Last Monday it emerged that the Saville inquiry into the Bloody Sunday killings would carry on for at least another year. By the time it ends, supposing it ever does, Saville’s shambles will have taken nearly a decade, cost more than £200 million, and some of those most intimately involved will surely have died.
Over Christmas and the New Year, Lord Hutton is said to have been at his home in Northern Ireland, not that far from Saville’s Londonderry base, drafting the final passages of his investigation into the death of the brave, public-spirited government scientist Dr David Kelly CMG. It will have taken six months, start to finish. Maybe Lord Hutton wanted to be as far away as possible from the fetid world of Westminster and Fleet Street, to write his conclusions. Everything about this fastidious, scrupulous, old-fashioned high-court judge is a reproach to our wretched world of spin doctors, sloppy journalists, toadying officials and lying politicians, with which he has been brought into such sharp contact since last July’s tragedy.
Lord Hutton has taken every step possible to maintain his detachment from the political and media process, in which he has temporarily become by far the most important player. Just before Christmas, at the age of 72, he announced his retirement. This move emphasised the fact that there is nothing in it for him, whichever way his judgment finally falls. It is expected that he will make a statement from the Law Courts, again stressing his physical and moral distance from Westminster, when his document is published. Government ministers will apparently be given the report just 24 hours in advance, allowing them minimum time to spin, leak, sex up or tamper in any way with his findings. Good legal sources say that Lord Hutton’s work was more or less finished by mid-December, but that he preferred to bring it to a conclusion after the New Year. ‘You don’t want something like that lying around Whitehall over Christmas,’ said one lawyer.
Those who know Brian Hutton say that he is greatly burdened by the power that has suddenly come his way to liberate, damage or destroy a British prime minister. Once every five years the British people exercise a sacred choice at a general election: this month that choice is in Lord Hutton’s hands. Allies of Tony Blair have already started to make something of this, and question whether it is right that an unelected judge should have the ability to intervene so dramatically in the democratic process. By all accounts Lord Hutton himself feels that very same reservation. He treated the Prime Minister with special courtesy and consideration when he gave evidence and did not recall him for a second grilling, even though there seemed solid grounds to do so.
Legal opinion in Northern Ireland, where Lord Hutton practised for most of his career, emphasises the caution of his judgments. He is said to have been habitually chary of making precedents. One leading politician from the province, himself extremely knowledgeable about the law, implies that Lord Hutton carries baggage, claiming that the Ulster-born law lord ‘has never forgiven or forgotten the Good Friday agreement’. But no one seriously doubts Hutton’s fairness or independence. Though a dour Presbyterian, there were spectacular acquittals of some very grisly IRA terrorist suspects when he was a judge in the Diplock era.
Nothing has been leaked about the conclusions of the Hutton inquiry. Nevertheless, the material upon which Lord Hutton must reach his judgment is — with a few important exceptions, such as the private government evidence whose existence was exposed this week — entirely in the public domain (and can be studied on www.the-hutton-inquiry.org.uk. Anyone wishing to understand the issues could do a great deal worse than read the eloquent closing submissions from Jonathan Sumption for the government, Jeremy Gompertz for the Kelly family, Andrew Caldecott for the BBC and James Dingemans, counsel for the inquiry.) The facts are pretty well all out there. There is no doubt, for example, that the BBC was slapdash in some of its reporting, and no argument at all that David Kelly himself was treated very badly indeed in the days leading up to his death. In his closing statement last September, Jeremy Gompertz, QC, was eloquent about what he called ‘the total lack of care extended to Dr Kelly by the Ministry of Defence’ towards the end. Kelly was not warned that his name was to be disclosed, nor prepared for the media storm; he was left to face the foreign affairs committee on his own. The claim by Richard Hatfield, personnel director at the MoD, that Dr Kelly received ‘outstanding support’ from the government is very hard to sustain.
That is why, at the early stages of the inquiry, it looked likely that the Defence Secretary, Geoff Hoon, would emerge as the political victim of the Hutton process. There were a number of strong signs that Downing Street intended to let Hoon — for whom Tony Blair is said to have limited personal regard — take the blame. No. 10 went to extreme lengths to distance itself from the MoD treatment of Kelly. The Prime Minister’s official spokesman insisted that the MoD was the ‘lead department’ and that the affair was handled in accordance with what he called ‘MoD procedures’ (which later turned out not to exist). This version of events has turned out to be entirely misleading. The longer the Hutton inquiry went on, the more it emerged that No. 10 was responsible for every single one of the major decisions concerning the fate of Dr Kelly.
