THURSDAY 11 JULY 2002
Tony Wright, Chairman
Examination of Witnesses
SIR RICHARD WILSON GCB, Secretary of the Cabinet and Head of the Home Civil Service, and MR JOHN GIEVE CB, Permanent Secretary, Cabinet Office, examined.
SIR MICHAEL BUCKLEY, Parliamentary Commissioner for Administration, in attendance.
(Sir Michael Buckley) Thank you, Chairman. As you know, this afternoon the Committee is considering in particular two cases relating to Access to Official Information. The first case relates to a complaint by Mr Andrew Robathan, a Member of the House, that the then Home Secretary had refused to provide him with information about the number of occasions on which Ministers in his Department had made a declaration of interest to their colleagues in the circumstances envisaged in paragraph 110 of the Ministerial Code of Conduct, and also the number of occasions on which Ministers in his Department had sought the advice of the Permanent Secretary under the circumstances envisaged in related paragraphs of the Ministerial Code. I found that there was no reason why that information, which was purely numerical, could not be disclosed and I so recommended. That recommendation was rejected - the first time that a recommendation by the Ombudsman in the field of access to government information has been rejected. Another disturbing aspect to this case was the delay by the Home Office in responding to communications from my office. No less than seven months elapsed between the issue of the draft report on the case in March 2001 and the departmental response, which was received by my office in October 2001. The second case relates to a complaint against the Home Office for refusal to release information relating to an alleged telephone conversation between Mr Peter Mandelson and Mr Mike O'Brien, both Members of the House. Again, there were serious delays by both the Home Office and the Cabinet Office in responding to communications from my office. I wrote personally to both the Permanent Secretary to the Home Office and the Secretary of the Cabinet. It was not until I threatened to discontinue my investigation that key papers were made available to my staff - some nine months after we had issued the Statement of Complaint in the case. I have unfortunately to say that this sort of delay is continuing. In one case currently under investigation by my office a department has taken three months to respond to the Statement of Complaint (though at least in that case the reply is positive); in another three months have passed without a proper response, and in a third we have received no response after two months. The implications are bad enough in the context of Access to Official Information. Information is a perishable commodity, and delay in securing it often deprives it of value. But, still more importantly, there are serious implications for the whole reputation and standing of my office. It was for that reason that I said in my Annual Report for 2001-2002 that if the developments to which I have drawn attention were not reversed they would raise serious doubts as to whether it was appropriate for the Ombudsman to continue to investigate complaints under the Code of Access to Government Information. That remark was not made lightly; it was not a mere expression of bad temper. There are two issues here. First, although work on Access to Official Information is important, it is not the main work of my office. Last year my office received only 34 complaints about access to information, as against over 2,000 about what might be called conventional maladministration. It is often suggested, in the context of the latter, that it is a weakness in my office that we cannot enforce our findings or recommendations. The standard reply is that although these have no legally binding force it is extremely unusual for the Government to reject them. That reply will not carry conviction if what complainants and potential complainants read in the media is that the Ombudsman cannot get replies or papers out of departments and that his recommendations are rejected. Complainants will not make or even be aware of distinctions between different types of case. Secondly, there is a perception which I have heard voiced in the media that the Ombudsman is becoming a political figure. My findings, whether in conventional cases or information cases, are in no way influenced by party politics, and the substance of my findings in the cases under consideration this afternoon, so far as they related to the actions of Ministers, related strictly to the actions of Ministers in their official capacity. I do not welcome a situation in which the Ombudsman's findings are the subject of political exchanges across the floor of the House. But the developments which I have mentioned are not things which I believe I should pass over in silence. Continuing controversy in this area risks damaging the reputation of my office for both effectiveness and impartiality. It would be irresponsible of me to ignore that risk.
(Sir Michael Buckley) I was in something of a cleft stick, Chairman. One the one hand I did not think it was appropriate to go over the same ground as Sir Anthony Hammond had in his investigation and report. If I had done so I would obviously have had to interview the parties on the alleged conversation between Mr Mandelson and Mr O'Brien and I dare say others. That did not seem to be right. On the other hand, since a fairly important question was whether there was reason to suppose that there was something about which information existed, I did not think it would be right simply to say in effect that Sir Anthony Hammond concluded that there was something; therefore it must be so. Therefore, what I did was to study the original papers and Sir Anthony's report. I found his reasoning persuasive and I said so. In effect I reviewed Sir Anthony's conclusions and adopted them but I did not conduct a detailed investigation into the matter nor do I believe that it would have been appropriate for me to do so. I did not think any approach would have been entirely satisfactory and I have to say that in a nutshell I do not think that I have added anything to the sum of human knowledge in the matter.
