Clause 11 - Appointment of judge as panel member
Inquiries Bill [Lords]
3:45 pm

Mr Christopher Leslie (Parliamentary Under-Secretary, Department for Constitutional Affairs; Shipley, Labour)

I beg to move amendment No. 33, in clause 11, page 4, line 31, leave out

‘obtain the consent to that appointment of’

and insert ‘first consult’.

Mr Win Griffiths (Bridgend, Labour)

With this it will be convenient to discuss Government amendment No. 34.

Mr Christopher Leslie (Parliamentary Under-Secretary, Department for Constitutional Affairs; Shipley, Labour)

These important amendments relate to clause 11, which is concerned with the appointment of judges as panel members and the ability of a Minister to appoint those panel members who possess the most relevant skills and experience and are most appropriate to undertake a specific inquiry. There was a lot of debate on the clause in the other place and changes were made, but the Government believe that the requirement ought to be for consultation with the Lord Chief Justice or the various serving heads of the judiciary.

The matter reaches further than consideration of just the impact on the judiciary and the administration of justice because, when appointing an inquiry panel, Ministers should be able to weigh up what is in the wider public interest. That depends on many factors, including the nature of the problem and the level of public concern. To be blunt, public inquiries can be more important than the judicial business demands that apply from time to time in the courts. For instance, the appointment of Lord Phillips as chairman of the BSE inquiry is an example of a case in which the wider public interest of investigating that crisis outweighed the loss of the Lord to the courts.

The role of the Lord Chief Justice, or appropriate colleague, in the appointment process is important and must be recognised, but a requirement for consultation is more appropriate than a right of veto. Although   consultation has been given a bad name by some, it is substantive and meaningful, and such a formal requirement to consult, which the amendments will restore and which was originally in the Bill, is a serious matter.

The Lord Chief Justice, or his equivalent, might express opposition to the appointment of a judge for several reasons, all of which have been mentioned in debates in the other place. He might, for instance, regard the impact of a judge’s absence from his regular duties for a prolonged period as leaving insufficient judicial resources to fulfil the work load; he might regard the individual judge selected as unsuitable for the task; he might feel that the judge should sit with other panel members rather than alone; or he might even regard the nature of the inquiry as unsuitable for any serving judge.

All of those are, of course, important objections that no one would want to deny and they would, no doubt, be spelled out by the member of the senior judiciary concerned. The Minister would have to do his or her best to meet those concerns and would have to consider the alternatives very carefully indeed. If the Minister nevertheless decided to go ahead with the appointment, he or she would have to give very good reasons to justify making that decision.

It is important that the Minister should ultimately have the power to make such a decision if it is really necessary. That is the key issue. In future, there may well occur an event of such seriousness, causing such widespread public concern, that there is an overwhelming public interest in appointing a judge to investigate it. Such overwhelming public interest can sometimes outweigh all other factors. No one should have a veto on an individual judge’s view. The Government believe that, as currently drafted, the clause might work against a judge’s right to remain truly independent. It should be for the individual judge to say yes or no to an appointment, not the Lord Chief Justice or the Minister.

It would be odd to give a veto to the head of the judicial profession only and not to others. If one considers the clause in the wider context, that particular requirement on the Lord Chief Justice would look somewhat strange. Judges are certainly not the only people who could chair inquiries. As the hon. Member for North-East Hertfordshire said just this morning, an inquiry chairman could well be a member of a professional body responsible for the standards and reputation of the profession, such as an eminent doctor, engineer or academic figure, yet the Bill would not allow the heads of those professions formally to veto the offer of an appointment before it has been made.

We recognise the importance of taking the views of the Lord Chief Justice or another senior judge on   board—we would take that very seriously—but the requirement should be for consultation, not for that veto.

Mr Jonathan Djanogly (Shadow Minister, Home Affairs; Huntingdon, Conservative)

We regret that the Government felt inclined to table the amendment, which will undo the good work achieved in the other place. I remind the Committee that the original draft of the Bill required consultation with the Lord Chief Justice or another relevant leading judge only when a Minister required a judge to serve on an inquiry panel.

