As the government makes its case for an inquiries bill, Roger Smith argues that the judiciary should be more independent

Remember Scott, Hutton and even Denning? All were eminent judges who got a hard time while chairing public inquiries. Judges approaching the cauldron of the inquiry world need to sup with a long spoon. Those who disagree with their conclusions will not hesitate to attack their methods and, on occasion, their integrity. Thus, the engagement of judges may need a little more protection than is contemplated in the Inquiries Bill.


Caution is particularly needed because of the size of the government’s programme. No less than 37 full and draft Bills were announced in the last Queen’s speech as against, for example, 28 in 1999 and 30 in 2003. And this is for a session that few reckon will extend much beyond early May. This creates a danger that a Bill, such as that on inquiries, may seem uncontroversial and slip its way on to the statute book while everyone is arguing about identity cards and police powers.


The Bill covers all inquiries. But of particular concern are ‘judicial inquiries’, in other words, inquires chaired by a judge. These may cover a range of matters, but especially important are those involving the actions of the state or its officers.


In the context of the death of Northern Irish solicitor Patrick Finucane, a group of three eminent counsel, headed by the now Mr Justice Owen, indicated the circumstances where there might be legitimate expectation of a judicial inquiry:


  • Where allegations of serious misconduct and prima facie merit have been made against those acting, or purporting to act, on behalf of the state;

  • Those allegations are sufficiently widespread and are being treated sufficiently seriously by those outside government to undermine the public’s confidence in the integrity of the state and the rule of law;



  • The allegations relate to a sufficiently defined event or series of events to allow an inquiry to be given proper and clear terms of reference; and



  • An inquiry would represent the most effective means of establishing the merit of the allegations made and so of restoring public confidence.



    • By this definition, at stake is public confidence in the state and the rule of law. In such circumstances, one might expect the government to argue that, whatever the extent of its technical obligation, it accepted that the standards of judicial inquiries should meet those of article 6 of the European Convention on Human Rights as they apply to the ‘determination of… civil rights and obligations or of any criminal charge’ – in other words, ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’.


    Lord Falconer, the Lord Chancellor, is having none of it. His department maintains that ‘in terms of article 6, case law confirms that an inquiry process as a whole does not determine civil rights or obligations or criminal charges. Article 6 rights are not therefore engaged. An inquiry will not be directly decisive of any dispute and any findings of fact will not have any authoritative status.’ Thus, it continues: ‘Clause 2 confirms that an inquiry cannot determine anyone’s civil rights or obligations or criminal charge.’


    However, all is not that clear. Clause 2(2) recognises that an inquiry finding of fact may be a pretty major step towards such a determination: ‘An inquiry panel is not to be inhibited in the discharge of its functions by any likelihood of liability being inferred from facts that it determines of the recommendations it makes’. Thus, an inquiry in a crash should not be inhibited from a finding that it was caused by driver error as a matter of fact. From there, it is but a pretty small step to finding of liability. So, article 6 is close to being engaged on anybody’s argument – particularly as to impartiality. It is, in any event, somewhat unattractive to advance the position that an inquiry might not be impartial and independent and its procedures fair. Its credibility is its point.


    The government’s position is oddly inconsistent. It has gone to extraordinary lengths to promote judicial independence through a new judicial appointments commission. Surely it should not be so coy about handing over to a more transparent process the choice of a chairman and the terms of reference and control over publication of any final report. Margaret Thatcher is widely seen as having neutered Lord Scott’s inquiry through control of its presentation, and Tony Blair was so successful with Hutton that he was forced to establish a further inquiry under Butler to deal with the backlash.


    The government needs to take a deep breath. On the one hand are the bright lights of human rights principles; on the other, the temptations of the world of spin. In the new constitution that is evolving before our eyes, the executive must have the courage to follow its own logic on constitutional reform and not prejudice – but indeed advance – the independence of the judiciary.


    Roger Smith is director of the law reform and human rights organisation, Justice