Examination of Witnesses (Questin Numbers
1-19)
DAMIAN GREEN
MP
19 OCTOBER 2009
Q1 Chairman: Before we begin evidence
it may be for the convenience of those with an interest in these
proceedings to know that the Committee will normally meet at this
time on Mondays, although not every Monday due to other prior
commitments which Members have already undertaken. The Committee
will operate on a presumption that it will meet in public to hear
all evidence, but if any witness has any particular objection
we will consider carefully any representations which may be made
to us. We have asked witnesses to prepare written statements for
their and the Committee's convenience and these will be put up
on the website together with any supporting documents. Mr Green,
thank you very much for your attendance. In a moment I will ask
you, for the record, to identify yourself and give us a very short
account of your parliamentary history. Perhaps I could say by
way of preliminary remarks that we have read your paper and, as
I said a moment or two ago, it will be published, so it may be
that taking that as the background we can move straight to questions,
unless there is any particular piece of the paper or paragraph
that you wish to draw to our attention.
Damian Green: There is an updated
version, both compressed and extended, if you understand, which
I would quite like to read out if that would help.
Q2 Chairman: Do you have a copy of
that?
Damian Green: Yes.
Q3 Chairman: Perhaps, for the record,
you will identify yourself.
Damian Green: I am Damian Green.
I am the Member of Parliament for Ashford and the Shadow Immigration
Minister. I have been a Member of the House since 1997.
Q4 Chairman: Thank you very much.
Would you like to give us that updated version you have just described?
Damian Green: Thank you. Thank
you for inviting me to give evidence. As a non-lawyer I think
I can best help the Committee by outlining what happened rather
than engaging in legal arguments over privilege. I will obviously
restrict myself to those police actions and actions of the parliamentary
authorities which directly impinge on the issue of privilege.
I start with the Johnston report which was published recently
which reveals that the police approached the Serjeant at Arms
on 20 November asking in general terms about the search of a Member's
office. The Johnston report concludes that the police did not
comply with the requirements on search under the codes of practice
brought in by the Police and Criminal Evidence Act 1984. On 26
November, again according to the Johnston report, the Serjeant
at Arms went to consult the Clerk to the House of Commons at the
Palace of Westminster and she intended to consult the Speaker.
The following day, she gave the police permission to search my
room. The effect of this permission was that the police did not
need to apply to the magistrate's court for a search warrant.
This account from the Serjeant at Arms seems to contradict the
Speaker's statement to the House on 3 December when he said: "I
regret the consent form was then signed by the Serjeant at Arms
without consulting the Clerk of the House". Now, either the
account in the Johnston report is false or parts of the Speaker's
statement are false. I assume the Committee will be taking evidence
to try to determine who knew what and when they knew it. On the
Saturday, two days after my arrest, I phoned the Speaker who told
me that I should know he had not authorised the raid on my room
but had been told that he "had to allow it". I am afraid
I cannot remember if I asked him who had told him that. The Committee
will be aware of the various proceedings on the floor of the House
in the subsequent days. What they may not be aware of is the extensive
attempts I and my legal advisers made to have the issue of privilege
determined by the House. I have sent the Committee, as you know,
a number of documents showing the full extent of my attempts to
have the issue determined by the Standards and Privileges Committee
and the full House. In practice, what happened was the Clerk made
a decision, even though I would suggest he had no authority from
Parliament to do so as he could only make recommendations, which
the police took as final, as they showed in their letter of 10
February, and on the basis of this the police looked at all the
remaining material without Parliament ever being given the chance
to decide whether any of it was privileged. Throughout this process
the House authorities were entirely unprepared to co-operate with
me. This reached a nadir when the Director of Public Prosecutions
and the Speaker were engaged in correspondence about the timetable
for resolving the privilege issue. The DPP copied his correspondence
to my solicitors, as would be normal and transparent in this kind
of matter. The Speaker, despite my request, refused to do the
same. I found it ironic that a Member of Parliament under criminal
investigation found the prosecuting authorities more willing to
be open with him than the House of Commons authorities. On 5 February
I attempted to make a point of order about the refusal of the
Speaker to refer the matter to the Standards and Privileges Committee.
This was cut off by the Deputy Speaker on the advice of the Clerk.
