Anthony Scrivener: Of politics and process

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Now that the Hutton inquiry is under way, those who pressed for a judicial inquiry into the reasons for war with Iraq will feel vindicated. Frankly, the Foreign Affairs Select Committee, which was supposed to investigate the case, never stood a chance.

The task of judging the accuracy of information put out by the Government to justify the war with Iraq was far too tricky to be handled with any credibility by a committee of MPs, some of whom seemed dangerously supine. However hard the members cautiously strove to demonstrate their independence, few believed they had cast their political allegiances to one side and taken on the mantle of a judge.

Too often it was the questioner who attracted the attention rather than the witness. Each member asked a flurry of questions, often with no overall plan and each with his own agenda. The result was a forensic shambles - hardly surprising given that the members were not skilled advocates.

In the mêlée of questions no one seems even to have asked what Alastair Campbell, as Labour Party spin doctor, was doing chairing a committee that involved intelligence and military strategy. Since he could not count either of these topics among his areas of expertise, what was he supposed to bring to the task in hand other than his proven ability to spin and gloss the truth?

Confidence in the select committee was not enhanced in the eyes of the public by arranging a hearing when most of the opposition members were not available. Matters were not improved when Labour members of the committee broke off in the middle of the inquiry to have a go at Mr Gilligan's integrity as a witness. So far we have not witnessed a similar outburst from Lord Hutton and I can confidently predict there will not be one. A judge will weigh up all the evidence before condemning any witness - that is ordinary fairness.

The obvious partisan behaviour of the members of the Foreign Affairs Select Committee cast a shadow over their proceedings. There was also a lack of courtesy and a sense that witnesses were unable to say all they wanted to say, with the exception of Mr Campbell, who appeared to be running the show while he was a witness.

The Hutton inquiry began with a great advantage: no one except the lawyers had ever heard of Lord Hutton. He is one of those anonymous members of the judiciary who has never courted any form of publicity, whose political views (if any) are entirely unknown and who has spent a lifetime weighing up evidence, sifting through mountains of documents and arriving at judgments that are entirely independent, and based on the evidence.

The procedure before a parliamentary select committee is inquisitorial, albeit with each member being an inquisitor. It would be inaccurate to describe the Hutton inquiry as inquisitorial. Rather, it is an adversarial procedure.

The Hutton inquiry is following a well-tried course, which has been adopted on many previous occasions, for example in the Lawrence inquiry, the inquiries conducted by Lord Scarman and the recent railway inquiries conducted by Lord Cullen. They are rather better prepared and resourced than the free-for-all before the parliamentary select committee.

At the centre of the judicial inquiry is counsel to the inquiry, backed by a small secretariat. Through discussions with the chair of the inquiry, counsel to the inquiry identifies all the relevant witnesses from whom statements need to be taken and all the relevant documents. He then conducts the questioning of witnesses.

Counsel to the inquiry is impartial and questions witnesses to discover the truth. That does not mean he does not give a witness a hard time in cross-examination, deploying his skill and experience as an advocate.

Counsel for other interested parties are then entitled to cross-examine witnesses. Often the chair of the inquiry will expect the advocate to give an advance indication of the time he needs for cross-examination, and it is expected that time will not be exceeded.

Lord Hutton may have occasionally to make a ruling on evidence or keep the advocate to relevant matters but in general he can sit and listen to the evidence while counsel to the inquiry asks the questions. The inquiry has all the form of a courtroom hearing.

But there are serious limitations on the inquiry's powers which may yet prove significant. It has been deliberately set up so that the chairman cannot compel witnesses to give evidence or require documents to be produced. The Iraq dossier's assertion that chemical weapons could be deployed within 45 minutes was highly contentious, yet was approved by the Joint Intelligence Committee. Contemporaneous documents such as memos, minutes, notes and earlier drafts would have a bearing on this yet could still be withheld.

The inquiry must remain on alert for missing documents and witnesses, and the question remains as to why it was set up in this way. It would have been simple to have applied the Tribunals of Inquiry (Evidence) Act 1921 to the inquiry to give those powers but someone decided not to do so.

It is perfectly understandable that there should be no television coverage of the Kelly family giving evidence, but it is difficult to see why the rest of the proceedings should not be televised. There is no better way of winning the confidence of the public in the judicial system than by allowing them to witness it in action.

But even without the cameras, the Hutton inquiry can do us a valuable service. It can get to the bottom of one of the more remarkable aspects of the whole Iraq affair: what was Mr Campbell doing chairing a committee on military strategy?

Anthony Scrivener QC is a former chairman of the Bar Council