Our Flexible Friends
- Scott Inquiry Report by Richard Scott
HMSO, 2386 pp, £45.00, February 1996, ISBN 0 10 262796 7
The most remarkable aspect of the Scott Report is its simplicity. The famous length and the differing interpretations to which it has been subjected since its publication suggest a learned and complex treatise full of ambiguity and complex allusion, a sort of political bible with Sir Richard Scott in the role of the Yahweh/ Saviour and Robin Cook and Ian Lang fighting it out to play St Paul. In fact, the occasional double negative aside (these alone have been enough to drive our illiterate media into hysterical denunciations of prolixity), the Report is a model of clarity. Its narrative is compelling and its conclusions stark in their certainty. The only confusion and ambiguity in the text flows from Sir Richard’s occasional reporting of the Government’s manifestly untenable case.
The story starts with the Import, Export and Customs Powers (Defence) Act 1939, the casual misuse of which is characteristic of government conduct as evidenced throughout the Report. Before this Act, control of the export of goods out of Britain was governed by the royal prerogative and the common law. The Second World War made a more coherent framework essential and the emergency powers in this statute provided it. That they were then considered to be of a temporary nature was made clear by section 9(3), which provided that the Act was to ‘continue in force until such date as His Majesty may by Order in Council declare to be the date on which the emergency that was the occasion of the passing of this Act came to an end, and shall then expire’. The Act gave the executive wide powers to regulate exports without any Parliamentary oversight, and this made it so attractive to government that it became virtually unrepealable despite this explicit death wish. The problem posed by the cessation of hostilities with Germany and Japan in 1945 was met by a timely emphasis on the newly arrived Cold War ‘emergency’, and there matters stood in the decades that followed, with one bout of paranoia after another protecting the executive from recognising the case for repeal.
Successive governments grew used to regulating British trade without ever having to explain much about what they were doing. In the background, however, there was always the threat of – not to – democracy. Advising against new legislation in 1982, the Department of Trade and Industry considered that ‘new legislation would almost certainly give rise to contentious debate on philosophical aspects of trade policy and that the Department would almost certainly be tied with Parliamentary procedures which are now not necessary’. Contentious debate on trade policy? In Parliament? Out of the question! The inevitable DTI conclusion was that ‘from an administrative point of view new legislation should not be recommended.’ In 1990, the imminent Gulf War and some vague talk about the dangers of German unification were enough to intimidate the Labour opposition into agreeing to nod through fresh legislation designed to obviate a judicial challenge to the legislation in force. In a pre-emptive strike of magnificent effrontery, the new Act simply repealed Section 9(3): the temporary had been made permanently permanent, and the judges had been deprived of a basis for any future legal assault on the legislation.
It was to this 1939 Act that the Government turned when the Iran/Iraq War broke out in 1980. Trade was controlled under the Act by means of export control orders issued by government and policed by customs officers. It was quickly announced that no lethal weapons would be licensed for export to either side. Even in these early days, weaponry was thought more likely to be lethal in the hands of the Iranians than the Iraqis. In 1981, ministers agreed that ‘every opportunity should be taken to exploit Iraq’s potentialities as a promising market for the sale of defence equipment; and to this end “lethal items” should be interpreted in the narrowest possible sense, and the obligations of neutrality as flexibly as possible.’
In late 1984, a new approach was agreed, which was to govern the whole question of military exports to Iran and Iraq for the duration of the war. The ‘Howe Guidelines’ (after the Foreign Secretary) were as follows: 1. We should maintain our consistent refusal to supply any lethal equipment to either side. 2. Subject to that overriding consideration, we should attempt to fulfil existing contracts and obligations. 3. We should not in future sanction new orders for any defence equipment which in our view would significantly enhance the capability of either side to prolong or exacerbate the conflict. 4. In line with this policy we should continue to scrutinise rigorously all applications for export licences for the supply of defence equipment to Iran and Iraq. To the already ambiguous notion of ‘lethal equipment’ was now added the even more flexible idea of ‘defence equipment’ which ‘in our view’ would ‘significantly enhance’ the capacity of either side to wage war.
