Hearing Transcripts

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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 (1.15 pm)
19 LORD HUTTON: Yes, Mr Sumption.
20 MR SUMPTION: My Lord, on 30th June Dr Kelly wrote his
21 letter to his line manager reporting on his exchanges
22 with Mr Gilligan back in May. The chain of events then
23 began which ended with Dr Kelly's death on 17th July.
24 I want to pause at this point in order to invite
25 your Lordship to take stock of the rather difficult

60
1 situation in which the Government found itself when
2 Dr Kelly came forward.
3 The first element of the situation was in fact the
4 dominant one until after the second interview on
5 7th July. It was not possible to be sure that Dr Kelly
6 was, in fact, the source although, as time went on, it
7 became increasingly probable that he was. Dr Kelly had
8 admitted to saying some of the things attributed to the
9 source by Mr Gilligan. He had denied saying other
10 things.
11 Mr Gilligan had said implicitly in his broadcasts,
12 and explicitly to the Foreign Affairs Committee, that he
13 had only one source. There were, therefore, a number of
14 possibilities. The first was that Dr Kelly was the
15 source but had said more than he had admitted to the
16 Ministry of Defence. The second was that he was the
17 source but Mr Gilligan had exaggerated what he had said
18 to him. The third possibility was that someone else was
19 the source and it was mere coincidence that Mr Gilligan
20 had learnt some of the same things from Dr Kelly.
21 Whatever other considerations may have entered into
22 the matter, there could be no question of the Government
23 disclosing Dr Kelly's name or even the fact that an
24 unnamed official had come forward until it was
25 reasonably satisfied that he was the right man. That

61
1 stage was reached on 8th July, after the second
2 interview.
3 Nobody suggested, even then, that it was certain
4 that Dr Kelly was the right man, but Mr Howard had
5 concluded that in spite of the evidential loose ends
6 which remained, it was not only possible that Dr Kelly
7 was the source but, as he put it, "very probable" that
8 he was.
9 Sir David Omand's view was that it was now pretty
10 plain that Dr Kelly was the source. Their judgment was
11 accepted by the Prime Minister at his meeting on this
12 issue on the morning of 8th July. It was a judgment
13 which was shared, as we know from their evidence, by
14 everybody else who was present.
15 As we also now know, they were right. The
16 uncertainty, however, which persisted until after the
17 second interview is the main reason why no decisions
18 could be made until 8th July.
19 The second element in the equation was the fact that
20 the investigations of the Foreign Affairs Committee and
21 the Intelligence and Security Committee were currently
22 underway. The ISC had told the Government in May 2003
23 that it proposed to examine the general issue of the use
24 of intelligence in the lead-up to the invasion of Iraq.
25 Mr Gilligan's broadcasts dealt with only part of

62
1 that broader issue, but it was undoubtedly an important
2 part, which added a good deal of spice to the rest. The
3 Foreign Affairs Committee's investigation was announced
4 on 3rd June, five days after Mr Gilligan's broadcast.
5 Its terms of reference are alone enough to show how
6 seriously the points being made by Mr Gilligan were
7 viewed outside as well as inside Government. The terms
8 of reference to "investigate whether accurate
9 information had been given to Parliament in the period
10 leading up to the war and particularly whether accurate
11 information had been given to Parliament about weapons
12 of mass destruction".
13 What all this meant was that whether the Government
14 liked it or not, it was quite certain that there would
15 be two major Parliamentary inquiries into the question
16 whether the dossier had been sexed up and, if so, by
17 whom.
18 On 19th June, only a fortnight before Dr Kelly came
19 forward, Mr Gilligan had given his evidence to the
20 Foreign Affairs Committee in the course of which he had
21 stoutly defended his broadcast; he had told the
22 Committee that he had, to use his own words "invested
23 strong credibility" in his source, who he described as
24 a person of impeccable standing to make the particular
25 allegations broadcast on 29th May. He also described

63
1 his source, yet again, as being in the Intelligence
2 Services.
3 There was a third element in the situation in
4 early July which was also of some importance. Every
5 witness with any experience of dealing with the press
6 has agreed that sooner or later Dr Kelly's identity was
7 going to become known whatever happened. Dr Kelly was
8 renowned as an expert in this area, both among his
9 fellow specialists and among journalists. Some of his
10 most characteristic views, for example about the
11 30 per cent probability of an active chemical warfare
12 programme in Iraq, were aired by Mr Gilligan in his
13 evidence to the Foreign Affairs Committee.
14 Clearly, the likelihood of disclosure which existed
15 even before he came forward was very much increased
16 afterwards. He was, in fact, all but named in
17 The Times' article of 5th July. Your Lordship has read
18 a mass of newspaper reports, in which highly
19 confidential matters are disclosed on the basis of what
20 appear to have been unauthorised sources within the BBC
21 or Government. These reports, I would suggest, are
22 eloquent evidence of the sheer volume of indiscreet
23 twittering which is heard whenever there is a story
24 about which the press would dearly like to know more.
25 That is, as more than one witness has told

64
1 your Lordship, the reality of our culture.
2 The criticisms which have been made of the
3 Government on behalf of Dr Kelly's family raise two main
4 questions which your Lordship will have to consider.
5 One is whether the Government should have allowed him to
6 be named at all; the other is whether, if they did, they
7 chose an insensitive way of doing it. The first of
8 those questions is a question of principle. The second
9 is essentially a question of personnel management,
10 although nonetheless important for that.
11 Let me deal with the question of principle first.
12 It has been suggested to your Lordship that Dr Kelly
13 felt that the Ministry of Defence press release on
14 8th July was an act of betrayal because it would
15 inevitably lead to his being identified. It has been
16 suggested --
17 LORD HUTTON: Was his feeling related just to the press
18 release or was it related to the fact that his name had
19 been confirmed?
20 MR SUMPTION: He accepted that the press release was going
21 to lead, in short order, to the disclosure of his name.
22 Not only does the evidence of Dr Wells and Mr Hatfield
23 demonstrate that, but so, in fact, as I shall point out
24 in a moment, does the evidence of Mrs Kelly.
25 LORD HUTTON: Yes.

65
1 MR SUMPTION: It has been suggested to a succession of
2 witnesses that it was wrong in principle for Dr Kelly to
3 be named by whatever method. The same point is implicit
4 in the suggestion that there was some kind of plot or
5 strategy to allow Dr Kelly's name to come out indirectly
6 or by stealth. The implication of that, as we
7 understand it, is that the Government were trying to do
8 covertly what they knew they could not do openly.
9 I have no desire and certainly those for whom
10 I speak have no desire to criticise Dr Kelly's family
11 for making these points. They are as much entitled as
12 anyone here to raise issues for your Lordship to
13 consider; but I have to say that these particular
14 criticisms are completely unjustified.
15 They take as their starting point the proposition
16 that Dr Kelly was entitled to have his name withheld,
17 and that proposition is wrong. There is no
18 constitutional principle that civil servants are
19 entitled to anonymity. The Government had no obligation
20 to keep Dr Kelly's name secret; and Dr Kelly had no
21 right to expect them to do so. The Government could
22 not, in any event, have kept his identity secret
23 consistently with its obligations to Parliament. The
24 Government did not give Dr Kelly any assurance of
25 anonymity; on the contrary, it told him that his

66
1 identity was likely to come out. What is more, that is
2 what was bound to happen in practice, whatever the
3 Government did. Against the background of a raging
4 public controversy in the press and in Parliament, the
5 Government neither could nor should have tried to keep
6 this particular information indefinitely concealed.
7 Once the Government was satisfied that Dr Kelly was
8 likely to have been Mr Gilligan's source, the activities
9 of the two Parliamentary Committees were, in practice,
10 the drivers of events. The Foreign Affairs Committee
11 reported on 7th July, the day of Dr Kelly's second
12 interview. It exonerated Mr Campbell of the charge of
13 sexing up the dossier but, as the BBC helpfully pointed
14 out, the authority of that conclusion was gravely
15 weakened by the fact that it had divided on party lines.
16 Moreover, the Foreign Affairs Committee made an
17 express recommendation that the identity of
18 Mr Gilligan's source should be investigated. At the
19 time of that report it had been known within the
20 Government since 30th June that someone had come forward
21 who might well be Mr Gilligan's source. There was
22 serious and, I would suggest, justified concern that if
23 it were to become known that they had sat on that
24 information for a week before the FAC reported, they
25 would be accused of trying to cover up something which

67
1 was of intense and current public concern.
2 By 8th July, when the Government had satisfied
3 itself of the facts, the FAC had to be told as soon as
4 possible of the development which had occurred. The
5 fact that the Committee had just reported was beside the
6 point. The FAC is a standing committee of the House of
7 Commons. The allegations remained a matter of
8 continuing public controversy. The Government's view,
9 after much discussion, was that the Committee would want
10 to reopen their investigation when they learnt of this
11 significant development; and the Committee was clearly
12 entitled to do that.
13 Mr Anderson showed that that judgment of those in
14 Government was in fact correct; and the sequel bears out
15 what he told your Lordship. The FAC did in fact reopen
16 their inquiry and did want to take evidence from
17 Dr Kelly.
18 It inevitably followed that Dr Kelly's name would
19 become known. It follows that unless we had concealed
20 the fact that he had come forward from the FAC, it was
21 bound to happen that his name would become known.
22 Turning to the ISC's investigation, the position on
23 7th July was that that was continuing. Most of their
24 evidence on the use of intelligence in the compiling of
25 the dossier had still to be taken.

68
1 It was fair to say that, in theory, the appearance
2 of Dr Kelly before the ISC need not have led to his
3 being identified because it sits in private; but that
4 was not a realistic view of the situation.
5 The Chairman of the ISC, Ann Taylor, had to be told
6 about the development, for the same reason as
7 Mr Anderson had to be told about it. It was originally
8 proposed that she should receive a letter which would be
9 copied to the Chairman of the FAC. In fact, Ann Taylor
10 was understandably resistant to this suggestion. Her
11 Committee is appointed by the Prime Minister and reports
12 to him but its authority is very much dependent on its
13 remaining at arm's length from No. 10.
14 So if the matter was to be brought to the attention
15 of the ISC, as it had to be, there would have to be
16 a public announcement. Once that happened, and Dr Kelly
17 went before the ISC, the practical possibilities of his
18 remaining anonymous for much longer were really very
19 slim indeed.
20 The evidence is that there were some who considered
21 that the appropriate committee to consider this matter
22 was the ISC and not the FAC. The Prime Minister himself
23 initially took that view. So, as we know, did
24 Sir Kevin Tebbit. But everybody recognised that the FAC
25 was almost certain to want to interview him as well and

69
1 that it would not be realistic to prevent them from
2 doing so.
3 Quite apart from that, to put important new evidence
4 on an issue which had aroused public concern on this
5 scale only to a Committee reporting to the
6 Prime Minister and sitting in private was just not
7 a realistic option.
8 It was therefore an academic question which
9 Committee the Government might have preferred. In the
10 event, the nettle was grasped by the Secretary of State
11 for Defence, who decided that both Committees would have
12 to be offered an opportunity to hear the evidence of
13 a witness whose evidence might plainly be central to the
14 inquiries of both of them.
15 At the same time, the Secretary of State sought, in
16 agreement with the Chairman of the FAC, to limit the
17 questioning of Dr Kelly to the matters which had given
18 rise to his being called, ie to the Ministry of Defence
19 statement, and to exclude matters on which Dr Kelly was
20 not in a position to speak for Ministers because they
21 went to policy.
22 It has been suggested to a number of witnesses that
23 the Government was delighted to be able to put Dr Kelly
24 before the two Committees because it would further their
25 case in their dispute with the BBC. It was even

