The Hutton Inquiry
260. These issues are the following:
(1) Was there a failure by the BBC to exercise proper editorial control over Mr Gilligan's broadcasts on the Today programme on 29 May?
(2) Was the BBC management at fault in failing to investigate properly and adequately the Government's complaints that the report was false that the Government probably knew that the 45 minutes claim was wrong even before it decided to put it in the dossier?
(3) Was there a failure by BBC management to inform the Governors of the BBC of the extent of editorial concerns about Mr Gilligan's broadcasts in relation to the 45 minutes claim?
(4) Whilst the Governors were under a duty to protect the independence of the BBC from Government interference, were the Governors at fault in failing to investigate properly and adequately the Government's complaints about the report on the Today programme in relation to the 45 minutes claim, and were the Governors too ready to accept the opinion of BBC management that the broadcasts were proper ones for the Today programme to make.
261. Before considering these issues it is relevant to set out in greater detail what occurred during and after Mr Gilligan's broadcasts on 29 May.
262. The Government strongly denied the truth of the allegations reported by Mr Gilligan in the Today programme and the 10 Downing Street duty press officer who heard the broadcast at 6.07am, having spoken to the Prime Minister's press officer travelling with him in the Middle East and having spoken also to Mr John Scarlett, issued a denial of the allegations at 7.15am, the denial stating:
These allegations are untrue, not one word of the dossier was not entirely the work of the intelligence agencies. The suggestion that any pressure was put on the intelligence services by Number Ten or anyone else to change the document are (sic) entirely false.
This denial was reported by Mr John Humphreys on the Today programme in the broadcast beginning at 7.32am when, speaking to Mr Gilligan he said:
Now you told us about this earlier on the programme Andy, and we've had a statement from 10 Downing Street that says it's not true, and let me just quote what they said to you. 'Not one word of the dossier was not entirely the work of the intelligence agencies'. Sorry to submit you to this sort of English but there we are. I think we know what they mean. Are you suggesting, let's be very clear about this, that it was not the work of the Intelligence Agencies.
AG: No, the information which I am told was dubious did come from the agencies, but they were unhappy about it, because they didn't think it should have been in there. They thought it was, it was not corroborated sufficiently, and they actually thought it was wrong, they thought the informant concerned erm, had got it wrong, they thought he'd misunderstood what was happening.
263. Later on 29 May an official in the Prime Minister's press office wrote to the BBC stating that Mr Gilligan's broadcast on the Today programme had made serious and untrue allegations about 10 Downing Street over the presentation of the dossier.
264. On 25 June Mr Campbell gave evidence to the FAC. In the course of his evidence he asserted in strong terms and on a number of occasions that the report broadcast by the BBC on 29 May was untruthful and that it was a lie that he (Mr Campbell) or the Prime Minister or 10 Downing Street overrode the judgment of the intelligence agencies to insert intelligence in the September 2002 dossier which was exaggerated or with which the intelligence agencies were not 100 per cent content. Part of his evidence was as follows:
Q986 Richard Ottaway: The second main conclusion that is being queried is the 45-minute point, which you have dealt with quite extensively in your memorandum. The Foreign Secretary made a similar point yesterday about the 45 minutes. Are you saying the same today that this is what the intelligence people are telling you and it must be true?
Mr Campbell: When the first draft of the September 2002 dossier was presented to Number 10, I think I am right in saying that was the first time I had seen that and again, as I say, having seen the meticulousness and the care that the Chairman of the JIC and his colleagues were taking in the whole process, I really did not think it was my place, to be perfectly frank, to say, "Hold on a minute, what is this about?" What is completely and totally and 100 per cent untrue - and this is the BBC allegation, which is ostensibly I think why the Chairman called me on this - what is completely and totally untrue is that I in any way overrode that judgment, sought to exaggerate that intelligence, or sought to use it in any way that the intelligence agencies were not 100 per cent content with.
Q987 Richard Ottaway: You use some rather interesting wording in your memorandum that to suggest it was inserted against the wishes of the intelligence agencies was false. Was it put in at your suggestion?
Mr Campbell: No, otherwise - It existed in the very first draft and, as far as I am aware, that part the paper stayed like that.
Q988 Richard Ottaway: Have you gone back to the JIC on that point since publication?
Mr Campbell: I can assure you that I have had many, many discussions about this issue with the Chairman of the JIC, not least in preparation for this hearing.
Q989 Richard Ottaway: And they are still standing behind it?
Mr Campbell: Absolutely, absolutely. In relation to that particular story, which as Sir John Stanley said to the BBC correspondent last week, is about as serious an allegation as one can make, not just against me but against the Prime Minister and the intelligence agencies, they are basically saying that the Prime Minister took the country into military conflict and all that entails - loss of military and Iraqi civilian life - on the basis of a lie. Now that is a very, very serious allegation.
Q990 Richard Ottaway: Can I suggest it is Parliament that took the country into war.
Mr Campbell: The allegation against me is that we helped the Prime Minister persuade Parliament and the country to go into conflict on the basis of a lie. I think that is a pretty serious allegation. It has been denied by the Prime Minister, it has been denied by the Chairman of the Joint Intelligence Committee, it has been denied by the Security and Intelligence Co-ordinator and it has been denied by the heads of the intelligence agencies involved, and yet the BBC continue to stand by that story.
Q991 Richard Ottaway: You believe that time will prove you right on that one?
Mr Campbell: I know that we are right in relation to that 45-minute point. It is completely and totally untrue, and I do not use this word -
Q992 Richard Ottaway: I am talking about the substance.
Mr Campbell: It is actually a lie
Q1007 Mr Pope: Thank you, Chairman. Mr Campbell, the charges against you really are of the gravest nature: that you exaggerated the evidence to persuade a reluctant Parliament to vote for a war which was not popular. We heard in evidence from Mr Gilligan of the BBC last week and he alleged that you transformed the original September dossier, and if I can just quote what he said in evidence, my "source's claim was that the dossier had been transformed in the week before it was published and I asked " - that is Gilligan - "'So how did this transformation happen?', and the answer was a single word, which was 'Campbell'". That is an incredibly damaging allegation. Could you comment on its veracity?
Mr Campbell: As I explained earlier, the story that I "sexed-up" the dossier is untrue: the story that I "put pressure on the intelligence agencies" is untrue: the story that we somehow made more of the 45 minute command and control point than the intelligence agencies thought was suitable is untrue: and what is even more extraordinary about this whole episode is that, within an hour of the story first being broadcast, it was denied, emphatically: it then continued. We were in Kuwait at the time - the Prime Minister was about to get a helicopter to Basra - it was denied: the story kept being repeated: the following day the BBC returned to it and it was denied - by now we were in Poland and I remember being called out of a breakfast with the Prime Minister and the Polish Prime Minister because I had asked to speak to John Scarlett, the Chairman of the Joint Intelligence Committee, just to absolutely double/triple check that there was nothing in this idea that the intelligence agencies were somehow unhappy with the way that we behaved during the thing and that there was no truth at all that anybody at the political level put pressure on the 45 minute point and John said, "Absolutely. It is complete and total nonsense and you can say that with my authority". Then the Prime Minister had to come out of the breakfast with the Polish Prime Minister; he was about to do a press conference about the Polish EU referendum campaign and, of course, the British media are all asking about this lie, which is what it was.
Q1008 Mr Pope: On the 45 minutes, what you have refuted up until now is the allegation that you inserted the 45 minute claim into the dossier and I am trying to make a different point which is that there is an allegation not that you inserted it but you gave it undue prominence; that this was a background piece of information; it was based on a single piece of uncorroborated intelligence advice and yet it was given undue prominence. It is mentioned in the foreword by the Prime Minister and it is mentioned three other times throughout the document and it is a chilling allegation - that our troops in Cyprus or our troops perhaps if they went into Iraq could face a 45 minute threat of the deployment of a chemical attack?
Mr Campbell: Well, it is true that when the BBC representative came to the Committee last week he claimed that all he had ever alleged was that we had "given it undue prominence". I am afraid that is not true. What he said last week was not true. It was a complete backtrack on what he had broadcast and written about in the Mail on Sunday, The Spectator and elsewhere. Now the reason why I feel so strongly that we, the government, from the Prime Minister down deserve an apology about this story is it has been made absolutely clear not just by me - you can put me to one side and I am well aware of the fact that I am defined in a certain way by large parts of the media, but when you put in the Prime Minister, the Foreign Secretary, the Chairman of the Joint Intelligence Committee, the Head of the Secret Intelligence Service, the Government Security and Intelligence Co-ordinator all saying emphatically "This story is not true" and the BBC defence correspondent on the basis of a single anonymous source continues to say that it is true, then I think something has gone very wrong with BBC journalism.
Q1009 Mr Pope: Are you saying that he lied not just to the Committee but on the radio? I have the transcript of the Today programme of 4 June. He said, "The reason why this story has run so as long" - and this is a direct quote - "is nobody has actually ever denied the central charge made by my source".
Mr Campbell: The denial was made within an hour of the lie being told on the radio. Now, I am not suggesting that he has not had somebody possibly say something to him but whatever he has been told is not true, and I think in relation to the briefing paper, when that mistake was discovered, we put our hands up and said "There is a mistake here" and we found out where it happened and we dealt with it, and I would compare and contrast with an organisation which has broadcast something - not just once but hundreds of times since - that is a lie.
Q1101 Mr Maples: What I put to you is that what will probably happen is that it is perfectly possible you, and Andrew Gilligan, actually told the truth and what happened here was that everybody slightly exaggerated their position.
Mr Campbell: I did not. I did not have a position. This is the Joint Intelligence Committee. Andrew Gilligan's allegations were about the Joint Intelligence Committee paper, not the other one.
Q1102 Mr Maples: He said that you sought to change it -
Mr Campbell: No, he said, I sexed it up and I made changes against the wishes of the agencies. That is a lie.
Q1103 Mr Maples: I am suggesting to you it is possible that you sought changes to this document which did not involve countermanding intelligence. After all, your craft is presentation, that is what you are extremely good at, and it would be almost unbelievable if you did not have some input into how this document was presented.
Mr Campbell: As I have said many times before, there is a legitimate place in the political process for dealing with issues of presentation and communication now we have a 24-hour media, round the world, round the clock. He did not say that. He said that I abused British Intelligence. He went further and said it was done against the wishes of the intelligence agencies; not true. I think that is a pretty serious allegation which is why I am very, very grateful for the opportunity to rebut it.
265. In his evidence to the FAC Mr Campbell also attacked the BBC by alleging that there was an anti-war agenda in large parts of the BBC.
Q1104 Mr Maples: The same allegation has apparently been made - I do not know whether you have seen it - in yesterday's New York Times. It says, 'A top State Department expert on chemical and biological weapons told Congressional Committees in closed oral hearings last week that he had been pressed to tailor his analysis on Iraq and other matters to conform with the Bush Administration's views', several Congressional officials said today. You may say, "Here is some rogue agent in the State Department saying this to a rogue journalist", but it is interesting, is it not, how this allegation crops up here and now it has cropped up in Washington as well.
Mr Campbell: Can I explain why I think the allegation crops up. Again, I think this goes to the heart of the way some of these issues are covered by the media. I do not think we should make any bones about this. There are large parts of the media which have an agenda on the issue of Iraq. For most of those parts of the media their agenda is open, it is avowed. If you bought the Daily Mirror in the run-up to the conflict, you knew that paper was against our position. If you bought The Sun, you knew that paper was passionately supportive of our position on dealing with Saddam. I would identify three stages in this. In the run-up to conflict there was an agenda in large parts of the BBC - and I think the BBC is different from the rest of the media and should be viewed as different from the rest of the media because it is a different organisation in terms of its reputation, in terms of its global reach and all the rest of it - and there was a disproportionate focus upon, if you like, the dissent, the opposition, to our position. I think that in the conflict itself the prism that many were creating within the BBC was, one, it is all going wrong, and I can give you an example -
Q1105 Mr Maples: Well, I think probably many of us would agree with that.
Mr Campbell: And now what is happening now, the third, the conflict not having led to the Middle East going up in flames, not having led to us getting bogged down for months and months and months, these same people now have to find a different rationale. Their rationale is that the Prime Minister led the country into war on a false basis, that is what this is about.
266. On 26 June Mr Campbell wrote to Mr Greg Dyke, the Director General of the BBC and to Mr Sambrook, the Director of News at the BBC about Mr Gilligan's broadcasts on 29 May. Mr Sambrook replied to Mr Campbell on 27 June and on 27 June, after receiving Mr Sambrook's reply, Mr Campbell issued a statement to the press. The correspondence between the Government and the BBC from 29 May to 27 June, together with Mr Campbell's press statement of 27 June is set out at appendix 14.
267. On 27 June at 7.10pm Mr Campbell appeared on the Channel 4 television news programme when he took part in a heated interview with Mr Jon Snow, the presenter of the programme. The interview commenced as follows:
Jon Snow: Well now we are joined by Alastair Campbell, a rare moment, thank you for, for coming in. This row between you and the BBC, I mean, many will see it as a diversionary tactic to prevent people actually seeing the real issue here which is that MPs are not getting to the root of whether in fact the intelligence we were provided with was the real intelligence provided by the intelligence services.