Within these broad parameters, it appears that the guidelines were broadly adhered to for the duration of the war – i.e. until August 1988. According to Scott, they were from the start ‘consistently represented’ to be government policy. In a letter written in December 1984, Michael Heseltine, who was then Defence Secretary, referred to the guidelines as ‘the new policy’. They were also referred to as such on different occasions by Sir Geoffrey Howe, by Margaret Thatcher and by various government spokespersons. When Parliament was eventually let in on them in October 1985, it was in answer to a request for a ‘statement on the policy of Her Majesty’s Government governing the exportation of armaments to Iraq’. In the course of his statement that October, Sir Geoffrey Howe referred to the guidelines as a reinforcement of the Government’s policy in this area. Two months later, an inter-departmental committee routinely referred to the guidelines as ‘the prime source of policy on defence sales to Iran and Iraq’.
The reason this terminological precision is important and not merely pedantic (though it is that as well) lies in a meeting that was held on 21 December 1988, four months after the end of the Gulf War. Present were three government ministers, William Waldegrave from the Foreign and Commonwealth Office, Alan Clark from the DTI and Lord Trefgarne from Defence. On the agenda was what to do about the export of arms and arms-related equipment to the Gulf region in light of the changed circumstances brought about by peace. To the extent that the Howe guidelines were predicated on a continuing war they were clearly out of date, particularly if the ceasefire held. As early as 31 August, a mere 11 days after the ceasefire had come into force. Sir Geoffrey Howe was already swooping in on the remains of the carnage like a cross between a vulture and a travelling salesman. In a paper to the Prime Minister, ‘The Economic Consequences of an End to the Iran/Iraq Conflict’, he had drawn attention to the fact that in ‘the early post-conflict era the opportunities for sales of defence equipment to Iran and Iraq [would] be considerable.’ The UK’s defence sales policy would therefore ‘need to be reviewed’. Taking him at his word, a Foreign Office official quickly prepared a paper on the subject. But it did not seem that Sir Geoffrey had a formal review in mind.
While appearing to agree that a more flexible approach to exports should be adopted, he was not anxious to embark on a process that might reach the world beyond Whitehall. In a note dated 22 September 1988, the Foreign Secretary declared himself ‘reluctant to put this paper forward and thereby to initiative [sic] a process whereby it will become known that our line on arms sales to Iraq has relaxed, while the Kurds/ CW question is still hanging over us’ and that ‘it could look very cynical if so soon after expressing outrage over the Iraqi treatment of the Kurds ... we were to adopt a more flexible approach on arms sales.’ (For ‘CW’ read ‘chemical warfare’.) In the aftermath of the ceasefire, therefore, the problem was not whether or not to relax the guidelines: the problem was that the public might learn about any such relaxation. They already knew, most inconveniently it would seem, about the large-scale massacre of Kurds on which the President of Iraq had by then embarked, or the ‘Kurds/CW question’ as the Foreign Secretary so delicately described it.
Even the sort of covertly flexible approach signalled by Sir Geoffrey Howe was not enough to prevent export licence applications stacking up in the months after the war. By late 1988 British firms had become increasingly restive in their wish to get in on the rearmament of Iran and Iraq. They had their hero in Alan Clark at Trade and their bogey-man in the French, who as all decent Brits know, will sell anything to absolutely anybody. At the meeting on 21 December, the three ministers agreed to relax the third guideline. Whereas it had previously said (my italics), ‘we should not in future sanction new orders for any defence equipment which in our view would significantly enhance the capability of either side to prolong or exacerbate the conflict,’ it now said: ‘we should not in future approve new orders for any defence equipment which, in our view, would be of direct and significant assistance to either country in the conduct of offensive operations in breach of the ceasefire.’ All present seem to have considered that they were involved in the alteration of policy. Telexes to British embassies referred ‘to a slight relaxation of our policy’. Against the background of the Foreign Secretary’s earlier clearly expressed view, it was not surprising that the DTI soon declared itself in favour of the ‘implementation of a more liberal policy without any public announcement’ and that Mr Waldegrave allowed himself to be described as ‘content ... to implement a more liberal policy on defence sales without any public announcement on the subject’. As Lord Howe was later to tell Scott, when justifying the approach taken by his junior colleagues, there was ‘nothing necessarily open to criticism in incompatibility between policy and presentation of policy’. The secretive approach that the Government had taken might have seemed cynical but what had to be borne in mind was ‘the extremely emotional way in which such debates are conducted in public’ which made ‘the scope for misunderstanding ... enormous’. Throughout the Scott Report, Lord Howe comes across as a jaded Metternich, exhausted by the silly and extraneous demands of democratic government.
