The Hutton Inquiry: Some Wider Legal Aspects
The Hutton Inquiry: Some Wider Legal Aspects
Abstract and Keywords
This chapter examines the legal aspects of the Hutton Inquiry. It suggests that the Hutton Report is not of great legal significance and that though it was criticizes it was not extreme example of the danger or risks of involving judges in political controversy. The chapter contends that the controversy surrounding the Hutton Report has less to do with the law relating to freedom of information than to the culture of secrecy that has now been more extensively canvassed by the Phillis Report.
(p.30) (p.31) We live in an audit society with a sound-bite culture.1 In the Hutton Inquiry the Prime Minister, other senior members of the Executive, members of Parliament, BBC journalists and the BBC itself were all called to account in a blaze of publicity; then the auditor himself and his report were subjected to critical scrutiny by the national press. Three sound-bite phrases that were central to Lord Hutton’s inquiry were all shown in evidence to be radically ambiguous — ‘weapons of mass destruction’, ‘deployment within 45 minutes’, and ‘sexed up’. In the second phase more familiar sound-bite expressions were bandied about: ‘spin’, ‘whitewash’ and ‘cover up’. There is a danger that the whole episode will be remembered largely in such terms.
I was in Britain during the hearings, but I was in the United States when Lord Hutton reported.2 This underlined the sharp differences in public perceptions of the proceedings and later of the report: Lord Hutton was generally praised for his handling of the inquiry; his analysis of the evidence and nearly all of his specific findings of fact were widely accepted; but several of his most important conclusions were equally widely criticized.
In Britain, like millions of citizens, I followed the proceedings on television, fascinated by the unusually bright light that was shone on the workings of government at a moment of crisis and on a number of shadowy figures who are usually invisible rather than transparent. This was a fascinating and dramatic case study of open government. However, on the same day in January that Lord Hutton reported, a former US Chief Weapons Inspector, David Kaye, told the Senate Armed Services Committee that he no longer believed that Saddam Hussein had significant stocks of illegal (p.32) weapons or an active programme on the eve of the war. Not surprisingly, David Kaye captured the American headlines and the Hutton Report was relegated to quite succinct summaries on the inside pages. Within days its significance had been reduced to sound-bite references. In the United States, there was hardly any mention of the subsequent controversy in the British press. Within days the report was poorly remembered history.
Largely as a result of David Kaye’s testimony, President Bush felt compelled to set up an inquiry into the intelligence about Iraq’s weapons of mass destruction. This in turn led a reluctant Prime Minister to set up the Butler Review, which reported on 14 July 2004.3 That raises questions as to how far Butler has superseded Hutton. So far as the wider issues are concerned, my view is that they complement each other to give a vivid picture of the workings of government.
I have been asked to consider the wider legal implications of the Hutton episode. Jonathan Sumption QC, Counsel for the Government, argued that there is a ‘danger of trying to learn general lessons from appalling but wholly exceptional and unpredictable events.’4 I think that this is broadly true, but that it goes a step too far. In my view, the Hutton episode throws almost no light on the legality, the morality, or the prudence of the war in Iraq — nor should we have expected it to. It only throws indirect light on such matters as the search for ‘Weapons of Mass Destruction’ or whether the information included in the September dossier was of sufficient strength and reliability to justify military action in Iraq.5 Nor does it have very much general legal significance in a technical sense.
(p.33) Once they have performed a short-term political function, reports of this kind tend to survive mainly as fodder for academic specialists to pick over at leisure. It is still difficult to assess the political impact of the Hutton Report. It exonerated the Prime Minister and others in government from the most serious allegations; it quelled most rumours that doubted that David Kelly had committed suicide; it gave a severe jolt to the BBC at the start to the run-up to the review of its Charter — but opinion is divided on whether it strengthened or weakened its position in the longer term; and it stimulated some further inquiries. I shall suggest that the Hutton episode is of minor significance in relation to political judgments on the war in Iraq, or to the practice of involving judges in public inquiries, or to the law relating to freedom of information and freedom of speech. It is too early to judge whether it will be influential as a model of open government at moments of political crisis; in future some inquiries may be vulnerable to such questions as: why are you being less open than Lord Hutton? Given the unprecedented publication of JIC intelligence material by Lord Butler, we may be seeing the start of a significant trend.6
However, the Hutton Report does raise a few issues of a broadly constitutional significance. I shall consider briefly the implications of involving senior judges in politically sensitive inquiries; the terms of reference and how they were interpreted; the procedures adopted; the powers of inquiries; and freedom of information, all of which are intimately related. I shall then touch briefly on the relations between the Executive and the intelligence services, which have now been dealt with more thoroughly in the Butler Report. I shall leave my colleagues to deal with Hutton’s (p.34) implications for journalists and what is perhaps the most important issue — the possible impact of the episode on future relations between the BBC and the government.
