Hearing Transcript -25 September 2003 Morning

8/8/2019 Hearing Transcript -25 September 2003 Morning

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Hearing Transcripts

1 Thursday, 25th September 2003

2 (10.15 am)3 CLOSING STATEMENT by MR GOMPERTZ

4 LORD HUTTON: Good morning ladies and gentlemen. Yes5 Mr Gompertz.6 MR GOMPERTZ: May it please your Lordship. In the first7 part of my speech it is my intention to outline some of8 the personal views of the Kelly family of the failures9 which led to the tragedy of Dr Kelly's death.10 The second part of my address will be a very brief11 analysis of some of the evidence which has been given to12 the Inquiry. Constraints of time mean that a full oral13 review is simply not possible. It is proposed to tender14 written submissions which will amplify my oral remarks.15 The Kelly family accept that your Lordship may well16 find that various individuals were blameworthy, but

17 unlike so many families caught up in a personal tragedy18 of this kind, the Kelly family are not seeking revenge19 or retribution against individual scapegoats.20 The principal aims of the family in this Inquiry21 are: (1) that the duplicity of the Government in their22 handling of Dr Kelly should be exposed; and (2) that the23 systemic failures at the Ministry of Defence should be24 identified and remedied so as to ensure, as far as is25 humanly possible, that no-one else should suffer the

11 ordeal endured by Dr Kelly.2 If, however, in order to achieve their goal it is3 required that there should be some criticism of4 individuals then the family accept this as a necessary5 step towards their objective.6 Unfortunately, it would appear that there is still7 a long way to go before this objective is achieved8 judging by the interim written submissions of the9 Government, and by some of the evidence given to10 the Inquiry in phase 2.11 With the exception of the Walter Mitty slur, the12 Government and the MoD do not accept that any criticism13 should be made of any Government action or that any14 blame should attach to any individual involved in the15 events leading up to Dr Kelly's death. This should be16 contrasted with the approach of the BBC in being17 prepared to make admissions and accept criticism.18 Recently, Mrs Kelly and her daughters have been19 deeply hurt and angered by the evidence given last week20 by Mr Richard Hatfield, Ministry of Defence Director of21 Personnel. He said that Dr Kelly was responsible for22 a fundamental failing in meeting Mr Gilligan. Secondly,23 that with hindsight he, Mr Hatfield, might well have24 initiated formal disciplinary action against Dr Kelly25 and suspended him; and, thirdly, that the Ministry of

21 Defence gave Dr Kelly outstanding support.2 The family perceive the first of these remarks as3 the arrogant dismissal of Dr Kelly as the author of his


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4 own misfortune. The second remark is particularly5 surprising since, in his minute to Sir Kevin Tebbit on6 7th July of this year, Mr Hatfield reported, and7 I quote:8 "Apart from the very unwise comment, he [Dr Kelly9 that is] appears to have said no more than he or others

10 working for the MoD might have said at a public11 seminar."12 Indeed, Mr Hatfield reached a decision in that first13 interview on 4th July, very quickly, that it was14 inappropriate to institute disciplinary proceedings15 against Dr Kelly.16 Thirdly, were the matter not so serious, the family17 would find the assessment of the support given to18 Dr Kelly as outstanding to be risible. The family19 consider that there was a huge failure in the Ministry20 of Defence in Dr Kelly's line management and in the21 manner in which his name was released into the public22 domain. His line management was so complex that it was

23 very hard, if not impossible, for him to know to whom he24 should address an application for authority for a media25 contact.

31 Never again should someone be put in such2 a position. Never again should a civil servant be3 publicly named if there is an alternative route to4 a legitimate objective which can be achieved without5 naming him. Never again should there be such feeble6 support for an employee in a time of crisis.7 A glaring example is that the press office failed to8 telephone Dr Kelly to warn him that his name was known

9 to journalists, apparently because it was thought that10 it was appropriate for Dr Wells to break the news to11 him. Sadly, the press office had not even bothered to12 obtain Dr Wells' telephone number, even though it was13 anticipated by many in the Ministry of Defence that the14 public identification of Dr Kelly was imminent.15 The family also wish me to mention the contribution16 of the culture of the media to the tragedy of Dr Kelly's17 death. The style of the Today Programme in apparently18 making news as opposed to reporting it, the conduct and19 confrontational approach of some investigative and20 political journalists and the conduct of some of the21 photographers all played a part in the harassment of22 both Dr Kelly before his death and of the family after23 it.24 Dr and Mrs Kelly were forced to flee their home at25 10 minutes' notice to escape the media pack. Dr Kelly's

41 attendances before the FAC and the ISC were accompanied2 by intense media scrutiny including, of course, live3 television coverage of his evidence to the FAC. The4 effect of all this media attention upon an extremely5 private and retiring man should not be underestimated.6 The media frenzy continued after his death with7 reporters and photographers at the gate of the family8 home, and photographers lying in wait when the family9 visited the coroner.


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10 This treatment of a grieving family by the media is11 wholly unacceptable. As one member of the family puts12 it, and I quote, "We would like to see the media raise13 its game."14 I turn now to the evidence. Perhaps the first15 question to be asked is: was Dr Kelly guilty of

16 a fundamental failing in meeting Andrew Gilligan on17 22nd May, as characterised by Mr Hatfield? The answer18 to that question is undoubtedly: no. The starting point19 is that the procedures which purported to regulate20 contacts between Dr Kelly and the media were hopelessly21 confused. The Inquiry will note that the MoD has failed22 to point to a single unambiguous clearly expressed23 paragraph in any document which purports to regulate24 Dr Kelly's contact with the media.25 The witness called for the purpose of explaining the

51 regulation of such contact was Mr Richard Hatfield. He

2 relied on different documents at different stages of3 the Inquiry to justify his suggestion that Dr Kelly was4 guilty of a fundamental failing. When he first gave5 evidence, Mr Hatfield suggested that three documents6 regulated Dr Kelly's contact with the media, namely the7 MoD personnel manual, the DSTL procedure for conduct and8 the Civil Service code of conduct.9 Since Dr Kelly was employed by the DSTL, albeit he10 also worked for the MoD and the FCO, as well as for11 UNSCOM and UNMOVIC on behalf of the United Nations, it12 was, presumably, to the DSTL regulations that he should13 have turned for guidance. These require that an14 employee wishing to engage in media activities should

15 seek the consent of his line manager, which must be16 given in writing. These conditions were never --17 I repeat never -- applied to Dr Kelly's activities. No18 witness at the Inquiry has said that there was any19 expectation that Dr Kelly should seek consent from his20 line manager or that his consent should be given in21 writing. Detailed written submissions will be made on22 the relevance and applicability of the other documents.23 More recently, the Ministry of Defence, again24 through Mr Hatfield, when he returned to the witness box25 on 18th September, has placed reliance on the Defence

61 Council Instructions of 1999 as being a document which2 regulated Dr Kelly's contacts with the media. This is3 remarkable because at the outset of the Inquiry the MoD4 provided the Inquiry with those documents which it5 believed regulated Dr Kelly's contact with the media.6 The MoD also provided the Inquiry with a note7 entitled "MoD background note on Dr Kelly", which was8 compiled after his death. There is no mention of the9 Defence Council Instructions in the conditions of10 employment set out in this note. It thus appears that11 by the start of the Inquiry the MoD had not managed to12 find the DCIs of 1999 which are now said to be relevant13 and of which Dr Kelly ought to have been aware. Indeed,14 the document did not surface until sent to the Inquiry15 by fax at about 11 o'clock in the morning on


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16 17th September.17 It is submitted that this episode reflects poorly18 upon Mr Hatfield. The Inquiry is invited to disregard19 his evidence that these documents or a combination of20 them regulated Dr Kelly's contact with the media.21 The reality of the situation is that there was an

22 ad hoc informal arrangement which had existed for many23 years and which reflected Dr Kelly's special position.24 When, on 9th August 2002, Dr Wells introduced himself to25 Dr Kelly as his line manager, Dr Kelly informed Dr Wells

71 of the existing arrangements for his contact with the2 media. Neither then nor at any later stage did3 Dr Wells, or indeed anyone else, suggest any change in4 these arrangements which were that he should normally5 seek authority for a media contact from Mr Lamb and the6 FCO press office.7 In any event, it was, of course, part of Dr Kelly's

8 job to communicate with the media. Indeed, Mr Lamb9 describes him as an accomplished media performer. To10 a substantial extent, Dr Kelly was left to use his11 discretion, we submit, as to the conduct of his contacts12 with journalists. Dr Kelly made this clear in his13 letter of 30th June and it is confirmed by14 Mr Patrick Lamb in a memorandum prepared after15 Dr Kelly's death in which he said, and I quote:16 "This system, which ultimately relied on17 self-discipline and judgment on all sides, worked well18 and provided the media with expert background briefing19 and led to no embarrassments for Her Majesty's20 Government over the period 2000 to 2002."

