Select Committee on Standards and Privileges Written Evidence


50.  Written statement, on behalf of Mr Iain Duncan Smith, by Mr Richard Gordon QC, 4 February 2004

Submitted by Richard Gordon QC

Re: Complaint against Mr Iain Duncan Smith MP

Part 1—Introduction

1.  The purpose of these submissions is twofold, namely to

i)  enable the Parliamentary Commissioner for Standards('PCS') to understand fully the concerns of Mr Iain Duncan Smith ('IDS') in respect of the complaints made against him by Mr Michael Crick ('Crick') and,

ii)  analyse the evidence with the suggested approach that should be taken to it by the PCS.

2.  In essence, and foreshadowing the points developed below, three main propositions are advanced:

i)  The several complaints put forward by Crick are without foundation and there should be a recommendation that they be dismissed.

ii)  Where credibility is in issue the PCS should reach a clear conclusion as to whether the truth is being told in fairness to IDS in order to vindicate his public reputation.

iii)  The inquiry process[89] has operated unfairly to IDS. That has two consequences. The first is that the systemic defects in the process should be recorded and emphasised in the PCS' Report to the Committee on Standards (CS).Secondly, however, there should be a separate recommendation for dismissal of the complaints on the basis of that unfairness alone.

3.  Our submissions are structured as follows:

i)  Part 2 summarises the relevant background and analysis by reference to certain subject headings, namely: (a) the complaints and the shifting nature of those complaints, (b) the media disclosure aspects and their significance to the inquiry process, (c) the difficulties of addressing the complaints as they evolved, (d) the PCS' full inquiry, (e) Vanessa Gearson ('VG'), (f) Mark MacGregor ('MM'), (g) why the complaints should, in any event, be dismissed on due process grounds.

ii)  Part 3 addresses those aspects of Crick's complaint that relate to work performed by IDS' wife.

iii)  Part 4 addresses issues relating to the basis upon which Christine Watson ('CW'), Annabelle Eyre ('AE') and IDS' wife were paid.

iv)  Part 5 sets out our Conclusions.

Part 2—Relevant Background and Analysis

Crick's complaints and their shifting nature

4.  The original, and sole, complaint filed by Crick was that, between September 2001 and December 31 2002, IDS had paid his wife out of Parliamentary funds when she had done no work ('the first complaint'). Although the merits of the first complaint will, of course, be addressed since it has never formally been abandoned it is now clear that it is, and was, wholly without merit.

5.  That is why, we suggest, it has been elided with the quite separate complaint ('the second complaint') that whilst Mrs Duncan Smith ('BDS') may have done some work that work did not justify the payment that was made to her. Even the second complaint must (as revised by Crick) be sub-divided into an alternative complaint that either: (a) the tasks performed by BDS were minimal in character and so should not have been paid for at all or that (b) such tasks did not amount to 25 hours a week (see PCS' letter dated October 20 2003 to IDS).[90]

6.  In fact, the logic that gives the lie to the first complaint also erodes the second. The reason why the first complaint cannot be sustained is that all that Crick and his witnesses can say is that, at most, they did not see the fruits of BDS' work. However, none of them goes so far as positively to assert that she did no work. But if that is right it follows that the only positive evidence is that BDS did work and is that of BDS herself and the witnesses that support her evidence. If that is right and in the absence of a finding by the PCS that each and every one of them is lying, it must also follow that the quantum of work about which BDS and those witnesses give evidence is also to be accepted. So, the second complaint by Crick (and its sub-divisions as earlier set out) is as ill-founded as the first.

7.  Nonetheless, at the time of making his complaint Crick did not, of course, know the evidence that was to come. His first complaint was based on conjecture and surmise and when, on the same day that he made the first complaint, rebuttal evidence began to emerge then—for all practical purposes—he abandoned it.

8.  What happened then was that Crick developed an entirely new series of allegations. Not only did he expand upon, and diversify, his 'no work' allegations against BDS (see above) he also suggested that any work that she did was party political in nature and so did not qualify for payment from IDS' Parliamentary allowance ('the third complaint'). Such allegation, to stand independently, presupposes that BDS did do the work that she and her witnesses say that she did but that it was paid from an inappropriate source. Again, however, this allegation falls away logically once it is appreciated that neither Crick nor his witnesses can say what work BDS was doing. Only BDS and her witnesses can do so. And if (the same premise as above) her evidence and her supporting evidence is truthful then the nature of her work did qualify for a Parliamentary allowance.

9.  Finally, Crick complained of the source of payments in respect of the work performed by CW and AE ('the fourth complaint').This was, as Crick himself recognised, a very different type of complaint from the first three involving, as it did, clarification of the relevant Parliamentary guidance. Whilst recommendations from the PCS lead to valuable guidance for the future it is submitted that there is no factual foundation for a finding of culpability in relation to payments made by IDS in respect of CW and AE (or BDS).

Media disclosure and effect on inquiry process[91]

10.  It is an unhappy feature of these complaints, and one that we understand to be fully appreciated by the PCS, that it is clear that the complaints as they evolved and the material detail of the case alleged against IDS were quite deliberately 'leaked' by Crick and others supportive of his position to the media prior to, and throughout, the inquiry. In particular, IDS identifies MM and VG as among Crick's primary sources and neither MM or VG deny that is the case (paragraphs 15, 26-28 IDS' 2ndWS).[92]

11.  Appendix 1[93] to these submissions contains over 30 articles that have appeared in national newspapers from about the time of the complaint to the present day. This disclosure has continued to the time of drafting these submissions the latest example being an article published in the Sunday Telegraph on 25 January 2004. Crick has himself written an article in the Sunday Telegraph about the complaint and has during the course of these proceedings appeared on the BBC's 'This Week' programme to discuss the inquiry. These leaks have continued despite the fact that each witness has been told by the PCS not to discuss their evidence. Further material can be produced should the PCS wish to see it.

12.  As can be seen from this exemplary material, at the very start of the process Crick gave details of the dossier collected by him and the evidence that he was about to submit to the PCS in an article written in the Telegraph on October l2 2003.Subsequently, he gave further details of evidence being given to the PCS by others to the press.

13.  CW's memorandum to VG is described in an article in the Daily Telegraph of October 15 2003 as being 'a leaked memo prepared by the secretary who claimed she was "solely" responsible for running his office'. The content of this memorandum is extensively cited in an article published in The Times on the same day. In an article on the following day (October 16 2003) in the Daily Telegraph references are made to the content of emails and memos that it is said VG intends to hand over to the PCS.

14.  In the light of this, and other, material the public was made intimately aware of the nature and detail of the case being launched against IDS as it unfolded and progressed. The fact of such disclosure is and was, of course, entirely contrary to the published procedures of the CS and PCS. It constituted a contempt of the House. That elementary fact must have been known to Crick and others (as, for example, VG) who were—on the face of the articles themselves—at least ostensibly responsible for disclosure of various matters referred to therein.

15.  The significance of that type of disclosure in the present context cannot be emphasised enough. The context of complaints made to the PCS will necessarily differ. Publicity will always be strictly forbidden but its damaging effects will by no means be the same in each case.

16.  In the present case the effect of the disclosures deliberately orchestrated by Crick and others was so obviously damaging as not to require detailing. However, it had at least three consequences:

i)  It has proved highly damaging to IDS' public reputation. This is a consequence anticipated in the PCS published Procedure Notes. In the instant case the material was used as ballast for, and as part of, a concerted campaign to remove IDS from his position as Leader of the Opposition. This was, of course, a consequence of which Crick and others must have been fully aware. Indeed, Crick states his belief that it was the very object towards which some of his primary sources were colluding (Sunday Telegraph 12 October 2003; see also letter from Reynolds Porter Chamberlain to PCS dated 13 January 2004).

ii)  It has placed IDS at an incalculable disadvantage in defending himself in this inquiry. This is particularly the case because despite the actions of others he and his witnesses did comply with the procedural rules and therefore could not respond to disclosures publicly. Putting one's case before the PCS alone is one thing. It is quite another to have to defend oneself against public opinion. The calm and rational disputation of evidence which would have been available to IDS and his wife had the inquiry really been conducted in private was not available to him. In reality, much of the inquiry was not conducted in private. It was conducted in the glare of public debate. That is not in any way the fault of the PCS but it is an inequality built into the process. The strain affected many witnesses and they may not always have been able to present their evidence as effectively as they might otherwise have done.

iii)  Finally, the effect of the inquiry being conducted under the public spotlight has put unfair pressure on the PCS himself. He will, undoubtedly, have felt under additional strain to carry out the fullest possible inquiry. However, there is the very real danger that—in order to fulfil public expectations—the inquiry has now become impossibly wide-ranging. This aspect has particular resonance in respect of VG's evidence. This has, regrettably, become a trial within a trial. Whilst (see below) VG says very little in substance that has any bearing whatever on the true issues she has made highly damaging allegations about the conduct of IDS which have been publicly aired whilst still forming part of the inquiry process and to which IDS has (mindful of public opinion) had to respond in testimony.

