One of the absurdities of this year’s “silly season” has been another of Britain’s periodic bouts of Chilcot-bashing. When there’s a period of slow news, it seems, journalists remember that Sir John Chilcot was tasked six years ago with inquiring into what we all call simply “Iraq”; and that his report’s not published yet. There follows a chorus of disapproval, and demands that something be done.
There is a substantial development: the threat of legal action against the inquiry by the families of some of the British forces killed in Iraq, explained on BBC Radio 4’s Today programme on August 13 by their solicitor Matthew Jury, and by Reg Keys, the father of one of the soldiers who died. They aim to force Sir John into setting a timetable for publication. Like everyone else I have sympathy for these families, but I’m afraid this legal action can achieve nothing except even further delay.
A couple of days later, the Prime Minister, also on the Today programme, told Sir John he had “got to get on with it”, something I doubt was either necessary or wise. But I’m more concerned about subsequent comments made by some big legal figures.
First, on August 18 a letter from Baroness Butler-Sloss was published in the Times, in which she said
I assume the evidence in the Chilcot inquiry is enormous and the task of writing the report a daunting one, but I fail to understand why the passages critical of witnesses could not be sent to them with a deadline for the replies if that is, indeed, the main reason for what appears to be an inordinate delay in completing the report.
Two days later Lord Lester of Herne Hill QC also wrote to the Times, saying
I am puzzled about the reasons for the inordinate delay in completing the Chilcot inquiry. I acted as counsel for witnesses in the Crown Agents inquiry and the Scott inquiry. Both my clients faced serious criticism. In each case the tribunal ensured that they were given an opportunity to respond to the allegations against them within a reasonable time frame set by the tribunal. Both inquiries had the advantage of a legally qualified chair and of the assistance of counsel to the tribunal …
One reason for the inordinate delay in Chilcot’s case may be a lack of legal expertise about how to avoid being trapped by legalism and ensure that justice is not done to death.
Notice that both these letters assume Chilcot set no time limit for the “Maxwellisation” process, in which those the inquiry is minded to criticise are shown portions of its draft report for comment before it is finalised and published.
Lord Lester went on the Today programme that morning, to say
although I’m a peer, I don’t regard myself as part of [the] establishment
and to repeat his view that lawyers or judges might have ensured
justice is not done to death.
Sir John Chilcot, he said, is
completely out of his depth here
although in his next answer Lord Lester was candid enough to admit
I don’t know what Sir John has done.
After the classic line
You don’t have to be a lawyer to have common sense
which I’m not 100% sure was ironically meant, he went on
There has to be a timeframe. You have to be able to say, “Look, you’ve got three months to do it”, and then if the guy comes back and says “Sorry” at the end of three months “I haven’t been able to finish it”, you may give him another two or three months. But there has to be discipline imposed …
Although he admitted judges and lawyers had not helped matters in one notorious case,
It happened with the Bloody Sunday inquiry where there was a very distinguished judge who allowed the inquiry to run on too long
nonetheless he insisted that as far as the Chilcot inquiry is concerned,
common sense and discipline … seems to be lacking.
The following day, August 21, it was the turn of the former Attorney General Lord Morris of Aberavon QC to have a go. He chose to make his written submissions in the Daily Mail, accusing Chilcot of
and agreeing with Lord Lester that lawyers are what’s needed:
Another problem is that there was no lawyer on the panel. Chilcot himself is a civil servant, while the other members include a diplomat, a historian and an academic.
Moreover, he wrote
it is unlikely that any judge would have allowed the process of Maxwellisation – whereby witnesses are sent letters allowing them to respond to criticism in any draft report – to play such a dominant and negative role.
Chilcot has elevated Maxwellisation into a central feature of his inquiry even though it is only a convention, not a legal requirement.
Lord Morris too then had a hearing on the Today programme, where like Lord Lester he said
I’m no part of any establishment.
No one ever seems to be, do they? You should, he said
give a reasonable time … to those who are criticised
but the time Sir John is taking, he said
is an unfair amount of time so far as the public are concerned.
Lord Morris called for a statutory timetable, saying
the Prime Minister can pull the plug
and suggesting that perhaps some new team be sent in to inquire into whether some sort of interim report could be published. Somewhat laughably he said
it’s Parliament ultimately that is the guardian of independence
whereas of course the inquiry’s independence from politicians in Parliament is one of the most important things about it.
Far more sensible than either of these respected silks was the non-lawyer Lord Owen, who spoke that afternoon on Radio 4’s lunchtime news programme The World at One. He also said the inquiry had taken too long,
but the main reason it has taken so long has been the withholding of evidence which the committee wanted and had every right to demand.
He rightly mentioned the inquiry panel’s demands to the government to see correspondence from Tony Blair to President Bush, adding that
the delay that went on over that period was certainly 18 months, and it may have been a lot longer.
