[A-List] UK state: Hutton aftermath

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

Lord Hutton was 'out of his depth'
By James Cusick, Westminster Editor
The Sunday Herald, 15 February 2004

CHERIE Blair's partner in her legal practice, Matrix, says Lord Hutton was
"out of his depth" and did not "represent the law as it is or as it ought to
be" in the controversial inquiry into the death of government scientist Dr
David Kelly.

Conor Gearty, who is professor of human rights law at the London School of
Economics and specialises in terrorism, civil liberties and human rights,
also says the reason Alastair Campbell did not simply launch a libel action
against both the BBC and the Mail on Sunday - which claimed he had been at
the centre of "sexing up" the government's dossier on Iraq's weapons of mass
destruction - was because "no such suit would have succeeded".

Gearty's devastating legal criticism of Hutton, his verdict and the way he
chose to determine his remit will be deeply embarrassing for the Blairs. It
is likely to further inhibit Tony Blair's attempts to claim the Hutton
report has given him a clean bill of health.

Writing in the London Review of Books, Gearty brands the Hutton report a
"misreading of the law" and says the government may come to "regret the
inexorable recitation of official good behaviour", as happened over the now
discredited Widgery Report into the Bloody Sunday killings in 1972.

Gearty claims that Lord Hutton did not appear to have thought through any of
his conclusions and made elementary mistakes that even a first year law
student would avoid. He added that if a jury had been asked to decide in a
libel case it "might not have been able to avoid asking itself about the
supposed WMD that this supposedly un-sexed-up dossier was so certain about".

Last year senior barristers in the Matrix chambers jointly proclaimed that
the war against Iraq was illegal under international law.

------

A Misreading of the Law
Conor Gearty
Report of the Inquiry into the Circumstances Surrounding the Death of Dr
David Kelly CMG by Lord Hutton | Stationery, 740 pp, £70.00
London Review of Books,  Vol. 26 No. 4 dated 19 February 2004

At first sight, the Hutton Report seemed to provide further evidence of Tony
Blair's intuitive political genius. It was extraordinary to have reaped from
the appointment of Lord Hutton a set of findings which transformed a crisis
that threatened to be overwhelming into a vindication of every aspect of the
government's conduct, and of the prime minister's moral probity in
particular. But when the full implications of the report sank in, as the
opinion-makers and others who had already commented on it got round to
reading it, the true extent of its partisanship sank in too. As Lord Hutton
ploughed on, turning a messy political story into an occasion to destroy the
BBC, so the political skills that had created the stage for this report
began themselves to look increasingly debased. In the immediate aftermath of
the report's publication, the Napoleonic posture of Alastair Campbell,
proclaiming his integrity from some sort of throne against a grand imperial
backdrop, contrasted with the BBC employees' mobbing of their departing
director general to give us the two images with which Hutton will now always
be associated. It is possible in politics to be too clever by half; this
attribute can be found very close to genius on the political spectrum and,
in the excitement of the success of their ploy, Blair and his (former?)
spokesperson (ventriloquist?) may have strayed towards it. Given that it
remains the case that a neocolonial war has been fought to please
neo-conservative friends in an administration despised abroad and at home,
this crowing may prove not to have been the wisest of moves.

David Kelly's decision to take his own life on 17 July 2003 produced a wave
of public revulsion against the government, and against the prime minister
in particular. It could have seemed a relatively minor event - the sad death
of an eminent public servant who had worked as a weapons inspector in Iraq
and elsewhere - but its effect was to transform a range of disparate
disgruntlements into a profound sense that the government had shown itself
to be morally and politically bankrupt. There were many elements to this bad
feeling: the prime minister had seemed to take the country into war on a
false basis and against the wishes of the people; now, with the invasion
complete, it appeared that there were no weapons of mass destruction at all;
instead of admitting this, the government had suddenly launched a series of
attacks on the BBC, delivered in near-hysterical fashion by Alastair
Campbell, a figure already far too controversial for his position; the
brutal exposure of Dr Kelly that followed added to the general feeling of
distaste, especially when he was seemingly forced to abase himself in front
of not one but two parliamentary committees.

