Lawyers gave BBC ammunition to fight Hutton verdict, but governors ignored it

The BBC's lawyers advised its board of governors that Lord Hutton's report on the David Kelly affair was wrong in law, according to the BBC's detailed analysis.

The unpublished document admits that the BBC made mistakes over its allegation that Downing Street "sexed up" a dossier on Iraqi weapons, but also discloses the plan for a fightback that the corporation could have used in response to Lord Hutton's strong criticism. Instead, Lord Ryder of Wensum, its acting chairman, bowed to No 10's demands for a full apology.

The BBC report will fuel the debate over Lord Hutton's verdict and provide ammunition for critics who claim that there was a gulf between the evidence presented to his inquiry and the conclusions that he reached.

Here are the main points of the BBC's analysis, drawn up a team headed by Andrew Caldecott QC, who represented the BBC at the inquiry.

THE LAW

The BBC's lawyers cite the freedom of expression provisions of the European Convention on Human Rights and challenge Lord Hutton's statement that "false allegations of fact impugning the integrity of others, including politicians, should not be made by the media." They insist that, as a general and unqualified proposition, this is "wrong as a matter of law".

They point to previous legal rulings that "protect certain defamatory publications, even when they cannot be shown to be true". They say that newspapers have a complete defence "even where false allegations of fact have been reported, so long as the publication is the result of "responsible reporting" on a matter of legitimate public interest". Therefore, they conclude, the law did not require the BBC to verify the allegation that the Government "sexed up" its dossier on Iraqi weapons before broadcasting it.

Lord Hutton's distinction between reporting an allegation made by others and adopting it "is not correct", the BBC lawyers say. "Andrew Gilligan did repeatedly make clear that his story was derived from what his source [Dr Kelly] said. Moreover, BBC coverage throughout carried balancing government details," they say.

DID ALASTAIR CAMPBELL MISLEAD PARLIAMENT?

The BBC report criticises Lord Hutton for declining to consider the corporation's criticisms of Alastair Campbell's evidence to the Foreign Affairs Committee (FAC) last June, including his role in drafting the government dossier which claimed that Iraq could deploy weapons of mass destruction in 45 minutes.

The BBC lawyers say: "It included the false statement that the drafts on the 45-minute claim never changed and excluded all reference to Mr Campbell's suggested change to the 45-minute claim. The essence of the BBC's case was that there was no need to mislead, unless there was something to hide.

"Lord Hutton, having acquitted Mr Campbell of any improper interference in the dossier, states that it is 'unnecessary for me to express an opinion on this criticism'. It is, however, an integral part of the evidence of possible impropriety. It is not right to exclude relevant evidence unfavourable to Mr Campbell because, without considering it, it is possible to reach a conclusion favourable to Mr Campbell."

According to the BBC team, Mr Campbell excluded changes that he proposed to the dossier in a memorandum he submitted to the FAC. It says: "The only sensible conclusion was that he was deliberately selective in what he disclosed to the FAC despite having the original drafts in front of him.

"Campbell falsely presented these exchanges in his memorandum as oral discussions to avoid having to disclose the written minutes. Campbell falsely told [Parliament's] Intelligence and Security Committee that the contents of the dossier were nothing to do with him 'beyond the drafting points' given to the FAC.'"

THE SEPTEMBER 2002 DOSSIER

The BBC report challenges Lord Hutton's statement that the Joint Intelligence Committee (JIC) may have "subconsciously" felt pressure from Mr Blair to harden up the dossier - a proposition that he then went on to reject.

"The fact that Lord Hutton does entertain it suggests a recognition that the language of the dossier did go or may well have gone too far, yet Lord Hutton acquits all concerned of any political interference in the dossier without analysing the differences between the language of the JIC assessments and the language of the dossier," the BBC lawyers conclude.

The report criticises Lord Hutton for excluding from his remit the issue of whether the dossier was referring to battlefield or longer-range strategic weapons. "In consequence Lord Hutton makes no criticism of the Government for the misleading effect of the dossier on this point or its manifest failure to correct the widespread misreporting of the dossier as referring to strategic weapons.

"Moreover, the BBC believes this issue is fundamental to any full examination of both Dr Kelly's concerns and the public interest issues."

Dr Kelly could not readily identify any weapons to which the 45-minute claim referred and told the Intelligence and Security Committee that there was a problem with how the dossier was subsequently interpreted.

"These points were fully addressed in the BBC's written and oral submissions. They would appear to be fundamental to a full consideration of whether the dossier went beyond what the intelligence merited," the report says.

According to the BBC legal team, Lord Hutton "accepts uncritically" evidence from John Scarlett, the JIC chairman, that he supported a last-minute change proposed by Jonathan Powell, Tony Blair's chief of staff, "which transformed the portrayal of the nature of Saddam Hussein's threat in the dossier from defensive to offensive".

THE MISSING ISSUES

The BBC lawyers list a total of 12 key issues that they say were "not considered" by Lord Hutton when he drew up his conclusions.

They say that Dr Brian Jones, the former leading expert on WMD at the Ministry of Defence, and his department "were not the sole voices of disquiet among the intelligence community". Another weapons expert, Mr A, told the inquiry that "the dossier had been around the houses several times in order to find a form of words which would strengthen certain political objectives".

The lawyers say that Lord Hutton ignored the fact that the Ministry of Defence withheld from the Intelligence and Security Committee the existence of formal complaints within the Defence Intelligence Service. Geoff Hoon, the Defence Secretary, "failed to correct this impression".

They say that Lord Hutton did not pay sufficient heed to evidence that the Government wanted to "out" Dr Kelly, citing clues given at a briefing for Westminster journalists by the Prime Minister's official spokesman and Mr Campbell's diary entry saying "the biggest thing we needed was the source out".

The BBC team says that Lord Hutton "does not consider or refer to the fundamental change made by Mr Scarlett to the title of the dossier from 'Iraq's Programme For Weapons of Mass Destruction' to 'Iraq's Weapons of Mass Destruction' after the original title had been approved by all JIC members."

It argues that Lord Hutton ignored evidence that four press officers attended formal meetings at which the dossier was drafted. "Hutton states the drafting was carried out by members of the assessment staff and makes no reference to the four press officers."

Finally, Lord Hutton's report did not mention "the extraordinary failure of government to minute meetings concerning the unprecedented presentation of intelligence to the public". He appeared to criticise this in an earlier letter to the Tory MP Peter Lilley.

Campbell becomes fellow at Harvard

By Ben Russell

Alastair Campbell, the Prime Minister's former director of communications, is to become a visiting fellow at Harvard.

Mr Campbell, a Cambridge graduate, will take up the post at the university's Institute of Politics, part of the John F Kennedy School of Government. He will be among 11 fellowsleading discussion groups and will meet students and researchers for three days in April.

Other visiting fellows include the former chief of staff to Jeb Bush, the Governor of Florida. Each visiting fellow is expected to give a lecture while at the university.

Baroness Thatcher and John Major have both enjoyed successful careers on the US lecture circuit. Al Gore, the former US vice-president, also made a move into university life, working as a guest lecturer at the school of journalism at Columbia University in New York.