hearing transcript - 24 september 2003 morning

8/8/2019 Hearing Transcript - 24 September 2003 Morning

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5 Prime Minister's Official Spokesmen briefings in the run6 up to your meeting on 6th July?7 A. Yes, I was following them both before and immediately8 after the meeting.9 Q. I just want to ask you to comment on one, which is the10 morning briefing on Thursday 26th June at BBC/5/102,

11 please. If we could scroll down just a little to the12 middle. Do you see a paragraph starting there:13 "Asked if Downing Street was considering..."?14 A. Yes, I do.15 Q. It is the first new paragraph on our screen.16 A. Yes, I do.17 Q. Four lines in this sentence:18 "Asked if No. 10 had asked for a meeting with the19 Chairman of the Board of Governors to initiate an20 internal investigation at the BBC, the PMOS said that21 what the BBC did internally was a matter for them."22 A. Yes.23 Q. Would you have any comment to make about that?

24 A. Well, I think on several occasions around that time the25 Prime Minister's Official Spokesman really was making it

31 clear that they were not -- the Government was not2 intending either to approach me or indeed, I think, the3 Director General or the Governors with a formal4 complaint; and later, on 7th July, I am not sure,5 Mr Caldecott, whether you will show this document, but6 the Prime Minister's Official Spokesman said his7 "knowledge of the internal workings of the BBC's8 complaints structure was a bit rusty", which suggests to9 me that no serious consideration had been given to using

10 the complaints structure at any stage.11 Q. Can I just ask you about a second passage in the12 paragraph immediately beneath the one we have just13 looked at? That is the paragraph starting "Questioned"14 at the top of your screen. The second line in:15 "We [that is the Government] were simply asking the16 organisation to say whether they believed that their one17 anonymous source outweighed the Prime Minister, the18 Foreign Secretary, the Chairman of the Joint19 Intelligence Committee, the Security and Intelligence20 Coordinator, and the heads of the intelligence21 agencies -- and that if so, whether they would accept22 they were, in effect, calling all those people liars."23 Did you in any way respond to that observation by24 the Prime Minister's Official Spokesman?25 A. I thought that was a very important observation. The

41 response that was in my mind at the time of the2 Governors' statement after their 6th July meeting3 I think was twofold.4 First of all, we were indeed putting into the public5 domain what we believed to be the views of an anonymous6 source. But we had never claimed, to my knowledge, that7 those views outweighed the views of the Prime Minister8 and others; and we therefore added into the statement of9 6th July this very firm statement that we were not10 questioning the integrity of the Prime Minister. And


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11 I think by not repeating or not stating that the BBC12 stood behind the accuracy of the story, but we were13 simply reporting a source, and by stating also that the14 Prime Minister's integrity was not being questioned,15 I felt that actually we had come pretty close to16 fulfilling the terms of what the PMOS said in that

17 paragraph.18 Q. Do you have any view on I think an observation made by19 Mr Dyke that the BBC could itself have referred the20 matter to the Programme Complaints Unit of its own21 initiative?22 A. I think Mr Dyke has said that -- he did not use these23 words, but as a council of perfection it would have been24 possible to have done that, to put the complaint to the25 PCU. Actually, one of the Governors thought about that

51 too on 6th July.2 That may have been a council of perfection. I think

3 it could have, indeed, had some disadvantages as well as4 some advantages. And one of those, I think, is that5 without the active cooperation of Mr Campbell in being6 willing to bring evidence on the dossiers to such7 a committee, I think it would have been quite difficult8 for the PCU to really have handled the complaint.9 I think -- and this would have applied probably to10 the Broadcasting Standards Commission as well -- it11 would have been satisfactory really only if Mr Campbell12 had been willing to actively cooperate.13 Q. Can I just ask you this: your meeting on 6th July; was14 there anything unusual about the way in which it began?15 A. Well, I took a decision that at a time of such perceived

16 pressure on the BBC, and at a time when people would17 say, no doubt, that the Governors should act18 independently from management, and they would be right19 in thinking that, that we should start the meeting as20 12 Governors -- in fact there were only 11 at the time,21 so 11 Governors -- and that we should not have22 management present and indeed we should not have the23 Director General present. And I think that the24 beginning of the Governors' meeting on the 6th July is25 the only time in my experience in the last three years,

61 and for probably quite a long time before that as well,2 where a significant meeting of the Governors has taken3 place in the absence of the Director General.4 The reason for that was that I did not want the5 decisions of the Governors in the areas that we were6 likely to cover to be affected by considerations of the7 sensibilities of management. Of course, at the end of8 the meeting, in a statement that I think has not -- some9 parts of which have not been fully noted by some people10 in the outside world, the Governors did suggest that11 management had committed some failings in the previous12 several weeks. This was by no means a blanket13 endorsement of everything the management had done.14 Despite the fact the Director General, in some cases,15 did not want the Governors to put that on record.16 Q. Can I ask you briefly to deal with a point arising on


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17 your letter to Mr Hoon on 8th July at CAB/1/82? It is18 really the first line of that letter:19 "Thank you for today's letter, which I believe you20 have now released to the press."21 Can you please tell us your up-to-date understanding22 as to the point you made there?

23 A. Yes, the belief I had that this letter had been released24 to the press came about as follows: there was a phone25 call to the Director of Communications at the BBC from

71 a senior BBC journalist, which I think came in at around2 7 o'clock on the evening of -- is that the 8th July,3 Mr Caldecott? I believe it is.4 Q. Yes, it is.5 A. The senior journalist said that he was going to a dinner6 or a reception, I think, in Westminster and that the7 terms of Mr Hoon's letter had been widely -- was being8 widely discussed among the journalists going to the

9 meeting. And he knew, broadly, what the terms of the10 letter were. So I assumed that the letter had been11 released to the press. It may well be, Mr Caldecott,12 that the letter itself was not released but I do believe13 that the terms were known by the press, which is exactly14 why we did this. I told our Director of Communications15 that we must not release my letter until she was certain16 that was the case.17 Q. One last question: there has been a suggestion put18 before that the Governors were too ready to defend19 management. Can you just give us, very briefly, an20 indication as to how Governors are appointed and the21 kind of people they are?

22 A. The Governors are all appointed by Her Majesty the Queen23 on the advice of the Prime Minister. It is a public24 appointments procedure involving also the Secretary of25 State for Culture, Media and Sport. Certainly, in my

81 experience, the people who emerge from this process are2 highly experienced and independent-minded people. These3 are not people doing the job for monetary reward. They4 are not people doing the job, by the way, in order to5 get further preferment in the public sector. They are6 people like the former chair of the Joint Intelligence7 Committee, a former head of a policy unit at No. 10,8 a former Government Chief Whip for the Conservatives.9 They have nothing to gain, quite frankly, by supporting10 management for the sake of it. They support management11 if they think management is operating in the public12 interest, and not otherwise.13 MR CALDECOTT: Thank you very much, Mr Davies.14 Cross-examined by MR SUMPTION15 Q. Mr Davies, before we get on to this particular case16 I want to ask you about the function of the Governors in17 general terms. Do you accept that if the Governors are18 satisfied that a broadcast making serious allegations19 against third parties was unfair to them it is entirely20 proper for the Governors to intervene and require21 a retraction?22 A. Mr Sumption, if it is established that there is an


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23 unfairness in a broadcast, it is well within the powers24 of the Governors to do as you say. However, in general25 the process by which this would be established would

91 involve a complaint about unfairness and on the whole it

2 would certainly go to the complaints procedure rather3 than simply be a spontaneous act by the Governors. In4 fact, I am not sure I can remember, certainly off-hand,5 any occasion where the Governors have spontaneously6 decided to decide that without the complaints procedure7 being invoked.8 Q. Yes, but if the Governors are involved, that is their9 approach, is it not, that if it was unfair it is proper10 for them to retract?11 A. I think a complaint which is unfair and established to12 be unfair by our complaints procedure or by a decision13 of the Governors would have to be retracted,14 Mr Sumption. We are a public service broadcaster. We

15 are not there to mislead the public in any sense. Our16 only purpose in life is to not mislead the public but to17 tell the truth to the public.18 Q. Do you accept that is so whether the allegations are19 made by the BBC or put into the public domain by the20 BBC?21 A. I think if the allegations are made by the BBC, as22 I said, I think, in my previous set of evidence,23 I believe that there is a higher requirement on the BBC24 for certainty. If allegations are made by what we25 believe to be a credible and reliable source, some of

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1 the weight of those allegations is the weight of the2 views of the source; and I think in some cases it can be3 harder for the BBC to retract them unless the source4 retracts. So I think it is slightly more complicated in5 that case, Mr Sumption, but --6 Q. If the Governors take the view that the reliance on the7 source for the particular allegations that were8 broadcast was unfair in all the circumstances, you would9 expect them to direct a retraction, would you not?10 A. Well, what I would expect to happen in those11 circumstances is that I would expect the editorial12 process to determine whether or not the BBC should13 retract. If the editorial process, for some reason, did14 not seem to be grappling properly with that then15 certainly the Governors are the supreme authority of the16 BBC and could take action. But there is custom and17 practice here, Mr Sumption, which does require the18 Governors to take account of the way the BBC has19 operated for 80 years and not seek to duplicate or20 override the decisions of the people that they have21 appointed to run the editorial process, unless they have22 good reason for doing that.23 Q. Yes.24 LORD HUTTON: May I just ask you on this point: you refer to25 the distinction between reporting a source and the BBC

