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. Yes
5 Mr Gompertz.
6 MR GOMPERTZ: May it please your Lordship. In the first
7 part of my speech it is my intention to outline some of
8 the personal views of the Kelly family of the failures
9 which led to the tragedy of Dr Kelly's death.
10 The second part of my address will be a very brief
11 analysis of some of the evidence which has been given to
12 the Inquiry. Constraints of time mean that a full oral
13 review is simply not possible. It is proposed to tender
14 written submissions which will amplify my oral remarks.
15 The Kelly family accept that your Lordship may well
16 find that various individuals were blameworthy, but
17 unlike so many families caught up in a personal tragedy
18 of this kind, the Kelly family are not seeking revenge
19 or retribution against individual scapegoats.
20 The principal aims of the family in this Inquiry
21 are: (1) that the duplicity of the Government in their
22 handling of Dr Kelly should be exposed; and (2) that the
23 systemic failures at the Ministry of Defence should be
24 identified and remedied so as to ensure, as far as is
25 humanly possible, that no-one else should suffer the

1
1 ordeal endured by Dr Kelly.
2 If, however, in order to achieve their goal it is
3 required that there should be some criticism of
4 individuals then the family accept this as a necessary
5 step towards their objective.
6 Unfortunately, it would appear that there is still
7 a long way to go before this objective is achieved
8 judging by the interim written submissions of the
9 Government, and by some of the evidence given to
10 the Inquiry in phase 2.
11 With the exception of the Walter Mitty slur, the
12 Government and the MoD do not accept that any criticism
13 should be made of any Government action or that any
14 blame should attach to any individual involved in the
15 events leading up to Dr Kelly's death. This should be
16 contrasted with the approach of the BBC in being
17 prepared to make admissions and accept criticism.
18 Recently, Mrs Kelly and her daughters have been
19 deeply hurt and angered by the evidence given last week
20 by Mr Richard Hatfield, Ministry of Defence Director of
21 Personnel. He said that Dr Kelly was responsible for
22 a fundamental failing in meeting Mr Gilligan. Secondly,
23 that with hindsight he, Mr Hatfield, might well have
24 initiated formal disciplinary action against Dr Kelly
25 and suspended him; and, thirdly, that the Ministry of

2
1 Defence gave Dr Kelly outstanding support.
2 The family perceive the first of these remarks as
3 the arrogant dismissal of Dr Kelly as the author of his
4 own misfortune. The second remark is particularly
5 surprising since, in his minute to Sir Kevin Tebbit on
6 7th July of this year, Mr Hatfield reported, and
7 I quote:
8 "Apart from the very unwise comment, he [Dr Kelly
9 that is] appears to have said no more than he or others
10 working for the MoD might have said at a public
11 seminar."
12 Indeed, Mr Hatfield reached a decision in that first
13 interview on 4th July, very quickly, that it was
14 inappropriate to institute disciplinary proceedings
15 against Dr Kelly.
16 Thirdly, were the matter not so serious, the family
17 would find the assessment of the support given to
18 Dr Kelly as outstanding to be risible. The family
19 consider that there was a huge failure in the Ministry
20 of Defence in Dr Kelly's line management and in the
21 manner in which his name was released into the public
22 domain. His line management was so complex that it was
23 very hard, if not impossible, for him to know to whom he
24 should address an application for authority for a media
25 contact.

3
1 Never again should someone be put in such
2 a position. Never again should a civil servant be
3 publicly named if there is an alternative route to
4 a legitimate objective which can be achieved without
5 naming him. Never again should there be such feeble
6 support for an employee in a time of crisis.
7 A glaring example is that the press office failed to
8 telephone Dr Kelly to warn him that his name was known
9 to journalists, apparently because it was thought that
10 it was appropriate for Dr Wells to break the news to
11 him. Sadly, the press office had not even bothered to
12 obtain Dr Wells' telephone number, even though it was
13 anticipated by many in the Ministry of Defence that the
14 public identification of Dr Kelly was imminent.
15 The family also wish me to mention the contribution
16 of the culture of the media to the tragedy of Dr Kelly's
17 death. The style of the Today Programme in apparently
18 making news as opposed to reporting it, the conduct and
19 confrontational approach of some investigative and
20 political journalists and the conduct of some of the
21 photographers all played a part in the harassment of
22 both Dr Kelly before his death and of the family after
23 it.
24 Dr and Mrs Kelly were forced to flee their home at
25 10 minutes' notice to escape the media pack. Dr Kelly's

4
1 attendances before the FAC and the ISC were accompanied
2 by intense media scrutiny including, of course, live
3 television coverage of his evidence to the FAC. The
4 effect of all this media attention upon an extremely
5 private and retiring man should not be underestimated.
6 The media frenzy continued after his death with
7 reporters and photographers at the gate of the family
8 home, and photographers lying in wait when the family
9 visited the coroner.
10 This treatment of a grieving family by the media is
11 wholly unacceptable. As one member of the family puts
12 it, and I quote, "We would like to see the media raise
13 its game."
14 I turn now to the evidence. Perhaps the first
15 question to be asked is: was Dr Kelly guilty of
16 a fundamental failing in meeting Andrew Gilligan on
17 22nd May, as characterised by Mr Hatfield? The answer
18 to that question is undoubtedly: no. The starting point
19 is that the procedures which purported to regulate
20 contacts between Dr Kelly and the media were hopelessly
21 confused. The Inquiry will note that the MoD has failed
22 to point to a single unambiguous clearly expressed
23 paragraph in any document which purports to regulate
24 Dr Kelly's contact with the media.
25 The witness called for the purpose of explaining the

5
1 regulation of such contact was Mr Richard Hatfield. He
2 relied on different documents at different stages of
3 the Inquiry to justify his suggestion that Dr Kelly was
4 guilty of a fundamental failing. When he first gave
5 evidence, Mr Hatfield suggested that three documents
6 regulated Dr Kelly's contact with the media, namely the
7 MoD personnel manual, the DSTL procedure for conduct and
8 the Civil Service code of conduct.
9 Since Dr Kelly was employed by the DSTL, albeit he
10 also worked for the MoD and the FCO, as well as for
11 UNSCOM and UNMOVIC on behalf of the United Nations, it
12 was, presumably, to the DSTL regulations that he should
13 have turned for guidance. These require that an
14 employee wishing to engage in media activities should
15 seek the consent of his line manager, which must be
16 given in writing. These conditions were never --
17 I repeat never -- applied to Dr Kelly's activities. No
18 witness at the Inquiry has said that there was any
19 expectation that Dr Kelly should seek consent from his
20 line manager or that his consent should be given in
21 writing. Detailed written submissions will be made on
22 the relevance and applicability of the other documents.
23 More recently, the Ministry of Defence, again
24 through Mr Hatfield, when he returned to the witness box
25 on 18th September, has placed reliance on the Defence

6
1 Council Instructions of 1999 as being a document which
2 regulated Dr Kelly's contacts with the media. This is
3 remarkable because at the outset of the Inquiry the MoD
4 provided the Inquiry with those documents which it
5 believed regulated Dr Kelly's contact with the media.
6 The MoD also provided the Inquiry with a note
7 entitled "MoD background note on Dr Kelly", which was
8 compiled after his death. There is no mention of the
9 Defence Council Instructions in the conditions of
10 employment set out in this note. It thus appears that
11 by the start of the Inquiry the MoD had not managed to
12 find the DCIs of 1999 which are now said to be relevant
13 and of which Dr Kelly ought to have been aware. Indeed,
14 the document did not surface until sent to the Inquiry
15 by fax at about 11 o'clock in the morning on
16 17th September.
17 It is submitted that this episode reflects poorly
18 upon Mr Hatfield. The Inquiry is invited to disregard
19 his evidence that these documents or a combination of
20 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 many
23 years and which reflected Dr Kelly's special position.
24 When, on 9th August 2002, Dr Wells introduced himself to
25 Dr Kelly as his line manager, Dr Kelly informed Dr Wells