(Sir Michael Buckley) Whatever I did I think there was a risk that commentators would put two and two together and not necessarily make four. As you say, on the one hand there is the risk about being perceived as having conducted a substantial investigation into whether or not such a telephone conversation had taken place. I did not. On the other hand, if I had simply appeared to take it for granted that there had been a telephone call and I had not explicitly said I had taken over Sir Anthony Hammond's conclusions without necessarily having gone into them, there would have been the misconception that I was distancing myself from those. I tried to steer a middle course. Not everyone thinks I have been successful, but that was what I was trying to do.
(Sir Michael Buckley) That is not an aspect that I considered, Chairman. My remit was simply to see whether there was information relating to this alleged telephone call. I had nothing to add to what Sir Anthony Hammond said and, as you know, the substance of my conclusions in this matter was that, since there was no information on the file or apparently available, no information failed to be disclosed.
(Sir Michael Buckley) Sir Anthony Hammond reached conclusions. I simply looked at the matter which I thought was necessary for my inquiry. We are talking about information relating to an alleged telephone conversation. We had first to say, is there some ground for supposing that there was such a telephone conversation? As I say, having reviewed Sir Anthony's reasoning, I accepted his conclusion. I did not look at any other aspect, nor did I think it necessary for me to do so.
(Sir Richard Wilson) Chairman, the report of the Ombudsman, as you rightly say, does not go into those issues and we are here today to answer to you on that report. I do not think it would be right for me to try to add to the record of what has already been said about Mr Mandelson at great length.
(Sir Richard Wilson) I think I rest on my last answer, sir.
(Sir Richard Wilson) We take the Ombudsman's role very seriously. It is one that we value. If you look at the annual report and the press release published at the time of the annual report, you will see a list of all the different kinds of cases that the PCA has intervened on and I think it is a hugely important role. It is a role which, as you know, the Government thinks should be developed. There is a very good report, the Calcutt Report, which came from the Cabinet Office, and I think that report points to a future where the PCA and the other Ombudsman will have an even more important role than they have now in a more modern form. Coming back to his comments, I would say first I want everyone to understand and the Government want everyone to understand that the last thing they want is for anyone to throw doubt on the importance of the PCA's role. Secondly, I think it is also the case that we are moving into a world where openness is going to be far more important and a far more common feature of the culture we work in than ever before, and I think we are moving into that world now. It is something which, contrary to some of the reporting which we sometimes get, is one that we recognise and welcome because what goes on in Government and what goes on in the Civil Service is insufficiently understood. Openness is a way of promoting trust and I think it is good. I think the evidence, thirdly, is that openness is something which the Civil Service and the Government are also accepting. The Data Protection Act is very important. If you think that there is any question of obstruction, consider the e-mails that were released this week following approaches under the DPA from Liberal Democrat MPs. That shows that we accept that we have to be open even where it is not necessarily convenient or pleasant to do so. The Freedom of Information Act, which it is sometimes fashionable to regard as weak, it is going to be a very important development and we are now moving on a clear timetable to implement it. The evidence therefore is that openness is coming. I also do not, with respect to Sir Michael, accept that he is in as weak a position as his remarks may be thought to imply. There has been, I think, only one case, which is the Robathan case, where the Government has politely but firmly declined to agree with him on his interpretation of the exemption. I do not think you should extrapolate from one case to assume that there is a hardening of attitudes or that there is a resiling from the commitment to openness. The reality is that openness is regarded as important and where the PCA is unhappy he has the sanction which we are witnessing here now, which is of reporting to you on the basis of an open report and of your summoning us to appear before you. It is always the case that people underestimate their own power. All I can say to you is that it is a very powerful sanction which carries a very powerful message to people throughout Government and the Civil Service that Mr Gieve and I can be called before you like this.
(Sir Richard Wilson) That is correct. My own view is that the Bedford case, the Hinduja case, is actually in some ways rather a wholly exceptional case and we did produce the information in that case.
(Sir Richard Wilson) The Robathan case is important. I think you are right to see it as significant, and I would like to discuss it. It is not a case where the Government's decision was taken lightly. It was indeed taken, as the length of time rather indicates, after a great deal of thought and indeed consultation through Government. If I may say this on behalf of Mr Gieve, although the case is brought in relation to his Department, because the application was made to them, we did take the view that this was a case that had implications for all departments and should be seen across Government and not just in relation to his Department. I would like to make that clear. I would not want him to be held responsible for more than is fair. Secondly, it was not taken lightly. There are two main threads here that I would like to try and put clearly on the table. The first is that, as we move into a world that is more open, as we are doing, one of the issues which will arise is how you ensure that within Government there are areas of privacy which can be respected and where the confidentiality of discussions and conversations can be preserved. I personally believe in such a thing as good government and I believe that a certain amount of privacy is essential to good government. I think that is the issue which in our minds arose on this case. The other issue is whether the information can be made available and whether the information exists in a form which can be published. That, although it does not come out of the PCA's report, is another factor which I would just like to put on the table because I think over the next few years (and we are at the beginning of the process), as these issues become more and more to the fore the question of whether the information is available in a form which can be used in the public forum is going to tend to be more and more important.
