Should judges lead public inquiries?

The appointment of former Court of Appeal judge Lady Butler-Sloss as chair of the recently announced inquiry into historical allegations of child abuse attracted criticism principally because of suggestions of the appearance of a conflict of interest. Although, in the face of such criticism, she has now resigned, the broader—and more fundamental—question remains: should judges lead public inquiries at all?

There is no shortage of examples of judges leading such inquiries, Lord Justice Leveson’s inquiry into the culture, standards and ethics of the press being a recent and particularly prominent example. The attractiveness to politicians who establish inquiries of appointing judicial chairs is obvious, as Andrew Marr wrote in The Independent in 1995 in relation to the Scott Inquiry into the Arms to Iraq affair:

As it became clear that Parliament seemed to have been misled [over the ‘arms to Iraq’ affair], Mr Major [the then Prime Minister] ordered in a judge. He wanted a tough judge, for a very good reason. The administration was so lacking in authority that it was protecting itself, for the time being, with the borrowed authority of Lord Justice Scott. The tougher the judge, the stronger the shield.

Marr makes an important point that speaks volumes about the nature of the British constitution and the resulting impulse to “call in a judge” when pressing matters of public concern arise. It is a point that is rooted in the notion of accountability and the particular challenges of securing accountability in the light of the United Kingdom’s lopsided constitutional architecture. I will deal with each of those matters in turn, before arguing that relying upon judges to lead public inquiries is something we should do only cautiously.

A key reason for establishing an inquiry is to secure accountability—a protean concept, the breadth of which can be mapped by reference to three variables. First, an institution—such as a public inquiry—seeking to supply accountability might examine any of several types of matters, from administrative measures affecting individuals or small groups through to policies impacting upon large swathes of the population. Or the inquiry might be concerned with the competence, credentials, effectiveness or good faith of a given administrative actor or institution. Or the inquiry might be broader still: it might, for instance, be concerned with systemic issues such as how different institutions relate to one another. Second, if an inquiry is to assess any of these things in a meaningful way, it will have to do so by reference to some sort of criteria (whether or not they are articulated explicitly or in advance). The criteria may be legal in nature, or political (e.g. was the policy prudent, wise, or in the national interest?), moral, financial, or bureaucratic (or, most likely, some combination of these). Third, accountability is not an end in itself. Inquiries are held—and other accountability processes are run—in order to achieve other purposes. The reasons for holding inquiries are many and varied, as Walshe and Higgins (2002) 325 British Medical Journal 896 have noted. They range from establishing facts and learning from events, to providing catharsis and supplying reassurance, to ascribing blame and imposing sanctions.

Just as accountability is a catholic notion, so institutions—such as public inquiries—that seek to deliver accountability cannot adhere to any single model. Many different approaches can be conceived and have been used, including the classic judicial inquiry (such the Leveson and Scott Inquiries mentioned above), the independent panel model used to acclaim in relation to the Hillsborough tragedy, the non-judicial inquiry currently being used in relation to the Iraq War, and the inquiry led by an independent legal but non-judicial figure, such as Robert Francis QC’s highly influential Mid Staffordshire NHS Foundation Trust Public Inquiry. However, in spite of the range of options that is available, when the chips are down, the urge to rely upon a judge often proves to be irresistible.

The reason for this lies in the lopsided nature of the British constitution mentioned above and reflected in a schizophrenic conception of the separation of powers that—increasingly—prizes judicial independence while tolerating a very close relationship between the administrative and legislative branches of government. A consequence of such arrangements is that the independence of the judge confers upon him or her an apparently unique capacity to hold the political establishment to account. Such independence—and its appearance—is crucial once we recognise that a key hallmark of successful accountability arrangements is an appropriate degree of tension and distance between the accountability institution and the institution that is being called to account. It is in reasons such as these that we find the seeds of increasing reliance upon judicial review as an accountability tool, the perception being that it can fill the gap opened up by ineffectual democratic institutions that are, in any event, too close for comfort to the governmental machine they are supposed to be holding to account. And such thinking spills over into the wider accountability arena, leading to a perceived need to burnish the credentials of quasi-political, non-legal accountability processes such as public inquiries by relying upon what Marr calls the “borrowed authority” of the judge. Indeed, the need for an injection of judicial independence is all the greater given the extent of executive ownership of processes established under the Inquiries Act 2005.

