Are judicial inquiries ‘expensive buck passing exercises’?

Somewhat to my surprise, I find myself on the same side as the Daily Mail on one of the great issues of the day. A judicial inquiry was the wrong vehicle to deal with press regulation. And I also agree with a broader point, recently made in an article by historian Dominic Sandbrook.

This clearly so pleased the Mail politburo that they ran it with a headline that was more of a summary: ‘Inquiry mania! From Leveson to Iraq, our leaders are obsessed with inquiries. But … they are vastly expensive buck passing exercises used by weak politicians to avoid taking tough decisions.’ 

No one would deny that the Leveson inquiry was not fun. How richly that Robert Jay deserved his subsequent elevation to the bench. Some at the bar mutter darkly that he is not really a cross-examiner and that he did not move in for the kill when he had skewered his victim. But, that would have been inappropriate for counsel in his position, acting not for a party but for the tribunal. And, speaking both personally and professionally, I like a touch of Paxmanesque superciliousness in questioning those in power, particularly when allied to a bright mind, a broad vocabulary and a good education. It really was so much fun.

Nor do I have that much objection to Leveson’s actual recommendations. They are a perfectly sensible way of seeking to reconcile the different interests involved. The difficulty is that they are not self-evidently determinative. Paul Dacre and his team at the Mail did not read them and roll over. And, the issue of a Royal Charter for the press regulator rumbles on, taking us to the dark side of the constitution where the very point is to neutralise parliamentary supremacy. Personally, I would have gone for something much more cheap and rudimentary: costs penalties for litigation in cases where publishers had not complied with a set of statutory standards. But even I can see that this would not be entirely satisfactory. Leveson went for the package that you would have predicted would appeal to a thoughtful, fair-minded judge with, unavoidably, a legal framework to his thinking.

My real difficulty with the Leveson Inquiry was the one highlighted in the Mail: the appropriateness of passing a political hot potato to a judge. This is, of course, an old chestnut at which most eminent academics in the field have nibbled.

Just for two, professors Jowell and (as he has been) Beaston have both opined on the subject. More generally, there was considerable discussion of the pros and cons in the lead up to what became the Inquiries Act 2005. The House of Commons select committee on public administration produced a thoughtful report on the issues. The arguments for and against are pretty evident. On the one hand, judges have experience of running an investigative process; they have public prestige, giving what Professor Jowell calls ‘symbolic reassurance’; and a degree of perceived objectivity. Another practical advantage from ministers’ point of view is that judges are on the state payroll already, and so do not cost anything. This might now, of course, change if the lord chief justice decides that, in times of financial stringency, he will only rent out judges on a full-cost recovery basis.

Judges face all the uncertainties of leaving their rarefied comfort zone of the law for the vicious bear pit of politics

The dangers are equally obvious. Judges face all the uncertainties of leaving their rarefied comfort zone of the law for the vicious bear pit of politics. It is terribly difficult to retain the required mystique. Denning was criticised for being too racy in his report on Profumo. And Scott, by contrast, for being unreadable on arms to Iraq. Saville was said to have let the budget get out of control on Bloody Sunday. As for Leveson, it has been open tabloid season on him: thank God his private life seems to be immaculate. Another regular Mail target has been obfuscation on responsibility for the Iraq War from Blair to, less excusably, Hutton. Of the latter, Sir Louis Blom-Cooper reflected that: ‘Perhaps it might be said that [Hutton’s] report reflected absolutely [his] qualities as a judge, meticulous and superb in the analysis of details and evidence, but more evidently questionable on matters of wider judgement.’ 

That gets to the point. Recent inquiries have been brilliant at procedure. Hutton put everything online. Leveson allowed filming. Judges understand procedure and they understand factual conflicts. Gage delivered on Baha Mousa. Saville came up with a credible version of what happened on Bloody Sunday. It is, however, unavoidably dangerous to put a judge in a public position on what is supposed to be a determination not so much of evidence but of policy. If Leveson is less than final on press regulation then his inquiry has been a waste of time and judicial prestige. I am afraid that, on this one, I agree with the Mail.

Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice