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Lord Ackner: My Lords, this amendment of the House of Commons has a number of bizarre features. The first, of course, is that it has been twice movedon Report and at Third Readingby the Liberal Democrats, and now they have changed their mind. I shall deal with the reason for that change later. Secondly, as a result of the recent and narrow defeat of the proposals of the Opposition in regard to the Lord Chancellor being a Member of this House, a senior lawyer and a senior member of the Cabinet, any Tom, Dick or HarryI suppose I should add "or David or Charlie"could end up being the Lord Chancellor. That gives one even more reason for requiring the Lord Chief Justice to have an equal say with the new Lord Chancellor.
The third feature, which has never yet been answered by the Government, is that the much vaunted concordatwhich was looked upon, I remember, by the noble Earl, Lord Ferrers, with a certain amount of cynicismmakes it clear that deployment is a matter for the Lord Chief Justice; on no stretch of the imagination could this be other than an exercise in deployment. A judge is to be taken out of the High Court, the Court of Appeal or your Lordships' Appellate Committee and deployed elsewhere. That is in no way different from a judge being taken out of London and being assigned to a circuit for an extra two months, or so.
This is part of what is provided for in the concordat. It makes depressing reading to know that there has been no reply from the Government to something as obvious as the clash between the agreement on the concordat and what is now proposed, even though the point was made both on Report and at Third Reading.
Baroness Ashton of Upholland: My Lords, perhaps I may help the noble and learned Lord, Lord Ackner. Inquiries were not discussed as part of the concordat. The Lord Chief Justice made that perfectly clear in his evidence to the Public Administration Select Committee.
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Lord Ackner: My Lords, as I understand it, the concordat was not agreed at the time when the Select Committee to which reference has been made was discussing the matter; it was overlooked. That was said in answer by the Lord Chief Justice when he gave oral evidence. It was incorporated subsequently.
"I see the issue as having two limbs: one is now an issuefor me, at any rateof principle. I know that principles are unwieldy and dangerous steeds to mount. However, we have recently agreed the concordat, thanks to the consensus that was reached between the Secretary of State for Constitutional Affairsthe noble and learned Lord the Lord Chancellorand myself. It appears that what is now being resisted is inconsistent with the concordat. For good reason, the concordat, which is now reflected in the Constitutional Reform Bill, states:
"concluded that the appointment of a judge to a public inquiry should be a decision taken jointly by the Lord Chancellor and the Lord Chief Justice. It is also, I suggest, a matter of plain English. If a judge is being deployed to conduct an inquiry, that is deployment of that judge, so the concordat applies. It could be said that the concordat deals with deployment in the courts, but I would not so understand it. That I am right in taking that view is reflected in paragraph 47 of the concordat which states that the appointment of judges to committees, boards or similar bodies is the responsibility of the Lord Chief Justice".[Official Report, 7/2/05; cols. 646 and 647.]
With great respect to the noble Baroness, I think she has overlooked the timing in this matter. The committee's report came before the Report stage of the Inquiries Bill, and that is why the omission had to be repaired. I again repeatperhaps I will get an answer this timewhat is the explanation for the suggestion that deployment, which is a function of the Lord Chief Justice, does not equally apply to taking a judge out of the judicial strength and putting him in charge of an inquiry?
That is one puzzling matter. The next matter to which I wish to refer is that the only explanation which has been given so far by the Government is, "Ah, you need not worry about this; it is a matter for the individual judge to decide". The attitude is that the Chief Justice need not worry because, if it is known by the judge who has been approached that the Chief Justice is against it, he will automatically decline to act. That I consider to be a very superficial answer. If it will have the result that the Government suggest, why not allow the Chief Justice to signify his consent or absence of consent and make that the determining factor? What is the point of hiding behind the individual judge?
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Moreover, it is wrong to be confident that the individual judge, despite knowing the attitude of the Chief Justice, will always refuse to act. In the debate to which I have drawn attention, it was said by the noble and learned Lord, Lord Cullen, the Lord President of the Court of Session, that some judges looked on the approach to them as being a requirement of their serving a public duty obligation and might well take the view that in those circumstances they really ought to take part.
However, there may be other reasons. The judge may be bored stiff with the work that he is doing, sitting, for instance, in the Old Bailey every day with an unrelenting diet of crime, or being a member of the Family Division, with nothing else but a diet of money and matters concerning children. The relief of two or three months spent doing something unusual in the public domain andthe frailty of human beings being what it iswith the spotlight of publicity on him may well mind him to say, "I hear what the Chief Justice says, but I would like to accept the offer".
The Chief Justice is in a far better position to assess whether the appointment should be one for a judge. He has the administrative task of deciding whether he can spare someone. It could be a specialist, a commercial judge or one of the judges dealing with administrative lawagain a specialistoverworked and overtaxed. I think that my noble and learned friend Lord Donaldson mentioned that there is or was provision that a judge of the commercial court could, subject to the agreement of the Lord Chief Justice, sit as an arbitrator. I do not believe that that has ever happened, for the simple reason that there is and was such a demand on commercial judges. It is not right, as a matter of ordinary sound sense, to take the view that the judge would be bound to decline, but, if that is the general view, it justifies giving the veto to the Lord Chief Justice.
I come to the almost neuroticif I may be allowed to use that wordconcern that the whole Bill will be dropped. I believe that that is a bluff. There is so little substance in the amendment proposed by the other place that I cannot believe that, with the interests of the public at heart, the Government would, for something of this kindthey say that it will make no difference anyhow, because the Chief Justice's views will predominatedrop a Bill that provides for completely different architecture with regard to the courts; for the old office of Lord Chancellor to be markedly changed; and for a Supreme Court and the dissociation of the judgesthe Lords of Appeal in Ordinaryfrom this House, because they do not get quite the reaction they want from this House. We should be a great deal bolder and see what happens if we stick to what the Liberal Democrats urged us twice to do, on which the House made clear its views on two separate occasions, voting on it on Third Reading.
I turn to the point made by the noble Lord, Lord Kingsland. Throughout the tenure of office of the present Government, there has been a consistent pattern of trying to weaken the independence of the judiciary. The famous ouster clause was the high watermark, but there have been other efforts. This is, in a sense, in the same category.
I agree with my noble and learned friend that it is difficult to reconcile the duty of the Chief Justice or whoever is appropriate to concern himself with the deployment of judges with saying that all he can do about the appointment of a judge to a panel of inquiry is express his views. However, I disagree with my noble and learned friend when he suggests that judges might happily accept appointment, despite the views of the Chief Justice, because they were bored or found that their ordinary diet of work was thoroughly unsatisfying, still less because they wanted a little oxygen of publicity to keep them going. People who do that are not normallyI could almost say everappointed to the Bench.
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