Select Committee on Public Administration Minutes of Evidence


Examination of Witness (Questions 200-219)

RT HON LORD FALCONER OF THOROTON

25 MAY 2004

  Q200 Mrs Campbell: Just to quote to you what the panel of the Bristol Royal Infirmary Inquiry said in its final report because it said that there should be no winners or losers. "We have no need for a theatre of confrontation", and they go on to say that it should not be adversarial, it should be investigatory. Are you saying then that the Hutton Inquiry was actually a one-off and that it was rather different from the other sorts of inquiries that we have had?

  Lord Falconer of Thoroton: What Lord Hutton did, I think very impressively, in his process was very much focus on the idea he wanted it to be inquisitorial, not adversarial. He had a two-stage process where in effect he called the first tranche of witnesses and he or his counsel asked all the questions and he did not allow a great proliferation of people to be represented by lawyers all of whom asked questions. He then had very limited cross-examination on particular issues by certain parties, not as a means of setting up an adversarial arrangement but as a means of allowing his inquiry to probe more deeply than the first tranche allowed. I would say in terms of process his inquiry looked like a good way of doing it because it did focus on inquisition. What I was saying was should there have been lots and lots of recommendations like there were, for example, in relation to BSE? No, I do not think so because the facts leading up to Dr Kelly's death were very much an unusual set of circumstances.

  Q201 Mr Liddell-Grainger: Just a couple of things you said. You said we had a clearer picture. Do we have a clearer picture? We are now into the Lord Butler inquiry. Lord Hutton said, and it was remarked on by Kelvin, that he realised the Intelligence Committee information he was getting as he went along was changing and he felt at the time during the inquiry it was getting more and more difficult to know exactly where he was going.

  Lord Falconer of Thoroton: He being?

  Q202 Mr Liddell-Grainger: Lord Hutton. It was getting more and more convoluted because there was more and more information coming through certainly on the intelligence side. I do not think we did get a clearer picture at the end of the day because at the end of the day the furore then pushed you into a situation where we had to go to the Lord Butler inquiry.

  Lord Falconer of Thoroton: What Lord Hutton was asked to inquire into was the circumstances leading up to the death of Dr Kelly. I think what Lord Hutton's report does is provide a very clear narrative of what happened to Dr Kelly from the time he sees the journalist in the hotel and indeed before and then the story of what happened to him from then up to the time that he committed suicide, and it is a very, very clear narrative of what happened and it provides, I think, very real insights into the particular pressures and the particular events that were happening to him, and that was what Lord Hutton was asked to investigate and he told, I believe, a very clear story in relation to that. The issues that have arisen in commenting on Lord Hutton have been about things like was it a good or a bad thing for the Government to allow the name to come out in the way that it did? Did the BBC behave well or badly in relation to the way that they dealt with the aftermath of the broadcasts on the Today programme? Is anybody in any doubt about what actually happened in the build up to the release of Dr Kelly's name to the press? Is anybody in any doubt about what in fact the BBC did do after the issue arose over the broadcasts on the Today programme? I do not think they are and I think the great service that the inquiry has done is to provide this narrative, which I think is moderately authoritative.

  Q203 Mr Liddell-Grainger: Moderately authoritative, those are probably the words, are they not, so that now we have got to go not back through the whole story obviously but we are now into another inquiry to study what went on. We are following it on. It is Hutton part two but Lord Butler part two.

  Lord Falconer of Thoroton: Lord Butler's inquiry is into the use of intelligence throughout the build-up to the war. It is a totally different issue that is being looked at by that inquiry. The motivation for the appointment of Lord Hutton was because of the inevitable—and this is a word that is perhaps understated—disquiet and anxiety that would be caused by the death of Dr Kelly and the need for an authoritative account of what had happened, which is a different issue from how well or how was intelligence used in the build up to an armed intervention. Those seem to me to be two totally different sorts of issues. Of course Lord Hutton needed to look at the intelligence in order to understand how it would impact on what happened to Dr Kelly but that was not the focus of his inquiry, the focus of his inquiry was what were the circumstances leading to Dr Kelly's death.

  Q204 Mr Liddell-Grainger: Say I were to disagree with you, and in fact I do disagree with you because I believe that Lord Hutton made it clear he felt that he was uneasy with the intelligence that he was getting because obviously it was behind close doors and he was working on his own on this. If you are saying we have now got to go through again on the intelligence side should we not have taken that up the first time? Did he bring any concerns to you that he was having problems with the amount of intelligence he was being given or the access he was being given on intelligence matters?

  Lord Falconer of Thoroton: No, he did not, and I read his evidence as in effect saying, "I was asked to inquire into the death of Dr Kelly. I did not need to go into all the intelligence issues in order to reach adequate conclusions in relation to that."