70
1 suggested to Godric Smith, although oddly enough not to
2 the Prime Minister or the Secretary of State, that that
3 was why Dr Kelly was made available to the two
4 Committees.
5 Mr Campbell undoubtedly believed that it would be in
6 the Government's interest to disclose the name as soon
7 as possible, just as he also believed, in hindsight,
8 that that would have been better for Dr Kelly as well.
9 But Mr Campbell, at this stage, had been told by the
10 Prime Minister to take a back seat on this issue. Apart
11 from swearing at his diary, which must be the right of
12 every free man, that is what he did. Others disagreed
13 with the idea of naming Dr Kelly before they had to do
14 so. Mr Smith, Mr Kelly and the Prime Minister all sat
15 on the idea almost as soon as it was raised.
16 A suggestion was made by Mr Gompertz this morning to
17 the effect that the document which he brought up on
18 screen -- I am not asking for it to be brought up but it
19 is MoD/44/15 -- suggested there was a wider or more
20 persistent desire to name him as soon as possible. If
21 Mr Gompertz had read the whole of the document instead
22 of part of it, he would have appreciated that e-mail was
23 in fact about the letter which it had been agreed that
24 Mr Hoon would write to Mr Gavyn Davies, the Chairman of
25 the BBC. It referred to the naming of Dr Kelly in that

71
1 letter, which was a confidential letter, and not to
2 a more public naming.
3 LORD HUTTON: Were there not other persons who thought that
4 it would be beneficial to the Government for Dr Kelly's
5 name to be released?
6 MR SUMPTION: They appreciated, of course, that
7 a description of Dr Kelly's functions had to be given.
8 They appreciated that it necessarily followed from that
9 that his name would come out in short order thereafter.
10 That is the reality of the position. The essential
11 point, as far as they were concerned, was that they
12 should be in a position to do two things: (1) to make it
13 clear that an individual who had come forward who was
14 likely to be the source but unlikely to have been able
15 to say what Mr Gilligan had attributed to the source;
16 and (2) enough had to be disclosed to put the two
17 Parliamentary Committees in the picture.
18 The suggestion was, in fact, implicit, as
19 I understand it, in some of Mr Knox's questions that the
20 idea was to use the Committees as a means of outing
21 Dr Kelly. That was, I would suggest, quite unwarranted
22 on the facts, but it also betrays a fairly fundamental
23 misunderstanding of how Parliament and its Committees
24 actually work. These Committees are not open to
25 manipulation by the executive. If the Committees wanted

72
1 to interview the official who had come forward, they
2 were going to do it. If not, not. The Government's
3 views on the matter were neither here nor there unless
4 the Government took the extreme step of refusing to let
5 the witness appear. That would have been wholly
6 inappropriate and would have provoked a major crisis of
7 affairs.
8 In fact, the evidence is that the Government had
9 mixed feelings about the public impact of the appearance
10 of Dr Kelly before the Committees. In the first place,
11 the differences between Mr Gilligan's and Dr Kelly's
12 accounts meant that the Committees would not necessarily
13 accept that Dr Kelly was the source. The Foreign
14 Affairs Committee, having heard from both Dr Kelly and
15 Mr Gilligan, found, quite wrongly as we now know, that
16 he was not the source. But secondly, in terms of public
17 perceptions, Dr Kelly's evidence was clearly a mixed
18 bag. His views about the dossier were not all in line
19 with the Government's; and some of them were bound to be
20 disclosed as part of his evidence, because he had shared
21 them with Mr Gilligan. So that the view that putting
22 Dr Kelly before the Committee was, in some ways, an
23 unmixed boon for the Government is quite unrealistic.
24 LORD HUTTON: Is it your submission that if the Government's
25 primary concern is to avoid the charge of a cover-up and

73
1 for that reason it would have to be announced that
2 a civil servant had come forward, and the FAC would have
3 to learn of Dr Kelly's name --
4 MR SUMPTION: Yes.
5 LORD HUTTON: -- that that being so, the Government, No. 10
6 as a whole, still had no feeling that it might assist
7 them in their dispute with Mr Gilligan?
8 MR SUMPTION: If they had felt that it was desirable that
9 the name should come out as early as possible, they
10 would have included it in the press release of 8th July.
11 They had been entitled to do that and it would have been
12 easy enough to do. I am going to go into the mechanics
13 of this, because it obviously goes to the sensitivity of
14 the method, in a moment. That, in my submission, is the
15 short answer to your Lordship's question.
16 We cannot know, clearly, why Dr Kelly told some
17 people in the last days of his life that he had received
18 assurances that his name would remain confidential. It
19 may be that under the pressures which he faced he
20 persuaded himself that that was so. But it must be
21 perfectly clear to those of us who have heard the
22 evidence given in this room that it was not. Dr Kelly
23 was told by Mr Hatfield on 4th July that there would
24 probably have to be a public announcement. He was told
25 that again on the 7th. He accepted it. We know that he

74
1 was shown an early draft of the press release on the
2 7th. We know that he had read out to him on the
3 telephone, paragraph by paragraph, the expanded draft
4 which was ultimately issued in the early evening of the
5 8th. Perhaps most important of all, we know that he
6 recognised that his identity would become known in
7 consequence. That is partly because Mr Hatfield told
8 him, in terms, on 7th July, that that was not just
9 possible but "likely".
10 Dr Wells told your Lordship that Dr Kelly told him
11 that it was likely. We also know that the point got
12 home because Mrs Kelly herself has given evidence that
13 he told her that he was bound to be identified as the
14 two of them watched the announcement of the Ministry of
15 Defence press release of the 8th together on the
16 television news. In our submission, this is one area
17 where there should be no room for controversy on the
18 facts.
19 The Ministry of Defence press release of 8th July in
20 fact, I would suggest, reflected the openness of our
21 governmental procedures as well as the strongly held
22 view of all Ministers and officials concerned that these
23 matters could not properly be withheld from the public
24 or from Parliamentary scrutiny, and it was the 8th July
25 press release which was the decisive event, as everyone

75
1 recognised. I say that because everybody, including
2 Dr Kelly himself, knew that that was going to be the
3 trigger for his being identified in fairly short order.
4 The only question was how long it would take.
5 That is also, I would suggest, at least part of the
6 answer to the second criticism which the family has made
7 of the Government, namely that if the name had come out
8 this was not the way to do it.
9 LORD HUTTON: Just before you move to that, Mr Sumption,
10 what is your submission on the point that when the
11 Secretary of State wrote to Mr Anderson as to the scope
12 of the questioning of Dr Kelly that that was designed to
13 prevent the Committee asking questions that might give
14 rise to answers which would be detrimental to
15 Government?
16 MR SUMPTION: My Lord, I reject that suggestion. I do so
17 for two reasons. First of all, it is fundamental that
18 civil servants appearing before Parliamentary Committees
19 in principal do so on behalf of the Government. They
20 speak for Ministers, they do not give their own
21 evidence. In dealing with questions of policy,
22 witnesses before Parliamentary Committees accordingly
23 speak for the Government in their particular area. That
24 is a convention that made it completely inappropriate
25 for Dr Kelly to speak about policy, nor is there any

76
1 indication that he had any desire to do so or was in
2 a position, in a broader sense, to do so.
3 That was one consideration.
4 The second consideration was the welfare of Dr Kelly
5 himself. The Secretary of State for Defence gave
6 evidence about this to your Lordship. His evidence,
7 which in my submission is both creditable to him and
8 entirely appropriate against the background in which
9 these things happened, his evidence was that he was
10 concerned about Dr Kelly having to give evidence before
11 two Committees on the same day which was, at that stage,
12 how matters were scheduled. He appreciated that the
13 Foreign Affairs Committee had only reconvened in order
14 to deal with matters supplementary to their previous
15 inquiries which arose out of the Ministry of Defence
16 statement. He, therefore, arranged with the Chairman of
17 the FAC that Dr Kelly's questioning would be limited to
18 that. The ISC had suggested three quarters of an hour
19 was enough; the same suggestion was made to the FAC.
20 But what is striking is that if this was designed
21 to, as it were, gag Dr Kelly from giving relevant
22 evidence to a Parliamentary Committee, surely the first
23 person to appreciate that would be Mr Anderson himself.
24 Parliamentary Committees are extremely sensitive about
25 their independence of the executive. The truth is that

77
1 Mr Anderson gave evidence to your Lordship that he
2 agreed with the line that was being proposed by the
3 Secretary of State for Defence. Moreover, the letter
4 which your Lordship refers to in fact refers to
5 a discussion that had already occurred between the two
6 men in which that understanding had been established.
7 My Lord, turning to the second criticism, that is
8 that if the name had to come out this was not the way to
9 do it. Realistically, there are only two ways in which
10 the Government could have handled this matter. It could
11 have identified Dr Kelly in the same press release in
12 which they announced the fact he had come forward.
13 Given the need to make an announcement as soon as the
14 Government had satisfied itself that Dr Kelly was likely
15 to be the source, that would have meant on 8th July
16 itself or possibly first thing on the following day.
17 Alternatively, it could have taken the course which
18 it actually did take, announcing that someone had come
19 forward, thereby giving Dr Kelly at least a day or two
20 before his name followed that information into the
21 public domain.
22 Even in hindsight, it is a difficult question, which
23 would have been the better course. I have pointed out
24 Alastair Campbell's view, in hindsight, that it would
25 probably have been better for Dr Kelly to retain control

78
1 of the process by naming Dr Kelly in the original press
2 release. It has to be said, however, that that would
3 probably have meant bringing his naming forward. The
4 timetable would therefore have been even more abrupt and
5 that would not necessarily have made matters any easier
6 for Dr Kelly.
7 LORD HUTTON: Would it have been possible to have informed
8 Dr Kelly that his name would appear in a press statement
9 and then to delay the press statement for 24 hours to
10 give Dr Kelly time to make other arrangements and
11 perhaps to be advised as to what he should do?
12 MR SUMPTION: It would have been possible to do that
13 provided the Government was confident that the news
14 would not break anyway in the intervening period, with
15 the allegations of cover up that would inevitably have
16 followed. Of course, the Government could not be
17 confident of that. Their mindset was very much
18 influenced by the disclosures in The Times article on
19 5th July. As your Lordship will recall, the press
20 office at the Ministry of Defence were somewhat
21 surprised that the information had not already broken
22 and prepared provisional Q and A in case it broke before
23 the Government was in a position to form a firm view on
24 the matter over that weekend. So one thing is clear:
25 that while there was no doubt some leeway, that there

79
1 was really very little leeway indeed. The Government
2 could not assume that 24 hours would not, in fact,
3 result in the news breaking from other directions first.
4 Others have said that it was right to put the moment
5 off when Dr Kelly was identified by name for as long as
6 possible, even if that was not likely to be very long.
7 I would accept that there is something to be said for
8 both views. But it is frankly impossible to say that
9 this would have made any real difference. It is far too
10 easy, simply because we know about the tragedy which
11 happened on 17th July, to say that something else,
12 anything else, would have been better than what was
13 actually done. The instinct to say that, of course,
14 does credit to the humanity of those involved. All of
15 those who have given evidence to your Lordship's Inquiry
16 have obviously had to ask themselves whether things
17 might have turned out differently if they had acted
18 differently themselves. But the truth is that we cannot
19 know.
20 Apart from anything else, there were so many other
21 sources of potential pressure on Dr Kelly which no-one
22 has even suggested were attributable to the acts of the
23 Government. The very fact that Dr Kelly had felt
24 obliged to come forward at all was plainly one source of
25 considerable tension. So, also, was the strong

