1 As well as the Tribunals of Inquiry Act 1921, there are numerous specific statutory provisions for inquiries: e.g. Health and Safety at Work Act 1974, s 14; National Health Service Act 1977, ss. 2, 87; Merchant Shipping Act 1995, ss. 268–269; Police Act 1996, s. 49. For examples of non-statutory inquiries, see n 38 below.

2 (1966) Cmnd. 3121. There was a supplementary report on contempt (1969) Cmnd. 4078. Sir Cyril, then a member of the English Court of Appeal, later became a Lord of Appeal in Ordinary. The explanatory notes to the Israeli Bill acknowledged the influence of the 1921 Act and the Salmon Report: see Segal, Zeev, “Tribunals of Inquiry: A British Invention Ignored in Britain” [1984] Pub. L. 206, 208 Google Scholar. SirCohen, Cyril's Lionel lecture, SirSalmon, Cyril “Tribunals of Inquiry” (1967) 2 Is. L.R. 313 Google Scholar was no doubt also influential.

3 Ibid.

4 Ibid., at 323.

5 572 HL Deb col. 1310 (5 June 1996).

6 24 out of 150 Royal Commissions, 36 out of 192 Departmental Inquiries, 24 statutory inquiries under the 1921 Act. During the 20^th century in Britain there have been some [366] major commissions and inquiries, and (excluding land use planning inquiries) about 1,000 departmental inquiries on relatively narrow and limited matters: See, David, and Butler, Gareth, Twentieth-Century British Political Facts 1900–2000 (Houndmills and London, Macmillan Press Ltd., eighth edition, 2000) 315–327 Google Scholar; D.C.A. C.P. 12/04 Effective Inquiries, Annex B (May 2004, available at www.dca.gov.uk/consult/inquiries/inquiries.pdf).

7 DCA CP 12/04 “Effective Inquiries”, Annex B.

8 His first report was produced in less than 6 months: 1995 Cmnd. 2850.

9 Shetreet, Shimon, Justice in Israel: A Study of the Israeli Judiciary (Dordrecht, Martinus Nijhof Publishers, 1994) 483–488 Google Scholar.

10 Hallett, Leonard Arthur, Royal Commissions and Boards of Inquiry: Some Legal and Procedural Aspects (Sydney, The Law Book Co. Ltd., 1982) 22–25, 60–73 Google Scholar; SirBarwick, Garfield, “The State of the Australian Judicature” (1979) 53 Aust. L. J. 487, 490 Google Scholar; Cf. Brennan, F. G., “Limits on the Use of Judges” (1978) 9 Fed L. Rev. 1, 10–13 Google Scholar; Sherman, Tom, “Should Judges Conduct Royal Commissions?” (1997) 8 Pub. L. Rev. 5 Google Scholar; Crawford, James and Opeskin, Brian, Australian Courts of Law (South Melbourne, Oxford University Press, fourth edition, 2004) 72–74 Google Scholar.

11 Brazier, Rodney, Constitutional Practice (Oxford, Clarendon Press, 1988)Google Scholar; Drewry, Gavin, “Judicial Inquiries and Public Reassurance” [1996] Pub. L. 368 Google Scholar; Shetreet, Shimon, Judges on Trial: A Study of the Appointment and Accountability of the English Judiciary (Amsterdam, North-Holland Pub. Co., 1978) 354–363 Google Scholar; Shetreet, Justice in Israel A Study of the Israeli Judiciary, supra n. 9; Stevens, Robert, The Independence of the Judiciary: The View from the Lord Chancellor's Office (Oxford, Clarendon Press, 1993)Google Scholar, Stevens, Robert, The English Judges: Their Role in the Changing Constitution (Oxford and Oregon, Hart Pub., 2002)Google Scholar.

12 (1988) Cm. 412.

13 Interim Report Cm. 765; Final Report Cm. 962 (1990).

14 Slonim [1975] Connecticut Bar J. 391. See also Mason, Alpheus Thomas, “Extra-Judicial Work for Judges: The Views of Chief Justice Stone” (1953–1954) 67 Harv. L. Rev. 193 CrossRefGoogle Scholar.

