“This brings us back to the concerns that must accompany the judicial pride in the clamours for the use of independent judges in contentious inquiries. Independence is not always popular and is not always accepted. There is much less deference to judges than in the past, and a much greater willingness to subject them to ad hominem attacks. This rise of scepticism is, paradoxically, occurring at a time when there are greater and greater expectations of what inquiries can consider and what they can achieve. Terms of reference have become broader, taking judges beyond their traditional roles as finders of fact and asking them to make determinations on the culture and ethics of entire professions, or the efficacy of a method of policing over a 50 year period. It is questionable whether judges are well placed to be arbiters of a zeitgeist. The danger is that over-expectation or over-reach will lead to disappointment and worse. This in turn may bring judicial inquiries and even judicial independence into question, deservedly or otherwise.”
There is a scene in “Yes Minister” in which the beleaguered Jim Hacker is contemplating a public inquiry into the latest failing of his department. He warily suggests to his Permanent Secretary, Sir Humphrey Appleby, that perhaps the judge chairing the inquiry could be leant on to come up with a favourable outcome. Sir Humphrey is outraged at this violation of the separation of powers. Surely the Minister wasn’t serious? After all, wouldn’t it be better to appoint a judge who didn’t need to be leant on in the first place?
Jim Duffy’s recent post on the Contaminated Blood Inquiry – and the importance of an inquiry being independent and being seen to be independent – brought this encounter to mind. The ever more frequent calls for a ‘judge-led inquiry’ must be a source…
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