Wednesday, 4 July 2012

Falconer could have selected a different judge

In my last post I stated some reasons why I felt Lord Hutton shouldn't have chaired the Inquiry.  Lord Falconer wasn't limited to a choice of just one judge, in fact he admitted to the Select Committee on Public Administration that the number of suitable judges was in the tens.  It's also clear that he homed in on Hutton without really considering possible alternative chairmen.  This is the relevant text from the committee's examination of Falconer regarding his degree of choice in this matter:

  Lord Falconer of Thoroton: I was very conscious of the fact that the person taking on this job would be stepping into the eye of a great storm that was then raging, that the person appointed to do the job would have to be somebody of real experience, of real steadiness, and somebody whom everybody, the public in particular, would have confidence in being able to do the job in a fair and objective way. So somebody not experienced, a recently appointed, quite junior judge would not have been appropriate for the job. Somebody who had been a judge for a long time who had had experience of the potential dangers of being a judge—I do not mean physical dangers but the dangers inherent in being a judge in somewhere like Northern Ireland—and somebody who had ended up in the House of Lords Judicial Committee was plainly somebody with that experience and that weight to do the job. Was I aware of the sensitivity of the job that Lord Hutton was being asked to do? Yes I was. Was I aware of the fact that it would require incredibly sensitive handling? Yes I was.  

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  Q187 Chairman: Before we lose the business of selecting our judge, because I think it is quite interesting to get a sense of this, let's take the Hutton case, you decided you wanted a judge, you wanted a steady judge—your words—you wanted an experienced judge. There are not an infinite number to choose from because a lot them will be judging, will they not?
  Lord Falconer of Thoroton: They will all be judging except for the retired ones. If you are going for a current judge he has got the job of a judge.
  Q188 Chairman: They will be judging either actively or passively at that precise moment, will they not?
  Lord Falconer of Thoroton: Yes.
  Q189 Chairman: You have only got a certain number from which you can choose. You do not want the junior ones, you want the steady, experienced ones, so the number has already contracted. You have got some who are actively out there on cases. The number gets fewer as you start to think about it, does it not? Just tell me how that works?
  Lord Falconer of Thoroton: If you want a sitting judge, ie somebody who is sitting as a current judge, I think the figures are something like 102 High Court judges, 34 Appeal Court judges and 12 judicial Members of the House of Lords. That is 148 senior judiciary and that is not counting those in Northern Ireland and Scotland. There are enough people—

  Q190 Chairman: Sorry to interrupt but you told us that you had already decided that you wanted a member of the Judicial Committee of the House of Lords so you had brought the number down anyway.
  Lord Falconer of Thoroton: I said that was one of the attractions of Lord Hutton but I would not regard, for example, a member of the Court of Appeal as excluded from consideration in relation to it. The number is quite small, as it were tens of people who could do this particular job, but the number is not so small that the choice is unduly restricted.
  Q191 Chairman: But you did not have to ask anyone else before you asked Lord Hutton?
  Lord Falconer of Thoroton: No, he was, as it were, my first choice and he, as he said and I say, accepted it without demur on the basis of it was his public duty to do it.
  Q192 Chairman: Did you go back to the Prime Minister and say, "I have got Lord Hutton; will he do?"
  Lord Falconer of Thoroton: No. Lord Hutton was chosen and I did not speak to the Prime Minister again after. We informed all the relevant bits of the government that Lord Hutton was to be the inquirer.

There has been discussion about whether there had been any input from Peter Mandelson on the 18th.  I'm not aware of any public acknowledgement of him being involved but of course as a former Secretary of State for Northern Ireland he would have been aware of Lord Hutton being a senior judge there.  Norman Baker clearly has his suspicions as can be seen by reading pages 73-74 in his book.

A final thought ... there is an old adage about selecting a person to chair an inquiry that goes something like this: "You don't want to select a person who you might have to lean on, you need a person that you don't need to lean on".  Perhaps Hutton was viewed as such a person. 

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