The use of judges in quasi-judicial and non-judicial inquiries
Public inquiries are normally set up by Ministers to investigate and pronounce on matters giving rise to serious public concern, such as major disasters, allegations of corruption or of serious impropriety in public life or of police malfeasance. The main objective is to restore public confidence by a formal, independent, and open investigation of the facts, and to make recommendations to prevent a recurrence of the matters causing public concern. Where appropriate this may involve blaming or exonerating individuals, provided that it does not purport to determine legal responsibility. But that is a secondary objective.7
The Hutton Inquiry is an example of the peculiarly British practice of using senior judges to conduct quasi-judicial inquiries into politically significant events. Within 24 hours of the news of Dr Kelly’s tragic death, a senior judge had undertaken ‘Urgently to conduct an investigation into the circumstances surrounding the death of Dr Kelly’. The decision to hold an inquiry, the terms of reference, the decision that it should be chaired by a single senior (p.35) judge, and the choice of the individual judge were all decisions of the Executive — the Prime Minister and his advisers. They were in that sense political decisions made in response to a dramatic and tragic event. The transition from the political to a quasi-judicial process was symbolized by the fact that it was the Lord Chancellor — that most ambiguous of dignitaries — who invited Lord Hutton in for a cup of tea and to undertake the task. Lord Hutton, we are told, accepted immediately. It is not clear whether he could have refused on the ground that this was an inappropriate task for a judge, as several Justices of the US Supreme Court have done in the past.8 But it is clear that when our Supreme Court is established and the Lord Chancellor (or his successor) will no longer be head of the Judiciary, there will be a sharper demarcation between the Executive and the Judiciary. It may then be easier for individual judges or the Judiciary collectively to refuse such assignments more often.9 And that will be a good time to reconsider the principles that should govern the involvement of judges in extra-judicial activities. Interestingly, the excellent recent Consultation Paper on Effective Inquiries assumes that the practice will continue rather than weighing its costs and benefits.10
In this respect the Hutton Inquiry is just the latest in a long succession of instances in which there has been controversy about the appropriateness of employing senior judges to conduct or chair public inquiries in politically sensitive or otherwise controversial areas. It is not a particularly extreme example. This is a complex (p.36) subject with a long history. Other countries have used judges in extra-judicial inquiries, but it is probably fair to say that most have tended to be more cautious than the UK in this area.11 Lords Widgery, Parker, and Diplock were among those who had their fingers burned in respect of Northern Ireland; Scott, Scarman, and Macpherson attracted controversy. Eyebrows have been raised about the Saville Inquiry into Bloody Sunday, which since 1999 has tied up one of our most respected judges, has cost over £150 million pounds, and could lead to a no-win denouement. From the point of view of the individual judge, the invitation to chair an inquiry may often have come to seem like a poisoned chalice.
But is it in the public interest that judges should be given such tasks? The issues are complex, because inquiries are of many different kinds, the extent to which they are divisive varies considerably and so do the procedures. There is a strong body of academic opinion that questions the practice.12 The more cautious emphasize the importance of the independence of the Judiciary and of maintaining public confidence in judges. They point out that judges by virtue of their training and experience are better equipped to investigate particular past events (what happened?) than to consider future policy (what should happen?); they tend to be better at dealing with precisely defined issues (monocentric inquiries) rather than broad-ranging, diffuse ones (polycentric inquiries).13 Most agree that judges should as far as possible avoid unnecessarily becoming embroiled in public controversy.
Opposition to the practice has been stronger in the United States, even at moments of extreme national crisis. Nevertheless, (p.37) Supreme Court Justices have undertaken some major extra-judicial assignments at the request of the President: Justice Owen Roberts in respect of Pearl Harbor; Justice Robert Jackson to become chief US Prosecutor at the Nuremberg Trials; and Chief Justice Earl Warren to chair the Commission to inquire into the assassination of President Kennedy. Warren was extremely reluctant to take on the assignment, but had his arm twisted by President Lyndon Johnson; Robert Jackson was keen to take on the Nuremberg Trials, but was heavily criticized by his brethren, who thought that at least he ought to resign. His biographer sums up Chief Justice Stone’s attitude as follows:
For Stone, Justice Jackson’s participation in the Nuremberg Trials combined three major sources of irritation: disapproval in principle of non-judicial work, strong objection to the trials on legal and political grounds, the inconvenience and increased burden of work entailed.14
The analogy with the United States should not be pressed too far, because the constitutional arrangements are different and part of the concern has been the effect on the workload of the Supreme Court, which has a finite number of Justices. Much of the American concern for a strong and independent ‘Third Branch’ of government is just because the Federal Courts are called on to decide important, often highly contested issues of state. The more ‘political’ the role of the Judiciary, the greater is the need for a strong doctrine of separation of powers. It is their independence of the Executive more than their political impartiality that tends to be emphasized in the American debates. Chief Justice Rehnquist, after a careful survey of the history, agrees that the independence and (p.38) reputation of the Judiciary, especially the Supreme Court, is put at risk by involvement of judges in extra-judicial activities, but concludes that at times of national crisis the risks of not using judges when needed may be even greater. Echoing Lincoln’s words: ‘Shall I save the Constitution, but lose the nation?’
Quis custodiet ipsos custodes? If not judges, who? Who besides a judge or senior lawyer could have designed and presided over an inquisitorial proceeding that involved public examination and cross-examination of witnesses in such an open and revealing manner? I doubt whether an inquiry conducted by a committee drawn from the great and the good (i.e. non-lawyers) or by an elder statesman or a bi-partisan committee of politicians could have revealed nearly so much. The Butler Report contains a unique collection of quotations from JIC assessments, but does not give so much insight as the Hutton Report into the day-to-day operation of government. Its proceedings were arcane — understandably in the circumstances. A quasi-judicial procedure can produce extraordinary detail and openness, but at the almost inevitable cost of narrowing the issues. Judges are needed to operate this kind of proceeding.
