Arresting Damian Green MP

A huge storm has blown up in the media and among MPs over the action of the police in arresting the Tory front-bench shadow immigration minister, Damian Green, holding him for nine hours (including two hours of questioning), searching with considerable rigour both his offices (including his office in the House of Commons) and his two homes, and taking away documents, his Blackberry, his mobile phone and, according to some reports, his computer.  They also blocked his parliamentary e-mails for most of a day.

It certainly looks as if the police yielded to the itch for drama and allowed themselves to get carried away by their enthusiasm for tracking down leaks of government information and teaching those responsible for them a salutary lesson.  They may also have been pretty obtuse if they failed to foresee the amount of indignation and anger that their treatment of Mr Green would inevitably provoke.  But before we all get carried away on a tide of protest, it’s worth trying to nail a few myths, many of which are prominently featured in today’s media reports.

Myth No. 1: That Mr Green was arrested and his homes and offices searched by anti-terrorism officers, acting under anti-terrorism law.  The police have denied that anti-terrorism officers were involved in the arrest, questioning or searches, and that Mr Green was arrested on suspicion of offences under any anti-terrorism law.  Even the police would hardly issue such a denial if the truth was otherwise. (The Guardian publishes this denial but elsewhere reports as fact that anti-terrorism officers arrested Green in connection with suspected offences under anti-terrorism legislation, and prominently publishes a letter protesting at such abuse of anti-terrorism law and powers.)

Myth No. 2: That Mr Green was arrested under the Official Secrets Act. Contrary to some reports, there’s no evidence that Mr Green is suspected or accused of any offence under this Act.  (It seems that the arrest etc was on suspicion of “aiding and abetting misconduct in a public office“, a common law offence which seems to refer to the action of the junior Home Office official accused of leaking information to Mr Green, not to any “misconduct in a public office” by Mr Green himself, although this is not yet 100% clear.)

Myth No. 3: That the police action was in breach of “Parliamentary privilege”, a term much bandied about in media interviews and reports. But parliamentary privilege does not protect MPs from arrest or investigation, charge or trial, in connection with suspected breach of the law.  Nor does it prevent the police from pursuing their investigations within the Houses of Parliament — especially as in this case they had sensibly taken the precaution of informing the senior official of the House of Commons, the Serjeant-at-Arms, of what they intended to do.  (According to several reports, the Speaker was also informed in advance, presumably by the Serjeant-at-Arms if not by the police direct, and raised no objection.)

Myth No. 4: That the documents leaked to Mr Green were classified ‘secret’ (as alleged by, among others, the Guardian; the FT prudently says only that they were ‘sensitive’).  We simply don’t know, and probably never will, whether the documents were ‘secret’, ‘confidential’, ‘restricted’, or indeed even ‘unclassified’.

Myth No. 5: That since no ministers were told in advance of the police’s intentions regarding Mr Green, no minister can be held responsible for what the police did;  and anyway the police are independent of political control in operational matters (which is true).  However, those informed by the police in advance appear to have included the Secretary to the Cabinet and Head of the Home Civil Service;  the Permanent Secretary at the Home Office (who had originally asked the police to investigate the leaks to Mr Green); and the Mayor of London, Boris Johnson (who, according to some accounts, did raise doubts over the need to act as proposed).  As the FT remarks, “last night Whitehall insiders were incredulous at the idea that [the Cabinet Secretary] and [the Home Office permanent secretary] did not immediately inform ministers once they were told what the police intended to do.”  Even if ministers were not told in advance, as they seem to be claiming (although in rather suspiciously cautious language about not having “been involved” in the decision), the fact remains that they should have been.  If they weren’t told, they are evidently guilty of a culpable failure to ensure that their senior officials knew what kinds of information needed to be passed immediately to ministers.  “Nobody told me, guv” is no defence for a minister whose department has behaved wrongly.  If the police are deemed to have exceeded their powers, or to have breached parliamentary privilege (e.g. in interfering in Mr Green’s ability to communicate with his constituents), or to have acted in a political context without proper political authority, or simply to have over-reacted in a manner disproportionate to the nature of any offence apparently committed, then the Home Secretary, Jacqui Smith, is responsible and should resign.  This was not a purely operational matter, as the police tacitly recognised when they gave advance warning of it to senior officials and the Mayor.

