Re: [A-List] "So why was Lord Hutton chosen? "

["Michael Keaney" <michael.keaney@xxxxxx>]

Chris Burford asks: "So why was Lord Hutton chosen? "


Worth digging Roy Hattersley's article of July 28 up from the archives

"The idea that judges can clear their minds of preconceptions is
clearly nonsense. Yet no one has bothered even to speculate what Lord
Hutton's preconceptions might be. Presumably the Department of
Constitutional Affairs has a good idea."

"he takes a stern view about the duty of public servants to obey
strict rules of conduct. Lord Hutton voted to dismiss the appeal of
Private Lee Clegg - the paratrooper who shot a joyrider at a Northern
Ireland checkpoint. And he subscribed to the ruling that David Shayler
could not legitimately claim that revealing the secrets of MI5 was in
the public interest. "

------

The Credibility Gap

Why is there is a chasm between what we expected from the inquiry and what
we got? For the answer, look to the author's background, says Political
Editor Douglas Fraser
The Sunday Herald, 1 February 2004

It was probably the longest and most momentous mumble in British political
history, monotonously sifting evidence and torturing sentences with layers
of legalistic, subordinate clauses.

Without the drama that might have accompanied the subject matter of suicide,
weapons of mass destruction, war and the Prime Minister's future, resting
precariously in Lord Hutton's hands, what really got him fired up came after
the completion of his prepared text.

The learned and noble lordship "deplored" The Sun's publication of a leaked
account of his report on Wednesday: "As is all the more regrettable, the
newspaper published this report ... when the public only had to wait half a
day before I published the full report. I am now giving urgent consideration
to what investigative and legal action I should take against the newspaper
and its source."

It was a brief, angry postscript to a long report. But it betrayed the
problem at the heart of Hutton's report: if he cannot understand what drives
a paper to run a scoop, and if he thinks he can take legal action against it
for doing so, he does not begin to understand the process of journalism on
which he had just passed such a strange judgment. The Sun's luscious,
flame-haired editress, Rebekah Wade, is no doubt quaking at the prospect of
legal action by such an eminent lawyer. But under which law, m'lud? And
which planetary jurisdiction would that be on?

Gavyn Davies, exiting the BBC chairman's office, observed "you can't pick
your referee" - though it has been pointed out that Tony Blair had done
precisely that in selecting Hutton. In the heat of summer, and with the
shock of David Kelly's suicide, that was a decision by the premier which was
universally regarded as impartial and statesmanlike. Law lords, after all,
have increasingly become the means by which political knots are unpicked.
Until now, that has been broadly welcomed.

Hutton was the chap to get to the bottom of things; respected judge in the
Lords; from Northern Ireland, and unencumbered by metropolitan establishment
elitism; faced down terrorists from the bench in his native province; Kirk
Douglas looks, just the right amount of intimidation over his half-moon
specs. This guy was from central casting, and born to be the lawman,
striding into town to crack down on the hoodlums. One of the strangest
twists of a strange week in politics has been the slow but sure unravelling
of that storyline.

Davies may have departed for an early bath graciously, and remaining
players, such as acting director-general Mark Byford, struggled to avoid
criticism of the report while pointedly refusing to accept its findings. But
to the watching media and public there was a dawn of realisation that the
Ulsterman in whom they had invested so much trust, blew the final whistle
and only then made clear that he was scoring according to rules no-one knew
. The BBC were expected to abide by the strictest of offside laws, while
whatever rules the government wished to use would be just fine with the ref.

So how can we explain the outcome? And given the gulf between inquiry image
and report reality, who is Baron Hutton of Bresagh in the County of Down?

He was born James Brian Edward Hutton in June 1931, the son of a rail
executive and attended an exclusive prep school and won a scholarship to
Shrewsbury public school in England . Another scholarship took him to
Balliol College, Oxford, before he returned to practise law in Northern
Ireland from 1954 onwards.
For all his Ulster roots, he was not without his establishment influences.
His career blossomed at a time of challenge for law and government
administration in Northern Ireland.

As the Troubles began in 1969, he started work as a junior counsel for the
Stormont administration. He became legal adviser to the Ministry of Home
Affairs in 1973 when terrorism was being countered with internment. After
the devolved administration was abolished in favour of direct rule, Hutton
was prominent in defending the British government when internment was
challenged at the European Court of Human Rights.

