Chilcot approach crowds out the rule of law

Publication of the Chilcot inquiry’s report has been so long coming that journalists and lawyers referencing it find themselves needing to check back on basic facts – making sure time hasn’t conflated it in their heads with the inquiry into the death of Dr David Kelly; trying to recall its stated purpose; even questioning their recollection that most of it was heard in public; realising it was set up by Gordon Brown, not David Cameron; and of course, checking they have the right year.

Truly, leaking the thing would be an act of kindness. We, and the people named in it, could at least then crack on with arguing about the actual content.

It’s farcical, of course. But set alongside other flashing dots on the legal-world radar, it points up the increasingly dystopian character of public policy’s current relationship with the law.

The legal bills associated with this non-judicial inquiry were clearly large – though we will never know how much advice, prepping and practice was involved.

Begging the question ‘when is a court not a court?’ the inquiry’s website lists legal representation as a ‘frequently asked question’. ‘All the witnesses were offered legal assistance in preparing for the hearings,’ it notes, ‘and were entitled to have a legal representative present to advise them during the hearing.’

Of course Chilcot, a civil servant and not a judge, won’t be finding anyone ‘guilty’ – yet many of those attending as witnesses were rather well lawyered-up, heavily primed on what they shouldn’t say, and lent the whole circus the air of a quasi-court.

The ‘right of reply’ given to those criticised in the unpublished report are being given, as has become standard with inquiries, is not a few days to digest their mentions and prep a statement, but a lengthy stretch to argue over the contents. Using their legal teams? If we ever know that, it won’t be any time soon – though it is widely suggested. (Tony Blair insists he is not the current cause of the delay.)

Let us not forget this – the report is the non-judicial, non-determinative take on lessons to be learned from events by a couple of history academics and three ex-civil servants.

This nicely upholstered process is of course a reverse image of what is happening in the actual justice system where determinations really are made, yet where we increasingly rely on unrepresented litigants in person to be guided by judges who will also make life-changing decisions for them.

By contrast, Chilcot risks only the embarrassment and reputation of those concerned. Couldn’t the latter have got by with a few McKenzie friends?

Excepting the fact that he is a judge, the same observation could be made of the Leveson inquiry into the culture, practice and ethics of the press. In Leveson, heavily lawyered combatants acted, and were treated, as if their liberty was at stake (which even for those who served time, it was not). But these are much more than contrasts that make a point. Instead, at stake is the rule of law, which through design and selective impecunity is being undermined in a fairly serious way.

These uber-inquiries and their close, if mostly meaningless, association with legal advice and process are covering a greater surface area of our public life just as the parts which are determinative and transparent are in retreat or under huge stress.

The impression left, more strongly than ever, is that lawyers and the law are there to protect the powerful and the wealthy. Supporting that view is the fact that the closest the latter two groups come to scrutiny is through a process that lacks the power to look at them closely, and how they employ lawyers to frustrate acts of scrutiny.

Eduardo Reyes is Gazette features editor