Sitting in judgement on democracy

‘All the decisions will be taken by me. I, and I alone, will decide what…matters.’

With those words, Lord Hutton of Bresagh opened the inquiry into the suicide of British scientist David Kelly at the Royal Courts of Justice in London on 1 August 2003. He was quoting from Lord Justice Scarman’s 1974 inquiry into the Red Lion Square disorders, but he could just have easily used the words of another power-hungry judge of our times: ‘I am the law!’ – Judge Dredd, 2000AD.

Ostensibly, the Hutton Inquiry is an ‘investigation into the circumstances surrounding the death of Dr David Kelly’ (1). In reality, the unelected Lord Hutton – who learned his trade as judge, jury and jailor in Northern Ireland’s non-jury Diplock courts over the past 30 years – is sitting in judgement on elected officials. According to one report, with his powers to put anyone up to and including the prime minister in the dock, Hutton is effectively deciding on ‘the very future of the British government’ (2). Or as a Guardian frontpage headline put it: ‘Your inquisitor awaits, Mr Blair….’ (3)

Far from being slated as an assault on basic democratic principles, the Hutton Inquiry has been welcomed as a cool, conservative check on the chaos that is politics. The Independent praises Hutton for rising above the ‘interested parties’ of political life, and refusing to be ‘cowed by considerations of rank’ (4). The Guardian claims that Hutton will bring ‘gravitas and consideration to an episode that has at times created hysteria’ (5). Others hope that, more broadly, the Hutton Inquiry will help to challenge ‘our preference for hysteria over calm examination of facts’.

These plaudits for Hutton suggest a profound distaste for political debate, for the ‘interested parties’ of adversarial politics whose squabbling apparently creates a climate of ‘hysteria’. Far better to put important matters into the hands of disinterested, rational judges in the rarefied atmosphere of Court 73 at the Royal Courts of Justice. Except for one thing: however unpopular or irritating MPs and government ministers might be, we elected them – and we can throw them out of office if they offend us. Nobody elected Hutton, and we can do nothing whatever to challenge his rulings.

The ‘ranks’ that Hutton refuses to be cowed by – prime minister, member of parliament, and other elected positions – are ones that are granted by us, through the democratic process. The government’s authority rests upon the popular mandate, established through the party political system of manifestos and public debate (however pale and uninteresting that system may have become in recent years). Hutton’s rank, by contrast, comes from his being appointed by the Crown, on the advice of the equally unelected Chief Justice. Hutton’s authority comes from old, undemocratic traditions and elite patronage.

For many, allowing a ‘fair and exact’ judge (as one editorial salivated over Hutton) to sit in judgement on politicians is a way of keeping a check on unscrupulous ministers (6). But elevating the unelected judiciary over the elected executive is a further degradation of democracy. The principle of government by the people – already in a sorry state – is further dissipated by handing authority over government to the law lords. In essence, the people who Hutton ‘refuses to be cowed by’ are us, the masses, who elected the people that he (and he alone) will grill.

According to reports, Blair has been rankled by Hutton’s ‘I will decide’ approach to the inquiry. No doubt Hutton, coming as he does from traditionally the most reactionary and conservative wing of the British elite, will relish sitting in judgement on the middle-class fops who make up today’s ruling executive. Yet the government has only itself to blame for this state of affairs. The Hutton Inquiry is part of a dangerous tendency, fuelled by uncertain governments over the past 10 years, where authority has been handed to unelected actors over elected representatives.

The elevation of the law lords to pass judgement on the political process began under the Tories in the mid-1990s. In 1994, then prime minister John Major established the Nolan Committee on Standards in Public Life, after Tory MPs were shown to have asked ‘questions-for-cash’ in parliament. Lord Nolan of Brasted issued wide-ranging proposals about how MPs’ behaviour should be regulated, including the establishment of a permanent Parliamentary Commissioner for Standards.

In 1996, Lord Scott, commissioned by the Tory government, passed judgement on the ‘arms-to-Iraq’ affair, where senior Tory ministers had allegedly been aware of British companies selling weapons to Saddam Hussein’s regime in breach of UN sanctions. The Labour government established the Bloody Sunday Inquiry in 1998, under Lord Saville of Newdigate, to investigate ‘all aspects’ of the army and then government’s actions in relation to British paratroopers’ killings of 14 unarmed Catholics in Derry in 1972. Now, the government has handed authority for the David Kelly affair to yet another lord.

This shifting of responsibility for big political decisions has been driven by a broader crisis of legitimacy within British government circles. Uncertain governments have asked judges to resolve their problems. Feeling themselves increasingly isolated from the electorate, as voter turnout has plummeted and party membership has fallen, both Tory and Labour governments have turned to the law lords for some source of authority – authority that they increasingly lack at the polls, in the shape of popular or enthusiastic support.

Yet turning to the law lords has been a double-edged sword for Britain’s rulers. It has exacerbated tensions within the elite by elevating the judges, emboldening them to challenge government decisions and to become more outspoken. That is why Hutton can declare that he, and only he, will judge the entire British government. The promotion of the lords also further degrades politics. It feeds into the general distrust of elected officials, by implying that there is something inherently dodgy about politics and politicians, which every now and then has to be corrected by the likes of a lord – someone with a clean slate, who is not infected by ‘self-interest’ or ‘hysteria’.

Yet nobody is criticising the Hutton Inquiry. Instead, Blair’s opponents – from Tory ministers to Labour’s own disgruntled members – have latched on to Hutton as a way of having a go at Blair. They hope that Hutton, someone with real, palpable authority, will do what they have failed to – challenge the prime minister and hold him to account. This approach is as opportunistic as it is cowardly.

The Hutton Inquiry will denigrate the democratic process, remove decision-making a step farther from the masses, and exacerbate cynicism about all things political. Anybody who values democracy and debate should call for Hutton to go back to where he came from, and for his inquiry to be thrown out of court.

Read on:

Hutton’s ‘transparency’ is a threat to democracy, by Mick Hume

Out-of-control freaks, by Brendan O’Neill

spiked issue: The Hutton Inquiry

(1) See the Hutton Inquiry website

(2) ‘All the decisions have to be taken by me. I alone will decide what matters’, Oliver Burkeman, Guardian, 2 August 2003

(3) Your inquisitor awaits, Mr Blair, Richard Norton-Taylor, Guardian, 2 August 2003

(4) ‘An inquiry into the facts must not divert us from the central question of the war’, Independent, 2 August 2003

(5) Fair and exact, Guardian, 2 August 2003

(6) Fair and exact, Guardian, 2 August 2003