An inquiry that need never have happened

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The Independent Online

The odd thing about Lord Hutton's inquiry is that, as my colleague Steve Richards has pointed out already, it need not have happened at all. The legal requirements would have been satisfied by a coroner's inquest into the death of Dr David Kelly. It is arguable that the political requirements would have been satisfied as well. We do not know whether they would or not because we were given no time to find out.

Hardly had an understandably haggard Mr Tony Blair descended from the aeroplane bearing him from Washington to the Far East when we were informed that there would be a judicial inquiry into Dr Kelly's death. We were told further who would be conducting it. It had all, it appeared, been arranged by the present Minister for Constitutional Affairs, Lord Falconer.

If so, the inquiry had been set up with a speed which belied the minister's relaxed appearance. But then, that is often the way with those who are built on generous lines. Lord Hutton has a keener aspect, like that of a whippet picking up a scent. He too acted quickly in agreeing to the proposal at all: for, as we have been told often enough, there was nothing in it for him, except the prospect of fame and the satisfaction of having done his duty.

But there was no need for Mr Blair, whether acting through Lord Falconer or through other intermediaries, to ask anyone. There would have been calls, most powerfully from the representatives of liberal opinion and from members of his own side, for an inquiry into the war against Iraq. That is something else. They were already being heard then, as they are today, and Mr Blair ignored them, as he continues to do.

Harold Macmillan and, later, Margaret Thatcher rejected the calls for an inquiry into the Suez operation; as, indeed, did the Labour Prime Ministers who came between them. Lady Thatcher, however, appointed Lord Franks to investigate the origins of the Falklands war. Mr Blair shows every sign of continuing to follow the former precedent. There is no political reason for him to do anything else except sit tight.

There was even less reason for him to have an inquiry into Dr Kelly's death, whether by Lord Hutton or anyone else. There was no pressure on him from the Conservatives. Though the learned judge's inquiry is into the death rather than the war, the Tories' support for the war (undimmed to this day) makes their assault on Mr Blair appear an afterthought. True, Mr Michael Howard succeeded in embarrassing him at consecutive sessions of Prime Minister's Questions about whether he had "lied" over his role in the naming of Dr Kelly. But having played this trick several times, he cannot very well play it again, whatever Lord Hutton may tell us later this week. Certainly Mr Howard's third attempt at a punch at the bag last Wednesday fell on the short side.

In his report on tribunals - what a very English device, a tribunal on tribunals! - Lord Salmon, another Law Lord, wrote that one of the objects of such inquiries was reassurance, the restoration of public confidence. Strictly, the late judge was looking into investigations under the Tribunals of Inquiry (Evidence) Act 1921. These solemn occasions, which often go on for years, are quite rare. The inquiry into the killings at Londonderry is a case in point. Their chief characteristic is that witnesses are on oath and can be sent to jail for refusing to answer questions. Then there are royal commissions. Most investigations set up by government are departmental inquiries of one sort or another.

I have yet to understand why the investigation into money in politics, say, was a departmental inquiry under Lord Neill rather than a royal commission under the same chairman - or the investigation into the murder of Stephen Lawrence a departmental inquiry under Sir William Macpherson rather than a 1921 tribunal under him or another judicial authority. Examples could be multiplied. The choice seems more or less arbitrary; except that royal commissions are general, and inquiries under the 1921 Act specific, and that both are considered more weighty than mere departmental inquires such as Lord Jenkins's investigation into the electoral system (and if I had been in Roy's place I should have broken off relations with Mr Blair after that).

Governments also make use of judges in other ways. Lord Radcliffe presided behind closed doors with two privy councillors, Emanuel Shinwell and Selwyn Lloyd, to look into the D-Notice affair in 1967. They found against Harold Wilson, who responded by producing a White Paper rejecting Radcliffe's findings and whipping a Commons vote which rejected them too.

Four years earlier Lord Denning had sat alone and in private to investigate the Profumo affair. His report does not seem to me to be a "whitewash", as some now say it was, even though it was less than frank in explaining the role of the security services in bringing the erring, imprudent or merely unfortunate parties together in the first place. Perhaps Lord Denning did not know about it. What is evident, however, is that neither the report nor the occasion for it "brought down" Macmillan or his government, as is frequently asserted today. Macmillan resigned for other reasons, and his government continued more or less merrily on its way until the 1964 election under Alec Douglas-Home.

Lord (then Lord Justice) Scott also sat singly to look into the export of arms to Iraq. That inquiry was public. Two ministers, William Waldegrave and Alan Clark - one manifestly, even consciously virtuous, the other self-regardingly Mephistophelean - emerged looking as if they could play no part in an advertisement for washing-powder. Or, if they did, it would be for the picture showing them before rather than after; or, perhaps, as having neglected to use the powder in question at all. The principal effect of Lord Scott's inquiry was to consolidate or even to crown the parliamentary reputation of Mr Robin Cook. Even so, the government was not hurt much. The same rule could be observed in action when Mr John Major defeated Mr John Redwood for the leadership of their party in 1995: who gets to the microphone first, wins.

There is no reason to suppose the same will not apply to Lord Hutton's report. It will, however, tell us much we did not know before about the workings of government. The evidence alone does this. Not only is government conducted more informally than we had imagined - all coffee mugs, sofas, shirtsleeves and malice: what is more surprising is that this very lack of formality is preserved by technology rather than destroyed by it. What is more surprising still is that Lord Hutton has been able to find out about it. The only reassuring aspect of his inquiry is that it was set up in the first place, when Mr Blair did not have to do anything of the kind.