Sixth submission (of 12) by me to the Attorney General Dominic Grieve
From: STEPHEN FROST <stephen.frost@>
Subject: Fw: FOR THE URGENT ATTENTION OF THE ATTORNEY GENERAL DOMINIC GRIEVE QC ... Lord Hutton's evidence to the Select Committee on Public Administration on 13 May 2004
To: privateoffice@attorneygeneral, Kevin.McGinty@attorneygeneral
Cc: grieved@parliament, jonesdi@parliament, fswaine@leighday, "Michael Powers Q.C." <powers@>, "david halpin" <dsh@>, chris.burns-cox@, birnstin@, monafay@, "Stephen Frost" <stephen.frost@>
Date: Saturday, 5 February, 2011, 21:03
FOR THE URGENT ATTENTION OF THE ATTORNEY GENERAL DOMINIC GRIEVE QC ... Lord Hutton's evidence to the Select Committee on Public Administration on 13 May 2004
Dear Mr Parish and Mr McGinty,
Please see below the link to Lord Hutton's evidence and, below the link, Lord Hutton's evidence "inline" (for your convenience). I think you will find it enlightening, albeit disturbing, for Lord Hutton's evidence demonstrates beyond doubt that he Lord Hutton did not seem to understand (nor indeed did his questioners) that from the moment the Coroner, Nicholas Gardiner, was "ordered" by Lord Falconer to "adjourn indefinitely" his inquest on 13 August 2003, his (Lord Hutton's) primary duty was to perform the duties normally carried out by a coroner. Interestingly, an electronic search of the entire proceedings on 13 May 2004 reveals that the word "coroner" was used but once, and then only in passing. We have heard that all Counsel at the Hutton Inquiry were directed by Lord Hutton not to pursue lines of questioning which might put the suicide story in doubt, and certainly the way in which the Hutton Inquiry was conducted and the evidence given by Lord Hutton to the Public Administration Committee would lend credence to that. It is very disturbing, is it not, that Lord Falconer apparently failed to notice the glaring holes in the coronial aspects of Lord Hutton's inquiry which purported to obviate the need for an inquest and that the Coroner at his hearing of 16 March 2004 said that Lord Falconer was "happy" with Lord Hutton's findings and then went on to say "and so am I"? Only one half of one day out of twenty four days of evidence heard at the Hutton Inquiry was devoted to medical evidence. This all points unerringly to a gross insufficiency of inquiry and on its own surely demonstrates that in the public interest and in the interests of justice the Attorney General is required by the laws of this country to either grant us "fiat" to proceed to the High Court to seek an inquest, or to apply to the High Court himself for an inquest. We have previously given our reasons why we think the former is preferable. The delay in reaching the obvious decision gives the impression to all that this government is continuing the cover-up. By the way, and you may wish to try it yourselves if you have not done so already, I make a point of asking people I meet, who do not know of my interest in this case, what they think happened to Dr David Kelly. Almost all of them say that he was murdered or "bumped off". If he was murdered, then surely it is an outrage if the suicide verdict is allowed to stand? And, surely with all the continuing and loudening gossip about Dr David Kelly's death an inquest is required?
Could you please kindly confirm that this email has been received and that the Attorney General has been made aware of its contents?
(Dr) C Stephen Frost BSc MB ChB Specialist in Diagnostic Radiology (Stockholm, Sweden)
Q1 Chairman: Could I call the Committee to order and welcome our witness this morning, Lord Hutton. We are delighted to see you.
Lord Hutton: Thank you very much.
Q2 Chairman: Thank you so much for coming. We find ourselves in an unusual position of taking evidence from a distinguished judge?
Lord Hutton: It is unusual for me to give evidence too.
Q3 Chairman: That is what I was going to say. You do not get to ask the questions this morning, which is unusual for you. I do not know if you want to say anything by way of introduction. As you know, we are conducting an inquiry into the whole business of inquiries, and your inquiry is particularly interesting for us. We are not, of course, as we have agreed, going to ask you to revisit the content of your inquiry, but we do want to ask you about the process of conducting it, because that will bear greatly upon our own inquiry. So those are the terms of the deal?
Lord Hutton: Yes.
Q4 Chairman: Do you want to say anything by way of introduction?
Lord Hutton: No, I think I would prefer if you simply put questions to me.
Q5 Chairman: Let me then start with 18th July 2003, which was the day that you got a phone call?
Lord Hutton: That is true.
Q6 Chairman: Who phoned you?
Lord Hutton: Lord Falconer telephoned me. I was in my chambers at the House of Lords. He asked me to go to see him in the House of Lords, and I did that, and he then told me of the discovery of the body of a person who it was believed was Dr Kelly; and he said that the Government had decided to hold an inquiry into the circumstances of the death if it was confirmed that the body found was that of Dr Kelly. He asked me to be the Chairman, and I thought it was my duty to agree to that request. So it all happened in a very short space of time.
Q7 Chairman: You readily agreed to this request?
Lord Hutton: I thought it was my duty to, yes.
Q8 Chairman: Had you done an inquiry before?
Lord Hutton: No, I do not think I had. I had done one inquiry in Northern Ireland in relation to the drainage works in a river, but I had not conducted a major public inquiry before. I had appeared as counsel in quite a number of inquires, but I had not conducted one.
Q9 Chairman: Did you realise in agreeing that you were walking into the eye of a political storm?
Lord Hutton: I think I realised, yes, that there was a very strong political background, and that became more apparent as the days went by, but I think at that time also I had read, of course, and seen on television a little of the background. I knew of Dr Kelly having come forward and having given evidence to the Foreign Affairs Committee, so I was familiar with the background. I think also at that stage there was some uncertainty as to how Dr Kelly had actually met his death, and I understood that was one of the matters which the Government wanted me to inquire into.
Q10 Chairman: Your first job in agreeing was to define the territory?
Lord Hutton: Yes.
Q11 Chairman: That is, what were you going to inquire into?
Lord Hutton: Yes.
Q12 Chairman: What were your terms of reference going to be? Did you formulate that or was that formulated for you when the request came?
Lord Hutton: It was understood that the inquiry would relate to the circumstances in which Dr Kelly had met his death. I think when I saw the Lord Chancellor the terms of reference had not been precisely defined, but it was quite clear that the inquiry was going to be into the circumstances surrounding his death, and those were the terms which were agreed. I think the Lord Chancellor, in the course of the day, formulated them and told me that was what he was proposing and I agreed to that.
Q13 Chairman: Because right at the beginning of your report you talk about this question?
Lord Hutton: Yes.
Q14 Chairman: It is obviously a very important issue with any inquiry?
Lord Hutton: Quite.
Q15 Chairman: As to what the terms of reference are, and this one became particularly so?
Lord Hutton: Quite; yes.
Q16 Chairman: As you will realise. You say in your paragraph 9: "I gave careful consideration to the views expressed by a number of public figures and commentators that my terms of reference required or at least entitled me to consider this issue", "this issue" being the controversy about weapons of mass destruction. "However, I concluded that a question of such wide import which would involve the consideration of a wide range of evidence is not one which falls within my terms of reference"?
Lord Hutton: Yes.
Q17 Chairman: Can you tell us about this process of reflection that you engaged in, who you consulted and how you came to that view?
Lord Hutton: Yes, certainly. At the outset, when I gave thought to how the inquiry should be conducted, it seemed to me that the background facts preceding Dr Kelly's death were reasonably clear: because it was set out in the newspapers and on television that there was Mr Gilligan's broadcast, that Dr Kelly had had a meeting with him before the broadcast, that Dr Kelly had then told the Ministry of Defence he had had that meeting, the Ministry of Defence then issued a statement that the civil servant had come forward and then there was his evidence to the Foreign Affairs Committee; and it seemed to me that those background facts could probably be established without great difficulty. I think one of the objectives in conducting a public inquiry is to ensure that it proceeds with expedition and is kept within reasonable bounds, and I think what has been found is that one of the matters that tends to cause an inquiry to become protracted is if there is a great deal of cross-examination on issues which may not be directly relevant. Therefore, I decided that it would be possible to conduct the inquiry in two stages. There would, first of all, be a fact-finding stage which would be conducted by counsel for the inquiry, and that would enable me to see and the public to see what were the underlying facts. Then, when that had been done, one could see what were the issues which arose. Therefore I had that first stage, the underlying facts were, I think, brought out and I then directed my mind to the issues which arose. It was at that stage that I gave thought to how wide the inquiry should be, but in reaching the conclusion that you have read my thought process was this. I was required to consider the circumstances surrounding the death of Dr Kelly, and it appeared to me that that would involve considering matters and events which had affected his mind and also events which had affected the minds of those who had dealings with Dr Kelly. Insofar as the controversy had arisen from Mr Gilligan's broadcast, the main allegation made in that broadcast and report of Mr Gilligan was that the Government probably knew that "the 45 minutes claim" was wrong, so I thought I should concentrate on that and that broader issues of intelligence did not fall within my terms of reference.
Q18 Chairman: I am interested in what you say there. I had not realised that it was only at the end of stage one that you came to form this view on what should be in and what should be out. I thought previously that you had decided this at the outset, but you had not?
Lord Hutton: I had obviously given it thought, but I formulated my views more precisely after I had heard the evidence which set out the background facts.
Q19 Chairman: Colleagues will explore this, I am sure, in detail with you, but given the reaction to your report when it came out, much of it centered on the fact that you had taken your terms of reference so narrowly. To many people it seemed almost incomprehensible that an event, the death of Dr Kelly, which turned so much on the reliability of the intelligent information that was being put out (which, of course, has now become the central issue) and also on whether the intelligence community were being asked to deliver, for political purposes, a document that they would not otherwise have produced in that way—that seemed to be so germane to the events surrounding the death of David Kelly that it seemed inexplicable that you had not cast your net slightly wider?
Lord Hutton: I did not think it was inexplicable, because, as I have said, the major controversy which arose in relation to Dr Kelly was the allegation that the Government probably knew that "the 45 minute claim" was wrong. The question whether the intelligence was reliable is, of course, a very serious question, and I referred to that in my report; but an even graver allegation is that the Government probably knew that the intelligence was wrong, and that is what created the major controversy, in my view, and which led on to the other events. In addition to that, I was asked to conduct the inquiry urgently, and, if I had gone into all the very widespread matters of intelligence, the inquiry would have been very lengthy indeed.
