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Let the people decide

The farcical Hutton report will not restore public faith in the democratic process. One thing that might is introducing the jury system for future government inquiries.

March 1, 2004
7 min read

The Iraqi war and the inquiries it has inspired have exposed once again a crucial catch-22 conundrum of British democracy: the overmighty executive is able to force through largely unaccountable actions and policies that may fairly be described as “policy disasters” and which should be examined independently, impartially and convincingly; but whenever there are inquiries into those actions and policies, they are established, and their terms of reference set, by the self-same executive.

Thus the prime minister chose both Lord Hutton and former cabinet secretary Lord Butler to head the two Iraqi inquiries, and determined who would sit on Butler’s committee to investigate the intelligence that informed the decision to go to war. He did so with advice from officials and advisers who are well aware of where the interests of the government and state lie, and of how much the identities of the people who undertake inquiries shape the nature of reports. It was also Blair who set the terms of reference of the two inquiries, fixing the limits of both investigations into his and his government’s conduct.

True, in the case of the Butler inquiry Blair was obliged to negotiate the terms of reference with the leaders of the two major opposition parties. But in practice he had only to satisfy a marginal demand from Tory leader Michael Howard that still leaves vital issues untouched. These issues include the extent and import of communications with Washington, and the nature of the decision-making process that committed Britain to war. Why did Howard not demand more? Partly because his party backed the war in the first place; but also because, party political differences aside, both major parties see their interests as being tied up with defending those of the state.

Judges are often the first choice to head inquiries. Officially, this is because they are constitutionally independent of the executive and are said to be professionally skilled in hearing and assessing evidence. They may very well take a wide view of their responsibilities. Lord Scarman, for example, returned a sensitive and reform-minded report on the Brixton riots in 1981, and Sir Richard Scott outraged the establishment with his dissection of the government’s unscrupulous conduct over arms sales to Iraq and Iran in 1996. But generally judges can be relied upon to uphold the interests of the state and current government. Someone blundered over Scott, a principled man who was offended by the arrogant mendacity of our elected rulers and the secrecy in which they cloaked their actions. For the most part, however, the judiciary offers an ample choice of men with safe hands. The acme of judicial deference was the Widgery inquiry into the Bloody Sunday killings in Derry in 1972. The soldiers who shot 13 people dead in Derry were represented by one Brian Hutton QC.

Outside the judiciary prime ministers are spoilt for choice for candidates who can be relied upon to uphold the interests of the state. Government departments, for example, keep a vast repository of names in reserve for high-level appointments to state quangos like the BBC Board of Governors, the communications regulator Ofcom, the Health and Safety Executive, the Royal Opera House, the Government Hospitality Advisory Committee for the Purchase of Wine& It is not done to describe these people as “the great and good”, but that remains the animating principle of selection.

Former officials usually offer “a safe pair of hands”, as Blair will know from the inquiry headed by Treasury solicitor Sir Anthony Hammond into the cash-for-passports Hinduja affair. The inquiry by the former UK ambassador to Washington Lord Franks into the blunders that preceded the Argentinian invasion of the Falkland Islands has been widely mentioned as a model for Butler. It might be as well to recall Jim Callaghan’s lyrical description of Franks’s report. For 338 paragraphs, Franks painted a “splendid picture”, Callaghan said, but “when he got to paragraph 339 he got fed up with the whole canvas he was painting and chucked a bucket of whitewash over it”.

Butler’s conduct during the Scott inquiry suggests Blair has summoned a very safe pair of hands. Butler rowed with Scott on several occasions, especially over Scott’s refusal to accept his canons of secrecy. I have since heard Butler speak bitterly of his anger against a man who simply did not understand how government worked. Butler’s Cabinet Office deliberately delayed handing over papers that Scott had requested, and I am informed (single source only) that Scott was on the point of ordering in the police to gain access to documents. On one occasion, Scott rebuked Butler over the Cabinet Office’s failure to hand over the minute of a meeting between John Major and then trade minister Alan Clark to the prosecution of the Matrix Churchill directors caught up in the arms-to-Iraq affair. Scott said Butler had known for some time that what was said at the meeting was highly relevant to the wrongful prosecution of the engineering firm executives. In another exchange, Scott asked Butler to comment on the proposition that the “convenience of secrecy” protected government decision-making from being challenged. Butler replied frostily: “You can call that a matter of convenience if you like. I would call it a matter of being in the interests of good government.”

But it’s not always so easy to fool the public. The huge discrepancy between the response to Hutton at Westminster and public reaction was striking. In the Commons Blair claimed that he had been fully vindicated, and he triumphed over Howard. But opinion polls showed clearly that the public was unimpressed by Hutton’s conclusions. Are people going to be any more impressed by a second commission that sits in secret and fails to inquire into the issues that still animate public debate over the war?

Clearly not. I do not want to absolve the media from blame for their part in fostering an atmosphere of distrust of this government in particular and politics in general. The government has also badly damaged itself through its addiction to spin. But those who rail against the public for failing to turn out at election time, and who lament the effect of public distrust upon the fabric of democracy, ought to turn their attention to the quality of democracy on offer.

British government is damagingly secretive, and Blair’s Freedom of Information Act is designed to retain the “convenience of secrecy”. Parliament acts more as a buffer against the population on behalf of the executive than as the forum in which the government is held to account. As for state-appointed agencies and quangos, the government uses “merit”, code for membership of professional and managerial elites, to rebuff any advances of the hoi polloi.

Underlying the idea of merit is a refusal to accept what the common man or woman has to offer. Thus, for example, Lord Stevenson, the arch-crony who headed the commission to appoint “people’s peers”, defended his first elite batch on the grounds that he would not expect his hairdresser to sit in the second chamber. More fundamentally, the government has replied to a radical report on public appointments from the Public Administration Select Committee by stressing its commitment to the principle of merit and refusing to experiment further with choosing lay people by lot for service on quangos.

In the absence of strong Parliamentary scrutiny, here surely lies a sound alternative method for conducting public inquiries: with a judge or expert assessor sitting with a jury. The jury is one of the cornerstones of democratic supervision of justice in the UK. Instead of seeking to curtail juries, the government could make further use of them to strengthen and democratise public inquiries.

There is not so much respect for juries in more exalted quarters, however. I am in debt to Private Eye for revealing that Hutton, as the Ministry of Defence’s counsel at the Widgery inquiry, rebuked both the coroner – for observing that the army had effectively committed murder by shooting indiscriminately into the crowd on Bloody Sunday, and the jury – for returning an open verdict. “It is not for you or the jury to express such wide-ranging views,” he said, “particularly when a most eminent judge has spent 20 days hearing evidence and come to a very different conclusion.”Professor Stuart Weir is director of Democratic Audit, based at Essex University’s Human Rights Centre, and one of the authors of Democracy under Blair (Politico’s Publishing, 2002)

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