BRAVE HUNTSMAN, BAD JUDGE OF POLITICS

Profile: Sir Richard Scott, rider

of horses, bicycles and Tories

NEARLY 40 years ago, a young man who had recently arrived from South Africa went hunting with the Whaddon Chase. The hounds arrived at a branch of the Grand Union Canal and the Master led them towards the nearest bridge. The dashing young South African had other ideas. He pointed his horse straight at the canal and spurred it into the jump. But he fell short.

Horse and rider floundered in the water while the Master effed and blinded. 'In South Africa we always jump canals,' the youngster protested, provoking a new crescendo of expletives. But the members of the hunt decided that they liked the new recruit, and that he was a brave young man, even if lacking in judgment.

Four decades later, Sir Richard Scott is still a bold rider; few 61-year-olds display such prowess in the hunting field. Fast fox- hunting requires fitness, and it is not easy for a busy judge to find time to take exer- cise; hence the cycling. Some of those who applaud his use of the bicycle might be less favourable if they realised that he does it in order to be able to kill foxes.

His love of hunting also explains some of his recent courting of the liberal media. It has been assumed that his desire for publicity arose either from a towering ego or a thin skin. Not so, say those who hunt with him: it is a calculat- ed attempt to create favourable publicity for hunting. It is a long time since a fox- hunting man was portrayed sympatheti- cally in the Guardian, and he hopes that some of the enthusiasm for him will transfer itself to his beloved sport. 'It is not a question of hitting at the Govern- ment,' said one hunting friend, 'he saw this as a good opportunity to tell the antis to get stuffed.'

So Sir Richard is as brave as ever in the hunting field, even if he no longer jumps canals. By all accounts, he is also as like- able as ever and excellent company. But his judgment is still being questioned.

Judgment, not ability — no one seems to doubt that. He took a first at Cambridge, as well as winning a rugger blue. Those who taught him predicted that he would have an outstanding legal career; so he has. The Chancery bar is famous for Jamdyce v. Jarndyce, and much of its work is arid: City and commercial cases, tax, wills; there are no Rumpolean diversions.

• Some Chancery banisters never go into court; many others never appear in front of a jury. Their cases are technical exposi- tions of complex law by highly learned barristers in front of equally gifted judges. Chancery work is the most intellectually challenging area of the law; it is also the most lucrative. For both reasons, it tends to attract the cleverest banisters, of whom Richard Scott was one.

He built up a good practice and was quickly identified as a future judge. As ever, he fulfilled expectations. After eight years in the High Court, he is now in the Court of Appeal, and, as Vice-Chancellor, designated as the senior judge on the Chancery bench. Before the Scott inquiry, it was expected that he would end up in the House of Lords as a law lord. It remains to be seen whether political con- troversy will help him or hinder him.

Unless he had been a good judge, he would not have been so highly regarded. But the very qualities that have served him well on the Bench, and which seemed to make him an obvious candidate to take charge of a big inquiry, may actually have rendered him unsuitable.

His mind works quickly. He is adept at cutting through to the nub of a difficult case and forcing counsel to concentrate their arguments accordingly. This generally works, because his assessments are correct. But one distinguished silk, who has appeared with, against and in front of Sir Richard, describes him as a 'risky' judge. For he is not only quick, but impatient; not only clever, but intellectually arrogant. He is also immensely stubborn. In the same QC's words, 'He makes up his mind quick- ly, and once he has done so, it is almost impossible to get him to change it. In fact, I have never known him change his mind one iota.'

Risky though it be, this may prove a good way of trying Chancery cases, as long as the judge who takes the risks is as acute as Sir Richard. However difficult a Chancery case may be, the outcome will depend on the interpretation of a limited number of documents and statutes: the issues at stake will be finite and, ultimately, clear.

In other words, the subject matter of the average Chancery case is as different as possible from that of the Scott inquiry. Sir Richard was chosen to run the inquiry because of his reputation for 'gripping' cases. The Lord Chancellor wanted a judge with a first-class forensic brain who would speedily identify the key questions, prevent the inquiry sprawling out of con- trol, and produce a quick and authorita- tive report. But Lord Mackay chose the wrong judge. Sir Richard certainly tried to grip the inquiry, in that he made up his mind with his customary speed and then became impervious to counter-arguments. But this time the Scott technique has failed; his report will not satisfy either of Lord Mackay's conditions. Instead of being quick and authoritative, it is slow and flawed.

