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How to use Aristotle

Fiat justitia, ruat caelum, judges once bellowed. 'Let justice be done though the heavens fall.' It's a proud slogan. The law must take its course even if the powerful are brought low and the foundations of the state shaken. Unfortunately, a slogan is all it is. Most judges want the heavens to stay just where they are, thank you very much, and blanch when asked to confront the misconduct of the powerful.

A more realistic guide to their behaviour was blurted out by Lord Denning in 1980. Before his Lordship's court were the six men who had been convicted of the Birmingham pub bombings. They alleged that the West Midlands police had beaten them up, and were suing for damages. Denning realised that accepting the police had beaten them up meant accepting that the police had beaten false confessions out of them, which meant accepting that the police had framed innocent men for one of the worst IRA atrocities on the British mainland. 'This,' said Denning as he dismissed the case, 'is such an appalling vista that every sensible person in the land would say, "It cannot be right these actions should go any further."' The men spent 10 more years in jail before the grudging courts accepted that they weren't guilty after all.

If it's hard for conventional judges to overthrow conventional wisdom when convicts appeal, imagine the doubts which must assail them when they are asked to conduct a judicial inquiry into political misdemeanours. In criminal cases a judge sums up the evidence, waits for the jury to deliver its verdict and passes sentence. But judicial inquiries are into scandals in which no crime has been committed, other than the 'crimes' of messing up or misleading the public. In civil cases, a judge decides if a contract has been broken and then orders compensation to be paid. But judicial inquiries aren't into breaches of contract, unless it's the 'contract' between the rulers and the ruled.

Without statute or precedent to guide him, the judge is meant to deliver a political verdict. A stinging paragraph might bring down the Prime Minister. Yet as the judge sits alone in his study, he wonders whether it is his job to stage a judicial coup d'état. Shouldn't Parliament depose the Prime Minister? Or the electorate? James Dingemans, QC for the Hutton inquiry, said at the end of the hearings that wider questions about the war were raised by the particular circumstances of David Kelly's death. But these were issues for 'other institutions' to investigate.

It sounds fine in theory. But if a judicial inquiry is soft on the powerful so the judge can avoid being accused of usurping the functions of MPs and voters, it's impossible for him to produce a fear lessly honest piece of work. The wonder of the past six months is that so many people, from Michael Howard to anti-war protesters, have failed to learn from the history of judicial inquiries that fearless honesty is not their distinguishing characteristic. Judges nearly always pull their punches. A few do so with regret. Most wouldn't want to lay a finger on the state even if they thought they could get away with it.

Lord Denning fell firmly into the second category. In 1963 he conducted the judicial inquiry into the love-life of Jack Profumo, Secretary of State for War in the then Conservative Government. Profumo was sharing the affections of Christine Keeler, a call girl, with Eugene Ivanov - a naval attaché at the Soviet Embassy. The press had the first great sex scandal of the modern age and used the claim that national security was endangered to justify printing the juicy details. Denning's inquiry combined deference and vindictiveness in equal measures. The deference was shown to the Government of the day. The vindictiveness was reserved for Stephen Ward, Keeler's friend and part-time pimp, who was painted as a lascivious monster. Conveniently, he had committed suicide and was in no position to answer back.

Lord Widgery's inquiry into the shooting dead of 14 unarmed demonstrators in Northern Ireland in 1972 exonerated the Army. Not one soldier was disciplined, let alone prosecuted. By one of those coincidences which make you wonder, counsel for the Ministry of Defence was Brian [later Lord] Hutton. Widgery's whitewash convinced Catholic opinion that the phrase 'British justice' was an oxymoron.

It so inflamed nationalists that a condition of the Good Friday Agreement was that a new investigation must be set up if the peace process was to go ahead. Lord Saville has spent £200 million to date investigating what should have been investigated 30 years ago. Perhaps it is only now that Bloody Sunday has been safely consigned to history that the judiciary can face the truth about what happened. By this reckoning we'll have a complete account of the run-up to the Iraq war sometime in the 2030s.

Not all judicial inquiries are as bad as Denning's and Widgery's. When the stakes don't involve high politics, judges can rigorously examine the causes of explosions on North Sea oil rigs or racism in the Met. But the general pattern is one of judges realising that they might be expected to condemn government incompetence or deceit and averting their eyes from the 'appalling vista' which looms before them. Lord Franks's inquiry into the Falklands War of 1982 exposed the blunders of the Thatcher Government, which all but invited the Argentines to invade, with admirable clarity. But concluded that no one in the Thatcher Government was to blame. Sir Richard Scott described how the Thatcher and Major Governments helped Saddam Hussein, and then refused to offer any conclusions whatsoever about who was to blame.

I said at the start of this inquiry the difference between Hutton and his predecessors wouldn't be found in the judge but in the publicity his efforts received. Denning and Franks took evidence in private. The press pack at Sir Richard Scott's hearing dwindled to a few obsessive journalists. Hutton's inquiry was a public inquiry which, for once, was covered exhaustively. The public had the information to make-up its own mind.

Last week a furious Government was complaining that charlatans were crying 'whitewash' because they couldn't take defeat gracefully. It's true that journalists are the world's worst hypocrites; we want everyone to be held to account - except ourselves. It's also true that many in the anti-war movement wouldn't accept any verdict other than Tony Blair sold his soul to the Devil. But it's perfectly possible to believe that the BBC wasn't big enough to apologise for its mistake and that Andrew Gilligan sank as low as it's possible for a journalist to sink when he betrayed David Kelly, and still find Hutton's efforts feeble.

His Lordship has invented a novel gambit which Denning and Widgery might have applauded. He used his terms of reference like a mugger uses a doorway. When the BBC walked by, he leapt out and gave it a kicking. When the big boys from the Government turned into the street, he hid in the shadows.

Strictly speaking, an inquiry into the circumstances surrounding the death of David Kelly didn't require Hutton to say whether the BBC claim that Downing Street had ordered the intelligence services to put their name to a lie was true or false. It would have been sufficient for Hutton to establish that Gilligan believed Kelly had made the accusation at their fateful meeting. But, rightly, Hutton thought that the public wanted to know if the Government had forced the spies to lie. And, rightly, he acquitted Downing Street.

Fair enough. But look what happened when Hutton was presented with apparently incontrovertible evidence that Gilligan and Kelly were half-right and the dossier was sexed up. His court heard that the Government knew the intelligence about Saddam having chemical weapons ready to fire in 45 minutes concerned puny shells which could travel a mile or so. But the Government said Saddam had missiles which could hit Jerusalem, Tehran or British bases in Cyprus. Was the misinformation a mistake or a deceit?

The judge refused to pass judgment. Examining how the Government sexed-up the dossier wasn't his job. 'Not my subject, old chap. Outside my terms of reference, don't you know.'

It's the double-standards in his report which has put Hutton on the receiving end of a lethal feeling in Britain: the feeling that what he has done simply isn't fair. Before the war, two institutions were trusted: the BBC and the judiciary. In his effort to destroy trust in the BBC, Lord Hutton has brought a belated but deserved disgrace to juidicial inquiries.