21 The next question which falls for consideration is:22 what was the purpose of the meeting between Dr Kelly and23 Mr Gilligan? It is common ground between them that the24 intention was to have a general discussion about Iraq25 where Mr Gilligan had recently been covering the war and

81 where Dr Kelly had not been for several years. There is2 no evidence that the dossier was mentioned before the3 meeting. Upon the basis that the purpose of the meeting4 was a general discussion of Mr Gilligan's experiences in5 Iraq, it is hard to determine from whom and for what6 purpose Dr Kelly ought to have sought authority.7 Indeed, the Inquiry might like to consider whether it8 was necessary for Dr Kelly to seek permission at all for9 such a meeting. Moreover, there is no reason whatever10 to suppose that authority would have been refused if11 requested.12 Further, Dr Kelly did report to Mr Lamb after the13 event that a meeting had taken place, albeit the report14 was no more than a mention at a time when Mr Lamb was15 extremely busy. The report clearly registered with16 Mr Lamb since he was the genesis of the investigation17 into the matter. Indeed, it could well be that had18 Mr Lamb not been so busy at the time, that Dr Kelly19 would have sat down in Mr Lamb's office, as was his20 custom, and given a full report of the meeting with21 Mr Gilligan.


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22 It is apparent that Dr Kelly made no attempt to23 conceal his contact with Mr Gilligan. This may indicate24 that he felt that he had nothing to hide. It is25 accepted, however, that he might have been more prudent

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1 to have gone further and sought out Mr Lamb when he was2 not so busy and informed him of the content of the3 discussion with Mr Gilligan.4 The next question is: what did Dr Kelly say at the5 meeting of 22nd May? There are a number of sources for6 Dr Kelly's account of the meeting. They are his letter7 of 30th June, his interviews on 4th and 7th July, his8 evidence to the FAC and the ISC and his accounts to his9 family and his friends.10 It is submitted that his account has been11 substantially consistent, accurate and truthful. By12 contrast, Mr Gilligan's accounts of the meeting in his13 evidence and elsewhere have been demonstrated to be

14 unreliable, particularly with regard to the words spoken15 by Dr Kelly.16 There are four reasons why we submit that17 Mr Gilligan is unreliable and that no credence should be18 given to his evidence save where it is corroborated from19 an independent source.20 The first is this: Mr Gilligan's account of the21 chronology and progress of the meeting is irreconcilable22 with the physical evidence disclosed by expert23 examination of his Sharp organiser.24 Secondly, his account of the meeting, as given in25 evidence, is in many respects inconsistent, first, with

101 the material generated by himself in preparation for the2 broadcasts on 29th May; secondly, it is inconsistent3 with the broadcasts themselves; and, thirdly, it is4 inconsistent with his article in The Mail on Sunday on5 1st June.6 The next reason why we submit that Mr Gilligan's7 evidence is unreliable is that he has lost his8 manuscript note made after the meeting with Dr Kelly.9 This casts considerable doubt on the content of the10 conversation.11 The fourth reason is this: that Mr Gilligan has12 proved himself to be an unreliable historian in other13 respects. For example, the changes in his account of14 the number of meetings he had with Dr Kelly and when15 they took place.16 Worthwhile scrutiny of the evidence concerned with17 these topics, particularly with regard to the18 examination of the Sharp organiser, is a complex matter19 requiring detailed analysis of the material. This is20 best left to be dealt with in written submissions.21 I turn, now, to consider whether there was22 a Government strategy to use Dr Kelly for political23 purposes in its dispute with the BBC.24 LORD HUTTON: Mr Gompertz, just before you turn to that25 subject, may I ask you: does the transcript of

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1 Miss Susan Watts' conversation with Dr Kelly on 30th May2 help to cast light on what Dr Kelly may have said to3 Mr Gilligan?4 MR GOMPERTZ: Yes it does, my Lord.5 LORD HUTTON: If Dr Kelly had made a reference to the6 45 minutes claim arising from a single source, would

7 that have been an appropriate observation for him to8 have made to Mr Gilligan?9 MR GOMPERTZ: No, my Lord, it would not.10 LORD HUTTON: Yes. Thank you.11 MR GOMPERTZ: My Lord, I was turning to consider whether12 there was a Government strategy to use Dr Kelly for13 political purposes in its dispute with the BBC and14 whether the decision to confirm Dr Kelly's name was made15 for improper reasons.16 The family invite the Inquiry to find that the17 Government made a deliberate decision to use Dr Kelly as18 part of its strategy in its battle with the BBC. This19 strategy included putting Dr Kelly forward as a witness

20 before the FAC and ISC in an attempt, which was21 successful, to undermine the evidence which Mr Gilligan22 had given and to show him to be unreliable.23 This strategy was suggested in cross-examination to24 a number of witnesses before the Inquiry. It was25 systematically denied. The hypocrisy of these denials

121 has now been demonstrated by the disclosure of some2 passages from Mr Campbell's diary. This document is one3 of the few if not the only contemporaneous record of4 events which was uninhibited by the prospect of5 subsequent scrutiny.

6 The family submit that it is a compelling document.7 On Monday morning this week, the Secretary of State8 for Defence denied that there was any Government9 strategy to name Dr Kelly without giving the appearance10 of doing so. Immediately he left the witness box the11 passages from the diary were disclosed by the Inquiry.12 Although we had no opportunity to cross-examine Mr Hoon13 upon them, they indicate, with clarity, if accepted by14 the Inquiry, that the Secretary of State's denials of15 the Government's strategy put to him in16 cross-examination were false. Indeed, they reveal that17 he was an enthusiastic supporter of the proposal to put18 Dr Kelly's name into the public domain.19 This is totally contrary to his previous stance,20 much repeated when he gave evidence in phase 1 of21 the Inquiry, that it would have been wrong to name22 Dr Kelly until it was clear that he was Mr Gilligan's23 single source and that that was never clear in24 Dr Kelly's lifetime.25 As late as yesterday morning we saw, for the first

131 time, an e-mail which I would ask be put on the screen.2 The reference is MoD/44/15. It is dated 9th July and3 was sent by Mr Hoon's private secretary,4 Mr Peter Watkins, to Mrs Wilson in the Ministry of5 Defence press office. The relevant portion reads:6 "Jonathan Powell has separately suggested to SofS


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7 [stands for Secretary of State] that we should simply8 name our man, but left the decision to Mr Hoon who has9 not yet reached a final view."10 This document, which I highlight because of its late11 disclosure, shows that the Government had it in mind to12 name Dr Kelly on 9th July and that it was Mr Hoon who

13 was to make the final decision as to how the identity of14 Dr Kelly should enter the public domain. This document15 demonstrates, once again, the hypocrisy of Mr Hoon's16 public stance on the matter in phase 1 of the Inquiry.17 Curiously, neither Mr Hoon nor Mr Powell saw fit to18 mention this e-mail during their evidence. We were19 unable to cross-examine upon it because we did not know20 about it.21 If, as the family submit, there was a strategy to22 out Dr Kelly so that he could be used as a witness to23 undermine Mr Gilligan in furtherance of the Government's24 dispute with the BBC, this was a cynical abuse of power25 which deserves the strongest possible condemnation.

