The Arrest of Damian Green MP: Part 2
According to the BBC’s latest report,
The solicitor for the Home Office worker who leaked information [Christopher Galley] says he did it because it was material that was “important for the public to know”.
The problem is that Mr Galley’s ministers took a different view of what material needed to be made publicly available, and their view would have been informed by all sorts of considerations of which Mr Galley could not have been aware. There’s no suggestion that he was sending government information, without authority, to Damian Green in order to expose wrong-doing of any kind; he was not a whistle-blower of that traditional kind. He just thought he knew better than ministers what information should be released, and when. Even then he sent it to a Conservative opposition MP, not to the press.
The Home Office Official
If every unelected civil servant, senior or (like Mr Galley) junior, claimed the right to override elected ministers’ decisions about what sensitive government information should and should not be released, and on what timing, the work of government would grind to a halt. Ministers would be unable to trust their officials and would have to keep vital information from them (the reverse of what seems to have been happening in this case!). Anyway, it’s clearly an offence under both common law and statute law for an official to disclose information obtained in the course of his duties to a third person without proper prior authority. And it’s an offence for a third person to encourage an official to do so, although we don’t know whether Mr Green did encourage Mr Galley. He has denied that any financial inducement was offered or given.
The claim that Mr Galley’s motive in leaking the documents was to enable the public to know what he thought they should know, the ‘public interest defence’, is inevitably going to have to be examined against the background of Mr Galley’s position as a Conservative Party activist.
The Times report quotes Mr Galley’s solicitor:
The former Conservative council election candidate had first met Mr Green in the Houses of Parliament in 2006 and “regularly” supplied him with information for the next two years, Mr O’May said. [Emphasis added]
In the words of a report in the Daily Telegraph, no less, a pretty reliable source on matters affecting the Conservative Party, —
Relatives of Mr Galley revealed that he had held political ambitions since his school days. He has previously stood as a Conservative candidate in an election for Sunderland city council.
Christopher’s uncle Kevin Galley, Christopher’s uncle, said last night: “I just don’t understand how he could have got caught up in something like this.
“He loved politics and I think he was a member of the Conservative Youth.”
It’s also reported, and not so far denied, that Mr Galley had applied for a job in Damian Green’s parliamentary office and had met Mr Green in connection with his application (which was evidently unsuccessful).
You can see and hear the statement by Mr Galley’s solicitor, Mr O’May, of Bindmans solicitors, on the BBC website here — and on several others.
My initial reaction to the news of Mr Green’s arrest and the searches of his offices and homes was that although an investigation of the leaks was manifestly right and necessary, the manner in which the investigation was being conducted appeared to be disproportionate to the suspected offence (or offences) and unnecessarily heavy handed. Now, as more of the facts seep out, I’m not so sure. Two years!
Brian
Yes. I’m dialling my reaction down from outrage to mild wariness – it does sound as if Galley, at least, was (to all intents and purposes) up to no good.
Is that two years for Galley or Green?
Brian writes: LOL! But I don’t think we have heard enough evidence to start talking sentencing just yet: and now, with the appointment of the head of the Transport Police to investigate the investigation, the media wiseacres are talking about the whole thing being wrapped up before Christmas with no charges laid against anyone! (“Analysis: police take first step towards drop leaks investigation” — The Times, 2 Dec. 08):
Moral: if you or one of your mates finds himself under investigation by PC Plod, kick up the most almighty rumpus, and it will all go away.
Tomorrow it looks as if after the Speaker has made his self-exculpatory statement ( © J Straw, J Smith), the MPs will create an opportunity to let off steam about the God-given sanctity of the .doc files in their computers, as guaranteed by Magna Carta and O. Cromwell. Then perhaps — just possibly — the hysteria might begin to subside?
‘Two years’ refers, of course, to the length of time in which Mr Galley has been leaking ‘systematically’, or at any rate regularly, to Damian Green.
Could it be practical to allow a civil servant to take information to the Information Commissioner and propose its publication? Perhaps a civil servant could make a FOIA request for the information they have?
Encrypt, people.
