Examination of Witnesses (Questions 260-279)
SIR RICHARD WILSON GCB AND MR JOHN GIEVE CB
THURSDAY 11 JULY 2002
260. We will all speak for our own. We are asking about yours. Then Peter Mandelson discovers some more papers, papers that should have been departmental papers but he happens to find them in his private papers. Another cock-up, was it not? Then when Hammond did his second inquiry and came back to the whole thing again, again he says how extraordinary it was that this should happen and these other files should simply be found, but also goes on to say again about how extraordinary it was that there were no private office files for the Home Office at all in this area.
(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 papersperhaps 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.
261. Can I say just for the record that John Gieve said that it was an exaggeration in terms of what I was saying about the private office in the Home Office but if you look at Hammond mark two when he re-visits this again, he says quite clearly, "The substance of what I said in chapter 9"that is of Hammond mark one"is still therefore valid, particularly in relation to the Home Office where no private office notes have come to light".
(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.
262. Maybe we have squeezed the orange dry on this one but in the note that we have had from the Ombudsman he tells us that when the papers were examined by his staff in July 2001 there were no papers from Mike O'Brien's private office, not just a missing note about a telephone conversation but no papers at all.
(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.
263. These are important matters. If I am a Minister in the dock and I am subjected to an inquiry under the Code I should expect to have a record available of the evidence that can show whether I have broken the Code or not. The fact is that this did not happen and therefore we cannot be sure that justice was ever done.
(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.
264. I find your reference to Walt Disney very disconcerting because I spent the morning on the Communications Bill with one of the companies that was suggested as taking over Channel 3, so I shall look at that policy in a new light after that. What is the target for replying to the Ombudsman?
(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.
265. What procedures do you have for checking as the Cabinet Office that it has been adhered to?
(Sir Richard Wilson) We have a unit in Historical Records Office whose roleand I think most departments have thisis to be a point of contact and to monitor the implementation of that timetable in relation to particular cases.
266. Has any civil servant ever been disciplined for failing to meet that target?
(Sir Richard Wilson) I cannot tell you the answer.
267. Or have they been promoted?
(Sir Richard Wilson) I cannot tell you.
268. The point is, what procedures do you have in place for monitoring it and what steps do you take when it fails?
(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.
269. During the pre-legislative scrutiny on the Freedom of Information Bill one of the things that your officials and the Home Secretary, when he appeared before us, placed great store on when we were pushing on whether extra safeguards were needed on that Bill was that the Ombudsman's recommendations had never been gainsaid. Does this not prove that the safeguards that were requested in that Freedom of Information Bill were absolutely necessary?
(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.
270. If I had been asking that question is not the reality that has been borne out that I would have got the answer to the question because of where it came from that has led to you coming to his conclusion?
(Sir Richard Wilson) I am afraid I do not understand the question.
271. Has not the conclusion you have reached been as a result of where the question came from and who asked it rather than what the question was?
(Sir Richard Wilson) No, not at all. Really not at all.
272. So who asked the question had no consideration in your debate?
(Sir Richard Wilson) I am not sure I understand the significance of this.
273. Maybe Brian is referring to all these notes that we now keep finding on departmental files about how to answer questions depending upon who the questioner is.
(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.
274. Can I go back to the beginning of this? Who owns the Ministerial Code?
(Sir Richard Wilson) The Prime Minister.
275. It is his Code?
(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.
276. Why are you so reluctant to say that the Prime Minister played a part in the administration of the Code in this case? Clearly he did but you have been very careful not to say so.
(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.
277. And then it becomes as it were a political matter?
(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.
278. If then this question, which appeared to be innocuous but other people may think is potentially damaging, is raised and it cannot be answered under the terms of the Ministerial Code, nor can it be ferreted out by the Ombudsman nor, unlike what you said earlier, has there been a debate about this in the House, it has not been possible to make progress in that way, then we have hit the buffers. Those forces who wish to investigate this matter can go no further. This is as far as they go.
(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.
279. One of the points of the Ombudsman, was it not, was to establish somebody who was in the middle of this who was regarded as a sensible and fair-minded person who would be able to say, "I think this is fair" or "I think this is not fair". That is essentially what the Ombudsman is meant to do. But on this occasion, and I think it is for the first time in a case of such seriousness that the two systems have come head to head, and one is saying, "Give in", and the other is saying, "Won't".
(Sir Richard Wilson) I cannot give you an absolute answer on that because I do not know all the Ombudsman's casesmaybe Sir Michael canbut it is in my experience very, very rare.