Inquests and Accountability

As the Chilcot Inquiry is published, John Sabapathy asks why, historically, we want inquests to mete out justice and hold guilty parties to account.

John Sabapathy | Published in 05 Jul 2016

British soldiers engage Iraqi Army positions south of Basra, 26 March 2003.Will fewer people be cross with Sir John Chilcot after he has published his report than were before? His Iraq Inquiry was set up in 2009 to look into the events leading up to and beyond Britain's involvement in the region between 2001–2009, and to investigate:

the way decisions were made and actions taken, to establish, as accurately as possible, what happened and to identify the lessons that can be learned. Those lessons will help ensure that, if we face similar situations in the future, the government of the day is best equipped to respond to those situations in the most effective manner in the best interests of the country.

Criticism before the fact has largely focused on how long it was all taking. Criticism after the fact remains to be seen.

Between scheduling and publication, those who anticipate Chilcot’s criticism – from Tony Blair to the former head of MI6 – have been making veiled (and sometimes not-so-veiled) pre-emptive strikes. The moment just before publication provides an apposite point in which to ask an interesting question: how could Chilcot satisfy us? A still bigger, perhaps more interesting question can be asked: how could any such inquiry satisfy us? Here, a historian, perhaps especially a medieval historian, may have some hopefully discomfiting suggestions.

For many, satisfaction in the inquiry will depend on how sharp Chilcot’s views are on the legality of the war; on the Anglo-American relations involved in committing both countries to war relative to concurrent parliamentary and public debates; and criticisms of individuals. The stakes could be high. The Labour Party leader, Jeremy Corbyn, said just before being elected that he thought Tony Blair could face a war crimes trial on its basis. But high hopes have been disappointed before, as in the case of the Hutton inquiry into the death of the UN Weapons Inspector David Kelly, which was not as critical as some had wanted. Inflated expectations of accountability – if that is what all of this is – risk disappointment; even though Chilcot is not a judicial body, it has been politicised such that it is expected to pass judgement with its final verdict.

As the reference to Hutton implies, we British have acquired a taste for holding our governments and institutions to account through inquiries. In setting up Chilcot, Gordon Brown stressed that its scope evoked Oliver Franks’ 1983 Falkland Islands Review – another inquiry investigating the circumstances of a war. Dozens of inquiries have flowed under the bridge since then. A House of Lords Select Committee counted 55 between 1990 and 2014 alone. Their subjects varied across child abuse, mass murders, stock market flotations, racist killings, arms deals, rail accidents and contaminated blood in hospitals, not including the most celebrated inquiries of recent years: Hutton’s, Butler’s review of intelligence on weapons of mass destruction and Leveson’s inquiry into the culture, practices and ethics of the press.

All, though, seem likely to be dwarfed by Lowell Goddard’s Independent Inquiry into Child Sexual Abuse (IICSA), which will investigate an extraordinary range of institutions including the BBC, the armed forces, schools, hospitals, churches, the police and the Crown Prosecution Service itself. Its aims are to question how far state and non-state institutions ‘have failed in their duty of care to protect children from sexual abuse and exploitation’, to see how far those institutions have understood that and to make recommendations accordingly. It has a budget of £17.9 million for 2015-16 alone. Given the historic and open-ended nature of its investigation the IICSA appears to have no clear terminus post quem and could go back as far as 1945, Goddard has said. The potential scope of its investigations is accordingly mind-boggling. It too has had a fair share of controversy. Resolving who would chair it alone took a year and the heads of two potential chairs. Given its investigation of the ‘establishment’, many of those qualified to chair the IICSA inevitably had connections that raised controversy about conflicts of interest. The solution was to appoint someone from as far away as possible – New Zealand as it turned out, where Goddard is from. Given that a former Prime Minister, as well as major celebrities, have already been the subject of abuse allegations in the newspapers or cases in the courts it seems highly unlikely that further scandal, notoriety and controversy will not follow the IICSA.

There are grounds then for thinking our inquiries are becoming bigger and more ambitious. The impeccably modern British answer to the question of ‘Who will guard the guards?’ appears to be: ‘The inquisitors will’. This predilection for inquiries is beginning to look pathological, the sign of some other submerged history. Inquisitions seem to have become the institution we now trust to hold our failed institutions to account when we do not trust our institutions to be trustworthy. This is, to say the least, interesting.

