Key points: Government's QC

Here are key points from the closing statements of Jonathan Sumption QC, Counsel for the government, on day 23 of the Hutton inquiry.

Referring to the death of Dr David Kelly, Mr Sumption said: "The pressure which leads a man to take his own life is never easy for others to understand after the event."

Jonathan Sumption QC

He said it was accepted that the public controversy which followed from the allegations that BBC reporter Andrew Gilligan put into the public domain had contributed to the scientist's apparent suicide.

Mr Sumption then continued his submission by considering the government's September 2002 dossier into Iraq's weapons of mass destruction.

The dossier was published in order to serve an important public interest.

He said the British government had received intelligence assessments from the Joint Intelligence Committee (JIC) before September 2002 about the Iraqi capacity to develop and use weapons of mass destruction.

Mr Sumption said it has always been recognised there was a natural tension between the use of secret intelligence to inform ministers' decisions and the need of governments to explain their decisions publicly.

The effect of all this media attention upon an extremely private and retiring man should not be underestimated Jeremy Gompertz QC Counsel for the Kelly family Closing submissions from Kelly family QC

The material in the dossier and the way it was expressed reflected the judgment of John Scarlett, chairman of the JIC, and endorsed by that committee.

"Even now, this is not accepted by the BBC, but I see no reason why it should not be accepted by your lordship," said Mr Sumption.

The process in compiling the government's dossier was as rigorous, in the case of the 45 minutes claim, as for every other item in the dossier.

The 45 minute point was based on Secret Intelligence Service (SIS) intelligence. It was extremely recent, like most of SIS reporting, it was single source. But the source was reliable and came from an informant in a position to know the facts, said Mr Sumption.

The statement in the dossier was a "realistic judgment", he said.

Mr Sumption said the idea that Alastair Campbell, the government's outgoing director of communications, and Jonathan Powell, Downing Street's chief of staff, had no business to be commenting on the drafts of the dossier is not a view of the position that any British government could take.

Mr Sumption said the prime minister was the person primarily responsible for the intelligence services and "it was out of the question that the prime minister should have no say in a document for which he had to be personally responsible to Parliament".

The fact that Iraq was an issue on which the public and the world at large were deeply divided made honesty in the presentation of intelligence even more fundamental Jonathan Sumption

Mr Campbell and Mr Powell only became involved because they were instructed by the prime minister.

Lord Hutton asked if suggestions on presentation had the effect of strengthening the dossier, to which Mr Sumption said that depended entirely on whether Mr Scarlett thought it was appropriate to adopt proposed drafting changes.

Mr Sumption said it was entirely proper to adopt presentational suggestions if the intelligence supported it, so it was right for the prime minister's staff to find out what intelligence was available on particular points.

Some of the points raised "were little more than proof reading" such as Mr Campbell 's comments in his memo of the 17 September about the 45 minutes point.

The change to the dossier prompted by the memo from Mr Powell, was only included because the intelligence justified it.

Mr Sumption said the allegation made by Mr Gilligan that changes had been made on Downing Street's orders "could hardly be further from the truth".

Lord Hutton asked whether the presentational changes could be described as sexing up, to which Mr Sumption said they could not. They were based on an entirely proper process.

Mr Sumption said Dr Brian Jones, who managed the scientists in the Defence Intelligence Staff, had no objection to the inclusion of the 45 minutes point.

In retrospect, it is a great pity that the BBC governors were put in a position on July 6 where they had no proper means of making their own assessment of the line to which their staff were committed Jonathan Sumption

His view was that it was expressed too strongly for something which was single source. His concerns were taken into account. Dr Jones did not have access to all the relevant material.

Mr Sumption said "the government is not, and never has been, engaged in a crusade against the BBC".

The BBC must expect that if it broadcasts serious and anonymous allegations, these will be taken extremely seriously, not just by those against whom they are directed, but by everybody else, said Mr Sumption.

The barrister said Dr Kelly had not actually said the government put the 45 minute point into the dossier knowing it was wrong, and Mr Gilligan had accepted that.

Dr Kelly had also not said that Downing Street ordered the dossier to be sexed up. In fact he did not use the word sexed up at all, said Mr Sumption.

It was most improbable Dr Kelly described himself as one of the senior officials in charge of drawing up the dossier.

Mr Gilligan's claim that Dr Kelly had agreed that he should be described as a senior official "has all the hallmarks of a self serving invention designed partly to explain why the critical point does not appear in Mr Gilligan's notes", said Mr Sumption.