The original intention may have been that the new revised guidelines would be agreed by the junior ministers’ political bosses and eventually allowed to seep into public view in the same tentative and managed way as the Howe guidelines had done four years before, after the wave of denunciations of Saddam over his chemical attacks on the Kurds had run its course. (Politicians like Sir Geoffrey Howe know that the public are as amnesiac as they are ‘extremely emotional’.) Before that could happen, however, the Iranian fatwa against Salman Rushdie intervened. It was now out of the question to apply the new liberal guideline to Iran. On the contrary, the Government suddenly became as keen to tighten the controls on Iran as they still were to loosen them on Iraq. The 21 December solution was out of date. The ingenious new solution that appears to have been reached was to restore the original guideline, but to interpret it as involving at the same time a near-embargo on all defence equipment as far as Iran was concerned and a far more liberal policy (encapsulated in the revised guideline) as far as Iraq was concerned. The creators of this plan must have been very pleased with themselves; it meant that the old guideline had not been changed after all, and as a result it could be said that no alteration of policy had ever taken place. This being the case, the question of when or whether to inform Parliament now or in the future no longer arose; there was nothing to inform Parliament about.
It was probably the proud and confident way this intellectual handiwork was displayed to the inquiry that drove Sir Richard Scott into his paroxysm of moral rage. Like a complicated Post-Modern sculpture, its true beauty could only be appreciated by its designers, whose understanding of it was, however, contingent on their being part of the display. The ordinary public did not so much see through the work as see nothing at all. Bright and educated though he believed himself to be, on this occasion Sir Richard Scott found himself in the role of a bemused visitor to the Tate, confronted with Whitehall’s version of a pile of bricks. The exhibition presented to him, with its claim that the flexible application of the guidelines did not amount to a change in policy, ‘did not ... correspond with reality’. This was the case ‘notwithstanding the many advocates who espoused’ the Government’s position; their claims on its behalf were ‘so plainly inapposite as to be incapable of being sustained by serious argument’. Probing more deeply in a way that must have been achingly vulgar to the bureaucratic artists involved, Scott asked how (a) ‘we should not in future sanction new orders for any defence equipment which in our view would significantly enhance the capability of either side to prolong or exacerbate the conflict’ could simultaneously be taken to mean both (b) an effective defence embargo (in the case of Iran) and (c) ‘we should not in future approve new orders for any defence equipment which, in our view, would be of direct and significant assistance to either country in the conduct of offensive operations in breach of the ceasefire’ (in the case of Iraq).
There was plenty of room for flexible interpretation of (a) as it stood, but ‘the removal from [its] scope ... of non-lethal defence equipment of a primarily defensive nature [was] not a “flexible interpretation” of the guidelines. It [was] a decision that the guidelines [would] not be applied so as to restrict the sale of a certain class of defence equipment. The description of that decision as being merely a flexible interpretation, or flexible implementation, of the guidelines [was] bound to be misleading to anyone who [did] not know the substance of the decision.’ (c) was an interpretation of (a) in the same way that ‘we will give sweets to children which cannot be spat out at other children’ is an interpretation of ‘we will not give any sweets to children which are capable of damaging their teeth.’
The effect of the change was clear enough, whether it was a change of policy or of guidelines which were in some peculiar way not part of policy. While the ban on lethal equipment as such remained, both non-lethal defence equipment and ‘dual-use’ goods received much more sympathetic treatment than before. In particular, licences were granted for the export of machine tools when it must have been known that the equipment was likely to end up in munitions or armaments factories. The applications for such licences merely talked in general terms of intended ‘engineering’ uses and this seems to have been invariably enough to get the items through. Squaring this radical change in approach with the public claim that the policy had not changed required a massive exercise in Whitehall deception. Scott found that scores of letters to MPs were ‘not accurate’. The same was true of descriptions of government policy that emanated from the Ministry of Defence. A series of Parliamentary questions were answered in a way which ‘failed to inform Parliament of the true current state of government policy on non-lethal arms sales to Iraq’. Even a letter sent by the Prime Minister to the Labour MP Gerald Kaufman ‘was misleading’ in the information it purported to convey. Scott’s unequivocal judgment on all this was that the Government had ‘consistently failed ... to comply with the standard’ it set for itself in Questions of Procedure for Ministers, the authoritative guide on ministerial conduct published by the Cabinet Office, under which ministers were declared to be ‘accountable to Parliament’ – which meant, among other things, that they had a duty ‘not to deceive or mislead Parliament and the public’.
