Bang, Bang Maxwell’s Silver Hammer

Many years ago, back in 1971, the publishing magnate Robert Maxwell was forced to resign his position on the board of directors of the Oxford-based publishing company Pergamon Press, following suggestions of malfeasance in connection with his role during an attempted strategic takeover of the company.  A Department of Trade and Industry inquiry into the buyout of Pergamon declared Maxwell ‘unfit to hold the stewardship of a public company.’

Given the fact that we are talking about a man who subsequently went on to loot the pension funds of his company to pay off debts at the Mirror Group, hindsight might credit the DTI with some considerable prescience. Nevertheless this was not how things seemed at the time.   The litigious Maxwell took the DTI to court, and in 1971, Justice Forbes ruled  that the DTI inspectors “had moved from an inquisitorial role to an accusatory one and virtually committed the business murder of Mr Maxwell”.

As a result Maxwell’s reputation survived the inquiry.  He regained his seat on the board and went onto to engage in the sleazy financial practices that subsequently made him famous. This obscure investigation into a scientific and medical publishing company nevertheless gave rise to a new legal process known as ‘Maxwellisation’, in which the objects of public inquiries were given advance notice of any criticisms directed against them, in order to forestall the possibility of Maxwellesque legal action,  and allow named individuals to respond privately before such criticisms were made public.

In the last  twelve months the British public has become depressingly familiar with the concept of Maxwellisation, as a result of the Chilcot Inquiry’s extraordinarily protracted attempt to conclude its six-year inquiry into  the Iraq war.   Until last year, we were led to believe that the main reason for the delay in the publication of the report was the Inquiry’s attempt to wrest key documents from the British civil service.   Recently, it was revealed that Sir John Chilcot and his team have been engaged in a process of Maxwellisation with some of the individuals criticized in the report, and that some of these individuals have brought their lawyers in.

This is – or ought to be -something to make collective jaws drop.   Remember that the Chilcot Inquiry was not a judicial investigation.  It had no power to subpoena individuals or documents.   If people didn’t want to appear before it they didn’t have to.  If certain departments didn’t want to hand over documents, all the Inquiry could do was haggle and say please.

Whatever the conclusions of the report, no one will face any legal charges as a result of them.  Only their reputations will be at stake. Yet the individuals who have been Maxwellised are allowed to respond to the report’s conclusions with lawyers, and the Inquiry will change its conclusions as a result.   And even more incredibly, according to a recent report in the Daily Telegraph, the public will never know which individuals have been Maxwellised, or the original criticisms that were directed against them, or the modifications that may have been made to these criticisms as a result of intervention by their lawyers!

There might be an argument for a process like this in inquiries into business practices that don’t involve explicitly criminal behavior – even if such inquiries are directed at a sleazy and disreputable figure like Robert Maxwell.  But illegal wars of aggression are quite another matter. The issues involved here go way beyond the issue of individual reputation, or the supposed need to protect civil servants and governments from future scrutiny that has been cited as a justification for Maxwellisation in this case.

There is no greater betrayal of public trust than for a government to wage war on false or manipulated pretenses, and no greater violation of democratic accountability and transparency.  If a government can do such a thing, and get away with it, then it can get away with anything, and the Maxwellisation of the Chilcot Inquiry is a grotesque and feeble travesty that makes it very likely that those responsible for the Iraq War will get away with it and will be allowed to shape public understanding of what took place in accordance with their own priorities.

There have been suggestions in the British press in recent weeks that Maxwellisation was primarily aimed at Tony Blair.   Today the Guardian revealed that the Inquiry has broadened its criticisms to include individuals outside Blair’s inner circle such as Clare Short, Jack Straw and Richard Dearlove.   The notion that these individuals are outside Blair’s inner circle is certainly questionable, but the Guardian report nevertheless suggestions that Blair’s Maxwellisation has already begun to produce results, declaring:

‘While Blair will bear the brunt of the report”s criticism, one source said it would suit the former prime minister to see a wide range of targets blamed when it is published.’

This is not exactly surprising.   Blair, like the Bush/Cheney clique, has always tried to take the line that ‘everyone is responsible therefore no one is guilty’ as a justification for the war, and the widening of the Inquiry’s criticisms would certainly help promote this narrative.  And of course these new criticisms must also be subjected to Maxwell’s silver hammer, since:

‘The wide circle of people facing criticism is cited as one of the reasons for the delay. As part of the process, every individual to be criticised is sent draft passages giving them an opportunity to comment. Some of those who have received drafts have expressed surprise, having regarded themselves as peripheral to the events leading up to the invasion.’

All of which will lead to more delays.  After all:

‘Chilcot wants to ensure that those criticised are given every opportunity to rebut the criticism. He does not want to give them an excuse to take legal action or attack the inquiry after the final report has been published.’

This is not exactly a ringing and courageous declaration of independence.   An Inquiry worth anything would not be concerned about legal action because it would have evidence to support its conclusions.   It would not be afraid of being attacked by the people that it has criticized because that is what happens when you criticize powerful people.

Chilcot’s pathetic reluctance to take these risks suggests a very different attitude, that might be more appropriate for examining a poor England Ashes tour or a village fete that failed to sell enough muffins and tea cakes.  The more the dismal process goes on, the more it screams one word: whitewash.