Alastair Campbell: Well if people wish to see it as a diversionary tactic they may. The media are constantly telling people never to take things at face value. This isn't a row between me and the BBC this is an attempt by the Government to get the BBC to admit that a fundamental attack upon the integrity of the Government, the Prime Minister, the intelligence agencies, let alone people, the, sort of, evil spin doctors in the dark who do their dirty works in the minds of a lot of journalists, let them just accept for once they have got it wrong. The allegation, let's just understand what this allegation amounted to, and these weasel words in Richard Sambrook's letters, letter today (indistinct) says to me we didn't make the allegation we reported a source making the allegation. What does that say about journalism? You've been a journalism for decades, I was a journalist for quite a long time, I respect a huge number of journalists including many at the BBC
JS: But I have to say
AC: but they're now saying I, you can say anything you want on the television because somebody said it to you, doesn't matter if it's true
AC: doesn't matter if you check it, doesn't matter if it's corroborated .
JS: however the BBC's
AC: you can say it.
JS: the BBC's riposte to you is very reasoned. It is set in the context of all the other information which was in the public domain, it's entirely consistent with that information. It credits the Guardian, the Observer, the Independent, the Times, I mean, most of Fleet Street had similar accounts of what intelligence sources were telling them. The BBC doesn't seem to be out of step with anybody else.
AC: The BBC in their letter to me, and it's fascinating, they have post facto justification of a story by citing sources in newspapers which wrote stories subsequent to their, to the story that they had done. Some of those stories I know for a fact are incorrect. One of them, there's no point going through all the detail I think the public are probably bored rigid with this already, one of those stories I know for a fact is wrong and I've addressed in evidence to the select committee.
JS: I think the public is more likely to be concerned at the extraordinarily intemperate language which is coming out on behalf of the Prime Minister in your name. 'The story was a lie, it is a lie
The full transcript of the interview is set out in appendix 15.
268. On 29 June Mr Campbell wrote to Mr Sambrook. In addition to the correspondence between Mr Campbell and Mr Sambrook correspondence took place between Mr Ben Bradshaw MP, who wrote on behalf of the Government, Mr Hoon and the BBC from 28 June until 10 July in relation to Mr Gilligan's broadcasts on the Today programme on 29 May. This correspondence is set out in appendix 16.
269. On 1 July Mr Gavyn Davies sent the following e-mail to the Governors of the BBC:
I am sure we have all had a trying weekend, reading the press and listening to broadcasts on the Campbell/BBC row. The press commentary over the weekend has not been uniformly good for the BBC position, but it has certainly been very bad from the government point of view, as was the opinion poll data in the News of the World today. My hunch is that the government would now like the row to go away, and this has been reinforced by the fact that Alastair Campbell has said that he will return to "business as usual", at least until he sees the report of the Foreign Affairs Committee on Monday week. It is clear that some Labour MPs feel that Campbell did himself and the government damage by his performance on Channel 4 news on Friday, and they now want to calm things down.
Having said that, I think it is unknowable whether the FAC will rule in the BBC's favour on the 45 minute claim in the September dossier. They might do so, but it is also possible that they will say that the truth is confused, since early drafts within the intelligence community did not include the 45 minute claim, while later ones did. Or they may conceivably just conclude that the first draft which was seen by Mr Campbell did indeed include the 45 minute claim, as he has always argued. This latter form of judgment would be problematic, especially if Campbell then files a formal complaint which goes for adjudication either to the Governors or the BSC.
Some may therefore argue that there could be advantage for the BBC in reaching a settlement with No 10 which both sides can live with, perhaps in advance of, or shortly after, the publication of the FAC report. However, I remain firmly of the view that, in a big picture sense, it is absolutely critical for the BBC to emerge from this row without being seen to buckle in the face of government pressure. If the BBC allows itself to be bullied by this sort of behaviour from No 10, I believe that this could fatally damage the trust which the public places in us. Furthermore, I think we should remember that the main historic role of the Governors has been to shield the BBC from this sort of attempt to exert political muscle over our news output. This, it seems to me, really is a moment for the Governors to stand up and be counted. So, I hope you will agree that, whatever emerges about the precise details of the 45 minute claim, we must not give any ground which threatens the fundamental independence of our news output, or suggests that the Governors have buckled to government pressure.
My last thought is this. It may never be definitively proven whether the details of the claim made by Andrew Gilligan's source were 100% accurate or not. And of course I recognise that the Producers' Guidelines must been seen to be upheld. But I do not believe that the BBC has lied to the public, or that it has accused the Prime Minister of lying, or that it has been wrong to place a great deal of scrutiny on the validity of the government's intelligence dossiers. Such have been the proven failings in these dossiers, I wonder whether the Today programme could conceivably have suppressed the Gilligan story, coming as it did from a credible and senior source. Would suppression of the views of such an important source have been a valid thing to do in such circumstances?
I put this only as a question, not least because we may have to adjudicate on the matter at a later date. But I feel very comfortable that the BBC did not knowingly mislead the public; and equally comfortable that our news department was pursuing a matter which it was wholly in the public interest to pursue.
Please either ring me or send me a quick e-mail if you would like to register any views. I feel in need of some guidance about your broad feelings, without of course wishing to hold anyone to a definitive position in advance of any subsequent judgments we may need to make.
With best wishes
270. On 4 July Mr Gavyn Davies called a special meeting of the Governors of the BBC for 6.30pm on Sunday 6 July and sent them the following e-mail:
As you know I have decided to call a Governors' meeting for 6.30pm on Sunday 6th July in Room 2364, Broadcasting House to discuss the Campbell affair. I do not think that we can wait until the next monthly Governors' meeting to discuss this subject, especially in view of the fact that the publication of the Annual Report will precede the July Governors' meeting, and we need an agreed line to take in public before then.
This is an unusually important moment in our careers as Governors. I am pleased that you have all made yourselves available for this meeting - two of you by phone. We shall be joined by Greg, Richard Sambrook, Caroline Thomson and Stephen Whittle. Sally Osman, Head of Communications, will also be available once we are in a position to agree a statement and to discuss communications. Simon has compiled a pack of background papers which will be issued to you later today.
I do not think that we should seek to take a view during this meeting on whether the Gilligan story was accurate. This is not a question on which we need to take responsibility. Instead, I think we should concentrate on the following three questions:
1. Mr Campbell has made allegations of systemic bias in the BBC's coverage of the war. Should we reiterate our already-published view that these criticisms are invalid, and are therefore rejected by the Board?
2. Mr Campbell has also alleged that the Today programme breached the BBC's producers' guidelines. I believe that we should investigate this allegation, which has been repeatedly made in public, without waiting for an official complaint from Mr Campbell. We can do this on Sunday. We need to consider whether to publish our verdict following the meeting.
3. We should also consider whether to initiate investigations into any other matters of concern. These could include: the rules under which BBC journalists are allowed to publish newspaper articles under their names; the nature of the producers' guidelines on the use of single-source, and anonymous-source material; and the training of BBC journalists, especially in matters relating to regulation, accuracy and impartiality. If we do decide to initiate any such investigations, we may or may not wish to publish that decision now.
I am aware that the Foreign Affairs Committee will be reporting on Monday morning, but I do not think we need to wait for that report, since I hope that we are not going to try to give a verdict of our own on the accuracy of the Gilligan story. In addition, I think that the BBC may be under pressure on Monday, and I think that the Governors should be visible during this time. Whatever we decide at our meeting, we should not be absent from the debate next week.
I look forward to seeing you on Sunday.
With best wishes
271. Prior to the special meeting of the Governors of the BBC on the evening of 6 July Mr Campbell wrote on the 5 July to Mr Gavyn Davies and to all the other Governors the following letter:
In advance of your meeting to discuss the allegations that were made against the Government on the Today programme on May 29, and subsequent events, I thought it would be helpful to send you the enclosed.
It sets out, as fully as possible, how the Government has sought to deal with this issue since the allegations were first broadcast. I have included all the correspondence between myself and the BBC, and between colleagues in Government and the BBC. You will see from this that these serious allegations were not put to us in advance. You will see the swift denial, made with the backing of the Chairman of the Joint Intelligence Committee, which had little or no effect upon subsequent reporting. You will see also that we did strive to resolve this privately. You will also see, from the exchanges the BBC has had both in correspondence and on air with Geoff Hoon and Ben Bradshaw, that we strongly dispute the BBC claims that the allegations were put to us before broadcast.
I am assuming that you will have been provided with all the relevant transcripts of evidence through the Foreign Affairs Committee. You will find in this file documentation referred to in the paragraph above and a transcript of the Thursday May 29 broadcast. I have also attached the text of Mr Gilligan's Mail on Sunday article of Sunday 1 June.
I am sorry to have sent you so much material, but I think it important, particularly in light of the way recent BBC reporting following Mr Gilligan's evidence to the FAC has sought to redefine the allegations, that you have all this material to hand.
I note from press cuttings that the BBC views my complaint as an attack upon the independence of the BBC. I want to assure you that is not the case. I respect the BBC's independence. I believe the BBC is one of the country's greatest assets and I have long been an admirer of its ethos, much of its journalism and many of its journalists.
It is also being said that I intend to use this issue as the basis of a broader attack upon the BBC. Let me assure you that whatever concerns we have expressed about coverage of Iraq, or about what we see as the agenda-driven journalism of some journalists and some parts of the BBC, they are not the issue here.
At issue here is one specific set of allegations, profoundly damaging to the Prime Minister, the Government and our Intelligence Agencies, which we know to be false and which we have sought, first privately and then publicly, to have corrected. It is about one story, the procedures that were or were not followed, pre and post broadcast, and the difficulties we have had in seeking redress for the broadcast of such a serious and false allegation, which has since been repeated, because of the BBC's reach and deserved reputation, in hundreds of media outlets in dozens of countries around the world - some examples of which are attached.
I hope this is helpful. I do not intend to inform the press that we have sent this to you.
272. The Governors met on the evening of 6 July and the minutes of the meeting were as follows:
BOARD OF GOVERNORS
MINUTES OF AN EXTRAORDINARY MEETING
HELD IN PRVIATE SESSION
Sunday 6 July 2003, 6.30pm to 8.50pm
in Room 2364 Broadcasting House
Gavyn Davies - Chairman
Richard Ryder - Vice-Chairman
Sarah Hogg (by phone)
Robert Smith (by phone)
Simon Milner - The Secretary
Tina Stowell - Head of Business Administration
There were no apologies.
Gavyn Davies opened this Extraordinary Meeting of the Board by thanking Governors for attending on a Sunday evening. He noted that no member of management, including the Director-General, was present.
1. OVERVIEW AND CONTEXT
Gavyn Davies outlined the background to the meeting. The BBC had been criticised by Alastair Campbell, some members of the Government - and that morning by the Prime Minister in a newspaper interview - for reporting an allegation made by an intelligence source that the September 2002 Intelligence Dossier had been "sexed-up" to strengthen the Government's case for war in Iraq.
The Foreign Affairs Select Committee of the House of Commons (FAC) had conducted an inquiry into the Government's case for war in Iraq and - amongst other witnesses - Andrew Gilligan, the BBC's Defence Correspondent had given evidence about his report of 29 May 2003 on Radio 4's Today covering an Intelligence source's allegation that "45 mins to deploy weapons of mass destruction" had been inserted into an Intelligence Report against the wishes of the Intelligence Services. Alastair Campbell had rejected this story in the strongest terms, calling on the BBC to apologise for making untrue allegations against him, the Prime Minister and the Government in general. Since then the row between the BBC and Alastair Campbell had escalated, with Mr Campbell criticising the BBC's coverage of the war more generally as biased against the Government. The following morning, the FAC was scheduled to publish its conclusions.
Gavyn Davies said that, following notification to Governors on Friday 4 July the meeting had become public. Therefore, a public statement following the meeting on conclusions reached was expected. He believed this was right, as any attempt not to provide a statement would be interpreted as the Governors being indecisive and perhaps in disagreement with management. That said, the Board was operating independently of management and it was possible to demonstrate this without any sign that Governors were 'caving in' to either BBC management or the Government.
Prior to the meeting, the Secretary had circulated to Governors:
In addition, Alastair Campbell had written personally to each Governor on Saturday 5 July under cover of similar material, plus copies of private correspondence between him and other Government representatives and Ministers with Richard Sambrook and other BBC News senior managers.
Gavyn Davies asked the Board to consider the following issues before management were invited to join the meeting and be questioned by Governors:
Gavyn Davies confirmed that the Board's public statement would not necessarily comment on all issues discussed at the meeting. During discussion, the following points were made:
a. Coverage of the War in Iraq
Gavyn Davies noted the intention of such a review was to verify Governors' judgment, rather than reopen the debate. But the majority of the Board did not support this proposal. However, in line with the new arrangements for monitoring impartiality, the Board could, for example, request that coverage of the war in Iraq be the next subject for external review by experts when the next quarterly report on impartiality came forward to the Board in October. However, this should not be referred to publicly at this time.
b. Producers' Guidelines
c. Newspaper articles by BBC journalists
Summarising this part of the discussion, Gavyn Davies said the Board remained of the view that the BBC's coverage of war in Iraq was impartial. Most Governors were somewhat concerned about Today's contacts with Number 10 and the need to establish if proper procedures had been followed. On the other hand, some were not convinced that Today was required to contact Number 10. There was a lack of clarity on whether this was appropriate or not.
