Lord Woolf’s concerns

In December 2004, at the time when the Gaul RFI concluded and produced its final report, Lord Woolf, then Lord Chief Justice, was clashing with the government, an article published in the Times informed us, over a “matter of principle”.
The matter in question was Lord Woolf’s view – a view shared by other judges apart from the Lord Chancellor – that the final decision as to whether or not High Court judges should chair public inquiries, and who should be appointed to such duties, must necessarily rest with the head of the judiciary.

Lord Woolf was concerned that “public confidence in the judiciary’s independence could be harmed if judges were drawn into politically sensitive public inquiries” [*] where they could be seen as siding with the government, and that the separation of powers might be consequently compromised.

Lord Woolf was of the opinion that not all public inquiries were apt to be chaired by judges and that, from some cases of a “politically sensitive nature”, judges ought to stay well away.

Lord Woolf’s objections had been sparked, we were told, by the negative public reaction to the conclusions of Lord Hutton’s inquiry into the circumstances surrounding the death of the Government weapons expert David Kelly.

The Times article also listed the 13 inquiries which had been chaired by judges since 1997, and which included the sinking of the MV Derbyshire, FV Gaul and the Marchioness.

What struck us about Lord Wolf’s arguments, however, was the fact that his Lordship appeared more in favour of the judiciary skirting the politically sensitive cases rather than accepting the challenges they presented, giving thus the impression that the judges wanted both to have their cake and eat it… that is to remain both virtuous – preferably through non-exposure rather than as a result of personal endeavour - and on good terms with the government of the day.

And, reverting to the unfortunate case of the Gaul RFI, one feels tempted to ask, why is it that some of our judges, whose righteousness Lord Woolf was so keen to protect, having already sided with the government and having already been seen doing so, are still unwilling to make amends?

Are not our judges supposed to be the heroic defenders of the law’s basic commitments against the encroachments of politics? Is judging no longer concerned, as judge William E. Werner once explained, “with the romance of perseverance, of pluck and back bone”?

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[*] Woolf wants final say over inquiries, The Times, December 15, 2004