The Iraq Inquiry and ‘Warning Letters’

After last month’s media firestorm over phone hacking, quite a few people in Fleet Street and in Downing Street must have been pleased to see the headline of 31 July’s Mail On Sunday (MoS) focussing on something quite different: ‘The damning of Tony Blair: Former PM to be held to account on Iraq in Chilcot report on war’. David Cameron had attempted some hosing down of ‘Hackgate’ on 20 July in the Commons when he made a ‘Statement on Public Confidence in the Media and Police’ and took questions at length. During one of his replies he said:

[Interruption.] From a sedentary position, the shadow Chancellor says, “We didn’t hire Andy Coulson.” Look, you hired Damian McBride. You had Alastair Campbell. You had Alastair Campbell falsifying documents in government. You have still got Tom Baldwin working in your office. [Interruption.] Yes. Gotcha!

Whether the remark about Campbell was an unguarded response to Ed Balls, who the PM seems to find very irritating, or whether it was a ‘gobbet’ intended for release in response to any criticism of the PM's having employed Coulson, we may never know. However, as explained on his blog, Campbell immediately emailed the Cabinet Secretary, Sir Gus O’Donnell (GOD):

Dear Gus,
The Prime Minister said in the Commons today that whilst working in Downing Street I falsified government documents. He said this without qualification, and without providing any evidence to substantiate the claim.
As you know, I have appeared before the Foreign Affairs Select Committee, the Intelligence and Security Committee, and the Hutton Inquiry. All three thoroughly probed allegations made against me with regard to inserting false intelligence into government documents in the run-up to war in Iraq, and all three concluded that the allegations were unfounded. Similarly, no evidence has been presented to the Chilcot Inquiry, to which I testified for several hours, that I falsified government documents.
I am writing to ask on what basis the Prime Minister made the claim that he did, under parliamentary privilege, and what evidence he has to justify it.
If he concludes that no such evidence exists, I would hope that he could withdraw the allegation via a letter from you.
Yours, Alastair Campbell

It took over a week, and presumably a fair bit of aller retourner between No 10 and the Cabinet Office, and perhaps others, to produce GOD’s letter in reply on 28 July:

Dear Alastair,
Thank you for your email and apologies for the delayed response.
The Prime Minister is aware that the allegations made against you in relation to the WMD dossier presented to Parliament by his predecessor in September 2002 have been investigated by several inquiries. Let me assure you that, contrary to some of the media reporting of his comments about you in the Commons, that was not what the Prime Minister had in mind.
In what was a very lively Commons debate, the PM was referring to the briefing paper you commissioned on Iraq’s infrastructure of concealment and deception which, because of the failure to attribute material taken from the work of an academic, became known as ‘the dodgy dossier’.
Whilst I know you were unaware of the mistake by a member of your team which led to this controversy, you did take responsibility for it at the time, when you appeared before the Foreign Affairs Committee.
You are well aware of how heated things can get in the Commons and I can assure you the Prime Minister’s statement about you was no more than political knockabout which got a bit carried away.
I hope you will accept my assurances. I understand that No10 have and are continuing to make it clear that the PM was casting no aspersions whatever in relation to this, and it is right that they do so.
Yours,
Gus

Campbell concluded:

Cabinet Secretary Sir Gus O’Donnell today replied to my complaint of a week ago about the allegations made by the Prime Minister in the House of Commons that I falsified government documents. I am very grateful to him for the reply, and to the Prime Minister for the explanation offered; that this was ‘political knockabout which got a bit carried away,’; that contrary to some of the media reporting of his statement last week, he was not referring to the WMD dossier presented to Parliament by Tony Blair in 2002, and that he was ‘casting no aspersions.’ So far as I am concerned, that is a satisfactory conclusion to the matter.

Three days later (or probably the next day, Friday, when the Sundays usually decide on their main stories), the MoS claimed:

The Mail on Sunday has been told that the former Prime Minister will be held to account on four main failings:
* Bogus claims that were made about Saddam Hussein’s weapons of mass destruction.
* Not telling the British public about his secret pledge with George Bush to go to war.
* Keeping the Cabinet in the dark by his ‘sofa government’ style.
* Failing to plan to avoid the post-war chaos in Iraq.
Well-placed sources say the reputations of Mr Blair and key allies will suffer major damage when the report by Sir John Chilcot’s Iraq War inquiry is published this autumn. Mr Blair, former Foreign Secretary Jack Straw and ex-Downing Street spin doctor Alastair Campbell are all expected to be criticised.
…
The Mail on Sunday understands that the inquiry rounds on Mr Blair for telling Parliament that intelligence suggesting Saddam had WMDs was ‘beyond doubt’.

