A couple of days ago I was interviewed by Natasha Phillips of Divorce Manual – we spoke for an hour about, gosh, lots of things: my legal career, how I got interested in human rights, the Wright judicial review case on the system for protecting vulnerable adults, Lord Lester’s Cohabitation Bill, Rowan Williams, Lord Phillips and sharia, plus my favourite human right. It was a lot of fun.
You can listen to the podcast here.
Charon QC interviewed me today about the Damian Green affair: we spoke about how the leak investigation began, the DPP’s decision not to prosecute, Jacqui Smith’s responsibility and vulnerability and the questions she needs to answer if she’s to show she did not allow the police to be used for political ends.
Listen to the podcast here.
I’ve consistently argued that ministers, not the police, should be the focus of scrutiny in the Greengate/Galleygate affair. The initial controversy was about the arrest of Damian Green, and search of his office: that’s of course the first any of us outside the Whitehall/Scotland Yard loop knew of the leak investigation – and it was shocking – but the police followed the correct legal procedure in asking persmission to enter the office, and, having been given permission, had no legal grounds to seek a warrant. The entire argument about warrants was and remains a diversion. Yes, there may have been grounds for some concern about the police’s videotaping the search without consent – but even that doesn’t worry me excessively. They ought to ask consent, but videoing searches in principle protects the citizen. I hope one day all police searches will be thoroughly recorded in sound and vision.
But Damian Green’s revelations over the last day or two do make me think again. On Thursday night he told us the police spoke to him in ominous terms about the potential for a life sentence in connection with the leaks he received; and now he’s told the Times that the police looked through his e-mails and digital records using the search words “Shami Chakrabarti”. His full interview is here.
I’ve sympathy for the Greens: it must be awful to have your home turned over like that, and personal things rifled through and photographed. My sympathy is tempered a little, though, by the realisation that this is simply what police searches are like, and that other innocent people, who are not MPs and do not have access to the media to air their complaints, suffer much the same every week. This experience may at least wake MPs up to the reality of intrusive state power and what it means for ordinary people. As for the reference to a life sentence: as Damian Green said, this was absurd. But it was also oppressive and bullying, and reminds us DCI Gene Hunt is not just a fantasy.
The most serious issue here thought is the fishing for “dirt” on Shami Chakrabarti. Why do this? She doesn’t take public stances on rising crime or immigration policy – at least, not about the kind of failings Damian Green wanted to expose and which most of the leaks concerned. So the police presumably thought “Leak Four”, mentioned in para. 16 of the DPP’s statement, might be connected to her. This was the leak to the Sunday Times of a list drawn up by government whips of Labour MPs likely to rebel on 42 day detention for terror suspects – obviously an issue Chakrabarti has campaigned on vigorously.
Of course it may be simply that Chakrabarti is a hate figure among the police: I can well imagine her photograph displayed proudly on canteen dartboards up and down the land. The Met may have needed no political prompting at all to go after someone some of them might enjoy arresting and searching. But all these revelations means that police conduct is an issue, after all. It’s perfectly obvious that the police should never have been investigating “Leak Four” in the first place – and they must account for their decision to investigate Damian Green in relation to it, and explain on what basis they investigated Shami Chakrabarti. Last week’s quick Quick resignation may mean there’s no police figure on whom pressure can now mount. Perhaps we need to insist he disresign, so we can call for his sacking.
The main issue, though, remains the responsibility of ministers – they must show a good reason for calling the police in on that leak, and satisfy us they weren’t using the police against Shami Chakrabarti as well as Damian Green. So you can add to my list of questions Jacqui Smith needs to answer, in the statement she needs to make in the Commons next week, or in subsequent questions, for which ample time must be allowed.
—Why did Jacqui Smith agree that “Leak Four” in particular required the attention of the police, and allow them to be called in to investigate it? What made her think this leak was part of a pattern that might lead to security breaches? Did anyone in Whitehall at any stage suspect leaks were being made to Liberty, or any other prominent opponent of the 42 days policy, for instance David Davis MP – and did ministers know such a link was suspected?
