We are the Angry Mob


6:27 pm - December 1st 2008

by Unity    


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To heavily paraphase a line you may well have heard somewhere before…

Never in the field of blogging has so much ill-thought through nonsense been spouted by so many posturing fools in defence of the  privileges of a few denizens of the Westminster bubble,

I’m talking, of course, about the welter of synthetic outrage spawned by the arrest of Damian Green, an issue which has prompted large tracts of the blogosphere to lose its collective marbles in the rush to paint themselves as fearless defenders of our precious democracy but delivered little or no evidence that most understand what democracy actually means or, should I say, what it certainly doesn’t mean – spineless pandering to the assumed privileges of the political class.

I tried to point this out this in my last article on Green’s arrest but clearly did so in an altogether too subtle and considered manner for the key point to register with some, so let’s make this all nice and simple and lay down three basic principles that apply to Green’s current situation.

Principle #1 – No one, not even a Member of Parliament is above or outside the law.

That should be a simple enough concept for most but as some seem not quite to have understood thing properly it clearly needs to spelled out that the Palace of Westminster is NOT the ‘land of do as you please’ and ‘parliamentary privilege‘ does not – and never has – conferred any kind of blanket immunity to arrest or prosecution, on MPs nor does it preclude the police entering the House of Parliament in order to pursue their inquiries.

At the beginning of each Parliament, the Speaker formally claims certain ancient and undoubted and privileges of the Commons these being the right to freedom of speech, freedom from arrest (except on criminal matters), access to the Crown via the Speaker and that the most favourable construction should be placed on the deliberations of the commons. In addition, there are several privileges that are ‘not so claimed’, i.e. they are claimed as privileges but not as ancient and undoubted privileges because they stem from the 1689 Bill of Rights, these being the rights to regulate its own composition and its own internal affairs, the right to punish members and strangers for breach of privilege and contempt, the right of impeachment and the right to control finance and and initiate financial legislation (as against the Lords).

And that is the full extent of parliamentary privilege, no absolute get of jail free cards and no prohibitions on police inquiries in the House, although had Parliament been in session it may have theoretically possible for it to block the police’s inquiries with an emergency session motion, which explain why the arrest took place while parliament was prorogued prior to the Queen’s Speech,

Principle #2 – There is a significant difference between genuine whistle-blowing and the theft of confidential documents and correspondence for political gain/tactical advantage.

The former clearly falls within the legitimate scope of the public interest in so far as it exposes to public scrutiny evidence of misconduct and mis/maladministration in government which the government may be attempting to conceal. The latter is political espionage and, in the worst cases, may actively hinder the legitimate process of government and/or act against the national and public interest.

Last week, when this all blew up, we had four known leaks on the table that were thought to form part of this investigation, only two of which could clearly be considered to amount to whistle blowing. Over the weekend, it has emerged that the police are investigating what may as many as 15-20 further instances in which government documents may have been passed to Green by the junior civil servant at the centre of the case, the exact contents of which have yet to be disclosed. We also now know that this civil servant, Chris Galley, is not just a Conservative supporter but also a former (unsuccessful) Conservative local authority candidate who applied for a job with Green (also unsuccessfully). On the current published timeline, it seems as though it may only have been after Galley’s failed job application that he began to feed information to Green which, circumstantially, raises a few questions that the police are, no doubt, looking into.

Principle #3 – There is, similarly, a significant difference between an MP who passively receives leaked information from a whistle-blowing civil servant and one who (allegedly) suborns a public official in the hope of obtaining confidential information.

This appears to be the allegation on the table that prompted the police to arrest Damian Green, the suggestion made by Galley, under questioning, that some kind of arrangement existed between him and Green in which inducements were allegedly offered in return for a supply of confidential documents from the Home Office. Green has, of course, denied offering any inducements whatsoever, leaving the police to investigate the matter and sort out which of them is being economical with actualitié, as is only right and proper – let’s not forget that with such an allegation on the table the police, quite correctly, do not have the discretion to decide who and what they should or should not investigate.

So, what we have here is a young Tory working in a junior position in the Home Office who appears to have pilfering confidential documents and forwarding them to Shadow Minister is circumstances in which, at best, Galley may have ‘gone into business for himself’ and operated in the belief that the information would further the interests of his own party and, conceivably, in the misplaced belief that his show of loyalty to the Tory cause would find its own rewards should the Conservatives win the next general election and Green be handed the ministerial role he is currently shadowing and, at worst, we have a similar scenario but for Galley’s allegation that he was working to order.

Neither scenario bears much of a resemblance to that on which the prima facie defence of Green was based in the immediate aftermath of his arrest, that of an opposition MP merely doing his job of holding the government to account – and that leads up to one further important principle…

Principle #4 – The legitimate interests of Her Majesty’s Loyal Opposition in Parliament are not necessarily synonymous with the interests of any individual opposition party, whether it be the Conservatives, Lib Dems or any of the other parties represented on the opposition benches or, indeed, of any individual MP.

While acres of newsprint and online commentary has been expended on fulminating over in injustice of Green having had his collar felt for recieving leaked information about the government’s apparent failure to disclose the fact that the Security Industry Authority had issued licenses to illegal immigrants no one has yet advanced any satisfactory argument in favour of treating the similarly leaked list of Labour MPs who the Whips Office thought likely to rebel on the 42 days vote as matter of legitimate public interest let alone a genuine example of whistle-blowing. Indeed, the overall tone of the vast majority of these commentaries has been one of studiously ignoring any element of the emerging story that even hints at the possibility that ‘job’ that Green may been doing may not have simply been that of an opposition politician seeking to hold the government to account but rather that of a Conservative politician securing tactical/political advantages for his own party.

One of the wholly overlooked elements of this case is that the freedom of speech afforded to Members of Parliament under parliamentary privilege is confined to statements made within the House of Commons in the course of public debates, statements, open committee proceedings and written and verbal questions while the ‘right’ to leak information to press is NOT amongst the ancient and undoubted privileges claimed by the Speaker at the beginning of each Parliament, nor has it ever been for all that previous governments may have turned a blind eye to such practices.

With the benefit of hindsight, and a little judicious research, the degree of chutzpah exhibited by Green in relation to the SIA is quite breathtaking, given that it now appears that Green was the recipient of the leaked document behind that story. Not only has Melissa Kite positively (and unapologetically) identified Green as her source for the original story in the Telegraph:

Normally I would only reveal that I received the memo through a trusted source. But the Tories have now said that this story was one of four put in the public domain by Damian Green, and that this may have led to his arrest.

But the Tories then went on to put out a typically ostentatious statement on their own website, announcing that Green would:

…today write to the Home Office in response to the revelation that up to 5,000 illegal immigrants have been employed with security clearance. He will be demanding immediate action from the Home Secretary, especially on people working illegally for Government departments, the police and at ports and airports.

While, at the same time, also appearing in despatches as the Tory’s designated rent-a-quote on the story:

Shadow Immigration Minister Damian Green said:

“What is extraordinary about this latest Home office fiasco is that we have been through this before. Last year the Home office discovered it was employing illegal immigrants as cleaners in the Immigration Department itself.

“From these new revelations it looks like no effective action was taken to check who has access to some of the most sensitive buildings in this country. It looks like the Home Office is still not fit for purpose.”

That last ‘comment’ appears not only in Tory Party’s press release but in the coverage published by the Telegraph and the Guardian on the Monday after the story was broken by the Sunday Telegraph and demonstrates the extent to which the leak was carefully orchestrated for maximum political advantage long before Green, or any other Tory MP, got down to the business of holding the government to account in the House of Commons. If at least part of the underlying issue here is that observing due parliamentary process then its worth noting that Green did not speak in the House on this issue in the debate that followed Jacqui Smith’s statement on 13th November 2007, in which David Davis led for the Tories, in fact, it wasn’t until a topical debate on Immigration, two days later, that Green spoke on this issue in the House, despite the fact that had he been a little more concerned with availing himself of parliamentary privilege and a little less concerned with grandstanding in the press, he could have quite legitimately have raised this issue in the House by means of a parliamentary question or a request for a ministerial statement on a point of order without finding himself in the unfortunate position of having his collar felt a little over a year later.

The contention, right from the outset, has been that Green’s arrest runs contrary to the best interests of Parliamentary democracy in the UK, and that may well prove the case in the long run but not necessarily for any of the reasons cited by those members of the commentariat (and bloggerati) who seem intent on having Green not merely acclaimed innocent in the court of public opinion before the police have even finished their investigation but perhaps even carried to the Commons with full ceremony a la Marat in recognition of his self-assumed role as a fearless defend of truth, democracy and the British way…

But as soon as Paris learned that a writ was out for Marat’s arrest, the excitement was immense. The insurrection would have broken out on April 14 if the “Mountain,” including Robespierre and Marat himself, had not preached calmness. Marat, who did not let himself be arrested at once, appeared before the tribunal on April 24, and was acquitted off-hand by the jury. He was then carried in triumph to the Convention, and from thence into the streets on the shoulders of the sans-culottes, under a cascade of flowers.

The interests of democracy, and the rule of law, will in no sense be well served if, for example, the fallout from Green’s arrest provides a platform from MP’s seek to entrench themselves further into the rarified atmosphere of the Westminster bubble, and away from on the back of an unmerited extension of parliamentary privilege designed to preclude or hamper any further police investigations of the kind that Green currently faces. We have already seen MPs make one attempt to exempt themselves from public scrutiny of their activities on an rather flimsy pretext in the form of a private bill which sought to afford them a blanket exemption from the Freedom of Information Act and, with that firmly in mind, we should be watchful for any kind of attempt to sneak through similar measures under cover of the present furore over Green’s arrest.

Nor will democracy and the rule of law be well-served if the many vested interests commenting on this matter in a transparently partisan manner succeed in creating such a prejudical public atmosphere that it becomes impossible either for the police to complete their investigation or the Crown Prosecution Service to prefer charges against Green, Galley or anyone else who might be drawn into this inquiry as it continues.

What has emerged over the weekend by way of additional background to this case, particularly in regards to Galley’s apparent allegations in regards Green’s less than passive (alleged) role in this matter, suggests that, contrary to what Iain Dale and others would like everyone to believe, this is a matter which merits the full attention of the Police. Indeed, with Galley’s allegations against Green reaching the public domain it seems to be more important than ever that the case be subjected to a full inquiry, if only to ensure that if Green is genuinely innocent of any wrongdoing, he be completely and publicly exonerated on all counts. Many, if not most, of Green’s self-appointed public defenders would do well to consider that they might well be doing him much more of a favour in the long run if they to take a little time out from their concerted efforts to blow smoke and run interference and reflect on the fact that if Green is genuinely innocent then by far the least favourable outcome would be one in which the investigation is prematurely terminated or the case dropped on a ruling that it is not in the public interest to proceeds, simply because their efforts at misdirection have created such a prejudical atmosphere that is impossible to proceed on a fair and just basis.

At the clear risk of prompting yet another inane round of ‘you’re just being anti-Tory’ comments from Lib Con’s resident blogroaches*, the synthetic hysteria emanating from the Conservative Party since Green’s arrest, not least in the form of today’s ‘revelation’ from unnamed ‘party sources’ that the Police accused Green of ‘grooming’ Galley in order to play on the word’s tabloid association with paedophilia carries the unmistakable stench of a deliberate and contrived attempt to prejudice the public narrative around this case in order prevent the investigation from proceeding any further – and it well worth noting Tim ireland’s comment that Iain will have had pass over six different online dictionaries to find one that provides the definition he was looking for, as opposed to the its conventional usages as a reference to personal/animal hygiene or in the the sense or preparing someone ‘for a specific position or purpose: groom an employee for advancement’.