17.  So, properly analysed, media disclosure in itself has made it impossible for IDS to have a hearing that conforms to the legal notion of natural justice. Elementarily, a hearing must not only be fair, it must also be seen to be fair.

18.  This appears to be an issue for the CS. In terms of process there seems to be no mechanism for preventing media disclosure in an inquiry of the present kind. It is noted, and accepted, that the PCS has deprecated the disclosure that has occurred and intends to raise it before the CS. However, the mechanism that the PCS proposed at the time (see his letter to Reynolds Porter Chamberlain dated October 23 2003: "…if your client believes that the behaviour of anyone involved constitutes a breach of the privileges of the House, he may raise the matter by way of a privilege application to Mr Speaker" is, we suggest, inadequate in terms of procedural protection available to IDS from the person responsible for the conduct of the inquiry.

19.  Further, the lack of systemic protection for IDS from the media leaks that have been engineered by the complainant, Crick et al, also means that he has had an inquiry in violation of the principles of natural justice. That is why, we suggest, the PCS should—aside from commenting on this important aspect of the current inquiry process—make a specific recommendation to the CS that the complaints should be dismissed on this ground alone.

Difficulties of addressing complaints as they evolved

20.  Crick's first complaint was made by letter to the PCS dated October 12th 2003.It contained the positive assertion (as opposed to what is now, at best, suggested inference) that '[w]e have uncovered considerable evidence that she [BDS] did not, in fact, work for him during this period, which I understand is contrary to House of Commons rules.' The letter was accompanied by a number of enclosures including material from three anonymous sources.

21.  The PCS notified IDS of the first complaint by letter dated October 13th 2003. Enclosed with the letter were many of the enclosures that Crick had submitted with his complaint. The PCS did not enclose the anonymous material at that time.[94] It was only received with the PCS's letter of 20 October. Importantly, in his letter to IDS the PCS cited the passage set out above, thus making it clear that there was but a single complaint laid against IDS which was that BDS had done no work during the relevant period (September 2001 to December 31 2002).

22.  When IDS met the PCS later that day (October 13th 2003) the PCS' record of that meeting (in fact made on October 31 2003 but based on notes taken at the time) discloses that he rightly considered the essence of Crick's complaint to be one of improper use of Parliamentary allowances. Indeed, had BDS done no work it would have been grossly improper for IDS to have paid her out of his Parliamentary allowance.

23.  Unsurprisingly, the record shows that IDS was extremely angry about the first complaint which he said was 'groundless' He expressed anger about being 'condemned in the media.'

24.  From IDS' perspective, though, he was still then only facing a single (and misconceived) complaint. At that stage he had not yet received the material sent to him by the PCS since that letter had not yet reached him. He addressed the complaint as best he could but, necessarily, in general terms.

25.  The PCS had to make a decision as to whether to embark upon a full inquiry. He made the decision to do so on October 14th 2003. The Press Statement issued by the PCS reads, materially, thus:

'I have studied carefully both the complaint I have received from Mr Michael Crick and Mr Iain Duncan Smith # response to that complaint. The nature of the information given to me—some of which is from anonymous sources—makes it necessary that I should undertake further inquiries before reaching a conclusion on the complaint.

In view of the public interest in Mr Crick's complaint, I expect to report the result of my inquiries to the Committee on Standards and Privileges ...'.[95]

26.  It clearly appears from the above extract that part of the information received from Crick that had persuaded the PCS to proceed to a full inquiry, rather than simply dismiss the first complaint as he could then have done, was the material from anonymous sources. Of course, IDS had not at that date been shown any of that material and was, therefore, unable to comment on it at all. Subsequently, after IDS received those materials with the PCS' letter of 20 October, IDS had no difficulty identifying 'source A' as MM and 'source C' as VG.

27.  Further, it seems also that Crick had supplied additional material to the PCS on the morning of the day (14 October) that the Press Statement was issued (see the PCS' letters to IDS' solicitors dated, respectively, October 23rd and October 30th 2003).This material included a memorandum of CW dated October 24th 2002 to VG and a submission from Crick commenting on the memorandum and a further note from Crick commenting on IDS' public defence that he had been compelled to issue.

28.  So, much of the material that was instrumental in persuading the PCS to embark on a full inquiry on October 14th 2003 was material of which IDS had never seen and had no opportunity of addressing.

29.  Importantly, too, this additional material raised entirely new allegations. The PCS elicited from Crick that this new material did raise new allegations in an interview with Crick that took place on October 16th 2003.The question and answer session with Crick on that day demonstrates that Crick was changing his position. For example: the PCS drew out of the material that had been submitted five separate possible allegations and this exchange then followed:

PCS: '... I want to be as clear as I can from your lips what you think are the issues about which you are registering a complaint. I am sorry to have gone on at such length but you can see what I am getting at.'

MC: 'I understand exactly the point you are making and I think the distinctions you make are interesting and important ones. I am sorry, I should have written them down....'.

30.  There then followed a discussion about material supplied to the PCS from the anonymous sources (not disclosed to IDS at that stage: see above) and, during the course of the meeting, the remainder of the complaints as summarised earlier were articulated.[96]

31.  We are unable to say whether—in terms of his procedural remit—the PCS was compelled to take the course that he did. However, we so submit that if it was a necessary part of the inquiry process it put IDS in an impossible position at the very start of the inquiry.

32.  In essence, IDS was subjected to the rigours of a full investigation that would, inevitably, only damage his public reputation at a time when his position as Leader of the Opposition was under challenge. He was subjected to that process without sight of highly relevant material including entirely new complaints which were never put to him in advance and comments by his accuser that were never put to him in advance.

33.  It seems that in deciding to embark on a full investigation the PCS was influenced by the fact that the matter was one of public interest. It was, of course, largely a matter of public interest because of the media disclosure by the complainant and his sources that had occurred and was deliberately being orchestrated as the PCS was reaching his crucial decisions. However, it is a matter of great concern that the PCS procedure should expose a person in the position of IDS to a full inquiry merely because the matter had become public in that way. Indeed, it is a matter of great concern—if it be so—that the PCS procedure has to result in a full investigation even in a matter of major public interest without the opportunity being given to the person being complained of to see all relevant material in advance and to be able to respond to it. That opportunity was denied to IDS.

34.  The unfairness to IDS is obvious. In terms of natural justice it is a truism that information known only to a decision-maker must be disclosed to an affected party if such information is instrumental to a decision about to be made: see, of the many cases, Mahon v. Air New Zealand [1984] A. C. 808; R v. Mental Health Review Tribunal, ex p. Clatworthy [1985] 3 All ER. 699; R v. Kensington and Chelsea RLBC, exp. Campbell (1996) 28 HL.R. 160.

The PCS full inquiry

35.  The process involved in the PCS full inquiry contained two significant systemic defects. First, there is no clarification of the standard of proof. It appears to be a matter of judgment for the PCS from case to case rather than, as it is submitted it ought to be, a standard known in advance to the person against whom a complaint is made. So it was that having embarked on his full inquiry the PCS stated in his letter to Reynolds Porter Chamberlain dated October 23 2003 (in response to their raising the point):

'At this stage in my inquiry, I have formed no view on which standard of proof may be appropriate ... I agree with your observation that "different thresholds of proof may be relevant to different complaints" (or, I would add, different aspects of the same complaint).'

36.  There is, in our respectful submission, certainly warrant for a higher standard of proof in relation to serious charges. But if—as here—the complaints relating to BDS clearly raise an 'implication of dishonesty' (that is, here, the criminal offence of obtaining a pecuniary advantage by deception) the correct standard of proof should be the criminal standard. So, too, a complaint that does not raise questions of impropriety may be assessed in accordance with a lower standard of proof.

37.  On any view, it is submitted that IDS and his advisers should have been informed of the standard of proof that was going to be applied by the PCS in advance. At the time of drafting these submissions we still do not know the relevant threshold of proof that the PCS proposes to apply to each and every complaint (or, indeed, to any of the complaints).

38.  This absence of information strikes at the integrity of the inquiry process. To begin with, it makes it impossible for IDS to know how much (if any) information/evidence to adduce in his defence. Further, the PCS cannot properly evaluate the evidence as it emerges unless he knows the relevant legal touchstone against which it is to be tested. As interviews are conducted by him he knows not what questions it is necessary to ask because many questions will be entirely irrelevant if the standard of proof is to be the criminal standard.

