Examination of Witnesses (Questions 72
- 79)
THURSDAY 15 DECEMBER 2005
LORD TURNBULL
KCB CVO
Q72 Chairman: Could I welcome our
first witness this morning, Sir Andrew Turnbull. It is very good
to see you back. We used to see you regularly when you were in
post. I thought we would have more fun with you when you were
retired and I suspect this is probably going to be the case. It
is very kind of you to come along and help us with our inquiry
into the whole business of memoir writing. You have had some experience
of this and I think you have some views about it, would you like
to kick off with an opening statement?
Lord Turnbull: Yes. I am going
to start like the Vicar of St Anthony's: my text is the Civil
Service Code verses 9 and 13: "Civil servants should conduct
themselves in such a way as to deserve and retain the confidence
of ministers" and "Civil servants should continue to
observe their duties of confidentiality after they have left Crown
employment." You should keep those two sentences in mind
all the way through. Let us start with memoirs. Inherently they
are a good thing: a rich source of history. Many is the time I
refer to Nigel Lawson's memoirs—it is almost a text book.
Our job is to facilitate them, I believe, while protecting what
needs to be protected. The Radcliffe report, which is a beautifully
crafted report, correctly identified what needs protecting; that
is, national security; international relations; confidence between
ministers; and confidential advice from officials. Next: is his
system working? To a large degree, yes, but some flaws are becoming
apparent. I think his 15-year time limit now looks dated and inflexible.
Times have changed and I think the truth is we are less squeamish
than we were—and I would give less weight to time and more
to whether the relevant players have left the scene. There is
a loophole, so-called proxy memoirs, what I would call footballers'
memoirs: "David Beckham"—or "Blunkett"—"as
told to . . . ." is an obvious loophole. I think we need
restraint on material given directly to an author with the expectation
of publication. Next: the guidance is not robust enough about
the point in the process at which the memoirs should be submitted.
It is no good simply submitting a book proof days before publication.
The Radcliffe report makes a distinction between the memoirs of
a minister, who is publicly accountable and therefore entitled
to provide an account of his stewardship (but not to knock someone
else's stewardship), on the one hand and officials and diplomats
who serve on permanent terms, provide advice in confidence, taking
neither blame nor credit. The Radcliffe report reproduces an answer
given by Herbert Morrison in 1946 which makes exactly this distinction.
But over time the enforcement process has really become the same
for both, though in my view the official/diplomat has a less compelling
case to publish his memoirs and that needs to be built into the
system. Is the system being observed? I agree largely with Richard
Wilson: yes, for the most part it is, although with some notorious
exceptions. Clare Short submitted her manuscript and agreed changes.
So too did Robin Cook. So too, after some argy-bargy, did Derek
Scott. In talking later to Sir Christopher Meyer, you in my view
should have no truck with the argument that he could go it alone
because ministers were not observing the system. It was not true
and in any case two wrongs do not make a right. Remedies: I think
the law is too clumsy; the Freedom of Information Act is faulty.
The Freedom of Information Act builds in the concept of protection
of confidentiality but by judging it almost sentence by sentence:
"Will this remark cause damage?" makes it virtually
useless as a piece of protection. The courts have over history
been more or less unusable. Contracts are difficult to enforce,
particularly for people who are, in effect, out of contract. Copyright
is worth looking at, especially for a defined area like intelligence,
but it is not a panacea. If I write an article in a professional
journal on public service reform, am I exploiting HMG's copyright
or providing a public service by making my experience available?
There are some technical remedies around loopholes, early submission
and copyright, but, as Radcliffe concluded and Richard Wilson
drew attention to, the strongest safeguard is a sense of professional
pride, and Radcliffe was right that the real sanction is that
those who flout the guidelines will suffer reputational damage.
Your calling witnesses is helpful in signalling that breaking
confidences is not without cost. Finally, some specific points
you may want to raise with the next two witnesses. I hope you
will ask Sir Christopher what thought he gave to the longer-term
consequences of breaking the confidence of conversations to which
he may have been party, meetings he was at, particularly while
receiving them as visitors, as guests, in the UK residence; and,
secondly, the effect of patronising and derogatory comments in
relation to elected politicians whom an ambassador has been paid,
and paid handsomely, to serve. You may say it is all kind of airy-fairy
old "good chap" stuff but I will give you some concrete
examples of where damage has been done. When a minister goes abroad
he has two choices: to stay in the residence or to stay in a hotel.
