Thursday, 17 June 2010

Judges and Inquiries

From time-to-time the use of Judges to chair inquiries has been criticised but their use has continued.  Writing in The Times (17th June - "The high price to be paid if judges examine our historical events") Lord Pannick QC points out that Ministers choose judges because they are skilled in making findings on complex factual issues.  Also, their impartiality makes it more likely that their conclusions will command widespread support.  However, Pannick argues that there may be a high price to pay if ministers ask judges to investigate "controversial historical events" - the obvious example being Bloody Sunday.  The involvement of the judiciary in such cases risks damaging judicial impartiality and undermining confidence in the judiciary by all sections of the community.  He further argues that politically sensitive disputes are not readily amenable to resolution by a judicial process.  Pannick concludes that "Government should be very slow to ask a judge to conduct such an inquiry in the future".

The views of Lord Pannick always merit respect.  However, is he right?  I am not so sure, if only because the use of judges is probably unavoidable.  Since the outcome of an inquiry can have serious legal consequences for individuals it is only natural that they seek to be legally represented and representation is often by Queens Counsel.  The Saville Inquiry itself may yet tilt the balance in favour of prosecutions.  It is difficult to see how a non-judge chairman could handle an inquiry if such an array of lawyers were to be involved.  A further point is that, at several stages in the Saville Inquiry, there were legal submissions (e.g. relating to anonymity for soldiers giving evidence (Saville was overruled on judicial review); standard of proof to be applied etc.).  Those require the attention of a judge.

A number of other Inquiries are on-going in Northern Ireland: Robert Hamill Inquiry; Billy Wright Inquiry.  Both are chaired by retired judges but have "lay" members and both have been proceeding since 2004.  A planned inquiry into the death of Belfast based human rights lawyer Mr Patrick Finucane did not proceed because the family objected to it being held under the Inquiries Act 2005, a view very much supported by Amnesty.  [Their trenchant criticism of the 2005 Act is important reading for any serious student of the law].

Another on-going inquiry is The Baha Mousa Inquiry which is currently sitting in London under the chairmanship of a retired Lord Justice of Appeal - Sir William Gage.  This concerns Baha Mousa who died in Basra whilst under the control of British Armed Forces.  In Al-Skeini [2007] UKHL 26 it was held that the Human Rights Act 1998 applied to such detainees.  One of the beneficial aspects of the Human Rights Act 1998 has been to dispel a considerable amount of the secrecy which used to surround all activities of the military. Without the Act it seems likely that the death of Mousa would have been swept under the carpet.

Prior to the general election there was much talk of sweeping away the HRA 1998 but, now they are faced with the realities of government, there appears to be less talk along those lines.  The Act should be defended and any changes only made with the greatest of care.  The Act is the major legal achievement of the Labour years and has acted as very civilising influence on English law.

Link to General Information about Public Inquiries.

Note: Regret that a link to Lord Pannick's article in The Times cannot be provided as The Times is now behind a "pay-wall".

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