Memorandum by PIELLE Consulting Group
(GBI 04)
SUMMARY OF
MAIN POINTS
The Public Administration Select Committee's
current investigation into "Government by Inquiry" queries,
at Question 21 of its consultation document, whether major issue
inquiries "change the conduct of public life".
Following a review of existing practices, we
submit that Lord Hutton's Inquiry into the death of Dr David Kelly
set, in its judgement, new and lower standards on the duty of
care that organisations have towards individuals, including on
the protection of the privacy of individuals and the confidentiality
of information held about them.
The PASC also seeks to establish, at Question
22, if there should be formal systems for following up on the
recommendations of these inquiries, their impact and who should
be responsible.
We submit that there should be formal systems
for following up on the recommendations of Inquiries.
We recommend that judgements made by such inquiries
should be subject to follow up to ensure that there is no conflict
between the judgement in a specific case and the established processes,
procedures and best practices generally applied by Government,
public service organisations and the people working for them.
Similarly, for their impact on the private sector particularly
where it is subject to a common regulator and/or market conditions
influenced or set by government.
PIELLE Consulting, as an established specialist
communication firm, has conducted a review to inform this investigation,
into the influence Lord Hutton's rulings on the duty of care and
disclosure may have in respect of changing the conduct of public
life.
We believe we have established that these rulings,
if adopted as new "standards", will change existing
issue of communication protocols and alter the way in which future
communication guidelines deal with the disclosure and confidentiality:
— Key sources we looked at were: The
Department of Health, The Chartered Institute of Personnel and
Development, the Press Complaints Commission, The Institute of
Public Relations and the Home Office and the Department for Constitutional
Affairs.
— The existing guidance, codes and
best practices were compared to the ruling that Hutton gave to
justify the actions of the MoD, identifying that the ruling itself
set out new possible boundaries for issues of disclosure.
— Each of the organisations reviewed,
had specific rules and guidelines that establish the way they
or their members should deal with matters of disclosure and confidentiality.
— The judgement of Lord Hutton that
the MoD was not at fault in revealing Dr Kelly's identity into
the public domain as "it would not have been practical to
keep Dr Kelly's name a secret" due to the intense media attention,
does not align with existing communication protocols and management
practices.
— Hutton acknowledged that the MoD
did not fully exercise its duty of care, but also justified its
actions in the treatment of Dr Kelly.
— Hutton also stated that the MoD had
no choice but to disclose Dr Kelly's name, "otherwise they
would have been charged with a serious cover up".
— These "justifications"
for disclosing the identity of an individual undermine the basic
duty of care of organisations to individuals and affect the conduct
of public life by potentially having lasting effects on communication
practices in dealing with disclosure.
FULL SUBMISSION
Lord Hutton, in his report, set a new precedent
for communication practices by justifying the Ministry of Defence's
(MoD) decision to disclose the identity of Dr Kelly. He created
possible new boundaries on the issue of disclosure and duty of
care.
1. Introduction
1.1 The MoD, as recognised by Lord Hutton
in his inquiry, did not meet the standards required to ensure
that Dr Kelly was given a proper duty of care and support in the
lead up to his death. However, Lord Hutton also recognised that
Dr Kelly had "a difficult nature" and branded him as
a man "who was hard to help", which, in conjunction
with the intense media pressure gave the MoD sufficient grounds
to disclose his name to the public domain. This, Hutton saw as
a good enough reason to justify the actions of the MoD, in turn
paving the way for new guidelines in which confidentiality issues
on exposure no longer seem as important as they should be.
As established expert communication practitioners,
PIELLE Consulting has examined the issues surrounding the duty
of care and disclosure in the Hutton inquiry. Our aim was to examine
whether the ruling that Lord Hutton gave changed guidelines in
communication practices for what is already seen as accepted protocols
for information and public relations practitioners in dealing
with confidentiality and disclosure.
2. Establishing duty of care
2.1 In order for Hutton to change protocols
and shift the boundaries concerning disclosure, it was necessary
to first identify established guidelines or codes of conduct to
which companies and organisations adhere.
2.2 When looking at confidentiality issues
and the disclosure of information, the Data Protection Act (1998),
set boundaries for the release of information to protect the data
subject or person, especially in cases where consent could not
be given by those in question. This ensured that vital personal
information was not disclosed and acts as a general guideline
for organisations and companies to follow.
2.3 PIELLE Consulting, in common with other
communications professionals, uphold The Institute of Public Relations'
Code of Practice (October 2000). This states that without specific
permission, information should not be disclosed. It also adds
a responsibility for honesty and fairness when dealing with clients
as well as staff:
ii—Deal Honestly and fairly in business
with employers, employees, clients, fellow professionals, other
professions and the public.