111 itself expressing a view. Now, is it correct that most


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2 reports from the BBC depend upon sources? May I explain3 it this way --4 A. Not necessarily, my Lord, no. I do not think it is true5 to say that most do. A lot do, certainly, my Lord, yes.6 LORD HUTTON: But in the distinction you are drawing, are7 you referring, on the one hand, to a case where a BBC

8 reporter himself makes an inquiry and then gives9 a report based on his own experience -- for example,10 Mr Gilligan, I think, referred to a case where he went11 to interview someone about the sale of weapons, the sale12 of which, I think, were banned, but the manager of the13 company or some person in the company in fact agreed to14 sell them to him.15 I can understand there that that is a report16 directly from the BBC; but apart from those cases, are17 most or indeed virtually all of the reports delivered by18 the BBC based on information coming from some third19 party?20 A. Certainly from a third party, my Lord, but I would not

21 necessarily say a source. Virtually all of news22 actually or most of it is based on hard evidence.23 I mean, it is based on film of speeches, like24 George Bush's speech yesterday, and then interpretation25 and debate surrounding what has been said.

121 LORD HUTTON: Yes.2 A. So I think a case like this one actually is not the3 majority of our news broadcasts. The majority of our4 news broadcasts are based on evidence which is actually5 fairly firm and in the public domain.6 LORD HUTTON: I see.

7 A. Like a budget speech, for example.8 LORD HUTTON: Yes.9 A. An analogy with this would be if two weeks before the10 budget a BBC financial correspondent ran a story saying:11 the treasury economic service is unhappy with aspects of12 the budget. Now that could well be based on a source.13 If it was based on one source, my Lord, I think we would14 have done it like we did on 29th May.15 LORD HUTTON: I see.16 A. If it was based on several sources, it may well be17 reported as the BBC knows that. So I think it -- you18 know, there is a higher bar of certainty to get into,19 for example, a news bulletin. One thing I would like to20 add -- I know I am going slightly off Mr Sumption's21 question, but what I would like to add here is if it22 appears on a news broadcast in the voice of a BBC23 newscaster, then the bar of certainty is higher. And it24 is interesting to me in this case that what was said on25 the news broadcast at 6 o'clock was actually somewhat

131 different from what was said at 6.07.2 LORD HUTTON: Thank you very much.3 MR SUMPTION: Mr Davies, you mentioned, in answer to my4 question, the point that the Governors do not want to5 duplicate the judgment of the executives. No doubt in6 investigating matters that come before them the7 Governors will depend on the assistance of senior


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8 executives to provide them with information, but you9 will surely agree that their role is to form an10 independent judgment and not simply to act as amplifiers11 for views which the BBC staff have already formed?12 A. I agree with that, Mr Sumption; and if you knew my13 colleagues you would not think they were acting as

14 amplifiers to anybody.15 Q. Let us look at what did happen in this case. You have16 given evidence at phase 1 that it would not have been17 possible for the BBC Governors to investigate the18 accuracy of Mr Gilligan's report. Did you mean by that19 that the Governors had no means of deciding whether the20 dossier had actually been sexed up or not and, if so, by21 whom?22 A. I think I made it clear in my evidence that what I was23 referring to there is what I have come to know as the24 intrinsic accuracy of what the source said. I felt,25 going into the meeting, and I still feel today even more

141 strongly having seen what has happened at this Inquiry,2 that it was extremely complicated, difficult and, as3 I said last time, actually literally impossible for the4 Governors to get the information required to determine5 the intrinsic accuracy of the source's allegations.6 Therefore, we focused on whether the source was credible7 and reliable, whether procedures had been followed and8 whether the source had been accurately reported.9 Q. Let us look at what they were in a position to look10 into, because I think your last answer suggests that11 there may be some common ground on that. The Governors12 were in a position, were they not, to consider whether

13 the journalist had a proper support from his own source14 for what he had broadcast. They could consider that,15 could they not?16 A. The Governors could and did consider that and asked17 management about it.18 Q. In your phase 1 evidence you said that the BBC had to be19 absolutely clear -- these are your words -- that they20 were reporting the words of the source. That is the21 point that the Governors could have investigated, is it22 not?23 A. Mr Sumption, the word "investigated" is a strong word24 here. The Governors questioned the management on that25 aspect. It was not actually, at that stage, thought to

151 be the central issue facing the Governors, but they did2 question management on that aspect.3 Q. The Governors were in a position, were they not, to4 consider whether the status of the source was such that5 he could be expected to know the facts?6 A. They were certainly in a position to determine that,7 with the proviso that I do not think it would have been8 right and proper, it would have been highly irregular9 for them actually to have known who the source was.10 Q. They could have been told what the status of the source11 was without being told his name.12 A. I do not believe that would have made any sense at all.13 I think if they had been told what the status of the


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14 source was in any precise terms they would effectively,15 almost certainly, have been told who the source was. It16 would have been quite easy, I think, as we have seen17 recently, to have deduced who Dr Kelly was from an18 accurate description of what he did.19 Q. Are you suggesting that these eminent Governors, whose

20 qualifications you described a few minutes ago, were21 people who although they embodied the BBC cannot be22 trusted with that information?23 A. I am certainly not suggesting my Governors cannot be24 trusted. What I am saying is information given to25 12 Governors with a lot of other people present is not

161 likely to remain secret. That is not because the people2 cannot be trusted.3 Q. It must be because somebody cannot be trusted.4 A. No, I do not believe it is because anybody cannot be5 trusted. I think that making the name of a source known

6 to such a wide circle of people or even the position of7 the source, Mr Sumption, in real life, despite the fact8 that you actively trust the people you are telling,9 greatly increases the likelihood that the name of the10 source will become public.11 If I believed that information could be held secret12 among such a large number of Governors and13 non-Governors, I think I would be flying in the face of14 a great deal of evidence of what happens in governments15 and in other organisations. I do not believe that you16 could have assumed that would be held secret by the most17 trustworthy group of people in the world, and these are18 trustworthy people.

19 Q. Are you suggesting it would not have been appropriate to20 tell the Governors that the source was not a member of21 the Intelligence Services?22 A. I think it was more important to tell the Governors23 whether the source was credible and reliable and to24 accept the judgment of the Director General, who knew25 not the name of the source but the identity of and the

171 type of work he did, and that -- excuse me2 Mr Sumption -- and the Director of News, who knew the3 same thing including, I think by that stage, the name of4 the source. That would have been more important to me5 than whether he was narrowly defined as a member of the6 Security Services.7 Q. I did not ask what would be important to you. On the8 footing that the Governors have to make their own mind9 up, are you saying it was inappropriate for them to be10 told one fact of some importance, namely that this11 source was not a member of the Intelligence Services?12 A. Well, bear in mind here, Mr Sumption, that I myself did13 not know who this source was or what position he held.14 So it is not a question of what I thought the Governors15 were -- what it was appropriate to tell others. It is16 a question of what I thought it was appropriate for17 myself and my fellow Governors to know.18 All I would say to you is that none of these people,19 who are not, I might say, shy in expressing their


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20 opinion, felt they needed to know who the source was or21 what the source did. They did feel they needed absolute22 assurance that this person was in a position to make the23 allegations which Mr Gilligan had reported.24 Q. Did they think it was appropriate to form a view of25 their own on that question or did they simply think that

181 it was appropriate to take the executives' view at face2 value?3 A. These people are not editors, and do not seek to4 duplicate the editorial process. When they are told by5 people that they respect and in multiple numbers,6 several people that they respect, that the source is7 credible and reliable, I think they are entitled and8 should take that at face value, and they did.9 Q. I see. So if you are investigating, if you are looking10 into a complaint by someone else that the executives11 have not formed an appropriate view on that, the BBC

12 Governors' function, on your evidence, is simply to take13 over that view from the executives; is that right?14 A. No, I do not believe that the Governors are in that15 position at all. I think the Governors can make and do16 frequently make a judgment about whether the executive17 is likely to be speaking the truth, is likely to be in18 possession of the knowledge that they are saying they19 have. They are and were questioned on that. This was20 not a question of simply saying: good morning, Mr Dyke,21 may I please endorse your point of view on this source?22 We asked, in some detail, whether our senior editors23 were happy with the standing of the source; and I have24 to tell you I am happy with the standing of the source

25 now I know a great deal more about Dr Kelly.