Q20 Chairman: Without pursuing the point too long, the narrow point is that it only acquired its meaning in the wider context. Had there not been arguments about the validity and reliability of the intelligence information, had there not been the sort of interchange going on between No. 10 and the JIC, had there not been all that happening, then the events surrounding David Kelly would not have been as they were; and to abstract them into the single argument about the validity of one broadcast and one claim, you can see people felt it had a distorting effect?
Lord Hutton: I do not think it had a distorting effect, because the real conflict between No.10 Downing Street and the BBC related to that aspect of the broadcast, and that was the really serious aspect which gave rise to the controversy. There were other reports made on the BBC to the effect that the intelligence was unreliable, but that had not given rise to the major controversy. As I say, if I had gone into intelligence matters, the inquiry would have become very protracted; I also doubt if it is appropriate that a judge sitting alone should consider those matters. It is a very important question. It is now very properly being considered by Lord Butler and his Committee hearing confidential evidence.
Q21 Chairman: But you did not think that the intelligence people were being pressed for a harder document for political purposes—perhaps in the service of a decision that had already been made—was something that was absolutely germane to the events surrounding Dr Kelly's death?
Lord Hutton: I think that is an important question, but I did not think it bore directly on Dr Kelly's death.
Q22 Mr Hopkins: Pursuing the Chairman's line of questioning, at what point did you become very conscious of the enormous political implications of your inquiry, given that, depending on the outcome of your inquiry, the future of a government could have been at stake; indeed, the whole course of human affairs and what is happening now in the world, the course of history might have been different?
Lord Hutton: Yes.
Q23 Mr Hopkins: I am sure you would have come to the same decision in any case, but the fact that your inquiry was narrow and your conclusion was very precise meant that those wider implications were not your responsibility and that the politicians could make their own decisions. Was it when Lord Falconer spoke to you, or was it later on that you became aware that a whole world was hanging on what you were to decide?
Lord Hutton: I do not think I can refer to the precise minute when that occurred to me, but I was conscious of that from the start and it became increasingly apparent as the days went by that I should call the Prime Minister and the Ministry of Defence and other senior officials. So the consciousness was always there, but it increased throughout the inquiry.
Q24 Chairman: We are taking stock of the process now. When you were being asked to start doing this and you were thinking about whether you would and your terms of reference, did you not think it would be much simpler if the remit, as it were, was so narrow, if the Prime Minister or Alastair Campbell did not simply sue the BBC and that the coroner did not get on with establishing the cause of death?
Lord Hutton: I do not think that was a matter for me. I was asked to conduct the inquiry into the death of Dr Kelly which had given rise to very great public concern. The request was made quickly. My decision to accept was made quickly. I was given the terms of reference, which seemed to me to be reasonable, and I proceeded to implement those terms of reference.
Q25 Chairman: Yes, but an alternative way of proceeding which would have made it rather different would have been if a libel action had been brought, would it not?
Lord Hutton: Yes, but that was not, I think, a matter for me. I do not think it was for me, having accepted the request to conduct an inquiry, then to say, "I do not think I should proceed", or, "I think the matter should be adjourned so that a libel action can be brought". I think there would have been very serious comment if I had taken that step.
Q26 Chairman: You could have given some free legal advice?
Lord Hutton: That may be, but I think it was not for me to give legal advice.
Q27 Mrs Campbell: Can I take you back, Lord Hutton. I think you talked about interpreting your terms of reference.
Lord Hutton: Yes.
Q28 Mrs Campbell: Does this mean that your terms of reference were not really very clear at the outset?
Lord Hutton: No, I think my terms of reference were clear, but I then had to decide what matters arose for consideration under them. I think that will often arise where a Chairman has been given terms of reference. He has to decide what issues arise under them.
Q29 Mrs Campbell: It has been suggested to us by Lord Laming, for instance, that it is terribly important at the outset to ensure that the terms of reference are clear, and I think we have also had a paper from the Department of Constitutional Affairs which suggests there might be a breathing space to consider the terms of reference before actually starting the inquiry. Do you think that would have helped in your particular case?
Lord Hutton: I think there was so much public debate and public concern that, if there had been public discussion or a period of time to consider the terms of reference, it would simply have enhanced the public concern and one might have had a public debate about what the terms of reference should be. I might have been drawn into that, I might have been asked to express my views and I do not think that would have been beneficial.
Q30 Mrs Campbell: Were the terms of reference discussed with you at all or were you simply handed them on a plate? Did Lord Falconer say, "There you are; get on with it"?
Lord Hutton: I think the terms of reference evolved. It was quite clear when I first saw the Lord Chancellor that the concern was about the circumstances in which Dr Kelly had met his death, and that led on to the terms of reference which seemed to me to be appropriate and natural in the circumstances. In so far as you are suggesting it, I think it is probably right that as the inquiry proceeded it became apparent that there were issues as to what was included within the terms of reference, but I think that may happen in a number of inquiries.
Q31 Mrs Campbell: Were you tempted after you had taken the first stage of the inquiry and the facts in the case to have another look and another discussion about the terms of reference, or did that not occur?
Lord Hutton: No, because, for the reasons I have given, in my report I set out what I considered were the issues which arose, and those seemed to me to arise fairly from what I had heard. It is right that I should emphasise, as I said in my report, that I did give very careful consideration to whether I should widen the inquiry to include matters of intelligence, but, for the reasons I have given, I thought that was inappropriate, and I think it is very much better that the question, which is a very important question, is argued and heard separately by Lord Butler's Committee.
Q32 Brian White: It is quite clear you knew your terms of reference, but do you think that the people either giving evidence or commenting on it were as aware of the terms of reference? Is not one of the reasons that there was such controversy at the end of it that people had their own interpretation of your terms of reference?
Lord Hutton: Yes, I think they did, and I think many people thought that I should have inquired into intelligence matters. I think it is quite understandable that people thought that, because the war in Iraq was a matter of immense public importance on which people held very strong views. So I thought it was quite natural that those comments should be made and I quite understood, but, for the reasons I have given, I thought it was right for me to consider the issues which I set out in my report.
Q33 Brian White: You are quite happy the people who would give evidence to you understood the remit in which they were giving evidence?
Lord Hutton: I think so, because many of those people were represented by counsel. I am quite sure they would have discussed those issues and would have been advised by their counsel.
Q34 Brian White: You did not discuss with the individual counsels the terms of reference at all?
Lord Hutton: No, I had no discussions whatever with other counsel, but I think they understood them quite clearly; and if they had had any doubts I am sure they would have raised it with me, but they did not raise that issue.
Q35 Mr Prentice: Lord Hutton, still on this question of the terms of reference: many people suggested the focus was too narrow?
Lord Hutton: Yes.
Q36 Mr Prentice: You yourself said that there were differences in the evidence given to the inquiry by the Secretary of State for Defence and Alastair Campbell but it was unnecessary for you to resolve those differences?
Lord Hutton: Yes.
Q37 Mr Prentice: So in a sense they were left hanging the air. I am just reflecting on this, thinking that in the interests of justice and in the interests of truth perhaps you could have given some indication of how the matter could have been followed up even though it fell outside your very narrow terms of reference. Do you understand?
Lord Hutton: Yes. In a sense we are now going into the details of the inquiry, but I am content to do that. I made that reference because an issue arose, a very important issue, as to why the Government had issued the statement that a civil servant had come forward, and I had heard a great deal of evidence on that matter. I had heard evidence from the Prime Minister, I had heard evidence from senior civil servants and I was satisfied that the decision to issue a statement which did not name Dr Kelly but which said a civil servant had come forward had been taken by the Prime Minister on the advice of senior civil servants because they thought it was right to do so, they are under a duty to do so. There were references in Mr Alastair Campbell's diary to his view; other people stated differing views. I think where you have a large group of people discussing a matter, people express different views, but I came to a decision at that point on the basis of all the evidence I had heard and I think it is quite normal when a judge is resolving an issue and he has heard a large number of witnesses that he states the view he has taken on the evidence, he has regard to the most important evidence and it is not necessary for him, and it is probably not desirable, that he expresses a view on what various people have said whose views were not decisive on the main issue.
Q38 Mr Prentice: I understand that, and I do not want to tempt you into the details of the inquiry, but can I pick up one other thing you said again about the process. You talked about "cross-examination can prolong things".
Lord Hutton: That is on issues which are not relevant. You can get side issues arising and people spend a lot of time on them when, in fact, they are not directly relevant.
Q39 Mr Prentice: But a lot of people, who are not lawyers, were completely mystified, given the idea that the whole object of the inquiry was to find the truth about the circumstances surrounding the death of Dr David Kelly, that, for example, the Prime Minister was not cross-examined. Did that give you cause to reflect, that people were not given the opportunity to cross-examine the Prime Minister?
Lord Hutton: I gave very careful thought to that. The position was that the Prime Minister gave evidence. He was examined by counsel to the inquiry only in the first stage. When I reached the end of that stage, it was apparent to me, and I had heard a great deal of evidence on this, that the decision had been taken in Downing Street to issue that statement because there was very serious concern amongst senior civil servants and on the part of the Prime Minister that the Government would be charged with a cover-up if that statement was not made because the Government thought that Dr Kelly's name might emerge at any time, and that evidence was very strongly confirmed, in my opinion, by the evidence of the Chairman of the Foreign Affairs Committee and by Mr Mackinlay MP, who said that that Committee considered that the name of Dr Kelly should be given to them and, of course, that would mean that it would become public. Mr Mackinlay said in terms that the Government was under a duty to inform his Committee of Dr Kelly coming forward, and it seemed to me that that very much supported the evidence I had already heard. The Chairman of an inquiry is under a duty to be fair to witnesses and to ensure that witnesses are only examined if it is fair and appropriate. If I had brought the Prime Minister back to be cross-examined, I have to say that I considered that I would be regarded as simply playing to the gallery. Here is a man who is not afraid to bring back the Prime Minister to be cross-examined, and various allegations would have been put to the Prime Minister and there would have been glaring headlines about the allegations, and I did not think it was appropriate to do that.
Q40 Mr Liddell-Grainger: It struck me that as you got into your stride, Lord Hutton, you were mirrored by the press all the way through. You were almost being hounded to go down certain lines. Did you feel that your process was hindered or helped by the attitude of the press in those proceedings?
