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« Climate Dialogue on long-term persistence | Main | Oreskes and Conway do the end of the world »
Monday
Apr292013

Judge expresses doubts over soundness of the Russell inquiry

The Information Tribunal has finally reached its decision over David Holland's request for access to the Russell inquiry's emails. The decision is that they should not be released.

That's the bad news.

The good news is that the decision seems to have been made on the grounds that David H failed to demonstrate that UEA were controlling the inquiry. These are the only grounds on which the Tribunal could have demanded that the emails be released. However, in the course of reaching that decision, the judge seems to have doubted the soundness of the inquiry:

...we find it surprising that there was no contractual document, and in particular, that there was no discussion between them about the information that would be received or generated by the ICCER. Professor Acton’s evidence is that he had the advice and input of other senior colleagues at the time he was setting up this inquiry. We would have thought, in any event, that it would be almost instinctive for Professor Acton, as an historian, to have taken an interest in the question of what would happen to the information after Sir Muir’s work was concluded, even if he wanted to ensure that it was held independently during the course of the inquiry itself. His evidence as to why there was no specific agreement on this issue, nor even any discussion, appears to be somewhat contradictory. On the one hand, he says that he and his colleagues did not turn their minds to it because they were focused on getting the inquiry up and running. On the other hand, he says that it was important that the UEA not have any claim to the information because that would have compromised the information people might have been prepared to give to the inquiry, and in turn, would have compromised its independence. The second position suggests that the issue was actively considered; the first suggests that it was not. Given that Professor Acton has stressed, throughout, the importance of the inquiry not only being independent, but being seen to be independent, we would have thought that a clear statement to the effect that the UEA would not have control over, nor even sight of the information received or generated by the ICCER, would have been important.

Sir Muir’s evidence in this regard is equally surprising. His witness statement sets out his previous experience and shows an impressive track record in senior positions in the civil service and in academia. By his own evidence, he took legal advice at the outset, and at various stages to ensure, for example that data protection laws were complied with and also, took advice on a possible action in defamation had the ICCER published the Appellant’s submissions. He also ensured that there was legal liability insurance in place. There is no explanation for why, given Sir Muir’s extensive and relevant experience, his attention to detail in other respects, and his access to legal advice (there is no evidence that he was under any financial constraint in the extent of the advice he was able to obtain), neither he nor his advisers considered the practical, even if not the legal issue of the control and ownership of the information at the end of the inquiry, let alone during the inquiry itself.

Nevertheless, although we would have expected the issue to have been expressly considered, that does not mean that we have found either witness lacking in credibility. There is no evidence before us to support a finding that the witnesses have been untruthful. Dishonesty cannot be inferred simply from shortcomings or oversight. We accept that there was no documentary evidence on the subject, and that the parties did not discuss the subject at
any time.

Shortcomings and oversight eh?

What then can we deduce from the course of dealings between the parties as to their expectations and understanding about this information? Both witnesses state with conviction that they were always clear that the UEA had no claim to the information and that it was held by the ICCER on its own behalf. Professor Acton says that the UEA would never have expected to have access to the information, much less control over it, and Sir Muir says with equal conviction that had the UEA ever sought access to the information, it would have been refused.

114. Given the complete absence of any discussion between them on the subject, it may seem surprising that they are so clear about their understanding in relation to the information. Be  that as it may, we find that the course of dealings between the parties supports a finding that they acted in keeping with the understanding that they say they each had...

The Tribunal did not see the appointment of Prof Boulton as evidence of UEA controlling the inquiry, but seemed, shall we say, a little taken aback by Russell's decision to appoint him:

We accept, however, from the evidence of both witnesses, that the UEA had no say in the appointment of Professor Boulton, nor indeed of other members of the team. We further accept that it was necessary, in order to maintain both the perceived and actual independence of the ICCER, that Sir Muir should have had a relatively free hand in engaging those individuals he considered were most appropriate. Although, we would have expected that that freedom might have come with the proviso that nobody would be engaged, whose involvement might put the independence of the inquiry in jeopardy, and although we would have expected that even  without any such proviso, Sir Muir would have steered clear of appointing any such individuals, it does not follow that the appointment of Professor Boulton means that the inquiry was not independent. The decision to appoint him may have been unwise, but that is not the same as saying that by virtue of his appointment, the ICCER was effectively controlled by the UEA, with Sir Muir acting only as credible figurehead, as the Appellant asserts. There is no evidence before us that would support such a finding...

"Unwise" too...

In short, although as we have indicated quite frankly, there are certain matters concerning how the inquiry was set up and conducted which we have found to be surprising, we do not find that this is because the inquiry was controlled or directed by the UEA.

Surprising too.

So in summary we have an inquiry that had shortcomings, made oversights, decisions that were unwise, and the conduct of which was "surprising". But it has not been shown to be under the control of UEA.

