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.