My attempt to find out what the House of Lords Appointments Commission had to say (if anything) about the award of peerages to Charlotte Owen and Ross Kempsell by Boris Johnson has just been rejected by the Information Commissioner’s Office.
I will now be appealing this to the First-tier Tribunal, on the grounds that in my opinion it is in the public interest for this material to be revealed, despite the view of the ICO.
Last July I made a freedom of information request to HOLAC for the material it held about the two individuals we now know as Lady Owen of Alderley Edge and Lord Kempsell, after their somewhat unexpected appointment to the House of Lords in Johnson’s resignation honours list.
After HOLAC declined to send me anything, I complained to the ICO. My arguments can be summarised as follows:
The appointment of members of a law-making assembly, people with substantial political influence and decision-making powers to make laws governing the rest of the population, requires a great degree of legitimacy, and that in turn demands maximum transparency.
This is especially true for these two individuals, given (a) their comparative youthfulness means they are likely to hold politically powerful roles for several decades and indeed in due course may well be amongst the longest-serving legislators in the UK’s history; and (b) the widespread public puzzlement and concern as to what they have achieved or what qualities they possess.
Issues of propriety (HOLAC’s responsibility here) are an important aspect of assessing suitability for membership of the House of Lords.
Disclosure is necessary for the legitimate interests of the general public to understand fully the processes for appointing people who take decisions on behalf of the nation, and for the public to be able to see for themselves whether the processes are adequate.
HOLAC argued:
Their process requires confidentiality to ensure that decisions are taken on the basis of full and honest information and that potentially sensitive vetting information can be candidly assessed.
The information it already places in the public domain about its working practices provide the public with reassurance that its processes are sufficiently rigorous.
In the case of a resignation honours list, its role is limited to an advisory one, notifying the prime minister of whether it has concerns about the propriety of peerage nominations, and does not extend to assessing the overall merits of nominees.
The ICO has upheld HOLAC’s stance. We will now find out what the First-tier Tribunal makes of the rival arguments. It is likely to take several months before the Tribunal decides the case.
I was interested to see last month that the UK Governance Project, a high-powered independent commission with a distinguished membership, drew attention to the problem of lack of transparency at HOLAC. It recommended that HOLAC should always have to publish a citation setting out the basis on which it has approved an individual for appointment.
Pupils are over 20 per cent more likely to be absent from school on Fridays compared to Wednesdays.
The average rate of absence last term in England’s state-funded schools was 7.5% on Fridays. This compares to 6.7% on Mondays, the next most common day for school absence, and the lower figures for the middle of the week: 6.3% for Tuesdays, 6.2% for Wednesdays and 6.4% for Thursdays.
The issue of school attendance is moving up the political agenda, as levels of absence are now much higher than before the covid pandemic.
The government has today announced what it calls ‘a major national drive to improve school attendance’, with measures targeted at tackling persistent absence. The Labour party is also focusing on the issue this week.
This weekly pattern of absence being highest on Fridays, and second-highest on Mondays, with better attendance mid-week, is a widespread feature of the current school system.
From my analysis of the DfE’s data, it applies in both primary and secondary schools, and also in all regions of England.
It is seen when looking both at authorised and unauthorised absences from school. This includes applying to absence due to illness, which is the most common reason recorded for pupils not attending school.
It was also evident throughout the autumn term, as can be seen in this chart (with a particular peak on the Friday before half-term).
The DfE’s data on school attendance can be downloaded here.
In a previous post I examined how school attendance can be affected by when in the year pupils are born.
For school pupils, does when in the year they are born affect how often they are absent from school?
My analysis of government data suggests that secondary school pupils born in September to December have a somewhat higher absence rate than those born in May to August – which is actually the opposite of what I expected.
Absence from school is now significantly higher compared to before the covid-19 pandemic, and tackling this has been made a target of government educational policy.
The data collated by the department makes it possible to quickly analyse a wide range of factors and potential connections with absences.
Since month of birth is definitely related to other aspects of school life, such as how well pupils do in exams and in sport – the so-called ‘relative age effect‘ – I decided to explore any link with school attendance. Through a freedom of information request I obtained pupil attendance data from the DfE for the school year 2022/23, broken down by type of school, school year and month of birth.