Lord Hutton: I decided at the outset that it was very important that everything that took place in the inquiry, because of the great public interest, should be done in public, and, with the assistance of the inquiry team and others who advised me, I made every effort to ensure that the media would be able to report the inquiry fully; and undoubtedly they did that; and I was grateful for that. So as regards the reporting, I think that was very well done. I think that served a very beneficial purpose. At the same time, of course, there were political commentators who were making various suggestions, indeed were making certain predictions, but it is part of the duty of a judge to decide the case as he thinks right on the evidence before him and not to be deflected by the views of various commentators, some of whom might form a particular political viewpoint.
Q41 Mr Liddell-Grainger: You said, Lord Hutton, "Accusations made impugning the integrity of others, including politicians, should not be made by the media"?
Lord Hutton: Yes, and before that I have said that investigative journalists are a very important part of the life-blood of democracy.
Q42 Mr Liddell-Grainger: As you went through your inquiry and more and more information came to light, a lot of which was brought up by people who are in this room today, did you feel perhaps that there were things coming to your notice that you were not aware of and by the end of it you felt there was information that was coming to light. Would you have liked to have called Paul Dacre, for instance, or others, to try and find out what they actually did know, because the media seemed to be leading the agenda and putting a lot of pressure on politicians and others to get to the bottom of it and were equally scathing, may I say, at the end of the process when there was a front page that was just white?
Lord Hutton: Yes; quite.
Q43 Mr Liddell-Grainger: Did you feel that there was enormous pressure brought on you from the media?
Lord Hutton: I appreciated that there would be a great deal of comment from the press when I published my report, and I thought it was inevitable that there would be criticism, indeed I expected it, because of the intense political background and intense political interest. As regards the press bringing forward new facts, I cannot recollect any particular fact that was brought forward, though there may have been. Certainly I and the inquiry team read the press fairly thoroughly, and if there had been some suggestion made that we were not aware of that had pointed to a particular fact, we would have investigated it. I think there were occasions where suggestions were made or someone would write into the inquiry with some suggestion. As regards some of those, I asked the solicitor to the inquiry to go to interview that person; so there was thought given to that all the way through the inquiry.
Q44 Kevin Brennan: Do you regret not televising the inquiry now?
Lord Hutton: No, I do not. My opening statement, the opening statements by counsel and the closing statements by counsel were televised, but I do think that no matter how experienced a person is, it does put additional pressure on them to be televised. Also there appears to be a good deal of discussion about people's body language, whether I now have my hands clasped or am twiddling my ear, or something, indicates—
Q45 Kevin Brennan: You know you are on now, do you not?
Lord Hutton: Yes. I do not think there is much to be gained from that. There can be a very serious discussion about this, and there are certainly arguments on both sides. I think we are now moving more towards the stage where there will be more televising of court proceedings, but I think it does have certain disadvantages. I took the view that in the inquiry, when extremely important issues were concerned, when people were going to be cross-examined, it was fairer to them that they should not be televised. I also took account of the fact that the inquiry was going to be very fully reported: we had the website, the transcript was available at the end of every day and therefore the public, through the media, and the media themselves were really very fully informed of everything that was said.
Q46 Sir Sydney Chapman: Lord Hutton, may I go back to the terms of reference to clear up something I am not quite sure of in my own mind. The Lord Chancellor invited you to be prepared to look at this inquiry into the circumstances of Dr Kelly's death?
Lord Hutton: Yes.
Q47 Sir Sydney Chapman: You agreed to that?
Lord Hutton: Yes.
Q48 Sir Sydney Chapman: Before the inquiry opened you thought about it and you said, "Yes, those terms of reference are right"?
Lord Hutton: Yes.
Q49 Sir Sydney Chapman: Then the inquiry started and you told us that even during the inquiry and up to the first part of it, the end of the first part of it, you thought the terms of the inquiry were right and you said, for example, "I do not think I ought to get involved in the deeper intelligence side because that would make the inquiry much longer"?
Lord Hutton: Yes. That was one of the reasons, yes.
Q50 Sir Sydney Chapman: Had you decided that the terms of reference should have been expanded or changed, even if modestly, could you have gone back to the Lord Chancellor and said, "I need these terms of reference changing"?
Lord Hutton: Oh, yes, I certainly could have done.
Q51 Sir Sydney Chapman: So, for the record, the Lord Chancellor would have been agreeable to you changing the terms of reference if you thought that would have been helpful or necessary?
Lord Hutton: That did not arise, I did not discuss it with him, but I think he probably would have done, yes. If I had gone back and said, "I consider these terms of reference are inappropriate or inadequate, I think they should be amended", I am quite sure he would have given that very careful consideration and I think he would, in all probability, have agreed.
Q52 Chairman: If you had gone back and said, "I cannot do this inquiry unless I get into the background to the war and the reliability of intelligence", do you think he would have said, "Yes, that is fine; off you go and do it"?
Lord Hutton: That was not my view, I would like to emphasise.
Q53 Chairman: I do not mean that. Had it been your view. If you had come to that view at the end of part one and you had gone back and said, "This is now my view. I cannot do this particular inquiry unless I can do some of the context"?
Lord Hutton: I just do not know what his response would have been. I wish to emphasise, Mr Chairman, my view clearly was, and I gave it a great deal thought, that it was not appropriate for me to embark on a detailed examination of intelligence. I was concerned with the circumstances surrounding Dr Kelly's death. I agree, if you give that a very wide meaning you can go back a long way and say the intelligence information was part of the circumstances, you could go back and say the threat from Iraq was part of the circumstances, but a line has to be drawn somewhere, and what I do wish to emphasise is that the very grave controversy which engulfed Dr Kelly arose from the report that the Government probably knew the intelligence was wrong, which is a far graver allegation, although the other one is grave, but it is a far graver allegation than an allegation that the intelligence given to the Government which it believed to be correct in fact was unreliable; and that was what engulfed Dr Kelly, that is what gave rise to the bitter dispute between the BBC and the Government and I thought it was right to concentrate on that for that reason in addition to the other reasons I have given.
Q54 Chairman: Had the claim simply been that there were people in the Defence intelligence community who were very uneasy about the kind of information that was being given out, if you had not narrowed it so much so that that was not your question. . . Because if that had been the question, then, in a sense, the vindication could not have happened: because now we know, indeed from the evidence that you uncovered in your inquiry, that was the context?
Lord Hutton: Yes.
Q55 Chairman: So in some context you did and yet you did not take it far enough to illuminate these broader issues that help to explain a particular event?
Lord Hutton: Yes, but one can see, I think, quite clearly. Everyone knew there were disputes about reliability of the intelligence. For example, Miss Susan Watts had given a report on that in Newsnight, Mr Gavin Hewitt had given a report to that effect on Newsnight, but that had not ignited the controversy between the BBC and the Government. What ignited that was Mr Gilligan's report on that particular allegation.
Q56 Mr Prentice: Kevin mentioned broadcasting of the inquiry, but I am interested in posting all this information on the Internet.
Lord Hutton: Yes.
Q57 Mr Prentice: When you discussed the terms of reference with Lord Falconer, did you tell him at that very early stage that you were minded to do something that was quite revolutionary and post all this stuff on the Internet for the world to see?
Lord Hutton: No, I did not. We had no discussion of the mechanics of the inquiry.
Q58 Mr Prentice: When did you take the decision to do this? Was it after you had spoken to the Lord Chancellor and discussed it with other colleagues working on the inquiry? How did this decision emerge?
Lord Hutton: It arose in this way, that I decided at a very early stage, I think I said in the opening statement I made on 1st August, before the evidence was given, that I wished the inquiry to be in public, that I wanted the public to hear every word that was spoken and to see every document that was put in evidence. I am not an expert on technology matters, but I was advised that to assist the public in knowing what was happening, it would be desirable to have a website. My intention always was that the transcript could be published, that the media could publish every word and it would help the public to know what was happening to have the information on the website.
Q59 Mr Prentice: Did you think about the implications for the machinery of government, for example? Here you were posting memos, e-mails going between senior advisers and the Government, what the consequences of that would be, who was copied into correspondence, who was copied out of correspondence, and so on. Did you give any consideration to that, the implications for the machinery of government?
Lord Hutton: No, because once those memoranda were sent to me and I thought they were relevant and would assist me in the inquiry, they were going to be put into evidence. In the old days they would have been presumably read out and they could have been reported in the press, so it seemed to me that posting on the website was merely taking advantage of modern technology to make available to the public what would have been available in the past in a rather more old-fashioned way.
Q60 Mr Prentice: Did you think this was going to be a huge boost for freedom of information, that in the future there will never be another inquiry that does not post information on the Internet in the way that you did?
Lord Hutton: I have to confess, I did not think of all the repercussions. I was just concerned to run the inquiry in a way which was open.
Q61 Mr Prentice: You got a good press, did you not, because you did this?
Lord Hutton: Yes, perhaps I did, on certain aspects, yes.
Q62 Brian White: My understanding is that there was one bit of evidence that was not posted on the web, which was the evidence that was in writing before you cross-examined the witnesses. The written statements appeared afterwards?
Lord Hutton: Yes.
Q63 Brian White: Why did you make that decision?
Lord Hutton: I made that decision because the written statement was simply for the purpose of informing me and counsel to the inquiry of the outline of what the witness was going to say; their evidence was what they actually said in court. Therefore, I thought that was sufficient. If there had been any discrepancy, which I do not think there was, in any case, between what they said in their witness statement and what they said when they actually gave evidence, the counsel to the inquiry would have dealt with that.
Q64 Brian White: But there were suggestions in the public's mind that there were differences. Did that concern you?
Lord Hutton: I was not, I must say, aware of those suggestions, and there were no objections, I think, from counsel for the various parties.
Q65 Mr Liddell-Grainger: I was quite disturbed to hear you say that you knew that intelligence information was not correct.
Lord Hutton: No, that was at the allegation. I never knew that intelligence information was incorrect. I appreciated that that there were very strong allegations that that was so, and as the days went by and no weapons of mass destruction were found in Iraq the strength of that suggestion was greatly increased.