(Sir Richard Wilson) I think he says that himself in his report.
(Sir Richard Wilson) This is something which was being considered at the highest level, yes.
(Sir Richard Wilson) You are quite right. He did the balancing act, but it is one that we too had to think very carefully about in terms of the implications involved. It was a precedent which, once set, we would not have been able to depart from. We did the balancing act and we came to a different conclusion from the Ombudsman. It is the formal position that the Ombudsman's rulings are not binding and the Government is prepared to go through what we are going through now. It is entitled to take a different view. In this case the Government took the view that Sir Michael made the wrong call, that it was an important issue, and that it should take the decision it has taken. That again, if I may say so, is proper but it does require the decision to be defended, which is what we are doing.
(Sir Richard Wilson) Yes, because this is the area of disagreement.
(Sir Richard Wilson) The PCA took the view that this was simply a number and the number could be disclosed. The Government in essence took the view that there is no such thing as just a little bit of information which can safely be disclosed. One of the things which never fails to impress me is the skill with which the media and Parliament and politics today can take a small piece of information and create a great deal out of it. Indeed, if you read the PCA's report, he says, "I recognise that if declarations had been made or if I thought the release of the number of occasions on which they were made would lead to speculation about the Ministers involved and the interests declared or discussed ..." That I think is exactly the concern that the Government has, which is that it is very important not to constrain the relationship of confidence which exists between Ministers and Permanent Secretaries and their colleagues and that the implication of this case was one which could constrain that relationship. We would find Ministers saying, "Is this something which I have to declare?" You would find them feeling that everything they did might then become the subject of public speculation. Inquiries might be made every week as to whether they had sought advice again. People would speculate about the reason why they had sought advice, and we would be in a position where this area of privacy within Government had been breached. The view of the Government is that there has to be an area where this privacy is respected.
(Sir Richard Wilson) I would have to counsel you against dark thoughts, Chairman.
(Sir Richard Wilson) What I have said is the position. I do not think there are dark thoughts. There is in this case, which is what concerns us, a polite but firm view that this is not just a question of releasing a number. It is a question of ensuring that the privacy of a relationship is respected.
(Sir Richard Wilson) Not that I am aware of at all. I have not heard that. I look around wildly for somebody who is looking at that. I do not believe anyone is looking at amending the Code at all. I think the Code is there. Experience shows that there is no piece of information, however small, that cannot become significant. You have to think about the messages which you give to people in Government, which is that whatever is produced is used in a way that can be used against Government. Therefore people have to think very carefully about the precedent that they are setting and whether the implications of what they would be disclosing would harm their ability to conduct government properly. I think that is the issue here. It is not taken lightly.
(Sir Richard Wilson) Which case is this?
(Sir Richard Wilson) I will counsel you, sir, against dark thoughts too.
(Sir Richard Wilson) Can I just pick up that phrase, "What were you trying to fiddle?" Can I just make it clear to the Committee that I do reject that use of language. I have had a lot of experience of Government and I can tell you that we take these things very seriously but it is not about fiddling. John Gieve will know more than I about the exact things that happened in that period because I came in and out. The issue which took time was first the need to consult other departments about whether they had this information and there was a great deal of discussion among departments. There are a lot of things you can learn from this case. One of them is that it is very easy outside Government to assume that information is available. It is not available in a form which can easily be disclosed. I discovered this a couple of years ago in relation to this Committee when, rather freely, I promised you in a spirit of openness information about the costs of travel of Ministers and their special advisers. You may or may not remember that.
(Sir Richard Wilson) This was a question from Mr Tyrie. I had a very difficult time putting that together, not because of dark thoughts or people trying to fiddle things, if I may use this language, but because the information was not available in a consistent form across Government. What we had discovered was that if you had different people producing information on a different basis the likelihood was that you would draw inferences from it which were not correct. We spent a great deal of time putting it right. That is one of the problems we have.
(Mr Gieve) This saga started with Andrew Robathan asking all departments I think a written PQ and one department did reply in substance and the other departments used the formula claiming exemption under the Code. Then he wrote to the Home Secretary under the Code because the Home Office was responsible for freedom of information as a test case.
(Mr Gieve) The Department for International Department.
(Mr Gieve) Clare Short, yes.
(Sir Richard Wilson) May I take you up on this, Chairman? It does not fall in on everyone who discloses information, but the fact is that the information could have been used in relation to a particular Minister. From time to time, and this may come as a shock, particular Ministers become the target of media and political attention.
(Sir Richard Wilson) I thought openness was the order of the day. The fact that it does not fall in on a particular Minister is not something you can extrapolate to other Ministers.
(Sir Richard Wilson) I do not think I can add to anything you have said other than what I have already said, which is -----
(Sir Richard Wilson) I do not think so at all. I do not think there is a dangerous precedent here at all. I think there is a clear collective view that the implications of disclosing this information in this case would be undesirable for the relationship and confidence which exists between Ministers and their advisers and each other. That is the issue. I have some difficulty with describing that as a dangerous precedent.
