Examination of Witnesses (Questions 280-299)
SIR RICHARD WILSON GCB AND MR JOHN GIEVE CB
THURSDAY 11 JULY 2002
280. Does something need to be done about that? I heard the answer you gave earlier. What would happen if this does become more commonplace? What do you suggest?
(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.
281. Because they might be misunderstood?
(Sir Richard Wilson) Because they might be misunderstood and abused.
282. Can that perhaps become part of the Code? Can that somehow be formalised or is this case sufficient to inform us for the future?
(Sir Richard Wilson) I had not addressed that issue. That is an interesting thought. I do not know the answer to that.
283. Most people find this difficult and feel that the long stoppage of the Ombudsman on this occasion in such a serious matter (which I think is unique) has not worked and are anxious that politicians, being as they are, will wish to use this case for developing their secret ways?
(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.
284. But the Ombudsman and the Committee do not agree with it.
(Sir Richard Wilson) I did not know that the Committee did not agree.
285. Maybe we do; I feel that we do not.
(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.
Chairman
286. Is it not alarming that you have to tell us about the political context in which these decisions finally have to be taken, men of the world that we are? The Ombudsman is quite clear about this. In his Annual Report he says: "It has become apparent that, in some cases, departments are resisting the release of information not because they have a strong case under the Code for doing so but because to release the information could cause them embarrassment or political inconvenience." The whole point of having a Code and an Ombudsman to police the Code is to make sure that those are not the considerations that enter into adjudications.
(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.
Kevin Brennan
287. I was very interested in what you said earlier on, Sir Richard, about e-mail as a means of government communication at the moment. Do you surf the net yourself and use e-mail?
(Sir Richard Wilson) Yes I do.
288. We were discussing earlier on this morning the difference that it has made. You used the word "ephemeral", which is a word Elizabeth France used this morning to describe some e-mails. How on earth do you distinguish between what is an ephemeral e-mail which does not form a part of the public record and one which does? Would one about "burying bad news" be ephemeral or one that forms part of the public record?
(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.
289. The question remains.
(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
290. You have got a paperless office?
(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.
291. What advice do you give to your civil servants about what is or is not suitable to be communicated in an e-mail?
(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.
292. Do you not think the Civil Service or the Government will get into trouble again in the future unless there are some guidelines available and some pretty firm clarity from the management on this issue?
(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.
293. Is it not just the case that some things that might have previously been put on file in writing are now in e-mails which may get deleted or be described as ephemeral, but that some other types of communication, which Sir Richard Mottram described as "chatting around an issue", take place through e-mail these days, so that a category of conversation that took place within government is now on the record which was not on the record? What are the implications of that?
(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 —
294. It is worrying, is it not?
(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
295. Sir Richard, you talked about the ministerial code, is there not a preface to that or an introduction by the Prime Minister which says, if my memory serves me correctly, he expects all ministers to abide by the spirit as well as the letter of the code?
(Sir Richard Wilson) Yes.
296. Do you think really, on reflection, that the joint ministerial reply or decision not to give an answer to Mr Andrew Robathan's question was within the spirit of that ministerial code?
(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.
297. It was in the end, just for the record, a political decision made?
(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.
298. That is a very helpful answer. I have just got two questions for Mr Gieve. During this seven month period before replying to the draft sent to you by the Ombudsman—and I am talking about the Robathan case—did you have any contact with Sir Michael or would it have been improper to have any contact? What I am trying to say, surely as a matter of courtesy you should have been in regular contact with them explaining why the reply to the draft was going to take so long?
(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".
299. Just wanting to clear, again, in my own mind, you were talking earlier about how these papers, some were held in Liverpool and some were in the Department and so on, those papers at Liverpool were they termed the "associated folders"?
(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.
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