— IPR Principles of Good Practice
Not disclosing confidential information unless
specific permission has been granted or the public interest is
at stake or if required by law. [1]
2.4 These guidelines, although broad, set
firm foundations when the issue of disclosure and confidentiality
are concerned.
3. Department of Health
In dealing with patients and staff at health
organisations, these guidelines become more complex, but they
still keep to the underlining principles.
3.1 The common law alongside the Data Protection
Act 1998 and the Human Right's Act 1998 all protect the privacy
of patients and their information, which must not be used without
their consent. This shows that health organisations have codes
that they must adhere to when dealing with confidentiality. The
NHS also developed a code of conduct for their managers in October
2002, giving a general duty to ensure the safety of patients and
their personal details. The code states the need for confidentiality,
as managers have access to vital information and not all to do
with patients. It clearly recognises that there is a need, and
an expectation of the managers for maintaining patient confidentiality:
— Respect patient confidentiality;
— Use the resources available in an
effective, efficient and timely manner having proper regard to
the best interests of the public and patients. [2]
3.2 Health care organisations must then,
adhere to a set of rules that govern their procedures on releasing
information showing that they have a duty of care to provide to
both their employees and their patients. Intense media pressure
would not, we submit, be sufficient justification for releasing
patient information or the identity of an individual patient.
4. Chartered Institute of Personnel and Development
4.1 This organisation specialises in ensuring
the development of good practice in the management of people.
They set out guidelines that are followed by managers for their
staff and company making sure that they uphold the highest possible
standards for the development of employees, which benefit the
organisation for which they work. The CIPD's current Code of Professional
Conduct and Disciplinary Procedures was introduced in 2002.
4.2 This code outlines the responsibilities
human resource and other managers of people have to their colleagues
and other members of staff. While focusing on the development
of good practice for managers and human resource, it confirms
responsibility for confidentiality:
— Must respect legitimate needs and
requirements for confidentiality. [3]
4.3 While the Data Protection Act governs
personnel records and record-keeping, human resource managers
are specifically reminded by this element of their code of conduct
of their responsibility to individuals to maintain confidentiality
as part of an employer's duty of care.
5. Press Complaints Commission
5.1 The BBC was an important element in
the debate surrounding Dr Kelly's death. Dr Kelly had told the
MoD in good faith that he had met a BBC journalist, although he
knew disciplinary action may follow.
5.2 The MoD acted on this information and
sought confirmation from the BBC that Dr Kelly was indeed their
"single source".
5.3 The BBC did not confirm the identity
of their source in line with the established practices of journalists
in broadcast and print media, highlighted in the journalists'
code of practice of the Press Complaints Commission (2003):
— Journalists have a moral obligation
to protect confidential sources of information. [4]
5.4 In protecting Dr Kelly's identity, and
even that of the "single source", the BBC adhered to
the Press Complaints Commission's code of conduct and exercised
their duty of care to their informant.
6. Home Office; Department for Constitutional
Affairs
6.1 The Freedom of Information Act (2000)
identifies a range of responsibilities, including for Government
and the conduct of public life including:
— To maintain high standards of care
in ensuring the privacy of personal and commercially confidential
information; and
— To preserve confidentiality where
disclosure would not be in the public interest or would breach
personal privacy or the confidences of a third party. . . . [5]
6.3 The Act states that access to information
should not be restricted, provided that personal information,
concerning individuals or organisations, is treated confidentially.
7. Changing protocols
7.1 It is evident from the transcripts within
the Hutton report that boundaries were shifted in the responsibility
of an employer to its employees in terms of duty of care and the
disclosure of identity, impacting on existing communication practices.
8. Disclosure of Dr Kelly's name
8.1 Lord Hutton's report states:
— "The MoD was at fault in not
having set up a procedure whereby Dr Kelly would be informed immediately
his name had been confirmed to the press and in permitting a period
of one and a half hours to elapse between the confirmation of
his name to the press and information being given to Dr Kelly
that his name had been confirmed to the press." [6]
— "The idea of Dr Kelly's name
being made public had not been discussed with him. The time that
you would have had to consider it, between when he was consulted
about the final version of this statement and when it went out,
would have been insufficient for him to consider it properly and
to make what other arrangements he needed." [7]
— "I consider that once the decision
had been taken on 8 July to issue the statement, the MoD was at
fault and is to be criticised for not informing Dr Kelly that
its press office would confirm his name if a journalist suggested
it." [8]
8.4 After the MoD revealed Dr Kelly's name,
he was only informed about one hour and half later, leaving him
insufficient time to relocate himself without being exposed to
the media that was then trying to locate his whereabouts.
