An attempt to discredit the man who kept us all awake

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THE LEAKING to the BBC of bits of Lord Justice Scott's provisional report is only the latest instalment in the story of the attempt to discredit the learned judge's conclusions in advance of publication. This is not to say that the disclosures were brought about by the Government. Almost certainly they were not. But their effect has been to bring the garagistes of Westminster into a temporary alliance with the Sir Humphreys of Whitehall.

Previously the attack on Sir Richard Scott's inquiry had been led by the Foreign Office. The department's chief warrior was Lord Howe, who has no great love for the present administration but was once Foreign Secretary until he was rudely interrupted by Lady Thatcher. He has adopted a lofty tone. He too, he says, has experience of conducting inquiries. He is referring to his investigation in 1967-69 into malpractices at the Ely Hospital, Cardiff.

As a leading lawyer, he was appointed by the then Labour Health Minister, Kenneth Robinson, to conduct the inquiry. The department wanted to publish a censored version of his report. Lord Howe insisted on the complete works. Robinson's successor, Richard Crossman, supported him: though, as he records in his Diaries, for the perhaps ignoble reason that "if I published any less Geoffrey Howe would be entitled to go on television and talk about suppression".

Well done Geoffrey! But since then he has changed. He is no longer the fiery Welshman whom Elspeth first married, if he ever was. He has certainly become a convert to the mysteries-of-government school. This holds that there are certain matters, notably to do with the arms trade, which Sir Richard is ill-equipped to understand and about which the rest of us are not entitled to know. For myself, I have always doubted that our prosperity depends on selling quantities of lethal weapons to an assortment of Middle and Far Eastern despots who - assuming they are capable of using them without the assistance of government mercenaries - then promptly turn them on their own people, on adjoining tyrants or on our troops. This, however, is not the view of the estate agents and "consultants" of one sort or another who constitute the modern Conservative Party.

If there is one feeling which is stronger than their warm regard for the arms trade, it is their hatred of the BBC. Somehow the impression has been created that the reviled Corporation is in league with the cunning Sir Richard to discredit Tory ministers, notably Mr William Waldegrave. Mr Waldegrave has become, not exactly a hero of the backbenchers, but certainly a focus for their brute loyalty.

He could never be a hero to the modern Conservative Party, though he might have been a leader of the "Young England" movement in the 1840s. He is aristocratic, sensitive, intelligent and educated. Indeed, I once described him as having been educated out of his wits. The syllogism which he presented to Sir Richard provides some evidence of this condition. The "guidelines" on arms exports to Iraq, he said, could have been changed only if Parliament had first been informed. But Parliament had not been so informed. Therefore, he concluded, the guidelines could not have been changed. This may be the sort of thing which gets you a Fellowship of All Souls. But it does not on that account turn you into a liar. That seemed to be the general view. Once again, the matter was best put not by Dame Elaine Kellett-Bowman in the House but by Lady Bracknell in The Importance of Being Earnest: "Untruthful! My nephew Algernon? Impossible! He is an Oxonian." My feeling is that, whatever Sir Richard now concludes about Mr Waldegrave, it will be like yesterday's cold mashed potatoes.

In addition to the charge that he does not properly understand the mysteries of government, two others are made against Sir Richard. One is that he has adopted an improper or unfair procedure. The other is that he has exceeded his terms of reference, or "remit" as the civil servants say. I take the second accusation first. His terms of reference, published on 16 November 1992, are as follows:

"Having examined the facts in relation to the export from the UK of defence equipment and dual use goods to Iraq between December 1984 and August 1990 and the decisions reached on the export licence applications for such goods and the basis for them: to report on whether the relevant departments, agencies and responsible ministers operated in accordance with the policies of HMG; to examine and report on decisions taken by the prosecuting authority and by those signing public interest immunity certificates [Messrs Kenneth Clarke, Tristan Garel-Jones, Peter Lilley, Malcolm Rifkind and, reluctantly, Michael Heseltine] in R v Henderson [the Matrix Churchill case] and any other similar cases that he considers relevant to the issues of the inquiry; and to make recommendations."

As for the other accusation, in a debate on 23 November 1992, Mr Heseltine added that ministers would be "required" to give evidence and that officials had been "instructed" to co-operate. All government papers sought by Sir Richard would be provided. He alone would determine which matters were relevant and he would be able to "cover them all". He would have "unfettered discretion" about what to publish and about whether the inquiry should sit in public and, if so, to what extent. Moreover, Sir Richard had been told that if he felt "unable to obtain satisfactory attendance or answers" he was free to ask the Government to convert the inquiry into one under the Tribunals of Inquiry (Evidence) Act 1921. If he asked, the Government would agree to his request.

A tribunal established under the 1921 Act is always headed by a judge who is usually assisted by two other lawyers, though non-legal experts are sometimes chosen instead. It possesses all the powers of the High Court to compel witnesses, who may be and usually are represented by learned and expensive counsel. The establishment of such a tribunal is accordingly the occasion for bringing up the extra special vintage port in Lincoln's Inn and the Temple. Its proceedings are widely reported to begin with but, after a few days of legal droning, the papers lose interest, as they have already done in the Maxwell trial.

John Smith (which just shows you how long ago it all was) wanted a formal inquiry of this nature. Mr John Major refused, because the appointment of such a tribunal would render the whole arms-to-Iraq question sub judice in the House. The Scott inquiry does not produce this effect. But a 1921 Act tribunal would have suited the Government's purposes better not only for this reason - that it would have killed the arms question in the House - but because everyone would have gone to sleep long ago. Sir Richard has kept us all awake. That is his great merit. It is, however, his greatest sin in Conservative eyes. It is Mr Major's fault entirely. For it was he who set the whole thing up in the first place.

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