In my book, the Russell inquiry's credibility is shot.

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Reader Comments (27)

it does seem equivlent to being awarded damages of 1p, doesn't it...ie the court cannot opine that the enquiry was a pile of festering dingo's kidneys, but it seems to smell like that.

Apr 29, 2013 at 5:11 PM | Unregistered Commenterdiogenes

The words thrown, bus and under come to mind.

Apr 29, 2013 at 5:33 PM | Unregistered CommenterSwiss Bob

"the judge seems to have been decidedly (???) of the soundness of the inquiry:"

a word missing?

Apr 29, 2013 at 5:57 PM | Registered CommenterMartin A

Things are only "surprising" because the judge has not been following the plot so far!

I am not surprised at all.

Apr 29, 2013 at 5:59 PM | Unregistered Commentergraphicconception

So yet another judgement goes in favour of the "establishment"?

Although one suspects that perhaps in this instance Acton et al were deliberately obscure about how the enquiry was set up so as to muddy their minks and make it as hard as possible for any "court" to find against them.

And the bus keeps trundling along towards he cliff edge eh!?!??

Regards

Mailman

Apr 29, 2013 at 6:10 PM | Unregistered CommenterMailman

He that touches pitch shall be defiled.

Apr 29, 2013 at 6:34 PM | Unregistered Commentermike fowle

Congratulations, David Holland. I'm glad I was there. :)

Apr 29, 2013 at 6:52 PM | Registered CommenterRichard Drake

Good effort D.H.
Shame about the outcome.
Maybe the inquiry into the next tranche of e-mail releases will be thorough and independent.

Apr 29, 2013 at 7:05 PM | Unregistered CommenterG.Watkins

Yes - well done DH

A superb effort.

Apr 29, 2013 at 7:45 PM | Unregistered CommenterDoug UK

"In your book" MR had no credibility right from the start, so I am a little puzzled as to why you think this complete demolition of Holland's conspiracy theories changes that in the least.

As usual you only quote from the record those points that support your pre-existing positions. I do wonder why you even bother.

Apr 29, 2013 at 7:50 PM | Unregistered CommenterTom

Sorry Tom...what was that about pre-existing positions? :)

Hipocrascy isn't a four legged animal that lives in the water in Africa you know.

Mailman

Apr 29, 2013 at 7:59 PM | Unregistered CommenterMailman

Although David's appeal failed on a technicality, I find the Tribunals criticisms of the enquiry particularly in terms of its failure to address putative FOI legal transgressions quite excoriating, viz:-

'120. The Appellant is highly sceptical of the explanation given by Sir Muir as to why the inquiry decided not to investigate the issue of potential illegality, when it was part of the original terms of reference. We find it surprising that that such a fundamental reduction in the scope of the review was not discussed with the UEA, given that the UEA was paying for the review, and had commissioned Sir Muir to look into the matters set out in the terms of reference. However, there is no evidence before us to suggest that that matter was not pursued because of any influence or direction in that regard from the UEA. The Appellant’s allegations in that regard are no more than conjecture. We accept it as plausible that the ICCER did not investigate the
issue because it regarded matters of illegality to be more properly for the Commissioner and the police.

121. In short, although as we have indicated quite frankly, there are certain matters concerning how the inquiry was set up and conducted which we have found to be surprising, we do not find that this is because the inquiry was controlled or directed by the UEA.'

Apr 29, 2013 at 8:58 PM | Registered CommenterPharos

Tom:

'I wonder why you even bother', you write.

Ever thought about that yourself?

Snooty attempts to swot your opponents aside require much more than sneering dismals.

You'll need to try a lot harder.

Apr 29, 2013 at 10:29 PM | Unregistered CommenterAgouts

To put this into Climatespeak:

There are certain matters concerning how the inquiry was set up and conducted which we have found to be consistent with the inquiry being controlled or directed by the UEA.'

Good result DH - we appreciate the effort.

Apr 29, 2013 at 10:35 PM | Unregistered Commentergraphicconception

"The Appellant’s allegations in that regard are no more than conjecture." The judge dismisses David's point of contention, but then does exactly what he says David did by offering up, "We accept it as plausible that the ICCER did not investigate the issue because it regarded matters of illegality to be more properly for the Commissioner and the police." Which itself is a conjecture, and worse, attributing motive and dismissing David's concerns based nothing but his own conjecture of motive.

For me, the fact that the judge points out the contradictions, but confirms that there is no evidence for control of the enquiry outcome. He is simply saying that a verbal agreement seems likely, but they were careful enough not to put that agreement in writing, i.e.; no evidence.

Apr 29, 2013 at 10:48 PM | Unregistered CommenterGreg Cavanagh

The judge is a she Greg.