On Report, Lord Cullen and Lord Chief Justice Woolf spoke eloquently in support of amendments tabled by Lord Kingsland and Lord Goodhart to require the consent of the Lord Chief Justice. The Minister, Baroness Ashton, refused to accept the Lords’ convincing arguments, but the other place divided on the matter, and was in favour of the amendment.

The Conservative Opposition still stand strongly opposed to Government amendments Nos. 33 and 34. The Minister will tell me if I am wrong, I am sure, but he seemed a little circumspect in his proposal of them. Clause 11 should stay as it stands for four main reasons. First, inquiries are inherently political, and the Minister could use his influence to place a judge in a position that could jeopardise the judge’s independence and further the former’s interests. Indeed, the hypocrisy of this Government is interesting. They argue for the abolition of the Lord Chancellor in order to ensure the separation of powers, while giving the Executive carte blanche over the involvement of judges in inquiries.

Lord Woolf recognised an extension to this issue. He stated:

“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 was 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.”—[Official Report, House of Lords, 7 February 2005; Vol. 669, c. 648.]

Secondly, the Government’s amendments are not consistent with the concordat agreed between the Secretary of State for Constitutional Affairs—the Lord Chancellor—and the Lord Chief Justice. The Minister said that it would be unusual to give a veto to the head of the legal profession, but that is not reflected in the deal that his Government have just arranged with the judiciary. The concordat, of course, is now reflected in the Constitutional Reform Bill. The concordat states:

“The Lord Chief Justice will be responsible for the posting and roles of individual judges, within the framework set by the Secretary of State”.

Given the extensive powers given to governmental officers in the context of inquiries under this Bill, it is at least arguable that an inquiry is a

“framework set by the Secretary of State”.

As such, the concordat should apply to the posting of judges to inquiry panels, and the Lord Chief Justice should be able to consent or object to the use of a judge in that way.

Thirdly, each judge may be aware of his personal schedule, but he will not be informed of the resources and business needs of the court system as a whole. Only the Lord Chief Justice will be in a position to see the possible appointment of a judge to an inquiry panel in the context of the working of the court system as a whole and its effects on the administration of justice.

Finally, the tradition and culture of this country’s judiciary is such that it may be difficult to turn down a ministerial request to join an inquiry panel. Lord Fraser said that

“it is much easier for whoever is the head of the court to make that point on their behalf.”—[Official Report, House of Lords, Vol. 669, c. 648.]

The Conservative Opposition’s view is shared by the Public Administration Committee. The conclusion of its recent report “Government by Inquiry” stated:

“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.”

We ask the Committee to resist the Government’s amendments and ensure that the Lord Chief Justice, or other relevant leading judge, will have the final say on whether his judges may be used in a ministerial inquiry.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney and Shetland, Liberal Democrat)

The hon. Gentleman is correct to say that there is an issue about the separation of powers. He referred to the passage from the Public Affairs Committee report that I originally intended to bring to the Committee’s attention. I would like the Minister to give us a good reason why he disagrees with the terms of the Public Affairs Committee report.

I will not rehearse what the hon. Member for Huntingdon said, but the Minister’s argument about why a senior judge might not necessarily want to release a judge was on the basis of the weight of business given to the part of the judiciary for which he was responsible. I can envisage situations in which it would be desirable to appoint an English judge to head an inquiry in Scotland or, as has happened in the past, a Scottish judge to investigate a matter in England—the obvious example is Lord Cullen, who headed the Paddington rail crash inquiry. That would certainly be possible under the Bill. In a situation closely associated   with the legal system of one jurisdiction within the United Kingdom, it would be desirable that a judge should be taken from another jurisdiction within the United Kingdom to provide some distance for such an inquiry.

Surely the Minister would accept that if a Minister at Westminster is to call on a judge from Scotland, he should have the consent of the Lord President before making that appointment. Merely to consult him is not sufficient.

