May 2023

BBC bosses, my part in their downfall – part 1

BBC / /

It was twenty years ago today, at seven minutes past six in the morning to be precise, when the Today programme’s defence reporter Andrew Gilligan, mumbling and umming his way through a broadcast like he was still half asleep, said he’d been told that a government intelligence dossier had been ‘sexed up’ – thereby setting in motion a chain of events that led, via the shocking suicide of the biological weapons expert David Kelly, to an immense head-on clash between the Blair government and the BBC.

I was involved in these events. In 2003 I was normally a BBC radio producer, but for several months I was allocated to working with the top management on this fraught affair, as they wanted a journalist to help analyse and evaluate the conflicting claims and evidence.

The dispute intensified uncomfortably and then after Kelly’s death became the subject of the Hutton Inquiry – the outcome of which was thoroughly disastrous for the BBC, requiring the rapid resignation of the corporation’s two leading figures.

A lot has been written about all of this. At one point my brain was crammed with every minor detail, every twist and turn, every argument and counter-argument, of the whole complex saga, and could have written a lot myself. But time has moved on.

Instead over the next few days or so I am going to post some broader recollections that still seem pertinent to me.

* * *

As with many other historical incidents, the outbreak of open conflict between BBC and government can be seen (according to your taste) either as a series of contingencies or as something almost inevitable that was waiting to happen.

The underlying fundamentals driving events were as follows. By May 2003 the situation in Iraq was deteriorating, in the wake of the initially successful US-led military campaign. Contrary to some pre-war intelligence briefings, no evidence that the Iraqis still had an active programme for weapons of mass destruction (WMD) had been found. The external and internal pressure on the government was mounting. And Downing Street (including Tony Blair personally) was getting increasingly stressed and irate over how the BBC was reporting matters. The BBC, however, was determined to stand up for its independence.   

On the other hand there were many forks along the route where any of those involved could have chosen to travel another path. This includes the BBC.

One of the reports I wrote for internal use during this period identified 14 possible ‘turning points’ where the BBC management could reasonably have acted differently. But that was with the benefit of hindsight, and events took the course they did for understandable reasons.

* * *

In due course it turned out that there was much that was right in Andrew’s controversial reporting of this. But it wasn’t all correct.

His critics regarded him as a reporter who’d distorted the facts. I’d been a colleague of his previously when I was a producer on the Today programme on Radio 4. My experience of collaborating with him on stories was that he wanted and tried to get things right. In my direct dealings with him when we worked together he was conscientious and not cavalier about this.

But there were problems with the way he operated. Most of the time no one on the show seemed to know where he was or what he was up to, but periodically he would materialise in the office with what appeared to be a good story.

He was a maverick and an individualist. He didn’t like anyone else having oversight of what he was doing. Especially people he didn’t rate highly, and there were a lot of those. The result was that this made it difficult for other people to protect him – and the programme – from his mistakes.

Editors exist for a reason. Everyone makes mistakes. Reporters benefit when they regard and treat editors as a help, not as a hindrance.

In retrospect there was one story which seems ominously predictive of the way the Kelly coverage went. During the 2001 general election Andrew and I worked together on an investigation about possible postal vote fraud. I thought he did an impressively excellent job on it, and I was very happy with the scripted package that was broadcast.

But on the day it went out I was surprised to discover that he’d also done an early morning unscripted interview with the programme presenter (what was called a ‘two-way’ in our jargon). It transpired that in this he’d got confused and managed to get a central fact wrong. He hadn’t asked me in advance what he should say. Consequently his two-way and the programme’s reporting of the issue were ridiculed by people who knew about electoral law.

As far as I can recall now, I didn’t do anything about this. That was probably one of my mistakes.

* * *

More follows soon.

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Clare Page v Information Commissioner and the School of Sexuality Education

FOI / / , ,

Preamble

This is about an FOI tribunal case which has prompted a good deal of controversy and media comment from people who are concerned, in various different ways, about its ramifications. I do not address these wider points here. My aim is simply to summarise clearly the underlying issues that directly relate to freedom of information law and procedure.