141 The evidence of this strategy and the decision to2 put Dr Kelly's name in the public domain for political3 advantage is derived from multiple witnesses and many4 documents.5 The principal documentary sources of this evidence6 are: first, the MoD press statement of 8th July; second,7 the deployment of the question and answer material on8 9th July; third, the information given in the two Lobby9 briefings at 11 am and 3.45 pm on 9th July and, as10 indicated, fourthly, the entries in Mr Campbell's diary,11 principally those on the 8th, 9th and 15th July.

12 There should also be added to this list the failure13 to provide any reasonable explanation of the abandonment14 of the original stance adopted in the Q and A material15 of 4th July, when it was stated that the name would not16 be disclosed and there was no benefit in revealing it.17 The content of the press statement, the Q and A18 material and the Lobby briefings has been well rehearsed19 during the evidence. I do not intend, therefore, to go20 through the information which was disclosed to the press21 by these means. It will feature in our written22 submissions.23 What is noteworthy is that it was quite sufficient24 to lead a number of journalists to identify Dr Kelly25 within a couple of hours of the afternoon Lobby briefing

151 on 9th July.2 Mr Campbell's diary requires further comment. The3 entry for 4th July is illuminating. Part of the entry4 reads:5 "GH said his initial instinct was to throw the book6 at him but in fact there was a case for trying to get7 some kind of plea bargain."8 The bargain suggested by the family is that there9 would be no formal disciplinary proceedings and10 therefore no risk of loss of employment, pension rights11 or security status provided Dr Kelly gave evidence to12 the Select Committees in accordance with the directions


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13 or steers with which he would be provided.14 Even if the plea bargain strategy was never15 implemented, the fact that it was contemplated shows the16 direction of thinking of the Government in general and17 Mr Hoon in particular. Mr Hoon, formerly in practice at18 the bar, would undoubtedly know the distinction between

19 a plea bargain and mitigation. The fact that Dr Kelly20 had come forward voluntarily in a spirit of honesty and21 openness would indeed be mitigation but could not be22 brought within the term "plea bargain".23 There is further support of the proposed deal which24 I have mentioned to be found in the entry for 15th July25 in Mr Campbell's diary, where there is reference to, and

161 I quote, "MoD assurances ... he was well schooled",2 meaning that Dr Kelly had been instructed in how to3 answer questions before the FAC.4 The diary entry for 9th July reads:

5 "We kept pressing on as best we could at the6 briefings. But the biggest thing needed was the source7 out. We agreed we should not do it ourselves, so didn't8 but later in the day the FT, Guardian [and] after9 a while Evans got the name."10 This entry was written after the MoD statement had11 been issued on 8th July, thus the fact of the existence12 of the source had already been revealed. It follows13 that on this occasion at least, the phrase, I quote,14 "needing the source out" must refer to the need for the15 identity of the source to be revealed. It is submitted16 that the entries on 6th and 7th July, where there is17 reference to "getting the source up", have similar

18 meanings, namely that the identity of the source should19 be revealed.20 Information was also leaked to journalists. For21 example, Mr Tom Baldwin wrote two articles for The Times22 which were published on the 8th and 9th July.23 Obviously, they must have been written the night before24 publication, that is to say on the 7th and 8th July, yet25 they contained information not yet released into the

171 public domain by the press statement and the Lobby2 briefing. Mr Baldwin told the Inquiry that the sources3 of both articles were, and I quote, "conversations with4 Whitehall contacts".5 It is relevant to consider whether Dr Kelly was6 informed of the proposal to reveal his identity. The7 strategy developed by the Government was even on its own8 case unprecedented. That is the term used in the final9 version of the Q and A material. The duty upon the10 Government to keep Dr Kelly informed was, therefore,11 heightened by the unprecedented circumstances. Yet12 Dr Kelly's consent was not sought to any of the steps13 taken by the Government with the exception of the14 approval of the press statement. The Government has yet15 to explain to the Inquiry why Dr Kelly was kept in the16 dark about the strategy that No. 10 and the MoD had17 developed to confirm his name to journalists if that18 name was put to the MoD press office.


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19 It is submitted that the plain and obvious reason20 was the risk that he might not consent to it and might21 cease to cooperate by not appearing before the FAC and22 the ISC, thus defeating the object of the exercise.23 A possible explanation was given by Mr Hatfield. He24 said, and I quote, "I did not believe and I do not

25 believe I required his consent."

181 This speaks volumes as to the attitude that the MoD2 adopted in the course of its decision-making, namely3 that Dr Kelly's views were irrelevant. It may also shed4 light on the true nature of Mr Hatfield's interactions5 with Dr Kelly. Whatever the position in strict law,6 common decency required that Dr Kelly be kept informed.7 He had not committed any disciplinary offence, he was8 not on trial and he was entitled to the same fair9 treatment as any other civil servant.10 There are three areas of the process about which

11 Dr Kelly should have been informed. First, the decision12 to make a press statement and the content of that press13 statement, together with the timing of its release.14 Second, the content of the question and answer material;15 and, third, the confirmation of his name to journalists.16 I deal first with the press statement. It is clear17 that Dr Kelly was informed of the existence of it. He18 was shown a copy of an early draft of a press statement19 in the course of the interview on 7th July and, it20 seems, took a copy of that statement away with him.21 There are two significant features about this press22 statement and the manner in which it was passed to23 Dr Kelly.

24 First, it does not contain any information that25 would be likely to lead to Dr Kelly being identified.

191 The third paragraph of the press statement that was2 eventually to be released had not yet been added to the3 draft seen by Dr Kelly. It was this paragraph which4 contained the crucial material which would assist5 identification. Dr Kelly was, therefore, left with the6 impression that a statement might be issued which did7 not identify him and which would not lead, even8 indirectly, to his identity being revealed. Indeed,9 according to Mr Hatfield's account of the meeting,10 Dr Kelly was expressly told quite the opposite: that it11 would not be necessary to reveal his name or say12 anything more than that his account did not match that13 of Andrew Gilligan.14 This is Mr Hatfield's record of this part of the15 meeting:16 "I said that I did not think that it would be17 necessary to reveal his name or to go into detail beyond18 indicating that the account given to us did not match19 Gilligan's FAC account, at least initially."20 According to Mr Hatfield's latest account, the press21 statement which was in fact issued by the MoD at 5.45 pm22 on 8th July was read to Dr Kelly over the telephone on23 8th July at 5.10 pm. Two matters are striking about24 this. First, that it was only 35 minutes before the


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25 statement was issued; second, that Mr Hatfield's call

201 lasted some three and a half minutes. We query whether2 this was sufficient time for Dr Kelly to reflect on the3 statement, to judge what additions had been made to it,

4 to suggest drafting points of his own, to take advice5 and to advance arguments as to why matters should or6 should not be included.7 I turn to the Q and A material. No witness to8 the Inquiry has suggested that Dr Kelly was ever9 informed of the contents of this material. It is10 curious indeed why Mr Hatfield did not attempt to convey11 at least the sense of the Q and A material to Dr Kelly12 in the course of his conversations, particularly as, on13 his latest account of the events of 8th July, he had it14 in his possession at that time and had, indeed,15 suggested two changes to it.16 In his evidence yesterday, Mr Hatfield said that he

17 required Dr Kelly's explicit consent to the terms of the18 press statement because his employer was proposing, in19 the statement, to release information about Dr Kelly's20 position and his work. Yet information of precisely21 that kind was to be released in the question and answer22 material in answer to journalists' questions. Why was23 it that it was not even mentioned to Dr Kelly?24 Now, the decision to confirm the correct name. No25 witness to the Inquiry has suggested that Dr Kelly was

211 informed that the MoD proposed to confirm his name to2 journalists if it was put to the press office. No

