Escaping the inescapable

By Tom McGurk (for the Sunday Business Post)

When deciding the first Court of Appeal hearing of the case against the six `Birmingham Bombers’ Master of the Rolls Lord Denning faced a truly unpleasant choice.

Either he accepted the case presented by the massed ranks of crown prosecutors and the cream of the British CID in front of him, or he accepted that the six men were innocent.

And if that were the case, then they had been beaten to a pulp and forced (four of them) to sign false confessions, and would be wrongly convicted of Britain’s greatest ever case of mass murder.

It was not an easy choice, because to accept the case of innocence, he had to accept that the six men had been deliberately framed by some of the most distinguished police officers in the country.

Here was a clear case where the good lord was being expected by the defendants to admit that the establishment forces of law and order, the very people charged with administering the Queen’s justice, were liars and perjurers, and had behaved in a totally criminal fashion.

Denning looked at what was looming in front of him, and in dismissing the appeal made a remark that to this day has overshadowed his considerable legal legacy.

He said that he could not allow this ``appalling vista’’ to be contemplated.

The men were returned to their cells for another six years before they were finally proved innocent and released.

I had to think of Lord Denning this week as Lord Butler prepared to deliver his verdict on the intelligence that created the case by which Tony Blair took his country to war in Iraq.

Once again a truly ``appalling vista’’ faced another establishment scion. Butler was faced with a strange quandary.

Having been given full access to the very same intelligence sources that convinced Tony Blair that war was the only reasonable option, he was then presumably required to come to the same judgement, or otherwise.

Quite simply, ``if it was good enough for Mr Blair would it be good enough for Lord Butler?’’ was the essence of his task.

With considerable forensic skill and with immense dedication, Lord Butler examined, weighed and parsed the intelligence.

And he came to the only conclusion that one could reasonably come to, given the nature of the material he had before him: he found it flawed, inconsistent and contradictory.

Even worse, there was nothing in it that pointed undeniably to the possession of any weapons of mass destruction by the Iraqi regime, or even evidence that they had current and ongoing programmes to acquire them.

Of course Butler could not but come to that conclusion, because now that there was an inquiry under way, that intelligence was out in the open and would almost certainly come into public view had he tried to disguise its fragility.

So here was Lord Butler’s ``appalling vista’’ - essentially, to follow through on the paucity of the evidence and to conclude that inevitably the case for war was correspondingly poor. But to do so would almost certainly have brought the prime ministerial career of Tony Blair to an end.

But of even greater significance than the political career of a prime minister would have been the wider legal fallout of such a declaration.

In fact, the advice of the British attorney general, Lord Goldsmith, to the effect that the invasion of Iraq was legal would have actually been the most significant casualty of the whole affair.

If Butler had concluded that there was not enough intelligence to justify the invasion, the attorney general’s declaration about the legality of the war would have fallen.

And in that case all of those involved in that decision and the troops who killed or captured Iraqis would have been liable to prosecution for war crimes. If Blair was wrong, then so too was Goldsmith.

So Lord Butler’s ``appalling vista’’ was not just about the political careers involved; it could have had the most extraordinary legal implications for the entire British government.

In the face of such a quandary, and in the spirit of the late and lamented Lord Denning, Butler produced a verdict that flew in the face of both logic and law.

He concluded that despite the fact that the evidence did not confirm a threat that could justify going to war, the subsequent decision to go to war was nevertheless not the fault of those who took it.

The report is a model of the truly tortuous road Lord Butler had to travel to reach the point where he was safely escaping the inescapable.

He did it with no little skill, and with the sublime tautological arts of the very model of a model civil servant. His premise was as brilliant as it was barefaced.

Since there was no evidence anywhere that the British government had added anything to the original intelligence, and since it has passed through the Joint Intelligence Committee, which of course was composed of both senior intelligence officials and politicians, nothing untoward could have occurred.

Of course, what he didn’t comment on was what was removed or ignored from the intelligence reports: the question marks, the troubled commentary, the implicit warnings - above all the field and analytic intelligence officers’ assessments.

It was, all in all, a brilliant stitch-up, a piece of paper that could allow Tony Blair to go to the dispatch box and declare not only his innocence but also his moral rectitude.

No wonder he was smiling as he headed down to the Commons on Wednesday.

If he ever had any doubts about his youthful ambitions to change the British establishment, with its ancient lineage and continuous determination to ring fence the levers of power, he will always know better than to try in the future.

Here was a salutary lesson for an older Tony of why those establishment forces exist and how, in the hour of need, they can effortlessly circle the wagons to protect their own.

How well New Labour has learned old lessons. Now Tony understands why they call it the Mother of Parliaments.

Urgent Appeal