This table shows the percentage of school sessions missed by pupils in selected year groups. It shows that for pupils in years 1 and 2 (aged 5/6 and 6/7), it was the summer-born pupils who had higher rates of absence. This was what I expected, given the well-documented school problems often faced by summer-born children.
But for pupils in years 8 to 11 (aged 12/13 to 15/16), it was those born in September to December who were more likely to be absent.
However the differences within the year groups are not massive, so this pattern (while clear) shouldn’t be overstated. For the intervening ages the data showed very little variation within each year group, so I haven’t presented the figures here. I haven’t obtained data for the reception year.
The following graph shows the same data presented in the form of a line chart.
Persistent absence is a particular problem. This is defined as when pupils are absent for over 10% of school sessions. Analysing the data on persistent absence discloses a similar pattern.
This is indicated in the table below (which involves data from primary and secondary schools, but not special schools).
Generally rates of absence increase as pupils get older and move into higher year groups. Perhaps this trend could help to explain the fact that in secondary schools it’s the older pupils within the year group who tend to be absent more often.
But this can’t be a complete explanation – for example, the frequency of persistent absence is higher for year 10 September births (32.4%) than for the older pupils born in August and in year 11 (30.7%), and similarly for various other data points.
So it looks like there may be some kind of relative age effect involved here, if probably quite mild.
Bear in mind that this is just one year’s data, the period in the wake of the pandemic could be atypical, and there is also the possibility of random variation.
As another potential factor, some illnesses have been associated with when people are born within the year. However, this would not explain the jumps in this data between August and September births.
The DfE data distinguishes authorised and unauthorised absences, but this does not help much in explaining the pattern identified here.
It’s important to note that there are other characteristics which clearly have a bigger impact on school attendance, including levels of disadvantage (poorer pupils are more likely to be absent) and ethnicity (Caribbean and White ethnic groups have higher absence rates than Indian, African and Chinese groups).
The data spreadsheet supplied to me under FOI by the Department for Education is here.
For background on the government’s impressive automated collection of real-time school attendance data, you can watch a recent talk by Caroline Kempner, the DfE’s head of data transformation, given at one of the regular Institute for Government ‘Data Bites’ events (from 37’25” in the video).
It was hearing this presentation which prompted me to do this analysis.
This article was originally published on the website of Act Now Training, which provides training and consultancy on information law and governance.
Last month the Information Commissioner’s Office announced it was issuing another two Enforcement Notices against public authorities with extreme backlogs of FOI and EIR requests; the Ministry of Defence and the Environment Agency. From the published notices it is clear that both authorities had consistently failed to tackle their excessive delays, despite extensive discussions over many months with the ICO.
The ICO also issued Practice Recommendations, a lower level of sanction, to three authorities with a poor track record on FOI; Liverpool Council, Tower Hamlets Council and the Medicines and Healthcare Products Regulatory Agency. This brings the total of Enforcement Notices in the past year or so to six, and the number of Practice Recommendations to 12.
As Warren Seddon, the ICO’s Director of FOI, proclaimed in his blog on the subject, both these figures exceed the numbers previously issued by the ICO in the entire 17 years since the FOI Act came into force.
From my point of view, as a frequent requestor, this is good news. For requestors, the ICO’s current activity represents a welcome tougher stance on FOI regulation adopted by Seddon and also the Commissioner, John Edwards, since the latter took over at the start of last year.
Under the previous Commissioner Elizabeth Denham, any strategic enforcement regarding FOI and failing authorities had dwindled to nothing. The experience of requestors was that the FOI system was beset by persistent lengthy delays, both from many authorities and also at the level of ICO complaints.
The ICO’s Decision Notices would frequently comment on obstruction and incompetence from certain public bodies, as I reported when I was a BBC journalist, but without the regulator then making any serious systematic attempt to change the culture and operations of these authorities.
Under Denham the ICO had also ceased its previous policy of regularly and publicly revealing a list of authorities it was ‘monitoring’ due to their inadequate processing of FOI requests. Although this was in any case a weaker step than issuing formal enforcement notices and practice recommendations, in some cases it did have a positive effect.
Working at the BBC at the time I saw how, when the BBC was put into monitoring by the ICO, it greatly annoyed the information rights section, who brought in extra resources and made sure the BBC was released from it at the first opportunity.