  Q205 Mr Liddell-Grainger: You said that a good inquiry should not be confrontational, it should get to the bottom of things. If you are going to look at changing policy or you are looking at policy matters, there was one other inquiry that was highly emotional and that was Dunblane, not under your watch I accept that. That changed policy dramatically. It was also highly emotive for obvious reasons we do not need to go over. In many ways it was similar where somebody had done something appalling and that was held under the 1921 Evidence Act. Do you think looking back on it that there were enormous similarities between the two in that it came down to policy matters.

  Lord Falconer of Thoroton: The Dunblane Inquiry and the Hutton Inquiry?

  Q206 Mr Liddell-Grainger: Yes, to do with policy.

  Lord Falconer of Thoroton: I had not thought about the comparisons. Everybody feels that the Dunblane Inquiry was a very successful inquiry.

  Q207 Mr Liddell-Grainger: I am not disputing that, Lord Falconer.

  Lord Falconer of Thoroton: Were they similar? They feel very different. I have not looked in detail at how Lord Cullen conducted the Dunblane Inquiry but I assume the issues that he was looking into was how did the person who committed the murders in Dunblane get a gun and why was it not properly supervised? Those looked to me to be much more straightforward. They were very, very charged but they look policy issues of a different sort to what it was that led to this rather unusual set of circumstances.

  Q208 Mr Liddell-Grainger: You knew when you started the inquiry off with the Prime Minister that policy change was in the air. It had to be in some form because of the way that intelligence came in and the way that the BBC handled things (and the BBC is still state-owned) and there were other areas to do with the way Parliament informed the relevant select committees which was potentially a policy area because of the situation with Dr David Kelly. Policy obviously is something that is very profound because we deal with it all the time. Do you think looking back on it—and Dunblane can be coming into that—that policy changed and that maybe we need to put this on a more formal basis and not have non-statutory inquiries?

  Lord Falconer of Thoroton: I do not think the question of whether or not Lord Hutton's inquiry was statutory or non-statutory is particularly relevant. The only advantage of the statutory inquiry is you get everybody to co-operate. If Lord Hutton's had been a 1921 Act inquiry he would never have had to have used any of his powers to compel documents or witnesses to turn up because they all came, so I do not think the issue is compulsion or not.

  Q209 Mr Prentice: Hutton had his critics of course. Greg Dyke called it a "cut-and-paste job" but Greg Dyke had an axe to grind I suppose. We have had criticisms from eminent people such as Geoffrey Howe in a piece in The Times on 5 February this year. It was headlined "Three wise men will always be better than one". I want to pick up the points Sydney and Kelvin made. Geoffrey Howe said that the Hutton Inquiry had a seriously misjudged shape and he went on to say would it not have been better if, say, a former Chairman of the Joint Intelligence Committee and a former Chairman of the BBC had flanked Lord Hutton as assessors. My question is this: had that been the case do you think the outcome of the report would have been different in any material respect?

  Lord Falconer of Thoroton: I come back in a sense to something that underlies Ian's questions. The purpose of the inquiry was to answer the question why did Dr Kelly die. That would inevitably require you to traverse issues about what had happened with the media and how government had operated but that was the driving theme for the terms of reference. It was not an inquiry like, for example, the Franks Inquiry on how did the Government behave in the build-up to the loss of the Falklands or what went wrong that led to the way that BSE was treated over a period of time.

  Q210 Mr Prentice: I understand.

  Lord Falconer of Thoroton: Gordon, you are saying in effect you need two experts to tell you—

  Q211 Mr Prentice: Geoffrey Howe was saying it.

  Lord Falconer of Thoroton: I apologise. Lord Howe's article is saying you need a JIC expert and a media expert to tell you how these organisations operate, but if what you are asking the inquiry to look into is what led to Dr Kelly's suicide, of course you are going to go over that ground but that is not the main questions that you are asking.

  Q212 Mr Prentice: I know Hutton did not make recommendations but he did talk about editorial procedures and the BBC, not just the famous 6.07 broadcast by Gilligan but he talked about the responsibility of editors and stuff being scripted. It is 6 o'clock in the morning. I just wonder how realistic that is. We are talking about an inquiry which will have huge implications that we do not know yet for our national broadcaster for how the BBC collects, disseminates and broadcasts information we all rely on. These were pronouncements, as Lord Howe said of a judge sitting alone, an eminent, wise man but perhaps his perspective would have been slightly different. You understand what I am saying?

  Lord Falconer of Thoroton: I will be careful not myself to argue and re-argue the conclusions of Lord Hutton, but in relation to the conclusions he reached on the duty of care owed by government departments to their civil servants and in relation to issues such as the scripted issue and the issue of how should a corporation like the BBC deal with complaints made in the circumstance that were made, I wonder how much dispute there is about the precise detail of the complaints that he made. Most of the coverage of the report has been that it is unbalanced, it is said, by critics of the report, it is too much focused on what the media did in terms of criticism and too little focused on what happened within the Government. That is simplifying it slightly. If you go to each individual issue that was raised and a comment made by Lord Hutton like the scripting or like how should they have dealt with the complaint, I am not sure people do say he came to a wrong conclusion on that specific. I am not sure that what we were dealing with in these bits of the Hutton Inquiry are issues of a sort where you would need expert guidance sitting beside you before you reached those conclusions.