This produced another bizarre irony in that I was at liberty to
comment freely about this important parliamentary matter everywhere
except in the House of Commons. The conclusion I reached was that
the controversy surrounding my arrest and the fact that the House
had allowed the police in without a warrant on the basis of legal
advice, which I assume came from the Clerk, meant that the Commons
authorities felt unable to fulfil a properly neutral function
from then on. I hope the Committee can consider whether this is
a systemic problem or one which could and should have been avoided.
Q5 Chairman: Thank you very much
for that. I am sure we will deal with some of these issues which
you have flagged up in your opening statement. I wonder if I might
go a little further back. Mr Green, as you know, the Bill of Rights
protects your freedom of speech as a Member of Parliament, as
it does the House and its Committees. The consequence of that
is whatever you say will be taken down and published, but cannot
be used against you in a court of law. May I begin by asking,
for the record, whether you received unauthorised disclosures
of Home Office material from Christopher Galley?
Damian Green: As the world knows
I did receive a number of documents which revealed various scandals
happening inside the Home Office and I made those public, yes.
Q6 Chairman: I was going to ask if
you knew how they got into the newspapers, but I understand from
your first answer that you were the mechanism by which they got
into the newspapers.
Damian Green: Yes.
Q7 Chairman: I wonder if I might
ask you a general question. In the event that your party were
to form the next government then there is a reasonable likelihood
that you might become a minister. What sort of standard of loyalty
would you look for in relation to people like Mr Galley in the
event that you were a minister?
Damian Green: If those two events
happen, if my party wins the next election and if I become a minister,
I will have the same attitude as all ministers in all governments,
that I will disapprove of leaks and I will attempt to stop them.
As we all know, politicians of all parties have profited from
leaks in the past, most notably perhaps the current Prime Minister,
and what they tend to reveal is the serious problems in the department
itself. I think a responsible attitude of any politician of any
party, but particularly an opposition politician receiving them,
is obviously to make a test of our national security, whether
this endangers national security, or perhaps in particular whether
it breaks the Official Secrets Act and clearly that would then
be a criminal offence to make it public. As the Committee will
know, the Director of Public Prosecutions made clear that nothing
I did could be described like that at all. Therefore, to revert
to your original question, throughout history there have been
leak inquiries, some successful and some unsuccessful, and it
seems to me that the response should be an internal departmental
one, it is not something where the police should become involved
in any way unless there is a threat to national security. Almost
the most serious thing that happened in this case, if we are going
back further and widening it beyond parliamentary privilege, was
that a senior official in the Cabinet Office wrote to the police:
"We are in no doubt that there has been considerable damage
to national security already as a result of some of these leaks".
That statement was false and it is quite clear both in the Johnston
report and in the DPP's response that the idea that any of the
leaks I was engaged with endangered national security was simply
false. To be told by the Cabinet Office that there is "no
doubt" that national security had been endangered was a very,
very strong statement from the Cabinet office and a false one.
Q8 Chairman: Can I just explore that
with you for a moment or two. Who makes the decision that something
is not putting national security at risk? Supposing Mr Galley
had begun to provide to you information which related to one of
the security services for which the Home Office is responsible,
what would you have done in that situation?
Damian Green: If I had been given
information that suggested to me that national security was being
put at risk I would have privately spoken to ministers, that would
have been the appropriate response there, but the situation never
arose or anything remotely like it.
Q9 Chairman: You draw a distinction,
which I think the Committee will understand, between issues of
national security where, using the rather portentous phrase, the
defence of the realm may be at stake and the sort of information
which you received, but a judgment has to be made by someone as
to when that particular line is crossed. In the analysis you have
given us I think you rather suggest that would be a judgment for
you as the MP, or anyone else as an MP, in receipt of information.
Is that right?
Damian Green: I can only speak
about the information I received. I took the clear and, as it
turns out from everyone else who has looked at it, correct judgment
that national security was not put at risk. I did not consider
the hypothetical situation of what would happen if I was given
a national secret. Some of it can be deduced from the Civil Service
classification of the material I was given, some of which was
restricted. One of the things that the leak investigation was
concerned with was a PLP document commenting on the various states
of minds of individual Labour Members. This is as far away from
national security as it is possible to get in a political arena,
it seems to me, and yet the police became interested in that kind
of document which, as I say, seemed to me strange.