39.  Some of these difficulties were alluded to in the Reid inquiry. Had the correct standard of proof been applied by the PCS in that case it would not have been necessary for the persons against whom various complaints were made to deal with much of the evidence. Those observations have a particular application, it may be thought, to the present inquiry where over 36 witnesses (as we understand it) have given evidence to the Commissioner both nationally and internationally (including evidence from New Zealand).

40.  We do not accept that such an extensive inquiry would have been warranted had the applicable standard of proof been known to all in advance. It is also back—to—front to investigate the various complaints prior to determining the applicable standard of proof

41.  The PCS was, we recognise, in a difficult position as was the PCS in Reid since no clear principles appear to have been distilled towards defining the relevant standard of proof. Had we known, for example, that the PCS proposed to apply a criminal standard the presentation of our defence would have been very different. It has been necessary to embark on a detailed response to allegations not forming the subject of any complaint (the VG evidence) in case the PCS thought that VG's evidence was (on the standard of proof that he would decide to apply) remotely relevant. If the correct standard had been known in advance it is questionable whether the PCS would have entertained her evidence or investigated the detail of it in the way that he has.

42.  The second systemic defect in the full inquiry process is, and was, that the PCS has refused to give IDS and his legal advisers sight of all the evidence presented to him. The PCS has, rather, agreed only to disclose the evidence that, in his judgment, forms part of the case against IDS. In this, the PCS appears to have applied a more restrictive approach than the Committee approved in the Reid case.

43.  Again, we submit that there should be, and have been, clearly defined disclosure rules in the PCS inquiry process to address this problem. The difficulty with part disclosure, namely only disclosure of that which the PCS believes is the case adverse to IDS is that real unfairness has been caused to IDS.

44.  The point is this. The PCS does not know what IDS knows. IDS does not know what the PCS knows. Had IDS had sight of all the material available to the PCS he might have been able to point out internal inconsistencies in the evidence or to have relied on positive statements in his favour to rebut other evidence. He might even have been able to point the PCS to further helpful lines of inquiry.

45.  Take, for example, an entirely hypothetical example. The PCS has evidence (say) from witness 'A' who says that another unidentified witness who had attended a meeting with IDS could give definitive evidence in support of DS. The PCS, seeing this as merely supporting evidence, does not disclose it to IDS. But if IDS had known of that evidence he could (from the description of the meeting) have identified the unidentified person and so provided additional positive evidence.

46.  This example should not be taken literally. It is merely illustrative of the proposition that part disclosure may have created very real unfairness in this inquiry through no fault of the PCS but merely because the PCS does not know what IDS knows.

47.  The systemic defects identified above have placed both the PCS and IDS in a very difficult position. From IDS' perspective he has seen only edited material; edited, we accept, in good faith and even that against an unknown standard of proof. These should be matters of the gravest concern to CS.

Gearson

48.  A great many pages of unnecessary evidence have been taken up with this evidence. On analysis (see below) the Gearson allegations should be firmly rejected.

49.  It is, perhaps, tempting to put VG's evidence to one side and simply to dismiss the complaints without reference to it. Certainly—as will be shown—that evidence takes Crick's complaints nowhere.

50.  However, the public damage done to IDS as a consequence of what we submit to be, at times, unfounded and malicious allegations is considerable. The PCS is, therefore, invited to make clear his view of VG's credibility as a witness at least in general terms where it conflicts with that of other witnesses (most notably Mr Tim Montgomerie: see below).

51.  Without rehearsing the detail of her evidence now it is, we submit, simply unbelievable that the email of January 30th 2003 came to be distributed in the way that it was without ulterior motive.

52.  The circumstances of how that email came to be drafted, let alone leaked, are themselves strange. IDS was not made aware of it even though on her testimony VG was trying to protect him. VG accepts, as she must, that it was wholly unjustified to put the information that she did on an email and that IDS was right to rebuke her for it. Why, then, did she do it? She is anything but politically naive—yet it was an act of striking naivety if she is to be believed. Why was the issue of BDS being raised at that time when it was no longer a live issue?

53.  And there is the CW memo and its leak to the media. How did that come into Crick's possession so that it was submitted to the PCS on October l4th? It was a memo addressed to VG and marked "Strictly Private and Confidential". We know that the memo was leaked to the Daily Telegraph (see above) and was published in an article in that newspaper the following day. It was, therefore, likely to have been leaked by VG the previous day—that is, the same day that it reached the PCS and formed part of the information leading him to embark on a full inquiry (see above).

54.  Further, VG's interview with the PCS (and written Statement) leaves him with the words of the Reid standard of proof as her parting shot. VG says that she is as entitled as any member of the public to read public reports of inquiries. So she is. But the insinuation of those words into her evidence is, we suggest, all of a piece and of a type with the leaks to the media of the CW memo (and email).

55.  IDS has—we submit unsurprisingly—reacted strongly to the allegations of VG and to the way in which her evidence has been leaked in advance and presented. It might be said that he could have afforded to disregard it so peripheral is it, in fact, to the central issues raised by the complaints. But we have taken the view that VG has calculated the content of her evidence, its manner of presentation and, in all probability, some of the leaks to the media in a deliberate attempt to cause maximum damage to IDS including possible collaboration with his accuser. For the sake of the public record—which VG has herself deliberately invoked—we submit that her lack of credibility should, in the public interest, be exposed on issues where she seeks to impugn IDS' character.

56.  That is we suggest the true, and only, relevance of VG's evidence to this inquiry. Her allegations, having been made, should be examined and rejected. But her allegations, at best, do nothing to advance the complaints against IDS.

MacGregor

57.  Although Mark MacGregor was not a complainant he enthusiastically adopts Cricks complaints (and, of course, IDS identifies him as one of Crick's sources). In particular he seeks to support the allegation that IDS applied improper pressure upon VG and he also supports the allegation that BDS ceased work because of the publication of the allegations against Michael Trend. The press coverage of his testimony also raises questions of whether he colluded in the leaking of his evidence to the media.[97] Most recently this is raised by the contents of the article in the Sunday Telegraph 25 January 2004 which refers to both his evidence and that of VG. In this context it is equally important to reach a finding on his evidence. MM's evidence is commented on in detail in both of IDS' witness statements. By way of example MM gives conflicting accounts of when he first heard about BDS' employment. It is significant that VG is also ignorant of the details of BDS' employment (e.g. the salary was not £18,000) at 30 January 2003 when she sent the e-mail. If she had heard about them from CW then she would likely have had the correct information. It is far more likely that she learned of BDS' employment from MM who knew of it from the early summer (from Jenny Ungless, on his testimony)—after all it is MM's testimony that he suggested to VG that she apply for a position in the Leader's Office and they must have had discussions about that.

58.  IDS has further raised in his witness statements the possibility that there was collusion between MM and VG prior to and during this inquiry which, if true, would have a bearing on their testimony. Key indicators suggestive of collusion are (1) they have the same solicitor (Healys) and MM was on the circulation list for the letter (as indicated on the face of the letter) sent to IDS on 10 October 2003 by that solicitor on behalf of VG (at a time when MM had no position in CCO) (2) their original (false) testimony regarding the timing and effect of the Trend revelations (3) how their testimony on the Trend revelations has developed, in tandem, in response to IDS' testimony according to their most recent letters to the PCS (4) the leaking of elements of their latest testimony to the PCS in the same article appearing in The Sunday Telegraph (25 January 2004) (5) that they are both among Crick's original 'anonymous' sources—a matter which neither of them deny in their most recent testimony to the PCS. Again, for the sake of the public record—given the conflict of evidence between them and IDS on the Trend issue—we submit that their lack of credibility should, in the public interest, be exposed on issues where they seek to impugn IDS' character. We would accept, however, that it is unnecessary to reach a firm finding of collusion in order to find that VG's and MM's allegations concerning Trend are without foundation.

Why the complaints should be rejected on due process grounds alone

59.  In summary:

i)  A decision was held to embark on a full inquiry without IDS being shown and asked to respond to highly relevant material that influenced the PCS in arriving at that decision.

ii)  It was decided to embark on a full inquiry into allegations that had not been put to IDS and of which he was ignorant at the time of that decision.

iii)  A decision was made to embark on a full inquiry taking into account anonymous material that had not been disclosed to IDS precisely because it was said, at that stage, to be irrelevant.

iv)  Prior to the inquiry, at its inception, at the start of the full inquiry and throughout its course media disclosure has infected the whole proceedings. IDS has been told that his only remedy is to take the matter up with the Speaker.

v)  The full inquiry has been conducted without IDS being informed of what standard of proof the PCS proposed to apply to any of the complaints. This has necessarily affected the preparation of his evidence and the manner in which evidence has been received by the PCS. Finally,

vi)  The full inquiry has been conducted with IDS being given only a partial sight of the evidence on the footing that the PCS was disclosing only that which he considered to be relevant to the case against IDS. This has necessarily affected IDS' ability properly to advance his defence and, in turn, deprived the PSC of obtaining a full evidential picture.

