There are two problems that the Scott inquiry faces. The first is that those against whom allegations are made will be unable to check the evidence brought against them by cross-examination and to rebut it. This may not perhaps matter too much with ministers who can, after all, put their case to Parliament. But it does matter with civil servants who cannot publicly reply to what may be ill-founded allegations made against them. Already a number of ministers and ex-ministers, including Baroness Thatcher, have sought to transfer the blame for arms sales to Iraq to civil servants who, according to Lady Thatcher, failed to inform her of what was happening.
The Clark Report into Crichel Down in 1954, not referred to by Mr Gould, and now widely regarded as vitiated by serious mistakes both of fact and of law, attacked the integrity of civil servants who could not make public their side of the case, and whose careers were, in consequence, ruined. It is to be hoped that Lord Justice Scott does not similarly expose officials to vilification. Under our system of government, it is politicians, not officials, who must accept the responsibility when things go wrong.
The second difficulty with the method of inquiry chosen by the Government is that, as Lord Howe suggests, a single judge is being required to act as 'detective, inquisitor, advocate and judge'. Libertarians rightly object to the Diplock courts in Northern Ireland, whereby trials take place before a single judge sitting without a jury. But in Northern Ireland there is at least an extended right of appeal against conviction. There will be no such right of appeal against Lord Justice Scott, who, however eminent, cannot be infallible, a truth recognised in the French saying, 'juge unique, c'est juge inique'.
It was for these reasons that the Salmon Commission in 1966 pronounced that 'No Government in the future should ever in any circumstances whatsoever set up a Tribunal of the type adopted in the Profumo case to investigate any matter causing nationwide public concern', since with such an inquiry, it was 'extremely difficult if not practically impossible' to discover the truth.
It is difficult to understand why the Government ignored such an unequivocal statement when it decided to set up the Scott inquiry. John Major did at least indicate that, if Lord Justice Scott found his powers inadequate, the Government would be willing to convert the inquiry into a statutory one. It is a pity that Lord Justice Scott has not taken advantage of this offer.
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