8.5 Procedures were not put in place by
the MoD to have Dr Kelly relocated to avoid media pursuit and
exposure. Pamela Tere had stated that there clearly was insufficient
time especially to make any other arrangements. They advised him
to either stay in a hotel or stay with a close relative. Nothing
had been offered to Dr Kelly; he had to make his own arrangements.
— Dr Kelly telephoned her (Mrs Wilson,
Chief press officer in the MoD) and said that Nick Rufford (reporter
from the Sunday Times) had been in contact with him and asked
him why he was not now in a hotel. Dr Kelly told Mrs Wilson that
he was now minded to go to family or friends.[9]
8.6 While Dr Kelly was away, the MoD was
trying to reach an agreement for his appearance in front of the
two select committees. It was said that even though they would
allow Dr Kelly to be present in front of both committees, questions
from the Foreign Affairs Select Committee should be limited to
those concerning Mr Gilligan, as their report had been completed.
Sir Kevin Tebbit, the permanent secretary of the MoD, did not
tell Dr Kelly of this agreement put forward by the MoD to the
select committees:
— Given that Dr Kelly is a relatively
junior official who played only a limited role in the preparation
of the Dossier, we should invite Donald Anderson to agree that
the Committee will confine its questioning to matters directly
relevant to Andrew Gilligan's evidence. [10]
8.7 As a result, before going to the committee,
Dr Kelly had requested that he be accompanied by a colleague,
so that they could answer any technical questions that might be
asked. While in a briefing with the MoD, Dr Kelly was told that
he had no specific guidelines to keep to when answering the questions
from either committee, and on this basis Dr Kelly then withdrew
his application for the assistance of a colleague to accompany
him:
— Wells asked Kelly how he wanted to
take forward his wish to be accompanied by a colleague to the
FAC. Kelly replied that, on the basis of this present meeting,
he did not feel the need to have a colleague alongside him. He
was aware that Wells would be accompanying him to the evidence
sessions. [11]
8.8 In the interview with the FAC, Dr Kelly
was asked whether he was aware that he was being treated differently
to other civil servants:
8.8 (a)
— Q166: Andrew Mackinlay: Do
you know of any other inquiries, which have gone on in the department
to seek the source—to clarify in addition to you or instead
of you or apart from you?
8.8(b)
— Q155: Sir John Stanley: Who
made the proposition to you, Dr Kelly, that you should be treated
absolutely uniquely, in a way which I do not believe any civil
servant has ever been treated before, in being made a public figure
before being served up to the Intelligence and Security Committee?
Dr Kelly: I cannot answer that question.
I do not know who made that decision. I think that is a question
you have to ask the Ministry of Defence.
Q156: Sir John Stanley: So you did not
make it yourself?
Q157: Sir John Stanley: We have to assume
therefore that your ministers then are responsible for treating
you uniquely as a civil servant in highly publicising you before
going to the Intelligence and Security Committee?
Dr Kelly: That is a conclusion you can
draw. [13]
9. Setting New Protocols
9.1 While Hutton was critical of the lack
of appropriate support to Dr Kelly, he justified their actions,
shifting the basis of standards in communication practices and
duty of care to individuals and their privacy:
9.1(a)
— "The decision by the MoD to
confirm Dr Kelly's name if, after the statement had been issued,
the correct name were put to the MoD by a reporter, was not part
of a covert strategy to leak his name, but was based on the view
that in a matter of such intense public and media interest it
would not be sensible to try to conceal the name when the MoD
thought that the press were bound to discover the correct name,
and a further consideration in the mind of the MoD was that it
did not think it right that media speculation should focus, wrongly,
on other civil servants." [14]
9.1(b)
— "It was reasonable for the Government
to take the view that, even if it sought to keep confidential
the fact that Dr Kelly had come forward, the controversy surrounding
Mr Gilligan's broadcasts was so great and the level of media interest
was so intense that Dr Kelly's name as Mr Gilligan's source was
bound to become known to the public and that it was not a practical
possibility to keep his name secret." [15]
9.2 Lord Hutton gave other reasons that
he described as "mitigating circumstances" as to why
the MoD and the Government treated Dr Kelly the way they did:
— These criticisms are subject to the
mitigating circumstances that (1) Dr Kelly's exposure to press
attention and intrusion, whilst obviously very stressful, was
only one of the factors placing him under great stress; (2) individual
officials in the MoD did try to help and support him in the ways
which I have [previously] described and (3) because of his intensely
private nature, Dr Kelly was not an easy man to help or to whom
to give advice." [16]
9.3 Lord Hutton further justified the actions
of the MoD and the Government by stating that:
— ". . . In the midst of a major
controversy relating to Mr Gilligan's broadcasts which had contained
very grave allegations against the integrity of the Government,
and fearing that Dr Kelly's name as the source for those broadcasts
would be disclosed by the media at any time, the Government's
main concern was that it would be charged with a serious cover
up if it did not reveal that a civil servant had come forward."