(Sir Richard Wilson) I do not think there is a great gap. I think you are wrong, if I may say so. If I can pick up this phrase "dark forces", -----
(Sir Richard Wilson) I thought you said "dark forces". It is all the same really. This is all Walt Disney. In any Walt Disney cartoon the simple thing is that you have to have an evil figure and I often think in Government that is what people want to believe and it is not the case. The more that we move into open government the more you are going to need to accept that what is released should be seen with a certain amount of understanding of how Governments work. One of the critical features of Government is that there has to be an area where people can discuss things in private without feeling that whatever they say is going to be revealed and the subject of the kind of intense scrutiny which we have in our political system. I think that is a very proper concern and I do not see it in any way as being a dangerous precedent. I think it is a very proper issue to debate and discuss but I also think it is also proper for Government to take the decision it has.
(Sir Richard Wilson) No, I really do not think so. Look at this occasion. This occasion is not undermining the Ombudsman.
(Sir Richard Wilson) This is a very powerful process. If I may say so, you are underestimating yourselves.
(Sir Richard Wilson) I cannot express myself more clearly.
Mr Trend: Okay; I surrender.
Chairman: I am struggling with the idea that we are all Walt Disney characters.
(Sir Richard Wilson) Yes, absolutely.
(Sir Richard Wilson) One of the interesting things in public life is that everybody assumes that other people are more powerful than they are. This happens throughout Government. I will not bore you with this but it is true. One of the things, I assure you, that is very powerful in Government is the prospect of being summoned before a Select Committee. In the case of the Public Accounts Committee, the threat of appearing before the PAC is something which I think has had a profound impact on the whole culture of public administration in this country. It is not the occasion to develop this, Chairman, I know; I will not stray, but it is an important point. I think the Public Administration Select Committee has built rather a good reputation for itself. Appearing before you on television with our friends from the media sitting here and heaven knows who behind is a very powerful sanction. I do not think it is just an hour and a half of just taking it like that.
(Sir Richard Wilson) Not particularly.
(Sir Richard Wilson) It is not taken lightly. It is not just appearing before you, though, as I say, that is a powerful sanction. It is the publication of a report by Sir Michael, it is the publication of his press report, it is the debate on the floor of the House, it is the fact that whatever he says will have ripples for a period of time. I think the case that I am attempting to put to you and to persuade you of is that there is a case to be made that privacy within areas of Government is one that has to be debated and debated openly. That is not taken lightly because it is quite a challenge.
(Sir Richard Wilson) Do you want to talk about the delay, Mr Gieve?
(Mr Gieve) I was going to make two points on the earlier question. The truth is that it would have been far easier for me just to say whatever the number was. My Ministers were not worried about it. There was no reason to think that they were going to be targeted by further questions. It was because this was a collective issue we had every reason to think that this was a test case, we knew that if we gave the number then every department had to give the number and then it would be followed up by further questions so we thought it necessary to take a collective view.
(Mr Gieve) That was a collective issue, yes, and we represent the Government in this.
(Mr Gieve) My Minister certainly did and so did the Prime Minister.
(Mr Gieve) I do not know how many Ministers. It was the Prime Minister and my Ministers and all the other Ministers who answered the first PQ, which was all except Clare Short.
(Sir Richard Wilson) What we are saying is that we are talking on behalf of Government, yes.
(Mr Gieve) Can I just say about the seven months, I agree that seven months is a long time and I think this is Michael's main complaint, that the delays have been so long and I very much regret seven months. We started consulting in April and various things happened in between April and our final response, including an election, the summer recess and September 11. None the less, of course, we should have tried to do it quicker.
(Mr Gieve) I think this was an exceptional inquiry. It was exceptional in our response and I think it was an exceptional inquiry.
(Sir Richard Wilson) I regret it very much if the PCA's Department felt marginalised. I would also like to feel that if the PCA felt that unhappy that he could come and talk to me. It is not our wish that he should feel marginalised, or his staff. As I said earlier, we do regard the work that he and his office do as very important and its further development is absolutely crucial.
(Sir Richard Wilson) I do not think that relates to either of the cases in here. It was a Valuation Office case. Whatever case it was, I do not know the answer to that.
(Mr Gieve) Can I add that on these cases, especially on the Hinduja case, exactly the reverse has happened. We claimed an exemption under one of the exemptions. Michael replied 'that he might have accepted the case under a different one'; but we did not then write him another letter saying, "Oh, in that case we will re-claim it under a new exemption" because he does not like us changing our case.
(Sir Michael Buckley) That would have been valid only at the time.