But whatever happens, according to the Guardian:

‘The final report will not include the number of people who have been sent drafts containing criticism. The public may not know to what extent Chilcot has toned down his criticism in response to objections.’

So at the end of it all, we won’t know who was criticized, or what they said in response, or how the Inquiry responded to what they said.  And all this thanks to a sleazy tycoon who showed that litigious rich men can get away with much more than anyone else.

Isn’t British democracy grand?

Chilcotmania!

Many years ago I remember going to my local record shop almost every week to find out if they had received Television’s first album yet.   I started going months before it actually came out after reading Nick Kent’s great review in the NME.   I was hooked on that album even before I heard it, to the point when the sales assistant was undoubtedly tired of hearing the same question ‘ Has Marquee Moon arrived yet?’

I wasn’t the only one asking it.     In the culture industry, the fact that such and such an artist takes a long time to produce a new novel or album can sometimes work to the commercial advantage of the person or group concerned.     Terence Malick makes films so infrequently that when they do come out they are invariably greeted with a special reverence that few directors can aspire to. The fact that Donna Tartt has published her novels an average of ten years apart has done her no harm at all.     And Harper Lee’s follow-up to To Kill a Mockingbird is already a bestseller before it’s even been published.

In all these cases, the long wait has served to create a sense of anticipation, expectation and curiosity that can easily be enhanced by a skilled sales team.   The long gaps between the publication of Tartt’s books has given their author a unique mystique, suggesting a patient and painstaking creative process that demands special attention.   In Lee’s case, the fact that the sequel to one of the most popular books ever written is already number one in Amazon’s charts is partly due to the fact that a sequel was not expected.

The extraordinary delay in the publication of the Chilcot Inquiry into the Iraq War has aroused very different responses.   When the Inquiry was first convened in 2009, it was expected to publish its findings before the 2010 general election.   Instead Sir John Chilcot and his team completed their hearings in February 2011.     At various times since then we have heard that its report was written and ready for publication.     In January 2014, the British press was reporting that the 1,000,000+word report was ready for publication later that year.

Earlier this year there were rumours that the report would be published before the election, and then in April BBC Newsnight suggested that it would be published after the election.     And now we have been told that the report is unlikely to be published until next year ‘at least’. If this was a Donna Tartt or Harper Lee novel, their publishers would be racking up advance sales and the books pages would be offering regular breathless updates.

Yet neither the government nor the main opposition has appeared particularly concerned by the delay, and the public has also remained generally indifferent to it.   The lack of interest from the political establishment is only to be expected.     Labour is unlikely to benefit politically from publication, and nor is the Tory government, which would have done exactly the same thing in Iraq, and whose rush to war in Libya and Syria showed no more concern with the historical ‘lessons’ that the Inquiry was intended to learn than its opponents.

Nevertheless the public ought to be concerned, because the delay says so much about the way this country is governed and the truncated and managed democracy that we inhabit.     The delay appears to be primarily due to two factors a) The reluctance of the civil service to allow the publication of key documents that the Inquiry needs to make its case, and b) the so-called ‘Maxwellisation’ process, which enables individuals criticized by the Inquiry to see its findings before they are made public so that it can refute them.

We can’t know whether the 30-odd individuals in category b have brought any influence to bear on the civil service to prevent the publication of documents that might be used against them.   One of them is Tony Blair, whose spokesmen have denied any such charges.   No one will be surprised by such denials, but whether they are true or not, the civil service should not be allowed to have the final say on which documents get published or not.

After all the Inquiry, for all its limited remit, was established in order to investigate one of the most disastrous foreign policy decisions ever taken by a British government.   And its inability or unwillingness to publish its findings speaks volumes about the ability of powerful governmental institutions and individuals to protect themselves from the scrutiny of the public that they are supposedly accountable to.

As is often the case in the UK, very little has been done to avoid this outcome.   The Inquiry was not given powers to sub-poena the documents that it wanted to look at, and was obliged instead to haggle and negotiate with civil servants who have been able to invoke national security and reasons of state to justify non-publication.   And the ‘Maxwellization’ process has clearly paved the way for endless prevarication that would have resulted in the collapse of the judicial process if it was applied to ordinary justice.

The Inquiry itself had no legal powers, yet in December last year the Times was reporting that the ‘Maxwellized’ individuals were bringing in lawyers in response to the criticisms made against them.   Exactly why they they can use the law to defend themselves in private while the Inquiry can’t use it to get full access to the documents it needs – let alone subject them to the same kind of cross-examination that would have occurred during the hearings if a judge was involved – remains a mystery to me.   But then again, not so much.

All this ought to be a national scandal, yet so far there has been no serious political pressure to change this situation.   Unlike Donna Tartt or Harper Lee, there is no sense of anticipation or expectation, and little likelihood that the Chilcot Report will hit the bestseller charts.

On the contrary, the longer the delay, the more likely it is that the politicians who never really wanted an inquiry in the first place will be able to consign it to historical irrelevance, and the British public will have forgotten what the Inquiry was ever supposed to have achieved, and the individuals and institutions that contrived to manufacture the Iraq catastrophe will continue to build new careers with their reputations unscathed, and the British state will continue to function, just as as it has always done, with its dirty linen locked away in a box labelled ‘national security’ which noone will be able to see until it no longer matters.