What seems to have astonished Scott most of all was that the ministers and officials involved appeared not simply to be engaged in the task of deceiving him, which would at least have been understandable, but seemed actually to believe what they were saying, and to have believed it pre-Scott as well. When the question of selling Hawk aircraft to Iraq had come up in July 1989, a confidential cabinet note had described this ‘change in interpretation of the guidelines for Iraq’ as not being required to be made public ‘since it did not represent a reversal of existing policy’. The bricks had been art then, just as they were art now; they were saying something beautiful and deep even if Sir Richard Scott couldn’t grasp it. While the argument that the policy could not have changed because only junior ministers had considered it failed ‘to distinguish between form and substance’ and was mere ‘sophistry’, it was nevertheless true that Mr Waldegrave ‘and the other adherents of the “interpretation” thesis did not, in putting forward the thesis, have any duplicitous intention and, at the time, regarded the relaxed interpretation, or implementation, of guideline (iii) as being a justifiable use of the flexibility believed to be inherent in the Guidelines’. According to Scott, Waldegrave ‘knew, first hand, the facts that ... rendered the “no change in policy” statement untrue’. However, the minister ‘strenuously and consistently asserted his belief, in the face of a volume of ... overwhelming evidence to the contrary, that policy on defence sales to Iraq had, indeed, remained unchanged’ and the judge did not ‘receive the impression of any insincerity on his part’. In criminal law, this would be like the accused in a murder trial saving that he killed the sleeping woman because he honestly believed that she was a rattlesnake about to pounce; he can say it, believe it even, but the jury will not accept it and he will be convicted of manslaughter at least. Mr Waldegrave’s jury was composed of Tory MPs taking their instructions from the Chief Whip rather than from reason or Sir Richard Scott.
Did the Government break its own constitutional rules governing its relationship with Parliament? The full text of the relevant paragraph of Questions of Procedure for Ministers is as follows:
Ministers are accountable to Parliament, in the sense that they have a duty to explain in Parliament the exercise of their powers and duties and to give an account to Parliament of what is done by them in their capacity as Ministers or by their departments. This includes the duty to give Parliament, including its Select Committees, and the public as full information as possible about the policies, decisions and actions of the Government, and not to deceive or mislead Parliament and the public.
This was a cross which the Government had made for its own back on one of its more idealistic days, and throughout the Scott Inquiry its weight was crushing even for the very finest of its mandarins. The senior Foreign Office official, David Gore-Booth, agreed that answers ‘should be accurate’ but thought that ‘half a picture can be accurate.’ Similarly, the Cabinet Secretary, Sir Robin Butler, thought that it was ‘acceptable in some circumstances for a statement to disclose only part of the full picture’. There were shades here of his predecessor’s much derided phrase about ‘being economical with the truth’, and Scott clearly thought the whole proposition preposterous: ‘If part of the picture is being suppressed and the audience does not know it is being suppressed, the audience will be misled into believing the half picture to be the full picture.’ He preferred as ‘more realistic’ Sir Geoffrey Howe’s ‘unapologetic acceptance of and support for the divergence between Government’s statements of policy and Government’s actual policy’ on Iraq. In oral evidence, the old Metternich had said of his belief in secret decision-making in certain circumstances that it was partly a case of government knowing what was best, but it wasn’t just that: ‘If we were to lay specifically our thought processes before you,’ he added, ‘they are not just going before you; they are laid before a worldwide range of uncomprehending or malicious commentators.’ This is the point. A well balanced presentation to an élite Parliamentary audience is not an option.
The essence of what the Scott Report is about lies in this remark. The blame for the wrong uncovered by Scott is both broader and more diluted than we are now determined to believe. None of the ministers or officials involved in the whole affair secured any material benefit from it, so far as is known. They appear to have been driven by a perception of the national interest which involved, as they saw it, the export of defence-related and dual-use equipment to Iraq. Neither chemical nor lethal weapons as such were exported. Scott explicitly accepts that the secrecy he uncovered was motivated not by any personal or political advantage but by fear that full disclosure would ‘be detrimental to British trading interests’. He accepts that one of the basic reasons behind the DTI’s relaxed approach to the export of machine tools was the importance of the sales to Iraq for ‘the survival of the machine tool industry in the West Midlands ... an area where unemployment was already a serious concern’.