The terms of reference
Lord Hutton robustly claimed that he had discretion to interpret his terms of reference. One might say that these were open to three possible interpretations: a narrow one concerned only with the cause of Dr Kelly’s death and allocation of blame in connection with it; a broad one dealing with such matters as the accuracy of the information in the September dossier, the justification of the war, and intelligence about weapons of mass destruction; and, thirdly, something in between. Lord Hutton chose the third option.
(p.39) The narrow issues centre on the question whether Dr Kelly committed suicide or was murdered, and whether anyone should be blamed in any way for any decisions or actions that may have contributed to his death.15 These issues one might say are recognizably justiciable — i.e. appropriate for adjudication — even though in this case some are concerned with moral rather than legal responsibility. As we know, Lord Hutton dealt with all of these matters, concluding unequivocally that the cause of death was suicide; that the exact motives for suicide were uncertain;16 that no one should be blamed for contributing to Dr Kelly’s death; and that, although the manner of his ‘outing’ was not improper in the circumstances, more could have been done by the MOD to help and support him.
In theory, Lord Hutton could have stopped there. But clearly that would not have met Government’s concerns about the accuracy of Andrew Gilligan’s allegations nor public concerns about the way the September dossier was compiled. But if we go beyond a narrow, legalistic interpretation, we get into muddier waters. What issues were to be treated as relevant to the story of Dr Kelly’s death? Lord Hutton robustly declared that he was going to focus on five sets of issues.17 Three are covered by the narrower interpretation; the remaining two are:
(1) issues relating to the preparation of the dossier of 24 September 2002, but not to its accuracy or wording;
Some people had hoped for a broader inquiry into the accuracy of the information in the dossier of 24 September, whether the information included in the dossier was of sufficient strength and reliability to justify military action in Iraq, and even the wider issues of the legality, morality, and wisdom of going to war.18 Lord Hutton ruled that all of these matters fell outside his terms of reference, mainly on the ground that a broad-ranging inquiry of this kind could not be conducted urgently and much of it was not directly relevant to the circumstances leading up to the death of Dr Kelly. This provoked a storm of criticism from frustrated journalists who had expected more from this highly visible political drama.
In my opinion, Lord Hutton was broadly justified in interpreting the terms of reference in the way he did both for the grounds he gave,19 but also (1) because the tragic death of an individual is not a good focal point for dealing systematically with such broad and diverse issues, and (2) because these issues have been and will be the subject of other extensive inquiries, both in this country and elsewhere. In preparing this essay I have had to look at eight other recent British reports relating to issues raised by Hutton, to say nothing of reports from the United States, and books such as Hans Blix’s memoir.20 Some of these deal in much (p.41) more detail than either Lord Hutton or Lord Butler with such matters as the Government’s public relations, freedom of information, the BBC’s internal procedures, and arrangements for public inquiries.
Indeed, I would go further and say that a lot of criticism would have been avoided if Lord Hutton had also treated the row between Alastair Campbell and the BBC and the BBC’s defence of Andrew Gilligan as tangential to the story of the events leading up to David Kelly’s death.
Lord Hutton displayed his independence by robustly determining the procedure to be followed and maintaining firm control of the proceedings. At present there is no statutory framework for public inquiries and the Chairman has a wide discretion to determine and control the procedure. Building on the experience of prior inquiries, especially the Scott Inquiry into Arms for Iraq and the Macpherson Inquiry into the murder of Stephen Lawrence, Lord Hutton adopted a quasi-judicial procedure which is a Benthamic (p.42) mixture of civil and common law approaches with the following characteristics.21
(1) It was ‘inquisitorial’ in that the Chairman rather than any interested parties controlled who was called as a witness, what documents were produced, and, to a large extent, what questions were asked.
(2) It resembled common law proceedings in emphasizing oral testimony and the examination and cross-examination of witnesses in public.22
(3) The style was investigative rather than contentious or disputatious: in the first stage witnesses were examined by counsel for the inquiry ‘in a neutral way’;23 in the second stage, some witnesses whose conduct might be the subject of criticism in the report were recalled (or called for the first time) to be examined further by counsel for the inquiry, their own counsel, and counsel for other parties — all subject to permission of the Chairman.
(4) The most striking innovation was the creation of a website on which almost all of the evidence was posted immediately, so that although the proceedings were not televised, the media and the public at large had access to almost all of the information presented to the inquiry. This meant that in theory at least everyone could make up their own minds on the basis of almost the same evidence as Lord Hutton. The report organized and analysed the evidence, made findings of fact based on that evidence, and allocated responsibility by exonerating or blaming (p.43) individual actors in connection with the events treated by Lord Hutton as relevant.
I have four comments on the procedure adopted.