7
1 of the existing arrangements for his contact with the
2 media. Neither then nor at any later stage did
3 Dr Wells, or indeed anyone else, suggest any change in
4 these arrangements which were that he should normally
5 seek authority for a media contact from Mr Lamb and the
6 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 Lamb
9 describes him as an accomplished media performer. To
10 a substantial extent, Dr Kelly was left to use his
11 discretion, we submit, as to the conduct of his contacts
12 with journalists. Dr Kelly made this clear in his
13 letter of 30th June and it is confirmed by
14 Mr Patrick Lamb in a memorandum prepared after
15 Dr Kelly's death in which he said, and I quote:
16 "This system, which ultimately relied on
17 self-discipline and judgment on all sides, worked well
18 and provided the media with expert background briefing
19 and led to no embarrassments for Her Majesty's
20 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 and
23 Mr Gilligan? It is common ground between them that the
24 intention was to have a general discussion about Iraq
25 where Mr Gilligan had recently been covering the war and

8
1 where Dr Kelly had not been for several years. There is
2 no evidence that the dossier was mentioned before the
3 meeting. Upon the basis that the purpose of the meeting
4 was a general discussion of Mr Gilligan's experiences in
5 Iraq, it is hard to determine from whom and for what
6 purpose Dr Kelly ought to have sought authority.
7 Indeed, the Inquiry might like to consider whether it
8 was necessary for Dr Kelly to seek permission at all for
9 such a meeting. Moreover, there is no reason whatever
10 to suppose that authority would have been refused if
11 requested.
12 Further, Dr Kelly did report to Mr Lamb after the
13 event that a meeting had taken place, albeit the report
14 was no more than a mention at a time when Mr Lamb was
15 extremely busy. The report clearly registered with
16 Mr Lamb since he was the genesis of the investigation
17 into the matter. Indeed, it could well be that had
18 Mr Lamb not been so busy at the time, that Dr Kelly
19 would have sat down in Mr Lamb's office, as was his
20 custom, and given a full report of the meeting with
21 Mr Gilligan.
22 It is apparent that Dr Kelly made no attempt to
23 conceal his contact with Mr Gilligan. This may indicate
24 that he felt that he had nothing to hide. It is
25 accepted, however, that he might have been more prudent

9
1 to have gone further and sought out Mr Lamb when he was
2 not so busy and informed him of the content of the
3 discussion with Mr Gilligan.
4 The next question is: what did Dr Kelly say at the
5 meeting of 22nd May? There are a number of sources for
6 Dr Kelly's account of the meeting. They are his letter
7 of 30th June, his interviews on 4th and 7th July, his
8 evidence to the FAC and the ISC and his accounts to his
9 family and his friends.
10 It is submitted that his account has been
11 substantially consistent, accurate and truthful. By
12 contrast, Mr Gilligan's accounts of the meeting in his
13 evidence and elsewhere have been demonstrated to be
14 unreliable, particularly with regard to the words spoken
15 by Dr Kelly.
16 There are four reasons why we submit that
17 Mr Gilligan is unreliable and that no credence should be
18 given to his evidence save where it is corroborated from
19 an independent source.
20 The first is this: Mr Gilligan's account of the
21 chronology and progress of the meeting is irreconcilable
22 with the physical evidence disclosed by expert
23 examination of his Sharp organiser.
24 Secondly, his account of the meeting, as given in
25 evidence, is in many respects inconsistent, first, with

10
1 the material generated by himself in preparation for the
2 broadcasts on 29th May; secondly, it is inconsistent
3 with the broadcasts themselves; and, thirdly, it is
4 inconsistent with his article in The Mail on Sunday on
5 1st June.
6 The next reason why we submit that Mr Gilligan's
7 evidence is unreliable is that he has lost his
8 manuscript note made after the meeting with Dr Kelly.
9 This casts considerable doubt on the content of the
10 conversation.
11 The fourth reason is this: that Mr Gilligan has
12 proved himself to be an unreliable historian in other
13 respects. For example, the changes in his account of
14 the number of meetings he had with Dr Kelly and when
15 they took place.
16 Worthwhile scrutiny of the evidence concerned with
17 these topics, particularly with regard to the
18 examination of the Sharp organiser, is a complex matter
19 requiring detailed analysis of the material. This is
20 best left to be dealt with in written submissions.
21 I turn, now, to consider whether there was
22 a Government strategy to use Dr Kelly for political
23 purposes in its dispute with the BBC.
24 LORD HUTTON: Mr Gompertz, just before you turn to that
25 subject, may I ask you: does the transcript of

11
1 Miss Susan Watts' conversation with Dr Kelly on 30th May
2 help to cast light on what Dr Kelly may have said to
3 Mr Gilligan?
4 MR GOMPERTZ: Yes it does, my Lord.
5 LORD HUTTON: If Dr Kelly had made a reference to the
6 45 minutes claim arising from a single source, would
7 that have been an appropriate observation for him to
8 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 whether
12 there was a Government strategy to use Dr Kelly for
13 political purposes in its dispute with the BBC and
14 whether the decision to confirm Dr Kelly's name was made
15 for improper reasons.
16 The family invite the Inquiry to find that the
17 Government made a deliberate decision to use Dr Kelly as
18 part of its strategy in its battle with the BBC. This
19 strategy included putting Dr Kelly forward as a witness
20 before the FAC and ISC in an attempt, which was
21 successful, to undermine the evidence which Mr Gilligan
22 had given and to show him to be unreliable.
23 This strategy was suggested in cross-examination to
24 a number of witnesses before the Inquiry. It was
25 systematically denied. The hypocrisy of these denials

12
1 has now been demonstrated by the disclosure of some
2 passages from Mr Campbell's diary. This document is one
3 of the few if not the only contemporaneous record of
4 events which was uninhibited by the prospect of
5 subsequent scrutiny.
6 The family submit that it is a compelling document.
7 On Monday morning this week, the Secretary of State
8 for Defence denied that there was any Government
9 strategy to name Dr Kelly without giving the appearance
10 of doing so. Immediately he left the witness box the
11 passages from the diary were disclosed by the Inquiry.
12 Although we had no opportunity to cross-examine Mr Hoon
13 upon them, they indicate, with clarity, if accepted by
14 the Inquiry, that the Secretary of State's denials of
15 the Government's strategy put to him in
16 cross-examination were false. Indeed, they reveal that
17 he was an enthusiastic supporter of the proposal to put
18 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 of
21 the Inquiry, that it would have been wrong to name
22 Dr Kelly until it was clear that he was Mr Gilligan's
23 single source and that that was never clear in
24 Dr Kelly's lifetime.
25 As late as yesterday morning we saw, for the first

13
1 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 and
3 was sent by Mr Hoon's private secretary,
4 Mr Peter Watkins, to Mrs Wilson in the Ministry of
5 Defence press office. The relevant portion reads:
6 "Jonathan Powell has separately suggested to SofS
7 [stands for Secretary of State] that we should simply
8 name our man, but left the decision to Mr Hoon who has
9 not yet reached a final view."
10 This document, which I highlight because of its late
11 disclosure, shows that the Government had it in mind to
12 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 of
14 Dr Kelly should enter the public domain. This document
15 demonstrates, once again, the hypocrisy of Mr Hoon's
16 public stance on the matter in phase 1 of the Inquiry.
17 Curiously, neither Mr Hoon nor Mr Powell saw fit to
18 mention this e-mail during their evidence. We were
19 unable to cross-examine upon it because we did not know
20 about it.
21 If, as the family submit, there was a strategy to
22 out Dr Kelly so that he could be used as a witness to
23 undermine Mr Gilligan in furtherance of the Government's
24 dispute with the BBC, this was a cynical abuse of power
25 which deserves the strongest possible condemnation.