(Sir Richard Wilson) It is also the case on the Bedford case that when he approached me about the access point, or whatever the technical term is, I could have argued that the PCA's jurisdiction under the 1967 Statute does not extend as it happens to the part of the Cabinet Office in which Mr Mandelson was working. I considered that and rejected it immediately on the grounds that I did not wish to be obstructive and it was not good at that late stage to introduce that argument. On the evidence of these two cases it is not a universal problem.
(Sir Richard Wilson) It is an issue of resources in part. That is another thing which needs to be remembered in talking about the more general issues. It is not the big issues which get delayed because people find the time to deal with big issues. It is the issues which are, and this is not meant pejoratively, below the level of the big issues where it is quite difficult to see a way through: those are the ones that tend to take time and to get held up. The other thing which is a problem is getting hold of information. This will be one of the real problems of freedom of information. One of the challenges for us is getting the information in a form in which it can be published to sufficient quality to be sure that it is not going to be either misleading or inaccurate. That is the real issue and that is really where a lot of the time is taken.
(Sir Richard Wilson) Yes. You will be doing that later today if you ever release us.
(Sir Richard Wilson) Yes. First of all, I think there is a balancing for us to do in terms of the guidance. Secondly, we did not like doing it at all. Governments want to accept the Ombudsman's view and they have made it clear that in the vast majority of cases they will and indeed do accept them. The view was taken that there was a sufficiently important principle in this case to make the point and to politely take a different view from the Ombudsman.
(Sir Richard Wilson) This is what I am trying to refer to. I take what you say very seriously. I do not want to sound too much like somebody who is leaving, but when I joined the Service, which was before photocopiers, files were kept in good order. You could see what had happened on them and quite a lot of resource and effort went into keeping them. I think we are now a long way from that. A number of things have happened. One of them is photocopying where the volume of paper has increased massively and everybody has a way of scribbling on their own copy of a photocopy. To have a file which has all the relevant documents on it is more challenging although we have not greatly increased resources for it. Secondly, technology has meant that e-mails are now very important. As everyone knows, e-mails are a very different way of doing business from either an oral conversation or a properly written document. People use language differently. I have a real worry that fairly important decisions get taken in e-mails which are actually a fairly ephemeral medium. I have quite a worry about public records in that area. I have talked to people in the Public Record Office and to the person in the Cabinet Office who deals with these things and we are addressing that issue. My third point, on which I cannot give you figures but I am fairly certain is true, is that the volume of business is growing very rapidly. In 1997, when the Labour Government came to power, the number of letters received by No. 10 doubled to a quarter of a million. It is now very nearly at half a million for this current calendar year. The number of parliamentary questions from the House of Lords has very nearly doubled in the last few years. What I am trying to say is that if one sat down and did a proper review the volume of business is growing. Finally, the spirit of the age is to do a lot more on the telephone or orally and not to record it. That is the world we live in. The combination of these factors seems to me to be leading to a world in which it is far more difficult always to be confident, and this does come out on the Bedford case, that the papers are kept in good order and that they will be available when you need them and that conversations have been recorded properly than it has been in the past. This is something that I think is a genuine worry about openness that we need to address because it is going to get in the way of what we are trying to do.
(Sir Richard Wilson) Of course. I can give you the reassurance which you seek that the Hammond inquiry recommendations on this have been accepted, are being implemented, the guidance has been put around Whitehall and so on. What I am really saying to you is that I am still quite worried about the issue you are raising.
(Sir Richard Wilson) This is interesting. Can I bring in Mr Gieve? It is illuminating from the point of view of what you are saying.
(Mr Gieve) Why were the papers not together in the files when Michael's member of staff came to inspect them? I have talked this through and I got all the papers myself and looked at them. There is a large file, about a foot and a half of papers on the Hinduja cases in our nationality section in Liverpool, and I asked the same question: surely on this file of all files they ought to be kept together. Just to explain what actually happened, the person who was in charge of this file said, "Throughout the beginning of the year we were being asked almost daily for photocopies of various documents on this file, especially of e-mails and submissions, and for ease we took them off the Treasury tag and we kept some of them in a loose-leaf folder next to the file in the same security cabinet because it gave us more convenient access." When the Ombudsman wanted to inspect them and rang up he did not want to go to Liverpool; he wanted to see them in Croydon. They said, "Do you want the registered file or all the papers?", and he said, "I think the registered file will be enough", so they sent him the registered file. He then looked at it in Croydon and did not find all the papers he was expecting. He did not have anyone to talk to, otherwise I expect he would have said, "Are there any others because they are not all here?", but he did not say that because he was doing it in Croydon and he just sent it back and a couple of months later we get a report from Michael saying our files were in disorder. This is very regrettable and new instructions have gone out and all the papers are being kept on the file on the tag now for this case and other cases, but this was not a conspiracy to hide things, all of which had been published in the Hammond report. It was sheer pressure of work and administrative convenience and a cock-up in what was sent out to Croydon.
(Sir Richard Wilson) If I may add without wishing to make too much of a point, it would have saved time if the person looking at the file had rung them up and said, "Come on, this cannot be right. There must be more papers than this."
