The inquiry's terms of reference were announced by the Prime Minister last November and cover the export of arms (such as Supergun) and of dual-use technology to Iraq (such as machine tools), the information made public and given to Parliament, and the conduct of the Matrix Churchill case.
One significant omission is the lack of any explicit reference to the security and intelligence agencies - both MI5 and MI6 had informers at Matrix Churchill. Without such evidence it will be hard to find out how much the Government knew. Any investigation of the role of the intelligence services, however, will
be hard to divorce from questions about the control and accountability of these agencies.
After years in which the Thatcher administration refused any form of external inquiry into such matters, there may never be a better opportunity to throw open the shutters and, as happened long ago in the United States, Canada and Australia, allow outside scrutiny.
A second cause for concern is that the inquiry will report to the Department of Trade and Industry. The DTI may be the lead department for the granting of export licences but responsibility is spread throughout Whitehall. Many of the fateful decisions were taken by an interdepartmental committee of ministers, including ministers from the Foreign Office and the Ministry of Defence, Various ministers, including the Prime Minister and his predecessor, gave - at best - highly selective responses to parliamentary questions about exports to Iraq. The Attorney General advised on the Matrix Churchill prosecution, and the Home Secretary, Foreign Secretary and ultimately the Prime Minister are responsible for the intelligence and security agencies.
This is much more of a collective affair than scandals such as Westland or Profumo, worth emphasising because of early attempts by the Government to shift blame on to a single individual, Alan Clark, the former trade and defence procurement minister.
The actual form of the Scott inquiry has also occasioned controversy. The Opposition wanted it to be established under the Tribunals of Inquiry Act 1921, so that it would have statutory powers to subpoena evidence. Although the Prime Minister made clear that serving ministers and civil servants would be required to give evidence, his statements left in doubt the position of former ministers and previous agency heads.
Lord Justice Scott has made clear that he has issued 'invitations' to former ministers. There can be little doubt that they will be accepted, if only because the Government is publicly committed to giving his Lordship statutory powers if he requests them. Lord Ridley, though, is beyond the reach of any summons. His potentially useful testimony died with him.
Does it matter, then, that the inquiry is non-statutory? Although 1921 Act tribunals were the normal means of investigating allegations of scandal against politicians and public officials for much of this century, the procedure has fallen into disuse. The Salmon Commission recommended in 1966 that such tribunals should be reserved for times when there was a national crisis of confidence; they were appropriate where the conduct of ministers was impugned. It would be hard to identify a more suitable candidate for this treatment than Matrix Churchill.
However, there were several disadvantages in the procedure that may have persuaded the Government not to use it. The first is that a tribunal under the 1921 Act would have invoked the parliamentary sub judice rule and thus stifled parliamentary discussion further.
The decision not to evade parliamentary discussion in this way should not be regarded as too laudable, however, because since the announcement of the inquiry, ministers have given information strictly on their own terms; they have refused to answer a number of parliamentary questions or to make available to MPs intelligence reports released at the trial, arguing that the relevant material would be the subject of the Scott inquiry.
A second disadvantage is that because witnesses are compelled to answer before a statutory tribunal, they are customarily given immunity against subsequent criminal proceedings for any self-incriminating testimony. At best, ministers may have been mindful of the investigation into statements by Mr Clark, and been anxious not to prejudice any possible prosecution for perjury (although the Director of Public Prosecutions has now decided that prosecution is impossible, as she could not decide which of Mr Clark's apparently contradictory statements may have been false). The inquiry's lack of statutory powers means, however, that evidence will not be taken on oath.
A further disadvantage of a statutory tribunal that has not been emphasised by the Government is the embarrassment it would have caused to the Attorney General. In the past the Attorney General has acted as counsel to a 1921 Act tribunal, or at least appointed counsel. On occasion, this has put the Attorney General in the position of cross-examining his ministerial colleagues. Here, he would plainly have had to refuse. On this occasion, an independent counsel has been appointed.
In eschewing the statutory format and appointing a single judge with discretion to inquire in his own way into a matter vital to the Government's survival, the Prime Minister has followed the example of Harold Macmillan 30 years ago, when he appointed Lord Denning to investigate the Profumo affair.
Lord Justice Scott's approach will be quite different, however. Britain may still lack freedom of information legislation, but a one-man investigation behind closed doors in Whitehall will not satisfy public or parliamentary opinion and Lord Justice Scott has rightly decided on a presumption of open testimony.
Nor can his credentials for impartiality be faulted. This is the same judge who was first to break ranks and decide robustly against the Government during the Spycatcher litigation.
It may be true that inquiries, like committees, 'take minutes and last years', but if delay was a motive in establishing the Scott inquiry, the benefit is likely to be outweighed by the spectacle of a government facing prolonged embarrassment as the public hearing continues. Who cannot relish forthcoming delights, such as the examination of Baroness Thatcher, now to appear before a forum of a kind we may assume she would never have established? It may not be televised live, but the coverage could have much the same impact in Britain as that of the Tower inquiry into the arms for hostages affair in the United States.
The author is a member of the faculty of law, University of Newcastle upon Tyne.
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