60.  We say that for these reasons alone the complaints should be dismissed.

61.  However, we propose to analyse the evidence briefly so as to suggest that the complaints have not been made out. As we are in ignorance of the standard of proof proposed to be applied we are—for practical purposes—adopting the Reid standard in respect of the dishonesty complaints and a balance of probability standard in respect of those complaints which appear—on their face—not to raise the implication of dishonesty.

62.  This is without prejudice to our submission that in a case where there is, as here, a plain allegation of criminal misconduct, the appropriate standard of proof should be the criminal standard—that is, beyond reasonable doubt. If and to the extent that—contrary to our case and contrary to our understanding of the complaint—it is suggested that by paying CW and AE (or BDS) from an incorrect source IDS acted improperly in the sense of acting dishonestly then we submit that the same criminal standard of proof should be applied.

Part 3—The BDS Complaints

The first complaint

63.  This can be addressed shortly. Crick started by asserting positive evidence that during the period September 2001 to December 31 2002 BDS had done no work but had, nonetheless, been paid by IDS out of his Parliamentary allowance (see above).That complaint, if established, constitutes the offence of obtaining a pecuniary advantage by deception under the Theft Act 1968.

64.  The simple answer to the complaint is that there is no positive evidence in support of this allegation. On the contrary, no witness (so far as we are aware) has asserted other than that he or she did not see the fruits of any work performed by BDS. If there is no positive evidence (leave alone the 'considerable evidence' asserted by Crick) then the first complaint—as formulated—must fail.

65.  The evidence in respect of BDS' employment (let alone any of the relevant complaints) by those other than BDS and the witnesses who assert positively that she was working to a substantial degree is exemplified by the following:

i)  "While l am in no position to confirm the details of Betsy Duncan Smith's employment, o[r] the substance or intensity of that employment, I was left in no doubt of the fact of her employment" (Baverstock Statement of October 15 2003).

ii)  "I have never had any sense from lain, never had the slightest shred of concern demonstrated by him in relation to what Betsy had been doing for him, nor a concern, for some reason, this situation had gone on because it was somehow financially advantageous to lain and that was all he was concerned about. I have absolutely no sense of that whatever" (Burt transcript).

iii)  "it is my hunch, it is my strong belief that [BDS] probably was not doing any work, of any substantial nature anyway" (Crick transcript 4 days after indicating his 'considerable positive' evidence that BDS had done no work whatever during the relevant period).

iv)  "All I am saying about these councillors is that overall what they are saying is that they do not recall any dealings with her during that period I don't know how long he has been a councillor, perhaps I should go away and check" (Crick, same interview, same point).

v)  "... I never received any sense at all that [BDS] no longer played the same role in relation to Mr Duncan Smith's arrangements and Parliamentary duties that she had done in the period before September 2001 when I had the same type of dealings with her" (Quentin Davies MP unsolicited letter dated October 15th 2003 and not known by IDS or his staff or advisers to have been sent to the PCS).

vi)  "As far as I was aware Betsy was working for her husband organising his appointments" (Finlayson, local Councillor, Statement October 15th 2003).

vii)  "I do not contend, as I say in my submission, that [BDS] did nothing. I never visited Swanbourne and it would be unreasonable of me to say that she did nothing at all" (Gearson, transcript).

66.  It is, perhaps, unnecessary to continue to proceed through an alphabetical litany of the various witnesses since VG is the high water mark of Crick's complaints. The first complaint is, plainly, without any merit whatever since no one asserts any positive evidence to the effect that BDS did no work or even that an inference should be drawn to that effect.

The second complaint(s)

67.  There is a further important reason why the first complaint must be rejected. It is that, for it to be accepted, it compels the conclusion that BDS, AB, Andrew Whitby-Collins ('AWC'), Rikki Radford ('RR') and CW (to say the least) are lying. Such suggestion would: (a) be an odd one, (b) (paraphrasing Reid) be much less likely to be true than likely to be false, and (materially) (c) at least have to be made for it to be required to be considered: however, no suggestion of this kind has—at least as far as we are aware—ever been made openly by anyone: not even by VG.

68.  But once it is accepted that BDS et al are not lying but are, rather, telling the truth then the second complaint(s) must also be rejected. This is because once it is accepted that the second complaint(s) against BDS rely solely upon inference then any inference that needed to be rebutted by positive evidence has been rebutted by positive evidence.

69.  This is an important point that needs to be addressed explicitly. It is one thing to examine the strength of an inference by reference to the absence of rebutting evidence. It is quite another to continue to treat the same evidence as constituting a legitimate inference when it has been rebutted by positive evidence. There is no longer any inference to examine.

70.  It is, of course, legitimate to test the credibility of a witness by reference to the evidence (even indirect evidence) of another witness or witnesses. But unless the suggested inference is, for all practical purposes, irrebuttable or unless there is some independent reason to suppose that a particular witness or witnesses is or are obviously lying it is difficult to see how the strong and positive testimony of four prima facie truthful people (AB, AWC, RR and CW) that the suggested inference is wrong can amount to anything other than a rebuttal of the inference. A fortiori when there is no suggestion that those witnesses are lying.

71.  As already noted, VG does not assert a positive case that BDS was not working at Swanbourne. VG never visited Swanbourne so, obviously, she cannot say. Once it is appreciated that no one mounts a positive case that BDS did not work at Swanbourne then the sole questions can only be: (a) is there positive evidence to the effect that BDS did work at Swanbourne?, (b) is there positive evidence that her work there was more than minimal?, (c) is there positive evidence that her work there justified the salary she was paid?, (d) is the evidence in relation to the last two questions to be believed?

72.  If the answers to those questions are "yes" then the second complaint(s) necessarily fall away. They must be dismissed. It is not proposed to recite the positive evidence in detail but, rather, to seek to summarise its essential features with references where needed.

73.  BDS has explained, both in her Statement and in her interview with the PCS, that in the period before IDS became Leader she was more in the 'front line' than she became afterwards. She was—in the pre Leader phase—more involved in face—to—face contact with members of the public or, indeed, with significant figures in the Chingford constituency.

74.  After IDS became Leader, however, BDS played a more supportive role But that role was still immensely important. In order to understand her role in the Leader phase it is necessary to understand what was really (as opposed to syntactically) involved in assisting with IDS' diary.

75.  The point will not be laboured here because, in his questioning of BDS, the PCS has demonstrated that he understands the pressures on the diary in a private Governmental office (see, e.g., BDS transcript at p. 10 and the reference by the PCS himself to the need for 'thinking/breathing space').It is, though, emphasised that those pressures were (as one would, perhaps, expect) at their most extreme in the case of the Leader of the Opposition. This aspect is developed at some length in the evidence of IDS himself.

76.  The gist of BDS' evidence is outlined below. We emphasise that during her long questioning by the PCS she was entirely consistent in the account that she gave in her main Statement dated December 5th 2003. At the meeting she produced (though she was under no obligation to do so and has requested privacy in relation to the material) sample telephone bills, emails and other documentation for the PCS to inspect. We rely on that sample material as providing further support for her evidence and simply make the point that she was not asked to keep records and obviously had no idea that these complaints would be made.

77.  BDS explains, in some detail, the nature of her work in her main Statement from paragraph 12.From that account it is apparent that the processes involved included progress chasing which became increasingly important as IDS' workload as Leader increased, assisting with IDS' diary (see also above) including regular up-dating meetings with AWC and AE, secretarial work and constituency case work and correspondence. Her working day was not neatly compartmentalised but was certainly considerably in excess of 25 hours a week in the period under scrutiny. She spent from 10.00 a.m. to 3.00 p.m. on week days in the office at Swanbourne. She gives a clear and detailed account of her day to day activities including notably her work in the evenings, late at night and at the weekend in her Statement at paragraphs 29-40.

78.  Given that BDS was working from home, it was inevitable that there was a relatively limited number of people she worked with at the Westminster office. She explains this in her Statement at paragraphs 74-81.Her evidence is supported by those she worked with. For example, BDS worked closely with, amongst others, AWC until October 2002.This is, indeed, confirmed by AWC (see his Statement generally).In particular, he testifies positively that 'Elizabeth Duncan Smith was essential to enable me to do my job as Diary Secretary for the Leader of the Opposition' (ibid at paragraph 4).According to his evidence, BDS discussed IDS' arrangements for the day and reported back to AWC. She downloaded documents emailed to her by AWC. Every week she received, by email, the detailed diary for the 6 months ahead as well as the diary for the following week. She would work through it with IDS over the weekend and report back to AWC on the Monday (see ibid at paragraphs 4-5).She was, he says, an essential part 0/the team working with Iain Duncan Smith and it would have been hard for me to have done my work without her assistance' (ibid at paragraph 8).

