Public Inquiries: Appointment of Judges

– in the House of Lords at 3:00 pm on 11th May 2000.

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Photo of Lord Windlesham Lord Windlesham Conservative 3:00 pm, 11th May 2000

asked Her Majesty's Government:

What is their policy regarding the appointment of Lords of Appeal in Ordinary or Lords Justices of Appeal to chair or carry out public inquiries or reviews.

Photo of Lord Irvine of Lairg Lord Irvine of Lairg Lord Chancellor, Lord Chancellor's Department, Lord Chancellor

My Lords, the Government, in common with their predecessors, consider the demands of each inquiry individually. Judges are not obliged to accept the chairmanship of difficult inquiries. They do so out of a strong sense of public duty. The public have confidence in judges because of their well-founded reputation for independence and impartiality. Their standing especially qualifies them for inquiries where there is serious public disquiet: for example, under this Administration, the Lawrence inquiry under Sir William Macpherson; BSE under the noble Lord, Lord Phillips; Bloody Sunday under the noble and learned Lord, Lord Saville; under our predecessors, the Hillsborough disaster under Lord Justice Taylor; the suspension of BCCI under the noble and learned Lord, Lord Bingham; and standards in public life under the noble and learned Lord, Lord Nolan. Judges also bring to the inquiries a lifetime's experience in the assessment of disputed evidence.

There is another category where judges have special expertise: for example, under this Administration, Thames river safety and the Marchioness disaster under Lord Justice Clarke, the former Admiralty judge; and the criminal courts under Lord Justice Auld, mirroring under our predecessors the civil justice review under the noble and learned Lord, Lord Woolf.

Photo of Lord Windlesham Lord Windlesham Conservative

My Lords, the House will appreciate that very full Answer by the noble and learned Lord the Lord Chancellor. Bearing in mind that there are only 12 serving Lords of Appeal in Ordinary, is it not deeply unsatisfactory, to say the least, that two full-time members of what, after all, is the final court of appeal should have been prevented from sitting judicially, other than on rare occasions, for such very long periods? One of the current Law Lords is engaged on an inquiry estimated to take three years, and another on an inquiry which is estimated to last four years in all.

Photo of Lord Irvine of Lairg Lord Irvine of Lairg Lord Chancellor, Lord Chancellor's Department, Lord Chancellor

My Lords, it really is a question of where the balance of public interest lies in having judges of exceptional quality chair these inquiries at undoubtedly some, but I would say manageable, loss to the justice system. I shall deal with the cases raised by the noble Lord. The noble Lord, Lord Phillips, is committed to the BSE inquiry and has been since December 1997. He will report in September. The noble and learned Lord, Lord Saville, is committed to Bloody Sunday. It is impossible to set a completion date, which could well be two years away. Lord Justice Auld is likely to report on the criminal courts by the year end. Lord Justice Clarke will begin his inquiry into the Marchioness disaster in October. He hopes to report early in the new year.

This does represent some loss of judicial resources of very high quality. However, the system is coping well. Retired Law Lords are willing to sit. It is to their great credit that they are, and they do so quite often. The noble and learned Lords, Lord Mackay of Clashfern, Lord Lloyd of Berwick, Lord Goff of Chieveley, Lord Nolan and Lord Cooke of Thorndon, are ready to sit. In the Court of Appeal, many retired judges are ready to sit when invited. Rather than list 10 or so names, I shall write to the noble Lord. It is all a question of the balance of public interest.

Photo of Lord Tomlinson Lord Tomlinson Labour

My Lords, perhaps I may ask the noble and learned Lord the Lord Chancellor whether judges are always essential for these inquiries.

Photo of Lord Irvine of Lairg Lord Irvine of Lairg Lord Chancellor, Lord Chancellor's Department, Lord Chancellor

My Lords, I accept that it is not only judges who possess judicial qualities. Therefore, they are not essential. At the moment, for example, Professor Ian Kennedy, an acknowledged expert on medical ethics and medical negligence, is conducting the inquiry into the medical problems at the Bristol Infirmary. John Uff, who has the advantage of being both an engineer and a Queen's Counsel, is conducting the inquiry into the Southall rail crash. Therefore, no; judges are not absolutely essential, and there are many examples of inquiries conducted under non-judicial chairmen.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, now that the retiring age for the senior judiciary has been reduced from 75 to 70, would it perhaps be practicable to make more use of recently retired senior members of the judiciary to conduct the inquiries, as was done, for example, with Sir William Macpherson in the case of the Stephen Lawrence inquiry? That would release the Law Lords for their proper job of deciding cases as members of the judiciary.

Photo of Lord Irvine of Lairg Lord Irvine of Lairg Lord Chancellor, Lord Chancellor's Department, Lord Chancellor

My Lords, of course, I always consider that option. In relation to the recent problems at Westminster Abbey, a retired Law Lord, the noble and learned Lord, Lord Jauncey of Tullichettle, served on the inquiry. In relation to the recent griefs at the Law Society, the noble and learned Lord, Lord Griffiths, a retired Law Lord, performed that function. Therefore, they, too, certainly are a resource, but even retired Law Lords are entitled to a retirement.

Photo of Lord Wilberforce Lord Wilberforce Crossbench

My Lords, as one who, although not included in the noble and learned Lord's roll of honour, has been called upon to chair some of these inquiries, which many years ago I esteemed a very great honour and privilege, perhaps I may welcome in general terms the noble and learned Lord's balanced approach as between serving Law Lords or Lords Justices of Appeal and retired ones. However, I should like to ask the noble and learned Lord one question. Does he agree that the essence of the problem lies in the very great and increasing length of the reviews and inquiries? Whereas the normal length used to be approximately six months, par for the course is now approximately two years, with the possibility of bogeys and double bogeys of cases extending to three and four years. Therefore, might there not be a case for looking at the procedure of the inquiries and perhaps modernising and simplifying them, rather in line with the Woolf reforms in the area of civil justice?

Photo of Lord Irvine of Lairg Lord Irvine of Lairg Lord Chancellor, Lord Chancellor's Department, Lord Chancellor

My Lords, we must not underestimate the scale and difficulty of the task in some of the inquiries and the enormous public importance that is attached to achieving a report which will command general public acceptance. The inquiry will have failed in its purpose, and perhaps even the judges' reputation for independence and impartiality will be adversely affected, if the reports do not command general assent. The BSE inquiry is enormously burdensome and, in my view, has been carried out with great dispatch by a judge of the highest quality. And I do not believe that any of us would underestimate the difficulties that affect the noble and learned Lord, Lord Saville, in seeking to give satisfaction in relation to Bloody Sunday--an issue which divides the community in Northern Ireland.