Five Volumes in Search of Accountability: The Scott Report
| Published date | 01 September 1996 |
| Date | 01 September 1996 |
| Author | Laurence Lustgarten,Ian Leigh |
| DOI | http://doi.org/10.1111/j.1468-2230.1996.tb02687.x |
REPORTS
Five Volumes in Search
of
Accountability: The Scott
Report
Ian Leigh" and Laurence Lustgarten""
What makes a good political scandal? Sex, financial corruption or personal
hypocrisy certainly help. Nevertheless, some post-war
cuuscs
ce'kbres,
Crichel
Down or Westland for example, have secured a lasting place
in
constitutional
history, despite the mind-numbing tedium of the events
in
issue. Perhaps the prime
ingredient is the most intangible: a sense of contemporaneity. A scandal becomes a
vehicle for grumbling disorders about the political system and, ideally, the scandal
and its aftermath lances the boil and the body politic moves forward
in
good health.
The Arms for Iraq scandal had all the signs of a tale of secrecy and political
deception fit for the period
of
insensitive, arrogant and dogma-ridden politics in
which it was conceived and born. This note discusses
in
turn the Scott Inquiry's
processes, its findings and its prescriptions on, first, parliamentary accountability
and second, public interest immunity. Our conclusion is that, despite the most
penetrating forensic examination
in
British constitutional history, the Scott Report'
has failed to correctly diagnose the disease or to apply the necessary cure.
The inquiry and its procedures2
A government pressed to establish an inquiry into official wrongdoing faces a
difficult choice between the short-term attractions of removing a contentious
matter from public controversy and the more remote dangers of prolonging the
embarrassment through an extended investigation and an ultimate report over
which
it
has little control. A judge asked to chair an inquiry has many reasons to
hesitate; experience suggests that
a
government which is initially grateful for
the
sense of detachment and impartiality which a judicial figure lends to the
proceedings may later try to undermine the stature of the report and its author by
off-the-record briefing of journalists. And there are many 'pathways to the
pige~nhole'~ for reports of this kind; relatively few are implemented
in
full.
All
these considerations multiply where the subject matter of the proposed inquiry
includes issues as politically contentious as ministerial conduct and information
given to Parliament. In this instance, there must have been many moments
in
the
38
months between commissioning
in
November
1992
and delivery
in
February
~ ~~
*Reader
in
Public Law, Newcastle Law School, University of Newcastle-upon-Tyne.
**Professor of Law, University
of
Southampton.
I
The report
is
published in five volumes
as
Return to an Address of the Honourable House of
Commons
dated 15th February
1996
for the Report
of
the Inquiry into the Export of Defence
Equipment and Dual-Use
Goods
to
Iraq and Related Prosecutions
HC
115
(1995-96).
All
subsequent references to paragraphs are
to
the report.
See also Leigh, 'Matrix Churchill, Supergun and the Scott Inquiry'
[I9931
PL
630;
Woodhouse
(1995)
48
Parliamentary Affairs
24.
The
title
of
a
lecture
by
Bernard Williams; see P. Hennessy,
The Great and the Good
(London:
Policy Studies Institute,
1987)
p
57.
2
3
695
8
The Modern Law Review Limited 1996 (MLR
595,
September). Published
by
Blackwell Publishers,
108 Cowley Road, Oxford OX4
IJF
and 238 Main Street, Cambridge, MA 02142,
USA.
The Modern Law Review
[Vol.
59
1996
when
the Prime Minister and the judge each regretted their initial decision.
However, having decided that an inquiry is necessary, first, as
Mrs
Beeton would
say, take one judge. But not any old judge. ‘The most liberal and
wet
judge
imaginable,’ if Bernard Ingham is to be believed,
or
‘liberal and independent,’
if
Anthony Scrivener QC’s assessment is
refer red.^
Attempts to psychoanalyse the
bicycle-riding, equestrian and
P.G.
Wodehouse-reading tendencies of Sir Richard
Scott as demonstrating dogged independence are fraught with danger. We may be
on safer ground though with his own low-key self-assessment given
in
a television
interview: ‘every judge is a part of the Establishment because he is part of the
Constitution.”
For
our purpose, one significant feature is Scott’s background
in
Chancery rather than
in
public law. It can be argued that this shaped the approach
of the report, especially its preference for judicial solutions to legal problems and
the relatively undeveloped notions of constitutionalism underlying its
recommendations.
Scott’s terms of reference in relation to
arms
sales to Iraq were as follows:
Having
examined the facts
in relation to the export from the United Kingdom of defence
equipment and dual use goods to Iraq between December
1984
and August
1990,
and the
decisions reached on the export license applications for such goods and the basis for them,
to
report
on whether the relevant Departments, Agencies and responsible Ministers
operated in
accordance with the policies
of
Her Majesty’s Government .. . and to
make
recommendation^.^
As
Scott recognised, these terms of reference ‘were deliberately drawn very
widely’ and,
if
at any point during the inquiry
he
came to find them too confining,
he had the Prime Minister’s assurances that they would be broadened in line with
his reque~t.~ His task was therefore a combination of the historical
(or
descriptive)
and the prescriptive, with no real limits except
his
own sense of relevance and
appropriateness.8 Yet, as
will
be seen, the Report
if
anything overdoes the first and
is disappointingly scanty on the second.
To
establish a judicial inquiry into a disaster or a riot
is
one thing, but an inquiry
into a failure of government inevitably raises difficulties about the division of
constitutional labour. The inquiry must take care not to supplant the political
process. One (somewhat artificial) place to draw the line would
be
to limit the task
to investigation and reporting of factual matters.’ However, even factual findings
are
not guaranteed to be free from controversy where the political stakes are
high.”
A
desperate government may reject the findings of the inquiry it has
established, however perverse that may appear. This is precisely what happened
with Scott’s central finding that the Howe Guidelines had
been
changed and
4
5
6
‘Scott
on
Scott,’
Despatches,
Channel
4
Television, 7 February 1996.
ibid.
See
also
the profile in
The Independent,
10
February 1996.
para
A2.2,
emphases added. ‘Dual use’ goods are those capable of both military and civilian use, for
example, many of the machine tools that figured prominently in the Matrix Churchill prosecution
(see p 716 below); see
also
text to
n
55
below.
7 para
A2.8.
8
The influence of both considerations can be seen
in
Scott’s refusal to inquire into either allegations
of illegal (in the sense of smuggled) arms exports to Iraq or whether the Government should pay
compensation to former employees of Matrix Churchill: see paras
3.9-3.25.
Scott argued that
as
it turned out there were relatively few factual disputes
as
such, since the
extensive documentation made clear
what
had happened; instead, controversy revolved around why
particular decisions were taken and what inferences were to be drawn from individual documents:
para
82.4.
10
For example, the rejection of the Devlin Report on Nyasaland in 1959 and of the Radcliffe Report on
the D Notice affair
in
1967.
9
696
0
The
Modem
Law Review Limited
1996
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