15 Grollo v. Palmer (1995) 184 C.L.R. 348; Wilson v. Minister for Aboriginal and Torres Straight Islander Affairs (1996) 189 C.L.R. 1, 5 (appointing a judge to prepare a report for a Minister as a prerequisite for the exercise of a statutory discretion by the Minister was held to put the judge firmly in the echelons of administration and not sufficiently independent of the executive to be acceptable). See generally Brown, A. J., “The Wig or the Sword: Separation of Powers and the Plight of the Australian Judge” (1992) 21 Fed. L. Rev. 48 Google Scholar.

16 Lord Hutton has stated that the question whether the issues before his inquiry (see below) should have been resolved by a defamation action and a coroner's inquest was not a matter for him: Evidence to the Public Administration Committee 13 May 2004, Q24.

17 Report of the Lord Chancellor's Department's Committee on the Deployment of High Court Judges, (1988).

18 Robert Stevens has been the most prolific and iconoclastic: see The Independence of the Judiciary, supra n. 11 at 97–101, 113–118; 170–171; The English Judges, supra n. 11 at 28–29, 83–85; [2004] Legal Studies 1, 35. See also Brazier, Rodney, Constitutional Practice (Oxford, Clarendon Press, 1988) 244–5, 287 Google Scholar; Drewry [1996] PL 368.

19 Cmnd. 814 (1959). For a full account, see Simpson, Brian, “The Devlin Commission (1959): Colonialism, Emergencies, and the Rule of Law” (2002) 22 Oxford J. Legal Stud. 17 CrossRefGoogle Scholar.

20 Cmnd. 2152 (1963), “The Security Service and Mr Profumo”.

21 February 1996 Cm 115.

22 HC 247 (28 January 2004).

23 DCA CP 12/04 “Effective Inquiries”, paragraphs 12, 14, 27–33.

24 Hencke, David and White, Michael, The Guardian, 4 March 2004 Google Scholar.

25 Evidence to the Public Administration Committee 13 May 2004, Q86; The Times 14 May 2004, p. 7.

26 This office combines the roles of Cabinet minister responsible for the Court system, legal aid, and significant parts of the justice system, Speaker of the second chamber of the legislature, the House of Lords, and Judge and Head of the Judiciary. The House of Lords amended the Constitiutional Reform Bill to perserve the title of the office and the requiremennt that the office holder have legal qualifications, but the government may seek to reverse this change in the House of Commons.

27 DCA CP 12/04 “Effective Inquiries”, para. 45.

28 The only reference to the implications of the reforms proposed in the Constitutional Reform Bill 2004 is in paragraph 28, where it is said that the requirement in the Ministerial Code that Ministers consult the Lord Chancellor about any proposals to appoint a judge to chair an inquiry will in future require the consultation of the Lord Chief Justice as part of the transfer of functions: See Schedules 1 and 2 to the Constitutional Reform Bill.

29 (1978) Cmnd. 7054 (Pearson); (1988) Cm.412 (Butler Sloss). The Tal Commission reported in 2000.

30 The Or Commission reported in September 2003.

31 Witnesses may, however, in certain circumstances, be afforded anonymity: see Sir Ronald Waterhouse's inquiry into child abuse in North Wales (2000) HC 201 (witnesses who complained of abuse) and Lord Saville's inquiry into “Bloody Sunday” (former soldier and current and former members of the Royal Ulster Constabulary, witnesses, albeit following a judicial review, and former members of the Official and Provisional IRA).

32 The reasons for using a non-statutory inquiry include: a desire to avoid the sub-judice rule (which formally only applies to statutory inquiries); anticipation that power to summon witnesses and to certify for contempt will not be needed; the difficulties in subsequently prosecuting on the basis of evidence obtained under compulsory powers; and the procedural requirements resulting from the recommendations of the Salmon Commission.

33 HC 220 (1972). It was set up in February and reported in April 1972.

34 Cmnd. 2152 (1963).

35 The Government's Response is in Cmnd. 5313 (1973).

36 Council on Tribunals Advice to the Lord Chancellor on the procedural issues arising in the conduct of public inquiries set up by Ministers (July 1996) The Council was asked to examine the matter in the light of the Scott Report on the “Arms for Iraq” affair (1996) Cm. 115, on which see below.

