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)
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.