The curse of Bloody Sunday hangs over the Chilcot inquiry into the Iraq war and the removal of Saddam Hussein. About £200m spent, lawyers in every cranny, a very demanding judge, a methodological behemoth – these are the spectre of the Bloody Sunday inquiry behind the entirely different Chilcot structure. In the Iraq inquiry, amid a media free-for-all on live television, there is no legal representation, no cross-examination by expert advocates trained to expose humbug, prick egos and draw out the truth.
There is no doubting the distinction of the inquiry members. Two are notable retired mandarins, two leading academic historians (one a professor of war studies) and a respected independent public servant: they may well be an appropriate replacement for judges in the particular circumstances. However, there are real questions about the form of their inquiry, the confidence in its outcome and whether – with so much of the meatiest evidence to be heard in camera – it will provide the cathartic and definitive closure required for so important and historic an issue.
A mark of the reservations held about the inquiry is implicit in the decision of Tony Blair to reveal not to Chilcot but to Fern Britton broadcast on BBC1 today that he would have regarded regime change in Iraq as justifiable anyway, even had there been no intelligence of weapons of mass destruction at the time when he told Parliament that they could be deployed in 45 minutes. Mr Blair recognised that different arguments would have been deployed, in a debate I believe he almost certainly would have lost in Cabinet, despite his pre-eminence at the time. Had he gone down that road, I have no doubt that his intellectually rigorous attorney general Lord Goldsmith QC would have resigned in what would have become a sore and open discussion of the war's legality.
My reservations about Chilcot are reinforced by Liberal Democrat leader Nick Clegg's successful ambush of the current Prime Minister at Prime Minster's Questions on 25 November. Mr Clegg exposed nine separate protocols, none plainly or immediately available via the inquiry's website. Obviously current national security must be protected; however, the protocols give the Government, civil servants, and potentially even witnesses, nine separate grounds on which to block the publication of documents which may refer to past national security issues with no current damage. The rules on the release of information were agreed between the Government and Sir John Chilcot; I doubt if they would have been agreed by a judicial inquiry.
Since 24 November a succession of key figures has given evidence to the inquiry. Sir Christopher Meyer, a large ego in full flight, given to the heady memoir, played an early starring role. His portrayal of events must have infuriated Mr Blair. The presence of the likes of James Dingemans QC, who questioned witnesses to great effect for the Hutton inquiry, would have enabled Chilcot and his colleagues to explore Sir Christopher's accuracy and views with precision, not so much in defence of Mr Blair as to ensure the emergence of a full and fair picture. In the chattering worlds of political and legal London, I have heard it said repeatedly that the presence of at least one team of advocates, serving the inquiry, would instil currently absent confidence. Many have commented that Sir David Manning gave evidence with dignity, confidence, and the hallmarks of credibility; others have undermined that view by asserting that cross-examination would have left a different impression. The discreet and measured former MI6 chief Sir John Scarlett probably would have welcomed forensic probing as a process at least of ensuring that the inquiry's range was complete.
The absence of real forensic questioning at any stage in the inquiry raises another problem. Nobody is accused of crime before it, so the fair trial requirements of the European Convention on Human Rights are not engaged directly. However, there is at least the possibility that it may be concluded that crimes were committed – perhaps nothing as dramatic as war crimes, but conceivably serious offences such as misfeasance in a public office; or significant non-criminal acts, such as contempt of Parliament; or professionally accountable misconduct. It is unacceptable that such conclusions should be even available without giving the objects of such serious criticism the opportunity both to have their main accusers cross-examined and to have submissions made on their behalf with equality of arms, ie in public before the inquiry.
I do not doubt the integrity and intentions of the Chilcot inquiry and its small team of advisers. However, it is highly questionable whether they should have accepted their task on the current terms. A methodology could have been devised which would have permitted acceptable scrutiny and submissions, without turning it into a Bloody Sunday. There is a real danger that the result will be seen either as unfair (if heavily critical of significant individuals), or insufficiently rigorous (if not). It will certainly be seen as lacking anything approaching a form of due process.
Witnesses who show restraint and caution may stand accused of fudge; those who expand will be castigated for strutting and fretting upon the very public stage provided. Whatever Tony Blair's merits or demerits were as prime minister of the time, that he was. That he is an easy target and possibly in a no-win position hardly needs to be said, but that the most important public inquiry so far this century should not afford the then prime minister an entirely fair process is a matter of concern and regret. No wonder he appears to regard Fern Britton on BBC1 as an appropriate proxy for the inquiry.
Despite the substantial loss of life on all sides in the Iraq war, and its rumbling consequences, the public may be losing interest in the issues subject to the Chilcot process. Nevertheless, even if not electorally crucial, those issues remain critical in terms of history and political accountability. I fear that we may never achieve the sense of closure and completeness that would have been provided by a more legally energetic and compliant form of inquiry.
Lord Carlile of Berriew QC is the Government's independent reviewer of terrorism laws