Myth No. 6: That it is the duty of civil servants to leak information to MPs or the media if they believe that the information reveals dishonesty, other immoral behaviour, or policies to which the civil servant objects on moral or political grounds.  No such duty exists or can exist.  Indeed in any such circumstances an official has a duty to protect the confidentiality of the information in question but also a duty and right to take his or her objections or qualms to higher authority in the civil service, up a prescribed route, and ultimately to the head of the civil service himself. If this produces no redress, the official may ask for transfer to other, unrelated duties, or, in the last resort, must resign, and (provided that he or she is willing to risk prosecution for doing so) only then take the information to an MP or the media.  All governments of whatever party and whatever country need to be able to protect certain kinds of information from being revealed publicly, for example when it relates to discussion of possible policy options before decisions are taken, or information provided to government in confidence, or information whose disclosure is likely to damage national security:  and they are entitled to rely on the discretion of their officials in protecting that confidentiality.  It’s not for an unelected official to override the policies or decisions of elected ministers as to what information should be released, and when it should be released.  Those who can’t accept such restraint on their freedom to pass whatever information they like to whomever they like don’t belong in the public service.

Myth No. 7: That whistleblowers are performing a public service and should be protected.  There’s room for legitimate debate about this as a general proposition, subject always to the considerations in Myth No. 6 above.  But there’s no evidence so far that in this particular case the Home Office leaker was motivated by conscientious objection to any particular government action or policy.  The leaks seem from the nature of the information leaked to have been motivated mainly by a desire to provide ammunition to the parliamentary opposition and thus to cause difficulty for the government.  If that proves to have been the case, there would seem to be no possible argument for protecting the leaker from the consequences of his or her action.

Myth No. 8: That MPs (especially opposition MPs) and ‘investigative’ journalists can’t do their jobs without receiving leaked information from moles within government.  This is stated with startling clarity by John Kampfner, former editor of the New Statesman, in a column in today’s Guardian:

What is the point of the media if it does not see its primary task as gathering information to hold power to account? Investigative journalism takes time and money. One can count on the fingers of perhaps two hands the serious practitioners, many of whom rely on whistleblowers.

It’s depressing to find such an experienced and sophisticated journalist as John Kampfner propounding such a dangerously inflated — indeed distorted — view of the main function of the media, as well as the pernicious doctrine that it’s perfectly OK to collude in, and benefit from, the commission of an offence by another person so long as the objective is the noble one of “holding power to account”.  The same untenable view is implied by the Guardian‘s editorial comment today.

It’s right to draw a distinction between on the one hand the action of an MP or journalist who receives a brown envelope through the post, unsolicited, containing juicy information, however improperly leaked, and who then makes public use of it; and, on the other hand, action by an MP or journalist actively to incite a public servant to provide sensitive information in breach of his or her duty of confidentiality.  Since improper leaking of information by an official is an offence (whether under the Official Secrets Act or, as here, apparently, under common law), inciting another person to commit such an offence must itself be an offence as well, perhaps in some cases the offence of conspiracy.  Damian Green’s Tory colleagues have strongly denied that he had in any way encouraged the alleged leaker to leak, e.g. by offering either money or any other kind of inducement for the leaked information.  It may or may not be relevant that the leaker had apparently asked for a job in Damian Green’s parliamentary office and had been turned down.

There are those — and no doubt some of them will comment indignantly on this post — who see no need for confidentiality at any time for any information held by government; who regard all attempts at protecting the sensitivity of certain kinds of information as a conspiracy by ministers and officials to deceive the public by withholding from it information to which it is morally entitled; and who believe that all secrecy is prima facie evidence of criminality.  Such an extreme view hardly deserves to be rebutted.  There’s no government in the world that works in a totally transparent goldfish bowl;  and it’s unlikely that all the world’s governments are engaged in a sinister conspiracy against their own citizens (even if some undoubtedly are).  It’s certainly true that successive British governments have been and still are unnecessarily secretive, not venturing to make public much information which in practice could (and sometimes should) be released without the slightest risk of damage to the public interest.  The Freedom of |Information Act has gone a considerable way towards overcoming this obsessive secrecy.  All the more reason, then, to reduce to the absolute minimum the unsavoury, and possibly illegal, reliance by MPs and journalists on the betrayal of their duty by moles within government.  Leaks are of course bread and butter to both opposition MPs and journalists, so it’s hardly surprising that this episode has stirred up such self-righteous indignation in both media and parliamentary circles.  Cui bono?  The government’s case on the other side is largely going by default:  there’s so far been a sad lack of ministers or others stating a perfectly proper and persuasive case with the explanations required to convince ordinary people of its cogency.  Most ministers are MPs too, and probably expect to be in opposition shortly, whereupon they too will suddenly recognise the rightness and necessity of leaks.

But I still think the police action was excessive!

Brian