On leaking

A lively debate is in progress over on Owen’s blog about leaks of sensitive government information and the best way to deal with them.  With apologies for my cowardly reluctance to butt in to the latest exchange between Owen and Paulie, I just want to make some points that are easily overlooked in the current enthusiasm for universal leaking on the part of those who have a professional vested interest in leaks, namely all journalists and most politicians apart from those actually in office.

(1) Contrary to much of what’s currently being said by MPs and journalists about the Damian Green brouhaha, it’s not only information concerning “national security” that sometimes needs to be protected from untimely public disclosure, or (sometimes) from disclosure at any time. Publication, or publication at the wrong time, of other kinds of information may do harm to (for example) the markets; to the legitimate business and financial interests of blameless companies and individuals; to the currency; to trust between the British and other governments; to international trust in the discretion of British politicians, diplomats, civil servants and others (by raising doubts about whether things communicated to such people in confidence will be made public); and to trust between ministers and officials. All this may be damaging, to a greater or lesser extent, to Britain’s national interests without in any way touching on “national security” or the unauthorised disclosure of information protected by the Official Secrets Act. Some of these kinds of disclosure may cause only trivial damage in each individual case but may have a much more serious cumulative effect if constantly repeated over a long period.  The assertion, much heard in recent days, that all government information other than information involving national security can safely be made public, and should be, is rubbish.

(2) Any assessment of the justification, or lack of it, for keeping some kinds of government information secret needs to take account of the virulently confrontational and antagonistic character of British politics, in which all oppositions of whatever political complexion, and the tabloid press which supports them, seize selectively and unscrupulously on any stick with which to beat the government, and vice versa. This means that the public disclosure of official advice to ministers which warns of possible negative consequences of a policy option later adopted as government policy is certain to be seized on by the opposition and parts of the media as ammunition for denouncing the policy in question — even if the original policy advice concluded that the predicted negative consequences would be outweighed by greater benefits. Publication of official advice would also make it much more difficult for ministers to overrule official advice and act contrary to officials’ recommendations, since the official advice, once published, would be used to undermine the policy actually adopted. The acceptability and authority of official policy would also be undermined by the knowledge that it had been adopted contrary to the recommendations of officials. This would put a heavy premium on acceptance of officials’ advice even when it runs contrary to ministers’ political judgement and instincts, thus seriously limiting the options available to elected ministers.

(3) The likelihood, or even a remote risk, that officials’ advice, or records of discussions between ministers or between ministers and officials leading up to a policy decision might be published, will cause records of such advice or discussions to be destroyed or, even worse, result in no such records being made. Failure to make and keep records of the reasons for policy decisions is inimical to good government and to the accountability of ministers, as the sofa style of government employed by Tony Blair demonstrated. Bad decisions are much likelier when there is no record of who said what in the discussions leading up to them or when officials have been excluded from the discussion for fear of damaging leaks. Future historians also have a claim on the proper procedures being followed, and these include proper records — many of which can’t safely be made public for the reasons in (1) and (2) above.

(4) Of course there’s a strong countervailing public interest in making public the maximum possible amount of information about government decision-making, including as far as possible the facts and figures on whose basis policy decisions are made; and in particular there’s a strong public interest in the exposure of government wrong-doing (cover-ups of illegal or corrupt activity, unwarranted lying or misrepresentation of facts, dirty tricks, deliberately misleading misinterpretation of statistics, and so forth). It’s right that the law currently offers conditional protection to an official whistle-blower who can demonstrate that his disclosures perform a public service of this kind, and that he has tried but failed to put matters right through official channels before resorting to his whistle:  in short, that his action is in the public interest. Even in these fairly restricted circumstances, however, the benefit to the public interest may need to be balanced against likely damage of the kind described above, for example if it involves the disclosure of classified information provided in confidence by a foreign government.

Finally, descending from the general to the particular, it’s worth noting that unauthorised disclosures of government-owned information designed to provide ammunition for the official opposition to fire at the government for party political advantage clearly doesn’t qualify for protection as being in the public interest, unless it can be shown to be the only available means of unmasking government wrong-doing of some kind. I suspect that Messrs Galley and Damian Green might have some difficulty in showing that this applies to the information that the former has, um, allegedly been “regularly” and “systematically” leaking to the latter over the past two years.


