THE SECRET GARDEN OF THE CROWN

Anthony Sampson says that the Scott Inquiry has revealed the truly undemocratic nature of the governance of Britain

FOR SOMEONE who has spent many years investigating and describing the 'anatomy of Britain' and the workings of the arms trade, Lord Justice Scott's inquiry into the secret export of arms to Iraq is both fascinating and humiliating.

It is humiliating to realise that there has been a whole area of British government, on the crucial frontier between ministers and officials, which has only now been opened up — to our amazed gaze.

It is as if a garden gate marked private, which appeared to lead into a small court- yard, turned out to lead into a garden which went right round the back of the house; and it gives an alarming aptness to the old description of government as 'the secret garden of the Crown'.

And having also written a book about the arms trade, I find it still more exasper- ating to realise that the Government's promises to reveal its worldwide arms sales were pure humbug, and that conversations with British diplomats were a waste of time.

While two years ago John Major was taking the lead in supporting the UN Arms Register, to which Britain would report full details of its arms exports, the Foreign Office was going to intricate lengths to conceal Britain's past exports via Jordan to Iraq. With this kind of systematic conceal- ment from Parliament, how can anyone take official statements about arms control seriously?

But it is the deception at the heart of government which is most worrying; above all the casual confidence which emerges from the documents provided to Scott. For they assume that no one will ever discover the deception. It is almost as if officials were obeying Groucho Marx's dictum: `Never tell the truth when a lie will do.'

And it is clear that only someone as relentless and — within the context of this inquiry — as all-powerful as Lord Justice Scott could reach the truth. He has now penetrated the secret garden, which no public enquiry has penetrated before. And no one watching his enquiry, with its relentless questioning and dramatic break- throughs, can see the British Government in quite the same light again. Of course his methods are wildly unfair by the standards of the law-courts; first the softening-up by 'the nice cop', the inno- cent-sounding Presiley Baxendale; then his own ruthless and repeated questioning, with no defence counsel to reply. Scott (as one of his high court colleagues explained) is almost unique among judges in having no awe for the establishment, while expecting it to behave impeccably.

But however unfair, it's now clear that only such a battering-ram could have bro- ken through this well-locked door. Each stage of the assault has revealed further defences and deceptions: from the minis- ters who were found to have concealed the arms-selling to Iraq from Parliament, to the departmental civil servants who con- nived with them, to the diplomats who concealed the destination of weapons from their own colleagues.

Now Scott has reached the central thick- et of the secret garden: the crucial ques- tion of the ministers' responsibility for their departments — the hinge between the executive and the legislature.

His specific interest has been the work- ings of 'public interest immunity', or 'Crown privilege' as it used to be called: the means by which ministers can conceal documents in a trial from the public eye. In the case of the arms to Iraq scandal, four Cabinet ministers felt obliged to sign public interest immunity certificates 'No, no, always land buttered side down!' intended to withhold from the defence of three men information which would have exposed the extent of government complic- ity in the offence for which those men were being tried.

Must ministers sign public immunity cer- tificates, even when they believe that the documents should be disclosed? The ques- tion, it turns out, has never been publicly analysed or discussed before outside the law-courts; and previous ministers, in or out of office, have never explained how easily the certificates can be abused — or how dangerous they can be in the con- frontation between secrecy and justice.

Now Scott has revealed the full scope of the certificates; and more seriously the full power of the goverrunent lawyers — a thousand of them according to the attor- ney-general — who have virtually dictated to ministers what documents should be withheld.

It is the lawyers, we now realise, who are the guardians of the secret garden, with a confidence which is breathtaking. Lord Hailsham, the former Lord Chancellor, explained on Panorama that when Michael Heseltine was asked to sign immunity cer- tificates, he 'shouldn't have bothered his little heart about it'.

That smug arrogance has lain behind the assumptions of other government lawyers: that ministers, even on a critical issue, should not follow their personal instincts or beliefs, but should rely on lawyers who know all the precedents and can provide all the necessary safeguards.

Yet it was clear that the certificates, even in this crucial case, got scant attention from the lawyers. Sir Nicholas Lyell last Thurs- day assured Scott that they were not mass- produced but 'tailor-made'. When Scott sharply asked, 'Who was the tailor?' Lyell answered it was the legal adviser; but Ms Baxendale soon pointed out that the major part of certificates had a standard text, with only minor modifications.

The goverrunent lawyers have made much of precedents in case law; but the precedents can be very misleading. Lyell made much of a judgment by Sir Thomas Bingham in 1989 which defined the minis- ter's duty to claim public immunity; but Bingham is a lawyer who has always been on the side of disclosure; and his concern in the case cited by Lyell was that the min- ister should not be able to use immunity as a trump card, selecting only the documents which support his argument.

In fact the law about immunity certifi- cates remains obscure, and urgently needs clearing up. But most court judgments have insisted, as Scott emphasised, that the min- ister not the lawyers must be the ultimate judge of whether to claim immunity.

