The most prominent initials in the documents released on January 30 are LPP, that’s Legal Professional Privilege. It appears on no fewer than 1,737 of the 10,101 pages, and that’s not including when it is expressed in a longer form as ‘Legal Privilege -s42’ a reference to Section 42 of the Freedom of Information Act which provides confidentiality for advice from lawyer to client.

The BBC has held back from public view hundreds of pages of internal emails covering crucial moments in its handling of the so-called ‘Bashirgate’ affair. They have long said that they would withhold entirely approximately 300 emails for legal reasons. I’ve no way of confirming that that’s the number they’ve withheld but reading through the files you encounter page after page of LPP.

This tactic is a very big bet by the BBC. Until now it has not had to explain these redactions to anybody but In the next stage of the legal process, which is scheduled to come to a head in March or April, it will have to provide justifications to a judge. If he disagrees with their rationale the hidden emails may become public.  The most persistent campaigner for transparency, Andy Webb of Blink Films, will certainly be pressing for that. 

One crucial test will be whether the redacted communications were made for what the Information Commissioner’s Office calls ‘the dominant (main) purpose of seeking or giving legal advice’. So, for example, does a group email between BBC executives count as ‘legal advice’ because one of the participants was an in-house lawyer. 

As a result of all the redactions it is impossible to come to any firm conclusion on the BBC’s handling of the release in 2020 of key 1995 and 1996 documents about Martin Bashir’s interview with Princess Diana. The three months covered in 2020 focus on the autumn when 3 rival broadcasters, ITV, Channel Four and Five , prepared programmes for the 25th anniversary of the interview.  The BBC which in 2007 had said it didn’t have any documents and then said in June 2020 that it did but wouldn’t release them, now decided to release some. But beyond that it went from ‘the BBC does not intend to take any further action on events which happened 25 years ago’ to appointing a former judge, Lord Dyson, whose report was damning about Martin Bashir’s conduct back in 1995. Quite a policy shift. So if, as most people now agree, there was a cover-up back in 1996, was there an attempted cover-up in 2020 which began with ‘tell them nothing’ but under pressure ended with ‘let a Judge find out’? 

We can’t be sure because of the withheld documents, there is certainly no firm evidence of it so far.The only hint of any ‘smoking gun’ is in an email from a BBC solicitor to a former BBC executive alerting him on the 19th October 2020  that documents in which his name is mentioned are about to be released that day. The key sentence is ‘we are not releasing all of the internal investigations documents at this present time’ which implies the BBC knew there were documents which would not be released.

The other key takeaway after my reading of the ten thousand:

In 1996 BBC executive Anne Sloman wrote an internal note after reviewing how Martin Bashir had got his exclusive interview with Princess Diana. She concluded: ‘The Diana story is probably now dead, unless Spencer talks. There’s no indication that he will’. 

25 years later BBC bosses clearly didn’t heed that warning. They failed to pick up the warning signs that Princess Diana’s brother was going to talk and very loudly at that, and the Daily Mail would help. 

On 21st October 2020 film-maker Andy Webb, commissioned by Channel Four, emailed Charlotte Morgan in the BBC Press Office. He set out the BBC’s traditional account of what happened back in 1995 and went on: 

‘We have recently spoken with someone intimately connected with these events and have received a different account. Our information is that at an 11.30 am meeting at Althorp on August 31 1995 Earl Spencer was told by Mr Bashir that he, Bashir, had a contact within MI5 who had important information regarding surveillance of Princess Diana’. 

Webb set out a series of facts as revealed to him by ‘our source’. He never named the source but it must have been obvious to any reader that these details could only have originated from Earl Spencer. Webb ended by asking: ‘ Given the many conflicting versions of what really took place, and as you have pointed out, the historic importance of the Panorama broadcast, has the BBC given any consideration to a full independent inquiry to determine what actually happened? ‘

In the BBC Press Office Charlotte Morgan seemed to understand the implications. She circulated Webb’s email to 8 top BBC people including Phil Harrold, Chief of Staff to DG Tim Davie. Harrold seems to have been the ‘go to’ person in the email chains. She added a covering note:

‘ What timing. Sorry to disturb your evening’s viewing. Channel 4 are not letting this rest. They have a ‘source’ (who seems very well connected to Earl Spencer), challenging our timeline and calling for a ‘full independent inquiry’. I mean what can we say beyond that a quarter of a century on, we can only go on contemporaneous BBC records, as we made clear to them previously, and with the testimony of the Princess herself, in the form of her note? Clearly we need to discuss. Charlotte’. Phil Harrold replied: ‘No worries,I’ll arrange a call for tomorrow’ .

There are no released emails about what was said and decided on that call or what was discussed with Tim Davie, but at 1158 on October 23. Charlotte Morgan emailed Andy Webb ‘‘the BBC does not intend to take any further action on events which happened 25 hears ago’. The request for an independent inquiry was ignored, the BBC was not going to budge. 

Later that day, at 15.01, Lord Spencer emailed Tim Davie for the first time setting out his detailed case against Bashir. He concluded: ‘If you agree that something needs to be done, now, then I look forward to hearing from you as to what you might propose. Yours sincerely, Charles Spencer’.

An email thread between the two men began in which over the coming weeks, step by step, the BBC would have to back down from its ‘do not intend to take any further action’ position and eventually agree to an independent inquiry. 

Towards the end of the correspondence, on 3 November, Phil Harrold circulated a draft of Davie’s proposed next response to Spencer. It contained the line: ‘I am also happy to meet with you, along with senior editorial executives who are close to these issues, to discuss this directly.’

In the eventual email this was watered down to ‘If you would like to put more to us, I would be happy to engage further’. Tim Davie never met Earl Spencer.The BBC must now be reflecting on whether, despite that warning from history, they missed a key opportunity.

This is not the end of the story.

The BBC now has until Tuesday February 13 to explain in detail to the tribunal judge why it has withheld so many emails for legal and other reasons . Andy Webb then has until February 27 to challenge their arguments.

The tribunal has the right to inspect text which has been redacted by the BBC.

Eventually there will be a hearing sometime after March 11.

If any emails are ordered to be released that probably won’t happen until the end of March.

One other legal option is for the BBC to appeal against the tribunal’s finding and take that to a higher court.

There is a lot at stake for the British Broadcasting Corporation.