These days, judges rarely receive compliments. Much of society - including virtually the entire Blair government - seems to regard them in the way that truculent adolescents regard their parents: stuffy, out-of-date, unreasonable, interfering. Yet, as with such adolescents, there is an instant change of attitude when trouble strikes. Then, the parents/judges are expected to rush to the rescue.
A few years ago, there was an example in point: the Siamese twins from Malta. If those two little girls were not separated, they were probably both going to die. If there were an operation, one might live. But the surgeon's scalpel would be her sister's death knell. That dilemma was rushed to the Court of Appeal over Christmas.
Yet it is not clear why judges should have the sole say in such a case. What about the bishops? They would surely have the right to be heard, if only their moral concerns extended beyond sodomy. It could also have been argued that such a hard case would make impossible law, and that as the decision should hinge on ethics rather than on narrow legality, it was in the broadest sense political.
Oddly enough, no politician made that point. Indeed, there was almost universal silence. There seemed general, if tacit, gratitude that judges were available to be summoned from their Yuletide festivities to relieve everyone else of the problem and decide who should be quick, and who dead.
Lord Hutton has a lesser decision to take, though his findings could have a bearing on political mortality. However much they cavil about wigs and tights and titles, there is a lesson in all of this for the adolescents of the Blair government. Only a senior judge has the training, the impartiality and the prestige to preside over such an inquiry.
The intellectual apprenticeship is crucial. Judges resemble historians. They both have to address complicated, disputed events which happened almost simultaneously and have vastly complex interrelationships - and to turn them into a narrative whose sequential nature is inevitably artificial, yet is as near an approximation to the truth as is possible. Historians do this in the library. Lawyers have to convince judges and juries: a practical training for the scrutiny of current events.
The training is not only practical. Law, though a vital part of social cement, is also an intellectual abstraction. An enduring resource of principle, it is capable of endless adaptation to fresh circumstances. The English Common Law embodies that paradox. It owes its majesty to its suppleness: the old made new, every day in the courts.
But a proper lawyer will never lose sight of the general in the particular. His court-room life should have equipped him to turn law into justice, taking account of the mores of his age. His long march through the law-books should also have equipped him to resist fashion and to judge the events of his own time on principles which resist transient excitements.
That is the ideal. But it does not always work. There have been three recent judicial enquiries which went completely wrong. In the late 1980s, there were allegations of hideous child abuse against large numbers of parents in Cleveland. The counter-claim was that these charges had been got up by a coven of social workers and hysterical doctors, who hated men and the conventional family.
Lord Justice Butler-Sloss was asked to decide what happened. She failed. Her report was a hand-wringing document which did not resolve anything. Something abominable had happened in Cleveland. Either children had been buggered in industrial quantities or innocent families had been torn apart. Lord Justice Butler-Sloss merely meandered around the subject without venturing an opinion.
Then there was the Scott enquiry over arms to Iraq. Richard Scott was chosen to head it, because he was a Chancery judge with the reputation for gripping his cases, which often turned on the exact meaning of documents. He was also an enthusiastic fox-hunter. The assumption was he would cut to the chase. Had arms been sold to Iraq, had ministers lied: if so, what, when and who?
Instead, the judge produced a report of six volumes and 2,000 pages. It was a sprawling mess of inconclusion, in which he tried to produce his own theory of how government ought to work, while proving that he did not understand his subject.
Finally there was Lord Nolan, the most culpable of all. At the height of the Major government's problems over sleaze, he was asked to consider standards in public life. It might have been hoped that a Law Lord would resist the agitation of the hour. Lord Nolan did not. The prose was flaccid, the conclusions banal. In effect, his Lordship said that though there was no problem, he would propose solutions. He seemed more concerned to appease headline writers than establish the truth.
Butler-Sloss, Scott and Nolan were vitiated by defects of intellect, excess of vanity and failure of nerve. It is unlikely that Lord Hutton will imitate them. No one I have spoken to has a lot of information about his Lordship: even some of his judicial colleagues hardly seem to have got to know him. There is general agreement that he is a reserved fellow with a powerful mind, a profound sense of public service and a private twinkle.
Everything else is speculation. But Lord Hutton comes from Ulster. Irrespective of his own religious views, it is improbable that a man with an Ulster moral formation would be instinctively sympathetic to suicide. It seems more likely that Brian Hutton would insist that we were all under an obligation to bear our share of Atlas's burden and to shoulder our portion of the sky until the natural process of mortality releases us from duty. Merely because Dr Kelly chose to kill himself, Lord Hutton would not conclude that anyone else was to blame.
So the Blair government need not fear a guilty verdict in a sentimental spasm. Thereafter, matters become less clear. Lord Hutton is almost certain to begin by doing what Butler-Sloss, Scott and Nolan failed to do. He will establish the facts before he makes his judgement.
He will want to decide whether Dr Kelly was right to brief journalists as he did, and whether the journalists reported his remarks accurately. He will consider the question of the suicide dispassionately. He will also deal with the release of Dr Kelly's name. Was this legitimate self-defence on the part of a government embarrassed by a civil servant's abuse of procedure, or was it crude revenge by the Number 10 spin doctors?
The answers are still unclear. If I had to guess now, I would conclude that they will not be as damaging to the Blair government as its enemies are hoping. But there is one aspect of the whole affair which is jangling nerves in Downing Street. Lord Hutton will be a judicial Gradgrind: facts, facts, facts. The Blair government is in a position which it always dreaded. It is at the mercy of the unvarnished, unadulterated, unspun truth.Reuse content