In 1979, he became a judge of the High Court of Justice in Northern Ireland,
and nine years later was made the Lord Chief Justice, remaining in that post
until 1997. Then he was appointed one of the 12 judges who sit at the House
of Lords.

Hutton was neither noted by observers of Northern Ireland law as one of the
more reactionary figures, nor was he an upsetter of applecarts. Irish
Republicans highlight his decision in 1986 to acquit an officer of the Royal
Ulster Constabulary on trial for the killing of Sean Downes, with the
evidence suggesting a plastic bullet had been fired at close range.

On the other side of the audit, Sir Brian Hutton, as he then was, made a
notable judgment in 1992 in the case of Republican Patrick Nash, on trial
for 22 charges including plotting to murder four judges among other senior
figures, and aiding the murder of a taxi driver. Nash claimed to have been
tortured, and although Hutton judged him to be "an accomplished liar", he
could not be sure the RUC had not beaten him. The accused got the benefit of
the doubt and was acquitted.

Significant to understanding Hutton's world view are the unusual
circumstances in which he worked. The so-called Diplock courts were used
through the Troubles for terrorism trials in which judges ruled without any
juries, because jurors could be too easily intimidated.

Judges had been targets for paramilitaries, and Hutton spent nearly two
decades in a cocoon of high-security protection. According to a profile in
the Belfast Telegraph, a former student said of him: "He is the very epitome
of a judge. He doesn't have much contact with ordinary people - how could he
have? He dresses conservatively and always wears a hat. Yet he is the
fairest man I know."

He is known to have been the most conservative of the 12 law lords. Through
this period, Hutton was, of course, much too wise to express political
opinions. But in the context of Northern Ireland, one example of his legal
opinion stands out as making his conservative inclinations clear. When
handling a 1999 legal challenge by two Republican lawyers to the requirement
that Queen's Counsel should take an oath of allegiance to the Crown, Hutton
wrote to the Attorney General, warning: "If you decide to remove the
requirement for a declaration, it will appear that you are being influenced
by political pressure to alter the procedure relating to an office which
links Northern Ireland with the Crown".

You can read that two ways: either ingrained conservatism, or his
determination to withstand political pressure.

One suggestion is that such defenders of the Unionist status quo in Northern
Ireland were no fans of the BBC. In the 1980s, the corporation was
criticised by, among others, Margaret Thatcher, for giving "the oxygen of
publicity" to the IRA, leading to a broadcast ban on the voice of anyone
speaking on its behalf. It is worth at least asking if Hutton developed an
antipathy to journalists who were then trying to present a balanced view of
the Troubles, with the BBC being most criticised because it was most
prominent.

What clearly underpinned his judgement on Wednesday was a negative view of
the media. Dr David Kelly was criticised for unauthorised contact with it,
despite no weight being given to his previous authorised briefings. There is
a nod to the value of investigative journalism in a democracy, but only on
condition that nothing false is reported. His definition of falsehood is
anything that cannot be proved to be true. And in the frequent absence of
such proof, the role of the informed source in journalism is given no
consideration at all.

This was a judgment where the precise rules of evidence in court clashed
with the gathering of information from a secretive government. And
underlying the judgment was an implicit view that journalists are
unreliable, untrustworthy and predatory outsiders, hostile to the smooth
operation of government, the barbarians at the gates of good order.

When it came to judging what was said in the crucial meeting between Kelly
and Andrew Gilligan on May 22, 2003, in the Charing Cross Hotel, Hutton
admitted he did not know. Without Kelly available, all he had was Gilligan's
word and some unreliable notes he had made.

The judge chose to ignore clear evidence from Newsnight journalist Susan
Watts - recorded, he notes with a touch of unworldliness, "on a tape
recorder" - that supported Gilligan's account of events, choosing to
disbelieve the reporter.

There were other startling omissions of evidence. The attack on the BBC's
complaints procedure took no account of the context, in which the
corporation faced a blizzard of complaints coming regularly from Alastair
Campbell's office, of which the one about Gilligan's May 29 broadcast was
oddly slow to gain momentum, culminating in the communication director's
broad-brush assertion in front of a Commons committee that the corporation
was running an anti-war agenda.