The Board of Governors was then joined by the following:
Greg Dyke Director- General
Richard Sambrook Director, News
Caroline Thomson Director, Policy & Legal
Mark Damazer Deputy Director, News
Stephen Whittle Controller, Editorial Policy
Gavyn Davies welcomed the senior managers and said that the mood amongst Governors was supportive and the Board had agreed there was no need to reopen the question of whether the BBC's reporting of the war in Iraq was biased. Governors wished to ask management questions about the following issues relating to or arising from the Andrew Gilligan report on the Today Programme:
2. PRODUCERS' GUIDELINES
Richard Sambrook said the Guidelines related to three issues in this case:
On the latter, there was a separate story running on Today on 29 May about cluster bombs and the editorial team had asked Adam Ingrams' office (a Defence Minister) if his interview could be extended to include weapons of mass destruction (WMD) at around 5.30pm the previous day. Whilst the programme team had been clear in recalling what it said to the Minister's office, it was not clear from the notes taken how much detail was provided on the WMD story. The normal practice in these circumstances was for ministers' offices to confer with other Government departments to seek their agreement of a minister commenting on a subject outside their area of responsibility.
The Board noted that inadequate note-taking was a common problem amongst programme-makers and this sometimes made it difficult for the GPCC to adjudicate on complaints.
a. Single Source
On the use of a single source, Stephen Whittle said from his inquiries he was confident that the appropriate editorial processes had been followed robustly before the item was broadcast. He confirmed he did not know the identity of the source, but the editor of the programme was informed as was the Head of Radio News and both were convinced that the source was credible and reliable. Since the item was broadcast, Richard Sambrook had been informed of the source's identity and Greg Dyke had been told what position the source held.
In response to questions, Richard Sambrook said it was not known if the source used by Susan Watts for a similar item on Newsnight was the same as that used by Andrew Gilligan. If it was the same - as it appeared to be - this confirmed the accuracy of Andrew Gilligan's reporting of the source. If it was a different source, this served to reinforce the story further.
On anonymity of sources, Stephen Whittle said the Guidelines were more relevant to contributors who provided themselves on air but required protection because the allegations they were making could put them in danger. Mark Damazer noted a comment that the Guidelines on anonymity did not appear to apply in this case. He said it was very difficult to have a guideline that applied to off-the-record sources as the key judgment in deciding whether to use them was consideration of the context of the information they were providing. Greg Dyke added that in this case, it was already public that the Government had wrongly presented evidence as official intelligence when it was in fact material retrieved from the internet (known as the "dodgy dossier").
Governors responded that this line of defence was not convincing. The context in this case created an obligation on the BBC to report, but was not the justification for it. The key argument was the judgment of senior editorial staff that the source was credible and on that basis the Board was content that management had acted appropriately.
Mark Damazer said that in judging the credibility of a source, the following factors were considered:
In this case, the source met all these criteria and therefore the context of the "dodgy dossier" only added weight to the decision to use the information.
Concluding this part of the discussion, Gavyn Davies said the Board was content that the BBC had acted appropriately in reporting the information provided by a single source.
b. Contacts with the Government
Stephen Whittle said achieving clarity on the contacts between the Today team and Government departments on this occasion was difficult because a full note had not been kept. He ran through the sequence of contacts established from his inquiries. In addition to the information already provided by Richard Sambrook about requests for an interview with Adam Ingram, he reported that Andrew Gilligan spoke to a MOD press officer (mobile-to-mobile) at around 6.30pm to inform them that the interview would be extended to include WMD. The MOD's account of this contact was different, claiming that Andrew Gilligan mentioned only the cluster bomb story and only upon being asked said there was another issue but this was not a matter for the MOD. Andrew Gilligan agrees he said something to indicate that the WMD issue was not principally a MOD story, but claims that he only spoke about WMD during the conversation and not cluster bombs. It was possible that he might have said something like: "we've asked for an interview on cluster bombs, but we also want to talk about WMD".
Stephen Whittle said it was unlikely that Andrew Gilligan would have discussed the cluster bomb story beyond a passing reference as it was not something he was working on and therefore something he knew nothing about it.
Following a further exchange between another member of the programme team and the MOD, the department confirmed that Adam Ingram would appear the following morning and be prepared to talk about both issues (having consulted the FCO about cluster bombs). The night editor spoke further to the MOD at around 10.30pm and sought confirmation that Adam Ingram would take questions on WMD in addition to cluster bombs. He concurs with the MOD's recollection that no detail was provided on the WMD issue, but the night editor assumed that the detail had already been covered in earlier conversations.
Stephen Whittle said the BBC's weakness in this area was the lack of solid and reliable notes about what was said to the MOD about the allegations made by Andrew Gilligan's source. At that time, the Today Programme was not planning to run the WMD story as a scoop, but more as a "chatter in the air" issue. The programme's running order showed it was not the lead item and this might explain why the notes kept were not as contemporaneous and complete as they might have been.
In response to questions, he confirmed that the Gilligan story was broadcast first at 6.05am and Number 10's response at 7.40am. Caroline Thomson said a potential difficulty for the BBC was not contacting Number 10 in advance to provide an opportunity for them to deny the story in advance of broadcast.
In response to further questions, Stephen Whittle said that Producers' Guidelines were not explicit about advance notification. The Guidelines required programme-makers to provide an opportunity to those named to respond.
During discussion, Governors made the following points:
Gavyn Davies concluded this part of the discussion saying that the majority view of the board was that the allegations should have been put to Number 10 in advance of the broadcast. However, he noted the strong concerns expressed by some Governors about including this in the statement that would follow this meeting and said it would not be included in strong terms.
Broadcast of denials
Richard Sambrook said BBC News disputed the claim that it had alleged the "45 minutes" had been inserted against the wishes of the Chairman of the JIC and Intelligence Chiefs. The source had said "against our wishes" and this had not been extrapolated to any individual. As to denials of the story, the Prime Minister, John Reid, Jack Straw and Baroness Amos were all provided the opportunity on air over the following days. But each time this occurred, it was necessary to repeat the allegations for them to deny.
Following an account from Mark Damazer about how the "45 minute claim" had been disputed by the Government since the broadcast, and a discussion by Governors about the accuracy of the report, Gavyn Davies reminded the Board that it was not a matter for them. He noted that Pauline Neville-Jones did not believe the Intelligence denials have been given due prominence and her criticisms of BBC News for the balance of its reporting in this particular area. In response, Richard Sambrook said he would undertake a detailed review of the JIC denials that had been broadcast. Gavyn Davies said however that the majority of the Board had not expressed doubt about the coverage of Intelligence denials and therefore the review that Richard Sambrook had promised would not be made public. Indeed, doing so would indicate a "climb-down" by the BBC.
In response to questions about whether management was comfortable that the required high standard of reporting had been retained throughout Today on 29 May, Richard Sambrook said that Andrew Gilligan had been very clear about his report being based on a single source. John Humphreys had, however, used some phrases that were infelicitous, but Andrew Gilligan had but [sic: put] him back on track during their exchanges.
Gavyn Davies reminded the Board that a formal complaint had not been received about Today, even though Richard Sambrook had made sure Alastair Campbell was aware of the route he could follow should he wish to do so.
Concluding this part of the discussion, Gavyn Davies said the Board agreed that the Producers' Guidelines had been upheld. The majority view of the Board was that the allegations should have been put to Number 10 in advance of broadcast. However, in light of some concern expressed by Governors about including this in the statement, he would ensure the wording in relation to this aspect was carefully drafted to avoid any indication that this was a requirement for any story that might offend Number 10 in the future. But he believed it important to "nod in the direction" of Number 10 that the notes kept by the programme-makers on contacts with the Government were inadequate for the Board to confirm that every effort had been made to inform the Government appropriately. Finally, the majority view of the Board was that the Government had received sufficient opportunities to deny the story.
3. RULES PERMITTING BBC JOURNALISTS TO WRITE NEWSPAPER ARTICLES
Gavyn Davies asked the Board to consider whether it should request a review of the rules that currently permit BBC journalists to write newspaper articles.
In response to questions about whether Andrew Gilligan's Mail on Sunday article, published on 1 June, had been vetted in accordance with the rules, Richard Sambrook said it had not. Originally, he had been informed that Kevin Marsh (Editor of Today) had vetted the article and this would have been in line with procedures. However, more lately, it had transpired this had not occurred. Richard Sambrook added that he was on record as saying the rules associated with writing newspaper articles would be reviewed.
Greg Dyke said he was against allowing BBC journalists to write newspaper articles, but it was difficult to prevent in many circumstances because of the freelance contracts most journalists concerned had with the BBC. In any case, he believed it was an issue to be examined at a later date and separately to that currently before the Board. Gavyn Davies disagreed, saying it was relevant because Andrew Gilligan had gone further in the Mail on Sunday in reporting his source's allegations.
Other Governors agreed, saying it was an important issue and the principle of it required examination. Richard Sambrook's public commitment was helpful, but it was important that the Governors themselves were seen to be examining the issue as it was a matter that concerned the Board.
Gavyn Davies agreed and said the statement would say that the Board would look again at the rules that permitted this following the study already promised by the Director of News.
The meeting was suspended at around 8.10pm whilst Gavyn Davies prepared a statement for publication.
273. After the Governor's meeting Mr Davies issued the statement set out in paragraph 56. On 7 July Mr Davies sent the following e-mail to the Governors:
I attach a clean copy of the Statement which I issued on the Board's behalf last night.
I was aware during the meeting that I may have been rushing the discussion more than usual, because there was a hard deadline around 9pm. If we had missed this deadline, the Governors' conclusions would have missed the morning papers completely, and would then have been swamped by the news about the FAC report on Monday. This explains why it was so important to get the statement agreed quickly in our final meeting. (Thanks to Pauline's eagle eye, we narrowly avoided the cardinal error of writing the mistaken words "allegations made by Andrew Gilligan" in the final draft; in the end, it correctly said "allegations reported by Andrew Gilligan".)
Chairing the meeting, I was very impressed by the seriousness and toughness displayed by the Governors. My view is that we demonstrated that the Board of Governors is not a body which can be easily bullied, either by politicians or the management. I am sure that we will benefit from demonstrating this in the long run, even if we get some of the familiar flak in the immediate future.
There were two traps which we could have fallen into on Sunday - caving in to No 10, or caving in to the executive. I strongly believe that we did neither.
I asked someone who has worked for the BSC how other regulators would have reacted to having to rule on the Campbell allegations, if Ofcom were ever to get responsibility for BBC impartiality. He said simply: "In my experience, they would run a mile."
As I write this e-mail, the FAC report has just been published. Given that the key conclusion, "clearing" Alastair Campbell survived only on the casting vote of the chair, and much of the rest of the report was highly critical of Mr Campbell's role, it looks as though the BBC has emerged intact from the report, though some will say that it is still very messy. I hope, perhaps optimistically, that this may give us a chance to move on to other matters.
Alastair Campbell and Jack Straw have both now withdrawn their general claims that the BBC was systemically biased during the war. This is a major step forward, and a victory for the Governors, since this would not have happened without our intervention. It also suggests there may be a willingness to de-escalate the overall row with the BBC. But the government is still adamant that the Gilligan report, in its specific allegation, was plain wrong, and have - very sensibly from their point of view - noted that the Governors did not substantiate the accuracy of this report. Richard Sambrook has said in public that the government and BBC News may have to "agree to disagree" on this. Since there is nothing much more to be said on this until the intelligence committee reports in September, the row may begin to move off the front pages.
Thank you once again for the solidity displayed yesterday.
274. Before considering the issues relating to the BBC set out in paragraph 260 it is also appropriate to comment again on the distinction (referred to in paragraph 9) between an allegation that the Government probably knew at the time of publication that intelligence contained in the dossier was wrong or questionable and an allegation that intelligence contained in the dossier, which the Government believed to be reliable, was in reality unreliable. Although to some extent the latter allegation is implicit in the former allegation and future discoveries or the absence of discoveries in Iraq may show the latter allegation to be correct (an issue which does not come within my terms of reference and on which I express no opinion), the former allegation is a much graver one and is an attack on the integrity of the Government itself, and Mr Gilligan's broadcasts on 29 May reported this express allegation. I consider that the view of Sir David Manning (in the summer of 2003 Foreign Policy Adviser to the Prime Minister and Head of the Overseas and Defence Secretariat in the Cabinet Office) as to the gravity of this allegation was fully justified. He said:
[18 August, page 178, line 19]
A. I should say there was strong feeling about the accusations that had been made by Andrew Gilligan.
Q. Can you perhaps tell us about your feelings in that respect?
A. I think because it was seen as a pretty direct attack on the integrity of the Prime Minister and officials at No.10, in the sense that they would try to persuade the chairman of the Joint Intelligence Committee to massage or to revise his conclusions, his recommendations, for political convenience, I saw it personally as also an unjustified attack on John Scarlett personally, the chairman of the JIC, because implicit in this is the assumption that he is willing to do this. But having myself, in a previous incarnation, sat on the Joint Intelligence Committee, I also thought it absolutely inconceivable that even if there were to be such collusion between officials in No.10 and the chairman of the JIC, it was absolutely inconceivable that the senior figures around the JIC table would agree to this. So I felt it was a very serious attack, not only, however, upon the integrity of individuals but a very serious attack on the integrity of the processes of Government. The JIC process is of no use if it is one that can be moulded or massaged by political fiat. It must be seen to be the best and most scrupulous assessment possible. Therefore there were very strong feelings about this attack. I think that is how I perceived it. I did not see it, myself, as a row between two particular individuals or between No.10 and a particular part of the media. I saw it as something where it was important that we tried to restore elements of trust, which had been challenged by this very direct assault on the integrity both of people and of process.