Various critical pieces of evidence show how Downing Street took over, with devastating effect, the handling of the Kelly affair in the first week of July last year. The first key item is the Question and Answer brief for press officers provided by the MoD. The draft Q&A read as follows: ‘Q. Who is the official? A. If the correct name is put to us, we will need to tell the individual we are going to confirm his name before doing so.’ The actual Q&A used the following day had changed to: ‘Q. Who is the Official? A. We wouldn’t usually volunteer a name. If the correct name is given, we can confirm it.’ There is all the difference in the world between these two answers. As James Dingemans, QC, put it to the inquiry: ‘One is saying: we need to go back to the individual and tell him first. The other appears to be: well, we will tell you.’
A related change took place in the press statement announcing that an official had come forward as the possible source. At his meeting with Richard Hatfield on 7 July, Kelly was shown a draft of a proposed press statement. It contained no information which could conceivably enable a journalist to identify him, while Hatfield explicitly told Kelly that his name would not be revealed.
Everything was transformed the following day when the handling of Kelly was discussed in two meetings in Downing Street, both chaired by the Prime Minister. At the second of these meetings a much more expansive and informative press release, containing all sorts of clues about Kelly’s identity, was agreed. It had been drafted by an unholy cabal clustered round the word processor of press aide Godric Smith, happily awarded a CBE in last week’s New Year’s Honours. The press release was then approved by the Prime Minister. Sir Kevin Tebbit, permanent secretary at the MoD, was quite clear about this sequence of events when he came in front of the Hutton inquiry on 13 October: ‘A policy decision on the matter had not been taken until the Prime Minister’s meeting on Tuesday [8 July]. And it was only after that that any of the press people had an authoritative basis on which to proceed.’ Tebbit confir
med that the decision to go ahead with the defensive Q&A was made at the same meeting. Journalists told the Hutton inquiry how between them the new supercharged Q&A and a much more detailed press release enabled them to track down David Kelly’s name within hours.
Nobody could have foreseen the tragedy of Dr Kelly’s death. But it seems impossible to avoid the conclusion, on the basis of the evidence before the inquiry, that Tony Blair personally played the primary executive role in the sequence of events that led to the naming of Dr Kelly and onwards to his death in an Oxfordshire field. Two or three days after Kelly’s suicide, the Prime Minister was asked, ‘Did you authorise anyone in Downing Street or in the Ministry of Defence to release David Kelly’s name?’ He replied: ‘Emphatically not.’ He was asked again: ‘Why did you authorise the naming of David Kelly?’ He answered: ‘That is completely untrue.’ It is said around Whitehall that these two responses form no part of Lord Hutton’s investigation, since the Prime Minister uttered them after Dr Kelly’s death. I have racked my brains over Tony Blair’s answers for ages, but have been unable to avoid the conclusion that he was lying.
The question remains whether Downing Street was justified in dropping its hints about Dr Kelly’s identity. Sumption argues in defence of Downing Street that the name would have emerged anyway. He gives no serious evidence to support the contention but, even if it were true, that seems no justification of Downing Street’s conduct. In one especially hilarious passage in his summing up, Sumption boasted that the MoD press release ‘reflected the openness of our governmental procedures’. This assertion is instantly recognisable as ludicrous by anyone familiar with Whitehall, and is in any case contradicted by the restrictions placed on Kelly when he later appeared in front of the foreign affairs committee.
Jeremy Gompertz, on behalf of the family, made a dramatic allegation. He invited ‘the inquiry to find that the government made a deliberate decision to use Dr Kelly as part of its strategy in its battle with the BBC’. There is abundant circumstantial evidence that this was the case. Alastair Campbell, the government director of communications, baldly asserted that ‘GH [Geoff Hoon] and I agreed it would fuck Gilligan if that was his source’. Campbell’s diaries further show how Downing Street first sought to bring Kelly’s name into the open through means of the intelligence and security committee. When the ISC chairman, Ann Taylor, rejected the idea, Campbell recorded: ‘That meant do it as a press release.’ The family’s charge, which effectively amounts to conspiracy, is hard to prove for certain because, in a startling breach of proper procedure, no contemporaneous minutes were kept of the four meetings at which Kelly was discussed in the 48 hours before his name became publicly known; each meeting was chaired by the Prime Minister.
No judge, least of all the fastidious Lord Hutton, wishes to intervene in the democratic process. But any explanation of government conduct in the weeks leading up to the death of the late Dr Kelly must have the Prime Minister at the heart of it, driving events on and supervising the No. 10 media strategy in astonishing detail.
This article first appeared in the print edition of The Spectator magazine, dated January 10, 2004