7 Responses

  1. Tim Weakley says:

    Brian: I largely agree with you, but would like just a little clarification.  Certainly secrets relating to national defence and to intelligence are — well, secrets; and certainly confidences should be respected and their substance protected.  However — see your (1) above — this leaves a large grey area between what should be kept under wraps, and what the public don’t know but could perhaps be entrusted without material damage to the fabric of the nation.  Would you care to illustrate your (1) with examples: cases (suitably edited) from your professional experience, perhaps, or plausible though possibly hypothetical scenarios?  I have the impression that British official secrets get preserved long past their period of usefulness, either to protect reputations or simply to avoid fuss.  For example, it did not emerge until the 1970s that in 1922 or thereabouts the Admiralty were making contingency plans for what appeared then to be a looming trade war with the USA (I don’t know what the RN was supposed to do or whether it was seriously thought that the Home Fleet might have to exchange salvoes with the US Atlantic Fleet!).  The Americans must have guessed at the time what we would be making plans for, and we would have expected them to, and so forth.  Anyway, it all blew over.  Perhaps the people in the know moved on, and the plans were filed and were simply forgotten for fifty years.

    Brian writes: Thanks, Tim. I agree that all British governments tend to be unnecessarily secretive and to err on the side of secrecy in borderline cases. Nevertheless there are plenty of categories of information unrelated to national security that can’t safely be made public. Examples might be: a record of a confidential conversation between a Ruritanian diplomat and a British diplomat in which the Ruritanian confides that his President will shortly be impeached on corruption charges so that it would be unsafe to proceed with negotiations for a major contract until the forthcoming crisis has blown itself out; or the record of a meeting with the Chief Executive of a British firm at which the CE outlines his company’s export strategy for the next five years (information that would be of great value to the company’s competitors); or the record of a meeting of ministers at which decisions are taken about the likely timing of a general election, subject to further discussion and to any relevant developments in the financial crisis; or the record of a meeting between the Chancellor of the Exchequer and the Governor of the Bank of England about likely future interest rate changes. I would regard non-publication of any of these as perfectly legitimate and in the public interest. Much important information, some of it vital for the policy-making process, simply wouldn’t be confided to government if its interlocutors had reason to fear that what they had said in strict confidence was likely to be made public: and officials’ advice to ministers ought not to be inhibited by the fear that its publication would provide ammunition (by selective quotation) for opposition parties and the tabloids to use against the government.

    The suggestion has been made in a private exchange of messages about leaks and the criteria for publication (or refusal to publish) that all government documents should be published (presumably on a giant government website, or on departmental websites) unless a reasoned decision has been taken in each specific case not to publish, in which case the reason for non-publication should somehow be made available. Something of the sort already applies to government information required by the courts, where it must be provided unless a minister signs a ‘public interest certificate’ showing reasons why the document concerned should not be disclosed to the court in the public interest. To apply such a system across the whole enormous range of government information would in my view prove very cumbersome — at what level would the decision on non-publication in each case be taken?, would there be some form of appeal against it?, and so forth; and the presumption of publication would risk forcing officials and ministers to resort to anodyne records of discussions, policy submissions, etc., with the sensitive bits either not recorded at all or else recorded in secret annexes kept off the files and the computers. I don’t think that would be in the public interest. As it is, Freedom of Information brings far more government information into the public domain than ever before: the problem is that there’s no way of knowing what specific documents to apply for. Perhaps a way could be found to make available a list showing what documents exist and on what subjects, so that anyone could apply for a document under FOI even if the application sometimes had to be refused (subject to the existing right of appeal to the information commissioner).

  2. Oliver Miles says:

    I like to use the analogy of selling a second-hand car. If I ask a thousand pounds but would accept five hundred that is a secret, which I am entitled to preserve. Everybody has secrets: governments, companies, citizens, husbands, mothers, children. Newspapers, which rant on about the “cult of secrecy” (for obvious reasons, but sometimes rightly), also have secrets. For example 12 years ago I was libelled by the Guardian and succeeded in getting them to print an apology. My solicitor suggested that he should get them to pay some of his costs. They agreed to do so on condition the matter was kept confidential (so I have been telling everyone who would listen ever since).
    Tim Weakley asks for an example. About 35 years ago (so the papers will now be in the public domain) I was head of the political section in the British High Commission in Cyprus. We were instructed by the FCO to work up some planning papers about scenarios including Greek or Turkish intervention in Cyprus, war in the region and so on. As a matter of routine we consulted our opposite numbers in the US Embassy. One of them remarked that he only wished they could do a similar planning exercise for the State Department. I asked why they didn’t; he said that it would be in the US press within weeks. Our system was less leaky than theirs; those were the days!I wonder if some civil servant somewhere is working up papers about the consquences of Scottish independence. I certainly hope so. Imagine the flap if they leaked!

