I’m concerned that press and political comment on the Damian Green affair is ignoring the situation of the civil servant who’s also been arrested – and thereby missing the really important point behind all this.
It’s morally inconsistent and self-serving for politicians – like Denis MacShane on Today this morning – to suggest that the law must come down heavily to stop civil servants leaking and enforce their “loyalty” (to whom?), but that if in spite of that they do leak to politicians, those politicians should be treated more favourably than other citizens and kept safe from all harm. That position in no ways serves the public or openness.
The real issue here is what should be the content of the law, which should apply equally to ministers, civil servants, MPs and journalists alike. Do we want a system in which the police can arrest people for having or leaking non-security-related information the government doesn’t want disclosed, simply because it’d be embarrassing? Or do we want the law to protect disclosures genuinely made in the public interest? That’s the real issue here.
I disagree with you that the leaker and the leak-recipient should be treated similarly.
The civil service leaker is in breach of contractual and moral obligations owed to his employer. I see no problem with “misconduct in public office” being a crime, provided that (as I understand is the case) there is a public interest defence.
So leaking documents which it is in the public interest to reveal (e.g. if they reveal corruption, or reveal the government to have been dishonest) will not be an offence. But there needs to be a pretty clear public interest to justify over-riding the official’s duty to preserve confidentiality. In the present case, the civil servant would definitely struggle to succeed on a public interest defence for some of the leaks.
The position of the third party recipient of the leak is not the same. Unless there are national security concerns, it is demanding too much of him to suggest that he should be obliged to return the material or not use it. It is not the job of an opposition MP to help the government to preserve the confidentiality of its processes.
And I do think that there is a powerful case for people such as journalists or MPs having protections not available to others. The reason is their essential role in the democratic process. As I understand it, journalists do have special protection under the Human Rights Convention.
Disagree away, Anonymous! But I don’t think your position adds up. The only reason there is a powerful case for journalists or MPs having protection in relation to leaked information, is that it’s in the public interest that such information not be kept from the public. All academic, and no protection at all, if you stop he information upstream before it gets to the MP or journalist.
Oh, and others who breach contractual and moral obligations to their employers get sacked, not arrested.