How could he have got it so wrong?

One-sided at best, a whitewash at worst, the judgement of Lord Hutton shocked those who sat through all the hearings. Raymond Whitaker was one of them
Click to follow
Indy Politics

"I have been brought up to believe that you cannot choose your own referee, and that the referee's decision is final," the BBC chairman, Gavyn Davies, said last week in his resignation statement after the Hutton report.

A Government source said the result in its dispute with the BBC had been 9-1; it was as though one team had been awarded nine penalties and the other had managed to snatch one goal back. The only problem for those of us who sat through all the Hutton hearings into the death of Dr David Kelly is that we could not believe we were at the same match as the referee.

This was not what we had been expecting when we returned on a snowy Wednesday to Court 76 at the Royal Courts of Justice in London. For the lawyers, attendants and journalists who embarked on the inquiry in the heat and glare of mid-August, there was something of the atmosphere of a tour-group reunion. There was also a consensus - at least among those who had not seen the contents of Lord Hutton's report in advance - that all concerned, including Dr Kelly, would come in for some criticism. We could not have been more wrong.

The 72-year-old judge quickly arrived at what for many was the core of the issue - only to rule it beyond his remit. There had been "a great deal of controversy and debate", he said, over whether the intelligence on Iraq's weapons of mass destruction, set out in the Government dossier of September 2002, was enough to justify war. "This controversy and debate has continued because of the failure, up to the time of writing this report, to find weapons of mass destruction in Iraq." But the reliability of the intelligence "is a separate issue which I consider does not fall within my terms of reference".

Few had expected Lord Hutton to entangle himself in the "controversy and debate" about the quality of the intelligence which led us into war, a dispute which is escalating rapidly in Washington and, now that his inquiry is over, on this side of the Atlantic. But it was also the cause of the furore which erupted between the BBC and the Government last May, when Andrew Gilligan reported on Radio 4's Today programme that Britain's WMD dossier had been "sexed up". The classic example, his source had told him, was the claim that Iraq could deploy WMD in 45 minutes.

Mr Gilligan had previous form with Downing Street's director of communications, Alastair Campbell, who had criticised his reporting from Baghdad during the Iraq war. Mr Campbell had labelled the reporter "gullible Gilligan" over another story (which proved true). But the BBC man's assertion at 6.07am on 29 May last year, that Downing Street "probably knew" the 45-minute claim was wrong when it was inserted into the dossier despite the objections of the intelligence agencies, followed by his naming of Mr Campbell in a Mail on Sunday article, sent the Downing Street man into all-out attack mode.

After the reporter told the parliamentary Foreign Affairs Committee (FAC) that he had only a single source for his allegations, the hunt was on. It might never have succeeded, had Dr Kelly not volunteered that he had met Mr Gilligan. But he did, and the Government had to decide what to do with him. The process by which his name became public, his being thrust before a televised hearing of the FAC, and his suicide, were what Lord Hutton was immediately asked to examine.

The inquiry proceeded with unprecedented speed and openness. Not only did the hearings begin within a month of Dr Kelly's suicide, but each day's testimony was posted on the internet within hours, along with thousands of emails and memos, and successive drafts of the WMD dossier - something which the FAC had asked for and been denied. Information which would normally be buried for 30 years was there for all the world to see.

Now we had reassembled to see what the judge made of it all. There was no doubt whatever, we thought, that he would not look kindly on the BBC's performance in the affair. Witnesses, including Mr Gilligan himself, had confessed during the hearings to sloppy reporting, poor supervision of the journalist doing that reporting, and a dismissive and confused response to the complaints that came from Downing Street as a result. But the Government had not looked good either.

Before the Iraq war Downing Street had bombarded the author of the dossier, John Scarlett, the MI6 chairman of the Joint Intelligence Committee (JIC), with suggested changes which sought to create as alarming a picture as possible of what Saddam Hussein might do. When Today went on air on 29 May, nerves were beginning to fray: the conflict had been declared over almost a month earlier and still no WMD had turned up in Iraq.

The febrile atmosphere in Downing Street as the dossier was being prepared was repeated after Dr Kelly came forward. Once again the emails flew and ministers, advisers and officials gathered in huddles, with the next day's headlines seemingly as important as the fate of the weapons expert.

It was all there on the screens in Court 76. On learning that David Kelly was not an intelligence official, as the BBC had claimed, Mr Campbell confided to his diary: "It would fuck Gilligan if that was his source."

That, of course, was not the motive for Dr Kelly's name becoming public, Lord Hutton was assured: it was to avoid the appearance of covering up evidence that Parliament was entitled to know, and to avoid other officials being implicated in the media. The name was bound to come out anyway.

Much of this might be true, we Hutton-watchers thought, but it seemed inconceivable that there was nothing to criticise in this tale. Not a bit of it: head down, reading his conclusions for an hour and 20 minutes in a soft Ulster brogue ("weapons of marse destruction"), the judge condemned the BBC and exonerated the Government from Tony Blair down, giving it the benefit of the doubt at almost every turn.