I and my colleagues have always urged a minister to stay in the
residence, where they can make full use of the ambassador's experience:
it is better for them and it is better for the ambassador. What
chance, you might ask, do we have of succeeding when ministers
feel they are going to have their confidences betrayed or even
be sneered at? Secondly, when looking at the manuscripts I always
pay particular attention to ministers who write derogatory things
about officials who have no right of reply. It will be much more
difficult for my successors to enforce that if ministers feel
that they will be disparaged by officials or diplomats. Thirdly,
sparing use has been made in this country of political appointments
to ambassadorial posts. I am afraid Sir Christopher Meyer's book
has done no service to his successors in the diplomatic service—a
service of which he claims to be "intensely proud".
Next, you could ask Sir Christopher to explain the logic of paying
the proceeds of serialisation but not the proceeds of the book
to charity, including one personally promoted by his wife. How
can that offset the offence caused by abusing of confidence and
sneering at ministers? Thirdly, I think you have now received
a copy of the correspondence between Sir Christopher and the FCO.
I assume you will want to ask him why he refused to submit the
text to the FCO: Sir Michael Jay is the relevant head of his service.
As the guardian himself of a largely voluntary code, what example
does Sir Christopher set in refusing to adhere to the codes to
which he is subject? I think you should have no truck with the
argument that the book was cleared by the Cabinet Office. First,
it should have gone to the FCO, and, secondly, it was clear that
the Cabinet Office were dealing with a fait accompli[1]—which
is something that has sent both Sir Michael Quinlan and Sir Nicholas
Henderson off the trail. I would commend, incidentally, the Quinlan
article in the Tablet (which is not normally my bedtime
reading). Next: I assume you will explore his continuing role
as Chair of the Press Complaints Commission. This is not "medieval
theology" (to use another Christopher Meyer phrase). What
confidence could a minister or officials have in him as chair,
when presenting a complaint which is written up in a serialisation,
when he has been engaged in this trade himself. If we are dissatisfied
with his handling, who can we turn to but his employers, the Press
Standards Board of Finance, who include the editors who have bought
the serialisation in the first place? I think you need to ask:
Does this piece of governance still have credibility? Turning
to the Lance Price book, there are some issues which are the same
and some which are different. It has the same issue about confidences
betrayed and the same disparagement of ministers. The first question
is simply asking whether it is consistent with the professionalism
of a civil servant to be paid to do a job, go home at night, and
write up other people's conversations and then publish them for
money. When we come to the question of process, the issues are
different. Lance Price did submit manuscripts and did proffer
some excisions. But the Cabinet Office was then double-crossed
because some of the excisions made their way into the press. This
raises two questions: Did you or your publisher have any part
in passing over information about those excisions? Did you—as
many people have said to me—receive a higher serialisation
fee as a result? There is also a question about reputational damage.
I am mystified as to why it would help someone, in seeking a job,
to have established a reputation as someone who would work for
an employer, write down his intimate thoughts and subsequently
publish them. To conclude, much of what is in Radcliffe stands
the test of time: most ministers and civil servants accept its
logic and abide by its provisions. But it remains the case that
those who flout the system can still do so. There are a number
of what I call technical ways in which that could be discouraged
or the penalties increased, but eventually it comes down to professional
pride on the one hand and reputational costs on the other. Finally,
we come to the big C, the Alastair Campbell diaries. Rightly,
he has said he will not publish these until after the Prime Minister
has left office, but by that time you may have published your
report, the Government hopefully will have responded and the bar
may have been raised—the general standard, the test one
has to pass, may have been raised. One has to remember that the
great Sir John Colville diaries were published 40 years after
the end of the war, 30 years after the last Prime Minister he
served and 20 years after the death of Churchill. I will just
finish with this one irony: if you go to Waterstone's the book
that stands on the stand next door to Sir Christopher Meyer's
book is Alan Bennett's Untold Stories and maybe they should
have swapped dustcovers.
Q73 Chairman: Thank you very much
for that. I am sorry I described you as still "Sir Andrew".
You are of course Lord Turnbull now. What is interesting about
that—and there was much that was interesting—is that
when it came to what do we do about it, we got a bit flaky, did
we not, because we then started talking about reputational damage?
Lord Turnbull: Yes.
Q74 Chairman: Is it not the truth
in all this that, whatever we might want to be the case, the dam
has simply burst? Reputational damage, set against financial advantage,
has now simply gone, and getting disapproving looks in the club
does not count for much these days. As you have said, we cannot
go to the courts, we cannot enforce any of this, this is the world
in which we now live.
Lord Turnbull: It is not just
the world in which we now live, it is the world that Radcliffe
was writing about 30 years ago. I think he distinguished between
those issues of national security and international relations
where you were pretty much obliged to take the advice, and those
issues of confidence where you could seek the advice of the Cabinet
Secretary and it was up to you what you did with it. As he said,
reputation was an important sanction. And it still is, I think.
People do care about their reputations. However, I am not saying
there is nothing that can be done but I am thinking, and I think
all previous witnesses have thought, there is no simple technical
solution. I think we can make the processes better understood
and bring them more to people's attention—although it is
in fact their duty to establish their proper terms of service—and
one or two other things. We can make the language more robust.
