My former lecturing colleague, the Guardian’s new legal correspondent Afua Hirsch, has written today at Comment is Free about the Green/Galley affair – she doesn’t think it’s likely to go anywhere – and the line between whistleblowing and misconduct.
The Speaker and the Leader of the House will no doubt be under pressure to allow a debate on the Damian Green/Christopher Galley leakgate affair after Parliament opens tomorrow – and so they should, as early as possible, and allowing enough time for a proper airing of views, and for ministers to make their involvement and knowledge plain. In case you’re wondering, the sub judice rule will not operate to prevent debate.
Sub judice is not a rule of law anyway, Parliament being free, ultimately, to discuss whatever it likes; and the Speaker always has discretion to allow debate on issues of national importance, which this plainly is (although the Speaker has a dodgy record on the exercise of this discretion). But none of that matters because the sub judice rule doesn’t even apply to a case until a charge is preferred, which it hasn’t been in this case of course. See this research note by Richard Kelly of the House of Commons Library for the full detail, chapter and verse.
Sam Coates at Red Box has apparently been given differing views about how bad misconduct has to be in order to count for the purposes of the criminal offence of misconduct in a public office.
Lawyers have told the Times that to meet its test, money would have had to have changed hands, or some other impropriety or inducement amounting to “misconduct” taken place. Senior civil servants have suggested that the hurdle is lower – that “encouraging” or actively soliciting leaks – even if there was no inducement – is enough for the recipient to have broken the law.
Mm. Looking at the leading case, Attorney General’s Reference No. 3 of 2003, I incline to the former view. Pill LJ, giving the judgment of the court, said (see paras. 56 to 59):
... there must be a serious departure from proper standards before the criminal offence is committed; and a departure not merely negligent but amounting to an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder… The motive with which a public officer acts may be relevant to the decision whether the public’s trust is abused by the conduct. As Abbott CJ illustrated in Borron, a failure to insist upon a high threshold, a failure to confine the test of misconduct as now proposed, would place a constraint upon the conduct of public officers in the proper performance of their duties which would be contrary to the public interest...
It will normally be necessary to consider the likely consequences of the breach in deciding whether the conduct falls so far below the standard of conduct to be expected of the officer as to constitute the offence. The conduct cannot be considered in a vacuum: the consequences likely to follow from it, viewed subjectively as in G, will often influence the decision as to whether the conduct amounted to an abuse of the public’s trust in the officer. A default where the consequences are likely to be trivial may not possess the criminal quality required; a similar default where the damage to the public or members of the public is likely to be great may do so. In a case like the present, for example, was the death or serious injury of the man arrested the likely consequence, viewed subjectively, of inaction, or was it merely an uncomfortable night? There will be some conduct which possesses the criminal quality even if serious consequences are unlikely but it is always necessary to assess the conduct in the circumstances in which it occurs.
The consequences of some conduct, such as corrupt conduct, may be obvious; the likely consequences of other conduct of public officers will be less clear but it is impossible to gauge the seriousness of defaulting conduct without considering the circumstances in which the conduct occurs and its likely consequences. The whole should be considered in the context of the nature of the office and, as Sir Anthony Mason stated in Shum Kwok Sher, the responsibilities of the office and office holder.
Going by that, it looks to me as though in the absence of corruption, serious harm is needed in order for the misconduct to cross the threshold. An interesting question is whether seeking party political advantage might amount to a corrupt motive for these purposes; certainly a harmless leak made genuinely on public interest grounds would not cross the threshold, it seems to me. The “senior civil servants’ view” cited by Sam Coates looks like a misunderstanding, confusing the position of Damian Green (the only one here who could be suspected of encouraging or soliciting leaks) with the position of Christopher Galley (who’s the one whose misconduct is in issue) and based on the traditional civil service world-view according to which leaking is always and obviously the most wicked possible misconduct.
Joshua Rozenberg thinks Christopher Galley’s press conferences means charges against him or Damian Green are unlikely – I hope he’s proved right. It’s quite correct of course that CPS lawyers would need to conclude a prosecution was in the public interest, but I’m not quite as confident as he is that the CPS machine won’t accept that “encouraging other” civil servants is public interest enough. I agree, though, that they’d be wise not to. I think they ought not to, either.
Here’s the full statement released today by Bindmans solicitors about their client, Christopher Galley – the Home Office civil servant who (the statement admits) passed on information to Damian Green MP. The statement makes clear that Mr. Galley believes he was acting in the public interest. I note he was held for questioning for seventeen hours: I’ve not seen much complaint about this from commentators who are all too ready to condemn the police for holding Damian Green for nine.
