Conclusions and recommendations
The Home Office and the Cabinet Office
1. We
consider that Home Office officials were at fault in allowing
an exaggerated impression to be formed by the Cabinet Office of
the damage done by the leaks. (Paragraph 13)
The Cabinet Office and the Metropolitan Police
2. While
we can understand the Cabinet Secretary's concern arising from
the wider pattern of previous leaks, the reference to national
security in the letter from the Cabinet Office to the Metropolitan
Police Service of 8 October 2008 was ill-judged. We agree with
the Home Affairs Committee that giving the impression that national
security had been damaged by the Home Office leaks was hyperbolic
and unhelpful. Civil servants who perpetrate leaks are quite rightly
liable to disciplinary action, with consequences up to and including
dismissal. (Paragraph 17)
3. In our view the
impact of leaks on the conduct of Government business is not,
and never can be, a sufficiently weighty reason in itself to justify
a police investigation. (Paragraph 18)
4. We wholeheartedly
agree with the tone and content of the Cabinet Office guidance
paper on official information standards of conduct and procedures,
in the revised form issued in November 2009, and we endorse in
particular the need for an honest and realistic assessment of
any damage caused by leaks. (Paragraph 20)
National security leaks
5. We
are concerned by the Cabinet Office's continued failure to identify
the source of other leaks across Government of more highly classified
material. (Paragraph 21)
The Police and the Crown Prosecution Service
6. In
our view the Metropolitan Police made the wrong decision after
their discussions with the Crown Prosecution Service on Wednesday
22 October 2008. (Paragraph 29)
Misconduct in public office
7. We
consider that if sufficient rigour had been shown on 22 October
2008 the conclusion reached on 16 April 2009 — that the
facts failed to reach the standard required for prosecution—could
have been reached six months earlier. (Paragraph 53)
8. We agree with the
Public Administration Select Committee and we wish to emphasise
that the common law offence of misconduct in public office should
not be used in relation to allegations of leaking of information
in order to subvert the clearly expressed will of Parliament to
limit the application of the Official Secrets Act to protecting
only information whose disclosure is likely to be damaging to
the security and intelligence services, to the armed forces, to
the interests of the United Kingdom abroad or to the prevention
and detection of crime. (Paragraph 54)
9. We recommend that
the published CPS guidance should be updated to include the Director
of Public Prosecutions' position on the offence of misconduct
in public office, as set out in his Statement of 16 April 2009.
(Paragraph 56)
10. We recommend
that the Law Commission re-visit its 1997 recommendation that
misconduct in public office be made a statutory offence, in the
light of developments of the past dozen years. (Paragraph 57)
The Cabinet Office
11. We
deplore the Cabinet Office's failure to follow its own guidance
by not calling a case conference which could have ensured a properly
balanced approach was taken to investigating the Home Office leaks.
(Paragraph 24)
12. The comments made
by David Davis on the BBC, the day after the arrest of Damian
Green, do not excuse the decision made by the Cabinet Office on
8 October to call in the police to investigate the apparent unauthorised
disclosure of unclassified or restricted documents to certain
newspapers. (Paragraph 35)
13. If the Cabinet
Secretary had been adequately briefed about the stage the leak
investigation had reached by 22 October 2008, it could and should
have been called off. (Paragraph 59)
14. None of the leaks
of which Christopher Galley was suspected had inflicted any damage
on national security. There was no basis for the concern that
the potential for future damage to national security was significant.
The Cabinet Office was wrong on 29 October to continue to press
for a police investigation of the recent Home Office leaks, and
it was a mistake for the Metropolitan Police Service to act upon
the Cabinet Office's request. (Paragraph 60)
The arrest of Damian Green
15. We
have no hesitation in agreeing with Sir Ian Johnston that the
decision to launch the surprise arrest of Damian Green was disproportionate.