What this latest round of thinly veiled smears against the police raises is nothing less that the suspicion that the Tories may be running scared of the possibility there may be far more embarrassing revelations to come should police continue to dig into this matter, revelations that may well relate to the persistent suggestion that its not just a number of leaks from inside the Home Office that the police have been asked to investigate but also the possibility that a ‘mole’ within the Treasury may also have been leaking confidential information to the Tories. If there’s any truth to this last ‘rumour’ which seems to go hand in hand with an alleged pattern of Tory policy announcement that pre-empt those of the Treasury by a matter of a couple of day then it possible that we could have a major political scandal on our hands, not to mention that the leaking of financial data from a Treasury would be, unequivocally, a matter subject to the full weight and scope of the Official Secrets Act and not merely a matters of common law offences relating to soliciting misconduct by public officials.

And as we’re dishing out the brick-bats here, let’s also not overlook the barely concealed sense of panic emanating from the professional end of the political commentariat who’ve very quickly cottoned onto the fact that the police’s decision to open up a very large can of worms by arresting Damian Green might just end up choking off the steady supply of ‘fell off the back of the government’ stories they’ve been living on for years and force them to go and *gasp* actually do some proper journalism for a change.

Since Green’s arrest, the broadsheets have been fair drowning in the high-minded half-soaked screed of the political commentariat, although if cut through the bullshit and look at what they’re actually saying, most of it amounts to little more than the same kind of collective whining that the tabloids trotted out in response to the judgement in the Max Mosley privacy case and no sacrifice is too great if it preserves their cushy number and reserved seat on the political gravy train.

There have been any number of prime examples of classic windbaggery, although for sheer pomposity you’re going to have to go some to top Bruce Anderson in today’s Indy:

There needs to be an enquiry into the arrest of Mr Green. Although it should be conducted dispassionately, with no taint of vindictiveness, it should result in indelible scorch marks on official grass. Those responsible should be identified; their careers should be broken.

Nice to see Bruce building the scaffold before we’ve even had the trial, but then Bruce is clearly of the opinion that what British democracy needs in order to adapt to the demands of the 21st century is a return to the parliamentary mores of the 19th.

While civil liberties have been eroded, so has the position of the Commons. Minor misdemeanours by individual MPs have been used as an excuse for a frontal assault on the status and prestige of our legislators. Thus far, MPs have been too terrified by their constituents’ Poujadist resentments to put up a fight. Moreover, parliamentary privilege is not the language of the 21st century. As a result, in surrender after surrender, MPs have allowed themselves to be regulated by outside bodies. They too should re-learn how to roar.

You see, its not the lack of openness and transparency in the political system that the problem, its that we’ve got far too much of both already, although for sheer boneheadness even Bruce gets beaten into second place by Jackie Ashley’s ridiculous suggestion that:

Smith should have found out what was being contemplated by the police and then intervened to stop it. Far from being “Stalinist”, that would have been the proportionate, liberal and sensible thing. Having failed to do that, she should then have apologised to Green.

Well, if that’s the case, why don’t we just dispense with the Police, the courts and the rest of the Criminal Justice system in its entirety as nothing more than an expensive and unnecessary anachronism. After all who needs any of that when journalists can happily pronounce on the guilt or innocence of a particular individual on our behalf and save us the bother of all that messy ‘due process’ business.

At what point, exactly, did tacit acceptance of political kleptomania within the junior ranks of the civil service become an indicator of a healthy and vibrant democracy and an acceptable subsitute for a genuine culture of openness and transparency buttressed by a Freedom of Information Act with real teeth?

If you actually strip away all the posturing surrounding Green’s arrest then the case for the defence, thus far, amounts only to:

1.He’s an MP, and

2. Receiving stolen documents and leaking to the press is just what MPs do all the time, so don’t pay any attention to it.

As for the moral character of such actions and the question of whether a particular leak genuinely serves a legitimate public interest or merely the narrow political interests of an individual politician or a political party, this seems to have been taken as entirely irrelevant here, not just by those with an obvious partisan interest in defending Green as member of their own political party, or the supply lines into government that their own MPs might have established, but more generally amongst both MPs and political journalists.

One of the primary arguments for press freedom, in this or any democracy, is that which holds that a free press contributes to the democratic process as one of the mechanisms by which governments, legislatures and politician, generally, are held to account, but just how far can we trust the press to discharge that important role when its apparent, as in this case, that it not only acts a willing accomplice in what amounts to an ingrained culture of petty political corruption in order to sustain a privileged realtionship with politicians even to the extent of arguing for a return to a bygone age of secrecy and unaccountability, direct political interference in the judicial process and de facto immunity from prosecution for politicians.

The accusation levelled by Iain Dale, on Saturday, was that Sunny’s round-up of dissenting left-wing opinion on Green’s arrest amounted to a a collection of left wing blogs which think it’s great to arrest a Tory, and not wishing to disappoint Iain or make him out to be liar, I think it only fair to point out that there is a very clear sense in which the arrest of Damian Green could, and should, turn out to be a good thing for Britain’s democracy and not simply because it’s a Tory MP who got his collar felt on this occasions – any MP from any party would have done as well.

This case, and the utterly self-serving reaction to it by MPs, the main opposition parties and the press should be reason enough, in itself, to prompt us to take a good hard look at the state of Britain’s democracy and political culture and ask ourselves some very detailed and searching questions about exactly how it operates, in practice, and some of many the assumptions that underpin both our system of government, our democracy and the relationship of both a media which plays such a key role in shaping public and political narratives.

Are we to simply accept that the best method of ensuring open and transparent government we have open to us is that of accepting and, to a considerable extent, turning a blind eye to the apparent existence of a low level culture of minor corruption, petty theft and political espionage in which much of what passes for ‘transparent government’ has already passed through the distorting lenses of party spin doctors and a partisan national press before its reaches the outside world? Or is there a better way of ensuring that we have the kind of open and transparent system of government we are looking for, one in which Britain has a much stronger and more exacting Freedom of Information Act to offer the citizen free and unfiltered access to information to the same degree offered by the US Freedom of Information Act and the ‘sunshine laws’ enacted by several US states.

Is it not time that we subjected the whole premise of ‘parliamentary sovereignty’ to close scrutiny?

For all that politicians are prone to talk at length about political legitimacy and authority of parliament being founded in the will of the people that’s never actually been the case. Parliament, or rather the government, derives its political authority from its having appropriately the sovereign authority of the Crown (i.e. the royal prerogative) at the end of the 17th century. Britain has no codified constitution to set out the principle that the authority of parliament is derived from the democratic will of the people and, as citizens, we have actually have very few rights that are actually founded in purely constitutional law – the foundations of habeas corpus have survived as the pretty much last meaningful component of Magna Carta, unless you’re a member of the Church of England or the Corporation of Londin and from the 1689 bill of Rights we get freedom from cruel and unusual punishment and excessive bail and a right not to subjected to fine or forfeiture without trial that is being increasing diminished by the rise in the use of summary judgements and fixed penalty notices, plus a right to petition the Crown, much good that that is today.

Not much to show for a country that boasts of having the ‘Mother of Parliaments’ is it?

And what about the privileges that Parliament grants itself – why should these not be questioned and subjected to open public debate, particularly given the extent to which the scope of these privileges is being widely misrepresented in an effort to exonerate Damian Green and stifle any further investigation in this, and perhaps, other recent leaks that the police seem to consider to be of doubtful legitimacy.

Instead of seeking to close down wide public debate and control the public narrative in order to obtain a public pardon for Damian Green before its even been fully established whether he actually has a case to answer (and preserve its cosy relationship with the political and its easy supply of political news and tittle-tattle, of course) should we not expect our supposedly free and independent press to be leading the charge in demanding a wide-ranging public debate on the state of of our democracy…

…or should we perhaps take their supine and, in places, utterly obsequious acceptance of the Tory line on Green’s situation an indication that they too believe themselves to have much to fear from open public scrutiny of a kind that might expose the full extent of their own willing collusion in a system that seems to have done little else but lurch from one squalid tale of petty corruption to the next for at least the last 20 years and more.

—-

* To save the resident comment trolls the time and effort of posting their inane little diatribes, my answer to the charge of being ‘anti-Tory’ for taking the time to think about the full implications of this case rather than fall meekly into line behind Iain Dale comes in three parts…

1. Do I look like I give a toss?

2. With particular reference to ‘Fellow Traveller’s’ inane injections in the comments under my last article, if you want to pull material over from the Ministry as ‘evidence’ of something – and fuck knows what – then I think I’ve more than enough of a track record for calling things as I see them and not just down party lines to justifiably invite you to kiss my ass – see my comments on the demise of Peter Hain’s career in high office, on a blatant stitch-up of a homophobic Tory fossil and on what I must admit is a particular favourite of mine, the story of reformed former NF organiser who contested (and won) a council seat for the Tories in 2007, in which I was just about the only person to stand up for the guy when his past was exposed by the BBC on a local politics programme, at a time when his own local group leader was content to see him thrown to dogs, and…

3. If you’re really that concerned at having your reading pleasure spoiled by a dissenting point of view on this particular case then please feel free to piss off back to Guido’s where you can rest assured that your narrow little view of the world will be safely untroubled by anything that remote approximates a considered opinion.

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'Unity' is a regular contributor to Liberal Conspiracy. He also blogs at Ministry of Truth.
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Reader comments


Excellent post…. No body does sanctimonious hypocrisy like the Tory party, and the media friends.

Under Thatcher the Tories brought huge areas of govt under the official secret act. Not to protect top secret information, oh no. This was all about censorship of information that they did not want the public to know. So to see them now PRETENDING to care about freedom and democracy, and holding the govt to account is laughable. The Police were called in after 20 leeks, not exactly a one off.

Only last year when Blair was under investigation by the police the Tory machine could not contain their glee. Pompous Tory spokesman would appear on News night to tell us how terrible it was that Blair had been giving honours for peerages. Of course it completely escaped their mind that this has been Tory policy for the last 200 years.

As for Bruce Anderson‘s opinions, waste of space. Discredited Tory Tub Thumper. If you want a good laugh get a copy of his columns about how great a president GW Bush was going to be back in 2000. How he was going to have no cronies around him, just people of talent. (Tell that to the people of New Orleans Bruce.) Poor old Brice has been wrong about everything for the last 10 years, Why the Independent wastes it’s meagre resources on this clown I do not know.

no one has yet advanced any satisfactory argument in favour of treating the similarly leaked list of Labour MPs who the Whips Office thought likely to rebel on the 42 days vote as matter of legitimate public interest let alone a genuine example of whistle-blowing

Does it amount to a criminal matter, though?

synthetic outrage

Heh I like that term. Nice way of describing the strategy of disruption being employed.

that is the full extent of parliamentary privilege, no absolute get of jail free cards and no prohibitions on police inquiries in the House,

Don’t the police have to ask for the Speaker’s permission to search the Palace of Westminster?

not to mention that the leaking of financial data from a Treasury would be, unequivocally, a matter subject to the full weight and scope of the Official Secrets Act and not merely a matters of common law offences relating to soliciting misconduct by public officials.

Hmm, I wonder who leaked the pre-Budget 15% VAT plan…

“Parliament, or rather the government, derives its political authority from its having appropriately the sovereign authority of the Crown (i.e. the royal prerogative) at the end of the 17th century.”

Unity – there’s an extremely important – in fact utterly crucial – distinction between Parliament and Government. The entire basis for the disquiet in this case is centred on that distinction.

“And what about the privileges that Parliament grants itself – why should these not be questioned and subjected to open public debate, particularly given the extent to which the scope of these privileges is being widely misrepresented in an effort to exonerate Damian Green and stifle any further investigation in this, and perhaps, other recent leaks that the police seem to consider to be of doubtful legitimacy.”

And what better way to start that debate than by the intervention of 20 anti-terrorist officers?

20 anti-terrorist officers

Which they weren’t.

I think you protest too much.

A few facts. It’s not clear that the information received by Green was covered under the Official Secrets act. This is just the normal politics of leaks – investigate internally and sack the person who is breaking the terms of their contract. This kind of systems allows those in the civil service to inform MPs of all sides to things the government would rather people didnt know. The first 2 instances seem to come under this grouping. It is not secret it is just embarassing.

Of the other leaks one seemed to be of Labour MPs who would vote against 42 days. One question – what was the home office doing with this information? This is party political, surely something for the whips.