[17]
10. It can be seen that Lord Hutton effectively
shifted protocols on management and communication practices, potentially
setting a precedent for future communication management within
the government and for communication practitioners, thus changing
the conduct of public life.
10.1 Mitigation of the breadth given by
Lord Hutton's judgement could readily be deployed in the
face of "media pressure" on, for example:
10.2 Any organisation—public or private
sector—when the media is in pursuit of a story involving
an employee, contractor or customer
10.3 Any organisation—public or private
sector—when a campaigning group is in pursuit of its aims
and seeks to target an individual [an anti-abortion group, for
example, seeking information on the identity of health care practitioners].
11. We conclude that
11.1 In judgements made by Lord Hutton in
his report on the inquiry he conducted into the circumstances
leading to the death of Dr Kelly, Lord Hutton has potentially
set new—and lower—standards in the duty of care of
an organisation to an individual, particularly in respect of disclosure
of identity or other personal information.
11.2 Inquiries of this nature can, therefore,
demonstrably, change the conduct of public life.
11.3 In so doing, Inquiries of this nature should
have their recommendations and judgements followed up and assessed
against existing practices, guidelines and codes to ensure that
new standards are not set by default.
11.4 Any post enquiry review of the impact
of recommendations and rulings on established and existing practices,
guidelines and codes of behaviour should not be limited to the
machinery of government and the public sector alone. The active
involvement of those parts of the private sector likely to be
impacted by any new de-facto standards should be involved in any
such review together with the relevant professional and vocational
membership bodies responsible for those codes of conduct and best
practice that govern the conduct of their members.
12. Sources [1] — DoH,
NHS Managers' Code of Conduct, section 1
[2] — CIPD, Code of Professional Conduct
and Disciplinary Procedures, section 4.1.7
[3] — IPR Code of Conduct, section
A, October 2000
[4] — Press Complaints Commission,
Code of Practice, No. 15
[5] — Source: Home Office,
Department for Constitutional Affairs, code of practice to access
government information, section two.
[6] — The Hutton Report, Chapter nine,
section 439
[7] — The Hutton Report, Chapter nine,
section 296
[8] — The Hutton Report, Chapter nine,
section 439
[9] — The Hutton Report, Chapter three,
section 83
[10] — The Hutton Report, Chapter
four, section 88
[11] — The Hutton Report, Chapter
four, section nine, part (VI)
[12] — The Hutton Report, Chapter
four, section 103, question 166
[13] — The Hutton Report, Chapter
four, section 103, question 155
[14] — The Hutton Report, Chapter
nine section 428
[15] — The Hutton Report, Chapter
12, section four part (iii)
[16] — The Hutton Report, Lord Hutton's
Statement, section 71
[17] — The Hutton Report, Chapter
nine, section 427
13. Bibliography of Materials and organisations
accessed in preparation for this paper; http://www.publications.doh.gov.uk/nhsmanagerscode/codeofconduct.pdf
Manager's code of conduct—2002
http://www.pcc.org.uk/cop/cop.asp
Press Complaints commission—2003
http://www.homeoffice.gov.uk/ <http://www.homeoffice.gov.uk/>
Home office
http://www.cipd.co.uk/NR/rdonlyres/2283546A-F73F-46BB-BBEB-281DACC268DC/0/2567CodeOfConduct.pdf
CIPD code of conduct—2002
http://www.the-hutton-inquiry.org.uk/content/rulings.htm
The Hutton Inquiry
http://www.alg.gov.uk/upload/public/attachments/166/Policies—and—procedures—summary.doc
Association of local Government—November 2002
http://www.dti.gov.uk/er/agency/regs-pl971.htm#intro
DTI employment agencies act—1973
http://www.gmc-uk.org/standards/default.htm
GMC
http://www.ipr.org.uk/direct/membership.asp?v1=code
Institute of Public Relations code of conduct—October
2000
www.chelmsfordbc.gov.uk
Institute of Public Relations—Local Government
Correspondent—Pat Gaudain, Chelmsford Borough Council
www.standardsboard.co.uk
Standards Board
http://www.nhsia.nhs.uk/confidentiality/pages/docs/swc.pdf
NHS—Share with Care, people's views on consent
and confidentiality of patient information, October 2002
http://www.hmso.gov.uk/acts/acts1998/19980029.htm
Data Protection Act 1998
http://www.hmso.gov.uk/acts/acts1998/19980042.htm
Human Rights Act 1998
http://www.dh.gov.uk/assetRoot/04/06/92/54/04069254.pdf
Department of Health, NHS Code of Practice, November
2003
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