On the other hand, other public authorities with long-lasting deficiencies, such as the Home Office and the Metropolitan Police, were kept in ICO monitoring repeatedly, without improving significantly and without further, more effective action being taken against them.
The ICO’s FOI team has also made important progress in the past year in rectifying its own defects in processing complaints, speeding things up and tackling its backlog. This led to a rapid rush of decision notices.
One result is that delay has been shifted further up the system, as the First-tier Tribunal has been struggling to cope with a concomitant increase in the number of decisions appealed. I understand that the proportion of decisions appealed did not change, although I don’t know if the balance between requestor appeals and authority appeals has altered.
Another consequence has been that decision notices now tend to be shorter than they used to be, especially those which support the stance of the public authority and thus require less interventionist argument from the ICO. Requestors may need to be reassured that the pressure on ICO staff for speedier decisions does not mean that finely balanced cases end up predominantly being decided on the side of the authority.
More generally I gather there is some concern within the ICO about its decisions under sections 35 and 36 of FOI, to do with policy formulation and free and frank advice, that some staff have got into a pattern of dismissing requestors’ arguments without properly considering the specific circumstances which may favour disclosure.
As part of its internal operational changes, a few months ago the ICO introduced a procedure for prioritisation amongst appeals and expediting selected ones. I have seen the evidence of this myself. A complaint I made in April was prioritised and allocated to a case worker within six weeks and then a decision notice served within another six weeks (although sadly my case was rejected). All done within three months.
On the other hand a much older appeal that I submitted to the ICO in May 2022 has extraordinarily still not even been allocated to a case worker 15 months later, from what I have been told. This is partly because it relates to the Cabinet Office, which accounts for a large proportion of the ICO’s oldest casework and has been allowed a longer period of time to work through old cases.
It is interesting to note that the ICO does not proactively tell complainants that their case has been prioritised, even when they have specifically argued it should be at the time of submitting their complaint.
The ICO wants to avoid its staff getting sucked in to disputes about which appeals merit prioritisation. If you want to know whether your case has been prioritised, you have to ask explicitly, and then you will be told.
The ICO has not yet officially released any statistics about the impact of its new prioritisation policy. However I understand that in the first three months about 60 cases were prioritised and allocated to a case officer to investigate within a month or so. This is a smaller number than might have been expected.
Around 80 percent of these were prioritised in line with the criterion for the importance of the public interest involved in the issue. And about 60 percent of decisions to prioritise reflected the fact that the requestor was in a good position to disseminate further any information received, possibly as a journalist or campaigner.
In most of the early decision notices for prioritised complaints the ICO has backed the authority and ruled against disclosure. So if you are a requestor, the fact that the ICO has decided to prioritise your appeal does certainly not mean that it has reached a preliminary decision that you are right.
Some headlines are meant to shock you, but they don’t always have the desired effect.
On the publication day in September 2002 for the Blair government’s key dossier on ‘Iraq’s Weapons of Mass Destruction’ (as it was titled), I saw this on the front page of the London Evening Standard: ’45 MINUTES FROM ATTACK’.
And I remember thinking to myself, well, launching those weapons is actually rather slower than I expected.
At the time I clearly know nothing about WMD systems. But the government’s ‘intelligence’ on the matter, which should have been rather more accurate than me, also turned out to be hopelessly misinformed.
The so-called ‘45 minute claim’ was at the heart of the David Kelly controversy and the Hutton Inquiry. It came to symbolise the extent to which the published dossier had, or had not been, ‘sexed up’.
And in one of his broadcasts, the 6.07 two-way, Andrew Gilligan had said he’d been told by a senior official that it was included although ‘the government probably knew [it] was wrong’.
Broadly speaking, the claim was along the lines that Iraq could deploy some chemical or biological weapons within 45 minutes of a decision to do so. But in the Hutton Inquiry and surrounding discussion it was always referred to by the shorthand term of ‘the 45 minute claim’. And in fact it is hard to state exactly what the claim was, not least because it was phrased in four different ways in the dossier. Which might have been a clue to how bogus it was.