The inquiry was necessary because the Matrix Churchill directors were wrongfully prosecuted. But there is a simple explana- tion for that. If Alan Clark had been as frank with his ministerial colleagues as he later was in court, there would have been no prosecution, and no inquiry. Sir Richard has also concerned himself with two other issues: the Howe guidelines on arms sales to Iraq and Iran and the wider question of Public Interest Immunity Certificates. All this required detailed evidence and close reasoning, but that does not need either a Tolstoyan canvas nor a three-and-a-half- year process. It is hard to see how Sir Richard could possibly justify his 1,800 pages; one is led to the conclusion that he has written such a long report because he did not have the clarity to write a short one. The flaws emerge from a basic misunder- standing. Throughout, Sir Richard has treat- ed the Howe guidelines as if they were the equivalent of a well-drafted will, capable of an exact and indisputable meaning. They were never intended to be any such thing; they were, as described, guidelines.

How could this be otherwise, given the circumstances which those guidelines were trying to guide? The northern littoral of the Persian Gulf is a minefield of conflict and barbarism. It is also a vital economic region. However repulsive the Iranian and Iraqi regimes, we can ignore neither their oil nor the opportunities for trade. It is also desirable to keep open the flow of intelligence.

All this requires subtlety and cunning; difficult judgments made on the basis of inadequate information; hard decisions as to how much to trust murky characters. This must be conducted on the basis of rai- son d'etat, which includes secrecy.

The Howe guidelines were a characteris- tically British exercise in high-mindedness — can anyone conceive of a French equiv- alent? — but they were drafted so as to allow latitude. A war was taking place; the authorities had to be able to exercise dis- cretion and judgment, and nothing in the Howe guidelines was intended to prevent them from doing so.

It must also be remembered that no weapons were ever exported to Iraq or Iran. The items in question were bridging equipment, machine tools and suchlike; the problem was that in almost every case there could have been a dual use. Iraq is a sophisticated economy; it also has exten- sive marshes and rivers. So it is easy to see why the Iraqis want to import machine tools and bridging machinery. But equally, all of that could be used to fuel the mili- tary machine. That is one of the problems of dealing with Iraq: anything it buys, even flour or medical equipment, could be used to assist the war effort.

There was a moral argument for cutting off all trade. But if we applied such argu- ments in all cases, how much foreign trade would we have left? There was a much stronger argument that once stalemate had driven Saddam towards a ceasefire, he would set about rebuilding his popularity by reconstructing his infrastructure. This could mean fat contracts for British firms, just as 10. rig as we had not completely soured rela- tions by our trade restrictions. If we had known that Saddam's response to the loss Of one war would be to start another one, a different view would have been taken. But the Policy-makers of the late Eighties did not have the benefit of hindsight. They were also subject to other pres- sures. Sir Richard has often given the impression of believing that in those years, the Foreign Office was solely concerned With Iran/Iraq. But that was the period When the Russian empire was disintegrat- ing, when South Africa was also moving towards fundamental change while the rest of the Middle East was in its customary state of flux. For the senior people involved, ministers or officials, Iran/Iraq was a minor part of an already overbur- dened schedule.

Sir Richard has no training as an histori- an. His South African background may also lead him to believe that all political issues can ultimately be reduced to black and white. As a boy, he once saw a group of white bullies marching along a pavement and driving blacks into the gutter. It is understandable that he should hate injus- tice; but is he aware how difficult it can be to reconcile the claims of justice and the exigencies of foreign policy?

Those who know him think that he is a Tory — possibly because of hunting — but he has never displayed any interest in poli- tics. This may not have prevented him from absorbing certain current facile assumptions, such as that secrecy can never be justified, that ministers are habit- ual liars and that judges ought to be empowered to override the political pro- cess. One QC who found himself sitting next to Sir Richard at dinner asked him why he had been chosen for the inquiry. 'I have no idea,' he replied. 'I can only assume that the Prime Minister dislikes the people who run this country as much as I do.' A flippant remark, perhaps, but not without significance. Like most of the so-called establishment, the judiciary has over the past few decades lost confidence in its traditional role, and has been searching for a new self-justifica- tion. Most modern judges are uneasy at the notion that law is the handmaiden of order, and that they are the law's teeth. Back in the 1950s, when Lord Chief Justice God- dard was happy to snap his jaws and to pro- vide work for the hangman, other influences were at work in the rising gener- ation of banisters. Even if they were Tory on taxes — and field sports — they tended to be liberal on almost everything else. Dis- ciples of Roy Jenkins and David Astor rather than of Goddard and Manningham- Buller, some of them envy the political lati- tude that their brethren on the American Supreme Court enjoy.

When Jonathan Aitken arrived at the Ministry of Defence, the Permanent Secre- tary asked him to review all the Scott ques- tions; a fresh mind would be useful. Mr Aitken found no sign of wrongdoing. His conclusion was that principled ministers and conscientious officials had done their best to solve the insoluble, and that they had at all times exemplified the high stan- dards we associate with British public ser- vice. Sir Richard seems to understand neither the standards nor the service.

Bruce Anderson