191 Q. The Governors asked whether the executives were happy2 with the source, did they, not whether they themselves3 should be?4 A. I think I have just explained to you, Mr Sumption, that5 it was rather difficult for the Governors to satisfy6 themselves with that particular piece of judgment7 without knowing the name of the source. I have been at8 the BBC a very long -- not a very long time, but for9 three years, but colleagues who have been at the BBC for10 a very long time will tell you that the name of a source11 has never been divulged to the Board of Governors. The12 Board are a supervisory body, they are not the editorial13 process of the BBC.14 Q. You know perfectly well there is a great deal that the15 Governors could have done with more information, even if16 that information did not include the actual name of the17 source, do you not?18 A. I think it would have been very, very difficult for19 sufficient information about Dr Kelly to be given to the20 Board of Governors without that, in effect, divulging21 the name of Dr Kelly to the Board.22 Q. Would it be fair to say that both Mr Sambrook and23 Mr Dyke felt very strongly about this issue?24 A. I think you would have to ask them how strongly they25 felt about the issue. I certainly felt strongly that


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201 they should give to the Board the right degree of2 comfort that the source was credible and reliable.3 Q. I am going to press you on your view on whether they4 felt strongly, because you spoke to them. Did they feel

5 strongly about this issue or not?6 A. I think you would have to, if you do not mind,7 Mr Sumption, tell me what aspect of the issue you are8 talking about.9 Q. Did they feel strongly that the BBC had acted entirely10 appropriately both in making the original broadcasts and11 in standing by those broadcasts?12 A. I see, so we have moved off the source at this point,13 have we?14 Q. That is part of it. Just answer the question as asked.15 A. They did feel strongly that the BBC had acted16 appropriately in putting the views of this source into17 the public domain.

18 Q. Were you aware on the morning of the Governors' meeting19 that Mr Sambrook, in an interview published in20 The Observer, had said that the BBC fully supported21 Mr Gilligan. Were you aware of that?22 A. I was aware of what the Prime Minister said in23 The Observer; I am not sure I can recollect24 Mr Sambrook's interview in The Observer.25 Q. I see. That is a matter of record. We can look at it

211 in due course.2 On 1st July Mr Sambrook had told the FAC that if the3 FAC unanimously decided on concrete evidence that part

4 of the story was wrong, the BBC would retract.5 A. Yes, he did.6 Q. Now, you knew, did you not, that the FAC report was very7 likely to have at least some opposition dissentions?8 A. Are you asking me what I knew or what Mr Sambrook knew?9 Q. I am asking you what you knew.10 A. I did not know a vast amount about what the FAC was11 likely to do until that weekend. Some information came12 to us, I think through the press, about a split on the13 FAC, but it came that weekend.14 Q. Right. You knew, did you not --15 A. I certainly knew there were opposition members on the16 FAC, Mr Sumption.17 Q. You knew also that the Government did not propose to put18 drafts of the dossier or the oral evidence of the19 Chairman of the Joint Intelligence Committee before the20 FAC because they regarded that as a matter for the ISC?21 A. I am not sure when that became public knowledge. It was22 certainly the case that I was aware that the FAC had23 asked for such drafts and I think I was aware,24 Mr Sumption, I would not promise, that they were25 complaining that they had not received such drafts.

221 Q. Yes. So the concession that the BBC would retract if2 there was a unanimous report based on concrete evidence3 was a fairly cheap concession to make, was it not?4 A. No, I do not think it was a cheap concession to make.


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5 I think there were two aspects to it.6 One was, first, that this should not be a decision7 determined by a party vote. So I mean, for example, if8 the concession had been made -- sorry, if the decision9 by the FAC had been made simply by Labour members10 I think Mr Sambrook would have regarded that as rather

11 different from a decision that was made by a clearer12 majority or a unanimous view of all members of the FAC.13 Secondly, honestly, I just do not believe that it14 was a cheap remark to ask for some concrete evidence on15 which the FAC might have acted. I mean, I do believe16 that in a circumstance like that concrete evidence was17 appropriate, and it was appropriate for the BBC to ask18 for concrete evidence.19 Q. Can we have BBC/14/86, please? I want to turn to your20 own personal position at the time you called the21 Governors' meeting; and the document that has just come22 up is an e-mail a bit before that, on 29th June,23 addressed by you to the Governors. Do you see that?

24 A. I do.25 Q. Now --

231 A. This date is what, Mr Sumption?2 Q. 29th June.3 A. Yes.4 Q. After the first paragraph you say:5 "Having said that, I think it is unknowable whether6 the FAC will rule in the BBC's favour on the 45 minutes7 claim in the September dossier. They might do so, but8 it is also possible that they will say that the truth is9 confused, since early drafts within the intelligence

10 community did not include the 45 minute claim, while11 later ones did. Or they may conceivably just conclude12 that the first draft which was seen by Mr Campbell did13 indeed include the 45 minutes claim, as he has always14 argued. The latter form of judgment would be15 problematic, especially if Campbell then files a formal16 complaint which goes for adjudication either to the17 Governors or the BBC."18 The reason why that would be problematic was,19 presumably, that it would be problematic for the BBC if20 the FAC appeared to endorse some of the complaints that21 Mr Campbell had been voicing?22 A. It would have been problematic for the BBC if they had23 put into the public domain a story that was -- a report24 that was untrue. That is clearly what I mean there.25 Q. If you look down to the next paragraph of this e-mail,

241 you say:2 "Some may therefore argue that there could be3 advantage for the BBC in reaching a settlement with4 No. 10 which both sides can live with, perhaps in5 advance of, or shortly after, the publication of the FAC6 report. However, I remain firmly of the view that, in7 the big picture sense, it is absolutely critical for the8 BBC to emerge from this row without being seen to buckle9 in the face of Government pressure. If the BBC allows10 itself to be bullied by this sort of behaviour from


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11 No. 10, I believe that this could fatally damage the12 trust which the public places in us. Furthermore,13 I think we should remember that the main historic role14 of the Governors has been to shield the BBC from this15 sort of attempt to exert political muscle over our news16 output. This, it seems to me, really is a moment for

17 the Governors to stand up and be counted. So I hope you18 will agree that whatever emerges about the precise19 details of the 45 minutes claim, we must not give any20 ground which threatens the fundamental independence of21 our news output, or suggests that the Governors have22 buckled to Government pressure."23 Why did you say that should be the line "whatever24 details emerge about the precise details of the25 45 minutes claim"?

251 A. What that means, Mr Sumption, is whatever emerges about2 the right and wrongs of the story on the 45 minutes, and

3 whatever we would then have to do -- and I made it clear4 in other e-mails that of course in those circumstances5 we might have to pass judgment on our news division, but6 whatever emerges on the 45 minutes claim, what we must7 not do is give ground that threatens the fundamental8 independence of our news output. So right or wrong on9 the 45 minutes, we must not buckle under Government10 pressure and give ground on the independence and11 impartiality of our news output.12 I have to say, Mr Sumption, I still agree with that13 paragraph. We were faced with -- I will not repeat what14 I have said before in any detail, but we were faced with15 such an intemperate attack on our impartiality and our

16 integrity, Mr Sumption, that I think it was perfectly17 reasonable for me to take the view that the public were18 looking to the Governors to stand up for the19 independence of the BBC, not to stand up for the20 management but to stand up for the public interest.21 Q. What you were saying was that whatever details might22 emerge about the precise facts about the 45 minutes23 claim, (1) there should be no compromise of the kind you24 refer to at the beginning of that paragraph and (2) the25 Governors must not give way but must be seen to support

261 the management.2 A. Absolutely not saying that whatsoever. It does not say3 anything about supporting the management in there. Nor4 would I accept your interpretation of the first part of5 that paragraph. The first part of that paragraph, I can6 tell you, meant: we must not do a "behind the stairs"7 deal with No. 10 Downing Street which the public will8 see as a means of taking off the public agenda a matter9 of legitimate public interest.10 Q. You were so concerned about creating the outward11 appearance of succumbing to political pressure that you12 were urging the Governors that they should not give an13 inch whatever a further investigation of the facts might14 show. Is that not the position?15 A. It is absolutely not the position, Mr Sumption. I do16 not, at any stage in my life, ignore the facts. And the


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17 most important thing, undoubtedly, is to tell the truth18 to the public. But what I was concerned about here --19 and I can tell you it was in the face of absolutely20 unprecedented pressure from the Director of21 Communications at 10 Downing Street, not an22 insignificant figure in the Government at the time. In

23 the face of that pressure, I then believed and I now24 believe, and I had the full support of all of the Board25 in saying that it was a legitimate public duty of the

271 Board to say that that pressure was intolerable.2 Q. Can we have BBC/14/96, please? Perhaps we could look at3 the next page, because what I am interested in is your4 e-mail to the Governors referring to the meeting which5 you had just called for the 6th, which is set out at the6 end of the e-mail from Dame Pauline Neville-Jones.7 What you say here is you called a meeting, it is "an8 unusually important moment in our careers as Governors".

9 You say:10 "I do not think that we should seek to take a view11 during this meeting on whether the Gilligan story was12 accurate. This is not a question on which we need to13 take responsibility. Instead, I think we should14 concentrate on the following three questions."15 Number 1 concerns bias in the previous reporting of16 the war. I am not going into that.17 "2. Mr Campbell has also alleged that the Today18 Programme breached the BBC's producers' guidelines.19 I believe that we should investigate this allegation,20 which has been repeatedly made in public, without21 waiting for an official complaint ...

