Saturday, 29 November 2008

Leaky ignorance is bliss

The Damian Green affair has become more and more curious as the day has progressed. For anyone who doesn't know, Mr Green is the opposition MP arrested yesterday following his receipt of leaked documents from the Home Office which he then made public. Both the leaks themselves and his use of the leaked information occurred some time ago. There are three aspects of the affair which cause my greying eyebrows to head skywards.

Before Mr Green was arrested a number of people were informed by the police of their intention to make an arrest. It is not yet clear whether the identity of the person to be arrested was disclosed but the fact that he was a senior opposition spokesman appears to have been made known. The people informed include the Leader of the Opposition, the Mayor of London and the Speaker of the House of Commons. It later became known that the chief civil servant at the Home Office was also informed. Both the Prime Minister and the Home Secretary have given the impression that they did not know of the intention to arrest an opposition spokesman, a position supported by the police.

There is a curious contradiction in what the police did. I can understand that they might see fit to inform the Leader of the Opposition because the MP in question is a member of his party. I can also understand the Speaker being informed because the intention was not just to arrest Mr Green but also to search his offices, including his office in the House of Commons. The Speaker has overall responsibility for the conduct of business in the House and has a legitimate interest in knowing that an office in the building for which he is responsible is to be searched. But why include the Mayor? The Mayor, Boris Johnson, is a senior member of the opposition party but he has no party responsibilities. He is the chairman of the body which oversees the work of the Metropolitan police but his responsibility for that police force is secondary to that of the Home Secretary, she is the government minister with overall responsibility for all police forces in the country. It makes no sense to tell someone lower down the chain but not tell the boss.

The question arises why the police should tell anyone at all, after all if they are going to arrest Joe Ordinary they wouldn't find it necessary to tell his employer or wife they would just do it. The answer is that it is done as a matter of courtesy where the action the police propose to take would or could impact on public responsibilities and raise questions senior political leaders are likely to be required to answer. Informing politicians of an impending arrest does not involve seeking their permission or giving them an opportunity to debate the matter, it is a one-way street: "this is what we are planning to do, we inform you out of courtesy, thank you and good afternoon."

If there is one senior politician in the firing line for questions about such a politically sensitive arrest it is the Home Secretary. She has ultimate political responsibility for the way the police operate in this country and questions about the arrest of a senior opposition MP are directly within her brief. It is curious indeed that she was kept out of the loop. It is reported that her most senior civil servant was informed that an arrest was to be made, what is not known is whether the police chose to inform him rather than the Home Secretary or dealt with him because she was unavailable. Either way it should make no difference because his responsibility is to report to the head of department on something so important. No doubt we will discover over the next few days whether he took any step to tell the Home Secretary, it would be utterly bizarre if he did not. She would get to know of the arrest very shortly after it happened and, no doubt, would have a few choice words if her chief underling had kept it secret. It is hard to believe she did not learn about it within a few minutes of the police informing him. If that is so, why deny knowledge of it as she has, why not say "I was not informed personally by the police but my department was informed and that news was given to me at [insert time]"?

The second curious feature is that the police thought it necessary to arrest Mr Green. We know that a junior civil servant was arrested almost two weeks ago on suspicion of having leaked information and it is reasonable to infer that Mr Green's name came up during the investigation as the recipient of that information. He could be questioned about it without being arrested. That questioning would almost certainly have to be under caution and in the presence of appropriate legal advisers, but arrest seems a very heavy-handed step to take. Perhaps he was arrested so that the police would be entitled to search his homes and offices but he could be asked for permission for a search to take place and informed that he will be arrested if he refused permission so that a search could then be made anyway. To jump the gun by arresting first seems a peculiar way to go about things, they had no reason to believe he would adopt Enron administrative practices and have a bevy of staff on hand to shred documents at the first sniff of investigation. After all, there has been nothing secret or underhand in his use of leaked information, he has put it into the public domain in the course of legitimate political debate just as politicians of all parties have for as long as anyone can remember.