Q. You mentioned that it was not perceived as such amongst the senior civil servants, effectively, which is where you were dealing with it from.
Q. But you obviously had substantial interaction with those who are not civil servants. Was it perceived as such amongst them, do you know, from your own knowledge?
A. Well, I think there were certainly moments of personal anger. I do not want to pretend they were not personally affronted by some of these attacks. But I think there was a sense this was an attack or a charge or an allegation of a different kind. It struck the very heart of whether or not you believe that the Prime Minister is going to tell the chairman of the Joint Intelligence Committee that his conclusions of his Committee are inconvenient and they must be changed for the political convenience of the Prime Minister of the day. And I think that was a charge that went beyond the usual, if I can put it like this, sparring that goes on and was seen as a very fundamental attack on the processes of Government and trust therein.
Although the question whether intelligence approved and provided to the Government by the JIC was reliable is a very important question, it is not one which involves the integrity of the Government: there is a great difference between broadcasting an allegation that intelligence provided to the Government was unreliable and broadcasting an allegation that the Government knew that intelligence set out in the dossier was wrong or questionable before it published it in the dossier, and it was the broadcasting of the latter allegation by the BBC which drew Dr Kelly into the controversy about Mr Gilligan's broadcasts.
275. The issues which arise in relation to the BBC have to be decided against the background of three matters which I have already decided have been established:
(1) Dr Kelly did not say to Mr Gilligan that the Government probably knew that the 45 minutes claim was wrong or questionable before it was included in the dossier or that the 45 minutes claim was not included in the original draft because it only came from a single source. The allegations reported by Mr Gilligan that the Government probably knew that the 45 minutes claim was wrong or questionable before the dossier was published and that it was not inserted in the first draft of the dossier because it only came from one source and the intelligence agencies did not really believe it was necessarily true, were unfounded.
(2) Mr Gilligan accepted in his evidence that his broadcast at 6.07am gave the wrong impression on these matters and that he should have scripted the broadcast before he made it.
(3) The report that the Government probably knew that the 45 minutes claim was wrong or questionable before it was inserted in the dossier was an extremely grave allegation which attacked the integrity of the Prime Minister and the Government and it did not constitute merely a piece of political debate or the normal type of comment which is made in relation to a matter of great public interest on which other reporters are commenting.
276. Both the BBC and Mr Gilligan accepted that there could be criticism of the 6.07am broadcast, and the BBC also accepted that there could be criticism of the way in which the BBC treated the broadcast thereafter, but the case which was made on behalf of both the BBC and Mr Gilligan, although with some differing emphases, was that notwithstanding those criticisms, there was great public interest in the September 2002 dossier and serious issues of great public importance arose in relation to the reliability of the intelligence contained in it, and therefore it was right for the BBC and Mr Gilligan to report the concern of Mr Gilligan's source that the dossier had been sexed up and that there was concern in intelligence circles about the way in which the 45 minutes claim was worded in the dossier. The point was further made that there had been a number of similar claims in the media and that the evidence of Dr Brian Jones showed that the report that there was concern in intelligence circles was correct.
277. Stress was also laid on the point that the criticisms of Mr Gilligan's broadcast very largely related to what he said in the broadcast commencing at 6.07am and to the part of the broadcast commencing at 7.32am in which he said that the Government probably knew that the 45 minutes claim was questionable, and that in his broadcast commencing at 7.32am and in subsequent broadcasts Mr Gilligan made it clear that the information which he had been told was dubious did come from the intelligence agencies. The point was also made that Mr Gilligan's report that the intelligence relating to the 45 minutes claim was only single sourced was shown to be correct. Therefore the BBC and Mr Gilligan contended that, despite the flaws which they accepted in Mr Gilligan's reports, they were nevertheless performing an important public service in reporting the doubts and reservations which existed in the intelligence agencies, as established by Dr Jones' evidence, about the wording of the 45 minutes claim in the dossier.
278. The BBC and Mr Gilligan also laid stress on the point that in his broadcast Mr Gilligan did not report that he or the BBC believed that the Government probably knew that the 45 minutes claim was wrong, rather he reported that this was the belief of a source who, because of his knowledge of intelligence matters and the preparation of the dossier, was well placed to express such a view and whom Mr Gilligan was entitled to view as a credible source. The point was further made, particularly on behalf of Mr Gilligan, that insofar as he could, Mr Gilligan had found confirmation for what his source had told him in reports in other newspapers stating that intelligence sources were unhappy about the contents of the dossier and in the fact that the Government had had to admit that the dossier which it had issued in February 2003 (about links between Saddam Hussein and Al Quaeda) was flawed. Mr Gilligan also said in evidence on 12 August:
[12 August, page 30, line 6]
A Then I basically sought to corroborate the story. I went to see -
Q. How did you try to do that?
A. I went to see a couple of people. I saw the - well, I will call them senior contacts in Government; and I asked them about this. I did not tell them obviously that David Kelly had said it but I said I have been told this and was there any truth in it. And neither of them would confirm or deny -
Q. Sorry to interrupt. What did you say you had been told?
A. I said I had been told that the dossier had been transformed the week before it was published and that this was done at the behest of Alastair Campbell.
Q. So those two things were what you put to the two senior Government contacts?
A. Yes, that is right.
Q. What did they say?
A. Neither of them denied it. One of them said something I could not take as a confirmation but said, you know: I think you should keep digging, something like that. But when somebody says something like that, it is not a confirmation and it cannot be taken as such but it is obviously not a denial either. And then the others just refused to talk about it. I know both of these people - I believe anyway both of these people would have been in positions to know about the dossier.
279. Both the BBC and Mr Gilligan relied on the recognition in the jurisprudence of the United Kingdom and also in the jurisprudence of the European Court of Human Rights that the press and other parts of the media have a vital role to play in a democratic society in fully reporting on matters of public concern and public interest and in exposing to public gaze matters which the Government might wish to remain hidden. Mr Caldecott commenced his closing statement on behalf of the BBC by saying:
[25 September, page 94, line 7]
there can be few subjects of greater public interest than reasons presented by a Government to its own people as possible grounds for war. That - let there be no doubt about it - was the purpose of the September dossier. It was an assessment of the threat posed by a foreign power against whom hostilities were in serious contemplation.
It was advertised by a label which is almost unique in British political history. The Prime Minister was to share with the people the gist of the formal intelligence assessments he had received from the Joint Intelligence Committee. The invitation was to share the Prime Minister's conclusion, having shared the intelligence.
Mr Caldecott concluded his statement by saying:
[25 September, page 124, line 3]
the BBC anticipates criticism of the 6.07 broadcast in particular and its treatment thereafter, but they do ask the Inquiry to have in mind the public interest in the remainder of its extensive coverage of Dr Kelly's concerns about the dossier, which the BBC believes the public had a right to know.
In her closing statement, on behalf of Mr Gilligan, Ms Rogers said:
[25 September, page 134, line 7]
The decision to go to war, the Government's justification for it, deserves the closest possible scrutiny. A defence correspondent who failed to raise these matters in the continuing public debate would be failing in his duty.
It is the role of the journalist to investigate and report upon matters of legitimate public interest. This journalism was not an unwarranted intrusion into someone's private life, it was not celebrity gossip. It was a classic example of working journalism reporting on a matter of public interest.
Freedom of expression is a fundamental right. It is a right to receive as well as a right to communicate information. The media play a vital role in a democracy as the eyes and ears of the public. The law protects freedom of expression not just as a lofty principle, not just as a matter of theory, but as a matter of practical reality.
[25 September, page 137, line 9]
Today we do not take the word of public figures automatically at face value. We question what we are told. It is right that we should. It is healthy for society that we do. It is by public debate, vigorous open debate, that we are all better informed. The issues raised in this reporting were big issues, serious issues of substance. The reporting of claims and responses to claims is the common currency of political debate. The Government, doing its job, responded to Andrew Gilligan's story swiftly and as fully as it wanted. The Government has a vast dedicated and sophisticated communications machinery. It had no difficulty in getting what it wanted to say reported in the media, both on 29th May and after it made press statements, statements in Parliament, and what it said was reported just as widely as what Dr Kelly had said.
280. Counsel for the BBC and for Mr Gilligan were right to state that the communication by the media of information (including information obtained by investigative reporters) on matters of public interest and importance is a vital part of life in a democratic society. However the right to communicate such information is subject to the qualification (which itself exists for the benefit of a democratic society) that false accusations of fact impugning the integrity of others, including politicians, should not be made by the media. Where a reporter is intending to broadcast or publish information impugning the integrity of others the management of his broadcasting company or newspaper should ensure that a system is in place whereby his editor or editors give careful consideration to the wording of the report and to whether it is right in all the circumstances to broadcast or publish it. The issue of untruthful allegations of fact in relation to political matters made by the media has been considered recently by the House of Lords in Reynolds v Times Newspapers Ltd 2 AC 127 and I set out relevant passages in the judgments of Lord Nicholls of Birkenhead, Lord Cooke of Thorndon and Lord Hobhouse of Woodborough in appendix 17.
281. The allegations in Mr Gilligan's broadcast on 29 May that the Government probably knew that the 45 minutes claim was wrong or questionable and that the 45 minutes claim was not included in the first draft of the dossier because it was only single sourced were unfounded. Whatever doubts there may now be about the reliability of the intelligence in relation to the 45 minutes claim, and whether Dr Brian Jones' concerns about the wording of the 45 minutes claim in the dossier are ultimately shown to have been valid, the claim in the dossier was sanctioned at the time of publication by the JIC. Mr Scarlett (the Chairman of the JIC), Sir Richard Dearlove (the Chief of SIS), Sir David Omand, Air Marshall Sir Joseph French (the Chief of Defence Intelligence), and Mr Anthony Cragg (the Deputy Chief of Defence Intelligence), all gave evidence that the JIC gave its approval to the claim being set out in the dossier, the claim itself having first appeared in a normal assessment prepared by the JIC assessment staff. A report by Mr Gilligan that the 45 minutes claim in the dossier was sanctioned by the JIC but that a source had told him that one section in the DIS had expressed concern about the wording of the claim would have been an accurate report. But Mr Gilligan broadcast a very different and much graver allegation which was unfounded.
282. I am unable to accept, in the context of Mr Gilligan's broadcasts, the distinction which he and the BBC rely on, between a report that the BBC believed that the Government probably knew that the 45 minutes claim was wrong and a report that a source had told the BBC that the Government probably knew that the 45 minutes claim was wrong. This is not a distinction recognised by the law in relation to actions for defamation. In relation to some spheres of public life on which the BBC reports it may be permissible to report what an anonymous but apparently credible source had said. But I consider that when a charge of such gravity is made, as that the Government probably knew that the 45 minutes claim was wrong, the impression created in the mind of the listener and the harm done to confidence in the integrity of the Government differs little whether the allegation is made directly by the BBC or is reported by the BBC as an allegation made by an apparently credible and well informed source.
283. Mr Gilligan's broadcast at 6.07am was unscripted and made from his own home and he accepts that it should have been scripted. In many cases it will be necessary for a BBC reporter to broadcast a report which has not been previously scripted and approved by the editors of the programme. But the BBC knew that in his broadcast on 29 May Mr Gilligan was going to report serious allegations against the Government. This was clear from one of the headlines read by Corrie Corfield at 6.00am on 29 May:
A senior official involved in preparing the Government's dossier on Iraqi weapons of mass destruction has told this programme that the document was rewritten just before publication - to make it more exciting. An assertion that some of the weapons could be activated within 45 minutes was among the claims added at a late stage. The official claimed that the intelligence services were unhappy with the changes, which he said were ordered by 10 Downing Street.
284. Therefore I consider that in relation to a subject of such importance and of such gravity the BBC should not have permitted Mr Gilligan to broadcast his report at 6.07am without editors having seen the script of what he was going to say and having considered whether it should be approved. I think that the validity of this view is confirmed by the e-mail which Mr Kevin Marsh, the editor of the Today programme, sent to Mr Stephen Mitchell, the Head of Radio News, on 27 June 2003:
Some thoughts clearly I have to talk to AG [Andrew Gilligan] early next week: I hope that by then my worst fears - based on what I'm hearing from the spooks this afternoon - aren't realised. Assuming not, the guts of what I would say are:
I will propose that we change that:
Does this sound too harsh?? Thoughts?? I'd like anything I say to him to be consistent with anything anyone else above me in the hierarchy
The relevance of this e-mail is not diminished by the e-mail of congratulations which Mr Marsh had previously sent to Mr Gilligan dated 30 May 2003:
Statement of the obvious, I guess, but it's really good to have you back here in the UK. Great week; great stories, well handled and well told. 'Course it's meant Today has had a great week too . and that's lifted everyone. We still have to have that conversation - but since you're entirely nocturnal while I'm a normal human being, we don't seem to meet too often. Maybe you could creek the coffin lid open next week during daylight hours??? Anyhow, it's great to have you back on your beat. Talk soon.