The only exceptions were the suggestion that Mr Scarlett and other members of the JIC might "subconsciously" have been influenced by Tony Blair's desire to word the WMD dossier as strongly as possible - only for the possibility to be largely discounted - and a ticking-off for part of the Ministry of Defence.

It failed to warn Dr Kelly that it would confirm his name if the press got it right, and failed to tell him quickly enough once it had done so. But the scientist, "because of his intensely private nature", was not an easy man to help or to advise.

If the BBC thought that a pre-emptive admission of fault might leave it in a better position once Lord Hutton had spread around the criticism, it was disastrously wrong, and its two most senior figures have paid the price. The judge appeared to treat the inquiry as a civil case in which he had to choose between two parties, and he chose the world of officialdom. It was the world his 50 years in the law, most of it in Northern Ireland, where as a barrister he represented the army at Lord Widgery's now discredited inquiry into the Bloody Sunday shootings, equipped him to understand.

Again and again he ignored the contemporaneous, and often embarrassing, written record - passing no comment at all, for example, on Mr Campbell's diary - in favour of the gloss put on events by politicians and officials in their verbal testimonies.

This enabled him to resolve any apparent conflicts in evidence between Mr Campbell and Geoff Hoon, the Secretary of State for Defence. It also explained the most crucial change to the dossier, requested at the last minute in an email by Jonathan Powell, Downing Street's chief of staff. Mr Powell said the suggestion that Saddam was prepared to use WMD only if he was attacked was "a bit of a problem". No problem, said Mr Scarlett: without consulting the JIC, he rewrote the section to make the threat active. He told Lord Hutton there was intelligence to support the change, he had the authority to do so, and that was that. Lower-level spooks complained about the dossier? That was properly dealt with by their superiors.

Mr Campbell told the FAC he had sought 11 changes in the final draft of the dossier, none of which concerned the 45-minute claim; his letter to Mr Scarlett, disclosed to the inquiry, showed he wanted 15 changes, one of which was precisely on this point. But the judge was satisfied that all the words in the published dossier were based on intelligence.

This helpful attitude also extended to the Prime Minister. Lord Hutton did not need to comment on Mr Blair's denial to journalists accompanying him on a Far East trip that he had authorised the leaking of Dr Kelly's name, but went out of his way to say there was no inconsistency with the evidence he heard.

No such understanding was extended to the opposing side in this affair: the world of journalism. Here Lord Hutton appeared to take as his guide Mr Campbell, the former tabloid bruiser turned gamekeeper. The judge accepted completely the Downing Street aide's definition of the issue: the wording used by Mr Gilligan about the 45-minute claim in a single broadcast early on 29 May last year, but not repeated in more than a dozen subsequent broadcasts the same day.

This unscripted error at such an unsocial hour might have been ignored had it not been relentlessly pursued by Mr Campbell as a slur on his integrity and that of the Government, to the exclusion of the points Mr Gilligan got right - that the claim came from a single source and arrived late in the dossier. Thanks to the evidence at the inquiry, we now know it was also complete nonsense, but Lord Hutton specifically ruled that that was not his affair.

While acknowledging that the "exceptionally strong terms" of Mr Campbell's complaints "raised very considerably the temperature of the dispute between the Government and the BBC", the judge ignored the suggestion of personal animosity towards Mr Gilligan in his diary.

As for the way in which Dr Kelly's name came out, during the inquiry Lord Hutton asked Mr Campbell whether it would not have been possible to "batten down the hatches", take the risk of a leak and refuse to confirm any names put by the media. The Downing Street man replied: "You could have done that, but I think ... it would have come out, because these things do." That, of course, is because someone in the Government will make sure they do, if there is an advantage to be gained.

No journalist was asked to comment, though several testified that the combination of the public statement that an unnamed official had come forward, clues in an Downing Street lobby briefing and further unofficial hints, easily led them to Dr Kelly. Lord Hutton, however, was satisfied that "there was not a dishonourable or underhand or duplicitous strategy" to leak the scientist's name covertly.

And while frequently citing the "context" in which official actions were taken, he did not do the same for the BBC. He made no mention, for example, of the fact that in February last year the Government published another dossier, also claimed to be based on intelligence, which turned out to be largely plagiarised from an old student thesis. Or the fact that Dr Kelly made many of the same allegations about the WMD dossier and Mr Campbell in a tape-recorded interview with another BBC journalist, Susan Watts.

So one-sided are the judge's findings, indeed, that the public feels natural justice has not been served: opinion polls show this. While the BBC is in some disarray after the inquiry - and deserves to be, in the view of many - the sense that the Government unjustifiably got off the hook has quickly stilled any triumphalism in official circles.

The Hutton inquiry might be as quickly dismissed as other whitewashes in the past, were it not for one more fact: ordinary citizens with internet access can read all the evidence for themselves, and come to their own conclusions. The truth is out there, and we do not need Lord Hutton to lead us to it.