37 (1978) HC 48 “The extent to which the Crown Agents lapsed from accepted standards of commercial or professional conduct as financiers on their own account in the years 1967–74”.

38 Sir Richard Scott's inquiry into “Arms for Iraq” (1996) Cm. 115, set up in 1992 following the collapse of a criminal prosecution. Other examples include Lord Bingham's Inquiry into the Supervision of the Bank of Credit and Commerce International which reported in 1992; Lord Phillips' inquiry into BSE, the so-called Mad Cow Disease, which led to the slaughter of hundreds of thousands of cows and had appalling consequences for our farming industry which reported in October 2000 HC 1999–2000 No 887, and Lord Hutton's inquiry into the circumstances surrounding the death of Dr. David Kelly, HC 247 (28 January 2004).

39 DCA CP 12/04 “Effective Inquiries”, Annex B.

40 Lord Cullen on the Dunblane School Massacre (1996) Cm 3386; Sir Ronald Waterhouse on Child Abuse in North Wales (2000) HC 201; Lord Saville on “Bloody Sunday”; Lady Justice Smith on the Implications of the Shipman case.

41 Of the notable inquiries since 1990 listed in an Appendix to DCA 12/04, the time taken has varied from 3 months (Sierra Leone Arms Investigation) to 10 years (Mirror Group Newspapers, an inspection under the Companies Act, delayed inter alia by a substantial and protracted criminal prosecution), and the cost from £600,000 (Bingham) to an estimated £155 million (Saville Inquiry). The majority cost well over £1 million.

42 Para 3.

43 E.g. the Radcliffe Commission on Income Tax (1955), the Donovan Commission on Trade Unions (1968), the Finer Commission on the Press (1977), the Pearson Commission on Civil Liability and Compensation (1978), the Warnock Committee on the Fertilisation of Human Embryos (1984). For recent examples see n. 45 below.

44 Para. 136.

45 Such inquiries were often by Royal Commissions. None were set up while Margaret Thatcher was Prime Minister (1979–90). In 1991 her successor, John Major (1990–97), appointed one on Criminal Justice, chaired by Lord Runciman (1993, Cm 2263), and in 1997 Tony Blair (1997 – ) appointed one to examine the system of long-term care for the elderly, chaired by Professor Sir Stewart Sutherland (1999) Cm. 4192–1, and one, chaired by Lord Jenkins of Hillhead, to recommend a new broadly proportional system of voting for elections to the Westminster Parliament (1998, Cm 4090). In 1999 a Royal Commission chaired by Lord Wakeham was established to report on the role, functions, composition and mode of selection of the second chamber of the legislature (2000, Cm. 4534).

46 The Scarman Report (1986) Cmnd. 8427 ( Scarman, Lord, The Scarman Report: The Brixton Disorders, 10–12 April 1981 Report of an Inquiry (Harmondsworth, Pelican Books, reprint 1986))Google Scholar; The MacPherson Report (1999) Cm. 4262.

47 Woolf's, Lord Access to Justice: Final Report to the Lord Chancellor on the Civil Justice System in England and Wales (1996) Chapter 1Google Scholar.

48 (1972) Cmnd. 4903. See the discussion in Wilberforce, Richard Orme, Reflections on My Life, ed. Wilberforce, Sam (Durham, Rondtuit Publishing, 2003) 77 ffGoogle Scholar.

49 See DCA CP12/04 “Effective Inquiries” Annex B. Of the 30 notable inquiries set up since 1990, 6 have been chaired by non-lawyers and 7 by legal practitioners.

50 See Maclean, Mavis, “How Does an Inquiry Inquire? A Brief Note on the Working Methods of the Bristol Royal Infirmary Inquiry” (2001) 28 J. L. & Soc. 590 CrossRefGoogle Scholar. (Professor Maclean was one of the three Panel members who sat with Sir Ian).

51 Leigh, Ian and Lustgarten, Laurence, “Five Volumes in Search of Accountability: The Scott Report” (1996) 59 Modern L. Rev. 695 CrossRefGoogle Scholar.