In his view
very important evidence came out as a result of the committee holding very firm through 2012 and 2013, even to 2014, that they would not publish unless these papers came out; and eventually a compromise was struck.
Lord Owen also reminded us of the enormous scope and scale of the inquiry compared to the Bloody Sunday inquiry, which was run by a judge and fully lawyered-up, and ran for ten years although it was investigating the events of only one day.
You’ll recall that Baroness Butler-Sloss and Lord Lester assumed no Maxwellisation “deadlines” had been set by Sir John Chilcot; and that Lord Lester suggested he ought to have set a renewable deadline of perhaps three months.
Well, the following week the former overseas development secretary Clare Short also went on to The World at One to discuss the inquiry process, in spite of being asked to keep it confidential. Her aim seemed to be to do some of her own Maxwellisation live on radio. But her interview made several interesting things clear: first, that she was indeed set a deadline of a few weeks to respond to Maxwellisation, some time ago; second, that having seen that part of the report which criticises her, she thinks it will be very long; and third, that she thinks many people may be criticised in it.
The criticism, she said
seems to go right across Whitehall …
As far as Maxwellisation is concerned, she said that
there’s a time limit for everyone to comment
the suggestion that Maxwellisation is causing all the delay, I don’t think is true.
She had been given a deadline, she said, of
a few weeks, and the deadline was a long time ago, and I think everyone was given that deadline … a long time ago.
This is of course a shorter, more disciplined timetable than Lord Lester suggested a lawyer with common-sense might impose. Clare Short went on to say
this suggestion that … people are endlessly being consulted, I think, is untrue.
The inquiry had written to her
with an absolute deadline to respond, and that was a good time ago … That suggestion that’s been endlessly put out, as though some people are playing the system, is false.
Clare Short’s interview on its own blew out of the water the assumption made by Lady Butler-Sloss, Lord Lester and Lord Morris that no deadlines were set at all. And on the very same day Sir John Chilcot issued a statement in which he made clear that
Individuals have not been given an open ended timescale and Maxwellisation is not a process of negotiation. The Inquiry has remained in control of its deadlines throughout the process. In some cases, the responses sent to us required detailed and complex analysis which is taking time.
The Maxwellisation process is essential not only to the fairness but also the accuracy and completeness of our report. It has already led, for example, to the identification of government documents which have not been submitted to the Inquiry and which have in some cases opened up new issues.
The campaign of political and media chuntering against Sir John Chilcot is absurd; and it’s wrong for senior legal figures to have lent their voices to it. This is a vast inquiry, covering years of government policy, military operations and administration in occupied Iraq: a far bigger scope than that of the Bloody Sunday inquiry and bigger too than the Scott inquiry, which took three and a half years. A key figure in the inquiry, Sir Martin Gilbert, died this year after falling ill in 2012; and the panel apparently spent years in conflict with government, doing its job of uncovering documentary truth. Even what seems (in fact rather than imagination) to be a tightly controlled Maxwellisation process has apparently put Sir John on the trail of yet more undisclosed papers.
Sir John’s critics should shut up and behave on the back seat, so he can focus on the remainder of the journey.
Chilcot is certainly defying his critics re timing.
I wonder if this is a good sign about the report’s overall independence. He clearly is not someone to be easily knocked around.
Turning a little Machiavellian, the other point to make about this fuss is that, from the point of view of those likely to be criticised by the Inquiry, a “hue and cry” which questions its competence is all to the good.
A conspiracy theorist might even suggest that the more the Inquiry’s credibility can be questioned (with really anything that comes to hand), the more easily its final conclusions – when they do finally emerge – can be dismissed.
They don’t like what you’re going to say, Sir John, and they’re already manoeuvring to discredit you…
A few points:
1. Most of the delay to date has not been with “Maxwellisation” but with the wrangling between the inquiry and the cabinet office over release of material – in particular, communications between Blair and Bush. Maxwellisation has nevertheless been going on for almost a year now.
2. Chilcot explained that the terms of reference included reporting on the way decisions were made and actions taken; what happened and what lessons could be learned to improve any future decision-making. On 30th July 2009, Chilcot said that the inquiry would not “shy away from making criticisms”. There are criticisms about process and criticisms about individuals. It is by seemingly going to the latter that Maxwellisation has raised its ugly head. Given that Chilcot also said that “nobody is on trial”, he might have done better to have just reported facts and, as far as possible, not gone along the criticism of individuals road.
3. Chilcot also said he would look at the legality of the war. Since the inquiry is not a court of law, his conclusions will not be authoritative. Probably only the International Court of Justice could make a ruling on the legality ?? IMHO, better then that Chilcot avoids commenting on legality.