22 "3. We should also consider whether to initiate23 investigations into other matters of concern. These24 could include the rules under which BBC journalists ...25 [publish elsewhere]."

281 Would you accept one of the purposes of that e-mail2 was to discourage the Governors from investigating the3 accuracy of Mr Gilligan's reports?4 A. The accuracy of the reports in the sense of the one that5 I just mentioned earlier, intrinsic accuracy.6 Q. In any sense, they were not going to be in a position,7 without the information, even to investigate the8 question whether the report was properly supported by9 the source, were they?10 A. Well, if you would not mind scrolling back to the very11 top, you will see what Pauline wrote at the very top.12 She writes:13 "On Gavyn's first point I do think we need to be14 clear by what we mean about the 'accuracy' of the15 'Gilligan story'. Gilligan reported a source as having16 claimed that the dossier was sexed up. We do not need17 to judge the accuracy of the source's claim and we18 appear to have assurances from the Head of News that the19 source, though uncorroborated, was considered to be both20 reliable and in a position to know that it was right to21 rely on it. So far, so good."22 So Pauline clearly understood the distinction


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23 between the accuracy of Mr Gilligan's report and the24 intrinsic accuracy of the truth of the allegations that25 the source was making, and so did all the other

291 Governors. Bear in mind, Mr Sumption, that this e-mail

2 came several days after other e-mails which made that3 very clear to the Governors.4 Q. I understand the difference you make between the two5 forms of accuracy. But your position was that the6 Governors were not going to be investigating either of7 them, was it not?8 A. No.9 Q. Well, were you aware, at the time of the meeting, that10 Mr Sambrook had not examined Mr Gilligan's notes at the11 time of writing his letter on 27th June?12 A. I was aware of that. I also knew he had written the13 letter in the presence of Mr Gilligan for a large part14 of his writing.

15 Q. Were you aware he had examined them since writing that16 letter?17 A. I was aware he had examined them before the Governors'18 meeting.19 Q. Were you aware the notes did not support the most20 serious of the allegations, namely Mr Gilligan's source21 had accused the Government of putting material into the22 dossier knowing it was probably wrong?23 A. None of the Governors were aware that the notes did not24 substantiate that, and nor did, I think -- was25 Mr Sambrook aware of that. He had looked at the notes

30

1 and he had not, I think, picked up -- I believe he said2 this to the Inquiry -- that parts of the 6.07 broadcast3 were not repeated in the notes formally. However, he4 had asked the journalist, Mr Gilligan, whether or not he5 fully stood by the reports and the answer was, "Yes,6 both factually and in terms of interpretation", and that7 is what he told us.8 Q. So Mr Sambrook had looked at the notes but had not9 picked up the fact that the most serious of the10 allegations was not reflected in the note; that is your11 evidence, as I understand it, indeed it is12 Mr Sambrook's.13 A. I think it was not repeated verbatim in the notes.14 I think Mr Sambrook had not noted that it was not15 repeated verbatim in the notes. I believe Mr Sambrook16 told the Inquiry that.17 Q. The notes were not, of course, put before the Governors18 even in redacted form, were they?19 A. No, they were not.20 Q. Were you aware that since Mr Gilligan's original21 broadcast, statements had been made both by Mr Gilligan22 and himself that the source was in the Intelligence23 Services, but that by 6th July Mr Sambrook knew that24 that was not so?25 A. No, I was not aware that -- this intelligence source

311 point, Mr Sumption, and the difference between


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2 intelligence sources and Intelligence Service sources,3 had not come across my radar screen in any detail by the4 time of the Governors' meeting.5 Q. Do you not think it should have come across somebody's6 radar screen if the Governors were going to be properly7 informed about this?

8 A. It did come across somebody's radar screen. Both the9 Director of News and I should imagine the Director10 General, who broadly knew who the source was, would have11 thought about it in some detail.12 I think what Mr Sambrook said to the Inquiry was13 that when he described the source as an Intelligence14 Service source on his Today Programme interview, he15 subsequently realised that that was a mistake but that16 he did not feel that he could correct that mistake17 without pointing further fingers at the source. He did18 not mention any of that to the Governors.19 Q. He did not, did he? So the Governors did not know that20 a part of what had been said about the status of the

21 source on the BBC was known to the Director of News to22 be wrong; and they had no report on the extent to which23 Mr Gilligan's notes supported what he had broadcast.24 Those two points are factually correct, are they not?25 A. The Governors did not know anything about the source

321 other than the credibility and reliability of the source2 as attested by several editors.3 Q. In other words, the answer to my question is: no, they4 did not know either of those two facts and nobody told5 them.6 A. In terms of the notes that Mr Gilligan gave -- kept of

7 his meeting with Dr Kelly, the Governors were told that8 those notes substantiated the broadcast and, more to the9 point, that Mr Gilligan was standing fully behind his10 broadcast.11 Now, I do want to say a word about notes here,12 because these notes have adopted an extraordinarily13 large part of the discussions that have been had since.14 Most journalists broadcast material based, to a large15 extent, on memory as well as notes; and most journalists16 do not make verbatim or anywhere near verbatim notes of17 their discussions. One of the reasons that is the18 case -- and I can tell you this because I have worked,19 in my career, for a lengthy period of time as a part20 time journalist -- is most journalists think that it21 puts off the person they are talking to if they either22 bring out a tape recorder or a notepad. Therefore it is23 very customary, Mr Sumption, for the journalist's memory24 to be every bit as important as the journalist's notes.25 Q. We know that Mr Gilligan claims that he did, in fact,

331 take notes during his meeting with Dr Kelly. So2 whatever the general position may be, that does not seem3 to be a relevant consideration in this case.4 A. It does because he has always made it clear that this5 was not a verbatim set of notes.6 Q. Let me take you up on what you said a moment ago, that7 the Governors were told that Mr Gilligan's notes


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8 supported the broadcast. As I understand what you said9 slightly earlier than that, they were told that even10 though Mr Sambrook had not examined the notes carefully11 enough to pick up the point that the 6.07 allegations12 were not reflected there.13 A. As Mr Sambrook correctly told you, at the time the main

14 interest in what the notes said appeared to be in two15 things: one was whether the notes substantiated The Mail16 on Sunday's article allegation by the source, that the17 source had used the word "Campbell" or had attributed to18 Alastair Campbell the transformation of the document.19 That was one thing. The second was whether the notes20 substantiated the "sexing up" or "making the document21 sexier" phrase. And those were the two things that22 I think Mr Sambrook said were particularly on his mind23 when he inspected the notes; and the notes did24 substantiate both those two things.25 Q. Was nobody interested in the question whether the notes

341 substantiated the suggestion broadcast by Mr Gilligan2 that the Government had put material into the dossier3 knowing that it was probably wrong? Was no one4 interested in that question?5 A. The focus on the 6.07 broadcast, which has become very6 intense recently in the Government's case, was not7 actually reflected with the current degree of intensity8 at the time. Mr Sambrook has said to this Inquiry that9 it had not acquired the profile, in his thinking, that10 it has since acquired in the Government's case. I would11 argue, sir, that it had not acquired this profile in the12 Government's complaints prior to about the latter part

13 of June either.14 Q. I do not accept that, Mr Davies, but I am not going to15 go through that point with you. That too is a matter of16 record. But the fact is if Mr Sambrook had carefully17 gone through the notes and compared them with the18 transcript of what Mr Gilligan had said, it would have19 been absolutely apparent to him what all BBC witnesses20 have acknowledged so far in this Inquiry, namely that21 Mr Gilligan had gone too far, would it not?22 A. He would have noted that the precise words used in the23 6.07 broadcast were not duplicated in the notes, and24 I think he would then have asked Mr Gilligan why; and,25 in a sense, I would say that actually was -- what

351 Mr Gilligan said was that the 6.07 was an interpretation2 and not a direct quote from the source, he should not3 have suggested it was a direct quote. It was an4 interpretation from the source. And he was at that5 stage standing by it.6 One of the things I would say about the possibility7 of a complaints process, and one reason why I think that8 a full complaints process may have perhaps had problems9 sorting this particular issue out, is that I think the10 same thing may have happened. I think they may have11 looked at the notes, seen that they did not duplicate12 the words in the 6.07, asked Mr Gilligan why not and13 Mr Gilligan may well have said: that was a valid


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14 interpretation of what the source said to me. That is15 why I think some further concrete evidence may have been16 needed to sort this out.17 Q. Are you saying that whatever Mr Gilligan said about18 things that were not in his notes would have been taken19 at face value by the Governors without further

20 investigation?21 A. I did not say anything about the Governors, I was22 talking about by the PCU.23 Q. By the PCU then.24 A. I do not think anything would have been taken at face25 value at all. It would have been taken as evidence,

361 certainly.2 Q. Who decided what information should be put before the3 Governors at this meeting?4 A. Alastair Campbell to some extent, because he sent us5 a very large pack of information including all the

6 letters and correspondence. And the Secretary to the7 BBC.8 Q. Who is that?9 A. Simon Milner.10 Q. Did the Secretary of the BBC decide for himself what11 information, apart from Mr Campbell's information,12 should be put before the Governors? Were you consulted13 on the point?14 A. He decided himself. He told me what was going to be put15 out.16 Q. He did tell you what was going to be put out?17 A. I am sure -- it was standard practice for him to tell18 me, so yes, I am sure he did.

