Examination of Witness (Questions 240-259)
10 MARCH 2005
SIR ANDREW
TURNBULL KCB CVO
Q240 Mr Prentice: May I just say that
Clare Short was at the Cabinet meeting when the Attorney gave
his legal advice and we have copies of a letter that Clare sent
to the Attorney. She said "I am afraid that it is now clear
to me that by failing to reveal your full legal advice and the
considerations that underpinned your final advice, you misled
the Cabinet and therefore helped obtain support for military action
improperly. This is a very serious matter". Clare Short was
a participant as a Cabinet minister and she believes that there
is in existence—
Sir Andrew Turnbull: The Attorney
General will write today, tomorrow, very soon, repudiating that
view.
Q241 Mr Liddell-Grainger: She also says
"There were then many voices calling for me to be quiet .
. . and no discussion was allowed". Is that true?
Sir Andrew Turnbull: Not to my
memory, no.
Q242 Mr Liddell-Grainger: It is part
of Clare's letter; it is page two.
Sir Andrew Turnbull: I am not
answering for her view.
Q243 Mr Liddell-Grainger: I am just asking
for your recollection. Was there discussion at the time?
Sir Andrew Turnbull: I have no
recollection of anyone saying this could not be discussed. The
whole purpose was for the Attorney General to come there and answer
questions.
Mr Liddell-Grainger: I do not understand
this.
Q244 Chairman: People have been asking
for the full legal advice endlessly now. Requests have gone in
to the Ombudsman, requests have gone into the Information Commissioner
under the new freedom of information regime and then you are saying,
well there is not any full advice anyway to ask for.
Sir Andrew Turnbull: I am not
denying that there are other papers and he is claiming legal privilege
in relation to those other papers, but he has set out his conclusion
in the text of the PQ.
Q245 Chairman: All that we know; we know
about the professional privilege and we know the grounds and we
know the exemptions and we know the summary, whether it is a summary
or not. It is the question of whether there did exist on that
day when the Cabinet discussed it and therefore could, in principle,
have had access to it as the Ministerial Code said that they should,
whether it existed then, or whether indeed it exists now. That
is what we are trying to get to the bottom of.
Sir Andrew Turnbull: He believes
that he set out a conclusive view which was sufficient to allow
them to discharge their responsibility and also sufficient to
allow him to discharge his responsibility to give a clear view,
the conclusion that he had reached on this issue, and that is
what he said he did.
Q246 Chairman: Well you can see why Lord
Butler and others might think that it becomes very difficult for
Cabinet government to operate and to interrogate advice which
is highly contentious, if the full grounds for it are not available
to them.
Sir Andrew Turnbull: Did he say
that, having looked at it, he suddenly thought that the whole
world was completely different? He did not conclude that. You
need to see the reply which the Attorney gives to this letter
he has received from Clare Short, which will come out later today
or tomorrow.
Q247 Chairman: It is the sheer unnecessary
difficulty of all this which is difficult to understand.
Sir Andrew Turnbull: He is protecting
a position of legal privilege, which legal advisers, not just
in government but in the commercial world, have relied on for
years and years.
Q248 Chairman: No, we understand completely
about the case for not disclosing. That is the case which clearly
will be tested shortly and we know all about that. What has arisen
now is about the very status and existence of a full advice document
and you have suggested that it may not even exist. That is a quite
separate issue.
Sir Andrew Turnbull: He regards
this as his conclusion.
Chairman: We have been round this a few
times. Let us move on.
Q249 Brian White: What do you think is
the relationship between the civil service and the private sector
doing civil service type work?
Sir Andrew Turnbull: It can be
a partnership. Let us divide things into two. There are certain
functions which the Government, over time, has decided do not
need to be discharged by central government. That was basically
the privatisation debate which ran for nearly 20 years and that
defined what you might call the external boundary of the public
sector. There is very little still in the public sector that anyone
is seriously considering privatising; maybe a small thing, but
nothing major. There is then a series of services where the Government
is saying, we have a responsibility to deliver this service, education,
health, criminal justice, etc, but we have choices about which
resources we use to deliver that on our behalf. In some cases,
take prisons as an example, they say we will provide custodial
capacity using our own resources, which is HM prisons, but we
will discharge some of that responsibility to keep people under
lock and key, by contracting with the private sector. Now this
is a debate which goes on; it is a similar debate in education,
it is a similar debate in health. You can retain the responsibility
to provide the service, you are funding it 100%, you are determining
the standards, you are determining people's eligibility and then
you can have a separate decision as to whether you do it all yourself.
It is a make or buy decision and that is being approached actually
quite pragmatically. The Prime Minister has this phrase, "What
matters is what works". He does not have a view which says
the health service must always be provided by organisations owned
by the health service or staff employed by the health service;
it can be a mixed provision, but it is still the health service
funded by, and people's rights to it determined by, the Government.
Q250 Brian White: So if you had a function
that was being done by a private sector company quite adequately,
you would not expect the civil service department to then try
to take over that work and put those private companies out of
business.
Sir Andrew Turnbull: No.
Q251 Brian White: So, why are you doing
it in the Office for National Statistics with regard to direct
mailing for people who are dead? Why are you doing it at the Department
for Transport in regard to websites that are actually showing
people where to go and spending a lot of money in doing that?
Sir Andrew Turnbull: If you believe
you can provide a better service, better value for money by enlisting
the help of the private sector, then you should do it.
Q252 Brian White: That is not what you
are doing.
Sir Andrew Turnbull: You may actually
want contestability, you may actually indicate—
Q253 Brian White: I am sorry, but you
are not answering the question. The question is that you actually
have private sector companies doing this work now and the Civil
Service, in two departments I have listed, Office for National
Statistics, Department for Transport, is actually seeking to put
those companies out of business and take on the work itself. Why
are you doing that?
Sir Andrew Turnbull: You are talking
about the reverse.
Q254 Brian White: Absolutely.
Sir Andrew Turnbull: That is contestability
working. You do not start with a kind of pre-judgement which says
you are going to take this work over. You start with a judgment
which asks whether this work is better done in-house or bought
in and you then make an assessment. Some things which have gone
out you may actually decide you want to take back in-house. There
have been prisons which went out into the private sector. They
were then market tested and the public sector won that second
round and things were kind of repatriated.
Q255 Brian White: What criteria do you
use for judging that?
Sir Andrew Turnbull: Quality of
service and value for money.
Q256 Brian White: If we take something
like the e-university, where you chose not to use the Open University
and you have just been criticised by the National Audit Office
for that, what lessons have you learned from that?
Sir Andrew Turnbull: I was not
involved in that particular decision. I would hazard a guess that
one of the reasons that you may not have chosen to use an existing
supplier is that you wanted to develop the market, so that there
was more than one player in this field. You are always better
off if you have more than one provider. In this case it did not
work.
Q257 Brian White: Let us move on to a
slightly different area. These are all to do with your role in
improving delivery.
Sir Andrew Turnbull: Yes.
Q258 Brian White: You have a number of
pilots happening in local government at the moment on a whole
range of subjects, e-government and a whole range where local
government is taking delivery forward far faster than central
government. Yet there are departments which are looking for a
uniform view of the delivery of that service, irrespective of
what the local circumstances are. Why is that?
Sir Andrew Turnbull: I do not
know; this is too hypothetical. Can you give me an example?
Q259 Brian White: I can give you plenty
of examples, if you go to the work on e-government pilots, where
the ODPM is now saying that instead of providing choice, it would
be one set of deliveries.
Sir Andrew Turnbull: Sorry, which
pilots?
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