14
1 The evidence of this strategy and the decision to
2 put Dr Kelly's name in the public domain for political
3 advantage is derived from multiple witnesses and many
4 documents.
5 The principal documentary sources of this evidence
6 are: first, the MoD press statement of 8th July; second,
7 the deployment of the question and answer material on
8 9th July; third, the information given in the two Lobby
9 briefings at 11 am and 3.45 pm on 9th July and, as
10 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 failure
13 to provide any reasonable explanation of the abandonment
14 of the original stance adopted in the Q and A material
15 of 4th July, when it was stated that the name would not
16 be disclosed and there was no benefit in revealing it.
17 The content of the press statement, the Q and A
18 material and the Lobby briefings has been well rehearsed
19 during the evidence. I do not intend, therefore, to go
20 through the information which was disclosed to the press
21 by these means. It will feature in our written
22 submissions.
23 What is noteworthy is that it was quite sufficient
24 to lead a number of journalists to identify Dr Kelly
25 within a couple of hours of the afternoon Lobby briefing

15
1 on 9th July.
2 Mr Campbell's diary requires further comment. The
3 entry for 4th July is illuminating. Part of the entry
4 reads:
5 "GH said his initial instinct was to throw the book
6 at him but in fact there was a case for trying to get
7 some kind of plea bargain."
8 The bargain suggested by the family is that there
9 would be no formal disciplinary proceedings and
10 therefore no risk of loss of employment, pension rights
11 or security status provided Dr Kelly gave evidence to
12 the Select Committees in accordance with the directions
13 or steers with which he would be provided.
14 Even if the plea bargain strategy was never
15 implemented, the fact that it was contemplated shows the
16 direction of thinking of the Government in general and
17 Mr Hoon in particular. Mr Hoon, formerly in practice at
18 the bar, would undoubtedly know the distinction between
19 a plea bargain and mitigation. The fact that Dr Kelly
20 had come forward voluntarily in a spirit of honesty and
21 openness would indeed be mitigation but could not be
22 brought within the term "plea bargain".
23 There is further support of the proposed deal which
24 I have mentioned to be found in the entry for 15th July
25 in Mr Campbell's diary, where there is reference to, and

16
1 I quote, "MoD assurances ... he was well schooled",
2 meaning that Dr Kelly had been instructed in how to
3 answer questions before the FAC.
4 The diary entry for 9th July reads:
5 "We kept pressing on as best we could at the
6 briefings. But the biggest thing needed was the source
7 out. We agreed we should not do it ourselves, so didn't
8 but later in the day the FT, Guardian [and] after
9 a while Evans got the name."
10 This entry was written after the MoD statement had
11 been issued on 8th July, thus the fact of the existence
12 of the source had already been revealed. It follows
13 that on this occasion at least, the phrase, I quote,
14 "needing the source out" must refer to the need for the
15 identity of the source to be revealed. It is submitted
16 that the entries on 6th and 7th July, where there is
17 reference to "getting the source up", have similar
18 meanings, namely that the identity of the source should
19 be revealed.
20 Information was also leaked to journalists. For
21 example, Mr Tom Baldwin wrote two articles for The Times
22 which were published on the 8th and 9th July.
23 Obviously, they must have been written the night before
24 publication, that is to say on the 7th and 8th July, yet
25 they contained information not yet released into the

17
1 public domain by the press statement and the Lobby
2 briefing. Mr Baldwin told the Inquiry that the sources
3 of both articles were, and I quote, "conversations with
4 Whitehall contacts".
5 It is relevant to consider whether Dr Kelly was
6 informed of the proposal to reveal his identity. The
7 strategy developed by the Government was even on its own
8 case unprecedented. That is the term used in the final
9 version of the Q and A material. The duty upon the
10 Government to keep Dr Kelly informed was, therefore,
11 heightened by the unprecedented circumstances. Yet
12 Dr Kelly's consent was not sought to any of the steps
13 taken by the Government with the exception of the
14 approval of the press statement. The Government has yet
15 to explain to the Inquiry why Dr Kelly was kept in the
16 dark about the strategy that No. 10 and the MoD had
17 developed to confirm his name to journalists if that
18 name was put to the MoD press office.
19 It is submitted that the plain and obvious reason
20 was the risk that he might not consent to it and might
21 cease to cooperate by not appearing before the FAC and
22 the ISC, thus defeating the object of the exercise.
23 A possible explanation was given by Mr Hatfield. He
24 said, and I quote, "I did not believe and I do not
25 believe I required his consent."

18
1 This speaks volumes as to the attitude that the MoD
2 adopted in the course of its decision-making, namely
3 that Dr Kelly's views were irrelevant. It may also shed
4 light on the true nature of Mr Hatfield's interactions
5 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 was
8 not on trial and he was entitled to the same fair
9 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 decision
12 to make a press statement and the content of that press
13 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 clear
17 that Dr Kelly was informed of the existence of it. He
18 was shown a copy of an early draft of a press statement
19 in the course of the interview on 7th July and, it
20 seems, took a copy of that statement away with him.
21 There are two significant features about this press
22 statement and the manner in which it was passed to
23 Dr Kelly.
24 First, it does not contain any information that
25 would be likely to lead to Dr Kelly being identified.

19
1 The third paragraph of the press statement that was
2 eventually to be released had not yet been added to the
3 draft seen by Dr Kelly. It was this paragraph which
4 contained the crucial material which would assist
5 identification. Dr Kelly was, therefore, left with the
6 impression that a statement might be issued which did
7 not identify him and which would not lead, even
8 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 it
11 would not be necessary to reveal his name or say
12 anything more than that his account did not match that
13 of Andrew Gilligan.
14 This is Mr Hatfield's record of this part of the
15 meeting:
16 "I said that I did not think that it would be
17 necessary to reveal his name or to go into detail beyond
18 indicating that the account given to us did not match
19 Gilligan's FAC account, at least initially."
20 According to Mr Hatfield's latest account, the press
21 statement which was in fact issued by the MoD at 5.45 pm
22 on 8th July was read to Dr Kelly over the telephone on
23 8th July at 5.10 pm. Two matters are striking about
24 this. First, that it was only 35 minutes before the
25 statement was issued; second, that Mr Hatfield's call

20
1 lasted some three and a half minutes. We query whether
2 this was sufficient time for Dr Kelly to reflect on the
3 statement, to judge what additions had been made to it,
4 to suggest drafting points of his own, to take advice
5 and to advance arguments as to why matters should or
6 should not be included.
7 I turn to the Q and A material. No witness to
8 the Inquiry has suggested that Dr Kelly was ever
9 informed of the contents of this material. It is
10 curious indeed why Mr Hatfield did not attempt to convey
11 at least the sense of the Q and A material to Dr Kelly
12 in the course of his conversations, particularly as, on
13 his latest account of the events of 8th July, he had it
14 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 the
18 press statement because his employer was proposing, in
19 the statement, to release information about Dr Kelly's
20 position and his work. Yet information of precisely
21 that kind was to be released in the question and answer
22 material in answer to journalists' questions. Why was
23 it that it was not even mentioned to Dr Kelly?
24 Now, the decision to confirm the correct name. No
25 witness to the Inquiry has suggested that Dr Kelly was

21
1 informed that the MoD proposed to confirm his name to
2 journalists if it was put to the press office. No
3 proper explanation has been given for this striking
4 omission. Various witnesses have suggested that as
5 Dr Kelly knew that his name was likely eventually to
6 emerge, the omission is, therefore, nothing to the
7 point.
8 The difficulty facing the Government with this line
9 is twofold. First, there is no evidence that Dr Kelly
10 knew that his name would emerge. He acknowledged in
11 interviews that this might occur. Second, an employee's
12 recognition that his name might become public is no
13 reason for an employer not to inform him of the
14 employer's decision to confirm his name to a journalist
15 if that journalist correctly put his name forward. The
16 issue is perhaps best looked at differently. What good
17 reason was for there for not informing Dr Kelly of this
18 strategy? We submit there was none.
19 According to Mr Hatfield, Dr Kelly was told that the
20 statement was to be released at about 5.10 pm on
21 8th July, that is to say 35 minutes before the press
22 statement was in fact released.
23 Dr Kelly had not been given advice, guidance or
24 assistance as to what the consequences of the press
25 statement might be before it had been released. He had

