A tyranny of inquiries
The UK's disturbing tendency to leave politics to judges.
‘Lord Hutton is to be quizzed by MPs holding an inquiry into government inquiries…’
So announced a breaking news headline on BBC Online on 29 January 2004, reporting that Hutton has agreed to appear before a panel of MPs in April to give evidence on ‘the role of inquiries in government’. Meanwhile, the Bush administration’s announcement of an inquiry into its pre-war intelligence has put pressure on Blair to set up a similar independent inquiry in Britain; the Tories have demanded a police inquiry to find out how Hutton’s findings were leaked to the Sun; and associates of David Kelly want a full public inquiry into the circumstances surrounding Kelly’s death.
Those who thought the Hutton Inquiry was the inquiry to end all inquiries – that his conclusions would ‘draw a line’ under the controversies over David Kelly, the intelligence about Saddam’s regime, or the coalition’s war on Iraq – were sorely mistaken. There have been three inquiries into Britain’s intelligence over Iraq, by Lord Hutton, the Intelligence and Security Committee, and the House of Commons Foreign Affairs Select Committee – and far from bringing ‘closure’ to the Iraq issue, the inquiries have begotten further inquiries, including an inquiry into things that the Hutton Inquiry left out and an inquiry into inquiries in general. The British elite is in danger of eating itself.
Inquiries conducted by law lords into controversial events have been a feature of British politics for decades. In 1963 Lord Denning held an inquiry into the Profumo affair, following revelations that the then Tory secretary of state for war (John Profumo) had been visiting the same prostitute (Christine Keeler) as a Soviet official; in 1972 Lord Widgery held an inquiry into Bloody Sunday, when 14 unarmed Catholics were killed by the British Army in Derry; in 1981 Lord Scarman inquired into the Brixton riots in south London, when there were sustained clashes between black youth and the police.
Such inquiries were best understood as a form of crisis management for the elite, a means of resolving potentially embarrassing issues. The law lords often criticised individual ministers or officials or soldiers or police chiefs, causing some to resign – but their inquiries played a useful role for the British state, allowing it the breathing space to take stock, close ranks and make changes of position or personnel.
But over the past 10 to 15 years, the judicial inquiry has come to dominate political life. Instead of the occasional inquiry into the odd event, there are inquiries into everything from the police’s handling of the murder of a black teenager (Macpherson) to events from history (Bloody Sunday) to the suicide of a civil servant (Hutton); instead of law lords judging on the conduct of individual officials in specific situations, m’luds increasingly make rulings about the political process itself, about the role and responsibilities of elected ministers, and, if Hutton is anything to go by, about what journalists can and cannot report.
The rise of the inquiry mirrors the decline of politics. The inquiry has risen to the fore in British politics, and judges to the fore in decision-making, as a result of a deeper crisis within the British elite. At a time when the British establishment finds it increasingly difficult to uphold its authority over society, uncertain governments have turned to the law lords for some source of authority. This has given rise to a tyranny of inquiries – and to some worrying shifts in who exercises authority over British politics and society.
The explosion in inquiries has its origins in the internal incoherence of the British state. In the early 1990s, the Tory government set up a number of inquiries into the British police and judicial system. At that time, a number of wrongly-imprisoned Irish men and women were released from British prisons after their convictions for IRA attacks in the 1970s were quashed on appeal – the Guildford Four were released in 1989, and the Birmingham Six and the Maguire Seven in 1991.
Public confidence in the police and the courts was at an all-time low. Then Tory home secretary Kenneth Baker appointed former judge Sir John May to inquire into the conviction of the Guildford Four and the Maguire Seven, and on the release of the Birmingham Six he set up what some referred to as the ‘mother of all inquiries’ – the Royal Commission on Criminal Justice under Lord Runciman, to report on ‘all stages of the criminal process’.
It is worth recalling, for all those who thought Hutton would give Blair a bloody nose for going to war, the low esteem in which judges were held in the early 1990s. They were found to have presided over miscarriages of justice that led to wrongful imprisonments. They were seen as being wildly out-of-touch – as captured by Lord Denning’s comment in the early 1990s that if the death penalty had been in place in the 1970s there would have been no public outcry over the Birmingham Six or the Guildford Four.
It was this sense of the criminal justice system being outdated and corrupt that led the Tories to set up the Royal Commission on Criminal Justice. As Sir John Wheeler told the House of Commons on the day the commission started gathering evidence in 1991: ‘It is of the greatest importance for the public as a whole to have confidence in the criminal justice system and process.’ Yet while the commission may have been prompted by the events of 1989 and 1991, fundamentally it expressed a deeper crisis within the elite.
The worldwide shifts of the late 1980s and early 90s left few ruling parties in the West untouched. The end of the Cold War, and the global political changes this gave rise to, robbed many governments in the West of their sense of mission. Britain’s ruling Conservative Party felt these shifts acutely. During the Thatcher years, the Tories derived much of their moral authority, both domestically and internationally, from Cold War rhetoric – by advertising British politics and values in contrast to those of the Stalinist East, effectively by promoting Britain as Not The Soviet Union. In the absence of the old certainties, the British elite became unclear about what it stood for and increasingly sensitive to criticism and crisis.