Now before you write me off as another tory troll, I would like to say I have voted LD at the last 3 elections. I would vote tory to get the incompetent government out but live somewhere where my vote won’t matter.

The this that concerns me most is you are makiing fake dividing lines, rather than following a respectable parliamentarian like Tony Benn is rightly outraged. With this government evrything is political. Who asked the police to investigate? What were their terms of reference? Was Parliament searched on a recess to subjugate the will of parliament?

And now this evening we find out they are trying to cook up their story before the opening of parliamnet. Come on it’s time to speak out. Now you are probably from the socialist side of the libdems and hate the tories. But surely being an apologist for Labour isnt worth it. They are not liberal or democratic. When I first heard the news of the arrest I thought it would be bad news for the tories as the police wouldnt go into the House of Commons without it bneing a very serious matter. Everything that has come out since then proves the opposite, and I am sure you could write a great column asking difficult questions for the government.

Oh I apologise Larry – Special Branch then if it makes you feel better. Which cover OSA crimes. Which this wasn’t. Anything else?

How many Labour stooges write for this blog?

He`s rather sweet Unity isn’t he . Reminds me of a snappy Dachdhund scampering from side to side of the road, sniff sniff wag wag , and off he goes down some new intoxicating hole. Still if we ever get to the end of the road we will find it unchanged .Everyone , especially Brown ,does it ,Labour got plod in , La Smith lied about it and has been quite rightly taking it up the arse along with said Plod . Simple.

Anyway I must I am busy ‘grooming’ an gorgeous tousle haired child

(Its his bed time and I have promised a story about a clever troll )_

I refer the honourable gentlemen @ #10&11 to the answer I gave a few hours ago:

please feel free to piss off back to Guido’s where you can rest assured that your narrow little view of the world will be safely untroubled by anything that remotely approximates a considered opinion.

Typical Tories. The police ,as they see it, should be their own (state funded) little army. Protecting nice middle class people, and only going after nasty left wing trade unions.

To listen to the stink they have made of this you would think people have never been wrongly arrested or beaten up. Poor little Green had to spend 9 hours in a police station. Get the wamabance.

Does it amount to a criminal matter, though?

That would depend on whether you consider theft and maybe a breach or two of s1 of the Computer Misuse Act to be criminal offences.

Don’t the police have to ask for the Speaker’s permission to search the Palace of Westminster?

I would assume that they did rather more than ask and actually went to the trouble of producing a warrant, however as I understand it, there is no precedent that would allow the Speaker, acting alone, to decline such a warrant.

So far as available precedents go, I can find only three that seem to be anything like applicable.

One is the Sandys case I referenced in my previous article, in which a session motion was used to refer the matter to the Committee on Privileges in order to prevent the Attorney General making good on the threat to have Sandys arrested if he refused to disclose his source.

The second is the case of George Ferrers (1542) which established the privilege of freedom from arrest on civil matters and on that occasion, the Speaker obtained a judicial warrant from the House of Lords to secure Ferrers release after he was arrested as a debtor – and its worth noting that the Speaker was unable to prevent Ferrers’ arrest only get it revoked after the fact.

And the third is Charles I attempt to have several MPs arrested for treason in 1642.

But all these precedents relate to situations in which Parliament was in session – there’s no precedent that would allow the Speaker to decline a warrant while parliament is not in session nor any means for the Speaker to secure the authority for such a move without recourse to parliament, which is precisely why Green was arrested last week during a period in which parliament was prorogued.

Hmm, I wonder who leaked the pre-Budget 15% VAT plan…

Believe it or not, there is some speculation that the Treasury are wondering the exact same thing…

Not all leaks make the public domain and in this case, it may well be that some of the 15-20 other documents that the police suspect may have been leaked but which haven’t been forwarded to the press that may better explain this situation and the reasons why the police were called in to investigate.

Excellent post… well said and well researched.

The only thing the trolls can say in response is ask level the ‘stooge’ accusation. Typical.

So Mr Galley is a young Tory , giving details to a Tory front bencher. How Typical! All that clap trap about the public having a right to know is bollocks.

Mr Galley should be sacked, and no doubt Tory central Office can find work for him . Or Ian Dale could find him a job in the Tory Mafia. Lots of Tory welfare for people loyal to the party.

Tim:

You’re making a very basic error here by assuming that this isn’t an OSA inquiry simply because no one has yet been charged with an offence under that Act and, presumably, that its only the leaks from the Home Office that are under investigation.

We don’t know definitively what the basis of the Police investigation is only what charges they’ve been able to evidence sufficiently to obtain arrest warrants for , but the involvement of what used to be Special Branch tells us that OSA is at least a starting point for the inquiry.

My understanding is that there is some considerable truth in the suggestion that the Police are also looking into possible leaks of financial information from the Treasury, which would absolutely be considered a breach of OSA.

Unity ,

There is No point in debating Tory trolls like Tim. They are a waste of space. Let them fuck off back top the swamp they came from.

So fair enough, the police are entitled to investigate whether Green really did bribe a civil servant to leak things, and since Green seems to have been using what was leaked to him to make party political points rather than to attempt to hold the Government to account in Parliament, he’s got at least a little cheek calling on some high-minded public interest defence. The interesting question is about how you think an alternative would work. You basically gesture in the direction of some kind of properly functioning Freedom of Information Act. The idea presumably is that by democratising access to the kind of information that Green was getting access to, you eliminate at least some of the political point scoring – since private individuals don’t have the same interest in such point scoring – and gain in terms of our capacity to hold the Government of the day to account – since we would have relatively unfiltered access to information about the processes by which it makes decisions. Any such system though is going to involve some gate-keeping function: to ensure that things which really do need to be kept secret are, and to ensure that neither requests nor responses are vexatious. You then wonder how that gate-keeping function is going to work: for example, there seems to be good reason to treat otherwise identical requests for large quantities of information by a private individual and a national political party or a journalist differently; the former is more likely to be vexatious and not in the public interest (or at least, not as in the public interest: unless you’re going to have an infinite number of resources to complete requests, requests are going to have to be prioritised, and I think there’s a decent case for prioritising some by political parties or journalists over some of those by private individuals). But then, the devil’s going to be in the detail: how exactly would you avoid recreating a system in which those with, for perfectly good reasons, the resources to process and disseminate information effectively continue to restrict access to it? I freely admit knowing nothing about how Freedom of Information works in the States, but it doesn’t seem obvious that it’s going to be a panacea.

Hang on, so an overpaid useless idiot who wanted to make use of confidential documents to make Labour look “soft” (i.e. not racist) on immigration, gets arrested by the police on suspicion of criminal offence?

A man can get shot and killed just because he looked like an Asian, and we’re not living in a police state?

Two brothers can have their house invaded by police and get shot at, and we’re not living in a police state?

Control orders, ID cards, DNA databases, “anti-terrorism” laws, and we’re not living in a police state?

And now we’re living in a police state?

So basically, being a liberal these days means you’re a softer version of a Tory, i.e. spineless and hypocritical? So much for Liberal Conspiracy then.

Unity is completely right. Anyone with business calling themselves a liberal shouldn’t shed any crocodile tears over Green ‘grooming’ a civil servant to obtain a list of those Labour rebels who were preparing to do the right thing and stand up to the government on 42 days detention. Yes, the Tories voted against it too: but you can bet your CCHQ bribe-a-civil-servant-voucher if they win the next general election they’ll change their minds about it.

Green was motivated by a desire to stick it to Labour. Nothing else. If he was suspected of committing a crime, the police have as much right to arrest him as they do any suspect. So what if he’s an MP? That makes him an employee of the public! MPs aren’t above the law.

All this bullshit about the Speaker having to resign. Pull the other one, Tories!

ChrisP:

This is just the normal politics of leaks… The first 2 instances seem to come under this grouping. It is not secret it is just embarassing.

All of which is (a) nothing more that I’ve been saying right from the outset and (b) an indication that while the two leaks were the most embarrassing at the time they are almost certainly the least important elements of the police’s case against Galley and, especially, Green.

Of the other leaks one seemed to be of Labour MPs who would vote against 42 days. One question – what was the home office doing with this information? This is party political, surely something for the whips.

Not to mention a matter on which the Whips Office would brief the Minister responsible for steering a particular bill through Parliament as a matter of routine. What the leaking of such information cannot be considered, in any reasonable sense, is whistle-blowing, hence its likely that this is one of the matters that the police have been specifically looking into.

As for Tony Benn’s comments, well, much I’ve got a tremendous amount of time for him he does have a tendency to speak of parliament in wholly idealistic terms which can be some distance removed from the reality of a situation like this. If you understand that the ideal of Parliament is Benn’s personal Camelot then you understand where he’s coming from even on occasions like this where there’s every possibility that he’s got it wrong.

Sally: You really are not helping.

Rob, we could make all information available by default unless it is a matter of national security or personal privacy (the latter two things testable by court).

Sally:

I think you’re rather mischaracterising Tim who, much as I’ll often disagree with him on political matters, is actually one of the more perceptive and penetrating Tory bloggers out there.

I’m not at all sure that his somewhat drive-by comments on this issue do him full justice but on past acquaintance he stands, in my view, as one of the more formidable political adversaries on the Tory side of the blogosphere because he does know his stuff, especially on constitutional matters on which, if I read him correctly, he is very much a conservative in the grand tradition of Burke.

Rob/UKL

We could make at least make a start by having a Freedom of Information Act that doesn’t incorporate 28 clauses worth of exemptions or read like it was drafted by Milo Minderbinder.

I am no expert but I thought whistle blowing only applies to official secrets act information

The QC said the leaked documents were “embarrassment material” and important to holding the government to account.

“It’s really not state secret, national security, terrorism, financial jeopardy, loss, gain or otherwise – nothing remotely like that.”
(BBC)

This is the kind of information that could be revealed with a parliamentary question. If you look at Robert Pestons blog and think of the damage that has done in the financial markets to some banks then this is small fry.

I have a rule of looking at motivations, as you have noted for Labour, i.e. this will only look bad for them. I explain the Tory response equally, if they do not come out and fully support their man, it will look like he is guilty. They have worked to change their image from the 80s/90s (whether or not you agree they have actually changed)

That explains it all to me. The main issues I see are the role of police, opposition and parliament. It is seems too much like Gordon Brown at PMQs. He will do or say anything if he thinks it will get one over on the tories. 10p tax – show the tories we can cut tax. Osborne ‘in breach of protocol’ talking about devaluation. Osborne should be investigated by ‘authorities’ for turning down donation. Criticising Cameron in reply to 6th question, when all parties trying to work together.

Not quite Chris.

A qualifying disclosure under the Public Interest Disclosure Act, which is what covers whistleblowing in law, must satisfy one or more of the criteria on this list:

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged, or

(f) that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

But, such a disclosure is not protected in law if the individual making the disclosure commits a criminal offence in the process, so its impossible to claim whistleblowing as a legal defence if the disclosure breaches the Official Secrets Act and the common law public interest defence used successfully by Clive Ponting was explicitly removed as an option by the Tories in 1989.

Point taken but is evrything in government secret?

I will definitely stop crying crocodile tears over Green’s arrest…the moment that “positive government news story leak” sources are too arrested. Unless of course the privilege of government means that getting press time your way, for political ends, is less illegal than someone doing it for the opposition.

I will gladly eat my words should it turn out that Green or Galley have been sharing things that couldn’t be found through an arduous FOI request, or parliamentary question (which will only get answered when the time is “right”), otherwise I believe that this sort of article is simply condoning propaganda while lambasting mudslinging. You have both, or you have none, otherwise the balance of power is far too skewed…and that is ultimately what this whole episode shows all too clearly.

Lee:

You’re just not following this are you?

There are certain types of government statements and announcements where matters should, by rights, be put to the House before they are released into the public domain, although in practice what will happen if the government plays strictly by the rules is that the press will be issued with a statement that’s officially embargoed until after the statement has been given to house.

That rule has, admittedly, become rather like the Pirate Code – more sort of guidelines – but I for one would have no objection if a minister was hauled over the coals by the relevant Commons committee (not sure if its Standards and Privileges or Public Administration that has jurisdiction) for briefing in advance of informing the House on a matter where the House should have been informed first.