19 Q. You would have been satisfied that was the right20 information to go before the Governors, would you?21 A. I had not spotted anything else that should have gone.22 Q. How were the Governors going to form an independent view23 of the question whether Mr Gilligan had gone further24 than his source and the question whether the source had25 been accurately described without having the information

371 before them that was, in fact, in Mr Sambrook's head as2 this meeting took place?3 A. I have already explained to you, I think that the focus4 on the notes is exaggerated to some degree. And what5 I think the Governors wanted -- I speak for myself,6 Mr Sumption; what I wanted, as Chairman, was I wanted7 the considered judgment of the executives that we had8 appointed to run the news division and the Director9 General on whether the source was credible and reliable10 and whether the source was accurately reported. And11 short of seeking to duplicate their process in a way12 that would have suggested that we did not trust them,13 I am not sure what we could have done.14 Let me explain something to you: the Board of the15 BBC cannot operate, cannot operate, unless it is in a16 situation in which it can rely on the good faith and17 competence of its officers. I am absolutely certain18 that it can.19 If it sought to duplicate all of the actions of


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20 management it would indeed become the management. There21 is a gap between what the Board is and does and what the22 management is and does.23 Q. Mr Davies, I quite understand that the Governors' board24 is a supervisory and, in some respects, an investigatory25 body. But surely the problem here was that the

381 Governors did in fact duplicate what the executives had2 done instead of forming a view of their own which, if3 they had been properly informed, might have been very4 different?5 A. No, they did not duplicate what the executive had done.6 They expressed the judgment, which I do not resile from7 at all, that it was in the public interest to put the8 words of the source into the public domain.9 Q. They were put in a position where, for sheer want of10 information on the point, they had no alternative but to11 accept the views of the executives although those

12 executives had dug themselves firmly into a position, is13 that not right?14 A. The Governors had a great deal of information going into15 the meeting and they had an important corroboration for16 the Gilligan report, which continues to slip out of the17 mind of the Government; and that is the Susan Watts18 reports. I said in my first appearance before this19 Inquiry that the Susan Watts report was not identical to20 the Gilligan report. I actually studied both before21 I went into the meeting and I knew they were not22 identical, but I equally knew that the burden of what23 Mr Gilligan had reported in his many broadcasts on the24 subject at the end of May was a close match to the

25 burden of what Ms Watts reported on 2nd and 4th June.

391 And I do not think it should be forgotten that that is2 the case, because certainly in my mind, and in several3 other Governors' mind, maybe the whole of the Board of4 Governors who received the information before they went5 into the meeting, that was seen as an important6 corroboration of the Gilligan story.7 Q. Would you turn to BBC/6/107, please? This is part of8 the official minute of the meeting in question. After9 the executives are drawn it says, second paragraph from10 the top of the page:11 "Following an account from Mark Damazer about how12 the '45 minutes claim' had been disputed by the13 Government since the broadcast, and a discussion by14 Governors about the accuracy of the report, Gavyn Davies15 reminded the Board that it was not a matter for them."16 So is the position that when the Governors did start17 discussing the accuracy of the report you intervened to18 stop them?19 A. I think that is a very tendentious way of putting it.20 I was reminding them, as I had said to them in the21 e-mail on the Friday and had basically been agreed with22 by all Governors, that the intrinsic accuracy of the23 report, ie whether the source was telling,24 fundamentally, the truth or not, as opposed to whether25 we were accurately reporting him, was something that we


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401 were not in a position to determine. I therefore felt2 at this stage, and other Governors agreed with me, that3 the discussion was interesting but going down a by-way4 which we could not reach a conclusion on.

5 Q. I see. You could not, of course, without the6 information.7 A. No, we could not have got the information, Mr Sumption.8 There was no way of obtaining the information.9 Q. There was a discussion, we know, at the meeting about10 whether proper notice should have been given to No. 1011 in advance. There is just one aspect of that discussion12 that I want to ask you about. Did Mr Dyke say, in the13 course of the discussion, that if the Today Programme14 had consulted No. 10 in advance and reported No. 10's15 denial that would have weakened the impact of the16 broadcast?17 A. I do not remember Mr Dyke saying that. I think the

18 shorthand notes suggest Mr Dyke may have said something19 to that effect, but the shorthand notes, to be honest,20 are not cleared by the people concerned and may or may21 not totally accurately grasp all the words, reflect all22 the words they used. I do not remember Mr Dyke saying23 that.24 Q. They are at least as likely to record exactly what is25 said as the smooth minute produced afterwards, are they

411 not?2 A. Not necessarily, because the minute, I do not think you3 will find it is very smooth, that was produced

4 afterwards at least has the agreement of the people that5 they broadly did say what is shown in the minute. As6 you all know, with Cabinet minutes, with any form of7 public sector authority minutes, that is the standard8 way of doing it to make sure that the shorthand note9 taker has correctly picked up what was actually said at10 the meeting.11 Q. Was it the Governors' view that notice should have been12 given to No. 10 in advance?13 A. It was not a unanimous view.14 Q. Was it the majority view?15 A. It was the majority view, although when we described it16 in the statement we said "could".17 Q. Yes, you watered it down in the statement because you18 did not wish to be seen to let down the executives.19 That was the reason for that, was it not?20 A. I have never heard such nonsense. We watered it down in21 the statement because one of our most senior and most22 respected Governors thought it was actually actively23 wrong to give prior notification to No. 10, and in order24 to ensure that unanimity was maintained among the25 Governors, not among the executive, among the Governors,

421 I put the word "could" instead of "should".2 Q. Did a number of the Governors express misgivings about3 the propriety of Mr Gilligan writing his article in the4 Mail on Sunday under the byline of a BBC correspondent?


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5 A. There was a good deal of concern about that, yes.6 Q. Was their conclusion on that watered down in the press7 release as well?8 A. No, because basically what we decided -- there were9 several Governors who were very concerned about that and10 who felt that the BBC should move, pretty rapidly, to

11 stop journalists on the BBC writing anywhere for12 newspapers, outside newspapers. The Director of News13 said, "Look, this is a bit more complicated than you may14 think. We have freelance people, you know. It may be15 difficult to control them. We also have issues where16 some of our journalists are allowed to do this under17 contract and we have to think about this in some18 detail."19 So we said to the executive: go away, form a view,20 come back to us. And in fact the paper is under21 preparation; I think we will probably discuss this at22 the Governors' meeting in the next couple of days.23 Q. Mr Davies, what you said is that you thought that people

24 were concerned about The Mail on Sunday article.25 "Mr Gilligan", you said, "got us into trouble with The

431 Mail on Sunday". And Mr Dyke's response to that,2 according to the shorthand note is, "If you say that3 tonight, you are disowning Andrew Gilligan".4 A. We did say it.5 Q. Yes. What you did was to water down the point by simply6 saying the Governors would look into the matter, because7 Mr Dyke was concerned that you should say absolutely8 nothing that would seem to be criticising Mr Gilligan.9 A. We did say it.

10 Q. What do you say you say?11 A. We did say it. There was no watering down. We said we12 asked the executive to conduct an investigation. If we13 had taken a decision on the night, Mr Sumption, you14 would be standing here saying I took a knee jerk15 decision that was too rapid.16 Q. Could we look at BBC/6/111, please? Can we take it,17 from the second bullet point on this press release, that18 the Governors were, in fact, under the impression that19 this was a senior intelligence source and that was the20 reason why they rejected the suggestion that there21 should have been corroboration from some other source?22 A. No, you cannot take it from that.23 Q. That is what it says, is it not?24 A. As I explained in my first round of evidence, the phrase25 "senior intelligence sources", which we can talk about

441 more in a minute in terms of the meaning of it, it does2 not say "an Intelligence Service source".3 Q. Ah, that is the difference, is it?4 A. I wish to make that absolutely clear to you here today.5 It says "a senior intelligence source", which to my mind6 is different. That phrase was drafted in late in the7 process and was not picked up by me. I did not know who8 the source was. I said to the Inquiry in my first9 appearance that I regret if that led to anybody10 misreading who the source was. I regret that. But it


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11 certainly did not reflect, and I had gone into it in12 some detail with the people who took the notes of the13 meeting, it certainly does not reflect that the14 Governors were either told that the person was in the15 Intelligence Services or assumed it. They were simply16 told that the source was credible, reliable, in

17 a position to know, had given reliable information in18 the past. They were not told he was in the Intelligence19 Services.20 Q. Was it true, or not, that the reason why the Board21 rejected the suggestion that there should have been22 corroborative evidence was that that was impractical in23 the case of a senior intelligence source?24 A. The Board was not told that, no.25 Q. Was it true that that was the reason why they rejected

451 the allegation?2 A. Rejected what allegation?