(Sir Richard Wilson) It is everyday life.
(Sir Richard Wilson) And in, I would guess, the offices of a lot of people round the room.
(Mr Gieve) That is a slight exaggeration of the case in that there were some papers which had been in Mike O'Brien's office and in fact the Ombudsman's staff examined all of those again, but the Hinduja papers had been added to the IND files that we have on immigration. The Mandelson papers - perhaps Sir Richard can talk about the Mandelson papers.
(Sir Richard Wilson) Can I just say that just getting the PCA access to the papers we had really was not an issue. Within 24 hours of reading the letter which Sir Michael had sent me at the end of September I had put in a note to No. 10 saying this had happened and we should let him see the papers, full stop. It seemed to me no big deal. It was the fact that almost coincidentally, almost exactly the same moment, these fresh papers came to light that led to the further delay at our end and we had to work out how to handle them. We got it right in my view but it took a little time, for reasons mainly to do with the events of 11 September and the fact that the Prime Minister was not in the country very much in the six weeks that followed the receipt of that letter. We did make, during the first Hammond inquiry, if I may call it that, a strenuous effort which is described in the second Hammond report, to ensure that all the papers that were available were available. Peter Mandelson co-operated in that and there is a description of it which I will not repeat in this second report. We thought we had got everything. It was a very big effort to get that but, as it happened, and I cannot tell you more than is in this report here, it did not cover everything. This little cache of further papers came to light and we took the view that they had to be made public, we could not sit on them, and the choice was whether we just produced them for the Ombudsman or whether we gave Sir Anthony Hammond a chance to look at them and see whether he wished to review his conclusions. We came to the conclusion that the second thing was the right thing to do and that was frankly what took the time between the Ombudsman writing to me and my reply to him.
(Mr Gieve) Sorry; I thought you were asking about whether there were any papers at all from Mike O'Brien's office. There certainly was not a note of the telephone conversation. That is absolutely right, and we have issued new instructions on the back of the Hammond report to tell private secretaries to be more scrupulous in keeping notes. I can tell you that they are much more scrupulous than I was when I was in private office some years ago. In the present business back a few years they obviously did not keep the notes. They clearly kept a note of a lot of things but not of that one.
(Sir Michael Buckley) I think, Chairman, these were the papers which were put on the separate folder. Just to take up the point Sir Richard made about would it not have been better if my staff had got in touch to say, "Where are they?", they tell me that that is exactly what they did.
(Sir Richard Wilson) In that case I withdraw the point.
(Sir Richard Wilson) I think the absence of private office records justified the verdict of Hammond that this was wholly inadequate. I think it was; I agree. There is no argument.
(Sir Richard Wilson) It is set out in the guidance to the Ombudsman. Every department has its own guidance and I am sure the Committee can work through it.
(Sir Richard Wilson) We have a unit in Historical Records Office whose role - and I think most departments have this - is to be a point of contact and to monitor the implementation of that timetable in relation to particular cases.
(Sir Richard Wilson) I cannot tell you the answer.
(Sir Richard Wilson) I cannot tell you.
(Sir Richard Wilson) We have the unit. I would issue instructions that I wanted the timetable to be observed. I think it is a problem though very often that either one is trying to get the information or that the issues are ones that have been considered and are taking some time to get sorted out.
(Sir Richard Wilson) This is a rare case, the Robathan case, as I think the Ombudsman himself would acknowledge. This has not happened a great many times. It is not something done lightly. In a way the exception proves the rule. The fact that it took us so much thought and we did not do it lightly has underlined the general importance that the Government attaches to the Ombudsman's role and to accepting his recommendations.
(Sir Richard Wilson) I am afraid I do not understand the question.
(Sir Richard Wilson) No, not at all. Really not at all.
(Sir Richard Wilson) I am not sure I understand the significance of this.
(Sir Richard Wilson) No. In this case I know very little about the questioner. The issue that has taken our time, our attention and our thought has entirely been the issue of substance that arose on the exemptions and the interpretation of the exemptions and their application to this case. That has I think been 100 per cent of the effort and the focus that there has been on that.
(Sir Richard Wilson) The Prime Minister.
(Sir Richard Wilson) Yes. It is his guidance to his colleagues as to how they should conduct themselves within Government. I have, if I may say so, a small point on the PCA's report with which I would take issue. It says, "The purpose of the Ministerial Code is to clarify how Ministers should account to and be held to account by Parliament and the public." That is not my view of the purpose of the Code, which is that it is the Prime Minister's guidance to his colleagues as to how they should conduct themselves while in Government.
(Sir Richard Wilson) I suppose it is because I think that that personalises it in a way which is liable to become the focus of the questioner.
(Sir Richard Wilson) To be perfectly honest, it was a wish not to make this a political issue. My training is not to politicise these issues.
