A report by Tom Kelly
Background and context
On the 16 of September 2020 the Secretary of State for Defence and the Permanent Secretary of the Ministry of Defence agreed to set up an Independent Review into allegations that the Defence Communications Directorate had refused to engage with a media outlet – Declassified UK – and that in doing so they were operating a blacklisting policy which breached both the Government Communication Service Propriety Guidance and the Civil Service code. Those allegations had prompted a number of Parliamentary Questions, a media freedom alert from the Council of Europe, as well as correspondence from the International Press Institute and the website’s legal advisers, Leigh Day.
The Secretary of State and the Permanent Secretary subsequently asked me to carry out the Independent review.
If substantiated, the allegation that a government department, or a section of it, acted in a partisan way would strike at the heart not just of government communications, but the core ethos of the civil service itself, based as it is on the principles set out in the Northcote-Trevelyan Report in the 19th century. Any policy of blacklisting based on the perceived political stance of a media outlet would go completely counter not just to those principles of impartiality and objectivity, but also their modern manifestation in the Civil Service Code and the Government Communication Service Propriety Guidance.
The Civil Service Code says civil servants “must not act in a way that unjustifiably favours or discriminates against particular individuals or interests.” The Government Communication Service Propriety Guidance says “media officers must establish their impartiality and neutrality with the news media even-handedly” (Chapter 2, page 5) and “Government communicators must carry out their work objectively and without political bias” (Chapter 1, page 3).
Given the seriousness of the allegation I think it is right, therefore, that I set out my considered view before detailing the evidence that has led me to those conclusions.
The Ministry of Defence did not have a policy of “blacklisting” media organisations and I do not believe such a list exists. But, on this occasion, and for a very particular set of reasons, individuals within the Defence Communications Directorate acted as if there was such a policy and so for Declassified UK the end result was the same: they were not treated in the same way as other media outlets. That was, as the Department has now explicitly recognised, wrong. It ran counter to both the Civil Service Code and the Communication Guidance as outlined above. Although arguably a ‘one-off’, that remains a not insignificant failing. It is vital, therefore, to understand why and how this failure happened; what lessons need to be learned to prevent any recurrence; and what structural issues the Department needs to address.
It should also, however, be noted that in my view, this failing was the result of an institutional reflex rather than any direct political bias. On the contrary, it was only when ministers and their advisers became involved that the full implications of what had happened were realised, and the Department moved from trying to defend its actions to admitting its error.
The basic facts are not in dispute.
On the afternoon of the 24 August 2020 a serving soldier, Lance Corporal Ahmed al Babati, was arrested outside Downing Street whilst protesting in full uniform over what he claimed was the UK’s involvement in supplying weapons used by Saudi Arabia in Yemen.
The following morning, August 25, Phil Miller of Declassified UK, a website, contacted the Defence Communications Directorate to ask for a comment and to check the details surrounding the arrest. He was told that there was “something good to go” and that it would be sent “shortly”.
Less than an hour later, however, that position was reversed and Mr Miller was told that no information would be provided that day and that he should submit a Freedom of Information request “for anything that you require.” Later that afternoon Declassified noticed that comment had, however, been provided to the Daily Telegraph who had used it on their website. In a third exchange Mr Miller was told that the reason this had not been provided to him was that “we no longer deal with your publication.”
It was this sequence of events which sparked Declassified’s complaint and the correspondence which, eventually, resulted in the Department’s admission that it had acted wrongly.
What went wrong
Whilst the original incident at the heart of this inquiry was far from routine, its media handling should have been. Declassified were not looking for any special insight or information regarding the soldier’s arrest, or asking for that information in an unreasonable timescale. They were simply looking for the Department’s response. The refusal to provide that, therefore, is both surprising and indicative of wider issues that need to be recognised and addressed.
The origin of the problem occurred a month before the arrest of the soldier. In late July 2020 a military officer on temporary loan to the Defence Communications Directorate put forward a brief suggestion that Declassified should be put on a list of organisations which the Department would not engage with, or rarely engage with, because it was not considered a reputable source of news.
Whilst the suggestion asserted that the website’s output was conspiratorial and frequently picked up by foreign media which is hostile to the UK, it did not provide the supporting evidence base necessary for such an analysis nor assess the wider reputational implications of what was being suggested.
I have found no evidence that such a list exists, or that this suggestion was considered as a serious policy position.
However, in his response to the suggestion the Director of the Defence Communications Directorate did not address the potential breach of policy, but more pragmatically said his department “should not waste any time” on Declassified because they were a hostile website, rather than a proper news organisation. If they called, he said, they should be told to submit a Freedom of Information request.
The Director is clear that his comment was not meant to imply that the website should be blacklisted, nor that the principle of blacklisting was in any way acceptable. Rather, he says, what he meant was that his team should not expend a disproportionate amount of time answering questions from it, given that its audience was relatively small compared to the mainstream media, and that it had a clearly hostile agenda.
Whatever his intention, however, the rest of the Directorate interpreted his comment as a direction not to engage with Declassified and that, therefore, set the context for the way in which the events of August 24th/25th were handled.
