Examination of Witnesses (Questions 160
- 176)
TUESDAY 15 JUNE 1999
SIR JOHN
KERR KCMG
160. So you all got together and you are all
going to abide by the new ruling. Now, you made an interesting
point there. You said: "The document must be returned to
the Minister on whom the ruling is binding." You may not
have meant to say that, but why Ministers, and why is it not binding
on you?
(Sir John Kerr) First, your summary of the Whitehall
process is, if I may so, slightly unfair. I decided what we should
do in the Foreign Office: that we should interpret this as binding
on everybody in the Foreign Office. I was aware that the promulgation
of that rule would set a precedent, which would require the rest
of Whitehall to do the same. So I told all my Whitehall colleagues.
I first told the Cabinet Secretary that this is what I proposed
to do. He suggested that I put it to them. I put it to them.
161. So you are batting for them all today,
are you not?
(Sir John Kerr) I am merely reporting that this discussion
has taken place. I have reason to believe that they will all follow
the decision I have taken for the Foreign Office.
162. That is very encouraging.
(Sir John Kerr) I do think it is important actually,
Mr Williams. I think it is important.
163. I am grateful for that. We have established
that they should have all alerted you. We have established you
think it important and that you do not want it to happen again.
So will it be understood, do you think, within the Civil Service,
as a result of this high level discussion you have had in the
Permanent Secretary's Cabinet, that, in future, any civil servant
who, in any way, is complicitous in the process of the leaking
of a document and not immediately returning it, that this will
be conceived as a breach of Parliamentary privilege and, if it
were, would that affect their career?
(Sir John Kerr) Yes, it would affect their career.
It would certainly be a breach of the Civil Service rules and
Diplomatic Service rules. We rightly state in our rules that it
is a disciplinary offence not to respect them.
164. You tend to write it down, do you? This
is one of the most important things that could emerge.
(Sir John Kerr) Absolutely, Mr Williams, I entirely
agree. I mentioned that I had already circulated an informal instruction
which was in fact covering a copy of your Chairman's letter. I
thought I should not do a formal instruction—though the
informal instruction is binding—until I saw what this Committee
had decided.
165. Does that mean that it will mean the amendment
of the existing rules because I thought that it was already in
the existing rules?
(Sir John Kerr) It will mean the amendment of the
existing rules, yes.
166. Can we have a copy of the existing rules?
(Sir John Kerr) I have been through them at length,
Mr Williams.
167. I am only asking for a copy.
(Sir John Kerr) I can find nothing in them which deals
with this eventuality, just as I can find nothing in Erskine
May that deals with this eventuality. That is why I am saying
that I do think we are turning a page and doing something new
here. I also think that it is absolutely the right thing to do,
principally because I do think the poison of leaks is damaging
on both sides of Whitehall, and I do think that the deterrent
effect on the potential leaker of knowing that the whole public
service will be bound by this rule should be very considerable
and very helpful.
168. What you have just said will, I am sure,
be read. I do mean this genuinely. It is a matter of great importance
and it really does alter possibly the whole environment in which
the select committees operate and in which the Civil Service responds
to the select committees. Let me then cover what looks to be a
possible gap. It will cover the Civil Service. Is a political
adviser a civil servant?
(Sir John Kerr) Yes, political advisers are short-term
contract civil servants.
169. So political advisers will be equally covered
by the rules that you introduce. So we could end up in a situation
where anyone in breach in future is in breach of your code, and
therefore subject to disciplinary action within the Civil Service,
and is in breach of our code and therefore is in breach of parliamentary
privilege which again could affect their careers. That is clearly
understood, is it?
(Sir John Kerr) Yes, following the Chairman's ruling.
Mr Williams: Thank you very much, Chairman.
Chairman
170. I think that is most welcome, that you
have told us that you will be seeking to amend the rules, and
that is something we find very satisfactory. I do not think there
is anything more for us to say this morning but just to thank
you for coming along and answering our questions.
(Sir John Kerr) Thank you, Chairman. Could I say that
not only will we be seeking to amend the rules but we have the
agreement of the permanent secretaries in Whitehall that the rules
shall be amended. Could I say two other things, Chairman, I apologise
for delaying the Committee. It was dragged out of me that I had
a wicked past in the Treasury and I admit it. I found in the Treasury
a much closer acquaintance with the ways of the House. I was there
for some years in a public expenditure command and subsequently
as private secretary. I found a much closer acquaintance with
the ways of this House than there is in the Foreign Office. I
was abroad from 1990 to 1997 and came back and found the Foreign
Office rather distant from the House. I think this is principally
because the Foreign Office does very little legislation and, our
people are often abroad and, therefore, a little remote. Historically
we do not have as many dealings as do the other great central
departments with the every day business of the House. The Legg
Report into Sandline, and the Foreign Affairs Select Committee
Report into Sandline, rightly criticised the quality of some parliamentary
briefing prepared inside the Department, and it deserved the criticism.