(1) This kind of investigative procedure is well-suited to open and thorough determination of the facts about particular past events. However, whatever procedure is adopted, criticism and exoneration of individuals is a tricky matter, because an inquiry is not meant to determine legal responsibility, but there are almost no settled criteria for determining moral or political responsibility in this kind of situation. Nor are there settled standards of proof. Furthermore, it requires due process, which can be time-consuming.24
‘Naming and blaming’ produces sound-bites in ways that detailed analysis often does not. The main criticisms in the media of both Hutton and Butler have centred on their refusal to name and blame individuals in government. Is this reluctance due to pro-establishment bias? Or is it due to concerns about fairness to the individuals concerned?25 Is it due to a concern not to pre-empt issues that may be the subject of legal proceedings?26 Is it because of a lack of clear criteria for making such judgments? Or is it that decisions whether ministers or public servants should keep their jobs are really not the job of public inquiries? This is a grey area that needs clarification. What the Hutton and Butler inquiries have shown is that there is a wide gap between the expectations of the media and the public, on the one hand, and those who conduct ad hoc public inquiries on the other.
(p.44) (2) The kind of investigative procedure adopted by Lord Hutton is well-suited to open and thorough determination of the facts about particular past events; it may not be so well-suited to recommending changes in general policy or procedures for the future — in this case the behaviour of the Downing Street Press Office, the JIC, and the BBC’s internal procedures — because this kind of issue often requires a broader focus and expertise on matters on which judges may be no more qualified to make judgments than well-informed citizens. As with similar inquiries, Lord Hutton’s analysis of the evidence and his specific findings of fact (e.g. on the cause of Dr Kelly’s death, the accuracy of Andrew Gilligan’s allegations) have been subject to much less controversy than his judgments on blameworthiness and his general criticism of the BBC’s editorial and management systems (Chapter 8).
(3) There is a puzzle about why the Hutton Inquiry was so much more of a media event than any other Iraq-related inquiry before that. I would suggest that it has a lot to do with the procedure adopted. This preserved those features that make the common law more telegenic than the civil law — orality, questioning of witnesses, publicity. Despite the exclusion of TV cameras, this helped to make the Hutton Inquiry exceptionally newsworthy: a courtroom drama provided a focus for a human tragedy connected to high politics and great political issues. It is also striking that Lord Hutton obtained much more co-operation and adduced more detail than the two Parliamentary select committees that had previously reported.
(4) Lord Hutton sat alone. It has been suggested that if he had sat with assessors who were, for example, experts on intelligence and the BBC, he might have been able to make better-informed judgments. That is possible. But in a centrifugal case such as this, what kind of expertise would be most useful? The procedure adopted was not appropriate for evaluating the reliability of intelligence; an assessor might have advised differently about JIC–Executive (p.45) interface, but was not expertise also needed into the causes of Dr Kelly’s death or the Downing Street Press Office or how Dr Kelly was treated by the Ministry of Defence? The use of assessors might also have slowed down proceedings.
Inquiry powers and freedom of information
As this was a non-statutory inquiry Lord Hutton had no powers to subpoena witnesses or to compel the production of documents. This did not impede this inquiry because the Prime Minister had ordered, and Lord Hutton secured, full co-operation of nearly all the relevant people. If anyone had refused to comply the main sanctions would have been informal, notably adverse publicity. If the inquiry had been set up under the Tribunals of Inquiry (Evidence) Act, 1921, powers to compel the attendance of witnesses and the production of documents would have been backed by the possible threat of proceedings for contempt of court. Experience suggests that the effectiveness of tribunals is likely to be enhanced if they have such powers, even if in practice they are kept in reserve as a last resort. However, proceedings for contempt are portentous, formal, and likely to be slow. In the consultation paper on Effective Inquiries it is proposed that such powers should be part of a general statutory framework, but that failure to attend as a witness or to produce documents or to take an oath or affirmation, if required, should be made a summary offence, subject to lesser sanctions.27 This is already provided for under some subject-specific legislation, such as the NHS Act,28 and is reported to work quite well. It is recommended that there should (p.46) also be sanctions, short of contempt, for destroying or distorting evidence.29 These recommendations seem sensible. Fortunately, none of these issues arose during the Hutton Inquiry.
A distinction needs to be drawn between presenting evidence to an inquiry and making that evidence public. Some commentators have suggested that the procedure adopted has important implications for the law relating to freedom of information. That is misleading. The Freedom of Information Act is not yet in force; a great deal of the evidence adduced and displayed would almost certainly have been exempted under the Act.30 The documents which so graphically revealed the day-to-day workings of government in crisis — emails, minutes, jottings, and Alastair Campbell’s diary — would almost all have been exempted. If the Act had been in force, they would have been revealed in spite of not because of it. Information was adduced because officials were instructed to give full co-operation; it was publicly displayed because Lord Hutton appears to have proceeded on a presumption of full disclosure; only a few documents marked ‘secret’ or ‘top secret’ were withheld and a few other items specifically requested by the Cabinet Office or other departments.
It seems very unlikely that the Hutton Report will lead directly to any amendments to the Freedom of Information Act; it may or it may not fortify the recommendation of the Phillis Report (p.47) (the Government Communications Review Group)31 that officials should interpret the Act liberally. It is too early to judge whether it will be influential as a model of open government at moments of political crisis; it is possible that some future inquiries may be vulnerable to such questions as: why are you being less open than Lord Hutton was? So the Hutton episode may affect the culture of secrecy, but not the law on freedom of information.
