Further, it is made quite clear in the published rules of procedure governing the inquiry that any individual whose conduct will be the subject of adverse comment in the report is to be given a chance to offer critical comments on a draft version. Taken together, these practices provide more than sufficient protection for those whose conduct is called into question.
Dr Bogdanor's concern for the position of civil servants is understandable, but in this instance misguided. Their position is very different from that which was obtained 40 years ago in relation to Crichel Down. There have been major constitutional changes in the status of civil servants, which may, in some respects, be regrettable but in this context make for greater fairness. The convention of the anonymity of civil servants is largely defunct, as televised select committee hearings, among many other things, make apparent. And the rules governing what may be said before select committees have been waived for the inquiry, giving civil servants greater protection. A number have given testimony and have had the opportunity to contradict publicly ministerial or other evidence which they believe contains ill-founded allegations. The Cabinet Secretary has stated that no one will be disciplined or suffer in the advancement of their careers for any evidence given to the inquiry. Assuming this promise may be relied upon, fears that civil servants will be scapegoated without adequate right of reply seem groundless.
Comments by Lord Howe and others are apt to leave a misleading impression about the procedures which have been adopted. Contrary to a widespread impression, the inquiry has been largely conducted on the papers. Oral testimony, though it obviously commands the greatest public attention, is in fact a relatively minor adjunct to the written material. And all witnesses have received a written questionnaire prior to their appearance - there is no question of surprise or other unfair tactics.
As to whether the inquiry should have been placed on a statutory footing, there are significant reasons for not doing so. Perhaps the most important is that inquiries under the 1921 Act are covered by the sub judice rule. This would have choked off parliamentary discussion of the issues from November 1992 for a period of at least a year and a half, which cannot be in the public interest. It might also have led the press to shy away from critical comment, whatever the technical scope of the rule, and consequently caused the issues involved to fall from public view. Since those issues go to the heart of the responsibility and integrity of government, this is not in the public interest either. This is one instance, at least, where the Government has done the right thing.
School of Law
University of Warwick