285. As I have stated, Mr Gilligan accepted in his evidence that he had made errors in his broadcast at 6.07am on 29 May, and a number of witnesses from the BBC accepted in the course of their evidence that the BBC had made errors in relation to Mr Gilligan's broadcast on 29 May and in dealing with the Government's complaints about those broadcasts.
286. At the end of his evidence Mr Gavyn Davies said:
[28 August, page 166, line 17]
Q. And is there anything else that you wanted to add?
A. I think on behalf of the whole BBC I would like to put on record that we enormously regret the death of Dr Kelly. The BBC has the deepest sympathy for Dr Kelly's family; and all of us in the BBC are profoundly sorry about the tragic events of the last two months and we will do our utmost to learn important lessons for the future.
287. At the end of his evidence Mr Greg Dyke said:
[15 September, page 183, line 23]
Q. Is there anything else that you know of the circumstances surrounding Dr Kelly's death that you can assist his Lordship with or anything else you would like to say?
A. Well, I think I would say this: that, as I have said earlier, what the processes of the last few weeks have certainly exposed is that politics and journalism are far from exact sciences, and the forensic examination really of the events of May, June and July has revealed I think areas where in hindsight we would have - we might have behaved differently. We might have done things differently. Obviously we should learn from that. Naturally we will not prejudge the findings of the Inquiry before settling on any changes but I have asked our General Counsel Nicholas Eldred to begin to look at some of the lessons which we might learn from this. For instance, I have asked him with assistance from senior editorial figures in the BBC to look at aspects of the producer guidelines, particularly concerning anonymous sources and the description of them. I have certainly asked that in future whether the first of all broadcasts of controversial items should in future be scripted as opposed to - we will look again at the use of the - the concept of the two-way, in terms of controversial pieces.
[15 September, page 185, line 4]
A. Richard Sambrook, as I think Gavyn Davies has already told you, is himself looking and the whole executive will discuss what should be the rules on BBC journalists writing for other newspapers. As I say, I have no doubt there will be lessons for us all to learn, but there will certainly be lessons for the BBC to learn and we will take account of those.
288. In his evidence when examined by counsel for the BBC, Mr Caldecott, the Director of News of the BBC, Mr Sambrook, said:
[17 September, page 107, line 1]
Q. Are you aware that both Mr Dyke and Mr Davies have given evidence to the effect that there are lessons to be learnt by the BBC?
A. I am, yes.
Q. Is that a view you share?
A. Yes, it is. I think there are a number of lessons that the BBC will have to take from this.
Q. Can I just run through some possibilities and get your comments on them? Mr Gilligan referred, this morning, to the fact that the 6.07 broadcast was in fact produced live and not scripted. Have you any comment to make about that?
A. I think it is clear that any report which sets out a set of serious allegations should be carefully scripted in advance.
289. Whilst accepting that there were some grounds for criticism of its conduct the case made by the witnesses for the BBC consisted of six main points:
(1) In the weeks immediately after the broadcast on 29 May the Government had complained about those broadcasts in general terms and had not complained specifically about the report that the Government probably knew that the 45 minutes claim was wrong and the complaints which the Government did make were distorted by the aggressive tones in which they were made by Mr Campbell and by his attack on the integrity and independence of the BBC. In his evidence Mr Dyke said:
[15 September, page 150, line 20]
MR DINGEMANS: We have seen some of the extracts from Mr Campbell's evidence where he said that the story was a lie and those aspects. I will not take you to those because I think we have seen them enough before. But what was your reaction to those attacks on the stories?
A. Well obviously this was a pretty unprecedented - as I said, an unprecedented attack.
LORD HUTTON: Well, did you consider, Mr Dyke, whether Mr Campbell's complaint to the FAC related to the entirety of Mr Gilligan's broadcast on 29th May or whether his complaint related, in particular, to this allegation: the Government probably knew that the 45 minutes claim was wrong?
A. Well, that had not been the nature of the complaints up until that time, in the two letters that we had got.
LORD HUTTON: Yes.
A. So it seemed to me a much more general attack based around a particular story or based around a story, but a general attack on the BBC. So, remember he was accusing us of lying; he was saying that we had run an agenda against the war or certain parts of the BBC had run an agenda against the war. These are very serious charges to make against a broadcasting organisation.
LORD HUTTON: Yes.
A. So it seemed - he had also said we had effectively accused the Prime Minister of lying, which Richard Sambrook said to me was not - it would be almost impossible to construe what we said as that. That is why I agreed that Richard should go back to London and go on to the Today Programme to put our case.
(2) In his broadcast at 6.07am Mr Gilligan was not making a direct allegation on his own part or on the part of the BBC that the Government probably knew that the 45 minutes claim was wrong, but was reporting the allegation of a source whom he regarded as credible and well placed to make the allegation.
Mr Davies said:
[28 August, page 117, line 13]
I believe that if the BBC News reports that the BBC believes something, the requirement for certainty is much greater on behalf of the broadcaster. If the BBC reports that a credible and reliable source believes something, then it is clearly thought to be something that should be put into the public domain, a valid remark to put into the public domain, but it is clearly hinged on one person's view. And I think that that was what this was.
(3) Mr Gilligan's report was supported by Ms Watts' broadcast which contained similar allegations. Mr Davies said:
[24 September, page 38, line 14]
A. The Governors had a great deal of information going into the meeting and they had an important corroboration for the Gilligan report, which continues to slip out of the mind of the Government; and that is the Susan Watts reports. I said in my first appearance before this Inquiry that the Susan Watts report was not identical to the Gilligan report. I actually studied both before I went into the meeting and I knew they were not identical, but I equally knew that the burden of what Mr Gilligan had reported in his many broadcasts on the subject at the end of May was a close match to the burden of what Ms Watts reported on 2nd and 4th June. And I do not think it should be forgotten that that is the case, because certainly in my mind, and in several other Governors' mind, maybe the whole of the Board of Governors who received the information before they went into the meeting, that was seen as an important corroboration of the Gilligan story.
(4) The Government failed to make use of the complaints procedures which are available to those who consider that they have been unfairly criticised in the BBC broadcast. In his evidence Mr Davies said:
[28 August, page 110, line 10]
Q. Were there any avenues, so far as you were concerned, that might have been used to resolve the dispute?
A. Well, another troubling aspect of this, to me, was that the Director General had told me that in a previous letter to Mr Campbell, I think on 16th June or thereabouts, the Director of News had suggested to Mr Campbell that if he felt he had a complaint about inaccuracy of a particular broadcast or unfairness, he should approach the BBC Programme Complaints Unit, which I think would have given him due process for resolving his complaint in a non-conflictual and non-public manner. He also had the option, which I do not think he was told in that letter specifically, of complaining to the Broadcasting Standards Commission about unfairness. That is a body that is entirely independent of the BBC and has the power, if it finds on the side of the complainant, to ask the BBC to broadcast a correction.
(5) In his evidence to the FAC Mr Campbell had launched an unprecedented attack on the integrity and independence of the BBC and the Governors were under a duty in the public interest to resist that attack:
In his evidence on 28 August Mr Davies said:
[28 August, page 109, line 12]
I felt this was an extraordinary moment. I felt it was an almost unprecedented attack on the BBC to be mounted by the head of communications at 10 Downing Street. Mr Campbell accused the BBC of lying directly. He accused Mr Gilligan of lying directly. He alleged that the BBC had accused the Prime Minister of lying, something which I never believed the BBC had done. And he accused the BBC of having followed an anti-war agenda before, during and after the Iraqi conflict. I must say, I took this as an attack on the impartiality of the BBC and the integrity of the BBC, done with great vigour.
And in his evidence on 24 September Mr Davies said:
[24 September, page 25, line 14]
we were faced with such an intemperate attack on our impartiality and our integrity, Mr Sumption, that I think it was perfectly reasonable for me to take the view that the public were looking to the Governors to stand up for the independence of the BBC, not to stand up for the management but to stand up for the public interest.
Q. What you were saying was that whatever details might emerge about the precise facts about the 45 minutes claim, (1) there should be no compromise of the kind you refer to at the beginning of that paragraph and (2) the Governors must not give way but must be seen to support the management.
A. Absolutely not saying that whatsoever. It does not say anything about supporting the management in there. Nor would I accept your interpretation of the first part of that paragraph. The first part of that paragraph, I can tell you, meant: we must not do a "behind the stairs" deal with No.10 Downing Street which the public will see as a means of taking off the public agenda a matter of legitimate public interest.
Q. You were so concerned about creating the outward appearance of succumbing to political pressure that you were urging the Governors that they should not give an inch whatever a further investigation of the facts might show. Is that not the position?
A. It is absolutely not the position, Mr Sumption. I do not, at any stage in my life, ignore the facts. And the most important thing, undoubtedly, is to tell the truth to the public. But what I was concerned about here - and I can tell you it was in the face of absolutely unprecedented pressure from the Director of Communications at 10 Downing Street, not an insignificant figure in the Government at the time. In the face of that pressure, I then believed and I now believe, and I had the full support of all of the Board in saying that it was a legitimate public duty of the Board to say that that pressure was intolerable.
(6) It was not feasible for the Governors to investigate themselves the accuracy of Mr Gilligan's report. Mr Davies said in his evidence on 24 September:
[24 September, page 13, line 3]
MR SUMPTION: Mr Davies, you mentioned, in answer to my question, the point that the Governors do not want to duplicate the judgment of the executives. No doubt in investigating matters that come before them the Governors will depend on the assistance of senior executives to provide them with information, but you will surely agree that their role is to form an independent judgment and not simply to act as amplifiers for views which the BBC staff have already formed?
A. I agree with that, Mr Sumption; and if you knew my colleagues you would not think they were acting as amplifiers to anybody.
Q. Let us look at what did happen in this case. You have given evidence at phase 1 that it would not have been possible for the BBC Governors to investigate the accuracy of Mr Gilligan's report. Did you mean by that that the Governors had no means of deciding whether the dossier had actually been sexed up or not and, if so, by whom?
A. I think I made it clear in my evidence that what I was referring to there is what I have come to know as the intrinsic accuracy of what the source said. I felt, going into the meeting, and I still feel today even more strongly having seen what has happened at this Inquiry, that it was extremely complicated, difficult and, as I said last time, actually literally impossible for the Governors to get the information required to determine the intrinsic accuracy of the source's allegations. Therefore, we focused on whether the source was credible and reliable, whether procedures had been followed and whether the source had been accurately reported.
Q. Let us look at what they were in a position to look into, because I think your last answer suggests that there may be some common ground on that. The Governors were in a position, were they not, to consider whether the journalist had a proper support from his own source for what he had broadcast. They could consider that, could they not?
A. The Governors could and did consider that and asked management about it.
Q. In your phase 1 evidence you said that the BBC had to be absolutely clear - these are your words - that they were reporting the words of the source. That is the point that the Governors could have investigated, is it not?
A. Mr Sumption, the word "investigated" is a strong word here. The Governors questioned the management on that aspect. It was not actually, at that stage, thought to be the central issue facing the Governors, but they did question management on that aspect.
Q. The Governors were in a position, were they not, to consider whether the status of the source was such that he could be expected to know the facts?
A. They were certainly in a position to determine that, with the proviso that I do not think it would have been right and proper, it would have been highly irregular for them actually to have known who the source was.
Q. They could have been told what the status of the source was without being told his name.
A. I do not believe that would have made any sense at all. I think if they had been told what the status of the source was in any precise terms they would effectively, almost certainly, have been told who the source was. It would have been quite easy, I think, as we have seen recently, to have deduced who Dr Kelly was from an accurate description of what he did.
290. Having considered the evidence given by the witnesses from the BBC (leaving aside the evidence given by Mr Gilligan) I consider that the BBC was at fault in a number of respects as follows:
(1) I have already stated that the BBC failed to ensure proper editorial control over Mr Gilligan's broadcasts on 29 May and, in particular, over his first broadcast at 6.07am.
(2) I consider that the BBC management was at fault in failing to investigate properly and adequately the Government's complaints that the report was false that the Government probably knew that the 45 minutes claim was wrong even before it decided to put it in the dossier, in the following reports. The BBC management failed, before Mr Sambrook wrote his letter of 27 June to Mr Campbell, to make an examination of Mr Gilligan's notes on his personal organiser of his meeting with Dr Kelly to see if they supported the allegations which he had reported in his broadcast at 6.07am. When the BBC management did look at Mr Gilligan's notes after 27 June it failed to appreciate that the notes did not fully support the most serious of the allegations reported in the 6.07am broadcast, and it therefore failed to draw the attention of the Governors to the lack of support in the notes for the most serious of the allegations. A factor which contributed to these failures was the failure of the BBC management to appreciate the gravity of the allegations reported in Mr Gilligan's broadcast at 6.07am and I consider that the allegations made against the Government in the broadcast at 6.07am were so grave and gave rise to such a serious public controversy that it was unreasonable for the BBC management to expect the Government to pursue its complaint about them through the usual channels of the BBC Programme Complaints Unit or the Broadcasting Standards Commission, procedures which could take weeks or, perhaps, months before a conclusion was arrived at. These failures are shown in the evidence of Mr Dyke, Mr Sambrook and Mr Davies.
