Examination of Witnesses (Questions 208-219)
SIR RICHARD WILSON GCB AND MR JOHN GIEVE CB
THURSDAY 11 JULY 2002
208. Can I call the Committee to order and welcome our witnesses this afternoon. Particularly welcome is our habitual friend, Sir Michael Buckley, the Ombudsman, and he will assist us in a moment. Welcome also to Sir Richard Wilson, also our habitual friend I think, and John Gieve, Permanent Secretary at the Home Office. Thank you very much for coming and helping us with these inquiries into the state of play in relation to the Code of Practice and Access to Government Information and Ombudsman's reports arising therefrom. I am going to ask Sir Michael Buckley to introduce the session.
(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 rejectedthe 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 staffsome 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.
209. Thank you very much indeed, Sir Michael. I should perhaps say at the outset that it is not the job of this Committee to investigate the content of the cases investigated by the Ombudsman but to look at the Ombudsman dimension of these cases. Having said that, can I ask you, Sir Michael, before we leave you, one thing though? When I look at your report on the Hinduja case, if I may call it that, when you finally did get all these papers, such as they existed, from the private offices after all the difficulties that you had had, and then on the question of this telephone conversation which you had been approached about in the first place, you say, having seen all this, that it does not constitute firm evidence either that there was or that there was not a telephone conversation between the two Ministers. "From my examination of the papers I believe that the entirety of the evidence still remains inconclusive ..." Why then did you as it were gratuitously go on to say, "... but I conclude, as did Sir Anthony Hammond, that it is likely on balance that Mr Mandelson did speak directly to Mr O'Brien.", when you emphasise that there is no record of this at all?
(Sir Michael Buckley) I was in something of a cleft stick, Chairman. On 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.
210. I wonder, if you had not added that additional bit, which I call gratuitous, if the commentators would have said, "Ah, but this is not the same as the conclusion of the Hammond inquiry. The Ombudsman has not drawn the conclusion that Hammond drew", and therefore, in order to avoid that happening, why you thought you ought to add that sentence?
(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.
211. Does that mean that you assent also to the Hammond conclusion, you having no doubt gone through all these papers, that nothing improper occurred?
(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 fell to be disclosed.
212. All I am pressing you on is, having assented to one of the Hammond conclusions, did you not also want to assent to the other Hammond conclusions?
(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.
213. Thank you for that. Let us for a moment stay in this territory before we extricate ourselves from it. Sir Richard, you are the guardian of these things, propriety. Now that the dust has settled and time has moved on, can you tell us why Mr Mandelson had to resign?
(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.
214. No. I was just hoping you might in your demob-happy condition and, having yourself given your own report to the Prime Minister on this matter and being the great adviser on the Ministerial Code, and now having seen the Hammond inquiry, now having seen the Ombudsman inquiry, matching the Code up against these two inquiries, want to draw a conclusion about the state of the Minister concerned.
(Sir Richard Wilson) I think I rest on my last answer, sir.
215. Let me then turn to the substance of the matter. When we get the Ombudsman saying what he has just said, and when he says, as he does in his annual report, talking about these unhelpful developments inside Government as far as information is concerned, that if they are not reversed they will raise serious doubts as to whether it is appropriate for the Ombudsman to continue to investigate complaints under the Code, in other words, "I shall have to suspend my whole activities under the Code if this kind of approach in Government continues", is that not a somewhat alarming stage to have reached?
(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 Collcutt 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.
216. Indeed. Let us just say with the Robathan case for a moment because, as you said just now, the fundamental importance of that case was that, quite uniquely, when the Ombudsman came to a conclusion,and his authority rests upon having his conclusions accepted; we have always prided ourselves on that being the way we do itand he went through the procedure, he tested the claiming of exemptions under the Code and came to a conclusion that it was not proper to withhold this information, and therefore recommended that it should be disclosed, and the Government refused.
(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.
217. We will come on to that in a moment.
(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.
218. No-one dissents from your description of the need for balance, but that is precisely what we charge the Ombudsman with doing under the Code, making that kind of balance and exercise in testing the exemptions and seeing where the balance should lie. He went through the exercise and found in this case that the balance should lie in favour of disclosure but, as you say, it went through the system, not just the Home Office, which was in the frame. Did it go to the Prime Minister?
(Sir Richard Wilson) I think he says that himself in his report.
219. So it went to the Prime Minister?
(Sir Richard Wilson) This is something which was being considered at the highest level, yes.