  Q213 Mr Prentice: Is Hutton a kind of template that we ought to look to in future or are any criticisms of the process valid? I am not asking you to criticise the judge for God's sake, I am just saying are any of the criticisms valid?

  Lord Falconer of Thoroton: Anne rightly identified that Lord Hutton did not reach conclusions which everybody instantly accepted. Indeed, there were significant complaints subsequently in the press. As the inquiry was going on, as an outsider like everybody else, I thought broadly the process he adopted was a sensible process because it struck a very sensible balance between avoiding long drawn out rows between parties. It was extraordinarily open and he very much let the facts speak for themselves so I do not think we should refuse to learn lessons from Lord Hutton's process simply because at the end of the day there was not universal acceptance of his conclusions.

  Q214 Mr Prentice: Can I pursue the matter of process a bit more. He got a bit of criticism—and I raised this with Lord Hutton—that the Prime Minister was not invited back for cross-examination. These are my words not his; he did not wish to give the press a field day and he saw no reason for the Prime Minister to be invited back. Do you think people who are critical of that have got a point?

  Lord Falconer of Thoroton: Because Lord Hutton's report contains no criticism of the Prime Minister, there is nothing at all odd or inconsistent about him not calling the Prime Minister back to be cross-examined because the people he calls back for cross-examination are, in effect, those who should be given an opportunity to answer the criticisms that he is thinking of putting in his report, so it seems to me to be an entirely consistent approach. What is the point of calling back somebody for cross-examination if you are not minded to criticise them.

  Q215 Mr Prentice: When the Prime Minister said he had nothing to do with the decision to out Dr Kelly and then we found out that there were huge numbers of meetings at Number 10 that were not minuted and the Prime Minister was there in the presence of the leaders of the intelligence community, would that not provide scope just in the interests of pursuing truth for the Prime Minister to be invited back and asked about these matters?

  Lord Falconer of Thoroton: But Lord Hutton deals with that. He does not, as I recall, again I am being careful to try and not get into—

  Q216 Mr Prentice: No.

  Lord Falconer of Thoroton: —Is there not a bit in Lord Hutton's report where he deals with alleged inconsistency between what the Prime Minister has said on the plane and what then subsequently emerged, and he said he did not believe there was an inconsistency between the two.

  Q217 Mr Prentice: I do not want to get sucked into the details and I know the Chairman would not allow me to.

  Lord Falconer of Thoroton: Just to take that as an example, there would not be much point in bringing the Prime Minister back to deal with that point when he did not believe there was an inconsistency and it was not a central theme of the report.

  Q218 Mr Prentice: Again on process matters, this business of taking evidence on oath, when I asked Lord Hutton about this he hesitated for a few seconds, thought about it, and then he told the Committee that he did not think it would have made any difference having all the people before him giving evidence on oath. What is the point of asking people to give evidence on oath?

  Lord Falconer of Thoroton: In court it is because if you give evidence under oath and then lie you have committed the crime of perjury. Separately from crime, giving evidence under oath carries with it some degree of marking the solemnity of what you are doing and making it clear that this is a matter of real importance. I would tend to share Lord Hutton's judgment in relation to whether or not an oath would have made any difference on this particular occasion because, remember, I do not think anybody was minded to lie in relation to what happened and also there were huge amounts of documents, e-mails, et cetera, et cetera, et cetera. It was pretty possible to put together the basic facts from the documents that were visible. There were gaps obviously and there were bits that were not documented but huge amounts of it were.

  Q219 Mr Prentice: You just referred to the documents and so on and all this stuff is posted on the Internet. When I asked Lord Hutton about this and whether he had reflected on the implications for the machinery of government, he shook his head and he said that no he had not. Did it come as a great shock to you as a senior member of the Government to see all this stuff—secret, confidential e-mails—being posted on the worldwide web and Lord Hutton seemed to just stumble into this decision?

  Lord Falconer of Thoroton: No because I assumed two things, one, that we would be completely open with the inquiry because it had to be an inquiry that people had confidence in as getting to the definitive facts and, two, it had to be in public. There might be bits of intelligence that would not come out but broadly I expected openness and I expected Lord Hutton to make all the material available. It was not like a court case in many respects but if there is a public hearing in court or if there is a public inquiry it is not just what people say that becomes public, it is all the documents that the tribunal is looking at as well because the public cannot understand the discussion between the witness and either the counsel to the inquiry or the inquirer unless they see the documents as well.


 
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