Perhaps surprisingly, the arrest of the soldier on the afternoon of the 24 did not prompt any questions from the media, but it did give the Directorate plenty of time to prepare its response. That explains why when Phil Miller contacted it first thing on the 25 he was told that “there was something good to go” which would be sent to him “shortly”.
An hour later that position was reversed and Mr Miller was told that there would be no comment provided for him that day and that he should submit an FOI request. This, despite the fact that the Directorate was simultaneously providing both a “line to take” and background briefings to the Daily Telegraph, BBC and the Daily Mirror.
The reason Declassified was treated differently was a direct result of the interpretation of the Director’s comment in late July. Staff were reminded that he had said they should not “waste any time” on the website and that they should be told to submit any questions through the FOI process, and that stance was re-iterated throughout the day. Hence the comment to Mr. Miller that “we no longer deal with your publication.”
Why did it go wrong
The Director is clear that this interpretation of his comment by his staff was wrong. He also points out that all this happened at a time when much of the Directorate were working remotely due to the COVID-19 pandemic and that, therefore, the normal discussion of such issues that would take place in a normal working environment did not take place.
The fact remains, however, that some of his subordinates clearly interpreted his response to the suggestion in late July of non engagement with Declassified as a direction. They thought that he had sanctioned a blanket ban and, with the benefit of hindsight, it is understandable that they reached that conclusion.
Whilst the Director is clear in his mind of the distinction between engaging with the website on day to day operational business whilst reserving the right to apply a more proportional approach on other, more complicated queries, his team evidently were not. The failure to spell out that distinction either in his response to the suggestion or at any stage before the events of late August left that gap of interpretation unaddressed.
The suggestion crossed a line – and, in hindsight, should have been called out as such. It was suggesting a course of action which, as far as I can see, was without precedent, and would have discriminated against Declassified and which, therefore, would have prima facie breached both the Civil Service Code and the Communication Service’s Guidance. It is true that the suggestion was not adopted as a formal policy, but the failure to recognise, consider and discuss its implications allowed the difference in interpretation between what the Director meant by his response, and the direction his team thought they had been given.
What is equally disturbing is that experienced Communications professionals in the Defence Communications Directorate did not challenge the direction they thought they had been given. Instead they appear to have followed through on their interpretation of it without questioning its basic premise. Hence the comment to Mr Miller that (albeit not from an experienced Communications professional) “that we no longer deal with your publication.”
Hence, also, the belated recognition by both the Director and his team that they had made a serious mistake. Whilst, post the events of August 25, the Director did clarify what he had meant by his comment in late July, he and his team persisted in trying to justify the decision not to respond to Declassified due to its hostile stance. It was not until the issue was elevated to Ministers that the full implications were understood and the need to recognise the mistake acknowledged.
Government Communication departments operate in a highly pressurised environment. They are frequently deluged with queries, some straightforward, some not. Each day, therefore, involves making judgement calls about priorities and how much time and effort to devote to each query. Those judgement calls often take into account not just the complexity involved in answering particular questions, but the timescale in which they are being asked to address them. That, almost inevitably, will frequently lead to a difference of view between the departments and media outlets, but for both sides the Freedom of Information process is a fallback process to resolve those differences. This does not, however, excuse a failure to provide outlets with the basic level of information any Government department should provide. The presumption should be that all outlets will be provided with that information as a matter of course and that queries should only be referred to the FOI process as an exception rather than the rule, and on a case by case basis, not as part of a blanket approach.
In the way the Defence Communications Directorate collectively responded to Declassified UK it showed that it is not as clear as it should be about that distinction – and its root rationale in both the Civil Service Code and the Government Communication Service Propriety Guidance. However the interpretation of the Director’s July comments by his team came about, the fact that no professional member of staff challenged the view that Declassified should be referred as a matter of course to the FOI process, including on routine queries, shows a basic failure to grasp the implications of such an approach.
That Declassified was told that “we no longer deal with your publication” was not the fault of the person who conveyed the information, but of a wider failure within the Directorate. And that failure was replicated in the defensive way in which it responded to Declassified’s complaint and the subsequent correspondence it generated. It was only when the issue was elevated to a ministerial level that the full implications were seen, understood and acted on.
That said, other factors clearly contributed to that overall failure.
Clearly, the special circumstances created by the COVID-19 pandemic and the remote working it necessitated was one of those. It seems reasonable to assume that someone within the Directorate would have felt more willing to challenge the apparent decisions on Declassified, or at least voiced concerns, in a face to face environment rather than the more detached engagement COVID necessitated; and also that in such an environment, a less experienced staff member would have been guided not to respond in misleading terms.
This points to an equally significant factor in my view. Some of those involved in these events had limited media experience. That is true both of the officer who made the original suggestion of non engagement and the person who spoke directly to Declassified. The officer did not consider the wider reputational and ethical considerations of what he was proposing, not least for the United Kingdom’s position as a champion of democracy and of the free press as an essential ingredient of that democracy – and, with his more limited media experience, perhaps that is not surprising.
