Major asked the question; now he's got the answer They cannot complain that this is a probe too far

THE origins of Sir Richard Scott's inquiry now lie in that darkest of dark ages, the day before yesterday, when Mr Norman Lamont was Chancellor and John Smith Leader of the Opposition. The matters into which Sir Richard has been inquiring go back even further, to the days when Lady Thatcher was Prime Minister and Lord Howe Foreign Secretary. But many of the politicians concerned are with us still: Mr William Waldegrave, who may have misled the House; Sir Nicholas Lyell, who certainly instructed ministers to sign public interest immunity certificates in the Matrix Churchill case; and, of those ministers, Mr Kenneth Clarke (who on Question Time promised to resign if he was criticised by Sir Richard), Mr Michael Heseltine, Mr Peter Lilley and Mr Malcolm Rifkind.

Sir Richard's inquiry was set up shortly after the collapse of that case. It was brought about partly by Mr Alan Clark's evidence, but mainly by Judge Brian Smedley's unusual course of refusing to accept at face value the ministers' certificates, which would have excluded evidence favourable to the defence. He insisted instead on examining the documents for himself and admitted them, so bringing about the defendants' acquittal.

The inquiry was announced not by the Prime Minister but by the Attorney. On 10 November 1992 Sir Nicholas told the House that the case raised important questions about the operation of export licensing. The Government would ensure that a full and independent inquiry was undertaken by a judge. Lord Justice Scott had agreed to perform the task.

The question of ministerial certificates could also be examined by Sir Richard. He would be able to look into all aspects of the matter and invite such witnesses as he thought fit to appear. It would be for him to decide the extent to which he sat in public. The procedure of the inquiry was "to a considerable extent" for Sir Richard. "There could be no better way of examining whether ministerial responsibility should be pinned in any particular area than to have a detailed and independent inquiry." That was what Sir Nicholas said.

On 16 November 1992 Mr John Major announced in a Written Answer the inquiry's terms of reference: to examine the facts about export licensing and report on whether the relevant departments, agencies and ministers had operated in accordance with the policies of HMG; to examine and report on decisions taken by the prosecuting authority and those signing public interest immunity certificates in the Matrix Churchill case and any other similar cases; and to make recommendations.

Mr Major added that the terms of reference had not been restricted to Matrix Churchill. They included the "supergun" and other defence or dual- use sales. They related not only to arms questions but to decisions taken on the prosecution of companies and on public interest immunity. All ministers who were called would give evidence; all civil servants who were summoned would be instructed to co-operate; all papers for which the inquiry asked would be made available. Sir Richard would "be entirely free to decide on the publication of his report" - a promise that does not seem to have been fully kept.

Next day Mr Major said at Prime Minister's Questions that John Smith was "well aware" that the Government had "set out the most wide-ranging terms of inquiry possible - far more wide-ranging than most people imagined". So the Government had. It was a fair boast. But Smith, Mr Robin Cook and, for the Liberal Democrats, Mr Menzies Campbell wanted an inquiry under the Tribunals of Inquiry (Evidence) Act 1921.

In the world of committees, tribunals and inquiries in our polity - largely lost under Lady Thatcher, revived by Mr Major - a 1921 Act tribunal is the Rolls-Royce or, if you prefer, the king-sized mixed grill with extra chips. It is presided over by a judge, flanked usually by two other lawyers of almost equal eminence. It possesses all the powers of the High Court and can send you down before breakfast if the mood takes it; as, indeed, it did when two journalists were imprisoned for refusing to answer questions before Lord Radcliffe's Vassall Tribunal in 1962.

It was the element of solemnity combined with the compellability of witnesses which attracted the opposition politicians. They thought Mr Major had wrong-footed them: so they upped the stakes by calling on him to provide something he did not want to deliver. The only reason given for his reluctance was that appearance before a 1921 Act tribunal conferred immunity from prosecution.

But, paradoxically, the setting up of a 1921 Act tribunal might have led to what Lord Howe, Mr Douglas Hurd and Sir Bernard Ingham are now retrospectively demanding: that witnesses before Sir Richard should have been allowed legal representation. In 1966 Lord Salmon chaired a Royal Commission on 1921 Act tribunals. He produced six recommendations, two of which advocated legal representation for witnesses before such bodies. These recommendations have not been turned into law, and the practice since Salmon has varied.

Salmon also stated that no inquiry conducted by a single judge, such as Lord Denning into the Profumo affair, should ever be held again. But it is mistaken to think he eliminated single-judge inquiries completely. He did not. His objections to Denning were its secrecy and its having been held at all: "It is no part of the duty of government to satisfy idle curiosity about scandalous gossip."

Sir Richard did not think he was exempt from considering legal representation simply because his inquiry was not set up under the 1921 Act. As he explained in a lecture on 2 May 1995, he rejected it because of time-wasting by barristers. He rejected it also because he thought Salmon was wrong in trying to turn an investigation, which is of its nature inquisitorial, into an adversarial trial, which has two contending parties. The real argument is not between Sir Richard and Lord Howe but between him and Lord Salmon, who has now gone to meet an even more eminent judge.

In 1948 there was a tribunal on corruption among Labour ministers and others. Lord Shawcross was much harsher to his witnesses than Ms Presiley Baxendale, the giggler with the knife, was to hers. The chairman was Mr Justice Lynskey. An older colleague tells me he heard one cockney woman say to another on the top of a bus: "That Lynskey, he's guilty all right, if you ask me."

Likewise the Government is trying to convince us that Scott is guilty too. It will not wash. There is a legal maxim volenti non fit injuria which, roughly translated, means that if you consent to something it is no use complaining afterwards. Mr Major did not simply consent to the Scott inquiry. He set it up and gave it the widest powers short of turning it into a 1921 Act tribunal. He and his colleagues cannot turn round this week and complain about its findings.