    Brian writes: Thanks for this, Oliver. You helpfully illustrate two other categories of information, in addition to national security material, that will often need protection from publication: legal stuff that the courts, or parties to a lawsuit, require to be kept confidential; and contingency plans involving various scenarios where (a) great political damage would be done if it became known that the British government was planning for the contingencies concerned, and (b) it could be self-defeating to let all concerned know in advance how the government would be likely to react to an invasion, or a move in the UN, or a terrorist attack, or some dramatic political initiative by another government, or a British political party, or some other non-government body. I remember that when I was in the Foreign Office some years ago I commissioned some contingency planning against the possibility of a Security Council resolution to impose all-out sanctions against apartheid South Africa: the pros and cons of a UK veto of any such resolution, what action we could take to minimise the damage to UK interests if the resolution was adopted, our tactics in the Council, and so on. If these plans had been leaked it might well have precipitated a sanctions resolution as well as making it impossible for us to take much of the palliative action that we were envisaging. Transparency isn’t everything!

  3. Michael Hornsby says:

    Brian: I come rather late to the lively debate your blog has stimulated on the Damian Green kerfuffle. You will deduce rightly that I’m not as persuaded as some of my confrères in the Fourth Estate of the earth-shattering importance of the constitutional issues at stake. I suspect the media frenzy has as much to do with the absence just now of alternative and comparably spicy fare to feed on as anything else. Home Office “moles”, the hobnailed Old Bill trampling like a rogue policemen’s chorus from the Pirates of Penzance all over Magna Carta and ancient Parliamentary privileges, what the Serjeant of Arms did or did not tell the Speaker and should have asked the police etc etc – it is all so much more fun than the endlessly depressing financial news! That said, I found much to agree with in Stephen Grey’s sensible and balanced comments. Well, as a fellow journalist, I would, wouldn’t I? I particularly liked his point – or at least so I took it – about the desirability in a democratic society of a degree of “ambiguity” about the interpretation and enforcement of the law when it comes to the disclosure of information.  The organs of Government clearly have an interest in controlling the flow of information to the public (for all manner of reasons, some more defensible and less self-serving than others)  and MPs (especially Opposition ones) and the media equally plainly have an interest in in finding out (again for all manner of reasons, some more high-minded than others) as much as they can about what the organs of government are up to, which nearly always means prising out of those same bodies more information than left to themselves they would willingly disclose. This conflict of interest seems to me both unavoidable and on the whole entirelyt healthy in an open society.  If such vaguely-defined activities as  “inducing”, “encouraging” or “grooming” ( a bizarre new concept this) public officials to reveal more than they strictly ought to are to be treated as criminal offences then journalists would be breaking the law every time they take a civil servant out to lunch, and ply him or her with food and wine in the hope of eliciting an indiscretion. In a society that values the free exchange of opinion and information, this is an area where the rules are better left vague and the participants trusted to have the good sense to know where to draw the line.  Whistleblowers, however high-minded and unselfish their motives, know that they run a risk (and, as you say, there is some legal provision for a public interest defence); and it is not as though Government departments do not already possess huge powers of persuasion and pressure to bring to bear on talkative employees when they so wish (strong enough to drive the wretched Kelly to suicide in the dodgy intelligence dossier affair). In the particular case in question, the serial leaking by Mr Galley is rather unusual, it has to be said. His motives are unclear. Was he inserted into the Home Office as a “mole” as part of some long-planned Tory espionage scheme dreamt up by Damian Green and David Davis (as you seem to suggest)? That seems a little far-fetched, though if true the Tories would at least deserve an alpha plus for enterprise. Whatever the truth, Mr Galley is clearly, I should have thought, in breach of his Code of Service and employment contract. But no crime as such seems to have been committed. So why on earth were the police called in at all? This, as others have said, should have been a matter for an internal departmental inquiry and appropriate disciplinary procedures. I cannot imagine in the circumstances that an employment tribunal would regard Mr Galley’s dismissal as unfair. Jacqui Smith now belatedly tells us that the police were called in only after an internal inquiry failed, but this sounds more like a retrospective attempt to justify the resort to police action. Not a shred of evidence has yet been produced to demonstrate any real threat to “national security” warranting (that word again!) police investigation. All the leaks exposed blunders, bungling  and administrative incompetence within the Home Office (Sir David Normington is said to have started the leak inquiry after reports appeared in newspapers late last year suggesting that the Home Secretary had been involved in covering up the licensing of 5,000 illegal immigrants as security guards).  Embarrassing certainly, but not a threat to “national security” unless you interpret that term so loosely as to render it meaningless. An even more pertinent question is why on earth the MET thought this was a sensible investigation in which to become involved,  and still more why they went about it in such a laughably clodhopping fashion. A truly independent MET might have ventured to tell Sir David that they did not think plugging embarrassing leaks in the Government’s information controls was a proper use of police manpower, which would be better deployed protecting the general public from being mugged in the streets,  having their houses burgled and being blown up by terrorists. 