This post first appeared at The Wardman Wire.
I was interviewed on the Damian Green affair for today’s 5 Live morning reports, which went out at the crack of dawn: you can listen here for the next week. The Damian Green item starts at 15’30”.
I now have twelve minutes of minifame left.
The more you reflect on Greengate/Galleygate, the more serious it seems. The charge laid by Damian Green is that ministers have acted in an authoritarian manner; understandably from his point of view he sees that as illustrating this government’s instincts.
The way I’d put it is this: Jacqui Smith is under suspicion of having used the police as a political tool; of having allowed her own anger and frustration at the embarrassment the leaks caused her to cloud her judgment, so that she authorised the involvement of police for a wholly wrong purpose – to stop that embarrassment. I can’t imagine a more serious charge against a Home Secretary. I don’t like suggestions we live in a “police state”: I think that kind of claim is always over the top. But vigilance must be eternal, and, if it means anything, it means making sure ministers do not use the police for their own political interests.
So Jacqui Smith is now on the rack. The onus is on her to acquit herself of these suspicions – which I don’t think it will be easy for her to do. The questions she needs to answer are these:
—Who first suggested bringing the police in to investigate these leaks? When was she (and when were other ministers – Cabinet Office ministers and even the Prime Minister) told of the proposal?
—What advice were ministers given about police involvement? What was their reaction to the proposed referral? She told the Home Affairs Committee she agreed with the referral – was it put to her for her authorisation, and did she authorise it? If not, why not?
—Were ministers aware they were dealing with a pattern of leaks to Damian Green? Surely they did, since four out of five of the leaked stories in newspapers before the police were alerted mentioned him, and Sir David Normington told the Home Affairs Committee he feared someone was leaking for political purposes. If so, why did they not act with special caution?
—Did ministers see in draft the Cabinet Office letter inviting the police to get involved? If not, why not? If so, why did they allow the letter to say
We are in no doubt that there has been considerable damage to national security already as a result of some of these leaks
when, according to the evidence Sir David Normington gave to the Home Affairs Committee, only one of the twenty-something leaks he was aware of – and none of the six leaks on which the police investigation focused – touched on national security?
So now we know that no charges will be brought against either Damian Green or Christopher Galley. Here is the CPS statement explaining its decision.
The real point about this scandal is not the conduct of the police or their search of Damian Green’s parliamentary office – they were told by government that national security was at risk, and acted lawfully in their search. To focus on them is to miss the point.
The real issue here is that the police should never have been called in at all to investigate leaks which were merely embarrassing to the government. Jacqui Smith is responsible for that decision: she should be held accountable for it.
This morning Keith Vaz bizarrely claimed the referral to the police was entirely the work of civil servants, and that ministers had no involvement with it. That cannot be right, and indeed is not supported by the evidence given to his committee in January by Jacqui Smith and Sir David Normington, from which it is quite clear civil servants did not act on a frolic of their own. To be fair to Jacqui Smith, she herself has not sought to hide behind civil servants. In an interview with the BBC this morning I heard her make clear she shares responsibility for the decision to call in the police – a decision she still defends.
Damian Green was quite right this morning: the issue here is whether ministers acted in an authoritarian manner by calling in the police in order to protect themselves from political embarrassment. Jacqui Smith at the very least agreed to police involvement: that is the central fact in all this, and should not be lost sight of.
Later this morning I expect the CPS to announce that they will not prosecute either Damian Green or Chris Galley for misconduct in public office or conspiracy to commit misconduct in a public office. Readers of this blog will know that I think the initial bringing in of the police, and the arrests, were a scandal – a scandal obscured by the silly, wrong-headed “controversy” about the entirely lawful search of Damian Green’s office; I am also not satisfied that the police and CPS have acted speedily enough in resolving this matter. It seems to me they have had more than ample time to consider this before now.
