Examination of Witnesses (Question Numbers
O'DONNELL KCB AND
14 DECEMBER 2009
Q820 Chairman: Do you have a continuing
investigation then, in relation to those leaks which you say raise
issues of national security?
Sir Gus O'Donnell: We have investigated
every leak as it has come up, sometimes involving the police in
the earlier ones. At the moment, we have no new information to
guide us on that.
Q821 Sir Alan Beith: Is the basis
for your concern a statement by an Opposition politician that
half of the leaks that come to them or him do involve national
security or similar matters which they therefore do not use, so
the quantification of this material is your reading that an Opposition
spokesman says that half the stuff that comes to them should not
be used for those reasons?
Sir Gus O'Donnell: That is one
factor. The other factors are the national security leaks which
occurred in the run-up to the Galley investigation; again, we
do not know the source of those leaks.
Q822 Sir Alan Beith: These are known
and specific leaks of particular information?
Sir Gus O'Donnell: Specific pieces
of information, which have appeared in the public domain. Obviously,
the reason I mentioned that other quote is those refer to leaks
which by definition have not been in the public domain, because
someone has decided not to put them in the public domain.
Q823 Sir Alan Beith: Could there
be a bit of hyperbole about that quotation? Might it be an unreliable
source for measuring how many leaks there have been on national
Sir Gus O'Donnell: I am not in
a position to judge that.
Q824 Mr Henderson: Sir Gus, I was
about to take up the point that Sir Alan raised, that I was experienced
in Opposition up until 1997, and there was a lot of hyperbole,
because at the time, often to justify the use of information you
had, which was quite selective, you had to pretend that there
was a much wider pool of information from which you had drawn
in order to raise your credibility and your supposed objectivity
on the matter. I am not suggesting for a moment there are not
serious concerns about leaks, but would you think there might
be some exaggeration involved in this?
Sir Gus O'Donnell: One could imagine
that "about half" might be an exaggeration, but the
fact that that number is quoted, let us imagine the truth is half
of that, I would still be very concerned.
Chairman: It is not just hyperbole, of
course, it is saying how trustworthy and sensible and how concerned
about the public interest the person making the statement is trying
to establish himself to be, is it not? It is a self-serving quotation
Q825 Ms Hewitt: I just wanted to
come back to your point, Sir Gus, about the earlier wave of leaks,
because at the point where Chris Wright wrote to Assistant Commissioner
Quick, actually on 8 October 2008, although the letter is dated
8 September, he refers to "a number of recent leak investigations
that raised questions about the security of sensitive information".
Not all of them taken individually would have merited investigation
by the police, but you were worried or he was worried that there
were people in the Home Office with access to sensitive information
prepared to leak that information. He then says, and I think this
is the critical sentence: "We are in no doubt that there
has been considerable damage to national security already as a
result of some of these leaks." That included or indeed was
written in the context of the leaks that had taken place between
2005 and 2007, which were not the same as the leaks which ended
up being established to have come from Galley.
Sir Gus O'Donnell: Absolutely,
I think when you look at the evidence that Damian Green has said,
this is the heart of it really. As he says, he mentions the point
about "there has been considerable damage", saying that
statement was false: "any of the leaks I was engaged with
endangered national security was simply false", that is true.
The point being that when you investigated this, we were hoping
that the information, which as a starting point would take some
of these embarrassing leaks, would lead us to some the source
of the national security leaks. In that sense, the investigation
failed, because it did not do that. Certainly the leaks that were
found, that Mr Galley admitted to, did not cover national security.
Q826 Ms Hewitt: But at this point,
the Home Office's internal investigation had not identified Mr
Sir Gus O'Donnell: Absolutely.
Q827 Ms Hewitt: So you had no idea
that there was a separate non-national security leaker.
Sir Gus O'Donnell: Exactly.
Q828 Ms Hewitt: You could simply
see the pattern.
Sir Gus O'Donnell: Yes, and we
were hoping that because there had been some new leaks, we thought
that might lead us to the person or persons responsible for the
Q829 Ms Hewitt: This letter was written
several weeks before the quote from the Opposition spokesman referring
to half of the material he got in brown paper envelopes being
national security, or otherwise sensitive.
Sir Gus O'Donnell: Yes.
Q830 Ann Coffey: In the Cabinet Office
guidance on investigating leaks which we talked about in a previous
Committee hearing, there was a threshold at which action could
be instigated, including police investigation, and that was serious
and damaging interference in the functions of Government. Some
people would say that actually it is the job of the Opposition
to seriously damage the functions of Government, that is an effective
Opposition, so I think people might be a bit sort of disquieted
to find out that that in itself might be the subject of a police
Sir Gus O'Donnell: When we come
to consider a police investigation, I think the way we would interpret
that is it would certainly be anything which affected national
security or counter-terrorism issues, those sorts of areas.
Q831 Ann Coffey: But it does not
say that, does it? That is your interpretation.
Sir Gus O'Donnell: That is the
interpretation I would give. I think seriously damaging the way
Government operates, I am not sure I would entirely say that isI
would not define the role of the Opposition as that, actually.