The government had no obligation to keep Dr Kelly's name secret, and Dr Kelly had no right to expect them to do so Jonathan Sumption

It was even more remarkable that the impression that the source was a member of the intelligence services was allowed to persist, even among the BBC governors since Richard Sambrook [BBC's head of news] was a senior executive at the corporation.

Mr Sumption said the main problem in the dispute that followed between the government and the BBC was that the corporation never acknowledged how serious the allegations it broadcast really were.

The BBC "seemed to have regarded this as a routine piece of political mudslinging, chatter in the air", said Mr Sumption.

The dispute about the broadcast was "never a personal campaign by Alastair Campbell", he said.

The government would have been just as concerned about the matter "if Mr Campbell had been on sabbatical at the other end of the world", said Mr Sumption.

The prime minister, his Downing Street staff and the JIC all knew the allegations broadcast by Mr Gilligan "were in fact a travesty".

Mr Sumption said the real problem was the anonymity of Mr Gilligan's source made it impossible for the government to challenge the story unless the BBC was prepared to re-examine it. Only the corporation knew the status of the source.

"The fact that Iraq was an issue on which the public and the world at large were deeply divided made honesty in the presentation of intelligence even more fundamental."

Mr Sumption highlighted the evidence of Sir David Manning, a highly experienced diplomat who was not directly involved in the escalating row with the BBC. He said Sir David's perception of the allegations made in the BBC report was of "a pretty direct attack on the integrity of the prime minister and the officials at Number 10".

Mr Sumption said the claims were repeated around the world which "raised the volume in amplification" every time. While he did not blame this entirely on the BBC or Mr Gilligan, Mr Sumption said they were responsible for a "substantial part".

Mr Sumption said he would accept that Mr Campbell should have restrained his anger during a Channel 4 News interview on 27 June, but the communications director had been provoked by the BBC's particularly tendentious response to his letter of 26 June.

"In retrospect, it is a great pity that the BBC governors were put in a position on July 6 where they had no proper means of making their own assessment of the line to which their staff were committed," said Mr Sumption.

"They were brought under heavy pressure by the chairman to back the executives' line."

Mr Sumption said it could not be right that Mr Gilligan's position was defended by the BBC executive without "any underlying investigation" about the allegations. He added that an "honourable draw" could have been reached.

Mr Sumption said Dr Kelly wrote to his line manager on 30 June to report his contacts with Mr Gilligan.

The government found itself in a "rather difficult situation" when Dr Kelly came forward because at first it was not possible to be sure that he was the source of the BBC report. Dr Kelly had only admitted saying some of the things attributed to the source by Mr Gilligan, said Mr Sumption.

There could be no question of the government disclosing that someone had come forward or disclosing Dr Kelly's name until it was reasonably satisfied he was right man. That stage was reached on 8 July after his second interview with MoD officials.

Whether the government liked it or not, it was quite certain there would be two major parliamentary inquiries into the suggestion that the dossier had been "sexed up" and by whom.

Dr Kelly was renowned as an expert and the likelihood of his name being disclosed increased after Mr Gilligan's evidence to the FAC. The scientist was all but named in the Times newspaper on 5 July, said Mr Sumption.

Dr Kelly accepted the press release was going to lead "in short order" to the disclosure of his name, he said.

Mr Sumption said while he had no desire to criticise Dr Kelly's family, its criticism that there was some kind of plot or strategy to allow the scientist's name to come out indirectly or by stealth was "completely unjustified".

There was no principle that civil servants were entitled to anonymity, said Mr Sumption.

"The government had no obligation to keep Dr Kelly's name secret, and Dr Kelly had no right to expect them to do so."

The FAC had to be told that someone had come forward as soon as possible otherwise the government would have been accused of a cover up.

It was not a realistic option for Dr Kelly to have been interviewed by the ISC alone because he had important new evidence on an issue of public concern, and the committee just sits in private.

Defence Secretary Geoff Hoon "grasped the nettle" by deciding that both the FAC and the ISC should have the chance to hear evidence from Dr Kelly. Mr Hoon tried to limit the questioning of Dr Kelly, said Mr Sumption.

Alastair Campbell undoubtedly believed it would be in the government's interest to disclose Dr Kelly's name as soon as possible, but he was told by the prime minister to take a back seat on the issue.

It was not fair to suggest that the select committees had been used as a means of outing Dr Kelly. The committees were not open to manipulation by the executive, said Mr Sumption.

Dr Kelly's evidence was clearly "a mixed bag" since his views about the dossier were not in line with the government's.

It was not possible to know why Dr Kelly told some people in the last days of his life that he had received assurances that his name would remain confidential. It may be that under the pressures he faced, "he persuaded himself that that was so", said Mr Sumption.