Cracks began to appear. The far-reaching Royal Commission on Criminal Justice highlighted the rot within the establishment. The incoherence of the state meant that differences that once would have been settled in private – or, indeed, through an old-style, limited inquiry that would allow the state to get its house in order – were more likely to spin out of control. This was the driving force behind the commission, which pitted former judges against current judges and the courts against the police, in a public working-out of what Britain’s criminal justice system was for.
After the Royal Commission, the Tories set up a number of inquiries – both as an attempt to disclaim responsibility for resolving political problems and to restore public confidence in the machinery of government. Feeling themselves isolated from the electorate, as voter turnout plummeted and party membership fell sharply, the Tories turned to the lords for some stability and authority – which they lacked at the polls or in the shape of public enthusiasm. Two inquiries in particular captured this trend for shifting political problems from the elected Houses of Parliament to the unelected law lords – the 1992 Scott Inquiry into the arms-to-Iraq affair and the 1994 Nolan Committee on Standards in Public Life.
In 1992, the commission on the arms-to-Iraq affair under Lord Justice Scott investigated allegations that Tory ministers had secretly relaxed guidelines on the sale of goods to Iraq while telling parliament that no such adjustment had been made. Scott’s report, published in 1996, did not issue an outright condemnation of the ministers involved, accepting that they didn’t ‘knowingly’ deceive the House of Commons. In October 1994, prime minister John Major set up the Nolan Committee, in response to the ‘cash for questions’ scandal, when Tory MPs were shown to have asked questions in parliament on behalf of lobbying companies.
Nolan and Scott represented a significant shift in the relationship between parliament and the judiciary. Over and above the Royal Commission on Criminal Justice, Nolan and Scott were making judgements about parliament itself, about how ministers ought to conduct themselves. For the first time in decades, unelected judges were telling elected parliamentarians what they could and couldn’t do.
In Britain, for the past 90 years, the government’s claim to authority has been based upon its popular mandate, as established through the party system of debate and elections (however pale and uninteresting that system may have become in recent years). No other part of the British elite – not the lords or the police or the military – could challenge the cabinet, which claimed to act upon ‘the will of the people’. This order of authority derived from the constitutional crisis of 1909-1911, when Liberal prime minister Herbert Asquith faced down the House of Lords, which had refused to pass his chancellor’s ‘People’s Budget’. The Lords’ veto on the budget was overturned, as Asquith fought an election on this very issue – and the supremacy of the elected Commons over the unelected Lords became the accepted hierarchy in British politics.
This has been explicitly undermined by the rise of the inquiry through the 1990s to today. When authority for parliamentary matters is handed to law lords, then parliament is no longer in control of British politics. Many Tories were peeved when Lord Nolan ‘quite deliberately’ went beyond his terms of reference, in the words of one report, by setting down a far-reaching set of proposals about how MPs’ behaviour should be regulated – including the establishment of a permanent Parliamentary Commissioner for Standards. But what did they expect? Having given judges power over parliament, the Tories could hardly complain when the judges exercised such power.
This is a profoundly anti-democratic development. Whatever your views of the Tory government of the 1990s, or the New Labour government today, giving law lords the authority to make rulings on parliamentary matters is a powerful snub to the democratic idea that the masses should decide who runs society.
Where the government’s authority rests upon a mandate given by us, the judges’ rank comes from being appointed by the Crown on the advice of the equally unelected Chief Justice. 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 the law lords, and, as those who are disappointed that Hutton didn’t grill Blair have discovered, we can do nothing whatever to influence or challenge their rulings. The most corrupt, arms-selling, cash-receiving politician is preferable to the whiter-than-whitest judge – because we have the ultimate say over the politician’s position of authority.
New Labour has continued the trend for setting up inquiries. It set up the Bloody Sunday Inquiry in 1998 to supersede the Widgery Inquiry of 1972, and most notably the Hutton Inquiry in 2003. Inquiries have effectively become a new unelected chamber. Just as parliament’s Bills have to go through the unelected House of Lords for discussion, now it seems that parliamentarians’ decisions and actions can equally be scrutinised by some law lord or other in an inquiry. This is bad for democracy – and it is bad for politics.
The sentiment behind inquiries today is that politics is sinister and suspicious, which every now and then has to be cleaned up by an ‘outsider’, by a cool-headed judge like Runciman, Nolan, Scott, Macpherson or Hutton. The idea is that authority – real, final authority – is best invested in those who have the least to do with mass politics, trying to win over voters, and all those other apparently vulgar things. As such, inquiries can only contribute to cynicism about politics today and to the further removal of the public from the decision-making process.
If inquiries reduce elected politicians to the subjects of judges’ rulings, they reduce the rest of us to spectators to our own destiny. Many of Blair’s critics, particularly on the left, cheered on Hutton, in the hope that he would criticise the government over Iraq – just as many left-wingers and liberals cheered on Scarman’s 1981 inquiry into the Brixton riots in the hope that he would criticise the heavy-handed cops, and the Macpherson Inquiry for flagging up institutional racism in the ranks of the police and other bodies. This is politics as a spectator sport, where those of us outside of the state can only watch as those inside the state work out their differences. And when politics is turned into a spectator sport, critics of the government can do little but shout at the ref when – as in the case of Hutton – he reaches the ‘wrong decision’.
In the rise of the inquiry, the British elite is airing its internal problems in public, and degrading democracy, politics and debate in the process. Those of us who want more from politics than to watch our rulers bicker could start by calling for the new system of inquiries to be abolished.
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