3 Q. The allegation was that the producers' guidelines had4 been broken because you should have had a corroborative5 source. Now, what this second bullet point is saying is6 that that complaint was rejected because it was not7 practical to obtain corroboration for intelligence8 sources.9 A. Mr Sumption, the whole point of our decision was that10 the producer guidelines had not been broken.11 Q. Mr Davies, you have misunderstood my question.12 A. That is how you started your question.13 Q. I will put it once more. I will try to put it more14 clearly.15 One of the matters before the Governors was the

16 question whether the BBC should have obtained17 corroborative material from another source. The second18 bullet point in this press release says that that is not19 invariably necessary and was not appropriate in this20 case because the source was a senior intelligence21 source. Do you agree that that was the Governors'22 decision on that particular point?23 A. No, I believe what the Governors -- the decision the24 Governors took on this particular point was that stories25 about intelligence were sensitive and unlikely to be

461 corroborated by many sources. It does not require the2 source to be a senior intelligence source in the sense3 that the source was actually a member of the4 Intelligence Services, which is not what this says.5 Q. So you do not accept that the second bullet point6 actually gives a fair account of the Governors' own view7 of how matters proceeded?8 A. I believe it gives a fair account entirely, Mr Sumption.9 I have conceded that the words "senior intelligence10 sources", although in my mind acceptable knowing what11 I now know, although in my mind acceptable, may have12 been misunderstood by some readers of this. I have said13 it was drafted in late, not by me or by anyone else on14 the Board but by a member of our communications team,15 and that it was not intended to mislead and that16 I regret if it did mislead anybody.


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17 MR SUMPTION: Thank you.18 Cross-examined by MR DINGEMANS19 Q. Mr Davies, the Governors as a supreme authority of the20 BBC, they accept ultimate responsibility for the actions21 of the BBC in this matter, do they not?22 A. Mr Dingemans, we accept ultimate responsibility for the

23 BBC in everything that it does.24 Q. And you also accept, do you not, proper responsibility25 for the BBC's handling of Mr Campbell's complaints?

471 A. I think that follows.2 Q. Can I just deal with the Governors' investigation of3 this matter? Accepting the points you make, that you4 could not go to the Chairman of the JIC and look at the5 draft dossiers --6 A. Yes.7 Q. -- were there not a number of things that might have put8 you on notice that a thorough investigation was needed?

9 Perhaps I can just try them out with you.10 A. Hmm, hmm.11 Q. First of all, the Governors had been told that this was12 a story that was going to be "chatter in the air" rather13 than the lead item on the Today broadcast. That either14 suggests a stunning lack of insight into the story which15 was proposed to be broadcast or the broadcast had gone16 beyond that which had been originally proposed.17 A. Well, this was debated, actually, at the meeting. In18 one of the Governors -- I think this is minuted19 accurately in the shorthand notes -- said that she20 thought it was somewhat naive that the programme might21 not have recognised the nature of the story they were

22 broadcasting. Other Governors felt that it is always23 very difficult to say where stories are going to go and24 how big the stories are, and did not share her view.25 Q. The second aspect that might have put you on notice --

481 A. But we did think about that quite carefully,2 Mr Dingemans.3 Q. The second aspect was Susan Watts' story, which you say4 you looked at carefully.5 A. Yes.6 Q. Which crucially omits the point that the Government had7 at least by that stage identified as objectionable,8 namely that the 45 minutes point was probably wrong.9 A. It does omit that, but it does have, you know, really10 quite significant phrases that are rather -- you know,11 rather similar although not identical. That is why12 I said that, to me, it corroborated the broad thrust.13 It does say that Ms Watts -- Ms Watts' broadcast did14 say that the idea that there was an imminent threat --15 words to this effect, I am slightly paraphrasing, but it16 is close -- was a Downing Street interpretation of17 intelligence conclusions and that anything useful was18 seized on by the Government, including the 45 minutes19 claim. So I accept your point, Mr Dingemans, it was not20 identical, but it was not so different that it rang21 alarm bells in my head.22 Q. Mr Gilligan's own evidence to the Foreign Affairs


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23 Committee, where critically he does not repeat what he24 says the source had told him on the 6.07 broadcast; was25 that not picked up?

491 A. It was picked up by me. I am not sure if it was picked

2 up by other Governors.3 Q. Did you share it with the other Governors?4 A. Well, other Governors had the Gilligan evidence to the5 FAC included in their pack and, I believe, read it. But6 I was also aware on that, on this exchange of letters7 which had occurred between Mr Gilligan and8 Mr Phil Woolace(?) subsequently in which Mr Gilligan9 had, I think, threatened to sue Mr Woolace about making10 a claim similar to the one you have just made and11 explained he had not repeated the 45 minutes charge12 because he had not been asked directly the question,13 Mr Wallace said: look, Mr Gilligan, you have misled the14 Committee because you have not given the gist of your

15 broadcast, as it was on the 29th May. Mr Gilligan said16 he absolutely had.17 Q. You have said you were not able to have the original18 notes before you. You say that notes are not that19 important. It would have been possible, would it not,20 to have called for redacted copies of the notes?21 A. I have not made the point that notes could not have been22 available to the Governors on that day, they could have23 been. And nor have I made the point redacting would24 have made any difference. I was not making those25 points. I was making the points --

50

1 Q. If those points --2 LORD HUTTON: Did you want to add something? I thought your3 reply was possibly cut short.4 A. Okay, thank you, my Lord. It probably was but it has5 gone out of my mind.6 MR DINGEMANS: Accepting you had not made those points, do7 you not think the Governors ought to have called for the8 redacted notes?9 A. This comes back to the different functions of the two10 Boards. If we had asked for concrete evidence on all of11 Mr Campbell's letters in the year 2003, not believing12 what the Director of News told us or what the Director13 General told us, and had asked for ourselves to see all14 of the evidence produced by journalists or talked to15 journalists themselves, it would have clogged up our16 board meetings considerably. Of course, I recognise17 this was an important, a very important juncture.18 Q. You had called a special meeting to consider this19 allegation alone?20 A. Yes, but we were very aware that the accuracy of the21 words Mr Gilligan used was an issue here, because we22 were very aware that Mr Gilligan needed to have reported23 his source accurately. But we were actually partly24 guided, I think, by Mr Campbell's complaints, looking25 more specifically at whether or not management knew the

511 source was credible and reliable. And the issue of


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2 whether or not Mr Gilligan had accurately reported the3 source came live a little bit later on. So we certainly4 knew that it was an issue, it was logically an issue, it5 was an issue that went through our minds and we did not6 ignore. But it did not adopt the same centrality as it7 now appears to at the time. And interestingly, I do

8 not -- there was concern about Mr Gilligan's language9 expressed by one of the Governors, but there was no10 concern that he may have meaningfully misreported the11 words of the source. If that had been an issue,12 Mr Dingemans, I think we would have asked for the notes.13 But it was not apparently an issue.14 Q. One other thing you could have done is ask for the draft15 cues, which I gather are not normally kept for16 a programme. We have now been supplied those. Can17 I take you to BBC/31/2?18 A. Yes.19 Q. This as I understand is what is drafted, as it were, for20 the 6.07 programme. If you look at it, it says "Draft

21 Cue":22 "Doubts about the reliability of Tony Blair's23 assertion last September that Iraq could deploy WMD24 within 45 minutes have been confirmed by this25 programme."

521 Then this:2 "What do they say:3 "Evidence that experts felt their work was being4 misrepresented to justify an attack on Iraq to fit in5 with the US led timetable for overthrowing6 Saddam Hussein."

7 That may be important because Dr Kelly was certainly8 an expert, and indeed that then puts the whole broadcast9 into context. Go down the page to the final answer:10 "No, it was real information. But it was included11 in the dossier against our wishes because it wasn't12 reliable."13 If it is against the wishes of experts, we have14 heard from Dr Jones, we have heard from Mr A, they are15 experts, they were not happy, but that would have put16 the broadcast in a proper context, would it not?17 A. I think we have already, you know, conceded on the 6.0718 that it was based on an interpretation of what Dr Kelly19 told Mr Gilligan, because Mr Gilligan has said that.20 I have seen -- I only saw this note yesterday actually,21 Mr Dingemans.22 Q. Join the club.23 A. It did not appear to me, when I studied it, to add very24 much to what I now know was in the notes. So it is not25 clear to me that this document adds a great deal to what

531 Mr Sambrook would have seen in his inspection of the2 notes. After all, he knew that Dr Kelly was an3 "expert", in inverted commas. So I take this to be --4 I mean, you can see there the whole -- the answer on the5 classic was the statement that "WMD were ready for use6 within 45 minutes", that statement comes pretty much out7 of the notes. I think most of this does, actually.