The relations between government and the intelligence services
The chapter on the compilation of the two main dossiers is for me the most interesting in the report. Lord Hutton reconstructs the story in fascinating detail and convincingly shows that the allegation that the Government knowingly included false information in the dossier was unfounded. But it also revealed the extent of the involvement of the Downing Street Press Office in what was presented as an intelligence report.
The Butler Review has explored in detail issues relating to relations between the JIC and the Executive. It has concluded that the September dossier was misleading especially in regard to the reliability of its sources and to the ‘45 minute’ claim. Although the Report is rather gentle on individuals, including Alastair Campbell and the then Chairman of the JIC, it recommends unequivocally that in future a clear line should be drawn between advocacy documents and intelligence assessments. Intelligence assessments should be ‘owned’ by the intelligence community; advocacy documents should be ‘owned’ by the politicians. In these respects the Butler Report has superseded the Hutton Report and I am in general agreement with these judgments.
(p.48) Here I confine myself to two brief comments. First, immediately the September dossier was published it was clear that the document was at the very least ambiguous in implying that the 45-minute weapons were ‘Weapons of Mass Destruction’ and in failing to distinguish between battlefield weapons and long-range weapons.32 When the press misinterpreted the document in a way that sensationalized the ambiguities, no attempt was made by anyone in Government to rectify the seriously misleading impression that had been created. The main actors who were publicly revealed to have been involved in preparing the document washed their hands of responsibility for its interpretation.33 Yet quite stringent requirements of retraction were demanded of the BBC.
Second, unlike in the United States, the intelligence services have not been made the main scapegoat for things that went wrong. There are suggestions, not yet pronounced on, that the CIA was subject to direct and prolonged political pressure in respect of (p.49) their assessments on Iraq. It seems that this may be less of a problem in this country and that ‘the strain’ experienced by the JIC in respect of the September dossier was a unique aberration.34
It might be argued that the intelligence community is inescapably involved in a political process. In this view, it is practically impossible to maintain a sharp line between fact and value in making intelligence assessments; intelligence analysts will very often have a clear idea of what their political masters want to hear; they can be steered towards particular conclusions without overt pressure; and they may be influenced by the desire to please. In short, the idea of an independent, impartial intelligence service is a pipe-dream.
I disagree. As with judicial independence, the dangers of pressure and bias are there, but it is of the essence of professionalism consciously to discount such biases and to make judgments without regard to what one’s clients or patients or sponsors want to hear. One of the encouraging aspects of what was revealed by the Hutton Inquiry was the professionalism exhibited by members of the intelligence community, including Dr Jones and Dr Kelly himself. They, it seems, had a clear idea of the difference between intelligence reports and political advocacy. But a question remains whether extra buffers are needed to ensure that political influence on intelligence analysis and assessment is minimized.
To sum up: The Hutton episode is not of great legal significance. Although it was criticized, the Hutton Report was not an extreme example of the danger of involving judges in political controversy. Issues of freedom of speech and the repercussions of the report for the BBC will be dealt with by my colleagues. Lurking in the interstices of this substantial and diffuse report are some issues about inquests, the law of defamation as it affects journalists, and so on. It raises a few constitutional issues that I have touched on. It is a wonderful study in open government, but I suggest that this is less to do with the law relating to freedom of information than to the culture of secrecy that has now been more extensively canvassed by the Phillis Report. Public inquiries play an important role in our public life. They are most useful in clarifying issues and determining facts, but we should not expect too much of them in respect of attributing political, professional, or legal responsibility.
I want to add a few footnotes to William Twining’s essay, and then turn to a subject which he has by design omitted, but which for many lawyers has been the most interesting and controversial aspect of Lord Hutton’s findings — whether his criticisms of the BBC give sufficient weight to their right of freedom of expression guaranteed under the European Convention on Human Rights and the domestic Human Rights Act 1998.
The first point is this. There was no legal obligation upon the Government to set up the Hutton Inquiry at all. It was a purely political decision. Dr David Kelly’s suicide would, in ordinary circumstances, have been dealt with by Coroner’s inquest; and the recent decision of the House of Lords, adjusting the domestic legislation to Convention imperatives, would have allowed for a sufficiently deep investigation into the underlying causes of his suicide, as long as it did not identify any individual allegedly responsible nor address any issue of civil or criminal liability.34 As it was, the actual Coroner who enjoyed jurisdiction felt, in the hallowed phrase of the third judge in a three-judge appellate court, that he add nothing to add.35
(p.52) The second point is that the ‘big issue’, the legality of the invasion of the sovereign state of Iraq, did not fall within Lord Hutton’s remit and could not usefully have done so. It has excited much debate among public international lawyers. The case against has been powerfully articulated by, amongst others, Lord Alexander QC in his Tom Sargant Memorial Lecture;36 and concerns within the Foreign and Commonwealth Office were illustrated by the resignation of Elizabeth Wilmshurst,37 a senior legal adviser. The Attorney General’s supportive advice has only been recently published in summary form,38 and to that extent, the case in favour has not been so fully deployed or at any rate publicized.
