Hutton and the mirror of dishonesty

Sunday, 1 February  2004

PERHAPS THE MOST POSITIVE outcome of the publication of Lord Hutton’s extraordinary report on the David Kelly affair will be that the system of inquiries presided over by single judges will be finally discredited.

Amidst the welter of comment on the Hutton report which has been published and broadcast in the last few days some commentators have already suggested this – or come close to doing so.

Interestingly, Simon Jenkins, writing in the Times on Friday, recalled a conversation he had had with Lord Franks, the senior civil servant who chaired the inquiry into the Argentine invasion of the Falklands:

Shortly after the 1982 Franks inquiry into the Argentine invasion of the Falklands I asked Lord Franks why he had so completely exonerated the Thatcher Government. Surely its failures of diplomacy and intelligence had led Buenos Aires to believe that it could attack with impunity. His lordship looked grave: “Remember the tenor of the times and read my terms of reference.” The terms lent themselves to exoneration. This was no moment to rock the boat. The Establishment rallied to its own.

Jenkins went on to write, apparently with reference to Tony Blair’s telephone consultations with his friend Lord Falconer on the day when news of David

Kelly’s disappearance became known, that ‘The Lord Chancellor, Lord Falconer of Thoroton, assured Mr Blair that Lord Hutton was equally “safe”.’ Jenkins gives no clue about who might have been the source of this inside information. But his words ring true.

As Nick Cohen writes in today’s Observer:

The wonder of the past six months is that so many people, from Michael Howard to anti-war protesters, have failed to learn from the history of judicial inquiries that fearless honesty is not their distinguishing characteristic. Judges nearly always pull their punches. A few do so with regret. Most wouldn't want to lay a finger on the state even if they thought they could get away with it.

Or as I wrote on this page in August of last year:

Whenever a judicial inquiry is set up it has a particular purpose. That purpose is not to make a public crisis of confidence deeper. It is to shore up a government which might otherwise be under threat. One does not have to be a fiery radical, an anarchist or a subversive to arrive at this conclusion. Just such a view was stated boldly at the beginning of an article in last week’s Economist: ‘When prime ministers are in trouble they call for a judge to bail them out.’

It may well be that the chosen judge will not actually perform this function in quite the way that the government of the day might hope. In setting up any such judicial inquiry a government is therefore almost always taking a calculated risk.  It could be in this case that Lord Hutton will confound the doubters and produce a report which is not only robust and penetrating but which actually brings about the downfall of the government which commissioned it. All that can be said in this regard is that, were he to do so, he would also confound the entire history of the inquiry system.

In the event it must be said that Lord Hutton has not only failed to confound the doubters. He has actually managed to produce a report which, in its manifest unfairness, and its apparent inability to reflect accurately the evidence which was put before him, actually threatens to damage the very government whose interests it seems so cravenly to serve.

One of the most significant features of the report is the extraordinary difficulty which Lord Hutton seems to have in facing up to and accurately describing some of the most obvious instances of dishonesty.

A particularly interesting example of this concerns the conduct of David Kelly himself. Although the evidence seems clear that the unfortunate Dr Kelly, trapped by his own indiscretions, repeatedly lied to his managers and to MPs on the Foreign Affairs Committee in an attempt to save his own skin, Hutton cannot quite bring himself to acknowledge this. What he actually says is this:

I think it probable that one of the concerns which must have been weighing heavily on Dr Kelly's mind during the last few days of his life was the knowledge that there appeared to be in existence, known to members of the FAC, a full note of his conversation with Ms Susan Watts on 30 May. This concern would have included the knowledge that he had denied (question 132 in his evidence to the FAC) that the words which he had spoken to Ms Watts in his telephone conversation with her on 30 May and which she had quoted on the Newsnight programme were his words. Dr Kelly had told the MoD at the meeting on 14 July that he had not spoken to Ms Watts about the September dossier (see paragraph 97) and he must also have been worried that it would emerge and would become known to the MoD that he had had a lengthy discussion with Ms Watts about intelligence matters in relation to the 45 minutes claim and that he had had a similar but shorter conversation with Mr Gavin Hewitt (Hutton Report, Chapter 10, paragraph  444).