But what concerns me right now is the Home Affairs Select Committee’s report into this affair, and its Chairman, Keith Vaz’s, interview this morning in which he assured BBC listeners that he is confident that calling the police in was all the work of civil servants and that no ministers were involved in the decision.
What? His committee heard evidence that the Home Secretary was not only frustrated about the leaks before the police were called in (Jacqui Smith’s answer to question 13), and not only angry about them (Sir David Normington’s answer to question 14) but that she had steam coming out of her ears about it (Sir David Normington’s answer to question 15); that her view – not simply civil servants’ – was that secret information might be at risk (Jacqui Smith’s answer to question 11), that the two of them took the decision together to begin an inquiry (Sir David’s answer to question 16), that at the time civil servants wrote to the police on 8 october 2008 the Home Secretary was being kept informed weekly of what was going on (Sir David’s answer to question 36), and that Jacqui Smith agreed with the decision to refer the matter to the police (Jacqui Smith’s answer to question 53).
Here’s the Home Affairs Committee’s report, which, although it does refer (para. 7) to ministers’ frustration about the leaks, fails for some reason to mention the Home Secretary’s agreement to bringing the police in (para. 10) but talks of it as a decision taken by Sir David and “the Cabinet Office” – the committee seems never to have asked whether Cabinet Office ministers were consulted at all. The committee concludes that the frustration of civil servants led them to exaggerate the national security implications of the leaks – failing to mention ministers’ frustration. And finally, Keith Vaz’s words this morning depart significantly from the evidence his committee heard, in as much as he says ministers had no involvement at all.
Something very wrong is happening here. The Home Secretary had steam coming out of her ears and agreed with referral to police: had she not agreed, clearly no reference would have been made. Yet Keith Vaz chooses to interpret what happened as entirely the work of civil servants? I don’t think the evidence his committee heard justifies what he said this morning, and I suspect him of minimising ministers’ role for political reasons. In the worst traditions of loyalty to politicians rather than the public, the civil service will take the rap for this matter as though it had acted on its own; and Labour MPs are happy to whitewash their party seniors, failing in their duty to hold government to account. We need an inquiry into Keith Vaz as much as anything else.
A final point on a side issue: the committee, while urging a debate about whether to refer the searhc of Green’s office to the Committee on Standards and Privileges, and unfortunately perpetuating the myth that Parliamentary Privilege was involved at all, nonetheless also concludes that the search followed “the procedure set down in statute”. In other words, it was lawful.
I’d entirely missed Lord Hoffmann’s recent speech about the European Court of Human Rights: thanks to Afua Hirsch for drawing attention to it. In my view this is a brave and important speech, and I applaud him.
Let me stress that I don’t agree with everything he said. Far from it. In fact, there are quite a few things in it that I disagree sharply with. Most crucially, Lord Hoffmann seems to regret the fact that the ECtHR exists at all, and that individuals can petition it directly. He would it seems prefer the European Convention on Human Rights only to be politically enforceable, by means of criticism of one state by another, or by international organisations or NGOs. I think he’s profoundly wrong about this. The existence of the Court as an enforcement mechanism is the reason why the ECHR is a serious international human rights law, one that countries like Russia and Turkey have to think seriously about, rather than simply being able to ignore; and the right of individual petition ensures that human rights thinking is not completely dominated by the groupthink of establishment liberals like the staff of Human Rights Watch, but is occasionally shaken up by the awkward squad like John Hirst and Christine Goodwin.
I also disagree with Lord Hoffmann’s argument that the ECtHR has less legitimacy than the European Court of Justice – it doesn’t. For some reason Lord Hoffmann seems to think people accept the right of the ECJ to rule on employment law in the UK, for instance, and that its integrationist, teleological approach is mandated by the EU Treaties. I have no complaint about the legitimacy of either court, and I think on the whole both have adopted logical, necessary approaches to their tasks; but each has equally been imposed on the people of European by their governments, and each has had to read fundamental principles into the way they approach their jobs, in order to make things work.