The dossier would have been more accurate if it had stated: ‘Some guy in Iraq apparently says that maybe Iraqi military units can fire a chemical weapon a few hundred yards or so on a battlefield within 45 minutes of an order, we don’t know whether he knows what he’s talking about’. But then that probably would not have produced the headlines convenient for the government, such as the Sun proclaiming ‘BRITS 45mins FROM DOOM’.
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So in retrospect how accurate and justified was the BBC’s reporting of David Kelly’s unease about the WMD dossier?
My view in summary:
1. The reporting by Andrew Gilligan and the BBC generally contained a substantial element of truth, about the process of compiling the WMD dossier leading to overstatement of what appeared to be the evidence.
2. But in parts the reporting was confused and inaccurate.
3. The key exaggerated statement which the BBC headlined repeatedly (and was much more significant than anything Andrew half-mumbled at 6.07am that went unnoticed for weeks) was that the BBC had been told that Downing Street included the 45 minute claim in the dossier against the wishes of the intelligence services.
4. The accurate alternative to this that we should have attributed to the source was: ‘The 45 minute claim was included in the dossier against the wishes of some experts from defence intelligence, who thought Downing St was responsible for doing so’. This would have been true, important and definitely worth reporting.
This is my personal opinion, arising from the months I spent working through and analysing every angle on the whole story to help inform the BBC management’s case. It was not a position adopted by the BBC.
It is also simply an overview, leaving aside all sorts of detailed arguments about the contents of the government dossier and the process for compiling it, the phraseology of individual reports, some less important errors made by some BBC programmes, etc. But this piece is easily long enough anyway without me going into more of that.
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So does that mean the Blair government ‘lied’?
There’s an occasional but continuing ritual, an exchange of allegation and denial over this, in which Blair, Campbell and others are accused of lying, and they respond in a rather pained manner to insist that it’s fine, of course, to condemn the war, but please don’t say they acted in bad faith, as they really did think Iraq had the WMD.
In my view this starkly dichotomous dispute completely misses the main point. I’m sure Tony Blair genuinely believed that the Iraqi dictator Saddam Hussein had access to WMD, and also that he was genuinely very worried about it. Most people thought Iraq was likely to have an active WMD programme. Saddam had deployed such weapons in the past, and continued to act much as if he still had use of them – not unlike a household which keeps prominently displaying a ‘beware of the dog’ sign, because it’s useful to intimidate the neighbours, even after the dog is no longer around.
In holding these views Blair was a victim of groupthink and a failure to question assumptions, but in terms of how he presented things to the public, his real fault was the unjustified way in which he exaggerated the strength of the intelligence.
He told the House of Commons that the intelligence picture was ‘extensive, detailed and authoritative’. In reality, it was very limited, patchy, superficial and poorly sourced. Given this reality, it’s not so surprising that it also turned out to be completely wrong.
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There were about 20 people on the BBC side who were given access to the Hutton Report 24 hours before publication. I was one of them.
We were divided into small groups in rooms in Broadcasting House, with numbered copies. Given it contained 740 A4 pages it might have seemed a bit daunting to go through it, but over 90% of it consisted simply of lengthy extracts copied-and-pasted from evidence and documents, and one of the BBC lawyers directed us immediately to the few important pages.
We’d prepared all sorts of lines to take to defend the BBC, but it rapidly became apparent that they weren’t really up to the scale of criticism the corporation received from Lord Hutton.
From the government point of view the Hutton Report was so good, it was bad. Hutton’s verdict was so one-sided that it lacked authority.
From the BBC point of view I vaguely hoped that the report was so bad, it might somehow be good. But that didn’t transpire. It was just unredeemably bad.
In my view it was also a shoddy, poorly argued, inadequate exercise. There were valid criticisms to be made of the BBC, as I’ve indicated here, but Hutton didn’t grasp the issues properly and made completely the wrong ones.
The Hutton Report was full of flaws. There’s no point now in going through them all. Many have been thoroughly detailed, for example, in Greg Dyke’s memoirs and in the book by Kevin Marsh, who edited the Today programme at the time of Andrew Gilligan’s broadcast.