Mr Dyke said:
[15 September, page 148, line 22]
A. On 25th and 26th June I was chairing a BBC - we have twice a year a BBC Executive Committee conference, this was in Surrey - when the news came through of a pretty ferocious attack which Alastair Campbell had launched not just against the particular report broadcast by Andrew Gilligan, but on the BBC's journalistic integrity and in particular on our coverage of the war.
Q. Your coverage of the?
A. Of the war, sorry.
Q. And what was your reaction to that?
A. Well, I discussed it with Richard Sambrook who was also at the conference. He had been invited by that time to appear on the Today Programme the following day to answer Mr Campbell's allegations and we both agreed that he should leave the conference and go. I mean, an attack of this sort of scale from the Government's Director of Strategy and Communications was pretty near unprecedented, I would have thought.
LORD HUTTON: Had you, by this stage, read the details of Mr Gilligan's broadcast report on 29th May, Mr Dyke?
A. (Pause). I do not remember.
LORD HUTTON: Yes.
A. I think probably not.
LORD HUTTON: Yes.
A. Probably not.
LORD HUTTON: You see, I have read already part of the report which said that actually the Government probably knew that the 45 minutes figure was wrong even before it decided to put it in. Would you regard that as a very grave charge indeed against the Government?
A. Well, of course it - it was a charge being made not by the BBC but by a source to the BBC; but at that stage I would not have read that. I would have received Stephen Whittle's account of our process. The process was going pretty well. I would have talked about this with Richard Sambrook. By this time remember the story had died away. This had not been brought on to our radar screen over the previous 10 days at all, 14 days.
LORD HUTTON: Whether the charge was made by the BBC or by a source which the BBC was reporting, would you regard it as a very serious allegation?
A. Oh, it is pretty serious charge. But there is a distinction between a charge made by the BBC and a charge made by a source to the BBC.
LORD HUTTON: Yes.
A. They are very - a very different - they carry a different degree of gravity.
[15 September, page 157, line 2]
Q When you were helping draft [Mr Sambrook's letter of 27 June in reply to Mr Campbell's letter of 26 June], did you, at that stage, listen to a tape of the broadcast on 29th May?
A. (Pause). I think we read the transcript.
Q. You read the transcript. I think we have that at BBC/1/5 onwards. What was your reaction, if we look at BBC/1/4, to the opening of the piece which Mr Gilligan has told us was unscripted and had followed a more neutral introduction by the news reader?
A. Well, I think we - during that day we had all the transcripts of not just the early piece, but we had all the different pieces that were run throughout the morning; and I read through them. What I did was to largely get involved in the writing of the first half of the reply.
Q. Right. But having read, for example, this bit at BBC/1/4 where it was said "the Government probably knew that the 45 minute figure was wrong", I can take you to other bits later on.
A. Sure. I cannot say that particular piece jumped out at me. I mean, clearly we knew there were fairly serious allegations, the point has been made, but I do not think that piece particularly jumped out."
Mr Dyke, referring to the drafting of Mr Sambrook's reply to Mr Campbell dated 27 June, said:
[15 September, page 161, line 6]
Q. Did you ask or were you shown, at this stage, Mr Gilligan's notes of his meeting?
Q. Were they available to the meeting that was drafting this reply?
A. No. Mr Gilligan was there, but - he was in the part of the meeting in the other part of the office, he was not at the meeting where I was. But we assumed that these replies were accurate.
LORD HUTTON: Why did you assume they were accurate, Mr Dyke? I mean very strong protests were being made by the Government on this particular point and the Chairman of the Joint Intelligence Committee had said that the report was wrong. Now, why did you not consider the accuracy of it?
A. Because we were reporting a source. I mean, there is a real distinction, and it has been, I think, muddled in a lot of the reporting, including I would say some of our own reporting of this issue.
MR DINGEMANS: Will you explain the distinction?
A. The distinction was whether this was the BBC saying this or whether this was the BBC reporting the source. We were reporting a source. There are questions that have to be asked when you are doing that, but that work had been done and the view was that this was a credible source to report.
Mr Sambrook said:
[17 September, page 110, line 17]
Q. Can I, please, just move on to some matters involving you rather more closely? The reply to Mr Campbell's substantially long letter of complaint of 26th June was, in part, drafted by you?
A. It was, yes.
Q. Do you accept that there were some errors in that letter [of 27 June] as to what Dr Kelly had in fact said to Mr Gilligan?
A. Yes, I do.
Q. Had you looked at Mr Gilligan's notes at the time that you drafted that reply?
A. No, I had not, no.
Q. Do you accept, with hindsight, that you should have done?
A. Yes, I think if I had been able to go through Andrew Gilligan's notes in some detail and gone through them with him in some detail, we might have got to a point where we realised these were not comments that were directly attributable to Dr Kelly; and clearly I regret that.
Q. Was Mr Gilligan involved in the drafting process of that letter?
A. Yes, he was.
Q. I do not think we need turn the passages up, but did Mr Gilligan consent to the letter going out in the form that it did?
A. Yes he did. Indeed, part of the reason why Mr Gilligan spent most of that day in our offices, as the letter was being drafted, was that he could be consulted on matters such as that.
[17 September, page 122, line 3]
Q. Would you agree that the more serious the allegation, the greater the care which you would expect the BBC to take to ensure that it can be properly supported?
Q. These were exceptionally serious allegations, were they not?
A. Well, I think one thing I should make clear is that I do not think the programme or indeed the BBC, in those early weeks, ever took the wording of the 6.07 broadcast or that phrase within the 6.07 broadcast to be the definitive version of the allegations that we were making. I think our view was the definitive version was the scripted version, in the news bulletins at 6 o'clock, 7 o'clock and 8 o'clock and at 7.32. The live two-ways at 6 o'clock are deemed by the programme, although it is certainly true the audience does not necessarily perceive them this way, as a sort of preview for the major reports that are coming up during that day's programme. So I think the mindset on the programme, and I think this continued for some time afterwards, was that the definition of this item, in the BBC's view, were the scripted versions of it and the 6.07 was something that had strayed from what we believed to be the core allegations we were making or that our source was making.
Q. Leaving aside the mindset of the programme, you very fairly accept the audience would not necessarily have perceived it the same way?
Q. In practice it is the most dramatic and gravest allegation which will attract the most attention rather than the allegation which is scripted?
A. Depending on how often it is repeated and how many people hear it, yes.
Q. Yes. But if you make a sufficiently dramatic allegation, other media will catch on to it, will they not?
A. They may do, yes.
Q. They are professional followers of each other's copy, are they not?
A. They are.
Q. Now, you have already I think agreed in your earlier evidence, and indeed I think it is implicit in the evidence you have given today, that the 6.07 allegation that the Government probably knew that the 45 minutes point was wrong before putting it into the dossier was, in fact, going to strike people as an exceptionally grave allegation. I think you have accepted that?
A. It clearly had that effect.
Q. Yes. It was an attack, was it not, on its face, on the integrity of those who had been involved at the highest levels in the production of the dossier?
A. In the way it was phrased, it clearly would have had that effect. It is a different question about intent.
Q. Yes, I understand that. Even in the 7.32 broadcast, the allegation was, was it not, that the Government had put the 45 minute point into the dossier against the advice of the Intelligence Services, who had told them that they regarded it as questionable?
A. Words to that effect, yes.
[17 September, page 160, line 8]
Q. Mr Dyke has given evidence and you I think have associated yourself this afternoon with that evidence, to virtually quote him, I think, that he wished that he had paused in late June and ordered a full investigation of the whole issue.
Q. That is one of the points that Mr Dyke made which you associate yourself with?
A. I certainly think we should have paused and considered at greater length the charges that were being levelled against us. Whether that amounts to a full investigation of the whole issue, I am not sure. But I certainly think the letter of the 27th was written under considerable pressure, particularly the deadline imposed on us by Mr Campbell, and if we had not been under that pressure to respond then the errors in that letter of the 27th might not have been made.
Q. There was not in fact a careful examination of all the allegations that had been made, how far they could be supported by Mr Gilligan's notes and what conclusions should be drawn from that before the Governors' meeting, was there?
A. There was an investigation and examination. What we did not do was go through the personal organiser notes in point by point detail with Andrew. If we had done that, I think it might have pointed up the two errors that we made in that letter. But we certainly went through every point that Mr Campbell raised in his letter. We discussed them in some detail, both with Andrew Gilligan and with Kevin Marsh, and we just discussed them between ourselves as a senior editorial team before coming out with that letter. I would not want anybody to think that the letter was written purely in haste. We spent as much time as we had over it and we went into considerable detail on all the points that Mr Campbell made.
Q. The truth is that the investigation that had been carried out by the time the Governors met on 6th July was no fuller than the investigation that had been made before you wrote that letter, except in this respect: that you had, by now, looked at both versions of Mr Gilligan's notes?
A. We had seen Mr Gilligan's notes, that is true. We had also, by that time, identified many similarities in Ms Watts' reports as well with the reports Andrew Gilligan had made, which had taken us some time to get to because I was abroad when her broadcasts originally went out. I think that also lent some support to the broad thrust of the allegations that Mr Gilligan's source was making.
Q. In the press release following the meeting of the Governors, it was said that the BBC had never attacked the good faith of the Prime Minister.
A. That is also what I said in my Today interview on the 26th.
Q. Did anyone draw the Governors' intention to what Mr Gilligan had in fact said at 6.07?
A. No, it was not at the forefront of our minds. Indeed, it was not at the forefront of our minds in drafting the response of the 27th because it was raised there by Mr Campbell for the first time, as the third of those 12 questions, and indeed in the previous three letters from the Government the wording of the 6.07 broadcast had never been referred to you (sic) and their complaints were much more about whether we had abided by the producer guidelines, the strength given to denials and a number of other issues, such as the description of the JIC. They had never drawn the precise language of the 6.07 as being the core of their complaint. Indeed, even when we got the letter of the 26th where it was raised for the first time in that list of questions, I took the core of their complaint to be that John Humphreys paragraph on the front page.
Q. So nobody said, as I understand your evidence, to the Governors at that meeting: there is a problem about the 6.07 broadcast, which was unscripted, and where Mr Gilligan appears to have gone further than he should have done?
A. No, because at that time the Government's complaint was all-encompassing. They were not saying: we have a problem, we have a complaint about the 6.07 broadcast. They said: we have a complaint about the entirety of these allegations. I think Mr Campbell's letter to the Director General on the 26th said "the story is 100 per cent wrong". This was an all or nothing complaint, not a complaint about a phrase in one version of 19 broadcasts.
Q. It was a number of complaints, one of which related specifically to the 6.07 broadcast.
A. I accept that the wording of the 6.07 was raised for the first time in the letter of the 26th, yes.
Q. In fact you had at 6.07, whether you intended to or not, attacked the good faith of the Government, had you not?
A. On reflection I can see that. At the time, I do not think that was sufficiently recognised, no.
Q. Did anyone point out to the Governors that the dossier had said that it reflected the views of the JIC and Mr Gilligan had broadcast, at 7.32, an allegation that the Government had actually inserted things contrary to intelligence advice? Was that point made to the Governors?
A. No. As I have explained to you before, we saw the core allegations that were being made about the scripted items rather than 6.07, and again, even in that allegation we did not accept that the reservations of the Intelligence Services necessarily referred to the heads of those services or the JIC; and I believe we always thought of it in terms of people lower down the chain who had been involved in the assessment and production of the dossier, who were concerned, and at some level unspecified in the BBC's broadcast, that stuff had been included against their advice.
LORD HUTTON: May I just ask you on that point, Mr Sambrook, if we look at BBC/1/4, which is the first page of the transcript, if we can scroll down that, please. Yes, just there. You see the paragraph there beginning: "Well, erm, our source says that the dossier, as it was finally published, made the Intelligence Services unhappy " Then if we go over to the next page which is the commencement of the broadcast at 7.32, about halfway down that passage: " Andrew Gilligan has found evidence that the Government's dossier on Iraq that was produced last September was cobbled together at the last minute with some unconfirmed material that had not been approved by the Security Services." Now, there is a reference to the Intelligence Services being unhappy and then there is a reference to "had not been approved by the Security Services".
LORD HUTTON: I think later there is a reference at 006 to Mr Gilligan, where he said "most people in intelligence were not happy"; but if one looks at the first two references, that gives the picture, does it not, that it was the entirety of the Intelligence Services, or would it not apply certainly to the heads of the Intelligence Services?
A. I accept that reading can be taken from it.
LORD HUTTON: You say "can be taken from it". Is that not the only reading if you just look at those passages? Once they were heard by someone listening to the broadcast: "the Intelligence Services".