80
1 possibility that he may in fact have said more to
2 Mr Gilligan than he admitted to the Ministry of Defence
3 or to the two Parliamentary Committees.
4 There are other factors also. The rudeness of at
5 least one member of the Foreign Affairs Committee. The
6 very unfortunate incident in which Dr Kelly was
7 effectively taxed by one member of the Committee with
8 something that he had said to Susan Watts, something
9 which we know from other evidence took him aback. There
10 were also his concerns about his pension. Those
11 concerns were entirely without foundation, it was never
12 in fact in jeopardy, but they may still have been very
13 real concerns as far as he was concerned.
14 Against this background, it is not only a crude
15 oversimplification of a complex problem but also
16 exceptionally unfair to lay the blame for what happened
17 at the door of Dr Kelly's colleagues and superiors at
18 the Ministry of Defence or indeed elsewhere in
19 Government. Even with the assistance of the highly
20 qualified psychiatric evidence which your Lordship has
21 heard, it is difficult to look into the mind of a man
22 who has reached the state that Dr Kelly must have been
23 in when he resolved to take his own life.
24 Professor Hawton's evidence was that none of those
25 dealing with Dr Kelly in the last days of his life could

81
1 have foreseen that he might kill himself. Indeed, it
2 seems likely that his decision to do so was only made
3 very shortly before he acted on it.
4 My Lord, it is one thing to say that in hindsight
5 one might have chosen another way of doing things or
6 even that with foresight one ought to have done. It is
7 quite a different thing to suggest that there was some
8 underhand strategy in which at least eight individuals
9 in different Government offices participated to expose
10 Dr Kelly by subterfuge, yet that appears to be what
11 Mr Gompertz has suggested.
12 Your Lordship will, in due course, examine the
13 evidence in its entirety, including the reasoned
14 rejection of that charge which every one of those
15 witnesses offered when it was put to them.
16 What I will do, if I may, is simply to make some of
17 the more important points about it.
18 LORD HUTTON: Yes.
19 MR SUMPTION: First of all, whenever someone is accused of
20 bad faith, the first question that has to arise is
21 motive and one is bound to ask what possible motive all
22 of these people, at different levels of seniority, could
23 have had for doing in an underhand way something that
24 they were fully entitled to do openly. One suggestion
25 that we have heard is that they did it in order to

82
1 further the Government's war of words with the BBC.
2 Another suggestion is that the Government wanted the
3 name to get into the public domain without itself being
4 identified as the party which had put it there.
5 The problem is that none of these suggestions really
6 answer the question.
7 If the Government wanted Dr Kelly's name to be in
8 the public domain, they did not need to be devious in
9 order to get it there. Since all of them believed that
10 it would inevitably come out anyway, they only had to
11 wait on events. If they wanted it out straightaway,
12 they would have been absolutely entitled to announce the
13 name in an immediate press release.
14 The suggestion, therefore, that there was a plot to
15 do something they wanted to do in the most
16 time-consuming and indirect way lacks even the starting
17 plausibility that one would expect of a theory which is
18 intended to discredit the individuals in question.
19 The actual mechanism by which this supposed plot is
20 said to have been put into effect consisted, according
21 to Mr Gompertz, of the details included in the press
22 release, the Q and A material and the afternoon Lobby
23 briefing of 9th July, to some extent the morning one but
24 mainly the afternoon.
25 None of these suggestions will, in my submission,

83
1 bear examination. I say to your Lordship that the
2 information about Dr Kelly which was included in the
3 press release reflected a perfectly legitimate
4 objective. An announcement had to be made. It had to
5 contain enough information to explain why it was being
6 made. It had to say enough to justify the Government's
7 belief that the unnamed individual was Mr Gilligan's
8 source. It had to say enough about the official's
9 functions to explain why he was not in a position to say
10 all of the things that Mr Gilligan had attributed to
11 him. That was no more, after all, than Dr Kelly had
12 himself told the MoD in his letter of 30th June and in
13 his two interviews.
14 Of course, these things were said in the press
15 release in order to make the point that the 29th May
16 broadcast was likely to be wrong. I make absolutely no
17 bones about that, yet many witnesses have been addressed
18 by counsel as if it was in some way shameful or wrong
19 for a Government to defend itself against a scandalous
20 allegation by disclosing these facts, even though they
21 were true.
22 I am at a loss to know where that idea comes from.
23 A Government is as much entitled to defend itself
24 against falsehoods as anyone else. If that means
25 disclosing the truth, then it not only can do it but

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1 ought to.
2 My Lord, exactly the same --
3 LORD HUTTON: You will appreciate, Mr Sumption, as I am sure
4 the press will, that when I raise points with you or
5 other counsel it is not in any way intending to indicate
6 any view I form, it is simply to inform myself of the
7 submissions of counsel.
8 MR SUMPTION: I entirely understand that, my Lord.
9 LORD HUTTON: I would like to ask you this: the view might
10 be taken or it might be suggested that even if the
11 Government were entitled to seek to show that
12 Mr Gilligan's broadcast was wrong by Dr Kelly's name
13 eventually becoming public, that, in itself, would
14 impose a considerable strain on Dr Kelly, not with any
15 foresight that he might take his own life but simply
16 that for a civil servant who was an expert on weapons,
17 to have to give evidence before the FAC would impose
18 a burden and strain.
19 MR SUMPTION: My Lord, it has been accepted by a number of
20 witnesses, and I certainly accept, that appearing before
21 Parliamentary Committees is an ordeal. There is no
22 doubt about that. It is not usually an ordeal which
23 leads to the appalling consequences that followed, not
24 I suggest entirely from the Committee but that may have
25 been part of it. It is not necessarily an ordeal which

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1 would lead to suicide but it is a disagreeable
2 experience. It is just as disagreeable for other
3 witnesses who appear before Parliamentary Committees in
4 controversial matters as it was for Dr Kelly.
5 One has to consider what the alternative was. Is
6 a responsible Government responsible to Parliamentary
7 institutions to say: because it is not agreeable for
8 a civil servant to appear before a Committee, we are
9 going to withhold from the Committee the fact that
10 a person has come forward who we think that they will
11 want to interview? Because that is the necessary
12 consequence of taking the line implied by the hypothesis
13 that your Lordship puts to me.
14 LORD HUTTON: Yes. Yes. Thank you.
15 MR SUMPTION: My Lord, the same point, I would suggest, can
16 be made about the Q and A.
17 The essential point about the Q and A is that the
18 final approved version reflected the Government's
19 decision that they would confirm Dr Kelly's name if it
20 was put to them. If the name was not included in
21 a press release, and it was not, then the press office
22 had to have an answer to questions about him if they
23 were put to a press officer by a journalist.
24 Was it so irresponsible to adopt a policy of telling
25 the truth instead of putting up a wall of lies or

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1 transparent evasions? And to what end? To postpone by
2 a few hours or days the inevitable moment of disclosure.
3 In my submission it is problems like these that press
4 officers working at the sharp end have to face day in,
5 day out which makes it so unrealistic to suggest that
6 the Q and A were part of some underhand plot or scheme
7 to expose Dr Kelly in the most indirect possible way.
8 Even that, however, is not, I would suggest, as
9 unrealistic as the suggestion made to Kate Wilson and
10 Pam Teare that some inferences might be drawn from
11 earlier drafts in different terms. This mistake comes
12 of treating an internal draft, which had never been
13 submitted to anyone, as if it were a provisional
14 statement of policy which must have been changed in the
15 next draft for some different reason of policy.
16 The drafts were, as Kate Wilson and Pam Teare told
17 your Lordship, successive stages of their incomplete
18 work in progress. Only the final draft was ever
19 submitted for approval to a policy official.
20 My Lord, the Lobby briefings of 9th July have been
21 dealt with in the evidence of Tom Kelly. Once again, it
22 is necessary to point out that the criticisms of this
23 briefing underestimate the difficulties of press
24 officers operating in a relatively open system of
25 Government in which honesty is absolutely paramount and

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1 silence is not usually an option.
2 The atmosphere of a Lobby briefing has been
3 graphically described by Tom Kelly. It is worse than an
4 appeal committee in the House of Lords. The PMOS
5 clearly did not set out to expose Dr Kelly on that
6 occasion. The truth is that he was placed in an
7 extremely difficult position by the disingenuous press
8 release which the BBC had issued in response to the
9 MoD's announcement.
10 Now, I do not wish to criticise, more than I need
11 to, this particular conduct of the BBC because we now
12 know that the form of this remarkable document was owed
13 entirely to Mr Gilligan, who was the only person
14 involved in drafting it who actually knew the facts. He
15 knew that his source worked for the Ministry of Defence
16 but he authorised the BBC to say that he did not work in
17 the Ministry of Defence. And that, in our submission,
18 was pure mischief making.
19 My concern, however, is not with Mr Gilligan's
20 semantic conjuring tricks but with the actual
21 consequences this document had on 9th July. It led to
22 a situation in which Tom Kelly was forced to explain to
23 a room of insistent journalists how the source and the
24 Ministry of Defence unnamed official could possibly be
25 the same person, when the official worked in the

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1 Ministry of Defence but the source apparently did not.
2 Why should the Prime Minister's Official Spokesmen
3 have left journalists with the impression that the
4 Ministry of Defence press release was a misleading
5 document when it was in fact entirely justified?
6 Because that would have been the consequence of failing
7 to answer those questions. Since there was in fact
8 a perfectly good explanation of the discrepancies, on
9 what basis is it to be said that Tom Kelly should not
10 have given that explanation when he was asked for it?
11 Following upon the suggestion of a cynical scheme
12 comes the allegation that the Ministry of Defence's
13 officials did not give Dr Kelly the support to which he
14 was entitled when, in due course, he was identified.
15 LORD HUTTON: Just before we move to that, I think the point
16 was also made by Mr Gompertz that according to
17 Mr Baldwin of the Times he had received briefings from
18 Whitehall officials on both the 7th and the 8th July
19 before the name came out.
20 MR SUMPTION: I cannot help your Lordship on that. A number
21 of witnesses were asked about it. The position is that
22 all of the witnesses who were responsible for this
23 particular matter have told your Lordship that they had
24 nothing to do with that.
25 LORD HUTTON: Hmm.

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1 MR SUMPTION: I cannot rule out the possibility that
2 somebody without any authority, somewhere in Whitehall,
3 who had got wind of this was indiscreet, although it is
4 fair to make the point also that Mr Baldwin's article is
5 also based, as it expressly says, on sources within the
6 BBC. It is a very unfortunate fact that matters which
7 ought not to be disclosed and which those who disclose
8 them know ought not to be disclosed nevertheless are
9 repeatedly disclosed to journalists. That happens. It
10 is unfortunate it did happen. It certainly is not
11 evidence, on the material that your Lordship has heard,
12 of some broader underlying plot.
13 LORD HUTTON: Yes.
14 MR SUMPTION: My Lord, one comes, therefore, to the
15 suggestion that there was insufficient support of
16 Dr Kelly after he was identified in due course. It is
17 fair to say, my Lord, at the outset, that Dr Kelly was
18 an extremely self-contained person, he kept his feelings
19 to himself; and that very fact meant that he was not an
20 easy person to help.
21 The facts are actually perfectly clear. Dr Kelly
22 was interviewed with scrupulous fairness by Mr Hatfield,
23 who made it clear at an early stage that there would be
24 no disciplinary proceedings against him. Dr Kelly was
25 not told that the Ministry of Defence would confirm his

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1 name if it was put to their press office, but there is
2 no reason to suppose that it would have made any
3 difference if he had been. I say that because he had
4 been warned of the likelihood that his identity would
5 become known once the press release came out. He was
6 given an opportunity to comment on the terms of the
7 press release. He was also telephoned by Kate Wilson on
8 the evening of the 8th with contact numbers and advice
9 to consider alternative accommodation. He decided not
10 to avail himself of either of those.
11 He was telephoned by Dr Wells when the name
12 eventually was confirmed; not, as some of the papers
13 have this morning suggested, in one conversation of
14 46 seconds but in three conversations over a period of
15 an hour amounting to nearly four times that.
16 A press officer was standing by to go to Dr Kelly's
17 home if he wanted it. He was phoned almost daily by
18 Dr Wells, who then cancelled his trip to New York to
19 support him at the Committee hearings.
20 My Lord, these individuals are as much entitled to
21 have their own feelings considered as Dr Kelly was.
22 We should not underestimate the effect on them of
23 having to meet these accusations, one after another,
24 under the glare of intense press publicity and in some
25 cases hostility which has attended this Inquiry.