Mr. Leslieindicated dissent.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney and Shetland, Liberal Democrat)

The Minister shakes his head; he mouths “Why?” It is because no Minister in Whitehall can possibly be aware of the full extent of the business that is before a judge in Scotland. He has no ministerial responsibility for the administration of the business that is normally carried out by a judge in those circumstances. He does not know the background, which would be a barrier, and he has no direct control over that judge. If we were simply dealing with English Ministers appointing English judges and Scottish Ministers appointing Scottish judges, I might have more sympathy for the Minister’s argument. However, that is not so. There is potential for intra-jurisdiction transfer and in such circumstances it is necessary to have more than consultation. The head of the judiciary in whichever part of the United Kingdom happens to be affected ought to be prepared to give consent. There needs to be more than mere consultation.

Mr Christopher Leslie (Parliamentary Under-Secretary, Department for Constitutional Affairs; Shipley, Labour)

I hear what hon. Members on the Opposition Benches have said. There is no presumption of a judicial chair of an inquiry across the board, but the amendments relate to circumstances where it is felt that a judge would be better placed to chair a particular inquiry.

As for Westminster Ministers not knowing or being aware about the business needs in the Scottish legal jurisdiction—or, in depth, in England or Northern Ireland—I reiterate the point that I made before, which is that public inquiries, by the nature of their importance to the public interest, sometimes overrule the individual business need issues in the day-to-day running of the courts. I know that that is a difficult judgment to make, but it is important to underline the fact that sometimes having the right person to chair a public inquiry comes first.

Mr Alistair Carmichael (Shadow Minister (Northern Ireland), Northern Ireland Affairs; Orkney and Shetland, Liberal Democrat)

I accept the Minister’s point about the wider public interest, but if there is a conversation between a Minister at Westminster and the Lord Chief Justice, and the Lord Chief Justice says, “I can’t afford to release that judge”, the Minister in Whitehall can say, “We will provide you with money to employ so many other temporary judges”, or whatever the equivalent is, south of the border. If the Minister is having a conversation with the Lord President in Scotland, and the Lord President makes the same objection, what does he say? He does not fund the Lord President’s Department.

Mr Christopher Leslie (Parliamentary Under-Secretary, Department for Constitutional Affairs; Shipley, Labour)

This is dancing on the head of a pin. Ministers, such as the Advocate-General and others, have an interest in that area, and we have relations with the Scottish Executive as well, so there are ways round that. Indeed, the hon. Gentleman’s point about having a veto is not proven. The necessary consultative process would reveal whether there was a problem with the business needs in the judiciary in either jurisdiction, and that might enable Ministers to react through the consultative process by providing a solution to the business needs while a judge was used on invitation to chair an inquiry.

It is important to emphasise that we are talking about inviting a judge to chair an inquiry, not forcing them. The sense that Ministers are somehow able to undermine the independence of a judge is slightly peculiar, to say the least. All our judges are of the highest standing and repute and would not take on inquiries if they felt that they were being used, as some would suggest. Judges will be able to decide for themselves whether to chair inquiries and neither the Lord Chief Justice nor the Minister should be able to force a judge to do so or have a veto on a judge’s involvement.

The hon. Member for Huntingdon mentioned that the Lord Chief Justice made various comments on the concordat during the progress of the Bill in the other place, but I emphasise that the appointment of judges to inquiry panels did not form part of the discussions with the Lord Chief Justice that led to the concordat. We do not believe that the concordat was intended to cover inquiry panel appointment issues.

There are plenty of safeguards for protecting judicial independence. The notion that we would want to undermine the independence of the judiciary is wrong. It would be up to a judge to make the choice. We know that the Constitutional Reform Bill, quite separately, places an unqualified duty not just on the Lord Chancellor but on all other Ministers to uphold the continued independence of the judiciary and to place a specific duty on the Lord Chancellor to consider the need to defend that independence in everything that he or she does. That demonstrates in new ways the Government’s commitment to preserving judicial independence and the need to defend that independence. For those reasons, because there are other safeguards outside the Bill and because a veto is not necessary in this judicial field, I hope that the Government amendment will be accepted.