Collateral damage: The Law Lord whose reputation threatens to become

IN THE late 1980s, when Brian Hutton was Lord Chief Justice of Northern Ireland, a barrister friend invited him and his wife out for an evening at the theatre. The judge accepted with his usual gracious charm - with the caveat that he could not accept tickets paid for by someone else, even a close friend. Lord Hutton would never leave himself open to the charge of being influenced by others.

That small episode illustrates much about the man whose report on the events surrounding the death of Dr David Kelly exonerated the Prime Minister and Whitehall mandarins of any wrongdoing and heaped blame on the BBC. The verdict astonished many people in Britain, and has led to questions about the system of investigating allegations of government wrongdoing.

But the fraternity of the Bar Library in Belfast were less surprised. Barristers there describe Hutton as both "unionist with a small ‘u’ and conservative with a small ‘c’", and very much a figure of the establishment.

After completing his studies at Balliol and then Queen’s University in Belfast, Hutton was called to the Northern Ireland bar, which in the early 1960s was described by one observer as being "a subculture of unionism" made up of earnest men who "only ever met ordinary people from the elevated position of being able to help them".

Hutton has a profound sense of public service, and was appointed junior counsel to the Attorney General in 1969, just as the Troubles started. As a Crown counsel, he worked on some controversial cases, notably as counsel for the Ministry of Defence at the Widgery Tribunal into Bloody Sunday in 1972.

Another leading barrister describes Hutton as being "‘too honest". His reading of the law was never based on innovation, but existing precedent and the sanctity of the facts. He was not the type of professional who would have occasional doubts about his career or the ethics of his work. "He may have been prone to having dark nights of the soul, as we all do," said one contemporary, "but probably fewer than most."

Reading his judgments (and last week’s lengthy report) is testimony to his meticulous research, and large parts of his written judgments comprise lengthy quotations from previous judgments. This has led to some younger members of the Bar Council giving him the nickname "Cut and Paste".

But those who know him say Hutton is no government stooge. They talk of his "almost religious belief in the law" and his heightened sense of fairness - he has delivered verdicts that have upset the system, such as finding against the Royal Ulster Constabulary in cases where suspects claimed to have been beaten in custody. His abhorrence of what he has termed "political considerations" was expressed in a case brought by the anti-Agreement unionist Peter Robinson, who argued that the NI Executive was illegitimate as it missed a six-week deadline to be re-appointed after one of its periodical collapses.

The case was lost 3-2, with Hutton’s sense of justice siding with Robinson, not out of political sympathies, but due to the fact that legally Robinson was correct. The consequences of the Law Lords’ judgment could have meant a collapse of the entire Belfast Agreement, but they did not seem to affect Hutton’s priority, namely the primacy of the written law.

Hutton was appointed to the bench in 1979, when the IRA’s ‘Long War’ strategy was at full tilt and the prisons were in turmoil with hundreds of IRA prisoners ‘on the blanket’ demanding political status. One of their justifications for such status was the non-jury ‘Diplock court’ system that Hutton played a key part in. Judges, therefore, were ‘legitimate targets’ as far as the Provos were concerned.

Hutton sent his wife and two daughters to Edinburgh for their own safety, where the girls were educated at St George’s school, only seeing their father at weekends. This personal sacrifice is cited by colleagues as another example of his devotion to the law, and the seriousness with which he accepted his role.

Hutton comes from a place and time that is light years from the metropolitan political culture of New Labour and the high-energy world of 24-hour news. He was born in 1931 into a white-collar Protestant middle-class family in north Belfast. Partition was firmly established, Ulster was secure in the United Kingdom and Belfast was a prosperous industrial city. The Huttons were believers in hard work and saw themselves as being just as much a part of the UK as their equivalents in the Home Counties.

Why did Hutton find the government devoid of fault on this occasion? Most former colleagues believe he strictly applied his conclusions to the "narrow terms of reference" drawn up by the Prime Minister. One spoke darkly that Hutton was appointed to the inquiry by Lord Falconer, an old friend and flatmate of Tony Blair.

