The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Friday, September 26, 2003

Hutton: Closing statements

From an initial skim - focussing on the dossier rather than the treatment of Kelly question - one or two points emerge from the day of statements from counsel for the interested parties yesterday [1].

The breathtaking arrogance of the HMG case from Jonathan Sumption [2] reminded me of luckless ex-Chancellor of the Exchequer Norman Lamont's
Je ne regrette rien
unwisely uttered following the UK's exit from the EU's Exchange Rate Mechanism on Black Wednesday (September 16 1992).

Whilst this was, perhaps, particularly notable in relation to the Kelly question (he had no difficulty in agreeing with Richard Hatfield's view that the MOD's treatment of him had been outstanding - 91:6), he thinks much the same of the intelligence underlying the 45 minute claim (31:12).

The contrary view (taken here) was picked up by BBC counsel Andrew Caldecott, highlighting Kelly's own reasoned disbelief - passage from 110:14 - of its validity.

Caldecott also picks up a point made here before - the lack of notes of (some) meetings at Number 10:
it appears that in
24 Government note-taking is a forgotten art. This is
25 a serious point. Accountability anywhere requires

1 a record to be kept of important meetings. Parish
2 councils keep minutes, but not apparently the Government
3 when planning the unprecedented presentation of
4 intelligence to the public.

Is he alleging that the absence of records is deliberate? Or, perhaps, that such records exist but have not been produced to the Inquiry?

As if grounds for doubting the good faith (to use a mild expression) of HMG aren't thick enough on the ground already, the bizarre appearance of dribs and drabs of late evidence from HMG is striking: the latest, I think, is an email that emerged only this Tuesday.

The inquiry, of course, was set up without powers to subpoena documents or compel witnesses; each party would supply what he thought was relevant [3]....

The statement (which came last in the day) of Inquiry counsel James Dingemans is noteworthy for the relaxed way in which, unlike his colleagues, he identifies the documentation he refers to by number (eg, BBC/6/13 or whatever) [4].

More substantially, for the fact that he does not address the quality of the 45 minute intelligence. But does hit the more general question of the politicisation of the intelligence in the dossier, quoting Dame Pauline Neville-Jones [5] as saying (154:6)
that there
7 was a fine line between showing the evidence and making
8 a case.

He spends most of his time on the Gilligan, the BBC/Campbell war and the Kelly treatment issues.

(No one, that I could see, had picked up the essential sleight of hand in the description of the JIC as representing the intelligence services, despite the fact that a substantial number of its members were not from those services. Nor the distinctly ambiguous position of the JIC Chairman - as having a foot in both camps, as much representing Number 10 to the agencies as vice versa.)

The key question for Lord Hutton remains HMG's bad faith, both in relation to the dossier and its handling of Kelly. On the dossier question, though Gilligan perversely denies the point, the charge he made against HMG, as revised [6], is still an allegation of bad faith.

Indeed, the only satisfactory outcome on the dossier question would be a finding that HMG drew it up in bad faith. But I doubt whether picking at the procedural niceties - the detailed to and fro of the drafting process - could ever be enough to satisfy Lord Hutton on the point: it needs the substance of the 45 minute claim to be undermined - and given the Messines Ridge treatment. Although it would certainly have been better if expert evidence had been led on the technical detail of the claim, it seems to me there is sufficient material in the evidence before the Inquiry to ground a finding that the 45 minute claim had indeed been inserted though known by HMG to be questionable, based on the information available at the time.

The best thing would be for a leak of unvolunteered evidence. Yet another Number 10 email, for instance. Not necessarily a smoking gun, but something that makes it clear that HMG have been hiding stuff.

(The dog that didn't bark all day was Teflon Tone himself. To judge from the closing statements, at least, Tony Blair appears to have slithered away from the crosshairs of all who might have taken pot-shots. And he wasn't recalled for cross-examination, either.)

The risk is that Lord Hutton may be averse to giving credence to the substance of Gilligan's story, given his apparent idée fixe that an allegation by the BBC and the broadcast by the BBC of an allegation by a source should be equated; and the errors in the story which Gilligan has admitted.

It may be (to judge from the areas his questioning has focussed on) he has in mind a balanced outcome, with one hit for each of HMG and the BBC: HMG's hit would be on the treatment of Kelly by the MOD, the BBC's on substance of the Gilligan story (rather than, say, the Governors' or management's handling of the affair).

Of course, Hutton did warn against jumping to conclusions from his lines of questioning...

  1. Transcripts morning (to page 59) and afternoon.

  2. The statements were televised (which the testimony was not): Sumption was revealed to have a tic which has him periodically shrugging his shoulders as if to dislodge the paws of some large but over-playful dog.

  3. Reminiscent of those Whitewater files of Hillary Clinton that were found like Moses in the basket.

  4. He stops doing this halfway through, for some reason (I've only read the transcript - it may have been evident on the TV).

  5. A former JIC Chairman and current BBC Governor.

  6. His counsel in her closing statement equates honesty and integrity (143:22). Now, as I understand it, Gilligan stands by his revised allegation in the 0732 broadcast (PDF) - that the 45 minute claim was inserted despite HMG knowing it was questionable (rather than the 0607 probably wrong) - which, is clearly an attack on the integrity of HMG, though not (necessarily) its honesty.

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