Q832 Ann Coffey: They might though.
Sir Gus O'Donnell: They might,
but I would not.
Q833 Ann Coffey: Do you think that
that guidance could be rewritten to make it much more clear what
that actually refers to, so there is not that
Sir Gus O'Donnell: We are revising
the guidance, I will hand over to Robert who is in charge of that.
Mr Hannigan: Yes, Mr Chairman,
as you know, the Cabinet Secretary sent to the Public Administration
Select Committee the revised high level guidance as a result of
the O'Connor report, attaching to it the protocol which has been
agreed at HMRC's request. He also asked us to revisit our capability
for investigating leaks, we are doing that, and we will submit
to the Official Committee on Security early next year. He also
asked us to look at the general guidance which I know you have
had a copy of, the handling of unauthorised disclosures and national
security cases guidance, so we will be revising that in the next
Q834 Ann Coffey: One of the points
is that, of course, the CPS were considering the prosecution of
Damian Green under this offence of misconduct in public office,
which sounds extremely serious, of course it carries 20 to 25
years in prison, and one of the points that the police who gave
evidence said was part of the problem for them was deciding exactly
what they were investigating; you know, part of the Official Secrets
Act, or this particular offence or what, and they maintained there
was quite a lot of confusion. Do you yourself feel that the offence
of misconduct in public office is a helpful offence in these modern
times, and in the context of leaks and in the context of guidance,
and the threshold that I have talked about before?
Sir Gus O'Donnell: I think it
would have to be for the Crown Prosecution Service in consultation
with the police to decide on what is the appropriate charge to
go for. All we do is provide the police with information, as the
complainant, about what the leaks are, and what the potential
damage of all of those leaks might amount to. It is for them then
to decide what to go for. I must admit, I had only had experience
of dealing with the Official Secrets Act, I had never had experience
of that particular offence being used before.
Q835 Ann Coffey: I do understand
your function in this. I think my question was really about, given
we had this huge melting pot of various things going into it,
do you think the fact that we had the CPS considering a prosecution
of misconduct in public office, which I understand is a common
law offence dating back to the past century, we had counter-terrorism
officers involved, we had guidance which also indicated there
could be police action taken if there was a serious and damaging
interference in the functions of government. Do you think it all
created this melee of offences and official secrets and damage
to the government, et cetera, et cetera, which there was not a
sort of clarity around? Do you think actually, that made defining
your functions more difficult?
Sir Gus O'Donnell: Not particularly.
I mean, I think it is fairly clearwe provided information
about the material that had gone out. Like I say, it is then for
them to decide; if they had clear evidence of something which
breached the Official Secrets Act, then that would be straightforward.
Q836 Ann Coffey: But you were not
dealing with the Official Secrets Act.
Sir Gus O'Donnell: They were potentially.
You keep going to the ex post. We did not know ex ante what the
material was, that this source was responsible for. It was quite
clear, once you got to the situation where the various items that
Mr Galley admitted to leaking, that is a Civil Service Code issue.
I would not go anywhere near either of those legal issues personally.
So I thought it was a very clear-cut case.
Q837 Mr Blunkett: Can I just follow
up on that? Given the juxtaposition of the 2005-07 pattern of
leaks which led to concerns and which you indicated remain concerns
about national security, and the failure, and I noted the words
"admitted to", in terms of Christopher Galley known
leaks, do you think that even given the revised guidance and the
protocol that Mr Hannigan has referred to, that there will now
be a reluctance to actually engage the police when there is understandable
doubt as to whether what is occurring is part of the concerns
relating to national security, as opposed to that Civil Service
Code, and the leaks which everyone round this table will have
experienced, but if others will forgive me, I think probably Michael
Howard and I found the Home Office to be a sieve at most times.
Sir Gus O'Donnell: I think you
are right, there is an issue there which we need to be careful
about, in terms ofsorry, your first point, David, could
you just repeat
Q838 Mr Blunkett: Yes, it is that
we understand, I think, the retrospective nature of how this is
seen; given the pattern of leaks, you were looking for something
that related to national security. The Galley leaks turned out
not to be as admitted by him. You have got the new protocol, but
I am concerned in terms of the fact that this juxtaposition was
shown not evidentially to have occurred in the way that you imagined;
has that dealt a blow, is there a change in attitude in relation
to following through your continuing concerns on national security?
Sir Gus O'Donnell: I think personally,
what I have found and what I have learnt from this lesson, and
we have learnt issues to do with the guidance and the like, is
the extent to which you completely lose control when you hand
over to the police. So not knowing that they were about to arrest
an MP, not knowing that this was done on the basis of things which
actually did not get into the national security area at all. If
I had been consulted, I have been very clear on the record on
this, if it is on the basis of that, they should not have gone
anywhere near an arrest.
Q839 Ann Coffey: But the problem
Sir Gus O'Donnell: The trouble
is, you see, that is why we will, I think, be somewhat reluctant
in future, because we do not have the control that we thought
we hadwell, that I mistakenly thought we had.