3 proper explanation has been given for this striking4 omission. Various witnesses have suggested that as5 Dr Kelly knew that his name was likely eventually to6 emerge, the omission is, therefore, nothing to the7 point.8 The difficulty facing the Government with this line9 is twofold. First, there is no evidence that Dr Kelly10 knew that his name would emerge. He acknowledged in11 interviews that this might occur. Second, an employee's12 recognition that his name might become public is no13 reason for an employer not to inform him of the14 employer's decision to confirm his name to a journalist15 if that journalist correctly put his name forward. The16 issue is perhaps best looked at differently. What good17 reason was for there for not informing Dr Kelly of this18 strategy? We submit there was none.19 According to Mr Hatfield, Dr Kelly was told that the20 statement was to be released at about 5.10 pm on21 8th July, that is to say 35 minutes before the press22 statement was in fact released.23 Dr Kelly had not been given advice, guidance or24 assistance as to what the consequences of the press25 statement might be before it had been released. He had

221 not been told, for example, whether to take calls from2 the press, whether to volunteer that he was the3 individual named in the press statement if a journalist


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4 asked him, nor whether to make comment or not on any5 questions which might be asked of him.6 There has been no explanation of why Dr Kelly was7 not given such assistance before the press statement was8 released, presumably none exists.9 The Ministry of Defence did contact Dr Kelly after

10 the press statement to discuss such matters.11 Mrs Kate Wilson says that she called Dr Kelly twice in12 the evening of 8th July. Records indeed confirm that13 two such calls were made from Mrs Wilson's office. They14 were made at 26 minutes past 8 and 46 minutes past 8 and15 lasted respectively 51 seconds and 1 minute and16 19 seconds. So less than 2 and a half minutes of time17 was the extent of the assistance the MoD could manage to18 give Dr Kelly at this stage, and that assistance came19 some two and a half hours after the press statement had20 been released.21 The MoD telephone records also reveal that no call22 was made to Dr Kelly on the evening of the 9th July

23 after the press had identified Dr Kelly, at about24 5.30 pm, until Dr Wells called Dr Kelly just after25 7 o'clock. Mrs Wilson agreed that she never called

231 Dr Kelly at all. She did not call him, she said,2 because she thought that his line manager should break3 the news. Despite the imminence of the media storm,4 no-one in the press office had troubled to get Dr Wells'5 number in advance or indeed to ensure that he was6 available to speak to Dr Kelly.7 As Mr Dingemans put it, during the course of the8 evidence, Dr Kelly was bumbling about in his garden when

9 Mr Rufford arrived on his doorstep at about 7.30 pm.10 Whatever may have passed between Mr Rufford and11 Dr Kelly, it was apparent that Dr Kelly was wholly12 unprepared for what was to come. This exemplifies the13 total lack of care extended to Dr Kelly by the Ministry14 of Defence at this stage.15 It is right to point out that Dr Wells made a number16 of telephone calls to Dr Kelly on Friday 11th July, when17 Dr Kelly and his wife were in Cornwall. Only two of18 these calls exceeded 3 minutes, and most were no doubt19 concerned with arrangements for the Select Committee20 hearings and the schooling meeting the following week.21 What was the effect of these events upon Dr Kelly?22 In his article in the Sunday Times of 13th July,23 Mr Rufford described Dr Kelly as looking "pale and24 tired", and complaining that he had had a difficult time25 and that the matter had played heavily on his mind since

241 it broke six weeks earlier.2 On 14th July a memorandum from Colin Smith of the3 FCO said that Dr Kelly was feeling the pressure and not4 handling it well. Mr Lamb made a telephone call of5 reassurance to Dr Kelly, but otherwise nothing seems to6 have been done in consequence of these comments. No7 counselling was arranged, no contact was made with8 Mrs Kelly to enquire as to her views of her husband's9 morale and well-being.


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10 The meeting of 14th July ought to have been used as11 an opportunity to assess the state of Dr Kelly's health12 and his state of mind to see how he was coping with the13 pressure, to ensure he was getting all the support he14 needed in readiness for the forthcoming Select Committee15 hearings and generally to provide assistance for him.

16 His needs ought to have been the centre of attention.17 Instead, the Ministry of Defence used the meeting to18 tell Dr Kelly what he should and should not say at the19 FAC and the ISC. The focus of the meeting was not20 Dr Kelly's welfare but to ensure that Dr Kelly did not21 say anything that might embarrass the Government.22 The suggestion that the MoD were giving steers to23 Dr Kelly at the meeting has been denied by many24 witnesses. The evidence that this is exactly what25 occurred is to be found from three sources. First, when

251 he gave evidence for the first time Mr Howard said that

2 it was his intention before going to the meeting to3 identify first those areas of questioning that Dr Kelly4 could and should respond to; and, second, those areas of5 questioning where he could legitimately say: actually6 this is more a matter for the Ministry of Defence, for7 Ministers, rather than for me.8 Counsel to the Inquiry realised the importance of9 this answer. He immediately read it back to Mr Howard10 from the transcript and confirmed that this was11 Mr Howard's evidence. Mr Howard gave such confirmation.12 The importance of the answer is that it reveals that it13 was Mr Howard who was identifying, for the benefit of14 Dr Kelly, not only the tricky areas, which were recorded

15 in the notes, but also the suggested answers, for16 example "that is a matter for Ministers".17 Second, when the note of the meeting came to be18 typed up by Dr Wells, curiously he decided to omit the19 phrase "tricky areas". This is strange since not only20 is there no doubt that the phrase was used, it is in all21 the records which were made of the meeting, but the22 phrase also appears in Dr Wells' own notes. Why should23 he not follow his own notes faithfully in the typed24 version?25 Thirdly, Mr Campbell's diary reveals that he had

261 been given assurances by the Ministry of Defence that2 Dr Kelly was well schooled, that is his entry for3 15th July. Schooling a witness who is to appear before4 a Parliamentary Committee is, we submit, an improper5 activity. Assisting the witness with his welfare needs,6 ensuring that he knows the constitutional position of7 the Committee and highlighting likely topics of8 discussion is legitimate; schooling a witness involves9 coaching and instructing him as to the evidence that it10 is desired he should give. This is wholly illegitimate.11 If that did not occur then why did Mr Campbell choose to12 record it in that way?13 So it was that the next day, Tuesday 15th July, that14 Dr Kelly appeared before the FAC. The arrangements for15 him to get there did not go smoothly. The atmosphere


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16 was oppressive, as was the tone of some of the17 questioning. In what seems to have been Dr Kelly's only18 request throughout this affair, he asked that19 Mr Patrick Lamb should accompany him to the Committee.20 That was denied him. Even Mr Campbell himself spoke of21 his appearance before the FAC as a "gruelling

22 experience". How much more so must it have been for23 Dr Kelly?24 Your Lordship will have been moved by the evidence25 given by Mrs Kelly and her daughter Rachel about the

271 last few days of Dr Kelly's life, about how tired and2 stressed he was, how unhappy he was, how he felt3 betrayed by the Ministry of Defence, no doubt in part4 because he had been led to believe that the whole matter5 could be dealt with confidentially. Instead, he found6 himself publicly exposed in the full glare of the media.7 He had worked faithfully for the Ministry of Defence

8 and the Foreign and Commonwealth Office all his life.9 He had achieved great eminence in his field both10 nationally and on behalf of the United Nations. He had11 led weapons inspection teams in Russia and in Iraq. He12 had been awarded the CMG and was being considered for13 further honours, perhaps a knighthood. He had served14 his country loyally and with distinction. Yet all the15 while he remained a modest, retiring man who never16 sought the limelight.17 The Government and the nation have lost their18 greatest expert in biological weapons of mass19 destruction, yet he was characterised by his employers20 to suit their needs of the hour as a middle ranking

21 official and used as a pawn in their political battle22 with the BBC. His public exposure must have brought23 about a total loss of self esteem, a feeling that people24 had lost trust in him. No wonder Dr Kelly felt betrayed25 after giving his life to the service of his country. No