Dr Kelly was told by Richard Hatfield, the MoD's director of personnel, on 4 and 7 July that there might be a public announcement, which he accepted.

Mr Sumption said it was clear the point went home, because the evidence of Janice Kelly, Dr Kelly's wife, was that the scientist told her he was bound to be identified as they watched the announcement of the MoD press release on the TV news. There should be no room for controversy on these facts, he said.

Everyone, including Dr Kelly, knew the press release would be the trigger for his identification - "the only question was how long it would take", said Mr Sumption.

It had not been Mr Hoon's intention to prevent embarrassment to the government when he wrote to the FAC asking for questions to Dr Kelly to be limited. His concern had been for the scientist's welfare .

Mr Sumption said realistically, there were only two ways the government could have handled this matter. It could have identified Dr Kelly in the MoD press release, or taken the course it did, which was to announce someone had come forward, thereby giving Dr Kelly at least a day or two before his name followed.

In hindsight, it is difficult to say which was the better course.

Mr Sumption agreed with Lord Hutton that it could have been possible to give Dr Kelly 24 hours notice that his name would appear in a press statement. The government could not assume 24 hours would be enough warning.

Dr Kelly had been taken aback by the rudeness of at least one member of the FAC when he was asked about something he had said to Newsnight reporter Susan Watts, said Mr Sumption.

The scientist's concerns about his pension were without foundation, he said. It was exceptionally unfair to lay the blame at the door of Dr Kelly's colleagues and superiors at the MoD.

Despite listening to well-respected psychiatric evidence, it was difficult to get into the mindset of someone who was about to take his own life.

"None of those who knew him could have foreseen that he might kill himself. The decision was made very shortly before he acted upon it... It is one thing to say that in hindsight one might have changed (certain things)... it is quite a different thing to suggest that there was some underhand strategy in which eight individuals in different Government offices participated to expose Dr Kelly by a naming strategy."

If the Government wanted Dr Kelly's name to be in the public domain, they did not need to be devious to get it there, he said as all of them believed it would inevitably come out anyway - they only had to wait on events.

If they wanted the name published immediately, they would have been absolutely entitled to announce it in a press release and the suggestion therefore that there was a plot to do something they wanted in a time-consuming way lacks plausibility.

The press release had to say enough about the official's functions to explain why he was not in a position to know all of the things that Mr Gilligan had alleged and so make the point that the 29 May broadcast was likely to be wrong.

"The Government is as much entitled to defend itself against falsehoods as anyone else. If that means disclosing the truth, it can do it and it ought to do it."

Mr Sumption described the press office as being at the "sharp end" and it was unrealistic to suggest the Q&A was part of some plan to expose Dr Kelly in some underhand way.

Mr Sumption said the BBC press release in response to the MoD's press statement was "a remarkable document" because Mr Gilligan was the only person involved in drafting it who knew the facts.

He accused the reporter of "pure mischief making" because he knew his source worked for the MoD but told the BBC to announce that he did not work in the MoD.

This led to the Number 10 spokesman being put in a situation in which he "was forced to explain to a roomful of insistent journalists how the source and the MoD's unnamed official could possibly be the same person when the official worked in the MoD but the source apparently did not."

Lord Hutton asked about Times journalist Tom Baldwin's claim he was briefed by Whitehall sources before his article on 5 July. Mr Sumption replied: "I cannot rule out the possibility that somebody without any authority somewhere in Whitehall who had got wind of this was indiscreet."

Regarding the MoD's alleged lack of support for Dr Kelly, Mr Sumption said: "It is fair to say at the outset that Dr Kelly was an extremely self contained person. He kept his feelings to himself. That very fact meant he was not an easy person to help."

Mr Sumption insisted Dr Kelly had been interviewed "with scrupulous fairness". The scientist was told he would not have disciplinary proceedings launched against him.

Officials such as Mr Hatfield, Mrs Wilson and Dr Wells will have been "saddened" by allegations of incompetence and bad faith over their support for Dr Kelly.

Asked about the brief phone call in which Dr Kelly was taken through the press statement, Mr Sumption explained that Dr Kelly had known in advance about the press statement and was expecting a call telling him the additions to that document.

Vital information "can be conveyed in a short time if one removes the chat and irrelevant information from a conversation".

"We are in danger of learning the wrong lessons from ... wholly unexpected and unpredictable events," he said.

Mr Sumption said Dr Kelly's death was undoubtedly a tragedy for his family and a great loss for the service for which he worked.