The transcripts of the official inquiry into the culture, practices and ethics of the press. More…

  • My Lord, yes. My Lord, first of all I'm very, very grateful that you've agreed to sit at such short notice on a Friday afternoon. That's made lives very much easier. You're aware, I think, of the nature of the application that we're making?

  • Yes. Thank you very much for the skeleton or detail. I entirely understand the reason, and, indeed, have expressed concern about the impact of evidence coming to those who might be affected entirely unsighted. So I understand that, but I'm not quite sure how that brings you within the legislation. I'm sorry to be tediously legal about it, but that's my touchstone.

  • My Lord, yes. I think you're referring to the issue as to whether or not the core participant which requires, in order to comply with the rules, a core participant to be a person, whether or not that concept can be applied to government more generally.

  • It's a constitutional question, which I would have thought has been troubling people for 700 or 800 years.

  • My Lord, yes, or possibly not on the basis that most of the caselaw in other contexts makes it tolerably clear, as I hope in fairness we pointed out in the skeleton submissions in writing, that government does not actually have a separate legal personality itself; it acts through a succession of ministers and secretaries of state, some of whom and some of whom are not bodies corporate, others of whom are individual people. So we fully accept --

  • Yes, you've identified the problem, but, Mr Eadie, you haven't identified a solution. I've had that problem for six months. People are very pleased to tell me what the problems are, but they get much coyer about the solution.

  • My Lord, my instructions are that if my Lord is, as it were, if I can put it this way, not enamoured of the prospect of finding the government is a person, then I'm instructed not to push that point. The important thing, as you know from the written submission, is those who need to have advance sight of relevant material have advance sight of relevant material and that you, as the chairman of the Inquiry, have sufficient confidence that the confidentiality that the Inquiry is entitled to expect in relation to that material, which is accorded on a privileged basis, is actually properly respected.

  • Which is why we cast the thing in reverse in the written argument, because once those are satisfied, then it may just be a question, if the alternative is named people, of us identifying the named people and then, I think it sounds a bit as though it's going to happen rather more behind the scenes than in public, those who would need to provide advice for them would therefore be included.

  • There are a number of issues to unpick there. First of all, whether I'm enamoured of a submission or not is neither here nor there. The question is: as a matter of pure law, can you advance an argument that the government does in fact fall within the definition of a person? If you can, I'll be very happy to listen to it. If you can't, it's not a question of being enamoured by it; I just can't do it.

  • My Lord, I understand there is a choice. After three years doing this job, I can argue almost anything, so I could mount an argument that government constituted a person, but I'm instructed, given the preliminary indications you've given, that however interesting that argument might be, I'm not going to trouble you with that this afternoon. It is a question of those who are to be core participants and their advisers.

  • Right. I understand that entirely. Forgive me for teasing you a little bit about it, Mr Eadie. It is actually the subject of a ruling which I handed down earlier this week, because I had to define the word "person" for purposes of Rule 13 of the Inquiry Rules 2006.

    Right. So is there anything you want to say beyond that which you've included in writing -- which is helpful and I'm grateful -- about the merits? We'll come then on to the practicalities, but if you would like to say anything about the merits, then I'm happy to listen to you about it.

  • My Lord, I don't want to say anything more than is in writing. You've seen from the written submissions -- and it may be that if others haven't seen the written submissions I ought to briefly summarise them -- that we put the application on two bases.

    Firstly, that the government ministers concerned have been asked to give evidence, I think in the case of at least one case -- that is the Chancellor of the Exchequer -- at present that invitation is to give evidence in writing, but the others in the group have been asked at this stage to be prepared to give evidence orally. The application is therefore made first on the basis that the central theme of this Inquiry is -- of this module is to look at the press and the impact and effect that the press has had on the public, the police and politicians, and it's in those circumstances fair and proper that these witnesses should have access on the same basis as other witnesses who are directly concerned with those issues. That's the first basis.

    The second basis is that, more generally, government as a group -- and this group of individuals, this group of ministers, can be taken as fairly representative of government for this purpose -- also have a clear, as it were, public interest in the proceedings because they will be responsible for the policy matters, they have carriage of the policy.

    Those are the twin bases on which the application is put.

  • I understand. In the normal course of events, recommendations come out of an Inquiry which then the government consider. Would it be -- and I appreciate that you don't intend or the government don't intend to play a full role in the Inquiry in the sense of offering questions or attending to ask questions or necessarily make opening or closing submissions. That's what I gather from your application. For those who haven't read it, I will summarise bits of it when I come to give judgment.

  • Is there something to be said for the argument that the profile of this Inquiry -- and I'm not claiming any credit for that -- is such, and the necessity to move with some degree of speed means that there may be some value in the government being prepared to, as it were, share policy objectives to such extent as they have them so that I can at least consider them in the context of making recommendations? In other words, to speed up the process?