The Hutton Inquiry 'into the circumstances surrounding the death of Dr David
Kelly' was announced on the day Dr Kelly's death was confirmed. There was
some initial anxiety about the narrow scope of these terms of reference, but
any misgivings were soon forgotten in the thrill of Lord Hutton's
preliminary sitting on 1 August, the grand, patrician manner in which he
outlined the procedure he intended to adopt, and the prospect of an exciting
autumn ahead. Many persuaded themselves that the government's whole war
strategy was on trial, and here was the right man to do the judging.

The media may forget terms of reference but judges have built their
professional lives on resisting such amnesia, and Lord Hutton is more
judge-like than most. 'The circumstances surrounding the death of Dr David
Kelly' included 'Mr Andrew Gilligan's broadcasts on the BBC Today programme
on 29 May 2003' since these had 'closely involved Dr Kelly' because they had
alleged '(1) that the government probably knew, before it decided to put it
in its dossier of 24 September 2002, that the statement was wrong that the
Iraqi military were able to deploy weapons of mass destruction within 45
minutes of a decision to do so and (2) that 10 Downing Street ordered the
dossier to be sexed up.'1 These were the 'allegations attacking the
integrity of the government which drew Dr Kelly into the controversy about
the broadcasts' and which Lord Hutton therefore considered it right that he
'should examine under [his] terms of reference'.2 Also relevant was the
matter of how Dr Kelly's name had got into the public arena and how he was
treated by his departmental managers. Not relevant were the questions
whether there were weapons of mass destruction, whether the intelligence
alleging that such weapons existed was faulty, whether there should have
been a dossier at all, even whether the 45-minute claim wrongly failed to
distinguish between battlefield and strategic weapons. All these matters
were outside His Lordship's terms of reference. They were of 'wide import'
certainly, but nothing to do with him.3 During the autumn, Lord Hutton
listened with great politeness to a very great deal of evidence, and read
even more, on issues that he had already - or soon would - entirely put out
of his mind.

With its terms of reference construed in this way, the report was bound to
be somewhat favourable to government and somewhat critical of the BBC. The
authorities could not help but win. Both the BBC and Andrew Gilligan had
already 'accepted that there could be criticism of the 6.07 a.m. broadcast'
on the Today programme, and the BBC had also acknowledged in its evidence to
Hutton 'that there could be criticism of the way in which the BBC treated
the broadcast thereafter'.4 Such criticism duly appears in the final report.
The Ministry of Defence is also predictably criticised for having
communicated to Dr Kelly less well than it might have done the fact that his
name was about to be confirmed as the source for Gilligan's reports.5

What was not anticipated (even, I imagine, by the government) was the extent
of the victory that Lord Hutton would go on to deliver to ministers, public
servants and their advisers. The point is not so much that Blair is himself
acquitted of any wrongdoing in relation to David Kelly's outing: it had
always been extravagant to claim, as the press did, that the prime minister,
to quote Hutton, 'had made a policy decision at a meeting in 10 Downing
Street on 8 July to make known Dr Kelly's name to the public',6 and Hutton
sets out extensive factual data rebutting this assertion (which would
probably have obliged the prime minister to resign had it been found to be
correct).7 Rather, it is the total exoneration of the entire cast list of B
and C division government players - the Hoons, the Scarletts, the Tebbits,
down to the lowest ranks of personnel in the Ministry of Defence - that
makes the report so extraordinarily one-sided. The analogy with the Widgery
Report into the Bloody Sunday killings in 1972 is wrong on many scores but
in one respect it is spot on: the government may over time come to regret
the inexorable recitation of official good behaviour in the Hutton Report,
just as much as Widgery is now regretted. The general public are not close
readers of terms of reference, but things were simply too perfect, too
beautifully and compassionately managed at too many levels of government for
the report to be believable on the terms that the public are interested in:
there was a war fought on an apparently false basis, a scientist who seemed
to have tried to point this out was dead, and nobody responsible for the war
or that death - not a single minister - has paid a political price.