22
1 not been told, for example, whether to take calls from
2 the press, whether to volunteer that he was the
3 individual named in the press statement if a journalist
4 asked him, nor whether to make comment or not on any
5 questions which might be asked of him.
6 There has been no explanation of why Dr Kelly was
7 not given such assistance before the press statement was
8 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 in
12 the evening of 8th July. Records indeed confirm that
13 two such calls were made from Mrs Wilson's office. They
14 were made at 26 minutes past 8 and 46 minutes past 8 and
15 lasted respectively 51 seconds and 1 minute and
16 19 seconds. So less than 2 and a half minutes of time
17 was the extent of the assistance the MoD could manage to
18 give Dr Kelly at this stage, and that assistance came
19 some two and a half hours after the press statement had
20 been released.
21 The MoD telephone records also reveal that no call
22 was made to Dr Kelly on the evening of the 9th July
23 after the press had identified Dr Kelly, at about
24 5.30 pm, until Dr Wells called Dr Kelly just after
25 7 o'clock. Mrs Wilson agreed that she never called

23
1 Dr Kelly at all. She did not call him, she said,
2 because she thought that his line manager should break
3 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 was
6 available to speak to Dr Kelly.
7 As Mr Dingemans put it, during the course of the
8 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 and
11 Dr Kelly, it was apparent that Dr Kelly was wholly
12 unprepared for what was to come. This exemplifies the
13 total lack of care extended to Dr Kelly by the Ministry
14 of Defence at this stage.
15 It is right to point out that Dr Wells made a number
16 of telephone calls to Dr Kelly on Friday 11th July, when
17 Dr Kelly and his wife were in Cornwall. Only two of
18 these calls exceeded 3 minutes, and most were no doubt
19 concerned with arrangements for the Select Committee
20 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 and
24 tired", and complaining that he had had a difficult time
25 and that the matter had played heavily on his mind since

24
1 it broke six weeks earlier.
2 On 14th July a memorandum from Colin Smith of the
3 FCO said that Dr Kelly was feeling the pressure and not
4 handling it well. Mr Lamb made a telephone call of
5 reassurance to Dr Kelly, but otherwise nothing seems to
6 have been done in consequence of these comments. No
7 counselling was arranged, no contact was made with
8 Mrs Kelly to enquire as to her views of her husband's
9 morale and well-being.
10 The meeting of 14th July ought to have been used as
11 an opportunity to assess the state of Dr Kelly's health
12 and his state of mind to see how he was coping with the
13 pressure, to ensure he was getting all the support he
14 needed in readiness for the forthcoming Select Committee
15 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 to
18 tell Dr Kelly what he should and should not say at the
19 FAC and the ISC. The focus of the meeting was not
20 Dr Kelly's welfare but to ensure that Dr Kelly did not
21 say anything that might embarrass the Government.
22 The suggestion that the MoD were giving steers to
23 Dr Kelly at the meeting has been denied by many
24 witnesses. The evidence that this is exactly what
25 occurred is to be found from three sources. First, when

25
1 he gave evidence for the first time Mr Howard said that
2 it was his intention before going to the meeting to
3 identify first those areas of questioning that Dr Kelly
4 could and should respond to; and, second, those areas of
5 questioning where he could legitimately say: actually
6 this is more a matter for the Ministry of Defence, for
7 Ministers, rather than for me.
8 Counsel to the Inquiry realised the importance of
9 this answer. He immediately read it back to Mr Howard
10 from the transcript and confirmed that this was
11 Mr Howard's evidence. Mr Howard gave such confirmation.
12 The importance of the answer is that it reveals that it
13 was Mr Howard who was identifying, for the benefit of
14 Dr Kelly, not only the tricky areas, which were recorded
15 in the notes, but also the suggested answers, for
16 example "that is a matter for Ministers".
17 Second, when the note of the meeting came to be
18 typed up by Dr Wells, curiously he decided to omit the
19 phrase "tricky areas". This is strange since not only
20 is there no doubt that the phrase was used, it is in all
21 the records which were made of the meeting, but the
22 phrase also appears in Dr Wells' own notes. Why should
23 he not follow his own notes faithfully in the typed
24 version?
25 Thirdly, Mr Campbell's diary reveals that he had

26
1 been given assurances by the Ministry of Defence that
2 Dr Kelly was well schooled, that is his entry for
3 15th July. Schooling a witness who is to appear before
4 a Parliamentary Committee is, we submit, an improper
5 activity. Assisting the witness with his welfare needs,
6 ensuring that he knows the constitutional position of
7 the Committee and highlighting likely topics of
8 discussion is legitimate; schooling a witness involves
9 coaching and instructing him as to the evidence that it
10 is desired he should give. This is wholly illegitimate.
11 If that did not occur then why did Mr Campbell choose to
12 record it in that way?
13 So it was that the next day, Tuesday 15th July, that
14 Dr Kelly appeared before the FAC. The arrangements for
15 him to get there did not go smoothly. The atmosphere
16 was oppressive, as was the tone of some of the
17 questioning. In what seems to have been Dr Kelly's only
18 request throughout this affair, he asked that
19 Mr Patrick Lamb should accompany him to the Committee.
20 That was denied him. Even Mr Campbell himself spoke of
21 his appearance before the FAC as a "gruelling
22 experience". How much more so must it have been for
23 Dr Kelly?
24 Your Lordship will have been moved by the evidence
25 given by Mrs Kelly and her daughter Rachel about the

27
1 last few days of Dr Kelly's life, about how tired and
2 stressed he was, how unhappy he was, how he felt
3 betrayed by the Ministry of Defence, no doubt in part
4 because he had been led to believe that the whole matter
5 could be dealt with confidentially. Instead, he found
6 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 both
10 nationally and on behalf of the United Nations. He had
11 led weapons inspection teams in Russia and in Iraq. He
12 had been awarded the CMG and was being considered for
13 further honours, perhaps a knighthood. He had served
14 his country loyally and with distinction. Yet all the
15 while he remained a modest, retiring man who never
16 sought the limelight.
17 The Government and the nation have lost their
18 greatest expert in biological weapons of mass
19 destruction, yet he was characterised by his employers
20 to suit their needs of the hour as a middle ranking
21 official and used as a pawn in their political battle
22 with the BBC. His public exposure must have brought
23 about a total loss of self esteem, a feeling that people
24 had lost trust in him. No wonder Dr Kelly felt betrayed
25 after giving his life to the service of his country. No

28
1 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 SUMPTION
7 MR SUMPTION: My Lord, I speak for the Government, the
8 Prime Minister and the Secretary of State for Defence
9 and for all those in Government who have been called
10 upon to defend their actions before this Inquiry.
11 I do not intend to engage in a detailed analysis of
12 the evidence. That is an exercise which is better left
13 to written submissions which will inevitably be far more
14 detailed than I can be on my feet. My main objective is
15 to address some issues of principle which need to be
16 borne in mind throughout your Lordship's consideration
17 of these questions.
18 The starting point is the dossier. In one sense the
19 dossier is remote from the tragedy which occurred
20 10 months later at Harrowdown Hill, but it has become
21 central to the work of your Lordship's Inquiry because
22 the way in which it was prepared was the subject of
23 Andrew Gilligan's broadcast on 29th May. As a direct
24 result of that broadcast, it became the most
25 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 his
3 own life are never easy for others to understand after
4 the event and we will probably never know the whole
5 picture, but it is clearly as certain as anything can be
6 that one major factor was the public controversy which
7 followed from the allegations that Mr Gilligan put into
8 the public domain.
9 At the same time, the actual facts about the
10 preparation of the dossier are reasonably clear and have
11 been from an early stage of this Inquiry. Some of them
12 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 time
15 before September 2002 the British Government had been
16 receiving intelligence assessments from the Joint
17 Intelligence Committee about Iraq's capacity to develop
18 and use weapons of mass destruction. There is no doubt
19 that these assessments were a source of serious and
20 proper concern. Whether they were right or wrong is not
21 the issue now before us. The question is what the
22 Government was actually told by the JIC and the
23 intelligence agencies; and there is no real doubt about
24 that. With all due qualifications about the difficulty
25 of gathering intelligence inside a country such as Iraq,