281 wonder he was broken hearted and, as his wife put it,2 had shrunk into himself.3 In his despair he seems to have taken his own life.4 Thank you my Lord.5 LORD HUTTON: Thank you very much Mr Gompertz. Mr Sumption.6 CLOSING STATEMENT by MR SUMPTION7 MR SUMPTION: My Lord, I speak for the Government, the8 Prime Minister and the Secretary of State for Defence9 and for all those in Government who have been called10 upon to defend their actions before this Inquiry.11 I do not intend to engage in a detailed analysis of12 the evidence. That is an exercise which is better left13 to written submissions which will inevitably be far more14 detailed than I can be on my feet. My main objective is15 to address some issues of principle which need to be16 borne in mind throughout your Lordship's consideration17 of these questions.18 The starting point is the dossier. In one sense the19 dossier is remote from the tragedy which occurred20 10 months later at Harrowdown Hill, but it has become21 central to the work of your Lordship's Inquiry because


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22 the way in which it was prepared was the subject of23 Andrew Gilligan's broadcast on 29th May. As a direct24 result of that broadcast, it became the most25 controversial political issue of the following six

29

1 weeks, both inside and outside Parliament.2 My Lord, the pressures which lead a man to take his3 own life are never easy for others to understand after4 the event and we will probably never know the whole5 picture, but it is clearly as certain as anything can be6 that one major factor was the public controversy which7 followed from the allegations that Mr Gilligan put into8 the public domain.9 At the same time, the actual facts about the10 preparation of the dossier are reasonably clear and have11 been from an early stage of this Inquiry. Some of them12 have been clear for a great deal longer than that.13 The dossier was published in order to serve an

14 important public interest. For a considerable time15 before September 2002 the British Government had been16 receiving intelligence assessments from the Joint17 Intelligence Committee about Iraq's capacity to develop18 and use weapons of mass destruction. There is no doubt19 that these assessments were a source of serious and20 proper concern. Whether they were right or wrong is not21 the issue now before us. The question is what the22 Government was actually told by the JIC and the23 intelligence agencies; and there is no real doubt about24 that. With all due qualifications about the difficulty25 of gathering intelligence inside a country such as Iraq,

301 the Saddam regime was perceived to have a significant2 chemical and biological weapons programme.3 It has always been recognised that there is4 a natural tension between the use of secret intelligence5 to inform Ministers' decisions and the need of6 governments to explain their decisions publicly. There7 are times when in a democracy information which would8 not normally be disclosed has to be shared. The British9 Government's object in publishing the dossier was to10 share with Parliament and the public the advice which11 they had received from the JIC and which, to12 a significant extent, guided their actions.13 Your Lordship has heard that that is why, from the14 outset of the process, the decision was made that the15 dossier was to be drafted under substantially the same16 procedures as applied to the JIC's unpublished17 assessments. In other words, it was to be prepared by18 the JIC's staff under the supervision of its Chairman19 and to be reviewed and approved by the JIC itself before20 publication.21 The material which was included in the dossier, as22 well as the way in which it was expressed and the23 emphasis given to it, reflected the judgment of24 Mr Scarlett, endorsed by the Committee. Even now this25 does not appear to be wholly accepted by the BBC, but

31


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1 I would suggest that there is no reason why it should2 not be accepted by your Lordship. The process has been3 described in detail by Mr Scarlett himself, by the Chief4 of Assessment Staff, Mr Miller, and by the Security and5 Intelligence Coordinator Sir David Omand. They were all6 directly responsible for the process and their evidence

7 was endorsed by all the other JIC members from whom8 your Lordship heard: Sir Richard Dearlove, Sir David9 Manning, Sir Joe French and Mr Cragg, all men with10 considerable experience of the way that the Committee11 operates.12 The process was as rigorous in the case of the13 45 minutes point as it was for every other item of14 intelligence based material in the dossier. The15 45 minutes point was based on intelligence supplied by16 the SIS. It was extremely recent intelligence, which17 had come in at the end of August and was not assessed by18 the JIC until 9th September. Certainly it was single19 sourced, like most of the SIS's reporting, but it came

20 from a reliable source and originated with an informant21 who was in a position to know the facts. His22 information was in accord with what was already known23 about the military command and control systems of the24 Iraqi Government and its armed forces; and indeed it is25 worth pointing out that the underlying intelligence

321 suggested an average timing of between 20 and2 45 minutes, so that the statements in the dossier were3 at the most conservative end of the scale. They4 represented a realistic judgment that if the Iraqi army5 was equipped with chemical or biological weapons and on

6 a state of alert, it would be able to use them within7 that timescale.8 Now, the suggestion has been made to your Lordship9 that because the dossier was to be presented as10 reflecting the advice of the JIC there was no scope for11 non-JIC personnel to make comments or suggestions about12 its drafting. It is, I think, suggested that their13 comments or suggestions were inappropriate even on the14 footing that Mr Scarlett and the JIC were only going to15 adopt them if they were justified by the available16 intelligence.17 In looking at this point, I would suggest that we18 are concerned only with those comments which actually19 got through to Mr Scarlett and Mr Miller. What matters,20 in this context, are the comments and suggestions21 contributed by the Prime Minister, by his Director of22 Strategy and Communications, Mr Campbell, and by his23 Chief of Staff, Mr Powell.24 I have to say that the idea that these people had no25 business to be commenting on the drafts of the dossier

331 is not a view of the position which any British2 Government can take for reasons of basic constitutional3 principle. Responsibility for any public statement of4 the British Government inescapably rests with Ministers.5 In this case it rested, in particular, with the6 Prime Minister. He had commissioned the dossier. He


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7 was the Minister primarily responsible for the work of8 the Intelligence Services. It was out of the question9 that the Prime Minister should have no say in a document10 for which he was to be personally responsible to11 Parliament.12 Mr Campbell and Mr Powell are senior members of the

13 Prime Minister's personal staff. They became involved14 because they were told to become involved by the15 Prime Minister; and since it was essential for the16 Prime Minister to be involved in the process, it was17 entirely appropriate that he should be allowed to call18 upon the assistance of the most senior members of his19 own staff.20 I am not suggesting to your Lordship that that made21 it appropriate to interfere with the judgment of the JIC22 or with the processes of its Chairman and staff. The23 dossier clearly had to be exactly what it said it was,24 namely a document reflecting the advice given to the25 Government over the years by the JIC, together with the

341 most recent intelligence and the current judgments of2 the Committee. But provided that that was always clear,3 there was no reason why comments and suggestions should4 not be made by the Prime Minister and his staff.5 It was always clear. It had been stated in the6 clearest terms in Mr Campbell's memorandum of7 9th September, both Mr Campbell and Mr Scarlett have8 given evidence that that was the basis on which any9 comments and suggestions were made and we know that the10 comments and suggestions that were made were accepted11 only insofar as Mr Scarlett himself felt that they made

12 valid points.13 It is fair for me to point out that it was precisely14 because of the known objectivity and independence of the15 JIC and its Chairman and staff, precisely because of the16 rigour of John Scarlett's approach to his job that it17 was appropriate to make these comments. Those who made18 them could do so in the knowledge that while they might19 raise matters for Mr Scarlett to consider, they would20 not be compromising his objectivity.21 There is a world of difference between making22 comments which the recipient might construe as an23 instruction and making them in the context of a clearly24 understood distribution of responsibilities under which25 the JIC's judgment was paramount. The comments actually

351 made broadly reflected the fact that the dossier was2 going to be read by the public. It could not,3 therefore, be drafted in the same way as an ordinary JIC4 assessment, which is intended for circulation among5 a limited number of Ministers and officials, all of whom6 are familiar with intelligence documents.7 An ordinary JIC assessment may omit matters which8 are assumed to be known to the reader but may not be9 known to the general public. It may use linguistic10 conventions which are well understood by official11 readers but will not do justice to the significance of12 particular points in the eyes of a general reader.