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8 Q. Indeed. It also makes clear who "our wishes" were,9 expert wishes.10 A. I think that is an -- you can draw that inference.11 Q. Tell me if I am wrong.12 A. I think you can draw that inference.13 Q. Of course, I mean, in fact, that would have been

14 absolutely correct, as far as we now know, with the15 evidence of Dr Jones and Mr A. But it was never16 correct, was it, to broadcast against the wishes of17 Intelligence Services, implying JIC?18 A. Well, I think that again Mr Sambrook has said that in19 his view now, knowing what he knows now -- after all, we20 are talking with considerable additional information --21 that it was not right to imply that the Joint22 Intelligence Committee was objecting to this particular23 piece of information going into the dossier or the way24 it was expressed. However, I think Mr Sambrook said25 that he did not believe that had been implied; and on

541 several occasions, I think, Mr Gilligan implies that it2 was people in the Intelligence Services and not the3 Joint Intelligence Committee.4 Q. Finally, because my time is more limited than others,5 BBC/14/86. You were shown this by Mr Sumption. He was6 putting to you that it showed a state of mind whereby7 the Governors were going to avoid buckling under8 pressure. You were shown part of this e-mail, if we9 scroll down "avoid buckling under pressure", et cetera.10 A. Yes.11 Q. Is this right, you, at the BBC, felt you could not back12 down partly because Mr Campbell had accused you of

13 lying, at the Foreign Affairs Committee in his evidence14 of 25th June?15 A. No, I honestly do not think that is true. I think we16 would have wanted to put on public record, absolutely17 clearly, anything that we thought we had broadcast that18 was misleading or wrong. That is our prime19 responsibility to the public. It is not anything else.20 However, within that prime responsibility, which21 I completely agree with you is our prime responsibility,22 the public was looking to the Board of Governors, in my23 opinion, to say to the Government: the BBC is not the24 state broadcaster. And I have to say to you that that25 was very much in our thinking and still is, and you will

551 see from many of these e-mails and the exchanges I got2 back that it was very much in the Governors' minds.3 In addition to that, if you look at my e-mails in4 the previous week, you will see that there are a series5 of references to also not appearing to buckle under6 management pressure, which was very important too.7 Q. So that, at least, was partly in the Governors' minds.8 We have heard in the Government's mind they considered9 this a very serious attack on their integrity and10 tantamount to a charge of dishonesty. Was this a case11 where both sides had, as it were, put common sense and12 perspective on the side when they had engaged in this13 dispute?


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14 A. Well, I did not feel that the Governors did that at all.15 One of the advantages, of course, of the Governors is16 that people are not sitting in the building every single17 day and, you know, are not caught up with an atmosphere18 that otherwise they might be, and are cool headed about19 the matters. And I believe the Governors were. One of

20 the important reasons why we wanted to put on record21 that we were not questioning the Prime Minister's22 integrity was that we were deliberately trying to cool23 the atmosphere.24 MR DINGEMANS: Thank you, my Lord.25 LORD HUTTON: Any re-examination?

561 MR CALDECOTT: No re-examination, thank you my Lord.2 LORD HUTTON: Mr Davies you have referred in your evidence3 this morning to the complaints procedure. Now, I think4 Mr Dyke said in his evidence that the complaints5 procedure, to work its way through to a conclusion,

6 would normally take a matter of months. Do you agree7 with that?8 A. I think it could have been done quicker in this case,9 my Lord, if we had wanted to. A completely routine10 complaint coming through the door would be investigated11 by the PCU for some time. If there were an appeal it12 would then be investigated by the GPCC, the Governors'13 Committee. That could take months. I feel if14 Mr Campbell had put in a complaint and asked us to15 handle it quickly, we could have done it in a small16 number of weeks at the longest.17 LORD HUTTON: Yes, I see. Thank you very much, Mr Davies.18 MR DINGEMANS: Counsel for Mr Lamb is going to examine him.

19 LORD HUTTON: Yes. Yes.20 MR PATRICK LAMB (called)21 Examined by MISS LIEVEN22 LORD HUTTON: Just sit down, Mr Lamb, please.23 A. Thank you.24 LORD HUTTON: Yes, Miss Lieven.25 MISS LIEVEN: Could you give the Inquiry your full name?

571 A. My full name is Patrick Lamb.2 Q. And your position?3 A. I am Deputy Head of the Counter Proliferation Department4 in the Foreign and Commonwealth Office.5 Q. I think it is correct that you have given evidence to6 this Inquiry on three previous occasions in part 1.7 A. That is correct.8 Q. I am going to ask you questions on three areas: the9 system of authorisation for Dr Kelly's press contacts,10 Dr Kelly's mention to you of the fact he had spoken to11 Mr Gilligan and Ms Watts, and the actions you took after12 Dr Kelly's name became public.13 On the first of those, can you just explain what14 responsibility you had for Dr Kelly's press contacts?15 A. When I became Deputy Head of the Department, ultimately16 I took on responsibility for the various sections within17 that Department, which included the nuclear section, the18 weapons convention section, the chemical and biological19 section and the UNMOVIC section. As a consequence of


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20 that, I took on responsibilities for authorising and21 agreeing Dr Kelly's contacts with the media. I should22 add that that was also a responsibility shared by the23 head of the UNMOVIC section, who was perfectly24 authorised and entitled to offer policy advice in25 conjunction with the FCO press office, which was

581 ultimately within the Foreign Office, the Department2 which took the final decision. We offered policy3 guidance to the press office who ultimately made that4 final decision.5 Q. To what degree did you consider it acceptable for6 Dr Kelly to seek authorisation from you after he had7 spoken to the press, in other words ex post facto8 authorisation?9 A. This would not be acceptable in my view. It is not10 a concept which I frankly understand. The whole point11 of the process was that the inquiries should be referred

12 to the press office who would then consult with in this13 case my department and a decision would be made, and14 once that decision had been arrived at, the decision15 would be conveyed to Dr Kelly.16 It is evident and clear that there were certain17 occasions, such as seminars, receptions, where it would18 be quite impossible for Dr Kelly or anybody for that19 matter to say no to a journalist or ring up the press20 office and say: can I or can I not speak? Those are21 understandable occasions where we all end up speaking to22 journalists without necessarily prior authorisation.23 The only occasion that I can recall Dr Kelly24 speaking as it were without prior authorisation goes

25 back some three or four years to an occasion when I was

591 then the head of the Chemical and Biological Weapons2 Convention Section, when he called me to say that he was3 about to be interviewed I believe by German radio or4 German TV on the issue of smallpox. I believe I gave my5 agreement to that because he had said what he was6 intending to say in the course of that broadcast; and7 once that broadcast was over I got a telephone call from8 him giving me a quick run through as to what had9 happened and taken place.10 I consider that to have been a courteous reassurance11 on his part to me of what had taken place. It obviously12 gave me the ability, if need be, to take action in the13 event that something untoward had been said. But14 I think that there would still have been problems, both15 for me and Dr Kelly, had something of a sensitive policy16 nature emerged during that meeting. Therefore I am17 afraid I do not accept there can be any ex post facto18 authorisation.19 Q. Up until the end of 2002, did you have any difficulty20 operating the system of authorisation with Dr Kelly?21 A. The system worked extremely well; and indeed it worked22 very much at Dr Kelly's behest because towards the end23 of 2001 to early 2002, Dr Kelly mentioned to the then24 head of the UNMOVIC section that he was being, and the25 words that were used were "badgered", increasingly


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601 badgered by the press as the issue of Iraq rose up the2 international agenda.3 At that point there was a discussion between the4 head of section and Dr Kelly, there was then

5 a subsequent meeting between the head of section,6 Dr Kelly and the relevant press officer and it was7 agreed that henceforth if Dr Kelly were contacted by8 journalists, he should immediately refer that contact to9 the press office who would make a decision on the basis10 of who the journalist was, et cetera and the11 circumstances at the time.12 The press office are very clear about that, both13 about the meeting and also about the understanding that14 was reached because Dr Kelly, perhaps understandably,15 shortly thereafter, when he was contacted by the press16 would often say: I am perfectly happy to speak with you,17 however I must refer it to the FCO press office. The

18 press office got back to Dr Kelly to say: please do not19 say "I am happy to speak with you" because that put us20 in a potentially very difficult and embarrassing21 situation if we had to refuse. So there was a system22 which worked and it worked very much at Dr Kelly's23 behest and in order to protect him from unwanted press24 attention.25 Q. When did you become aware that Dr Kelly might be

611 departing from the procedure that you have explained?2 LORD HUTTON: Miss Lieven, sorry to interrupt you. We give3 the stenographers a break and I just have to choose an

4 appropriate time. I think this might be it when you are5 going on to a slightly new subject. So I will rise for6 five minutes.7 (11.40 am)8 (Short Break)9 (11.45 am)10 MISS LIEVEN: Mr Lamb, at what point did you become aware11 that Dr Kelly might be departing from the procedure that12 you have just outlined?13 A. There was an incident on Sunday 13th April when I was14 contacted at home concerning an article that had15 appeared in the Sunday Times which mentioned Dr Kelly by16 name and had excited a good deal of immediate press17 interest. I was contacted by the duty officer in the18 FCO press office in order to determine how we should19 react.20 There was also, as I now know, an article that21 Dr Kelly had written for Miss Julie Flint. This22 appeared in -- reference was made to it in The Observer23 on 30th August this year.24 Dr Kelly, I should add, previously, in addition to25 clearing his press contacts also cleared all papers and

621 presentations through my office. This he did on2 a regular and routine basis and fully understood, as do3 all Porton scientists, that these matters have to be4 cleared by the relevant Whitehall Department, MoD and


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5 also FCO. Dr Kelly made no mention of this article and6 therefore that also represents, I now understand and7 recognise, a further departure from his normal practice.8 Q. In respect of the article on 13th April in the Sunday9 Times, when that was brought to your attention by the10 press office what steps did you take?