One conclusion that we can draw, then, from reliance upon judges in this sphere is that it is symptomatic of a wider malaise. However, the phenomenon is not merely evidence of a problem: it is potentially causative of others. As Lord Justice Beatson (Beatson, ‘Should Judges Chair Public Inquiries?’ (2005) 121 Law Quarterly Review 221) has noted, there are many potential drawbacks to relying upon judges in this way, not least because appointing a judge ‘will not depoliticise an inherently controversial matter’. Paradoxically, therefore, judicial involvement in inquiries may erode the very independence that make recourse to the judiciary in this context (as in others) so attractive.

Nor does it follow that judges necessarily possess the right skill-set for conducting public inquiries. Writing in the aftermath of the Hutton Inquiry, Sir Jeffrey Jowell observed that:

It is true that judges possess special expertise in analysing evidence, assessing the credibility of witnesses, and resolving complex questions of fact. However, this skill is largely confined to the context of a particular set of circumstances, namely, those which surround the issues of guilt and liability. Did A kill B? Was X liable for damage to Y? These “yes-no” or “either-or” questions are grist to the judicial mill. And they are determined not in a vacuum, but with the guidance of principle derived from similar previous cases. Political controversies, however narrowly confined, normally involve a wider set of relevant issues than are found in the typical murder trial, and a different set of principles to those found in the law reports.

This reflects the point made above concerning the way in which inquiries assess the conduct which forms their subject-matter. The criteria relevant to a public inquiry will inevitably be more diffuse, less objective and more contestable than those applicable to the determination of legal liability. The tasks, which necessarily fall to the inquiry, of both determining and applying those criteria are potentially controversial ones (creating the risk of judicial ‘politicisation’) and ones, as Jowell argues, to which judges are arguably not uniquely or even particularly well suited. For instance, whereas the Hutton Inquiry was widely praised for bringing to light a wide range of relevant facts that might otherwise have remained behind a veil of secrecy, it arguably came unstuck because of the way in which Lord Hutton went on to evaluate the conduct of the principal protagonists. As Sir Louis Blom-Cooper and Colin Munro have argued (‘The Hutton Inquiry’ [2004] Public Law 476), the Hutton report reflected Hutton’s ‘qualities as a judge, meticulous and superb in the analysis of details and evidence, but more evidently questionable on matters of wider judgment’.

Against this background, I have argued in a recent contribution to Bamforth & Leyland (eds), Accountability in the Contemporary Constitution (OUP 2013) that:

judges’ involvement in inquiries should be confined to performing those functions that they are uniquely well-placed to perform. One version of this argument consists in the view that judges should be involved only in inquiries that specifically call for their particular skill-set. The difficulty, however, is that this putative condition for legitimate judicial involvement may be fulfilled in circumstances that also disclose strong arguments against such involvement. A forensic approach (and one that is conducted in a transparently independent manner) to matters factual and evidential may be necessary, but as a precursor to very different tasks such as evaluating relevant actors’ conduct by reference to soft, contestable criteria, and making detailed recommendations in specialised and esoteric areas.

Inquiries can—and should—supply a form of accountability that differs fundamentally from that which the legal system provides by means, inter alia, of judicial review. Accountability in the present sense calls for evaluation (of past events) and prescription (for the future) by reference not to legal standards, but with regard to a range of more diffuse bureaucratic, financial, institutional, moral and political criteria. It would be unduly dogmatic to oppose judges’ involvement in the fact-finding phase of inquiries, but their involvement should be confined to that phase. This is, as the foregoing discussion suggests, an argument based partly upon technical considerations about the extent of judges’ skills. But it also forms part of a wider argument about where constitutional responsibility ought to lie for providing the type of accountability that inquiries are capable of furnishing—an argument which, if accepted, would necessarily constrain, but not eviscerate, judges’ role in this sphere.

These comments are offered by way of background to the present debate concerning the appointment of Lady Butler-Sloss to lead the child abuse inquiry (although they in no way relate to her individual qualities or circumstances). The intention is not to suggest that the appointment of a judicial figure is necessarily inappropriate. (It may well be that there are forensic aspects of the task that falls to be undertaken which entirely warrant the involvement of such a figure. It may also be that the proposed establishment of the inquiry on a panel basis will facilitate the involvement of a range of expertise that will ameliorate some of the difficulties associated with judicial inquiries.) Rather, the intention is merely to suggest that the judicial inquiry, for all that it is a perceived as the ultimate accountability mechanism, should not be regarded as a panacea. Instead, we should be alive to both the underlying constitutional deficiencies that make judicial inquiries so attractive in the first place, and to the shortcomings of the judicial-inquiry model itself. This does not mean that there is no place for judicial inquiries—or at least for judicial involvement in inquiries—but it does mean that establishing such inquiries should not be the knee-jerk reaction that, at the moment, it too often is.

A near-final draft of my chapter in Bamforth & Leyland can be accessed on SSRN here.