Q66 Mr Liddell-Grainger: Did you not have that sort of niggling doubt in the back of your mind, "Hang on, this actually may not be correct", and subsequently it turned out it has not been correct? Did you not feel at some stage, "If this is not correct, this whole thing is going to end up in a potential mess"? Did you not think of going to the Lord Chancellor and saying, "Hang on a minute, we need to readdress this because there is something wrong?" Because the evidence came out time and time again that this was not correct?
Lord Hutton: Yes.
Q67 Mr Liddell-Grainger: Did you not feel in the back of your mind that may be there was a point and it was not correct?
Lord Hutton: Yes, I certainly was aware of that, and I have said in my report, I think, in terms that there was a very serious question whether the intelligence was reliable. I think I said in terms in the report that it may well transpire that Dr Jones's reservations were correct. So of course I was aware of that, but, for the reasons that I have given, I did not think that that question, which was a very wide-ranging question and which I did not think related to the circumstances of Dr Kelly's case, was one for me.
Q68 Mr Liddell-Grainger: It was a fundamental part of what was going on, regardless that you may think it was just outside your brief or it was not quite as relevant as it should have been. It was very fundamental to the way that the Government was presenting its case, and John Scott and others—you have said interesting things about that. Did you not think it was important to raise alarm bells as it went on, even superficially, to say, "Look, maybe there is a problem here", instead of waiting to the end: because as it unfolded, as your inquiry went on, more and more information came to light which you were not aware of and you could not have been aware of when you started any more than anyone else could?
Lord Hutton: Yes.
Q69 Mr Liddell-Grainger: If more and more information came to light as you went along, did you not feel it was right to have brought that, as your inquiry progressed, to people who perhaps could have changed your terms of reference? As you have you said, you could have gone to the Lord Chancellor to change it. Do you feel you should have done that?
Lord Hutton: No, I did not, for the reasons that I have given, that that would have been a totally different inquiry. It would have been a very much wider inquiry, it would have been a much longer inquiry and it was an inquiry, as I have said, that I do not think it is appropriate that a single judge sitting in public should embark upon.
Q70 Chairman: We will have some questions about that in just a moment, but can I complete the picture? We talked to you about terms of reference, where you started from?
Lord Hutton: Yes.
Q71 Chairman: Can I take you to where you ended?
Lord Hutton: Yes.
Q72 Chairman: Because mostly inquiries produce recommendations?
Lord Hutton: Yes.
Q73 Chairman: Even if they are about particular incidents: the death of a child, a train crash—
Lord Hutton: Yes.
Q74 Chairman: —usually the person inquiring into these events does not just deal with the particular event but sets it in the context of the system that gave rise in some way to that particular event. But when we got to the end of your report, you say "The circumstances leading up to Dr Kelly's death were wholly exceptional and I have decided that it is unnecessary for me to make any express recommendations"?
Lord Hutton: Yes. I think I went on to say, "And I have no doubt that the BBC and the Ministry of Defence will take note of the observations that I have made", and indeed they have done.
Q75 Chairman: I am going to ask about that too. "Take note" means, "You work out for yourself what you think I have said in this report"?
Lord Hutton: No, not "what you think I have said", but "what action you think you should take".
Q76 Chairman: There was a huge argument, for example, about the BBC. On the one hand, you had said, I think your exact words were, "These were very unusual and specific circumstances relating to Mr Gilligan's broadcast"?
Lord Hutton: Yes.
Q77 Chairman: Yet the particular circumstances, unique, exceptional, particular circumstances, led to an earthquake at the BBC?
Lord Hutton: Yes.
Q78 Chairman: Was that taking note?
Lord Hutton: The BBC had to act on the criticisms I had made.
Q79 Chairman: So you thought they took note in the appropriate way?
Lord Hutton: I do not think it is for me to comment on what steps were taken by the BBC.
Q80 Chairman: The reason I ask you these questions is because people thought that your report was replete with potential recommendations about the reliability of intelligence, about the relationship between No. 10, special advisors, the JIC, all these issues?
Lord Hutton: May I ask you how were they replete with recommendations about those matters?
Q81 Chairman: Because the issue of boundary lines between what Number 10 wanted and the role the JIC saw itself as being was addressed squarely in your evidence, it became clear that all this process was going on. It might have been thought that there were some general things to be said at the end of that about boundary lines, for example, which you did not say, you simply said, "No doubt people will take note of what I have said"?
Lord Hutton: I meant by that, the particular criticisms which I had made. I made certain criticisms of the BBC, I made certain criticisms of the Ministry of Defence, but I did not make criticisms about the relationship between Downing Street and the JIC because I considered that that did not arise from the terms of reference relating to the circumstances surrounding Dr Kelly's death. I was not engaged, in my view, on an inquiry into the relationship between Downing Street and the intelligence services or similar matters. That was part of the background which gave rise to Dr Kelly's death.
Q82 Chairman: But the issue of the reliability of published intelligence material went to the heart of the issue surrounding Dr Kelly's death, and one would have thought at least there would have been recommendations which said, "This is a rather important matter", even if it requires further inquiry, but you did not even go as far as to say that?
Lord Hutton: I do not think it was for me to suggest further inquiries, but there now is a further inquiry, which is entirely proper and I think it is right that it is taking place; and, indeed, I set out, you recollect, that in the inquiry there were some discussions about the meaning of "weapons of mass destruction", whether they were strategic weapons or tactical weapons, and some evidence was given about that. I again gave very careful consideration to whether I should engage in that subject, but it seemed to me that that did not relate to the circumstances of Dr Kelly's death because neither Dr Kelly nor Mr Gilligan had referred to that distinction and there is no reference to that in Mr Gilligan's report, but I thought it right to set out that evidence so that it would be apparent to the public.
Q83 Chairman: But had there not been raging arguments about the reliability of the published intelligence information, had there not been a process going on between the politicians and the special advisers and the intelligence community about what should be published and how it was being presented, if all that had not been going on, then the context in which David Kelly had lived and died would have been entirely different, would it not?
Lord Hutton: Yes, that is the context, but you have to draw a line and I thought it was right to draw the line where I did, and I think it is now entirely right, I think it is right that I concentrated on the matters that I defined and it is right that Lord Butler should now be conducting his inquiry, and I think that is very much better than that I had raised a whole raft of issues about intelligence.
Q84 Chairman: To complete the overview, when you were sitting you were sainted: you were this fearless forensic investigator?
Lord Hutton: Yes.
Q85 Chairman: The moment you reported, you were an establishment lackey?
Lord Hutton: Yes.
Q86 Chairman: What did you make of all this?
Lord Hutton: I think it was inevitable that there would be criticism and I expected it and I think, in the circumstances, it is not surprising, but the duty for a judge is to decide on the issues before him without fear or favour, without having regard to political consequence and without having regard to the comments which may be made by editorial writers and by political commentators, and that is what I sought to do.
Q87 Chairman: When the remarks were made about "unbalanced", "one-sided", "whitewash", "lack of context", you did not for a second reflect further and think, "Maybe I went a bit too narrow. Maybe I gave the office holders the benefit of the doubt too much"?
Lord Hutton: Yes, of course I reflected on those matters, and I have reflected on them, but, having done so, I still am of the view that I was right to draw the lines where I did and that it was the proper way to proceed.
Chairman: You mentioned judges, and I think we have got some questions about judges.
Q88 Mr Liddell-Grainger: I have counted, and I know Michael has—we have been going through it—there are so many eminent QCs that came back and said you did not get it right, for various reasons. Alright you can put up with the media, you can ignore that, Alastair Campbell and all that, but when Baroness Kennedy, Michael Mansfield, Alan Levy, Mr Kelly, another Mr Kelly, Mr Carter, Mr Irvine, are all saying you did not get it quite right—they are all QCs—do you not feel that your own peers, following what Tony said, are not terribly happy with you either?
Lord Hutton: No, because I was not writing a judgment in a case. I think they are referring to questions of qualified privilege and matters of that sort. I was concerned with a particular report which was given, and I cited passages from a judgment in the House of Lords about the importance of protecting reputation, and I think it was right to do so.
Q89 Mr Hopkins: Just to repeat the point following the Chairman's line of questioning, earlier on I was concerned about the narrowness of the conclusions. It seems to me from what the Chairman has been asking and what you have been saying that, during the inquiry, we expected it to come out with a whole range of conclusions and recommendations and decisions about all of the issues that we have discussed, but at the end there was a very narrow focus for your conclusions.
Lord Hutton: Yes.
Q90 Mr Hopkins: If you knew from the beginning that the conclusions were going to be narrow, this very wide-ranging inquiry which went into lots of other issues was really unnecessary. Did you in a sense decide towards the end of your inquiry that your conclusions would be very narrow or was it clear in your mind from the beginning that they were going to be very narrow?
Lord Hutton: I was clear in my mind after the first stage what were the issues which I should address, and I set those out in my report, after I had set out in my report the facts that were established. I then state in the report, I think, there are five issues which I considered arose from the evidence, and those were the ones which I addressed.
Q91 Mr Trend: I would like to move on to discussing the role of the judiciary. If I can begin by reminding the Committee of something Lord Morris of Aberavon said after the Scarman, McPherson inquiry. He said that when a judge enters the market place of public affairs outside his court and throws coconuts he is likely to have the coconuts thrown back at him?
Lord Hutton: Yes.
Q92 Mr Trend: In the issues and questions paper which we publish for this is a review of how in ancient history these sorts of inquiries were done by the House itself. Then, after the Marconi affair, there was an Act and the Salmon review of that later on, and, with some exceptions, notably Lord Franks, I suppose, almost all these inquiries now are done by senior judges. Do you think there is a unique advantage in having judges undertaking these sorts of inquiries?
Lord Hutton: As I was a judge, I should be fairly diffident in answering that, but I think it has always been accepted that by reason or their training and experience judges have certain skills which are an advantage in conducting an inquiry. They are used to hearing witnesses, they are used to assessing evidence, they are used to defining issues, they are used to analysing facts and relating them to the issues. There are those advantages. Of course, other lay people can, of course, do that also, I am not suggesting the contrary, but judges have that experience in the course of their professional career. Judges are also well versed in ruling on procedural matters, whether a question is fair, whether it is relevant. So that is of assistance. They also have the reputation of being politically dispassionate. They are not concerned by political considerations. So there are those advantages, but they are possessed by other people as well.
