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Lord Lester of Herne Hill: My Lords, I happened to be in the House, in another part, when the noble and learned Lord, Lord Hutton, was giving the report of his important inquiry. Many senior judges from the supreme court of Israel were present, including the president. I remember that as the noble and learned Lord was giving his important report, they said that they were quite astonished that we allowed judges to be used in such politically sensitive matters and that it was inconceivable that that would happen in the state of Israel.

That reflects very much my own feeling, which is that we are far too ready to use overworked and over-employed judges to deal with problems that would perhaps be better dealt with in other ways. But that has been part of our tradition. I certainly recall some of the great judgments that have been given in reports, including, for example, the report of the noble and learned Lord, Lord Woolf, on prisons, Lord Scarman on Red Lion, and now the report of the noble and learned Lord, Lord Hutton, himself.

In the 11 or 12 years I have been a Member of your Lordships' House, I have never heard the senior judges from the three jurisdictions of England and Wales, Scotland and Northern Ireland speaking in the same way, coming together in their own concordat, together with support from advocates across the House. I have to say that, as a great supporter of what the Government are doing in the Constitutional Reform Bill, I agree with the part of the report that the noble Lord, Lord Kingsland, did not mention in paragraph 58, when, before the committee comes to its conclusion in support of this amendment, it said:

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We all remember that two Law Lords dealt with inquiries at the same time in the House of Lords, which gave rise to serious practical problems over which the senior Law Lord probably had little control. I very much hope that these sensible amendments, whichever is selected in the end, will meet with the favour of the Government.

Baroness Ashton of Upholland: My Lords, I am grateful to all noble Lords who have spoken. I fear that I will be in a minority as regards what I have to say to your Lordships. I do not suspect that will come as any surprise to noble and learned Lords. I begin by recognising the huge respect in which we hold the noble and learned Lords, Lord Woolf and Lord Cullen, in particular. I am grateful that they shared their thoughts with your Lordships this evening.

I take on board what the noble and learned Lord, Lord Hutton, said about the relevance of knowing the views of the Lord Chief Justice to a judge who was considering whether to accept the request of a Minister to chair an inquiry. Indeed, if a judge believed that the Lord Chief Justice—if that were the appropriate judge in the case—or a colleague felt that such a course was inappropriate, that would weigh very heavily on the judge in question. However, we begin from the principle that it is right and proper for individual judges to make their own decisions about whether they wish to take up an appointment that is offered to them to chair an inquiry. I am afraid that is where we differ from the noble and learned Lord the Lord Chief Justice.

We believe that it is a question not only of whether resources are available but of the public interest and the level of public concern that may be expressed about an event. It is conceivable—I cast no aspersions on anyone in my example—that a Minister would believe that an event had occurred that was of such a serious nature and of such great public concern that the only appropriate person to deal with it in the circumstances might be a judge. In Committee the noble Lord, Lord Kingsland, said that judges were often ideal people to chair inquiries. There are many good examples of that.

In my theoretical example, the Lord Chief Justice of the day might well consider that resources were an issue. However, the Minister might consider that the issue that was raised was of such great concern that a judge should none the less be approached. It is because we believe that ultimately the responsibility for approaching a judge and inviting him or her to chair an inquiry should rest with the Minister that we do not support the amendment. At one level, it is a matter of nuance, as I expect full consultation to take place. I recognise that judges will take note of what was felt by either the senior Law Lord or the Lord Chief Justice. However, we think it is right and proper that at the end of the day the Minister, having regard to public concern and to who might best lead an inquiry, should be able to say, regardless of resources—I accept that
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there are other considerations that the noble and learned Lord, Lord Woolf, considered were important—that he or she wishes to approach a judge.

That is why we do not support the amendment, notwithstanding all that has been said about the positive relationships that exist and the need to ensure that there is full consultation. However, at the end of the day our premise is that the buck stops with the Minister and he should make the decision to approach a judge. At the end of the day, the individual judge should have the right to say "Yes" or "No". On that basis, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Goodhart: My Lords, we have had an interesting debate, with noble Lords on all sides speaking from great experience. Perhaps greatest of all is that of the noble and learned Lord, Lord Cullen, who has presided over three public inquiries of great importance and has done so with enormous ability and skill.

It is obvious that judges do sometimes make particularly suitable and good chairmen of inquiries; there are also cases of judges who have done not so well. I am not suggesting that we should go as far as the American or Israeli judges to say that no judge should ever be involved in chairing an inquiry. However, we must consider the effect on judicial manpower. For example, it is unfortunate that the Appellate Committee of your Lordships' House has been deprived for some seven years of the services of the noble and learned Lord, Lord Saville, who is potentially one of the most outstanding judges in this country.

We also must take into account the effect of the forthcoming Constitutional Reform Bill, which means that the role of the head of the judiciary will be passing from the Lord Chancellor to the Lord Chief Justice in England and Wales and also to the senior Law Lord in respect of the House of Lords. In those circumstances, it seems to me entirely right and proper that the senior Law Lord, or the Lord Chief Justice, or the Lord President, or the Lord Chief Justice of Northern Ireland, should have the right to be consulted and to agree to the appointment of any particular judge to head a particular inquiry. I see no reason to suppose that consent would not be forthcoming in a case where it was appropriate. Indeed, I see the noble and learned Lord the Lord Chief Justice nodding at that. As head of the judiciary in England and Wales, the Lord Chief Justice should have the right to say, "I am afraid that I cannot spare this particular judge for this particular inquiry".

While of course I shall ask the leave of the House to withdraw the amendment, in one or other of its versions it will be returning for Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 26 not moved.]
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Clause 10 [Assessors]:

Lord Kingsland moved Amendment No. 27:

The noble Lord said: My Lords, this is another occasion on which the Government have most helpfully responded to the tenor of our debate in Committee, and they have furnished your Lordships' House with an amendment that is wholly satisfactory. I beg to move.

Baroness Ashton of Upholland: My Lords, I am grateful to the noble Lord, Lord Kingsland, and also to the noble Lord, Lord Laming, who is no longer in his place. Noble Lords will recall that the noble Lord, Lord Laming, spoke about the relationship that can exist between the chairman of an inquiry and an assessor. He spoke too of how success can depend on close teamwork and mutual confidence.

While it is highly unlikely that a Minister would ever appoint an assessor without consultation with, or against the wishes of, a chairman, I have been persuaded by the arguments for a specific provision. I have catered for such provision in my Amendment No. 28. On that basis, I think that the noble Lord has indicated that he will withdraw his amendment in favour of mine.

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