(Paragraph 67)
16. While we note
the decision of the Gold Group chaired by Assistant Commissioner
Robert Quick to take stock of the evidence from Christopher Galley
before making a decision on whether and how to arrest Damian Green,
we find their approach difficult to understand or justify. (Paragraph
68)
17. The arrest of
Damian Green by the Metropolitan Police was poorly executed and
in any case quite unnecessary, since the police could have arranged
to interview him by appointment. (Paragraph 70)
18. We condemn the
covert use of electronic surveillance, which was not authorised
in the way that good practice normally requires. (Paragraph 71)
Search warrants
19. We
are deeply concerned by the sloppy wording of the written informations,
upon which search warrants were obtained, and their inconsistency
with the true character of the leaks uncovered in the actual investigation
which must have been known and understood as a result of the scoping
operation. (Paragraph 74)
20. We are clear that
to exaggerate or to make a mistake in a written information submitted
to a Judge when applying for a warrant is to breach lawful standards.
(Paragraph 75)
The Police and the Palace of Westminster
21. We
take this opportunity to commend the professionalism and dedication
of the police staff who serve at the Palace of Westminster. (Paragraph
81)
22. We recommend that
SO15 either be re-named or that it be stripped of any role in
dealing with non-terrorist offences. (Paragraph 88)
23. We would expect
the House authorities to co-operate fully with police operations
genuinely directed against a possible terrorist threat, but they
ought not to allow a mistaken perception that alleged offences
might be linked to terrorism to over-ride their better judgement.
(Paragraph 89)
24. We consider that
the failure by any police officer expressly to advise the Serjeant
at Arms of the right to refuse consent was symptomatic of the
sloppy approach of the police in this case. It is true that failure
to do so does not necessarily make a subsequent search unlawful
but there was no excuse not to observe proper procedure. (Paragraph
98)
The Clerk of the House, the Serjeant at Arms and
the Speaker
25. The
conversation between the Clerk of the House and the Serjeant at
Arms on the afternoon of Wednesday 26 November was a missed opportunity
to recognise and forestall the storm which broke over Parliament
when Damian Green's office was searched. In that short exchange
the information not given, the questions not asked, the assumptions
made and the misunderstandings caused led to confusion which could
and should have been avoided. We remain perplexed that the seriousness
of what was being discussed did not alert either of the two protagonists
to enquire further of each other. (Paragraph 93)
26. We agree that
Mr Speaker Martin's Statement on 3 December 2008 was accurate,
in that the conversation between the Clerk and the Serjeant was
not a proper consultation, but we regret the opportunities missed
on the afternoon of Wednesday 26 November, first, for the Serjeant
to alert the Clerk to the intended police operation and, secondly,
for the Clerk to make clear to the Serjeant the limits to her
authority. (Paragraph 94)
27. In the circumstances
we are surprised that no effort was made to convene a meeting
of senior officers of the House and the Speaker on the evening
of Wednesday 26 November to consider the significance of what
was about to take place and the possible consequences to the House
itself. (Paragraph 100)
28. We consider that
seriously inadequate communication between these three key figures
— Speaker, Clerk of the House and Serjeant at Arms —
resulted in complete misunderstanding about the proper process
for allowing a search of a Member's office. Had all three been
more persistent in their questions and more forthcoming in their
responses they must surely have appreciated the nature of events
and their unfolding significance. We agree with Lord Martin of
Springburn that the House officials should have served the Speaker
better, and the Clerk of the House has rightly apologised that
matters were not better handled; but it was inescapably Mr Speaker
Martin's responsibility to make sure the right questions were
asked. Mr Speaker Martin failed to exercise the ultimate responsibility,
which was his alone, to take control and not merely to expect
to be kept informed. (Paragraph 115)
The Speaker's Committee
29. In
our view it would have been possible for the Speaker to use his
power to allow a Member of the House to move a Motion referring
the matter of the search of a Member's office to the Committee
on Standards and Privileges, instead of proposing that a new committee
should be appointed. (Paragraph 126)
Matters relating to privilege arising from the
police operation
30. We
do not consider that anything the police did amounted to a breach
of privilege or a contempt of the House but the conduct of the
police in this matter clearly fell below acceptable standards,
as the Johnston and O'Connor Reports bear out. We understand that
the Metropolitan Police has accepted the conclusions of those
Reports (Paragraph 140)
Matters relating to privilege: recommendations