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13 Most of the comments raised matters of factual14 detail for consideration by the JIC Chairman and his15 staff which were clearly designed to clarify the16 document and not to alter its message.17 LORD HUTTON: But what if the suggestions on presentation18 have the effect of strengthening the dossier when read

19 by the public, Mr Sumption?20 MR SUMPTION: That depended entirely on whether Mr Scarlett,21 having considered the comment, thought that it was22 appropriate to strengthen it.23 LORD HUTTON: Yes.24 MR SUMPTION: If he thought that it was appropriate, having25 regard to the underlying intelligence, to strengthen it

361 then there is no reason why he should not do so and no2 reason why he should not be asked to consider the point.3 The essential question is whether Mr Scarlett was going4 to be felt to feel under pressure to strengthen it

5 unjustifiably simply because a comment of that kind had6 been made by the Prime Minister's staff. It is moreover7 right to add not all of the comments were designed to8 strengthen it.9 LORD HUTTON: Your point is that provided that the10 intelligence is there to support what is said, if the11 presentational suggestions strengthen the dossier in the12 eyes of the public, that is permissible.13 MR SUMPTION: In my submission it is. The essential14 question is: is there a clear distribution of15 responsibilities under which the difference between16 a comment and an instruction is very clearly understood17 by the recipient? If there is, there cannot possibly be

18 a legitimate objection to a comment, even if its19 acceptance would lead to the strengthening of the20 dossier, bearing in mind that the whole object of this21 exercise was to present to Parliament a dossier which22 accurately reflected the underlying intelligence.23 For that reason I would submit that it was perfectly24 proper for the Prime Minister's staff to enquire, for25 example, what intelligence was available on particular

371 points. It was perfectly proper for them to comment on2 the way that particular points were expressed.3 Some of the comments, at one end of the scale, not4 all of them of course, were little more than5 proofreading; and I would put into that category the6 classic example, namely Mr Campbell's comment about the7 45 minutes point in his memorandum of 17th September.8 It simply pointed out that the emphasis in the executive9 summary was not the same as the emphasis in the main10 text and left Mr Scarlett to decide what, if anything,11 should be done about that.12 What I submit matters is that every one of13 Mr Campbell's and Mr Powell's comments was scrupulously14 considered by Mr Scarlett and the assessment staff15 against the available intelligence and was, in fact,16 accepted only insofar as it was appropriate to do that.17 In fact, as your Lordship has heard, many of these18 comments were rejected.


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19 Ironically the comment which comes closest to being20 a substantive suggestion is nothing to do with the21 45 minutes point and did not come from Mr Campbell, it22 came from Mr Powell, the Prime Minister's Chief of23 Staff. He made a point based on his recollection of the24 intelligence that it was not right to describe Iraq's

25 capacity to use weapons of mass destruction as being

381 essentially defensive. Mr Scarlett then went back over2 the intelligence and concluded that the existing text3 could not be justified. As he told your Lordship,4 recent intelligence shows that the picture was in fact5 more complex than the text suggested. There were both6 offensive and defensive aspects to Iraq's policies on7 the use of weapons of mass destruction. So he took out8 the statements which were not a balanced reflection of9 the underlying intelligence.10 It is worth asking: can it seriously be suggested

11 that the dossier would have been a better document or12 closer to the judgments of the JIC if Mr Scarlett had13 never been prompted to carry out that exercise? The14 answer is, quite obviously: no.15 What of the 45 minutes point itself, which16 Mr Gilligan's broadcast cited as the classic example of17 outside interference with intelligence judgments? That18 turns out to be supported by absolutely nothing apart19 from a suggestion from Mr Campbell that Mr Scarlett20 should look at the internal consistency of his language21 in different parts of the document. It is, in fact, one22 of the ironies of this story that the change which23 brought the two parts of the document into line had

24 already been resolved upon by Julian Miller and the25 assessment staff before they were aware of Mr Campbell's

391 comment. So that even that relatively footling point2 turns out to be immaterial.3 The allegation subsequently made by Mr Gilligan4 although not, as he accepted, by Dr Kelly that changes5 had been made on Downing Street's orders could hardly be6 further from the truth.7 I have made the main points that need to be made8 about the dossier but before I turn to Mr Gilligan's9 broadcasts I would like, if I may, just to deal briefly10 with two matters.11 LORD HUTTON: Just before you do that, Mr Sumption, if you12 have the position that the dossier has been made13 stronger by reason of suggestions on presentational14 points, those suggestions being entirely consistent with15 the underlying intelligence, can that be described, to16 use an inexact term, as "sexing up" the document?17 MR SUMPTION: It could not I would suggest on any view be18 described as sexing up the dossier. I have made the19 broader point that it was in fact an entirely proper20 process.21 LORD HUTTON: Yes.22 MR SUMPTION: But the manner in which it was described in23 Mr Gilligan's broadcast bore absolutely no relation to24 the process that actually occurred.


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25 LORD HUTTON: Thank you.

401 MR SUMPTION: The first of the two points I want to make2 before I leave this particular area concerns the3 evidence of Dr Jones. In describing this as a byway in

4 the present Inquiry I mean no disrespect to5 your Lordship who has been examining him or to Dr Jones6 himself. Now that we know the facts, we can put the7 issue in some kind of context.8 Dr Jones was one of a number of officials in the9 Ministry of Defence who had an opportunity to comment on10 the dossier from their own specialised points of view.11 In this case it happened under the auspices of the12 Defence Intelligence Staff. Dr Jones in fact had no13 objection to the inclusion of the 45 minutes point. His14 view was that it was expressed too strongly for15 something that was based on a single source whose16 credentials were uncertain. Dr Jones' concerns were, in

17 fact, taken into account among a large number of other18 comments presented by the DIS to the Cabinet Office but19 Dr Jones did not have access to the whole of the20 relevant material, as he recognised in his memorandum of21 complaint. The compartmented intelligence which was22 decisive on this issue was not shown to him.23 The reality is that whether or not the single source24 in this particular case justified the confidence placed25 in it was not a matter for Dr Jones, it was a matter for

411 the originating agency, namely the Secret Intelligence2 Service, and then for the JIC itself. They judged that

3 it did justify the statement.4 As for Mr A, we find it difficult to understand how5 his views can be relevant. He had no involvement in the6 preparation of the dossier. His misgivings did not even7 emerge from the machinery of the Defence Intelligence8 Staff. It can therefore hardly be said that they were9 improperly excluded or ignored by the draftsmen in the10 Cabinet Office.11 Your Lordship has heard a great deal from the BBC12 and other journalists about a persistent undercurrent of13 discontent about the contents of the dossier among14 people who were lower down the intelligence hierarchy.15 Without knowing who these people are, it is difficult to16 know whether one is dealing with one or two individuals17 speaking to a lot of different journalists very often or18 to a more widespread expression of discontent. Without19 knowing who they are, it is also impossible to discover20 what the real grounds of their concern were, whether21 they had been fairly reported in the press and whether22 they were actually in a position to know the facts.23 It is a matter of speculation, but it seems likely24 that any discontent of this kind comes from people like25 Dr Jones whose motives are entirely honourable but who

421 were simply out of the loop so far as parts of the2 relevant intelligence are concerned. What does seem3 clear, from the evidence, is that it does not emanate


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4 from the agent handlers or assessment staff concerned5 with Iraq at the SIS or from members or staff of the6 JIC; and they are the people in a position to know.7 My Lord, the second matter I wanted to mention is8 related to the first. It concerns Dr Kelly's own role9 in the preparation of the dossier. Dr Kelly contributed

10 to the historical section of the dossier which dealt11 largely with the work of UNSCOM in Iraq before 1998. He12 also answered a specific question which had arisen about13 growth media. In addition to those contributions, he14 would also, in all probability, have seen the drafts of15 the whole dossier, including the draft which was16 considered by the Defence Intelligence Staff on17 19th September. It is possible that he contributed,18 along with others, to the DIS comments sent to the19 Cabinet Office assessment staff on the same day.20 However, by no stretch of the imagination could21 Dr Kelly be described as one of the senior officials in22 charge of drawing up the dossier. He was not. He was

23 simply one of many people who were in a position to24 comment on areas within their own specialised expertise.25 Dr Kelly may well have shared the view of Dr Jones

431 about the 45 minutes point. His conversations with2 Susan Watts suggest that he probably did. But he was,3 of course, under the same disadvantage as Dr Jones was;4 he did not have access to all of the underlying5 intelligence. It was not his responsibility to assess6 its credibility and he was not in a position to do so.7 My Lord, I therefore turn to Mr Gilligan's8 broadcasts and to the dispute with the BBC.