(Sir Richard Wilson) My experience of politics, which is obviously from the outside but is having worked in Government for nearly 36 years, is that this is how politics works. Issues arise, they are debated, they go through due process, and the political process is a way of allowing them to have their impact and I think that is what is happening here.
(Sir Richard Wilson) I cannot give you an absolute answer on that because I do not know all the Ombudsman's cases - maybe Sir Michael can - but it is in my experience very, very rare.
(Sir Richard Wilson) If it were to become more commonplace I think you would have to ask yourself why that was happening. In this case, I will not repeat myself, I have said why I thought it became an issue. I think it is a one-off event which is worth studying in the way we are doing here now to see what we should make of it. What I would say to you is that it does indicate a firm view that there are areas within government where there are confidential relationships that need protection.
(Sir Richard Wilson) Because they might be misunderstood and abused.
(Sir Richard Wilson) I had not addressed that issue. That is an interesting thought. I do not know the answer to that.
(Sir Richard Wilson) In our very pragmatic British way we only take these things one case at a time. I am not aware, as I said earlier, of any intention to change the Code at all. I think one should take this one step at a time. What I would read into it are the two things I suggested earlier. First, that there is a recognition here of the importance of protecting confidential relationships and privacy and discussion and some aspects of government; and second, the underlying issue, which is the availability of information in a form that could be released. Those for me are the two issues that I have learned from this.
(Sir Richard Wilson) I did not know that the Committee did not agree.
(Sir Richard Wilson) I do repeat that I have known the Ombudsman for some years and I have great respect for his judgment and one does it with regret and not lightly at all.
(Sir Richard Wilson) We operate in a political context - a pretty fierce, partisan political context - and the Code has an exemption for advice and confidential discussion (that is not an exact quote). All that has happened in this case is the Government took the view that that exemption did apply and Sir Michael took the view that it did not. That is all I can say.
(Sir Richard Wilson) Yes I do.
(Sir Richard Wilson) I have already given copious evidence to this Committee in relation to those events, so if you will forgive me I will not be drawn on that.
(Sir Richard Wilson) I think the question is hugely important and I do not know the answer, to be honest. What I do at the moment in my own office is, for future historians, I keep hard copy of any e-mails that I think are important
(Sir Richard Wilson) No it is not, as I think I rather betrayed earlier. It is a real concern that e-mails are a new, innovative way of doing business and the range of things they deal with varies from the genuinely trivial to something that is significant and of interest and ought to be preserved for the long term. I have a real worry about that.
(Sir Richard Wilson) I do not know that we do give advice on that at the moment. The people who deal with public records are very conscious about this. The truthful answer is I am not aware of giving advice about what you do and do not deal with in an e-mail.
(Sir Richard Wilson) The question is what guidelines you are going to lay down and what they should say. Let me hasten to reassure you a little. I think really important issues are still dealt with on paper and in correspondence and in submissions and minutes and so on. I do not want you to get into a misunderstanding that all government business is done by e-mail, because it clearly is not. But there is a category of discussion that takes place through e-mail, some of which I think would previously have been on file and which is important, for the kind of reasons that the Chairman was describing earlier, and is important for historians. I think part of our job is to ensure that history is also looked after and I think it will be important in regard to open government. We have given instructions on some aspects of e-mail because, for instance, under the Data Protection Act we are required by statute to delete personal information about people that is no longer required for the purposes of government. I would like to make that clear because there have been some malign interpretations on the destruction of e-mail. People do not appreciate that there is a legal obligation on government in regard to some e-mails. However, your question still remains. As e-mails grow in volume - and it is still a fairly recent problem because e-mails are still a fairly recent phenomenon in government - it is an issue to be addressed.
(Sir Richard Wilson) First, I think you are right, I think things which people would previously have said to each other they now say through e-mail. To some extent this is a generation thing but it is happening. The consequences are if there is a Data Protection Act application which is relevant to that, then those e-mails get disclosed. If open government as it develops applies to that e-mail and it is on file or still on the record then that, too, gets disclosed, so there will be more access to what people are "chatting around" than there has been previously and of course -
(Sir Richard Wilson) Well, I think it is part of the world into which we are moving.
(Mr Gieve) We are in a transition here but the experience of the last year is going to have a profound effect on what people put in e-mails, for obvious reasons.
Sir Sydney Chapman
(Sir Richard Wilson) Yes.
(Sir Richard Wilson) Yes, I do. I have worked for a great many governments over some years, since the 1960s, and I believe what I have said to you about the importance of respecting confidential relationships between ministers and between ministers and their advisers is something that every government I have ever worked for, and every minister I have ever worked for, would have understood and appreciated. I am absolutely confident that it is not some novel new doctrine of the constitution, that it is something that everyone I have worked for would have upheld in their turn. I do not think it is in any way contrary to the spirit of the code. On the contrary, I think it is consistent entirely with the spirit in which government has been conducted for many decades and I think it is a proper concern.