A. I think all I can say, my Lord, is that in the programme's mind, and indeed in ours for some time, that was not what we believed to be the allegation that had been made.
LORD HUTTON: Is the important thing not what the listeners take it to mean?
A. I agree with that, yes.
LORD HUTTON: Yes.
MR SUMPTION: You have accepted that there was no basis in Mr Gilligan's notes for the assertion that that point had been made to him by Dr Kelly, the conscious misfeasance point.
A. It was not in his notes, yes.
Q. Was that point made to the Governors?
A. Yes, I said to the Governors that his notes were not verbatim, were not - not every that he had broadcast was contained in his notes but that Mr Gilligan asserted that what was not there was a proper reflection of his conversation with Dr Kelly. The one point the Governors challenged me on was whether the name "Campbell" was represented in the notes and I told them that it was, next to a phrase about transformation of the dossier. And that was really the only point that they wanted to have more clarification about the notes on.
Q. You see, Mr Sambrook, when you wrote the 27th June letter you had not seen Mr Gilligan's notes; and when you subsequently saw them you realised that there might be a problem about the unequivocal way in which you had answered Mr Campbell's question whether the BBC stood by the 6.07 allegation.
A. When I saw his notes I had the conversation with Andrew about those elements of his broadcast which were not captured in his notes and he continued to assert that his conversation with Dr Kelly backed up those comments, and I took him at face value.
Q. So he continued to tell you that that was what Dr Kelly had actually told him?
A. He continued to say it was a proper - he did not say it was a direct quote at that point but he did say it continued to be a proper reflection and interpretation of what Dr Kelly had told him, which is what I think I said in my evidence on the 13th.
Mr Davies said:
[24 September, page 29, line 9]
Q. Well, were you aware, at the time of the meeting, that Mr Sambrook had not examined Mr Gilligan's notes at the time of writing his letter on 27th June?
A. I was aware of that. I also knew he had written the letter in the presence of Mr Gilligan for a large part of his writing.
Q. Were you aware he had examined them since writing that letter?
A. I was aware he had examined them before the Governor's meeting.
Q. Were you aware the notes did not support the most serious of the allegations, namely Mr Gilligan's source had accused the Government of putting material into the dossier knowing it was probably wrong?
A. None of the Governors were aware that the notes did not substantiate that, and nor did, I think - was Mr Sambrook aware of that. He had looked at the notes and he had not, I think, picked up - I believe he said this to the Inquiry - that parts of the 6.07 broadcast were not repeated in the notes formally. However, he had asked the journalist, Mr Gilligan, whether or not he fully stood by the reports and the answer was, "Yes, both factually and in terms of interpretation", and that is what he told us.
Q. So Mr Sambrook had looked at the notes but had not picked up the fact that the most serious of the allegations was not reflected in the note; that is your evidence, as I understand it, indeed it is Mr Sambrook's.
A. I think it was not repeated verbatim in the notes. I think Mr Sambrook had not noted that it was not repeated verbatim in the notes. I believe Mr Sambrook told the Inquiry that.
Q. The notes were not, of course, put before the Governors even in redacted form, were they?
A. No, they were not.
(3) The e-mail sent by Mr Kevin Marsh to Mr Stephen Mitchell on 27 June 2003 set out in paragraph 284 was critical of Mr Gilligan's method of reporting and was clearly relevant to the complaints which the Government was making about his broadcast on 29 May. Yet it appears that this e-mail of 27 June 2003 was never brought to the attention of Mr Sambrook or to the attention of the Governors. In his evidence Mr Dyke said:
[15 September, page 169, line 17]
Q. We have also seen an e-mail at BBC/5/118, in which comments were made about Mr Gilligan's reporting.
Q. Did you see this e-mail?
A. No, I did not know of the existence of this e-mail until the day the Inquiry started. I should explain, I was away - I took a truncated holiday and therefore I came back and that was the first I knew of this e-mail.
LORD HUTTON: Do you think you should have been made aware of it before the Governors' meeting?
A. I do not think - my understanding, but you must confirm it with him, is that Richard Sambrook had not seen this e-mail before the Governors' meeting.
LORD HUTTON: Do you think he should have seen it?
A. There are a million e-mails a day inside the BBC. Unless somebody had referred it to him, he would not have seen it. But I certainly had not seen it; and I did not see it until the Inquiry started.
LORD HUTTON: But it is very critical of the broadcast about which the Government was making very serious complaints and about which there was a very serious controversy.
A. Sorry, can I just (Pause). It says this - yes, it makes - it expresses certain concerns: "This story was a good piece of investigative journalism marred by flawed reporting."
LORD HUTTON: "Our biggest millstone has "
A. Yes, on reading this I could not say I was not concerned.
LORD HUTTON: If I could ask you again Mr Dyke: do you not think that somebody in the BBC chain of management should have brought this to the attention of Mr Sambrook and/or yourself before the Governors' meeting?
A. They would not have brought it to my attention.
LORD HUTTON: Very well, that -
A. This is further down the chain, quite a long way down the chain.
LORD HUTTON: Yes.
A. But, well - whether they should have done, they did not.
In his evidence Mr Sambrook said:
[17 September, page 132, line 6]
Q. We have certain observations from Mr Marsh himself which are included in an e-mail on 27th June which you will find at BBC/5/118. When did you first see this e-mail?
A. When it was disclosed for the Inquiry.
Q. I see. Now, as I understand it, partly from documents and partly from Mr Dyke's evidence, Stephen Mitchell is somebody who, from time to time, looks into matters which one might loosely call regulatory for the senior executives; is that wrong?
A. No, Stephen Mitchell is the head of Radio News who reports to me. It is Stephen Whittle who is the controller of editorial policy.
Q. You are right to correct me on that. If we could look at what Mr Marsh says: "Some thoughts - clearly I have to talk to Andrew Gilligan early next week. I hope that by then my worst fears - based on what I'm hearing from the spooks this afternoon - aren't realised. Assuming not, the guts of what I would say are: "This story was a good piece of investigative journalism, marred by flawed reporting - our biggest millstone has been his loose use of language and lack of judgment in some of his phraseology. "It was marred also " that is a point about the Mail on Sunday and the Spectator. "That is in many ways a result of the loose and in some ways distant relationship he's been allowed to have with Today." Have you discussed with Mr Marsh his views as reflected in this document?
A. I had discussed, before this document, in broad terms his views of Andrew Gilligan as a reporter and indeed with Stephen Mitchell as well, yes.
Q. Can you tell us why it is, what is the loose language which Mr Marsh is drawing attention to as possibly fulfilling his worst fears?
A. I am not sure that the loose language is related to the worst fears. I think that is a separate point.
Q. Leaving the fears, let us concentrate on the loose language.
A. As I said, this was not flagged up to me at the time. I only knew about it after it was disclosed to this Inquiry. My understanding of what Kevin was talking about is we should have had a consistent phrase for capturing the allegations that Dr Kelly was making, both for presenters and for reporters and within the report scripts, and it would have been a lot better if we had been entirely consistent on that.
Q. You had not seen this document, as I understand your evidence, by the time you briefed the Governors' meeting on 6th July?
A. That is correct.
Q. Do you think you should have done?
A. I think if Kevin Marsh or Stephen Mitchell had had real concerns about the nature of the reporting or indeed about the nature of the way we were dealing with the Government's complaint, I would have expected them to bring those to my attention. I am not clear that this e-mail necessarily represents serious concerns.
LORD HUTTON: You think it does not represent serious concerns?
A. My personal view about it is that it is much more saying - it is entitled "from here"; my personal view about it is that it is an e-mail from a programme editor to his line manager saying that in future we would be better to have a more disciplined use in terms of scripting materials and not doing live two-ways and so on; and it is an attempt to look forward at how things should be managed in the future. Again, this was not flagged up to me at the time. All I can say is that, I mean, I know both Kevin Marsh and Stephen Mitchell extremely well and I believe if they had serious concerns about the quality of the journalism or indeed our response to the Government, they would have raised it directly with me and they did not.
MR SUMPTION: Is it not a source of concern if grave allegations are made against public figures on the basis of loose use of language and lack of judgment in the phraseology? Is that not a source of concern?
A. If that is their view then it would be, yes.
Q. Well, it does seem to have been Mr Marsh's view; and what exactly did the Governors, when they came to consider this, know about the views of the editor of the programme itself, ie Mr Marsh?
A. Well, they - I do not think the Governors were particularly interested in the editor's view; they were interested in my view; and I shared with them the view I had had for a considerable period of time, and which was certainly partly informed by Mr Marsh and by Mr Mitchell, which was that Andrew Gilligan was in some respects a good reporter. There are two aspects to journalism. There is the finding out of the information and there is then how you present it. My view for some time would be that Andrew Gilligan is extremely good at finding out information but there are sometimes questions of nuance and subtlety in how he presents it which are not all that they should be. Indeed, in my evidence to the Inquiry on August 13th we talked a little bit about some of the issues that arose during his reporting of the Iraq War in that context, and I was frank with the Board of Governors about that, my view of Andrew Gilligan in those terms. I think I described him as a reporter who paints in primary colours rather than something more subtle.
Q. If you had known that Mr Marsh's views were as reflected in this e-mail at the time of the Governor's meeting, would you have thought it right to draw their attention to the fact?
A. I think it is hypothetical because I was not - I did not see this e-mail.
Q. Yes, I know it is hypothetical but I would still like your answer to the question.
A. No, I think the Governors would have wanted to know what my view was.
Q. Right. They would not have been interested in the views of Mr Marsh, as the editor of the programme that was being complained about?
A. Well, only if they significantly differed from mine.
Q. I see. Do you share the views expressed here?
A. I have already told you what my views of Andrew Gilligan's reporting were.
In his evidence Mr Davies said:
[28 August, page 135, line 18]
Q. Can I take you to BBC/5/118, where it was said : " I have to talk to AG [that is Mr Gilligan] early next week. I hope that by then my worst fears aren't realised. Assuming not, the guts of what I would say are: "This story was a good piece of investigative journalism, marred by flawed reporting - our biggest millstone has been his loose use of language and lack of judgment in some of his phraseology." Also the writing for other outlets and an explanation as to why that might have happened. Did you think you ought to have known of these comments at the Governors' meetings?
A. No, I did not honestly. These comments were between the editor of Today and, I think, the Director of Radio News. They are considerably below the Board of Governors level. What we needed to know at Board of Governors was what the considered judgment of the News Division and the Director General was of Mr Gilligan as a reporter; and these comments do not reflect their considered judgment - I think Mr Sambrook said that in evidence to this Inquiry; and certainly they do not reflect what the Director of News said about Mr Gilligan as a reporter to the Governors.
I am unable to accept these dismissive comments on the relevance and importance of Mr Marsh's e-mail. I consider the lack of knowledge on the part of Mr Sambrook and the Governors of Mr Marsh's e-mail containing criticisms of Mr Gilligan's method of reporting shows a defect in the BBC's management system for the consideration of complaints in respect of broadcasts.
(4)(a) I consider that the Governors found themselves in a difficult position at their meeting on the evening of 6 July as they were being told by the management of the BBC that they were satisfied as to the credibility and reliability of the anonymous source and that Mr Gilligan fully stood by his reports. The view taken by Mr Gavyn Davies is shown in the following passage of his evidence when cross-examined by Mr Sumption:
[24 September, page 30, line 20]
Q. Were you aware that since Mr Gilligan's original broadcast, statements had been made both by Mr Gilligan and himself [Mr Sambrook] that the source was in the Intelligence Services, but that by 6th July Mr Sambrook knew that that was not so?
A. No, I was not aware that - this intelligence source point, Mr Sumption, and the difference between intelligence sources and Intelligence Service sources, had not come across my radar screen in any detail by the time of the Governors' meeting.
Q. Do you not think it should have come across somebody's radar screen if the Governors were going to be properly informed about this?
A. It did come across somebody's radar screen. Both the Director of News and I should imagine the Director General, who broadly knew who the source was, would have thought about it in some detail. I think what Mr Sambrook said to the Inquiry was that when he described the source as an Intelligence Service source on his Today Programme interview, he subsequently realised that that was a mistake but that he did not feel that he could correct that mistake without pointing further fingers at the source. He did not mention any of that to the Governors.
Q. He did not, did he? So the Governors did not know that a part of what had been said about the status of the source on the BBC was known to the Director of News to be wrong; and they had no report on the extent to which Mr Gilligan's notes supported what he had broadcast. Those two points are factually correct, are they not?
A. The Governors did not know anything about the source other than the credibility and reliability of the source as attested by several editors.
Q. In other words, the answer to my question is: no, they did not know either of those two facts and nobody told them.
A. In terms of the notes that Mr Gilligan gave - kept of his meeting with Dr Kelly, the Governors were told that those notes substantiated the broadcast and, more to the point, that Mr Gilligan was standing fully behind his broadcast. Now, I do want to say a word about notes here, because these notes have adopted an extraordinarily large part of the discussions that have been had since. Most journalists broadcast material based, to a large extent, on memory as well as notes; and most journalists do not make verbatim or anywhere near verbatim notes of their discussions. One of the reasons that is the case - and I can tell you this because I have worked, in my career, for a lengthy period of time as a part time journalist - is most journalists think that it puts off the person they are talking to if they either bring out a tape recorder or a notepad. Therefore it is very customary, Mr Sumption, for the journalist's memory to be every bit as important as the journalist's notes.