But I do not think there is a body that you can turn this to,
a kind of national censor—you know, you could reinvent the
Lord Chamberlain and send all the memoirs to him, but I do not
think that is appropriate.
Q75 Chairman: As your own experience
testifies, the rules are quite clear. What people should do is
quite clear.
Lord Turnbull: Yes.
Q76 Chairman: People have decided
they are not going to play by the rules—in fact, there are
great advantages in not playing by the rules—and so we have
all this to-ing and fro-ing : "Will you submit the stuff?"
"No, I won't. I'm going to publish anyway." That is
why I say to you that we have just moved on, have we not? It is
finding some way of handling it. The fact that someone is doing
it, the fact that someone you worked with is doing it and making
a large amount of money out of it, means that you are more likely
to do it, and the whole thing sets in train this vicious circle.
Lord Turnbull: I understood the
purpose of this PASC project, which I strongly support, is to
try to say, "Come on, let's try to get back—
Q77 Chairman: Yes, but I am testing
you on the what-to-do bit. We can talk about implementation but
I am testing you on the what-to-do bit. We have to make the guidance
more clearly, more strongly written. We have to modernise it.
Fifteen years is no longer right in the modern world, we have
to update it, and it is basically a collective endeavour that
you, the Government, the Civil Service and the Diplomatic Service
then have to try to build a consensus that standards have slipped
a bit and we have to bring this back. I think some of the furore
around the most recent memoirs is the point at which—kind
of like Granny's footsteps—people turn round and say, "Yes,
this has really gone too far." We want to make it a lot more
difficult for people coming later to go down the same road.
Chairman: The private sector does not
seem to have these problems. We do not have books called ICI
Confidential, do we? I agree that it may not be the biggest
Christmas seller, but . . . They seem to be able to enforce contracts
of confidentiality more easily. Why does the public sector have
so much trouble with it?
Lord Turnbull: It is partly, if
you are looking at this question of copyright: Can you only define
it ex post? Is that satisfactory? Or to make the system work do
we have to define it in advance? I do not know all the answers
to this because I am not now running the project, but we do need
to look at it. The security service I think is trying to make
a system of copyright work which would not stop someone publishing
but would mean that you could pursue the profits of what they
have had published. You have to build a consensus. The basic consensus
is that we need to get back to these fundamental principles and
give them greater weight. We are at a point where people think,
"Yes, we can generate a better, a stronger consensus."
Chairman: Okay. I am going to ask some
colleagues to come in now.
Q78 Paul Flynn: It is a great life
being an ex-ambassador: you have a fat salary, you are on a glide
path to a sinecure of a job in the PCC or somewhere else and you
have your gong and you complain, as Christopher Meyer has, that
he is at a disadvantage, as a civil servant, because obstacles
are put in his way to publishing and venting his spleen against
his ex colleagues in a way that government ministers and special
advisors are allowed to do this. Do you think there should be
special rules for civil servants as opposed to special advisors?
Lord Turnbull: I think the principles
are the same. I think a minister, in effect, has a right to publish
memoirs: they are directly accountable and are entitled to give
an account of their stewardship. I do not think an official has
the same right. There is not the same need. They have enjoyed,
in some sense, the privilege of permanency. They are always on
the winning side and they give their advice in confidence; they
do not take the credit and they do not take the blame. Then to
come along afterwards and say, "Of course, my view was always
this and I was right" and so on is attempting to get the
ha'p'orth and the bun. In saying, "What is the justification
for this? Should this be allowed?" I think an official/diplomat
has to make a tougher case than a Minister has.
Q79 Paul Flynn: The damage, as you
have rightly said, is profound, so the whole relationship in the
future between diplomats and politicians—and it is not just
staying in the embassy but it is everything else, the whole relationship,
the whole way they negotiate, the confidence they have in one
another—has been destroyed to a large extent. There must
be deep suspicion there in the future. What can we do about it?
Is it practical to declare these memoirs are Crown copyright,
so they do not make profits out of them? Can we give some period
where they do not get their gongs or their sinecures afterwards?
What action do we need to take? Do we need to make confidentiality
agreements, as they have in the private sector? What can we do?
Lord Turnbull: That is the project
that is going on in the Cabinet Office as we speak. I know that
when they took legal advice around the most recent memoirs, the
legal advice was pretty discouraging really for what could be
done. It can be reaffirmed as a duty—it is in the Civil
Service Code already. The issue then is not whether we make it
part of the contract but how easy it is to enforce it and where
you go to enforce it. You go to the courts ultimately. Right back
to The Crossman Diaries the courts have not been terribly
supportive.
1 Ev 1, supplementary memorandum submitted by Lord
Turnbull. Back
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