David Christopher Kelly CMG was a 59 year old senior scientist and authority on biological warfare, employed by the British Ministry of Defence (MoD), and formerly a United Nations weapons inspector in Iraq. He came to public attention in July 2003 when an unauthorised discussion he had off the record with BBC journalist Andrew Gilligan about the British government's dossier on weapons of mass destruction in Iraq was cited by Gilligan and led to a major controversy. Kelly's name became known to the media as Gilligan's source and he was called to appear on 15 July before the Parliament's Foreign Affairs Select Committee investigating the issues Gilligan had reported. Dr Kelly was questioned aggressively about his actions. He was found dead two days later.
This note summarises the civil service rules etc. which form part of the background to the events leading up to the death of Dr Kelly.
Civil Servants and Ministers
Let's start with the duties of civil servants in relation to Ministers which are set out in what is known as the Armstrong Memorandum. The following extracts are relevant to the situation of Dr Kelly.
"Civil servants are servants of the Crown. For all practical purposes the Crown in this context means and is represented by the Government of the day. ... The Civil Service as such has no constitutional personality or responsibility separate from the duly constituted Government of the day.
The British Civil Service is a non-political and professional career service subject to a code of rules and disciplines. Civil servants are required to serve the duly constituted Government of the day, of whatever political complexion. It is of the first importance that civil servants should conduct themselves in such a way as to deserve and retain the confidence of Ministers, and to be able to establish the same relationship with those whom they may be required to serve in some future Administration. That confidence is the indispensable foundation of a good relationship between Ministers and civil servants.
Civil servants are under an obligation to keep the confidences to which they become privy in the course of their work; not only the maintenance of the trust between Ministers and civil servants but also the efficiency of government depend on their doing so. There is and must be a general duty upon every civil servant, serving or retired, not without authority to make disclosures which breach that obligation. .... Any such unauthorised disclosures ... result in the civil servant forfeiting the trust that is put in him or her as an employee and making him or her liable to disciplinary action including the possibility of dismissal .... He or she also undermines the relationship that ought to subsist between Ministers and civil servants and thus damages colleagues and the Service as well as him or herself.
Civil servants often find themselves in situations where they are required or expected to give information to a Parliamentary Select Committee, to the media, or to individuals. In doing so they should be guided by the policy of the Government on evidence to Select Committees and by the requirements of security and confidentiality. In this respect, however, as in other respects, the civil servant's first duty is to his or her Minister. Thus, when a civil servant gives evidence to a Select Committee on the policies or actions of his or her Department, he or she does so as the representative of the Minister in charge of the Department and subject to the Minister's instructions and is accountable to the Minister for the evidence which he or she gives. The ultimate responsibility lies with Ministers, and not with civil servants, to decide what information should be made available, and how and when it should be released, whether it is to Parliament, to Select Committees, to the media or to individuals. It is not acceptable for a serving or former civil servant to seek to frustrate policies or decisions of Ministers by the disclosure outside the Government of information to which he or she has had access as a civil servant."
Civil Servants and Journalists
It seems highly unlikely that Dr Kelly was deliberately seeking to undermine Ministers when he was briefing journalists. Indeed, Lord Hutton concluded that Dr Kelly had not intended to discuss intelligence matters. It seems more likely that, as claimed by Susan Watts, he was merely gossiping, during or following briefings which he regarded as authorised. And he did not initially realise the gravity of the situation in which he found himself. What, then, are the responsibilities of both parties during and following such conversations?
The first point that needs to be made is that it is very rare for the most senior civil servants - such as Permanent Secretaries - to comment on government policies or performance. The reasons are obvious, and have been highlighted by the Kelly affair. Any criticisms, real or perceived, would be dynamite in the hands of any journalist, would be bound to be made public, and would destroy the officials' relationship with Ministers. Senior professional civil servants are therefore just like lawyers and doctors. They never, ever, talk about their clients.
This rule is observed less strictly the further the civil servant is from his or her Minister. At the extreme, no-one really minds if a filing clerk in a local office lets it be known that (s)he disapproves of the Government's transport policies. And David Kelly may well have felt that he could not be too strongly criticised for expressing concern - as a scientist rather than as a policy adviser - about behaviour that he suspected had taken place in No. 10, but which he had not actually witnessed.