To take just one, which struck me immediately as blatant, Hutton said that the allegation the dossier was ‘sexed up’ was ‘unfounded’, on the grounds that the audience would take this to mean that it was ’embellished with false or unreliable items’. He had no basis for this only choosing this interpretation. He was acting like a judge who has to decide on a specific meaning for a word in legislation. In fact, ‘sexed up’ is a very ambiguous term which certainly can cover much weaker assertions. For that reason it’s probably not a phrase conducive to clarity of analysis, but it’s entirely defensible as accurate in this context.
Hutton also made ill-founded criticisms of the BBC’s editorial structures and processes, which he clearly didn’t understand. To be honest these can seem obscure at times, even to those of us working there. But Lord Hutton was the one person who’s ever been given the opportunity to call witnesses and ask them questions until he had worked it out, which he failed to do.
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That might seem like a BBC perspective on matters, but a few years after the Hutton Report came out, I sat down at dinner opposite a leading member of the government’s legal team at the inquiry. And his view wasn’t really all that different from mine.
He told me that the Hutton Report was an ‘intellectually weak’ piece of work, an assessment with which I entirely agree. He also said the following:
Hutton was a ‘second-rate judge’ and ‘not up to the same standard as other Law Lords’
His report ‘summarises both sides and says “I come down on this side” without reason or argument’
He was ‘the kind of judge who sees everything in black-and-white, either all for you or all against you’
He ‘ignored criticisms of the government, but his report would have carried more credibility if he had included them’
Alastair Campbell ‘went over the top and should have been criticised too’
As a verdict on the Hutton Report, I think all this is true.
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POSTSCRIPT
At that time one of the boxes you had to fill out on your annual appraisal form in the BBC was to state if there were important things that could have gone better with your work during the year. So on my form I jokingly put ‘Yes, avoiding the resignation of the Director General and the Chair of the Governors’.
I have to confess that we journalists did not always take to HR initiatives like the ever-changing appraisal system with the level of seriousness and commitment that the HR people felt they merited.
A year or so later I bumped into Greg Dyke in the crowd at a Brentford game at Griffin Park. He seemed in a cheerful mood (maybe Brentford had won, I don’t remember) and we chatted amiably. However I then told him what I’d written on my appraisal, and despite his surface good humour, I don’t think he found it at all funny. I regretted it. So if you’re reading this, Greg, I apologise.
There are all sorts of ways matters could have turned out differently in the row between the BBC and the government over Andrew Gilligan’s reporting, which might have prevented the crisis in the corporation and the double resignation of Director General and Chair of the Governors. As I said in my previous entry, I wrote a report identifying 14 possible turning points.
Here’s one example, which I mulled over a lot, as to me it represented how the dispute had spiralled out of control – one of Alastair Campbell’s numerous letters of complaint to the BBC about Andrew Gilligan.
This particular three-page epistle raised twelve specific issues amidst some generalised angry bluster. The BBC news management replied at length but dismissively.
Much later it became clear, once we had worked through all the evidence, that two of his twelve points were actually valid. If the BBC had scrutinised the reporting more carefully at the time, noticed the errors and acknowledged them, then perhaps that might have altered the tone of relations and helped to set events on a different course.
But equally well, if Campbell had only protested about the two issues where he was essentially right, then that would have forced the BBC to focus on those particular points and possibly realise the mistakes.
Campbell frequently liked to say that the BBC would never confess to error. But this just wasn’t true. I personally, for example, once had the task a couple of years previously of examining a complaint of his about the BBC’s coverage of a Blair speech. On investigation, it turned out that the reporting was indeed inaccurate, basically because one BBC political correspondent hadn’t told another BBC political correspondent what Downing Street had briefed. And we replied to him admitting the mistake and explaining what occurred.
But what had happened by 2003 was that the BBC had received so many missives from Campbell which it regarded as spurious that his complaints had become devalued and taken less seriously.
Note to self(as I thought at the time): If you want your complaints to be effective, only raise the issues where you’re right. Equally, if your role involves investigating complaints, then no matter how long, convoluted and error-strewn a complaint is, you have to work thoroughly through it in case it contains some truths.
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Much of my time with the BBC’s Hutton Inquiry team was spent working in a drab, locked room, with windows covered over, on the ground floor of Bush House.
The room had been picked because Bush House, the base for the BBC World Service, was close to the court where the inquiry was taking place. And this room was also thought to be sufficiently secure.