It reasonably clear from these words that Lord Hutton has privately recognised what others have publicly suggested – that David Kelly had lied to a parliamentary committee and that, perhaps because he was usually an honourable man, he felt acutely guilty about this and anxious about the consequences for him if his lies were exposed. Yet Hutton cannot bring himself to express straightforwardly the thoughts he has apparently had in private. Instead he resorts to euphemisms as though he has been confronted by an obscenity or perversion he dares not openly name.

Of course it might be said in Hutton’s defence that he is trying to be tactful, and that his less-than-forthright language is designed to show respect for the dead man and for his family. Perhaps there is an element of truth in such a suggestion. But my own suspicion is that one of the other factors which comes into play here is a particularly dangerous kind of patrician self-deception.

As a faithful public servant himself, Hutton seems to have great difficulty in acknowledging the fact that faithful public servants, among whom David Kelly would once have been numbered, might engage in outright duplicity – might actually lie to parliament itself. 

If this kind of self-deception affects Hutton's verdict on Kelly's suicide, it arguably plays an even greater role in determining his verdict on the behaviour of the government. It is certainly difficult to understand what other factors might have led Hutton to the most extraordinary of all his conclusions, namely that ‘there was no dishonourable or underhand or duplicitous strategy by the Government covertly to leak Dr Kelly's name to the media.

The evidence which flies in the face of this conclusion was rehearsed in the inquiry hearings over and over again. It was strengthened by the extracts from Alastair Campbell’s diary which emerged at the inquiry and which clearly showed Campbell’s anxiety to ‘get the source up’ on the grounds that ‘it would fuck Gilligan if [Kelly] was his source’ (CAB/39/0001).

In his report Lord Hutton shows that he is well aware of the charge which was being made against the government. But he decides that it cannot be true. In an attempt to explain why the government did not simply name Kelly in the statement which was issued by the Ministry of Defence on 8 July 2003, Hutton writes: ‘I think that the decision not to name Dr Kelly in the MoD statement was influenced by the consideration that the officials concerned with the matter were not absolutely certain that he was Mr Gilligan's source’ (Chapter 9, paragraph 409).

In the same paragraph of his report, however, Hutton says this: ‘I think that the MoD was also concerned that the press should not publicise the name or names of other civil servants as being the source and that this was a consideration which influenced the decision to confirm the correct name if it was given.’ This makes no sense. If the officials concerned were not absolutely certain that Kelly was Gilligan’s source, how could they conceivably be in a position ‘to confirm the correct name if it was given’?

Lord Hutton himself concedes that ‘For a time at the start of the Inquiry it appeared to me that a case of some strength could be made that there was such a strategy [to place Dr Kelly’s name in the public domain in an underhand manner]’. However he says that he was persuaded by the evidence given by ministers and officials that this was not the case.

The possibility that he does not seem seriously to have considered is that the evidence given to him in this respect was largely flannel – that the officials and ministers had not only adopted an underhand strategy to name Dr Kelly but they were now compounding their actions by giving evidence to the inquiry which was itself underhand, or duplicitous or deliberately misleading.

Yet, precisely because it seems impossible to provide any adequate alternative explanation of the circuitous strategy which was in fact adopted, and because the explanation put forward by Hutton himself is plainly illogical, it is this conclusion which seems to be the only reasonable one. As Max Hastings, writing unusually in the Guardian, has insisted, it is a simple though unpalatable fact that politicians frequently lie.

If we rule out deliberate unfairness then perhaps the most plausible explanation for Hutton’s seeming inability to register the dishonesty of some of the evidence which was given to him by public servants is the same patrician self-deception I have already indicated. For there is a kind of narcissism of the righteous which, because it makes it very difficult for those who believe they embody truth and justice to acknowledge their own occasional dishonesty, makes its correspondingly difficult for them to accurately perceive the dishonesty of those whom they would normally regard as colleagues, as fellow public servants, or as members of their own patrician class. 

