Scott on trial: the case for the defence

In recent days the Scott inquiry into arms to Iraq has increasingly come under attack for its "unfairness", first from Lord Howe and Sir Bernard Ingham, and now from Douglas Hurd. Howe's attack in particular is not new: he made it first at the inquiry in January 1994 and repeated it in the Spectator a fortnight ago. But we can expect more in the same vein in the final days before the inquiry's report is made public.

Criticism has centred on the inquiry's treatment of witnesses and particularly the absence of a right to be examined or to cross-examine using the witness's own lawyer. Although these are serious issues, ultimately the criticism rests on fundamental misconceptions about the role and working methods of the inquiry.

In evaluating these claims it is important to bear in mind the relatively minor role that public hearings have played overall. For this has been an inquiry largely conducted on paper. Sir Richard's team and their satellite units located in various government departments have sifted more than 200,000 pages of documents. These were used initially to compile lengthy questionnaires (some ran to 100 pages) which were sent to more than 200 witnesses.

At the outset, Sir Richard made clear that the public hearings would supplement these questionnaires by clarifying points where elucidation was needed. Those hearings spanned 80-odd days and involved more than 60 witnesses in more than 430 hours of public testimony. A further 15 witnesses were heard over 60 or so hours in closed session.

Nevertheless, only a small portion of the 38 months of the inquiry has been spent hearing witnesses. Each witness has been able to correct their evidence after the hearing and had a further chance to comment on any adverse inference about them in the draft report. In addition, several witnesses chose to comment on the evidence of previous witnesses: Sir Patrick Mayhew, Alan Clark and Paul Henderson all did so.

Nor is it correct that lawyers have been absent from the process. The Government disclosed in a written parliamentary answer last month that the legal bills of those advising ministers and officials appearing before the inquiry totalled pounds 750,000.

This, then, is the context of complaints that witnesses have been sent, bereft of legal representation, before an oppressive investigation with the potential seriously to damage their reputations.

Scott's detractors also fail to appreciate how the purpose of the inquiry has influenced its form. Judicial inquiries are supposed to be inquisitorial and this implies a more active approach to fact-finding than the detached posture of Olympian umpire that a judge adopts in court. Although, inevitably, media comment has concentrated on attributing blame between individual ministers and officials, this is not a fair reflection of the Scott inquiry's terms of reference nor its methods of working. In view of the absence of clearly conflicting sectional interests, it is hard to see what the role of legal representatives with a right of appearance before the inquiry would have been.

Lord Howe's case seems to depend partly on the possible damage to the reputation of those appearing before the inquiry, but this risk is balanced by the other opportunities they have to comment upon the evidence. Significantly, witnesses before Scott were not under oath or compelled to attend in the way they would have been in court. Immunity from prosecution was negotiated in advance for their testimony and civil servants were promised that no disciplinary action or other adverse career sanctions would follow.

All this correspondingly dilutes the need for legal representation for the protection of witnesses and allows greater emphasis on a public inquiry's other objectives, not least of which is the need to elicit the truth.

However, one undoubted flaw in the procedure resulted from the (predictable) prominence given to the public hearings and the substantial time lag between them and ultimate publication of the report. The adverse publicity that some witnesses would have received at the public hearings has very likely had a greater public impact than the detailed, more considered comments about them that may appear in the final report. This is an inevitable outcome of considering only part of the relevant evidence in public. On the other hand, to have left the inquiry behind closed doors from the time it was established in November 1992 would have been contrary to the public interest. As it is, parliamentary discussion of the whole issue has, in effect, been delayed for more than three years.

The difference between adversarial and inquisitorial procedure also begs the question whether judges, whose training and experience is all within the adversarial system, are well qualified to chair public inquiries. Indeed, we should ask what alternatives are there? It could be argued that the very impotence of Parliament in calling government to account is what makes judicial inquiries necessary. The fascination of the Scott inquiry has been that for the first time we have seen an uncensored account of how the constitution really works: how ministers and officials determine policy and its presentation, how they decide what to tell Parliament and the public, and so on.

Perhaps the real reason why politicians and civil servants have felt so uncomfortable with the Scott inquiry's procedures is that they have been left with no place no hide. Many witnesses have been systematically stripped of all the dissembling that too easily succeeds when they appear, for example, before a parliamentary select committee. Before Scott there was no majority of friendly backbenchers who would meekly accept weak answers or stonewalling and who could be prevailed upon to tone down the questioning and to trim the criticism in the final report. In consequence, the inquiry has succeeded in producing something approximating to public accountability in a way that Parliament does not.

No wonder the political and administrative elite complained that Scott did not understand how government in this country works. Thank goodness he did not. He does now, though. And, whatever the fate of the inquiry's report next week, so do we.

The writer is Reader in Public Law at Newcastle Law School, University of Newcastle upon Tyne. He is co-author of 'In from the Cold: National Security and Parliamentary Democracy' (Clarendon, 1994).