Most of the MoS’s report was a selection from material published by the Inquiry which supported the main thrust of their story:

The inquiry report is also expected to criticise spin doctor Mr Campbell, whose denial that the dossier on Saddam’s weapons was designed to ‘make the case for war’ was challenged by former spy chief Major-General Michael Laurie, who was head of intelligence collection for the Defence Intelligence Agency.
…
And earlier this month an unnamed MI6 officer said Mr Campbell acted like ‘an unguided missile’ in work on the intelligence dossier. The spin doctor had ‘a propensity to have rushes of blood to the head and pass various stories and information to journalists without appropriate prior consultation’.

However, the MoS statement that:

… Sir John Chilcot's Iraq War inquiry is published this autumn

was contradicted in the London Evening Standard (LES) the next day: ‘Sir John Chilcot Iraq verdict won't be published until January’. This was because:

Under the rules of public inquiries, anyone taken to task must be told in advance and given chance to respond. But the so-called "Salmon letters" have yet to be sent out, and a source said the process would put the report back until the new year.

- not quite the expectation of the MoS. It will be interesting to see which paper is right, and whether the LES ‘source’ turns out to be closer than the MoS’s ‘well-placed sources’.

So what is ‘the process’? According to the Inquiry website’s FAQs:

35. Will you notify witnesses/individuals before you mention or criticise them in the report?
The Inquiry’s Witness Protocol makes it clear that if the Inquiry expects to criticise an individual in the final report, that individual will, in accordance with normal practice, be provided with relevant sections of the draft report in order to make any representations on the proposed criticism prior to publication of the final report.

What might ‘in accordance with normal practice’ involve? For non-lawyers, a helpful explanation is available on law firm Field Fisher Waterhouse’s website in the form of ‘A practical guide to commissioning and conducting investigations and inquiries’ by Ed Marsden and Martin Smith. Among many other things, it explains the “Salmon letter” mentioned by the LES:

For inquiries conducted under the Inquiries Act 2005, the Salmon letter procedure has been codified in to a process of “warning letters” (see section 13 of the Act). This provides that the chairman may not include any explicit or significant criticism of a person in a report unless he has sent a warning letter to a person who:
(a) He considers may be, or who has been, subject to criticism in the inquiry proceedings; or
(b) About whom criticism may be inferred from evidence that has been given during the inquiry proceedings; or
(c) Who may be subject to criticism in any report or interim report.
Section 14 of the Act creates a statutory duty of confidence between the recipient of such a letter, the inquiry team and the recipient’s legal representative. The duty persists until such time as the inquiry’s report is published or the chairman waives the duty.
The contents of warning letters under the Act are set out in section 15. They must:
(a) state what the criticism or proposed criticism is
(b) contain a statement of the facts that the chairman considers substantiate the criticism or proposed criticism
(c) refer to any evidence which supports those facts.

But is the Iraq Inquiry being conducted under the 2005 Act? Presumably it is, but some of the key provisions are not being exercised, eg Section 17(2): Power to take evidence on oath and Section 37: Immunity from suit. The latter is interesting, in that according to Marsden and Smith:

The law provides that where a statement is made by one individual about another which is false and damages that person’s reputation, that person may commence proceedings for damages on grounds of defamation.
Those conducting inquiries, and those giving evidence in such proceedings are as susceptible to an action for libel (in respect of written statements) or slander (oral statements) as anyone else.
However, where “qualified privilege” attaches to an inquiry it serves to protect the statement-maker where they make a false and disparaging statement in the course of the inquiry providing the statement is made in good faith. This is not the case, though, where the statement-maker is motivated by malice.
For inquiries conducted under the Inquiries Act 2005, section 37 codifies the previous common law understanding of the qualified privilege defence to defamation proceedings. Section 37(3) provides as follows:
37(3) for the purposes of the law of defamation, the same privilege attaches to
(a) Any statement made in or for the purposes of proceedings before an inquiry (including the report and any interim report of the inquiry)
(b) Reports of proceedings before an inquiry
As would be the case if those proceedings were proceedings before a court in the relevant part of the United Kingdom.

