Friday, 5 December 2014

Mark Sedwill evidence to HASC - 2

The next block of questions Mark Sedwill took were about the redrafted letter by Fiona Woolf outlining her suitability as chair of the inquiry. I'll put a group of questions and answers together as they did rather merge into each other.
Q7   Chair: We are grateful for that apology. Were you involved in the redrafting of the letters concerning Fiona Woolf?
Mark Sedwill: No.

Q8   Chair: When did you first know that there was a redraft of her letter? We found it very odd, and we discovered this not by going through great due diligence. It was in just one session of the Home Affairs Committee that we discovered that there was a problem in the whole process. We were astonished that Fiona Woolf’s letters were being redrafted by your officials. Who knew about the redrafting of these letters?
Mark Sedwill: Again, to be frank, I think there is less to this than meets the eye. I was not aware there were seven drafts but, to be honest with you, I do not find anything surprising in the fact that a letter of this kind from the chair of the inquiry to the Home Secretary would go through several drafts as she was seeking to reconcile three diaries, establish the facts and so on. The original draft of the letter, which I think is set out in the Home Secretary’s letter to you of 5 November—I do not really have anything to add to that—was done by the solicitor to the inquiry. I think most of the work on it in subsequent drafts was done by officials in the panel secretariat. What they were seeking to do was to ensure that the letter that Fiona Woolf signed off was a complete and transparent record of contact.
              Chair: I understand that.

              Mark Sedwill: As you will have seen, for example—

Q9   Chair: You are saying you had nothing to do with the drafts?
              Mark Sedwill: Not personally, no, but I would not expect to.

              Chair: Did you know the drafting process was going on?

Mark Sedwill: I was aware that there was a letter in draft. That is perfectly normal, yes.

Q10   Chair: You see, what the public will think very odd is that somebody is appointed to this job and you ask them to declare their interests. You work for the Home Secretary; you do not work for Fiona Woolf and your officials do not work for Fiona Woolf. Isn’t it odd that the very person who should be open and transparent is having her letters redrafted by the officials who work for the woman she is writing to? Do you not think it odd?
Mark Sedwill: Mr Chairman, she is not having her letters redrafted. As I said, the original draft was done by the solicitor of the inquiry panel, not by my officials, and the officials who were working on it with her were mostly those officials in the panel secretariat. It is their job to support the panel and to support the chair of the panel. I get drafts all the time and they will have been through iterations before they get to me. They get to me in draft; I send them back. When I write a letter, for example, to this Committee, I take personal responsibility for the final version of it and make sure that it is a complete record. The fact that it goes through some drafts and iterations, either before it gets to me or indeed after I have seen a draft, is not out of the ordinary.
Chair: I understand the drafting process. We have all been there and we have been around for a while, but the fact that someone from outside is appointed and then has her letters drafted by people who work for the woman who she is then going to apply to join may be seen to be odd.
In essence, Mark Sedwill is saying that there was nothing unusual about Fiona Woolf being given help drafting the letter, even though she is an experienced lawyer, used to dealing with words, and well aware of her obligation under the Solicitors' Code to make a full disclosure.

There are three reasons why this looks very odd, and even bad, to an ordinary member of the public.
  1. The first draft was done by the solicitor to the inquiry that Woolf herself was being considered to be chair of. The appearance is that they wanted her sufficiently that they were prepared to do her own declarations for her.
  2. The first draft revealed a significant social connection with Leon Brittan, which in the context of a criminal or civil trial in which he was a witness, would have seen her recused from the case. But it appears that no alarm bells sounded within the Home Office as to whether her impartiality (or the public perception thereof) might be impaired, even  though for the connection to be acceptable it would (in the words of Section 9 of the Act) have to be that the "appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel". It is a considerable stretch to try and suggest that being on dinner party terms with the former Home Secretary who may have serious questions to answer about the handling of the Dickens dossier, one of the central issues of the inquiry, couldn't reasonably be regarded as affecting impartiality.
  3. If the drafting process had been as Mark Sedwill suggests "to ensure that the letter that Fiona Woolf signed off was a complete and transparent record of contact", then what we would expect to see in successive drafts was new facts being added as memories were refreshed and different diaries consulted. Even if not every draft contained new facts, one would expect that at least some of them did. But this isn't what we saw. In draft after draft, the extent of the connection became that bit less. Facts changed but almost always in the direction of reducing elements of the relationship. The impression given was not of ensuring that a full record was provided, but was rather of paring down the record as far as possible to reduce the possibility that the connection would affect the public perception of bias. That got blown out of the water when the HASC asked for the drafts.
Of course, Woolf was the second chair. They had already had a painful process whereby Baroness Butler-Sloss had had to resign after being appointed and very publicly supported by both the Home Secretary and Prime Minister. It seems that they just didn't learn their lesson from that.
Q11   Tim Loughton: Mr Sedwill, notwithstanding what the Home Secretary is currently proposing over counter-terrorism measures, do you think the historic child sexual abuse inquiry is one of the top three priorities of the Home Office at this time?
Mark Sedwill: Yes.

