Examination of Witnesses (Question Numbers
840-859)
SIR GUS
O'DONNELL KCB AND
MR ROBERT
HANNIGAN
14 DECEMBER 2009
Q840 Ann Coffey: But the problem
was that there is this offence called misconduct in public office,
which meant that they could carry on investigating under this
particular offence.
Sir Gus O'Donnell: But I am sure
we will all learn now from the decision made by Keir Starmer as
DPP, he was very clear, I think he said: "There was a potential
risk that highly sensitive material relating to national security
might be disclosed. This damage should not be underestimated and
once the pattern of leaks was established in this case, it was
inevitable that a police investigation would follow." But
then to my mind, it is fairly clear, once you go down that route,
if you do not go down the route of a national security issue which
is covered by the Official Secrets Act, I think people will infer
from the fact that the DPP decided no charges should be brought
that other—he is very clear that this sort of material,
and I agree with him, is stuff that should be covered by the Civil
Service Code and internal disciplinary matters, not by that offence
that you talked about.
Q841 Chairman: But there was something
which was known, and that was the nature of the revelations, if
that be the right way to describe them, which Mr Green was making.
None of these raised any issue of national security. They were
about immigration, about statistics, about things of that kind.
Sir Gus O'Donnell: Absolutely,
which is why the whole point—let us be absolutely clear
about this, there is absolutely no intention of investigating
Damian Green. We asked for the source of the leaks to be investigated.
That is what we were concerned about.
Q842 Chairman: You thought you were
fishing for a much larger catch.
Sir Gus O'Donnell: Or catches,
inside the Home Office, that was the issue for us.
Q843 Sir Alan Beith: There was something
else that you knew, you and Mr Hannigan's predecessor knew what
the arrangements for the handling of secret material in the Home
Office were, so can I take it you had a pretty good idea of what
Mr Galley would have had access to?
Sir Gus O'Donnell: Yes, he was
cleared up to secret level, he was in a position close to ministers.
Q844 Sir Alan Beith: Well, being
in a position close to ministers does not give him access to material
outside the category for which he is cleared, does it, or do you
think that it does?
Sir Gus O'Donnell: No, his security
clearance would determine the access, and he was cleared up to
secret.
Q845 Ms Hewitt: But if I may, Chairman,
you did not know it was Mr Galley at the point where you brought
in the police.
Sir Gus O'Donnell: Exactly.
Q846 Ms Hewitt: So Mr Galley's security
clearance was not relevant at that point surely.
Sir Gus O'Donnell: Indeed. That
was the reason why, when we heard about this, and you get the
name and you know what the security classification is, then you
think, ah, there might be something there, but actually you discover
later there was not.
Q847 Chairman: The other point I
wanted to put to you is you yourself said, had you known then
what you know now, and the lack of control that you had, once
the police were involved, you might have taken a different course,
but have you noticed the actual impact that the nature of the
investigation had on proceedings in this place? The fact that
Mr Speaker gave evidence to us that when the counter-terrorism
command was mentioned as the source, he formed the view that this
must be a very serious, possibly grave threat that was involved,
and events following that were influenced by the fact that (a)
it was the police you called in, and (b) within the police, the
Metropolitan Police arrangement is it is the counter-terrorism
command which deals with leak investigations.
Sir Gus O'Donnell: Yes, it is
SO15, and they are now part of that grouping. I can understand
that that creates some confusion certainly.
Q848 Mr Howard: Sir Gus, I am slightly
puzzled by all this, I am sure you can enlighten me. Between 2005
and 2007, you are telling us, there were a series of leaks which
endangered national security. Presumably you were able to tell
that they endangered national security by the nature of the use
which was made of those leaks. Did any of them involve breaches
of the Official Secrets Act?
Sir Gus O'Donnell: Yes, potentially.
Q849 Mr Howard: Well, I do not understand
potentially. Did the use which was made of those leaks involve
documents which came within the scope of the Official Secrets
Act?
Sir Gus O'Donnell: Yes.
Q850 Mr Howard: It did. So between
2005 and 2007, you have these damaging leaks involving breaches
of the Official Secrets Act.
Sir Gus O'Donnell: Which the police
investigated.
Mr Howard: They did investigate, did
they?
Q851 Chairman: In every case?
Mr Hannigan: I think not in every
case, but certainly in some of them. Of course, we do not know
of every case.
Q852 Mr Howard: But did they investigate—
Sir Gus O'Donnell: They investigated
a number of them.
Q853 Mr Howard: At your request?
Sir Gus O'Donnell: Yes.
Q854 Mr Howard: At what level? I
mean, in this case, we have the very highest levels of the Metropolitan
Police involved.
Sir Gus O'Donnell: Well, again,
we do not say to the police exactly what level you have to handle
these inquiries, but we put to them and asked them to investigate,
because there was prima facie a case that the Official Secrets
Act had been breached.
Q855 Mr Howard: Who is we in that
context exactly?
Sir Gus O'Donnell: The Cabinet
Office.
Q856 Mr Howard: You see, this again
is somewhat puzzling, because I have been looking at the guidance
which was in force at the time. It says very clearly that it is
the responsibility of individual departments, their permanent
secretaries and departmental security officers to conduct investigations.
Then it says, "The police investigate cases that breach the
Official Secrets Act or involve criminal behaviour". What
is meant by "or involve criminal behaviour", as opposed
to a breach of the Official Secrets Act?
Sir Gus O'Donnell: Well, the police
might investigate cases, for example, where there was an issue
about leaking of sensitive economic data, for example.
Q857 Mr Howard: Why?
Sir Gus O'Donnell: Insider trading.
Mr Howard: How on earth could insider
trading arise in the context of leaked information from a government
department?
Q858 Ms Hewitt: Quite easily.
Sir Gus O'Donnell: Quite easily.
I could give you examples, but it would be quite difficult to
do so in open session.
Q859 Mr Howard: Such as to give rise
to a criminal offence?
Sir Gus O'Donnell: Yes.
Mr Hannigan: I think, Mr Chairman,
this is covered in the footnote to the protocol from Dennis O'Connor,
where he qualifies the threshold saying it is about the Official
Secrets Act, but also other things, and he lists the sort of things
that Sir Gus has just been talking about. The Chief Inspector's
report noted: "In future leak investigations, there should
be a presumption in favour of the police not being involved unless
there are: (a) reasonable grounds for believing an offence under
the Official Secrets Act 1989 ... ; (b) reasonable grounds for
believing a serious criminal offence has been committed as an
integral part of a leak(s), such as the example where an official
is subject to bribery or corruption, or very exceptional cases
which seriously threaten the UK in economic or integrity terms."
| 