Who was right on that issue could be tested at any rate in theory at the International Court of Justice in The Hague — although there was an audacious but unavailing attempt by the Campaign for Nuclear Disarmament to obtain a judicial review in the High Court of the Government’s decision to invade without a second UN resolution.39 Yet the pronouncements of an eminent lawyer such as Lord Hutton outside the appropriate legal forum would command respect, but would not be legally binding. Any trial of the Prime Minister’s decision that United Kingdom troops should join the invasion will take place before the bar of history.
The third point is that the contrast between the public view of the inquiry process and the inquiry outcome was preordained. On the one hand, there was universal admiration for the manner in which Lord Hutton handled the inquiry. He combined efficiency and expedition, and mindful of the need to be fair to all parties — since his criticism, although lacking the force of an order of Court, (p.53) could have severe consequences for its objects40 — did not sacrifice justice to convenience. This was no mean feat, since it is a feature of the majority of inquiries that, like Topsy, they just grow. As a participant advocate in three, the Crown Agents Inquiry,41 the Scarman Inquiry into the Brixton Riots in 1981,42 and an inquiry into a marine collision in Singapore,43 I am well aware of how time estimates for duration conventionally fall widely short of the mark. On the other hand, Lord Hutton’s substantive conclusions commanded less than universal applause. The explanation is obvious. The issues assigned to his consideration were more political than legal and were ones on which judgments were generally formed before his inquiry and consequently unchanged by it.
Although Lord Hutton’s exercise was in form an inquiry, it rapidly took on — at least in the perception of those who reported it — an adversarial contest with the Government on one side and the BBC on the other. Few, if any, who participated in or followed it were other than surprised by Lord Hutton’s acquittal of the Government and criticism of the BBC: most expected him to find fault on both sides.44 And there was certainly room for different opinions on the primary facts which he (and subsequently Lord Butler) painstakingly analysed: for example, the question remains as to why it was that the intelligence dossier upon which the Government relied to justify the invasion underwent changes between its original text and the final published version, although (p.54) the underlying intelligence information had not changed at all. That might suggest to some either an overbearing Government or an over-pliant intelligence service;45 Lord Hutton’s view was that, if the latter were prepared to accept the former’s suggestions as to alterations, then all remained for the best in the best of all possible worlds. Subconscious influence was the limit of his critique. Lord Butler for his part merely referred to ‘a weakness on the part of all those who were involved in putting together the dossier’,46 giving birth to a novel legal principle that if everyone is guilty, no one is.47 But the debate has clearly not reached closure among politicians, press or public. Tot homines, quot sententiae.48 We would both hope and expect by contrast more commonality of opinion from judges sitting in courts of law.
My fourth point is that, had Lord Hutton continued to serve as a Lord of Appeal in Ordinary after submission of his report, instead of retiring, he might have risked losing, in the eyes of some, that appearance of being above the fray, which is essential to public confidence in the independence and impartiality of the judiciary. I add at once that he was in no sense the author of his own misfortune as was, arguably but accidentally, Lord Hoffmann whose amnesia about his links with Amnesty, an interested party in the Pinochet litigation, caused the nullification of the first judgment and the reconvening of a fresh House of Lords’ appellate committee to determine whether the General could be extradited (p.55) to Spain.49 My conclusion, contrary to William Twining’s, is that judges ought not to be asked to undertake tasks that are properly those of our elected representatives. They are chosen for those tasks because of the respect in which they are held: but that respect may be damaged by the very performance of those tasks, especially in an era when whether proprio motu or force majeure they are, in the context of their intra-curricular activities, drawn through judicial review into decisions with a political impact, albeit not in point of form political decisions.50 It is, indeed, part of the ethics of the judiciary in the United States of America that they should abstain from so doing: the American Canons of Judicial Conduct provide ‘A judge should not accept appointment to a government committee or other position that is concerned with issues of fact or policy or matters other than the improvement of the law, the legal system or the administration of justice’. The Warren Commission, dealing with a unique occasion in the 20th century of the assassination of a serving President, was a rare exception which illuminated the rule.51 If it is felt that legal skills are required in connection with the conduct of such inquiry, then, for the future, consideration might be given to use of senior Queens Counsel without ambition for judicial wigs or robes — another reason why that rank should be preserved.52
I now turn to the separate question of law. Part of the criticism by Lord Hutton of the BBC is premised on his analysis of the right to freedom of expression, as defined in Article 10 of the European (p.56) Convention on Human Rights.53 In paragraph 280 of his report he said
Counsel for the BBC and for Mr Gilligan were right to state that communication by the media of information (including information obtained by reporters) on matters of public interest and importance is a vital part of life in a democratic society. However the right to communicate such information 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. 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.54
In so concluding Lord Hutton referred to the important judgment in the case of Reynolds v Times Newspapers Ltd55 (Reynolds). In New York Times v Sullivan56 (Sullivan), the US Supreme Court, relying on the first amendment to the United States’ Constitution,57 created a ‘public figure’ defence which all but extinguished the prospect of success, malice apart, in defamation actions where the plaintiff had that status. The European Convention is more nuanced;58 so it is (p.57) unsurprising that our Supreme Court (as it already is in all but name) declined in Reynolds to follow its American counterpart in Sullivan. It did, however, broaden the terms of the defence of qualified privilege in libel (which protects against actions for even inaccurate and damaging statements of fact where there is considered to be a duty to impart and a correlative interest to receive) by extending it to the media reporting on issues of compelling political interest. As a quid pro quo they insisted on press responsibility, for which Lord Nicholls, who gave the leading speech, proposed a non-exhaustive 10 element test.59
On one view Mr Gilligan comprehensively failed the tests because the suggestion that the Government probably knew that the ‘45 minute’ claim in the dossier was dodgy was not supported even by his source, Dr David Kelly. Equally Mr Gilligan did not obey the primary rule of natural justice, embedded in the 7th of Lord Nicholls’ elements, that is to say to put the charge to the persons accused in advance of publication.
