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The constitutional failure that has now been laid bare

Parliament must assert itself to avoid a repetition of Blair's Iraq fiasco

Peter Hennessy
Saturday July 24, 2004
The Guardian


The British constitution is a thing of magic, mystery and - as we have seen in the days since the publication of the Butler report on intelligence dealing with Iraq, its weapons of mass destruction and the path to last year's war - sometimes a thing of profound irritation, too. Anyone who had observed the largely unwritten constitution closely over the decades knows that it is a Tommy Cooper phenomenon. As the much-missed comedian might have put it: "You take a bit of the law here, a code of practice there and add a dash of custom and precedent and - just like that - you have the British constitution."

This was very apparent last Monday evening, in the conversations which swirled around a long-planned British Academy seminar on the wider issues arising from last year's Hutton report into the circumstances surrounding the death of the weapons expert, Dr David Kelly. Lords Butler and Hutton were present at the meeting in London, which turned into a session on the combined significance and impact of their documents. Their lordships listened, but kept their own counsel. The presentations on trust in government and the media; the use of evidence in Whitehall; and the legal aspects of judge-led inquiries will eventually be published. But, for the moment, who among the 250 attending said what must remain unattributable.

During the seminar and afterwards over dinner, I scribbled down the accumulation of anxieties which peaked when a very central and authoritative figure concerned with the proper management of the state, in a rare burst of controlled passion, described the two reports - Butler's in particular - as pointing to "a constitutional failure". His conclusion had been triggered by another observation around the dinner table that the "triple safeguards" of the British system - party, parliament and democracy (by which the speaker meant the next general election) - were all likely to let us down in terms of bringing Tony Blair and his government properly to account for taking the country to war on the basis of the intelligence Hutton and Butler between them have placed in the public domain.

It must be remembered, too, that neither of those inquiries was set up as a voluntary measure by a government keen on a touch of freedom of information that might give us all a chance to reach an informed judgment upon its actions. But for two contingencies - the suicide of Dr Kelly and President Bush's decision to commission an inquiry into WMD and intelligence - we would have precious little to go on as electors reaching a judgment retrospectively on what the Butler report called "the vital matter of war and peace". And, when the Freedom of Information Act 2000 goes into operation on January 1 2005, we shall only be marginally better placed. For, by my estimate, around three-quarters of the material Hutton and Butler published will be within the intelligence-related exemptions in that statute and, therefore, immune from disclosure.

No wonder the highly placed figures around that British Academy table felt we needed a long, tough look at our constitutional arrangements. On the back of the menu, itself light green in colour, I sketched out a "green paper" containing the things which a strong and confident parliament - if we possessed one - would look at post-Butler and Hutton. Only two of them fell into the category of matters for which parliament could frame measures that might be voted upon and enacted:

1) a resolution establishing a convention that before a government takes a decision to deploy British armed forces for the purposes of hostilities, the attorney general's opinion on the legality of that action should be divulged in full to parliament;

2) a UK equivalent of America's War Powers Act should be put in place, requiring a Commons vote on a specific motion authorising the use of force before such force can be applied.

Nothing will happen, however, unless parliament raises its game to a degree unknown in recent times and makes a sustained case for a rebalancing of power at the heart of the British constitution, in which the power of parlia ment is increased at the expense of prime minister, cabinet and Whitehall. I fear that this will not happen because, as Ernest Bevin used to say of his beloved working class, it is the "poverty of their aspirations" which lies at the heart of the problem.

Another equally vital requirement cannot be the subject of a parliamentary resolution or a statute, for it relies on human factors, although its essence is already encased in the cold prose of the ministerial code whose guardian is the very prime minister who has aroused this spiral of constitutional anxieties. It reads:

"Cabinet and cabinet committee business consists chiefly of questions which significantly engage the collective responsibility of government because they raise issues of policy or because they are of critical importance to the public on matters on which there remains disagreement between government departments."

The 24 full cabinets at which Iraq was discussed before the war may have kept to the letter of that paragraph. But, as Butler showed, they certainly did not do so in terms of using what the report termed the "excellent quality papers ... written by officials" that were prepared but not circulated to ministers. As Blair's old mentor Roy Jenkins might have put it, the Blair cabinet failed to rise to the level of events. And to borrow a phrase of Disraeli's, an injection of water would have stiffened their backbones.

Their collective failure stands alone in the years since 1945 - apart from that of Sir Anthony Eden's Conservative cabinet at the height of the Suez crisis, a week before the attack on Egypt began, when ministers failed to press the prime minister when he told them that "secret conversations" in Paris with the French and the Israelis now made it unlikely that Israel would attack Egypt alone. In other words, that the three powers had colluded in secret, a fact Eden flatly denied in the Commons a few weeks after the invasion was halted by American pressure at the UN and on the money markets.

Eden left office two months after the war ended, broken in health and spirit. Sixteen months after the fall of Baghdad, Blair is still in No 10. But the impact of the Hutton and Butler reports means that already, in one sense, he is comparable to Eden. For a generation after Suez, not "doing an Anthony" was almost a governing norm in Whitehall. It will now, I think, be impossible for any future prime minister and cabinet - let alone Blair and his colleagues - to take us into war without being more fastidious in the testing and use of evidence from the cabinet room down. Not "doing a Tony" could prove just as powerful an impulse in tomorrow's Whitehall as not "doing an Anthony" was in yesterday's.

Peter Hennessy is Attlee professor of contemporary British history at Queen Mary College, University of London. A version of this article is published in this week's edition of the Tablet