Yet it is seldom discussed. Listening to BBC Radio 4’s Today programme, it is very likely that one will find ‘accountability’ invoked at some point as a straightforward political ‘good’. Its nature is taken as too obvious to merit reflection. Today itself produced an unusually revealing exemplification of this, last August 28th, in an interview about the Iraq Inquiry between John Humphrys and Major General Tim Cross. Cross served in Kosovo, both Gulf Wars, briefed Blair days before the invasion and was the most senior British officer in the Baghdad Coalition Provisional Authority. He had also given evidence to Chilcot and, so, was in a very good position to reflect on the Iraq Inquiry, modern inquiries and accountability in general.

Unusually, Cross did not take the purposes of the Iraq Inquiry – or any such inquiry – for granted. He critiqued the ‘size and shape of the job’ itself – the scope of the Iraq Inquiry as an inquiry – as well as the wider pattern of such inquiries (the IICSA would presumably alarm him wildly). He suggested that the ‘broad issue for us as a nation, is why do we want these boards of enquiry – what do we intend from them and why do we give people these incredibly difficult jobs to do?’ John Humphrys offered the straightforward answer that it was, ‘to find out in part whether the politicians lied to us or misled us or whatever it may be’. This is the credo of The Times journalist Louis Heren: ‘Why is this lying bastard lying to me?’. The point of inquiries is to expose to blame those with power who have abused it and wish to hide that. This is a large and complex purpose. Cross’ answer to this was interesting: Humphrys had put his finger on the problem, namely that, ‘society just doesn’t trust institutions anymore’. Humphrys replied that surely this was healthy. Perhaps. But Cross’ critique, and his difficulty in making it heard, seemed an interesting comment on our distinctively modern mixture of cynicism, naivety and moralism in such matters, focused as always on some negligence or abuse of power; cynicism about institutions; naivety about what such inquiries can achieve; and moralism about what they ought to.

This splintered mix of bureaucracy, hanging juries and raw feeling is compressed nowhere so nicely as in T.S. Eliot’s ‘Difficulties of Statesman’. Eliot’s protagonist, the soldier-statesman destroyed by the crowd, torn between private angst and the public demands of government, calls out, echoing Isaiah 40:

O mother
What shall I cry
We demand a committee, a representative committee, a
committee of investigation

To the prophet Isaiah’s anguished cry of mortality comes back a modern bureaucrat’s answer and the crowd’s scream for a scalp. It has been suggested that the Middle Ages saw the formation of a persecuting society. One wonders whether that privilege really belongs to later periods. Looking back, it seems quite incorrect today that no one expects the (Spanish) inquisition. The inquisitors are frequently expected, indeed seem summoned and convened on a surprisingly regular basis, to deal with an increasingly diverse range of political and institutional scandals and failures.

What might be the particular role of history and historians in explaining this apparently modern obsession with accountability? There are three. First, many inquiries are histories. The word that Herodotus used to describe what he was doing simply means ‘inquiry’ in ancient Greek, giving us our word ‘history’. Both his and Thucydides’ histories are investigations into the causes of wars. The Franks Report was a chronological history, beginning in 1965 and becoming a day-by-day account of March-April 1983. Franks concluded with a series of counterfactual historical questions: ‘Could the Invasion on 2 April have been Foreseen?’, ‘Could the present Government have Prevented the Invasion of 2 April 1982?’. Will Chilcot follow? The inquiry will be some sort of history, after all. Two fifths of its committee were historians – Lawrence Freedman, and, until his death, Martin Gilbert. The committee clearly conceived of those competencies as critical in its aim to ‘establish a thorough, balanced and reliable account of the run-up to the conflict in Iraq, the military action and its aftermath’.

Royal genealogy from a compendium of Bernard Gui's historical works, 14th century.

This intertwining of history and inquiry is old, if not as old as Herodotus. Bernard Gui (d. 1332) is an inquisitor into heresy, known to many from Umberto Eco’s The Name of the Rose, where he appears as something between a zealous bigot and a psychopath. Certainly a zealot, Gui was also a religious policeman and fascinating theorist of inquisitorial due process – in his Practica inquisitionis (pre-1324). He was, too, an interesting historian, writing chronological histories of his own that complied both contemporary sources and quotations. He would have recognised the Iraq Inquiry committee’s account of its competencies. He used similar accounts in his histories but also to evaluate and determine heretics’ guilt. But, given that modern historians are generally uncomfortable with exercising moral judgements in their histories, we might also wonder whether this has any implications for modern exercises in history-inquisitions. Is too much being bundled up here?