However, the Iraq Inquiry FAQs state:

27. What protection did [do] witnesses have to speak freely?
The hearings are not covered by Parliamentary or other privilege. The Committee expects all witnesses to provide truthful, fair and accurate evidence. The Inquiry welcomes the fact that the Government and Services have extended an immunity from disciplinary action to serving officials and military personnel who give evidence or otherwise assist the Inquiry, as this will help reassure witnesses that they can provide frank and honest evidence.

Returning to the ‘Salmon letter’, Section 14 of the Act (see above) refers to the ‘recipient’s legal representative’. Witnesses should have been offered the opportunity to bring a friend or legal representative to their interview, though it should have been made clear that the investigators’ questions will be directed to the witness. Of the three whose reputations the MoS expects to see suffering major damage, two, Blair and Straw, were barristers before entering politics. Whether they or Campbell (who met up with a well-known and eminent QC about 25 minutes into Episode 7 of Jamie’s Dream School, as broadcast on Channel 4 earlier this year) have sought, or will be seeking, legal advice on how to deal with any criticisms from the Inquiry, we may never know. But one cannot help wondering if the other witnesses, in making their comments, fully appreciated the possible implications of an absence of privilege, if this is actually the case. Presumably, in the event of a legal action concerning a defamatory statement, the defence costs would be borne by the witness’s employing department. In these circumstances, however, evidence would be under oath and subject to cross-examination by a barrister.

As for the MoS’s ‘four main failings’, I don’t see the latter two (sofa government and post-war planning) being made that much of – the former already addressed by Lord Butler and the latter potentially awkward for the present incumbent of No 10, given the uncertain outcome in Libya. As for the ‘bogus WMD claims’, the Inquiry might feel it should come up with something new. Going back to GOD’s letter above, the ‘dodgy dossier’ was explained, and apologized for, by Campbell at the Foreign Affairs Select Committee (FAC) on 25 June 2003: 

Q1152 Sir John Stanley: I would like to turn to another apology which I think is very seriously outstanding and on which you may wish to correct your evidence. If I heard you correctly you suggested the Government had made an apology to Mr al-Marashi. Mr al-Marashi's work was lifted off the internet without attribution; it was used in a highly political context to help make the Government's policy case for going to war against Iraq which was a matter which concerned him very greatly. His thesis or his article in the Middle East Review in certainly one crucial respect was substantially changed to suggest terrorist linkage between the Saddam Hussein intelligence agency and al-Qaeda which was not what he said in his Review article, and members of his family were endangered. I questioned him on the issue as to whether he had had an apology, "Has the Government made any expression of regret or apology to you for the plagiarisation of your thesis? Mr al-Marashi: I have never been contacted directly, either by phone call nor in writing, since February 2003 up to the present. Me: Do you think you might be owed an apology. Mr al-Marashi: I think the least they can do is owe me an apology." I do not believe he has received an apology, I think Mr Campbell you said earlier he had, I hope he will receive a personal apology from you.
Mr Campbell: As I say, I take responsibility for that paper. I have explained why the mistake was made. I am happy to send an apology to Mr al-Marashi on behalf of the entire communications team at No 10 and the CIC, I am happy to do that. As I said earlier, the moment this mistake was exposed by Channel 4 and subsequently by Mr al-Marashi himself on Newsnight, that next morning the Prime Minister's spokesman has never attempted to avoid it, hands up, it should not have happened, we are going to look at how it happened, we are going to put procedures in place and that has been done. I have no desire here at all to do anything other than deliver that apology and do that sincerely. If it would help to do that in writing to Mr al-Marashi, I am perfectly happy to do that.

Campbell also provided the FAC with a memorandum and a supplementary memorandum. The latter explained the drafting changes he had proposed during the development of the September 2002 WMD dossier referred to by GOD. Unless the papers seen by the Chilcot Inquiry invalidate this explanation, there doesn’t seem to be much justification for the MoS’s expectations of Campbell’s being criticised.