Equally, at a most basic level, the person who acted as an interface with Declassified did not have the experience to call out the oddity of refusing to provide a routine response to the website whilst providing it to all other outlets who asked.
Both were not originally media professionals by training and both were in the Directorate on a temporary basis.
- each member of the Defence Communications Directorate should be issued with copies of the Civil Service Code and the Government Communication Service Propriety Guidance. As part of on-going business, the principles they summarise should be discussed as a standing item at daily meetings to ensure that staff both understand the principles themselves and how they apply to their work each day
- adherence to the Code and Guidance should be introduced as a standard criterion in the Performance Review process for all members of the Directorate
- the Defence Communications Directorate should introduce an explicit internal policy not only allowing, but actively promoting and where possible rewarding, the principle of open but courteous professional challenge of peers or superiors thought to be breaching aspects of the Code or Guidance
- regular review sessions should be held by MOD’s Chief Operating Officer to assess how the Directorate has upheld its duty to be impartial both on daily business and in the way in which it has referred cases to the FOI process. That review process should also consider the way in which the Directorate has responded to complaints from media outlets and discuss in a non-defensive way the judgement calls invoked. Both of these aspects should be informed by an agreed base of objective evidence.
- the review process should form the basis of a monthly summary to the Permanent Secretary, the Secretary of State and his ministers
- serious consideration should be given to the level of experience required for those who serve in such a highly pressurised environment (even temporarily) and, in particular, the degree of understanding needed to translate the Civil Service Code and Communications Guidance into the daily reality of a busy Government Communications department. The Ministry of Defence, inevitably, has particular security considerations around its work, but that does not take away from the necessity that those who speak on its behalf, as well as that of the Government and, indirectly, the country, understand the proper relationship between the State and the media in a democracy.
The review was launched in September in response to allegations by news website Declassified UK that the MoD press office had refused to engage with it as part of a policy of blacklisting particular media outlets.
This resulted in an apology from the MoD and the commissioning of the review, which was conducted by former Downing Street official spokesperson Tom Kelly and released yesterday.
It stated: “If substantiated, the allegation that a government department, or a section of it, acted in a partisan way would strike at the heart not just of government communications, but the core ethos of the Civil Service itself.”
While the review did not find evidence of a policy of “blacklisting”, it said: “Individuals within the Defence Communications Directorate acted as if there was such a policy and so for Declassified UK the end result was the same: they were not treated in the same way as other media outlets.”
This was “wrong” and “ran counter to both the Civil Service Code and the Communication Guidance”, according to the review.
Media outlet shunned
In July, an officer seconded to the MoD’s comms team suggested that Declassified UK should be included “on a list of organisations which the Department would not engage with, or rarely engage with, because it was not considered a reputable source of news”.
Although the review “found no evidence that such a list exists”, it described how the director of the defence comms directorate “said his department should not waste any time on Declassified because they were a hostile website, rather than a proper news organisation. If they called, he said, they should be told to submit a Freedom of Information request.”
Carl Newns, director of defence comms at the time, left the MoD last month. He told the review that “his comment was not meant to imply that the website should be blacklisted, nor that the principle of blacklisting was in any way acceptable”.
Instead, he meant “that his team should not expend a disproportionate amount of time answering questions from it, given that its audience was relatively small compared to the mainstream media, and that it had a clearly hostile agenda”.
However, the review found that “the rest of the Directorate interpreted his comment as a direction not to engage with Declassified”.
Some subordinates “thought that he had sanctioned a blanket ban and, with the benefit of hindsight, it is understandable that they reached that conclusion”.
The review found it “disturbing” that experienced comms staff did not challenge the direction they thought they had been given.
“It was only when the issue was elevated to a ministerial level that the full implications were seen, understood and acted on,” it said.
The review recommended that MoD comms staff be issued with copies of the Civil Service Code and the Government Communication Service Propriety Guidance. The principles of these documents should be discussed during daily meetings “to ensure that staff both understand the principles themselves and how they apply to their work”.
And the MoD’S chief operating officer should report to ministers every month on the comms team’s performance in “its duty to be impartial both on daily business and in the way in which it has referred cases to the FOI process”.
The review warned that those speaking on behalf of the MoD need to “understand the proper relationship between the State and the media in a democracy”.
Mike Baker, chief operating officer at the MoD, said: “I fully accept the findings of the report, and we are now in the process of taking forward its recommendations. I will ensure this is done at pace.”
Newns did not respond to a request for comment.
(Source: PR Week)
Joint Forces Editor’s Comment: The Kelly Report and its Recommendations make for interesting reading but at roughly 2,700 words long are probably a little bit long for us to reprint verbatim. The above link will take those interested in Press Freedom in the UK straight to the report on the Defence and Armed Services section of the .gov.uk website
Wearing my optimist’s hat, I would like to think that this report’s recommendations might lead to more open and informative media comms from the UK MoD Defence Communications Directorate, which although it might not have been operating a media blacklist has at times in recent years given the distinct impression that it is really only interested in engaging and communicating with a rather small and select media whitelist.