Q93 Mr Trend: But inevitably in this process they will get drawn into a political process. There are examples here given of Justice Roberts on the Japanese attack on Pearl Harbour and Chief Justice Duff of Canada about the Canadian Government's actions in Hong Kong, which were unusual procedures for those countries, and both are on record, according to Geoffrey Jowell, in an article in the Guardian, as regretting chairing the inquiries considering them harmful to their position as judges and to their courts. It was suggested that the Guardian had learned that you were shocked by the public anger at the response to your report?
Lord Hutton: May I just say, I think that report was published when I was abroad on holiday, and I should say that I had not expressed such views and I had not expressed any views about the resignations in the BBC. So it is certainly not pleasant being attacked in the press, but it is too strong to say that I was shocked.
Q94 Mr Trend: But in retrospect do you think that your position as a judge, if you had gone on sitting, would have changed? Would people have seen you differently as a judge? There is a risk here for the judiciary?
Lord Hutton: Yes, I think there may be a risk. I do not think it is a very serious risk, because I think that many people appreciate that where there is a very strong political background to an inquiry people will assess the report that is made from their own political outlook.
Q95 Mr Trend: You do not think in a highly politicised case it might be inappropriate for a judge. Can you imagine circumstances in which the political situation was such that a judge should not be in charge of an inquiry?
Lord Hutton: Yes, I think there may be such circumstances. I think various considerations have to be balanced. If the inquiry is undertaken by a person with a political background, then I suppose there will be the risk that he will be accused of having a political bias before he starts. That would not apply to a layman who does not come from politics. I agree; I think it is a matter of balance. You may be right that there may be some highly political issues and it is undesirable for a judge to embark on them.
Q96 Mr Trend: Where else could the government, the country indeed, look for people who could carry out such an inquiry if the judiciary was not able to do it?
Lord Hutton: I suppose distinguished academics could do it; distinguished people from business and from other professions certainly could do it, but you have to balance that against the particular experience and skills that judges have as regards assessing evidence.
Q97 Mr Trend: We also have not so much a political concern but a concern about the development of devolution settlements in the Human Rights Act, judges becoming established as part of the constitution in a precise way. It may no longer be appropriate constitutionally for the judiciary to involve themselves in inquiries of a political nature. Do you feel that is over-stated?
Lord Hutton: I do not think the introduction of the Human Rights Act creates a different situation. There is still the separation of the judiciary from political matters and executive matters. I do not think that has made a great change, but I certainly accept that there is validity in the point you are making.
Q98 Mr Trend: At one level, once the press had reported reactions and indeed given their own reaction, the BBC included, to the outcome of your inquiry, is your view that the perception of the ordinary people of this country was strengthened in the judiciary or weakened?
Lord Hutton: I think the public saw that the inquiry was conducted fairly and openly. I think that was advantageous. Undoubtedly, there are very strong feelings in the country around the war in Iraq. Many people are opposed to it. I think that coloured public reaction to the report.
Q99 Mr Trend: And that is how they were judging it? They saw it in terms of the war in Iraq and the general issues, not in terms of the specific death of Dr Kelly?
Lord Hutton: I think that influenced some people, yes. One cannot generalise.
Q100 Brian White: Philip Zelikow, the Executive Director of the 9/11 Commission in the States, has said that using lawyers is very good at marshalling the evidence, but you tend to get a lawyerly report, good on facts but lacking what he called "interpretative judgement". His argument was that you should have a historian on it. What sort of experts do you think should be on this kind of inquiry? Would you have liked a historian on your inquiry?
Lord Hutton: I am not quite sure what the input of a historian would have been. This again comes back to the point I have sought to make that I consider that only certain issues arose from my terms of reference, and I am not sure that a historian could have helped on those. If it had been a much wider-ranging inquiry, that might have been of assistance. Could you expand a little just on what the input of a historian might have been?
Q101 Brian White: What I am trying to get at is: is it all right to have a judge sitting alone in an inquiry or is there a range of experts that you would see as being helpful in an inquiry?
Lord Hutton: Experts are of assistance. For example, I asked Professor Hawton, who is the Professor of Psychiatry at Oxford, to give evidence as to the factors that might have operated on Dr Kelly's mind, but I thought it was preferable that he should give that assistance by giving evidence so that the public could hear his views, rather than that he act as an assessor to give views, as it were, to me in private. I was also assisted by the computer experts who examined Mr Gilligan's notes, so I did have technical assistance, although it was in the form of witnesses.
Q102 Brian White: What training did you have in running public inquiries, or did you make it up as you went along?
Lord Hutton: I suppose the extent of my training was training in having conducted trials as a judge for many years. I had tried many criminal cases in Northern Ireland which had called for the assessment of evidence. We tried criminal cases without juries, so I certainly had a lot of experience in that but not a particular training in public inquiries. There are some considerable similarities. There are differences as well, particularly I think with regard to the public's perception.
Q103 Chairman: There is a nice quotation from Professor Jeffrey Jowell who says, talking about this precise issue of the approach that someone like you would bring to an essentially political controversy: "Every fibre of his judicial disposition would incline him to confine his attentions to the cut-and-dried matters of personal liability and to avoid the wider political ramifications of his decision." Has he not got a point? Is there not something about having a judge sitting alone which compresses issues which, by their very nature, are much broader than that compression allows for?
Lord Hutton: That compression may have certain advantages, but I think your question suggests that if there is a wider approach, that should take account of political implications. That might have the danger that someone doing that may reach a tentative conclusion, which may involve reflection on individual people and then he may say to himself, "Ah, yes, but what is the political reaction going to be to this? Therefore I will shade my conclusion or temper it to take account of what I think the political reaction will be." I think that could lead to unfairness.
Q104 Chairman: But the act of setting up an inquiry is usually a political act, is it not?
Lord Hutton: Oh, yes, but the chairman is not concerned with that. He comes to it when it has been set up.
Q105 Chairman: We keep coming back to this central dispute as to whether the context matters or not. Let me pick up on Brian White's early question on the point that you have not done an inquiry before. You are wandering into this political storm.
Lord Hutton: I am not sure if I was wandering!
Q106 Chairman: You were going about your judicial business, were you not? I did not ask you this at the beginning, and I could have done: presumably you were a kind of spare judge, were you?
Lord Hutton: No, it was a Friday when we do not sit. I was writing a judgment in my room in the House of Lords and I was asked to go and see the Lord Chancellor.
Q107 Chairman: There is a business about which judge do we pick, is there not? Presumably he has to be available and he has to be one that looks a likely prospect. There you were, writing your judgment, and you said, "I have got to finish writing my judgment".
Lord Hutton: I do not know why I was chosen, I may say, if you ask me that.
Q108 Chairman: Is it not partly availability? It is availability and likeliness for the role.
Lord Hutton: I think all judges are available. I was going to sit on judicial business the next week.
Q109 Chairman: So it was a slot for which you could reorganise your life to make yourself available?
Lord Hutton: I number of judges could have done that.
Q110 Chairman: That is why we keep a supply of them, do we not, waiting there, but we have not got a little handbook, have we, called "How to do an Inquiry"? You had never done an inquiry. We know that inquiries come in all different shapes and sizes. You have not got a rule book. You just stumble in there and make it up as you go along.
Lord Hutton: No, I would not accept that. There is a lot of guidance on the conducting of an inquiry. I looked, for example, at the Salmon Report by Lord Justice Salmon in 1966 as to how a tribunal should be conducted. He set out six principles. I read a lecture by Sir Richard Scott, who has conducted his inquiry and that contained some very helpful guidance. There was a very helpful statement by Lord Scarman at the start of the Red Lion Inquiry, which I read, which states that it is for the chairman to run the inquiry and to decide what witnesses will be called and matters of that sort. One of the essential prerequisites for running an inquiry is to ensure that there is fairness to witnesses. That is a thing the judge spends his professional life trying to ensure, that witnesses are fairly treated. Another very important aspect of running an inquiry is to try to advance it with expedition to ensure that unnecessary time is not taken up and irrelevant contentious points are not taken. A judge is well-versed in doing that and that is what I tried to do. When you suggest that a judge is not versed or trained in conducting an inquiry, I do not think I could accept that. A judge is very well-versed in some of the aspects of running an inquiry, which flows from his experience of conducting cases in court.
Q111 Mr Prentice: You mentioned expedition but we have had a submission from the Department of Constitutional Affairs which very helpfully lists previous inquires. The Saville Inquiry into Bloody Sunday was established in 1998; it is still ongoing and has cost £155 million. You mentioned Lord Justice Scott: that inquiry took four years and cost £7 million. The sinking of the Trawler Gaul inquiry was set up in 1999; it is still on going and it has cost £6 million. I could go on. I am left wondering about this question of expedition. When a judge is asked to take on an inquiry, would it be legitimate to say, "Life is too short. I will do an inquiry but I am not going to spend eight years of my life picking over things".
Lord Hutton: I suppose it would be open to anyone to say that. If a professor is asked to run an inquiry, if the chairman of a company is asked to run an inquiry, I think he would be entitled to say the same. Perhaps I should say that I was fortunate in the sense that my inquiry, certainly in my view, related to a reasonably narrow range of facts and therefore it was able to proceed with reasonable expedition, but when you get an inquiry such as the Bloody Sunday Inquiry where I think virtually every issue of fact is very heavily contested, I am afraid it is inevitable that it is going to take a long time.
Q112 Mr Prentice: What is the point if it takes a decade, but I am just surmising?
Lord Hutton: I think that is not a matter for me.
Q113 Mr Prentice: Can I briefly return to the issue of process because I think you state that in the whole business of the audit trail you rely on the existence of paper records or, in the case of the BBC, audio and visual records. There was an audit trail as far as the BBC was concerned, but was there an audit trail as far as the Government was concerned? We know that there were lots and lots of meetings at No. 10 that were not minuted. There were up to 17 meetings a day, and very few of them were minuted. Did it concern you that you could not go back to paper records of meetings at No. 10 that were exploring options? We had the Permanent Secretary, the Cabinet Secretary, in front of us a few weeks ago, Andrew Turnbull, and he told us, and I am paraphrasing, that it was only necessary to minute a meeting if it was a kind of action note. I remember using the phrases "chewing the fat". Meetings could happen examining options, chewing the fat, but there is no record of that. Did it concern you at all that you could not go back to a paper record, a minute of discussions on important issues involving very important people—the Prime Minister and the leaders of the intelligence community—and read the record of what they said?