9 I want to preface my remarks about this by saying10 that it is no part of my instructions to treat this11 Inquiry as a continuation of the dispute between the12 Government and the BBC. The Government is not and never13 has been engaged in a crusade against the BBC, nor are14 any of the Ministers or officials whom I represent.15 The Government has two main interests in this area.16 It has an interest in establishing what the true facts17 are about the preparation of the dossier -- I have18 addressed your Lordship about that. It also has an19 interest in explaining why it was that the Government20 felt as strongly as it did about Mr Gilligan's21 broadcasts, why it took up its complaints with the BBC;22 and why it persisted when the BBC stood its ground.23 There are clearly many aspects of the conduct of24 Mr Gilligan and the BBC which may be unsatisfactory but25 I am concerned with them only insofar as they help to

441 understand the strength of feeling which this dispute2 generated within the Government and elsewhere.3 The essential point made in Mr Gilligan's two4 broadcasts on the Today Programme was that the5 Government had included material in the dossier contrary6 to the advice of the Intelligence Services. The7 45 minutes point was said to be the prime example of8 that. It was said that the 45 minutes point was based9 on a single source whom the Intelligence Services


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10 believed had got it wrong.11 There are three points which need to be made about12 this allegation at the outset. First of all, it was13 quite plainly an allegation of conscious wrongdoing on14 the part of the Government. Now, that is so whether one15 looks at the 6.07 broadcast or at the 7.32 version.

16 In the 6.07 broadcast the allegation of dishonesty17 was made more directly. It was said that the Government18 probably knew that the 45 minutes point was wrong when19 it put it into the dossier. At the end of the 6.0720 broadcast, Mr Gilligan explicitly distinguished between21 an honest mistake and a deliberate falsehood. He made22 the point that the second was a great deal more serious23 than the first, the implication plainly being that that24 was the category to which the Government's conduct25 belonged. That, of course, was the version which echoed

451 around the world. There may not be many people apart

2 from Mr Davies who are awake and listening to the Today3 Programme at 6.07 but there is no doubt that it is very4 closely monitored by the world's media.5 The 7.32 version in fact made substantially the same6 point albeit not quite so much in your face. The word7 used on the second occasion was that the Government knew8 that the point was questionable rather than that it was9 wrong; but on this occasion, as on the earlier occasion,10 the point being made was that the Government had11 overridden the advice of the Intelligence Services.12 Since the dossier had claimed to reflect that13 advice, this had very serious implications. It meant,14 if it was true, that the Government had presented to

15 Parliament a document said to represent the views of the16 Intelligence Services which they knew was actually17 contrary to those views in some significant respects.18 The second point that needs to be made at the outset19 is this: it is apparently the position of the BBC that20 there is a difference between an allegation made by the21 BBC itself and an allegation which it reports as coming22 from an outside source. Clearly, there is a difference,23 but it is a great deal less significant than the BBC has24 suggested. From the point of view of the reputation of25 the people involved, it is almost imperceptible.

461 The allegations attributed to Mr Gilligan's source2 were only important because Mr Gilligan had broadcast3 them. If a news organisation broadcasts allegations as4 coming from an anonymous source, whose authority is, by5 definition, incapable of being assessed by listeners,6 the broadcaster, I would suggest, is necessarily adding7 a substantial endorsement of his own. The broadcaster8 may not be saying: we think that this is certainly9 true -- that I would accept; but a reputable broadcaster10 is saying: we think that these allegations are worthy of11 belief by you, the listeners.12 In the end I do not think that any of the BBC's13 witnesses really disputed that. The BBC is undoubtedly14 a reputable broadcaster, arguably the most reputable or15 one of the most reputable in the world. It also has


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16 a worldwide reach. The BBC must expect that serious and17 anonymous allegations it chooses to broadcast will be18 taken extremely seriously not just by those against whom19 they are directed but by everybody else.20 In fact, one of the more unfortunate aspects of21 Mr Gilligan's broadcasts is that it did not even fairly

22 report what Dr Kelly had said to him. I am not going to23 explore, at length, what exactly Dr Kelly did say to24 Mr Gilligan. It may well have been more than Dr Kelly25 admitted to saying in July when he was interviewed by

471 the Ministry of Defence and when he was giving evidence2 to the two Parliamentary Committees. It was certainly3 less than Mr Gilligan attributed to him.4 To take only the more abrasive examples, Dr Kelly5 did not actually say that the Government put the6 45 minutes point into the dossier probably knowing that7 it was wrong. Mr Gilligan accepts that. Nor did

8 Dr Kelly say that Downing Street had ordered the dossier9 to be sexed up; in fact he did not use the word "sexed10 up" at all, that was Mr Gilligan's sound bite.11 Thirdly, it is right that I should say something12 about the nature of Mr Gilligan's source, so far as he13 described it in his broadcasts. In his two Today14 Programmes Mr Gilligan described his source as "one of15 the senior officials in charge of drawing up the16 dossier". Although Mr Gilligan does not admit this, it17 must be most improbable that Dr Kelly in fact described18 himself in that way.19 If Dr Kelly said that he or others were unhappy with20 the 45 minutes point, if Dr Kelly said that, it might

21 fairly be described as a matter of opinion. It was an22 opinion which might have been held by someone who did23 not have access to all of the underlying intelligence or24 the other surrounding information on which the JIC25 assessment is based. That is quite different from

481 Dr Kelly saying that he was one of the senior officials2 in charge of drawing up the dossier. If Dr Kelly said3 that, then he was telling a deliberate untruth in order4 to boost his own significance; and there is absolutely5 no reason to suppose that Dr Kelly was that kind of man.6 It is much more likely that he said nothing of the kind.7 One's confidence in Mr Gilligan's evidence on this8 point is not exactly increased by the way in which he9 says that it came out. Dr Kelly never volunteered this10 description of his own functions, and Mr Gilligan never11 asked him to explain it. Mr Gilligan told your Lordship12 that the description was proposed out of the blue at the13 very end of the interview by Mr Gilligan himself. It14 happened, he said, after he had agreed what quotes he15 could use and after he had put his personal organiser16 away. He said that Dr Kelly accepted it from him17 together with an alternative description of his18 functions, which was different.19 That has all the hallmarks of a self-serving20 invention designed partly to explain why the critical21 point does not appear in Mr Gilligan's notes and partly


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1 view of matters and their surprise lasted throughout2 June and July. It was at least partly because of this3 fundamental difference in perceptions that the BBC could4 never bring itself to address directly the Government's5 real concerns. Was the Government right to take a more6 serious view of the position? I say to your Lordship

7 that they were. It was simply not possible for8 a democratic Government to dismiss charges like these as9 part of the ordinary currency of political debate.10 It is important to emphasise that in spite of the11 tendency of the press to personalise this issue that the12 dispute about the broadcast was never a personal13 campaign by Alastair Campbell. The original BBC14 broadcasts had not mentioned Mr Campbell. That was15 something that Mr Gilligan added to the allegations when16 he came to sell his intemperate and inaccurate article17 to The Mail on Sunday.18 Of course Mr Campbell put the points forcefully and19 articulately on behalf of the Government and in the kind

20 of direct language that was calculated to make people21 listen. That is what Mr Campbell is there for. But the22 Government would have been just as concerned about the23 matter if Mr Campbell had been on sabbatical at the24 other end of the world and it is important, I would25 suggest, to pause for a moment in order to consider why

521 that was.2 In the first place, the people against whom these3 allegations were made had direct knowledge of the true4 facts. The Prime Minister, the staff at No. 10 and in5 the Cabinet Office, the JIC and its Chairman and the

6 people at SIS who had originated the 45 minutes point,7 they all knew how the dossier had actually been prepared8 and how the 45 minutes point had come to be included in9 it. They all knew that the allegations broadcast by10 Mr Gilligan were, in fact, a travesty; either that11 Mr Gilligan's source was laying claim to knowledge which12 he could not have and Mr Gilligan had failed, properly,13 to check out his status, or else Mr Gilligan had greatly14 exaggerated what he had been told.15 The real problem was that the anonymity of the BBC's16 source made it impossible for the Government to17 challenge the story more effectively unless the BBC18 themselves were prepared to re-examine it. Only they19 knew what the status of the source was. They never were20 prepared to re-examine it; and that is one of the basic21 injustices arising from the use by a broadcaster of the22 stature of the BBC of anonymous sources.23 It might have mattered less if the allegations had24 related to something less sensitive. It might have25 mattered less if they had not been repeated across the

531 world. In fact the allegations related to one of the2 main factors in the developing crisis over Iraq,3 a matter of intense public concern both in the4 United Kingdom and elsewhere. It would be hard to point5 to a single area in which the existence of trust between6 a government and the public was so important.