30
1 the Saddam regime was perceived to have a significant
2 chemical and biological weapons programme.
3 It has always been recognised that there is
4 a natural tension between the use of secret intelligence
5 to inform Ministers' decisions and the need of
6 governments to explain their decisions publicly. There
7 are times when in a democracy information which would
8 not normally be disclosed has to be shared. The British
9 Government's object in publishing the dossier was to
10 share with Parliament and the public the advice which
11 they had received from the JIC and which, to
12 a significant extent, guided their actions.
13 Your Lordship has heard that that is why, from the
14 outset of the process, the decision was made that the
15 dossier was to be drafted under substantially the same
16 procedures as applied to the JIC's unpublished
17 assessments. In other words, it was to be prepared by
18 the JIC's staff under the supervision of its Chairman
19 and to be reviewed and approved by the JIC itself before
20 publication.
21 The material which was included in the dossier, as
22 well as the way in which it was expressed and the
23 emphasis given to it, reflected the judgment of
24 Mr Scarlett, endorsed by the Committee. Even now this
25 does not appear to be wholly accepted by the BBC, but

31
1 I would suggest that there is no reason why it should
2 not be accepted by your Lordship. The process has been
3 described in detail by Mr Scarlett himself, by the Chief
4 of Assessment Staff, Mr Miller, and by the Security and
5 Intelligence Coordinator Sir David Omand. They were all
6 directly responsible for the process and their evidence
7 was endorsed by all the other JIC members from whom
8 your Lordship heard: Sir Richard Dearlove, Sir David
9 Manning, Sir Joe French and Mr Cragg, all men with
10 considerable experience of the way that the Committee
11 operates.
12 The process was as rigorous in the case of the
13 45 minutes point as it was for every other item of
14 intelligence based material in the dossier. The
15 45 minutes point was based on intelligence supplied by
16 the SIS. It was extremely recent intelligence, which
17 had come in at the end of August and was not assessed by
18 the JIC until 9th September. Certainly it was single
19 sourced, like most of the SIS's reporting, but it came
20 from a reliable source and originated with an informant
21 who was in a position to know the facts. His
22 information was in accord with what was already known
23 about the military command and control systems of the
24 Iraqi Government and its armed forces; and indeed it is
25 worth pointing out that the underlying intelligence

32
1 suggested an average timing of between 20 and
2 45 minutes, so that the statements in the dossier were
3 at the most conservative end of the scale. They
4 represented a realistic judgment that if the Iraqi army
5 was equipped with chemical or biological weapons and on
6 a state of alert, it would be able to use them within
7 that timescale.
8 Now, the suggestion has been made to your Lordship
9 that because the dossier was to be presented as
10 reflecting the advice of the JIC there was no scope for
11 non-JIC personnel to make comments or suggestions about
12 its drafting. It is, I think, suggested that their
13 comments or suggestions were inappropriate even on the
14 footing that Mr Scarlett and the JIC were only going to
15 adopt them if they were justified by the available
16 intelligence.
17 In looking at this point, I would suggest that we
18 are concerned only with those comments which actually
19 got through to Mr Scarlett and Mr Miller. What matters,
20 in this context, are the comments and suggestions
21 contributed by the Prime Minister, by his Director of
22 Strategy and Communications, Mr Campbell, and by his
23 Chief of Staff, Mr Powell.
24 I have to say that the idea that these people had no
25 business to be commenting on the drafts of the dossier

33
1 is not a view of the position which any British
2 Government can take for reasons of basic constitutional
3 principle. Responsibility for any public statement of
4 the British Government inescapably rests with Ministers.
5 In this case it rested, in particular, with the
6 Prime Minister. He had commissioned the dossier. He
7 was the Minister primarily responsible for the work of
8 the Intelligence Services. It was out of the question
9 that the Prime Minister should have no say in a document
10 for which he was to be personally responsible to
11 Parliament.
12 Mr Campbell and Mr Powell are senior members of the
13 Prime Minister's personal staff. They became involved
14 because they were told to become involved by the
15 Prime Minister; and since it was essential for the
16 Prime Minister to be involved in the process, it was
17 entirely appropriate that he should be allowed to call
18 upon the assistance of the most senior members of his
19 own staff.
20 I am not suggesting to your Lordship that that made
21 it appropriate to interfere with the judgment of the JIC
22 or with the processes of its Chairman and staff. The
23 dossier clearly had to be exactly what it said it was,
24 namely a document reflecting the advice given to the
25 Government over the years by the JIC, together with the

34
1 most recent intelligence and the current judgments of
2 the Committee. But provided that that was always clear,
3 there was no reason why comments and suggestions should
4 not be made by the Prime Minister and his staff.
5 It was always clear. It had been stated in the
6 clearest terms in Mr Campbell's memorandum of
7 9th September, both Mr Campbell and Mr Scarlett have
8 given evidence that that was the basis on which any
9 comments and suggestions were made and we know that the
10 comments and suggestions that were made were accepted
11 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 precisely
14 because of the known objectivity and independence of the
15 JIC and its Chairman and staff, precisely because of the
16 rigour of John Scarlett's approach to his job that it
17 was appropriate to make these comments. Those who made
18 them could do so in the knowledge that while they might
19 raise matters for Mr Scarlett to consider, they would
20 not be compromising his objectivity.
21 There is a world of difference between making
22 comments which the recipient might construe as an
23 instruction and making them in the context of a clearly
24 understood distribution of responsibilities under which
25 the JIC's judgment was paramount. The comments actually

35
1 made broadly reflected the fact that the dossier was
2 going to be read by the public. It could not,
3 therefore, be drafted in the same way as an ordinary JIC
4 assessment, which is intended for circulation among
5 a limited number of Ministers and officials, all of whom
6 are familiar with intelligence documents.
7 An ordinary JIC assessment may omit matters which
8 are assumed to be known to the reader but may not be
9 known to the general public. It may use linguistic
10 conventions which are well understood by official
11 readers but will not do justice to the significance of
12 particular points in the eyes of a general reader.
13 Most of the comments raised matters of factual
14 detail for consideration by the JIC Chairman and his
15 staff which were clearly designed to clarify the
16 document and not to alter its message.
17 LORD HUTTON: But what if the suggestions on presentation
18 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 was
22 appropriate to strengthen it.
23 LORD HUTTON: Yes.
24 MR SUMPTION: If he thought that it was appropriate, having
25 regard to the underlying intelligence, to strengthen it

36
1 then there is no reason why he should not do so and no
2 reason why he should not be asked to consider the point.
3 The essential question is whether Mr Scarlett was going
4 to be felt to feel under pressure to strengthen it
5 unjustifiably simply because a comment of that kind had
6 been made by the Prime Minister's staff. It is moreover
7 right to add not all of the comments were designed to
8 strengthen it.
9 LORD HUTTON: Your point is that provided that the
10 intelligence is there to support what is said, if the
11 presentational suggestions strengthen the dossier in the
12 eyes of the public, that is permissible.
13 MR SUMPTION: In my submission it is. The essential
14 question is: is there a clear distribution of
15 responsibilities under which the difference between
16 a comment and an instruction is very clearly understood
17 by the recipient? If there is, there cannot possibly be
18 a legitimate objection to a comment, even if its
19 acceptance would lead to the strengthening of the
20 dossier, bearing in mind that the whole object of this
21 exercise was to present to Parliament a dossier which
22 accurately reflected the underlying intelligence.
23 For that reason I would submit that it was perfectly
24 proper for the Prime Minister's staff to enquire, for
25 example, what intelligence was available on particular

37
1 points. It was perfectly proper for them to comment on
2 the way that particular points were expressed.
3 Some of the comments, at one end of the scale, not
4 all of them of course, were little more than
5 proofreading; and I would put into that category the
6 classic example, namely Mr Campbell's comment about the
7 45 minutes point in his memorandum of 17th September.
8 It simply pointed out that the emphasis in the executive
9 summary was not the same as the emphasis in the main
10 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 of
13 Mr Campbell's and Mr Powell's comments was scrupulously
14 considered by Mr Scarlett and the assessment staff
15 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 these
18 comments were rejected.
19 Ironically the comment which comes closest to being
20 a substantive suggestion is nothing to do with the
21 45 minutes point and did not come from Mr Campbell, it
22 came from Mr Powell, the Prime Minister's Chief of
23 Staff. He made a point based on his recollection of the
24 intelligence that it was not right to describe Iraq's
25 capacity to use weapons of mass destruction as being