    Brian writes: Michael, of course I agree with a lot of what you say. I think though that in most cases there’s a clear enough distinction between (a) indiscretions (those lunches between hacks and bureaucrats), often deliberate — fairly frequently practised by me when in harness!, generally a useful by-product of the interface between media and government: and (b) leaks, where a public servant takes it upon him- or herself to override the view of elected and accountable ministers as to the balance of risk and benefit in making public a piece of sensitive information at a particular time. In the vast majority of such cases there’s no justification for such leaks, welcome though they may be to some of their recipients. This is by no means the first time that the police have been called in to investigate leaks, especially when they have become systematic and regular, spread over a period of years, are from a government department which more than almost any other holds a high proportion of extremely sensitive and highly classified information of potential use to a wide range of foreign intelligence services, terrorists, and criminals, as well as to opposition politicians and newspapermen. Getting in the cops will be urgently necessary in cases where the department’s security department has no way of knowing which documents have been leaked in addition to the few that have been used publicly and so are able to be identified. If there’s a systematic, regular leaker at work in a department such as the home office, you can’t rule out the possibility that this is a case of real-life espionage with the potential to damage national security as well as the national interest. All of which applies in spades to the Galley case. No government department has the internal investigatory resources to carry out the kind of detailed detective-work required in such a situation and which only the police and the Security Service can undertake. Jacqui Smith, not my most admired politician, has explained all this fairly fully, earning herself little but contempt in the process. She deserves a more attentive hearing.

  4. robin says:

    I am a little saddened by the reflection that your voluminous output on this subject (entirely sensible as it is in principle) seems to corral you, if you are not careful, in the same chattering Westminster ghetto as all the over-excited media maniacs and pompous self-important politicians banging on and on about an affair of extremely minor importance which is of absolutely no interest to 99% of the GBP – including me. If I see another picture in the Times of that fat Glaswegian oaf poncing about in comic-opera costume, or endure another paragraph of D. Cameron delicately trying to discover what is the winning side, or sit through another bout of Harriet Harman trying not to say whether she has confidence in this or that – I shall go into a prolonged period of news-media purdah. Can you not turn the searchlight of your formidable intelligence on something of consequence to all of us at this difficult time – like whether there are fairies at the bottom of the garden, or the existence of Father Christmas?

    Brian writes: I agree that all the Westminster mummery about the Speaker and the Serjeant at Arms and the fuzz searching some Tory’s filing cabinet is of no interest or concern to 98 per cent of the population, and shouldn’t be of much more interest to the other 2 per cent. But — I suppose because of the way I earned my bread for 40-odd years — I happen to think that the question of leaks of government-owned information by treacherous public servants is a good deal more important: not necessarily the specific leaks received for two years by the formerly obscure Mr Green, although we don’t yet know whether any of them will turn out to have been important, but because the ability of any government to control its own information flows is important to the relationship between ministers and officials, and hence to the quality of the government that we all get. And I submit that that ought to be of concern to 100 per cent of us, even though unfortunately it evidently isn’t.

