He who gets to the microphone first will likely bluff it out

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The Independent Online
IN PRIVATE Mr Ian Lang is quiet and courteous. He possesses one of those refined Anglo-Scottish accents where sex is what the coal comes in. He is one of the most agreeable members of a government in which, admittedly, the competition for agreeability is not severe. He even has a sense of humour, for 30 years ago he was a scriptwriter for the "satirical" television programmes.

But on Thursday he came down to the House like a ravening beast from the hills. We all know he did not really mean it, any more than Mr Robin Cook truly expected Mr William Waldegrave and Sir Nicholas Lyell to resign. As Bonar Law said to H H Asquith in 1912: "I am afraid I shall have to show myself very vicious, Mr Asquith, this session. I hope you will understand."

The Government was trying to get its retaliation in first, as we realised it would. The phrase, by the way, comes from the late Carwyn James, the coach to the British Isles rugby team who beat New Zealand in 1971. It is now freely used by people who would be hard put to tell the difference between a rugby ball and a boiled egg. James, who liked Chekhov and gin- and-tonic, would have been pleased to be remembered in the dictionaries of quotation as well as in the record books.

But did it work? It is too early to say. The motto of Conservative governments of the recent past has been: who reaches the microphone first, wins. It was put into effect with Lord Franks' report on the Falklands and what went before. We heard it again six months ago, when a third of Conservative MPs refused to support Mr John Major, and yet his win was hailed as a famous victory because his campaign manager Lord Cranborne saw to it that assorted ministers rushed to the cameras to proclaim it as such.

Sir Richard Scott's report is more like the Franks report. Those people who might have been expected to take an interest could not be bothered. They were bored. We had won the war, and there was really no point in going on about what had happened before it started.

And yet Sir Richard's report is not quite like this either. It deals with what future historians will, I think, consider one of the most squalid periods of recent times, when money-making was all, and to sell arms to oppressive regimes - the more oppressive, it sometimes seemed, the better - was a patriotic duty.

The government of the day both encouraged and made perfunctory efforts to control this trade. Within the government, different departments had different attitudes: Trade and Industry taking the view that, with armaments, the more the merrier; the Foreign Office being cautious; Defence entering reservations; Customs prowling the fringes, keen to bring malefactors to account.

Anyone who has had to deal with HM Customs and Excise on a regular basis (as I have over VAT) will know that they regard themselves as an independent force in the state. They do not see themselves as dealing with law-abiding citizens but, rather, as 18th-century excisemen hurtling down the Portsmouth Road in pursuit of brandy smugglers. By comparison the Inland Revenue resembles a gathering at All Souls College, Oxford.

This conveniently brings us to Mr Waldegrave, a Fellow of that institution. In 1991 I described him as having been educated out of his wits and, in succeeding years, have seen no cause to modify this opinion. It has, if anything, been fortified. I am glad to see that Sir Richard confirms it. For that can be the only interpretation of his verdict on Mr Waldegrave, which was that he did not know what he was doing - could plead not guilty on account of diminished responsibility.

Thus Parliament was misled about the changes in the guidelines. Mr Waldegrave, Mr Alan Clark and Lord Trefgarne agreed together - I should say conspired, though Sir Richard does not - to ensure that Parliament was misled. That was the object of their endeavours. And yet, according to Sir Richard, Mr Waldegrave was not being "duplicitous": a horrible word, used by General Al Haig of Lord Carrington. I am surprised that Sir Richard, an enthusiast for P G Wodehouse, should want to employ it. If Mr Waldegrave was not being duplicitous, I do not know what he was being. The sole defence is insanity.

At the heart of the Scott report is a terrible, black hole, where the rule of law is suspended. Sir Richard deals with this aspect of the affair frankly but uneasily. He is not nearly so comprehensive on the legal basis of the guidelines as he is on the legal authority, or lack of it, for Sir Nicholas's instructions to ministers on the signing of Public Interest Immunity Certificates. For the guidelines were laid down under a 1939 Act which was passed when we went to war with Germany. It could plausibly be argued that it had fallen into desuetude. It was certainly being used for a purpose for which it had not been intended. Moreover, the guidelines could be changed or abolished altogether by ministerial fiat, without the authorisation of Parliament or even the need to inform Parliament at all.

This was the law or, if you like, the non-law under which Mr Paul Henderson and his fellow directors were prosecuted. But, if it was indeed the law, no minister could authorise anyone to break it. Certainly Mr Clark did not possess any such authority. As Lord Parker of Waddington put it in a 1916 case: "The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by courts ... in this country is out of harmony with the principles of our constitution."

Mr Henderson and his colleagues could not have been "innocent" simply because Mr Clark, as Her Majesty's minister, gave them a nod and a wink, as he did. After all, we chopped off the head of one king, Charles I, and expelled another, James II, precisely to establish this and similar principles. The Matrix Churchill directors were old-fashioned arms dealers - merchants of death, as they used to be called in the People's Party - whose firm was owned by the Iraqi government; no doubt bringing valuable employment to Coventry; but unlikely heroes none the less of the liberal press.

This is not to say that they should have been prosecuted. Nor is it an explanation of why the Attorney, Sir Nicholas, omitted to enter a nolle prosequi as he did in the "Supergun" case. The character of the Matrix Churchill directors is certainly no defence to the Attorney's instructions to ministers to sign the PIIs. After much learned argument, Sir Richard concludes that Sir Nicholas was wholly wrong in law. He also says that Sir Nicholas was at fault in not passing on Mr Michael Heseltine's reservations to the trial judge. Sir Nicholas simply refuses to accept Sir Richard's conclusions. "That was the law at the time," he says, which Sir Richard denies. "I believe my advice was correct." Like Mr Waldegrave, the Attorney hopes - with so far only Mr Richard Shepherd and Mr Rupert Allason unsteady on parade - to brazen it out.