Beyond that, the government can release whatever information it likes, when it likes and under any conditions it likes – after all, what its releasing in its own information.

The practice of briefing journalists in advance of an announcement in no sense stands as justification for the theft and unauthorised disclosure of information in which there is no extant and legitimate public interest, and by that I mean information which relates to the apparent concealment of misconduct or misadministration in government, and if that places the government in the position of being able to run the news agenda to its own advantage then so what – its up the opposition to respond and try and knock the story off the top of headlines or persuade the press to substitute its preferred take on the story for the line being promoted the government – and, of course, vice versa where an opposition party issued a press release and manages to grab the top billing.

Two of the four leaks at the centre of this case are entirely unrelated to matters in which there is either undue concealment of information that should have been reported to parliament or any evidence of misconduct, maladministration or incompetence.

So far as the letter from Jacqui Smith to Gordon Brown is concerned, i.e. the one that warned of the possibility that a a recession might lead to a rise in crime, there is no legitimate public interest in the letter in and of itself, although such an interest might conceivable arise in hindsight if, for example, such a warning were to be ignored by the PM who then went on to authorise a reduction in policing budgets, leaving the Police with insufficient resources to cope with a rise in crime that a Minister has correctly predicted in advance.

Were that to occur then a clear public interest in the contents of the letter may well arise but such an interest can only be accurate assessed retrospectively and only in the context of any policy decisions which it may have either informed or failed to inform.

However there is a political interest in the letter insofar as its contents could be construed as supporting specific opposition narratives but such an interest is neither an assurance that a legitimate public interest also exists nor sufficient grounds to justify the theft and unauthorised publication of what is, after all, private correspondence.

As for Whips Office briefing on potential Labour rebels in the 42 days vote, any legitimate interest in the voting intentions of MPs is settled by means of the publication, in Hansard, of the division lists showing how MPs actually voted when the division was called.

The theft and unauthorised publication of such a private briefing serves no legitimate purpose – if you personally want to know how your own MP intends to vote on a particular division then you’re perfectly entitled ask and he, or she, is perfectly entitled to disclose that information or tell you piss off and mind your own business as they see fit – all of which renders Galley’s attempt to characterise his actions as being motivated solely out of a sense of public interest and the public’s right to know a complete load of bollocks.

As I noted in the full article, no one has yet come up with any convincing argument as to why the Whips Office briefing should be considered a matter of legitimate public interest or to have anything whatsoever to do with the otherwise legitimate objective of holding the government to account – of the four leaked documents linked to Galley and Green, so far, that’s the one with the smoking gun and the one on which the debate surrounding Galley’s conduct should focus.

Point taken but is evrything in government secret?

Not by a long stretch, but many things that are not secret per se but which can still legitimately be considered to be confidential, privileged or simply private, for at least some period of time.

I think this is a perfectly legitimate point of view.

But for goodness sake can we stop pretending that e.g. Tony Benn, or Jeremy Corbyn, is expressing “Tory” outrage?

Otherwise you simply come across as partisan.

Yes –

The letter from Jacqui Smith to Gordon Brown – I think that there is legitimate public interest in the warning, particularly as Brown is the type to list of ‘achievements’ in relation to crime rather than appreciate that crime may go up in harder economic times. If he acknowledged this publically it would rule out his comparison with the recessions when the tories were in power, as Labour have been in power during a benign economic climate (was it called the perfect calm).

I would admit that the whips office briefing does not have that much public interest, however I remember at the time there were lists on the internet of MPs who would vote against, so it was hardly rocket fuel in an unheard of story. More like filling in the details. If this is the worst element of this whole affair though I cannot see how the police could not of asked a few quiet questions, asked Green in for a chat.

The only possible thing I can think of is that he has further information which will embarrass the government, but the whole affair seems overblown to me. Nobody comes out of it any better, labour look out of control, mud sticks to the tories, the police are overreaching themselves, possibly trying to improve chances of getting chief of met job.

Yes its an interesting defence of the Labour Party ( which looks pretty silly in the pight of the thioer own activities but still..) . I wonder how you now feel about your equally torturous defence of those responsible for the death of baby P ?

“Rob, we could make all information available by default unless it is a matter of national security or personal privacy (the latter two things testable by court).”

So, what do we mean by ‘available’ here? Presumably not just a gigantic public library of reams and reams of unidexed paper, since that would hardly be very useful. Some indexing system is going to have exist, and that indexing system is going to have to be policed, in order to ensure that neither the Government nor those making requests are taking the piss. How will that policing take place? On what basis will requests be prioritised? And when you say ‘testable by court’, do we mean before or after the fact? Will the court proceedings themselves be public? Where will the burden of proof lie? If the devil’s in the institutional detail, then ‘available by default’ and ‘testable by court’ are not exactly going to help. I suppose what I’d really like is details of the American system works, and what its effects are. If the idea is to get rid of a culture in which democratic accountability cannot be properly exercised because of the way information is distributed, then I want to know that the proposed solutions will in fact distribute information differently. At first glance, for example, it does not appear to me that information is enormously differently distributed in the US. I’m by no means an expert though.

But for goodness sake can we stop pretending that e.g. Tony Benn, or Jeremy Corbyn, is expressing “Tory” outrage?

Who’s pretending that?

I know perfectly well where Benn and Corbyn are coming from and that their reasons for expressing outrage at Green’s arrest are wholly unrelated to anything contrived by the Tory spin machine, and by the same token I’m sure that there will be a few of the elder statesmen on the Tory benches whose personal disquiet at recent events is no less sincere than Benn’s even if its premised on a somewhat archaic belief in an ideal of parliament that is some distance removed from modern reality.

It should be no great surprise to anyone to see some of the old school democratic socialists lining up with the few remaining Burkian Tories to condemn Green’s arrest as a matter of principle. It doesn’t mean to say that they’re right but they are expressing a perfectly legitimate point of view albeit one that bears little or no relationship to largely synthetic outrage coming from CCHQ.

I wonder how you now feel about your equally torturous defence of those responsible for the death of baby P ?

Perfectly sanguine – the main objective of that article was to demonstrate that the information in the public domain at the time suggested a possible alternative narrative that deserved to be explored and examined, which it succeeded in doing.

I wasn’t necessarily defending anyone, merely pointing out that there were alternate accounts that were being ignored by the media and that it was, therefore, too soon to rush to judgement.

That said, I may well not be finished with this story as I have already had one or two intimations directed to me which suggest that yesterday’s inquiry report may not be absolutely on the level either.

Does it amount to a criminal matter, though?

That would depend on whether you consider theft and maybe a breach or two of s1 of the Computer Misuse Act to be criminal offences.

Er no, it depends on whether their actions amounted to criminal matters: disclosure of information is not in itself a criminal offence; nor do all means of disclosure involve criminal offences.

Actually, I shouldn’t really tease Newmania, so maybe I should say that what’s been suggested to me is that what the Ofsted inquiry found regarding Haringey is ‘what they were told to find’ in order to ‘placate the media’ and that, in particular, what should be questioned is the decision to task Ofsted with re-doing the Serious Case Review, from which only the revised executive summary will be placed in the public domain. rather than carry out an open inquiry into the case.

This, its been suggested, may have more to do with a desire to rewrite history to fit a particular narrative than it has to do with ‘learning’ any lessons from the case itself.

Thanks Unity – I’m really not trying to troll here, but there are still points that don’t add up. I’ll try and put together a more reasoned post soon, but what is troubling me is as follows:

1. This was by any measure a very heavy-handed action by the police. Regardless of the official designation of the force involved (reports said anti-terrorist police, Larry picked me up on this, they are actually “counter-terrorist police”. I’m not entirely clear on the difference) sending 20 officers to arrest and search Green’s home and parliamentary and constituency offices is an extremely serious step. It’s very hard to justify on the grounds that Green might do a runner, or destroy evidence – he’s a minister for God’s sake! When Tony Blair was investigated on a criminal matter, he was interviewed at a time of his choosing.

Probably the reason he was arrested was so that the search could take place – under s.18 PACE you can search the premises of an arrested person without a warrant. I don’t entirely like the implications of that.

2. Right. I’m really not *accusing* the Labour Government of anything here. I’m actually trying not to turn this into a party political thing. I am, obviously a Tory, but still… But the question of why the Home Office was not informed of this procedure remains a difficult one. The police obviously saw the political implications of this arrest – they told Boris Johnson, one of the Met’s ‘bosses’. They told David Cameron. Why didn’t they tell their other boss? It doesn’t make sense. We can talk about ‘operational independence’ all you like, but that would not have been affected had the police kept the Home Office in the loop on this – after all, when they informed Boris he said, basically, that this looked like a bad idea and they’d better be absolutely sure. But he didn’t stop them did he? What was to stop precisely the same information being passed to the Home Secretary?

3. The offence. Point taken that the OSA *might possibly* be brought into any prosecution (which will almost certainly never happen). However, the crime that has been alleged is not “breaching the Official Secrets Act” (under s5). Moreover, the OSA relates almost exclusively to security, defence and international relations leaks. It was not designed to cover memos to the Prime Minister about possible future crime levels. Given that, and unless there have been leaks that are national security or defence based leaks, the OSA will not apply.

Interestingly, you mention that the OSA *will* be an issue with the Treasury mole. Well, unless the leaks are about national security, defence or international relations, no it won’t. He could leak the whole budget in its entirety and it would probably not contravene the OSA. There’s a reason that the OSA martyrs have been sacrificed for the Belgrano, Trident and cruise missile sites.

4. So what we’re left with is this crime of ‘procuring misconduct in public office’. Well, that’ll be a right sod to prove. I don’t believe that it has ever been proved in court of law in fact. Green was a political journalist and a barrister. I would be surprised, shall we say, if he had left anything resembling a smoking gun here. Nods and winks are not punishable by imprisonment.

5. The protection for whistleblowers you refer to may well not apply here. It is clearly not acceptable for the Home Office to employ a politically motivated leaker. So unless the terms of the Act apply, fire him. *That’s* what that act is for – to protect workers from being sacked if they speak out – not to keep them out of chokey. The reason the police have gone down the ‘misconduct in public office’ line is because, if there is no OSA breach, as there probably isn’t – there is no other crime being committed here. Not by Galley, and certainly not by Green.

6. We don’t live in a police state, Labour doesn’t have a ‘Nu’ before it and Gordon Brown’s middle name is not Gabriel. The sheer political ineptness of the way the police have handled this so far is pretty strong evidence that the Government weren’t behind it. Peter Mandelson must be tearing his hair out.

I probably have more to say about the use of the ‘misconduct in public office’ offence, but that’s enough for now.

Trouble is, that’s just another tease!

Who is doing this “suggesting”?

Surely not those most heavily criticised?!

*cough*

Computer Misuse Act, section 1

(1) A person is guilty of an offence if—

(a) he causes a computer to perform any function with intent to secure access to any program or data held in any computer;

(b) the access he intends to secure is unauthorised; and

(c) he knows at the time when he causes the computer to perform the function that that is the case.

As emails constitute part of what was disclosed, if Galley was not authorised to access those emails and they were obtained from the Home Offices computer system then an offence may have been committed, although if that’s the case then I might wonder whether the HO would wish pursue such a charge given that it might suggest and unfortunate degree of laxity in its IT security arrangements.

Rob, I’m certain there is plenty of room for refinement in what I outlined. I think the basic principle, that information in the public sector should be made available by default to the public (with a couple of important exemptions), is rather a better one than to have officials be its brokers. Nor do we have to make all information available immediately under any such new law (nor could we, I suspect).

And when you say ‘testable by court’, do we mean before or after the fact?

I don’t know how or why you would want to test something in court before there is a complaint. But if the requester isn’t satisfied by the privacy or national security exemption, he would go through a similar process to the current FOIA processes, although hopefully there would be less opportunity for Government departments to procrastinate, more funding for the Information Commissioner’s Office, and swifter resolution in the courts rather than the years some cases seem to take up at present.