Secondly, many of the modern methods and techniques used to hold to account have their origins in the Middle Ages. John Chilcot is Bernard Gui’s heir. Chilcot himself described how the Iraq Inquiry ‘will adopt an inquisitorial approach to our task, taking evidence direct from witnesses, rather than conducting our business through lawyers’. Chilcot’s ‘inquisitorial’, obviously enough, was not torture and the rack, but nor were those of the Middle Ages. Medieval inquisitio was simply a judicial technique – just as inquests are a technique, and again a medieval invention. Some focused on heresy, and here torture was sometimes used, albeit probably infrequently. In fact inquisitio as a technique had its 800th anniversary last year – it was codified at the 1215 Fourth Lateran Council, the great unremarked anniversary of 2015. It was acutely concerned with rooting out ecclesiastical wrong-doing, negligence and misconduct, and – like its descendants – with due process.

One can go further. The rationales for initiating medieval and modern inquiries are remarkably similar. The Iraq Inquiry is an ad hoc inquiry set up by the government who agreed its terms with the privy councillors running it. Many others were established under the Inquiries Act (2005), including Leveson and the IICSA. This offers the ostensibly simple but beautifully opaque justification that:

A Minister may cause an inquiry to be held under this Act in relation to a case where it appears to him that — (a) particular events have caused, or are capable of causing, public concern, or (b) there is public concern that particular events may have occurred.

Not dissimilarly, the Fourth Lateran Council said its inquisitions should be launched when an allegation:

reaches the ears of the [ecclesiastical] superior through an outcry or rumour which has come not from the malevolent and slanderous but from prudent and honest persons, and has come not only once but frequently (as the outcry suggests and the rumour proves).

Both are public inquiries instigated ex officio by the powers that be – state or church – addressing the ‘classic task of meeting public concern with visible official concern’, as Lord Justice Stephen Sedley once put it. One could even suggest that the medieval guidance is clearer than the modern in specifying when an inquisition should be carried forward:

But when someone is so notorious for his offences that an outcry goes up which can no longer be ignored without scandal or be tolerated without danger, then without the slightest hesitation let action be taken to inquire into and to punish his offences, not out of hate but rather out of charity.

The 2005 Act notes only that it is ‘not possible to specify more precisely the circumstances when an inquiry may be called’ – although this may be deliberate.

The third way in which history – especially medieval history – may be instructive in understanding modern accountabilities is both fundamental and the simplest. It can provide some control on either excessive or unrealistic expectations of accountability – inquisitorial or otherwise. As the Today interview implied, we seem to have an expectation that accountability will be straightforward, independent and objective. History shows that it is not.

The Last Judgement is one of the most idealised expressions of accountability humans have ever conceived of – absolute, infallible, terminal. As such one might imagine that this medieval ideal might leak into excessive medieval expectations of non-divine accountability. Gregory the Great indeed thought that Satan himself held his own inquiries – but into how well his demons produced evil. What good that accountability? Accountability is as good as its ends and agents. Take one of the oldest English monuments to ‘accountability’, Domesday Book. Its title evokes that perfect divine judgement but Domesday Book was so-called, not because the Norman assessment of English landholdings secured a just judgement, but because it could not be appealed. ‘Domesday’ may well have been the English’s bitter joke on their colonial surveyors, in full knowledge that such accountability was not ‘clean’ of power. Domesday had much less remembered sequels. Of one, in 1274-5, a historian, the Dunstable Annalist, remarked with blunt finality that ‘nothing useful came of it’. It is possible that the ideal of a divine judgement provided reflective medieval people with the resources to restrain their expectations of its earthly equivalents. Such tempered scepticism would fit with Tim Cross’ warnings.

That medieval outlook is no longer available to us as a culture. However, our devices are not dissimilar, even at some 800 to 1,000 years’ distance. Our desires of accountability are arguably more inflated. We have an unholy admixture of incurious cynicism about how institutions work, diffused with moralism and naivety about how to hold them ‘to account’. Modern inquiries risk becoming weather balloons into which we pump all of the bad feeling and bad faith we find in our politics. But justice will likely always remain at several removes from such accountability. If we continue to insist on eliding the two then whatever Sir John Chilcot and his colleagues say we will blame them – and their successors – for failing to meet our own excessive expectations of a political idea whose limitations we have not fully understood. 

John Sabapathy is a Lecturer in Medieval History at University College London. His first book, Officers and Accountability in Medieval England 1170–1300 (Oxford University Press, 2014), won the Royal Historical Society’s 2015 Whitfield Prize.