The Hutton approach has provoked controversy among media lawyers. Jonathan Coad60 considers it was correct, Professor Conor Gearty61 that it was not. For my part, if pure Nicholls is refined into pure Hutton, the media well may be deterred from their proper pursuits. It is impossible to see how, in the real world, the BBC (or equivalent media organization) would be in a position to check all its output all the time for potentially ‘false accusations of fact impugning the integrity of others including politicians’ and decline to broadcast anything that might pose such a risk. The full (p.58) implications of the Reynolds judgment are yet to be worked out,62 but on any view, it does license in the public interest the occasional dissemination of information that is not accurate. As Lord Nicholls said
The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest, and therefore the public had no right to know especially when the information is in the field of political discussion.63
In any event English defamation law has always distinguished between pre-emptive and responsive action. Injunctions are not granted if the defendant indicates an intention to raise a defence whether it be of justification, fair comment, or qualified privilege.64 The party allegedly defamed is left to his remedy in damages. A media with pretensions to a role as a Fourth Estate should, although not recklessly, have the courage of its reporters’ convictions: publish and be sued, for it ain’t over till the jury foreman returns.
What would a jury have made of the Gilligan allegation that the September dossier was ‘sexed up’, seen in its full context, especially if they had heard witnesses on either side being cross-examined? Would they have thought that the sting of the offending broadcast lay (narrowly) in the proposition that the Government deliberately published inaccurate intelligence, or (broadly) that the Government coloured intelligence they thought to be true: and if the latter, would they have found the broadcast (p.59) defensible? It is, of course, impossible to know. What is clear is that Lords Hutton and Butler, by acquitting the Government of wilful deception (where the standard of proof is properly very high65), left unanswered the question of how culpable (if culpable at all) the Government were in publishing intelligence which was — it now appears — not the whole truth. Neither the Prime Minister nor even Alastair Campbell can claim to be above the law; but equally libel law allows them opportunity for redress in a public forum, of which neither will, of course, avail himself.
More orthodox is the second conclusion reached by Lord Hutton concerning the legal framework in which the media operate.
I am unable to accept, in the context of Mr Gilligan’s broadcasts, the distinction which he and the BBC rely on between a report that the BBC believed that the Government probably knew that the 45 minutes claim was wrong and a report that a source had told the BBC that the Government probably knew that the 45 minutes claim was wrong. This is not a distinction recognised by the law in relation to actions for defamation.66
This is indisputably right. A law which allowed persons to disseminate untruths simply on the basis that they have been told them by someone else, would protect not virtuous whistleblowers, but vicious scandalmongers. Such an argument is the last refuge of a forensic failure. But the BBC had better points; and even if Lord Hutton did not accept them, he has not had, unlike when he sat as a Lord of Appeal in Ordinary, the very last word.
(p.60) And that, in respect of both the Hutton and Butler reports, is as it should be. Whether or not persons selected to chair such inquiries, be they senior judges or senior civil servants or others from the ranks of the great and the good, should take it on themselves to hold individual politicians personally responsible for their errors is beside the point, for they have no legal or constitutional role to prosecute or convict. If politicians have committed serious mistakes, it is for their party, Parliament, and, ultimately the public to pronounce the verdict, making use as they think fit of the facts comprehensively assembled and any opinions cogently pronounced in such reports.67 If for whatever reason all decline to say ‘guilty’, that, in a democracy, is their right.
(1) I am grateful to Jeffrey Jowell QC, Dawn Oliver and Robert Stevens for some helpful comments.
(2) Lord Hutton, Report of the Inquiry into the Circumstances Surrounding the Death of Dr David Kelly C.M.G., HC 247 (2004) (hereafter Hutton)
(3) Review of Intelligence on Weapons of Mass Destruction, HC 898 (2004) (hereafter Butler)
(4) Guardian: The Hutton Inquiry and its Impact (2004), at p. 289
(5) Hutton p. 2
(6) Butler para. 12, p. 3
(7) Effective InquiriesEffective Inquiries: A consultation paper produced by the Department for Constitutional Affairs, CP 12/04 (May 2004), para. 44, p. 21
(8) William H. Rehnquist, Centennial Crisis (2004), Epilogue
(9) Effective Inquiries, para. 28
(11) Jeffrey Jowell, ‘The wrong man for the job’, Guardian, 3 February 2004
(13) Lon Fuller, ‘The Forms and Limits of Adjudication’, Harvard Law Review, 92 (1978), 353
(14) Alpheus T. Mason, Harlan Fiske Stone: Pillar of the Law (New York: Viking, 1956)
(15) These narrow issues include: 4a the issue on whether the Government behaved improperly in revealing Dr Kelly’s name to the media; 4b whether the Government failed to take proper steps to help and protect Dr Kelly; and 5 the factors which may have led Dr Kelly to take his own life.