If the idea is to get rid of a culture in which democratic accountability cannot be properly exercised because of the way information is distributed, then I want to know that the proposed solutions will in fact distribute information differently.

The idea is to get us all on a similar playing field. It doesn’t have to be immediately perfect.

If the devil’s in the institutional detail, then ‘available by default’ and ‘testable by court’ are not exactly going to help

Well, to be fair I was trying to keep my comment short and not too off-topic…

Who is doing this “suggesting”?

Clearly, I’m not going to reveal my sources, nor will I go into detail until I’ve had chance to investigate the matter and determine whether there’s any evidence to back up what’s been suggested but this is not coming from within Haringey Council, and certainly not from anyone who’s been personally criticised by the report.

Let’s just say that there are some loose ends that have been brought to my attention by a couple of people who are very unhappy with some of the comments made yesterday in the course of releasing the report.

Sorry, but i really can’t say any more at this stage as although the matters I’ve pointed are interesting enough to merit further digging, this is still very much at the unconfirmed conjectural stage at the moment.

Rob:

To expand, just a little on UKL’s comments, one of the major difference between our own FOIA law and the Federal version in the US is how challenges on non-disclosure are handled.

Where we have the Information Commissioner and a statutory tribunal, both of which are notionally independent but essentially part of the civil service, in the US a challenge to non-disclosure is dealt with via judicial review.

I’ve got nothing but praise for the present Information Commissioner, who does a damn good job in often difficult circumstances and often sticks his next out to challenge the government, but in no sense can his office ever quite carry the weight of the judiciary as an arbiter in FOIA cases.

As emails constitute part of what was disclosed, if Galley was not authorised to access those emails and they were obtained from the Home Offices computer system then an offence may have been committed

but on the other hand, the emails may have been printed

I’ve got nothing but praise for the present Information Commissioner, who does a damn good job in often difficult circumstances and often sticks his next out to challenge the government, but in no sense can his office ever quite carry the weight of the judiciary as an arbiter in FOIA cases.

Quite, and in the really difficult cases he works out to be just another obstacle – in the sense of a stage in the process you have to exhaust before inevitably being informed that the Government will fight the issue before the Information Tribunal and the High Court if it has to.

This, its been suggested, may have more to do with a desire to rewrite history to fit a particular narrative than it has to do with ‘learning’ any lessons from the case itself.

Allow me to suggest that you are simply rehearsing the endless resort to bafflement that is always the recourse of the bureaucrat pulled out from under his rock. Or ( perhaps understandably to be fair ) congratulating yourself on your sophistry. It took me about second to know what had happened because I know what they are like .Its not as if its the first time and its not as if we have not all dealt with the Council and its idiot jobsworths . Its much the same with Green , we know who is involved , we know what they are capable of and we know Smith was lying because we heard her and we are ‘people’. I `m not especially excited about it , but to actually erect an “inverted pyramid of piffle” in defence is perverse . Move on as Tone would have said .

The problem is that this querying the precise blackness of black gets us nowhere On desert Island I would be freshly killed tasty pig while you sat around counting grains of sand and starting a your own currency .

That is the Liberal for you .

“Clearly, I’m not going to reveal my sources, nor will I go into detail until I’ve had chance to investigate the matter and determine whether there’s any evidence to back up what’s been suggested but this is not coming from within Haringey Council, and certainly not from anyone who’s been personally criticised by the report.

Let’s just say that there are some loose ends that have been brought to my attention by a couple of people who are very unhappy with some of the comments made yesterday in the course of releasing the report.

Sorry, but i really can’t say any more at this stage as although the matters I’ve pointed are interesting enough to merit further digging, this is still very much at the unconfirmed conjectural stage at the moment”

LOL! The famous “an unnamed source”! You can’t reveal anything because you havn’t had time to construct a mind-numbingly boring and pretentious piece that twists a minor and irrelevant point.

“Excellent post… well said and well researched.

The only thing the trolls can say in response is ask level the ’stooge’ accusation. Typical.”

The sycophancyon here is vomit inducing. All the valid criticisms of Liebour’s totalitarian actions have been made on other threads without reply from their friends.

The most damaging leaks of recent moths were those by BBC man and Treasury confidant, Peston, which allowed some people to make a lot of money in the City. Why isn’t this subject to police investigation?

The consequence of the Green affair will be that every leak will now be followed by a police complaint, which will waste resources and stifle the exposure of Govt lies – just what our pseudo-fascist State wants.

Unity,

Surely I can’t be alone in seeing your defense of the government’s right to secrecy as somewhat odd. I assume that the position we would want to get to is one where the presumption is of transparency rather than secrecy – i.e. that the business of government should be accessible unless their is a reason for it to be secret.

So Jacqui Smith’s warning to the Prime Minister that crime might be about to rise may not seem to you to be in the immediate public interest – quite frankly, it is little more than a statement of the conventional wisdom and, as such hardly even embarassing – but, equally, there is no reason at all that it should need to be kept secret. Moreover, there are perfectly forseeable circumstances (a round of cost cutting leading to reduced budgets) in which the letter’s presence in the public domain would assist in holding the government to account (by which I mean forcing them to properly justify their actions rather than preventing what may be an unavoidable round of cost cutting). There are even circumstances where this letter could help the Government out – if crime does not rise then the Home Office could say that the anticipated rise had been headed off by prompt action. To suggest that anyone should be prosecuted for passing on this kind of tidbit in order to defend the Government’s entitlement to privacy is daft.

As to the leak about potential rebels on the 42 day detention plan. Your objection seems to be that this was motivated by political partisanship. Maybe so, but there is another possibility – that it was motivated by principle. I don’t pretend to know which (although, like you, I suspect the former) but, once again, I fail to see how it is not in the public interest for more people to know how MPs intend to vote. Their votes in the chamber are not, after all, by secret ballot. Who voted which way is important, as is the question of who changed their minds at the last moment. It is certainly legitimate for a constituent to ask why their MP, who planned to rebel, changed their mind. Why shouldn’t the opposition ask the same question of, for example, Keith “recently ennobled” Vaz.

If you think, as many people do, that the Government has, of late, been rather over-mighty relative to Parliament then the whips’ office is one of the tools by which that dominance has been achieved. Therefore, even if we leave aside the nature of the leak, there is some justification for thinking that any leak which undermines the whips’ power is no bad thing. Moreover, even if you do think that the Whips’ Office is marvelous instrument by which the anarchic tendencies of the Commons are sufficiently constrained as to allow the business of progressive government to continue, you should still worry about the fact that a relatively junior Home Office functionary should have had access to a list of potential rebels compiled by the Government Whips’ office. Were civil servants being asked to ensure that all the potential rebels received special briefings on why the government measure had to be passed? Is that the role of an impartial civil service? Perhaps not.

You are right of course that the arrest of Damien Green does not make him a martyr and it certainly does not launder his voting record or his views. Nor, as I have earlier pointed out, does it make Jacqui Smith a villain unless and until some link between her and the police action is demonstrated. She cannot and should not repudiate the investigation until it either results in a prosecution or collapses.

However, unless the hitherto undisclosed leaks contain something a bit more controversial than the four so far released, I cannot see that there is likely to be a prosecution and, at that point, the PCS should consider whether this was the appropriate course for the investigation to have taken.

Two further points; your assertion that there is no negative connotation to the word grooming looks a little one eyed to me. You assert that one would need to pass over six online dictionaries to get to one that links the word to paedophilia but, that surely depends on which order you come at the dictionaries. And, when I typed the word into a simple google search, five of the first ten links used the word in the context of paedophilia, three referred to Green’s relationship with Gally and there was one reference each to beards and dogs. There wasn’t a single reference to preparing someone for a role or purpose (apart from leaking or under-age sex). And there are certainly other words the police could have used.

Finally, you may think Green is loathesome – he isn’t my cup of tea either – but the whole point about being a liberal is to defend people’s rights to do things you would rather they didn’t. A defense of people’s right to do exactly what you want them to isn’t liberal at all (although I think that may be the government’s understanding of civil rights)

Do the Tory trolls have any sense of hypocrisy?

They spout their claims that this site is a NuLabour front, and that we’re all partisan, and yet they do this while taking Tory positions on every issue. FAIL.

You.

Are.

Tiresome.

Morons.

Surely I can’t be alone in seeing your defense of the government’s right to secrecy as somewhat odd.

Eh? I don’t have that impression at all – I thought Unity was explaining the law as he finds it, not as he would wish it to be.

I assume that the position we would want to get to is one where the presumption is of transparency rather than secrecy – i.e. that the business of government should be accessible unless their is a reason for it to be secret.

I seem to recall Unity calling for this on a number of occasions, but that wasn’t the topic of his original article.

Tim:

1. So far as the manner of Green’s arrest in concerned, the charge that the police were heavy-handed is sustainable only if the number of officers assigned to case was in excess of the number that would normally be assigned to a similar inquiry in which the subject was not an MP.

The point’s already been made that if there is evidence that the police were grandstanding and putting on an unnecessary show of strength then, by all means, someone’s arse should be on the line – and if Green is aggrieved in that sense then he’s quite entitled to forward a complaint to the Metropolitan Police Authority.

Beyond that, the comparison with the interviewing of Blair during the cash for honours investigation, is an invalid one because Blair was never arrested, he was only interviewed as a potential witness. The valid comparison to make is with the arrest of Ruth Turner, who got the full 6am alarm call with all the trimmings.

2. What was to stop precisely the same information being passed to the Home Secretary?

Personally, I suspect the most likely answer to your question would be a direct instruction not to notify ministers until after an arrest took place.

If Smith had been informed in advance and then tried to intervene to prevent the arrest, she’s have got battered for interfering in an investigation for political reasons and, in theory, would have left herself open to a challenge by judicial review.

If, on the other hand, she’d have been informed in advance and chose to do nothing, then there’s every likelihood that MPs from all parties would have ganged up on her and mad an effort to use every parliamentary mechanism at their disposal to exact a bit of revenge, which could have led to anything from a ‘pay cut’ no confidence motion to Smith being hauled before the Standards and Privileges Committee on a breach of privilege charge to merely being given a really hard time on the next occasion she appear before the Home Affairs committee.

With those options on the table, the relative minor shit-storm she faces on account of relying on the ‘I know nothing’ defence is picnic.

3. The legitimate scope of OSA has been the subject of many a heated debate in the past. The original Act, as debated in parliament in 1911 (and on amendment in 1920) was originally intended to cover only cases of spying but over the last century its effectively remit has grown beyond mere national security, defence and international relations to encompass the more nebulous concept of the ‘national interest’, and its on that basis that financial data from the Treasury comes under OSA.

There’s a very nice archive of Hansard references to OSA here – http://hansard.millbanksystems.com/acts/official-secrets-act – which should provide some insight into the the range and scope of matters that have variously come under OSA (or not, in some cases).

4. As for the procurement of misconduct in public office offence, it may be somewhat less difficult to prove today than it might have been in the past, depending on how IT savvy Green is and whether email was ever used to communicate with Galley or transfer documents, but we’ll have to wait and see what the score is.

Oh do be serious of course she knew and had she stopped it she would have had to take responsibility for the position she holds .Thats the point isn’t it ? Do you really think these leeks ( as Sally calls them) of Mass destruction will loom leguminously from the mist in due course . They will not no doubt you will be feeling sanguine about having got this wrong in a few weeks

I notice that you fawning Labour apologists and hollow eyed acolytes in general are quick to draw an equivalency with Ruth Turner .Was she a senior MP dealing with information appropriate to his brief ? No .Was Green directly seeking to obtain cash for political advantage no . It is then , a quite different matter .Apart from anything else cash for honours was true and did constitute an attempt to defraud the entire political process . (Ruthy kept quiet didn’t she but then Ruthy is sucking on a tasty EU sinecure courtesy of the tax payer . That’s what I call serious grooming )

Unity – the terms of the OSA are pretty clear. I’ve also had a look, and been unable to find any cases where a non-security/intelligence/defence matter has been prosecuted under it. We don’t have a teleological system here – it doesn’t matter what the MPs think about the Act, what matters is what is physically within it.