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1 People like Richard Hatfield, Kate Wilson and
2 Bryan Wells are entitled to feel saddened that their
3 very real efforts to support Dr Kelly have only served
4 to bring down accusations of incompetence and bad faith
5 upon their heads; and for my part I would wholly endorse
6 the description which Mr Hatfield gave of the support
7 that Dr Kelly received as "outstanding".
8 I have reminded your Lordship of the expert evidence
9 that none of these individuals could have foreseen
10 Dr Kelly's suicide, yet if Dr Kelly had not died it
11 could not have been argued even faintly that by
12 providing support on the scale they did, the Ministry of
13 Defence was in breach of its obligations as an employer.
14 LORD HUTTON: I fully appreciate one has to guard against
15 the dangers of hindsight, but the point has been made
16 that a brief phone call to Dr Kelly when he pulled in
17 off the motorway was really insufficient for him to
18 consider the implications of the press statement. Do
19 you have any submission on that point?
20 MR SUMPTION: My Lord, I do not accept that. First of all,
21 there is a tendency, simply looking at the crude length
22 of phone calls, to assume that it was not enough to
23 communicate very much. That depends on how chatty the
24 individuals are, on what the subject matter is and on
25 how much irrelevance they intersperse with it. It does

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1 not take long to get the essential facts over.
2 Moreover, your Lordship needs to bear in mind that
3 this was not a telephone call that occurred, as it were,
4 out of the blue. It is not as if Dr Kelly had never
5 heard there was going to be a press release. He had
6 known for 24 hours there was going to be a press
7 release. He had seen a much shorter version of it.
8 Moreover, before the telephone call in which he pulled
9 over and took the details, the longer of the telephone
10 calls, he had been told that the new statement was
11 longer and that it was going to say more about him. In
12 my submission, the time required for those phone calls
13 was perfectly good enough to enable the essential
14 information to be communicated and Dr Kelly, who was
15 already familiar with the issues, to respond to them.
16 I would accept that it was not long enough to
17 accommodate a more general social chat; but there is
18 absolutely no evidence to suggest that that is what
19 Dr Kelly wanted. Everything that we know about his
20 personality suggests otherwise. Moreover, in looking at
21 the general question of support one needs to ask oneself
22 not: is this phone call on its own enough? But to ask
23 oneself about the totality of the support he received.
24 One needs to look at the telephone calls, day after day,
25 some of which did not get through but some of which did,

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1 from Dr Wells. The support he had on the telephone from
2 Kate Wilson. The support that your Lordship heard about
3 yesterday from Mr Lamb, which was clearly a friendly
4 support between colleagues. There was a limit, as
5 Mr Lamb made clear, to the extent to which Dr Kelly
6 wanted support; but that he was offered it is, I would
7 submit, absolutely beyond question.
8 My Lord, this perhaps brings one to Mr Gompertz's
9 point this morning about learning lessons.
10 Looking at the whole of this issue we are,
11 I suggest, in danger of trying to learn general lessons
12 from appalling but wholly exceptional and unpredictable
13 events. What is much worse than that is we are in
14 danger of learning the wrong lessons. Dr Kelly's death
15 is undoubtedly a tragedy for his family. It is also
16 a great loss for the service for which he worked but it
17 is perfectly possible to recognise those facts and to
18 express genuine sympathy to his family, as we do,
19 without at once turning aside in order to hunt for other
20 people to blame.
21 My Lord, unless I can assist your Lordship any
22 further, that is what I have to say.
23 LORD HUTTON: Thank you very much Mr Sumption.
24 I think this will be a convenient time to rise to
25 give the stenographers a break. I will sit again in

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1 five minutes.
2 (2.05 pm)
3 (Short Break)
4 (2.10 pm)
5 CLOSING STATEMENT by MR CALDECOTT
6 LORD HUTTON: Yes, Mr Caldecott.
7 MR CALDECOTT: My Lord, there can be few subjects of greater
8 public interest than reasons presented by a Government
9 to its own people as possible grounds for war. That --
10 let there be no doubt about it -- was the purpose of
11 the September dossier. It was an assessment of the
12 threat posed by a foreign power against whom hostilities
13 were in serious contemplation.
14 It was advertised by a label which is almost unique
15 in British political history. The Prime Minister was to
16 share with the people the gist of the formal
17 intelligence assessments he had received from the Joint
18 Intelligence Committee. The invitation was to share the
19 Prime Minister's conclusion, having shared the
20 intelligence.
21 The dossier, as the Prime Minister himself made
22 clear to the House of Commons on the day of publication,
23 was necessarily a matter of trust.
24 On unemployment figures or exam results or crime
25 statistics there is always available data to unravel any

95
1 spin but not so here. This was a voice from a closed
2 world not obviously open to scrutiny.
3 But in time whispers of dissent were heard.
4 I mention two examples not as evidence of their truth
5 but as material published by reputable newspapers and
6 left unchallenged by No. 10 -- and therefore as
7 important background to the BBC's decision to broadcast.
8 The Observer on 9th March 2003 spoke of "rows"
9 between the Intelligence Services and Downing Street.
10 The bone of contention was said to be that "intelligence
11 material should be presented straight rather than spiced
12 up to make a political point". Mr Campbell was
13 expressly named as having had fairly serious rows with
14 at least one member of the Joint Intelligence Committee.
15 The Independent on 27th April referred to one
16 aggrieved intelligence officer as stating that "You
17 cannot just cherry pick evidence that suits your case
18 and ignore the rest".
19 What these articles, and others, did not do was
20 identify any specific issue in the dossier as provoking
21 this alleged disquiet.
22 In the month following The Independent on Sunday
23 article Dr Kelly spoke of his concern that the September
24 dossier had been subject of political interference. He
25 cited the 45 minute claim as the classic example of that

96
1 interference and he chose to express his concerns to the
2 BBC and, with differing emphasis, to three separate
3 journalists at the BBC. He clearly did so for broadcast
4 on an unattributable basis.
5 Each of these three experienced journalists
6 independently judged that Dr Kelly's criticisms should
7 be heard by the public. They did not know them to be
8 true. How could they? The intelligence world is closed
9 and the BBC did not have a key. They therefore did not
10 present them as true, but they did present them as
11 credible.
12 That broad judgment the BBC defends as entirely
13 right.
14 I have already referred to the obvious public
15 interest in the subject matter of Dr Kelly's concerns,
16 but there were other factors in play.
17 He combined two crucial areas of expertise. He was
18 an expert on inspections in Iraq, and therefore on their
19 chemical and biological weapon capabilities in the
20 recent past, and he was a scientific expert on the
21 weapons themselves. He was also an interpreter for the
22 intelligence agencies of the scientific aspects of
23 intelligence, especially in the context of Iraq. He had
24 clearance at the highest level. His suggestion that he
25 was closely involved in the preparation of the dossier

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1 was intrinsically credible.
2 Mr Sumption says that Dr Kelly knew little about
3 assessing the reliability of agents, but on chemical and
4 biological warfare issues he was uniquely well placed to
5 judge the viability and sense of what they said.
6 There are other points to note. Dr Kelly had been
7 talking to the press about weapons of mass destruction
8 on a largely authorised basis for many years. The mere
9 fact that someone of Dr Kelly's background voiced his
10 criticisms as forcibly as he did speaks to the depth of
11 his concern. It is also most unlikely that he would
12 have spoken of many others in intelligence sharing his
13 view unless he believed that they did. The validity of
14 Dr Kelly's concerns about the dossier I shall explore
15 later.
16 Dr Kelly was not, as such, against war. He was not
17 against the dossier in principle. He was no peace
18 campaigner.
19 His view appears to have been that Saddam Hussein's
20 programmes for developing weapons of mass destruction in
21 the future posed a true threat. His quarrel was the
22 dossier's emphasis on a current threat posed by his
23 actual weapons and with Government interference, where
24 he cited the 45 minutes claim as the classic example.
25 There was and is no reason whatever to suppose that

98
1 these views were distorted by any private agenda of his
2 own.
3 Why did Dr Kelly feel so strongly? We suggest
4 three reasons.
5 First, he knew Iraq. To know a country is to care
6 the more about it. Off and on he had spent seven hard
7 and exacting years in Iraq, studying their WMD capacity.
8 He had conducted 37 inspections. He was a scientist.
9 He knew his Iraqi counterparts, scientists and military.
10 There are hints in the evidence that he thought he knew
11 more than many of the deskbound in Whitehall. If he did
12 think that, he was most likely right. In Iraq of all
13 places, intelligence was difficult to gather, and new
14 intelligence had always to be measured against the
15 position in 1998 when the inspectors were withdrawn.
16 Secondly, if the dossier exaggerated the position as
17 to current chemical and biological weapons, it could
18 directly affect those, such as Dr Kelly, who could
19 expect to be subsequently charged with finding them
20 after any war. From Dr Kelly's ISC evidence we know
21 that the UNMOVIC inspectors discussed the 45 minutes
22 claim in this very context. He said to the Committee:
23 "In terms of the 45 minutes, yes that was very
24 seriously discussed -- particularly people in the UN --
25 in UNMOVIC -- who were desperately trying to think about

99
1 what systems is it they should be looking for when they
2 get back into Iraq, because it doesn't fit any of the
3 known Iraqi systems, so yes, that was talked about and
4 discussed very seriously."
5 This was a highly topical subject to Dr Kelly in May
6 when the Iraq Survey Group was about to return to the
7 country.
8 Thirdly, he worked in a world of formal inspection
9 and report, where accuracy of language was paramount.
10 Professor Hawton described him as extremely meticulous
11 and a person who believed intensely in what he was
12 doing. He was clearly a principled man. If he thought
13 in an area where his two special subjects converged,
14 Iraq and WMD, that the public were being misled, he
15 would most likely have deeply resented it.
16 For these various reasons Dr Kelly was and appeared
17 to be an important and credible source.
18 Anonymous sources should, of course, be used with
19 great care. But voices speaking from within the system
20 can rarely declare themselves, especially if they are in
21 or close to the intelligence community.
22 Mr Gilligan, having had his interview with Dr Kelly
23 on 22nd May, did set out to test the apparent
24 credibility of what he understood Dr Kelly had said.
25 He studied other coverage. He was himself aware of

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1 apparent disquiet within the intelligence community over
2 the Government's treatment of intelligence on Iraq.
3 Unsurprisingly, the fiasco of the February dossier, for
4 which Mr Campbell was driven to apologise, gave some
5 credence to the case by Dr Kelly on the dossier that
6 preceded it.
7 Mr Gilligan identified some striking inconsistencies
8 of language within the September dossier as published.
9 He noted that the 45 minutes claim, after hitting the
10 headlines on 25th September, retired meekly into the
11 shadows. He also observed that in the American case for
12 war, it did not even make the stage. Nor had weapons of
13 mass destruction, on a 45 minute fuse or any other, ever
14 been found. The day before the first broadcast
15 Mr Rumsfeld, the United States Defence Secretary,
16 conceded that Iraq might have destroyed its WMD before
17 the war even began. This was the first such indication
18 by any member of the coalition.
19 There were some 20 broadcasts by Mr Gilligan between
20 29th May and 5th June on BBC radio and television
21 programmes on the subject of Dr Kelly's concerns. One
22 broadcast, his first, at 7 minutes past 6 on the morning
23 of 29th May, has attracted particular criticism. It was
24 unscripted, which with hindsight it should not have
25 been, and was live. It did not sufficiently distinguish

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1 between what Dr Kelly had said and Mr Gilligan's
2 interpretation of what he had said in two respects.
3 Dr Kelly did not say, as this broadcast suggested,
4 that the Government had put in the 45 minutes claim when
5 they probably knew it was wrong. Nor did Dr Kelly say
6 that Downing Street had ordered more facts to be
7 discovered. The BBC regret the inclusion of these
8 statements.
9 However, Dr Kelly did say that the dossier was sexed
10 up by Mr Campbell, that the classic example of this
11 transformation was the 45 minutes claim, that most
12 people in intelligence were not happy with the
13 45 minutes claim because it did not reflect the
14 considered view they were putting forward. These
15 charges were serious enough and dominated the rest of
16 Mr Gilligan's reports, save that he did not name
17 Mr Campbell in the early broadcasts.
18 The BBC also accept that Downing Street should have
19 been notified before broadcast. This was the instant
20 reaction of Mr Sambrook, Director of News, when he
21 looked at the matter, and was also the publicly stated
22 view of the Governors when it came before them in July.
23 LORD HUTTON: When you say "accept that Downing Street
24 should have been notified". Do you mean by that
25 notified on the evening before, Mr Caldecott?