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7 The public has no direct access to secret8 intelligence. It has to rely on the integrity not just9 of Ministers but of the officials in the services which10 gather intelligence and assess it and advise Ministers.11 The fact that Iraq was an issue on which the public and12 the world at large were deeply divided made honesty in

13 the presentation of intelligence advice even more14 fundamental.15 Many witnesses have expressed to your Lordship their16 views on these points. If I single out one of them it17 is because he is a diplomat of considerable experience18 whose evidence was given in particularly measured and19 cautious terms, namely Sir David Manning. His view is,20 I suggest, also valuable because he was not directly21 involved in the dispute with the BBC and cannot be22 accused of getting carried away by its momentum.23 What Sir David told you was that the allegations24 were, as he put it:25 "... seen as a pretty direct attack on the integrity

541 of the Prime Minister and officials at No. 10, in the2 sense that they would try to persuade the Chairman of3 the Joint Intelligence Committee to massage or to revise4 his conclusions, his recommendations, for political5 convenience, I saw it personally as also an unjustified6 attack on John Scarlett personally, the Chairman of the7 JIC, because implicit in this is the assumption that he8 is willing to do this . .. I felt it was a very serious9 attack, not only, however, upon the integrity of10 individuals but a very serious attack on the integrity11 of the processes of Government."

12 These allegations, as we know, were recycled not13 only by the United Kingdom media but worldwide.14 Inevitably with each recycling the volume is amplified.15 This process was not all of the BBC's making or of16 Mr Gilligan's but a substantial part of it was. It is17 also fair to say that it was an entirely predictable18 consequence of the sensational nature of the original19 allegation.20 In political terms perhaps the most important single21 factor was that the issue was taken up by both the22 Foreign Affairs Committee and the Intelligence and23 Security Committee in the House of Commons. The fact24 that these two investigations were undertaken is,25 perhaps, the strongest evidence of the real significance

551 of the issue, not just in the minds of the Government.2 The FAC Chairman, Mr Anderson, summarised the3 allegation at the outset of Mr Campbell's evidence as4 being, as he put it:5 "In Mr Campbell's zeal to make the case he6 embellished the evidence to the point of misleading7 Parliament and the public at a vital time relating to8 peace and war."9 Mr Maples, an Opposition member of the Committee,10 commented that it was, as he put it:11 "... terribly important for us all that that12 allegation is laid to rest. I agree that it is


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13 incredibly serious."14 Of course, the inquiries being undertaken by these15 two Committees made it inevitable that the Government16 was going to have to defend itself publicly against the17 allegations during June and July when the investigations18 were in progress. The FAC inquiry, in particular, was

19 always going to keep the issue in the public eye because20 of the publicity of the FAC's hearings and the pugnacity21 of a number of its members. That was always going to be22 a noisy process. I would accept as Mr Campbell himself23 has accepted that he should have restrained his anger24 better during the Channel 4 interview with Jon Snow on25 27th June. He had however been provoked by the BBC's

561 particularly tendentious response to his letter of2 26th June.3 That letter as your Lordship saw attempted to meet4 some of Mr Campbell's concerns by redefining the

5 allegations which the BBC had actually made in very6 different terms. It also contained some round7 assertions, particularly about the 6.07 broadcast which8 the BBC have not felt able to support in their evidence9 to this Inquiry.10 There is, I would suggest, a world of difference11 between fairly retracting a public allegation of12 conscious wrongdoing and pretending that you have never13 really made one. There is also a world of difference14 between the question whether it was in the public15 interest for the BBC to broadcast the allegations in the16 first place and the question whether it was right to17 stand by them after the JIC Chairman had publicly

18 associated himself with the PM's denials and with no19 further substantial investigation on the part of the BBC20 at all.21 If the broadcast allegations really had been as22 inoffensive as the BBC tried to suggest in that letter23 then Mr Campbell could be fairly accused of having24 overblown the issue. But Mr Campbell's public25 statements of the Government's position were, I suggest,

571 commensurate with the gravity of the charges which the2 BBC had actually broadcast.3 In retrospect, it is a great pity that the BBC's4 Governors were put in a position on 6th July where they5 had no proper means of making their own assessment of6 the line to which their staff were committed. One has7 some sympathy with the Governors. They were brought8 under heavy pressure by the Chairman to back the9 executives' line. They were not provided with the10 information that might have enabled them to take their11 own line, even though Mr Sambrook was sitting there at12 the meeting with most of that information in his head.13 It was perhaps the last occasion on which somebody14 within the BBC who was independent of the executives15 could have brought a fresh eye to the dispute. They16 could have had a report on Mr Gilligan's notes, they17 could have considered what he had really been told by18 his source, they could have been told what was known


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19 about the status of his source; and they could have been20 told the views of Mr Kevin Marsh, the editor of the21 Today Programme itself. A report on these points would22 surely have been a revealing document.23 LORD HUTTON: What do you say as to Mr Davies' point that it24 is not for the Governors to concern themselves in the

25 details of the programme and -- I am paraphrasing what

581 he said -- to some extent the Governors have to rely on2 what they are told by the management?3 MR SUMPTION: To some extent that is so. One accepts that4 if the Governors are to form a view about the facts they5 need assistance from the executives. But in6 circumstances where the Governors are considering7 whether a complaint against those very executives is8 justified or may be justified or not, it cannot be right9 simply to take the executives' account of matters10 without any underlying investigation from them. And

11 that is, as it appears from the records that we have,12 precisely what happened.13 If the Governors had had a report, for example, from14 Mr Sambrook on the respects in which the notes did in15 fact back up what Mr Gilligan had broadcast, and all the16 BBC witnesses have accepted that it was essential that17 there should be proper support for the broadcast, if the18 Governors had had a note from him on that or if they had19 had a redacted version of the notes themselves, it is at20 least possible that the Governors would have appreciated21 what the BBC's witnesses have now accepted before22 your Lordship, namely that Mr Gilligan in fact went too23 far in his broadcasts on 29th May.

24 That might, in turn, have led to the kind of25 honourable draw which the Prime Minister proposed to

591 Mr Davies on the following day. The suggestion, as2 your Lordship will recall from the evidence, was that3 the Government should accept the BBC's good faith in4 broadcasting the allegations while the BBC would5 acknowledge that it could no longer support them. The6 problem was that by the time this proposal was made it7 was too late. The Governors had stood up to be counted8 just as Mr Davies had asked them to.9 My Lord, I am coming to the position which arose10 when Dr Kelly came forward on 30th June. It is 5 to 1211 and I would like to suggest to your Lordship that it is12 probably more sensible I should take that in one bite at13 1.15 when your Lordship resumes.14 LORD HUTTON: That is certainly so, Mr Sumption. I will15 rise now and sit again at 1.15 pm.16 (11.55 am)17 (The short adjournment)18192021222324


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