52 Clare Dyer, The Guardian, 29 January 2004, p. 15. See also Ferdinand Mount, The Sunday Times, 1 February 2004, p. 15 (“six scant pages of conclusions which often bear little relation to the drift of the voluminous evidence”)

53 Leigh, Ian and Lustgarten, Laurence, “Five Volumes in Search of Accountability: The Scott Report” (1996) 59 Modern L. Rev. 695, 710 ffCrossRefGoogle Scholar (the role of Select Committees); Lester, LordQC, quoted in The Guardian, 29 January 2004, p. 15 Google Scholar.

54 Advice to the Lord Chancellor July 1996.

55 Ibid., para 5.16.

56 Lord Howe of Aberavon, “Procedure at the Scott Inquiry” [1996] Pub. L. 445 Google Scholar; 569 HL Deb., cols 1267–1273 (26 February 1996).

57 Evidence to the Public Administration Committee 13 May 2004, QQ20, 122, 131,133, 136. He stated the issue was whether the Government “probably knew” that the intelligence concerning “the 45 minute claim” was wrong.

58 Evidence to the Public Administration Committee 13 May 2004, QQ 101–102.

59 HL Deb. 11 May 2000 cols. 1715–1717. See also the High Court of Australia in Grollo v. Palmer (1995) 184 C.L.R. 348, 364 (non-judicial functions cannot be conferred on a judge without consent).

60 Mr Justice Butterfield and Mr Justice Keith.

61 Tribunals of Inquiry were chaired by Porter J, Cd. 5184 (1936) (leak of budget secrets); Lynskey J Cd. 7616 (1948). (bribery of a junior Minister)

62 Royal Commission on Tribunals of Inquiry, Minutes of Oral Evidence, p. 196

63 Winterton, George, “Judges as Royal Commissioners” (1987) 10 Univ. New S. Wales L. J. 108, 110 Google Scholar. See also Lord Windelsham HL Deb 11 May 2000, col. 1715.

64 Mason, supra n. 14. Justice Byrnes resigned from the Supreme Court in 1942 to become Director of Economic Stabilisation and in Australia Stewart J resigned as a Judge when appointed chairman of the National Crime Commission ( Winterton, George, “Judges as Royal Commissioners” (1987) 10 Univ. New S. Wales L. J. 108 Google Scholar).

65 The Times, 18 July 1973 (Speech at Lord Mayor's Annual Dinner for the Judiciary).

66 572 HL Deb. Col 1272 (5 June 1996).

67 Israeli Commissions of Inquiry Law 1968, Section 4.

68 Sir Cyril Salmon, supra n. 2, at 324. Cf the Salmon Commission Cmnd. 3121 (1966) para. 73.

69 Evidence submitted by a working party of the Judges' Council to the House of Lords Committee on the Constitutional Reform Bill. See Evidence taken before The Select Committee on the Constitutional Reform Bill 4 May 2004 Q 731.

70 Clause 9 of the Inquiries Bill 2004 (introduced in November 2004) provides that if the Minister proposes to appoint as a member of an inquiry panel a particular person who is a judge he must consult in the case of a Lord of Appeal the Senior Lord of Appeal, a Judge of the Court of Appeal, High Court or a Circuit Judge, the Lord Chief Justice, in thecase of Scottish judges the Lord President of the Court of Session and in the case of and Northern Irish judges the Lord Chief Justice of Northern Ireland. Although the Department of Constitutional Affairs is a UK department responding to a Committee of the UK Parliament, the consultation paper (DCA CP12/04) upon which the Bill is based does not (see para. 28) address their separate legal systems, or, the position of appointments of a Lord of Appeal in Ordinary since the House of Lords is (and the proposed Supreme Court will be) a UK, not an English court.

71 DCA CP 12/04 para 28; Questions 730–733 put by the present Lord Chancellor Lord Falconer to Lady Justice Arden when she was giving evidence to the House of Lords Select Committee on the Constitutional Reform Bill on 4 May 2004.