    I don’t think it’s really necessary for me to blog about the existence of Father Christmas, as you helpfully suggest I might. It’s surely beyond dispute that Father Christmas exists: there have been numerous independent sightings of Him, especially in late December; if He didn’t exist, how would the idea of His existence have come about?; how else do you account for the filling of all those stockings once a year? it can’t be an accident that so many people just know in their hearts that he exists — especially innocent children who can hardly all have been brainwashed in an identical way to believe in Him; belief in Him has enriched our culture down the ages and helped to promote the widespread purchase of Christmas stockings for gifts; many sad and lonely people derive comfort from the knowledge of His existence; if Father Christmas didn’t exist, what would be the purpose of chimneys?; the most brilliant scientists all over the world have still not been able to prove that He doesn’t exist; belief that He doesn’t exist is just as irrational, dogmatic and faith-based as the belief that He does; and if He didn’t exist, who can have written all those letters to children post-marked ‘Greenland’ and signed ‘Father Christmas’? We all believe thousands of things for which there is far less evidence that this.

  5. Carl Lundquist/LA says:

    Forgive me for reliving an older topic Brian but an American parallel to your Green brouhaha just arose from the past over here  —  Deep Throat, William Mark Felt died on Dec 18 at the age of 95.   Felt’s informing on Nixon’s Administration and CREEP was critical to breaking the Watergate conspiracy and demolishing the Nixon presidency.   Felt was a man in a most sensitive civil service position, Deputy Director of the FBI.  His motives in informing were suspect — he had been passed over for promotion to Director by Nixon’s choice of the outsider, Pat Gray, for the position.   His subsequent career was far from spotless — he was convicted of running illegal ‘bag job’ warrant-less searches against the Weatherman terror group.   He thereby bollixed up the Weatherman prosecutions and narrowly missed jail himself.  (Reagan pardoned him.)Nevertheless, Felt performed a great service to his nation in blowing the whistle on the Watergate conspiracy to Woodward and Bernstein.   It may be wrong to say he preserved American democracy but it would not be all that far wrong.Our civil servants and political officers all swear a similar oath to protect, preserve, and defend the Constitution of the United States.   They owe no loyalty to any office holder, only to law.   Tho I have no real knowledge, I suspect your civil servants have a similar oath to uphold.   Secrets not protected by law have no real privilege.  If an administration wishes to conceal lie to the public about such matters, they should live with the fear of reading it in the morning news.   This is desirable in keeping a government from becoming its own criminal conspiracy.   Controlling the flow of information is a major concern in tyranny.Whistle blowers may not be pleasant folks but like vultures they are essential in keeping their environment clean.   I would say that the bureaucrat in your controversy may be a twerp, but he is a valuable sort of twerp. 

    Brian writes: Carl, as usual you make a very interesting point. Obviously Felt performed an invaluable service as Deep Throat in helping Woodward and Bernstein to expose the wrong-doing of the Nixon régime, or some of it. But this surely prompts the question whether he chose the right and best way of helping to expose wrong-doing when he opted for a series of clandestine meetings with two journalists to get his information into the public domain. In Britain we have an established procedure for a civil servant who has identified, or thinks he has identified, malpractices on the part of the government to take his concerns to a higher level in the official hierarchy, and if still not satisfied, to the independent Civil Service Commission, which (if the Commissioners agree) will take action with the police, the Director of Public Prosecutions, or whatever other independent authority is appropriate. If that still doesn’t produce the desired result, the civil servant concerned has a duty to resign from the service and only then make his concerns public in whatever way he thinks right. What seems seriously open to abuse is when a civil servant takes it upon himself to substitute his own private judgement about what should be made public and what should not for the judgement and decision of elected ministers (and remember that almost all our ministers, unlike your Cabinet members, are themselves elected, which civil servants are not).

    Another relevant difference is that we have a long tradition, anyway since the Northcote-Trevelyan reforms of 1854, of political neutrality in our civil service, right up to the top; when a different party comes into office after an election, the top ranks of the civil service remain in place, ready to serve their new masters as loyally and with the same discretion as they did their predecessors. (At least that was our tradition until Mrs Thatcher and Tony Blair partly undermined it by bringing in party loyalists as senior advisers and even as executive officials.) Civil servants don’t swear a specific oath but they are bound by a Code of Conduct which requires them to subordinate their private political views to the policies and decisions of their political masters, a fundamental requirement of democracy. The home office official who has apparently been feeding sensitive documents to a Conservative opposition MP and shadow minister over a period of at least two years seems clearly to have been doing so as a Conservative Party activist concerned to provide a Conservative front-bench MP with ammunition for use against the government, not to expose wrong-doing. That marks a major difference between himself and Deep Throat.

