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High drama at the Hutton inquiry

Final submissions by counsel were made at the Hutton Inquiry in London on Friday, bringing to an end nearly two months of evidence-taking in what I am sure will be seen by history as one of the most extraordinary legal proceedings ever undertaken in Great Britain.

Lord Hutton was the Lord Chief Justice of Northern Ireland from 1988 to 1997, and has been a Lord of Appeal in Ordinary (Law Lord) since 1997. He was asked by the British Government to conduct the enquiry and, when he has written it, will present his report to Lord Falconer, the Secretary of State for Constitutional Affairs.

Lord Hutton's terms of reference, given to him by Lord Falconer in a letter dated July 22, are remarkably simple and straightforward: “urgently, to conduct an investigation into the circumstances surrounding the death of Dr. Kelly.”

Briefly, those circumstances are that Dr. David Kelly, a British Government scientist, an expert in Iraqi chemical and biological weapons of mass destruction, had a conversation with a BBC reporter, Andrew Gilligan, late in May. As a result of that conversation, Gilligan broadcast a report that suggested some of what was contained in a published Government dossier of intelligence about Iraq had been deliberately exaggerated by the Government in order to make its case for war stronger.

Later, Mr. Gilligan wrote an article in the Mail on Sunday that specifically accused Alastair Campbell, the Prime Minister's Director of Communications and Strategy, of having been responsible for this “sexing up” procedure. Mr. Gilligan did not name Dr. Kelly in any of his publications, but said he was a “senior intelligence source” who had played a part in writing the Government dossier and who was therefore in a position to know what had happened and who had played a part.

A furious row ensued. The Government said the story was false, and demanded the BBC retract its story. The BBC said it had accurately reported the concerns of a source in a position to know the facts, and refused.

It was one of those rows that just wouldn't go away. Soon, the Foreign Affairs Select Committee and the Intelligence and Security Committee decided to hold hearings into aspects of the affair. Just after the Foreign Affairs Select Committee completed its hearings and published a report, Dr. Kelly approached his boss in the civil service and told him that he might have been Andrew Gilligan's source.

This conversation, reported to the Government, had the same effect that throwing a bucket of gasoline on a bonfire might. Within a few short days, Dr. Kelly's name was published, and he was summoned to appear in front of the Foreign Affairs Select Committee, which reopened for business in his honour.

His interview was broadcast around the world.

Now, with the benefit of hindsight, we know that Dr. Kelly might not have told his Foreign Affairs inquisitors the full truth. We now know that in meeting Gilligan without authorisation from his superiors, he was committing quite a serious civil service offence. We now know that he feared he might lose his pension because of it. We now know that Dr. Kelly was a sensitive, introspective man.

A few days after the interview, alone in a wood he used sometimes to walk to from his home, he committed suicide - just as, we now know, his mother had done years before.

This is a tale that, for the public who have been its audience since early in the summer, has all the elements of Macbeth - the fascination and the horror of watching the inevitable and tragic consequences of the commission of a terrible act play themselves out until the gods have had their fill of retribution.

They haven't yet. The final act of this tragedy won't write itself until Lord Hutton's report is published later on this year. And when it is, you can be sure that whoever it is who is playing MacDuff in this modern version of the play, will have his arms full of heads to carry dramatically onto the stage, just before the curtain comes down.

Meantime, no one who has any interest in life, history, drama, legal matters, the conduct of Government affairs or a whole host of other subjects can afford to miss dipping into the extraordinary Hutton Inquiry website, at http://www.the-hutton-inquiry.org.uk. Complete transcripts of witness testimony, together with very complete documentary evidence, are there for the public to read.

The website surely breaks new ground in at least two ways. First, it offers unprecedented access to normally entirely out-of-sight processes in the Government and in the BBC which came to bear in the development of the controversy. Second, the speed and the efficiency with which this evidence has been posted on the website has been extraordinary. Transcripts of testimony have been put up on the site twice a day.

That, for example, of last Friday afternoon's closing statements was on the site, complete, when I looked an hour after the end of the session.

This is not the only way in which the Hutton enquiry has been remarkable. Many may have noticed, in the term of reference which Lord Falconer sent to Lord Hutton - “urgently, to conduct an investigation into the circumstances surrounding the death of Dr. Kelly” - that the comma was unnecessary. Whoever wrote that sentence was a skilled writer, using the comma's slightly jarring appearance to draw attention to the word that appears before it, “urgently”.

A sense of urgency is so rare in bureaucracies. Inquiries that involve a lot of witnesses do, indeed, sop up an extraordinary amount of time, and their coordination does, indeed, require more than a little ingenuity.

Lord Saville, for example, was asked to inquire into the events of Bloody Sunday in 1998. His report is not expected to be presented much before 2005, seven years later.

Other examples of, shall we say, the conspicuous consumption of time that is epidemic in systems of justice, are easy to find in every country, including our own.

Lord Hutton, though, marches to an entirely different drummer. The speed with which he and his staff have been able to move has been a revelation. He has set rigid timetables, and kept to every one of them.

He has been given no power to compel the attendance of witnesses, or the production of documentary evidence. Yet to my knowledge, every single person or scrap of paper that might have been of assistance to him in his job has been placed at his disposal.

At least part of the reason for that is that this is a controversy that involves the core principles of the scrutiny of public officials and their actions, but part of it must also have been Lord Hutton's take-no-prisoners approach to the whole business.

He said this, the very moment he was appointed - before, even, he knew what his terms of reference were to be:

“I make it clear that it will be for me to decide as I think right within my terms of reference the matters which will be the subject of my investigation.

“I intend to sit in public in the near future to state how I intend to conduct the Inquiry and to consider the extent to which interested parties and bodies should be represented by counsel or solicitors.”

In all of history, was ever a warning shot better conceived and fired? Nelson would have chuckled.

He held his inquiry in a real courtroom, not, is the case with many inquiries, in a church hall or something of that sort. The result was that witnesses treated his inquiry as if it really were a court procedure.

Lord Hutton asked for written testimony from all witnesses, then ensured that counsel to the inquiry, Mr. James Dingemans, did not waste time asking witnesses necessarily to repeat what they had written.

Lord Hutton first heard all the witnesses without counsel for the principals in the case, the Government, the BBC, the Kelly family and Andrew Gilligan, being able to cross-examine. Then, he asked only those witnesses who had given key testimony back to go through the cross examination process.

Lord Hutton and Mr. Dingemans are certainly the sort of diamond-sharp professionals it is a pleasure to watch in action.

It was no less a pleasure to follow the cross-examinations and summations of four of Britain's best QCs last week - Jeremy Gompertz for the Kelly family, Andrew Caldecott for the BBC, Heather Rogers for Andrew Gilligan and Jonathan Sumption for the Government.

Mr. Sumption's summation, in particular, was as skilled a piece of analysis and use of English as you'll find in print.

The proof of the inquiry pudding, though, is in its report. Will this one deliver?

Shakespeare would have been rapt.

gshorto@ibl.bm