ensure that the right judge is appointed for the right reasons. That is something that is also supported by
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the committee. I accept that the Minister would also have an interest and that is why I suggest that the joint consent of the Lord Chief Justice and the Minister should be sought.

No doubt, the noble Lords, Lord Goodhart and Lord Kingsland, will consider which amendment is the appropriate one. I am bound to say that I find both proposals equally attractive and I hope that the amendments are successful.

Lord Ackner: My Lords, just before I leave, I would like to say that it is astonishing that this issue has been raised at all. A judge is contemplated being removed from the strength of the judiciary yet the Lord Chief Justice is only to be consulted and his consent is not being required. It is he who can make a balanced assessment of what may be the effect of the decision, especially where the judge who will deal with the case is likely to be attacked whichever way he decides. Such criticism would not only reflect on the judge when he returns to get on with his ordinary judicial duties, but it can erode confidence in the whole system and that is not a matter on which the Minister should have a total monopoly in decision. It is quite unarguable to say that the Minister can override the views of the Lord Chief Justice. His concurrence must be obtained. If it is not obtained, there should be no appointment.

Lord Fraser of Carmyllie: My Lords, in the Grand Committee I supported a comparable amendment. At that time, I knew the views of neither of the noble and learned Lords, Lord Cullen and Lord Woolf, or whether they would agree to the desirability of their consent being obtained. I once again wish to support the amendment. Like the noble and learned Lord, Lord Woolf, I am not particularly bothered which amendment is preferred, as they both seem to secure the same result.

The one concern with which I came out of Grand Committee relates to the powerful point made by the noble and learned Lord, Lord Cullen. It is very difficult. If they are approached by a Minister of the Crown who says that it is in the public interest that an inquiry should be held into such a matter, it is not in the tradition or background of judges or even senior lawyers to say no to such a request. In such circumstances—and the point is well made in my view—it is much easier for whoever is the head of the court to make that point on their behalf. For that reason, I strongly urge the Minister to accept one or other of the amendments.

Lord Hutton: My Lords, I know that before the noble and learned Lord the Lord Chancellor asked me to conduct the inquiry into the death of Dr Kelly, his permanent secretary told the senior Law Lord, the noble and learned Lord, Lord Bingham, that he was proposing to do so, and the noble and learned Lord raised no objection. In addition—and on this point I am perhaps slightly differing from the noble and learned Lord, Lord Fraser—I believe that there is a practical consideration, in that a judge is unlikely to accept an appointment if he knows that the Lord Chief
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Justice or the senior Law Lord is opposed to it, notwithstanding his wish to carry out a public duty and his readiness to do so.

Lord Kingsland: My Lords, the Public Administration Committee report, Government by Inquiry, has a great deal to say on this issue, and it is worth your Lordships' while to glance at the assessment that it has made in chapter 3.

It begins by observing that, since 1990, some 65 per cent of inquiries have been chaired by a serving judge. It also observes that there are a number of reasons why judges make an attractive option to chair committees. They are plainly valued for their skills; they are appreciated for their independence and impartiality; and, more than perhaps any other single profession, they are more likely to be available to serve on a public inquiry.

However, the balance of chapter 3 cautions us on the use of judges. Mr Justice Beatson, giving evidence, is recorded in paragraph 44 as stating that the skills argument for judges is,

In paragraph 46 he is further quoted as saying:

The committee went on to make a judgment, in paragraph 47, that:

It adds, moreover, in paragraph 48:

9.45 p.m.

In paragraph 54, the report goes on to look at this matter from another angle. It says:

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In paragraph 56, Professor Robert Stevens is quoted to some effect. It states:

Finally, in paragraph 58, the report concludes:

In the course of its investigations the committee travelled to the United States. When the issue of the chairing of inquiries by judges was discussed with American legislators and American judges, they were aghast at the thought. In paragraph 30 of the report, the committee's conclusion on the American approach is expressed as follows:

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