The specific scenario in which select committees seek evidence from a judge who has chaired an inquiry generates a lot of heat and light. But Patrick O’Brien indicates that the research he conducted with Robert Hazell shows the practice of judges giving evidence to parliamentary committees has been widely accepted as a positive and productive form of engagement. What is more, it creates opportunities for dialogue and for judicial accountability.
When is a judge not a judge? Lady Justice Hallett carried out a public inquiry into the ‘On the runs’ scheme in 2014. In its report on the same issue in March 2015 the Commons Northern Ireland Affairs Select Committee commented rather sternly that
‘we chose not to summon Lady Justice Hallett to attend, but we consider it to be a regrettable discourtesy to Parliament that she declined our initial invitation to give evidence to the Committee, especially as she had not acted in a judicial capacity when carrying out her review‘. [at para. 11]
Is a judge who chairs an inquiry acting as a judge, or acting as an inquiry chair? Judges, concerned about the implications of being drawn into disputes that are often highly politically charged, tend to believe that they are acting as judges and that their reports should speak for themselves. Parliamentary committees can find this attitude defensive and frustrating. Several years ago the Commons Cultural, Media and Sport committee ran into a similar conflict with Lord Justice Leveson in relation to evidence he gave as chair of the inquiry into phone hacking.
The specific scenario in which committees seek evidence from a judge who has chaired an inquiry generates a lot of heat and light. However, research I have done with Robert Hazell suggests that such ‘judge-led inquiry’ sessions, despite the problems that may attend them, make up only 5% of all evidence sessions these committees have with judges. The reality is that the vast majority of judicial evidence sessions are uncontroversial. The practice of judges giving evidence to parliamentary committees has been widely accepted as a positive and productive form of engagement by both judges and parliament.