72 Hyde, H. Montgomery, Lord Reading: The Life of Rufus Isaacs, First Marquess of Reading (New York, Fraser, Straus and Giroux, 1967) 121 ffGoogle Scholar; Donaldson, Frances, The Marconi Scandal (London, Rupert Hart-Davis, 1962)Google Scholar. A summary is given by Salmon, supra n. 2 at 313, 314.

73 In particular because of the “Osmotherly rules”: Leigh and Lustgarten (1996) 59 MLR 695, 711–712; Diana Woodhouse 1997 50 Parliamentary Affairs 24, 28–36.

74 Leigh and Lustgarten, ibid., at 710 ff; Woodhouse 1997 50(1) Parliamentary Affairs 24, 33 ff. On Parliamentary regulation of members and its approach to the findings of the Commissioner on Standards in Public Life, see Woodhouse, Diana, “Delivering Public Confidence: Code of Conduct, A Step in the Right Direction” (2003) Pub. L. 511, esp. 515, 522 Google Scholar.

75 Thompson, Brian, “Conclusion: Judges as Trouble-Shooters” (1997) 50 Parliamentary Affairs 182, 183 CrossRefGoogle Scholar.

76 572 HL Deb Col 1282 (5 June 1996).

77 Mistretta v. United States 488 U.S. 361, 407 (1989), cited with approval by the High Court of Australia in Grollo v. Palmer (1995) 184 C.L.R. 348, 364, supra n. 15.

78 Devlin, Patrick, The Judge (Oxford, Oxford University Press, 1979) 9 Google Scholar. (1959) Cmnd. 814. The Government rejected his findings of fact: Cmnd. 815.

79 Quoted in Williams, D. G. T., Not In the Public Interest: The Problem of Security in a Democracy (London, Hutchinson, 1965) 190 Google Scholar. See also Wilson, , The Times, 16 September 1963 Google Scholar; Shetreet, Judges on Trial, supra n. 11 at 359 citing Lord Gardiner (while in Opposition) and Mr Enoch Powell MP.

80 The RCJ was used for the Hutton Inquiry and is being used for Keith J's inquiry into the murder of a young Asian offender beaten to death in his prison cell by his racist cellmate. The Scott Inquiry sat in the National Liberal Club. One of the Commissions conducted by President Shamgar was held at the Israeli Supreme Court.

81 “The Role of the Judge in Judicial Inquiries” [1999] Denning Law Journal 147, 156 Google Scholar.

82 572 HL Deb. Col 1272 (5 June 1996). See also Lord McNair in relation to Mr Justice Devlin's inquiry into the riots in Nyasaland: Simpson (2002) 22 OJLS 17, 30.

83 572 HL Deb. Col 1272 (5 June 1996). See above.

84 Lord Jenkins of Hillhead: 569 HL Deb. 26 February 1996, col. 1240.

85 Robert Stevens, The English Judges, supra n. 11 at 55. See also Leigh and Lustgarten, supra n. 73 at 713.

86 Leigh and Lustgarten, ibid., at 723; Tomkins, Adam, The Constitution after Scott: Government Unwrapped (Oxford, Clarendon Press, 1998) 12 Google Scholar.

87 [1996] PL 445. 569 HL Deb., cols 1267–1273 (26 February 1996).

88 569 HL Deb. 26 February 1996, col. 1298. John Major considered he “did not have the grasp of the workings of government necessary to put the issue at stake – the collapse of the Matrix Churchill trial - into context”: Major, John, John Major: The Autobiography (London, HarperCollins Pub., 1999) 561 Google Scholar.

89 In Nolan, Lord and SirSedley, Stephen, The Making and Remaking of the British Constitution (London: Blackstone Press Ltd., 1997) 28 Google Scholar.

90 572 HL Deb Col 1307 (5 June 1996).

91 569 HL Deb. 26 February 1996, cols. 1241, 1243 (Lord Jenkins of Hillhead). See also Leigh and Lustgarte, supra n. 73 at 700–701; Tomkins, supra n. 86 at 11; “Ministers accused of discrediting arms to Iraq report” The Times, 8 February 1996; Scott letters, The Guardian 23 February 1996 (including one from the Secretary to the Inquiry).

92 1997 50(1) Parliamentary Affairs 182, 185.