The ‘national interest’ point is a defence to OSA offences, not a sub-heading for another offence under it. Unless the police can demonstrate that leaks involving security/intelligence/defence were made to Green, they will have no case under the OSA. That will apply to Treasury documents too. An example of a Treasury document that would be subject to the OSA would be, for example, a break-down of expenditure in MI5. The same document for the Health Service wouldn’t be covered.

On the information point – how much better is it really for Smith to have deliberately closed her eyes to this? Since she has taken the position that she could not have interfered, why not follow the Boris Johnson line of, perhaps, registering disquiet, or advocating proportionality, but not intervening? It smacks a bit of the ‘turbulent priest’ scenario dones’t it? And remember that Henry was the one who ended up doing penance for that one.

UKL

But the law hinges on the question of whether disclosures are in the public interest.

Unity seems to be saying that because these leaks do not meet the definition of the public interest set out to protect those who breach the OSA, a crime appears to have been commited and that Green’s parliamentary privilege cannot protect him from prosecution.

I am saying that the OSA does not apply and that the narrow public interest tests established for whistle blowers do not apply here. Therefore you should use a broader public interest test – is the public better off with this information or without it. Unlike Unity, I would argue that, although this information does help the Tories make their case and is therefore being used in a partisan way, that it is certainly possible to argue that all the four leaks about which we have heard detail are in the broader public interest.

If the information is in the public interest (even if only marginally) then there is no question of Gally having betrayed public trust in his offfice and therefore no question of a prosecution (although he does almost certainly deserve the sack for political partisanship) and if you can’t prosecute Gally then you certainly can’t go near Green.

My concern with Unity’s position is that is seems to imply that if leaked information could be construed as being politically useful to the party of opposition and awkward for the party of government then it should not be deemed in the public interest and that a prosecution could therefore ensue. Worse, he seems to say that leaking even neutral information (such as Jacqui Smith’s memo) would warrant a prosecution.

Our laws are not perfect but let us not give them their most draconian interpretation. And when the police seek to do so let us criticise them for it rather than damning Gally and Green for being despicable Tories.

“You’re just not following this are you?”

I’m following fine, you’re saying that the government leaking stuff for it’s own political benefit is fine, and that the opposition gaining access to things for it’s political benefit is not. I also don’t happen to agree with your assessment of the whip’s briefing over 42 days as I don’t think that (given it was a speculation document) it had any kind of private worth. But then I dislike the very nature of the Whip and the way votes are issued in a representative democracy from the top down, so maybe I’m biased there.

Looking through the Hansard references, incidentally, we find Tony Blair explaining the precise remit of the OSA in 1998:

“The six specified categories of official information covered by the Act are:

security and intelligence
defence
international relations
foreign confidences
information which might lead to the commission of a crime
the special investigation powers under the Interception of Communications Act 1985 and the Security Service Act 1989.”

They’re really prety narrow. The whole point of the OSA 1989 was to narrow down the previous incarnations, to avoid the disclosure of ‘trivial and unimportant’ matters being caught.

Tim:

You’re taking a very narrow view of ‘defence’ interests in regards to Treasury information.

For the purposes of confidential financial information held by the Treasury, the notion of the ‘Defence of the Realm’ includes the defence of Britain’s financial interests against manipulation by a foreign power.

Consequently, there is a broad range of primary financial data on the state of the UK’s economy and on the government’s economic forecasts, forward plans for taxation, public expenditure and public borrowing which is considered to fall within the ambit of OSA and, ironically, the example you gave of the leaking of the contents of the Budget, if done without official authority, is one of the clearest examples of a situation in which OSA applies to Treasury data.

As a general rule of thumb, if an unauthorised disclosure of economic data could enable a currency speculator, or a foreign government, to engineer a run on the pound or otherwise damage the UK’s financial interests and propel the UK into a serious financial crisis, then the Treasury can and will pull out OSA to prevent its disclosure.

The references to MPs not being “above the law” is all rather straw man isn’t it? No-one has claimed that they are. The main thrust of the complaints are twofold:

a) that MPs offices in the House of Commons should be subject to more-stringent-than-usual safeguards from police interference, in the same way that lawyers and doctors are. I think this is fair enough as there is confidential stuff in there

b) that the manner of the search was so overboard (9 officers is a lot, counter-terrorist or not) that there are insinuations that the whole operation was designed to menace rather than get information. As is pointed out, there was no request for a “quiet chat” beforehand. This part I think is probably untrue but is still a massive cock-up.

c) that Brown and Smith have painted themselves into a corner due to Brown’s inexplicable inability not to tell the truth. It seems implausible to most people that they would not have known that this ongoing investigation involved a current MP, even if they did not know the details including the arrest. Actually Brown and Smith have done nothing wrong here in the first place but Brown has made a rod for his own back by lying on the subject – shades of so many incidents including the non-election, the 10p tax rate and so on. If only he would learn that sometimes it is more expedient to tell the truth than spin, it would do him a world of good. Instead he consistently learns the wrong lessons from Blair.

Anyway the point of all this is that the spin war erupted over the first day and has to all intents and purposes ended. Even if Green were now to be found guilty of “grooming” (assuming that is the extent of the allegations) the public will only vaguely remember that Labour arrests opposition MPs. Cameron has done well on his side but most of all this is another classic Brown own-goal, an “unforced error”. From a polling perspective there is realistically only downside available for Labour over this debacle (although most people will effectively remain neutral). People just don’t need convincing about this kind of thing. Almost any other government at any other time would have more credibility than this current Labour government now, in defending this.

I love the idea that the government’s economic forecasts have any market value!

George:

I think the key principle in determining whether there is a legitimate public interest in a leaked document rests in the question of whether it, in any reasonable sense, contributes to the necessary process of holding the government to account for its conduct and actions.

In essence what we’re riffing on here is much the same distinction that Justice Eady made in Mosley vs News Group Newspapers (the News of the World) is so far as there is a difference between ‘the public interest’, which is an expression of ‘what is good for the public’, and ‘interesting to the public’.

The former should provide an individual responsible for leaking a document, or an MP who receives such a document and forwards it to the press with a valid defence for their actions, the latter doesn’t.

That said, there has been no public interest defence under OSA since the 1989 Act.

I love the idea that the government’s economic forecasts have any market value!

I think that’s more in the notional sense of its forecasts helping to inform and shape fiscal and monetary policy than in the sense of them having an intrinsic value of their own.

The critical stuff tends be the kind of information which would enable a speculator to pre-empt movements in interest rates, exchange rates and on the important bonds, gilts and even some of the commodities markets.

We’re now so embedded in the global financial markets that there’s a understandable element of paranoia in government about the possibility of a foreign power fucking with the markets,and its one that has more of an impact on Labour for its past history of having its economic policies derailed by a succession of Sterling crises.

Quite whether the Tories feel the same way and to the same extent I’m not entirely sure, but getting pushed out the ERM will certainly have left a few residual scars for all that I think it worked out for the best in the long run.

Nope. Doesn’t fly.

“In this section “defence” means—
(a) the size, shape, organisation, logistics, order of battle, deployment, operations, state of readiness and training of the armed forces of the Crown;
(b) the weapons, stores or other equipment of those forces and the invention, development, production and operation of such equipment and research relating to it;
(c) defence policy and strategy and military planning and intelligence;
(d) plans and measures for the maintenance of essential supplies and services that are or would be needed in time of war.”

I’m sure that the Government would like the OSA to mean more than it does, and may intend to amend it so that it does, but the wording of the legislation is clear. All the history on this one is that budget leaks are punished by resignations from ministers (ha ha) and internal disciplinary procedures on civil servants. The criminal law simply has not been used for this.

“Do the Tory trolls have any sense of hypocrisy?”
“They spout their claims that this site is a NuLabour front, and that we’re all partisan, and yet they do this while taking Tory positions on every issue. FAIL.”

Not saying its all New Labour. Some of you readily admit your allegiances. However, when you have an issue where the Labour Govt and our politicised police force have been slated by Lib Dems, Tories, back bench labour, and independent groups, you have to ask questions about their political allegiances. Of course, there are some people who will argue black was white just for the sake of an argument and there are a lot of posters on here who’s primary motivation in life is to attack the Tories and this immature outlook prevails over any principles they may hold, but Unity and Sunny devote a lot of time to defend Labour with very fatuous rhetoric. They have failed to convince anyone or respond to the vast majority of points put to them. Why are they so blind? Have they denied a Labour link?

Unfortunately for you, the position I’ve taken (as I’ve previously pointed out) is also the position of the Lib Dems. When you slate the Tories for their opinions, which are then supported by the LDs, you look either stupid or a Labour luvvie.

Unity,

Mr Eady’s distinction is of no relevance here because all four of the leaks that we know about are in the public interest albeit (as I acknowledged, only marginally). Besides, because we all presume that information should be freely available unless there is a good reason why it should not be, we should assume that, even where public interest is unclear, we should err on the side of presuming that disclosure is in the public interest.

It is surely clear by now that OSA does not apply here and, if the release of this information is in the public interest then neither could Gally’s leaks be construed as an instance of misfeasance because the do not undermine the public’s trust in his position. Therefore, no criminal act has been committed even under the lesser known catch-all offence of malfeasance in a public office. No criminal charges against Gally means no possibility of charges against Green (who is accused of conspiracy).

That is not to say that Gally is not in breach of his contract. He is and should probably be dismissed but he has not broken the law. And conspiracy to help someone get themselves the sack is not a criminal offence – let alone one with which the counter-terrorism apparatus need concern itself.

The cops have marched into Parliament chasing a will ‘o’ the wisp of an inquiry and they deserve the public’s contempt.

What they can have hoped to achieve by this, I cannot imagine.

Unless, of course, they were urged to do so by the Government after all, in which case, an enormous can of worms would burst open.

I agree with you that MPs should not be above the law, Unity, and that some of the support for Damian Green seems based on the idea that the innocent MP kerbcrawler should be honoured while the dirty civil servant tart should be ashamed.

I also think though that your position on the law and government secrecy is disappointingly old-fashioned – it’s the kind of argument Tories, policemen and senior civil servants normally make, and the fact that a Labour supporter is making it simply shows why many people think Labour has been too long in government and has gone native.

It may be wrong for a civil servant to leak information which he’s contractually bound to keep private, but to see it as criminal reflects the attitude I thought and hoped (and many of those who voted Labour in 1997 thought and hoped) we were slowly moving away from in the UK: the attitude that all government information, no matter how unharmful its disclosure, is a state secret and must be kept from the public by the most authoritarian methods. Fine, Christopher Galley is bound to be sacked, and I have no complaint about that. But to give him a criminal record simply for embarrassing ministers is authoritarianism itself.

Ministers do not own government, their political embarrassment is not per se contrary to national security or the public interest, and it is scandalous for them to look on with approving unconcern at these arrests, when they themselves leak like torn paper sieves for their own party political or personal advantage all the time – and without the risk of any sanction whatever.

I think this affair shows the need for legislation abolishing the common-law offence of misconduct in public office, if it’s going to be abused in this way.

Tim:

You’re looking at the wrong OSA…

Section 1 of the Official Secrets Act 1911

the 1989 Act does not affect the operation of section 1 of the Official Secrets Act 1911, which protects information useful to an enemy. The maximum penalty for offences under section 1 of the 1911 Act is fourteen years’ imprisonment.

There’s your catch all…

The sycophancyon here is vomit inducing

No one asked you to hang around chavscum. You singularly fail to add any piece of intelligence to any of your comments ever. You’re just a boring troll and frankly even newmania makes more sense than you these days. So there’s no sense in trying to lecture others.

Unity,

I think the key principle in determining whether there is a legitimate public interest in a leaked document rests in the question of whether it, in any reasonable sense, contributes to the necessary process of holding the government to account for its conduct and actions.

No, the key principle is “does this conduct amount to a criminal offence”?

If the answer is in the affirmative, then “is it in the public interest to proceed with a criminal investigation or is it better handled in an alternative way?”

(Also, “is it in the public interest to conduct a criminal investigation in a particular fashion?”)