Lord Hutton: At the outset of the inquiry I asked that I be given all memoranda, minutes, letters, any documents that related to discussions involving Dr Kelly. I asked the MOD; I asked the BBC; and I went to see Mrs Kelly and asked her to help me by giving information, and I am very grateful to her that she did that. Before the first sitting when evidence was given I did receive a large volume of minutes and memoranda, and I am very grateful to the BBC and the MOD for supplying that. That enabled me to see the outline. Then from that I was able to see who the witnesses were whom I should call, and I did that. As you say, there did not appear to be minutes of discussions in Downing Street but I simply had to proceed on the material which was before me, which is what I did.
Q114 Mr Prentice: I understand that but, of course, your inquiry did not take evidence on oath.
Lord Hutton: No.
Q115 Mr Prentice: Do you think it would have made a difference if John Scarlett, the Prime Minster and the rest of the people that you had gave evidence on oath?
Lord Hutton: I do not really think so, no. Many of the witnesses were cross-examined and fairly and thoroughly cross-examined. I had to assess their evidence, and I do not think I would have been greatly helped if they had been on oath, no.
Q116 Mr Prentice: I have this picture in my mind of Donald Rumsfeld on Capitol Hill with his hand up like this swearing to tell the truth.
Lord Hutton: Yes.
Q117 Chairman: Whether that makes a difference is another matter. Does this mean, in answer to Gordon Prentice, that you are saying it does not really matter whether an inquiry judge is equipped with formal powers or not as under the 1921 Act in terms of his ability to get papers, materials and people?
Lord Hutton: I think with my inquiry as regards obtaining papers, documents and witnesses, I was fortunate in that I was able to do that without having formal powers, but there may well be other inquiries where such powers are needed. It depends on the individual inquiry. It might well be advantageous that there is some statutory framework whereby if a chairman finds that he is not getting the assistance that he requires, he can go to Parliament, he can go to the Secretary for Constitutional Affairs, he can go to someone, and say, "I wish a summons to be issued which can be enforced" and then he can go back. My inquiry does show that statutory powers are not always necessary.
Chairman: That is an interesting answer.
Q118 Mr Brennan: What would you have done if someone had refused to appear?
Lord Hutton: I would have written to them again and I would have made public that I was writing to them saying I thought it was important that they should come and I would take a serious view if they did not.
Q119 Mr Brennan: Even in the face of that, what would you do?
Lord Hutton: I think I would have then gone to Lord Falconer and said, "I regard this witness as important. He is not prepared to come". I think I would have suggested then that I be given statutory powers.
Q120 Sir Sidney Chapman: As this was the very first inquiry for you, I think you said, apart from something in Northern Ireland, and you said you had consulted guidance, do you intend to issue some guidance from the experience you had in your inquiry?
Lord Hutton: I think I will be speaking to various professional bodies about my experiences in conducting the inquiry. The lessons are there which lawyers can see for themselves. One other factor that I might mention is that it is important that there be timetabling, because I was assisted by a very effective timetable drawn up by the Senior Counsel to the Inquiry and counsel, by and large, kept to it. I think that was very helpful in advancing the hearing.
Q121 Sir Sidney Chapman: In effect, you could call for anybody and any paper you needed?
Lord Hutton: Yes.
Q122 Sir Sidney Chapman: This is just really for clarification: my instinct was, and I am not a lawyer, that as it was a one-man inquiry, you would have had some assessors. I know you have dealt with this earlier on. I would have thought it might have been helpful to you to have somebody who knew a bit about the intelligence matter and how the intelligence system works in our country. If it is not a contradiction in terms, that would have to be an independent politician or a Privy Councillor who could perhaps guide you if necessary on the political ramifications, but you clearly took a decision not to. Would I be right in saying you took a decision not to have any assessors, advice or help because you could in any case, if you needed it, call the appropriate person, as you said about a professor from Oxford to do with Dr Kelly's state of mind?
Lord Hutton: Yes. The primary answer is the one already given, that it seemed to me on the issues which arose that I did not need that assistance, but certainly, if it had appeared that I had needed that, I would have asked for that. I should perhaps say that, of course, in the course of the inquiry I was given a great deal of evidence and I saw all the documents passing back and forth and I saw the various drafts of the dossier prepared by the JIC, so I became fairly fully informed as to the workings of the JIC.
Q123 Sir Sidney Chapman: The other point I would like to raise is that in putting all this information, all the papers and all the evidence, on what is called the internet—and I am not pretending for one moment that everybody read every word on the internet—you did recognise that anybody who did look at it, particularly the media, were bound to think that they were the juror and bound therefore to give you advice as to where you had gone right or gone wrong?
Lord Hutton: Yes, I think so, but that is simply a consequence. That is outweighed by the advantage of making it clear that everything has been done in public and the public are aware of everything that is happening.
Q124 Mr Brennan: Did you share your conclusions with anyone before they were published?
Lord Hutton: No, they were entirely my conclusions.
Q125 Mr Brennan: You did not discuss the possible conclusions you were going to come to with anyone at all and they were solely your conclusions. You were locked away in a room and you did not get anyone's advice as to what they thought of a conclusion before you actually finally published it?
Lord Hutton: No, I did not ask for advice on the conclusions from anyone. I did discuss, of course, in the course of the inquiry, various points that arose as to what witness I should call or was there anything further we needed at this point with Counsel to the Inquiry and with the Solicitor to the Inquiry but the decision was mine alone. I did not ask for advice on it. I did not say to counsel, "What would be your conclusions?" or "What do you think are the relevant issues?" I asked their view, as I say, on whom we should call on matters, simply on the running of the inquiry.
Q126 Mr Brennan: How do you think those leaked out to the media? The conclusions appeared in the Sun before you were able to give your report. I know you were very unhappy about that.
Lord Hutton: Yes, I was very unhappy and very disappointed because the solicitors had put into operation a number of measures which we hoped would ensure that there was no leak. When the leak occurred, I asked the solicitors to conduct an investigation. They have conducted a very full and detailed investigation, and they have furnished me with a full report. Unfortunately, they have not been able to discover the source of the leak, which I am afraid sometimes happens as regards leaks. But I have asked further investigations to be undertaken and those investigations will include a consideration of whether there are any additional steps that can be taken in future to ensure that confidential reports do not leak before publication. I am sure you will appreciate that I do not think it is appropriate for me to say anything more on those further investigations because they are taking place at the moment.
Q127 Mrs Campbell: In view of the media outrage, and I think that is probably the word to use, that followed your report, is there anything you would have done differently in retrospect?
Lord Hutton: No. I, of course, have thought about that, but I do not think there is. A considerable part of the criticism relates to the issue that has been discussed this morning, that I did not go wider, but I am satisfied I was right to confine the inquiry to the matters that I considered.
Q128 Mrs Campbell: May I take you back really to the beginning of that? I am sorry we are leaping about. You told us that you consulted the Tribunal of Inquiry (Evidence) Act and you also consulted Lord Salmon's Report.
Lord Hutton: Yes.
Q129 Mrs Campbell: Lord Laming has told us that in his view the so-called Salmon principles are problematic and not altogether helpful. He said, and I quote from his submission to us: "In my view, the so-called Salmon principles are problematic and not altogether helpful". I wonder if you have any similar comments to make?
Lord Hutton: Yes. There is that point of view and it is the point that was made by Sir Richard Scott in a lecture which he gave which I have read. The criticism of the Salmon Report is that, whilst the thrust of the principles is correct, that one should be fair towards witnesses, that they should be represented by counsel, that they are given notice of criticisms of them, the Salmon Report sets it out in rather rigid terms. For example, it suggests that, before a witness is called to give evidence, he should be notified of any possible criticisms, but I decided that it was better, for the reasons I have explained, to call the witnesses to have them examined in a neutral way to see what the issues are and then, at that stage, to give them notice of possible criticisms. There was a case in the Court of Appeal where it was said that these principles of fairness must be applied in a flexible way depending on the circumstances of the case. I think I would agree with Lord Laming in this sense, that the Salmon principles are not to be applied inflexibly or rigidly and they have to be adapted to the circumstances of the particular inquiry.
Q130 Mrs Campbell: Do you think it would be helpful for a person put in your position of conducting a future inquiry to have perhaps a new set of guidelines drawn up drawing on the guidelines that are already in existence, but actually making clear where they should be interpreted flexibly?
Lord Hutton: Yes, I think it would be to some extent. The fact that they have to be applied flexibly means that it rather depends on the circumstances of the case. I have no doubt that future chairmen, if there are such people, will take account of my experience and the process that I followed.
Q131 Mr Hopkins: I am concerned about inquiries where a judge sits alone. Judges are very wise and intelligent people but they are human beings as well. In particular, with an inquiry like yours, which was different from all other inquiries in the sense, as I said earlier, that a government might stand or fall on what you said, the world's history might have been different with the different judgments, so it was very important. When you were asked to sit alone, did you question this at any moment and say, "Hang on, Lord Chancellor, I think we ought to have a tribunal or a commission of legal experts, not just myself because the responsibility is really so enormous"?
Lord Hutton: No, I did not when I was asked and I think partly because one of the issues which at that stage on that morning appeared to arise was how had Dr Kelly met his death. I think that is a matter that can be inquired into by one person. Also, it is the practice in this country, and in many other countries, that a single judge does decide issues of very great importance in civil cases. They may reflect the outcome of large undertakings; they may affect the reputation in defamation cases. Judges are used to trying very grave issues on their own. Therefore, I think it was for that reason that I did not suggest there should be a commission. A commission can be a somewhat unwieldy body in considering perhaps somewhat confined issues. For example, in questioning a witness, there are certain disadvantages, if one is trying to find out the truth about a matter that a person is questioned by a succession of questioners because coherence is sometimes lost; the thrust of a line of questioning is sometimes lost and I think it is advantageous that a person is questioned at an inquiry by counsel to the inquiry.
Q132 Mr Hopkins: Judges in the House of Lords sometimes sit as the final court of appeal. There is always more than one judge; I think there are three.
Lord Hutton: Yes.
