I believe that the issue may be sufficiently important as to satisfy, at Judicial Review, the "illegality" test in what I'll the "Diplock triad". See http://oxcheps.new.ox.ac.uk/casebook/Resources/CCSUVM_1%20DOC.pdf for what I understand to be the original expression of the "Diplock triad".
"Illegality" in that context is not the same as saying that Dominic Grieve committed a criminal offence in that respect.
He stated something that was incorrect in Law, and based his decision on a false understanding of the Law.
However, for the avoidance of doubt, I do believe that Dominic Grieve QC MP has committed the offences of Misconduct in Public Office and Perverting the Course of Justice. But that is not the immediate focus of this post.
Dominic Grieve knew on 9th June (or had opportunity to know) that what he was saying to the House of Commons was untrue.
The following quote comes from here: Attorney General Dr Kelly written statement 9 June 2011 and is from page 8.
The then Secretary of State (and Lord Chancellor), Lord Falconer, acted entirely reasonably in exercising his powers to set up an inquiry ...
What Dominic Grieve says is untrue.
On 18th July 2003, in Law, there was no Secretary of State for Constitutional Affairs and consequently Lord Falconer had no powers which he could exercise (reasonably or otherwise) as Secretary of State for Constitutional Affairs.
Lord Falconer did not acquire his powers as Secretary of State for Constitutional Affairs until about a month later, on 19th August 2003.
And Dominic Grieve had been informed of that (by me) on 6th June 2011.
Let me set out the basis for those assertions.
The following email was sent on 6th June 2011 to the Attorney General's Office:
This email is intended for the attention of the Attorney General in connection with a possible application to the High Court for an Order that an inquest be held into the death of Dr. David Kelly.
I do not pretend to be an expert in constitutional matters but a consideration has come to my attention which appears to me potentially to have foundational importance with regard to the consideration by the Attorney General of the need for an inquest into the death of Dr. David Kelly.
Expressed directly, and perhaps overly simplistically, it seems at least arguable that Lord Falconer was not, in Law, Secretary of State for Constitutional Affairs on 18th July 2003 when he verbally asked Lord Hutton to conduct an inquiry nor was he Secretary of State for Constitutional Affairs on 24th July 2003 when he wrote formally to Lord Hutton to confirm that request.
I hope to be able to substantiate later in this communication what might, at first sight, appear to be a bizarre suggestion.
First I'll briefly outline that Lord Falconer made the request in his role as Secretary of State for Constitutional Affairs and then I'll briefly consider the basis in Law for casting doubt on Lord Falconer's status in Law on the dates in question.
In his report, Lord Hutton states:
On 18 July 2003 I was requested by the Rt Hon Lord Falconer of Thoroton, the Secretary of State for Constitutional Affairs, to conduct an Inquiry into the death of Dr David Kelly
See Paragraph 1 in Chapter 1 of the Hutton Report here:
Lord Hutton goes on to state:
My terms of reference were:
"urgently to conduct an investigation into the circumstances surrounding the death of Dr Kelly."
If Lord Falconer was not, on 18th July 2003, the Secretary of State for Constitutional Affairs and/or did not, in Law, have the capacity of a Secretary of State then it is, I suggest, questionable whether he had lawful authority to invite Lord Hutton to conduct a judicial inquiry or authority to define the terms of reference of such a supposed inquiry.
On 24th July 2003 Lord Falconer wrote to Lord Hutton on headed paper conveying the notion that he was "Secretary of State" (for Constitutional Affairs).
See http://www.the-hutton-inquiry.org.uk/content/cf240703.pdf on the Hutton Inquiry web site for the letter of appointment of 24th July 2003.
If my concerns are sound in Law then Lord Falconer's letter of 24th July 2003 is fraudulent since he purports on that date to be one of Her Majesty's Secretaries of State when the office of Secretary of State for Constitutional Affairs may not have existed in Law in the date in question at least in the sense that it appears to have lacked any functions or powers of one of Her Majesty's Secretaries of State.
To my mind, if that interpretation is correct, the question arises as to whether Lord Falconer as Secretary of State for Constitutional Affairs had the power, on 18th July 2003 or 24th July 2003, to ask Lord Hutton to conduct a judicial inquiry.
Consequentially, it seems to me that it comes into question whether, in Law, the Hutton Inquiry can properly be considered to be an "inquiry" in the meaning of Section 17A of the Coroners Act 1988.
I will now explain the basis in Law on which my concerns found.
To the best of my knowledge the post of Secretary of State for Constitutional affairs did not exist prior to the announcement in June 2003 of the creation of the Department for Constitutional Affairs.
The Ministers of the Crown Act 1975 appears to require that the creation of a new post of Secretary of State and the acquiring of functions, powers etc by such a new Secretary of State depend on an Order of Her Majesty in Council.
The text of the Ministers of the Crown Act 1975 is available online here: http://www.legislation.gov.uk/ukpga/1975/26/contents
To create the new post of Secretary of State for Constitutional Affairs it seems to me that the Ministers of the Crown Act 1975 requires Her Majesty to create the new post and give to it any powers and functions that might be appropriate by an Order in Council.
It appears that the Government also recognised that requirement imposed by the Ministers of the Crown Act 1975 since by an Order in Council, expressed in The Secretary of State for Constitutional Affairs Order 2003, the post of Secretary of State for Constitutional Affairs was created and given functions and powers.
The problem for Lord Falconer's actions of 18th July 2003 and 24th July 2003 arises from the following text in the Secretary of State for Constitutional Affairs Order 2003:
Made - - - - 17th July 2003
Laid before Parliament 29th July 2003
Coming into force 19th August 2003
Taken at face value the Order in Council did not come into force until 19th August 2003.
It seems to me, therefore, to be at least arguable that Lord Falconer had no powers or functions of a Secretary of State for Constitutional Affairs on 18th July 2003 or 24th July 2003 to set up a judicial inquiry (or, in fact, to carry out any function of one of Her Majesty's Secretaries of State).
Arguably, I suggest, the setting up of a judicial inquiry by a "Secretary of State" with no powers or functions may render the inquiry void.
If the validity of the judicial inquiry is in question, the question also arises as to whether Section 17A of the Coroners Act 1988 was applied by Lord Falconer acting as Lord Chancellor in circumstances to which it did not apply.
If, on the grounds suggested, there was no Section 17A inquiry the actions and/or failures to act of Nicholas Gardiner QC in early 2004 also come into further question.
If, as may be the case, the Hutton Inquiry is void and the stump "inquest" failed to carry out basic requirements of the Coroners Act 1988 (and the associated Coroners' Rules) then it seems to me that the requirements of Section 13 of the Coroners Act 1988 are met. In other words, an inquest is required into the death of Dr. David Kelly.
If it is already the view of the Attorney General that he should apply to the High Court for an Order that an inquest be held into the death of Dr. David Kelly, this matter need not detain him.
If however, it were the provisional view of the Attorney General that he need not apply to the High Court for an Order, I suggest that this is a further issue which will require detailed consideration, in view of the possibility of Judicial Review of a decision in the negative by the Attorney General.
As is my custom, blind copies of this communication have also been sent to potentially interested individuals.
I would be grateful if you would confirm receipt of this email and that the information contained in it will be drawn to the attention of the Attorney General.
(Dr) Andrew Watt