Q12   Tim Loughton: In which case, given the sensitivities of the appointment of the chair having failed once, do you not think that you might have taken a rather closer interest in the process that led to that final letter and the appointment?
Mark Sedwill: Sorry, just to get the sequence right, Mr Loughton, the letter was the other way around. Fiona Woolf was appointed and announced. After she was announced, she brought to our attention the fact that she had a social relationship with the Brittans. As she said in her article in The Times and I think to this Committee, she had not declared that beforehand because she had not considered it material to conducting the panel appropriately. When she did so, we took advice on whether that met the test in the Inquiries Act. We then went through the process of asking her and the rest of the panel to set out in writing to the Home Secretary any social relationships of that kind. That is the sequence. It was after she was appointed.
So, the inquiry is a top 3 issue for the Home Office, and having lost one chair in part at least because of social connections with people of interest to the inquiry, they appointed and announced a new chair without even asking whether she had any social connections that might be of issue. Fiona Woolf realised that this might be an issue and mentioned it to the Home Office some time after her appointment, and only then did the machinery swing into action to evaluate whether this was a Section 9 concern.

I would like to say that it is to Fiona Woolf's credit that she did mention this, apparently unprompted. The fact that she was a bit late in doing so should not be held against her, it's perfectly common for things to occur to you as you start concentrating your mind on a subject. The problem is not Fiona Woolf's conduct in making the disclosure but the way it was handled by officials thereafter.

From Sedwill's answer, it is also clear that they also hadn't asked anybody else on the panel such questions, and so all the panel members, some time after being appointed, had to go through the process of formally declaring their connections and their belief that it would not affect their ability to conduct the inquiry impartially. What a shambles. This by itself is an argument for revisiting the appointment of the entire panel, starting from scratch using the new process that is supposedly in place for the appointment of the new chair.
Q13   Tim Loughton: I understand that. I am interested not so much in the detail, but in the interest you have taken in that whole process, given that it was after Elizabeth Butler-Sloss had fallen on her sword.
You referred to the Inquiries Act. Notwithstanding the letter of the Inquiries Act, in retrospect do you think it was unwise to allow to go forward the name of Elizabeth Butler-Sloss as the sister of the senior law officer who was in place at the time of many of the cases that were highly likely to be included in this inquiry? Was that an oversight?
Mark Sedwill: I do not think it was an oversight, because we were aware of it. Indeed, when I appeared before this Committee on the issue of child sex abuse back in the summer, I think it was the Chair who asked me about—I think it was announced that day, Mr Chairman—whether it was appropriate, given that she was the sister of a former Lord Chancellor, and we discussed it in the Committee at that point. We were well aware of that and made a conscious judgment that somebody with that record of integrity could conduct the panel notwithstanding that. As I have said, all of us—I take my share in this but this is a judgment that all of us made—did not appreciate that for this particular inquiry the threshold has to be in a different place.
He's going on again about there being a different threshold for this inquiry, as if repeating the point will make it more believable than the first time round. He also makes it clear that they knew from the beginning that Butler-Sloss was Havers' sister, and decided it didn't matter.
Q14   Tim Loughton: Going forward, given these false starts, given these serious question marks about reiterations of drafts of letters and given that the Home Secretary has met, and you say will continue to meet, various survivors’ groups, who some of us have met—and it is very difficult to have a single view, a single representation—do you think we can reach a place where, by and large, the survivors will have any confidence in the next person or persons the Home Secretary nominates to be the chair of this inquiry?
Mark Sedwill: I believe so, because we have learnt the lesson. That is why the Home Secretary set out in the House that she wanted to meet survivors’ groups and have a series of meetings of survivors’ groups before appointing the new chair, and not just on the question of the chair but on the questions of how the panel itself is constituted and so on. We are discussing a range of issues. She wanted to consult them before doing that. I think that process is designed, as she set out, to achieve that confidence.
He says they have learnt the lesson. We will see. The omens aren't all that good given that there has been no suggestion yet that the panel appointments should be revisited, and there are issues yet to be addressed with some panel members. If the lessons have been learned, we will see it in an announcement that the panel composition is being revisited, and in the name provided for the new chair.

The difficulty of getting consensus among the survivors is a real one. They aren't a conventional lobbying group, they are a disparate group of individual with widely differing experiences and understandably with a range of key priorities. Their range of experiences are such that some want a judge to run the inquiry on the grounds that they are independent of the politicians, while others have had bad experiences of judges and don't want one anywhere near the inquiry.