Background

The case involves an FOI request made by Clare Page in December 2021 to Hatcham College, a secondary school in New Cross, south London.

In September 2021 Page’s daughter had attended a relationships and sex education lesson at the school, which was delivered by an external provider, the School of Sexuality Education (SSE). Afterwards, Page had concerns about the content of the lesson, which she raised with Hatcham College. During a meeting at the school she saw some of the slides used in the session, which the school had obtained from SSE for this purpose. Page then submitted an FOI request for more information about the lesson, other lessons on relationships and sex, and the school’s involvement with SSE.

The school is part of an academy trust, Haberdashers’ Aske’s Federation Trust, which supplied some of the material requested but withheld other material. Page complained to the Information Commissioner’s Office, who backed the trust’s refusal in a decision issued in September 2022.

Page then appealed against the ICO’s decision to the First-tier Tribunal, which has just heard the case, finishing today. The ICO submitted written arguments but declined to take part in the oral hearing (as is not uncommon). Hatcham College and the academy trust did not participate in the tribunal proceedings. The School of Sexuality Education was represented, supporting the position of refusal to provide the information to Page.  

I listened in to the submissions made to the tribunal today. There is also an account of the hearing in the live tweets at this site.

The judge Sophie Buckley said that the tribunal’s judgment would be issued within four weeks of the completion of today’s hearing.

The issues

The issues to be determined by the tribunal are:

1. Would disclosure of the presentation slides used in the lesson be an ‘actionable breach of confidence’? If so, then the information can be withheld under section 41 of the FOI Act.

The SSE’s barrister Susan Wright argued that disclosure would be an actionable breach of confidence, on the grounds that it would be detrimental to SSE if its intellectual property was placed in the public domain and made accessible to competitors, that unrestricted disclosure of the material was not necessary in the public interest, and that the school would have no valid defence for an action for breach of confidence. This was also the view of the Information Commissioner.

Page’s barrister Zoe Gannon argued that the possibility of any competitive disadvantage was exaggerated given new government advice on disclosing such materials, and that the public interest requires parents to be able to know what their children are being taught, and in particular to find out the content of sex education lessons, as they have a legal right to withdraw their children.

Initially the school used section 43 of the FOI Act to withhold information, on the basis that disclosure would damage SSE’s commercial interests and be against the public interest. However the Information Commissioner relied instead on section 41 to reject Page’s complaint. If the tribunal now backs Page’s appeal under S41, this involves deciding that the overall balance of the public interest favours disclosure, and so the logic is that this would also result in her winning over any S43 objection too.

2. Should the school reveal the names of the two representatives of SSE who delivered the lesson?

This is their personal information. Personal data should be withheld under FOI where this would be in line with data protection law, including the UK General Data Protection Regulation (GDPR). The key legal test is laid down in GDPR Article 6(1)(f) – effectively, is releasing this information ‘necessary’ for the ‘legitimate interests’ pursued by Page and do these interests override the interests of the people who are the subject of the information (ie the people who would be publicly identified)?

The SSE’s barrister Susan Wright argued that there was a risk of harassment to the two individuals if they were named publicly. The ICO view was that questions of suitability of the individuals could be addressed by means other than identifying them. Page’s barrister Zoe Gannon argued that the risk of harassment was overstated and it was trumped by Page’s legitimate interest of finding out more about the lesson providers who had taught her daughter.

3. Did Hatcham College carry out full searches for all the information requested?

Page argues that the school failed to conduct proper and thorough searches for lesson material on what might be thought of as the most contentious topics in other lessons. The school argued that this material was not prepared, and so was not actually held.

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‘Oh dear’, the view within Whitehall

FOI / / ,

‘It’s not good’, ‘Oh dear’ – civil servants uneasily puzzling over how messages relevant to a freedom of information request disappeared from Nadhim Zahawi’s mobile phone when he was a business minister.