Let me be clear about my views on leaks: I don’t approve of them, or think civil servants should indulge in them except in extreme circumstances. By that, I mean that a civil servant should consider leaking only non-security-related information, and only where he or she feels that leaking is necessary in the public interest. When I was a civil servant I thought it was important to think about this issue, and that’s the position I reached. Of course the official position is that one should never leak, in any circumstances – but I think a civil servant who can’t readily imagine circumstances that show the inadequacy of the official approach is a civil servant without imagination, and possibly unfit for the job. If you knew ministers and permanent secretaries were conspiring to murder the Queen and MPs in a modern gunpowder plot, you’d have a duty to leak. Unlikely, I know, but that’s not the point.
But the important question in this case is not “should a civil servant leak?” – Christopher Galley obviously believes he was right to, and if charged he may be able to put his argument to a jury. The question is, what should happen to a civil servant who does leak? I think losing his or her job, and finding it difficult to get a new one because of the hidebound disapproval of potential employers for anyone who’s displeased a previous one is a sufficient sanction – unless the leak risked real harm to the country.
The fact that our law treats leaks which cause the mere embarrassment of government as arrestable is a national scandal.
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.
A particularly interest aspect of the law relating to the Damian Green case came out in my discussion with Charon QC earlier. You’ll remember that he was arrested on suspicion of conspiracy to commit misconduct in public office, and as a secondary party to misconduct in a public office. The elements of the offence of misconduct are:
a) someone must be a public officer, e.g. a civil servant;
b) he or she must wilfully misconducts him- or herself;
c) the misconduct should be serious enough to amount to an abuse of the public’s trust in the office holder;
d) he or she must act without reasonable excuse or justification.
It’s this last element that interests me, because it seems to me that whether you look at it through the lens of conspiracy or secondary liability, the only relevant justification is the civil servant’s for his actions: if his actions were unjustified in law than I don’t think an MP who did what Damian Green is apparently suspected of could be acquitted on the basis of justifying his own behaviour – I think that would be legally irrelevant.
If I’m right (I’d welcome the views of criminal specialists) then I think it’s a highly questionable and indeed objectionable aspect of the law as it stands and as it’s being used here – it seems clear to me that Green, if ever he were charged, should be able to argue in court that his own conduct was justified – not be limited simply to relying on a derivative argument that the civil servant’s conduct was justified.
Charon QC interviewed me this morning about the Damian Green arrest: we discussed what offences he’s suspected of, ministers’ denial of prior knowledge of the arrest, the Parliamentary privilege aspect and the role of the Speaker, and wider issues of secrecy in government and the law relating to “leaks”. A very interesting discussion to take part in, certainly – I hope to listen to, too. You can hear the podcast here.
I’m glad Damian Green has been released on bail: this affair is quite worrying, and David Cameron is entitled to be angry and ask questions, I think. Home Office ministers in particular need to explain what if anything they knew about the arrest, and we need an explanation of why this happened on Sir Ian Blair’s last day in post. Is this simply a coincidence?
A sidelight, though. Politicians sink in the eyes of the public every time they appear to want special, different treatment from the rest of us; and there’s a nasty tendency of politicians, especially those in office, to want to protect politicians from legal sanctions while being quite content to see officials carry the can.
If what Damian Green did is all right in the public interest (and I’m instinctively sympathetic to him) then it must follow, mustn’t it, that what the Home Office official did is all right – the one who it seems may be accused of having passed papers to him? Yet we hear no complaints about his arrest and treatment. I expect to see Conservatives who back Damian Green also backing the civil servant – and telling us what they plan to do in office to reform the law on “leaks”.
Astonishing news: the Tory immigration spokesman Damian Green has been arrested on suspicion of conspiring to commit misconduct in a public office – a doubly vague and, to policemen, useful charge, based as it is on a conspiracy to commit a common-law offence. Here are the CPS’s guidelines on misconduct in a public office. Iain Dale is unsurprisingly on to the story, as are Guido Fawkes and Fraser Nelson.
I don’t for one moment think the government knew of, ordered or connived in the arrest – if they did, it would be a British mini-Watergate – and part of the reason I take that view is that this is extremely unhelpful to them politically. The apparent involvement of counter-terrorist police seems massively over the top and the whole affair throws the David Davis approach to civil liberties into sharp relief.
I’m troubled by the arrest, and the police’s tendency to carry out daft stunt arrests, as in the cases of art picturing children, where they’ve made utter fools of themselves before. This affair may lead to quite a rumpus, and rightly so; it’s an extraordinary move, and seems contrary to the public interest in Parliament’s knowing the truth. The one argument that I’ll be unsympathetic to from Mr. Green’s supporters is that “civil servants and MPs have always done this”: that argument applied equally to ‘cash for honours’. Mind you, the suspicion there was of something clearly contrary to the public interest, so perhaps different considerations apply.
I hope they bail him soon, and that the Speaker takes a properly open attitude to allowing an emergency debate rather than one based on hidebound attitudes.