The crucial frontier between ministers and lawyers, which Scott has now mapped out, reveals a serious flaw in the democrat- ic system. Sir Nicholas has continued to insist that ministers must sign, even if they (like Heseltine) do not believe they require immunity and 'have an instinct for justice'; but this denies the basic democratic princi- ple of a minister's responsibility to Parlia- ment.

The certificates are a good test of a min- ister's sense of responsibility. In the past some ministers have been quite prepared to defy the pressure to sign, including Leon Brittan when he was home secretary. He threw some certificates back at us,' recalled one very senior ex-official: 'and a good thing too.' But Sir Leon is himself an able lawyer, and was not intimidated by his profession.

Most of the ministers involved in the Matrix Churchill case have now revealed that they were uneasy about it at the time; but they all, including Heseltine, finally signed the certificates. The fact that Hesel- tine had misgivings which Lyell did not bother to pass on to the court was one indication of how little the government lawyers worried about what any minister thought.

But the test question emerges from the trial itself: what would have happened if Paul Henderson and the other two arms sellers had been sent to jail?

Lye11, backed by other government lawyers, has explained that 'the system worked exactly as the common law intend- ed it to do'. That is, the judge read all the documents, ruled which documents should be kept secret, and continued the trial until Alan Clark changed his evidence and revealed that the Government had approved the arms sales, whereupon he stopped the trial and revealed the secret documents.

But if Clark had not changed his evi- dence, and if Henderson's role as an agent for MI6 had not been revealed, the busi- nessmen would probably have been sent to Jail; even though the relevant ministers and MI6 knew the extent of Henderson's secret dealings with the Government. Intelligence sources insist that this would not have happened; they would have talked privately to the judge before the sentencing. But lawyers agree that this would be quite improper: the recognised way to stop such an injustice is for the attorney-general to tell the prosecutor beforehand.

And the attorney-general by his own admission was not informed. He had not read the documents, he did not know that the chief defendant was an agent for MI6, and he did not trouble to pass on Hesel- tine's concerns. There were, Lye11 admit- ted, 'a number of things which did not happen as they should'. But the most serious fault, which still needs to be publicly explained (though it may have been explained to Scott in cam- era), was the failure of MI6 to tell Lye11 about their link with the chief defendant; !or it is a failure at the key junction between secrecy and justice. If this is the system working as it was intended to, what O n earth would happen if it didn't work? But, above all, it is the disconnection between the lawyers and democratic supervision which is the most worrying of Scott's discoveries. It cannot just be blamed on the lawyers. In politics, as in private life, lawyers only take over when other forms of communication have bro- ken down. And all Scott's evidence points to a much wider complacency in govern- ment.

Of course all governments have pre- ferred to tell the public as little as possible about the workings of intelligence. But they always promised that the system had its effective internal supervision, which ensured that secrecy would not be abused. Even the most devout believers in secrecy must now be shaken by the lack of safe- guards. All the continuous deceptions by minis- ters and officials to protect their own posi- tion, the conspiring to conceal the truth, the systematic rewriting of evidence for witnesses, and the defiance of Parliament, were conducted with no evident concern about any independent overseeing of accountability or ethics. There was no safeguard. Hundreds of officials knew about the lies and cover-ups. A few pri- vately expressed unease, but none blew a whistle to try to stop it. If they did not complain about this outrage, the public must ask, what would they complain about?

No doubt many cover-ups under previ- ous governments were never uncovered But it is clear that abuses become easier and more likely when a single party remains in power.

One-party government is always danger- ous for democracies, as Italy and Japan have shown in the extreme, where the wholesale corruption has now put both the former ruling parties into opposition and disgrace. Britain may be much less vulner- able; but after 15 years under a single party, she is revealing flaws in a democratic system which depends so heavily on Parlia- ment, when there is no alternative govern- ment in sight.

In the arms for Iraq affair, Scott's evi- dence suggests that civil servants were reluctant to argue with their political boss- es; and many senior civil servants -7- according to Liz Symons, who represents their First Division Association — are now seriously worried about the threat to their neutrality as they become dependent for their careers on the whims of a single polit- ical party.

The FDA is now discussing a more effec- tive system of appeal against abuses of power, which would bypass their own head, Sir Robin Butler (whom many see as being too dependent on the ruling party), and would complain straight to an 'ethics tri- bunal' made up of three privy councillors from each of the main political parties.

But the civil servants are likely to oppose any breaking open of the inner secrecy which can protect their own mistakes. And only greater openness can ensure protec- tion against the abuse of power, as Scott has repeatedly made clear. 'Government should be prepared to share with the pub- lic,' he said before the summer recess, 'its concerns and aims and the reasons why important decision are taken.'

After Lord Justice Scott reports in the autumn, the Government will be under much greater pressure to provide more genuine open government — because Par- liament and the public will know how much has been kept from them. And then it will be possible to write a book about how gov- ernment in Britain really works.

Anthony Sampson is the author of the Essential Anatomy of Britain and The Arms Bazaar (Coronet Books).