This is part of an FOI disclosure to me, which reveals as well how the Cabinet Office discouraged government departments from checking personal mobile phones or private email accounts for material when answering FOI requests.

The documents also show that the Department for Business, Energy and Industrial Strategy (BEIS), which was dissolved earlier this year, had a blanket policy requiring all releases of information under FOI to get clearance from the departmental press office and ministers’ special advisers.

This process would make it easier for FOI responses to be improperly affected by political interference and communications considerations.

BEIS also relied on the controversial Cabinet Office FOI Clearing House to approve an FOI response it intended to send.

All this is apparent in an FOI reply to me from the Department for Energy Security and Net Zero, a successor to BEIS. The government refused to release this material until it was forced to do so by the Information Commissioner’s Office.

According to the records disclosed, in 2021 the Cabinet Office told BEIS that it should ‘not normally be necessary’ for departments to ask individuals to search their personal devices or accounts for official information relevant to a request, unless there were ‘limited and exceptional circumstances’.

Ministers and officials are supposed to copy to official record systems any messages from their personal devices or accounts that constitute government business. However in reality it is plain that this often doesn’t happen, even though these communications are legally subject to FOI.

A few weeks ago the Cabinet Office issued new guidance which is more in keeping with the law. This states: ‘When responding to information access requests, departments should consider if relevant information may be held in NCCCs.’ (NCCCs are ‘non-corporate communication channels’, such as private email accounts and chat apps on mobile phones).

My request for information related to the department’s handling of an earlier FOI application in April 2021 from the Times journalist George Grylls. This was for messages between Nadhim Zahawi, then a junior business minister, and David Cameron, about Greensill Capital, the financial services company for which Cameron lobbied. Grylls’ request specifically included asking for Zahawi’s phone to be searched.

BEIS replied to Grylls that it did not hold any information within the terms of his request, which was puzzling as Cameron himself revealed some such messages to a Commons committee.

It later transpired that Zahawi had informed officials at BEIS that he did not have any messages from Cameron on his phone. When pressed he said he attempted to find the WhatsApp messages on his mobile but they were no longer there.

BEIS told the ICO: ‘It is our understanding that Mr Zahawi does not know how the WhatsApp messages from Mr Cameron came to be deleted from his mobile phone.’

The disclosure to me reveals some anxious discussion among BEIS civil servants struggling with how to handle the issue of information disappearing from Zahawi’s phone. On discovering that the WhatsApp setting enabling automatic deletion of messages had only been introduced in November 2020 and was not retrospective, one wrote ‘it’s not good’, and another replied ‘oh dear’. A senior private office official added: ‘I’m just getting a bit worried about the effect of another clarification/exchange with him [Zahawi] on this.’

The disclosure also sheds light on the approval procedures for FOI replies from BEIS. The officials responsible for handling the request from Grylls were instructed by the department’s FOI team: ‘All requests involving disclosure of information need to receive clearance from News Desk and SpAds before being issued.’

But according to the Cabinet Office’s FOI guidance, special advisers must not be allowed to make ‘decisions on whether or not to withhold the information requested’.

BEIS also asked the Cabinet Office’s FOI Clearing House for ‘clearance’ before sending its reply that no relevant information was held. This is despite the fact that the Cabinet Office has insisted that the Clearing House (which is to be replaced) only had ‘a small-scale advisory function’.

The treatment of my FOI request by BEIS was extremely dilatory. The department first failed to respond to my initial request for five months, until I had asked the ICO to intervene, who then instructed BEIS to reply. BEIS then took another five months to process an internal review, again not replying until after I had complained to the ICO.

BEIS refused to release this information, arguing that doing so would inhibit officials from expressing their views in a free and frank manner. The ICO then itself took 12 months to decide the case, meaning that I received the material almost two years after I asked for it in May 2021.

It is not surprising that last year the ICO issued a practice recommendation requiring BEIS to improve its generally poor performance in handling FOI requests.

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