102
1 MR CALDECOTT: I mean notified on the evening before,
2 my Lord, yes.
3 These areas we accept. There is a modern mantra:
4 never apologise, never explain. Because you invite the
5 taunt: you admit it now, why not earlier? That approach
6 is to ignore one simple point, that those who do not
7 admit mistakes are unlikely ever to learn from them.
8 On 2nd June, Newsnight, acting quite independently
9 from the Today Programme, also broadcast Dr Kelly's
10 concerns as relayed to another BBC journalist,
11 Susan Watts. She had the advantage of a tape recording.
12 It is highly informative as to what Dr Kelly's
13 misgivings were. He told Newsnight that the Government
14 was obsessed with finding intelligence on immediate
15 Iraqi threats, and that the Government's insistence that
16 the Iraqi threat was imminent was a Downing Street
17 interpretation of intelligence conclusions. He said
18 that the 45 minutes claim got out of all proportion
19 after Downing Street's intervention. If true, it was
20 a grave indictment of the integrity of the dossier.
21 There was not a whisper of challenge from the Government
22 to this programme.
23 There followed an exchange of correspondence between
24 the Government and the BBC directed at Mr Gilligan's
25 broadcasts. The complaint at this stage was primarily

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1 focused on the BBC's reliance on an anonymous source.
2 Mr Campbell's second letter was written on
3 12th June. On the same day Mr Sambrook attended a lunch
4 at No. 10 but no effort was made by Mr Campbell to open
5 any dialogue. He had other options. He could have
6 pursued a complaint with the BBC through the Programme
7 Complaints Unit, as the BBC invited him to do on
8 16th June. In this particular case a request to
9 fast-track the complaint would have been sympathetically
10 received. He could equally have pursued the matter with
11 the Broadcasting Standards Commission, the independent
12 regulatory body. In the event, the BBC heard nothing
13 more from Mr Campbell until he gave evidence to the
14 Foreign Affairs Committee almost two weeks later.
15 Before the Foreign Affairs Committee Mr Campbell
16 used more than battlefield munitions. He went
17 strategic. He said that "large parts of the BBC" had an
18 anti-war agenda and that the BBC's allegations against
19 the Government were lies. Mr Campbell and Mr Sumption
20 focus the regret on the Channel 4 interview, but that is
21 not where the escalation lay. It was this charge of
22 institutional political bias within large parts of the
23 BBC, coupled with an allegation of lying against the
24 organisation (not, I stress, merely against
25 Mr Gilligan).

104
1 LORD HUTTON: But was Mr Campbell's charge before the FAC
2 that the BBC were lying, was that not directed to the
3 broadcast, that the BBC probably knew that the 45 claim
4 was wrong? My recollection is, having read the
5 evidence, that it was when he was concentrating on that
6 point that he emphasised that the BBC were lying.
7 MR CALDECOTT: My Lord, that is certainly true. I am not
8 suggesting it was a general allegation of dishonesty, in
9 contrast to the other charge he made about large parts
10 of the BBC having an anti-war agenda. That is correct.
11 But he never specified precisely where the dishonesty
12 lay and it was left as a general charge of dishonesty
13 albeit infecting that specific programme. It was very
14 unspecific about why it was a lie but it was a very
15 strong term to use and it plainly escalated the debate,
16 we would have said.
17 LORD HUTTON: Yes.
18 MR CALDECOTT: There has, I should add, been no withdrawal
19 or expression of regret for the allegation of
20 institutional political bias in the BBC from
21 Mr Campbell, who would have been seen by many as
22 speaking on behalf of the Government. Unsurprisingly,
23 in his diary he said he had opened a flank on the BBC.
24 Hot foot from the Committee, Mr Campbell wrote
25 a private letter to the Director General of the BBC, in

105
1 which he described the story, not limited to the 6.07
2 broadcast, as 100 per cent wrong. He also wrote
3 a letter to Mr Sambrook, Director of News. This letter
4 could not be described as private since Mr Campbell
5 leaked its gist to the press before the letter was even
6 received. It set a deadline for reply of close of
7 business that day, the letter having arrived at
8 4 o'clock pm. It demanded answers to a raft of
9 questions which had never been asked before, although
10 the PMOS was briefing that the BBC had been repeatedly
11 asked the same questions and failed to answer. This
12 stampeding tactic was not a dignified way for
13 a Government to behave, nor was it the action of someone
14 with any interest in compromise or a considered response
15 from the BBC.
16 There is an important point to make about this new
17 letter from Mr Campbell. It implicitly complained of
18 the suggestion that the case for war had been
19 exaggerated and that the dossier had been sexed up to
20 make it appear that Saddam was a greater threat to the
21 West than the intelligence justified. This reflected
22 the wider charge of Dr Kelly's statements as generally
23 reported by Mr Gilligan, a charge the BBC maintains it
24 was fully entitled to broadcast.
25 LORD HUTTON: The letter did specifically ask, did it not:

106
1 "Does it [the BBC] still stand by the allegation
2 made on that day that both we and the intelligence
3 agencies knew the 45 minutes claim to be wrong and
4 inserted it despite knowing that?"
5 MR CALDECOTT: Without doubt, my Lord. I am not suggesting
6 for one moment it did not include a specific question
7 and probably more than one question directed at the 6.07
8 broadcast. The second paragraph of the letter before
9 those questions I think on the second page sets out
10 a quotation in far more general terms without the
11 "probably wrong" or anything equivalent to it.
12 LORD HUTTON: Yes.
13 MR CALDECOTT: What should also be remembered, my Lord, is
14 in his very first letter Mr Campbell asserted that one
15 of the programme's central charges was that the
16 45 minutes intelligence in the dossier was based on
17 a single source and that this statement by the BBC was
18 false. That was in fact 100 per cent true.
19 The BBC, faced with sustained calls from the media,
20 replied to Mr Campbell's letter the following day. The
21 letter ran to 12 pages and was firm but courteous. Some
22 mistakes were made in the rush. In hindsight the BBC
23 accepts that Mr Gilligan's notes should have been
24 examined. However, it will be borne in mind that
25 Mr Campbell's public attack on the BBC now went well

107
1 beyond the 6.07 broadcast and into wider matters.
2 As I have said, this allegation of institutional
3 bias against the BBC, coupled with an allegation of
4 lying, was as grave a charge as could be made against
5 a public service broadcaster by the Government's
6 Director of Communications; and it had the effect of
7 bringing the BBC Governors into play. They had no
8 obligation to meet, having received no formal complaint
9 from the Government or Mr Campbell personally, but they
10 held a special meeting on 6th July. In a private letter
11 to them, in stark contrast to what he had just said in
12 televised evidence to the Foreign Affairs Committee,
13 Mr Campbell said he was not attacking the BBC's
14 independence. This was a choice example of having your
15 cake and eating it.
16 The Governors examined both the general and specific
17 attacks on the BBC. They could not determine the
18 accuracy of what the source had said, since they lacked
19 the necessary intelligence materials to do so.
20 As to the rest, they did not uncritically endorse
21 management. They criticised the lack of notice to
22 Downing Street. They made it clear that the BBC was
23 only reporting the source and not adopting his views as
24 true. They stated, in terms, that the BBC was not
25 accusing the Government or the Prime Minister of lying.

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1 They accepted the assurance of management that the notes
2 had been reviewed and Mr Gilligan's recollection
3 checked, as indeed was the case.
4 LORD HUTTON: I recognise, Mr Caldecott, that there is
5 a distinction between the BBC making a direct charge and
6 the BBC reporting a criticism made by a source, but
7 there is the point that can be made against that view
8 that as regards the person who is the object of the
9 criticism it matters little to him, whether he be
10 a person or whether it be the Government, that the
11 report does not directly allege the misconduct on his or
12 its part.
13 MR CALDECOTT: My Lord, can I analyse that a little?
14 LORD HUTTON: If you could assist me on that.
15 MR CALDECOTT: First of all, I think I accept the broad
16 premise put to me that to the person criticised it will
17 still remain a serious charge even if it is not adopted
18 as true. And it is for that reason that the law of
19 defamation has a doctrine called the repetition rule,
20 that the mere fact you have quoted someone as saying
21 something does not provide a defence. You have to show
22 that the underlying charge was true. That, I think,
23 reflects the concern that your Lordship is putting to me
24 that a hearsay charge can still be very serious in its
25 consequences.

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1 But that is to look at it entirely from the
2 perspective of the individual criticised. In the
3 context of public interest issues there is a quite
4 separate consideration as to the value of the material
5 in the public interest. In that context it is very
6 important that publishers make clear whether it is their
7 conclusion after thorough investigation or whether it is
8 merely the conclusion of the source which they are
9 reporting.
10 We would also suggest that in the context of
11 intelligence stories of this kind, the public do not
12 live in an ivory tower, and make obvious allowances for
13 the fact that this is only a single source, as the BBC
14 made clear, there is no corroboration and a degree of
15 scepticism must be brought to bear. Of course, they no
16 doubt make allowances for such matters as the
17 Prime Minister's denial, the reported denial of the
18 Chairman of the JIC and indeed the acceptance by the BBC
19 that they were not accusing any of those persons of
20 lying.
21 LORD HUTTON: Yes.
22 MR CALDECOTT: But I accept your Lordship's premise that it
23 is still a serious matter for the person criticised.
24 LORD HUTTON: Yes. Thank you.
25 MR CALDECOTT: My Lord, the Governors and BBC declined to

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1 accede to a Government request on 8th July to disclose
2 the identity of their source to the Government in
3 confidence. It was, of course, a strange kind of
4 confidentiality, since almost at that exact time the
5 naming of Dr Kelly was in close consideration in high
6 Government circles. The BBC stood firm on protecting
7 its source's identity and says it was entirely right to
8 do so.
9 My Lord, what followed thereafter is really ground
10 covered by Mr Gompertz and Mr Sumption, and appearing
11 for the BBC I doubt it would assist if I were to comment
12 as, in a sense, a stranger to those matters.
13 LORD HUTTON: Quite, yes.
14 MR CALDECOTT: Can I now turn to Dr Kelly's perception of
15 the dossier and the extent to which it appears to be
16 valid.
17 One has to judge his state of knowledge by reference
18 not just to the documents, of which there are
19 surprisingly few, but by reference to the realities of
20 his working life.
21 He was the expert of choice across several
22 independents. He had a desk at the Ministry of Defence,
23 the Foreign Office and with the Defence Intelligence
24 Staff. He was consulted by the JIC assessment staff,
25 and so valuable was his advice to the DIS that they