93 Mummery, David R., “Due Process and Inquisitions” (1981) 97 L. Q. Rev. 287 Google Scholar. See also Murphy J's dissent in Victoria v. Australian Building Construction Employees and Building Labourers' Federation (1982) 152 C.L.R. 25, 106–110. Evidence that is inadmissible in civil or criminal proceedings may have been given to the inquiry.

94 Victoria v. Australian Building Construction Employees and Building Labourers' Federation, ibid.. See also McGuiness v. Attorney-General (Vict.) (1940) 63 C.L.R. 73

95 Goodman International v. Mr Justice Hamilton [1992] 2 IR 542.

96 Brennan, J. in Victoria v. Australian Building Construction Employees and Building Labourers' Federation, supra n. 93.

97 The views of the judges set out below are derived from their response to a questionnaire by Hawthorne, S.: see Counsel October 2003 page 8 Google Scholar.

98 Evidence to the Public Administration Committee 13 May 2004, HC 606–I, QQ. 12, 30.

99 See section III, text of supra n. 35–38 above.

100 [1996] PL 445; 569 HL Deb., cols 1267–1273 (26 February 1996). See also the discussion of the judicial reviews of the Mahon and Saville Inquiries in section V. E. below.

101 Sir Roy Beldam's Report on Inquiries and Overlapping Procedures (2002), set out in Appendix C to DCA CP 12/04, states that judicial review is increasingly being sought in respect of decisions taken in the course of setting up an inquiry and during it. See Persey v. Secretary of State for the Environment, Food & Rural Affairs [2002] EWHC (Admin.) 371.

102 In Re Pergamon Press Ltd. [1971/ Ch. 388, 400 Lord Denning M.R. stated that those conducting inquiries “must be masters of their own procedure. They should be subject to no rules save this: they must be fair”. See also Douglas v. Pindling [1996/ A.C. 890 (P.C.); Ross v. Costigan [No. 2] (1982) 41 A.L.R. 319, 334 (Fed. Court of Australia).

103 Mount Murray Country Club Ltd v. Macleod [2003] S.T.C. 1525 (P.C).

104 Brigid Hadfield, “R. v. Lord Saville of Newdigate, ex p. anonymous soldiers: What is the Purpose of Tribunal of Inquiry?” [1999] Pub. L. 663; Blom-Cooper, Louis, “Tribunals under Inquiry” [2000] Pub. L. 1 Google Scholar; Blom-Cooper, Louis, “Public Interest in Public Inquiries” [2003] Pub. L. 579 Google Scholar.

105 R v. Lord Saville of Newdigate, ex p. B, O, U & V, The Times, 15 April 1999; R v. Lord Saville of Newdigate, ex p. A [2000] 1 W.L.R. 1855; Lord Saville of Newdigate v. Widgery Soldiers [2001] EWCA(Civ.) 2048.

106 Sir William Hoyt (Chief Justice of New Brunswick 1993–1998) and Sir John Toohey (a Justice of the High Court of Australia 1987–1998). Sir John was appointed in September 2000, replacing Sir Edward Somers, a former Justice of the New Zealand Court of Appeal who resigned.

107 There potential time implications for the Saville Inquiry if the Court of Appeal's decision in Three Rivers DC v. Bank of England (No 6) [2004] Q.B. 916 (C.A.) that communications between those participating in a non-statutory inquiry and their lawyers are not privileged applies to a statutory inquiry do not arise since the decision was reversed by theHouse of Lords: [2004] 3 W.L.R. 1274.

108 Beck, Andrew, “Trial of a High Court Judge for Defamation? A Comment on the Proceedings Arising out of the Erebus Commission” (1987) 103 L. Q. Rev. 461 Google Scholar.

109 Mahon v. Air New Zealand [1984] A.C. 808 (P.C.), affirming [1981] 1 N.Z.L.R. 618 (a decision in which all 5 members of the New Zealand Court of Appeal participated. See Black, Tony, “Judges and Royal Commissions” [1982] N.Z.L.J. 37 Google Scholar; Cato, C. B., “Erebus - Jurisdiction and Natural Justice” [1982] N.Z.L.J. 94 Google Scholar.