It is easy to see the value to British trade that would inevitably have flowed from the rearming of Iraq. ‘British trade’ is not an abstract concept: it is an umbrella phrase for the prosperity of British companies, British shareholders, British managers and British workers and their families. The Al-Yamamah oil-for-arms deal with Saudi Arabia, for example, is reportedly worth over a billion pounds a year. It was recently reported that GEC is close to securing a £5 billion deal to supply a set of new weapons systems to the United Arab Emirates, which would, according to the Guardian, ‘secure thousands of jobs in the defence industry’. These are the figures that explain governmental nervousness about Saudi dissidents within their jurisdiction and television programmes about oil sheikh despotism. The opportunities that accrued from Iran and Iraq’s wealth and their hatred and destruction of each other were too good to miss, and the occasional massacre or bout of hostage-taking on the side was not to be allowed to get in the way.
In its truncated, distorted modern form, much of British trade involves the sale of instruments of mass human destruction, together with their ancillary products, their switches, sparks and ‘dual-use’ machine tools. Britain no longer makes many of its own cars, motorbikes, televisions and vacuum-cleaners. But it still does a good line in fighter aircraft, guided-missile systems, torture weapons and the rest. The trouble with such a trading profile is that it does not allow you to be too choosy about your clients. Places like Norway, Costa Rica and New Zealand are not beating their way to British Aerospace to inquire about the latest means of killing their neighbours or torturing their own citizens. The ideal client is rich enough to pay millions, despotic enough not to care about the extravagance that this entails, and sufficiently paranoid to be constantly worried about internal and external threats to his or her security. From this perspective, the controls on the export of equipment to Iraq were really quite tight, and very carefully policed. This was what the ministers responsible for them believed. Their subterfuge was designed not to protect themselves from the public but to protect the public from its own conscience. The mass of the British people want, indeed need, the prosperity that such clients bring, but suspecting or half-knowing that they are an unsavoury lot, they do not want to think too deeply about their immorality lest this then compels them to forgo the tainted largesse. William Waldegrave was, of course, misleading Parliament. He was guarding the public from having to act on its ostensible beliefs. His deception allowed us to be both morally righteous about Saddam’s gassing of the Kurds while at the same time benefiting from the same dictator’s financial extravagance. Why were we selling anything to do with ‘defence’ to Iran or Iraq in the first place? This is too hard a question to ask because it is too easy to answer. That is what we do, these days. Neither Saddam nor the mullahs want our washing-machines, our cars, our vacuum-cleaners, and anyway we don’t make many of them anymore.
More than most, Sir Geoffrey Howe understands what politics is about. The truth about Iraq, if it had been forthcoming, would not have been restricted ‘to an élite Parliamentary audience’ which would have understood these complexities. The truth would also inevitably have been ‘laid before a world-wide range of uncomprehending or malicious commentators’. Sir Geoffrey’s words suggest an image of an amorphous and flaccid body of public opinion, wanting only the good life but with a residue of moral susceptibility, capable of being pushed first one way and then another by the truth-fanatics on the fringes. These activists – the politically aware, the radicals, the human rights campaigners, the ex-CND people and the rest – know what is going on and are constantly trying all manner of means to force their truths so far into the open that not even the most determinedly blinkered member of the public can any longer completely divert his or her eyes. This is not a bad description of what passes for modern ‘democracy’. ‘What is going on’ is of course far more than arms sales to iniquitous regimes. The prosperity of the West is constructed not on democracy and not just on the arms trade but on such unbearable immorality as worldwide slavery, famine and sanctioned genocide. If the average voter eschews reality, it is because reality is too much to bear. Occasionally the tips of these gruesome truths surface and briefly compel our attention – Somalia, Rwanda, Iraq, a riot reflecting the impoverishment of our own inner cities. But more often they do not and politicians see it as their job to protect us from them and from the truth-fanatics who would ‘ram them down our throats’.