79.  A similar picture is given by AE. When IDS became Leader, AE—who had been his Constituency Secretary—took over as his Private Secretary. In her Statement she explains that she worked closely with BDS, AWC and CW from September 13 2001 to October 2002.She also gives positive testimony as to the work undertaken by BDS from Swanbourne.

80.  AE points out in her Statement (see paragraph 5) that BDS had access to full office facilities at Swanbourne. This should now—following the PCS' visit to Swanbourne—be uncontroversial (see, e.g., BDS' main Statement at paragraphs 41-52) though, for a time, it was suggested that because extensive work in the form of additional office provision was carried out at Swanbourne after BDS ceased to work for IDS that meant that there were no relevant office facilities at Swanbourne to which she could have had access when she was working for him. This is simply a non sequitur and is another example of an inference sought to be raised by VG but, in fact, fully rebutted by the evidence.

81.  Materially, AE says this: 'Elizabeth Duncan Smith was essential during the period that I was working as Private Secretary to co—ordinate the passage of information between me and Andrew Whitby-Collins and lain Duncan Smith' (see her Statement at paragraph 6).As to the content of the work performed by BDS, AE gives similar evidence in her Statement at paragraphs 6-8 to that of AWC. When questioned by the PCS AE indicated (see pp. 27-28 of the transcript)[98] that in her judgment BDS did work the equivalent of 25 hours a week. She based this judgment on her own interaction with BDS, the frequency of that interaction and the results of what she saw as BDS' effect on the work she had done for IDS, the results in terms of the answers that came to points that AE had asked BDS to chase up, the emails that were sent by BDS to AE and related observations of this type .[99]

82.  This judgment is significant. The fact that AE was not present at Swanbourne means, of course, that she did not see everything first-hand. But she was 'the principal point of contact' (see transcript at p. 24)[100] with BDS.AE is, therefore, in a good position to give positive testimony.

83.  It must also be borne in mind that a precise estimation of the hours worked by BDS is very difficult. As is referred to below, the Leader's office was not run on clearly defined, managerial lines. Its effective operation depended on the personalities involved, the 'chemistry' between them and the fact that the new Leader had virtually to start afresh. BDS worked in a way that fully justified her salary. That is the evidence of AE. It is important evidence.

84.  Further, as already emphasised, AE's positive and corroborative evidence does not stand alone. It is supported by AWC (see above). It is also supported by RR and by CW.

85.  In his interview with the PCS RR explains that he had fairly frequent contact with BDS up to the time of the local government elections. It was not social contact but involved questions of organisation ("shall you do this?", "shall I do this?"). It was not the kind of thing that any spouse would be ringing up about. Because of the conversations that he had, RR said that he knew that BDS was chasing things up with AWC and AE.RR said, in his Statement at paragraph 6, that he knew first hand that BDS was active in her employed role until December 2002.

86.  CW began working with IDS on October 15th 2001.In July 2002 she became IDS' Private Secretary, taking over this duty from AL. Her Statement makes it clear that CW was aware of what she terms BDS' 'close management' of IDS' diary (see Statement at paragraph 6) even though she could not speak as authoritatively as AE on the subject. In order to find out what TDS was doing at any particular time she (CW) would telephone BDS because (see interview transcript at p. 25)[101] 'she was doing diary support and she would be one of the obvious people, other than [AE] with the knowledge' (see, also, 2nd transcript of CW interview at pp. 17—18).[102]

87.  Finally, at paragraph 54 of her second Statement CW says this: 'Vanessa [Gearson] was wrong when she said that Mrs Duncan Smith did not do any regular work/or Mr Duncan Smith and that her basis for concluding this was that Mrs Duncan Smith was not in touch with her on a regular basis. Mrs Duncan Smith was in touch with me, Annabelle and Ricki Radford on a regular basis.'.[103]

88.  IDS entirely supports BDS' evidence and the evidence of those who corroborate her evidence. In his interview with the PCS he also makes a number of highly relevant points. See, for example, his observations about home working and the attitude towards those who do not work rigid office hours (Interview at pp. 20-21),[104] the fact that because BDS worked from home she was 'less visible' (ibid p 21), the close but limited working relationships that subsist in a private office and the sense of exclusion that others might feel (ibid pp. 21-22).

89.  Not only were the pressures on the Leader of the Opposition diary (to use BDS' word) 'enormous' in general terms they were, in the particular case, intensified or maximised further because of the prevailing difficulties in the office when—and for a considerable time after—IDS took over as Leader. Additional support of the kind provided by BDS was self-evidently necessary.

90.  This is made clear by a variety of evidence. Note, simply by way of example, the following:

i)  "... My only recollection was that in talking to [C W], observing what I observed, I thought, 'Here is a structural problem. No wonder this guy is working under a mountain', because you have six months trying to find your feet. in any job that is the crucial six months, you need to hit the ground running in a big job ..." (Burt Statement at p. 14).[105]

ii)  "There were a number of changes and re-organisations in the staff and one needs to appreciate that the Leader of the Opposition's office was being set up from scratch".[106]

iii)  "it is the nature 0/the concept 0/Leader of the Opposition—that you have to discover who works best with who while you are doing it; there is not a system that sits there and comes in around you. That is what causes that transitional problem I was re/erring to, and the need to use Betsy through that because I could rely on her completely to help get those things done in a way that perhaps I could not with a lot of others" (IDS Interview with the PCS at p. 17).[107]

iv)  "... It was not a smooth running operation. There had been quite a rapid turnover. As inevitably happens, when Mr Duncan Smith became Leader he brought in a team 0/people who did an interim job for him while he established his new office ... the roles were very ill-defined and people did not really know what their job was, and this resulted in some particular operational difficulties ... we felt that the Leader's diary was a mess; he was doing far too many things. There was no reason why he was accepting certain invitations and not others, so we felt there were issues there" (Gilbert Interview transcript at pp. 5-6).[108]

91.  We respectfully submit that the positive case for BDS performing work that was of a substantial nature and that fully entitled her to payment for 25 hours work a week is overwhelming. Unless the former Leader of the Opposition, his wife and all the witnesses referred to above are deliberately lying the second and third complaints are entirely without foundation.

Gearson

92.  It is against that background that the negative inferences sought to be drawn (most notably by VG) fall to be assessed. The point has already been made—and it is absolutely fundamental—that if the evidence set out in the previous Section is believed then VG's assertions are evidentially irrelevant. They are irrelevant because they raise no more than (at best) an inference that BDS was not working. Once the inference is rebutted that is the end of the relevant complaints. VG's evidence cannot, logically, lead to the inference that the various witnesses who give positive testimony are all lying. As she is driven to concede—she has never visited Swanbourne.

93.  VG's evidence is founded on innuendo and, it may be thought, some of it rather nasty innuendo at that. In terms of underlying impression she suggests that IDS was seeking to pressurise her into lying. Why (so, presumably, her argument runs) would he do that if there was not truth in the suggestion that BDS was doing little—if any—work? It is, crudely, a "no smoke without fire" approach. But it is misconceived. It is misconceived because there is a raft of supporting and positive evidence (summarised above) to the effect that BDS was certainly working to a substantial degree. Conversely VG's testimony demonstrates that she is not a material witness on the issue of BDS' work

94.  The issues raised by VG are either: (a) demonstrably factually incorrect (as, e.g., her allegations relating to the provision of office facilities at Swanbourne), (b) analytically irrelevant and deliberate lies (as, e.g., the suggestion that she was pressurised by IDS to retract her email of January 30th 2003) or (c) rebutted by positive evidence.

95.  It is a matter of surprise that VG should be at such ostensible pains to drive home the present complaints. After all, she is not the complainant.[109] .Nor has she made a complaint to the PCS, requiring resolution, about being put under improper pressure by IDS. She has responded in great detail to the evidence presented on behalf of IDS. But what is her stance? Is she asserting that BDS and the witnesses who support her case are deliberately lying to the PCS? If she is not advancing that suggestion then why does she not accept that although (albeit very surprising to her) she did not see the fruits of BDS' work there is no further factual foundation to the relevant complaints?