110 Cooke, Robin, “The Courts and Public Controversy” (1983) 5 Otago L.Rev. 357, 365 Google Scholar.

111 The Daily Telegraph, quoted in Stevens, The English Judges, supra n. 11, at 121 fn. 1.

112 Griffith, J. A. G., The Politics of the Judiciary (London, Fontana Press, fifth edition, 1997)Google Scholar.

113 Harlow, Carol, “Administrative Reaction to Judicial Review” [1976] Pub. L. 116 Google Scholar.

114 SirLatham, John in Holmes, J. D., “Royal Commissions” (1955–1956) 29 Aust. L. J. 253, 268 Google Scholar.

115 Oulton, Derek, “Independence of Whom?” (1994) 21 J. L. & Soc. 557, 569 Google Scholar; Stevens The English Judges, supra n. 11 at 107–110, 129–136.

116 There have been reports in the Press that the Home Office considers that lectures given by Lord Steyn precluded him sitting in when the HL considered the detention without trial regime under the Anti-terrorism, Crime and Security Act 2001. He did not take part in A. v. Home Secretary [2004] UKHL 56 in which 8 or 9 Lords of Appeals held the legislation is not compatibe with the ECHR.

117 (1978) 9 Fed. L. Rev. 1, 3 Google Scholar.

118 Sedley, Stephen, “Public Inquiries: A Cure or a Disease?” (1989) 52 Modern L. Rev. 469 CrossRefGoogle Scholar (“…in areas of high controversy a judge offers a seal of credibility”). In a passage Sedley describes as heavily idealized Scarman, Lord, The Scarman Report: The Brixton Disorders, 10–12 April 1981 Report of an Inquiry (Harmondsworth: Pelican Books, reprint 1986)Google Scholar, Introduction states that judges “have an instinctive understanding of the causes of injustice” and “a passion for uncovering injustice”.

119 See text supra n. 59–61 above for discussion of the fact that pusine judges are less likely to be appointed to conduct inquiries of major national importance than in the past and the suggestion that this may be indicative of a diminution in the authority of the High Court.

120 See Shetreet, Justice in Israel, supra n. 9, at 485 He states that the natural meaning of the recommendation was clear. The then Attorney-General, Itzhak Zamir, disagrees. He considers the recommendation was not clear and that there is no ground for attributing such a motive to the Commission.

121 Observer, 1 February 2004, page 15; YOUGOV poll, Sunday Times, 1 February 2004.

122 See Bingham, Tom, The Business of Judging: Selected Essays and Speeches (Oxford, Oxford University Press, 2000) 64 CrossRefGoogle Scholar; Boyle, Kevin, Hadden, Tom and Hillyard, Paddy, Law and the State: The Case of Northern Ireland (London, Robertson, 1975) 125 Google Scholar; Watkins, Alan, New Statesman, 14 July 1972, p. 38 Google Scholar; Independent Magazine, 18 January 1992, p. 20 Google Scholar.

123 Taylor Inquiry into Hillsborough 1989 Cm 765; Stuart Smith Inquiry 1998 Cm 3878. See Scraton, Phil, “From Deceit to Disclosure: The Politics of Official Inquiries in the UK”, in Gilligan, George P. and Pratt, John, eds. Crime Truth and Justice: Official Inquiry, Discourse, Knowledge (Cullompton, Willan, 2003)Google Scholar.

124 The Guardian G2, 3 February 2004, p 9.

125 Leigh and Lustgarten, supra n. 73 at 723.

126 E.g. Salmon, supra n. 2 at 321-323. Cf. Nolan, (1999) Denning Law Journal 147, 153–155 Google Scholar.

127 Cmnd. 814 (1959). For the Government's response, see (1959) Cmnd. 815.

128 The Government's response is in its White Paper (1967) Cmnd. 3312.

129 The Ministers feared that there would be strong public opposition and detriment to trading interests.

130 Shetreet, Justice in Israel, supra n. 9 at 486; personal communication from Justice I. Zamir.

131 See Peters v. Davison [1999] 2 N.Z.L.R. 164 (C.A.).

132 258 HL Deb 835 (9 June 1964).

