Thursday, 27 November 2008

Is there a plumber in the House?

The truth is a funny old thing. Too often people confuse the truth with what they believe to be correct. For example, in the question "is it true that government spending can boost the economy and help alleviate the effects of recession?" the use of "true" has nothing to do with objective truth it is just an alternative way of asking "do you believe that ..." Truth is something which can be measured and does not depend on opinion or belief. Is it true that the Queen is 76 years old? No it is not, she is 82, we can tell that by referring to irrefutable sources evidencing her date of birth. Her age is a matter of fact so a statement about it can be tested and seen to be either true or untrue.

A steadfast refusal to accept as true something which can be shown to be untrue is at the heart of social discourse in the Western world. Much of how we deal with other people is based on a belief that they have not misled us by stating something to be true when it is not. That belief lies behind personal relationships as well as business transactions and it is also important in politics. People throw around the accusation that politicians constantly tell lies when usually all that has happened is that they have sought to put a good gloss on events. Sometimes their "spinning" of events stretches credulity without involving the assertion of an untruth and they lose credibility for overstating their case rather than because they actually told a lie. Having said that there are occasions when politicians do tell deliberate lies, indeed my belief is that the current government does so more than any previous government in my lifetime. There are also occasions when they tell a half-truth by saying something which is not literally untrue but which only shows part of the picture and thereby gives a deliberately false impression.

Because their perception of the truthfulness of particular politicians is an important factor for many when deciding how to cast their vote, the exposure of lies and half-truths is an important part of the democratic process. Today we learned of a most extraordinary event. An opposition MP has been arrested and his home and offices have been searched by the police. It is nothing to do with drug dealing, kiddy-fiddling, bank robbery or planning to blow up Heathrow airport, it is because he is thought to have been provided with information by civil servants. As I understand it from the brief reports available so far the information in questions is of three types: information which contradicted what government ministers had asserted to be true, information which put a ministerial statement in context and showed it to be misleading and information which put the government in a poor light and had not been released by the government itself.

This arrest is extraordinary in every sense of that word. As far as I am aware it is the first time an opposition MP has been treated in this way despite the receipt and use of leaked information being part of the normal cut and thrust of politics in this country and being something the current government engaged in habitually when it was in opposition. More than that it seeks to prevent contradiction of the government even when that contradiction would bring out the truth.

There are 646 MPs of which only 290 do not belong to the party in government. For all its faults and inadequacies the House of Commons is the one place where the government can be forced to justify its actions. The idea that an opposition MP who receives information disclosing governmental jiggery-pokery should be intimidated from using that information for fear of arrest is deeply worrying. One could put that concern in colourful terms by talking of a descent into dictatorship and Zimbabwe-esque intimidation of opposition but I prefer to look at it in terms of how it impacts on practical political debate. If, for example, a minister announces draconian penalties against employers who engage illegal immigrants it is for Parliament to decide whether that is a sufficiently fair and balanced measure to be part of English law. For it to be known that the Home Office itself has employed many illegal immigrants in the recent past helps to put the proposed new law in context. If a huge government department with direct access to immigration data cannot avoid engaging illegal immigrants it might be thought inappropriate to punish small businesses for doing the same thing inadvertently. It would be a very brave opposition MP who uses a copy of a leaked internal Home Office memo on such a subject knowing he might be arrested for doing so. The inevitable result is that laws will be passed without full scrutiny, a course which will be of no benefit because many of those laws will contain fundamental flaws as a result of facts and debate being suppressed.

The position of a civil servant who leaks such a document is different. No doubt his contract of employment prevents him from disclosing anything to anybody other than in the performance of his duties and he would be liable to dismissal for breaching such an embargo. To bring the criminal law into play is, in the vast majority of cases, neither necessary nor appropriate. Sack him, take out an injunction so he makes further revelations under risk of being in contempt of court and leave it at that, prosecution adds nothing.

To use the criminal law against the recipient of leaked information when that recipient has a duty to hold the government to account is to take a very peculiar step. I have noted before that laws often conflict - the right to march in protest can be inconsistent with the duty not to obstruct the highway: something has to give because the two laws cannot both be applied, either the march is allowed in which case the highway is obstructed or the highway is kept clear in which case the right to protest is denied. You cannot have both at the same time. Equally the duty to hold the government to account is inconsistent with a law preventing the use of leaked information by an MP in the House of Commons (I doubt that there is any such law but it seems to be presumed that there is and that it justifies the arrest). Which is to prevail? In the normal run of things any law which would obstruct the proper conduct of proceedings in Parliament must give way because full and open Parliamentary debate is of fundamental importance to our system of law-making. That is why MPs cannot be sued for defamation or prosecuted for contempt of court by reason of things they say in the House of Commons chamber. That principle must mean that no MP should be at risk of prosecution for using any information he has whether it was in the public domain or leaked to him.

It will be interesting to see how the government plays this incident. The sensible thing for them to do is distance themselves from it and let the law take its course but their instinct will be to attack. To do so would almost certainly backfire on them because more and more questions will be asked about why they did not disclose the leaked information. The next week or two could prove very entertaining.

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