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 Office, 740 pp, £70.00, January 2004, ISBN 0 10 292715 4

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.

[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.