Q10 Chairman: Let me ask you something
which is not hypothetical. Do you think that Mr Galley deserved
to be sacked for what he did?
Damian Green: I can understand
he was dismissed; it has happened to previous civil servants.
Q11 Chairman: At any time in your
exchanges with him did you point up to him that that was a possible
outcome of these events?
Damian Green: I cannot remember
ever having an explicit conversation about it, but he had worked
in the Civil Service for a number of years and I assume knew what
he was doing.
Q12 Chairman: I have to ask you this
question: in your exchanges with him did you ever encourage him
to break what I think you would have recognised as a duty of confidence
as a civil servant?
Damian Green: No, absolutely not.
One of the things I am pleased has been published in the Johnston
report is that he investigated quite carefully what the police
have described as "the relationship" between me and
Mr Galley. It was put to Mr Galley in the police interview that
the relationship was "loose" and he volunteered "very
loose", and indeed that was the case. Over a two and a half
year period we met on four occasions, and on all four occasions
at his instigation I think, so the idea that there was some close
permanent relationship between us was always false.
Q13 Chairman: Did he seek you out
in the first instance?
Damian Green: Yes. He did not
seek me out, he wrote to David Davis who was the then Shadow Home
Secretary.
Q14 Chairman: I deduce from the quite
lengthy answer you gave a moment or two ago that you regard the
reaction of the Home Office as being an overreaction to bring
Scotland Yard in to investigate these allegations of leaks. Do
you accept that a decision of that kind may be quite a difficult
decision to take against a pattern of leaking if the implication
is that although something which does not raise issues of national
security does not come out there is nonetheless the risk that
if the pattern goes on there might well be an instance of something
involving national security?
Damian Green: I take the point
you are making. My understanding is that it was the Cabinet Office,
not the Home Office, that was the driving force behind actually
bringing the police in and I have already commented on what the
Cabinet Office said to effect that.
Q15 Chairman: Can we call it "government"
for the moment. It is quite a difficult decision, is it not?
Damian Green: I agree it is a
difficult decision. What is interesting is that Mr Galley was
first identified by an internal investigation if you read the
Johnston report, so actually the whole police involvement was
unnecessary, they had succeeded in a leak inquiry where common
conception is—
Q16 Sir Alan Beith: Very unusual
to succeed. Most leak inquiries are unsuccessful.
Damian Green: Leak inquiries never
succeed. Actually, this leak inquiry was successful. There was
never any need to bring the police in, and yet the police were
brought in with this very, very strong untrue rubric that national
security had been breached.
Q17 Chairman: The charge of "misconduct
in a public office" technically can lead to a life sentence.
What is your view of that charge being proffered in this matter?
Damian Green: Indeed. While I
was being interviewed by the police I was told I faced life imprisonment,
as I understand Mr Galley was as well.
Q18 Chairman: Did you take that threat
seriously, Mr Green?
Damian Green: I thought it was
ludicrous. In other circumstances I would have thought it was
laughable but the situation is not very humorous when you are
banged up in Belgravia nick. It was clearly an attempt to get
round the effect of changes to the Official Secrets Act in 1989.
Very specifically, in 1989 leaks from the Civil Service were taken
out of the Official Secrets Act precisely, as far as I can see,
because after the Ponting case and one other case it was clear
that juries were not going to convict civil servants who leaked
even much more sensitive documents than Mr Galley leaked. At some
stage between 1989 and now somebody had thought, "Is there
a common law offence that we can twist a bit and try and use to
bring back effectively a criminal sanction against leaking?"
and I imagine the effect of their failure to prosecute either
me or Mr Galley will be that will go away, and so it should. Parliament
made its view very clear about the use of the criminal law against
leaking and it seemed to me then, and it seems to me now, that
attempting to recreate that offence under a fairly archaic common
law offence should fail, and has failed.
Q19 Sir Alan Beith: Were you ever
given the impression by the police that either you or Mr Galley
were being investigated or might be investigated under the Official
Secrets Act which you or he would have been if there was a genuine
allegation of a threat to national security?
Damian Green: No. Again, it is
clear in the Johnston report, and do not forget his report was
done a couple of weeks after my arrest, that he is struck by the
fact that at the early stages of the police investigation there
was lots of talk about national security but by the time it came
to interviewing both Mr Galley and me no mention of national security
and no mention of the Official Secrets Act was made.
| 