for the future
31. The
freedom of the press to report Parliament fairly is a matter which
would need proper attention in any re-statement or revision of
the law on parliamentary privilege. (Paragraph 163)
32. It would in our
view be a mistake for Parliament to legislate in haste or to address
only one aspect of the multi-faceted relationship between liberty,
Parliament and the law. While we have no unanimous conclusion
on the wisdom or necessity of legislating on parliamentary privilege,
we agree in recommending that before any Government Bill on the
subject was introduced it would be highly desirable for the whole
question to be addressed in the round by a special joint committee
drawn from both Houses. Before setting out to define and limit
parliamentary privilege in statute, there needs to be a comprehensive
review of how that privilege affects the work and responsibilities
of an MP in the twenty-first century. (Paragraph 169)
The views of the Committee: the offences
33. When
the Director of Public Prosecutions announced on 16 April 2009
that he had decided that charges should not be brought against
either Christopher Galley or Damian Green for the offences alleged
against them, it was because on the particular facts of the case
there was no realistic prospect of a conviction against either
of them. (Paragraph 170)
The views of the Committee: leaks and the Police
34. We
endorse the four concluding Recommendations of the O'Connor Report—
1. That the Metropolitan Police Service, together
with the Association of Chief Police Officers (ACPO), review and
formalise guidance on police investigations involving high impact
cases, to fully incorporate the principles of 'without fear or
favour'.
2. That the Cabinet Office reviews the Civil Service's
capability to respond to leaks and facilitates the development
of appropriate standards of preventative security and investigation
in accordance with departmental risks.
3. That the Cabinet Office review its guidance to
departments on leak investigations to clarify that the police
will have the lead in Official Secrets Act inquiries or other
very exceptionally serious criminality but that the Cabinet Office/departments
will deal with other leaks and agree the guidance with police.
4. That the police, Cabinet Office and Crown Prosecution
Service jointly agree a protocol that provides checks and balances
for future investigations recognising that decisions on the conduct
of investigations must ultimately rest with the police. (Paragraph
171)
The views of the Committee: searches on the Parliamentary
Estate
35. We
give our support and endorsement to the Speaker's Protocol of
8 December 2008, which makes clear the indispensability of a Judge's
search warrant, while reserving to the Speaker on behalf of the
House the responsibility for ensuring that any such warrant is
executed with proper respect for the functioning of Parliament.
We recommend that the Speaker's Protocol should be drawn to the
attention of any future Speaker, Clerk of the House or Serjeant
at Arms of their initial briefing, handover or induction. (Paragraph
172)
The views of the Committee: the House of Commons
Service
36. We
have set out in this Report our views about the response of the
House authorities and particularly that of the Speaker, the Clerk
of the House and the Serjeant at Arms to an unusual challenge
to the good management of the House of Commons. Despite the progress
made since the Tebbit Report towards a more unified House of Commons
Service, our inquiry has demonstrated that there were lapses in
communication, induction and lines of accountability and responsibility
at the very top of the organisation. (Paragraph 173)
37. As Chief Executive
of the House of Commons, the Clerk of the House should have made
sure that the Serjeant at Arms had a better grasp of the limits
of her authority, that she was fully aware of the McKay Memorandum
of July 2000, and that she realised that no claim of confidentiality
should have prevented her from making sure that the Speaker and
the Clerk of the House were fully aware of the intended police
operation affecting a Member of Parliament. (Paragraph 174)
38. We recommend that
the next review of Management and Services of the House of Commons
should take place early in the new Parliament, to continue the
series which runs from Ibbs (1990) to Braithwaite (1999) to Tebbit
(2007). We would like to see a fresh examination of the roles
and responsibilities of the officers of the House and the Speaker
to ensure the effectiveness of the support for individual Members
and the good management of the House. Such a review should include
greater clarity on the role of the most senior personnel, line
management responsibilities, and lessons to be drawn from best
business practice as well as the management of other comparable
legislatures. (Paragraph 175)
39. While the House
and its Speaker could and should no doubt have been better served
by their officials, the Speaker himself should have been asking
the right questions and he should have taken more responsibility
for exercising the authority of his high office. (Paragraph 176)
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