The other Blair failing cited by the MoS was ‘Not telling the British public about his secret pledge with George Bush to go to war’. Ignoring the point that British PMs invariably will have secrets they don’t tell the public, the ‘pledge with George Bush’ was addressed in the second Blair evidence session on 21 January 2011 (page 48 et seq):

[BLAIR] … So in a sense what I was saying to America was "look" -- and by the way I am absolutely sure this is how George Bush took it "Whatever the political heat, if I think this is the right thing to do I am going to be with you. I am not going to back out because the going gets tough. On the other hand, here are the difficulties and this is why I think the UN route is the right way to go".
SIR JOHN CHILCOT: The Andrew Rawnsley book quotes you saying at about the end of July, so it must be the same event, Rawnsley quotes you as saying, having said to President Bush, quoting from Rawnsley, quoting you: "You know, George, whatever you decide to do, I am with you." Is that about right?
THE RT. HON. TONY BLAIR: No, it is not what I said. What I said is what I said in the note, and with the greatest respect to Andrew Rawnsley I don't think he was present at the meeting.
SIR JOHN CHILCOT: No. He was quoting what you said to him.
THE RT. HON. TONY BLAIR: What I said to him.
SIR JOHN CHILCOT: So I understand.
THE RT. HON. TONY BLAIR: I have not heard about that.

A footnote explains: ‘Andrew Rawnsley in his book The End of the Party refers to interviews with officials as the basis for his material.’

SIR JOHN CHILCOT: I suppose just to round off on this, because it is very important and central as to how far there was a commitment and what the nature of the commitment was, thinking also about what you said to Donald Rumsfeld on 5th June, you said in your statement to us about that: "I could not and did not offer some kind of blank cheque in how we accomplished our shared objective." But if you used the sort of language that Rawnsley cites or that we have seen in the note you sent to President Bush, are those wholly consistent in terms of the understanding that the Americans formed?
THE RT. HON. TONY BLAIR: Sure. I don't think the Americans were in any doubt at all about what was being said and why it was being said. I can't recall all the precise conversations I had, but by the way, this is entirely also consistent with what I was saying publicly. I don't think it was a great secret that I was right alongside America after September 11th and continued to be, and one of the reasons why when we had the Crawford meeting there was so much international focus is that Britain and America were standing together.
What I was saying to the Americans was this, because I was trying to get them very substantially to amend their position. Their position had been "We are going to do it". Then their position had been because I had asked them "Okay with an ultimatum." Now their position with huge opposition within his system was going to be "We are going to put this back in the lap of the United Nations". Some of the people in his administration were saying "You are crazy. You are going to put it back into the bureaucracy of the UN. They will swallow it up. You will be back to all this playing around. In the meantime you have this guy doing what he is doing, sitting there and nothing happening."
So I was having to persuade him to take a view radically different from any of the people in his administration. So what I was saying to him is "I am going to be with you in handling it this way. I am not going to push you down this path and then back out when it gets too hot politically, because it is going to get hot for me politically, very, very much so."
I did this because I believed in it. I thought it was the right thing to do. I also believe it is consistent with my public statements and, frankly, whatever phrasing I used, I accept entirely I was saying "I am going to be with America in handling this. However, we should handle it this way". That was in the end what he agreed to do. The single thing that is most important over anything else in this whole business about the politics about the decision before we went to war, is that 1441 represented a huge compromise on his part and a huge opportunity for the international community to get its act together.
Once it became clear that Saddam had not changed but was carrying on in the same way, I think it would have been profoundly wrong of us to have gone back to the Americans and said, "I know we said that we would be with you in handling this, but now we are not".

The Chairman then concludes, rather opaquely:

SIR JOHN CHILCOT: Thank you. I'd like to ask Sir Roderic to pick up on Resolution 1441. Just before I do I think I would like to say for the record, because I said to the Cabinet Secretary that we were disappointed that it was not possible to see the statement, which, of course, we have seen, and that disappointment continues, but there it is.

Presumably he is referring to his introduction earlier to this part of Blair’s evidence (page 46)

… In the Inquiry's statement request to you, Mr Blair, we asked about two specific statements, the one you made to President Bush after the meeting of 23rd July 2002, and also to Defence Secretary Rumsfeld in June 2002.
The Cabinet Secretary would not agree to their disclosure. In communicating his decision to us, the Cabinet Secretary wrote and I quote:
"A UK Prime Minister may be less likely to have these exchanges or allow them to be recorded if he is concerned that this information would be disclosed at a later time against his wishes."
Are you content to tell the Inquiry what was in these statements?
THE RT. HON. TONY BLAIR: I am very content to discuss the basis of them. What I do believe and I am not going to hide behind the Cabinet Secretary -- it is not my way -- I think it is extremely important that the British Prime Minister and the American President are able to communicate in confidence, and if something is given in confidence it should be treated like that, but I am very happy to tell you the basis of what I said.