(Sir Richard Wilson) Of course. We work for ministers. People sometimes get surprised that civil servants work for the politicians. Someone commented the other day that we were being politicised because we were implementing the Government's manifesto. That is our job. Of course we respect and work for politicians, we work for the people elected by the public, of course we do.
(Mr Gieve) Yes. I do not think I spoke to Michael myself but my office spoke to his office several times, and in fact wrote to him. There was a patch running up to about this time last year when we got weekly conversations "Is it going to come in before the end of July" and we got in contact again in the early autumn. He finally lost patience and said "I am going to publish my report now".
(Mr Gieve) Some of the papers in Liverpool were associated papers, yes. Some of the papers which should have been on the file which were relevant to the case were being kept in an associated place.
(Mr Gieve) Yes.
(Mr Gieve) I am surprised about that. I did not know until today that the Ombudsman's staff had raised the matter. Until Michael wrote to me with the draft report I thought he had seen all the papers. When I heard that he had not we immediately wrote to him and said "Come back and see all the papers. I am sorry." I think there was lots of correspondence. It was really a scene of furious activity as you can imagine.
(Mr Gieve) I welcome that and I hope there will be from now on because particularly the case on these papers has shown up a gap. We have got a central coordinator in the Home Office who now knows all the Ombudsman's staff and I hope he will always act as a point of contact.
(Sir Richard Wilson) I do not know if John Gieve wants to say anything about his own Department. My general experience and understanding is that if a member of the Government has a conversation as part of business - not a private phone call - with somebody, it is monitored routinely by the private secretary.
(Sir Richard Wilson) When a minister phones a minister.
(Sir Richard Wilson) Someone listens in, yes.
(Sir Richard Wilson) Absolutely.
(Sir Richard Wilson) I think that is probably ---
(Mr Gieve) Normally the minister has two phones on his desk, one is a private line and one is a line through his office. If he gets his office to arrange a phone call, it comes through on that line, that is on official business. His private secretary will listen. On occasion 10 or 11 other people will listen too in his outer office, I have known that happen. These can be very public conversations. Some ministers actually object to this and they do not have private phone calls, even with their colleagues, put through their private office. There is some variation. Some use their private line more and others less.
(Sir Richard Wilson) Yes.
(Sir Richard Wilson) I know it.
(Sir Richard Wilson) I remember it, yes.
(Sir Richard Wilson) This is way off the Ombudsman's report.
(Sir Richard Wilson) Yes. I am just trying to remember. I was asked very urgently for advice about Peter Mandelson and the Hindujas. I rang up a number of people, permanent secretaries in a number of departments, asked them a number of questions, got some immediate information from them. I asked some further questions of them. This was on a Monday, was it not, yes it was on a Monday is my recollection. I put the work in hand. This was in the afternoon, fairly late in the afternoon. I got some information back very fast. Some information did not come until the next day. Then, actually, you will be pleased to know, I looked at the ministerial code and looked at the precedent book and, I cannot remember who I talked to within the Cabinet Office, and sat back and thought "What do I think about this?"
Then the next day in the car on the way in to work I started thinking about the structure of the minute. Through the course of that Tuesday my private office - not the present ones but their predecessors - were very close to me on this and I told them what I wanted to know and what information I wanted them to prepare and they really dropped everything and several of them spent their day devilling for me on getting the facts. It was quite a busy day. Through the day I was coming out, getting the latest news and trying to piece it together and drafting a minute. It was done in the interstices of the day. In the evening I had to go out to an official dinner and by the time I had set out we had virtually finalised it, subject to one piece of information, which meant my Private Secretary signed it rather than me, so by the evening I had done it. That is my best recollection.
(Sir Richard Wilson) Yes, there is a lot more in Hammond, but in essence ---
(Sir Richard Wilson) In essence, I think the minute stands up reasonably well.
(Sir Richard Wilson) I remember.
(Sir Richard Wilson) It is a subject which I have thought about frequently and I am never sure I know what the final answer is. It is a subject I think about not just because of the ruling under that exemption, but more generally because it is a real problem in government. This is not the only one, this is one that happens to be exposed to open view, but there are from time to time all sorts of cases where you are in the position where you have very rapidly to try and find out what the facts are because you have to handle it under very strong media pressure. One of the really problematic aspects of it is quite often you find that the first facts you get are wrong. It is just one of the experiences of life. You then start going over it, as we did here, and you start getting it into focus, but if you go public too quickly with the facts and then start changing them everyone will say there is a conspiracy. That is how it looks to people in the outside world, but actually in reality for anyone dealing with something which comes at you out of nowhere there is a period in which the information you are getting is not entirely accurate. I think there are real issues about how you get cool assessments and fair assessments of facts under the pressure of short timescales. There is no government policy I can give you on that but it is certainly something - to answer your question - that I do think about.
(Sir Richard Wilson) Thank you for those kind words. I appreciate them.
(Sir Michael Buckley) Can I add my thanks.