Q133 Mr Hopkins: There has been a lot of speculation that judgments have been influenced by the particular judges involved, whether such judges have either been what some might call liberals or conservatives in particular cases. With a tribunal, the inquiry's conclusion might have been different. Clearly, the Government would have been very concerned if a particular judge, who would perhaps take a different view from yourself, might have been appointed to the inquiry. The significance of the individual is clearly very important in all of these cases. While I think when you were appointed everyone thought this was a wise decision and you were the right person for the job, there is still the fact that you are a human being with a view of the world and that your judgments would possibly be affected by that.
Lord Hutton: One hopes that one's decision is not affected by one's personal outlook. Again, this comes back to the point that it seems to me, for reasons I have explained and need not repeat, that there were particular issues which arose and as I set out in my report, and in a sense they were factual issues; for example, the issue whether the Government probably knew that the intelligence was wrong was the sort of factual issue that an individual judge can decide. Another question was: "What did Dr Kelly actually say to Mr Gilligan?" Another was: "What could you be sure that he said to Mr Gilligan at their meeting in the Charing Cross Hotel?" That I think again is a matter that can be decided by a single judge. If one was going into wider political implications, then there would be advantages in having a commission or a body of people sitting.
Q134 Mr Hopkins: I have two more brief questions. One, for the sake of our inquiry, do you think it is a good idea that in future we should actually have more than one judge sitting in inquiries, as tribunals perhaps, and that we should think again about appointing individual judges particularly in inquiries which have major political ramifications and are controversial in the way that yours was?
Lord Hutton: Yes, I think there might be advantages. One has to weigh that against the fact that a single judge can ensure that the inquiry proceeds with expedition because if you have a number of people sitting on the panel, there will be additional questions from them; they would have to adjourn sometimes to consider points of relevance. That really relates to the argument whether you should have one judge or a three-man panel. There are arguments for and against.
Q135 Mr Hopkins: Finally, do you think it might be helpful to have the possibility of an appeal against an inquiry's findings? Mrs Kelly, for example, who was unhappy about the findings you made, might have liked to appeal. Do you think a right of appeal in future inquiries against their findings might be a possible way forward?
Lord Hutton: There might be advantages in that. It has not been the practice in the past because part of the purpose of an inquiry is to deal with public concern at the time. If you had an appeal and possibly a further appeal, the matter would then become much more protracted. In addition, the inquiry serves the purpose of setting out all the facts. If there are any further steps to be taken from those facts, in some cases it is possible that separate legal proceedings can be brought.
Q136 Chairman: Could I pursue Kelvin Hopkins' line of questioning slightly further? Geoffrey Howe, Lord Howe, who is a veteran of inquiries, both presiding over them and representing people in them, said, after you had reported, "Surely his wisdom would have been the greater if he had been flanked on one side by someone with media experience and on the other by someone with experience of government?" It is not just a question of: should we have more judges involved? It is: should we broaden the range? He goes on to say: "The risk is that the seriously misjudged shape of the Hutton inquiry, following as it does on the Scott experience, may—as Denis Healey characteristically commented at that time—have done for public or judicial inquiries what the Boston Strangler did for doorstep selling." You see the point. Let us put it this way, and we will pick some names: if you had Peter Hennessey sitting with you doing machinery of government, if you had had Ian Hargreaves or Peter Preston sitting with you doing media, it would have been a different report, would it not?
Lord Hutton: Could you perhaps expand a little on that? I came to certain conclusions, and you have them set out in my report. I am not quite sure what suggestions would have been made to me that would have caused me to alter the view that I had formed.
Q137 Chairman: We are making things up now and you do not like that kind of thing. I would surmise, on the discussion that we had about terms of reference, the answers would have been differently arrived at had we composed the inquiry in that way. I suspect your avoidance of recommendations on the larger contextual questions would have been quite different had we composed the inquiry in a different way. You get the inquiry that you set up, do you not?
Lord Hutton: I am not sure that there would have been recommendations. The point about recommendations is that this was a quite unprecedented set of circumstances with a most unusual number of event occurring, which all combined to a very tragic result. As regards the BBC, I made certain criticisms, but I took the view it was not for me to tell the BBC how they should run their organisation. I was confident that they would take note of my criticism, and indeed they are doing that. In a statement they issued just a couple of days ago, they said that there was a committee considering what lessons were to be learnt from the events that had taken place. The witnesses from the BBC at the inquiry said that they accepted that there were lessons to be learnt. It seemed to me that it was more appropriate that I should leave the BBC to act on what they learnt. I rather suspect that if I had made a series of recommendations as to how the BBC should conduct themselves as regards certain news reports, I would have been criticised for interfering with the freedom of the media and dabbling in matters which were not my concern.
Q138 Chairman: No, the question is whether the composition of the inquiry affects issues of defining its terrain. I am putting to you that it clearly does.
Lord Hutton: But I am sorry, you suggested that I might have made recommendations and, with respect, I do not accept that. As regards the issues, if I had another person sitting on the inquiry who had said to me, "Look, there is a very important political background here. Very important issues arise about intelligence. Was the intelligence reliable? I think you should embark on that", I would certainly have taken account of that, but I took account of that in my own mind anyway. At the end of the day, I would still have said, "I do not think this is sufficiently close to the circumstances surrounding the death of Dr Kelly". It may be that that may be so but I suspect I would not have accepted it.
Q139 Chairman: You say regularly that this was, as it was, a very tragic and exceptional matter which could be contained in that way. Of course, when a child dies in the social care system, that is a singular and tragic act. When these babies died in the Bristol Heart Hospital and were inquired into by Sir Ian Kennedy, that was in a sense a singular act, but out of that comes a raft of general recommendations about how systems operate and should be better. What I am putting to you is: if you compose an inquiry in one way, you will get a certain definition of what it is about and a certain compression of remit and recommendation. If you compose it in another way, it is liable to look outward and to get into other areas. Your inquiry was composed in a particular way and therefore gave us a particular product.
Lord Hutton: Yes, but you refer to the death of children; sadly, that is a matter which happens not infrequently. It relates to the procedures of the welfare services. This was a set of circumstances as regards the Ministry of Defence where a civil servant had met a journalist. That had given rise to a broadcast which contained a very serious allegation, which gave rise to a major controversy. The civil servant had then come forward and said he had had the meeting. The Ministry of Defence then had to consider how to deal with that. I criticised the Ministry of Defence. I said I thought they should have informed Dr Kelly more clearly that they were going to give his name if the press put it to them. I have no doubt they would take note of that. I do not think there is any necessity for a recommendation. I think that was quite implicit.
Chairman: I am in danger of putting the same point again in that context. We have had the exchange in a number of ways already. I want to move on, if I may, to the Parliament area.
Q140 Mr Trend: I am intrigued by something you said earlier as to whether or not your inquiry finished because there was the Sun's leak, which has been looked into, you say, and then you asked for further investigations. I gather that one inquiry has become a full committee of state almost. Do you intend to go on? I think it is admirable that you have just announced you would go on and look at this business. Do you still have a budget line, a staff? Can you keep going?
Lord Hutton: It is not going to be a widespread investigation. There are further aspects of the matter, which I do not want to go into at the moment, which I have asked to be investigated because I thought it right. It is a very serious matter that there is a leak of this nature, particularly when very strenuous efforts were made to preserve confidentiality until the report, so I thought it right that certain further investigations should be made.
Q141 Mr Trend: Would you remind me how your budgetary side worked during the inquiry? Are you still using people from the court system or the Department of State? How do you proceed?
Lord Hutton: It is from the Department of Constitutional Affairs. Two of those people are with me: Mr Lee Hughes and Ms Helen Smith. They have gone back to other duties and, if a particular issue arises, I still ask for their assistance.
Q142 Mr Trend: That is very helpful.
Lord Hutton: There is not a full team. The team has been disbanded and gone to other jobs.
Q143 Mr Trend: At some stage you could say that it is finished?
Lord Hutton: I think when the leak investigation is finally concluded, it will be finished.
Chairman: Thank you for that. Let us now move to a discussion, if we may, about the parliamentary aspects of this. In your report you say: "The Bill of Rights prevents me saying anything about Parliament except in Parliament". You are in Parliament. This is the moment.
Q144 Mr Heyes: As part of our inquiry into inquiries, we have been looking at practice in the United States and probably because of the much clearer separation of powers there, there is very little use of judicial inquiry, we discover; the process is kept very much within the political arena through Congressional inquiry in particular in that they use counsel to ask questions and cross-examine. You looked at the British equivalent of this, to the extent there is one, as part of your inquiry. I guess you formed a view on the potential role for select committees in conducting inquiries.
Lord Hutton: Yes.
Q145 Mr Heyes: Could you tell us about the view you formed on that and anything that might be helpful?
Lord Hutton: I gave some consideration to it because of the evidence which Dr Kelly gave to the Foreign Affairs Committee. As you ask me a direct question, it did occur to me that a disadvantage in the system is that if a witness is being examined on a particular point, the fact that various members of the committee put various questions to him in succession means that there is not a consistent line of questioning. It might be more effective if only one person had a longer time to put a series of questions and—I did mention this to Mr Donald Anderson, and I do it with some diffidence—whether in some cases it would be advantageous for a committee to instruct counsel, particularly when they want to investigate a particular point, to follow a particular line of questioning. That is one thought that occurred to me.
Q146 Mr Heyes: With that addition, that strengthening of the parliamentary select committee process, could you envisage a parliamentary select committee, a special committee set up by Parliament, carrying out the role that you carried out in relation to the Kelly Inquiry?
Lord Hutton: That would take up a lot of time because, although I tried to proceed with expedition, I heard evidence throughout the day for a number of weeks. It is very time-consuming. I suppose there is a question whether the members of the select committee would have time to do that.
Q147 Mr Heyes: Even with the support of counsel and that is strong support?
Lord Hutton: I think they would have to be there. I read, I think in the explanatory document you issued, that there was a suggestion that you might, as it were, delegate that function to other people. I do not think that would be particularly desirable because if there is going to be an inquiry into facts, it has to be conducted with the same people all the time. I do not really think it is satisfactory to delegate to one person, or to a group of people, fact-finding and then they report back to the committee that has the ultimate responsibility of making a decision. I think there are disadvantages in that.