What the Chairman meant by 'it was not possible to see the statement, which, of course, we have seen, and that disappointment continues' is difficult to interpret. However, neither his remark nor Blair’s statement would seem to support the existence of a ‘secret pledge with George Bush to go to war’. Of course the Inquiry may have seen other documents which do. The MoS also states that the ‘inquiry rounds on Mr Blair for telling Parliament that intelligence suggesting Saddam had WMDs was “beyond doubt”’. Blair’s foreword to the September WMD dossier stated:

What I believe the assessed intelligence has established beyond doubt is that Saddam has continued to produce chemical and biological weapons, that he continues in his efforts to develop nuclear weapons, and that he has been able to extend the range of his ballistic missile programme.

Although he later pointed out:

The case I make is that the UN Resolutions demanding he stops his WMD programme are being flouted; that since the inspectors left four years ago he has continued with this programme; that the inspectors must be allowed back in to do their job properly; and that if he refuses, or if he makes it impossible for them to do their job, as he has done in the past, the international community will have to act.
I believe that faced with the information available to me, the UK Government has been right to support the demands that this issue be confronted and dealt with. We must ensure that he does not get to use the weapons he has, or get hold of the weapons he wants.

Subsequently, as we all know, the evidence for Saddam’s WMD programme was not forthcoming. If only minor evidence had surfaced, the ‘beyond doubt’ issue would not have arisen.  Nonetheless, it is worth considering the alternative. If Blair hadn’t been so sure, would it have been in the UK’s interest for him to have gone to Bush and said “… we said that we would be with you in handling this, but now we are not"? Bear in mind that Blair had, with misgivings, supported Clinton a few years earlier over Saddam. Being able to say ‘we told you so about the WMD’ afterwards would hardly have helped restore the UK’s standing with the Bush White House. Waiting for Bush’s successor would hardly have been a practical optioneither, and, as it has turned out, Obama has been criticised by the Tea Party for many things, but not yet for anglophilia.

I quoted in an earlier post from Jim Naughtie’s The Accidental American about the significance of the UK/US relationship as perceived by Blair in 2004. Perhaps in 2011, if the UK is envisaged in some quarters as being on the way to minor power status (eg eventually abandoning its nuclear deterrent, aircraft carriers and a serious intelligence capability), keeping on good terms with the US is not seen as worth the price. However, the UK would need to be confident that it could address the current and future threats to cyber security without close cooperation with the US. London, the City and the services they provide, are fundamental to the UK’s returning to prosperity over the rest of the decade. The National Security Strategy published last year has as one of its key aims their protection, along with the rest of the nation’s infrastructure, against ‘Hostile attacks … by other states and large scale cyber crime’. It also states:

2.11 Our strong defence, security and intelligence relationship with the US is exceptionally close and central to our national interest.

On a more trivial note, is it really likely that the Iraq Inquiry report (assuming it appears in early 2012, a year later than originally envisaged) will, six months before the London Olympics, engage in major criticism of the former Prime Minister who secured them for the UK against French competition in particular?

UPDATE 17 OCTOBER

Yesterday, the Observer reported that:

The official inquiry into the UK's role in the build-up to the Iraq war might not issue its report until next summer at the earliest, more than a year after many expected it to be made public, the Observer has learned.

A source close to the inquiry, chaired by Sir John Chilcot, a former Whitehall mandarin who has advised both MI5 and MI6, suggested that its findings are unlikely to be disclosed until June.

Just before the Olympics then , unless, of course, there's another postponement ...

The Observer  also said:

The inquiry's findings are expected to be critical of a number of senior politicians within the Labour government, their aides, and intelligence chiefs. There is speculation that the former head of MI6, Sir Richard Dearlove, will bear the brunt of the criticism.

While Blair is expected to be criticised, in particular for not consulting sufficiently with his cabinet, there is speculation that he won't be condemned as strongly as some had expected. But his relationship with his chief legal adviser faces acute scrutiny. The inquiry heard that eight months before the invasion, Lord Goldsmith told Blair an attempt to topple Saddam would be a serious breach of international law.