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Lord Kingsland: My Lords, we tabled a similar amendment on Report, to which I spoke at great length. That amendment is now amalgamated with that of the noble Lord, Lord Goodhart, with whose speech I wholly agree.

Viscount Bledisloe: My Lords, if the Minister does not agree to this amendment, can she explain to us what is meant to happen? For example, she wants Lord Justice Bloggs to chair an inquiry. She asks the Lord Chief Justice, who says, "No, I can't spare Lord Justice Bloggs, and anyhow this is a wholly unsuitable matter for a judge to hear". She is unconvinced by the Lord Chief Justice, so she goes off to Lord Justice Bloggs and says, "I want you to chair this inquiry. I should point out that your boss, the Lord Chief Justice, doesn't want you to do it, but I want you to". How on earth is the poor man meant to make up his mind? Is he meant to kick the Government or the Lord Chief Justice in the teeth?

In practice, if the Lord Chief Justice says, "No, I am sorry", it is impractical to go to the judge himself and say, "Although the Lord Chief Justice says he can't spare you, I want you to do this. It is your public duty. You do it, and forget what the Lord Chief Justice says". That is impractical. The Minister must bend to the inevitable and accept that this amendment recognises what the position will be in reality.

Lord Ackner: My Lords, if one is to call a spade a spade, it is arrogant for the Government to say that they will be the sole arbiter of when a judge should be appointed and which judge it should be. The point has already been made that, under the concordat, deployment is a function of the judiciary. It is important that the Lord Chief Justice is in a position to estimate, having regard to the nature of the inquiry, to what extent—since there is likely to be a dissatisfied
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opposite party whichever way he decides—it will reflect on the standing of the judge when he returns to do his ordinary duties. And, to go one stage further, the Lord Chief Justice can, having regard to the controversial nature of the decision, estimate to what extent it might reflect on the standing of the whole judiciary. This is essentially a matter for the Lord Chief Justice to bear in mind. This refusal to concede the point makes the Government look very shabby.

Lord Donaldson of Lymington: My Lords, I entirely agree with the noble Viscount, Lord Bledisloe. He is absolutely right. I shall add one thing: in the Arbitration Act 1979, it is provided that a judge can act as a judge-arbitrator, with different systems of appeals as a consequence, but before accepting that appointment, the Lord Chief Justice has to consider whether the ordinary course of business will be held up by not having that judge. That is peculiarly a matter for the judiciary, which is an independent estate of the realm. I shall not use the word "arrogant", which was used by my noble and learned friend, but, accepting, as I thought they did, the independence of the judiciary as a separate estate of the realm, I cannot understand how the Government can resist this amendment.

Lord Laming: My Lords, your Lordships will, no doubt, think that by this stage I ought to have learnt to exercise some discretion rather than valour, surrounded as I am by distinguished lawyers—in front of me, behind me and to the right of me—but I think that this amendment goes too far. Distinguished judges are capable of knowing whether an inquiry would be appropriate for them and whether it is timely. It is entirely right to consult the Lord Chief Justice, but this amendment pushes that to an unreasonable point. The object of the Bill is to achieve a proper balance and to ensure that sensible people can arrange business in a sensible way. I hope that this amendment will not be pushed to such a degree.

Lord Mackay of Clashfern: My Lords, I agree that a person who has been appointed as one of Her Majesty's judges—whether in England and Wales, Scotland or Northern Ireland—will be able to have a view about whether it is appropriate for him or her to take an individual inquiry. But the question of judicial resources is not a matter for an individual judge. He or she is deployed by the head of the judiciary in his or her jurisdiction to take trials as and when required. The individual judge has no responsibility, as I understand it, for making sure that the resources available to the judiciary are adequate to discharge the responsibilities the judiciary has in particular cases. The head of the judiciary in the jurisdiction has that responsibility.

It is extraordinary that the Government should think that they ought to be able to invite to preside over an inquiry someone who has responsibilities in an area over which, for example, the Lord Chief Justice in England and Wales has control and responsibility without being able to secure the consent of the Chief Justice to that person being taken out of that area of deployment and deployed on something completely
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different, which is bound adversely to affect the total manpower—or perhaps I should say judge-power—available to the Chief Justice to employ in discharging his or her resources. I also cannot understand how the position referred to would be resolved in practice. My main point is that the proposal would fudge the responsibility of the senior judge for adequately securing judicial resources for the task to which he or she has been called.

4 p.m.

Baroness Ashton of Upholland: My Lords, it is neither arrogance nor shabbiness that drives this Minister to take a different view from all those, apart from the noble Lord, Lord Laming, who have spoken. Being a non-lawyer, I may have approached the issue from a slightly different direction.

In Clause 10 we have tried to recognise judicial independence, and to be clear about our understanding of it. We take seriously our responsibility to consult the Lord Chief Justice. Indeed, we are required, having put it in the Bill, to take note of what the Lord Chief Justice has said, and to take the issues he or she has raised into account. However, the responsibility for deciding whether to take on an inquiry rests with the individual judge. The notion of "boss" was used to describe the relationship between the Lord Chief Justice and an individual judge. I do not consider that to be the traditional relationship between a boss and an individual judge, but there are issues about a judge being allowed to make that decision.

The question of resources is important. On the one hand, one could argue strongly, as noble Lords have done, that the Lord Chief Justice would be particularly minded to consider that question; I accept that. I am sure that the present Lord Chief Justice, and any future one, would take that extremely seriously. However, the purpose of the Bill is to deal with events of such importance—it is hard to indicate what they might be—that have shaken public confidence, when there are real concerns about what has happened to an individual, or to a system within government, that need to be considered carefully and investigated properly. Noble Lords on all sides have talked about the important role that judges, senior or otherwise, can play in that regard, and I agree with them.

The issue of resources has to be weighed by someone against the need for the issue to be investigated thoroughly and properly. It could be argued that asking any distinguished person to chair an inquiry, be they a senior member of the medical profession or of another organisation, will have resource implications, which should be taken seriously. In the overall scheme of things, considering the seriousness of the inquiry being undertaken, I contend that sometimes an issue is so serious that it is crucial that someone with great standing looks at it, and does so quickly, and that we should have the ability to say that that overrides issues of resources. That is the critical dividing line between us; it is not arrogance or shabbiness.
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We believe it is right to consult the Lord Chief Justice or the other senior judges within the Bill; that it is right and proper to take on board their concerns and considerations, and for them to make their concerns known, as they will, to Lord Justice Bloggs, to quote the noble Viscount, Lord Bledisloe. Notwithstanding those important issues—which perhaps might be resolved in other ways—it is still right and proper that the Minister should be able to say, "I believe that this is the right person to give us the public confidence we need, and I would like to ask them". It is then for that individual of standing to weigh up the considerations between the issues that have been put forward by the Lord Chief Justice and the Minister, as I have absolute confidence that our judges would do, and say yes or no. It is that issue that divides us, and no other.

Ultimately the question is who has to decide that an inquiry is so important that someone of stature and standing is needed. Even though there will be resource issues for that person's profession—in this case, it happens to be the legal profession, but there are several others it could be—I believe I should be able to go and ask them, and they should have the right to say no. It is for that reason that I cannot accept the amendment.

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