Judges may be reluctant to chair government inquiries if MPs on select committees question them about their recommendations, Lord Justice Beatson has warned.
Beatson LJ, who is helping draft guidelines on what judges should be able to say about government policy and legislation, said some MPs did not accept that chairing an inquiry was a “judicial function”, in which case there was “no need” for a judge.
“The general constitutional principles about what is required to protect judicial independence mean that judges are not to be questioned about cases which they have decided or in which they have been involved, and do not comment on such cases.
“Those principles apply to a judicial chair of an inquiry and require a constitutional convention that he or she should not be questioned about the recommendations they have made.
“It is something of a paradox that although the chair has been chosen because it is considered that the particular inquiry needs a judge and a substantially judicial process, some committee members do not accept that chairing the inquiry is a judicial function.”
Beatson LJ said “if that is so, there is no need for a judge”. He warned that if select committees did not recognise the consequences of having judges chair an inquiry, the Lord Chief Justice, Lord Thomas “may be more reluctant to agree that a member of the judiciary of England and Wales should do so”.
Lord Justice Beatson was speaking at event to mark the publication of The Politics of Judicial Independence in the UK’s Changing Constitution, the result of a research project involving Birmingham University together with UCL, LSE and Queen Mary, London.
He said that although the Inquiries Act 2005 required only for the LCJ to be consulted before the appointment of a judge, “the practice is that his consent is sought”, and “a judge asked to chair an inquiry is, of course, not obliged to accept.”
Beatson LJ cited the case of the House of Commons’ Northern Ireland affairs committee, which stated in its report on the government’s ‘On the Run’ inquiry in March this year that it did not consider that Lady Justice Hallett acted in a judicial capacity when she chaired the inquiry.
The committee said in its report that it regarded Hallett LJ’s decision to decline its invitation to give evidence in person, and instead give it in writing, as “a regrettable discourtesy to Parliament”.
Using figures from The Politics of Judicial Independence, Beatson LJ said that between 2003 and 2013, 72 judges appeared before parliamentary committees on 148 occasions – roughly eight a year.
He said that 10 years ago, when there was “informality” in the way judges were invited, and “different expectations” about what help they could give, there were examples of “quite inappropriate behaviour” by MPs, including “persistent questioning” of a sentence imposed in a controversial case.
Beatson LJ concluded: “As the number of invitations increase, so does the need for clarity in the boundary of what is permissible and what is not.”