Clearly there were security worries. I’d earlier heard Richard Sambrook, the Director of News, telling his PA not to let the normal office cleaners in to the news management suite of rooms at Television Centre during this period.
But this room was pretty grim and dispiriting. I think it had previously been some kind of store room.
Sometimes Greg Dyke, the Director General, and Gavyn Davies, the Chair of the Governors, would be there.
I used to listen to them talking and think it sounded like they were in opposite roles. Greg came across like the Chair who had a big picture perspective and a few key priorities, Gavyn like the Chief Exec who was on top of everything and knew what was going on.
Greg had many virtues (and I admired how he was trying to change the BBC’s internal culture, to make it more flexible and positive), but sadly a thorough understanding of the detail of this whole business was not one of them.
In contrast Gavyn had a remarkably impressive recall of all that had happened and been said. Indeed he sometimes seemed rather smilingly supercilious towards Greg about this difference between them. Gavyn was undoubtedly very clever but also a touch arrogant. Other people could have helped him more than he realised on presentational points, if he’d been willing to let them.
The unfortunate gaps in Greg’s grasp of events became clear when he gave evidence, halting and unfocused, to the inquiry. Lord Hutton was clearly very unimpressed, and he wasn’t the only one. A BBC journalist who was present to cover the inquiry told me that other reporters around her were appalled and she’d never felt so embarrassed to work for the BBC. Afterwards Greg himself clearly knew it had gone badly.
I was very worried in advance about his turn to give evidence. When I and others were trying to prepare him, the weaknesses in his knowledge became clear. I sought out an opportunity for a private conversation with a member of the BBC’s executive committee, as I felt I had to warn someone sufficiently senior. I think it was the one time in the whole process that I was left feeling that I, as a junior member of staff, had spoken beyond my rank.
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I remember one meeting of the BBC’s Hutton team where Greg and Gavyn joked about how they both might have to resign if the outcome of the inquiry went very badly. Many a true word is said in jest, but I was surprised at the time, not envisaging that as a likely outcome. I was firmly trapped in the team’s groupthink which confidently expected a report that would balance criticisms of the BBC and the government.
Possibly at that point they had both received their confidential ‘Maxwellisation’ letters outlining criticisms they would face from the inquiry. I saw Richard Sambrook open the one he received. Richard normally seemed pretty imperturbable to me, but there was a look of shock on his face when he started to read it.
Greg has since said that he never thought he would have to resign. Maybe. Or perhaps by the time of the report’s publication both he and Gavyn were actually psychologically quite prepared for that eventuality.
There was another factor which I think gave the BBC management an over-optimistic perspective on how things were going. It was a failure to recognise that in external perceptions the main representative of the BBC was the reporter at the heart of things, Andrew Gilligan.
Andrew had his own legal representation at the inquiry, since he had different interests to those of the BBC as a whole. The BBC team was focused on overall organisational reputation and concerns, and tended to discuss matters as if he was a separate third party, treating criticism of Andrew as if it had no bearing on the corporation. This was an issue which concerned me and I did raise in discussion.
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Shortly before the Hutton Report eventually came out in January 2004, the BBC broadcast a special edition of Panorama, which examined the affair and contained a lot of trenchant criticism of the corporation.
As it happened I watched this in the company of an international group of journalists, including from the US, Canada, Brazil, Germany, Ghana, Bangladesh, Hong Kong and South Korea. I had then just started a BBC sabbatical as a Reuters Fellow at Oxford University. I thought the programme was an excellent piece of journalism, and the consensus in this diverse international group was that no other news organisation in the world could have made such an impartial and independent programme rigorously scrutinising its own internal travails. It was one of the moments when I felt proudest to work at the BBC, and it wasn’t even anything to do with me.
There had been some trepidation within the BBC Hutton team about what Panorama would say. This may have intensified when someone (I think one of the lawyers or press officers) asked Richard Sambrook what he expected from the programme. It was to be presented by the Panorama reporter, John Ware. Richard replied that ‘John will hold us up to the same unreasonably high standards that he holds everyone else up to’.
That stuck in my mind. It’s not a bad motto for investigative journalism and its valuable role in contributing to the overall welfare of society – to hold people in power up to the highest of standards, whoever they are, no fear or favour.
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More to come, including where Lord Hutton went wrong …
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.
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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.
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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.
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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