11 A. I contacted Dr Kelly at home. I did not have his home12 telephone number on me but I was in the habit of13 speaking to him and recollected it from memory. I spoke14 to him and reported what was happening. He said, as15 I recall, that he had also been contacted by another16 press outlet and I discussed with him how we should17 react. I indicated that obviously I was very unhappy at18 the reference to his name associated with comments about19 a senior Iraqi official and the implications that could20 have for any further proceedings against that official,21 as well as the fact that clearly it was unfortunate and22 undesirable that UK officials be commenting, without23 authorisation, on events as they were arising in Iraq.

24 Dr Kelly accepted and understood that.25 It was agreed with him that he should refer any

631 further inquiries directly to the FCO press office, and2 it was further agreed with the FCO press office that we3 would say that Dr Kelly was unavailable for further4 comment. He was very happy with that outcome.5 Q. In the light of your knowledge of events at the time,6 how confident could you be that Dr Kelly knew he had7 needed authorisation to speak to the media?8 A. I believe he knew he needed authorisation, as I say,9 because of the fact that he had broached us very

10 specifically in late 2001/early 2002 and the procedures11 had been set in place because he was becoming the victim12 of increasing press attention. I think that the whole13 pattern of any relationship with him, and the14 relationship he had between -- with the Foreign Office,15 the papers that we cleared routinely for him, whether16 for the International Institute of Strategic Studies,17 whether for presentation in the Foreign Office or18 presentations at seminars, all of these matters ensured19 that Dr Kelly I think perfectly understood he needed20 policy guidance and authorisation from me and from my21 office.22 Q. What was your understanding of the position on handling23 press contacts that might involve areas covered or led24 by the MoD, the Ministry of Defence?25 A. In the practice that -- in the method that was set up,

641 clearly the call would come into the Foreign Office or2 it might be referred to us by David Kelly, and we would3 not know at that immediate point, nor would he, exactly4 what areas the journalist wished to cover. It would be5 in discussion with the press office that the journalist6 would set out the areas that he wanted to discuss; and7 it would be, at that time, a matter for the press office8 and, to some extent, me to determine whether these were9 properly FCO issues or whether one or other of them was10 an MoD lead. At that point it would be for the press


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11 office to contact their MoD opposite numbers to bring12 them into the discussion as to whether Dr Kelly should13 go ahead with this particular interview.14 Q. Can I move on to the second topic I wish to cover. When15 did you first become aware that Dr Kelly had spoken to16 Mr Gilligan and Ms Watts?

17 A. I believe that this took place or rather I believe he18 spoke to me some time in late May. I say this for two19 reasons. I believe it had to be subsequent to his20 conversations with Ms Watts, which I now know took place21 on 7th and 12th May. I believe it had to be subsequent22 to his conversation with Mr Gilligan which took place on23 22nd May, because Dr Kelly referred, very fleetingly and24 very briefly, to the fact that he had spoken to both25 those journalists in a conversation that took place in

651 my office. He did not elaborate. He made no further2 comment or explanation or exposition as to what had

3 taken place, if anything. And I noted, very4 specifically, those two names and that I remember5 specifically -- the only element of the conversation6 I now retain is the fact, and retained even at the time,7 that he had spoken to two named journalists and that8 I was unaware that he had sought authorisation.9 Q. Why did you not follow it up at the time that Dr Kelly10 made those comments?11 A. I did not follow it up at the time because he did not12 specifically say to me that he wished to raise a matter13 with me. He did not specifically say: I would like to14 discuss with you what took place, or give me any run15 through as to what had happened, as he had done

16 previously in the case of the German TV radio interview17 where he had gone through it in detail.18 Dr Kelly, I should add, on that occasion, and19 because I was extremely busy with covering two posts20 within the Proliferation and Arms Control Department at21 that time and was dealing with another meeting which I22 cannot refer to here but was a bilateral meeting with23 another country, an issue that country had raised24 already at Prime Minister level, I was the lead FCO25 official dealing with that meeting, which took place

661 eventually on 28th May, and running with all the2 arrangements for it and preparations for it. That is3 why I was extremely busy, as I now recall. It was that4 particular issue that was dominating my attention.5 Dr Kelly, I think, could and should have spoken to6 either of my three colleagues, possibly four colleagues,7 to whom he could have drawn this -- he could have drawn8 this to their attention and any one of them would have9 realised what needed to be done. He could and should10 primarily have spoken, in my judgment, to the press11 office as well. He did not.12 This was a fleeting reference and comment made to me13 at a time when he knew and saw that I was busy.14 Dr Kelly and I normally sat down at the table in my15 office when he came to call. On this occasion my16 distinct recollection is of being behind my desk,


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17 totally preoccupied with the work I was doing, and of18 him standing in the doorway. It was most unusual for us19 to have such an exchange. It was a very fleeting and20 brief exchange.21 Q. Can I come on to the final area, actions you took once22 Dr Kelly's name became public. Did you try to contact

23 him once his name came into the public domain?24 A. I tried to contact him on both the 10th and 11th July.25 I had seen the press comments, obviously, following the

671 emergence of his name and I was distressed by those2 comments and knew that he would be distressed similarly.3 These were comments that referred to him as the MoD4 mole. This was a man who I knew had been largely5 responsible for taking down the Soviet biological6 weapons programme, he had been heavily involved in7 dealing with the Iraqi BW programme, and to refer to him8 casually as a "mole" I knew was something that I found

9 hurtful and I knew he would find hurtful. There were10 comparisons with Harold Shipman. There were comparisons11 of a sort that I found personally distasteful. I knew12 that he was a sensitive man and I was deeply offended13 personally and all his colleagues similarly offended by14 the treatment he received at that time.15 That determined me to speak with him or try and16 speak with him on the 10th and also the 11th July, and17 I was unsuccessful on both occasions. I tried to18 contact him at home but, as I recall, his voicemail was19 not working and I therefore decided that he was20 unavailable for comment, in effect. I also tried his21 mobile number, but that was -- I also think that that

22 was switched off. Therefore, as a result of those23 abortive -- I tried, as I say, to ring on two occasions,24 once in the company of a fellow FCO official who called25 into my office, I said: I will try to put a call through

681 to David now. This was on 11th July. I was2 unsuccessful also on that occasion.3 Q. Did you succeed in speaking to him on 14th July?4 A. I did. He, I believe, called in first to speak to my5 colleague Colin Smith and I was aware that he had called6 and Colin gave me a brief account of the conversation7 and his impressions of Dr Kelly's overall state of mind8 or attitudes and so on. And I asked Colin to ask9 David Kelly if he would value a telephone conversation10 with me. David Kelly indicated that he did and as11 a result I put through a call to him, I think at around12 3.30/4 o'clock in the afternoon of the 14th July.13 I should add that even in the calls on the 10th,14 11th and on 14th July, and without any full knowledge of15 anything that has subsequently occurred, I was aware16 that those telephone calls could technically put me in17 some difficulty insofar as there could be -- it could be18 construed that I was in some way either trying to coach19 or in any way in some way assist or determine exactly20 what he was going to say. I was aware of those possible21 complications but decided to go ahead anyway. That was22 not the purpose of my call. My call was to express


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23 personal sympathy and support for him.24 Q. What was the gist of the conversation you had with him25 on the 14th?

691 A. I ran very quickly through -- I was keen to find out how

2 things had gone. I had not spoken to him, obviously,3 for a period of 10 days. I did not know what had gone4 on with the various meetings he had had over that time,5 and I was keen to found out both what had happened and6 how he was feeling. I was keen to establish that he7 would not suffer -- I think I did ask him a question8 about the pension rights because that, for some reason,9 was very much in my mind and I wanted almost to be10 reassured myself that he was not going to face that11 penalty. And when he confirmed that that was the case,12 I said: well, look David, you know, the worst is over,13 there is nothing more very much to happen.14 I then spoke to him about the Foreign Affairs

15 Committee, about which I had some personal knowledge16 having appeared before them, and said they were a decent17 bunch and that he should really not be too bothered by18 what would ensue on the morrow. I also invited him19 to -- when I called him -- excuse me, I should add that20 I believed he was going though both the Foreign Affairs21 Committee and the Intelligence and Security Committee on22 the same day, the 15th July. I invited him to lunch in23 between the two Committee hearings. It was then he24 apprised me that in actual fact the meetings were going25 to be staggered over two days. I said -- I aske

hearing transcript - 24 september 2003 morning

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