Just Enquiry

More than six years after Britain invaded Iraq, the battle-lines are being drawn up once again. But this time the theatre of war is no dusty desert. Instead, battles are being fought in air-conditioned London conference rooms where words are the only weapons. The government has now set up no fewer than three public inquiries into its own conduct.

The one that has attracted the most attention is the Iraq Inquiry chaired by Sir John Chilcot, a retired Whitehall mandarin. But on 24 November, the day it started hearing oral evidence, the Chilcot inquiry was virtually written off by the Guardian.

According to the newspaper, the inquiry was going to find it difficult to cross-examine witnesses or decide whether the war was lawful. That was because it had not appointed a QC as counsel to the inquiry and because there were no lawyers among the inquiry team’s members.

Within less than a week, the Guardian was forced to admit that these were hardly fatal flaws. “Contrary to expectations,” it opined, “the mandarins have not pulled their oh-so-elegant punches.”

Retired civil servants often bite the hand that used to feed them, especially when answering questions from one of their own. And having a senior judge to head an inquiry is no guarantee of success. Take, for example, Lord Hutton’s 2004 report into the death of Dr David Kelly, the government scientist who was alleged to have told a BBC reporter that the case for war in Iraq had been “sexed up”. Hutton took a narrowly legalistic approach to his task, dismissing the reporter’s allegations as “unfounded” because they could not be proved beyond reasonable doubt and condemning the BBC’s editorial systems as “defective”. 

But you can hardly blame a judge for treating a public inquiry as if it were a court of law. And Lord Hutton’s supposed failings pale into insignificance compared with those of a fellow law lord.

Lord Saville’s inquiry into the events of Bloody Sunday, the day in 1972 when British troops opened fire on unarmed demonstrators in Northern Ireland, is due out this spring, more than 12 years after he was appointed. A previous judicial inquiry into the same incident took just 11 weeks. Nobody seems to know what Saville has been up to since 2004, the year his team finished taking evidence and heard closing speeches.

So ministers were wise to steer clear of the highest levels of the judiciary when picking retired judges to head two other inquiries arising from the Iraq war. Sir William Gage, a former member of the Court of Appeal, was appointed in May 2008 to investigate the death of Baha Mousa, an Iraqi civilian who died in British military custody in 2003. 

The Ministry of Defence now “acknowledges with huge regret” that Baha Mousa and his fellow detainees were subjected to “conditioning” — stress techniques that had been banned since 1972. “Ascertaining how it came to pass that they were used is one of this inquiry’s most important tasks,” the MoD’s lawyer said in September.

But the ministry’s failings go far beyond the battlefield. In November, the Defence Secretary Bob Ainsworth announced that Sir Thayne Forbes, a retired High Court judge, would be inquiring into allegations that as many as 20 Iraqi detainees had been tortured by troops at a British base in 2004. At least one of them, Hamid al-Sweady, was said to have been murdered. The MoD says that all of them died on the battlefield.

Al-Sweady’s uncle and five other claimants launched a legal challenge at the High Court in London in 2007. Their application for judicial review was adjourned in the summer of 2009, when the MoD conceded that an inquiry should be held. But that came only after the MoD had behaved in a way that the court described as “lamentable”. 

As a result, large amounts of court time and public money had been wasted and the minister was ordered to pay the claimants some £2 million in costs, awarded on an indemnity basis. In an extraordinary judgment, the judges said it was “a matter of great surprise and deep disappointment to the court” that Ainsworth, who had taken over as Defence Secretary a month earlier, had admitted in July that his department had not disclosed the necessary factual evidence — 18 months after it had been requested by the claimants’ lawyers.

Announcing in November what he said would be called the Al-Sweady Inquiry, Bill Rammell, the Armed Forces Minister, said the MoD had “nothing to hide”. 

If that had been the government’s approach in the first place, there would have been no need for yet another public inquiry into the Iraq war.

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