We took action last summer to try to put that right. I have continued
to think that we must try to do something more to narrow the gap,
and the Foreign Secretary has accepted my proposals to strengthen
our Parliamentary Relations Department, upgrading jobs there,
including that of the Head of the Parliamentary Relations Department.
I am in touch with the clerks here with a view to obtaining the
secondment for two or three years of a senior clerk to be Head
of the Parliamentary Relations Department of the Foreign Office.
I believe my diplomacy may succeed, and I think such a secondment
may be made. I do not know who I can look forward to getting,
but whoever he is I think he will do us a great deal of good.
I do think that the gap is unnecessarily wide and can be narrowed.
I see somebody coming from a background as a parliamentary clerk
to head up our Parliamentary Relations Department beefing up our
every day handling of routine parliamentary business but, much
more important, acting as a kind of consultant in the Foreign
Office, consulted by those whose work should have a parliamentary
dimension and enlightening those who have not spotted that it
has a parliamentary dimension, in the same way that the Head of
our News Department has a consultancy role on the making of policy
and not simply on its presentation.
Mr Williams
171. Will that be an appointment that you will
make or that the House will make?
(Sir John Kerr) I hope the House authorities will
lend me someone for three years. The appointment will be made
by me but I would not expect them to send a wide slate of candidates.
I suspect that who we get may in some way be determined more by
the clerk than by the permanent secretary. By injecting this consultancy
function I would like to try to make it clear to the Office that
parliamentary work really does matter a lot. I would like to see
more good people choosing to work in the Parliamentary Relations
Department as a useful step up in their career. That was the first
point I wanted to make. The second point was about the Sandline
Report and my own eccentric reaction on seeing its references
to me. Last summer there were some fairly heated passages of arms
between the Foreign Affairs Select Committee and myself, principally
I think on a couple of points. One, that the Government had set
up the Legg Inquiry in parallel and wished Legg to report, setting
out the facts, before the Select Committee interviewed everyone
and saw the documents. That was seen by many in the Select Committee
as unwise and by some in the Select Committee, I think, as potentially
a cover-up, which actually it was not. Secondly, there were some
on the Select Committee who seemed keen to prove that ministers
must in some way have been involved and for whom the Legg first
conclusion must have come as a disappointment. The Legg first
conclusion was that "No minister gave encouragement or approval
to Sandline's plan to send a shipment of arms into Sierra Leone,
and none had effective knowledge of it". That is true. What
I am saying is that in the summer term of last year I made myself
extremely unpopular with the Select Committee. I think they got
their revenge, I think the messenger got shot in the end. At the
time I remember some cheerful colleague reminding me of stout
Horatio keeping the bridge and how "the ranks of Tuscany
could scarce forebear to cheer" or in this case, he said,
to jeer. Perhaps that was about right. My serious point, Chairman,
is this: I have had 11 hearings, before this one, with committees
of this House, some of them with the Public Accounts Committee
(and that was why seeing Mr Williams here put the point in my
head) and some of them with the Committee on the Parliamentary
Commissioner for Administration. By definition such debates are
critical, they are very uncomfortable. The permanent secretary
spends one, perhaps two weekends working very hard on the documents
and grills everybody, it is going to be serious stuff. But it
takes place on the basis of an agreed statement of fact by the
Comptroller in the case of the Public Accounts Committee and by
the Ombudsman in the case of Mr Morgan's Committee. I think one
of the reasons why the wells became so poisoned with the Foreign
Affairs Committee last year was that there was no agreed statement
of facts until the Legg Report appeared. If that is to be the
basis on which one does business I think one does need to think
very hard about whether there should not be a Salmon Letter procedure.
If a man does not know what is the charge that is to be made against
him, and in my case I was charged when the report was published
this year as having failed in my duty to ministers, a charge of
which I was found guilty but of which I had not been made aware
during the process, there had been no charge sheet. I am tempted
to recall Denning in 1976: "If somebody is to be adversely
affected by an investigation and a report, he should be told of
the case against him and afforded a fair opportunity of answering".
I think that is why the Salmon Tribunal's procedure was set up
and why, in cases like Scott or the BSE Inquiry now, those who
are in the hot seat are receiving in advance of publication a
text of the charge against them and invited to comment on it.