38
1 essentially defensive. Mr Scarlett then went back over
2 the intelligence and concluded that the existing text
3 could not be justified. As he told your Lordship,
4 recent intelligence shows that the picture was in fact
5 more complex than the text suggested. There were both
6 offensive and defensive aspects to Iraq's policies on
7 the use of weapons of mass destruction. So he took out
8 the statements which were not a balanced reflection of
9 the underlying intelligence.
10 It is worth asking: can it seriously be suggested
11 that the dossier would have been a better document or
12 closer to the judgments of the JIC if Mr Scarlett had
13 never been prompted to carry out that exercise? The
14 answer is, quite obviously: no.
15 What of the 45 minutes point itself, which
16 Mr Gilligan's broadcast cited as the classic example of
17 outside interference with intelligence judgments? That
18 turns out to be supported by absolutely nothing apart
19 from a suggestion from Mr Campbell that Mr Scarlett
20 should look at the internal consistency of his language
21 in different parts of the document. It is, in fact, one
22 of the ironies of this story that the change which
23 brought the two parts of the document into line had
24 already been resolved upon by Julian Miller and the
25 assessment staff before they were aware of Mr Campbell's

39
1 comment. So that even that relatively footling point
2 turns out to be immaterial.
3 The allegation subsequently made by Mr Gilligan
4 although not, as he accepted, by Dr Kelly that changes
5 had been made on Downing Street's orders could hardly be
6 further from the truth.
7 I have made the main points that need to be made
8 about the dossier but before I turn to Mr Gilligan's
9 broadcasts I would like, if I may, just to deal briefly
10 with two matters.
11 LORD HUTTON: Just before you do that, Mr Sumption, if you
12 have the position that the dossier has been made
13 stronger by reason of suggestions on presentational
14 points, those suggestions being entirely consistent with
15 the underlying intelligence, can that be described, to
16 use an inexact term, as "sexing up" the document?
17 MR SUMPTION: It could not I would suggest on any view be
18 described as sexing up the dossier. I have made the
19 broader point that it was in fact an entirely proper
20 process.
21 LORD HUTTON: Yes.
22 MR SUMPTION: But the manner in which it was described in
23 Mr Gilligan's broadcast bore absolutely no relation to
24 the process that actually occurred.
25 LORD HUTTON: Thank you.

40
1 MR SUMPTION: The first of the two points I want to make
2 before I leave this particular area concerns the
3 evidence of Dr Jones. In describing this as a byway in
4 the present Inquiry I mean no disrespect to
5 your Lordship who has been examining him or to Dr Jones
6 himself. Now that we know the facts, we can put the
7 issue in some kind of context.
8 Dr Jones was one of a number of officials in the
9 Ministry of Defence who had an opportunity to comment on
10 the dossier from their own specialised points of view.
11 In this case it happened under the auspices of the
12 Defence Intelligence Staff. Dr Jones in fact had no
13 objection to the inclusion of the 45 minutes point. His
14 view was that it was expressed too strongly for
15 something that was based on a single source whose
16 credentials were uncertain. Dr Jones' concerns were, in
17 fact, taken into account among a large number of other
18 comments presented by the DIS to the Cabinet Office but
19 Dr Jones did not have access to the whole of the
20 relevant material, as he recognised in his memorandum of
21 complaint. The compartmented intelligence which was
22 decisive on this issue was not shown to him.
23 The reality is that whether or not the single source
24 in this particular case justified the confidence placed
25 in it was not a matter for Dr Jones, it was a matter for

41
1 the originating agency, namely the Secret Intelligence
2 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 how
5 his views can be relevant. He had no involvement in the
6 preparation of the dossier. His misgivings did not even
7 emerge from the machinery of the Defence Intelligence
8 Staff. It can therefore hardly be said that they were
9 improperly excluded or ignored by the draftsmen in the
10 Cabinet Office.
11 Your Lordship has heard a great deal from the BBC
12 and other journalists about a persistent undercurrent of
13 discontent about the contents of the dossier among
14 people who were lower down the intelligence hierarchy.
15 Without knowing who these people are, it is difficult to
16 know whether one is dealing with one or two individuals
17 speaking to a lot of different journalists very often or
18 to a more widespread expression of discontent. Without
19 knowing who they are, it is also impossible to discover
20 what the real grounds of their concern were, whether
21 they had been fairly reported in the press and whether
22 they were actually in a position to know the facts.
23 It is a matter of speculation, but it seems likely
24 that any discontent of this kind comes from people like
25 Dr Jones whose motives are entirely honourable but who

42
1 were simply out of the loop so far as parts of the
2 relevant intelligence are concerned. What does seem
3 clear, from the evidence, is that it does not emanate
4 from the agent handlers or assessment staff concerned
5 with Iraq at the SIS or from members or staff of the
6 JIC; and they are the people in a position to know.
7 My Lord, the second matter I wanted to mention is
8 related to the first. It concerns Dr Kelly's own role
9 in the preparation of the dossier. Dr Kelly contributed
10 to the historical section of the dossier which dealt
11 largely with the work of UNSCOM in Iraq before 1998. He
12 also answered a specific question which had arisen about
13 growth media. In addition to those contributions, he
14 would also, in all probability, have seen the drafts of
15 the whole dossier, including the draft which was
16 considered by the Defence Intelligence Staff on
17 19th September. It is possible that he contributed,
18 along with others, to the DIS comments sent to the
19 Cabinet Office assessment staff on the same day.
20 However, by no stretch of the imagination could
21 Dr Kelly be described as one of the senior officials in
22 charge of drawing up the dossier. He was not. He was
23 simply one of many people who were in a position to
24 comment on areas within their own specialised expertise.
25 Dr Kelly may well have shared the view of Dr Jones

43
1 about the 45 minutes point. His conversations with
2 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 underlying
5 intelligence. It was not his responsibility to assess
6 its credibility and he was not in a position to do so.
7 My Lord, I therefore turn to Mr Gilligan's
8 broadcasts and to the dispute with the BBC.
9 I want to preface my remarks about this by saying
10 that it is no part of my instructions to treat this
11 Inquiry as a continuation of the dispute between the
12 Government and the BBC. The Government is not and never
13 has been engaged in a crusade against the BBC, nor are
14 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 facts
17 are about the preparation of the dossier -- I have
18 addressed your Lordship about that. It also has an
19 interest in explaining why it was that the Government
20 felt as strongly as it did about Mr Gilligan's
21 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 of
24 Mr Gilligan and the BBC which may be unsatisfactory but
25 I am concerned with them only insofar as they help to

44
1 understand the strength of feeling which this dispute
2 generated within the Government and elsewhere.
3 The essential point made in Mr Gilligan's two
4 broadcasts on the Today Programme was that the
5 Government had included material in the dossier contrary
6 to the advice of the Intelligence Services. The
7 45 minutes point was said to be the prime example of
8 that. It was said that the 45 minutes point was based
9 on a single source whom the Intelligence Services
10 believed had got it wrong.
11 There are three points which need to be made about
12 this allegation at the outset. First of all, it was
13 quite plainly an allegation of conscious wrongdoing on
14 the part of the Government. Now, that is so whether one
15 looks at the 6.07 broadcast or at the 7.32 version.
16 In the 6.07 broadcast the allegation of dishonesty
17 was made more directly. It was said that the Government
18 probably knew that the 45 minutes point was wrong when
19 it put it into the dossier. At the end of the 6.07
20 broadcast, Mr Gilligan explicitly distinguished between
21 an honest mistake and a deliberate falsehood. He made
22 the point that the second was a great deal more serious
23 than the first, the implication plainly being that that
24 was the category to which the Government's conduct
25 belonged. That, of course, was the version which echoed

45
1 around the world. There may not be many people apart
2 from Mr Davies who are awake and listening to the Today
3 Programme at 6.07 but there is no doubt that it is very
4 closely monitored by the world's media.
5 The 7.32 version in fact made substantially the same
6 point albeit not quite so much in your face. The word
7 used on the second occasion was that the Government knew
8 that the point was questionable rather than that it was
9 wrong; but on this occasion, as on the earlier occasion,
10 the point being made was that the Government had
11 overridden the advice of the Intelligence Services.
12 Since the dossier had claimed to reflect that
13 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 the
16 Intelligence Services which they knew was actually
17 contrary to those views in some significant respects.
18 The second point that needs to be made at the outset
19 is this: it is apparently the position of the BBC that
20 there is a difference between an allegation made by the
21 BBC itself and an allegation which it reports as coming
22 from an outside source. Clearly, there is a difference,
23 but it is a great deal less significant than the BBC has
24 suggested. From the point of view of the reputation of
25 the people involved, it is almost imperceptible.

