The silent service

Lord Hutton, now there's a bloke with backbone. Only a man of mettle would come down against my beloved Auntie. Dear, oh dear, I was weaned from mother's milk straight onto Bill and Ben and little Weed. Auntie took me to Round the Horne, Blue Peter (do you remember that naughty elephant?) and the Today programme (how we laughed to hear Jack de Manio getting the time wrong).

And when Auntie had a go at Tony Blair, Michael Howard or any other awful politician, we said to ourselves: "We have been fibbed to so often by these folk that we can't believe any of them." Ah, but this was different. If somebody takes us to war on a fib, all hell will break out.

Lord Hutton is a law lord. He's done a lot of judging in his time. In the David Kelly affair, he wasn't actually judging, he was "getting to the bottom of the matter". His job was "urgently to conduct an investigation into the circumstances surrounding the death of David Kelly". So he was acting as a barrister, a solicitor, an expert, a detective and a judge. He was, I guess, doing two jobs: ferreting for facts (the investigation), then judging. His investigation was a formal affair.

He got the people who were involved into court to be questioned. Two barristers were his mouthpieces. They and his lordship, together with two solicitors, decided what to ask the prime minister, the chiefs of the BBC and the heads of the intelligence service.

If an investigation were carried out into a delayed building contract, it would require the investigator to decide whether these terms of reference meant the issues and controversies (what caused the job to run late: why, when, who and how) had to be discovered and whether somebody was to be blamed. The same would apply if a change in design, or iffy heating, or wavy navy plastering was being investigated.

I was told to mind my own business; I was not appointed to investigate the circumstances surrounding the delayed big contract. My job was to judge

When adjudication started in May 1998, I thought it would work like the Hutton Inquiry. I thought an adjudicator was there to "investigate the circumstances about … all and any controversies that we see arise day in day out in construction". I was wrong. It was (I was) too ambitious. And when I received appointments as adjudicator in those early days, I was Superman, inquiring here, there and everywhere. I thought the job might, just might, involve looking and probing for answers. Then one day, a party told me to damn well mind my own business. In no uncertain terms, I was told I was not appointed to investigate the circumstances surrounding the delayed big contract. My job was to judge.

If Lord Hutton became a construction adjudicator, he would not conduct an investigation. He would not have time. It would dawn on him that an investigation almost always makes a case for one side or the other. Also, there is a real danger that the investigating adjudicator will dream up a line of inquiry not thought of by the parties. Do you know what happens then? One of the parties gets very fed up indeed. There's a real danger, too, that the dreamed up line of inquiry is too rushed and not thought through. After all, the adjudicator is a stranger to the dispute. No, no, an adjudicator is not there to conduct an "investigation into the circumstances". The judge/arbitrator/adjudicator is there to investigate the case put. I investigate only to the extent of asking what an argument means. There is no time in 28 days to do anything more than fathom out what the parties are actually saying. Apart from determining that, my trap stays shut.

But wait a minute. Is there any room in disputes for a Lord Hutton figure? Can we have a guru appointed to inquire into the circumstances (why late? why over budget?) and decide who is in breach of contract and who will pay what to whom? Of course, it would have to be an express agreement between A and B. The guru would beaver away to discover what happened. He would inquire within, without and wherever. I am tempted to suggest a variation on the theme of arbitration, but it's quite different.

It won't work in adjudication; there's no time. Pity.