96.  Other questions arise (and have earlier been foreshadowed).Why write an email after the event that could only expose IDS to political embarrassment? How did it come about that this document and another document that were plainly intended to embarrass (the CW memo) were leaked to the media thus exposing IDS to maximum political embarrassment? And what a time to choose …

97.  The PCS will, perhaps, understand why IDS has attempted to grapple with at least some of these issues in his evidence. There are three possibilities, we suggest, so far as the above materials are concerned. They are that: (a) VG's email and all the leaked material personal to her were drafted and/or leaked entirely innocently by her and that the ostensibly intended damage to IDS was not intended at all but was (rather) a misguided attempt to protect him or (b) such leaks as there were did not come from VG and her email of January 30th 2003 was sent for no obvious reason or that (c) there has, at least in part, been orchestrated leaks of some information or material by VG (as well as by Crick and MM). We submit that the latter is (to paraphrase VG's paraphrase of Reid) significantly more likely to be true than it is to be false. And if the latter is true then it raises the question of whether VG has told the truth to the PCS in all respects. If she has not then this should be determined as a matter of public record in the interests of justice.

98.  It may be relevant for the PCS to separate out those parts of VG's evidence which are (as the philosophers might say) true but uninteresting from other parts which are either untrue, inaccurate or malicious. For example, it appears to be the case that VG made comment, sometimes emphatic comment, about whether BDS was performing a substantial employment role. On the other hand (see below) the value of that evidence towards establishing the complaints is nil. Other evidence (though similarly irrelevant) is fabrication (as, e.g., IDS forcing her to write the email of January 31st 2003 or putting improper pressure on her to make a statement).VG's exact motive for sending the 30th January email may be obscure[110] but the motive (whoever did it) in distributing that email and the CW memo to the media for public consumption is both obvious and malicious. It is emphasised that both the email and the CW memo have the common element that VG is either the sender or recipient in each case.

99.  We propose to address the VG issues by outlining the gist of what she says with a brief response immediately below. Our summary is based on what we believe to be the main points raised by VG. It should not be thought by the PCS that the fact that we omit large parts of VG's evidence means that we accept it. That is far from the case but we cannot cover everything:

i)  I do not contend that Mrs Duncan Smith could not have worked/or Mr Duncan Smith during this period but rather that I saw absolutely no evidence of the work carried out by Mrs Duncan Smith and cannot establish by analysing the distribution of tasks and responsibilities within the two offices, what work she was effectively carrying out".[111]

VG does not say that BDS did not work for IDS but, rather, that she 'saw no evidence' of this. We submit, therefore, that VG simply is not in a position to dispute the evidence of the witnesses who give positive evidence as to the substantial work that BDS was doing. It is to be remembered that VG was only appointed in the autumn of 2002 and herself had, we accept, minimal direct contact with BDS. We also consider that VG would have had little opportunity to overhear conversations between BDS and CW. It also seems clear from at least some of the materials seen by the PCS and Ms Barry that BDS would—if she had to deal with matters relevant to VG—contact CW rather than VG herself (see BDS Interview transcript at p. 50).[112]Further, even the circumstantial evidence suggests that VG may not have been in a particularly good position to observe what was going on (see, e.g., letter dated December 1st 2003 from Tim Montgomerie to the PCS who suggests that VG's chair and desk 'were not well suited for an adequate understanding of what else was taking place in the office'). It may also be that VG has failed to place in relevant context the occasions on which BDS' name is likely to have come up in conversation (see IDS Interview at pp. 60-62 where this possibility is discussed)[113]. Since she has never suggested that the witnesses supporting BDS' case as to the work done (and BDS herself) are lying it is not easy to see how VG's evidence in this respect advances the relevant complaints.

ii)  "Mrs Duncan Smith states she set up a functional office in Swanbourne 'which was fully equipped'. It is my understanding that the office Mrs Duncan Smith describes was in fact set up in the last months of her employment as demonstrated by the information set out below" (ibid p. 6)[114]

The PCS has now seen the premises at Swanbourne and will appreciate that VG's evidence is founded here on a misunderstanding. True it is that work was undertaken at Swanbourne at the end of BDS' employment but there were fully functioning office facilities there throughout the relevant period of the complaints from which BDS worked.

iii)  Having set out the 'information ... below' VG says this: 'Although I have not visited Swanbourne, it is my considered view in light of the above evidence that it is difficult to accept Mr Duncan Smith's assertion that Mrs Duncan Smith was working/or him in a parliamentary capacity from a fully functional office at their home'.[115]

Whether 'considered' or not, VG' s 'view' is wrong. Whilst purporting to be more than Crick's 'hunch' it is—as the PCS now knows—based upon the entirely incorrect assertion that there were no office facilities in situ at Swanbourne during throughout the relevant period.

iv)  How the Matter regarding Mrs Duncan Smith's employment was dealt with (ibid pp 9-10).[116] Here, VG makes three points, namely that: (a) she raised concerns about BDS' employment being paid out of a Office Costs Allowance ('OCA') within one hour of its being drawn to her attention, (b) Mr Owen Paterson ('OP') said that he would take the matter up immediately with IDS, and (c) by mid November 2003 the Trend allegations had been made public and this strengthened VG's resolve: VG raised the issue again at an un—minuted meeting at that time—no one questioned VG's assertion that BDS was not doing any work in return for her salary.

VG's evidence itself is, with respect, potentially confused. She says[117] that the concerns that she raised were over BDS' salary being paid out of the OCA. She does not say that she was expressing concern over (an assertion) the fact that BDS was—on VG's version—doing no work. The only reference to VG mentioning this in her Statement was at a meeting, the content of which is not recorded, in November 2003.Whilst we do not contest the fact that she may have expressed concerns to certain people (e.g. Gilbert and MacGregor) we simply note that there is no written contemporaneous evidence of her concerns and so the manner of their expression to different persons is not known. In addition, she does not give any plausible explanation of why she did not raise it with AWC, AL, CW or indeed with BDS herself as she could easily have done. Both these points are important to an understanding of why there was not an immediate assertion that BDS did have a positive and very definite employment role as set out above. Further—and this is a matter of public record—the Trend allegations were only made public in mid December rather than in mid November.

OP in his Statement accepts that, in the autumn of 2002, VG queried whether BDS was really doing work and he said that he would take the matter up with IDS. It is clear from paragraph 35 of his Statement that OP raised this with IDS as a 'routine issue' but that he was not overly concerned. It is accepted that VG raised a query with OP but we do say that she was not, at that time, on her Statement evidence pursuing the issue as one of potential impropriety on IDS' part at least to OP. Similarly, OP accepts that the query may also have surfaced at a later meeting along with many other issues (see OP Statement at paragraph 36).[118]When the matter was raised with IDS by OP it was made clear that BDS' employment was intended to end (OP Statement paragraph 37). It is, perhaps, unsurprising that a four month period went by without concerns being expressed by OP over VG's considered views over BDS' alleged lack of work. There is a subtle but important difference between a factual and considered assertion on the one hand and a question (see immediately below) on the other. However VG put matters to Mr MacGregor or Mr Gilbert the evidence appears to be that her concerns were not expressed as forcefully to OP.

The analysis suggested in the previous paragraph is strengthened by the fact that VG never raised the issue directly with IDS himself (see IDS' main Statement at paragraph 67).There was, therefore, nothing to alert IDS to the fact that this was a query (that he had answered directly to OP) and that had not been answered to VG's satisfaction.[119] Nor is there evidence that OP was pressed by VG or anyone else for a further response. Rather, VG's testimony (letter of 12 January 2004) is that OP told her, well before the Trend allegations became public in mid December, that "the matter was being dealt with".

We do not suggest that VG had not expressed concerns over BDS' role to certain people or at certain meetings. It seems that she had to Mr Gilbert and Mr MacGregor (see above and fn 10).[120]However, the answer that BDS was performing a positive role could reasonably be expected to be answered by the Leader himself. Had he appreciated that there was a real concern on VG's part he could and clearly would have answered it as he has done by evidence in the present inquiry.

Importantly, and finally on this aspect, it is emphasised that VG's concerns are, so far as relates to the issues raised before the PCS, historic. They have been answered by the evidence of several witnesses as outlined above.

v)  The context of the emails (ibid. pp. 10-12).Here, VG says that: (a) the fact that BDS' employment had ceased did not entirely alleviate her concerns, so (b) she sent the email dated January 30th 2003, (c) IDS was very angry about VG raising such sensitive subjects in an email, (d) he advised VG in the strongest terms to send out an immediate response, (e) believing that the only alternative was resignation VG drafted a retraction (the January 31 email) that was—in effect—dictated by IDS, (f) her evidence as to this is corroborated by Mr MacGregor (and possibly by Mr Gilbert) and her state of distress following the meeting with IDS can be attested to by CW and Miss Layton.