(16) Hutton pp. 306–7
(17) Hutton pp. 319 ff
(18) My personal view is that the war in Iraq was illegal, immoral, and very imprudent, but these issues also fall outside my terms of reference in this context.
(19) I would dissent on the issue whether the wording of the September dossier was misleading, which was a direct result of Downing Street involvement in the drafting.
(20) Hans Blix, Disarming Iraq (2004)
(21) Rationale of Judicial Evidence, ed. J. S. Mill (1827), vol. 1, p. 585
(23) Hutton para. 4, p. 1
(24) The ‘Salmon principles’ provide safeguards for any person who is likely to be the subject of criticism in a public inquiry as a witness or interested party. The six Salmon principles were set out in the report of the Royal Commission on Tribunals of Inquiry under the chairmanship of Lord Justice Salmon (1966).
(25) See the Salmon principles above.
(27) Effective Inquiries, paras 58–74
(28) Section 84 of the National Health Service Act, 1977.
(30) Also, an inquiry is not a public authority so is not itself covered by the Freedom of Information Act. The Act will come into force in January 2005.
(32) The Butler Report also emphasizes the dropping of caveats about the reliability of the intelligence. The Intelligence and Security Committee also pointed out in relation to the September dossier: ‘The first draft of the Prime Minister’s foreword contained the following sentence: “The case I make is not that Saddam could launch a nuclear attack on London or another part of the UK (he could not)”…It was unfortunate that this point was removed from the published version of the foreword and not highlighted elsewhere.’ Intelligence and Security Committee (see above n. 20), para. 83. Dr Brian Jones in evidence to the Hutton Inquiry pointed out that the term ‘Weapons of Mass Destruction’ refers to nuclear weapons and some, but not all, chemical and biological weapons. At some points the ‘45 minute’ claim was confined to ‘some chemical and biological weapons’, but at others the term ‘weapons of mass destruction’ was used in relation to the claim, including the Prime Minister’s Foreword.
(33) See evidence of Mr Hoon at pp. 149–50 denying any duty to correct false impressions created by the press on the ground that they do not like to correct stories. In similar vein, John Scarlett at p. 151; Alastair Campbell, evidence, 19 August: ‘I do not write headlines for the Evening Standard’.
(34) The Butler Report makes it clear that the JIC claiming ‘ownership’ of the September dossier was unprecedented and was a mistake that should never be repeated.
(34) R (Middleton) v West Somerset Coroner, 2004 2 WLR 800.
(35) John Bingham and Stuart Coles, ‘Coroner rules against fresh Kelly hearing’, Independent, 16 March 2004
(36) Justice press release, 10 October 2003.
(37) BBC News, 27 February 2004.
(38) BBC News, 17 March 2003.
(39) 2004 ACD 85.
(40) See Three Rivers DC v Bank of England, 2004 3 All ER168, at p. 181 d–e.
(41) Report of the Tribunal appointed to inquire into certain issues arising out of the operation of the Crown Agents’ finances in the years 1962–71, HC 264 (HMSO, 1982)
(42) Report into the Brixton Disorder: 10–12 April 1981, Cmnd 8427 (HMSO, 1982)
(43) Report of the Commission of Inquiry into the Collision of the Drillship Eniwetok with the Sentosa Cableway on 29 January 1983 (30 December 1983)
(44) Private information from participant QC.
(45) Lord Owen, ‘How to read the Butler Report: start with the vital annexe’, The Times, 17 July 2004
(46) Lord Butler replying to a question at the launch of the Butler Report on 14 July 2004.
(47) The Times, 21 July 2004
(48) This Latin phrase is now, of course, banished from the vocabulary of the Courts.
(49) 2000 1 AC 199.
(50) Michael Beloff QC, ‘Judicial review in England and Wales — “the state of the art”’, Jersey Law Review, 7 (1) (February 2003), 29
(51) Lord Bingham of Cornhill in The Business of Judging (Oxford University Press, 2000), at p. 76
(52) This is not a job application!
(53) Now domesticated by the Human Rights Act 1998 (‘HRA’).
(54) Hutton para. 280, pp. 193–4
(55) 2001 2 AC 127.
(56) 1964 376 US 254.
(57) ‘Congress shall make no law abridging freedom of speech or of the Press.’
(58) Article 10 (2) states that ‘The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection of the reputation or rights of others.’
(59) Reynolds, at pp. 204–5
(60) Entertainment Law Review (2004), p. 157
(61) Guardian, 24 February 2004
(62) See F. A. Trindle, ‘Defamatory statements and political discussion’, Law Quarterly Review, 116 (2000), 185; K. Williams, ‘Defaming politicians: the not so common law’, Modern Law Review, 63 (2000), 748.
(63) Reynolds, at p. 205
(64) Gatley on Libel and Slander, 10th edn, para. 25.1
(66) Hutton, para. 282, p. 194
(67) A YouGov poll commissioned by the Sunday Times after publication of the Butler Report (fieldwork 16–17 July 2004), recorded that 56% of the public believed that the Prime Minister made the decision to go to war in Iraq regardless of the intelligence. Nonetheless it also suggested that he would lead the Labour Party to victory at the next General Election.