The contrast with the way Lord Hutton treats the BBC is brutal. The
corporation's central claim was that despite its mistakes there had been
great public interest in the September 2002 dossier and serious issues of
great public importance arose in relation to the reliability of the
intelligence contained in it, and therefore it was right for the BBC and Mr
Gilligan to report the concern of Mr Gilligan's source that the dossier had
been sexed up and that there was concern in intelligence circles about the
way in which the 45-minute claim was worded in the dossier.8

The point was also made that 'there had been a number of similar claims in
the media and that the evidence of Dr Brian Jones' - a senior government
scientist - 'showed that the report that there was concern in intelligence
circles was correct.'9 As far as Lord Hutton was concerned, all this was
neither here nor there. The 'communication by the media of information on
matters of public interest and importance is a vital part of life in a
democratic society' but it is 'subject to the qualification (which itself
exists for the benefit of a democratic society) that false accusations of
fact impugning the integrity of others, including politicians, should not be
made by the media'.10 So where 'a reporter is intending to broadcast or
publish information impugning the integrity of others the management of his
broadcasting company or newspaper should ensure that a system is in place
whereby his editor or editors give careful consideration to the wording of
the report and to whether it is right in all the circumstances to broadcast
or publish it'.11 Because such a system was not in place to the satisfaction
of Lord Hutton, or at least was not sufficiently robust to prevent
Gilligan's 6.07 a.m. broadcast, the BBC was to be condemned, as it was also
to be criticised for not subjecting that early morning broadcast to close
forensic analysis when the controversial nature of the claims it contained
had become apparent.

I remember once appearing as a member of a legal team before a committee of
law lords that included Lord Hutton. Most of his interventions were
concerned with the operation of a subsection that we had considered a very
small part of a bigger picture. But a key part of the success of a judge
lies in his or her skill at isolating the issue for decision: the larger it
is, the broader the sweep of the case; the narrower, the fewer implications
a ruling will have. Lord Hutton is by nature a judge in the second category,
a man more inclined to focus on the narrow point than to indulge in grand
claims or unnecessary generalisation. Here, though, the narrow route led to
an astoundingly broad ruling. The 6.07 broadcast is the core of Hutton's
case against the BBC; from that live, unscripted, subsequently modified set
of remarks all else flows, including the loss of the corporation's chief
executive and chairman. But the strength of the criticism of this broadcast,
the engine that makes these few seconds of airtime into the greatest
catastrophe in the BBC's history, is a ruling so fundamental in its effect
that, if applied rigorously, it could destroy BBC journalism for ever.
Imagine a BBC that checks all its output all the time for potentially 'false
accusations of fact impugning the integrity of others, including
politicians', and refuses to broadcast anything that might conceivably pose
such a risk. And there is no reason to stop at the BBC: Lord Hutton's
supposed rule must apply generally. So we must also imagine the kind of
'democratic society' we would have if all television, radio and print news
organisations followed with Huttonesque rigour what Lord Hutton says is the
law. There would be calm, certainly, and quiet reportage of ministerial
achievement, but there would not be democracy as we know it. Lord Hutton,
famously, is from Northern Ireland; in his interpretation of the law the
newspapers would need to have known that British soldiers shot dead innocent
civilians in Derry on 30 January 1972, and the Sunday Times Insight team
would need to have known that the authorities were subjecting internees to
techniques of sensory deprivation to make them talk, before either story
could have been run.

Lord Hutton does not appear to have thought any of this through. He is a
decent man, out of his depth, the simple rule he grabbed hold of for support
being transparently repressive and for that reason certainly not
representing the law, either as it is or as it ought to be. Defending his
general rule against broadcasting doubtful facts impugning the integrity of
others, Lord Hutton refers to a recent House of Lords case, Reynolds v.
Times Newspapers Ltd,12 and sets out in an appendix what he describes as
'relevant passages' from the speeches of three of his judicial colleagues in
that case.13 The message here seems to be, 'Remember, I am not alone on this
one,' but as any first-year law student will tell you, the common law
doesn't work by culling a few quotes from the latest leading case: it
emerges out of concrete facts and builds not on one authority but on many.
There were two other speeches in that decision, and the three law lords from
whom Hutton quotes were not as unequivocal as his report implies.

