Selecting the Selectors
From The Guardian
Given the widespread disquiet at what is perceived as Hutton’s extraordinary lack of balance, a wider question immediately arises: how was he chosen at the outset, and on what criteria? The key requirements after all should have been rigorous independence and strict impartiality. And now will these requirements be fully met by the appointment of Lord Butler’s committee, with its rather convoluted terms of reference and its meetings been held in secret? Perhaps we should pay rather more attention to how these committees of inquiry are set up in the first place because the process by which they’re formed may (subconsciously, as Hutton would have put it) influence a good deal of the final report.
Both Lords Hutton and Butler were of course chosen by the Prime Minister acting on the advice of senior officials. In my experience in Whitehall, most Departments of State, and also No. 10, keep a voluminous catalogue of names in reserve for every kind of high-level appointment, both the so-called ‘great and the good’ as well as very many others, selected mainly by senior aides and officials and occasionally by Ministers. A brief characterisation of the qualities and experience of each name is also appended in most cases. There may or may not be comments added on the reliability of the person for particular government tasks. From this reservoir a range of potential names is selected where a key role needs to be filled, whether the chair of an important advisory body, an ambassadorial or top civil service appointment, or top posts in standing commissions. Once a short list is agreed within the Prime Minister’s inner circle, advice and recommendations are then put to him, and he makes the final selection.
This process often works satisfactorily, but occasionally it does not. An obvious example is the Widgery inquiry into the Black Sunday killings in Northern Ireland in 1972, the conclusions of which were so strongly disputed for a quarter of a century that another inquiry had to be set up, under Lord Saville, to reassess the evidence further. Similarly, Lord Denning’s judgement in the Profumo affair in 1963 that people of great eminence could not misbehave so badly appears now (and then) rather antiquated and other-worldly. But such cases of concern are not confined to learned judges conducting solo inquiries. In the grey interface between the realm of politics and the scientific expertise demanded by an increasingly technological society, very considerable effort is put in Whitehall into choosing chairpersons who, their undoubted academic and technical merit notwithstanding, can be relied upon to deliver ‘sound’ or ‘safe’ verdicts which will not embarrass the government in highly sensitive areas of policy. Their capability and integrity is not at issue; what is called into question is the rigour of their independence from Establishment influence.
This question of unequivocal independence is critical. Is it right that the Prime Minister (and this is a reflection on the powers associated with the post, not on the present incumbent) should select the person to conduct the inquiry, and should decide his remit, when his own actions are the main subject for investigation in the inquiry? On whatever precise criteria Lord Hutton was in the event chosen, it is significant that the remit given him was very narrow, sidestepping the wider and much more important question of whether the country was taken to war on a false prospectus. Why? Is that a decision that should have been left to the prime player under examination in the inquiry? And having given Hutton those narrow terms of reference, is it right that the Prime Minister should now alone decide whether the new inquiry should embrace the political utilisation of intelligence and the wider causes that took us to war when his own management of those issues would be the main object of scrutiny?
Is there a better way? I believe that on matters of overriding national strategic importance, most notably where this country has been taken to war, the question of whether there should later be a full and open inquiry into its causes and their handling, who should conduct it, and what its terms of reference should be, ought to be vested in a high-level constitutional body as far as possible independent of Government influence. The membership of this body should be selected by Parliament, not by Government itself.
But there is a snag here. Who selects the selectors? Whatever selection mechanism is adopted to choose a high-level committee of this kind, how can it be done without it being indirectly controlled by the Government through its majority in Parliament? If the real lesson of the Hutton saga is that unambiguous independence of the Executive and perceived balance in the conclusions are the absolute bottom lines for carrying credibility with the public, how can that be secured?
In fact the Public Administration Select Committee has already decided to carry out an inquiry into how inquiries are set up, how they are chosen and how they operate. It could hardly be more timely. Whilst these issues can be resolved in the US through the separation of powers between President and Congress, with Congress retaining autonomous authority in its own right, no such constitutional solution is readily available in the UK where a single line of authority proceeds from the Prime Minister at the top all the way down through the whole of the Parliamentary system. If Hutton has done one thing, it is to expose this as a central constitutional issue in this country which urgently now demands an answer.