We can talk about possible defences once specific charges have been made. Again, there will be a public interest here too.

Unity,

the 1989 Act does not affect the operation of section 1 of the Official Secrets Act 1911, which protects information useful to an enemy. The maximum penalty for offences under section 1 of the 1911 Act is fourteen years’ imprisonment. There’s your catch all…

With respect, I think you’re scraping the bottom of the barrel here.

I agree. This has nothing to do with official secrets.

I also think though that your position on the law and government secrecy is disappointingly old-fashioned

That’s because my comments here are a set of reflections on the law as it is, not on how I might wish it to be, with the core argument being that in no sense will democracy or the rule of law be well served the investigation is prematurely terminated or concluded without charges being preferred simply because one of those arrested in an MP.

The question of whether a disclosure is a criminal act or not is a complex issue because even if we treat the disclosure itself as simply a breach of contract, some consideration has to be given to the manner in which the information that was disclosed was obtained to begin with, all of which is a considerably more complex matter when you factor in the provisions of the Computer Misuse Act, which real does need to replaced with a piece of properly drafted and debated legislation.

On FOIA generally, the Act as written has more or less the right emphasis in presuming that information should be disclosed unless there’s a valid reason not to but it has rather too many catch all exemptions especially compared to the US where there are, IIRC, ten classes, one of which was a catch all ‘anything else specified in legislation’ until it was restricted by the first ‘Sunshine law’ to anything specified in legislation that came within the other nine FOIA exemptions.

Far more of a problem is the culture in the public sector which still presumes that information should be secret unless disclosure cannot be avoided and, in that,the lack of judicial weight afforded to the ICO’s office is a major problem. I find it interesting, to say the least, that while the Charity Commission actually does have a measure of judicial authority within its specialist field, the Information Commissioner does not and challenges to non-disclosure are remitted to a non-judicial tribunal.

And yes, I’d fully agree the common law offence used in this case is one that merits a referral to the Law Commission with a view to striking it off the books. I think there is still a need for some legal provisions for dealing with cases of petty corruption in public office, which is what I suspect these offences were intended to deal with – the kind of minor stuff in which any inducements put on the table fell outside provisions for dealing with bribery – but any such offence need to be defined in statute for the sake of clarity.

To be honest, I’ll be quite pleased when all the legal shenanigans die down sufficiently to get on to the political dynamics and lessons of this case, which are actually much more interesting as there has been one cited example of possible leak in which the document in question was not leaked to the press and used to embarrass the government but used, instead, to pre-empt a government policy announcement and create the appearance that Labour were nicking the Tories ideas when, if its verified that this document was leaked in advance of publication, it would appear that the Tories used a stolen document to steal a march on the government.

Such a case not only blows a hole in the public interest argument but has much more far reaching political implications and I’m inclined to see that as having more to do with the degree of orchestrated hysteria coming from Tory ranks at the moment then any genuine fear that Green will end up before the beak.

Incidentally, the offence of misconduct in public office is not so antiquated or draconian as is being assumed here. The vast, the overwhelming majority of cases using it are directed against police officers who abuse their position. Examples include looking up people’s details on the police network and passing them on to mates who want revenge, or deliberately standing aside and watching someone getting beaten up, or observed someone apprehended in custody having difficulty breathing, but doing nothing to help them.

In other words when someone “wilfully neglected to perform his duty and/or wilfully misconducted himself in a way which amounted to an abuse of the public’s trust in the office holder, without reasonable excuse or justification”. It’s a perfectly legitimate law, it’s simply that it fits these particular circumstances rather badly.

Still, you can see why the police are familiar with it. They’re more often on the other end of it.

Hang on, we’re getting off track with the OSA stuff, the relevance of which is only that the possibility that an enquiry into leaks emanating from the Home Office and/or Treasury might, conceivably, give rise of charges under OSA, which in turn explains why that part of the Counter Terrorism Command that used to be Special Branch was given responsibility for the investigation.

In that sense, the fact that the Home Office is one of the departments involved is sufficient reason for the CTC to be brought in play, after all, when the complaint was made the Cabinet Office could have had no definitive idea of exactly where the police’s enquiries might lead or whether any OSA information, say on counter terrorism activities, might have been amongst the information that wandered out the door.

The point I’m making in regards to the 1911 Act’s catch all for ‘anything useful to an enemy’ is that this can be and is applied also to certain types of sensitive Treasury information, which could hypothetically come in play if there’s any truth the rumoured existence of a fabled Treasury ‘mole’.

And absolutely finally on the OSA – Unity, you’re right the scope is there within the wording of s1 OSA 1911. I’d note though that that wording is so wide – it covers anybody obtaining anything that might be indirectly useful to an enemy – as to be useless.

The strictness of the rest of the Act is such that it is highly unlikely that the courts would allow what amounts to a catch-all provision to be used. By it, for example, anyone who read the articles in which the Green leaks were discussed would be liable under this Act. The title of the section “Penalties for spying” give a better indication of what it was meant for.

That said, what it was meant for doesn’t matter of course. Don’t see any action under it having a chance though.

As Tim’s raised the question of proportionality in the police’s handling of the investigation – which is an entirely fair question – it’s also worth reflecting on ACPO’s take on this case:

The Home Office occupies a unique position in government, with responsibility for decisions on crime and terrorism which affect the safety and security of everyone. To meet that responsibility in a way which delivers effective law enforcement to the people of our country requires complete trust between government, law enforcement and intelligence agencies. Leaks can and do erode that trust, particularly given the critical and sensitive nature of information the Home Office handles. In recent times ACPO has shared the concerns of the Permanent Secretary regarding leaks from his department. The Metropolitan Police Service was properly asked to assist.

One possibility that no one seems to have given any consideration to, thus far, in terms of accounting for Police’s ‘exacting’ approach in this case is the possibility that one of more of the suspected leaks may have rubbed their rhubarb up the wrong way.

If one of leaks didn’t just embarrass the government but also screwed with something that the Met had in the pipeline but hadn’t gone public with then that would almost certain ensure that Green and Galley would get a somewhat less than sympathetic bunch of coppers shipping up on their doorstep.

I see the Tory trolls or Tory intellectuals (if there are such things) still don’t get it. The Tories believe in freedom for me but not for thee. They see no problem with black people being arrested on the most flimsiest of evidence and then being held in a police station for 24 hours. Michael Howard’s solution to everything was to give the police more power. His solution to miscarriages of justice was to let the police destroy evidence from a case much earlier than before. Therefore the chance of the miscarriage ever coming to light would be reduced.

So when one of their own gets arrested and held for 9 hours, it is blatant hypocrisy for then to scream ‘police state.’ Let us imagine if it had been a Labour MP who was arrested after he received leeks from a Labour supporting civil servant, Working for a Tory govt. What you would hear would have been silence. Oh ,except for the odd Tory who would claim the Labour party is full of crooks.

This smacks of another David Davis bullshit parade. “LOOK AT ME, I AM FOR FREEDOM, BUT ONLY FOR ME.

I am just a bit uncomfortable with the idea that embarrassing the police guarantees the heavy mob turning up at your door…

Sally. Maybe I wouldn’t care if the situations were reversed. I hope not, but it’s possible I suppose. Does that make my arguments any less valid? After all, it is the arguments that should be addressed and not the people making them.

Anyway, back off under my bridge. Fol-de-rol.

Unity @79,

Last night Nick Robinson (BBC) wrote on his blog,

Update 19:48: What complicates this tale hugely is that it involves not just the politics of Westminster, but also the politics of the police.
Today was the deadline for applications for the top job in policing, the Commissioner of the Metropolitan Police – who, you might just have noticed, will be appointed by none other than the Home Secretary.
Among those who are believed to have applied today are:
• the man who authorised the arrest of Galley & Green – Sir Paul Stephenson, Acting Commissioner;
• the head of specialist operations at the Met which carried out the operation – Assistant Commissioner Bob Quick;
• the man who today offered ACPO’s backing for the way in which the Home Office has handled this inquiry – Chief Constable Ken Jones, the President of ACPO, who today issued a statement which will have been music to the Home Secretary’s ears.

Sally, what the hell are you talking about?

UKL:

Yep, that’s another possibility.

And there’s also, come to think of it, the possibility of a hangover from the cash for honours enquiry where the extent to which the police were both egged on and openly pressured not to soft pedal their approach may have left them with the feeling that any hint of the old ‘Well, you are an MP so let’s forego the usual and just have a quiet chat with the Chief Constable over a cuppa’ might not play too well with the same government who got more a tad pissed off at times when the police were arresting their employees.

“Maybe I wouldn’t care if the situations were reversed. I hope not, but it’s possible I suppose. Does that make my arguments any less valid? ”

In my opinion, yes, it does make your views less valid. if you would not care, then it rather shows up your hypocrisy on this issue. I will say one thing for you . You are at least honest to admit that.

I suspect that most Tories would not give a shit if the boot was on the other foot, which is why I believe they are being such two faced hypocrites about this. It is a bit like the power the Tory party gave to go after corrupt councils. It was fine on left wing councils ,but they got all stroppy when it was used against Wandsworth and Lady Porter.

Was it used against Wandsworth?

Do you mean Westminster ( which was Lady Porter’s borough)?

She got off lightly in the end unfortunately…

“Sally, what the hell are you talking about?”

Regards what?

As for Nick Robinson, I am sorry I don’t take him seriously. He is very biased to the Tory party in my view.

So now the allegation is that Labour is trying politicise the police. But the Boris is not?

Sally,

No-one here is defending the Tories decision to complain of Stalinism. But neither Galley nor Green should be under investigation for any of the leaks currently acknowledged to form the basis of this investigation. A successful prosecution for revealing information as trivial as this would set a monstrous precedent and if it were ever shown to have been politically motivated, the prosecution would take us a long way down a very dangerous road.

Tim J is honest enough to admit that he hopes he would be as enraged if it were a Labour leaker and spokesman in hot water but that he can’t guarantee it. That is pretty honest, pretty broad minded isn’t it? Quite keen to see the other point of view?

And, since one of the leaks is concerned with a Tory attempt to block the introduction of 42 days detention, for you to claim that the Tories are always the party of authoritarianism is pretty daft.

“Do you mean Westminster ( which was Lady Porter’s borough)?”

My mistake, yes, it was Westminster.

Aren’t you rather falling into the ad hominem fallacy there? One of the good things about the internet is that all you really have to judge people by is their arguments. Make your mind up on those, and ignore the rest.

Sally,

So now the allegation is that Labour is trying politicise the police. But the Boris is not?

I haven’t alleged anything. I’m not sure that is the allegation being made by other people either (although this allegation has been made before) – rather that the police officers could be perceived to be acting in the way that they have in order to please the person who has the final say on recruitment.

That of course is the danger of the process here – having a Home Secretary in charge of recruitment leaves the Home Secretary, the candidates, and whomever happens to fill the position, open to such accusations.

We could do with a debate about whether the Home Secretary (not just this one, any Home Secretary) is the best person to appoint a Met commissioner.

91. John Meredith

It is so depressing seeing soi-disant liberal blogs supporting the arrest of an MP for leaking information embarrassing to the government (but otherwise unremarkable). I have to ask again of those who defend the police in this: would you have been equally as complacent if the arrested person were a journalist or blogger, even if they had ‘procured’ the information? if not, your position is horribly illogical.

John:

I would expect the police to complete its investigation and the CPS to then decide whether there was sufficient evidence to justify a prosecution much I would expect them to do the same in Green’s case.

It’s called ‘due process’ and it applies equally to everyone, including MPs.

I am not supporting the police, I am attacking the hypocrisy of the Tory party, and their mob of frothing at the mouth media friends who have no problem having the police arrest all and sundry, but get all uppity when one of their own is held in a police station for 9 hours.

It’s the hypocrisy that I find revolting.

In addition, the allegation that Labour are politicising the police is laughable considering what Boris has just done. Remember, Boris has told the Home Secretary that she should not appoint a new Chief Constable of the Met until after the nest election. Which he hopes will them be a Tory home secretary. Now that is politicing the police in my book.