Apr 29, 2013 at 10:56 PM | Registered CommenterRichard Drake

Concerning the subject e-mails: Did the judge examine them? If not, how could a definitive ruling be rendered?

Assuming that the judge did not examine the subject e-mails, suppose that the e-mails contradict the testimony of the "witnesses" ... and suppose at a later date a few of these e-mails surface. What happens regarding the ruling of the judge?

Apr 29, 2013 at 11:15 PM | Unregistered CommenterDrcrinum

My apologies to the judge. I didn’t read the linked article.

Apr 30, 2013 at 3:46 AM | Unregistered CommenterGreg Cavanagh

Thanks, D.H., for your efforts, which - judging by the judge's shrewd comments - were not in vain.

Apr 30, 2013 at 8:10 AM | Unregistered CommenterColdish

97% of independent inquiries are neither, so it is difficult for me to be surprised. But well done David Holland for displaying the tenacity required to take on the Sir Humphreys.

Indeed, from the great man himself: "Leak enquiries are for setting up, not for conducting."
http://www.jonathanlynn.com/tv/yes_minister_series/yes_minister_episode_quotes.htm

Apr 30, 2013 at 8:40 AM | Unregistered Commentermichael hart

When an overt sympathiser is appointed to head an enquiry there is no need to excercise any control. The UAE had someone looking out for their best interests from the outset - a logical conclusion if one looks at the decisions made by Muir and criticised in the report.

It is a shame the enquiry couldn't have drawn the bow. It is not excessively speculative in my opinion.

Apr 30, 2013 at 9:39 AM | Unregistered CommenterGeckko

"the ICCER was effectively controlled by the UEA, with Sir Muir acting only as credible figurehead, as the Appellant asserts. There is no evidence before us that would support such a finding..."

Of course there is no "evidence" ICCER and UEA have gone to great lengths to ensure that there is none. What is more the "pals" are singing from the same mutual support hymnsheet. If one falls they all do.

Stinks to high Heaven.

Good effort, David, for parttly exposing these slimy creatures under the stone.

Apr 30, 2013 at 9:41 AM | Unregistered CommenterDon Keiller

David, an admirable and very valiant effort on your part.

Although when I recall the demeanour and delivery by Acton and Muir Russell during their performances at the parliamentary enquiries, I just cannot wrap my head around the idea that either of them could be considered as deserving of the credibility plausibility that the judge was willing to grant their responses.

Some might wonder if perhaps Acton and Muir Russell had the same "coach" this time around. But I couldn't possibly comment.

We would have thought, in any event, that it would be almost instinctive for Professor Acton, as an historian, to have taken an interest in the question of what would happen to the information after Sir Muir’s work was concluded,

Indeed. Perhaps if Acton has any published works extant, one might want to revisit the contents - bearing in mind this evidence that his instincts and competence as an historian may well be third-rate at best ;-)

If, as an historian, Acton could go along with Boulton's (or someone's) butchery of your submitted testimony, what does this say about his competence as an historian?! And how could this possibly reflect positively on the "standards" and reputation of UEA ... about which he was so very concerned!?

And of course, the bottom line, since it has now been established that the emails do exist, is what is stopping Muir Russell from disclosing them to you? Some might conclude that he's trying to hide something. But I couldn't possibly comment.

They may well have won this particular battle on a legalistic technicality. But as Andrew says, the Russell inquiry's credibility (such as it was!) is shot. And I don't think it's done much to enhance the credibility of CRU/UEA either!

I noticed that the header on each page indicates that this was a hearing of the "First-Tier Tribunal" which suggests to me that this may not be the end of the line, so to speak. If I'm correct, can you share with us whether or not you have considered pursuing this further?

Apr 30, 2013 at 9:47 AM | Registered CommenterHilary Ostrov

Having just been to The Globe, the great works of The Bard are on my mind. Here is a quote from Hamlet that springs to it after reading this post:

A hit, a very palpable hit.

Apr 30, 2013 at 10:22 AM | Registered CommenterJohn Shade

Who's round is it?

Apr 30, 2013 at 6:28 PM | Unregistered CommenterMartyn

The only grounds for publicising the Russell inquiry's emails, is that that UEA were controlling the inquiry?!

What a load of nonsense. As a publicly-funded exercise, ALL of its emails should be made public.

As the judge surely realised, there is of course only one reason to keep the emails secret, and that is to cover up corruption.

Time now to have the judge him/herself investigated?

May 3, 2013 at 1:07 PM | Unregistered CommenterTomcat

Readers who are not familiar with the niceties of judicial language should appreciate that what this means is the equivalent of "pull the other one, it plays Jingle Bells, but the rules are the rules." Those in the know cannot fail to grasp the gist here.

David Holland, thanks for your work on this.

May 3, 2013 at 1:40 PM | Registered Commenterjohanna

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