If they can make a defence, okay. I would hope that last year's
episodes are safely buried and behind us. I think that lots of
lessons have been learned. The report that the Select Committee
produced contained many good things, but I do think that the procedure
which generated such a high temperature perhaps does require further
thought. And it is perhaps the temperature generated by that procedure
which explains why mistakes were made when the leak of the eventual
report of the Select Committee turned up in the Foreign Office
in January 1999.
Mr Williams: Can I make a point, Chairman.
You have been Chairman of the Public Accounts Committee and of
this Committee; we served on the Public Accounts Committee together
for many years. Sir John, much of what you have said today has
been very useful but I think the last bit is based upon a misunderstanding
of the select committee system of this House of Commons. The PAC
is unique in that it is retrospective and the agreement with the
Department is factual, it is on the facts.
Mr Campbell-Savours: Not the PAC, the
NAO.
Mr Williams
172. Between the NAO, that is right. Between
the National Audit Office the agreed report is an agreement on
the facts and where they are not agreed it says "in the view
of the Department" or "in the view of the NAO",
that sort of thing. Because it is retrospective, because it is
not policy, it is able to operate on that basis, there is no urgency.
The other select committees are completely different, they are
policy committees, they are contemporaneous, they are investigating
issues as they are developing. It would literally ossify the departmental
select committees if one had to have the equivalent of an NAO
type report before a select committee could question civil servants.
I just want to put that on the record.
(Sir John Kerr) Could I comment on that very briefly.
I think the same procedure applies as for the Public Accounts
Committee pari passu for Mr Morgan's Committee. I agree
that it should not apply to nine-tenths or perhaps 99 per cent
of the business of a select committee, which is indeed to grill
the Government on policy as it happens. But the arms were moved
to Sierra Leone in February 1998. I had 14 hours of hearings with
the Select Committee starting in May 1998. The usurpers had been
thrown out of Freetown in February 1998. Actually they had been
thrown out before the arms arrived: they had nothing to do with
it. I spent much of the summer term studying the interstices of
history, of what had happened here. I had very few hearings with
the Foreign Affairs Select Committee last year about foreign policy:
actual, real, what is going on, what we should do today, what
we are doing tomorrow. Instead the exercise was retrospective.
With great respect, Mr Williams, it was very like the Scott Inquiry
or very like the BSE Inquiry. That was why I suggested if a select
committee decides that it wishes to do a retrospective investigation
designed to attribute blame the House might want to consider whether
some of the procedures thought appropriate by the House for the
Public Accounts Committee or the Committee on the Ombudsman, or
thought appropriate by Salmon in his report on tribunals, thought
appropriate for Scott or BSE or whatever, might apply. It is a
very small constituency, a very small proportion of the business
of select committees of this House.
Mr Campbell-Savours: Can I just come
in on this point.
Chairman: I do not want to get into too
much of a philosophical discussion about the roles of the different
types of select committees. What we are really after here is to
find out just what happened in this particular case and draw conclusions
from it.
Mr Campbell-Savours
173. It is just that I think this is a very
interesting issue that has been raised. We have a senior civil
servant from Whitehall saying that he believes there must be a
means by which civil servants, in your case criticised, should
have the right in very rare circumstances to defend themselves
against the actions of Parliament.
(Sir John Kerr) Against?
174. Against the actions of Parliament. Against
a statement made by Parliament in a select committee report.
(Sir John Kerr) I am anxious, Chairman, that select
committees should be enabled always to report in full knowledge
of the facts, having had all the facts explained to them.
175. Can I just put it to you, and I leave you
with the thought, that Parliament is entitled to get it wrong.
(Sir John Kerr) Absolutely, I entirely agree.
176. I am not saying it did get it wrong but
is entitled to get it wrong. You, as a Foreign Office official,
have a right in the Foreign Office response to that report to,
in your view, correct Parliament where you believe it has got
it wrong. That is how the rules exist at the moment. I think they
work extremely well. It is just that in this case you may feel
yourself that you have been a victim but you are a big man with
big shoulders I am sure.
(Sir John Kerr) I accept Mr Campbell-Savours' point.
Perhaps I was out of order.
Mr Campbell-Savours: Not at all, it is
interesting.
Chairman: I think the important thing
at this stage is to see that we produce a report which perhaps
the Foreign Office as well as this Committee and as well as the
House of Commons might come to accept as being the kind of response
to this particular investigation. I must thank you for coming
and for answering our questions today. Thank you, Sir John.
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