It was Jonathan Swift who wrote that ‘satire is a mirror into which men look and see every face but their own’; perhaps it might be said that evidence of dishonesty is a mirror into which men look and see every face but those which resemble their own. Some such explanation seems necessary if we are to account for the systematic blindness to the sins of the government which seems to run through Lord Hutton’s report.

If this suggests that there is something dishonest in Lord Hutton’s own approach to the inquiry he conducted then perhaps this conclusion should not be shied away from. One of the most foolish refrains which came from the BBC in the days immediately following the publication of the report was that of Andrew Marr, whose frequent lack of wisdom does not seem to stop BBC interviewers asking their political correspondent to editorialise on grave matters at every conceivable opportunity. Again and again Marr expressed the view that, having generally praised Lord Hutton and the manner in which he was conducting the inquiry, commentators could not now reasonably dispute the conclusions he had come to. What this shallow view seems not to take into account is the possibility that there was actually a serious disjunction between the manner in which Lord Hutton received evidence and the manner in which he finally assessed it.

In this respect we might do well to consider the words of one of the ‘Hutton groupies’ whose opinion on the report the Guardian sought out on Friday. Tim Moorey, a semi-retired accountant who attended most days of the inquiry, had this to say:

I'm just as disappointed as everyone else. More so because Lord Hutton led us to believe, or led the court to believe, that he would be independent and impartial and the remit would be wide. He admitted a lot of evidence which was not in a narrow remit, but then in the verdict, he says suddenly - or it seems suddenly to me - that the stuff we're interested in is not within the remit. Which is odd.

This is a reasonable summary of the manner in which Lord Hutton’s conduct of the inquiry seemed to be at odds with the conclusions he actually reached. It is difficult to avoid the conclusion that there was something dishonest or disingenuous about the open and wide-ranging approach he adopted in relation to evidence he eventually discarded.

This is a great pity, not least because the palpable unfairness of Hutton’s verdict on the government will make it much more difficult for the BBC to accept the severe but often justifiable criticisms he makes of its shortcomings.  

If, however, Hutton’s deeply unsatisfactory report has the effect of causing us to be more sceptical about the reports produced by other public inquiries, then it may actually do some good. The fourth anniversary of the publication of the Waterhouse report, on 15 February 2000, is rapidly approaching. Perhaps by the fifth anniversary on 15 February 2005, we will be ready to confront the real possibility that high court judges who preside over public inquiries sometimes get their conclusions tragically and dangerously wrong.

The Hutton report is never likely to cause as much damage as the Waterhouse report precisely because the evidence which emerged in the Hutton hearings had already been digested by an alert and highly critical press. The almost universal failure of the British press to subject the Waterhouse report to any such criticism  points to a far deeper malaise in British journalism than that which was considered by Lord Hutton.  It is a failure to which this website will have cause to return.

In the meantime I am inclined to judge the experiment I embarked on last summer, in relation to the subject matter of the Hutton inquiry – an experiment which is described in 'Hutton: when the lights came on' – a qualified success. The ‘Supplement to the Hutton inquiry’ which I offered in advance of any evidence being heard, still reads reasonably well. The premise on which the entire experiment was based, namely that ‘
judicial inquiries do not, as a general rule, merit the kind of awed deference which they are so often shown by journalists and politicians’ seems, on this occasion at least, to have been resoundingly vindicated.

For Martin Kettle's very different view of Hutton, which focuses entirely on the malaise of British journalism and suggests that Hutton's report was
'overwhelmingly consistent with the evidence he received', click here. For Danny Morrison's Sinn Fein view of Hutton, click here. For an extremely well-informed piece on the hazards of judges becoming involved in politics, read  Jeffrey Jowell's special report.

The former Living Marxism (or LM) adherents who cluster around former Trotskyite entryists Frank Furedi and Mick Hume have come in for a good deal of criticism
of late. But there is enough good sense in Mick Hume's recent reflections on Hutton to make his article well worth reading.

© Richard Webster, 2004


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