I also agree with many of the judgments the ECtHR has come up with over the years. I think it’s earned respect as an institution, is often right, cutting through national nonsensification, and has shown an ability to admit it when it’s got things very wrong, for instance in its complete misunderstanding of the English law of negligence, which it repented of in Z v UK (see para. 100 of the judgment). So part of me is inclined to write in defence of the Court.
But the reason why, ultimately, my instinct is the opposite of Afua Hirsch’s, and why I applaud Lord Hoffmann, is that he’s right on his central point: the ECtHR has indeed been too quick to intervene in the details of UK law and practice, and he’s right to say so. Strasbourg is, or should see itself as, a supervisory jurisdiction, and would do well to show caution in the way it deals with the law of the most human rights-compliant societies it polices.
Lord Hoffmann cites examples – I’m not even sure I agree with all of them, though they’re reasonable enough. But I have my own examples. In Hirst, I think the Court was far too ready to reject the UK’s ban on prisoners voting, reducing the margin of appreciation to vanishing point; I explained my views more fully to Charon QC in a podcast a while ago. And in S and Marper I think it was far too ready to rule out the UK’s approach to building a DNA database in a judgment that, if it stands, will in my view have a detrimental effect on human rights throughout Europe for decades to come.
The ECtHR would do well to adopt a self-consciously supervisory role, and resist the urge to meddle too fussily in contracting states’ legal systems. Its rulings have the potential to ossify human rights protection, saddling Europe with standards based on current attitudes, particularly if it uses common European standards as a reason to reject experimental policies undertaken by one or two states which might, if tried, enhance human rights in due course. Lord Hoffmann’s warning is a sound one – I hope it’s heeded.
Following his success as David Frost in Frost/Nixon and most recently as Brian Clough in The Damned United, for his next impersonation of a famous figure Michael Sheen will turn to law, BBC Films and Left Bank Films have announced. Sheen is to play the role of Lord Phillips, soon to preside over the new UK Supreme Court, in a film once again scripted by Peter Morgan. Under the working title Posh Pervert, the film will focus like the two earlier projects on a discrete episode in its subject’s life: it tells the story of the day in 2006 when the then Lord Chief Justice went undercover in Bletchley to do community service. Here’s an article from David Pannick about Lord Phillips’s wheeze, and Charon QC’s report, plus criticism from another Phillips (Melanie, apparently to be played by Alison Steadman); and finally here’s the quote from one of his Lordship’s community service colleagues that provides the film’s title.
Here’s the BBC Films press release with details of the production.
Last week the House of Representatives in Washington passed a Bill taxing at about 90% the bonuses received by employees of firms given $5 Billion or more in taxpayer support. Here’s a Washington Post story explaining the Bill. The background is the outrage American voters and politicians felt at the bonuses paid to staff at AIG, rescued by the government last year, but the Bill goes much further. It now passes to the Senate, but Senators are working on their own Bills, which could be even tougher.
What interests me about this is how similar the Bill is to my own modest proposal for how Harriet Harman and the government here could grab Sir Fred Goodwin’s and other pensions – I even suggested 90% as the possible rate of grab, at least for the fattest tax-fed cats. I’m impressed that Congress is willing to back its words with deeds – and very disappointed that Gordon Brown’s government are sitting on their hands.
My proposal has been criticised (wrongly in my view) as being in breach of Convention rights; similarly, the American proposals are, some say, in breach of the US Constitution. So I’m also interested that according to the Wall Street Journal’s Law Blog, Laurence Tribe of Harvard Law School dismisses those complaints as lacking substance.
I think the Americans are showing us the way here, and that the human rights concerns people raise here are no more substantial than the constitutional objections raised there. The government should stop dithering and introduce a suitable Bill now.