If Hutton took any account of the evidence he heard from intelligence
sources of concern that the Iraq dossier was being "over-egged" and "spun" -
 assertions which came from defence and weapons experts - he appeared to
ignore it. His only hint at the pressure being brought to bear on
intelligence officers to toughen the wording of the dossier is the
suggestion that they might have given "subconscious" weighting to political
considerations, though he only raised this possibility to dismiss its
significance.

He chose not to question whether it was normal or appropriate for the Prime
Minister and his communications chief to involve themselves so closely in
the news management of Kelly's naming, superseding Ministry of Defence
disciplinary procedures. Nor does he question the assertion that Kelly's
name would inevitably emerge, when set against the interest the government
had in ensuring that it did. And in contrast with his meticulous attention
to precise language in his judgement, there is a glaring absence of any
consideration to the rewriting of the dossier to shift the intelligence
suggesting there "may" be an Iraqi capacity to launch an attack within 45
minutes to the assertion that it had that capacity. Nor does he challenge
the downplaying in the rewrite of such weapons being only available for
battlefield use.

It is important, too, that he chose to make no judgment on the reliability
of the intelligence feeding into the dossier. Since July, when the inquiry
was set up, that has become an ever more difficult issue for the
government - made more so by embarrassing admissions in the past week from
Washington that the key weapons inspector reckons intelligence got it wrong,
and a president who empathises with public confusion .

Was there a conspiracy to draw the Hutton Inquiry remit so tightly that the
big, awkward questions about the path to war could be avoided? Probably not.
It should be remembered that this inquiry was set up within hours of the
shocking news about Kelly's suicide. There was little complaint then that it
lacked a sufficiently wide remit. It is only in light of recent events that
the other questions have become more urgent.

In retrospect, what seems so strange about Hutton is the mismatch. On one
hand, there was an inquiry which gained universal acclaim for its
impartiality, tough questioning of all witnesses, probing into places that
both government and BBC would prefer not to be illuminated, and all with a
speed not normally associated with lawyers: on the other hand it was a
judgment which has none of those properties.

Judge Alan Levy, QC, commenting on the report, said: "I think whitewash
might be too strong, but I'm uneasy that criticism was not attached to other
parties. It seems the BBC has every reason to cry foul."

The problem Hutton now faces is that his inquiry gained so much publicity
and coverage that many others can claim to have as much expertise as he does
in reaching very different conclusions.

Notably, that includes journalists, through whom Hutton's findings - along
with the government's delight at being so comprehensively exonerated - are
necessarily mediated. Even within newspapers which can be expected to be
hostile to the BBC role in the broadcast marketplace and its liberal
leanings, there has been no way to avoid the various responses of
puzzlement, incredulity, outrage and injustice.

EVIDENCE THAT HUTTON IGNORED

Jonathan Powell, the Number 10 chief of staff, said he had "a bit of a
problem" with a passage suggesting Saddam Hussein would only use weapons of
mass destruction if attacked.

He wrote: "I think you should redraft the para." John Scarlett, chairman of
the Joint Intelligence Committee, changed it to state Saddam was "willing to
use chemical and biological weapons".

Alastair Campbell suggested 15 changes. He described a passage saying Iraq
"may be able" to deploy WMD within 45 minutes as "weak". Scarlett later
changed it to "are able to". Hutton, however, concludes only that Scarlett
and other members of the JIC may have been "subconsciously influenced" by
Downing Street into making the wording of the dossier stronger.

During a tape-recorded interview with Dr Kelly by Newsnight journalist Susan
Watts, the doctor gave statements that supported what Andrew Gilligan
claimed Kelly had said to him during their meeting on May 22 in Charing
Cross Hotel. Despite this, Hutton chose to disbelieve the Today reporter.

During evidence, Richard Taylor, Geoff Hoon's special adviser, said the
defence secretary was present at a meeting to discuss a "naming strategy"
for Dr Kelly. Mr Hoon had not mentioned this in evidence.

Sir Kevin Tebbit, chief civil servant to the MoD, said to the inquiry: "I
was told the Prime Minister was following this very closely indeed . the
intelligence was he wanted something done about the individual [Dr Kelly]
coming forward."