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1 provided him with a pass for unaccompanied access. If
2 DIS personnel trusted him with raw intelligence and
3 respected his professional judgments, they would have
4 doubtless trusted him with their private views.
5 We know that persons close to the process did so and
6 your Lordship will recall the e-mail from Mr A to
7 Dr Kelly:
8 "Another example supporting our view that you and
9 I should have been more involved in this than the spin
10 merchants of this administration ... let's hope it [that
11 is the dossier] turns into tomorrow's chip papers."
12 It seems that some of these persons in the
13 assessment world, including Dr Kelly, felt
14 professionally excluded. We know that Mr A also had
15 misgivings about the 45 minutes claim being included in
16 the dossier as a certainty. He thought it begged more
17 questions than it answered. As a view, it is hardly
18 surprising. Nobody knew what weapons system it referred
19 to or what journey the 45 minutes was in fact
20 describing. And these were, after all, weapons experts.
21 Dr Kelly described the claim to Tom Mangold as
22 "risible".
23 This view unconditionally reflects the terms of
24 a formal letter sent to the Deputy Chief of Defence
25 Intelligence by Dr Jones, a branch head within the DIS

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1 on 19th September.
2 We do not accept the attempt to diminish the
3 importance of Dr Jones, who described himself as
4 "probably the most senior and experienced intelligence
5 community official working on weapons of mass
6 destruction".
7 Mr A told the Inquiry that the perception was that
8 the dossier had been round the houses several times to
9 try to find a form of words which would strengthen
10 certain political objectives. Dr Kelly told Susan Watts
11 that the Government were desperate for information, they
12 were pushing hard for information which could be
13 released. He also said that it was very difficult to
14 get comments in because people at the top of the ladder
15 did not want to hear some of the things.
16 My Lord, it is beyond the scope of these oral
17 submissions to explore the evolution of the 45 minute
18 claim from a mere possibility to a certain judgment.
19 And I have to say that a study of JIC vocabulary would
20 not be a volume to bring out for the Christmas rush.
21 But you do not need to be a student of obscure phrases
22 to know that a statement that Iraq may be able to launch
23 WMD within 45 minutes is very different from a statement
24 that they are able to.
25 In JIC speak if you want to suggest it is only

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1 possible that Iraq can launch WMD in 45 minutes you say
2 intelligence "indicates" or "suggests" that position.
3 This was the effect of the only JIC assessment which
4 addressed the point and is exactly how it was put in the
5 first draft of the dossier. As I have said, there
6 appear to have been some good reasons for that
7 qualification.
8 The 9th September JIC paper, as I say, reads as
9 a possibility; and in the absence of any new
10 intelligence on the point, and there was none, it is
11 perhaps hardly surprising that those in DIS close to
12 Dr Kelly could see no sound reason for hardening the
13 language to a certainty.
14 We know that the gear change followed a minute from
15 Mr Campbell to Mr Scarlett, observing that the main text
16 was weaker than the executive summary. Dr Kelly told
17 Susan Watts that the 45 minutes claim "just got out of
18 all proportion", a statement that was broadcast on
19 Newsnight without complaint.
20 It must be remembered that Dr Kelly cited the
21 45 minutes claim as merely an example; and we know that
22 he and Dr Jones went through the dossier on
23 19th September, line by line. It is inconceivable that
24 Dr Kelly, with his special interest in Iraq and his
25 involvement in the dossier's preparation, did not read

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1 the final version with care.
2 At 3.45 pm on 19th September, after the time for
3 last essential comments by JIC members had expired,
4 Jonathan Powell, Chief of Staff at Downing Street,
5 launched a further bid for change. This was not
6 cosmetic. It was substance. The whole purpose of the
7 dossier was an assessment of the threat posed by
8 Saddam Hussein. In the drafts of 11th, 16th and
9 19th September, all considered and approved by JIC
10 members, the dossier was careful to stress that
11 Saddam Hussein was prepared to use chemical and
12 biological weapons if his regime was under threat,
13 including in the event of an uprising by his own Shia
14 population.
15 These drafts did not suggest that Saddam Hussein
16 would be so stupid as to use such weapons offensively
17 and unprovoked, inviting defeat by Western forces far
18 stronger than his own.
19 Mr Powell realised that this wording advanced
20 a powerful argument against war. As he put it in his
21 e-mail to Mr Scarlett and Mr Campbell, "It backs up the
22 argument that there is no chemical and biological
23 weapons threat" and "we will only create one if we
24 attack him".
25 "So", says Mr Powell, "I think you should redraft

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1 the paragraph". That is what Mr Scarlett duly did.
2 Mr Scarlett says there was intelligence to support
3 this change. If there was, it is nowhere apparent in
4 the ISC report published on 9th September of this year.
5 The ISC operate within what is called the ring of
6 secrecy and see significant amounts of classified
7 material. Moreover, the final JIC assessment on Iraq of
8 9th September is consistent with the presentation of
9 Saddam Hussein as a defensive rather than an offensive
10 threat. It states:
11 "... that if Saddam were to be faced with the
12 likelihood of military defeat and removal from power, he
13 would be unlikely to be deterred from using chemical and
14 biological weapons by any diplomatic or military means."
15 Was this new intelligence of which Mr Scarlett
16 speaks ever assessed in final form? If so, when? It
17 appears to conflict with a later JIC assessment
18 of November 2002, to which the ISC also refers, which
19 seems to emphasise the defensive nature of
20 Saddam Hussein's threat. It is an assessment hedged
21 around with a regiment of "ifs". It states:
22 "It was assessed that Saddam was prepared to order
23 missile strikes against Israel with chemical and
24 biological warheads, in order to widen the war should
25 hostilities begin."

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1 It then referred to some other targets and goes on:
2 "The update also contained recent intelligence that
3 Saddam would use chemical or biological weapons if
4 allied forces approached Baghdad, if Basra, Kirkuk and
5 Mosul fell to allied control or if Iraqi military units
6 rebelled."
7 Mr Sumption said, I think this morning, that this
8 had nothing to do with the 45 minutes claim. I query
9 whether that is right. The 45 minutes claim is not only
10 in the same paragraph, it is in the very next sentence.
11 Dr Kelly could hardly have missed it.
12 These are not questions the BBC can conclusively
13 answer. The final covering note to JIC members from
14 Mr Scarlett says nothing about any new intelligence and
15 makes no effort to draw attention to this change,
16 despite its evident importance.
17 There was one other late final change. The title.
18 On 16th September and 19th September drafts, also
19 approved by the JIC, being those which Dr Kelly appears
20 to have seen, the dossier's title was "Iraq's Programme
21 for Weapons of Mass Destruction", the emphasis being on
22 what Saddam Hussein was seeking to develop rather than
23 the weapons he had. At the last minute the word
24 "Programme" disappears, leaving the impression that the
25 threat is posed by the weapons he has now. This appears

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1 to have been the work of Mr Scarlett. Titles do colour
2 contents. This was again a transforming change and
3 Dr Kelly could hardly have missed it. Indeed, there is
4 more than a hint that Dr Kelly, with his close interest
5 in the specific nature of Iraq's current threat, took
6 on-board this very change and viewed it with dismay. In
7 his taped telephone call with Susan Watts, Dr Kelly said
8 this:
9 "I think that was the real concern that everybody
10 had, it was not so much what they have now [meaning
11 Iraq] but what they would have in the future. But that
12 unfortunately wasn't expressed strongly in the dossier,
13 because that takes away the case for war."
14 It is unclear to what extent Dr Kelly and others
15 within the DIS were aware on the grapevine of
16 Downing Street's contribution to the drafting process.
17 They certainly knew that Downing Street was pressing for
18 more intelligence. They also are likely to have known
19 that the very important first planning meeting for the
20 dossier on 9th September was chaired by Mr Campbell with
21 Mr Scarlett in attendance, rather than vice versa.
22 It has not been easy to piece together who learned
23 what at which meeting, since it appears that in
24 Government note-taking is a forgotten art. This is
25 a serious point. Accountability anywhere requires

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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. There are, however, some
5 flashes of insight to be gained from the e-mail traffic.
6 To take but one example, the reaction of Mr Campbell's
7 special adviser to the first draft of the dossier was
8 "we're in a lot of trouble now". Why, one asks, should
9 an accurate and fair summary of the JIC assessment spell
10 any trouble for anyone? It is exactly what the dossier
11 was meant to be doing.
12 The answer, of course, is that Mr Bassett meant
13 political trouble. Mr Scarlett said in his first round
14 of evidence that he was aware of the input that was
15 coming to him on the back of these e-mails and that
16 members of the intelligence agencies were also aware.
17 He said that no worries of any kind were expressed to
18 him, but others may have thought that politics had
19 started to enter the bloodstream of the dossier.
20 To what extent was Dr Kelly in fact right? It is
21 beyond the scope of this speech to address the fine
22 detail of the case for political interference with
23 a dossier and the Government's response to it. There
24 are, however, some short points which may shed light as
25 to why at least suspicions remain about the process

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1 whereby the dossier was produced. These points share
2 a simple theme: there is no reason not to be open if you
3 have nothing to hide.
4 The Prime Minister, in the House of Commons on
5 4th June, declared that this was indeed the Government's
6 position. In response to a call for a Public Inquiry
7 the Prime Minister said this:
8 "Furthermore, the allegation that the 45 minute
9 claim provoked disquiet among the intelligence
10 community, which disagreed with its inclusion in the
11 dossier -- I have discussed it, as I said, with the
12 Chairman of the Joint Intelligence Committee -- is also
13 completely and totally untrue. Instead of hearing from
14 one of many anonymous sources, I suggest that if people
15 have evidence, they actually produce it."
16 But when the evidence did become available,
17 a strangely coy approach prevailed. That coyness goes
18 to three matters: the history of the drafts on the
19 45 minutes claim; the extent of disquiet with the
20 dossier, including as to the 45 minutes claim; and
21 thirdly, acknowledging that the 45 minutes claim had
22 been seriously misunderstood by both the public and the
23 media, so unclear was its terms.
24 There are four matters to consider in this context.
25 Firstly, Mr Straw had given evidence to the Foreign

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1 Affairs Committee of the House of Commons that to his
2 knowledge there had been no formal complaint from the
3 Intelligence Services about the dossier. In acquitting
4 the Government of any political meddling, the Foreign
5 Affairs Committee expressly attached importance to the
6 absence of any evidence of any intelligence personnel
7 complaining about or seeking to distance themselves from
8 the content of the dossier. In fact, Dr Jones, a branch
9 head in DIS, had written a strong formal letter of
10 protest about the dossier on 19th September, not only on
11 his own behalf but on behalf of his branch as well; and
12 not only to his immediate line manager but to the Deputy
13 Chief of Defence Intelligence, Mr Cragg, expressing
14 reservations about the dossier. Mr Cragg stated to
15 the Inquiry that he was surprised by its strength of
16 language.
17 A similar letter was written by a colleague on
18 20th September, after the dossier had been finalised.
19 These letters were only disclosed to the ISC as
20 a consequence of this Inquiry and were apparently never
21 drawn to the attention of the Foreign Affairs Committee
22 or Mr Straw. The speaking note, approved by Mr Howard
23 and Mr Scarlett, portrayed the documents as customary
24 debate between analysts and a mere expression of concern
25 to immediate line managers. They were, in fact,

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1 neither. Dr Jones was sent a letter which gave the
2 false impression that the record had been corrected.
3 I turn to the second matter. Mr Campbell prepared
4 a memorandum for the Foreign Affairs Committee of the
5 changes he had suggested to the dossier. Those changes
6 were entirely based on an exchange of documents between
7 him and Mr Scarlett. He had those documents in front of
8 him when the memo was prepared. He also had the benefit
9 of Mr Scarlett's help. No points outside these
10 documents were mentioned in his memo to the Foreign
11 Affairs Committee, but several points within the
12 documents were omitted. Most strikingly, Mr Campbell
13 made no mention of his comment that the 45 minutes claim
14 was weaker in the text than in the executive summary,
15 despite the fact that this was the very issue the
16 Foreign Affairs Committee were concerned to examine.
17 The memo reads as if it is a product of recollection
18 rather than drawn from documents, so that documents were
19 never asked for and the omission never emerged. It was,
20 in context, a quite extraordinary oversight.
21 The third example concerns the oral evidence given
22 to the Foreign Affairs Committee by Mr Campbell, who
23 stated that he looked at all the drafts of the dossier
24 and left no doubt that on the 45 minute claim they had
25 stayed the same. This was demonstrably wrong.