That this depressing picture is an accurate view of the state of public opinion is as much due to politicians like Sir Geoffrey Howe as it is to the moral inertia of the general public. The high moral tone of Questions of Procedure for Ministers was possible precisely because no minister or official took it particularly seriously. When caught out by Scott, a few brilliant Oxbridge minds concocted hypothetical situations in which misleading Parliament would be (to use a Scottism) ‘not inappropriate’. There were self-satisfied references to the need to be ‘economical with the truth’ in wartime or during a devaluation crisis, as though these extreme situations justified a general policy of deceit. Dogged lawyer that he was, Scott merely referred his witnesses back to the rules and asked where the exceptions were. But the best evidence for a ‘right’ to mislead Parliament was both real and recent: it could not be mentioned by Scott’s victims as the debating triumph it would have achieved would have come at too high a political price. John Major’s government survived its Commons ordeal on Scott because of the decision to abstain by the three members of Ian Paisley’s Democratic Unionist Party. One of the three, the Reverend William McCrea, was reported as having asked, shortly before the vote, why the Prime Minister should be undermined now for the errors of colleagues when his greater lies to the House on Ireland had earlier gone unpunished.
McCrea had a point. Up to the end of November 1993, the Prime Minister and his Secretary of State for Northern Ireland, Sir Patrick Mayhew, had been utterly convincing in their determination never to deal with terrorists of any sort. Then it emerged that the Government had all along been engaged in dialogue not with the mere ‘pseudo-terrorist’ Gerry Adams but with the IRA itself, via intermediaries specifically authorised to act on its behalf. If this did not breach Questions of Procedure for Ministers, then it is hard to know how its guidance can ever be disregarded. When Ian Paisley drew this to the attention of the House of Commons and accused Major and Mayhew of issuing falsehoods, no Member denied it or questioned him for more details; he was merely suspended from the Commons, by a vote of 272 to 25.
Does Ireland differ from Iraq? The moral issue that is thrown up by Scott is finally one of trust rather than of deceit. The two are not the same. Very occasionally, on great issues, it may be appropriate, necessary even, for a leader bent on a grand goal to avoid full frankness until he or she judges the time is right, lest premature disclosure of the task in hand makes the ambitious destination that is being sought impossible to reach. On Ireland, so nonsensically counter-productive was the Thatcherite legacy about ‘terrorists’ and ‘oxygen of publicity’ and the rest, and so insecure was his position within his own Party, that Major had to tread carefully, to lead his people and his Party slowly to an appreciation of reality rather than rhetoric. That he has done so has unquestionably been the greatest achievement of his prime ministership, and on this matter he has enjoyed, and still (it would seem) enjoys, the trust of his people. He has been allowed to be a statesman, allowed to finesse the truth on our behalf.
After 17 years of one-party government, the Scott Report proves that this moral space is no longer narrowly defined, a place where nobody goes. It has become crowded with amateur statesmen for whom its purpose seems to be to act as an excuse for casual and consistent misrepresentation. A line written in the early Sixties to describe successive governments’ attitudes to Public Interest Immunity Certificates and quoted in that context by Scott is even more relevant here: ‘It is not surprising that the Crown, having been given a blank cheque, yielded to the temptation to overdraw.’ So immersed has the Government become in misrepresentation that it no longer seems to notice the need even to argue that it is necessary.
In the context of the export of arms-related equipment to Iraq, there was manifestly no defensible reason for not laying the facts before the public, for treating people like citizens rather than voting carcasses. Michael Heseltine has had a good press out of Scott because he hesitated before agreeing to try to help send innocent men to prison. The true hero of the Report is Alan Clark. He genuinely believed that Britain should, with a very few exceptions, sell its products to those willing to buy them. A perfectly respectable case could have been made for this point of view. As we have seen, once you have decided to have an arms trade, it is hard not to sell arms, and these products would have been sold to these countries in any event, by other less scrupulous nations. It was Clark’s honesty in persistently expressing this view that precipitated numerous damage-limitation meetings in Whitehall (after his various truthful outbursts in the newspapers) and eventually brought about the collapse of the Matrix Churchill prosecution (when he conspicuously failed to commit perjury in the ‘national interest’). Yet it is Alan Clark who is the ‘loose cannon’, the failed politician, the ‘maverick’ on the fringes. William Waldegrave, Michael Heseltine and the rest have gone from strength to strength, while Lord Howe continues to sit above us all in splendid isolation, the old Metternich having finally seen off Healey, Thatcher and all the relics of his past. It is exactly the same at the level of the officials, in this as in every other scandal; the punishment for persisting with the truth is banishment to the outer regions of public life or departure from the public service altogether. None of the few civil servants who ruined themselves by departing from the official line will ever even enjoy the consolation of the transient celebrity status that was accorded the victims of earlier scandals such as Sarah Tisdall, Clive Ponting and John Stalker. Old bully that he is, Michael Heseltine has grabbed the crown of martyrdom from these still anonymous officials and emerges from the office of the Deputy Prime Minister from time to time to masquerade as a victim.
