(1)If on an inquest into a death the coroner is informed by the Lord Chancellor before the conclusion of the inquest that—
(a)a public inquiry conducted or chaired by a judge is being, or is to be, held into the events surrounding the death; and
(b)the Lord Chancellor considers that the cause of death is likely to be adequately investigated by the inquiry,
the coroner shall, in the absence of any exceptional reason to the contrary, adjourn the inquest and, if a jury has been summoned, may, if he thinks fit, discharge them.
The invoking of Section 17A is a strictly legal decision and as such it has to be the Lord Chancellor who carries this out.
So did Lord Falconer (the Lord Chancellor) consider that the cause of death was "likely to be adequately investigated by the inquiry"? There can be no doubt whatsoever that Falconer would be fully conversant with such legal requirements as power of subpoena and taking evidence under oath that any inquest demands. No such powers were vested in Lord Hutton's "ad hoc" Inquiry, the Inquiry having been set up by Falconer himself.
Remember that it was Hutton who wrote, in a letter to the Attorney General in September 2010:
Under section 17A of the Coroner's Act 1988 the public inquiry took the place of an inquest and carried out the functions of an inquest.
We are expected then to believe that both Falconer and Hutton believed that the Inquiry would adequately investigate the cause of this controversial death. It is true that Section 17A doesn't specifically state that an Inquiry should take evidence under oath. But should it need to? Commonsense comes into play here. The very fact that an inquiry is effectively replacing an inquest surely means that the inquiry should be at least to the same legal standard as the inquest. Clearly in this instance it wasn't. Falconer and Hutton were both aware of this. Dr Kelly's death is unique: there hasn't been another instance of a violent or unnatural death occurring where the official cause of death has been determined by unsworn testimony.
There is an interesting exchange at the hearing of the Select Committee on Public Administration when Lord Falconer was examined. The context is the discussion between Tony Blair and Falconer when Blair was on the plane heading for Tokyo on 18 July:
Q180 Chairman: Did the issue arise as to whether this ought to be done under the 1921 Act with powers or whether it should just be set up and got on with?
Lord Falconer of Thoroton: We did not discuss precisely the format of the inquiry or what its powers should be but the purpose of setting up the inquiry was so that there could be a complete, open investigation of what had happened so the public should be aware of what had happened and so that there should be in a sense no doubts about what the definitive set of circumstances leading to the death of Dr Kelly were.
Are we really expected to believe that Falconer and Blair didn't discuss whether the Inquiry should be an informal one or whether it should be under the 1921 Act (which latter would have entailed recalling both Houses of Parliament). Falconer's response is a politician's fudge to a straightforward question.