The Tory party is just not credible on any of this.

94. Alisdair Cameron

@ Sally (no.80)
“Michael Howard’s solution to everything was to give the police more power. His solution to miscarriages of justice was to let the police destroy evidence from a case much earlier than before. Therefore the chance of the miscarriage ever coming to light would be reduced.”
Agreed.
BUT did Blunkett, reid, Jacqui Smith etc etc remove any of those powers from the police? No. These days the Police don’t destroy evidence so much: instaed the investigation onto any of their wrongdoings is whitewashed (de Menezes, Forest gate. No apologies, let alone restitution etc)
No, the Tories aren’t tremendous friends of civil liberties in practice. Neither, though are New Labour:ID cards, censorship, blocks on freedom of assembly,barring protests, Brian Haw…

In the original post, Unity uses the word “immunity” to remind us that the same laws apply to MPs as the rest of us. MPs can speak more freely in the chamber than we can on Speakers’ Corner, and their correspondence with constituents is protected. There are probably other mitigations. But overall, MPs are subject to the same laws as you and me.

That fact is something for which we should be grateful. Do you really want a House of Commons full of the same excrement that you find in Italy, where elected politicians hide behind their immunity until the statute of limitations frees them?

When UK politicians reveal “secret” information, they should be judged in the same way as you or me. Does the disclosure serve the public interest? If information is received that solely serves a party interest, MPs should report it to the police or shut down their brains (not difficult, I agree).

It is actually better for society if MPs have to demonstrate “public interest” for their leaks. It means that you and I have the same defence if we do the same thing.

I, for one, would hope that the law would be applied consistently whatever the chargable offence.

Misconduct in public office may be upheld in this case, but I think most people would contend a widely cast net would catch many offenders, some of whom are likely to be of a higher order of criminal.

I also think the manner by which the events have proceeded should raise the subject of standards in public life to a new height as it is something which sullies the reputation of everyone involved.

So whoever is immediately blamed this is something which won’t easily be forgotten, just like the tanks at Heathrow (to add to the list of police state atrocities), and accumulated impressions of this sort will undoubtedly play a large role in deciding the outcome of the next election.

Principle #1 – No one, not even a Member of Parliament is above or outside the law.

That should be a simple enough concept for most but as some seem not quite to have understood thing properly it clearly needs to spelled out that the Palace of Westminster is NOT the ‘land of do as you please’ and ‘parliamentary privilege‘ does not – and never has – conferred any kind of blanket immunity to arrest or prosecution, on MPs nor does it preclude the police entering the House of Parliament in order to pursue their inquiries.

Looking around, I’m not sure anyone has said that MPs should be above the law. What some have said is that when the police took the action they did, they should have only done so on the basis that it was necessary and proportionate, and the thinking about proportionality should have included the unique role MPs play in our society. (Of course we do not know whether or not they did think about that.)

I agree with UKL, nobody wants MPs to be above the law. The difference that lies between the positions of various commenters is, should Green have been arrested, whatever his position.

Some of us seem to think that nobody should have been arrested for doing what Green is alleged to have done; others think that, given the regrettable state of the law, any citizen who asked a civil servant to leak anything at all could reasonably have been arrested by counter terrorist police and have their home and property searched. This seems to be Unity’s position (forgive me if I have misunderstood).

My own position is that it is extremely unlikely that a prosecution for conspiracy to misconduct would result in a prosecution because a court would be very unlikely to interpret the law in this way. From my understanding of the offence currently under investigation, the police have therefore erred in law. Moreover, such a prosecution would obviously be contrary to the public interest (except insofar as it would almost certainly result in the law on misconduct) and, since I understand that the CPS has to take the public interest into account when deciding whether to prosecute, it is unlikely that it would even get to court.

This therefore represents a serious error of judgement on the part of the police and, in my view, on the part of the speaker and sergeant at arms, who should certainly have asked rather tougher questions about the police’s request to search Green’s office because, although MPs are not above the law, the institution of parliament is entitled to a certain degree of additional protection from investigation.

I meant “..almost certainly result in a change to the law on misconduct)”

I just heard the speaker claim that it never occurred, either to him or to the serjeant at arms, to ask the police if they had a warrant.

They didn’t

If he had, wouldn’t the police have had to go to a judge to get one and isn’t there a good chance, in light of the above, that the judge would have told them to bugger off.

Stuff parliamentary privilege, I’d like to think that if the police showed up at my office asking to search my desk, my boss would ask to see a warrant. I certainly would if they arrived on my doorstep.

Still, perhaps it has turned out for the best – if this hadn’t happened, any one of the shower of senior police numbskulls involved in this witless decision might have become commissioner of the Met; it seems they’ve all applied.

The Guardian:

The Speaker said police contacted the serjeant at arms, Jill Pay, to request access to search Green’s office.

“I have been told that police did not explain, as they are required to do, that the serjeant was not obliged to consent or that a warrant could have been insisted upon.”

Martin said he “regretted” that the serjeant then signed a consent form without consulting the clerk of the house.

Sounds as though the serjeant should go…amazing really.

Video of Speaker’s statement here.

But the Tory party was quite happy to egg on the police when investigating Tony Blair a few years ago. They saw no problem with police officers marching into 10 Downing street and taking out computers. There was dark talk of a secret room where Blair hid all his ‘special ‘computers. “nobody should be above the law” they screamed. Now the boot is on the other foot they scream “POLICE STATE.”

Of course all Govts suffer leeks, but usually they are career civil servicemen, who after years in the job feel, as a matter of conscience, the need to leek something important. This is not the case in this story. We have a very young man who has been in post for 5 minutes, and has already leaked a number of documents to an opposition front bencher, who just happens to be in the same party as he is.

The Tory party have claimed that the information leaked was not under the official secrets act, and was small fry. Well, in that case the leaker is going to have a difficult time using the moral defence to justify his actions. This moves him from being a leaker of principle, and into the realms of a Tory mole. But was he a paid Tory mole?

Sally, I seem to recall more reasonable suspicion at the time of ‘cash for honours’ that there were criminal offences being committed than there is evidence of any criminal offence being committed in this case.

Of course we don’t know the nature of all these leaks – Jacqui Smith implies that they must be very serious indeed, involving national security, but this begs other questions.

The Tory party have claimed that the information leaked was not under the official secrets act, and was small fry. Well, in that case the leaker is going to have a difficult time using the moral defence to justify his actions. This moves him from being a leaker of principle, and into the realms of a Tory mole. But was he a paid Tory mole?

Eh? You seem to be conflating several things here. The essential principles are these:
1. did his conduct amount to a criminal offence;
2. was the way in which the investigation has been conducted necessary and proportionate;
3. was there a more reasonable alternative means of resolving this situation?

“Of course all Govts suffer leeks, but usually they are career civil servicemen, who after years in the job feel, as a matter of conscience, the need to leek something important.”

Do you have sources and actual facts to back up this statement?

107. Charlieman

Statistics can’t apply to leaks from career civil servants, because the events are so infrequent. However, we do have the case of Clive Ponting: high level CS, leaker, prosecuted, not guilty. Subsequently the government has emended the OSA so that “public interest” is no longer a defence; owing to the Human Rights Act, we can safely file that amendment with a law stating “no clouds on Thursdays”.

Civil Servants, today, have much more protection within the service. If a CS observes that parliament is being fed misleading information, s/he can raise that concern internally. Only in extreme circumstances should the CS leak information. Common sense suggests that if a CS is in such a situation, the information should not be leaked to a party buddy.

“If a CS observes that parliament is being fed misleading information, s/he can raise that concern internally.”

And keeping “misleading” information in the dark from the people being mislead is the *best* practice we have available?

@Lee 111

There is an easy set of steps if you think that (as a Civil Servant or plain Joe Smith) information should be disclosed.

1. Raise a complaint within government. Painful, but possible.

2. If 1 fails, leak. Then trust that you have a valid reason for leaking.

Step 2 is conditional upon step 1. If you haven’t worked through the system, expect little sympathy in the courts.

Clive Ponting was rightly cleared for a clear SOA breach according to earlier laws. Post-Ponting, leakers should go through step 1 and there are very few occasions when a unilateral leak is necessary. If a leak is necessary, it can be defended in spite of the cretinous denial of “public interest” in the OSA.

For the record, genuine whistle blowers are protected by the Public Interest Disclosure Act 1998. Advice is included in the Civil Service Code and in trades union resources.

I agree with Charlieman here. Surely it is reasonable to expect a civil servant who has genuine concerns to exhaust the (reasonable) internal processes before considering whether or not to leak? That is to say, leaking should be a last resort.

Does leaking amount to a criminal matter? Not in the general sense. It is however clearly a breach of the conditions of employment.

Of course it’s a breach of contract – no one denies that. The issue is whether it should be criminal.

As for exhausting internal processes, that’s easy to say, but you do need to factor into that two things. First, raising a concern like that will ruin your civil service career almost as effectively as being caught leaking will – you’ll be marked as a troublemaker. To be honest, I think from a selfish point of view it’s more rational to take the risk of leaking. Second, doing that makes it possible for the system to stop the leak – they can take original documents, remove e-mails, etc., etc., so the person who genuinely thinks the public has to be told about some scandal may, by raising it internally, give up all power to do so. In the end, “internal processes” can just be a way of allowing the machine to kill the leak and identifying a leaker at the same time. It may sound cynical and paranoid, but years in the civil service make you quite cynical and paranoid about it.

When I was a civil servant I made up my mind I would only leak in extreme circumstances (difficult to say what they are in advance, but an example might have been evidence of ministers colluding in a murder or some bad criminality, or lying to Parliament about some important matter) but if those circumstances came about, I would simply leak, not go through the internal processes designed to stop me.

HeadofLegal, fair points all. And I bow to your greater experience!

114. Charlieman

I acknowledge Head of Legal’s concerns about being marked as a trouble maker if you whistle blow. However, you do not whistle blow to your line manager; you step outside the heirarchy and raise your concern with somebody who is not a line manager. All large organisations provide a whistle blowing procedure. If you work for a small organisation (eg a contractor) then you may need to step outside formal procedures.

But what is wrong about being labeled as a whistle blower? It identifies you as capable of independent thought with moral values.

I guess you’ve never been a civil servant, Charlieman! It’s not that I’d be concerned about what my line manager would do; I’d be concerned about what my head of department or permanent secretary would do, which would most likely be to take all the evidence, tell me not to worry about it and mark my card as not suitable for progression. The size of the organisation doesn’t help you at all, and in fact Whitehall departments aren’t all that big: top managers know you, chat about you and can easily control your career.

To be any kind of leaker, apologist for leaks of soft-pedaller on leaks of any kind is to be seen as a counter-cultural rebel, making trouble and threatening the machine. It’s amazing how much disapproval you can attract simply by, say, talking about this Greengate affair in anything but the most condemnatory terms about Chris Galley. Not a good idea in front of bosses. Independent thought? Moral values? As I say, I don’t think you’ve ever been a civil servant!

116. Charlieman

Thanks for the careers advice, Head of Legal. Whilst not having a criminal record, I have twice failed negative vetting, so I am somewhat surprised that Chris Galley actually got a job given his overt interest in party politics.

Some years ago, I thought about taking the civil service exams. WIth the application pack was a psychometric test. You answered a series of questions by saying how important a number of things were to you on a scale of one to five and they gave you a score which put you in one of four personality types which were then rated from “you’re just the sort of chap we want” to “well, you’re always welcome to apply…”

Having done the test and fallen squarely into the latter category, I reverse engineered the test to find out the sort of person that they were actually looking for:

The answer was someone as unlike me as it was possible to imagine for all sorts of reasons but I remember one question in particular:

How important is creativity to you in your work?

The answer they wanted was two out of five.

Who actually values creativity this much? I can imagine not valuing it at all – I personally value it a lot – but 2 out of 5? Just enough to realise that it is sometimes important but not so much that you actually want it to be part of your day.

Not that I am saying that civil servants are actually like that at all. What I am saying is that that seems to be what civil service managers’ ideal candidate would be like. It made me think


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