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1 Mr Campbell was asked to relay a request to the JIC
2 for these drafts. If Mr Campbell's evidence was
3 accurate, there could be no possible reason for not
4 producing them, since on his account they were all
5 identical on the 45 minutes claim, and the annual report
6 of the ISC had stated the obvious in saying that the
7 published intelligence was now declassified.
8 The truth is that if the drafts on the 45 minutes
9 claim had been produced, Mr Campbell's evidence on the
10 point would have been wholly undermined. And the
11 uncomfortable questions would have followed: who made
12 the changes, and why?
13 Even in phase 1 of this Inquiry Mr Campbell did not
14 refer to the fact that he had made a comment on the
15 45 minutes claim. It also begs the question: who in
16 Government was following Mr Campbell's evidence with an
17 awareness of the fact that the drafts had consistently
18 changed on the 45 minutes claim?
19 The last point relates to what the public were told.
20 Several mass circulation newspapers understandably
21 interpreted the 45 minutes claim as referring to
22 strategic missiles or bombs. It seems to have been
23 common knowledge within Government that the intelligence
24 referred to battlefield munitions only, though this was
25 never made clear in the dossier.

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1 Only Sir Richard Dearlove, in evidence to this
2 Inquiry, acknowledged real dismay on the point. The
3 reaction of Mr Hoon and Mr Scarlett borders on cynical
4 indifference. The Government's failure to correct is
5 wholly indefensible. It is hard to put it down to
6 anything other than political expedience. The Inquiry
7 has seen pages and pages of Q and A material, core
8 scripts and lines to take devoted to getting across
9 a media message when the Government wants it. The best
10 governing minds of the country closely considered the
11 outing of Dr Kelly, but on this fundamental
12 misrepresentation to the public and in this wholly
13 unprecedented context there was nothing. Humble pie, it
14 seems, is never on the menu.
15 Had the Government been candid on these points,
16 especially those concerning the Foreign Affairs
17 Committee, the public focus may have shifted from
18 Dr Kelly to a more substantive and informed debate on
19 the dossier.
20 I conclude with two short observations.
21 First, while some people saw or perhaps should have
22 seen some of the pressures Dr Kelly was under, it was
23 always going to be a very partial view. The BBC, for
24 its part, accepts that nobody in Government or the BBC
25 or the Civil Service had an inkling of all the pressures

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1 he was under, still less could or should anyone have
2 foreseen their tragic outcome.
3 Second, the BBC anticipates criticism of the 6.07
4 broadcast in particular and its treatment thereafter,
5 but they do ask the Inquiry to have in mind the public
6 interest in the remainder of its extensive coverage of
7 Dr Kelly's concerns about the dossier, which the BBC
8 believes the public had a right to know.
9 LORD HUTTON: Thank you very much, Mr Caldecott.
10 CLOSING STATEMENT by MS ROGERS
11 LORD HUTTON: Yes, Ms Rogers.
12 MS ROGERS: My Lord, I have been given 15 minutes to make
13 submissions on behalf of Andrew Gilligan. It is
14 obviously not possible in that time to deal with all the
15 detail and that will be done in writing.
16 LORD HUTTON: If you feel you would like to extend that time
17 to some extent, please feel free to do so. I do not
18 want you to feel you are restricted or under pressure.
19 MS ROGERS: I will try to stay within it. Within that time
20 what I will seek to do is to address you from the
21 perspective of Andrew Gilligan, which is that of the
22 working journalist, the working journalist who has an
23 essential job to do in a democracy.
24 Andrew Gilligan has accepted that he made mistakes.
25 They were inadvertent. But it is important to

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1 acknowledge that it was right for Andrew Gilligan to
2 talk to David Kelly. It was right for Andrew Gilligan
3 to ask him about the September dossier. It was right to
4 report what Dr Kelly said about it. In short, it was
5 right for Andrew Gilligan to tell the public.
6 I want to start at 22nd May 2003, with
7 Andrew Gilligan's meeting with Dr David Kelly at the
8 Charing Cross Hotel. That meeting has to be put into
9 its context: the war in Iraq. The decision whether the
10 UK should go to war had been hotly debated, with very
11 strong passions aroused about whether that decision was
12 right or wrong. This was not an arid debate taking
13 place only in the inner circles of Government, it was
14 central to political debate in this country. And the
15 country was divided. Parliament was divided. Even the
16 Government was divided. Cabinet Ministers resigned.
17 The debate was continuing on 22nd May 2003. One
18 reason was that by that date no weapons of mass
19 destruction had been found in Iraq. The central
20 justification from Washington and London for the war was
21 to rid the country of weapons of mass destruction, WMD.
22 The failure to find WMD had fuelled the ongoing debate.
23 Some people thought that the Government had misled
24 them. Before 22nd May there had been reports in the
25 media, the responsible media, that some Labour

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1 backbenchers thought they had been duped into backing
2 the war on the basis of questionable intelligence.
3 There was a great deal of media reporting on the issue
4 of what the Government had told Parliament and the
5 public, and whether it was right. It was a persistent
6 issue. It was a problem for the Government. Some
7 people just did not believe what they had said about the
8 need to go to war. And of course the problem was
9 compounded by the Government's February dossier, which
10 was, as the Government itself acknowledged, a mistake.
11 It was a mistake that severely damaged the Government's
12 case.
13 All this formed part of the context in which
14 Andrew Gilligan, the Today reporter, met Dr David Kelly,
15 the experts' expert on Iraqi WMD. Was it right for
16 Andrew Gilligan to meet David Kelly? We say: yes, it
17 was.
18 David Kelly had vast experience on Iraq and WMD. We
19 have heard in this Inquiry about David Kelly's knowledge
20 and experience, how he was valued and respected by his
21 colleagues. He was a very credible and authoritative
22 source. We know that David Kelly spoke regularly to
23 journalists. He was comfortable dealing with them. We
24 have seen some of David Kelly's e-mails; we have seen
25 some journalists' notes, we have heard a tape recording

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1 of one of David Kelly's conversations.
2 The big issues, the war in Iraq and the Government's
3 justification for it, were issues of incontestable
4 public interest and importance. As defence
5 correspondent on Today it was Andrew Gilligan's job to
6 go out and ask questions about those matters; to
7 interview good sources and to report to the public.
8 Andrew Gilligan, a working journalist, had met
9 David Kelly before and knew his expertise. It is
10 through sources like David Kelly that working
11 journalists obtain information and report it as part of
12 healthy political debate. David Kelly agreed to meet
13 Andrew Gilligan when he called. It was right for them
14 to meet. Was it right for Andrew Gilligan to ask
15 David Kelly about the September dossier? We say: yes,
16 it was.
17 Meeting when they did, it was inevitable that
18 Andrew Gilligan would ask David Kelly about the failure
19 to find WMD in Iraq and about what the Government had
20 said in its September dossier about WMD. He would have
21 been failing in his job had he not done so. We have
22 heard what David Kelly said, in short summary: the
23 dossier had been transformed in the week before
24 publication to make it sexier; the classic example of
25 the transformation was the statement that some WMD were

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1 ready for use in 45 minutes. That had not been in the
2 original dossier. David Kelly and others thought it was
3 wrong; that the intelligence was unreliable; that it had
4 been misinterpreted. The statement had been included in
5 the dossier against the wishes of David Kelly and
6 others. Most people in intelligence were unhappy with
7 the dossier because it did not reflect the considered
8 view that they were putting forward.
9 And who, according to David Kelly, was responsible
10 for the transformation of the dossier? Campbell.
11 LORD HUTTON: Are you suggesting that Dr Kelly told
12 Mr Gilligan that most people in intelligence were
13 dissatisfied with the dossier?
14 MS ROGERS: Yes.
15 LORD HUTTON: Yes.
16 MS ROGERS: This information coming from David Kelly was
17 important and valuable. David Kelly was not someone who
18 was opposed to taking action against Iraq. He was
19 a hawk. He believed, as he emphasised to
20 Andrew Gilligan, that Iraq had WMD programmes. What
21 David Kelly said about the September dossier in his
22 answers shows that Andrew Gilligan was right to ask him
23 questions.
24 Was it right for Andrew Gilligan to report what
25 David Kelly told him? We say: yes, it was.

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1 David Kelly was, on 22nd May 2003, as he had been
2 for many years, a trusted public servant. He had the
3 highest security clearance. The fact is that he
4 volunteered information to Andrew Gilligan, a reporter,
5 knowing that it was likely to be used and intending that
6 it should be published.
7 That David Kelly should volunteer this information
8 to Andrew Gilligan shows that David Kelly thought it was
9 information that should be put into the public domain.
10 What did Andrew Gilligan do before reporting this
11 issue? Of course there is a limit to what you can do
12 when you are dealing with a confidential source from
13 a closed world like the intelligence community.
14 Andrew Gilligan has explained in his evidence to this
15 Inquiry the steps that he took to check the information.
16 He did what he could.
17 Meanwhile, the debate about the big issue for the
18 Government, for all of us, continued. In America
19 Donald Rumsfeld, the Secretary of State for Defence,
20 went on record with a suggestion that Iraq might have
21 destroyed its WMD before the war began. This was
22 a significant development. The morning headlines for
23 the newspapers, broadsheet and tabloid, on 29th May 2003
24 were summarised in the Government's own 6 am daily
25 briefing service which has been produced to this

130
1 Inquiry. It includes reporting of claims that the
2 Government had misled Parliament and the people.
3 When Andrew Gilligan took his story to the editors
4 of the Today Programme, he did not know what the
5 newspapers would be saying next day. It was on
6 28th May 2003 that three experienced journalists --
7 Andrew Gilligan, the day editor and the programme editor
8 of Today -- decided they should report what David Kelly
9 had said on the Today Programme on 29th May.
10 What about the fact that David Kelly's identity had
11 to be protected? There was no prospect of naming
12 David Kelly in the broadcast. His position meant that
13 it was not possible for him to go on the record as the
14 source. He had spoken on an unattributable basis and
15 Andrew Gilligan had a duty to protect his source. That
16 duty to protect sources is a fundamental principle for
17 journalists.
18 Andrew Gilligan and David Kelly agreed a form of
19 words to describe David Kelly that would not reveal him
20 as the source. The fact is that David Kelly was a good
21 source, a very good source. He was not a member of the
22 Intelligence Services, but he was a member of the
23 intelligence community, an intelligence insider,
24 a source on intelligence.
25 What about the record of what David Kelly had said

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1 at the meeting? Of course, Andrew Gilligan did not have
2 a verbatim note of the conversation. He is not a court
3 transcriber who records every word. He is a journalist,
4 and like most journalists he made notes. He made and
5 revised them on his personal organiser at the meeting.
6 Next day he wrote out a longer account of the
7 conversation; and on 28th May he produced from that note
8 the summary of what David Kelly had said for the editors
9 on the Today Programme.
10 As for how the story was reported, the Inquiry knows
11 from Mr Gilligan's evidence that he has examined and
12 re-examined in the cold, clear light of hindsight every
13 aspect of his reporting in the light of what has
14 happened since 29th May. His journalism has been
15 subjected to an unprecedented level of scrutiny. He has
16 acknowledged his mistakes. They were made inadvertently
17 and in good faith.
18 One question that has been raised is whether
19 Andrew Gilligan should have gone back to David Kelly
20 before reporting his words on Today. David Kelly was
21 familiar with dealing with journalists and he knew that
22 when he met Andrew Gilligan he was meeting a working
23 journalist who would want to use what he said.
24 When Andrew Gilligan checked key points and
25 quotations at the end of the conversation, David Kelly

