Inquiries Bill [HL]
Lord Kingsland (Shadow Lord Chancellor, House of Lords; Conservative)
I have already discussed the constitutional background to this second group of amendments. Of course, I agree with the Minister that there will be many inquiries that ought to be chaired by a judge. However, it can equally be said that many inquiries are held that emphatically ought not to be chaired by a judge. Generally speaking, those are inquiries that raise predominantly political issues where a judge has to make a decision about the action of a politician in his or her ministerial role.
It is almost impossible for a judge to walk the tightrope between, on the one hand, being too soft on the Minister and therefore attracting the vilification of the press; and, on the other hand, being too hard on the Minister and thereby attracting the criticism that an unelected individual, lacking electoral legitimacy, should not pass judgment on those who are elected. I do not need to mention any names in support of that supposition because they are obvious to all noble Lords.
There is also a view, despite the reaction of the Government to this matter in another place, that the much-heralded doctrine of the separation of powers ought, generally speaking, to exclude judges from the political arena. After all, as a consequence of the Constitutional Reform Act 2005, judges sitting in the Appellate Committee of your Lordships' House are soon to be removed; and future Lord Chief Justices, Masters of the Rolls and Lord Presidents will no longer sit in your Lordships' House—all because it is feared that judges will be contaminated by the political process. In my submission, that principle applies a fortiori to judges chairing inquiries that have a political flavour.
In the course of considering the issue, the Public Administration Select Committee, to which I referred earlier in our proceedings, had occasion to visit the United States. In talking to judges there, it learnt that American judges were astonished that British judges were used to chair public inquiries. This point is made in paragraph 30 of the committee's report:
"The legitimacy of the judicial branch ultimately depends upon a reputation of impartiality and non-partisanship. That reputation may not be borrowed by the political branches to cloak their work in the neutral colours of judicial action".
Later in the report, at paragraph 58, the committee concludes that,
"We agree with Lord Woolf's concerns over the current provisions in the Inquiries Bill and recommend that decisions about the appointment of judges to undertake inquiries should be taken co-equally by the Government and the Lord Chief Justice or senior Law Lord".
Giving that responsibility to the Lord Chief Justice guarantees that judges will not be appointed, in appropriate cases, to chair committees of inquiry. That is the basis for the amendments that we have tabled today. I beg to move.
Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendments Nos. 2 and 3, leave out "agree" and insert "disagree".—(Lord Kingsland.)