Political Commentary: Nice move, John, but you reckoned without the judge

WHEN, 16 months ago, Mr John Major set up the inquiry into arms for Iraq, there were those who thought he had made an untypically shrewd move. The strongest criticism to be heard at the time was not that Sir Richard Scott, a Lord Justice of Appeal, and his counsel, Miss Presiley Baxendale, would be investigating matters which would be better left undisturbed. It was, rather, that an inquiry conducted by a single judge would be indistinguishable from Lord Denning's Profumo investigation.

The form of the Denning investigation had been denounced by Lord Salmon's Royal Commission on Tribunals in 1966. But there was a crucial difference between the Denning and Scott inquiries. Lord Denning did his work behind closed doors. Lord Justice Scott is doing his, not perhaps in the full glare of publicity - that would require the presence of television cameras - but certainly under the public gaze. Rarely have I found friendlier attendants at an inquiry. Apart from laying a mat saying 'Welcome' and offering a restoring glass to late arrivals, they could not be warmer.

Is it, I wonder, wholly fanciful to attribute this quality to the personalities of Sir Richard and Miss Baxendale? They are humorous, clear-headed and without pomposity. They are also independent of the Government and of party politics generally. They are accordingly - I will not say out of sympathy with but, rather - untypical of our public life since 1979.

Sir Richard is also industrious and clever. What can Mr Major have been thinking of when he appointed him? That is the question which Conservative MPs have been asking for some months now and, with greater insistence, in the past week.

To most MPs, perhaps to most prime ministers, judges are all more or less the same: elderly parties who ask who the Beatles are, drink port and, in official inquiries, come down on the government's side. In default of this happy outcome, their inquiries grind on with such tedium that the papers lose interest and their reports, when they arrive, excite little comment and are laid to rest in the dusty obscurity of learned libraries.

Lord Justice Scott's report is unlikely to be like this, though it will be a valuable source. Certainly his hearings have not been tedious. It looks as if we shall see the resignation of Sir Nicholas Lyell, our personally sympathetic, politically luckless and legally inept Attorney-General. It further appears that Mr William Waldegrave is being set up to accompany him back to the bosom of their respective families ('What we want from you, Waldegrave, at this stage of the electoral cycle, is a pointless sacrifice').

If Mr Waldegrave went, it would be for misleading the House over the 'guidelines' on exports to Iraq. He is no more - almost certainly less - culpable than many senior ministers. They are either retired, like Lady Thatcher and Lord Howe, or occupants of offices too senior for resignation to be insisted upon, like Mr Major. No matter. Mr Waldegrave put up a faltering performance on the stand, occupies a relatively junior position, once spoke disrespectfully of the Prime Minister's intellectual capacities and is accordingly disposable. Politics, as I have observed before, is a rough old trade.

But I have long believed that the guidelines question is not the most important. Guidelines are of their nature vague, lacking the force of law. Besides, most voters are in favour of exporting arms, if necessary to appalling regimes, provided people are kept in work.

With its unfailing instinct for grasping the wrong end of any political stick that may be presented to it, the Opposition has concentrated on this issue rather than on the Matrix Churchill affair. For, while the voters may not object to selling arms to ruffians, they take a different view of ministers who are prepared to see innocent men sent to prison to suit their convenience.

Whether the Matrix Churchill trio were technically guilty or not, the Government knew and implicitly approved of what they were doing; while at least one of them was employed by the intelligece services. Five ministers - Mr Kenneth Clarke, Mr Tristan Garel-Jones, Mr Michael Heseltine, Mr Peter Lilley and Mr Malcolm Rifkind - signed Public Interest Immunity Certificates which attempted to exclude documents from the court. The heroic Judge Brian Smedley, most unusually, examined the documents and, even more unusually, decided to allow them to be used as evidence. This resulted in the testimony of Mr Alan Clark which brought about the ignominious collapse of the case.

Mr Heseltine told the inquiry that he signed a modified version of the certificate originally presented to him by the Attorney- General, and did so reluctantly, on the Attorney's insistence. He further required that his reservations be passed on both to prosecuting counsel and to the judge. This was not done. An examination of whether Mr Heseltine's bravura performance means that he will soon succeed Mr Major - as the Daily Mail suggests and maybe hopes - must await another column. It is enough to observe that Mr Heseltine has detached himself from his colleagues. Notably, he has got out of that now slipping share, K Clarke Holdings.

Mr Clarke, for his part, said that his concern was to save the lives of spies. Mr Lilley maintained that the system was designed to protect civil servants' advice to ministers. The Treasury Solicitor claimed that whole classes of documents, dealing with this and other matters, acquired automatic protection. According to this doctrine, shared by Mr Attorney, the sole discretion was with the judge, who made up his own mind about where the balance of public interest lay.

This view of the law is misconceived, as Sir Richard indicated forcefully on Friday. Before an important case in 1968, judges had to accept a ministerial claim of what was then called Crown Privilege and, now, Public Interest Immunity. But there was no suggestion before 1968 that the minister should omit to make up his own mind and transfer his duty to the Attorney. There has been no such change since.

Moreover, in 1956 Lord Kilmuir, the Lord Chancellor, said: 'We propose that if medical documents, or indeed other documents, are relevant to the defence in criminal proceedings, Crown Privilege should not be claimed.' In a 1991 extradition case, Lord Justice Mann said that if, in a criminal case, the public interest in the lack of disclosure was weighed against the interests of justice, the weight to be attached to the latter was 'plainly very great indeed'.

Mr Attorney asserts that where a minister holds documents for which immunity could be claimed, he should automatically assert that claim. Sir Richard does not agree. We shall see whether Mr Clarke is criticised as well as Mr Attorney. He has promised on Question Time that he will resign if he is. I doubt it - the resignation, I mean, not the criticism. Lord Wilson once used his majority to override a report by Lord Radcliffe. I do not think Mr Major's is big enough for him to do the same to Lord Justice Scott.