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1 asked Andrew Gilligan not to use some of the technical
2 information he had mentioned. But apart from that he
3 was happy for what he said to be reported. That is why
4 he said it.
5 Of course, David Kelly was saying similar things to
6 other journalists at this time. We can take two
7 examples from the BBC, Susan Watts and Gavin Hewitt.
8 As for Susan Watts, on 7th May David Kelly had
9 raised the question of Alastair Campbell's involvement
10 in the September dossier with her. She did not report
11 it at that time but there is no doubt that David Kelly
12 raised his name with her. When she asked him about that
13 conversation later, Dr Kelly remembered what he had
14 said. He went on to say that he regarded
15 Alastair Campbell as synonymous with the No. 10 press
16 office because he was responsible for it.
17 On Newsnight on 2nd June 2003, Susan Watts' report,
18 based on what David Kelly had said, included that the
19 Government had been desperate for information, that it
20 had seized on the 45 minutes claim, which had
21 unfortunately got out of proportion.
22 As for Gavin Hewitt, he too gave evidence to
23 the Inquiry. He was sure, relying on his notes, about
24 what David Kelly had said to him about the dossier.
25 This included that No. 10 spin had come into play and

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1 that there had been unease of some substance amongst
2 intelligence people.
3 As for Dr Kelly's views on the 45 minutes claim,
4 well we know that he confirmed to Tom Mangold that it
5 was "risible".
6 We may never know for sure why Dr Kelly was giving
7 this information to journalists, but the fact that he
8 was doing so is clear. He gave it to Andrew Gilligan;
9 and what Andrew Gilligan set out to do, in good faith,
10 was to report fairly and accurately what David Kelly had
11 told him. What Dr Kelly had told him was of interest to
12 the public and Andrew Gilligan was right to do his best
13 to report the story.
14 Was it right for Andrew Gilligan to bring these
15 matters to the public's attention? We say that it was.
16 By 29th May the September dossier was eight months
17 old. Why did it still matter? It mattered because what
18 Dr Kelly had said was concerned with issues of real
19 substance. The decision to go to war is one of the most
20 important political decisions that can be made. We are
21 here in this Inquiry because David Kelly died. His
22 death is a tragedy, the loss for his family, his friends
23 his colleagues is immense. This Inquiry is concerned
24 with the circumstances that led to his death. In
25 a narrowest sense that could be said to focus on the

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1 events of a single day, but the issues under
2 consideration here have been much wider and in that
3 wider context we remember that as a result of a decision
4 to go to war many other lives have been lost, many other
5 lives have been changed by the loss of a husband,
6 a father, a brother, a friend.
7 The decision to go to war, the Government's
8 justification for it, deserves the closest possible
9 scrutiny. A defence correspondent who failed to raise
10 these matters in the continuing public debate would be
11 failing in his duty.
12 It is the role of the journalist to investigate and
13 report upon matters of legitimate public interest. This
14 journalism was not an unwarranted intrusion into
15 someone's private life, it was not celebrity gossip. It
16 was a classic example of working journalism reporting on
17 a matter of public interest.
18 Freedom of expression is a fundamental right. It is
19 a right to receive as well as a right to communicate
20 information. The media play a vital role in a democracy
21 as the eyes and ears of the public. The law protects
22 freedom of expression not just as a lofty principle, not
23 just as a matter of theory, but as a matter of practical
24 reality. It was this Government that gave us the Human
25 Rights Act, promising that it would bring rights home.

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1 The law allows --
2 LORD HUTTON: These are all very valid principles that you
3 are stating, but as I understand it you are stating them
4 against the background that Mr Gilligan accepts that
5 there were errors in his reporting.
6 MS ROGERS: My Lord, yes.
7 LORD HUTTON: In the way in which he reported what he
8 believed Dr Kelly had said to him. Am I right in that
9 understanding?
10 MS ROGERS: My Lord, that is right. My very next sentence
11 was to be, my Lord: the law allows, as it must, a margin
12 for error. It does not require perfection from those
13 who practice the trade of journalism in the media, as in
14 real life nobody is perfect.
15 LORD HUTTON: Yes. Yes.
16 MS ROGERS: Free and open political debate is so important
17 that the law requires politicians and others who engage
18 in the public arena to show a higher degree of tolerance
19 for criticism of their actions and their motives. Such
20 criticism should be understood, if not welcomed, by
21 a Government in a healthy democracy like ours.
22 LORD HUTTON: Is that so if a very grave charge is made
23 which has really no basis for its underlying gravity?
24 MS ROGERS: Well, my Lord, that --
25 LORD HUTTON: I appreciate we have been discussing these

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1 matters really for a number of days, but the real
2 criticism of Mr Gilligan is that he had a discussion
3 with Dr Kelly. You are submitting that Dr Kelly made
4 certain observations to him. But Mr Gilligan then made
5 a very serious charge, which was that the Government
6 probably knew that the 45 minutes claim was wrong; and
7 as I understand it Mr Gilligan has accepted that in
8 reporting that he gave a wrong impression, which he did
9 not intend to give.
10 I mean, are you suggesting that there is some
11 justification for that particular charge? I appreciate
12 also that Mr Gilligan says that he gave other broadcasts
13 and he suggests, and I have to consider this carefully,
14 of course, that there was some basis for these other
15 suggestions. But the Government's main complaint was in
16 relation to that charge, which the Government says was
17 a very grave charge for which there was no basis.
18 MS ROGERS: My Lord, that is the Government's complaint now,
19 that that is a serious charge.
20 LORD HUTTON: Yes.
21 MS ROGERS: What I was going to go on to do was to look at
22 the charge at the beginning, which essentially was
23 a wholesale attack on the story.
24 LORD HUTTON: Yes I see, yes.
25 MS ROGERS: It depends what the starting point is. I was

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1 seeking to start from the starting point that
2 Mr Gilligan had, which was the conversation with
3 Dr Kelly and the reporting about that.
4 LORD HUTTON: Yes. Please do develop that.
5 MS ROGERS: If I do not answer your Lordship's question in
6 my submissions then please come back to it and I will.
7 I do not want to duck the question.
8 LORD HUTTON: No, quite.
9 MS ROGERS: Today we do not take the word of public figures
10 automatically at face value. We question what we are
11 told. It is right that we should. It is healthy for
12 society that we do. It is by public debate, vigorous
13 open debate, that we are all better informed.
14 The issues raised in this reporting were big issues,
15 serious issues of substance. The reporting of claims
16 and responses to claims is the common currency of
17 political debate. The Government, doing its job,
18 responded to Andrew Gilligan's story swiftly and as
19 fully as it wanted. The Government has a vast dedicated
20 and sophisticated communications machinery. It had no
21 difficulty in getting what it wanted to say reported in
22 the media, both on 29th May and after it made press
23 statements, statements in Parliament, and what it said
24 was reported just as widely as what Dr Kelly had said.
25 The problem for the Government was that

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1 Andrew Gilligan's story, based expressly on a single
2 anonymous source, did not go away. Dr Kelly was not the
3 only person giving information to the media. Other
4 journalists and publications followed up the story,
5 including their own sources, including sources in the
6 Intelligence Services who were making similar
7 statements.
8 The problem for the Government was that the burden
9 of Andrew Gilligan's story fitted with other evidence,
10 other information from other sources. In this Inquiry
11 and before it the Government has focused its attack on
12 Andrew Gilligan, but Andrew Gilligan was just one
13 working reporter doing his job. His contribution to the
14 ongoing political debate was to report what David Kelly
15 had said.
16 Andrew Gilligan's report did not put the issue of
17 what the Government had said about WMD on to the
18 political agenda. The Intelligence and Security
19 Committee, for example, had decided at the beginning of
20 May 2003, before Andrew Gilligan's report, to examine
21 the intelligence and assessments on Iraq and their use
22 by the Government. That is what the ISC said in its
23 annual report and what its chair, Ann Taylor, said in
24 evidence to this Inquiry.
25 The Foreign Affairs Select Committee had decided it

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1 would seek to establish whether the Foreign and
2 Commonwealth Office within the Government as a whole had
3 presented accurate and complete information to
4 Parliament in the period leading up to military action
5 in Iraq, particularly in respect of WMD.
6 As to whether what David Kelly said about the
7 dossier was right, on behalf of Mr Gilligan we adopt
8 what Mr Caldecott has said earlier today, and of course
9 further submissions will be made in writing it and about
10 the changes in wording we have seen on the drafts
11 disclosed to this Inquiry.
12 We must remember that while the Government's denials
13 of Andrew Gilligan's story amounted to a wholesale
14 refutation of what he had reported, now, the Government
15 focuses its attack on Andrew Gilligan's reporting by
16 subjecting a small part of one broadcast, the unscripted
17 6.07 item, to elaborate forensic analysis where lawyers
18 pick over a few words that were used once and were not
19 repeated. This process is artificial and it is unreal.
20 It diverts attention from the real issues of substance.
21 When David Kelly came forward to reveal he had
22 spoken to Andrew Gilligan you might have expected the
23 Government's concern to be to find out what David Kelly
24 had said not only to Andrew Gilligan but also to other
25 journalists with whom he had admitted contact. We know,

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1 because witnesses have told us, that they focused on
2 what he said to Andrew Gilligan on 22nd May.
3 We do not know what steps they took to find out
4 whether David Kelly was the source who had leaked the
5 top secret document. I should make clear that
6 David Kelly was not that source.
7 We now know, because we have seen
8 Alastair Campbell's diary extracts, that he and
9 Geoff Hoon agreed, when they learned that the source had
10 come forward, that this was an opportunity to get
11 Gilligan. Of course, "get" is not exactly the word
12 Mr Campbell used in his diary.
13 The response is like that of a playground bully.
14 They do not like what Andrew Gilligan has said and they
15 want to get him. But this is not a playground, they are
16 senior officials in the Government. Their priority
17 should not have been to get Gilligan, he was the
18 messenger. They should have acknowledged that as
19 a working journalist he was doing his job by reporting
20 on a legitimate public debate. They subjected him and
21 his journalism to an unprecedented attack.
22 What Andrew Gilligan reported has to be put into its
23 proper context: the big picture of the issues of
24 legitimate public concern which form the background to
25 his meeting with David Kelly. His reports on Today need

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1 to be listened to as they would have been on the day.
2 Radio reports are not subject to close textual analysis
3 by listeners. They are heard by people as they go about
4 their daily routine, in the car, over the breakfast
5 table, on the bedside radio. His reports have to be
6 considered in the context of the wider reporting as
7 a whole.
8 Andrew Gilligan was not writing a legal document.
9 He was not preparing a court transcript. He was
10 reporting what he had been told. He, and the other
11 experienced journalists on the Today team, viewed the
12 report as a valuable contribution to a continuing
13 political debate.
14 LORD HUTTON: I appreciate that point, Ms Rogers, but when
15 you refer to precise textual analysis, if this report
16 that someone probably knew that something was wrong, it
17 does not require a precise textual analysis for the
18 listener to understand what that means, does it?
19 MS ROGERS: It does. Those words do have to be considered
20 in the context of how they would have been heard by
21 a listener at the time.
22 LORD HUTTON: Yes.
23 MS ROGERS: What the burden of the report was concerned
24 with, and in the context of what the debate was which
25 had preceded it, was in essence whether the i