133 The Landau Commission's conclusion about the interrogation techniques permitted for suspected terrorists is an exception.

134 See 569 HL Deb., (26 February 1996) cols 1245 (Lord Lloyd of Berwick), 1269 (Lord Slynn of Hadley). For Lord Bingham's view see Makanjuola v. Commissioner of Police of the Metropolis [1992] 3 All E.R. 617, 623. Retired Law Lords also expressed their views, see 569 HL Deb., cols 1265 (Lord Simon of Glaisdale), 1298 (Lord Wilberforce). The Attorney-General's advice, which Sir Richard Scott criticised, had been based on a widely held view of the law based on several CA decisions which were overruled during the course of the Scott Inquiry by R. v. Chief Constable of the West Midlands, ex p. Wiley [1995] 1 A.C. 274 (H.L.(E)).

135 [2001] 2 A.C. 127 (H.L.(E.)).

136 Sunday Times, 1 February 2004, p. 2 Google Scholar; Dyer, Clare in The Guardian, 31 January 2004, p. 3 Google Scholar. See also The Observer, 1 February 2004: Richard Parks QC (“Hutton was unrealistic in the standard of responsible journalism he appears to set”); Anthony Scrivener QC (“he misunderstood completely media law and the law of defamation”) Cf. Caplin, JonathanQC, The Times, 29 January 2004 Google Scholar (“a disciplined careful and objective analysis of the evidence”).

137 Quoted by Gibb, Frances in The Times, 29 January 2004, p. 17 Google Scholar.

138 Woodhouse, Diana, “Matrix Churchill: A Case Study in Judicial Inquiries” (1997) 50(1) Parliamentary Affairs 24, 25 Google Scholar.

139 Sedley, Stephen, “Public Inquiries: A Cure or a Disease” (1989) 52 MLR 469, 473 CrossRefGoogle Scholar.

140 DCA CP 12/04 “Effective Inquiries”, para.82.

141 Accusations have been made against many persons, including former soldiers.

142 (1992) Cm. 2028–1, page 9.

143 DCA CP 12/04 paras 107–110. Sir Roy Beldam had reported in 2002 that rules “could potentially be of great assistance to inquiry chairmen” Annex C to CP 12/04, para. 18 and James Dingemans QC, Counsel to the Hutton Inquiry, is reported to believe that there could be many advantages in having an over-arching statute on inquiries, setting out what the legal powers of each inquiry would be but retaining the flexibility and the distinctions between statutory and non-statutory inquiries”: Times Newspaper Law Supplement, 25 May 2004 p. 5. For a succinct statement of the basic requirement for a public inquiry, see the Cory Collusion Inquiry Reports HC 470–473 1 April 2004.

144 (1992) Cm. 2028–1, pp. 8–9.

145 In particular Lord Howe of Aberavon QC. See [1996] PL 445; 569 HL Deb., cols 1267–1273 (26 February 1996).

146 See text supra n. 35–38 above. On the practical reasons for using a non-statutory inquiry, see supra n. 32.

147 Ian Rice, The Times, 16 March 2004.

148 The Times 26, May 2004, p. 29.

149 Woodhouse, supra n. 138, suggests this was so in the case of the report on Vehicle & General Insurance, HC 133 (1972). In the case of the Penrose Report on Equitable Life HC 290 (8 March 2004), the view that no compensation was payable because there was “a regulatory system failure” rather than “failure by the regulator or individuals” was seen as sheltering the FSA and the government: see The Times, 16–17 March 2004.

150 The Times, 5 February 2004.

151 See text supra n. 82 above.

152 Lord Woolf is reported as stating that in the future American-style non-judicial inquiries may be a better way of proceeding: Riddell, Mary, The Observer, 26 June 2004, p. 24 Google Scholar.

153 Friedmann, Daniel, To Kill and Take Possession: Law, Morality, and Society in Biblical Stories (Peabody, Mass., Hendrickson Pub. Inc., 2002) 11 Google Scholar.

154 Lord Morris of Aberavon QC 648 HL Deb. Col 883 (21 May 2003), discussing the Scarman and MacPherson inquiries.