Police Searches on the Parliamentary Estate - Committee on the Issue of Privilege Contents

Examination of Witnesses (Question Numbers 820-839)


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 security matters?

  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 in fact.

  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 Galley.

  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 other leaks.

  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 investigation.

  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 is—I 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 few months.

  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 clear—we 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 of—sorry, 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 had—well, that I mistakenly thought we had.

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