The most judicious of Law Lords

Toby Hall speaks to Lord Hutton, the Baron, Knight, QC, and former Lord Chief Justice of Northern Ireland about his contorversial judgement on the war in Iraq that left York Chancellor Greg Dyke out of a job

Lord Hutton pauses and looks at the floor. “No, no, I’ve never had any political aspirations I’m afraid. I’ve simply concentrated on being a good barrister, and then on being a good judge.” It may seem that the man who held the fate of Tony Blair and the Labour government in his hands is being overly modest about the role he has played in modern politics. He was involved in rejecting the ‘public interest’ defence for MI5 spy David Shayler, overturned the judgement to extradite General Pinochet to Argentina, and most recently absolved the government of blame after the death of weapons expert Dr David Kelly. The consequences of his report into the matter left York Chancellor Greg Dyke unemployed, yet when talking to him about these it soon becomes clear to me that Lord Hutton is honestly surprised and disappointed that so many people have felt let down by his judgements. “It’s simply the duty of the judge to apply the law fairly, to try cases fairly and I think not to concern oneself with the policy underlying those laws, which is a matter for Parliament.”

Throughout our talk he returns again and again to this faith in an objective and independent judiciary, however, despite his powerful rational arguments and examples of impartiality – always eloquently phrased and supported with case law – I felt that there were stronger reasons for this belief than the polished arguments he presented. As I tried to push him on formative experiences at university or the bar that could hint at some hidden ideological streak, the impression was always of a diligent student who did not identify with student politicians or parties. He does not remember the fifties at Balliol College, Oxford, as being a particularly radical time: “I think that a large number of people had little interest, and personally, I wasn’t active in politics at all, and was really just concentrating on reading law, enjoying myself and seeing friends.” This refusal to be labelled has continued into his career, in his home town of Belfast. He was called to the bar in 1954, and practiced law throughout The Troubles, rising to become a High Court judge and later, Lord Chief Justice of Northern Ireland. Faced with providing practical resolutions to the divided city’s problems with law and order, rather mere political rhetoric, Lord Hutton developed a respect for those who could apply the law evenly despite personal allegiances. “I think, hopefully, that the entire judiciary in Northern Ireland demonstrated [this] over many years, because there were judges in Northern Ireland from both sides of the community. Some were Protestants, some were Roman Catholic but it never influenced the way they decided their cases. There was a very good feeling of comradeship between all the judges.”

This ability to apply laws where the political and even ethical consequences are uncertain seem central to Lord Hutton’s philosophy, and he has some veiled responses to the media accusations of bias in the aftermath of his report into Dr Kelly’s death. “Commentators are too ready to attach labels to judges. The duty of a judge is to decide fairly on the facts in accordance with the laws … That doesn’t mean one favours the government, it doesn’t mean one’s a liberal or a conservative or a socialist. It simply means you’re deciding the case fairly on the law.”

I feel slightly nervous pressing the issue of his involvement in the case. Even wedged into a small pink seminar chair he is an imposing figure, and at the speaking event organised by the Union earlier there were rumours that he wouldn’t be willing to discuss his most controversial work. Only one student mentioned the Hutton Report, and he observed afterwards that people seemed “afraid” to raise the issue. However, Lord Hutton treats my next question with the careful consideration he showed the others, even if the pauses are a little longer. I’m trying to understand how he views his relationship with the consequences of the report, and run through Greg Dyke’s argument that his ruling could profoundly affect the relationship between confidential sources and the press. His reply is unsurprising, even if there are words of praise for the “distinguished” and “interesting” Mr Dyke: “I was not concerned with wider issues relating to journalism and I simply applied the law as laid down by the House of Lords in the case of Reynolds against the Sunday Times which was emphasising the importance of a free press in a democracy … I simply made no new law, I simply came to the decision against that legal background on the facts of the case.” By contrast, he pulls few punches when discussing the BBC’s failings and I get the feeling that he considered the corporation’s mistakes a kind of dereliction of duty. “The reputations of politicians are important. And it’s part of the maintenance of democracy that they should not have their reputations unfairly impugned without justification and that whilst investigative journalism is extremely important, it’s part of the life-blood of democracy, it must be done in a responsible way.”

But it is hard to draw him into personal opinions on the subject, and throughout the evening he has proven adept at guarding his own views on political, or even legal issues. During his address to the Union on human frailty in criminal law the emphasis was always on cataloguing and explaining the progression of judicial rulings which had developed the law into its current form. I noticed only one instance where he expressed his own perspective on the debate, and that was to suggest that there should be no knee-jerk change to certain aspects of the law due to political pressure after the Tony Martin case. And he didn’t explicitly name Martin, referring instead to a hypothetical householder with a shotgun. At another point, he discussed his most influential judgement – in the case of the Crown against Private Clegg in Northern Ireland – yet did not mention his own involvement. Even for a judge, his reticence seems undue, and I ask about his reputation for following, rather than setting precedents. “I think it’s part of the duty of a judge to follow precedent because our law is based on precedent. But equally, part of the duty of a judge is to interpret the law and apply it to new circumstances as justice requires, and that is what I sought to do” he pauses… “There have been cases, I think, where I’ve extended the law, I can think of one in Northern Ireland: If a person had been arrested to be questioned, and if it were established that in questioning him the police had ill-treated him, the ill-treatment made his detention invalid and he should be released. I think was an example of making new law but within precedent.”

This may not initially sound like the most radical proposal, yet Lord Hutton later recalled the specifics of just such a case. “I remember trying a person accused of terrorism who was charged with having reconnoitred the homes of judges for the purpose of assisting in attacks on them, but I acquitted them because I thought that there was a possibility that they had been ill-treated by the police.” It is this dedication to the law, above all else, which Lord Hutton represents. Even so, there does seem to be an in-built desire to protect the status quo, and as he steps back from full time work on the bench, Lord Hutton admits that “I think it’s perhaps inappropriate when one retires, to concern oneself with criticism. By and large I think the law works fairly in this country and I’m happy to have been a part of it.”

It seems to be modesty for him to talk of his involvement in the law in the past tense. Despite being 74, he still sits in court, and a member of the Union told me how difficult it had been to bring him to York – “His diary’s booked up well into 2008”. And it’s no surprise. He is energetic and enthusiastic, regarding even somewhat impertinent questions as interesting problems or challenges. When my interview draws to a close he hops up sprightly and holds out his hand, calling “cheerio” and smiling benignly. Yet I’m less sure I’d find him as genial in his official capacity, there is a fearsome dedication to justice here, and in what appears to be its most restrictive, legal form.

Maybe it’s because of this highly principled approach to the law that so many of us were disappointed by the Hutton Report. If it truly had been a whitewash, then there would have been real cause for outrage. But Lord Hutton is not a government stooge or enemy of the free press as some have tried to claim, he simply applied the law exactly as he understood it, without fear of the consequences – whether they were good or bad.

The cases which have defined Lord Hutton

1994. Dismissed Private Clegg’s appeal against a disputed murder conviction in Northern Ireland.

1999. Campaigned to stop Augusto Pinochet’s extradition to Spain after discovering a potential
conflict of interest with one of the judges in the case. “Justice must be seen to be done” he said.

2002. Was one of four Law Lords who rejected David Shayler’s ‘public interest’ defence when publishing MI5 secrets.

2004. Published the results of his public enquiry into the death of Dr David Kelly. His narrowinterpretation the terms of reference contributed to what many called a government whitewash.

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