Rarely has a senior judge been subjected to such contemptuous personal attack by public figures as in the articles by Lord Howe and Sir Bernard Ingham. But then, rarely has any judge probed so painfully into the dark recesses of agonisingly difficult policy-making in Whitehall. In the Spectator, Lord Howe derides the judge's "disposition to challenge convention, defy precedent" and his "tenacious enthusiasm for his own views". Sir Bernard says that the judge is not only wet but is "waterlogged".
Both critics contend that Scott has been unjust to ministers by not allowing them vocal legal representation, against precedent. This implies that assorted ministers are retarded inarticulate souls, unable to speak for themselves. Was the Attorney General Sir Nicholas Lyell - like Lord Howe, a QC - disadvantaged by his lack of legal representation? Poor dears. More generally, both attacks smoke with outrage at the arrogance of a mere judge prying into decisions of ministers and civil servants; that Scott was appointed by the Prime Minister to do it is not, it seems, of much relevance.
It is impossible to take Sir Bernard's assault wholly seriously: Ingham defending due process and complaining that a rather mild-mannered judge has been "astonishingly adversarial" is like the Princess of Wales lecturing the nation on "Least said, soonest mended."
Lord Howe is in a different category. His attack is detailed, dogged and long-standing. He couldn't confect anger he didn't feel if his life depended upon it. He is unlikely to have been put up to anything. But it is possible to be an honest critic of Scott and also a handy weapon in what is becoming a political battle, not one about judicial process. If there is any covert politics in Scott it's there, only more so, in Howe, Ingham and so on.
As soon as the report is published, the counter-attack will move from the pages of conservative newspapers to Westminster. Howe and Ingham are laying down the arguments to be picked up then by selected MPs, who will form a protected phalanx around any vulnerable-looking minister. By the time John Major is called upon to respond, Scott himself and his inquiry generally will have already been subjected to heavy rubbishing. Downing Street has been ringing around in an attempt to co-ordinate the response. For an example of the kind of operation we should expect, look no further than the co-ordinated response to Major's performance in the summer leadership contest, which killed speculation about whether his vote was a convincing one within five minutes of it being announced.
This time the objectives are two-fold. First, to prevent any ministerial resignation that would badly damage the Government just when the Conservatives are beginning to hope that their fortunes are on the turn. Second is the broader attempt to refute any suggestion that this administration is ruthless, high-handed or amoral. It is a fight about reputation, even honour.
If the judge really goes for Sir Nicholas Lyell and others we will see a competition between Conservative politicians and the judge for the public's verdict. The press will split on broadly left-right lines. So, with a few maverick exceptions, will the Commons. My guess is that the ministers will probably survive for much the same reason as Harriet Harman survived this week: the leader's backing will be absolute, on the "we all hang together or we all hang separately" principle.
But the wider political verdict will probably go the other way: it is easier for a judge to dishonour politicians than for politicians to dishonour a judge. And Conservatives need to be very careful about the tone of the operation on which they have embarked. If you are trying to persuade voters that you are not a ruthless or arrogant administration, then engaging in a ruthless or intemperate denigration of a judge you appointed doesn't seem a good way to go about it.Reuse content