It is surprising, and it has not been explained, how it came about that at the time when she would (on her story) have been most concerned about BDS' role there is no written trace of VG's concern. The concern only emerges en passant and after the 'crisis' has (so to speak) passed. Further, there is no reference whatever referring back to VG's earlier concerns not having been addressed. Nor is there any explanation of why a matter of obvious political sensitivity that VG had, apparently, never put to IDS himself was sent out by email or why OP (with whom she had raised a query in the past) was not copied in to the January 30th email. All that we can really say about the/act of the January 30 email is that we are highly suspicious of VG's motive. Its subsequent leaking to the press (with the CW memo) is, we suggest, undeniably malevolent and done with motive. For all we know it is the same motive as that which promoted the publication of the email in the first place.

IDS' evidence as to what happened when that email was sent is in his main Statement at paragraphs 69-71. It was obviously the case—as IDS suggests and VG impliedly accepts—that sending the email of 30th January was, to say the least (if it was not deliberately manipulative) 'an act of striking political naiveté. 'Whatever VG's precise motives it is, we suggest, entirely believable that she should have apologised to IDS as he says that she did[121] and to have wanted to put the matter right.[122]It was, we suggest, in those circumstances that VG came to write her email of January 31 retracting the earlier email.

It may well be that VG was distressed following the meeting with IDS on January 31 2003. This would be entirely understandable given that she realised that she rightly deserved rebuke for what she had done. There is, however, no suggestion from either Mr MacGregor or Mr Gilbert (who have given evidence as to the second email) that IDS dictated a new email for VG to sign. Further, it may be thought that on her own evidence VG would not—at least consistently with the approach she apparently takes to related matters—have lied in order to keep her job or to protect the Leader.

Finally, of course, there is no complaint before the PCS as to IDS putting improper pressure on VG to retract her earlier email. The existence, or removal, of VG's concerns over BDS' role are in terms of analysis of the facts completely irrelevant to the complaints that have been made against IDS.

vi)  Events leading up, to the presentation of the complaint (ibid pp. 12-17)

In essence, VG says that: (a) IDS made four improper approaches to her when the Crick storm was breaking in September-October 2003 to give a statement under oath stating that she was 'entirely satisfied' as to the arrangements over BDS' employment, (b) VG expressed concerns to senior figures that she was being pressurised to make a statement but indicated that she simply could not support IDS' position because this would constitute the offence of perjury.

Tellingly, VG says nothing in her description of the allegedly relevant events leading to the presentation of her complaint in her Statement of her relationship with Crick or of the leak to the media of highly sensitive documents.[123]

The suggestion that IDS put pressure on her to lie is simply untrue. If (see above) he had not put pressure on her to retract the 30th January email it is clear that the email sent the following day is a truthful document and that, by that date at least, VG was satisfied over the arrangements relating to BDS [124]

It is not easy to reconstruct the swift passage of events at this time. However, VG seems to have told Mrs May ('TM') the then Chairman of the Party on October 6th 2003 that IDS had asked her to make a statement to say that she was happy with the second email expressing satisfaction with the BDS arrangements but that she had refused though VG told TM that she had—in an earlier meeting with TM and Tim Montgomerie—said that she was happy with the second email. According to TM's evidence VG told TM that her earlier willingness to say she was happy with the second email might have been a mistake. TM's impression, when she spoke to IDS by telephone on the last day of the Party Conference was that up to the point at which IDS received a letter from VG's lawyers he at least was unaware that she (VG) was not willing to make a statement. It must be clear that IDS was unaware that there was any issue over sending the e-mail of 31st January or VG's willingness to make a statement. IDS took VG's comments to him, and subsequently to Tim Montgomerie, that she was happy to send the second e-mail in order to put things right, at face value. At no point did VG express any concern to IDS or Tim Montgomerie about sending the second e-mail. Indeed, the first time VG raised this issue with IDS was in the letter dated 10 October 2003 from her solicitors to IDS. Accordingly, he could have had no reason to place any pressure on VG, and indeed never did so (see above).

Overall, TM' s evidence suggests that the conversations that she had had did not suggest that VG was being required to make any statement. Further, the Statement of Tim Montgomerie supports this. Mr Montgomerie states that the meeting which he attended on October 1 2003 with IDS and VG was 'very relaxed'. He states positively that at no time did VG contradict IDS' recollection of events or subject VG to any pressure. Over the days following that meeting VG apparently told Mr Montgomerie that she regretted that her email had caused difficulties for IDS and that she had, indeed, been persuaded that the concerns in her email had been answered. IDS is also adamant that he did not put any pressure on VG at any time.

So, properly analysed, there is independent evidence that IDS did not put any improper pressure on VG to make a Statement. Had he done so it is inevitable, on VG's account, that Tim Montgomerie's evidence is untrue. Indeed, that is what VG says in her oral evidence to the PCS (see Interview transcript at 60-62).[125]This is not a matter on which Mr Montgomerie can be mistaken. He is either telling the truth or he is lying.

We suggest that there is absolutely no possible motive on Mr Montgomerie's part to lie. Not only is VG's evidence materially untrue on this aspect of matters but it is designed as a direct smear on IDS' character. We invite the PCS to make an express finding rejecting her evidence on this important issue as untruthful. If her evidence on this aspect is untruthful her reliability as a witness on other matters should also be treated with great caution.

100.  That is really the sum total of VG's evidence in relation to the complaints under analysis here. Following the interview process IDS has filed a second Statement and VG has put in a further long letter dated January 12th 2004 with myriad appendices. It is not proposed to analyse that material in depth here since it adds little to the overall weight of the evidence and is largely argumentative .

101.  For the reasons set out above we respectfully invite the PCS to dismiss the first three complaints on the evidence and to make a specific finding that VG is lying when she accuses IDS of putting improper pressure on her at any time.

Part 4—The Source of Payments Issues

102.  The complaints here (the third and fourth complaints) relate to whether or not IDS paid CW, AL and/or BDS out of the correct source. Put shortly, should he have paid them out of his Parliamentary allowance or ought they to have been paid from Party funds or Short Money?

103.  By the time one reaches this stage of the analysis one has travelled, at least as far as BDS is concerned, a long way from allegations of impropriety. So far as we can tell it has not been suggested that IDS was deliberately misusing his Parliamentary allowance. If such a suggestion were to be made we would most certainly wish to have the further opportunity of addressing it in Written Submissions prior to the PCS submitting a draft Report to the CS because such an allegation has never been put to IDS or any of his witnesses.

104.  For that reason we address these issues very briefly. Some time, in the early stages of the PCS' inquiry, was devoted by Reynolds Porter Chamberlain to persuading the PCS to deal with these matters separately because they are, in truth, very different in nature from the first and second complaints.

105.  It is understood that IDS has written to the PCS very recently about these issues in the light of the recently received material from Mr A Walker of the Department of Finance and Administration. Our submissions here, therefore, simply focus on the main points of principle so far as the third and fourth complaints are concerned. In other words, our submissions are directed towards the central proposition that, absent clearly defined rules, IDS (and others in a similar position) has acted perfectly properly in paying CW, AL and BDS as he did.

106.  IDS' clear understanding is that both his Parliamentary Allowance and Short Money may only be paid for the performance of Parliamentary duties (including, it seems, research) but cannot be paid in relation to party political work. The difficulty lies in defining the distinction between the two. We understand this much to be uncontroversial.

107.  On that footing IDS addresses some of these issues in his main Statement at paragraphs 48-49.[126] In essence he says this:

i)  His Parliamentary duties always extended beyond his political duties to his constituency. As Leader of the Opposition he had numerous Parliamentary duties beyond those owed to the constituency because they also served the national interest. These duties included—in addition to those of an MP—speaking in the House, Prime Minister's Questions, speeches and visits in the community as well as ceremonial and official functions (Statement at paragraph 48).

ii)  As the Reid Report evidences, there is not always a clear dividing line between what is or is not party political (see Reid Report at paragraph 45, 2nd Report and Statement at paragraph 48).[127]

iii)  BDS did not assist IDS with his party political tasks (Statement at paragraph 49). That is, in part, why her contacts were limited and why (for example) she had next to no contact with many of the witnesses who have given evidence to the PCS (ibid).