Whoever is chosen as chair, there will be (hopefully a small number of) survivors who think it is a bad choice and will refuse to co-operate. The best that can be hoped for is that the leaders of the charities that provide support to survivors and who de facto are in the position of representing their interests get together and agree a reasonable range of characteristics for the chair that they find acceptable.
Q15   Tim Loughton: Why didn’t you advise her to do that in the first place?
Mark Sedwill: This is a wholly unprecedented situation. I do not think we have ever had an inquiry of this kind and that question did not arise.
I have a bit of sympathy for this. We haven't had an inquiry quite like this before. But comparable inquiries have happened elsewhere and one is going on in Australia right now.  It's not as if they had no means of working out what they were letting themselves in for.
Q16   Tim Loughton: In retrospect, do you think you should have done?
Mark Sedwill: In retrospect, as I say, it was unprecedented and it does set a precedent for particular inquiries of this kind. One should always learn lessons from these kinds of things. Of course, Mr Loughton, had we realised at the time just how difficult this was going to prove, had we been able to set out a process of this kind at the time, it would have taken a bit longer to appoint the first chair but we might have achieved the result the Home Secretary is now trying to achieve.
20/20 hindsight. Isn't it wonderful!
Q17   Mr Winnick: I assume, Mr Sedwill, there will not be any redrafting of letters of the next person recommended or appointed to be chair; I think we can work on that assumption. What I want to ask—
              Chair: Sorry, Mr Winnick. Is that the case?

Mark Sedwill: There is an underlying assumption in the panel’s question that there is something untoward in the solicitor to the inquiry doing a first draft of a letter that set out some facts about a social and personal relationship, that other information collated from three separate diaries that Fiona Woolf was running is then inserted into later drafts of that letter, and that Fiona Woolf herself then makes any final adjustments to it and produces a final letter. There is an assumption here that that is untoward. It is not untoward and I just need to be clear that I would expect that on-the-record letters, on-the-record correspondence from the chair of this panel, whether it is about the substance of the inquiry or indeed other matters, may well go to the chair or other members in draft from their staff and they may well then wish to make adjustments to it. I do not think there is anything untoward in that. We have to be careful not to make that suggestion.
Hmm. Perhaps not many lessons have been learned after all, if the redrafting of letters is still regarded as perfectly OK. That said, I can see that some letters might justifiably get drafted and redrafted, for instance a letter from the chair requesting a conversion to a statutory inquiry or a change in terms of reference. But I hope very much that Sedwill doesn't think it's OK for a prospective chair's disclosure of interests to be drafted and redrafted by the inquiry or the Home Office. As you can see below, Mr Winnick took the same view.
Q18   Mr Winnick: That is in the past. All that I would say is that anyone who is appointed by the Home Secretary to be chair is most unlikely to go through that drafting process, but we shall see. I think common sense dictates the obvious answer on that.
What I want to ask you, Mr Sedwill, is this: these are two highly-distinguished individuals and their integrity is in no way questioned. I will correct that: I am sure that no one has done so and I see no reason why their integrity should be questioned in any way whatsoever. However, I would have thought, on the first choice, that it was not simply a matter of the brother holding high positions, both parliamentary and legal, but the fact that certain aspects would have been known. I would have thought that in itself would have meant some caution on the part of those advising the Home Secretary and that, of course, led to a great deal of embarrassment for the person who was appointed as the first choice.

Mark Sedwill: As I have said, Mr Winnick, I think none of us, including, as you say, these two highly-distinguished individuals, appreciated that in practice the judgment had to be made at a different threshold from that for any other inquiry panel, including the very delicate ones that in particular Lady Butler-Sloss led in the past over many years. Of course, everyone welcomed her appointment when it was made because of that track record. It is also important to keep in mind that this panel is going to have such a wide-ranging brief that most of the members of it will, at some point in the course of the inquiry, probably find themselves dealing with an institution or an individual with whom they have had some kind of contact in the past, because that is the nature of an inquiry of this kind. They will need to conduct themselves, as indeed this Committee often does when you are dealing with a particular topic, by declaring if they have an interest—they will not necessarily know now what that is, so they cannot necessarily foresee that—and conducting themselves accordingly, and that is an entirely appropriate means of proceeding.
And again we have the claim that this is a different threshold. The problem is not that Butler Sloss had a brother in government, but that he would undoubtedly have had an involvement in the handling of issues around child abuse that arose at the time, and that it is possible that the inquiry might have to comment adversely on his conduct and/or competence. Its a clear impediment to impartiality where the chair of a major inquiry might have to criticise the conduct of her own brother, and where this is known from the outset.
Q19   Mr Winnick: What do you think, Mr Sedwill, of the view sometimes expressed that in both cases it was a choice made from what could be described as the very limited location of Westminster—not simply of London but of Westminster—and within Westminster, a very limited location to say the least, places that I certainly do not live in?
Mark Sedwill: Nor I.
Mr Winnick: What about going further afield to the rest of the country?
Mark Sedwill: That is exactly what we are trying to do now, Mr Winnick. Recognising this panel has a different remit and needs to be run in a different way from almost any other inquiry panel we have run in the past, that is why we are spreading the net wider and why the Home Secretary is going through that process, yes.
              Mr Winnick: You are doing that now.
Spreading the net wide is not as unprecedented as all that. The IRA weapons decommissioning process was overseen by a retired Canadian general. Anyway, we will see what they come up with.

More analysis to follow.

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