4. The independence of this inquiry is beginning to look questionable as politicians pile on pressure. Chilcot is right to resist. Why should he (and the others) sign a report which they feel has been produced under pressure? Given that it has already cost north of £10m the critics ought to shut up and let the inquiry complete its work.
5. What happens when the report is produced. It seems that it goes to Cameron. Will we then see another raft of lawyers analysing it to see what can be made public etc? If that happens then the public may never see the full report – only some redacted and gisted version. That would be highly unsatisfactory. The process for publication ought to be made clearer and not just left to the PM and the cabinet office.
6. Sadly, the wide remit of this inquiry has revealed problems with inquiries in general. I know Jack of Kent has expressed views about this. Inquiries, to be of value, need to be highly focussed and operate over much shorter timescales (e.g. Leveson etc).
7. Should this inquiry have had a judge presiding? I am not sure. That would have probably led to counsel to the inquiry and then, in turn, to witnesses wanting legal representation. The whole thing would have become what Lord Denning referred to in the Maxwell case as a “lawyer’s holiday.” The delays would have been considerable and the costs astronomical.
I suspect it is a good sign, David. Who knows whether the report will be any good? We can’t know, and even when the time comes I suspect the thing will be so vast that few people will read more than a few highlights. And people mean different things by “good” of course. For some people the report will be no good unless is says “Tony Blair is a war criminal”.
But it does seem as though it’ll be an independent report, which is what everyone said they wanted.
I’ve never understood this sort of argument, to be honest. It’s often claimed that delay in itself suits those criticised, which I don’t think makes any sense: why would it? And I think this argument, that moaning about delay suits those criticised, is really just another version of the same thing.
Actually I think if you wanted to discredit the inquiry, you’d take Clare Shart’s approach. You’d defy the confidentiality of the process, say that the draft you’d seen was sloppy, its whole approach wrong and the criticisms of you in it misconceived — and you’d get your defence in first, in public. That’s exactly what she did on the radio.
The real problem this inquiry has is that a significant and vocal section of the population (I don’t think it’s a majoruty, really) believes it knows all the answers already, and that Sir John is the humble scribe tasked with writing them up. Those people will say its a brilliant report if it concludes the war was “illegal” and Blair a “war criminal”; otherwise they’ll say it’s a useless whitewash. The newspapers will take I think something like 24 to 48 hours to decide which one they think it is, and relatively few people will be interested in looking any deeper.
All interesting points. On your point 2, I don’t think Chilcot could possibly avoid criticising individuals. For many observers, the entire point of this inquiry is to criticise Tony Blair, plus perhaps Jack Straw and Lord Goldsmith for good measure. I just don’t think the idea of a no-blame report was ever sustainable.
On point 3, I agree that it’d be a mistake for Chilcot to attempt a definite ruling on the war’s legality, and I very much doubt he will. This is something that (if I’m right) is bound to disappoint and outrage many. But I don’t agree he should stay off the legal stuff completely. I expect him to say a lot about how legal advice was sought and given inside government, and for his conclusions to cause reforms.
On point 4, I’m interested to find it’s cost £10m so far: http://www.iraqinquiry.org.uk/news/2015-04-15-costs.aspx. It seems the Scott inquiry 20 years ago cost £7m (presumably at 1990s prices) http://ukconstitutionallaw.org/2013/02/28/carol-harlow-what-price-inquiries/ and the Bloody Sunday inquiry seems to have cost at least 20 times Chilcot: https://en.wikipedia.org/wiki/Bloody_Sunday_Inquiry#Controversy_over_cost_and_duration So I reckon Chilcot’s not doing badly on cost.
[…] The Inquiry Chairman – Sir John Chilcot – has issued a statement (26th August) indicating that the last responses to the Maxwellisation process are to be received “shortly”. This statement was brought about by a number of high profile individuals criticising the delay. Critics have included Baroness Butler-Sloss, Lord Lester of Herne Hill QC, Lord Morris of Aberavon QC. Carl Gardner on his Head of Legal Blog looks at some of these criticisms – Sir John! Sir John! Are we there yet? […]
Re my point 2 – I agree with you. Criticism of some individuals would be unavoidable. Even if expressed as neutrally as possible, there would be at least implied criticisms. My only thought on this was to avoid criticism of individuals as far as possible. Chilcot has probably done that.
On point 3 – legality – I again agree. The process for obtaining legal advice on these matters is clearly fair material for comment.
Almost no matter what Chilcot says, there will be thousands dissatisfied. Blair is NOT going to be named as a “war criminal” because, quite simply, he is not one. Nevertheless, I would expect there to be adverse comment about planning for the management of Iraq once the Saddam regime had been removed. The lack of such planning was very evident even at the time. Blair (and his Cabinet) should have to take some responsibility for that. There are also aspects such as treatment of various prisoners etc but those have mostly been the subject of other inquiries or procedures.
Many thanks for your article and responses. All much appreciated.