More to the point, the Reynolds case raises a central question that Hutton
misses completely. If Gilligan's broadcast was so terrible, if the Blairs
were having sleepless nights as a result of being accused of deceit, if the
prime minister was shunned at home and abroad as a liar, the law has a
simple remedy, the one adopted by Albert Reynolds in the case that Hutton
makes so much of: sue for libel. Reynolds was himself a prime minister (of
Ireland) but if it is thought beneath the dignity of a serving UK PM to
resort to the courts, why did poor, maligned, isolated Alastair Campbell not
sue himself, especially when (he would have us believe) his own honour was
so grossly impugned? And what about the Mail on Sunday, where Gilligan's
greatest excesses of character destruction were to be found? Campbell makes
much of his hatred of the paper: here was a chance to take it to the
cleaners. Had this course of action been adopted, the judge and jury who
heard the case would not have been constricted by the terms of reference
with which Hutton misled himself. There would have been questions about the
context and a proper cross-examination of the principal actors. The jury
might not have been able to avoid asking itself about those supposed weapons
of mass destruction that this supposedly unsexed up dossier was so certain
about.

In truth no such suit would have succeeded, which is why none was launched.
Perhaps the most disappointing feature of Lord Hutton's report is his
failure to appreciate the distinction between stopping the media in advance
from publishing something and punishing a media outlet for wrongful
publication after the event. It is the second of these that our defamation
laws are concerned with. Newspapers and other media seek legal advice,
balance the risk, take a chance here, are caught out there, settle,
apologise, pay damages if all else fails. Even if a case reaches court and
the defendant draws a Hutton, an appeal can ensure that the matter is heard
before a more balanced bench. But the law is set against the first approach,
seeing a challenge to our democratic culture in the prior restraint of the
media. Thus, the laws of libel have long rejected efforts by litigants to
prevent publication, on the grounds that, if there is any chance of
publication being justified, the place to argue the point is in court after
publication, not before. The same applies to trade libels, injurious
falsehood and similar claims. Contempt of court laws were changed some years
ago specifically to prevent the stifling effect of spurious libel writs
being issued in order to be able to invoke the contempt laws to shut the
press up. It was the prior restraint dimension to the Spycatcher affair, all
those endless injunctions, that ultimately led to a series of Strasbourg
rulings against the government in 1991. The Human Rights Act, enacted by
Labour in 1998, takes great care to protect the press and other media from
injunctions obtained without their participation, and designed to foil
reports which have not yet been run. Lord Hutton ignores all this. Instead
he would create a mini court of law inside the BBC, staffed no doubt by
cautious lawyers, whose job it would be to examine all news broadcasts for
evidence of 'false accusations of fact impugning the integrity of others,
including politicians'. An ideal Hutton world would have such commissars
everywhere.

One of the more mystifying aspects of the Hutton process was the media's
treatment of Hutton himself, before the publication of his report, as an
Olympian demigod, hovering above the fray, fastidious in his search for
truth and justice. His appearance and extraordinary accent have helped; the
media love caricature, and here was a judge who seemed to have walked into
the limelight directly from the 1950s. But underpinning the blind trust that
was placed in him, and which has now rebounded so badly, was a more general
enthusiasm for the judiciary which is all the more remarkable for having
been so recently acquired and for being (as far as the commitment to media
freedom is concerned) largely without foundation.

It is not so long ago that judges were the most maligned group in the entire
body politic. Their naked partisanship during the miners' strike, the
Spycatcher debacle, and then the succession of miscarriage of justice cases
of the late 1980s and early 1990s had established the senior judiciary in
the eyes of most people (and particularly in the eyes of the media) as
inclined to authoritarianism, unaccountable in their exercise of power and
entirely out of touch. The refusal of judges to give any interviews, under
cover of antiquated 'rules' which a long forgotten lord chancellor had
invented, compounded the sense that they were all, or almost all, malevolent
recluses. Things began to change with the arrival of a new lord chief
justice, Lord Taylor of Gosforth, and the appointment to the bench of
intelligent and progressive voices like those of Harry Woolf, Thomas Bingham
and Stephen Sedley. By the mid-1990s, the senior judiciary were conducting a
spirited campaign of defiance against successive Tory home secretaries over
such issues as the need to obey court orders and to sentence convicted
prisoners in a moderately humane manner. Hardly left-wing campaigning, but
enough to persuade the media that judges had somehow or other changed. The
inquiry into the Matrix Churchill affair by the lively and loquacious
Richard Scott, a famously bicycling judge, played its part. The new
willingness of the judges to be interviewed also helped, even though the
interviews were invariably conducted with a deference that had long been
withdrawn from ordinary politicians. The rebranding was highly effective and
by the time Hutton was appointed it was assumed that all judges were
paragons of open-minded independence. The complaints now being made about
Hutton in the media - about his background, his conservatism, his acting for
the government at the Widgery tribunal - can easily be made to look like
special pleading on the part of losers surprised at the extent of their
defeat rather than objective concerns.

