31 January 2004
In recent years governments of all colours have come to rely on the judiciary to dig them out of trouble. The reason is that a judicial inquiry enjoys the confidence of the public. Our judges are regarded as among the best in the world, often called upon to settle international disputes or to preside over war crimes tribunals.
When a judgment goes against a party, rarely does the losing side complain that the judge was biased or did not possess the mental faculties to decide the case. This only makes the public's uproar over Lord Hutton's findings against the BBC so much more exceptional. But independent polls clearly show that after considering weeks of evidence - all of it freely available on the internet - the British public believes there has been a serious miscarriage of justice. Or even a whitewash.
This was not how it was suppose to be. In the summer, when Tony Blair first asked Lord Hutton to chair the inquiry and inquest into the circumstances surrounding the death of Dr David Kelly, few doubted the law lord was the right man for the job. The fact that he was an establishment figure from Belfast whose judicial career had been forged in the crucible of Northern Ireland only served to strengthen his credibility as an independent arbiter of truth.
Brian Hutton went to an English public school, and then Oxford. His first job as a barrister was prosecuting for the Crown, after which he worked for the Northern Ireland authorities under the controversial Stormont government. There he became experienced in the ways of civil servants and politicians. Later he was made a High Court judge and then appointed as Lord Chief Justice of Northern Ireland. Such a career has unquestionably made Lord Hutton an expert on the workings of the Government. He had shown evidence of an independent mind, such as his refusal of the appeal by Private Lee Clegg, convicted of murdering a woman in a car. Thus there were such high hopes that he would shine a powerful light into the inner workings of the media and Government over the death of Dr David Kelly.
But it seems that in his long and distinguished legal career spanning half a century, he developed too much respect for the authorities - and too much distrust of the media. For clearly his report, based on the fact that the word of a journalist is less reliable than that of a minister or his civil servant, reflects this mindset. In doing so, this will inevitably have a corrosive effect on the public trust of judicial inquiries in the future. This comes when judges have, in the wake of the Human Rights Act and the ongoing constitutional changes, become politicised. And at a time when judges, whether liberal figures such as Lord Woolf or more conservative members of the bench such as Lord Bingham, have been prepared to defend the interests of the citizen against the might of Government.
Sadly, their work has been set back by the events of this week. Inevitably, Lord Hutton's one-sided report has led to a backlash. Many people have sensed that his inquiry has been an affront to natural justice. And, sadly, they are right.