The legacy of Scott is nowhere more evident than in the public reaction to the BSE crisis, a scandal that so dreadfully exposes the counter-productivity as well as the immorality of lying to or misleading Parliament and the public. But did any minister ever lie to or mislead anybody over BSE? Public disillusion has reached such depths that no one now cares whether or not Stephen Dorrell or Douglas Hogg and their junior colleagues are telling the truth. They probably are at the moment, or at least the truth as they presently believe it to be. The reason the beef industry has collapsed is not that people think they are being lied to but that no one believes these ministers, whether or not they are telling the truth.
One of the reforms suggested in the aftermath of Scott, a Freedom of Information Act, might have prevented the BSE scandal from being as serious as it is, and it would certainly do much to alleviate the culture of secrecy that now permeates British ‘democracy’. Whether it would have prevented Waldegrave and his colleagues from misleading Parliament on exports to Iraq is more doubtful. As Scott himself points out, one of the exceptions to the right to demand information from federal agencies in the United States’ otherwise robust freedom of information legislation relates to ‘information obtained for the purpose of consideration of, or concerning, licence applications’. Given his belief that he was not changing policy, it is hard to see how Waldegrave could not have successfully hidden his position under such a statutory exception had such legislation existed here. The same point can be made for the wilder claim that Scott shows that what we need in the United Kingdom is a written constitution. There may or may not be an argument for such a reform but the success of the Scott Inquiry in getting to the truth tends, if it proves anything at all, to prove the opposite. The United States has the grandest written constitution of them all, replete with free speech and separation of powers, and it still did not prevent, indeed it probably provoked, the appalling Iran/Contra scandal, in comparison with which Her Majesty’s Government emerges from its Iraqi episode as a model of decorum.
A more targeted set of reforms would include not only a Freedom of Information Act but also better statutory protection for whistle-blowers (to encourage officials and others to tell the public what iniquities their political masters are requiring them to perform) and a stronger commitment to pluralism in the media, so as to ensure that the whistle-blowers have a place where they can get reported and a prime time during which their truthful heresies can be broadcast. (Consider the sterling service performed by World in Action in keeping the BSE controversy alive before last month’s revelations.) There is already a useful statutory model in the form of Section 10 of the Contempt of Court Act 1981 – which gives journalists protection from having to reveal their sources – but care would have to be taken to make such legislation judge-proof, since this 1981 provision has already been emasculated by a series of pro-executive judicial decisions in the House of Lords, one of which involved Sarah Tisdall and her leak to the Guardian about the transfer of cruise missiles to Britain.
It is certain that none of these reforms will occur if the Conservative Party remains in office. It isn’t even clear that they would if Labour wins an outright majority at the next election. A minority Labour administration dependent on Liberal Democratic support is the situation most likely to produce legislative reform along these lines. It is also likely to deliver the one change – electoral reform – which on its own would do more than anything else to curb the arrogance that produced the Iraqi and BSE crises. In this regard the Irish example is instructive. Its system of proportional representation has made partnership government the recent norm rather than the exception; and ‘partnership’ here is not an empty piece of Thatcherite rhetoric. When Albert Reynolds and his Attorney General were found to have been culpable in their management of public affairs in December 1994, both men lost their jobs, as did the entire Administration when the minority Labour partner withdrew from the coalition citing an irreparable breakdown in trust. The contrast with the survival of Sir Nicholas Lyell is obvious. It is hard to see how the Government – any government – could have survived Scott had it been a coalition rather than a monolithic single party. In this, as in so many other respects, electoral reform is the change that would on its own do most to revive what is left of Britain’s Parliamentary democracy.
If Labour ever acts on these reform proposals, whether on its own or with the Liberal Democrats, it will be in its vital first years in office, before enjoyment of the spoils and the fear of its own (inevitable) scandals have inured the Party to the system it now affects to deplore. The signs are not promising: electoral reform is needed to keep the Lib Dems on side but is to be designed in a way which will maximise Party advantage while expanding the Liberals and crippling the Tories; Northern Ireland is too dangerous electorally, so bipartisanship is the order of the day; the SNP is winning support so the Party rediscovers its enthusiasm for devolution – but not so as to empower the Welsh, much less the English, who are to get nothing at all; the Party’s antagonism towards the hereditary principle is to affect only some rather than all hereditary peers, and is not to affect the monarchy at all. It is a depressing display of cautious opportunism, only partly accounted for by hints of a deeper radicalism later when the Party has secured its grip on power.