Two points were missed by the bright-eyed defenders of the judiciary. First,
it is certainly true that some judges are liberal, much more so than in the
past. Just like previous administrations, this government has lost its fair
share of cases in court, perhaps more than most as judges have sought to
exercise their power under the Human Rights Act to achieve a just (or at
least a less unjust) society. Where issues relating to the administration of
justice are concerned, however, judges tend to favour their own authority
over press freedom. Judges, even liberal judges, hate to see the law broken.
Lord Hutton would not have been the only judge to take seriously the fact
that Dr Kelly had spoken to journalists 'in breach of the civil service code
of procedure which applied to him'14 or to have found that the
whistleblower's legislation passed in the early days of the Labour
administration didn't shield him because he didn't talk to his superiors
before talking to the press.15 As for the naive faith that judges are more
in favour of freedom of expression now than in the past, that will have been
dealt a blow by the law lords' recent resounding affirmation of the right to
regulate political speech, in an appeal against a ruling allowing a ProLife
Alliance election broadcast brought - bizarrely in the present context - by
the BBC.

The second point is more fundamental. At least in litigation, governments
neither control the parameters of the case nor the composition of the bench
that decides the matter. In public inquiries they do both. This is the
reason it was Lord Widgery and not, say, Lord Scarman who was appointed to
the Bloody Sunday tribunal, and Lord Diplock (rather than, for example, the
equally distinguished Lord Gardiner) who was asked in 1972 to restructure
Northern Ireland's legal system so as to camouflage the state's war against
the IRA with a veneer of legality. These examples can be multiplied right up
to the present day: a range of judges - personally appointed to the task by
the prime minister or another wing of the executive branch - preside over
the security state, publishing annual reports confirming that all is well in
MI5 and MI6, that telephone tapping is being scrupulously done, and so on.
Even if the government gets the wrong judge by accident, the terms of
reference imposed will usually hinder even the entirely independent
investigator's power.

It is not difficult to establish a coherent account of the events that led
David Kelly to take his life. The idea of a dossier had been around since
February 2002, when the Defence and Overseas Secretariat in the Cabinet
Office had commissioned a paper on the weapons of mass destruction
capabilities of four countries of concern, including Iraq.16 Even then the
possibility of public use of such a document was being considered.17 The
following month, at the prime minister's request, a further paper, dealing
only with Iraq, was completed.18 On 3 September 2002, Tony Blair announced
that the government would be publishing a paper on Iraq's capacity in
relation to weapons of mass destruction.19 The old material was then gone
through with an eye to public dissemination. Given the high level of
political engagement, the commitment to publish the dossier made almost
unavoidable a careful reworking of earlier material so as to put it (from
the government's perspective) in the best public light. Alastair Campbell
acknowledged that the intelligence community needed to be '100 per cent
happy' with the content, but in the same message to John Scarlett, the head
of the Joint Intelligence Committee, he made clear that 'the judgment as to
whether a single person should be appointed to write the final version' had
yet to be made.20 On his best behaviour, Scarlett made a final seizure of
control by Number 10 unnecessary, constructing a document that pleased his
political masters, and which required some further tinkering rather than a
radical overhaul. The replacement of 'could' with 'capable of being used'
and other concessions of this sort made at Campbell's request have credibly
underpinned the allegation of 'sexing up'. But the whole document was in its
conception, structure and language a 'sexing up' of intelligence: all
Campbell was alleged to have been doing was 'sexing up' the already 'sexed
up', like offering Viagra to a sex maniac. Right from the start, the
intelligence community (a spooky term in every sense) should have had
nothing to do with the idea of a dossier intended for public consumption.
Instead they were drawn into the Campbell world of spinnery and
sleight-of-hand, where even they - arch-spinners and sleighters-of-hand -
couldn't cope.