My third concern is about the acquiescence of the Speaker to a search of an MP's office. Although the BBC report I link to above says that the Speaker was informed of the police's intention to arrest an MP I have heard it said that the Serjeant at Arms was the person informed of their intention to conduct a search on Parliamentary premises and raised no objection. I find this a quite extraordinary scenario. The police have no right to search anywhere in the Palace of Westminster without the permission of the Speaker. Even a search warrant issued by a court is merely a request for permission to search if the premises are part of the Parliamentary estate. Although I did not hear the interview I have read that Tony Benn said at lunchtime that the arrest and search were a contempt of Parliament. I am not sure I would go as far as that because there can be no contempt if permission is given, to my mind the important question is why permission was given.

In the days when the Serjeant at Arms was a hairy-arsed retired Brigadier any hint that the police wanted to conduct a search would have been met with a brisk response, probably "bugger off, raise the matter formally with the Speaker and he will consult the House." Today, as the BBC reports, the response is "There is a process to be followed and that was followed." This might just be unfortunate wording but it gives the impression that the Speaker overlooked that Parliament has the right to regulate itself in every way, it is its own court. That is why there is such a thing as contempt of Parliament, it is also why MPs are immune from legal action over things said in Parliament. That does not mean that it is above the law, merely that, as the supreme law making body, it has the right to protect its position of independence from outside influences.

To search an MP's office is a highly significant act. Not only will he have confidential details of constituents and correspondence of a sensitive and private nature from those he represents, but he might also have documents concerning potential future policy (including policy affecting the police). Overriding the confidentiality of such things requires a greater justification than "There is a process to be followed and that was followed." In my view the Speaker should insist that no search is conducted unless the police can show an urgent need either because certain individual(s) are at physical risk or national security is at risk. Anything less cannot outweigh the need to maintain strict confidentiality for the working papers of MPs, no matter what we think of the MPs in question.

Some have speculated that this whole episode is a government driven attempt to silence opposition. I would not put such an approach beyond our hopeless and dishonest Prime Minister but there is no evidence of it, yet. Others have suggested it was an act of revenge against the Conservative Party by the outgoing Metropolitan Police Commissioner. Again, that is not beyond the bounds of possibility but there is no evidence of it, yet. Others still have hinted at it being an attempt by the police to undermine Parliament. This one, I think, I can safely dismiss as absurd.

The true picture will emerge in time. We will find out exactly what prompted the investigation, who took the decision to arrest Mr Green and why the Home Secretary was not informed at the same time as the others I have mentioned. With any luck politicians will close ranks and assert their right to use leaked information because those in opposition need to do it now and those in government will need to do it later.

There is one possibility no one seems to have addressed yet. As I understand it Mr Green was arrested on suspicion of two offences: (i) conspiring to commit misconduct in a public office and (ii) aiding and abetting, counselling or procuring misconduct in a public office. It seems that the only "misconduct in a public office" was that of the person who leaked information to him. Conspiracy to commit that offence would require more than just receiving leaked information, conspiracy requires a plan hatched by two or more people. Aiding and abetting an offence can happen without any positive act of encouragement but counselling and procuring both require you to do something to encourage the crime. Merely receiving leaked documents would not, I think, be an offence and their use in Parliament cannot be an offence. Taking steps to encourage leaks, paying for the information when it is offered or actively planning a method by which confidential documents will be disclosed would be in a different category. I know not whether Mr Green did any such thing and I presume he did not because the presumption of innocence is hugely important. But if he did, the case would have a rather different complexion. It would also take on a different political dimension because the question would arise whether others have done the same, including those in government.

What if it is asserted that Mr Green took active steps to encourage the disclosure of documents not in the public domain? Dare the government let the case proceed and face investigation into their own conduct when in opposition? In these times when domestic burglary gets a police caution (it was an unappealable minimum sentence of three years in the late 1980s), a getaway driver for a gang of armed robbers can get community service (five years), armed robbers themselves can get three or four years (ten if they were lucky even in 1990), is there anything to fear from investigations? Of course there is because it would end careers. If the police decide to proceed it will be interesting to see whether the Attorney General intervenes and uses her exceptional power to stop the prosecution. She would be right to do so but I hope it never gets that far.

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