    Unfortunately, because the police investigating the home office mole’s leaks appear to have acted with disproportionate ham-fistedness in the way they searched the MP’s parliamentary office, or at any rate are widely thought to have done so, it looks as if no action will be taken to charge either the MP or the mole with any offence, under either common law or statute law. The mole will presumably be dismissed from the civil service (perhaps to be employed thereafter by the Conservative Party?) and the MP will claim, quite wrongly, to have been vindicated.

    The Guardian of 16 December published an excellent statement of the position on whistle-blowing by the First (i.e. chief) Civil Service Commissioner, which really says it all: obligatory reading, in my view. It’s here. I’m sad to read some of the liverish comments appended to it on the Guardian website by people whose violent antipathy to politicians, ministers, and the government (either the Labour government or any government) seems wholly out of proportion to reality. It’s easy to sneer at these traditions but we’d be in real trouble if they disappeared or became ineffective through disuse and abuse.

  6. David says:

    I had a feeling someone would bring up Mark Felt who, timing-wise, died very conveniently. Interestingly, Richard Nixon thought Felt was Deep Throat at the time. It’s really too bad Nixon and his cohorts, including H. Kissinger, thought they could fight criminality with criminality.  (I’m thinking here of the activities of the “Plumbers”, not what the DNC was legitimately up to in its Watergate suite.) It’s like the Argy military in the late ’70s believing they could combat terrorism with terrorist methods. Its interrogation methods suggest the Bush administration believes the same.

    For what it’s worth, I think your point:
    “this surely prompts the question whether [Felt] chose the right and best way of helping to expose wrong-doing when he opted for a series of clandestine meetings with two journalists to get his information into the public domain”
    is sound. For me, Felt’s motives remain suspect.

  7. Carl Lundquist/LA says:

    >>But this surely prompts the question whether he chose the right and best way of helping to expose wrong-doing when he opted for a series of clandestine meetings with two journalists to get his information into the public domain.<<

    It was the only way, I fear, with a conspiracy centered in the Whitehouse and presided over by the President himself.  Nowadays, the special prosecutor has entered the picture, but he is a creature of Congress and Congress will act in a political manner — always.   Other than that, what?  Remember all our cabinet and subcabinet officers are presidential appointees, they have no independent electoral status like your ministers.   Felt’s acts were taken in the light of, to him, fearful consequences.  He had no base of support in the Executive branch, and problematic support in Congress.His motives are irrelevant, only his information’s veracity counted.  Informers are rarely driven by pure motivations, and, in fact, are rarely nice people, but as any police detective will tell you, damn few crimes would be solved without them. 

    I am perfectly willing to believe that Felt ratted out Nixon because of resentment over being passed over for the FBI directorship.  So what.  His resentment worked for the nation.I guess our governmental ethics operate differently:

    In Britain we have an established procedure for a civil servant who has identified, or thinks he has identified, malpractices on the part of the government to take his concerns to a higher level in the official hierarchy, and if still not satisfied, to the independent Civil Service Commission, which (if the Commissioners agree) will take action with the police, the Director of Public Prosecutions, or whatever other independent authority is appropriate. If that still doesn’t produce the desired result, the civil servant concerned has a duty to resign from the service and only then make his concerns public in whatever way he thinks right. What seems seriously open to abuse is when a civil servant takes it upon himself to substitute his own private judgement about what should be made public and what should not for the judgement and decision of elected ministers (and remember that almost all our ministers, unlike your Cabinet members, are themselves elected, which civil servants are not).

    Brian writes: Thanks, Carl. I can’t argue with that. (The Guardian has an interesting obituary of Felt today: see http://bit.ly/byG0. I hadn’t realised before reading it that there was a kind of collective of several FBI officers, including Felt, who met regularly to decide what they could safely leak! The quotations from Nixon tapes are very damning.)

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