When the Foreign Affairs Committee decided on 3 June that it would hold an
inquiry into 'the decision to go to war in Iraq',21 this was very unwelcome
news to the government. We can now see why: as early as late May it was an
open secret among those in the know in Washington and London that no one was
going to find large stockpiles of chemical and biological weapons; as the
former UN nuclear inspector David Albright has been reported as saying, 'the
only people who did not know the facts [were] the public.'22 Clearly the
government was going to face tricky questions about the dossier which it
published in September 2002 and which had seemed to be convincing in its
assertions about the danger Saddam Hussein posed both in the Middle East and
further afield. When he appeared before the Foreign Affairs Committee on 25
June, Alastair Campbell's chosen means of evasion of the key issue - the
non-appearance of weapons of mass destruction - was to launch an attack on
the BBC for having alleged that the prime minister had lied: 'the story that
I "sexed up" the dossier is untrue; the story that I "put pressure on the
intelligence agencies" is untrue; the story that we somehow made more of the
45-minute command and control point than the intelligence agencies thought
was suitable is untrue.'23

Putting the entire focus on one report by Andrew Gilligan broadcast very
early in the morning was a neat evasive ploy, and it might have worked for a
while had not two events intervened. First, David Kelly came forward and
admitted that it was possible that he had been Gilligan's source. Second,
after his appearance before the two parliamentary committees, and with the
full spotlight on him, he killed himself. This turned a diversionary
skirmish into the main theatre of war. The government managed the disclosure
of Kelly's name in a way that - given the circumstances - was neither brutal
nor overly insensitive. How Number 10 must have wished that he had kept
silent, and allowed Campbell's hysterical attack on the BBC to work its way
to a conclusion, fill a few front pages and distract public attention a
little longer from the main issue. However, with the scientist's death, the
government took the chance further to postpone confrontation of that issue.
Blair must have hoped that by the time of the publication of the report the
problem of the non-existing weapons of mass destruction would have gone
away, been forgotten or mistakenly elided in the public mind with the Hutton
Inquiry. But the judge's total exoneration of the government made the last
of these impossible. And with perfect timing, the former head of the Iraq
Survey Group, David Kay, promptly made the first two of these scenarios
quite impossible.

So, magnificently and rightly, we are back where we started, with the
absorbing question of those weapons of mass destruction without which we
would appear to have gone to war on an entirely false basis. In a replay of
the Hutton trick, a new committee is to rule on the nature of the
intelligence that went before the prime minister and on how that material
was used. With the assistance of whatever this group reports, but relying
also on the revelations that are bound to flow from Capitol Hill, the
British public will in due course have to decide whether their prime
minister had a totally unreasonable belief in the existence of such weapons,
or whether he consciously lied about them to fool the country into war and
please George Bush, or whether he was tricked by the intelligence
'community' into an unnecessary conflict. It is not an attractive choice for
any country: is their war leader mad or bad or has he just been had? Perhaps
the answer will eventually prove to be a bit of all three.

Footnotes
1 Para 9.
2 Ibid.
3 Ibid.
4 Para 276.
5 Para 436.
6 Para 402.
7 See Paras 402-418, especially Para 411.
8 Para 276.
9 Ibid.
10 Para 280.
11 Ibid.
12 [2001] 2 AC 127.
13 Para 280. See Appendix 17.
14 Para 259 (2).
15 Para 255.
16 Para 163.
17 Ibid.
18 Para 165.
19 Para 171.
20 Para 173.
21 Para 41.
22 Observer, 1 February 2004, p. 19.
23 Para 45.

Conor Gearty is Rausing Director of the Centre for the Study of Human Rights
and Professor of Human Rights Law at the LSE, and a barrister at Matrix.
Principles of Human Rights Adjudication is forthcoming from Oxford.