Others remember Hutton’s "cut and paste" dependence upon precedent. The inquiry just concluded has no precedent, they say. "This is the first time a judge has looked at Whitehall in such detail and it was all done in public and in a hurry, for largely political reasons," says one senior lawyer.

The general consensus about Lord Hutton is that he would have been appalled by the sloppy reporting of Andrew Gilligan, and mystified by the stonewalling of the BBC despite the clear defects in the 6.07am broadcast. Hutton may also have believed Gilligan was on to something about the reservations of intelligence staff about the Iraq dossier, or may have been troubled by the blurring of responsibilities between the Joint Intelligence Committee and political appointees in Downing Street, or the implications of publishing for public consumption selected intelligence from MI6. "Blair changed the constitution when he published that dossier", insists a constitutional observer. However, those areas were not within his remit.

One Belfast barrister opined that Hutton was "subconsciously influenced" by the "long-standing mistrust among unionists of the media and the BBC in particular". That antipathy was given full vent this week by the UUP leader David Trimble, who called on Professor Fabian Monds, Northern Ireland governor of the BBC, to resign. Monds backed ex-BBC chairman Gavyn Davis’s support for Gilligan, therefore, according to Trimble, "he was complicit in the culture of arrogance that denies the reality of situations and that has permeated the BBC nationally and locally for years".

Whatever his reasons, Hutton’s findings have led to consternation. Edward Garnier, a QC and Conservative MP for Harborough, said: "Somebody has got to choose the who and how of an inquiry. Judges are often chosen because they are trained to be impartial and look at things analytically. If you want someone to look at the wider politics of an issue you need to get a member of the Privy Council who is a former cabinet minister and will have acute political senses, which, with respect to Lord Hutton, I don’t think he had."

Other forms of investigation at the disposal of government include judicial inquiries - such as the ongoing Saville Inquiry into Bloody Sunday - where a judge is appointed and given the full power of a court to command witnesses to appear, and public inquiries such as the Dunblane report by Lord Cullen and the probe into Harold Shipman’s killings by Dame Janet Smith.

Many other countries avoid using judges to investigate politically charged matters. In America, major investigations have been conducted by a senior legal figure removed from the US courts.

Kenneth Starr, who had worked for George Bush Senior, was called upon to probe several charges made about President Clinton, his private life and business dealings, but himself faced criticism because of his links to the Republican Party.

Bob Marshall-Andrews, Labour MP for Medway and a barrister, said: "One reason that the Saville Inquiry is taking so long is that it is dealing with history. Hutton was never going to be a full judicial inquiry. Many of the same procedures were followed but it was set up more quickly and he conducted it much more along the lines of an inquest, which I suppose must have been appropriate because it was about a death.

"He did pick his own brief, which has made this a very unsatisfactory report because he obviously didn’t go into the whole question of the integrity of the intelligence reports. I think until we get to that question, Hutton will be regarded as a very unsatisfactory report."

Professor Robert Hazell, director of the prestigious constitution unit at the University College London, said it was almost impossible for government not to be the instigating body for an inquiry, even if the issue being probed concerned its own actions.

"There is no other way for it to happen these days. It used to be the case that parliament would initiate investigations into certain areas, but that ended in the 19th century. As these things are often conducted by judges, they are seen as being some of the most impartial people you can get. When a government sets these things up and appoints a judge to lead them, they often don’t know what conclusions the judge will come to. There could be a better way of doing it but it would be difficult to say that the government can fully control the process."

But the public response to Hutton’s report has been a wave of sympathy for the BBC. Perhaps Hutton played a major part in this with his decision to place evidence and transcripts on the inquiry website, a hugely popular move that briefly nudged porn out of the top 10 websites in the UK.

The public have read the evidence and have reached their own conclusions, albeit without the life-long experience of law and fact that Lord Hutton brought the inquiry. In an era of 24/7 news and opinion, the deference of the world that shaped Hutton has eroded. As a result, the reputation of Brian Hutton threatens to become the latest collateral casualty of the war in Iraq.