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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