108.  IDS amplified this before the PCS in oral interview (see Interview transcript at pp. 29-36). The main points that emerged from the discussion are these:

i)  According to IDS' understanding from the Green Book, Short Money and the Parliamentary Allowance were, essentially, similar in nature in that both are directed towards the undertaking of Parliamentary functions (p. 30).

ii)  IDS had three roles being: (a) a constituency MP and a Parliamentarian,(b) Leader of the Opposition—essentially a Parliamentary role and (c) the leader of a political party. There are grey areas as to what is Parliamentary and what is party political and the CS may wish to make more precise judgments. It would, however, be wrong to apply such a judgment retrospectively (pp. 31-33).

iii)  The PCS accepted that there might be an "issue" as to the proper use of Short Money and said he was waiting to hear from the Finance and Administration Department (which he has recently done: see above). However, IDS emphasised that whatever that Department were to say the guidance as to the use of Short Money had not been clear. The PCS said that there was a "potential debate" around the definition of "Parliamentary" and that a different definition has been given in respect of Short Money from the definition in the Green Book in respect of ordinary members' allowances. The PCS further then said that: "... that wider definition in respect of Short money stands, as it were, as the only definition on offer. It has not, I think, formally been before the House/or consideration." Ms Barry referred to it as 'a long running discussion" (Interview transcript at pp. 33-35).[128]Indeed, the recent correspondence between IDS, Mr A Walker and the PCS has established that there is no definition of "parliamentary business" for the purposes of Short Money nor any guidance on the parliamentary duties of the Leader of the Opposition.

109.  In the light of that exchange it is, we suggest, quite impossible to castigate IDS by way of complaint for payments made out of his Parliamentary Allowance whether to BDS, AL or CW. It is obviously an area of current fluidity where, it would appear, insufficient clarification has been provided to date. We would certainly welcome further guidance and/or recommendations from the PCS and from the CS to rectify this situation.

110.  We suggest, too, that in analysing these particular complaints the PCS revisits the evidence of CW. In her Second Statement CW makes it clear that she did not do party political work of any kind (see paragraph 7). It was certainly CW' s view that she was, on proper consideration, paid out of the correct source of funds: note, especially, her question and answer interview with the PCS at Interview transcript pp. 5-17[129] and her Second Statement at paragraph 23.[130] As can be seen, CW's understanding of the relevant payment rules is substantially the same as that of IDS. To similar effect see AE 2nd interview transcript especially at p.8:[131]

'As far as I can see the rules as they stand. I thought I was appropriately paid out of the appropriate pot of money. If it is ruled that I was not appropriately paid, then the rules need to be clarified. I do not think it is clear at all as to who can be paid and who cannot be paid. It just says "to help a Member of Parliament perform his parliamentary duties ", and that is exactly what I was doing.'

111.  That is, perhaps, an appropriate place to end since that is—on these complaints—our case.

Part 5—Conclusions

112.  We are conscious that these Written Submissions can only add to the burden on the PCS of determining these sensitive complaints. We apologise, in advance, for that.

113.  In concluding, therefore, we wish merely to make the following short bullet points and to thank the PCS for addressing matters so conscientiously:

i)  The PCS procedure is challenged on a systemic basis. We understand the very great difficulty that a series of complaints such as the present pose for the PCS. We submit, however, that a procedure that lacks clear rules as to crucial matters such as burden of proof, disclosure and separation of the necessary stages of an inquiry operates, and has operated, unfairly to a person such as IDS in (then at least) the most prominent of public positions.

ii)  If one strips the complaints bare there is nothing in any of them. Unless highly reputable persons—such as IDS, BDS, AE, AWC, AL, RR, and Mr Montgomerie—are lying there is simply no basis for any assertion of impropriety on the part of IDS.

iii)  Crick, VG and MM (singly and together) have caused considerable embarrassment and maximum political damage to IDS as well as greatly extending the time and costs of this inquiry. In the interests of justice any lies that are clearly shown to be lies should be exposed. In the case of VG she has certainly lied in her allegation of improper pressure being put on her by IDS. VG and MM's allegations that the Trend allegations were known to IDS before they became public and that they were material to IDS' decision that BDS would cease employment are similarly false.

iv)  The leaks that have occurred are iniquitous. These, too, should be highlighted in the PCS' Report to the CS. Finally,

v)  When everyone laboured under the belief that payments were being paid from the appropriate source it would be wrong—whatever the final clarification—for any blame to be laid at the door of TDS. These complaints were added as a make-weight. They are the last straw.

114.  We respectfully ask the PCS to recommend dismissal of each and every one of the complaints laid against IDS.

4 February 2004


89   Note by author: It is emphasised that we consider the defects to be systemic in nature in a case such as the present. Thus, we fully recognise the pressures and obligations imposed on the PCS as well as those placed upon IDS. Back

90   See PCS Written Submission 4. Back

91   Note by author: We do not address media disclosure other than by example and have, for the e sake of brevity only, ignored broadcasting disclosure and other plain breaches of the relevant broadcasting Codes. Back

92   See PCS Written Submission 11.  Back

93   Not appended by the Commissioner.  Back

94   Note by author: The PCS' letter to IDS dated October 13th 2003 stated, materially, that: '… the anonymity of these sources makes it difficult for me to weigh/test their evidence.' Back

95   Note by author: The PCS then made it quite clear that, as is required, the fact that he was making further inquiries and expected to report to the CS did not imply that he regarded the allegations against IDS as substantiated. Back

96   Note by author: It was made clear that the allegation of pressure being put by IDS on VG to retract her email of 30th January 2003 was not being made the subject of a complaint by Crick. Back

97   Not appended by the Commissioner.  Back

98   See Volume III, PCS Oral Evidence 7. Back

99   Note by author: Note, too IDS Interview with the PCS at p 19 ("… I have absolutely no doubt at all that my wife worked more than 25 hours [a week] and the reason I have no doubt is that she was working regularly at night, late into the evenings, a number of hours every day, two or three hours most evenings …"). Back

100   See Volume III, PCS Oral Evidence 7. Back

101   See Volume III, PCS Oral Evidence 22.  Back

102   See Volume III, PCS Oral Evidence 23. Back

103   Note by author: We do not propose to interpret the CW memo further since CW-its author-has now given evidence as to what was in her mind when she wrote it. Back

104   See Volume III, PCS Oral Evidence 3. Back

105   See Volume III, PCS Oral Evidence 5. Back

106   See PCS Written Submission 5.  Back

107   See Volume III, PCS Oral Evidence 3. Back

108   See Volume III, PCS Oral Evidence 10.  Back

109   Note by author: Despite the fact that she is not the complainant (and has made no complaint) VG appears to be following the progress of Crick's complaint with keen interest. Even though the only complaint put before the PCS by October 16th 2003 was that BDS had done no work during the relevant period, VG devotes a large portion of her first statement to 'issues relating to Mr Duncan Smith's Parliamentary Office Costs' (WS 13). How had these issues come to her attention? We surmise that VG must, at this time have been hand-in-glove with Crick. Yet this was, according to her evidence, a lady seeking only to protect the interests of IDS. Back

110   Note by author: A political motive is suggested by IDS and VG was questioned about it in her interview with the PCS: see Interview transcript at p 42. [See PCS Oral Evidence 9, Volume III.] Back

111   See PCS Written Submission 13.  Back

112   See Volume III, PCS Oral Evidence 2.  Back

113   See Volume III, PCS Oral Evidence 3. Back

114   See PCS Written Submission 13.  Back

115   See PCS Written Submission 13.  Back

116   See PCS Written Submission 13.  Back

117   See PCS Written Submission 13.  Back

118   See PCS Written Submission 19.  Back

119   Note by author: We do not ignore the evidence of Mr Gilbert who states, in interview with the PCS, that VG raised the issue at some of the unrecorded communications meetings and that VG also raised the issue with him and MacGregor on one occasion when they were together (Gilbert Interview transcript at pp 9-11). However, the urgency or otherwise with which VG raised the matter with persons other than OP-who (we assume everyone knew) was going to raise the matter with IDS or IDS himself is beside the point. OP rarely attended communications meetings (see Gilbert Interview p 11). There would be little point in a response to VG's concerns ad interim. Similar observations apply to the evidence of Mr MacGregor. Back

120   See Volume III, PCS Oral Evidence 10. Back

121   See PCS Written Statement 13.  Back

122   See PCS Written Statement 13.  Back

123   Note by author: VG suggests by implication when questioned by the PCS about other matters that the leaking of the email did not come from her: see Interview transcript at p 49. See, also, her letter dated January 12th 2004 at pp 10-11. [See PCS Oral Evidence 9, Volume III.] Back

124   Note by author: In IDS's statement it is pointed out that allegations of pressure also featured in the Reid case. Such allegations of pressure may have been necessary for VG to explain her concealment of the e-mail of 31st January from Crick. Back

125   See Volume III, PCS Oral Evidence 9.  Back

126   See PCS Written Submission 7.  Back

127   Not appended by the Commissioner.  Back

128   See Volume III, PCS Oral Evidence 3. Back

129   See Volume III, PCS Oral Evidence 23.  Back

130   See PCS Written Submission 25.  Back

131   See Volume III, PCS Oral Evidence 8.  Back


 
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