Examination of Witnesses (Questions 220-239)
SIR RICHARD WILSON GCB AND MR JOHN GIEVE CB
THURSDAY 11 JULY 2002
220. So it went to the Prime Minister. There is no wriggling out of this one. It went to the Prime Minister and the Prime Minister said, "No, we are not going to do it."
(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.
221. Just remind ourselves, it was about declarations of interest under the Ministerial Code, but it was not asking for the substance of those declarations. It was simply asking for statistical information about numbers of declarations. That was the argument that the Ombudsman explored and came down on that very narrow ground in favour of disclosure, and even that narrow ground was resisted.
(Sir Richard Wilson) Yes, because this is the area of disagreement.
222. Indeed it is.
(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.
223. Yes, but of course when we move to statute in this area these will not be matters that will be finally decided at, as you call it, the highest level. They will be decided by a tribunal, they will be decided through a process, so it is only for a short time that you have got this ability to decide at the highest level. I just had a dark thought in listening to you which I thought I would ask you about. There is no-one at the highest level who might have a thought which said, "This is causing us a lot of grief, all these investigations, prodding around amongst the Ministerial Code and all that. Why do we not just take all that stuff out of the Code provisions altogether and restrict its scope so that we do not get these kinds of difficulties, for a few years at least?". Nobody would be having that kind of thought, would they?
(Sir Richard Wilson) I would have to counsel you against dark thoughts, Chairman.
224. Counsel or reassure?
(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.
225. But no-one following Sir Michael's inquiries is coming to a conclusion which says, "This difficulty has to be avoided in future by making some alteration to the Code to stop him getting into these kinds of areas"?
(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.
226. Why did it take you several months to reply to the Ombudsman?
(Sir Richard Wilson) Which case is this?
227. This is the Robathan case. Why did it take seven months to get back to the Ombudsman? What were you trying to do? What were you trying to fiddle? Dark thoughts?
(Sir Richard Wilson) I will counsel you, sir, against dark thoughts too.
228. We all have them. That is what we are here for: dark thoughts.
(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.
229. Mr Tyrie.
(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.
230. Are you aware that if any department came back and gave the information in this case? Did any Minister come back and say, "We can give you information", or did they all just say, "Sorry"?
(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.
231. Which one came back?
(Mr Gieve) The Department for International Department.
232. Clare Short?
(Mr Gieve) Clare Short, yes.
233. And the sky did not fall in, did it?
(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.
234. We do know that. You can tell us but we can work that out for ourselves.
(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.
235. If I can come on the point that the Chairman has made, then it went all the way up to the Prime Minister and he said, "No, this is not a good idea", but one of his Ministers had already said, "Yes, I will supply the information; I am happy, nothing to hide". Why then does the Prime Minister turn round and say no?
(Sir Richard Wilson) I do not think I can add to anything you have said other than what I have already said, which is
236. Are you not setting a dangerous precedent? Is there not now a precedent being set for Prime Ministers in future to say, "Well, actually, no. The Robathan case of 2001"?
(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.
237. I think it is quite simple. Everything in this place is set in precedent. It is all tradition. When you have one Minister saying, "Yes, I will give this information, I have no problem with that", but you then go to the Prime Minister himself to make a decision and the Ombudsman is then told, "I am sorry. We are not going to supply the information", when the Ombudsman has said quite specifically in relation to this case that the information should be disclosed. There are things like the Freedom of Information Act. You are undermining the basis of what we are trying to achieve for open government. Do you not think there is a fundamental problem here? There is a gap between what you are saying and what we are saying as MPs who are trying to find information on behalf of people?
(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.
239. Let us come back to the Ombudsman's position. The Ombudsman was asked to investigate it. Having read the background to it, all the way through there was delay, pushing up the ladder, "Let us get together as a group and see what we do". One Minister came back and said yes, it goes to the Prime Minister. What is the point of having an Ombudsman? He has got to be able to investigate and get information out when he feels there should be disclosure. Is the Ombudsman not being undermined as well?
(Sir Richard Wilson) No, I really do not think so. Look at this occasion. This occasion is not undermining the Ombudsman.