46
1 The allegations attributed to Mr Gilligan's source
2 were only important because Mr Gilligan had broadcast
3 them. If a news organisation broadcasts allegations as
4 coming from an anonymous source, whose authority is, by
5 definition, incapable of being assessed by listeners,
6 the broadcaster, I would suggest, is necessarily adding
7 a substantial endorsement of his own. The broadcaster
8 may not be saying: we think that this is certainly
9 true -- that I would accept; but a reputable broadcaster
10 is saying: we think that these allegations are worthy of
11 belief by you, the listeners.
12 In the end I do not think that any of the BBC's
13 witnesses really disputed that. The BBC is undoubtedly
14 a reputable broadcaster, arguably the most reputable or
15 one of the most reputable in the world. It also has
16 a worldwide reach. The BBC must expect that serious and
17 anonymous allegations it chooses to broadcast will be
18 taken extremely seriously not just by those against whom
19 they are directed but by everybody else.
20 In fact, one of the more unfortunate aspects of
21 Mr Gilligan's broadcasts is that it did not even fairly
22 report what Dr Kelly had said to him. I am not going to
23 explore, at length, what exactly Dr Kelly did say to
24 Mr Gilligan. It may well have been more than Dr Kelly
25 admitted to saying in July when he was interviewed by

47
1 the Ministry of Defence and when he was giving evidence
2 to the two Parliamentary Committees. It was certainly
3 less than Mr Gilligan attributed to him.
4 To take only the more abrasive examples, Dr Kelly
5 did not actually say that the Government put the
6 45 minutes point into the dossier probably knowing that
7 it was wrong. Mr Gilligan accepts that. Nor did
8 Dr Kelly say that Downing Street had ordered the dossier
9 to be sexed up; in fact he did not use the word "sexed
10 up" at all, that was Mr Gilligan's sound bite.
11 Thirdly, it is right that I should say something
12 about the nature of Mr Gilligan's source, so far as he
13 described it in his broadcasts. In his two Today
14 Programmes Mr Gilligan described his source as "one of
15 the senior officials in charge of drawing up the
16 dossier". Although Mr Gilligan does not admit this, it
17 must be most improbable that Dr Kelly in fact described
18 himself in that way.
19 If Dr Kelly said that he or others were unhappy with
20 the 45 minutes point, if Dr Kelly said that, it might
21 fairly be described as a matter of opinion. It was an
22 opinion which might have been held by someone who did
23 not have access to all of the underlying intelligence or
24 the other surrounding information on which the JIC
25 assessment is based. That is quite different from

48
1 Dr Kelly saying that he was one of the senior officials
2 in charge of drawing up the dossier. If Dr Kelly said
3 that, then he was telling a deliberate untruth in order
4 to boost his own significance; and there is absolutely
5 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 this
8 point is not exactly increased by the way in which he
9 says that it came out. Dr Kelly never volunteered this
10 description of his own functions, and Mr Gilligan never
11 asked him to explain it. Mr Gilligan told your Lordship
12 that the description was proposed out of the blue at the
13 very end of the interview by Mr Gilligan himself. It
14 happened, he said, after he had agreed what quotes he
15 could use and after he had put his personal organiser
16 away. He said that Dr Kelly accepted it from him
17 together with an alternative description of his
18 functions, which was different.
19 That has all the hallmarks of a self-serving
20 invention designed partly to explain why the critical
21 point does not appear in Mr Gilligan's notes and partly
22 to accommodate the awkward evidence about the two
23 versions of his file which were found on his personal
24 organiser.
25 Whatever may be the truth about that, Mr Gilligan

49
1 acknowledges that Dr Kelly never did describe himself as
2 a member of the Intelligence Services, let alone
3 a senior one. Nonetheless he was described as "my
4 intelligence source" by Mr Gilligan himself on Radio 5
5 Live slightly later on the same day. That description,
6 which Mr Gilligan always knew to be wrong, was taken up
7 by other BBC personnel on a number of occasions: by
8 John Humphrys on the Today Programme on 29th May itself,
9 by the World at One later in the same day, and in
10 a number of broadcasts over the following weeks by
11 Richard Sambrook among others. Mr Gilligan never sought
12 to correct it.
13 Perhaps even more remarkable, since he is a very
14 senior executive of the BBC, Mr Sambrook realised by
15 27th June that the source was not a member of the
16 Intelligence Services and nevertheless allowed the
17 impression that he was to persist, even among the
18 Governors of the BBC. This point about the source's
19 alleged membership of the Intelligence Services cannot,
20 I suggest, just be brushed aside.
21 The essential point broadcast by Mr Gilligan was
22 that No. 10 had overruled the advice of the Intelligence
23 Services. That meant that the fact that his source was
24 said to be a senior member of the Intelligence Services
25 was an extremely important factor in making his reported

50
1 allegations appear credible.
2 I am not going to retrace, day by day, the history
3 of the subsequent dispute between the Government and the
4 BBC. What does seem clear is that the main problem
5 always was that the BBC never acknowledged how serious
6 the allegations which they had broadcast really were.
7 All of the BBC witnesses acknowledged, when they were
8 asked about this, that they were very serious
9 allegations, yet all of them said that, for one reason
10 or another, they did not focus on that aspect of the
11 broadcasts at the time. They did not, apparently, focus
12 on the allegation overtly made in the 6.07 broadcast.
13 They never focused on the implications of saying that
14 the Government had overruled their intelligence advisers
15 on the contents of a document that was laid before
16 Parliament as reflecting the advice of their
17 intelligence advisers.
18 The BBC seem to have regarded this as a routine
19 piece of political mud slinging, chatter in the air. It
20 seems to have been thought that the BBC could shoot off
21 its fireworks and then steal away. The dogs would bark,
22 the caravan would move on, nobody would pay any more
23 attention.
24 The BBC's evidence suggests that they may have been
25 genuinely surprised that the Government took a different

51
1 view of matters and their surprise lasted throughout
2 June and July. It was at least partly because of this
3 fundamental difference in perceptions that the BBC could
4 never bring itself to address directly the Government's
5 real concerns. Was the Government right to take a more
6 serious view of the position? I say to your Lordship
7 that they were. It was simply not possible for
8 a democratic Government to dismiss charges like these as
9 part of the ordinary currency of political debate.
10 It is important to emphasise that in spite of the
11 tendency of the press to personalise this issue that the
12 dispute about the broadcast was never a personal
13 campaign by Alastair Campbell. The original BBC
14 broadcasts had not mentioned Mr Campbell. That was
15 something that Mr Gilligan added to the allegations when
16 he came to sell his intemperate and inaccurate article
17 to The Mail on Sunday.
18 Of course Mr Campbell put the points forcefully and
19 articulately on behalf of the Government and in the kind
20 of direct language that was calculated to make people
21 listen. That is what Mr Campbell is there for. But the
22 Government would have been just as concerned about the
23 matter if Mr Campbell had been on sabbatical at the
24 other end of the world and it is important, I would
25 suggest, to pause for a moment in order to consider why