This was almost certainly an error of judgement but, if so, Andrew Gilligan also seems to have erred in giving the impression that his source was more senior and more involved in drafting the Iraq dossier than was in fact the case. We will probably never know whether Mr Gilligan understand Dr Kelly's role and, if not, whether he failed to ask the right questions, perhaps for fear of spoiling a good story?
Civil Servants and Pressure
Are civil servants sometimes "put under pressure", for instance to serve up politically convenient drafts or advice? The short answer is almost always "No" - in the sense that pressure implies force and it is almost inconceivable that a UK politician would attempt to force a civil servant to do something clearly wrong or unprofessional. Indeed, it is hard to imagine what form the force would take, given the Ministers have very little influence over civil service careers and remuneration.
But civil servants will generally try very hard to respond to Ministerial concern that, say, a policy or communication is likely to be ineffective. Civil servants are paid to take account of Ministers' views in this way. To those observing the process from afar, this can look like responding to pressure. The truth, however, is that such interaction is at the heart of the professional relationship between Minister and official. It often leads to tension, when the two parties cannot quickly reach an accommodation acceptable to both. But experienced politicians and officials know how to handle and resolve such tensions, without resorting to the use of force.
Dr Kelly's Seniority
Dr Kelly was a member of the c.4000 strong Senior Civil Service (SCS) which is divided into 5 main grades. He was however in the lowest of those five grades. Indeed, he had not been promoted into the SCS in the usual way but had been promoted under "individual merit" arrangements, recognising his quality and value as a specialist microbiologist. He therefore did not appear on the Permanent Secretary's list of the 250 members of the SCS in the MoD.
But he was clearly highly regarded, as he had been honoured by being appointed CMG - a high honour in the British system.
According to MoD, individual merit promotion "provides the opportunity for staff to undertake their scientific or technological work unencumbered by the organisational and managerial responsibilities normally associated with the grade". But it seems possible that this form of promotion left Dr Kelly feeling undervalued, and maybe not a "proper" member of the SCS.
Dr Kelly's Pension
It has been reported that Dr Kelly feared that disciplinary action might lead to his losing civil service pension. Such a fear was almost certainly totally unwarranted. I know of no law or disciplinary provision which could lead to the loss of accrued pension rights, and I have never heard of any public servant losing their pension, even on dismissal for a serious offence.
Appearing before Parliamentary Committees
Ministers and senior MoD officials were criticised in the media for acting improperly by limiting the questioning of Dr Kelly by the two Select Committees of Parliament. This is unfair, as it is well established, as noted above, that officials are subject to the Minister's instructions when giving such evidence. It is therefore entirely proper for Ministers to constrain the freedom of officials who appear before committees as long as they are themselves willing to explain why they have done so. It would also seem entirely proper for MoD to tell Dr Kelly (and the two committees) that he was not free to speculate on matters outside his knowledge. More detail is elsewhere in this website, but the following paragraphs summarise the basic rules.
Select Committees oversee the work of individual departments, and sometimes call officials to give evidence. Select Committees are appointed for a whole Parliament and so become experts on their subject matter. Party differences therefore tend to become less important as the months go by, and there is usually a good deal of consensus. Select Committees therefore deserve considerable respect.
Officials who appear before Select Committees must follow the Osmotherly Rules which mean that they "give evidence ... on behalf of their Ministers and under their directions". Ministers are responsible for what information is given to committees and for defending their decisions as necessary. Minister must therefore agree officials' proposed response to likely Committee's questions. Put shortly, this means that:
- Officials may describe and explain the reasons which caused Ministers to adopt existing policies but should not give information which undermines collective responsibility or get into a discussion about alternative policies;
- Officials may not divulge advice given to Ministers by officials; and
- Officials may not divulge information about interdepartmental exchanges on policy issues, the level at which decisions were taken, or the manner in which Ministers consulted their colleagues.
- Again quoting Osmotherly:- "this does not mean, of course, that officials may not be called upon to give a full account of Government policies, or indeed of their own actions or recollections of particular events, but their purpose in doing so is to contribute to the central process of Ministerial accountability, not to offer personal views or judgements on matters of political controversy ...".