If we agree that we want a society that is fair, just and cohesive, while being both efficiently administered and protective of our civil liberties, then we would have a set of goals from which we could derive many proposals for constitutional as well as for political change. Some of these constitutional ideas are already part of Labour’s agenda, while others are not (an elected president and a federal system of government, for example). In the absence of any explicit vision of how Britain should look, it is hard to tell which proposals should be part of the package and which should not.
If, on the other hand, a nation’s constitution is not just a technical legal matter but has to do with the kind of society that nation is or aspires to be, then it is clear that Britain does not have – and perhaps never again will have – a constitution to call its own. The sort of society we can have is no longer ours exclusively to determine. When the BSE scandal broke, the political rhetoric may still have been at Westminster but the political and economic clout was wielded in Brussels. Earlier, when John Major and his colleagues insisted on their vision of sweatshop UK, with its guarantee of long working hours, low pay and insecure and unsafe working conditions, the European Court of Justice foiled them at every turn, with case after case overturning government initiatives. Even when the Westminster legislature tried to flex its sovereign muscles in 1988, with an Act of Parliament purporting to expel the Spanish from ‘our’ waters, the Luxembourg Court not only arranged to have British judges strike down the legislation (the judges in the Strand now take their instructions from the ECJ rather than from Parliament on such matters) but also in due course required compensation to be paid by the British taxpayer to the Spanish for the hurt that was temporarily caused by the British effort to protect its own trawlers.
Whether you like Europe or loathe it, the reality is that it is the European Union and its twin constitutional pillars, the Treaties of Rome and Maastricht, that today define the sort of Britain in which we live. This is the constitution that matters. It has many terrible defects, being rife with secrecy, with corruption and with the exercise of unaccountable power. The whole constitutional structure of Europe is to be reviewed at the Intergovernmental Conference, which is expected to run over a period of up to two years, debating every aspect of our common future. It is a European version of the great ‘miracle at Philadelphia’ performed by the 13 states present at the birth of the United States of America in 1787. This is where the true constitutional crusaders should be, not arguing over whether a Scottish or Welsh or North of England assembly should have this or that tax-raising power. These are important issues but they are now local government rather than constitutional issues. The internal organisation of the government of the United Kingdom is a matter of local government. This is not quite what Norman Lamont meant when he attacked the Government in his resignation speech in the Commons as being ‘in office but not in power’, but it is what his words, unwittingly, best described.
Lamont is one of very few politicians honest enough to see that if Britain is serious about reclaiming its sovereignty, this may now necessitate withdrawal from the European Union altogether. There is a nice irony in remembering how we arrived at this position in the first place. When the issue of British membership of the European Communities was being debated in the House of Commons in 1972, one of the key issues was this precise one of the location of sovereignty in the new European order. The then Solicitor-General gave the House the necessary assurance that ‘the ultimate sovereignty of Parliament, if it chose explicitly and plainly to determine that the effectiveness of this Bill was to be brought to an end, would remain.’ ‘Effectiveness’ is a nice ambiguous word in the context: it suggests that a later Act of Parliament could ignore EC law without quite saying as much. The same minister was more explicit in a later debate, when he accepted as ‘representing the reality’ an earlier remark by Lord Dip-lock that if ‘the Queen in Parliament were to make laws which were in conflict with the country’s obligations under the Treaty of Rome, those laws, and not the conflicting provisions of the Treaty, would be given effect to as the domestic law of the United Kingdom.’ The Solicitor-General did not go on to volunteer to Parliament the information that the European Court of Justice was certain on the basis of its already existing case-law to take the opposite view, and this is exactly what eventually happened with the Spanish fishing vessels case. It may be that these interventions by the Solicitor-General were a vital element in persuading the Commons to follow the course set for it by the Government of the day. It may even be that his having been ‘economical with the truth’ was a vital element in his forensic triumph. The Solicitor-General whose brilliant legal mind and careful deployment of the truth helped secure membership of the EC in the face of a bitterly divided House was the Member for Reigate, Sir Geoffrey Howe, a young Metternich on the make.