This is interesting:http://tinyurl.com/6g9xgo
Hi Brian,
You write:”Anyway, it’s clearly an offence under both common law and statute law for an official to disclose information obtained in the course of his duties to a third person without proper prior authority. And it’s an offence for a third person to encourage an official to do so…” Perhaps you may have spotted it but I’m not clear there is any statute law to make it an offence for a third party to encourage a potential leaker; inducing him is another matter.
Overall though the thrust of your argument strikes me as a little too dogmatic. I think you can only ultimately preserve the balance between maintaining the relationships of trust/confidentiality required for functioning organisations/government and the safety valve of public disclosure by a degree of ambiguity and uncertainty of outcome in the law. A whistleblower should always be required to take a risk — balancing a cost to himself against the value of the disclosure. We can all think of important whistleblowers who broke the rules (if not the law) to release things we ought to know — for example Daniel Ellsberg’s release of the Pentagon papers. I agree it is absurd to declare an open season for leaks and whistleblowing, and to ignore the obligations of trust people have to each other, let alone their government. But there also has to be a sense of proportion. Most such leaks can well be dealt with as administrative offences, without trying to apply criminal law, except where really serious security matters are at stake. When it comes to the disciplinary process, that’s where you should apply your tough stance. (And the principles are little different whether inside a corporation or a government department). If employing criminal law, it seems obvious there should be some public interest defence that – while a tough thing to evoke – provides the proper way for a jury to balance the needs of the organisation vs the value to the public of the information being released. In this particular case, it seems obvious that the official would lose in any internal tribunal and therefore forfeit his job (and his reputation); if he released any classified information (which is not proven) then it appears he would also fail the public interest test due to the reported party-political pattern of his disclosures.
On an aside — wasn’t it funny watching Harriet Harman going on about the speaker’s job of preventing “un-warranted interference” in the duties of MPs, and even Paxman not spotting the obvious irony of those words (perhaps deliberate from Harman) … since clearly it would be hard to argue a raid without a warrant was warranted.
Brian writes: Stephen, I don’t disagree with any of that (apart from pleading Not Guilty to the charge of being dogmatic!), although my emphasis is obviously somewhat different from yours: I used to be a public servant and am very conscious of the problems that can be caused by illicit leaking, while you as an investigative journalist are naturally very conscious of the value of leaks in some, perhaps many, circumstances both as raw material for journalists and for the public interest, sometimes, in knowing things that the government wants to keep to itself. Both concerns are totally legitimate, and indeed the current law offers certain limited protections to genuine whistle-blowers in recognition of the potential value and moral legitimacy of what they do. But very little, if anything, of that seems to apply to a protracted two-year, systematic, regular, unauthorised leaking of information for party political purposes, as I think you agree.
On your other points, I’m not sure whether the law recognises your distinction between encouraging a civil servant to leak and inducing him to do so. If ‘inducement’ implies some sort of financial or other reward (denied by Damian Green) that of course would aggravate the offence, but I would have thought that even mere encouragement would probably rank as ‘conspiracy’ with the leaker to commit the offence, which is what Green is suspected of, not under statute law (I think) but under common law. The significant distinction, surely, is between passively receiving leaked information out of the blue and using it, on the one hand, and egging the leaker on with encouragement, perhaps specifying the nature of the information that’s wanted, on the other. I don’t think we know yet whether any of the 20 plus documents that Galley allegedly leaked, at a rate of roughly one a month, were formally classified, or otherwise sensitive in a way potentially damaging to the national interest if disclosed (and there are plenty of categories of information besides that which touches on national security which can do great damage if leaked); all we know is that the four leaked documents that are in the public domain out of the total of 20+ were not particularly sensitive and apparently not classified. We know from Jacqi Smith’s statement today that the home office tried to deal with the leaks by internal inquiries but was eventually forced to call in the police to track down the mole — government departments aren’t really equipped to do detective work, and this wasn’t your ordinary one-off act by a whistleblower with an outsize conscience, it was a whole series of systematic leaks from deep within the department over two years. It was clearly vital to discover who was doing it: to establish what further material he had leaked: and to stop him doing it any more. I don’t see how such a major breach in the home office’s security could have been dealt with simply by internally disciplining the offender, even if they had been able to catch him unaided.
I too spotted H Harman’s witty use of ‘unwarranted’ and giggled at it. I’d like to think it was deliberate!