Q. We know that Mr Gilligan claims that he did, in fact, take notes during his meeting with Dr Kelly. So whatever the general position may be, that does not seem to be a relevant consideration in this case.
A. It does because he has always made it clear that this was not a verbatim set of notes.
Q. Let me take you up on what you said a moment ago, that the Governors were told that Mr Gilligan's notes supported the broadcast. As I understand what you said slightly earlier than that, they were told that even though Mr Sambrook had not examined the notes carefully enough to pick up the point that the 6.07 allegations were not reflected there.
A. As Mr Sambrook correctly told you, at the time the main interest in what the notes said appeared to be in two things: one was whether the notes substantiated The Mail on Sunday's article allegation by the source, that the source had used the word "Campbell" or had attributed to Alastair Campbell the transformation of the document. That was one thing. The second was whether the notes substantiated the "sexing up" or "making the document sexier" phrase. And those were the two things that I think Mr Sambrook said were particularly on his mind when he inspected the notes; and the notes did substantiate both those two things.
Q. Was nobody interested in the question whether the notes substantiated the suggestion broadcast by Mr Gilligan that the Government had put material into the dossier knowing that it was probably wrong? Was no one interested in that question?
A. The focus on the 6.07 broadcast, which has become very intense recently in the Government's case, was not actually reflected with the current degree of intensity at the time. Mr Sambrook has said to this Inquiry that it had not acquired the profile, in his thinking, that it has since acquired in the Government's case. I would argue, sir, that it had not acquired this profile in the Government's complaints prior to about the latter part of June either.
Q. I do not accept that, Mr Davies, but I am not going to go through that point with you. That too is a matter of record. But the fact is if Mr Sambrook had carefully gone through the notes and compared them with the transcript of what Mr Gilligan had said, it would have been absolutely apparent to him what all BBC witnesses have acknowledged so far in this Inquiry, namely that Mr Gilligan had gone too far, would it not?
A. He would have noted that the precise words used in the 6.07 broadcast were not duplicated in the notes, and I think he would then have asked Mr Gilligan why; and, in a sense, I would say that actually was - what Mr Gilligan said was that the 6.07 was an interpretation and not a direct quote from the source, he should not have suggested it was a direct quote. It was an interpretation from the source. And he was at that stage standing by it. One of the things I would say about the possibility of a complaints process, and one reason why I think that a full complaints process may have perhaps had problems sorting this particular issue out, is that I think the same thing may have happened. I think they may have looked at the notes, seen that they did not duplicate the words in the 6.07, asked Mr Gilligan why not and Mr Gilligan may well have said: that was a valid interpretation of what the source said to me. That is why I think some further concrete evidence may have been needed to sort this out.
Q. Are you saying that whatever Mr Gilligan said about things that were not in his notes would have been taken at face value by the Governors without further investigation?
A. I did not say anything about the Governors, I was talking about by the PCU.
Q. By the PCU then.
A. I do not think anything would have been taken at face value at all. It would have been taken as evidence, certainly.
[24 September, page 36, line 22]
Q. How were the Governors going to form an independent view of the question whether Mr Gilligan had gone further than his source and the question whether the source had been accurately described without having the information before them that was, in fact, in Mr Sambrook's head as this meeting took place?
A. I have already explained to you, I think that the focus on the notes is exaggerated to some degree. And what I think the Governors wanted - I speak for myself, Mr Sumption; what I wanted, as Chairman, was I wanted the considered judgment of the executives that we had appointed to run the news division and the Director General on whether the source was credible and reliable and whether the source was accurately reported. And short of seeking to duplicate their process in a way that would have suggested that we did not trust them, I am not sure what we could have done. Let me explain something to you: the Board of the BBC cannot operate, cannot operate, unless it is in a situation in which it can rely on the good faith and competence of its officers. I am absolutely certain that it can. If it sought to duplicate all of the actions of management it would indeed become the management. There is a gap between what the Board is and does and what the management is and does.
Q. Mr Davies, I quite understand that the Governors' board is a supervisory and, in some respects, an investigatory body. But surely the problem here was that the Governors did in fact duplicate what the executives had done instead of forming a view of their own which, if they had been properly informed, might have been very different?
A. No, they did not duplicate what the executive had done. They expressed the judgment, which I do not resile from at all, that it was in the public interest to put the words of the source into the public domain.
Q. They were put in a position where, for sheer want of information on the point, they had no alternative but to accept the views of the executives although those executives had dug themselves firmly into a position, is that not right?
A. The Governors had a great deal of information going into the meeting and they had an important corroboration for the Gilligan report, which continues to slip out of the mind of the Government; and that is the Susan Watts reports. I said in my first appearance before this Inquiry that the Susan Watts report was not identical to the Gilligan report. I actually studied both before I went into the meeting and I knew they were not identical, but I equally knew that the burden of what Mr Gilligan had reported in his many broadcasts on the subject at the end of May was a close match to the burden of what Ms Watts reported on 2nd and 4th June. And I do not think it should be forgotten that that is the case, because certainly in my mind, and in several other Governors' mind, maybe the whole of the Board of Governors who received the information before they went into the meeting, that was seen as an important corroboration of the Gilligan story.
Q. Would you turn to BBC/6/107, please? This is part of the official minute of the meeting in question. After the executives are drawn it says, second paragraph from the top of the page: "Following an account from Mark Damazer about how the '45 minutes claim' had been disputed by the Government since the broadcast, and a discussion by Governors about the accuracy of the report, Gavyn Davies reminded the Board that it was not a matter for them." So is the position that when the Governors did start discussing the accuracy of the report you intervened to stop them?
A. I think that is a very tendentious way of putting it. I was reminding them, as I had said to them in the e-mail on the Friday and had basically been agreed with by all Governors, that the intrinsic accuracy of the report, ie whether the source was telling, fundamentally, the truth or not, as opposed to whether we were accurately reporting him, was something that we were not in a position to determine. I therefore felt at this stage, and other Governors agreed with me, that the discussion was interesting but going down a by-way which we could not reach a conclusion on.
Q. I see. You could not, of course, without the information.
A. No, we could not have got the information, Mr Sumption. There was no way of obtaining the information.
(4)(b) The Governors were right to take the view that it was their duty to protect the independence of the BBC against attacks by the Government and there is no doubt that Mr Campbell's complaints were being expressed in exceptionally strong terms which raised very considerably the temperature of the dispute between the Government and the BBC, but Mr Campbell's allegation that the BBC had an anti-war agenda in his evidence to the FAC was only one part of his evidence. The Government's concern about Mr Gilligan's broadcast on the 29 May was a separate issue about which specific complaints had been made by the Government. Therefore I consider that the Governors should have recognised more fully than they did that their duty to protect the independence of the BBC was not incompatible with giving proper consideration to whether there was validity in the Government's complaints, no matter how strongly worded by Mr Campbell, that the allegations against its integrity reported in Mr Gilligan's broadcasts were unfounded and the Governors failed to give this issue proper consideration. The view taken by the Governors, as explained by Mr Gavyn Davies in his evidence, that they had to rely on the BBC management to investigate and assess whether Mr Gilligan's source was reliable and credible and that it was not for them as Governors to investigate whether the allegations reported were themselves accurate, is a view which is understandable. However I consider that this was not the correct view for the Governors to take because the Government had stated to the BBC in clear terms, as had Mr Campbell to the FAC, that the report that the Government probably knew that the 45 minutes claim was wrong was untruthful, and this denial was made with the authority of the Prime Minister and the Chairman of the JIC. In those circumstances, rather than relying on the assurances of BBC management, I consider that the Governors themselves should have made more detailed investigations into the extent to which Mr Gilligan's notes supported his report. If they had done this they would probably have discovered that the notes did not support the allegation that the Government knew that the 45 minutes claim was probably wrong, and the Governors should then have questioned whether it was right for the BBC to maintain that it was in the public interest to broadcast that allegation in Mr Gilligan's report from an anonymous source and to rely on Mr Gilligan's assurance that his report was accurate. Therefore in the very unusual and specific circumstances relating to Mr Gilligan's broadcasts, I consider that the Governors are to be criticised for themselves failing to make more detailed investigations into whether this allegation reported by Mr Gilligan was properly supported by his notes and for failing to give proper and adequate consideration to whether the BBC should publicly acknowledge that this very grave allegation should not have been broadcast.
291. (1) The allegations reported by Mr Gilligan on the BBC Today programme on 29 May 2003 that the Government probably knew that the 45 minutes claim was wrong or questionable before the dossier was published and that it was not inserted in the first draft of the dossier because it only came from one source and the intelligence agencies did not really believe it was necessarily true, were unfounded.
(2) The communication by the media of information (including information obtained by investigative reporters) on matters of public interest and importance is a vital part of life in a democratic society. However the right to communicate such information is subject to the qualification (which itself exists for the benefit of a democratic society) that false accusations of fact impugning the integrity of others, including politicians, should not be made by the media. Where a reporter is intending to broadcast or publish information impugning the integrity of others the management of his broadcasting company or newspaper should ensure that a system is in place whereby his editor or editors give careful consideration to the wording of the report and to whether it is right in all the circumstances to broadcast or publish it. The allegations that Mr Gilligan was intending to broadcast in respect of the Government and the preparation of the dossier were very grave allegations in relation to a subject of great importance and I consider that the editorial system which the BBC permitted was defective in that Mr Gilligan was allowed to broadcast his report at 6.07am without editors having seen a script of what he was going to say and having considered whether it should be approved.
(3) The BBC management was at fault in the following respects in failing to investigate properly the Government's complaints that the report in the 6.07am broadcast was false that the Government probably knew that the 45 minutes claim was wrong even before it decided to put it in the dossier. The BBC management failed, before Mr Sambrook wrote his letter of 27 June 2003 to Mr Campbell, to make an examination of Mr Gilligan's notes on his personal organiser of his meeting with Dr Kelly to see if they supported the allegations which he had reported in his broadcast at 6.07am. When the BBC management did look at Mr Gilligan's notes after 27 June it failed to appreciate that the notes did not fully support the most serious of the allegations which he had reported in the 6.07am broadcast, and it therefore failed to draw the attention of the Governors to the lack of support in the notes for the most serious of the allegations.
(4) The e-mail sent by Mr Kevin Marsh, the editor of the Today programme on 27 June 2003 to Mr Stephen Mitchell, the Head of Radio News, (see paragraph 284) which was critical of Mr Gilligan's method of reporting, and which referred to Mr Gilligan's "loose use of language and lack of judgment in some of his phraseology" and referred also to "the loose and in some ways distant relationship he's been allowed to have with Today," was clearly relevant to the complaints which the Government were making about his broadcasts on 29 May, and the lack of knowledge on the part of Mr Sambrook, the Director of News and the Governors of this critical e-mail shows a defect in the operation of the BBC's management system for the consideration of complaints in respect of broadcasts.
(5) The Governors were right to take the view that it was their duty to protect the independence of the BBC against attacks by the Government and Mr Campbell's complaints were being expressed in exceptionally strong terms which raised very considerably the temperature of the dispute between the Government and the BBC. However Mr Campbell's allegation that the BBC had an anti-war agenda in his evidence to the FAC was only one part of his evidence. The Government's concern about Mr Gilligan's broadcasts on 29 May was a separate issue about which specific complaints had been made by the Government. Therefore the Governors should have recognised more fully than they did that their duty to protect the independence of the BBC was not incompatible with giving proper consideration to whether there was validity in the Government's complaints, no matter how strongly worded by Mr Campbell, that the allegations against its integrity reported in Mr Gilligan's broadcasts were unfounded and the Governors failed to give this issue proper consideration. The view taken by the Governors, as explained in evidence by Mr Gavyn Davies, the Chairman of the Board of Governors, that they had to rely on the BBC management to investigate and assess whether Mr Gilligan's source was reliable and credible and that it was not for them as Governors to investigate whether the allegations reported were themselves accurate, is a view which is understandable. However this was not the correct view for the Governors to take because the Government had stated to the BBC in clear terms, as had Mr Campbell to the FAC, that the report that the Government probably knew that the 45 minutes claim was wrong was untruthful, and this denial was made with the authority of the Prime Minister and the Chairman of the JIC. In those circumstances, rather than relying on the assurances of BBC management, I consider that the Governors themselves should have made more detailed investigations into the extent to which Mr Gilligan's notes supported his report. If they had done this they would probably have discovered that the notes did not support the allegation that the Government knew that the 45 minutes claim was probably wrong, and the Governors should then have questioned whether it was right for the BBC to maintain that it was in the public interest to broadcast that allegation in Mr Gilligan's report and to rely on Mr Gilligan's assurances that his report was accurate. Therefore in the very unusual and specific circumstances relating to Mr Gilligan's broadcasts, the Governors are to be criticised for themselves failing to make more detailed investigations into whether this allegation reported by Mr Gilligan was properly supported by his notes and for failing to give proper and adequate consideration to whether the BBC should publicly acknowledge that this very grave allegation should not have been broadcast.