The Tory MP and his Home Office spy: part 3
As yesterday’s statement by the Director of Public Prosecutions said with some emphasis, the decision not to prosecute Damian Green, the Conservative front-bench MP who for two years has been receiving official documents stolen and clandestinely supplied to him by a mole in the home secretary’s private office, doesn’t mean that no offence has been committed. The Guardian reported on 17 April 2009, —
In his statement yesterday the DPP [Keir Starmer QC] said although the evidence gathered did not meet the threshold necessary for criminal proceedings there was evidence upon which a jury could conclude that Green “aided or abetted” what was a clear breach of public duties by Galley, in leaking the information. Starmer said the breach of duty did cause “damage” to the proper functioning of the Home Office and that the unauthorised leaking of restricted and/or confidential information was not beyond the reach of the criminal law.
Given that a pattern of leaks had been established by the permanent secretary of the Home Office, Sir David Normington, Starmer said: “It was inevitable that a police investigation would follow.”
On the same day, the Guardian’s editorial comment on Mr Galley, the home office mole who has admitted supplying most (but, interestingly, not all) of the stolen information to Mr Green, is also worth pondering:
Ms Smith and her top officials had been angered by the steady stream of leaks which eventually turned out to be flowing through Mr Green. They had a right to be. The young official who set it flowing, Christopher Galley, seems to have had motivations that went beyond any desire to expose specific wrongdoings; he has a track record of ambition within the Conservative party. Aside from ministerial blushes, the chief effect of much of the material he released was to increase anxiety about immigration. With access to an extraordinary range of sensitive papers, he had – as the director of public prosecutions said yesterday – the potential to damage good governance.
I have written about this affair in two earlier posts, and in responses to comments on them (here and here), and there’s no need to repeat all that now: nothing that has happened since causes me to change my views as expressed then. But a couple of points are worth reflecting on before we are all deafened by the crowing of Damian Green in his understandable but entirely bogus claim to have been ‘vindicated’: bogus, because the DPP’s decision in no way confirms Green’s self-serving pretence that in maintaining contact over a long period of time with a spy close to the heart of government in order to obtain stolen information with which to attack it, he was “only doing his job”.
First, it’s been instructive to see how the combined forces of two powerful vested interests have been brought to bear to protect Mr Green (and, incidentally, his home office mole). Opposition MPs and disaffected government back-benchers share a vested interest with journalists and their newspapers and magazines in encouraging unauthorised and generally illegal “leaks” of information that the government of the day for whatever reason doesn’t want to make public, or doesn’t want to make public at that particular moment. There’s an important distinction here between (1) leaks designed to expose corrupt or otherwise illegal and deceitful behaviour by ministers, and (2) leaks designed purely to embarrass the government and benefit its critics. Even the former kind can be justified only if the procedures laid down for reporting such illicit behaviour by government have been followed; and if they have, the law now affords considerable protection to the whistle-blower. The latter kind of leak can never be justified: it constitutes a flagrant breach of trust between the government and its paid employee, a betrayal of the loyalty owed by an appointed official to his or her elected minister, and an action liable, in the DPP’s words, to damage the proper functioning of the government in general and of the department whose information has been stolen in particular. Contrary to Mr Green’s protestations, his mole’s stolen documents appear from the evidence now available to have fallen into the latter (unjustified) category, not the first.
Secondly, an overlapping vested interest, combined with the vested interest in encouraging and seeking to legitimise leaks, helped to obscure the real issue at stake in Damian Green’s behaviour — namely, the right and duty of government to protect its own information from unauthorised and untimely publication. The second vested interest was that of members of parliament in protecting themselves from stringent investigation by the police. Even though MPs had to acknowledge that they could not invoke parliamentary privilege to claim immunity from investigation of a possible crime, they nevertheless raised an enormous storm of protest over the arrest of Mr Green and the search of his papers and computers in his parliamentary office. On the face of it, both of these were probably justified. The police were perfectly properly seeking to establish what information had been clandestinely leaked to Mr Green: whether any of it had been classified Secret (or above), whether any of it touched on matters of national security, and to what extent, if any, Mr Green had actively or implicitly encouraged his mole to continue his acts of treachery over at least two years. If any security-sensitive and highly classified information had been passed to Mr Green, there would have been an obvious risk that it would be destroyed had Mr Green received advance warning of the impending search. That was the unacceptable risk of inviting Mr Green down to the station for a polite chat over a coffee instead of formally arresting him. As for the search of his office files and computers, the police had not sought or obtained an ordinary search warrant, but they did have the explicit permission of the Serjeant at Arms, the senior parliamentary official in charge of security, for the search, and they presumably knew that the Speaker had been either informed or consulted in advance and that he had raised no objection. It seems obvious that this, in the special circumstances of a police search inside the Palace of Westminster, was a much more authoritative form of permit than an ordinary search warrant would have been.
But whatever the rights and wrongs of the arrest and the search, the unfortunate fact remains that the real issue was almost completely drowned out by the hullabaloo over the arrest of Green and the search of his offices, a hullabaloo raised by MPs outraged that one of their number, suspected of having committed an offence, had been treated by the police in exactly the same way as any member of the public would have been treated in similar circumstances. (It’s worth bearing in mind, too, the DPP’s explicit judgement that given the series of leaks over such a long period, it was “inevitable” that the police should have been called in.)
Against such a background of clamour by double vested interests, vociferously backed by most of the country’s parliamentarians and almost the whole of the country’s press, it was entirely predictable (and widely predicted) that the Director of Public Prosecutions should decide not to go ahead with charges against Damian Green or his mole. But it’s unfortunate for the government, and potentially damaging to the cause of good government, that the DPP’s decision is being almost universally interpreted as a leakers’ charter. Henceforth any minor (or senior) official with a personal grudge against his minister, or motivated by his personal political views or by a desire for either the excitement of clandestine activity (“I’m more important than I might seem”), or for fame or even fortune, will feel free to decide for himself what official information should be passed over to the public domain, in what form and on what timing, regardless of the considered policy and views of elected ministers. Appointed officials will believe themselves quite free to substitute their own judgement for those of their elected ministers as to what should be given to the government’s political adversaries or to the national press, and what should be withheld.
If and when Mr Green and his front-bench colleagues find themselves sitting on the government benches in, probably, just about a year’s time, they might begin to realise what they have done. But you may be sure that if so, they won’t admit it.
Post-script: Many will disagree with some, or all, of the judgements made in this post. Most of these have been exhaustively debated in comments on my two earlier posts on the subject, cited (with links) above; and I have responded to most of them there. There’s little or no point in repeating those debates here. Dissenters can be assumed to persist in their dissent. Comments on genuinely new aspects of the case are, however, most welcome, as always.