52
1 that was.
2 In the first place, the people against whom these
3 allegations were made had direct knowledge of the true
4 facts. The Prime Minister, the staff at No. 10 and in
5 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 prepared
8 and how the 45 minutes point had come to be included in
9 it. They all knew that the allegations broadcast by
10 Mr Gilligan were, in fact, a travesty; either that
11 Mr Gilligan's source was laying claim to knowledge which
12 he could not have and Mr Gilligan had failed, properly,
13 to check out his status, or else Mr Gilligan had greatly
14 exaggerated what he had been told.
15 The real problem was that the anonymity of the BBC's
16 source made it impossible for the Government to
17 challenge the story more effectively unless the BBC
18 themselves were prepared to re-examine it. Only they
19 knew what the status of the source was. They never were
20 prepared to re-examine it; and that is one of the basic
21 injustices arising from the use by a broadcaster of the
22 stature of the BBC of anonymous sources.
23 It might have mattered less if the allegations had
24 related to something less sensitive. It might have
25 mattered less if they had not been repeated across the

53
1 world. In fact the allegations related to one of the
2 main factors in the developing crisis over Iraq,
3 a matter of intense public concern both in the
4 United Kingdom and elsewhere. It would be hard to point
5 to a single area in which the existence of trust between
6 a government and the public was so important.
7 The public has no direct access to secret
8 intelligence. It has to rely on the integrity not just
9 of Ministers but of the officials in the services which
10 gather intelligence and assess it and advise Ministers.
11 The fact that Iraq was an issue on which the public and
12 the world at large were deeply divided made honesty in
13 the presentation of intelligence advice even more
14 fundamental.
15 Many witnesses have expressed to your Lordship their
16 views on these points. If I single out one of them it
17 is because he is a diplomat of considerable experience
18 whose evidence was given in particularly measured and
19 cautious terms, namely Sir David Manning. His view is,
20 I suggest, also valuable because he was not directly
21 involved in the dispute with the BBC and cannot be
22 accused of getting carried away by its momentum.
23 What Sir David told you was that the allegations
24 were, as he put it:
25 "... seen as a pretty direct attack on the integrity

54
1 of the Prime Minister and officials at No. 10, in the
2 sense that they would try to persuade the Chairman of
3 the Joint Intelligence Committee to massage or to revise
4 his conclusions, his recommendations, for political
5 convenience, I saw it personally as also an unjustified
6 attack on John Scarlett personally, the Chairman of the
7 JIC, because implicit in this is the assumption that he
8 is willing to do this ... I felt it was a very serious
9 attack, not only, however, upon the integrity of
10 individuals but a very serious attack on the integrity
11 of the processes of Government."
12 These allegations, as we know, were recycled not
13 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 of
16 Mr Gilligan's but a substantial part of it was. It is
17 also fair to say that it was an entirely predictable
18 consequence of the sensational nature of the original
19 allegation.
20 In political terms perhaps the most important single
21 factor was that the issue was taken up by both the
22 Foreign Affairs Committee and the Intelligence and
23 Security Committee in the House of Commons. The fact
24 that these two investigations were undertaken is,
25 perhaps, the strongest evidence of the real significance

55
1 of the issue, not just in the minds of the Government.
2 The FAC Chairman, Mr Anderson, summarised the
3 allegation at the outset of Mr Campbell's evidence as
4 being, as he put it:
5 "In Mr Campbell's zeal to make the case he
6 embellished the evidence to the point of misleading
7 Parliament and the public at a vital time relating to
8 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 that
12 allegation is laid to rest. I agree that it is
13 incredibly serious."
14 Of course, the inquiries being undertaken by these
15 two Committees made it inevitable that the Government
16 was going to have to defend itself publicly against the
17 allegations during June and July when the investigations
18 were in progress. The FAC inquiry, in particular, was
19 always going to keep the issue in the public eye because
20 of the publicity of the FAC's hearings and the pugnacity
21 of a number of its members. That was always going to be
22 a noisy process. I would accept as Mr Campbell himself
23 has accepted that he should have restrained his anger
24 better during the Channel 4 interview with Jon Snow on
25 27th June. He had however been provoked by the BBC's

56
1 particularly tendentious response to his letter of
2 26th June.
3 That letter as your Lordship saw attempted to meet
4 some of Mr Campbell's concerns by redefining the
5 allegations which the BBC had actually made in very
6 different terms. It also contained some round
7 assertions, particularly about the 6.07 broadcast which
8 the BBC have not felt able to support in their evidence
9 to this Inquiry.
10 There is, I would suggest, a world of difference
11 between fairly retracting a public allegation of
12 conscious wrongdoing and pretending that you have never
13 really made one. There is also a world of difference
14 between the question whether it was in the public
15 interest for the BBC to broadcast the allegations in the
16 first place and the question whether it was right to
17 stand by them after the JIC Chairman had publicly
18 associated himself with the PM's denials and with no
19 further substantial investigation on the part of the BBC
20 at all.
21 If the broadcast allegations really had been as
22 inoffensive as the BBC tried to suggest in that letter
23 then Mr Campbell could be fairly accused of having
24 overblown the issue. But Mr Campbell's public
25 statements of the Government's position were, I suggest,

57
1 commensurate with the gravity of the charges which the
2 BBC had actually broadcast.
3 In retrospect, it is a great pity that the BBC's
4 Governors were put in a position on 6th July where they
5 had no proper means of making their own assessment of
6 the line to which their staff were committed. One has
7 some sympathy with the Governors. They were brought
8 under heavy pressure by the Chairman to back the
9 executives' line. They were not provided with the
10 information that might have enabled them to take their
11 own line, even though Mr Sambrook was sitting there at
12 the meeting with most of that information in his head.
13 It was perhaps the last occasion on which somebody
14 within the BBC who was independent of the executives
15 could have brought a fresh eye to the dispute. They
16 could have had a report on Mr Gilligan's notes, they
17 could have considered what he had really been told by
18 his source, they could have been told what was known
19 about the status of his source; and they could have been
20 told the views of Mr Kevin Marsh, the editor of the
21 Today Programme itself. A report on these points would
22 surely have been a revealing document.
23 LORD HUTTON: What do you say as to Mr Davies' point that it
24 is not for the Governors to concern themselves in the
25 details of the programme and -- I am paraphrasing what

58
1 he said -- to some extent the Governors have to rely on
2 what they are told by the management?
3 MR SUMPTION: To some extent that is so. One accepts that
4 if the Governors are to form a view about the facts they
5 need assistance from the executives. But in
6 circumstances where the Governors are considering
7 whether a complaint against those very executives is
8 justified or may be justified or not, it cannot be right
9 simply to take the executives' account of matters
10 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, from
14 Mr Sambrook on the respects in which the notes did in
15 fact back up what Mr Gilligan had broadcast, and all the
16 BBC witnesses have accepted that it was essential that
17 there should be proper support for the broadcast, if the
18 Governors had had a note from him on that or if they had
19 had a redacted version of the notes themselves, it is at
20 least possible that the Governors would have appreciated
21 what the BBC's witnesses have now accepted before
22 your Lordship, namely that Mr Gilligan in fact went too
23 far in his broadcasts on 29th May.
24 That might, in turn, have led to the kind of
25 honourable draw which the Prime Minister proposed to

59
1 Mr Davies on the following day. The suggestion, as
2 your Lordship will recall from the evidence, was that
3 the Government should accept the BBC's good faith in
4 broadcasting the allegations while the BBC would
5 acknowledge that it could no longer support them. The
6 problem was that by the time this proposal was made it
7 was too late. The Governors had stood up to be counted
8 just as Mr Davies had asked them to.
9 My Lord, I am coming to the position which arose
10 when Dr Kelly came forward on 30th June. It is 5 to 12
11 and I would like to suggest to your Lordship that it is
12 probably more sensible I should take that in one bite at
13 1.15 when your Lordship resumes.
14 LORD HUTTON: That is certainly so, Mr Sumption. I will
15 rise now and sit again at 1.15 pm.
16 (11.55 am)
17 (The short adjournment)
18
19
20
21
22
23
24
25

60

<< Back