Q148 Mr Heyes: Would it have helped you if there had been greater parliamentary involvement in setting up your inquiry rather than the friendly chat you had with the Lord Chancellor when you agreed to take the work on? Would it have helped if you had had the greater legitimacy that might have flown from having a parliamentary resolution with agreed terms of reference and procedures for you to follow?
Lord Hutton: If that would have happened, either there would have been terms of reference very similar to those that I was given or if in the debate in Parliament the question had arisen, as it might have done, as to whether the inquiry should be a more wide-ranging one which would relate to intelligence matters generally, as to whether the intelligence was reliable, you would have had different terms of reference, and then I think you would have had a very different inquiry. I think you would not have had a single judge appointed to conduct it. You would have had, as you now have, a committee headed by Lord Butler composed of a number of people who are very experienced in intelligence matters conducting the inquiry. I think that might have happened but it would have been a different inquiry.
Q149 Mr Heyes: That is the thrust of my questions, to discover whether there is an alternate model that has parliamentary involvement. I think the point you make about the potential demands on the time of Members of Parliament to sit on an inquiry as difficult and rigorous as the one you conducted is a good point, but from our evidence in America, it is not an issue for them. Senators and Members of the House of Representatives have equal demands on their time, if not greater than parliamentarians, and they manage to work it because of this involvement of lawyers and counsel.
Lord Hutton: Yes. There is then the consideration that Mr Trend referred to, which is whether in highly-charged political matters if a decision was made which, as I think Mr Hopkins suggested, might result in the downfall of a government, there would be the risk that there would be suggestions that the decision was come to by Members of the Committee having regard, at least to some extent, to political concerns. I think that is a possible disadvantage.
Q150 Mr Prentice: I just wonder if we have the balance right and whether the executive can just walk all over us, that is select committees. I cite this example that the Foreign Affairs Committee wanted to call John Scarlett before them to discuss these matters in camera and Donald Anderson was told that that was not going to happen. You come along with your inquiry and John Scarlett appears in front of you. There are a lot of people in Parliament who think that select committees cannot do the job properly because we do not have the tools to do the job and there is pressure now to review the Osmotherly rules which deal with this. Do you think that select committees, with all their imperfections, the 11 or 12 of us sitting around here, could do a better job if we had the kind of tools at our disposal that you have?
Lord Hutton: I am a little diffident to express a view on that because I think it is very much a matter to be resolved between Members of Parliament and the Government. As I understand it, the ability of a select committee to enforce the attendance of a witness depends on them going back to the House of Commons and obtaining a vote in the House of Commons that the person is in contempt of Parliament if he does not come. As I understand it—I may not be correct—that may well be influenced by political considerations and if a government minister has decided that it is not desirable that a witness should appear, that view will presumably be reflected in the vote in the House of Commons.
Q151 Mr Prentice: It is theoretically possible but it is a kind of nuclear option that the Foreign Affairs Committee goes back to the full House of Commons and says, "We demand the attendance of John Scarlett"?
Lord Hutton: Yes, I think that is a different concept.
Q152 Mr Prentice: In practical terms, life is not like that, is it?
Lord Hutton: No.
Q153 Mr Prentice: I am just wondering, and if you do not have any thoughts about this, that it is fine, how the Osmotherly rules apply?
Lord Hutton: I think it is perhaps not a matter for me really to comment on that. I think it is a matter for resolution between Parliament, the House of Commons, and the Government.
Q154 Mr Prentice: I only press you on this because you said earlier that because of the Bill of Rights you could not, as a serving member of the judiciary, intrude on parliamentary matters. Now that you have resigned, and given that we are talking about all the various permutations of inquiries that there are, and given that select committees regularly get hauled over the coals by the press for inadequate questioning and we are all useless or what have you and given that we are addressing this issue, which may involve strengthening and beefing up select committees to improve parliamentary scrutiny, I am just interested in your reflections on the matter.
Lord Hutton: I would like to confine myself to what I have said.
Q155 Mr Brennan: May I say, Lord Hutton, with all due respect, that that is a little bit disappointing. Now that you have retired as a very eminent member of one branch, if you like, of the state, of the judiciary, and where we are in the parliamentary branch and we have to scrutinise the executive and so on, it is rather disappointing that, now that you have retired and there is the opportunity perhaps for you to speak freely, you feel unable to share matters—and I understand that perhaps you have not thought it through and you do not have any particular views—and you would feel unable to share your views on this pretty crucial central part of our inquiry. Is there really anything that restricts you from being able to say something to us about this?
Lord Hutton: I think even a retired judge should be a little slow to express matters as to how Parliament should work. I have said, and I will certainly expand on it a little if you would like me to, that I think there are difficulties. If parliamentary select committees had the sort of power which is under consideration to insist that a civil servant appears before it, even if the minister objects, it is going to give rise to important questions as to how much time a select committee can spend and how the procedure will operate. As I have said, if you are going to have that sort of procedure, thought would have to be given to the method of questioning and that there should be more consistent questioning by one person, whether the chairman, some delegated member of the committee or counsel. There is also the potential problem that if a decision has very important political consequences, there may be suggestions that the ultimate decision of the committee is to some extent influenced by those considerations. I think there are all those important matters to be borne in mind.
Q156 Mr Brennan: You understand why this is important to us. Occasionally, perhaps understandably, we sometimes get a bit of a hammering from the Fourth Estate and we are mocked for our efforts, but we are operating a pretty shoe-string operation to try to delve into these matters. We were wondering if you could put some lead into our pencil as far as what we have to report at the end. What you say on the record here might be helpful in strengthening Parliament's role in this regard. Would you think that was desirable and would you care to support the proposition that perhaps you ought to help us in that regard?
Lord Hutton: I will say this. If you take the view, subject to the various qualifications that I have mentioned that I think are generally recognised, that it is desirable that a select committee should have more power, in particular a power to enforce the attendance of witnesses, I think it is clear that the rules will have to be changed and the House of Commons itself will have to give you that power.
Q157 Mr Brennan: Would you personally support that approach, having been through your inquiry and having observed the efforts of parliamentary committees to get to the truth? Would you support a change of that kind?
Lord Hutton: I think there is a strong argument in support of that view, yes.
Q158 Brian White: One of the constraints of a parliamentary committee is its budget. Was there any constraint on your budget and who as responsible for your budget?
Lord Hutton: The Secretary of the Tribunal was responsible for the budget and for vetting the legal costs. I am satisfied he did that. There was no constraint on the budget in the sense that I was told, "You must conclude this inquiry within a certain number of weeks". I was asked to conduct it urgently. I think that was largely because of the public concern about the matter, but I was certainly not subject to constraints. I was aware of the importance of conducting the inquiry with expedition and keeping the costs within reasonable limits.
Q159 Brian White: But you set the overall terms, the amount of money that you were going to spend on appointing counsel. You were under no constraints as to who you could choose?
Lord Hutton: No, I was not under a precise constraint.
Q160 Mr Prentice: May I ask a final question about the Butler Committee? I understand you may want to be very circumspect. Is there any advantage really in pressing ahead with an inquiry when its terms of reference have been challenged and when two of the three main political parties have, in effect, boycotted it? Would you feel able to express a view on that?
Lord Hutton: I think that is a very political question.
Q161 Chairman: We are very political people.
Lord Hutton: I appreciate that.
Q162 Chairman: You can see why we press you on the Parliament question. We have an irony, do we not, that there you are with no formal powers at all and you can summon all these people, see all the papers and let it all hang out; and here are we, as one of our colleagues said as a member of the Foreign Affairs Committee to Dr Kelly, "We are the High Court of Parliament". Do you see the contrast?
Lord Hutton: Yes, I appreciate that.
Q163 Chairman: We are looking to you to tell us how we could invent a device that would make the High Court of Parliament able to do a job that we do not have to contract out to people like you all the time, if you see what I mean. Can you help us with that?
Lord Hutton: Subject to the qualifications I have mentioned that it would be very time-consuming, that there might be suggestions to some extent of political leanings, I think the most effective step would be that the committee should have the power to summons witnesses and to insist on the production of documents. That is clearly the most effective step.
Q164 Chairman: And employing counsel?
Lord Hutton: I think there would be advantages in that, yes.
Q165 Chairman: Are you in the market? Are you in the market?
Lord Hutton: I have had my days at the Bar.
Q166 Chairman: May I ask you a couple of final matters? It seems to me, reading your report again, that the only, as it were, judicial obiter dictum that you give us relates to the media?
Lord Hutton: Yes.
Q167 Chairman: Why did you feel that you just wanted to say something about them and nobody else?
Lord Hutton: The reason was that, in its concluding submissions, the BBC stated that there was a human right to give information to the public. I thought it was necessary to point out, as the House of Lords had said in the case of Reynolds v Sunday Times, that an important consideration is that the reputation of people should not be debased by allegations of fact and that that is a qualification to the right of expression by the media. It was in response to a point that had been expressly raised by counsel. The judgment in the Sunday Times went on to speak about qualified privilege and about certain circumstances in which there can be comments made on people's reputations, but the House of Lords made it clear that that is only in special circumstances which have to be very carefully weighed. It was not something that I inserted, as it were, out of the blue. It was a point that was expressly raised by counsel for the BBC and Mr Gilligan in the submissions, and I thought I should deal with it.
Q168 Chairman: I shall resist the temptation to go further down that road just as we end. Anne Campbell asked you whether you would do it differently. Could I ask you if you would ever do it again? If the call comes again, would you do another one?
Lord Hutton: I have now retired. I am looking forward to some leisure. I probably would say that I have performed my duty in this inquiry and I would prefer a younger person to take it on.
Q169 Brian White: Should judges do more than one?
Lord Hutton: I think probably not. They are extremely onerous. On the other hand, Lord Scarman, who has a very fine reputation for his conduct of inquiries, conducted I think probably three inquiries and did that extremely well, so I think it is appropriate in some cases. In practice, I think a judge is only asked to do one major inquiry.
Q170 Chairman: You do not think it is like surgeons; the more they do, the better they get?
Lord Hutton: One certainly learns from doing it.
Chairman: May I say to you that we have really enjoyed our session with you. We have thoroughly enjoyed the role reversal involved here. I hope you have not found it too disagreeable. We have learnt a lot from you which we will draw upon in our own inquiry. Thank you very much indeed.