  • My Lord, yes. I don't have formal instructions on the extent to which they could or would be prepared to engage in that process, but that is precisely what I had in mind by my second basis, that the Inquiry might well be assisted in that way, as has occurred in other inquiries. So I'm certainly not ruling that out.

  • All right. Let's think about the mechanics. I'm very conscious that you haven't had the advantage, if advantage it be, of listening to this Inquiry over the last six months, but there have been a number of occasions in which the confidentiality that I have required has not always been honoured, and the result is that I got to the stage of requiring everybody, and I do mean everybody, to sign a fresh undertaking that includes not merely the core participants and those who are advising them, in respect of which I insisted that I involved the number and identity of the people who were being put forward as within the club, but also the entire Inquiry team and counsel to the Inquiry and those who place the documents on the document management system, the outside contractors. So it's not that I challenged the integrity of anyone, I make that very, very clear, but I was very keen to ensure that I could do no more to ensure the integrity of my process.

    So against that background, whereas I of course accept that a minister wouldn't breach an undertaking that he'd given, even if not formally, can you understand why I am not prepared to make an exception if you make a submission in that regard?

  • My Lord, I can. You've seen from our written submissions that the suggestion that we had made in writing, and I've made it clear I've taken some instructions anticipating that my Lord might raise this with me, but the position that we've taken in our written submissions is to indicate that we entirely understand the very good reasons that my Lord has for wishing to provide as full a protection of confidentiality as humanly possible. We have fully accepted that those who might fall within the group of advisers to these ministers would have to give an undertaking. The question that we raised in the written submissions, given the unusualness of ministers signing undertakings of this kind, is whether the Inquiry considered it necessary for them to do so, but as I indicated, I have taken instructions on that and if -- it's a bit like government and persons.

  • If you indicate to me that that is your view, I'm instructed that they are prepared to sign that.

  • If I've required leading counsel to the Inquiry, in whom I have complete, total and absolute confidence, to sign an undertaking, it's quite difficult that I should exclude anybody else, isn't it?

  • My Lord, that's entirely a view for you. I'm not going to try and draw a distinction between a minister and Mr Jay.

  • No, I wouldn't if I were you. I think that's very sensible.

    Let me just see if there's anything else.

  • My Lord, I should perhaps tell you, on the basis that it's people who are being named, who those people are, but we can perhaps come to that at the end.

  • Of people we ask to be core participants.

  • Right. That's useful. Can I make this clear before you tell me who they are: first of all, so that everybody understands, I have been very impressed by the arrangements that I know have been put into place to ensure that ministers and those from whom I have requested evidence provide it independently, and I know that arrangements have been put into place to ensure that's so, and I am happy to acknowledge that.

    Equally, I would not want it to be thought, and I will make this clear, that the application has a subtext that any minister wants to see what others have said before committing themselves in writing. I have received the written evidence of the two persons who have most been concerned in recent days, the Prime Minister and the Secretary of State for Culture and Media, Olympics and Sport, already.

  • We're very grateful for that indication.

  • That should not be misunderstood.

  • Yes. We're very grateful. We, as you know, have taken serious steps to ensure the independence of those statements so that's helpful.

  • I acknowledge it and I say it before you tell me and without knowing who you would want to name. So tell me who you would like to name.

  • My Lord, the Prime Minister.

  • The Deputy Prime Minister.

  • The Secretary of State for Business, Innovation and Skills. The Secretary of State for Culture, Media and Sport.

  • Is he not also Olympics? Or is he not?

  • Yes, he is. The Secretary of State for Education.

  • The Lord Chancellor and Secretary of State for Justice.

  • The Home Secretary.

  • And the Chancellor of the Exchequer.

    My Lord, perhaps I should make it clear, now that list has been read out, the point that I made in writing, which is to emphasise, as it were, the basis on which the application is made on their behalf. It's not made, in case anyone thinks it is, on the basis that there is some degree of concern about giving evidence or that they have in some way been singled out. They have been asked to provide evidence to the Inquiry to assist the Inquiry and they're only too happy to help on that basis, but they make an application, as I indicate, both in their capacity as witnesses and as representative of the government.

  • I understand that. Mr Eadie, thank you very much.

    I'm going to take just ten minutes to --

  • My Lord, can I just add one more thing?

  • As I understand it, once the information is shared with those individuals, as was always the case with ministers, they will have advisers to assist them, and as I understand it, as it were, rather more behind the scenes, that confidentiality circle can be dealt with, as can the ability of lawyers who will also no doubt have to sign confidentiality --

  • We're very used to that and the team has a system that has worked many times and I'm sure that other core participants will tell you that it has operated, and I believe operated effectively, and it certainly can be done behind the scenes. I don't require names of those who are in the club. I know that the team will require names, because we monitor it.

  • I just need names of core participants, and I anticipate that we're likely generically to call them "government core participants" rather than anything else, to make the point that you would like to make, had the law permitted it. I think I'll think about it for just ten minutes.

    Ten minutes.

  • (A short break)